Commonwealth of Australia v De Pyle [2024] FCAFC 43

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v De Pyle [2024] FCAFC 43 Appeal from: De Pyle v Commonwealth of Australia [2023] FCA 597

File number(s): QUD 296 of 2023

Judgment of: O'CALLAGHAN, raper and button JJ

Date of judgment: 26 March 2024

Catchwords: PRACTICE AND PROCEDURE – where primary judge refused interlocutory application by the Commonwealth for certain suppression orders – where evidence adduced from responsible officer that suppression orders necessary to prevent prejudice to national security and to protect the safety of a person – where such evidence not contradicted – where the Commonwealth and the intervenor broadcaster agreed that to the extent that certain information was not in the public domain suppression orders should be made – appeal allowed

Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 3(1), 46PH(2) Federal Court of Australia Act 1976 (Cth) ss 24(1), 28(1)(c), 37AA, 37AE, 37AF, 37AG, 37AG(1)(b), 37AG(1)(c), 37AH(2)(d), Pt VAA Sex Discrimination Act 1984 (Cth) Pt II Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2), 2.32(2)(a), 2.32(3), 2.32(4), 34.163

Cases cited: AB v CD [2017] VSCA 338 AB v CD (2019) 364 ALR 202; [2019] HCA 6 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Alister v The Queen (1984) 154 CLR 404 Astrazeneca Pty Ltd v Glaxosmithkline Australia Pty Ltd (2006) ATPR 42-106; [2006] FCAFC 22 Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643 CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1 Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232 De Pyle v Commonwealth of Australia [2023] FCA 597 Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178 Fox v Percy (2003) 214 CLR 118 Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 Hogan v Hinch (2011) 243 CLR 506 John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 Monash Health v Singh [2023] FCAFC 166 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149 Parkin v O'Sullivan (2009) 260 ALR 503; [2009] FCA 1096 Plaintiff S244/2012 v Minister for Immigration and Border Protection (2016) 155 ALD 113; [2016] FCA 1227 Rinehart v Welker (2011) 93 NSWLR 311 Russell v Russell (1976) 134 CLR 495 The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 82

Date of hearing: 28 February 2024

Counsel for the Appellant A Berger KC with F Rogers

Solicitor for the Appellant Australian Government Solicitor

Counsel for the Respondent P McCafferty KC with S Marsh

Solicitor for the Respondent Bartley Cohen

Counsel for the Interested Party DR Sibtain SC with CM Roberts

Solicitor for the Interested Party Australian Broadcasting Corporation Legal Services

