Ben Roberts-Smith: Newspapers win bid for documents in defamation case
The newspapers being sued by soldier Ben Roberts-Smith have won a fight for documents related to a top-secret inquiry into alleged war crimes.
Decorated soldier Ben Roberts-Smith will be forced to hand over confidential documents relating to the defence force inquiry into alleged war crimes as part of the defamation case he brought against three newspapers.
Mr Roberts-Smith is suing The Sydney Morning Herald, The Age and The Canberra Times over investigative reports he claims falsely painted him as a murderous war criminal during his time as a Special Air Service soldier in Afghanistan between 2009 and 2012.
The Victoria Cross recipient strongly denies any wrongdoing.
The issues in the defamation case overlap with the Australian Defence Force inquiry into alleged war crimes, as well as a federal police investigation into Mr Roberts-Smith, the court has previously heard.
The inquiry, conducted in top secret, has handed its highly anticipated report to Defence Minister Linda Reynolds and Defence Chief Angus Campbell, with a version of it expected to be publicly released soon.
In the defamation case, Nine sought access to documents revealing if Mr Roberts-Smith had received a Potentially Affected Persons notice (PAP notice) from the inquiry.
Such a notice would contain details of any adverse findings the inquiry intended to make against Mr Roberts-Smith in order to give him an opportunity to respond before the final report.
The inspector-general of the ADF (IGADF), supported by Mr Roberts-Smith, fought against the documents’ release, arguing it could prejudice the inquiry by discouraging whistleblowers from coming forward.
But Federal Court Justice Craig Colvin disagreed, finding the “risk was low” of that occurring if the documents were properly handled.
He handed down a preliminary judgment in September, signalling he would likely release the documents, but gave the IGADF an opportunity to argue the case further in a confidential affidavit.
On Wednesday afternoon he ordered the documents be released, with some parts that could have the potential to affect any possible future criminal trials of third parties redacted.
Justice Colvin ruled the IGADF’s public interest immunity claim applied to information acquired compulsorily, or derivatively by the inquiry from people other than Mr Roberts-Smith, who may in the reasonable view of the IGADF, face future criminal proceedings.
The judge wrote he was satisfied there was a “sufficient risk” that the information, if released, may be used by the Nine papers in the defamation case in a way that might result in an application to permanently stay any criminal proceedings that might be brought against third parties.
He said there was a “substantial public interest” in maintaining its confidentiality, outlined in the confidential affidavit material.
The Nine newspapers did not seek any material acquired by the inquiry from Ben Roberts-Smith on the basis it would be inadmissable.
Among the reasons Justice Colvin gave in September for releasing the documents were the seriousness of the case, the importance of the documents if they do contain a PAP notice, and the fact Mr Roberts-Smith currently has the information in the documents and the Nine newspapers do not.
A set of detailed procedures for handling the hugely sensitive documents in the defamation case have been agreed with the Commonwealth Attorney-General.
The documents sought will be subject to those arrangement, as well as only being accessible to a group of authorised persons.
The case is set to go to trial in mid-2021.
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