Ben Roberts-Smith is fighting efforts by government war crimes investigators to access restricted and sensitive court files from his failed defamation case, as the government confirms it is investigating more than 30 alleged criminal offences by Australian soldiers over a decade in Afghanistan.
After Roberts-Smith’s defamation action against three Australian newspapers was dismissed in its entirety in the federal court in June, the commonwealth government sought access to the defamation case’s sensitive court file.
The government has applied for changes to national security orders to allow war crimes investigators from the Office of the Special Investigator to apply for access to the sensitive documents. Those include thousands of classified documents and photographs, the identities of anonymised SAS witnesses, and transcripts of evidence given in closed court sessions of the trial, including by Roberts-Smith.
The federal court will hear the application for the documents later this month.
Luke Livingston SC, acting for Roberts-Smith, told a federal court hearing in Sydney on Monday that Roberts-Smith opposed the commonwealth being granted access “to certain categories of information that’s on the sensitive court file”.
In particular, Roberts-Smith’s lawyers opposed the release of closed court transcripts which contain evidence obtained by the Inspector-General of the Australian Defence Force inquiry into allegations of potential war crimes committed by Australian soldiers in Afghanistan.
The four-year IGADF inquiry, conducted by judge Major-General Paul Brereton examined allegations of war crimes and other misconduct by Australian special forces soldiers in Afghanistan. It produced the Brereton report which found “credible” evidence to support allegations that 39 Afghan civilians were unlawfully killed by Australian special forces soldiers.
The OSI was established after the Brereton report to investigate allegations raised in the report for potential criminal prosecution.
Jennifer Single SC, for the commonwealth, said Roberts-Smith’s opposition to access being granted to the sensitive court filed was “based on a core premise … that the sensitive court file is replete with information from the IGADF’s Afghanistan inquiry that may be protected by … statutory immunities”.
However, Single argued, it was “very unlikely” that the sensitive court file would contain any information from the IGADF inquiry that was protected by immunities.
On Monday, the federal court heard OSI was currently conducting 33 active investigations into alleged criminal offences by Australian soldiers in Afghanistan between 2005 and 2016.
Roberts-Smith has not been charged with any crime over his conduct in Afghanistan, though he remains under investigation by the OSI.
Only one Australian soldier, former SAS trooper Oliver Schulz, has been charged over his alleged conduct in Afghanistan. In March, he was charged with one count of the war crime of murder over allegations he shot dead father-of-two Dad Mohammad as Mohammad lay in a wheat field in the southern Afghanistan village of Deh Jawz in 2012.
Roberts-Smith, a former SAS corporal and a recipient of the Victoria Cross, sued the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of 2018 articles he alleged falsely portrayed him as a criminal who “broke the moral and legal rules of military engagement” and “disgraced” his country and its army.
He denied all wrongdoing and said the allegations against him were motivated by spite and jealousy.
However, in June, justice Anthony Besanko dismissed his application in its entirety, finding the newspapers had proven to a civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners while serving in Afghanistan, including kicking a handcuffed man, a father of six named Ali Jan, off a cliff before ordering him shot dead.
Roberts-Smith is appealing that decision to the full bench of the federal court, to be heard in February.