ORDERS QUD 296 of 2023

BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant

AND: DAMIEN DE PYLE Respondent

AUSTRALIAN BROADCASTING CORPORATION Interested Party

order made by: O'CALLAGHAN, raper AND button JJ DATE OF ORDER: 26 MARCH 2024

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The Interested Party's notice of contention is dismissed. 3. Orders 1 and 12 of the orders made by the primary judge on 29 June 2023 be set aside. 4. Pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), throughout the Commonwealth of Australia the disclosure or publication of the following information is prohibited until 1 July 2043: (a) Any of the following information in the Originating Application dated 21 October 2022: (i) on page 3 of Annexure A: A. the first five words (and figures in parentheses) between "bindings to a chain" and "This was to prevent"; B. between "72-hour course." and "allowed to remove our hoods"; C. between "allowed to remove our hoods" and "we were again hooded"; D. between "again hooded" and "were unhooded"; E. the seventh to thirteenth words (inclusive) between "were unhooded" and "denouncing our loyalty"; F. between "loyalty to Australia" and "re-hooded, rebound"; G. the first 12 words between "re-hooded, rebound" and "where we were told to strip"; H. between "strip off all our clothes" and "We were then kept in cages"; I. between "kept in cages" and "would hood us to take us" (excluding the first four words and dimensions); J. between "take us to an interrogation" and "re-hooded and brought to a foreign military barracks"; K. the first 14 words between "were hosed with water," and "The Five Techniques include". (ii) on page 4 of Annexure A between "his hallucinations." and "Hooding was used during some interrogations" (excluding the first seven words and number); (b) Any of the following information in the Applicant's Concise Statement dated 10 January 2023: (i) in paragraph 4: A. the first two words between "CAC course would be" and "He was further advised"; B. paragraph 4(c) (excluding the words "involve nudity"); (ii) in paragraph 5: A. between "The" and "in the CAC Course"; B. between "outlined during the" and "The applicant was not"; C. the remainder of paragraph 5 after "major psychological illness."; (iii) in paragraph 7: A. between "("the group") were required to" and "captured by a"; B. between "stripped of their belongings" and "bound, and hooded."; C. the remainder of paragraph 7 after "bound, and hooded." (excluding the nineteenth, twentieth, twenty-seventh and twenty-eighth words of the remainder); (iv) in paragraph 8: A. between "attached to a chain" and "the applicant remained hooded" (excluding the thirteenth to twenty-seventh words); B. between "the applicant remained hooded" and "the applicant was permitted"; C. the remainder of paragraph 8 after "remove his hood"; (v) in paragraph 9: A. between "The applicant" and "denouncing loyalty to Australia"; B. the remainder of paragraph 9 after "denouncing loyalty to Australia" (excluding the first five words of the remainder); (vi) in paragraph 11: A. between "the applicant" and "where they were stripped"; B. between "where they were stripped" and "held in cages"; C. between "The applicant" and "various techniques"; D. the remainder of paragraph 11 after "from sleeping"; (vii) in paragraph 12 between "mock interrogations" and "The applicant was threatened" (excluding the first four words); (viii) in paragraph 13 between "module, the applicant" and "The applicant estimates"; (ix) in paragraph 14: A. between "module, the applicant" and "re-hooded (whilst remaining"; B. the remainder of paragraph 14 after "hand-cuffed)," C. paragraph 14(c); D. the first four words of paragraph 14(d); (x) the remainder of paragraph 17 after "the applicant was" (excluding the first three words and the thirty-ninth and fortieth words of the remainder); (xi) the remainder of paragraph 18 after "the applicant was" (excluding the first ten words, the twelfth word, the eighteenth to twenty-ninth words, and the forty-fifth and forty-sixth words of the remainder). (xii) the remainder of paragraph 19 after "the applicant was" (excluding the sixth, sixteenth, forty-sixth and forty-seventh words of the remainder); (xiii) in paragraph 20: A. between "the applicant was taken to" and "wave guns in his face" (excluding the final four words); B. between "wave guns in his face" and "The applicant complied"; C. the remainder of paragraph 20 after "very short range." (excluding the eighteenth and nineteenth words of the remainder); (xiv) the remainder of paragraph 21 after "was brought to" (excluding the first three words and the thirty-first and thirty-second words of the remainder); (xv) paragraph 22(f) save for the words "The applicant was unable to determine whether the threats were real."; (xvi) the remainder of paragraph 23 after "renouncing his faith." (excluding the final three words of the remainder). (c) In the Response to the Applicant's Concise Statement dated 7 February 2023 the words in paragraph 4 between "does not dispute" and "and that this constitutes"; and (d) Any of the information in paragraph 6(a) of the Applicant's submissions of 16 February 2023. 5. Pursuant to s 37AI(1) of the Federal Court Act, throughout the Commonwealth of Australia the disclosure or publication of any of the information highlighted in blue in the versions of the Originating Application, the Applicant's Concise Statement, and the Response to the Applicant's Concise Statement contained within confidential Exhibit VEA-5 to the affidavit of Vanessa Eva Austen affirmed 6 July 2023 (blue material) is prohibited until determination by the primary judge of the question referred to in paragraph 9 of these orders, or until further order of the court. 6. The disclosure or publication of the information referred to in these orders to and between the following persons is expressly permitted between: (a) the Federal Court judge presiding in the matter; (b) essential court staff; (c) the Appellant, Respondent, and their legal representatives; and (d) the Interested Party's legal representatives. 7. Within 7 days of the date of these orders, the Appellant is to file and serve copies of the following documents redacted in accordance with these orders: (a) the Applicant's Originating Application; (b) the Applicant's Concise Statement; and (c) the Respondent's Response to the Applicant's Concise Statement. 8. It is noted that the orders in paragraph 4 above are additional to and operate co-extensively with orders 2-6 of the orders made by the primary judge on 29 June 2023. 9. The proceeding be remitted to the primary judge pursuant to s 28(1)(c) of the Federal Court Act for further hearing and determination, limited to the sole factual question of whether the blue material is in the public domain. 10. The parties file any submissions, of no more than 2 pages in length, about costs within 7 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 This is an appeal from orders made by a judge of this Court on 29 June 2023 declining to make certain suppression orders sought by the Commonwealth. The orders of 29 June 2023 gave effect to the primary judge's reasons published on 9 June 2023. See De Pyle v Commonwealth of Australia [2023] FCA 597 (Reasons). 2 Leave to appeal was granted on 11 December 2023 by O'Callaghan J.

