The Truth Defence: Ben Roberts-Smith and the Media
I think that the metric for success was so confused, that the soldiers themselves came to believe that it was about kill counts, which was absurd.
From the treacherous battlegrounds of Afghanistan to the frontlines of the Federal Court, the 110-day defamation trial of Ben Roberts-Smith emerged as a monumental test case, examining the very essence of truth as defence in an Australian defamation trial.
This trial marked the first time an Australian court scrutinised allegations of war crimes committed by Australian troops, and highlighted the financial and emotional costs of pursuing an uncomfortable truth in the newspaper. But what comes next?
Hear from investigative journalist Chris Masters, UNSW Sydney legal experts Douglas Guilfoyle and Daniel Joyce, and host Geraldine Doogue as they unravel the remarkable story of Ben Roberts-Smith examining the highly anticipated trial of the century and unpacking what it means for journalism and justice in Australia.
UNSW Centre for Ideas: UNSW Centre for Ideas.
Geraldine Doogue: Well, good evening everyone. It’s lovely to be here. Welcome to tonight’s event, The Truth Defence presented by the UNSW Centre for Ideas. I’m Geraldine Doogue and I would like to acknowledge the Bidjigal people who are the traditional custodians of this land and pay my respects to their elders’ past and present, and extend that respect to any Aboriginal and Torres Strait Islanders who may be with us today.
Now, tonight's event, we'll aim to springboard off the extraordinary events surrounding the Ben Roberts-Smith case in which judgement was given earlier this year and no doubt which many of you followed. We aim to examine the impact of this probably one-off case in terms of its sheer scale on our defamation laws, on the truth defense, on the media and more broadly, on the whole notion of freedom of speech within our culture.
I don’t know, I was just saying outside. I’m not quite sure how many of you realise how this question of defamation laws and worry about infringing them sits on the shoulders of every journalist who’s had any sort of decent training at all. That there’s this constant sense of the minute you get into something slightly delicate, what will a lawyer say? And there’s that sense that you know, it must be referred to the lawyers. And it’s a very strong and powerful, I mean it’s a constraint but it’s not a total constraint, but it sits there.
And particularly, I tend to have done in my lifetime, not the sort of investigative work that Chris has done, but within financial journalism and I can remember being told many years ago, ‘the best stories in finance are never written’, and which was very powerful. I was exploring diamond mining in Western Australia and had to yield on something which really annoyed me, and this is what the lawyers said – they’re never written some of them. So there we are.
I think our discussion will have a macro and a micro focus if I can put it like that. The implications of this trial initiated by Ben Roberts-Smith of course, the most decorated Australian soldier since World War II – did you realise that? I didn’t until I read Chris’s book, so even though it wasn’t on the charge sheet as it were. Australia’s overall attitude to military conduct – well, they were in the dock to some extent, and I think that that’s something to be very much aware of, so that’s the macro.
The micro in terms of the small stories we heard during the trial, and in Chris’s punctilious honouring of every witness, this is in the chapter of this book which you can buy at the end of the proceedings and have him sign it. There’s a chapter devoted to everyone who was a witness as a way of honouring the people who did come forward, some – they didn’t necessarily volunteer – all of them but so it is a sort of macro, micro thing and I think it’s very powerful, to be honest for all that.
So let me introduce our panelists, Chris Masters, is surely Australia's best known, respected and influential investigative journalist. During his long career, he has won five Walkley awards, including a gold and he's produced more than 100 investigative reports mostly for Four Corners, and he just doesn't stop. He spent three months embedded with Australian soldiers in Afghanistan all up 2006 and 2010 – the only Australian to do so out of which sprang a book, No Front Line and of course, which really laid the raw material for his newest book, Flawed Hero: Truth, lies and war crimes and we’ll talk about that tonight.
Professor, actually I got my order wrong. Dr Daniel Joyce is an associate professor in the Faculty of Law and Justice here at UNSW. He specialises in International law, media law and human rights. He has a range of appointments as everybody does seem to have. He's also an affiliated research fellow at the Erik Castrén Institute at the University of Helsinki. He's also an associate of the Human Rights Institute and he's a member of the Allens Hub for Tech, Law & Innovation. And the son I might add, of a very famous ABC journalist called Tony Joyce who was killed in Africa reporting so it was quite moving for me to say because I hadn’t met you for many, many years.
And Professor Douglas Guilfoyle is also with us. He’s an international legal scholar who specialises in international criminal law and the law of the sea at the University of Canberra at its School of Humanities & Social Sciences. His textbook, International Criminal Law is known widely, and he’s published on command responsibility and the future of the ICC, the International Criminal Court. He consults to governments and international organisations and he has taught at Monash and University College London before joining UNSW and in 2024, he’ll be the visiting Lieber Scholar at West Point in the US. So would you please make them welcome?
Now, just before we do start, I am going to ask Daniel though, not to preempt the entire discussion, do we have to be careful here tonight of defamation?
Daniel Joyce: I mean, in a sense, yes. But I guess I mean our defamation laws are meant to balance you know, the right to reputation and speech. One of the kind of characteristics of them is that that balance is out of whack.
I guess in terms of the subject matter for tonight, it’s useful for us in terms of our discussion that we can talk about the judgement. There’s been a decision made by Justice Besanko and so it would be hard for us to further damage Mr. Roberts-Smith’s reputation in relation to the matters that are dealt with in that judgement. But more broadly, journalists, members of the public… this is a publication. We do have to tread quite carefully.
Geraldine Doogue: I mean, I’ve always worked with, “are you defaming them in the eyes of their fellows?”, that was what was told to me.
Daniel Joyce: Yes.
Geraldine Doogue: And I sort of carried that right through, so I suppose I thought, yes it is pertinent.
Daniel Joyce: Yes.
Geraldine Doogue: But maybe not, but I think it was a good scene setter in a way.
Daniel Joyce: Definitely.
Geraldine Doogue: Okay so Chris, I want to hear from you first. What was the process like pulling together the case in terms of your sense that the law was sitting over the top of you? So you’re doing far more than simply recounting the course of events. What was it like – a monkey on your back? Or how would you see it?
Chris Masters: It took a long time. I can’t really say how long it took because you know, I started working with Australian soldiers probably back in the 90s and got to know them. But I’ll go straight to a turning point in the investigation and that is the moment when I believed Ben Roberts-Smith committed war crimes.
I’d heard up to that point. I’d heard lots of allegations and some of them had veracity. For example, the notorious cliff kick at Darwan where somebody tells me that Ben Roberts-Smith kicked this Afghan man off the cliff and he spun down, his face hit the wall and his teeth sprayed out and he was unconscious, and three of them went down and executed him. And in the telling of that story, even though it was hearsay, it just felt like it might be true. There was vivid detail there.
Then later on, I spoke directly to a soldier who witnessed a different execution and he gave me some details of that and another. But the turning point came when my colleague Nick McKenzie contacted an interpreter in the United States who had been at Darwan when the cliff kick occurred, he didn’t see it. But when unprompted, we asked him about that incident whether he remembered it and we referenced Ben Roberts-Smith, he said something like, “Oh, you mean the Spartan kicker”, and so that’s when if you’re going to ask the public to believe these stories, you really need to believe them yourself. And I thought, this is true. I mean, you know, we’ve got three sets of people on different points of the globe, all giving us details of this… of this murder.
