7 The dates of the documents described at paragraph 67 were said to be 'various' and the grounds of the privilege claim were expressed in the following terms:
Production of the documents would constitute an offence under s21 of the Regulation.
8 Section 21(3) of the Regulation provides that it is an offence to contravene a direction given under s 21(1) which in turn provides:
- If the Inspector-General ADF is satisfied that it is necessary to do so in the interests of the defence of the Commonwealth, or of fairness to a person who the Inspector-General ADF considers may be affected by an inquiry, the Inspector-General ADF may give a direction restricting the disclosure of the following:
(a) information contained in oral evidence given during the inquiry, whether in public or in private;
(b) all or part of any document received during the course of the inquiry;
(c) information contained in a report about the inquiry that is given to a person under section 27.
9 Section 28E of the Regulations provides that an Assistant IGADF who is a judicial officer with the conduct of an inquiry may exercise the power under s 21(1) without being authorised to do so by the IGADF. Directions of the kind described in s 21(1) have been made in the Inquiry.
10 Relevantly for present purposes, s 27 provides that the IGADF must give to the Chief of the Defence Force a report about the Inquiry if an Assistant IGADF has given the IGADF a report as required by the Regulation. So, when concluded, the Inquiry will result in the delivery of a report to the Chief of the Defence Force.
129 The IGADF claimed public interest immunity over the documents sought in the respondents' Notice to produce and described in para 67 of the applicant's amended list of documents. The applicant supported the position of the IGADF. Justice Colvin ruled that the PAP documents sought by the respondents should be produced, subject to restrictions under s 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
130 As the respondents correctly point out, if their application had been unsuccessful the trial would nevertheless have proceeded without the respondents having access to the material in the PAP Notice and that would not have made the trial unfair (see Church of Scientology Inc v Woodward [1982] HCA 78; (1983) 154 CLR 25 at [61]).
131 As the respondents also point out, the applicant was supporting the public interest immunity claim and had that been successful, he would have had information that the respondents did not have. Furthermore, the PAP Notice produced had redactions which meant that the respondents did not have information that the applicant had.