The hearing below 3 Mr de Pyle is the applicant in proceeding no QUD 375 of 2022. He is a former member of the Australian Defence Force (ADF). He claims to have been subject to unlawful discrimination, within the meaning of Part II of the Sex Discrimination Act 1984 (Cth) and s 3(1) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), by the Commonwealth during "Conduct After Capture" (CAC) training in which he participated in March 2019 when he was a member of the ADF. 4 Mr de Pyle filed a concise statement on 10 January 2023, and the Commonwealth filed a response to Mr de Pyle's concise statement on 7 February 2023. 5 By an interlocutory application filed on 15 February 2023, and pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), the Commonwealth sought suppression and related orders over certain information relating to the ADF's CAC training contained in documents filed in the proceeding. 6 The Commonwealth contended below, as it did on appeal, that certain suppression orders are necessary to prevent prejudice to national security and to protect the safety of any person (see ss 37AG(1)(b) and (c) of the Federal Court Act). 7 The application was supported by a confidential affidavit of Brigadier Glenn Ryan AM, CSC and Bar. Brigadier Ryan is an Army officer of 29 years' experience, who has held a variety of command and strategic appointments. He currently holds the position of Director General Training and Doctrine within the Royal Australian Army's Headquarters Forces Command. In that role he is the Executive Training and Doctrine Authority for Army and responsible to the Chief of Defence Force where Army is the Capability Manager for CAC training. He gave evidence the substance of which included that any understanding a potential enemy could gain of what ADF members are taught during CAC training would improve their chances of successfully exploiting detained or captured ADF personnel, thereby creating a risk to both Australia's security and the health and lives of ADF members captured or detained in the future. 8 The primary judge heard the suppression order application on 16 February 2023. At the commencement of the hearing, the Australian Broadcasting Corporation (ABC) intervened pursuant to s 37AH(2)(d) of the Federal Court Act. 9 Brigadier Ryan was not cross-examined (although we note that senior counsel for the ABC was, it appears, only provided with an unredacted copy of the Brigadier's affidavit during the course of the hearing, which was adjourned by her Honour for a brief period to allow the ABC's counsel to review the affidavit). 10 As the primary judge recorded in her Reasons (at [4]-[6]), following oral submissions on that day, the application was adjourned to permit the filing of further submissions and affidavit evidence. The parties subsequently sought to extend the timetable on four occasions, but agreed that no further oral hearing was required. 11 The ABC filed supplementary submissions on 8 March 2023 and sought to rely on an affidavit of Mr Phillip Thomas Beattie affirmed on 7 March 2023, which produced documents directed to the issue of whether certain matters in respect of which the Commonwealth sought suppression orders were in the public domain. The documents produced comprised a number of media articles, Hansard extracts, extracts from published books, various documents relating to a Senate inquiry and its report, transcript of hearings from the Royal Commission into Defence and Veteran Suicide, podcast transcript, and a Wikipedia page. 12 Mr de Pyle, both below and on appeal, neither supported nor opposed the making of any suppression orders. 13 During the hearing before the primary judge on 16 February 2023, her Honour made the following request of senior counsel for the Commonwealth and the ABC: I would then be assisted if the parties could provide me with a version of the documents, as best as you can, agreeing what is already in the public domain and what is not, accepting that that doesn't end …the decision I have to make, it would nonetheless help me if you're able to produce a document. And if you can't reach full agreement, that's fine. To the best that you can reach agreement on … what's out there, that would be helpful. 14 After the hearing, and having considered Mr Beattie's affidavit evidence about the extent of publication of some of the matters over which suppression orders were sought, in its further written submissions filed on 24 March 2023, the Commonwealth accepted that some of the information was in the public domain, and no longer sought to protect it. The written submission relevantly said the following: The information the Respondent initially sought a suppression order over was identified by yellow highlighting in the documents annexed to the Ryan Affidavit. The Respondent no longer presses for the suppression of information which the ABC has demonstrated has been placed into the public domain. Accordingly, attached to these submissions are revised versions of the following documents with yellow highlighting indicating the matters which the Respondent now seeks a suppression order over: a. the Originating Application filed 21 October 2022; b. the Applicant's Concise Statement filed 10 January 2023; c. the Respondent's Response to the Applicant's Concise Statement filed 7 February 2023; The Respondent continues to seek a suppression order over paragraph 6(a) of the Applicant's submissions of 16 February 2023, parts of paragraphs 21 and 23 of the Respondent's submissions dated 15 February 2023, the information highlighted in yellow in the body of the Ryan affidavit and information highlighted in yellow in Annexure GR-2 to the Ryan affidavit. 15 On 23 March 2023, Ms Catherine Ellis, a solicitor from the Australian Government Solicitor (AGS), sent an email to her Honour's Associate, in the following terms: We act for the Respondent in this matter. We refer to the Respondent's application for suppression orders which was heard by Her Honour on 16 February 2023. During that hearing, Her Honour indicated that she would be assisted "if the parties could provide me with a version of the documents as best as you can agreeing what is already in the public domain and what is not" (transcript reference page 23, lines 34-36). The parties are currently conferring in respect of the preparation of this document, and will provide it to Chambers as soon as possible. This email is sent with the consent of the Applicant and the Intervenor, who receive it in copy. 16 Her Honour's Associate acknowledged receipt of that email on the same day. 17 On 5 April 2023, Ms Ellis sent another email to her Honour's Associate, in the following terms: We refer to our correspondence below concerning Her Honour's request for "a version of the documents as best as you can agreeing what is already in the public domain and what is not". The parties are still conferring in relation to the document/s and will endeavour to provide that to Her Honour as soon as possible. This email is sent with the consent of the applicant and the intervenor (ABC), who are copied. 18 Her Honour's Associate acknowledged the "update" on the same day. 19 On 27 April 2023, Ms Ellis wrote to her Honour's Associate on behalf of the Commonwealth and the ABC, in the following terms: We refer to our emails below. Please find attached: 1. Colour coded versions of the: a. Originating Application b. Applicant's Concise Statement, and c. Response to the Applicant's Concise Statement (the Colour Coded Documents). 2. A table setting out the information within the Respondent's suppression order application. The "publication" column contains information identified by the Intervenor as being in the public domain. For the avoidance of doubt, the Respondent does not agree that the information in the "publication" column constitutes publication of the information within the Respondent's suppression order application. The Applicant submits that the information identified by the Intervenor is relevant to her Honour's determination of the application, but otherwise maintains a neutral position in respect of the application. In considering whether information is in the public domain, the Respondent repeats its further submissions filed 24 March 2023, and in particular paragraphs 14, 16-23 and 31. The Respondent no longer presses its suppression order application over the words "(whilst hooded and bound)" at page 32 of the confidential affidavit of Glenn James Ryan sworn 15 February 2023, in paragraph [14(a)] of the Applicant's concise statement. The Colour Coded Documents have been prepared as follows: a. The highlighting (regardless of colour) identifies information within the scope of the Respondent's suppression order application as at today. b. Yellow highlighting indicates information which is not disclosed by the evidence before the Court on the application to be in the public domain. c. Blue highlighting indicates information which the Intervenor considers is in the public domain, but the Respondent does not agree is in the public domain. The Intervenor notes that its response to the suppression order application is not limited to the question of whether information is already in the public domain. In particular, the Intervenor repeats the matters set out at paragraphs 33-42, 50-52 and 56 of the ABC's written submissions of 8 March 2023. This email and its attachments are sent with the consent of the Intervenor and the Applicant, who are copied. Please do not hesitate to contact us if we can be of any further assistance. 20 The correspondence and attached colour coded documents outlined above at [15] to [19] were included in confidential Exhibit VEA-5 to the affidavit of Vanessa Eva Austen, solicitor from the AGS, which was affirmed on 6 July 2023 and filed in this proceeding on appeal.

