Roberts-Smith seeks docs in Afghan inquiry

The Commonwealth is considering claiming immunity from providing documents to Ben Roberts-Smith.
The Commonwealth is considering claiming immunity from providing documents to Ben Roberts-Smith.

Ben Roberts-Smith has sought documents collected in a major inquiry into alleged Afghanistan war crimes as the Victoria Cross recipient prepares for his defamation trial.

But the Commonwealth is considering claiming immunity from providing the material, the Federal Court was told on Thursday.

Mr Roberts-Smith, one of Australia's most decorated soldiers, is suing the publishers of the Sydney Morning Herald, The Age and The Canberra Times over allegedly defamatory articles suggesting he committed war crimes in Afghanistan.

He denies all the claims, including that he committed any war crimes.

An eight-week trial is due to begin on June 7.

Mr Roberts-Smith subpoenaed the Inspector-General of the Australian Defence Force on March 15 for information concerning events in Afghanistan on September 11, 2012, the court was told.

The court has previously heard federal investigators had looked into alleged war crimes occurring on that date in Darwan Village in Afghanistan.

Mr Roberts-Smith and the publishers had also issued subpoenas for other material, including transcripts of special forces soldiers' police interviews regarding potential war crimes and information held by the defence department that concerns a "partner" country.

But a lawyer for the Commonwealth on Thursday said public interest immunity had been claimed or would be claimed for material sought by each subpoena.

The individual soldiers may also challenge the legitimate forensic purpose of the documents being provided for the purposes of the trial, and reserve their right to not self-incriminate themselves, the court was told.

Justice Wendy Abraham is due to deal with the bulk of the claims on May 7.

Justice Craig Colvin in November upheld the Commonwealth's application for public interest immunity in respect of some information obtained by the Inspector-General's Brereton inquiry into alleged war crimes in Afghanistan.

The claim affected information that had been compulsorily or derivatively acquired from soldiers who may, in the Inspector-General's view, face future criminal prosecution.

Mr Roberts-Smith and the publishers will return to court on Friday for other pre-trial issues.

Australian Associated Press