Geraldine Doogue: And this is before you met him.
Chris Masters: No, not exactly. No, it is a complicated long story. I mean, when I met him and interviewed him… Ironically, this massive war crimes trial began about something that I didn't even characterise as a war crime myself, but there was an incident in 2006 where six soldiers were up on top of a hill doing surveillance work. An American, A British soldier, Four Australians – two of the Australians were brand new to soldiering to the SAS, well-trained and hidden in the rocks, and watching the valley below.
And they see a man coming into their midst. He’s not a man really, it was more like a boy, he was a teenager, according to them, and he wasn't armed. He had a bag over his shoulder. They thought he didn't see them and he disappeared, and then Ben Roberts-Smith and another soldier came down and said, “Why didn't you shoot him?” And, and one of the soldiers, I can never forget what he said. He said to me afterwards, he said, “Look, I didn't join the regiment to shoot an unarmed teenager in the back. But the other two, Roberts-Smith was one of them, chased the guy down and shot him dead”, and that was complicated. But under the rules of engagement, it wasn't a clear-cut war crime. It was clearly ugly. And my concern about it was more about the dishonesty of the reporting.
Geraldine Doogue: But it was also at that meeting that it was his behaviour – we won’t get stuck on this because it’s not pertinent to the law, but it was Ben Roberts-Smith when you had that meeting with him to question him, it was his conduct that all your suspicions were raised, weren’t they?
Chris Masters: That’s right. I mean, I had to ask him to reconcile a lot of inconsistencies in his account of that action, which was the first major action that he took, participated in Afghanistan. He was awarded a medal for gallantry for it but yet, two soldiers are telling me that it was nonsense, you know, that didn’t happen the way it was formally written down in the citation, so I had to question him about that.
To be honest with you, I would have been more than happy for Ben to say, “Oh, look those guys have got a different view of what happened, of course they do”, “Get real Chris, this is combat you know everybody sees things differently”, “Fog of war”, “Who would want to take on a six-foot eight VC?”, you know I would have got some comfort from him making the case ‘they’ve got a different point of view and I respect their point of view but I just disagree with it.’ But no, quite the opposite. He acted like a man with something to hide. He got really angry, he lawyered up. Both those guys ended up getting legal letters, threatening legal letters. I got a threatening legal letter. He went to the War Memorial and tried to change the evidence that he’d given, that I had looked into. And that’s why I say, I saw these inconsistences. That’s what we’ve got to do in journalism. You’ve got to try to reconcile them. You’ve got to sometimes ask the hard question and…
Geraldine Doogue: But in court, I’m sorry to interrupt you, but this is what’s so interesting. So you’re very proficient and you’re used to your methods and you’re known, you take notes, you’re very careful, that doesn’t necessarily work in a courtroom, does it?
Chris Masters: No. Well, I mean, the way it turned out we didn't know whether those witnesses would come forward. And by the way, it wasn't even in the imputation. We didn't defame him on that count, because I acknowledged myself that this was not a clear-cut war crime. But that interpreter who gave me the confidence to believe that this was something real; he didn't give evidence in court, and you know, we can't always rely on these witnesses. And so there's a big difference between what you take to the editor and say, “We can substantiate this”, and what you actually need to defend it later in the court of law.
Geraldine Doogue: Okay, well, that's a perfect segue to move to Daniel, actually. This was a civil case, you must remember, not criminal. Yeah, so how does that change things?
Daniel Joyce: Yes, so the civil standard is obviously on the balance of probabilities and the thing that I think is quite complex and significant about the case, though, is that in some ways, a bit like some of the ‘Me Too’ defamation cases, blends civil and criminal subject matter. And I think that causes quite a lot of difficulty, obviously, for the defendants like Chris and the media, but also for Roberts-Smith, too, who, you know, that these findings have been made against him to a civil standard. But there is also potentially the prospect of criminal matters being pursued further.
Geraldine Doogue: Yes. I mean, I was going to do this later, but there was a very interesting piece in The Guardian, just the other day and the Office of Special Investigator from the government that is looking into the post Brereton report asked Justice Anthony Besanko, “Could they have access to information tendered in closed court?” And he recused himself from deciding whether this should be yay or nay. “I have made a number of serious findings of fact and credit against the applicant. An ordinary right-thinking member of the community would consider strongly that such matters should be the subject of a criminal investigation. That is enough to give rise to apprehended bias.” And so he has stepped back, did that surprise you?
Daniel Joyce: Not really, I think obviously, he’s not saying I am actually biased. It's just the appearance of bias, which is very important for the courts to address. And in some ways, also, I think he's just trying to be extremely fair and careful in the approach. Would you agree, Doug?
Douglas Guilfoyle: Yeah, I also think it's interesting that one of the consequences of the Ben Roberts-Smith case is that there's now quite a lot that has been put in the public domain that the OSI can rely on, other than where Justice Besanko gave evidence at certificates that people's evidence couldn't be used against them in later proceedings. But that doesn't encompass, for example Ben Roberts-Smith’s own sworn testimony.
Geraldine Doogue: Did you say that the judge determined some things couldn’t be used in evidence?
Douglas Guilfoyle: Some witnesses were only prepared to testify on the basis that the evidence they gave could not be used against them later, because it potentially implicated them, for example, in a murder.
And some witnesses, as I understand refused to testify at all, on the basis of potential self-incrimination. But for those who aren't familiar with the Office of the Special Investigator, it was set up in 2020 as a consequence of the Brereton report findings, that there were matters that should be criminally investigated. And one of the interesting things about that arrangement is the OSI has gone to great lengths not to use evidence, tendered in the Brereton report which might surprise people…
Geraldine Doogue: Right, so they’ve done all their own work.
Daniel Joyce: Well, they've had to. Because in the military investigative process, members of the Defense Force had no right to silence before Justice Brereton, right. So that material could not and this is a strange thing to say in a war crimes context, but could not fairly be used against them in subsequent criminal proceedings. So the OSI has gone to great lengths not to have its investigations contaminated by material that they, as it were, should not have access to or should not be able to use against people who’ve given evidence.
Geraldine Doogue: Right, and so we’ll see how that plays. And just go back, did you say that however Ben Roberts-Smith’s own evidence can be used?
Douglas Guilfoyle: Well, hypothetically, I don’t see how why he couldn’t be cross-examined in a criminal proceeding on the basis of, “You said this in the civil trial, you were not given an Evidence Act exemption by Justice Besanko” or “You said this on the public record, how do you defend or explain what you said now?”
Daniel Joyce: And he brought the case so it’s his civil case, which is kind of a part of the extraordinary thing about the case and be quite unusual in the sense of this interaction between criminal and civil, because often, what would happen would be that a defamation case would be stayed until the criminal matters were dealt with, and then it would proceed. But here we've had one, you know, proceed in this extraordinary fashion for such a long period of time and it would be quite hard for him, I guess, as the plaintiff to argue that. I mean, you don't actually have to give evidence. Obviously people do give evidence commonly, but formally, you don't need to give evidence in a defamation case.