The legislation 21 Part VAA of the Federal Court Act gives the Court power to make suppression orders. Section 37AA of the Federal Court Act defines a suppression order to mean "an order that prohibits or restricts the disclosure of information (by publication or otherwise)". 22 Section 37AE of the Federal Court Act provides that "[i]n deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice". 23 Section 37AF of the Federal Court Act provides: (1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: … (b) information that relates to a proceeding before the Court and is: … (iv) information lodged with or filed in the Court. (2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1). 24 Section 37AG of the Federal Court Act provides: (1) The Court may make a suppression order or non-publication order on one or more of the following grounds: … (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; …

Relevant principles 25 The relevant principles were not in dispute. 26 The principle of open justice is a fundamental principle of the Australian justice system. See Rinehart v Welker (2011) 93 NSWLR 311; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at [18]. That is not an end in itself, but is adopted to ensure public confidence in the administration of justice. See Hogan v Hinch (2011) 243 CLR 506 at [20]. See also Russell v Russell (1976) 134 CLR 495 at 520. 27 In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377 at [7]-[9] the Full Court (Allsop CJ, Wigney and Abraham JJ) summarised the relevant principles as follows: The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the [Federal Court Act] are fairly well settled. Suppression or non-publication orders should only be made in exceptional circumstances … That is both because the operative word in s 37AG(1)(a) is "necessary" and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest of open justice … The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle … The critical question is whether the making of a suppression or non-publication order is "necessary to prevent prejudice to the proper administration of justice". The word "necessary" in that context is a "strong word" … It is nevertheless not to be given an unduly narrow construction … The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it … There is no exercise of discretion or balancing exercise involved … (Citations omitted). 28 Further, as Nettle J said in AB v CD (2019) 364 ALR 202; [2019] HCA 6 at [15] in relation to a provision equivalent to s 37AG(1)(c) of the Federal Court Act, "[t]he criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence".

