Ben Roberts-Smith fights for 'vindication' in open court
Australia's most decorated soldier, who is suing Fairfax Media over allegations he committed war crimes in Afghanistan, is fighting to clear his name in open court as the government pushes to have important evidence hidden from the public.
A second challenge to the government's shroud of secrecy is also underway after the court heard a top Australian Defence Force official will resist giving evidence claiming "public interest immunity".
Commonwealth government lawyer Anna Mitchelmore SC told the Federal Court that much of the evidence in Ben Roberts-Smith's defamation proceedings should only be aired in closed court because it could disclose sensitive national security information.
But Roberts-Smith's barrister, Bruce McClintock SC bristled at the prospect of his client trying to "vindicate" himself while legally gagged.
"We are very concerned about, and we would resist strongly, any suggestion (Mr Roberts-Smith) gives evidence in closed court," he told a hearing on Thursday.
"It is fundamental to his vindication that he be able to tell his story and rebut the allegations that Fairfax has made against him in open court so every citizen of this country knows what he says about that."
The Victoria Cross recipient is suing Fairfax Media after they claimed he kicked a defenceless prisoner off a cliff during a tour of Afghanistan in 2012.
Mr McClintock said it would be "deeply unjust" for the decorated soldier to be denied a chance to clear his name in the eyes of the nation because the court was closed to the public and the media.
"These proceedings will get publicity and I appreciate there may be some evidence that is sensitive but there are other ways of dealing with those matters," he said.
Fairfax's barrister, Sandy Dawson SC, told the court the newspapers also wanted as much of the trial to take place in open court as possible but for different reasons.
Mr Dawson told the court the ADF's Inspector General, who is overseeing a probe into the allegations against Australia's conduct in Afghanistan, plans to challenge calls for him to give evidence.
"We understand the IGADF proposes to assert a claim for public interest immunity," Mr Dawson said.
Fairfax will "hold off" on that subpoena, he said, until the IGADF's report is finished.
"We apprehend that any public interest immunity argument will be much more limited if available at all once that occurs," he said.
The court heard the IGADF is also claiming public interest immunity over some information Fairfax had subpoenaed from the Australian War Memorial this month.
Justice Anthony Besanko also heard Mr Roberts-Smith's legal team was "in limbo" because Fairfax wanted to amend their defence almost two years after the case against them began.
The judge urged the newspapers to resolve the issue quickly.
Fairfax, last week, published stories saying the Australian Federal Police had referred the Afghanistan veteran to the Commonwealth Director of Public Prosecutions to consider possible charges for alleged war crimes.
Mr Roberts-Smith's legal team issued a statement saying they had received confirmation from AFP investigators that no brief of evidence had been submitted and that the investigation is ongoing.
Originally published as Ben Roberts-Smith fights for 'vindication' in open court