That calculus has changed a little bit, because recently there are some reforms. And there's a new element around serious harm, which must be shown, but I don't think those reforms applied to this case. And so the weird thing about defamation law is that actually, damages is presumed and so as falsity as well, which connects back to the difficulties that Chris talks about so eloquently in relation to the burden placed on the media in the case. So in other jurisdictions where there is greater constitutional protection for speech, plaintiffs have to bear the burden in terms of proving falsity but that isn't the case in Australia.
Geraldine Doogue: As compared with where?
Daniel Joyce: The US, for example, with their First Amendment tradition is I guess the kind of strongest, comparative example. And I think that really does give a really strong strategic advantage to plaintiffs in Australian media law contexts.
Geraldine Doogue: How would you frame the relationship between the courts and the media? I just wonder to ask you that broad question…
Daniel Joyce: Please. It's interesting. I mean, so I teach media law and we talk about this in class quite a lot. And I try to, you know, as a class, we think about the relationship as involving some tensions, obviously, to some degree, there's codependence there as well, too. Because if you think about it in a really meta way, actually, the courts rely on the media for legitimacy, so they rely on publicity. They also rely on the media for facts. So this idea of judicial notice, actually, sometimes that can be shorthand, particularly in international law contexts, for media evidence that would be otherwise quite hard to generate.
But then in other settings, the media are perceived to be a threat. So the idea of trial by media and media spectacle, and so on. And I think that Chris, again, writes about this in a really compelling way. But I think that there's also the danger that judicial officers who deal with kind of repeat cases of bad media behaviour in defamation cases, may systemically hold the media to very high standards, in terms of their journalism, you know and they're placed in this awkward position, often by the legal framework of having to determine what's good and bad journalism but from a legal perspective.
Geraldine Doogue: I want you to decode that. Do you really mean that judges – they're predisposed to see, you know, nefarious characters and activities when somebody bothers to bring a defamation case, and they sort of come with some predispositions?
Daniel Joyce: Yeah. Well, I mean I think obviously, we're very lucky. We have a great kind of legal system, and very talented pool in terms of judiciary. But I do think that defamation laws focus is very much a punitive focus, in a sense. So if you think about how media law is structured elsewhere, it's often structured around media freedom which is facilitative and protective of media.
But because defamation law, which is often driven by a plaintiff, who potentially not always has been…you know, his reputation has been damaged by the media. In a sense, our media law is quite unusual in the sense that it's shaped not by this animating idea of media freedom, or informed publics and the public's right to know and, and so on, the things that really animate investigative journalism, but actually is shaped by some of the perhaps…
Geraldine Doogue: Almost status quo.
Daniel Joyce: Exactly, yeah. And the ways in which perhaps the media don't always cover themselves in glory too.
Geraldine Doogue: So Douglas, how would you see that?
Douglas Guilfoyle: I'm not sure I've got anything particularly useful to add to, to what Dan said on that point. But in the international criminal law context, yes to establish kind of patterns of scale, of war crimes for example, the Yugoslav Tribunal may put heavy reliance on the media. So sometimes, the dynamic is quite different depending on the context of the case.
Geraldine Doogue: Though I was just thinking – if we ever get to the point where the people who were involved in Bucha, come before courts, to me at the moment, it's an open and shut case. But of course, that's not how that in terms of individual rights, there might be individual people put on trial for that who are owed, I presume the presumption of innocence, and that won't be easy looking on?
Douglas Guilfoyle: No. Well certainly, if we look at kind of the flagship of international criminal justice at the moment, the International Criminal Court, it has a very low conviction rate.
So you know, in nearly 20 years of operation, its’ convicted five people, I mean, there’s a handful more for essentially perverting the course of justice type offences but in terms of the core international crimes, it has acquitted more people or seen more cases collapse than its seen through to an actual guilty verdict, and particularly if you're going after people at very senior levels, these cases are quite difficult to prove.
And I think this is part of the dynamic we see in the veterans community at the moment. A lot of people don't deny that war crimes were committed by Australian forces but are very angry that responsibility appears to be stopping at the patrol commander level but going further up the chain of command is difficult.
Geraldine Doogue: Why?
Douglas Guilfoyle: Well, since World War II, as it were, perpetrators of mass atrocities tend not to keep a paper trail. That's certainly part of it but also, if we look at the Australian command structure, there were lots of levels of oversight.
There were lawyers, there were specialist investigators, there are people in various layers of command. And many of these people rotated in and out of the system so I can look at the evidence in the Brereton report as a lawyer and go, “There are lawyers spotting that after action reports are using boilerplate language that should have raised suspicion. There are Afghan nationals saying, you know, ‘Our relatives have been killed’, that should have perhaps flagged more investigation. There were rumours going around”. But the thing is, those pieces are there but was any one person holding all of them at the same time? And that's the kind of evidence you need to pin it on someone further up the chain of command.
Geraldine Doogue: And maybe that is appropriate. Like somebody could be unfairly targeted with knowing everything? And they really don’t.
Douglas Guilfoyle: I mean, there is a complex legal question, which I'll make as simple as possible, about to what standard should we hold military commanders. And Senator Lambie has gone quite hard on this in that, under the International Criminal Court statute, the standard for command responsibility is that you knew or should have known, your subordinates were committing war crimes.
The standard in Australian legislation is ‘knew or were reckless as to’, which means that actually, you must have formed a conscious suspicion that there was a risk that these things were happening, whereas the international standard is open to the interpretation.
Actually, if you didn't do everything a commander should have done, we will, as it were deem you to have known the things you should have known. So there's a difference there, the international standard that we've signed up to in the International Criminal Court is potentially a higher standard than we've brought into our own law.
Chris Masters: It is complicated. Brereton is a lawyer and he didn't find direct evidence, of knowledge of war crimes among the officer call. Nick McKenzie and I didn't find it either. But what was apparent was this extraordinary absence of curiosity. It is almost contradictory on occasions, like for example, yes, I can accept that officers, particularly those remote from the battlefield would not have had direct knowledge of war crimes, because even the soldiers themselves didn't really know about it until they came back to Australia. And they started talking, particularly with the way the SAS operate in very, very small patrols and, Ben Roberts-Smith was counselling junior soldiers in pre deployment training, to execute prisoners undercover where no UAVs, no drones would spot them, no officers would see them.
Geraldine Doogue: We know this, do we?
Chris Masters: Yes, that came out in the in the court cases. That was one of the things that stunned me that one of the junior soldiers, who was told to do this, drives off with his friend, another one of the soldiers; this is person 19 and person 10, and he says, “Did you just hear that shit? And this is what we're expected to do?” And I said, “Well, how many people knew this?”, “Well, amongst us, we were all talking about it. If we're gonna go over there, we were expected to execute prisoners.”
And so how could it be that junior soldiers knew these things, but senior soldiers didn't? It certainly, the way it fell with Brereton was that he could not see evidence of a linkage. But there is no doubt in the world that they had to have accountability.