The reasons of the primary judge 29 Having summarised the relevant, and for present purposes uncontroversial, principles applicable to the making (or not) of suppression orders, the primary judge correctly noted (at [19]) that "[t]he essential point of difference between the ABC and the Commonwealth concerns whether any order made now will fail the necessity test because the matters sought to be protected are already in the public domain". As we return to below, the debate before the primary judge focused on whether the information sought to be suppressed was already in the public domain through the various documents exhibited to the Beattie affidavit (the media articles, Senate documents, etc). The application was not contested by the ABC on the additional basis that Brigadier Ryan's evidence did not establish that suppression was not otherwise necessary. 30 Her Honour then proceeded to deal relevantly with each suppression claim in turn. We say "relevantly" because her Honour did accept certain other submissions made by the Commonwealth and made suppression orders in respect of certain other matters, which the ABC does not seek to challenge on appeal, and with which these reasons need not be burdened. 31 First, the Commonwealth sought to suppress approximately 25 lines of Mr de Pyle's explanation of what gave rise to his complaint to the Australian Human Rights Commission (AHRC). The complaint was Annexure A to his originating application, which was filed in proceeding no QUD 375 of 2022 on 21 October 2022. 32 The primary judge held (at [24] of the Reasons) that because the originating application and the annexure had been filed in unredacted form on 21 October 2022 and no application for suppression was made at the first case management hearing of proceeding no QUD 375 of 2022 on 22 November 2022, "the full content of the [o]riginating [a]pplication was in the public domain" and had been since at least 21 October 2022. 33 It can be inferred from the Reasons that her Honour considered that this was the case because, pursuant to r 2.32(2)(a) of the Federal Court Rules 2011 (Cth) (Rules) and subject to the restrictions in r 2.32(3), at the relevant time a non-party could inspect an originating application (and certain other court documents) filed in a proceeding. (As the primary judge noted at [24], the recent amendment to r 2.32(a) of the Rules which meant that non-parties now have a right to inspect originating applications and other specified documents only after the first directions hearing in a proceeding came into force on 13 January 2023). 34 The primary judge also held that "as reported in 'Jurist' on 27 September 2022 it appear[ed] that Mr de Pyle had 'shared a letter from the [AHRC] declining to investigate'" his complaint and that "[i]t can be inferred that the letter referred to is the same as that which is attached to the [o]riginating [a]pplication", and that it was therefore also in the public domain for that additional reason. 35 The article in the "Jurist" relevantly said that: In an interview with The Guardian and a post on his personal social media account, Pyle [sic] alleged that he was told if he did not perform sexual acts over a Bible and sexually assault a child doll, his fellow soldiers would be killed. According to Pyle [sic], ADF trainers kept him awake for 81 hours, and he genuinely believed that his fellow soldiers would literally die if he did not act. After the training program, Pyle [sic] was diagnosed with PTSD and major depressive disorder. Pyle [sic] claims that the training amounts to torture and sexual harassment and is a violation of human rights. Pyle [sic] shared a letter from the Australian Human Rights Commission declining to investigate Pyle's [sic] complaints under the International Covenant on Civil and Political Rights and the Australian Human Rights Commission Act of 1986. 36 Secondly, the Commonwealth sought to suppress certain parts of Mr de Pyle's concise statement. The primary judge held (at [29]) that the entire contents of the concise statement had been in the public domain for almost one month, because it had been filed on 10 January 2023, and no application had been made to suppress it until 15 February 2023. 37 Thirdly, the Commonwealth sought to suppress [20] and [22] of its concise response. The primary judge held (at [32]) that "[o]nce the confidentiality of the content of [20] and [22] of the [concise statement] has been lost, there is no necessity, nor utility, in protecting the Commonwealth's plea in response." 38 Fourthly, the Commonwealth sought to suppress [6(a)] of Mr de Pyle's written submission dated 16 February 2023 because it revealed the Commonwealth's plea in response to the allegations made in [20] and [22] of the concise statement. Her Honour said (at [35]) that because any confidentiality that may have attached to those paragraphs had been lost, there was nothing in [6(a)] to be protected.

The appeal considered

Nature of appeal 39 The appeal was brought pursuant to s 24(1) of the Federal Court Act. It is an appeal by way of re-hearing. The Court is therefore required to consider both suggested errors of law and fact and, where appropriate, draw inferences and conclusions from the evidence, so as to give the judgment which in its opinion ought to have been given in the first instance. See, for example, Astrazeneca Pty Ltd v Glaxosmithkline Australia Pty Ltd (2006) ATPR 42-106; [2006] FCAFC 22 at [32] (Wilcox, Bennett and Graham JJ), citing Kirby J in CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1 at [16]. See also Fox v Percy (2003) 214 CLR 118 at [22]-[23].

Notice of appeal/Notice of contention 40 The Commonwealth relied on an amended notice of appeal, provided to the Court on 28 February 2024 and filed on 29 February 2024, which included a detailed form of order sought in relation to the scope of the material over which a suppression order was sought. 41 The ABC relied on a notice of contention dated 23 January 2024, in these terms: "The relief in Order 1 made on 29 June 2023 giving effect to the Judgment was justified having regard to the nature and extent of the material before the Court and the insufficiency of that material to satisfy the test of necessity in s 37AG of the [Federal Court Act]".

