Court quashes federal police bid to keep Ben Roberts-Smith corruption probe secret
Michael Bachelard and Nick McKenzie
The Federal Court has demolished the Australian Federal Police’s attempts to keep secret the details of an anti-corruption investigation that reached the top levels of the peak policing body, having rejected arguments that releasing the information would be against the public interest.
Police had refused, under freedom of information (FOI) legislation, to release any details of a corruption probe into the 2018 leak that compromised one of the most controversial cases in the agency’s history – one looking into the actions of war criminal Ben Roberts-Smith.
After a four-year legal battle by this masthead, the court on Monday ruled that many of the grounds police had used to refuse the information’s release were spurious, or wrong in law.
The court’s decision comes as this masthead can reveal new details about the corruption probe into how Roberts-Smith was tipped off that he was the subject of secret federal police war crimes inquiries.
Since 2021, the AFP has spent hundreds of thousands of taxpayer dollars on the legal fight to keep from the public the details of how it internally handled the leaks to Roberts-Smith.
One expert said the court’s ruling this week not only put pressure on the agency to release the files, but sets a precedent for other government departments.
“Hopefully future FOI appeal cases will refer to this judgment and invoke the objects of the act,” said Associate Professor Johan Lidberg, a Monash University researcher.
In 2020, this masthead revealed that Roberts-Smith, a former SAS corporal, had been told by ex-AFP commissioner Mick Keelty that military authorities had secretly passed onto federal police the war crime allegations that implicated Roberts-Smith
Keelty had been put in touch with Roberts-Smith in 2018 via a contact of Kerry Stokes, the billionaire Channel Seven media mogul helping the ex-soldier fight allegations that he had executed defenceless prisoners and civilians in Afghanistan.
To assist Roberts-Smith, Keelty contacted senior serving police and asked his former colleagues about the AFP’s interest in the now-disgraced war hero.
In Roberts-Smith’s failed defamation action against this masthead, a judge determined that Roberts-Smith knew of the AFP’s interest in him “through his contacts with Mr Keelty”.
It was also found that Roberts-Smith’s subsequent decision to use burner phones with encrypted apps was “to avoid any interception of his telephone conversations” by the federal police or other investigators.
The FOI battle launched by this masthead in 2021 was aimed at uncovering and airing the full story of how Keelty came to know about the AFP’s war crimes investigations, how the federal police’s internal investigators responded to the leaks and why the scandal has never resulted in any formal public accountability.
The AFP has refused to release its internal affairs report into the affair, while the nation’s now-defunct police oversight body, the Australian Commission for Law Enforcement Integrity, has also kept secret the details of its investigation into the matter.
This masthead’s FOI request sought internal affairs records, including statements given by three of the AFP’s top three officers: then-commissioner Andrew Colvin, then-deputy commissioner Neil Gaughan and Nigel Ryan, then the assistant commissioner in charge of internal affairs.
The sources said that all three top officials had acted with integrity, assisting in tracing the source and extent of the leak to Keelty and determining how such sensitive information had reached Roberts-Smith.
The confidential records of Gaughan and Ryan relate to how the pair secretly made a contemporaneous record of phone call placed by Keelty to Gaughan, in which Keelty sought to discuss the police interest in Roberts-Smith.
Andrew Colvin in 2019, when he was commissioner of the Australian Federal Police.
Andrew Colvin in 2019, when he was commissioner of the Australian Federal Police.CREDIT: ALEX ELLINGHAUSEN
Colvin’s statement, which the AFP refused to release under FOI, also details how Keelty had separately called him to discuss the Roberts-Smith matter.
The AFP has been approached for comment. The records being suppressed by the AFP also detail how the agency’s internal affairs unit conducted its inquiry after detectives uncovered that Roberts-Smith had made a series of frantic disclosures to third parties, after an in-person meeting with Keelty, about the secret AFP war crimes probe.
AFP lawyers first rejected an FOI request from this masthead in 2021. Police refused it a second time late that year. The Office of the Australian Information Commissioner, which is designed to review FOI disputes, assessed the matter for 15 months before deciding in April 2023 not to act, and instead to refer it to the Administrative Appeals Tribunal.
‘Scrutiny, discussion, comment and review of the activities of the Commonwealth government and its agencies, and the conduct of those performing functions on their behalf, is a public purpose.’ Federal Court Justice Stephen McDonald in this week’s judgment
In February last year, the tribunal deputy president, Peter Britten-Jones, supported the central police argument that the three top serving AFP officers were, in fact, “confidential sources of information”. Britten-Jones also rejected the application on a number of other grounds, including ones that had not been argued by the police. Among them was that the documents would have a “substantial adverse effect on the proper and efficient conduct of the operations of an agency”.
These provisions are widely used by government agencies to deny access to public interest information.
On Monday, a judgment of the full bench of the Federal Court rejected the tribunal’s decision, and ordered its replacement, the Administrative Review Tribunal, to re-determine the case based on the rules set out by the court.
Roberts-Smith outside the Federal Court in 2021. The court’s ruling this week could put a new focus on the AFP’s investigation of the former soldier.
Roberts-Smith outside the Federal Court in 2021. The court’s ruling this week could put a new focus on the AFP’s investigation of the former soldier.CREDIT: GETTY IMAGES “The hearing before the tribunal miscarried in various ways which I consider significant,” wrote one of the three review judges, Justice Stephen McDonald. The other two judges on the bench adopted his reasons.
It was wrong, the bench agreed, to regard Colvin, Gaughan and Ryan as confidential sources.
McDonald wrote: “The persons whose ‘personal information’ the tribunal was considering were current or former AFP appointees, and the ‘personal information’ itself was information relating not to their private conduct but to their conduct, and the conduct of others, as AFP appointees and in relation to an official investigation.”
Justice Michael Wigney wrote that the exemption for revealing confidential sources was to protect informers, “not with the protection of a potential witness who would prefer not to be identified”. In ordering the case be sent back to the tribunal, the court outlined the “public interests in transparency and accountability of government agencies and public officers”.
The court also found the tribunal had got the law wrong in multiple ways. The deputy president should not have found that “no public purpose” would have been served by the release of the information, or that it would adversely affect the AFP’s operation and management of personnel.
That argument, which the deputy president had introduced himself, amounted to a denial of procedural fairness, the court found.
Britten-Jones also erred by adopting a flawed police argument that the swaths of internal affairs records sought under the original FOI request were irrelevant. The court, which had a confidential copy of the report, said many of those parts “could not properly have regarded as irrelevant”, and suggested the records would have cast light on the Keelty affair if released.
Britten-Jones also failed to identify whether the AFP could have released documents in a redacted manner that kept some material confidential but still embraced the aim of the Freedom of Information Act, the Federal Court ruled. “There is a general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests … To lose sight of that would be to lose sight of the principal object of the FOI Act,” McDonald wrote.
“Scrutiny, discussion, comment and review of the activities of the Commonwealth government and its agencies, and the conduct of those performing functions on their behalf, is a public purpose.” Lidberg, the Monash University researcher, said it was refreshing to see a judge basing their arguments on the objects of the act, which favour the release of information. “This fact is mostly overlooked or ignored by both government agencies and the overseeing agencies,” he said.
“I find it deeply disturbing that an FOI request that clearly was in the highest public interest had to go all the way to the Federal Court to finally be upheld … four refusals before it was granted. That is not the hallmark of a well-functioning access-to-information system.”