Douglas Guilfoyle: And I think your phrase, you know, the lack of curiosity is both telling and important. Because on my reading of Australian law, that mere lack of curiosity isn't enough.
Geraldine Doogue: Isn't enough?
Douglas Guilfoyle: Isn't enough, but I mean, we will see how the law is interpreted as the OSI cases go forward. These are untested principles in Australian courts.
Geraldine Doogue: My goodness. Well, I want to get to the law. I mean, Daniel, I suppose there is a question, do you think Australian defamation law does adequately protect public interest journalism?
Daniel Joyce: I guess I sort of tried to talk a little bit about that before, too. And, I don't think it does. I don't think it does enough to protect public interest journalism. It's partly because I think truth is a defence is so hard and so onerous. What really makes this quite an extraordinary case is that the quality of the journalism, the evidentiary kind of trail, the willingness of people to give evidence, in court and so on, meant that truth as a defence could triumph and succeed. And obviously, it's the best defence of all of the defences.
But in general, the idea has been, because of the difficulties with truth, in many cases that there could perhaps be some kind of other kind of defence, that where even if you actually defamed someone, if there is sort of a higher goal of public interest journalism and the subject matter is in the public interest, then perhaps you should have a defence for that. And now, subsequently, following on from this case, it wasn't available for the case there is a public interest defence, section 29A, and it is as yet untested as well.
Previously, there was the qualified privilege defence, that is about sort of, that allows for you to get it wrong and to defame someone, but for it still to be defensible, because of a duty interest relationship. And the media have always struggled to establish duty and interest for a mass audience.
But the Longhi case, which was one of the early kind of free speech cases, in terms of what we termed the implied freedom of political communication. It essentially said that look, once the High Court had determined that there was an implied freedom of political communication within, to be found within the Australian Constitution, not a fully-fledged positive, right like the First Amendment, but this implied freedom, that then qualified privilege as a common law aspect, that needed to be constitutionalised.
So actually, there is a sort of variant of the qualified privilege defence, this Longhi variant, which you would think and hope would be that offence that journalists were they weren't able to prove truth to the standard required could kind of go to, but the history of success in cases are surging in public interest, journalistic contexts, that defence has been pretty poor. And partly that's because the court also said that reasonableness was required in terms of journalism, which then puts, like I was saying before, puts the courts back in this position of determining what's good and bad journalism, you know; Did they give the parties the opportunity to tell their side of the story? How were they motivated? Was there an improper motive? And so on.
Chris Masters: Well, the Moonlight State program that I did in 1987. We fought that on a qualified privilege defence, and actually is one of the rare successes we had, but I can't think of it as a success. That whole matter took 13 years. That was my death by a thousand courts.
Daniel Joyce: Exactly.
Chris Masters: I say, and I mean it when I say I've sheltered from sniper fire and artillery fire, and I've sheltered under dead bodies, and I'd rather do that tomorrow than then be cross examined by cold blooded QCs for days on end, which was the way it went because in that instance, you know, you are effectively on trial. Is that reasonable as you had to demonstrate you acted responsibly? And I thought it was kind of absurd, you know, look, clearly what we did prove in Queensland was that there was systemic corruption.
A police commissioner went to jail. There was corruption right through the place and but that journalism, very important in the history of this country, is probably one of the most punished journalisms I can think of. You can't come away from an experience like that, thinking that ‘This is a job I'm gonna tell my kids to do’, you know, and I think that's the problem with these oppressive laws. The worst censorship is self-censorship. And of course, we practice it every day because we're not going to put ourselves through this.
Daniel Joyce: Can I just go to one legalistic point that makes pretty much everything that’s just been said even worse? So we've talked about how difficult it is to establish the truth defence, even on the balance of probabilities. But I think the ordinary person's understanding of balance of probabilities is it's just more likely than not. Justice Besanko had to be, I think it was 51% probable that these things had actually occurred.
For a start, balance of probabilities doesn't mean anything that mathematical, but there's also, and this goes to the value of protecting reputation over press freedom, a thing in the law called the Briginshaw principle, which means the more serious the allegation, the more certain the judge has to be that it has been made out on the evidence, right. So that doesn't, you know, there's only two standards in Australian law, balance of probabilities and beyond reasonable doubt, but balance of probabilities has this sort of sliding scale undefined element, and accusing someone of the war crime of murder is about as bad as it can get. So you don't just have to prove it's more likely than not, you have to prove it to a very high standard, which is why no judge likes being appealed. And every judge knows they're going to be in a case like this.
I think that is one of the reasons probably, that most of Justice Besanko’s key findings are in fact, have at least two eyewitnesses, right? You know, he was very alive to this Briginshaw principle. And the fact that if every judge wants their judgement to survive appeal, if he was going to have it as it were ‘appeal ready’, he needed to demonstrate that, while this wasn't a trial, beyond reasonable doubt, he'd reached a very high standard of satisfaction. And I think that's something that's commonly missed when people say, “Oh, the crimes hasn't been proven, because it hasn't been proven beyond reasonable doubt.” As a literal statement, that is true, but balance of probabilities means different things in different contexts. But that raises the bar for journalism even more, because of this emphasis on protecting reputation.
Geraldine Doogue: I have to confess. I have never understood as a journalist, the balance of probability, I've tried to understand it, and I really haven’t because you get answers like this. Well, I mean pardon me.
Daniel Joyce: On behalf of the law. Sorry.
Geraldine Doogue: No, no I know. But I mean, it is interesting, because in this Guardian article, you write Justice Besanko most definitely did come to definite conclusions. In his 700 page judgement, Besanko said, Roberts-Smith quote “has no reputation capable of being further harmed, because of the gravity of the offences he had found proved”, and said “I have difficulty accepting Roberts-Smith's evidence on any disputed issue.” It's extraordinary. I don't think I've ever seen that. And so this is now going to go to a panel at the full appeal court, isn't it, in February?
Douglas Guilfoyle: In February? Yep. So it'll be before three judges of the Federal Court of Australia who could in theory be drawn from anywhere in Australia. But the security requirements over some of the evidence will mean that they will, for example, need safes installed in their offices capable of holding classified documents, and certain parts of the judgments will have to be written on separate computers that aren't networked.
Geraldine Doogue: Really?
Douglas Guilfoyle: That's common practice in national security cases back when I worked for a judge when I was sort of straight out of law school, we had one like that. And that's just how you deal with national security matters.
Geraldine Doogue: And do you imagine there'll be any criminal… Will everything wait until that is held before there are any other charges, I wonder what you both think about that, might be laid?
Douglas Guilfoyle: I would be interested in everyone's views on this because it's a question of sort of fact and strategy. We know that the Office of the Special Investigator has begun charging people, you know, one charge has been made public. They have talked before… their Director General Chris Moraitis before Senate estimates in Canberra, has talked about 40 matters under investigation, which could mean 40 crimes, 40 people. It could mean any number of things, but that would seem to me a significant number of cases. And it doesn't seem like they're waiting for everything else to finish.
Geraldine Doogue: What do you think Daniel?
