Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 44) [2023] FCA 1013

ORDERS

THE COURT ORDERS THAT:

1.    The Commonwealth’s Interlocutory application dated 19 July 2023 and the Request by Non-Party for Access to Court Documents dated 21 July 2023 and any associated applications and requests be referred to another Judge for hearing and determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1    Under our system of law, a judge is disqualified from hearing a matter, not only in a case of actual bias, but also in a case of apprehended bias. This reflects the imperative that justice not only be done, but also be seen to be done. The applicant for disqualification in this case has made it clear that he does not allege actual bias and that his case is one of apprehended bias. The legal test for apprehended bias does not involve an examination by the judge of his or her state of mind or tendencies. The issue is assessed and resolved by the use of a legal construct of the fair-minded observer or hypothetical reasonable observer to whom the law attributes certain characteristics, including a fair and reasonable approach.

2    This is an application by the applicant in three unsuccessful defamation proceedings that I disqualify myself on the ground of apprehended bias from hearing and determining two applications brought by the Commonwealth of Australia (the Commonwealth). The background to the application is follows.

3    The first of the applications is an Interlocutory application dated 19 July 2023 in which the Attorney-General on behalf of the Commonwealth, seeks amendments to orders made by the Court on 15 July 2020 (and amended from time to time) pursuant to ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). I will refer to the orders as the “s 38B Orders” and the National Security Information (Criminal and Civil Proceedings) Act as the “NSI Act”. The Commonwealth’s application is brought under s 19(3A) and s 38B of the NSI Act. Section 19(3A) is in the following terms:

(3A)    In addition to the powers of a court under this Act in a civil proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information if:

(a)    the court is satisfied that it is in the interest of national security to make such orders; and

(b)    the orders are not inconsistent with this Act; and

(c)    the orders are not inconsistent with regulations made under this Act.

4    Section 38B is in the following terms:

(1)    At any time during a civil proceeding:

(a)    the Attorney-General, on the Commonwealth’s behalf; and

(b)    the parties to the proceeding, or their legal representatives on their behalf;

may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information.

(2)    The court may make such order (if any) as it considers appropriate to give effect to the arrangement.

5    The application to amend the s 38B Orders is supported by an affidavit of Mr Ross Edward Barnett who is the Director of Investigations of the Office of the Special Investigator (the OSI). For reasons which will become clear, it is necessary to identify some aspects of Mr Barnett’s evidence. It is not necessary to set out the amendments sought and it is sufficient to say that they give the Australian Federal Police (the AFP) and the OSI the right to apply for access to a Sensitive Court File Document or Sensitive Court File Information and, if granted, to engage in specified permitted communications, dealings with documents and permitted creation and preparation of documents.

6    Mr Barnett deposes that the OSI was established as an executive agency by order under s 65 of the Public Service Act 1999 (Cth) on 10 December 2020 and that the order came into effect on 4 January 2021 and the OSI commenced operations thereafter. Mr Barnett states that as set out in the order, the functions of the OSI include the following:

(1)    to review the findings of the Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry;

(2)    to work with the AFP to investigate the commission of criminal offences under Australian law arising from or related to any breaches of the Law of Armed Conflict by members of the Australian Defence Force (the ADF) in Afghanistan from 2005 to 2016; and

(3)    to develop briefs of evidence in respect of any offences that are established for referral to the Commonwealth Director of Public Prosecutions.

7    Mr Barnett deposes that the OSI is currently conducting a number of joint investigations with the AFP into the alleged commission of criminal offences under Australian law arising from or related to breaches of the Law of Armed Conflict by members of the ADF in Afghanistan from 2005 to 2016. The joint investigations are collectively known as Operation Emerald.

8    The second application made by the Commonwealth as represented by the OSI is an application or request under r 2.32 of the Federal Court Rules 2011 (Cth) for access by a non-party to Court documents. The application or request is in the following terms:

The Commonwealth, as represented by the Office of the Special Investigator, seeks access to inspect, uplift and copy the whole of the Sensitive Court File, including (but not limited to):

•    the pseudonym list prepared for the purposes of the proceedings;

•    transcripts of all trial hearings that occurred in closed court (Closed Court Transcript);

•    Sensitive Outlines of Evidence; and,

•    documents tendered in closed court (closed court exhibits).

The meaning of the term “Sensitive Court File” is dealt with below: see part 6.3.

9    Mr Barnett states that he has sworn his affidavit in support of the Commonwealth’s application to amend the s 38B Orders and, in the event that the application to amend the s 38B Orders is granted, in support of the OSI’s application for access to the Sensitive Court File.

