Roberts-Smith v Fairfax Media Publications Pty Limited (No 31)

The case of Roberts-Smith v Fairfax Media Publications Pty Limited (No 31) involved an application by Ben Roberts-Smith, a former Special Forces soldier, to compel the Inspector-General of the Australian Defence Force (IGADF) to produce documents related to a witness, referred to as Person 24. The dispute centred on whether the IGADF could claim public interest immunity over these documents, following a previous ruling that had upheld such immunity. The Federal Court was tasked with determining whether there had been a material change in circumstances that warranted a reconsideration of the immunity claim.

The court had to decide whether the IGADF's claim of public interest immunity was still valid in light of new evidence presented by the applicant, Ben Roberts-Smith. The legal issues included the weight to be given to the previous ruling, the nature of the material change in circumstances, and the appropriate balancing of public interest considerations as outlined in the case of Alister v The Queen. The court also had to consider the impact of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) on the disclosure of sensitive information.

The court found that there had been a material change in circumstances since the previous ruling, primarily due to new evidence that cast doubt on the credibility of Person 24's testimony. This evidence included an inconsistency between Person 24's current testimony and a previous Protected Affidavit Procedure (PAP) notice. The court concluded that this inconsistency was significant and warranted a reconsideration of the immunity claim. The IGADF had not successfully established that the public interest in withholding the documents outweighed the public interest in their disclosure for the proper administration of justice. The court also noted that the new evidence did not have broader application but was specific to the circumstances of this case.

In summary, the Federal Court ruled that the IGADF's claim of public interest immunity over the documents in question was not established due to the material change in circumstances. The court also made orders restricting the disclosure of certain reasons for judgment to protect sensitive information under the National Security Information Act. This decision allows for the production of the documents to proceed, subject to the necessary amendments to the NSI orders being made.