Daniel Joyce: Well, I just think the scale of what they're having to undertake a little bit. I mean, we saw that in terms of the scale of the case, Chris's case will mean that in a way they have to have to kind of start now.
Geraldine Doogue: They will. Okay, right.
Daniel Joyce: But it'll take a long time I presumed, Yeah.
Geraldine Doogue: I wonder, I gather this judgement is considered legally conservative. That's what I've heard. Is that right? It didn't seem like that to me.
Daniel Joyce: It's hard, isn't it? I mean, I think, I mean, one of the virtues of our legal system is that it attempts to disentangle from politics. But obviously, there are approaches, judicial approaches, sometimes we think about them, you know, more progressive approaches or more conservative approaches. But sometimes the method might be driven by, you know, you could have a kind of cautious conservative judge trying to do the right thing by everyone. And I think that's what we really do find in this case.
Geraldine Doogue: I see.
Daniel Joyce: So I don't think it's conservative in a kind of political sense. It's just sort of very careful.
Geraldine Doogue: Which is to be praised.
Daniel Joyce: Yes. I mean, I think that's what what's required, particularly given what Doug has said about the interplay between the kind of criminal dimensions, the civil aspects, but also what's interesting in terms of defamation law, because it's all configured around this idea of imputations. The plaintiff gets to say what those imputations are, right? So they have a strategic advantage in the pleadings and I think there were 14 imputations, which is a lot. So to prove, you know, to prove… to defend your case, you had to prove true all 14.
And so that kind of conception of – well, for some where perhaps there was evidence, but the judge was being extremely careful, because maybe there was… you didn't have the second witness, or there was a kind of question around the evidence that was available. The judge was able to use the contextual truth defence, which is quite an unusual one.
But where essentially, you say, “Well, look, I think it was imputations, two and three”. They're these really big, kind of meaningful imputations. And once you've proved those true, then some equally, some important imputations, but ones where perhaps, you're not doing any further harm to Roberts-Smith, and his reputation that they can be kind of captured by the truth of this bigger meta, rather significant imputation.
Geraldine Doogue: So if I said, were you surprised, Douglas that he did appeal? How would you answer?
Douglas Guilfoyle: I'm not surprised that he appealed. Because if I guess you've sunk this much into your reputation, you've got nowhere else to go. Right? You know, you just have to keep going. But we also know, in a sense that, there's a second part of the judgement we haven't seen, right, the stuff that goes to national security and classified material that's only been seen by the judge, the parties and the lawyers representing the Commonwealth. So we don't know, in a sense, which sort of fact finding questions at the moment are the subject of appeal. And to the extent it goes, as it were, to the closed part of the judgement, it's probably going to be very long time before we do.
Geraldine Doogue: I didn't realise that. So will that be covered? That can’t be covered in open court.
Douglas Guilfoyle: No, so part of the appeal proceedings will also be closed.
Geraldine Doogue: Be closed? I see.
Douglas Guilfoyle: Yeah, I'm not aware of a Federal Court appeal proceeding that's had closed proceedings before except perhaps I suppose, in certain national security matters, like people being denied a passport on suspicion that they might engage in terrorist acts abroad. So it's a very rare procedure.
Geraldine Doogue: Also, look, in the light… we've got 15 minutes. Has this case in your view, Daniel, changed things? It seems such an extraordinary case. Do you think it has made any material change to the way we conduct defamation law in Australia or not?
Daniel Joyce: Look, it's an interesting question. Obviously, it's an incredibly significant case, the subject matter, the depth of investigation behind it, the kind of consequences either way, depending on how the decision played out, but in some ways in terms of the actual development of the law, it actually relied on a defence that's been there for a long time, truth.
So it actually is, in terms of the law – it's kind of a bread and butter type of a case in a way because truth without, as we were saying before, without those other kinds of defences that reformers have looked to and advocates have called for over time, truth is really the best defence. I guess the scale of the time taken, the cost, the fact that it didn't settle those aspects, I am sure will resonate through the media, in terms of thinking about, obviously, it's been a success, but thinking about the costs involved in pursuing that kind of a case. And I really picked up and really enjoyed aspect of Chris's book, where he was talking about this kind of relationship between truth and power. Because I think listening to also what Doug was saying about, you know, ‘Why appeal?’ I mean, it also draws into view the question of access to justice, not everybody has access to the funds to be able to appeal. And I think that there are some, you know, that raises some really important questions for us.
Geraldine Doogue: But it's also in my mind if the appeal is successful. What's the impact? You know, what's the implication?
Daniel Joyce: Of course. Well, that's the sort of ever present, you know, some of the articles will have to come down from the websites, and we will have to have different conversations about this.
Chris Masters: And you better buy that book quickly.
Geraldine Doogue: I mean, do you think – going to Douglas, given that you're interested in command structures - Do you think that… well I know, it's gone around the world has it? Will it force military leaders and politicians, I suppose, to be much more careful or more conscious that they might be held accountable?
Douglas Guilfoyle: I'm honestly not certain how to answer that. Command responsibility is a tricky doctrine, and even international courts have had difficulty applying it consistently. I honestly think that we can overemphasise. And this might be a slightly controversial thing to say, over emphasised criminal accountability because if you really want to… Truth, we've been talking about truth, you know, truth itself, truth finding processes are also an important form of accountability. And when you think about what the veterans who are angry that this is sort of stopping at the patrol commander level after, what they want is some of these other people to have to ask questions about why people were so incurious, what more should have been done.
What were our political leaders from both major parties thinking in just continuing using Special Forces in this way. And something like the Chilcot Inquiry that the UK had into the process around Iraq can perhaps better ventilate those things. The problem with Chilcot, of course, was that it took forever and was very slow. But this might be a thing where if you want to get to the truth, beyond a certain level, then a Royal Commission is a better vehicle than a criminal trial.
Geraldine Doogue: Oh, please, not another Royal Commission.
Douglas Guilfoyle: I know they do seem to be the Australian answer to everything.
Geraldine Doogue: I mean, Chris. I wonder what your impression is, and because you've been continuing to deal with people, with the SAS that the Special Forces, their own sense of themselves in the wake of all this?
Chris Masters: I mean, of course, they wanted to characterise this as a couple of reprobate journalists digging up scandals and shock horror, how dare we. They forget that it was actually their own soldiers that called it out. And we had 20 witnesses, 20 SAS witnesses under subpoena, who knows if they really wanted to be there, but I thought they showed extraordinary moral courage and I personally think they saved their regiment. But the appalling irony is that they'll never be forgiven for it.
I'm sorry, actually, that I think that there's been a bit of backsliding, a bit of reluctance to accept the gravity of this, to come to terms with it, to acknowledge it, and they're basically saying now, “This stuff's gone on too long. There's a lot of psychological damage. Let us get on with things.” The SAS has, there's a bit of a protection racket around it, you know, it's elite, commanders go into the Canberra apparatus, you know, in the security industries, etc, etc. Even the soldiers themselves, so they’re used to doing protective service details with the political classes so they've got a huge amount of power, a huge amount of influence. I've got mixed feelings about it because I so admire the soldiers that had the guts to call it out. And I thought they were terrific witnesses, you know. But on the other hand, I don't think this issue of accountability has, it's got a way to go.
