Victoria Cross recipient Ben Roberts-Smith has been temporarily halted from revealing whether he is a person potentially affected by a secret, independent inquiry into alleged war crimes in Afghanistan, a court has heard.
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The three newspapers Mr Roberts-Smith is suing for defamation have subpoenaed the former Special Air Service Regiment soldier over documents related to the ongoing inquiry, the Federal Court was told on Wednesday.
The sought documents included, if applicable, a notice from the inspector-general of the Australian Defence Force that Mr Roberts-Smith was a "potentially affected person (PAP)".
All documents related to that notice and all responses were also sought.
Major General Paul Brereton, a former NSW Supreme Court judge, is leading the inquiry into rumours ADF personnel committed war crimes in Afghanistan between 2005 and 2016.
A PAP notice allowed the recipient to respond to the inspector-general's draft findings before the release of any findings, the Federal Court was told.
But the Commonwealth intervened, claiming public-interest immunity over the entirety of the response to the subpoena.
"In doing so, the IGADF does not confirm or deny whether a PAP notice has been given to the applicant," Anna Mitchelmore SC said.
The immunity claim will be determined on August 28.
Mr Roberts-Smith's barrister said government lawyers had earlier advised against answering the subpoena because any response "was capable of revealing the fact of whether a notice was given or not".
The war hero is suing the publishers of The Age, The Sydney Morning Herald and The Canberra Times over articles he says defamed him in suggesting he committed war crimes in Afghanistan between 2009 and 2012.
Mr Roberts-Smith denies the articles' claims.
The defamation matter was set down for a six-week trial in June but no new trial date has been set.
Justice Anthony Besanko, at the request of the Commonwealth, on Wednesday authorised an extensive and strict information-handling regime to ensure sensitive material was not exposed before or during the trial.
The vast majority of the 1000 Department of Defence documents soon to be presented to the court are marked "security classified", with a range of documents containing national security information, Ms Mitchelmore told the court.
Each law firm's premises will be inspected and modified as required, printers and devices will require approval and documents can only be transported in a key-lock briefcase.
During closed court, electronic devices will be banned, handwritten notes will warrant classification and court transcribers will require prior authorisation.
Australian Associated Press
