Roberts-Smith v Fairfax Media Publications Pty Limited (No 34) [2022] FCA 532

Roberts-Smith v Fairfax Media Publications Pty Limited (No 34) [2022] FCA 532

The YouTube publication facility in paragraph 4(c) of the orders made on 28 March 2022 contributed to the undermining of the integrity of the s 38B Orders because persons outside Australia appeared to have used recordings to publish information identifying, or tending to identify, Sensitive Witnesses and other SOCOMD members, while enforcement against such persons would be difficult if not impossible. Open justice was sufficiently satisfied by the remaining arrangements in paragraphs 4(a) and 4(b), and continuation of paragraph 4(c) was not appropriate.

Jurisdiction
Australia
Judgment Date
11 May 2022
Procedural Posture
Practice and Procedure; Oral Application for Variation of Orders Concerning Conduct of Trial and National Security Information (criminal and Civil Proceedings) Act 2004 (cth) Orders / Interlocutory Application During Trial
Outcome
Application granted; order 4 of the orders made on 28 March 2022 varied with effect from 12 May 2022 by deleting the YouTube recording facility and amending the chapeau.
Legal Topics
['variation of Orders Made on 28 March 2022' 'sensitive Witnesses' 'special Operations Command Members' 's 38 B Orders' 'audio Visual Broadcasts and You Tube Recordings of Proceedings' 'protection of Identifying Information' 'geo Blocking' 'open Justice Requirements']
['practice and Procedure' 'national Security Information' 'open Justice'] ['variation of Orders Made on 28 March 2022' 'sensitive Witnesses' 'special Operations Command Members' 's 38 B Orders' 'audio Visual Broadcasts and You Tube Recordings of Proceedings' 'protection of Identifying Information' 'geo Blocking' 'open Justice Requirements']

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Procedural Posture

Practice and Procedure; Oral Application for Variation of Orders Concerning Conduct of Trial and National Security Information (criminal and Civil Proceedings) Act 2004 (cth) Orders / Interlocutory Application During Trial

Legal Issues

  1. 1 ["Whether order 4(c) of the orders made on 28 March 2022, providing for recordings of Sensitive Witness evidence to be made available on the Federal Court's YouTube channel, should be deleted." 'Whether use of the YouTube facility undermined the integrity of orders made under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).' "Whether the requirements of open justice were satisfied without making recordings available on the Federal Court's YouTube channel."]

Ratio Decidendi

The YouTube publication facility in paragraph 4(c) of the orders made on 28 March 2022 contributed to the undermining of the integrity of the s 38B Orders because persons outside Australia appeared to have used recordings to publish information identifying, or tending to identify, Sensitive Witnesses and other SOCOMD members, while enforcement against such persons would be difficult if not impossible. Open justice was sufficiently satisfied by the remaining arrangements in paragraphs 4(a) and 4(b), and continuation of paragraph 4(c) was not appropriate.

Court Disposition

Application granted; order 4 of the orders made on 28 March 2022 varied with effect from 12 May 2022 by deleting the YouTube recording facility and amending the chapeau.

Orders

  • ['Order 4 of the orders made on 28 March 2022 be varied with effect from 12 May 2022 so as to provide that, 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) and the considerable public interest in the...