Ben Roberts-Smith has spent five years fighting to access secret diary notes he believes may detail meetings between the head of the Afghanistan inquiry and journalist Chris Masters, a tribunal has heard.
Barrister Arthur Moses SC today argued there was a public interest in releasing the material, as a prolonged freedom of information (FOI) battle reached a hearing in the Administrative Appeals Tribunal (AAT) in Sydney.
The AAT — which conducts independent reviews of decisions made under Commonwealth laws including by ministers, departments and agencies — heard Mr Roberts-Smith made his FOI application in October 2017.
It was part of a broader request for documents about dealings between senior Defence figures and Masters, lodged the same month the investigative journalist published his book No Front Line, detailing the role of the Special Forces in Afghanistan.
Mr Moses said Masters was given access to classified Defence information to help him write the book and, in return, agreed not to disclose classified information.
One week after the FOI application, the then-head of the long-running Afghanistan inquiry by the Inspector-General of the Australian Defence Force (IGADF), Major General Paul Brereton, made a direction under IGADF regulation that the documents were exempt from the FOI Act.
Mr Moses called the timing "curious".
"There is no explanation that we're aware of ... as to why [Major General Brereton] waited until after the filing of the request to issue such a direction to protect his diary notes from disclosure," he said.
"In the absence of contrary evidence, it is open to infer this direction was issued in response to [Mr Roberts-Smith's] FOI request.
"It's too much of a coincidence to be a coincidence, to adapt the quote of Yogi Berra, the US baseball catcher."
The tribunal heard the diary notes cover two meetings, in early March 2017 and late July 2017.
Access was refused despite reviews internally through the ADF and via the Office of the Information Commissioner, which affirmed previous decisions.
The Office of the IGADF initially said there were two documents related to the veteran's request but blocked access.
It said disclosure could prejudice an investigation and reveal lines of inquiry or the existence or non-existence of confidential sources of information.
Mr Moses told the hearing it was his case theory that an unnamed person at the meetings — which occurred at an early stage of the Afghanistan inquiry — was Masters.
He said the journalist published extensively about the inquiry since the meetings, including exclusives claiming to have knowledge of its work.
The Brereton inquiry published a public version of its report in November 2020.
Mr Moses said it was in the public interest to know whether there was a meeting between "the head of what was meant to be a secret inquiry" and a journalist, and "potential embarrassment" did not detract from that importance.
Regulation permitted inquiries to be conducted in private: lawyer
Barrister Christine Ernst, for the IGADF, said there was no basis to infer the direction was issued in response to the FOI application.
She argued IGADF regulation permitted inquiries to be conducted in private, and if FOI requests revealed the identities of participants, sections of it would be undermined.
A judgment is still yet to be handed down in Mr Roberts-Smith's separate Federal Court defamation case against The Sydney Morning Herald, The Age, The Canberra Times and three journalists — including Masters.
The war veteran sued over several 2018 newspaper stories, claiming they contained false allegations of war crimes, bullying and domestic violence.
The AAT reserved its decision.
