Ben Roberts-Smith’s Legal Team Queries Use of Confidential Information from Defamation Case

Legal representatives of the former SAS soldier, Ben Roberts-Smith, are seeking clarification on how sensitive information from his unsuccessful defamation lawsuit against several newspapers will be utilized by war crimes investigators. These publications had reported allegations of Roberts-Smith’s connection to four murders.

The investigative team from Operation Emerald is keen on accessing certain confidential documents that were presented during Roberts-Smith’s legal battle against the Sydney Morning Herald, The Age, and the Canberra Times.

Back in June, the Federal Court had ruled that the allegations presented by the newspapers regarding Roberts-Smith’s supposed involvement in the four murders in Afghanistan were predominantly accurate. While Roberts-Smith has not faced any criminal charges yet, he is challenging Justice Anthony Besanko’s judgment.

The court was informed on Monday that the Office of the Special Investigator, in conjunction with the Australian Federal Police, is currently probing 33 allegations of misconduct by defence personnel in Afghanistan spanning the period from 2005 to 2016.

The formation of the OSI was a direct result of an inquiry by the Inspector-General of the Australian Defence Force into the behaviour of soldiers in Afghanistan.

Investigators are particularly interested in parts of the testimony from individuals who were mandated to provide possibly self-incriminating statements during the inspector-general’s inquiry. Some of these individuals also testified in the defamation lawsuit.

Luke Livingston SC, representing the ex-soldier, expressed concerns in court over the protective immunities for any suspect who had been compelled to provide information during the inspector-general’s inquiry. Livingston also requested to cross-question Ross Barnett, the director of OSI investigations.

In response to Livingston’s concerns, Barnett assured the court that there were robust systems in place to safeguard the integrity of the probes and the rights of those under investigation. However, Livingston challenged this, emphasizing the need for concrete proof that these protective measures were both strong and effective.

There were previous concerns raised by lawyers regarding the handling of information, with calls for related policy documents. Livingston indicated the Commonwealth’s lack of a significant response to these concerns. Jennifer Single SC, representing the Commonwealth, mentioned that it’s highly improbable for any non-protected data to be included in the sensitive court records.

Single acknowledged potential human errors in redacting documents but highlighted existing protective measures. Livingston, however, noted that the repercussions of any unintended disclosure would remain severe. He further commented on the possibility of a lack of established protocols, a detail he deemed critical.

However, Single pointed out that divulging further information might raise security concerns. She emphasized that the decision regarding potential leaks or mishandling of materials should rest with criminal courts.

The court will further discuss the Commonwealth’s proposed amendments to the 2020 national security orders and the access to the sensitive data from Roberts-Smith’s defamation lawsuit on September 27 this year.