Defamation lawsuit by former soldier Ben Roberts-Smith delayed after Government invokes special secrecy laws

A defamation lawsuit launched by one of Australia’s most decorated soldiers could be delayed until next year because of coronavirus and a decision by the Attorney-General to invoke special secrecy laws to protect sensitive military information.

Victoria Cross recipient Ben Roberts-Smith is suing three former Fairfax newspapers — The Sydney Morning Herald, The Age and The Canberra Times — over a series of 2018 articles that he claims defamed him.

Mr Roberts-Smith, a former Special Air Service Regiment (SAS) soldier, has said in his statement of claim that the articles are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement”.

The articles contained allegations of misconduct against Mr Roberts-Smith in September 2009, which he has previously rejected as malicious and deeply troubling.

The Federal Court has previously heard that the misconduct allegations occurred when the small SAS patrol was dropped on the bank of the Helmand River during an operation to hunt down a rogue Afghan soldier called Hekmatullah, who had killed three Australians in an earlier attack.

Mr Roberts-Smith denies the events ever took place and the Federal Court defamation trial was set to go ahead next month.

Attorney-General invokes special secrecy laws

But Federal Attorney-General Christian Porter has invoked provisions in the National Security Information Act to keep parts of Mr Roberts-Smith’s defamation lawsuit against Fairfax newspapers from the public.

The powers were designed to limit the way a court deals with sensitive national security information.

It was the same law used to hide criminal proceedings in the case of Witness J: a military intelligence officer who was charged, tried and imprisoned in secret.

The allegations concern Mr Roberts-Smith’s service in Afghanistan.(File photo: Defence Department)

On Friday, Federal Court judge Anthony Besanko vacated the June trial, saying it was unlikely to go ahead for two reasons: the case now had to adhere to the National Security Information Act and coronavirus restrictions.

He said the Federal Government decided to invoke the national security laws after lawyers for the newspapers sought “documents from the Secretary of the Department of Defence”.

“The subpoena identifies a broad range of documents and the Commonwealth’s position is that information in the documents relates to matters of ‘national security’,” he said in his judgement.

He said the Commonwealth was concerned that evidence given by witnesses at the trial could involve matters of national security.

“I was told that the parties in these proceedings are in discussions as to whether or not they can agree on an arrangement about the disclosure, protection, storage, handling or destruction, in the proceedings, of national security information,” he said.

He said if lawyers cannot agree on what falls under the umbrella of national security information, it would be up to the court to decide.

Justice Besanko said the coronavirus pandemic had also created problems, as many of the witnesses scheduled to give evidence at the trial would be unable to take the stand in person.

“Just as important are the travel restrictions and self-isolation requirements associated therewith in a case where there are potentially a large number of witnesses from outside New South Wales and some from outside Australia.”

He said counsel for the newspapers wanted to call four Afghanis to give evidence at the trial.

Justice Besanko said he would try to accommodate a new six-week trial later this year, but it might have to be put off until 2021.

‘Truth’ is the only defence to the lawsuit

In December 2019, Bruce McClintock QC, acting for Mr Roberts-Smith, told the Federal Court that “these allegations are extraordinarily grave”.

Sandy Dawson SC, acting for newspapers, told the court that truth was the only defence to the case.

The articles were written by journalists Nick McKenzie, Chris Masters and David Wroe, who are also being pursued by Mr Roberts-Smith.

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