10    Mr Barnett deposes that the purpose of his affidavit is two-fold. First, Mr Barnett explains why, in his view, it is necessary for investigators to obtain access to the Sensitive Court File in the defamation proceedings. Secondly, Mr Barnett describes the security measures that will be adopted to ensure that material from the Sensitive Court File in the defamation proceedings, if obtained by investigators, will be used, handled, stored and otherwise dealt with in a way that ensures its proper protection.

11    Mr Barnett deposes that Operation Emerald currently consists of approximately 40 investigations and that although all of these investigations are active, the level of investigative focus varies across the investigations from time to time. The general subject matter of the investigations is to investigate the alleged commission of criminal offences under Australian law arising from or related to breaches of the Law of Armed Conflict by members of the ADF in Afghanistan from 2005 to 2016. Criminal offences of the kind being investigated are extremely grave and their thorough investigation is of national and international importance.

12    Mr Barnett deposes that his ability to disclose the details of the investigations in an open and unclassified affidavit is limited, but that he is able to say that there is an overlap between the subject matter of the investigations and the subject matter of the defamation proceedings.

13    Mr Barnett deposes that investigators, being OSI and AFP investigators, working on the joint investigations and persons authorised to assist the investigators have adopted a conservative approach to access to material from the defamation proceedings. They have done this for a number of reasons, including the need to ensure strict compliance with the s 38B Orders and the need to maintain the highest standard of integrity in the conduct of investigations, including their information management practices.

14    Mr Barnett deposes that in relation to the OSI’s information management practices, he is aware of the use and derivative use immunities conferred by the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) and s 124(2CA) of the Defence Act 1903 (Cth) and the potential relevance of these immunities to information obtained or derived from the IGADF’s Afghanistan Inquiry (IGADF Inquiry Information). Mr Barnett deposes as follows:

30.    The OSI manages legal issues associated with use and derivative use immunities through a separate Special Counsel legal function. It has engaged the Australian Government Solicitor (AGS) to perform that function. AGS has a team of AGS lawyers, led by the Chief Counsel Dispute Resolution, Tim Begbie KC, undertaking that work. The role of the Special Counsel team is to give legal advice to the OSI, AFP and investigators in relation to access to, and use and management of, IGADF Inquiry Information and related issues, including other use and derivative use issues.

31.    If the Commonwealth’s applications are successful and investigators gain access to all material held on the Sensitive Court File, this material will be quarantined and reviewed by the Special Counsel team before being made available to investigators. Depending on the outcome of that review, I anticipate that the OSI and AFP may decide, having regard to advice from the Special Counsel team, that some of the material held on the Sensitive Court File should ultimately be withheld from investigators. In this affidavit, where I refer to investigators “obtaining” or “gaining” access to certain material held on the Sensitive Court File (or similar), those references should be read as investigators “obtaining” or “gaining" access to that material “subject to review by the Special Counsel team and decisions taken in light of advice from that team”.

15    Section 32 of the Inspector-General of the Australian Defence Force Regulation is in the following terms:

(1)    A person is not excused from giving information, producing a document or thing or answering a question under section 22 or 23 on the ground that the information, the production of the document or thing, or the answer to the question, might tend to incriminate the person or expose the person to a penalty.

(2)    However, in the case of an individual:

(a)    the information given or the document or thing produced; and

(b)    giving the information or producing the document or thing; and

(c)    any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing;

are not admissible in evidence against the individual in any civil or criminal proceedings in any federal court or court of a State or Territory, or proceedings before a service tribunal, other than proceedings by way of a prosecution for giving false testimony that relates to section 22 or 23.

Note:    For immunity in relation to the use and the derivative use of a statement or disclosure made in the course of giving evidence, the making of the statement or disclosure, and any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure, see subsection 124(2CA) of the Act.

(3)    Despite subsection (1), a person is not required to answer a question if the answer to the question might tend to incriminate the person in respect of an offence with which the person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.

(See also s 124(2CA) of the Defence Act.)

16    I delivered the main judgment in the three defamation proceedings on 1 June 2023 (Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555). Each of the applicant’s proceedings was dismissed. I also delivered closed Court reasons.

17    At a hearing on 29 June 2023 to deal with costs and other matters, counsel for the Commonwealth raised the fact that the Commonwealth would be seeking an amendment to the s 38B Orders. On 4 July 2023, I made a number of programming orders with a view to the Commonwealth’s application being listed for hearing on Monday, 4 September 2023 at not before 10.15 am.

18    Mr Barnett’s evidence also included a statement to the effect that he had prepared a confidential affidavit which was intended to be read alongside his “open” affidavit. He said that the confidential affidavit had been prepared on the basis that it may be made available to the judge of the Court who hears the Commonwealth’s applications, but not to the parties to the defamation proceedings, their legal representatives or any other person. I was later advised by the Commonwealth that there were two confidential affidavits.

