Ben Roberts-Smith has launched a last-ditch effort to access three diary entries of Maj Gen Paul Brereton, the officer who wrote the Afghanistan Inquiry into alleged war crimes committed by Australian special forces troops.
In a parallel court action to the defamation case, the former Victoria Cross recipient Roberts-Smith has brought against three Australian newspapers, the former SAS corporal has pursued a five-year freedom of information application seeking access to three entries from Brereton’s diary during the course of his Afghanistan investigation.
The Administrative Appeals Tribunal heard on Monday an allegation Brereton held three meetings with journalist Chris Masters prior to the publication of Masters’ book, No Front Line, about the actions of Australia’s special forces in Afghanistan.
Roberts-Smith has previously been denied access to diary entries, with the defence force, defence FOI decision reviewers, and the Office of the Australian information commissioner (OAIC), all ruling that the entries were exempt from disclosure.
Before Justice Tom Thawley in the Administrative Appeals Tribunal on Monday, Roberts-Smith’s barrister Arthur Moses said Masters was “given access to classified defence information” for the publication of his book, and told the court if he had met Brereton this could have informed his reporting on allegations of war crimes by Australian troops.
“It is in the public interest for it to be known whether there was a meeting between the head of what was meant to be a secret inquiry and a journalist,” Moses said.
Moses argued the release of the diary entries – confirming or dispelling the existence of the meetings and their participants – was vital for “transparency and accountability … cornerstones of good governance in a democracy”.
Moses was critical of the information commissioner and the time taken to adjudicate the FOI application – now five-and-a-half years – quoting veteran political journalist Laurie Oakes that Australia’s freedom of information system was a “a sick joke, marked by delays, obstruction and a presumption against releasing documents”.
Christine Ernst, acting for the Inspector General of the Australian Defence Force (IGADF), rejected Roberts-Smith’s submissions, saying the identity of the person Brereton met remained confidential.
Disclosure of that person’s name could also prevent others coming forward to assist in future inquiries, she told the tribunal.
“If no direction could be made restricting how the identity of persons … could be disclosed, that would undermine the ability of the IGADF to conduct inquiries in private.”
The AAT appeal over the diary entries does not directly impact upon Roberts-Smith’s defamation action against three Australian newspapers, the Age, the Sydney Morning Herald, and the Canberra Times, which remains awaiting judgment from Justice Anthony Besanko in the federal court.
That high-profile and long-running case heard from more than 40 witnesses – most of them anonymised for national security reasons – over more than 100 days of evidence.
In a series of articles, the newspapers accused Roberts-Smith, Australia’s most decorated Afghan veteran, of murdering civilians during his deployment with the SAS in Afghanistan, and of being a bully and a domestic abuser.
Roberts-Smith has consistently denied all of the allegations against him. He sued the newspapers for defamation after the articles were published in 2018. The newspapers have defended their reporting as true.