Geraldine Doogue: I suppose it’s also fair to say, which we discussed the other night. When we had a discussion, there were four VCs given in Afghanistan.
Chris Masters: To the Australians, yeah.
Geraldine Doogue: To the Australians, Yes. We only talk about Ben Roberts-Smith. And as I said, I had interviewed Trooper Donaldson who was the man before him and who insisted on coming back. He said, “I'll only take a VC, if you let me back into battle”, which was against all the conventions? And I think Ben Roberts-Smith said the same thing.
But I suppose the people in charge might say, “Well, Chris Masters, look you've proven the case here but that is not the whole story of Special Forces.” Do you have any sympathy with them in that respect, in terms of proportionality?
Chris Masters: Well, I mean, I accept that they were overused there. I think that one of the soldiers said he could say that Ben had gone ‘up the Congo’, as he put it, he wondered why the officers and the people around him didn't see it. They wanted to continue to deploy. But I think many of them, kind of, as you would expect, lose touch with humanity over time. It's such a sort of brutal place, and they see so much horror.
And I think the goal in Afghanistan shifted so much, you know, it was a peacekeeping mission. It was a nation building exercise. It was about mentoring, it was about improving the security environment, etc, etc. But to the SAS guys, it was about killing bad guys, you know, I mean, the actual goal, come 2012, you know, when Roberts-Smith re-deployed with his VC, the goal at that time, was to improve the lot of Afghans in these rural communities so that they could have some sort of faith in government. And we might be able to move in and provide some kind of infrastructure so that they could say that term, you know, this is actually working. Of course, it wasn't working.
The Afghans were saying, you know, “You have the watches, we have the time”, and it's only a matter of time before you go, and it'll be mayhem again. I think that the metric for success was so confused, that the soldiers themselves came to believe that it was about kill counts, which was absurd.
Geraldine Doogue: Yes, I interviewed that singing diplomat, Fred Smith the other day, and he was quite blunt, because he'd been there – tried to get people out when Kabul fell eventually. And the chaos, the chaos was just amazing to hear and he sort of said, “Well, we were there because of the alliance.” It's as simple as that. That's why we were there. We knew that which is a… yes, I can see that, how that filters down to soldiers might be very interesting.
Look, I've got a whole lot of questions from Slido. So thank you very much and do feel very free to come forward and ask a quick question. Nominate yourself, please and I'll just carry on with a few here. What was the advice from in-house lawyers in the initial publishing of potentially defamatory material? And were you afraid for your safety at any point during the publishing and legal case? I'll put that to you, Chris.
Chris Masters: About the safety?
Geraldine Doogue: Well, actually about the in-house lawyers. I'm quite intrigued myself what your advice was from in-house lawyers?
Chris Masters: Well, it’s such a long time ago. I'm not sure I even remember. You know, look there was a great deal of investigative lawyering in this as well as investigative journalism. Obviously, they said initially, that our position was defensible, editorially. But Ben Roberts-Smith must have thought that he was going to win this case. And he thought it was pretty much a game of numbers and that if they find 10 witnesses who say I did it, I can find 12 who say I didn't and that's pretty much the way it unfolded. But over time, I'm sure at Fairfax they must have been very, very nervous early in the piece because I was.
Geraldine Doogue: I'm sure. And did you feel did you feel unsafe at any point?
Chris Masters: Yeah, one of the funny things about my job is that that I reckon that it's obviously a crazy job when the least of your worries are the death threats, you know? Actually, the defamation process is a lot more punishing, takes a lot, lot more out of me. And you know, both of us did get death threats through this, and we still wake up to nasty sort of social media stuff every day. But this is the life I've lived for a long time, and I'm kind of used to it.
Geraldine Doogue: Okay. Yes, sir. I'll go to mic one.
Audience member 1: My name's Ken Mackenzie, I'm a returned veteran from (unintelligible) War. I'm a bit disappointed that this method where the officer is not responsible. During the last war, the people that got to hang because they were sort of the top of the pile and they were made responsible for everything down the pile. And that sure principle should’ve applied now surely.
Geraldine Doogue: The German High Command, whom so many of them were executed. Yes, It's an interesting point. Douglas?
Douglas Guilfoyle: Yes, so it goes to the sort of tension. I said before that in the development of International Criminal Law since the time of Nuremberg, there's been a sense that the standard of responsibility for officers should be high, but it should not be absolute.
And then the question is, where do you draw the line? And that becomes a difficult exercise and different courts have drawn the line in different places. But the principle is now accepted that generally criminal command responsibility is not a principle of absolute responsibility, that is, you are not automatically responsible for everything your subordinates do. Whether you know about it or not, and whether anything you could have done would have prevented them or not. Now, we can agree or disagree with whether that's a good idea, maybe absolute command responsibility would promote better, more disciplined command but the principle we have is that it is not an absolute doctrine of strict liability.
Geraldine Doogue: That’s so interesting.
Chris Masters: Can I say something quickly? It's become an administrative issue rather than a criminal issue when it comes to determining accountability. And a lot of it is they're trying to sort of work it out via virtue of whether they deserve the medals, you know, and of course, Distinguished Service Crosses were given out to officers for leadership.
And you've got to say, if you're going to accept the credible evidence that Brereton found, let alone was revealed through the Ben Roberts-Smith case that there was hardly exemplary leadership. But that's stumbled as well. It's been very, very hard to, to make any finding vis-à-vis whether…
Douglas Guilfoyle: Very briefly. Though, the one thing I'd say about how those two points interact, then is if command responsibility only punishes you for what you knew, or what you strongly suspected, then you have an incentive not to know. And complex bureaucracies, like our military bureaucracy can do a very good job of like, potentially inadvertently of shielding people from knowing things.
Geraldine Doogue: Right. Actually, before I come to you over there, given what… Is it surprising to you, that BRS hasn't been charged already given what has emerged, Daniel?
Daniel Joyce: Maybe that’s a question for Doug.
Douglas Guilfoyle: As I understand it, there was an Australian Federal Police investigation into Mr. Roberts-Smith, and package of evidence was put up to the Commonwealth Director of Public Prosecutions. And it was knocked back because it relied too much on material from the Brereton report that's been publicly reported. But that doesn't mean the case is dead. It just means it's moved to the Office of the Special Investigator with a clean slate, okay.
Chris Masters: It surprised me. I know in a sense, leaving aside the war crimes. There was a lot of evidence of intimidation of witnesses where there was very, very solid evidence to support it, you know, handwriting for example. I don't know why that hasn't gone ahead.
Geraldine Doogue: Of intimidation of witnesses?
Chris Masters: Yeah.
Geraldine Doogue: Right. Okay. Yes, please.
Audience member 2: Two quick questions. And given the time as a JD student here at UNSW, it has an element of legal learning. And my question will build on what has been told recently.
First, when you talked about that, it's really hard to bring to justice – the high levels, that reminds me exact situation we have with investigations of organised criminal groups. And I think a lot of what you said effectively in terms of mechanics describes the same pattern of a cover up. That's my first question. I would like to hear your thoughts on that.
