High court

• An appeal may still be on the cards, but this is a high-profile loss for a very prominent person.
• More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation.
• Read more:
  Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations

What was this case about?

• The case centred on several defamatory meanings (or, as they’re known in defamation law, “imputations”) that Roberts-Smith said the papers had made against him.
• Among these were that he’d killed unarmed Afghan male prisoners and ordered junior soldiers to execute others in Afghanistan between 2006 and 2012.
• That means to win this case, they needed to prove the meanings conveyed by their reporting – even if those meanings were unintended – were true.
• Besanko, reading a summary judgment today, said the newspapers were able to establish the substantial truth of some of the most serious imputations in the case.

What does this case tell us about defamation in Australia?

• But the fact this widely scrutinised case yielded such astonishing testimony, day in and day out, shows how risky it is to use defamation law to restore perceived injury to one’s reputation.
• Defamation law is seeking to correct people’s views about the plaintiff.
• But it’s open to doubt that defamation law is actually any good at securing its own stated purpose of changing people’s minds about the plaintiff.

The 2021 defamation law reforms

• The law that applies in the Roberts-Smith case is the defamation law we had before major reforms introduced in July 2021 across most of Australia.
• These reforms introduced a new defence known as the public interest defence.
• If a case like this were litigated today following these reforms, it is highly likely the publisher would use the new public interest defence.

• When making the announcement, Immigration Minister Andrew Giles said this would end the limbo for refugees after they had “endured ten years of uncertainty”.
• Known collectively as the “legacy caseload”, their refugee status was subject to a “fast track” process.

The trauma of uncertainty

• The minister’s recognition of the impact of visa uncertainty resonates with recently published research we conducted with lawyers and migration agents who work with this group.
• This research adds to existing evidence about the negative impact of temporary visas on the mental health of asylum seekers.
• This research reveals how the government can use a trauma-informed approach to end visa uncertainty and create a shared future.

Resolution of Status Visas

• Refugees who currently hold TPVs and SHEVs will be eligible for a permanent Resolution of Status Visa.
• Processing is under way and as of late March 2023 100 visas have already been granted.
• Permanent visas will mean refugees can begin the process of family reunion after over a decade of separation.

What happens to those who do not hold a TPV or SHEV?

• Statistics published by the department in February 2023 state there are 9,861 people who have been through the fast-track process and were refused visas.
• If they are then found to be a refugee, they would be eligible for a Resolution of Status Visa.
• Flaws in the fast-track process and in particular with the review process of the IAA have been documented previously.
• What changes, if any, might be made are unclear, but this group of people face ongoing limbo.

Deterioration in mental health is directly linked to treatment

• In 2018 and 2019, we surveyed and interviewed lawyers and migration agents who worked directly with clients going through the “fast track” assessment process.
• They heard stories of overwhelming emotions (for example, despair and anger) as well as witnessing self-harm and suicidal behaviour.
• A key driver of people’s mental distress was their inability to apply for a visa for several years.
• This was followed by a difficult and fast-paced application process in which they were expected to relay their stories of persecution.

• The permit was eventually granted because the application was lodged just before the government’s 2018 offshore exploration ban was in place.
• The High Court ruled it should therefore have been considered under the previous system.
• Between 2008 and 2017, Aotearoa New Zealand’s offshore environment was opened up for further oil and gas exploration on the promise of economic growth and energy independence.

Deep Water Horizon and the Rena

• Read more:
  The Bay of Plenty oil spill: loading the dice against disaster

  First, the Rena disaster occurred in Tauranga, off the east coast of the North Island.

• The Rena was a container ship that ran aground on the Ōtāiti/Astrolabe reef in October 2011 while on its way into Tauranga Harbour.
• The second event, the Deepwater Horizon oil spill in the Gulf of Mexico, sensitised the public to the risks of offshore oil extraction.

Petrobras and the Raukūmara Basin

• Petrobras had secured a five-year permit to explore for oil and gas under block offers released in 2010.
• Nevertheless, Petrobras informed Te Whānau-ā-Apanui that they would begin their seismic survey work in early 2011 and began work in April using the large survey vessel, the Orient Explorer.
• Read more:
  Why New Zealand should not explore for more natural gas reserves

  Opposition to Petrobras began quickly both onshore and offshore, demanding “no drill, no spill”.

The ‘Andarko amendment’

• It was also a silent partner to the Deep Water Horizon rig responsible for the massive spill in the Gulf of Mexico.
• The Minister for Energy and Resources at the time said the protesters shouldn’t be trying to stop other people going about their lawful business.

Change and uncertainty

• This is an edited extract from Stopping Oil: Climate Justice and Hope by Sophie Bond, Amanda Thomas and Gradon Diprose (Melbourne University Press).
• Amanda Thomas has recevied funding from Deep South National Science challenge in the past to research community responses to climate change.
• Gradon Diprose has received funding from Deep South National Science Challenge to research adaptation to climate change in Aotearoa New Zealand.