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War veteran Ben Roberts-Smith is locked in a legal fight with the Defence Force watchdog over access to diary entries that he alleges may reveal meetings with a high-profile investigative journalist who is at the centre of his defamation case.
At a hearing of the Administrative Appeals Tribunal in Sydney on Monday, Roberts-Smith’s lawyers urged Justice Thomas Thawley to overturn a decision blocking his freedom of information request for diary entries belonging to the head of an inquiry into alleged misconduct by Australian soldiers in Afghanistan.
Ben Roberts-Smith leaves the Federal Court in Sydney last year.Credit: Dylan Coker
The inquiry was conducted by the military watchdog, the Inspector-General of the Australian Defence Force.
Arthur Moses, SC, acting for Roberts-Smith, said his client sought access to the documents more than five years ago. He was seeking a review of a decision of the Information Commissioner, which upheld a previous decision that the diary entries were exempt from disclosure.
Moses said the diary entries referred to two meetings, in March and July 2017, between NSW Supreme Court Justice and Major-General Paul Brereton, an Assistant Inspector-General of the Australian Defence Force, and an “unidentified person”.
Brereton headed a royal commission-style inquiry into allegations of misconduct, including war crimes, against a small number of Special Air Service Regiment soldiers who served in Afghanistan. The inquiry was commissioned in 2016 and a report was released publicly in 2020.
Roberts-Smith, a former SAS corporal, has not been charged with any offence as a result of that inquiry and has denied he engaged in wrongdoing while serving in Afghanistan.
Brereton has since been appointed the inaugural head of the National Anti-Corruption Commission.
Moses said the Roberts-Smith team’s “case theory” was that the unnamed person in Brereton’s diary was Chris Masters, an award-winning investigative journalist whose book on Australian special forces in Afghanistan, No Front Line, was published in October 2017.
Masters is also one of the authors of the articles at the centre of Roberts-Smith’s long-running defamation suit.
The Defence department had granted Masters “special access to members of the SAS and commandos, and to classified defence information” for the purposes of his book, Moses said.
He said Masters agreed in a deed with the Commonwealth not to disclose classified information.
“The request for those diary entries formed part of a larger request [for] documents evidencing dealings between other senior figures of the Australian Defence Force and Mr Masters, as well as any documents provided to Mr Masters by the ADF,” Moses said.
Christine Ernst, the barrister for the Inspector-General of the ADF, told the hearing that “no inference as to the identity of the confidential source can be drawn from the response to the FOI request” and “no evidence has been advanced … that the identity of the source is not confidential”.
The watchdog was legally permitted to conduct inquiries “in private, including entirely in private, and in my submission it would undermine the force of that [law] … if the identities of people who participated could be revealed by the making of an FOI request”, Ernst said.
Ernst said the public interest in “encouraging participation in future IGADF inquiries … would be undermined if the identities of persons, or what they said, could be revealed by the making of an FOI request”.
Moses alleged Masters “reported about the Brereton inquiry on a number of occasions after his [alleged] meetings with the Assistant IGADF, in which he claimed he had exclusive information about what the inquiry was looking into, including but not limited to allegations said to be related to [Roberts-Smith].
“Whether the Assistant IGADF, Major-General Brereton, met with Mr Masters around this time is a matter of legitimate public interest.”
Moses submitted that “the dominant purpose” of the meetings would help guide the AAT in making its decision.
He raised questions about whether Masters might have provided information “relevant to … the inquiry”, or whether “Mr Masters was being briefed about the progress of the inquiry for the purpose of his reporting in The Sydney Morning Herald [and The Age] or his book; and one queries, if that was the case, why he was being given special treatment.”
Masters is not a party to the dispute. Moses said Masters’ view on Roberts-Smith’s FOI request was not known.
Roberts-Smith launched defamation proceedings against The Age, The Sydney Morning Herald and The Canberra Times in August 2018 over a series of six articles, published between June and August that year. Half of the articles are online versions of print stories.
The authors of the articles – Nick McKenzie, an investigative journalist at The Age, and Masters – are also named as respondents to the lawsuit.
Federal Court Justice Anthony Besanko concluded public hearings in the defamation case on July 27 last year, after 110 days, 41 witnesses and more than $25 million in legal costs.
Roberts-Smith alleges the newspapers wrongly accused him of war crimes in Afghanistan, bullying a fellow soldier, and an act of domestic violence against a former lover.
Besanko will rule on whether those meanings were conveyed by the articles and whether Roberts-Smith was identified by the reports, four of which did not name him. The newspapers and journalists say the first four articles did not identify him and none conveyed the meanings alleged, but they seek to rely chiefly on a defence of truth to any of the meanings found to have been conveyed.
Thawley will deliver his decision on the FOI case at a later date. The federal government announced last year that it would disband the AAT, which is hearing this dispute, and set up a new federal administrative review body. Legislation to set up that body is expected to be introduced later this year.
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