ABC is accused of engaging in a ‘culture war’ after losing defamation case to Australian special forces commando
Story by Lauren Ferri For Nca Newswire • 2hr
The ABC and its journalists engaged in a ‘culture war’ with other media and became defensive about its reporting on war crimes when former special forces commando Heston Russell tried to clear his name, a Federal Court judge has found.
Mr Russell sued the ABC and two investigative journalists over stories published in 2020 and 2021 that he claimed made it look like he was being investigated for shooting an unarmed prisoner.
Federal Court Justice Michael Lee awarded the former soldier $390,000 in damages after finding the ABC could not prove the articles were published in the public interest.
The stories Mr Russell sued over, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online in October 2020 and more than a year later in November 2021.
The court was told the allegations arose from a US Marine named ‘Josh’, who contacted Willacy about his time in Afghanistan working with Australian soldiers and said he was not a witness but heard a ‘pop’ on the radio he believed was a gunshot.
Evidence tendered to the court revealed Josh told Willacy his memory was ‘fuzzy’ and he couldn’t remember all the details about the allegation.
He also couldn’t tell Willacy who was involved specifically, just that it was an Australian group of soldiers.
The first article relied on the evidence of Josh, while the second article was based on an unsuccessful freedom of information request about a criminal investigation into the conduct of an Australian commando platoon in Afghanistan in 2012.
Justice Lee found the ABC had acted defensively from the moment the articles were published through to the time of the trial.
After the publication of the articles, Justice Lee found a ‘highly defensive mentality arose within the ABC in relation’ to Willacy’s work, with the ABC sparking a ‘culture war’ against other media.
Shortly after the October article was published, The Daily Telegraph’s Jonathon Moran published an article titled ‘Heston Russell: Ex-commando says alleged Afghan murder never happened’.
Justice Lee said for ‘reasons that are unclear … the broadcaster thought it necessary to criticise’ the article in forceful terms and ‘dismiss, in a supercilious tone’ Moran as an ‘entertainment writer’.
The ABC then published a detailed press release that branded the article a ‘weak attempt to undermine the ABC’s important journalism on the topic’ and reproduced the questions posed to the ABC by Moran, with Justice Lee saying it ‘undermined’ Moran’s account of the exchange.
In the release, the ABC said it stood by the reporting done by ‘award-winning journalist Mark Willacy’ and, according to Justice Lee, it ‘implied the veracity and gravity of the ABC’s reporting’.
During this time, Willacy was in contact with Josh and told the source to stand by the story.
‘Let me know if you hear from any Aussie journos!’ Mr Willacy wrote in an email after the phone call.
‘But as suggested, I’d just say I stand by my account, read the ABC story, and I won’t answer any questions. Murdoch’s people are tabloid bottom-feeders …’
During cross-examination, Mr Russell’s barrister Sue Chrysanthou SC asked Willacy about the comment, pointing out his colleague, Robertson, worked at a News Corp newspaper for seven years.
Willacy responded: ‘Then he went to the Guardian … He obviously tried to absolve himself of all those sins’.
Judge Lee said it was clear Willacy considered working for News Corp ‘required expiation of sin’ and confirmed the mentality within ABC Investigations.
Prior to the publication of the November article, ABC head of investigations Jo Puccini sent an email to Robertson regarding Mr Russell’s access to the media.
In a draft of the November article, a comment was included from Mr Russell calling for an apology for the first article.
At first she approved the comment from Mr Russell, only to change her mind 20 minutes later.
‘Just thinking do we need the ‘apology’ comment? He’s had a Huge platform on 2GB. I don’t know that we need to amplify it. Especially when we know what we know about him. Thoughts?’ she wrote.
Once the article was published, Puccini then took to Twitter, now X, with a link to it and an assertion 2GB should correct its stance on the Josh allegations.
A press release was also issued following the publication that Justice Lee described as ‘self-congratulatory’.
In his judgment, Justice Lee detailed further examples of what he described as ‘persistence of the conflict perceived by the ABC’.
This includes when Willacy had a ‘frank’ conversation with 2GB producer James Willis following publication.
‘Mr Willacy gave evidence he was aware that 2GB had been engaging in a campaign alongside Heston Russell to criticise the October article and November article,’ Judge Lee wrote, and Mr Fordham had ‘covered the issue more than a dozen times’.
‘Upon receipt of a media query from 2GB in relation to the ABC’s defence of this proceeding, Mr Willacy determined to call Mr Willis … both Mr Willacy and Mr Willis recalled a tense exchange which apparently descended into a barrage of assertions as to how each media organisation operates.’
The judge also criticised the Investigations team’s response to criticism from Media Watch in the months following the publication of the articles.
Media Watch had sent a number of questions to ABC Investigations in December 2021, questioning why the journalists didn’t interview a second member of the crew or ask Mr Russell for a response once he outed himself as commander of November Platoon.
Justice Lee said one might have thought the ‘well-directed questions may have resulted in introspection and mature reflection upon whether the reporting was open to fair and legitimate criticism’.
‘After all, these queries were not emanating from sections of the media that could be dismissed by those within ABC Investigations as ‘bottom feeders’ or protagonists in a culture war,’ Justice Lee wrote in his judgment.
‘But the internal communications in evidence reveal defensiveness and a perception that any questioning of the October article or November article undermined the important war reporting of ABC Investigations generally.’
Justice Lee described both Willacy and Puccini as ‘combative witnesses’, with the latter becoming frustrated at times by her participation in a ‘process by which the ABC’s conduct was being questioned’.
He found some of Puccini’s answers were ‘odd’, such as her assertion she could not remember her involvement in ‘preparation of the press release published in the wake of the short-lived abandonment of the public interest defence’.
In the weeks leading up to the trial, the ABC was ordered by Justice Lee to hand over unredacted documents identifying Josh.
But the national broadcaster made a surprise move by dropping the public interest defence entirely, conceding Mr Russell would be entitled to judgment.
Following a case management hearing on July 12, the ABC issued a press release stating: ‘Commitments made and kept by journalists to sources are central to ensuring journalists retain the ongoing trust of people speaking truth to power.’
Just two days later, the ABC’s barrister Nicholas Owens SC fronted Justice Lee and reinstated the defence on the condition Willacy did not have to reveal his source.
In his judgment, Justice Lee found the press release was ‘misleading’ and acknowledged ‘no responsibility’ on the ABC’s part for its own ‘editorial choices’ that meant it could not reveal the source.
‘The press release was an exercise in damage control expressed in such a way as to hold up ABC Investigations as an exemplar of journalistic standards against an overreaching court,’ Justice Lee said.
‘Evidently, the ABC wanted to promote the message that the court was forcing its journalists to reveal their sources when, in truth, the ABC had been responsible for its inability to maintain the statutory source privilege.’
He found journalists at ABC Investigations equated any criticism of the reporting as ‘volleys in a culture war’, with the broadcaster having a desire to ‘defend its reporting and prove critics wrong’.
The judge said the ABC was of the belief the criticism was ’emblematic of a broader culture war attack’ on all war crimes reporting by its journalists.