Federal Court of Australia
Roberts-Smith v Fairfax Media Publications Pty Limited (No 26)  FCA 46
NSD 1486 of 2018
THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
NSD 1487 of 2018
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Having regard to public safety considerations resulting from the COVID-19 pandemic and restrictions on access to the court building effective from 21 January 2022, and pursuant to s 17(4) of the Federal Court of Australia Act 1976 (Cth) and all other enabling powers, the public be excluded from the courtroom during the hearing of the evidence of Person 41, subject to the following conditions:
(a) members of the media and other persons approved by the Court who have given the undertakings set out in (i)–(v) below, and who are identified in the Court’s records will be given access consistent with the orders under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) made on 6 December 2021 (the s 38B Orders) to an audio-visual recording made of the proceeding as it occurs. The undertakings are as follows:
(i) they will not disseminate the link to the live stream to any other person;
(ii) they will ensure that the live stream cannot be seen or heard by any other person;
(iii) they will remain muted with their camera off;
(iv) they will not record the proceeding in accordance with Division 6.2 of the Federal Court Rules 2011 (Cth); and
(v) they will identify themselves by entering their full name upon entering the live stream.
(b) within 24 hours of the relevant evidence being given, or such further period as the Court may allow, a recording of the proceeding consistent with the s 38B Orders and any other non-publication or suppression orders made by the Court, and excluding any information the disclosure of which is prohibited by those orders, will be available on the Federal Court’s YouTube channel.
Members of the public who view and listen to the proceeding in the manner indicated in this paragraph (b), do so on the condition that they are prohibited from making any recording or photographic record of the hearing or any part thereof by any means whatsoever and advised that any failure to observe this condition may constitute a contempt of court and be punishable as such.
1 These are my reasons for orders I will make until further order as to the future conduct of certain aspects of these proceedings. The orders are made pursuant to s 17(4) of the Federal Court of Australia Act 1976 (Cth) and all other enabling powers.
2 The COVID-19 pandemic and the restrictions which have been imposed to protect public safety have affected the progress of this trial. An initial trial date was vacated because of COVID-19 restrictions. The trial commenced in June last year and the applicant’s case-in-chief was completed. The respondents called three witnesses who gave evidence by audio-visual link from Afghanistan. The trial was then adjourned. Details of the reasons for the vacation of the initial trial date and adjournments thereafter are set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 4)  FCA 614, Roberts-Smith v Fairfax Media Publications Pty Limited (No 17)  FCA 764 and Roberts-Smith v Fairfax Media Publications Pty Limited (No 21)  FCA 893.
3 The trial has now been adjourned for a period of approximately six months. It is due to resume on 2 February 2022, that is to say, this morning.
4 The respondents have 13 or 14 witnesses they propose to call and who are not resident in Western Australia. Those witnesses are able to come to Sydney. The respondents have 9 to 10 witnesses they propose to call who are resident in Western Australia. Western Australian border restrictions have not been lifted as was at one point anticipated. The respondents propose to resume their case and call their witnesses who are not resident in Western Australia. The position with respect to the evidence of the witnesses who reside in Western Australia has not yet been resolved.
5 A further recent development is that restrictions in court buildings in New South Wales have tightened and the public may not come into the building. Those additional restrictions came into effect on 21 January 2022.
6 The witnesses who the respondents propose to call and who are not from Western Australia fall into two categories. First, there are those witnesses who are present or former Special Operations Command (SOCOMD) members. The identity of those witnesses and, as I understand it, some of the evidence they may give, is sensitive information and is subject to an extensive set of orders which I have made under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act). The latest version of those orders made under ss 19(3A) and s 38B of the NSI Act was made by the Court on 6 December 2021 (the s 38B Orders).
7 Those witnesses will give evidence in open court and may also give evidence in closed court where appropriate. In the case of their “open court evidence”, it was intended that they be heard, but not seen by members of the public, including the media, because of national security considerations (see order 77 of the s 38B Orders). I will return to this group of witnesses shortly.
8 As to the non-Western Australia, non-SOCOMD witnesses the respondents propose to call, no decision at this point has been made as to how their evidence will be recorded and conveyed.
9 Returning then to the non-Western Australian SOCOMD witnesses and their “open court evidence”, the proposal prior to recent developments was that such members of the public, including the media, who attended the court building could view and listen to the evidence from a nearby courtroom, subject to the fact that they were not to see the witness. Because of the change in the status of the building restrictions due to the COVID-19 pandemic, that is no longer possible.
10 One difficulty with the “open court evidence” from SOCOMD witnesses who are aware of sensitive information as to the identity of other SOCOMD members and, more generally, of national security information, is the possibility of inadvertent disclosure. This has already occurred in the case, albeit quite innocently. It is understandably a matter of real concern to the Commonwealth of Australia.
11 In my opinion, the risk of inadvertent disclosure rules out the option of unrestricted real time live streaming of the evidence of the SOCOMD witnesses minus, of course, the image of the SOCOMD witnesses by reason of the s 38B orders.
12 I propose to put in place two measures to ameliorate to the extent possible the fact that the public, including the media, will not be able to come into the court building during the open court evidence of the SOCOMD witnesses.
13 First, a limited number of representatives of recognised media organisations whose identities are known and who, by reason of their profession, owe professional and ethical obligations, will be given access to real time live streaming, subject to appropriate undertakings. Those undertakings are set out in the orders I will make. A representative of a recognised media organisation who does not presently have access and who seeks access can make an application to be given access.
14 Secondly, the recording of the evidence will be released to the Commonwealth of Australia which, in consultation with the parties to the extent necessary, will produce a recording of the evidence with disclosures of sensitive information deleted. That recording will be made publicly available within 24 hours, or such further period as the Court may allow, by being placed on the Federal Court’s YouTube channel.
NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018