Federal Court of Australia Roberts-Smith v Fairfax Media Publications Pty Limited (No 34) [2022] FCA 532 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Judgment of: BESANKO J Date of judgment: 11 May 2022 Catchwords: PRACTICE AND PROCEDURE — oral application by Commonwealth of Australia for variation of orders made on 28 March 2022 with respect to conduct of trial — where existing orders made pursuant to ss 19(3A) and 38B of National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (s 38B Orders) contain provisions designed to protect identity of Sensitive Witnesses including Special Operations Command (SOCOMD) members — where orders made on 28 March 2022 provide for recording of proceedings being made available on Federal Court's YouTube channel — evidence suggesting information obtained by viewing and listening to YouTube recordings used by persons located outside of Australia to publish information identifying or tending to identify Sensitive Witnesses including SOCOMD members — whether integrity of s 38B Orders placed at risk by use of YouTube facility — whether requirements of open justice satisfied without YouTube facility — application granted Legislation: Federal Court of Australia Act 1976 (Cth) s 17 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 3, 8, 19(3A), 38B Cases cited: Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614; (2020) 277 FCR 337 Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764 and Roberts-Smith v Fairfax Media Publications Pty Limited (No 21) [2021] FCA 893 Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 14 Date of hearing: 6 May 2022 Counsel for the Applicant: Mr A Moses SC with Mr P Sharp Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Mr N Owens SC with Ms L Barnett and Mr C Mitchell Solicitor for the Respondents: MinterEllison Counsel for the Commonwealth of Australia: Ms J Single SC with Mr J Edwards Solicitor for the Commonwealth of Australia: Australian Government Solicitor ORDERS NSD 1485 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule) First Respondent NSD 1486 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule) First Respondent NSD 1487 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule) First Respondent order made by: besanko J DATE OF ORDER: 11 MAY 2022 THE COURT ORDERS THAT: 1. Order 4 of the orders made on 28 March 2022 be varied with effect from 12 May 2022 so as to read as follows: 4. Having regard to the orders made on 7 April 2022 pursuant to ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the s 38B Orders) and the considerable public interest in this proceeding, the following arrangements will apply until further order with respect to the evidence of a Sensitive Witness (as defined in the s 38B Orders): (a) a room within the Court building will be open to the public for the purposes of providing an audio-visual broadcast of the proceeding as it occurs in a manner consistent with the s 38B Orders, to the extent consistent with density requirements, capacity limitations and all other relevant health and safety regulations and rules. (b) 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 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. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 This is an oral application by the Commonwealth of Australia for a variation of orders made by the Court on 28 March 2022. 2 The orders made on 28 March 2022 relate to the ability of members of the public to view and listen to the proceedings during the evidence of a Sensitive Witness as defined in orders made under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act), most recently amended on 7 April 2022 (the s 38B Orders). A Sensitive Witness is defined in the s 38B Orders as a Special Operations Command (SOCOMD) member who a party proposes to call as a witness in the proceedings or a person who the Commonwealth notifies the parties and the Court in writing is a Sensitive Witness. 3 The orders made on 28 March 2022 were in the following terms: 4. Having regard to the orders made on 6 December 2021 pursuant to ss 19(3A) and 38B of the NSI Act (the s 38B Orders), the considerable public interest in this proceeding and density requirements and limitations on courtroom capacity, the following arrangements will apply until further order with respect to the evidence of a Sensitive Witness (as defined in the s 38B Orders): (a) a room within the court building will be open to the public for the purposes of providing an audio-visual broadcast of the proceeding as it occurs in a manner consistent with the s 38B Orders, to the extent consistent with density requirements, capacity limitations and all other relevant health and safety regulations and rules. (b) 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 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. (c) within one business day 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 (c), 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. 4 The Commonwealth seeks the deletion of paragraph (c). The Commonwealth seeks an alteration to the chapeau to the order so that it reads as follows: Having regard to the orders made on 7 April 2022 pursuant to ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the s 38B Orders), and the considerable public interest in this proceeding, the following arrangements will apply until further order with respect to the evidence of a Sensitive Witness (as defined in the s 38B Orders): 5 The background to the Commonwealth's application is as follows. The trial of these proceedings commenced in June 2021 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 because of the COVID-19 pandemic and the restrictions imposed as a result. The reasons for the vacation of a previous trial date and adjournments of the trial are set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614; (2020) 277 FCR 337; Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764; and Roberts-Smith v Fairfax Media Publications Pty Limited (No 21) [2021] FCA 893. 