Second question is about the appeal process. If I'm not mistaken, I think one of our richest Australians came out and made, at least, a verbal pledge that all legal costs at the first stage of Ben Roberts-Smith, will be reimbursed. And that's exactly goes along the way that was additional encouragement for Ben Roberts-Smith to proceed with the appeal. Exactly on the grounds effectively, we can say that for Ben Roberts-Smith, it is a free option. If he is not going to carry the financial burden of the appeal costs and that goes exactly to the point of the access to justice, the one that you mentioned, and I would love to hear your thoughts about that as well. Thank you and thank you for the great presentation.
Geraldine Doogue: Who wants to tackle which part of that?
Douglas Guilfoyle: I'll take the first part and leave the second part to Daniel. So the parallel between the process by which war crimes and crimes against humanity are committed and leadership and organised crime was the American theory of the Nuremberg trials at 1945.
So the high leadership were charged as being part of a sort of the phrase now, would be ‘Joint Criminal Enterprise.’ So everyone from the lowest foot soldier to the highest leader was linked in this one criminal organisation, and it's not a uniquely American doctrine. It exists, ‘Joint Criminal Enterprise’ exists in some forms in… it used to in the United Kingdom, and still does in Australia, and was liberally applied by the Yugoslav tribunal. But it has not been incorporated into the Rome Statute of the International Criminal Court and it has not been incorporated into the Australian Commonwealth Criminal Code
War crimes provisions, because to put it simply, it tends to catch big fish and small fish in one net and it doesn't require a prosecution to prove as precisely the kind of chain of causation that can catch people as part of a criminal enterprise for mere, sort of passive involvement with a group. And the Australian Criminal Code is very clear that you actually have to have made an active difference and not just been part of a worthy organisation. That's the simplest answer I can give to 60 odd years of legal history.
Geraldine Doogue: Just very quickly, the Japanese – did the same principle apply in the Japanese version of Nuremberg?
Douglas Guilfoyle: The International Military Tribunal for the Far East, broadly. But there are a lot of question marks about how fair those proceedings were.
Geraldine Doogue: Very interesting. Daniel, do you want to take up the idea about access to justice?
Daniel Joyce: Yes, yes. I think access to justice is obviously a really critical, critical thing. And I think in terms of legal education, we often don't emphasise costs enough, right? So we're focused on what is defamation law, say what are its sort of principles and so on. But obviously, the consequences for both Mr. Roberts-Smith, and for the media – really, very consequential, very dire.
The costs were pretty extraordinary and that would in other settings, I guess, without kind of financial support, have potentially led to a settlement, right? So a lot of these cases do settle and there can be very good reasons for them settling as well. It's sort of hard for me to speak to the particular circumstances of this case. But I would note that, that in the dispute over costs, even after the first instance decision, there are attempts from the media defendants to pursue those who have funded or who are perceived to have funded Mr. Roberts-Smith's…
Geraldine Doogue: What do you mean?
Daniel Joyce: So Kerry Stokes.
Geraldine Doogue: Yeah.
Daniel Joyce: There have been efforts to try to basically have access to communications between, like internal communications.
Chris Masters: 8000 emails.
Daniel Joyce: 8000 emails, yeah. So obviously, that's an ongoing issue.
Geraldine Doogue: So that’s on foot is it?
Chris Masters: If they’d have won, Kerry Stokes would have made a profit. He was on a, I think it was 15% of the award settlement. It doesn't seem fair to me that you find something like this, but when you lose, you walk away.
Geraldine Doogue: It's funny, I would have thought that in fact, it's sort of suggested the whole thing has been such a sort of Colosseum that it might discourage people from, you know, pursuing anything like this. That's what I think it's come to. But first, that's just a subjective view. Yes, probably last question. I think we'll see how we go.
Audience member 3: Hi, thank you. I've got a meta question for our lawyers, Daniel and Douglas.
People with reputations like Peter Dutton are able to sue others for defamation, truth becomes an issue, and the media and others are held to account. Companies can also be held accountable for misleading and deceptive conduct. Why is it that people like Peter Dutton, politicians, when they speak about the Voice or the environment, have no obligation to tell the truth? Why can't they be held to account for not telling the truth? And is there anything in the international sphere that allows politicians to be held to account?
Daniel Joyce: Well, that is quite a massive question.
Geraldine Doogue: I mean, if you read Joe Aston everyday and the Fin Review of the moment with Alan Joyce and our prime minister, you know, that would rebut. I mean, it's very, very interesting to me to see when you're making a personal comment, and if you're backed up the extraordinary level of comment that you can make, and I mean that over the whole business with Qatar and Chairman's Lounge and so on.
So I think for me looking on as a journalist and just every day – I read the Joe Aston column just to see where he's taking it. And no, it's quite an extraordinary thing underway at the moment, and it's still underway. And I've never seen anything like it so I think it's being slightly redefined right now. But I don't know how…
Douglas Guilfoyle: I suppose my first instinct would be to say, you know, there is nothing to stop Parliaments, State or Federal, passing a law that says that the same standard should apply to politicians as trading corporations that they can engage in misleading or deceptive conduct, but it will require those same politicians to pass that law.
So that would be the that would perhaps be the cynical answer and I think minor parties have suggested it from time to time. And can you be held accountable? Well, at the extreme end, I mean incitement to genocide is something for which leaders, particularly at the Rwanda Tribunal, were held accountable for but that's going an awfully long way down the spectrum of odious things you can say with free speech and politics. Daniel?
Daniel Joyce: Look, I probably don't have too much more to add there. But obviously, the question of truth that we've been discussing tonight, has implications in terms of legal truth, but also political truth as well.
And I think hovering kind of very close by to these bigger legal cases are often issues that relate to truth in politics and questions of trust. And, and it is interesting, I mean, I guess what I could say is that the Australian media law, sort of framework is one that is very familiar with high profile plaintiffs, many of whom are politicians.
So we don't have the kinds of limitations on public figures using defamation law for their own strategic, including politicians, for their own strategic advantage. Sometimes it doesn't work out so well. So think about the Joe Hockey case that he pursued, I mean that damaged the media. But also was difficult, I think, in terms of his political career.
Geraldine Doogue: Jeff Kennett pursued it too, and lost, do you remember? He took a big case and explained why he felt very aggrieved at the degree… I just remember hearing it at the time when he was Premier. And he said he was very well used to people accusing him of all sorts of things, but there was a bridge too far and he felt very strongly about it and he took a case and he lost and he abided by it. I thought it was quite a reasonable, you know, outcome one way or the other. His approach and the outcome.
Daniel Joyce: But it's also interesting to me too in Australia is a little bit different in the sense that we don't allow large corporations to sue for defamation. So we couldn't have a case like the McLibel case in the UK. They can use other causes of action, though, like misleading and deceptive conduct and injurious falsehood.
Geraldine Doogue: And I know, I'll just give you the final thing, just to clarify one thing about – what was the principle that you said, I've just forgotten the name of it. Whereby you said it's not working out as well as the truth?
Chris Masters: The Briginshaw principle.