Grounds of appeal 42 Ground 1 of the amended notice of appeal related to the finding of the primary judge in relation to the annexure to the originating application (being Mr de Pyle's complaint to the AHRC). 43 This ground must be allowed. 44 First, regrettably, no one directed her Honour's attention to the decision of Mortimer J (as the Chief Justice then was) in Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149, which held at [23] that a complaint to the AHRC does not form part of an originating application, and that therefore leave is required to inspect it. Consequently, even if it could be said that Mr de Pyle's originating application was in the public domain by virtue of it being filed and available for inspection by non-parties as of right pursuant to r 2.32(2)(a) of the Rules, the same cannot be said of the attached complaint to the AHRC. 45 Secondly, the content of the "Jurist" article did no more than say that Mr de Pyle had shared a letter from the AHRC declining to investigate his complaint. The President of the AHRC was required to notify Mr de Pyle in writing of the termination of the complaint and the reasons for the termination: s 46PH(2) of the AHRC Act. A delegate of the President provided Mr de Pyle with a Notice of Termination, which attached a letter setting out the reasons for termination as well as Mr de Pyle's complaint. Both documents were filed with the originating application, as required under r 34.163 of the Rules. It does not necessarily follow that by providing "a letter" from the AHRC the complaint was also provided. It seems to us that whether Mr de Pyle shared the complaint is a different question, any answer to which is necessarily speculative. 46 The other grounds (relating to the concise statement, the response to it and [6(a)] of Mr de Pyle's submissions dated 16 February 2023) can be dealt with together. Each ground must be allowed, because the question of whether a document or part of it is in the public domain cannot be answered simply by the fact that it is available for inspection on a court file, electronic or otherwise. 47 When a document is filed in a Federal Court proceeding, and no suppression order relevantly applies, it is generally listed on the publicly accessible Commonwealth Courts Portal (Portal) webpage for that proceeding. Non-parties to the proceeding are able to see the date and time the documents were filed, by whom they were filed and their title, but they cannot access the document. Under r 2.32 of the Rules, non-parties need to make a request to the Court's Registry to inspect documents filed in a proceeding. If the requested documents fall within r 2.32(2) (and are not captured by the exceptions in r 2.32(3)), copies of the documents will be provided to the non-party for inspection. Where the documents requested do not fall within r 2.32(2), the request is referred to the relevant judge for determination under r 2.32(4) of the Rules. 48 Senior counsel for the ABC submitted the mere fact that the concise statement was placed on the Portal and available for inspection without leave under r 2.32(2) of the Rules (as it stood at the relevant time) was sufficient to conclude that it was in the public domain, thus precluding the making of a suppression order in respect of the document. He relied on this passage from the judgment of Perram J in Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232 at [9] (emphasis added): This Court has long provided a relatively straightforward mechanism for third parties – often journalists but not infrequently other persons too – to access this Court's official file. That file is now, for new matters, entirely electronic and has ceased to have a physical existence. This has no legal implications for what is accessed but may have practical consequences in terms of ease of searching and so on. Access is dealt with by FCR 2.32. That rule recognises that there is one category of documents to which third parties should generally automatically have access. These are, in substance, the formal acts of the parties or the Court. The rules presume that these matters are, subject to a contrary order, in the public domain. The list is in FCR 2.32(2) and consists of originating processes, pleadings, applications, certain but not all notices, agreed statements of fact, reasons for judgment and the transcript of any proceedings heard in open court. 49 But that is neither here nor there for current purposes. All that rules of that type provide is that certain documents are available to the public – not that they are taken to have been accessed or disseminated. Read in context, and contrary to the ABC's submission, Perram J's reference to the rules presuming that certain matters are in the public domain does not suggest r 2.32 operates as some kind of deeming provision, that precludes the making of suppression orders in respect of documents that are the subject of a presumptive right of access under r 2.32. 50 In considering whether to make a suppression order in respect of a document said to be in the public domain, it is necessary to consider the extent of actual dissemination. See Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at [43] (noting that suppression powers "embrace orders designed to suppress the further dissemination of information that may already have (to some degree) got into the public domain"). The question of whether it is futile to make a suppression order because of its public disclosure depends upon the degree of such disclosure. 51 As the Full Court (Rares and Wigney JJ and Cowdroy AJ) said in Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178 at [188]: It follows that the Full Court has power to protect from further disclosure information or a document that has been disclosed but that properly attracts public interest, or matter of state, immunity, although whether and to what extent it can or will do so will depend on the extent or degree of the existing disclosure. Different considerations will arise if the information has become a matter of public knowledge the subject of widespread publication … It must always be necessary to make such an order in the interests of justice to justify the exercise of the power. Ordinarily, once the secret is out to the point that it is beyond the capacity of the Court to control its disclosure, it will be difficult, if not impossible, to satisfy the jurisdictional threshold of necessity in the interests of justice to make a suppression or non-publication order … (Citations omitted). 52 Here, there was no evidence of the extent of the dissemination of, or access to, any relevant document, including the concise statement. 53 And in the case of the Commonwealth's response to the applicant's concise statement, it was filed on 7 February 2023, which was the same day that the Commonwealth foreshadowed its application and obtained interim suppression orders in respect of it. 54 Further, in our view, her Honour erred in finding that "[o]nce the confidentiality of the content of [20] and [22] of the Applicant's Concise Statement has been lost, there is no necessity, nor utility, in protecting the Commonwealth's plea in response". That finding amounts to saying that because an allegation is in the public domain, then public confirmation of whether or not that allegation is right or wrong cannot be protected. Brigadier Ryan gave (confidential) evidence about the potentially damaging effect of public confirmation of certain ADF procedures. And, as the Commonwealth submitted, "a government's response to something cannot in any way be conflated with the mere allegation about something". See, too, AB v CD [2017] VSCA 338 at [117]-[130] (Ferguson CJ, Osborn and McLeish JJA). The submission concerning the distinct significance of the Commonwealth's response to allegations was raised before, but not addressed by, the primary judge. 55 Each ground of appeal also included the contention that the primary judge erred in refusing to grant the suppression orders the subject of the appeal because she failed to have regard to the agreed position of the parties set out in the 27 April 2023 email that the material highlighted yellow in the attached documents was not in the public domain. This was put on a number of bases, including failure to provide reasons and denial of procedural fairness. 56 It was agreed by the parties that the primary judge had overlooked the 27 April email. This may well have been due to the fragmented manner in which the application was heard, through no fault of her Honour's. 57 The email is important, because, as her Honour's Reasons make clear, and as senior counsel for the ABC ultimately accepted, the ABC conducted its case below on the basis that if particular information or material was not in the public domain, then the Commonwealth was entitled to a suppression order in respect of it. Rather, the ABC's argument below was that certain information was already in the public domain. Its argument was not, as senior counsel for the ABC acknowledged on the appeal, that Brigadier Ryan's affidavit evidence did not establish the basis for suppression of all, or some, of the information sought to be suppressed. 58 The primary judge asked the parties to "provide [her] with a version of the documents as best as you can, agreeing what is already in the public domain and what is not". And that is exactly what they did provide in the 27 April email, when they informed the primary judge of their agreed position in respect of the attached copies of the originating application, the concise statement and the response to the concise statement, namely that: The highlighting (regardless of colour) identifies information within the scope of the Commonwealth's suppression order application. Yellow highlighting indicates information which is not disclosed by the evidence before the Court on the application to be in the public domain (emphasis added). Blue highlighting indicates information which the Intervenor considers is in the public domain, but the Respondent does not agree is in the public domain. 59 It follows that because the hearing was conducted by the parties on the basis that the Commonwealth was entitled to a suppression order in respect of any materials not in the public domain, and those parts of the materials marked yellow were agreed not to be in the public domain, the email is a concession by the ABC, from which it now cannot resile, that the Commonwealth is entitled to the suppression orders it seeks over the yellow highlighted passages in the attachments to the 27 April email (subject to this Court satisfying itself that the orders are "necessary"). 60 Senior counsel for the ABC submitted that that is not so because the email also says that the ABC "notes that its response … is not limited to the question of whether information is already in the public domain. In particular, [it] repeats the matters set out at paragraphs 33-42, 50-52 and 56 of the ABC's written submissions of 8 March 2023". The difficulty with that submission is that those paragraphs of its written submissions are beside the point. Paragraphs 33-42 contain submissions about the nature and purpose of concise statements and inspection of court documents generally; paragraphs 50-52 makes submissions about the "Public interest in being able to report these proceedings"; and paragraph 56 also concerns the role of the public interest in cases such as this. 61 Senior counsel for the ABC also submitted that because the Commonwealth agreed with the ABC that certain portions of the material over which it had originally sought suppression orders were in fact in the public domain, following such agreement it was incumbent on the Commonwealth to adduce evidence of a more granular nature explaining why suppression orders were still sought over the material that was not in the public domain. 62 That submission cannot now be made because it was not raised below. As Mason P (with whom Gleeson CJ and Priestley JA agreed) said in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645: Since this is an appeal by way of re-hearing, the matter should be approached in accordance with the principles stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (at 7-9). A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial. 63 The Commonwealth narrowed its initial claims both during the hearing conducted on 16 February 2023, and further narrowed its claims by its submissions filed on 24 March 2023. The ABC did not, at either juncture, submit that the narrowing of the claims rendered Brigadier Ryan's evidence inadequate to support the application for suppression orders over material not already in the public domain. 64 Here, had the point been taken below, the Commonwealth could have responded, including by adducing further evidence of the precise "granular" type now insisted on. It is no answer to this issue to submit, as the ABC did, that the adequacy of the evidence must be considered afresh on appeal. 65 The overlooking of the 27 April email is sufficient basis to allow the appeal.

