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War crimes investigators and the Australian Federal Police have been granted access to restricted documents on the court file in Ben Roberts-Smith’s failed defamation case amid active investigations into allegations Australian soldiers broke the rules of engagement in Afghanistan.

Federal Court Justice Robert Bromwich on Wednesday altered national security orders and granted the AFP and the Office of the Special Investigator (OSI) access to some material on the sensitive court file in the defamation case. The OSI is the agency investigating the war crimes allegations.

Ben Roberts-Smith outside the Federal Court in Sydney last year.Credit: Kate Geraghty

The court heard Roberts-Smith did not oppose the Commonwealth’s application on behalf of the OSI to access a list of documents that had been narrowed following out-of-court discussions. However, he did not actively consent.

Bromwich said the former Special Air Service soldier’s “neutral stance” was understandable, and he was “not standing in the way of the order”.

“He is, it’s now openly acknowledged, the subject of an investigation,” Bromwich said.

“No one knows where that’s going to end up. I think someone who’s facing at least the possibility of a further proceeding of some kind, I don’t want to say anything more than that, would justifiably take a neutral stance.”

The material that may be accessed by investigators includes the transcript of parts of the defamation trial held behind closed doors to protect national security information, subject to redactions. Some sensitive outlines of evidence will also be accessed, along with documents tendered in closed court.

Documents relating to an Inspector-General of the Defence Force (IGADF) inquiry, which examined allegations about the conduct of Australian soldiers in Afghanistan and led to the establishment of the OSI, were excluded on the basis they are subject to statutory immunities preventing their use in other proceedings.

The OSI has previously indicated it has more than 30 active investigations into the alleged commission of criminal offences by members of the Australian Defence Force in Afghanistan between 2005 and 2016.

Bromwich ordered the Commonwealth to pay Roberts-Smith’s legal costs of the application on the basis the position ultimately agreed by the parties had been proposed by the former soldier’s legal team at an earlier date.

Arthur Moses, SC, acting for Roberts-Smith, said the Commonwealth had previously sought “access to the entirety of the sensitive court file irrespective of whether it included material that was protected by … immunities”.

Roberts-Smith’s lawyer Arthur Moses, SC, pictured in June this year.Credit: Anna Kucera

He said the Commonwealth later “changed course and confirmed that it would not seek certain documents”, including IGADF transcripts of evidence.

“The Commonwealth has capitulated to the concerns raised by [Roberts-Smith],” Moses said. He said later it had “effectively surrendered” and changed its position dramatically.

But Jennifer Single, SC, acting for the Commonwealth, said “it can’t be said that the Commonwealth capitulated its position” and Roberts-Smith started from a position of blanket opposition before changing his stance.

Single said the OSI had always been “very much aware” of immunities and had proposed a system to address this, before the parties agreed on a list of “carve-outs” to the documents sought.

In a historic decision on June 1, Justice Anthony Besanko dismissed Roberts-Smith’s multimillion-dollar defamation case against The Sydney Morning Herald and The Age.

Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was a war criminal who was complicit in the murder of four unarmed prisoners in Afghanistan. He also found the news outlets had proven the former Special Air Service corporal had bullied a fellow soldier.

Roberts-Smith has consistently denied wrongdoing. He is appealing against that decision and the Full Court of the Federal Court will hear the appeal between February 5 and 16.

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