6 The trial was fixed to resume on 2 February 2022. Shortly prior to that date, restrictions imposed because of the COVID-19 pandemic meant that members of the public were not able to come into the Court building. For that part of the trial which was conducted in 2021, members of the public, including the media who attended the Court building, could view and listen to an audio-visual broadcast of the proceedings from a room within the Court building. Due to the change in the status of building restrictions resulting from the COVID-19 pandemic, that was not possible at the time the trial recommenced in February 2022. For the reasons set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46, I made the following order in the case of the first Sensitive Witness, Person 41, being a SOCOMD member: 3. 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. I made a similar order in the case of subsequent Sensitive Witnesses until I made the general order applying to the evidence of Sensitive Witnesses on 28 March 2022. 7 The object of the NSI Act is, relevantly, to prevent the disclosure of information in civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice (s 3(1)). The expression "national security" means Australia's defence, security, international relations or law enforcement interests (s 8). The two sections in the NSI Act pursuant to which the Court made the s 38B Orders are ss 19(3A) and 38B, and they are in the following terms: 19 General powers of a court … (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. … 38B Arrangements for civil proceedings about disclosures etc. of national security information (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. 8 The s 38B Orders contain detailed provisions designed to protect the identity of Sensitive Witnesses, including SOCOMD members (paras 76–79) and a broad definition of "identifying information" as follows: identifying information means any information which identifies, or tends to identify, a Special Operations Command member, including (without limitation): a) the name of the Special Operations Command member; b) a photograph or other visual representation of the Special Operations Command member; c) a physical description of the Special Operations Command member; or d) any identifying information other than the relevant pseudonym for the Special Operations Command member listed in a Confidential Schedule to be prepared for the purposes of these Orders. 9 The Commonwealth states that it has come to the Commonwealth's attention and to the attention of the parties that persons located outside of Australia appear to be making use of information accessed by the audio-visual recordings of the proceedings uploaded to the Federal Court's YouTube channel for the purposes of analysis of information from different sources which has been utilised to then publish information which identifies, or tends to identify, Sensitive Witnesses and other SOCOMD members, including, but not limited to, the names or initials of certain Sensitive Witnesses and SOCOMD members. This statement is correct. The material which supports it was referred to in closed Court. It is not appropriate that I refer to that material in these reasons as that will have the effect of drawing attention to it. 10 The effect of the circumstances identified in the previous paragraph is to undermine the integrity of the s 38B Orders. Action against a person to correct the situation is made difficult, if not impossible, where the person is located outside of Australia. 11 Under paragraph (a) of the orders made on 28 March 2022, members of the public are able to come into the Court building and view and listen to the proceedings in a room within the Court building. They are in no different position from those watching the recordings of the proceedings on the YouTube channel. Unlike the latter group, they are all within the Court's jurisdiction and subject to the Court's processes. Subject to the different circumstances resulting from the s 38B Orders (i.e., viewing and listening from another room within the Court building), paragraph (a) reflects the norm for hearings in this Court. Paragraph (b) provides for a facility over and above the norm for hearings in this Court and reflects a balancing exercise involving a consideration of physical limitations with respect to the Court building and the significant public interest in the case on the one hand, and the importance of the s 38B Orders on the other. The requirements of open justice in the Federal Court of Australia Act 1976 (Cth) (s 17(1)) are satisfied by paragraphs (a) and (b) of the orders made on 28 March 2022, if not by (a) alone. Paragraph (c) contributes to open justice and may assist should physical limitations of the Court building become an issue, but it is not necessary for the purposes of satisfying the requirements of open justice and it is not appropriate where (as here) it contributes to the undermining of the integrity of the s 38B Orders. 12 The applicant supported the Commonwealth's application and made the important point that the provision of any facility which made easier the possible intimidation of witnesses should be carefully considered with respect to its advantages and disadvantages. 13 The respondents opposed the Commonwealth's application, pointing out the importance of open justice and suggesting geo-blocking as a possible option, at least in the first instance. The difficulty with geo-blocking was identified by the Commonwealth; it can be rendered ineffective by the use of a Virtual Private Network which is a widely commercially-available service. 14 The requirements of open justice are satisfied without paragraph (c) of the orders made on 28 March 2022. The continuance of the facility in paragraph (c) puts at risk the integrity of the s 38B Orders. In those circumstances, I will make the orders sought by the Commonwealth. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate: Dated: 11 May 2022 SCHEDULE OF PARTIES NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Respondents Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE