Ben Roberts-Smith: Immunity sought for war crimes papers

The Commonwealth is trying to prevent former SAS soldier Ben Roberts-Smith from revealing whether he will be affected by the war crimes inquiry.

Afghanistan veteran Ben Roberts-Smith. Picture: Toby Zerna

The Commonwealth has entered the fray in Ben Roberts-Smith’s legal battle against Nine newspapers, temporarily preventing the former SAS soldier from revealing whether he will be affected by an independent inquiry into alleged war crimes in Afghanistan.

The Victoria Cross recipient is suing The Sydney Morning Herald, The Canberra Times, and The Age, in Melbourne, for defamation over articles he claims portray him as a war criminal — an allegation he strenuously denies.

The Federal Court heard on Wednesday that the newspapers had subpoenaed the war veteran over any documents he may have relating to an inquiry into claims Australian Defence Force troops committed war crimes in Afghanistan between 2005 and 2016.

The documents sought included a notice from the inspector-general of the ADF to Mr Roberts-Smith indicating he was a “potentially affected person” by the inquiry — in the event he had received one — as well as any other documents that might relate to such a notice.

However, the Commonwealth intervened, claiming public-interest immunity over the entirety of the response to the subpoena for documents. Anna Mitchelmore, SC, told the court she could not “confirm or deny” whether Mr Roberts-Smith had been issued with a notice requesting his involvement in the war crimes probe.

Mr Roberts-Smith’s legal team said they had been advised by government lawyers to refrain from responding to the subpoena as it could reveal “whether a notice was given or not”.

The immunity claim will be determined on August 28.