19    On 2 August 2023, the parties and the Commonwealth were advised by my chambers that I had listed the matters for a case management hearing on 7 August 2023. I also advised the parties that I would raise with them, in light of the confidential affidavits in the Commonwealth’s applications and the outstanding costs issues involving the applicant, whether there was any reason the Commonwealth’s applications should be referred to another judge for hearing and determination. On 7 August 2023, counsel for the applicant submitted that I should refer the applications to another judge. Counsel for the Commonwealth submitted that I could and should hear the applications.

20    When I raised with counsel for the applicant the possibility that I hear and determine the outstanding costs application involving the applicant before deciding the Commonwealth’s applications and that that might remove any argument of apparent bias on the outstanding costs application, he indicated that there was another basis upon which the applicant submitted I should not hear the Commonwealth’s applications and that was on the basis of apprehended bias having regard to my findings in the main proceedings.

21    The basis upon which I had raised the issue of whether I should hear the Commonwealth’s applications with the parties and the Commonwealth is no longer a difficulty as the Commonwealth indicated by letter a short time after the hearing on 7 August 2023 that it did not intend to rely upon any confidential evidence in relation to the applications. With respect to the other basis raised by counsel for the applicant on 7 August 2023, I put in place a timetable for filing written submissions dealing with the issue. I have now received submissions from the applicant and the Commonwealth and these are my reasons with respect to the applicant’s application that I disqualify myself from hearing the Commonwealth’s applications on the basis of apprehended bias.

22    I should say that at or about the time I received the applicant’s written submissions in reply, the applicant made an application for leave to issue two subpoenas in relation to the Commonwealth’s applications. I simply note that matter. It has not been relevant to my decision.

23    The relevant principles in relation to an application for disqualification on the ground of apprehended bias are not in dispute. The general principle was stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) by Gleeson CJ, McHugh, Gummow and Hayne JJ in the following terms (at [6]).

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

(Citations omitted.)

24    This principle was reiterated in Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Michael Wilson & Partners) at [31] and [67] per Gummow A-CJ, Hayne, Crennan and Bell JJ.

25    In both Ebner (at [8]) and Michael Wilson & Partners (at [63]), the plurality made it clear that the application of the apprehension of bias principle involves two steps. The first step is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second step is an articulation of the logical connection between that matter and the feared deviation from deciding the case on its merits. A mere assertion of an interest or that a judge appeared to be biased through pre-judgment will be of no assistance in the absence of an articulation of the connection between the events giving rise to the apprehension of bias through pre-judgment and the possibility of departure from impartial decision-making.

26    The following further matters should be noted.

27    First, in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson v Johnson) (at [12] and [14]), the plurality identified features of the hypothetical reasonable observer. Such a person is taken to be reasonable and not entitled to make snap judgments. Justice Kirby said the observer is not a lawyer and yet he or she is neither a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Furthermore, the observer is intelligent and aware of the phenomenon of adjudication (CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17 v Minister) at [133] per Edelman J) and is neither complacent nor unduly sensitive or suspicious (CNY17 v Minister at [19] per Kiefel CJ and Gageler J). Another matter to be considered is that it must at all times be remembered that the subject of the application is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial” (Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584–585 per Toohey J).

28    Secondly, judges should not be too ready to disqualify themselves. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (JRL), Mason J (as his Honour then was) made it clear that although it was important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by exceeding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

29    Thirdly, as the Commonwealth submitted, a claim that there is a reasonable apprehension of bias because of previous reasons for judgment is a claim of reasonable apprehension of “prejudgment”. I agree with the Commonwealth’s submission that the “mere fact that a judge has previously decided a case adverse[ly] to a party does not provide a basis for a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to bear on the case at hand” (MTI v SUL (No 2) [2012] WASCA 87 at [14]; R v Masters (1992) 26 NSWLR 450 at 471; JRL at 352). What is required is an identity between a question of fact or credit that the judge has expressed a clear view about and that question of fact or credit in the case in which the disqualification application is made. In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, the High Court said (at 300):

It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

30    The live and significant issue must be the same, or an inextricably interwoven issue or matter in both proceedings (Westcoast Clothing Co Pty Ltd v Freehill Hollingdale & Page (A Firm) [1999] VSC 24 at [23]). The Commonwealth also referred in this context to the observations of Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (at [185]):

Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

31    The Commonwealth referred to the applications as separate applications and clearly, the two applications are different applications. However, I do not think that that raises the prospect of a different result on each application with respect to the apprehended bias application. The reality is that for the purposes of each application, the same evidence is relied on by the Commonwealth. That is made clear by Mr Barnett’s evidence referred to above. Furthermore, as far as I can discern at this point in time, similar arguments by reference to similar evidence will be put on both the application to amend the s 38B Orders and the application for access under r. 2.32 of the Federal Court Rules.

