Journalists fight attempt by Ben Roberts-Smith to expose their sources

Two of Australia's leading investigative journalists are fighting an attempt by Victoria Cross recipient Ben Roberts-Smith to force them to expose their sources.

Multiple Walkley Award winners Nick McKenzie and Chris Masters are fighting the effort in the Federal Court, amid a defamation claim Mr Roberts-Smith has launched against The Age, Sydney Morning Herald and The Canberra Times.

Ben Roberts-Smith in front of his portrait at the Australian War Memorial in Canberra. Credit: Jay Cronan

The attempt to out journalists' sources by Mr Roberts-Smith – who is also general manager of Seven West Media Queensland – comes amid an industry-wide push for greater press freedom. Mr Roberts-Smith is suing the mastheads after a series of reports accused the decorated soldier of committing war crimes during overseas missions.

The defamation case will go to trial in June but the parties are fighting an advance battle over whether McKenzie and Masters should be forced to produce 49 privileged documents to the court, other documents, names of witnesses and the names of sources they relied upon in preparing their reports.

The mastheads say they did not defame Mr Roberts-Smith, but if the Federal Court accepts he was defamed, they argue they can prove the truth of the allegations and would rely on a truth defence.

Mr Roberts-Smith's lawyers argue that because the newspapers and journalists have filed more than a dozen "outlines of evidence" on behalf of witnesses to be called in the defamation hearing, The Age and Herald have themselves effectively outed the sources relied on by McKenzie and Masters.

In support of its truth defence, The Age and Herald allege Mr Roberts-Smith was involved in six unlawful killings in Afghanistan

His legal team claims this means McKenzie and Masters have waived their right to claim journalistic privilege over their documents and has demanded the pair hand over their notes, correspondence with sources and documents.

Journalists' privilege gives legal protection to the agreement between a journalist and a source that they are able to remain confidential.

Lawyers for the newspapers and journalists reject Mr Roberts-Smith's argument, saying the court can draw no correlation between a witness in a court hearing and an informer for a news investigation and that the journalists could have drawn on any number of sources for their stories.

In documents lodged in the Federal Court this week, lawyers for The Age and Herald argued Mr Roberts-Smith cannot ask the court to expose journalists' privileged documents "to confirm his speculation, fill gaps, draw inferences or make links that the applicant himself is unable to establish based on the information available to him".

The Age and Herald also argue that handing over documents to Mr Roberts-Smith's legal team would allow the former soldier to identify the journalists' sources. In an affidavit tendered to the court, Masters wrote: "Protecting the identity of a source who wishes for their identity to remain confidential is a vital component of investigative journalism".

"There is widespread industry acceptance that a journalist must not disclose the identity of a confidential source," he said. "By doing so, a journalist destroys the relationship with that source, their own reputation, depletes regard for our industry and relinquishes his/her capacity to earn trust. If I was to give up a source, there is no prospect of a source ever trusting me again. Over the course of my career, I have never given up a confidential source's identity."

In support of its truth defence, The Age and Herald allege Mr Roberts-Smith was involved in six unlawful killings in Afghanistan, including an alleged incident in 2012 in which he kicked Ali Jan, an unarmed and handcuffed Afghan man, off a cliff before directing a soldier under his command to shoot him.

Mr Roberts-Smith denies any wrongdoing.

In documents filed in court, his lawyers say the articles conveyed a string of defamatory imputations about him, including that he killed Ali Jan, "an unarmed and defenceless Afghan civilian"; pressured an inexperienced SAS soldier to murder an elderly, unarmed Afghan to "blood the rookie"; and committed another murder himself by "machine gunning a man with a prosthetic leg".

The Age and Herald have already flagged an appeal if it should lose the battle to keep its sources protected.

The court has reserved its decision.