Are the suppression orders "necessary"? 66 It follows that we must consider the question of whether the making of the suppression orders sought is "necessary". The appellate court stands in the same position as the primary judge in addressing that question. See, by way of example, Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 at [47]-[48] (Perram J, Allsop CJ and Markovic J agreeing). 67 Parts of Brigadier Ryan's affidavit were and remain confidential. But as the Brigadier said in part of his affidavit that was not redacted (at [16]): If an enemy was to gain an understanding of aspects of what ADF members are taught during CAC training this would enable them to alter their interrogation tactics, techniques and procedures so as to improve their chances of successfully exploiting detained or captured ADF personnel. From an information security perspective, an adversary with the technical capability and intent to exploit ADF members in the future will have access to sophisticated software capable of aggregating publicly available information. Should the details associated with ADF CAC training including activity risks and the specific training methods, phases and techniques employed be released, an adversary may be permitted key insights into sensitive Defence capabilities. Such insights would enable our adversaries to alter their interrogation tactics, techniques and procedures to improve their chances of successfully exploiting detained or captured ADF members. This would not only increase the risk of information relating to military operations being compromised, it would also reduce the effectiveness of strategies designed to provide ADF personnel with the knowledge and skills to survive capture with dignity and to maintain a degree of mental, emotional and physical health. In a worst case scenario, this could pose a risk to the lives of ADF members captured or detained in the future. 68 Courts must give very considerable weight to such views. See Alister v The Queen (1984) 154 CLR 404 at 435 (Wilson and Dawson JJ); and Parkin v O'Sullivan (2009) 260 ALR 503; [2009] FCA 1096 at [30] (Sundberg J) ("There are many cases that establish that courts should attach very considerable weight to the view of what national security requires as is expressed by the responsible officer"). 69 As senior counsel for the Commonwealth said in his oral submissions by way of amplifying what Brigadier Ryan said, including at [16] of his affidavit: The third point we make about his affidavit is that the risks he refers to shouldn't be thought to be remote or fanciful … and that's because notoriously, in the last few decades, Australian Defence Force officers have been deployed into conflict zones in places like Somalia, Rwanda, East Timor, Afghanistan, Iraq, Libya, Syria and in coming years who knows where they might find themselves, but what the court can infer is that in some stage in the not too distant future and currently young Australian men and women will be placed in harm's way, and without wanting to get too emotive about this, if any of them were to be captured by a foreign … adversary, warlord supporter or insurgency group, your Honours can no doubt appreciate how the training they have received in relation to what may follow could … be vital not just for them, but for others, as Brigadier Ryan explains in paragraph 16 of his affidavit. So we're not just concerned about the safety of the person who might be captured. It's the safety about all the others involved in military operations that arise, as well, and whilst the risk of that harm eventuating is hopefully reasonably small, the consequences if it did arise are incredibly serious and potentially catastrophic, and it's that that founds the necessity for making the orders we seek. 70 The ABC conducted its case before the primary judge on the basis that she could approach the Commonwealth's application on the basis that what Brigadier Ryan said was true. 71 As we explained above, the ABC's case was put on the basis that suppression orders would lack utility because the relevant information was in the public domain. And as we have explained, on its own case that information did not include the material highlighted in yellow in the attachments to the 27 April email. 72 In our view, for the reasons set out above, the Commonwealth has established that the making of the suppression orders it seeks over the yellow highlighted material is necessary within the meaning of ss 37AG(1)(b) and (c) of the Federal Court Act. 73 The Commonwealth also seeks suppression over [6(a)] of Mr de Pyle's written submissions dated 16 February 2023. While this document was not included in the colour coded documents, as noted above, the Commonwealth seeks to suppress this sub-paragraph because it extracts [4] of the Commonwealth's concise response and thereby reveals its plea in response to the allegations made in [20] and [22] of Mr de Pyle's concise statement. 74 Given we will make orders suppressing the highlighted yellow portion of [4] of the concise response (which was included in the colour coded documents), we will also make the order sought by the Commonwealth suppressing [6(a)] of Mr de Pyle's written submissions dated 16 February 2023. 75 It follows that the ABC's notice of contention is to be dismissed.

