Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223

At a glance

  • In September 2022, Heston Russell, a former Major and Commando Officer within the Special Operations Command of the ADF initiated proceedings against the ABC and two investigative journalists.
  • In February, the Federal Court found that the publications defamed Mr Russell. Initially, the ABC sought to rely upon the truth defence in response. However, the ABC later dropped this defence, and pursued the defence of public interest instead.
  • This article covers the outcome of the ABC’s public interest defence, and next steps in the case which returns on October 24.

 

 

Background

In September 2022, Heston Russell, a former Major and Commando Officer within the Special Operations Command of the Australian Defence Force (ADF), initiated proceedings against the Australian Broadcasting Corporation (ABC) and two investigative journalists, Mark Willacy and Josh Robertson. Central to the proceedings were several publications by the ABC in 2020 and 2021, which linked Mr Russell to an alleged criminal investigation into the execution of an unarmed Afghan prisoner. The claim arose when ex-US Marine, pseudonymously known as “Josh,” contacted journalist Mr Willacy regarding the conduct of the November platoon in Afghanistan in 2012, a unit commanded by Mr Russell at the time.

In February, the Federal Court found that the publications defamed Mr Russell by conveying that he was “the subject of an active criminal investigation into his conduct” and “reasonably suspected…of committing a crime or crimes when he was a commando in Afghanistan”. Initially, the ABC sought to rely upon the truth defence in response. However, the ABC later dropped this defence, and pursued the defence of public interest instead.

The core issue at trial for Justice Michael Lee was the reasonableness of the ABC’s belief that their reporting was in the public interest. This case marks the first test of the new public interest defence, introduced in Australia’s defamation law reforms in July 2021.

The Law: Section 29A of the Defamation Act

The new defence of public interest was introduced in section 29A of the Defamation Act, which comprises three elements:

  1. The matter concerns an issue of public interest.
  2. The publisher believed the publication of the matter was in the public interest.
  3. The publisher’s belief was reasonable in all the circumstances of the case.

Justice Lee concluded that section 29A employs the concept of “public interest” in two distinct ways. His Honour explained that subsection 29A(1)(a) emphasises the relevance of the publication to “an issue of public interest,” which is an objective determination, whereas subsection 29A(1)(b) requires a value judgment to determine if the publication itself was “in the public interest.”

Further, the ruling confirmed that the publisher must genuinely believe that publishing the matter serves the public interest, and this belief focuses on whether it was in the public interest to disseminate the specific content in question. Significantly, His Honour noted that this defence does not hinge on the accuracy of the content but rather on the publisher’s belief.

The success of the ABC’s defence turned on whether they could prove the third element – reasonableness. Justice Lee emphasised the need to consider all circumstances to determine reasonableness. Such factors include, but are not limited to:

    • the seriousness of any defamatory imputation
    • the source of the published information
    • steps taken to verify the information, and
    • any attempts to obtain and publish a response from the affected party.

Outcome: Rejection of the Public Interest Defence

On October 16, 2023, the Federal Court rejected the ABC’s public interest defence. Justice Lee found that the ABC had a subjective belief that their publications were in the public interest. However, this belief was not deemed reasonable in all the circumstances. His Honour observed that the November 2021 article had overstated the strength of the evidence in the ABC’s possession.

His Honour accepted that results of an FOI request issued by the ABC had confirmed that an investigation was underway, however, it was not reasonable to infer that the November platoon was the subject of that investigation. The court considered that Josh’s account lacked specificity and deemed it vague. Justice Lee emphasised that thorough verification was paramount when dealing with such allegations.

His Honour identified various shortcomings in the conduct of Mr Willacy and Mr Robertson. He criticised Willacy’s drafting as it failed to sufficiently distinguish between suspicions, allegations, and facts. Justice Lee found the urgency to publish the article was fuelled primarily by commercial and vindicatory motives. In the case of Mr Robertson, his involvement included altering Willacy’s draft to suggest that the ADF had confirmed the investigation and failing to differentiate between suspicions, allegations, and proven facts effectively. Moreover, the court determined that Mr Robertson’s conduct could not fulfill his independent duty to gather and consider a well-informed response from Russell before publishing the story. Accordingly, neither party met the burden of demonstrating that their belief in publishing the November article in the public interest was reasonable.

Damages

The respondents did not contest that Mr Russell had suffered harm due to the impugned publications in their closing submissions. However, they questioned the severity of the damage and raised concerns about certain aspects of Mr Russell’s evidence, particularly concerning aggravated damages. Justice Lee described Mr Russell’s performance as a witness as unimpressive. He frequently provided uncooperative responses and was reluctant to concede points that went against his case. Consequently, the court found his evidence unreliable. When assessing damages, Mr Russell’s request for aggravated damages was unsuccessful. Justice Lee awarded Mr Russell $390,000 in compensatory damages.

Looking ahead

The Federal Court’s rejection of the ABC’s public interest defence highlights a crucial balance. On one hand, it affirms that a higher level of public interest does not excuse a more considerable margin of error in what is published. On the other hand, the new public interest defence highlights the indispensable role of public interest reporting in upholding a robust democratic discourse.

Justice Lee pointed out that “the facts of this case do not present a good vehicle for demonstrating that the defence has real work to do in making appropriate allowances for editorial judgment and recalibrating the balance between two important rights which often exhibit tension: the right to freedom of expression on matters of public interest and the right to reputation.” This case has provided a valuable initial assessment of the application of s 29A. Observing how subsequent case law interprets and puts into practice the provisions of s 29A will be interesting.

Mr Russell’s legal team intends to pursue indemnity costs for the entire proceeding, citing a settlement offer as the basis. Mr Russell made an offer to the ABC in mid-September last year that amounted to $99,000 and included taking down the articles.

The case will return to court on October 24.