Geraldine Doogue: Yes, The Briginshaw principle. Did you say that has been used several times, but it's almost people have lost a bit of confidence in it?
Daniel Joyce: No, it's an ordinary rule of evidence. If an allegation is being made that is particularly serious, and it's been proven on the balance of probabilities, you have to reach a particularly high standard of satisfaction. It's just a variation on the balance of probabilities principle.
Geraldine Doogue: Okay. Right. So final question to you please.
Audience member 4: Thank you. It seems just from a lay person's reading of the media in the last several years that there's a small number of names of defamation lawyers that keep popping up. And around this political class, and this idea of inequity around the political class and arguably a former soldier whose inverted commas ‘national hero’ with backing by the War Memorial, the political class, and billionaire funder, which not all of us have. Is this the new ambulance chasing? And is this now commercialising people talking about the inconvenient truth? To try and scare people like Chris, and their lawyers?
Can it be insured against? And is there such a thing as security for costs for people bringing those as a commercial consideration such that if you consider in the commercial case, and Mr. Roberts-Smith, I think that's what all this posturing around the ‘who paid’ and what the emails are about. But that idea of security for costs and the commercial risks of an inequitable party taking it against either individuals or media organisations.
Daniel Joyce: So it's a bit hard to know how to answer that in a way, but I guess, where you do have people funding potentially litigation, then that does, particularly where it can allow a matter to run a lot further than it might otherwise, then that might be something that the courts were willing to look at. But you need a kind of application to be made in relation to that. And I mean, in general…
Geraldine Doogue: The attorney general could do that couldn't it?
Daniel Joyce: Well, that's the system that we have is that sort of ‘everyone can have their day in court.’ But obviously, you have to carry this great risk around costs and you see that all the time in terms of public interest cases. Because in general, you know, there's not kind of a special regime to protect those pursuing public interest matters. If you lose, you pay the cost.
Chris Masters: And on the other hand, a lot of people who are defamed have no money, no power. And the media, of course, they've got deep pockets.
Daniel Joyce: Well, also I'm interested to hear from you about that as well, because that's something that in terms of a changing dynamic, and where power lies in society. Sometimes we have looked at the media, particularly bigger commercial media, as perhaps being sort of able to run these, you know, cases and so on. And I don't know if the economic landscape has changed.
Chris Masters: It has. I mean, when I did the Moonlight State, when we were talking about before, I sort of felt at the time that only the ABC would do that. Because, you know, they made decisions based on editorial principle. The commercial principle mattered but they backed their reporters. ABC didn't go near Ben Roberts-Smith. And it turned out that Channel Nine, you know, probably the only place in the media landscape in Australia. Sure, they didn't expect that the costs would go nearly as high as they did. But I couldn't see the ABC having done the Ben Roberts-Smith case.
Geraldine Doogue: I'm just gonna ask each of you very quickly to sum up, because this, to me, is the final, the nub of it.
Do we have the right balance between the need to protect and encourage high quality investigative journalism, with the threat of a post fact media, particularly in the times of social media? That is a totally fair question. So I want quick, quick responses, and then we'll close up and you can go and sign books, Chris.
Chris Masters: Well, I mean, the best thing about this outcome was you know, I do see it as a contest between truth and power. And, I don’t think that it will particularly – the experience can be any great encouragement to investigative journalism because of the massive costs. But I do think that it will deter the next Ben Roberts-Smith, and I think it's a terrific demonstrate question of why journalism is important. Daniel?
Daniel Joyce: Yeah. So look, I think drawing on that. I mean, sometimes we can be quite critical of the law, particularly legal academics. But in some ways, too, one of the things that I think was a really interesting theme in Chris's book was that, in some ways also, and we started the beginning, this relationship between media and law, in some ways, media and law helped each other here, and helped actually set the record as well. We might not have the evidentiary kind of record that we now do have without that interaction.
Geraldine Doogue: Douglas.
Douglas Guilfoyle: Not my field of law. So I'm just commenting as a citizen. But do we have the balance right at the moment? No.
Geraldine Doogue: It should be tighter. It should be more allowing.
Douglas Guilfoyle: I think Australian law has a chilling effect on journalism and whistleblowers, and that's not healthy for democracy.
Geraldine Doogue: All right. Well, ladies and gentlemen, please.
Geraldine Doogue: I think that was a very interesting conversation. And certainly, I've got story ideas popping out of my head and you might hear them followed up on Saturday Extra. So Chris Masters, Professor Douglas Guilfoyle, and Dr Daniel Joyce. I'm sure they'd be very happy to speak to you, but would you please thank them again for their time.
UNSW Centre for Ideas: Thanks for listening. For more information, visit centreforideas.com. And don't forget to subscribe wherever you get your podcasts.
Douglas Guilfoyle, Daniel Joyce, Chris Masters and Geraldine Doogue
Chris Masters is one of Australia's best-known, highly respected, and most influential investigative journalists. His stellar career has won him five Walkleys, including a Gold Walkley, and he has produced over 100 investigative reports, mostly for Four Corners. Masters remains at the top of his game: relentlessly, fearlessly and doggedly determined to expose the truth. Masters is Australia’s unofficial Afghanistan war historian and spent a total of three months embedded with Australian soldiers in Afghanistan in 2006 and 2010, including with special forces in 2011. He is the author of the bestselling Jonestown, Uncommon Soldier and No Front Line. His newest book is Flawed Hero: Truth, lies and war crimes which tells the shocking story of the case against Australia’s most highly decorated living soldier, Ben Roberts-Smith VC MG, and the defamation trial of the century.
Professor Douglas Guilfoyle is an international legal scholar and specialist in international criminal law and the law of the sea in the School of Humanities & Social Sciences at UNSW Canberra. His publications include a textbook, International Criminal Law, and articles on command responsibility and the future of the International Criminal Court. He has acted as a consultant to governments and international organisations and taught at Monash and University College London before joining UNSW. In 2024 he will be the visiting Lieber Scholar at West Point.
Dr Daniel Joyce is an Associate Professor at the Faculty of Law & Justice, UNSW Sydney. He specialises in international law, media law and human rights. Daniel is an Affiliated Research Fellow at the Erik Castrén Institute at the University of Helsinki, an Associate of the Australian Human Rights Institute, and a member of the Allens Hub for Technology, Law & Innovation. His monograph Informed Publics, Media and International Law was published by Hart in 2020.
Geraldine Doogue (Chairperson)
Geraldine Doogue is a renowned Australian journalist and broadcaster with experience in print, television and radio. She currently presents ABC RN’s Saturday Extra which specialises in foreign policy, regional issues, agenda-changing commentators, good books, and has been a reporter for The West Australian, The Australian, 2UE, Channel 10 and the Presenter/Creator of ABC RN’s Life Matters.
During her career with both the ABC and commercial media she has won two Penguin Awards for excellence in broadcasting from the Television Society of Australia and a United Nations Media Peace Prize. In 2000 Geraldine was awarded a Churchill Fellowship for social and cultural reporting. In 2003, she was recognised with an Officer in the Order of Australia for services to the community and media. Geraldine tackles a wide range of subjects with rigour, optimism, humour and warmth.