32    I have made a number of serious findings of fact and credit against the applicant in the main judgment. Those findings are set out in the reasons.

33    The essence of the applicant’s submission is that at the hearing of the amendment application and what he referred to as the “intertwined” access application, he will submit that the amendment application will interfere, or seriously risk interference, with the administration of justice and that the Court will need to consider such submissions. The applicant submits that a reasonable observer properly apprised of all relevant matters might, and the applicant submits would, perceive a logical connection between the matters raised, that is to say, the Court has, in effect, formed the view that the applicant was either guilty of murder, or complicit in and responsible for murder, and the reality that, on the Commonwealth’s applications, the Court will be called upon to take steps that might undermine the applicant’s presumption of innocence. The applicant submits that this logical connection reveals the possibility that the Court as presently constituted may not bring an impartial mind to considering the extent to which the administration of justice might be undermined by the grant of relief on either application.

34    The essence of the Commonwealth’s submission in response to this argument is that the applicant’s argument fundamentally misconceives the Court’s power under s 19(3A) of the NSI Act. That subsection confers powers on a civil court to make such orders as that Court considers appropriate in relation to the disclosure, protection, storage etc., of national security information, in the civil proceeding over which the Court has jurisdiction, if satisfied (among other things) that it is “in the interest of national security” to make the orders. As such, it is not a means by which the Court either can or should superintend the operation of the use and derivative use of immunities contained in the Defence Act and IGADF Regulation in the context of criminal investigations being conducted by the OSI/AFP or any criminal proceedings that may flow from such investigations. The Commonwealth submitted that if the applicant is ever charged with a criminal offence flowing from the OSI/AFP investigations, his rights and protections arising from the Defence Act and the IGADF Regulation will exist irrespective of the form that the s 38B Orders take at the time and may be dealt with, if necessary, by a criminal court with appropriate jurisdiction. The Commonwealth accepted that I expressed clear views about issues of fact and credit in the main judgment adverse to the applicant, but submitted that none of those are conceivably relevant, or would need to be determined in the context of the amendment application. The Commonwealth goes on to submit that, in any event, the evidence before the Court on the amendment application establishes that the OSI/AFP have appropriate information management practices in place in relation to information potentially subject to a statutory immunity and, in this respect, they refer to and rely on the evidence of Mr Barnett.

35    It is not possible for the Court to know all of the submissions that may be made on the Commonwealth’s applications, or the evidence which may be relevant to the applications. As far as one can tell on the information presently available, the applications are likely to require a decision as to the scope of the amendment and access powers and the matters which are relevant to the exercise of those powers. If the Commonwealth is right and the matters of criminal procedure that the applicant raises or seeks to raise are not matters of national security “with which this Court either can or should concern itself under s 19(3A)”, then the matters which the applicant wishes to raise will not be relevant to the exercise of those powers and there are unlikely to be any remaining issues of fact that directly concern the applicant. If the applicant is right and the effect on the applicant’s presumption of innocence (as the applicant put it) is relevant, then various factual issues may then arise and require determination. On one view, there is an initial decision which seems to involve a question of construction concerning the scope of those powers and, depending on which way that decision goes, there may or may not be various factual issues to be resolved and then an assessment and balancing of the relevant factors.

36    The force of the Commonwealth’s argument is as follows. The initial question on the applications will be whether the matters of criminal procedure that the applicant wishes to raise are relevant to the amendment and access powers and that is largely, if not entirely, a question of construction. I have not previously expressed a view about that question of construction. If that issue of construction is decided in the Commonwealth’s favour, then there are no outstanding factual issues that directly involve the applicant. Even if the issue of construction goes against the Commonwealth, the resulting factual issues are not likely to involve any of the factual issues that I determined in the main judgment. That is not to make any comment on the applicant’s submission that he retains the presumption of innocence.

37    The force of the applicant’s argument is that the hypothetical reasonable observer would see that I have made a number of very serious findings against the applicant and such a person would consider that an ordinary right thinking member of the community would consider (strongly) that such matters should be the subject of a criminal investigation. That is enough to give rise to apprehended bias and, in those somewhat unusual circumstances, the issue is not resolved by the characterisation or fine analysis of the likely steps in the decision-making process.

38    The force of the competing arguments may be acknowledged. I consider the circumstances of this case are unusual, particularly in light of the strong findings I have made against the applicant. I have reached the conclusion (expressed in terms of the principle stated in Ebner) that the fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the Commonwealth’s applications (emphasis added).

39    In the circumstances, the Commonwealth’s applications will be referred to another judge for hearing and determination.

Associate:    

Dated:    25 August 2023

SCHEDULE OF PARTIES