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Ben Roberts-Smith is fighting moves by the Australian Federal Police and war crimes investigators to access restricted documents in his failed defamation case, amid dozens of active investigations into allegations Australian soldiers broke the rules of engagement in Afghanistan.
The Commonwealth has applied for changes to national security orders to enable the AFP and the Office of the Special Investigator to apply for access to sensitive documents on the Federal Court file in his defamation case. The OSI is the agency investigating war crimes allegations against Australian soldiers in Afghanistan.
Ben Roberts-Smith outside the Federal Court in 2021.Credit: Dylan Coker
On September 27, the Federal Court will hear the Commonwealth’s application for changes to national security orders, which were made in Roberts-Smith’s case in 2020.
Luke Livingston, SC, acting for Roberts-Smith, told the Federal Court in Sydney on Monday that his client opposed access being granted “to certain categories of information that’s on the sensitive court file”.
“It really is concerned with outlines of evidence, insofar as those outlines were not in evidence [in the defamation case],” Livingston said.
“The other categories that are opposed concern documents tendered in closed court that contained evidence that was obtained by the Inspector-General inquiry, and any closed court transcript that contained evidence that was obtained by that inquiry.”
The Inspector-General of the Defence Force (IGADF) inquiry examined allegations about the conduct of Australian soldiers in Afghanistan. It led to the establishment of the OSI in January 2021 to address potential criminal matters raised in the Inspector-General’s report.
The Federal Court heard on Monday that the OSI had indicated it had 33 active investigations into the alleged commission of criminal offences by members of the Australian Defence Force in Afghanistan between 2005 and 2016.
Livingston said the sensitive court file included partial transcripts of two witnesses before the IGADF inquiry, dubbed Persons 11 and 24. Both of those witnesses gave evidence in the defamation case, the court heard.
Jennifer Single, SC, acting for the Commonwealth, said Roberts-Smith’s opposition to parts of the sensitive file being accessed was “based on a core premise, which is that the sensitive court file is replete with information from the IGADF’s Afghanistan inquiry that may be protected by … statutory immunities”.
“The Commonwealth says … it is very unlikely that the sensitive court file will have any information from the IGADF’s Afghanistan inquiry that is or may be protected by the statutory immunities,” Single said.
Single said the Commonwealth could not say that there was “no risk” that such material was on the court file, because redactions were “done by humans” and “there’s always a chance of human error”. But she said there was either no or a very low risk.
Livingston said that “obviously we’re concerned not just about [Roberts-Smith’s] … immunities but the immunities that protect any suspect who gave information under compulsion to the IGADF inquiry”.
Single suggested Roberts-Smith would not be in a position to raise concerns about information given by other soldiers, but Justice Robert Bromwich said that the OSI was “doing investigations into a range of individuals, and they would share that concern, in a sense”.
In a historic decision on June 1, Justice Anthony Besanko dismissed Roberts-Smith’s multimillion-dollar defamation case against The Sydney Morning Herald and The Age.
Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was a war criminal who was complicit in the murder of four unarmed prisoners in Afghanistan. He also found the news outlets had proven the former Special Air Service corporal had bullied a fellow soldier.
Roberts-Smith is appealing against that decision. The appeal is expected to be heard in February over 10 days.
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