What to do with the material coloured blue? 76 The question remains about what to do with the material marked blue in the attachments to the April 27 email. 77 The only question that remains, in light of the way the case was conducted below, is whether and to what extent that material is in fact in the public domain. 78 That is a fact-finding task that is not one for an appeal court. Compare Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [133] (Hayne J); Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 at 204, [117]-[119] (Ipp JA, Mason P and Tobias JA agreeing); Plaintiff S244/2012 v Minister for Immigration and Border Protection (2016) 155 ALD 113; [2016] FCA 1227 at [53] (Robertson J) and Monash Health v Singh [2023] FCAFC 166 at [162] (Katzmann, Snaden and Raper JJ)). 79 In our view, the appropriate order is to remit the proceeding pursuant to s 28(1)(c) of the Federal Court Act to the primary judge for further hearing and determination, limited to the sole factual question of whether the material identified in blue in the attachments to the 27 April email is in the public domain. It will, of course, be a matter for the primary judge, but it may be that her Honour could be assisted in that task by appointing a Judicial Registrar as a special referee. 80 We will also make orders which suppress on an interim basis the material highlighted in blue until the question outlined in [79] is determined by the primary judge. 81 The orders we will make supressing the yellow-highlighted material are not in the precise form proposed by the Commonwealth. The orders we have formulated avoid revealing the content of the blue-highlighted material, which remains the subject of an interim suppression order.

Costs 82 The parties agreed that we should defer any consideration of costs until after publication of our reasons, so we will order that written submissions on the question be filed within 7 days. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O'Callaghan, Raper and Button.

Associate: Dated: 26 March 2024