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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.<\/p>\n
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.<\/p>\n
<\/p>\n
Ben Roberts-Smith outside the Federal Court in 2021.<\/span>Credit: <\/span>Dylan Coker<\/cite><\/p>\n On September 27, the Federal Court will hear the Commonwealth\u2019s application for changes to national security orders, which were made in Roberts-Smith\u2019s case in 2020.<\/p>\n Luke Livingston, SC, acting for Roberts-Smith, told the Federal Court in Sydney on Monday that his client opposed access being granted \u201cto certain categories of information that\u2019s on the sensitive court file\u201d.<\/p>\n \u201cIt really is concerned with outlines of evidence, insofar as those outlines were not in evidence [in the defamation case],\u201d Livingston said.<\/p>\n \u201cThe 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.\u201d<\/p>\n 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\u2019s report.<\/p>\n 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.<\/p>\n 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.<\/p>\n Jennifer Single, SC, acting for the Commonwealth, said Roberts-Smith\u2019s opposition to parts of the sensitive file being accessed was \u201cbased on a core premise, which is that the sensitive court file is replete with information from the IGADF\u2019s Afghanistan inquiry that may be protected by \u2026 statutory immunities\u201d.<\/p>\n \u201cThe Commonwealth says \u2026 it is very unlikely that the sensitive court file will have any information from the IGADF\u2019s Afghanistan inquiry that is or may be protected by the statutory immunities,\u201d Single said.<\/p>\n Single said the Commonwealth could not say that there was \u201cno risk\u201d that such material was on the court file, because redactions were \u201cdone by humans\u201d and \u201cthere\u2019s always a chance of human error\u201d. But she said there was either no or a very low risk.<\/p>\n Livingston said that \u201cobviously we\u2019re concerned not just about [Roberts-Smith\u2019s] \u2026 immunities but the immunities that protect any suspect who gave information under compulsion to the IGADF inquiry\u201d.<\/p>\n 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 \u201cdoing investigations into a range of individuals, and they would share that concern, in a sense\u201d.<\/p>\n