The case of Ben Roberts-Smith reveals the dark side of our military – and our nation
Yesterday, the Federal Court of Australia closed a significant chapter in the story of Australia’s involvement in the 20-year misadventure that was the Afghanistan war. Justice Anthony Besanko found The Sydney Morning Herald, The Age and The Canberra Times, all owned by Nine Entertainment, had shown Victoria Cross recipient Ben Roberts-Smith to be a war criminal and a bully who was involved in the unlawful killing and assault of unarmed Afghan prisoners and civilians.
It’s important to remember that it was Roberts-Smith’s Thor-like hubris that saw him bring the defamation action in the first place. While it remains to be seen whether a criminal charge will be brought, the Federal Court’s findings mark a tawdry end to Australia’s ill-conceived involvement in a war of waste, carnage, deception and sacrifice by our armed forces, and the death of between 40,000 and 70,000 Afghan civilians.
One of those civilians, father of six Ali Jan, was kicked off a cliff by Roberts-Smith, who then ordered soldiers under his command to shoot the severely injured man. Ali Jan’s death was one of five murders the newspapers alleged Roberts-Smith was involved in – four of which were found by Justice Besanko to be substantially true. (Justice Besanko’s full judgement is not yet available due to the prudent intervention of the Commonwealth to ensure no national security information will be inadvertently released.)
The extraordinary findings of “substantial” or “contextual” truth means the reputation of Roberts-Smith – once the golden child of Australia’s Afghanistan involvement – is now in tatters. His moral character has been proven to be as bankrupt as his financial position is likely to be once damages are determined. But it also tells us a great deal about ourselves as a nation.
Yesterday was a win for investigative journalism and a vindication for the two key journalists involved: Nick McKenzie and Chris Masters. Anyone with even a passing interest in journalism in this country knows Masters and McKenzie have reputations for meticulously establishing the facts of any story they pursue. McKenzie told ABC Melbourne, “Our journalism was exhaustive. It was done in the public interest, it was done very carefully.” He noted that, within Australia’s defamation law, journalists and media outlets don’t have a “sound” public-interest defence available. “That was not open to us. So, we had to rely on the defence of truth.”
However, the victory should not be seen as establishing a new standard for the defence of public-interest journalism. In fact, the result is a distant outlier. This was a rare and expensive instance in which a media group was prepared to go all the way in defence of its stories, under onerous defamation laws where substantive truth is a costly bar over which to jump. It took 110 days of evidence (through a pandemic, no less), 41 witnesses, an estimated cost of $25 million and the public reputational destruction of one Australia’s most highly decorated soldiers for that bar to be jumped. The risks to the three mastheads were extremely high. “Had we lost today’s case,” McKenzie told ABC Melbourne, “having mustered all these witnesses to court to testify – eyewitnesses about these breaches of the laws of armed conflict – had we lost this case, investigative journalism would’ve been in a dire state in Australia.”
Ben Roberts-Smith has today resigned from Kerry Stokes’s Seven Network, which was believed to have provided a loan of $2 million to fund the disgraced soldier’s defence. Stokes has been Roberts-Smith’s main financial and public backer, reportedly describing those daring to challenge the former soldier’s account of his actions in Afghanistan as “scumbag journalists”. Yesterday’s decision must also reflect on a billionaire media proprietor whose blind loyalty to an assumed war hero risked dramatically undermining journalism and freedom of the press.
In the end it was some of Roberts-Smith’s fellow soldiers who came forward with the truth. It proves that sometimes, just sometimes, the fog of war can be cut through by those who are prepared to stand up and speak the truth – no matter the danger, no matter how secretive the code between the military’s elite.
It will bring little comfort to all those involved, and it won’t restore the many hours of lost sleep under the threats, legal and otherwise, from Roberts-Smith and his backers. But the findings will have brought a degree of justice to those who suffered at the hands of an “ostentatious psychopath”, as McKenzie described Roberts-Smith last night on 7.30.
The rise and plummet of Roberts-Smith has occurred in the context of an increasingly nationalistic Australia where, it seems, the further distanced in living memory we have become from the First and Second World Wars, the more the legend of the Anzac has been used by leaders of all persuasions to justify not only our involvement in American theatres of war but also the actions of those who serve in them. When the allegations were first published in 2018, it was seen by Robert-Smith’s legal team and financial backers as an affront to diggers everywhere, a case of tall-poppy syndrome. “Unless there have been the most egregious breaches of laws of armed conflict, we should leave it all alone,” said the former minister for defence, Brendan Nelson, in 2018. “War is a messy business.”
War is indeed a messy business, but it is a business that our political class has proven all too willing to embrace. If only truth was embraced just as strongly.
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Daniel James
Daniel James is an award-winning writer and broadcaster. He hosts the radio show The Mission on 3RRR FM.
