The Canberra Times

What should the Australian War Memorial do with its heroic portraits of Ben Roberts-Smith?

Retrieved on: 
Monday, June 5, 2023
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Justice Anthony Besanko ruled the newspapers had established, by the “balance of probabilities” (the standard of evidence in a civil lawsuit), that Roberts-Smith had committed war crimes.

Key Points: 
  • Justice Anthony Besanko ruled the newspapers had established, by the “balance of probabilities” (the standard of evidence in a civil lawsuit), that Roberts-Smith had committed war crimes.
  • Following the ruling, much public debate has focused on what the Australian War Memorial should do with Robert-Smith’s uniform, helmet and other artefacts of his on display.

The case of the oil paintings

    • The memorial also has two heroic oil painting portraits of Roberts-Smith by one of Australia’s leading artists, Michael Zavros.
    • These paintings were commissioned by the memorial in 2014.
    • Pistol Grip (Ben Roberts-Smith VC) is a larger-than-life-sized depiction of Roberts-Smith, camouflage arms outstretched, mimicking the action of holding a pistol.

Moral and ethical ambiguity

    • In 1992, the Canadian Airborne Regiment was deployed as peacekeepers to Somalia.
    • In 1993, 16-year-old Shidane Arone was found hiding in the Canadian base, believed to have been stealing supplies.
    • Master Corporal Clayton Matchee and his subordinate Private Kyle Brown were charged with his murder and torture.
    • It addresses an ethical grey area many soldiers face during active service when the hierarchy of command comes into direct conflict with conscience.

The complexity of contemporary art

    • Brandon’s curatorial decision to display Kearns’s Somalia paintings strike at the heart of what is special and important about contemporary war art in a national museum.
    • Contemporary art presents ethical and moral complexity, grey zones and a range of perspectives.
    • The portraits should be displayed in ways that address this complexity, capturing the evolving story of Roberts-Smith in explanatory wall text.
    • The most compelling contemporary art works – and the most valuable museum displays in our national institutions – are those that consider our complex stories, raise important and self-reflective questions, and challenge simplistic narratives.

'Dismissed': legal experts explain the judgment in the Ben Roberts-Smith defamation case

Retrieved on: 
Friday, June 2, 2023
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The civil trial ended in July 2022 after an astonishing 110 days of evidence and legal submissions.

Key Points: 
  • The civil trial ended in July 2022 after an astonishing 110 days of evidence and legal submissions.
  • Besanko determined the newspapers did establish the “substantial truth” of some of the allegations, though not of others.
  • Read more:
    A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?

Substantial and contextual truth

    • Besanko also found allegations of bullying by Roberts-Smith to be substantially true, but did not find that the newspapers had established the substantial truth of the domestic violence allegations.
    • The “contextual” truth changes came in a push to have uniformity in defamation laws back in 2005.
    • Under the law, they needed only to show the “substantial” truth of what they had alleged.
    • Because the papers were able to establish the substantial truth of key aspects of the reporting, Roberts-Smith’s case failed.

What happens next?

    • The newspapers requested three weeks to consider how much to seek for costs and third-party costs.
    • There’s little doubt that both sides have each spent millions on their respective legal teams.

A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?

Retrieved on: 
Thursday, June 1, 2023
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An appeal may still be on the cards, but this is a high-profile loss for a very prominent person.

Key Points: 
  • 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.

Journalists reporting on the Voice to Parliament do voters a disservice with 'he said, she said' approach

Retrieved on: 
Tuesday, May 2, 2023
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Australia has not escaped, although the consequences here have been nothing as compared with Brexit or the insurrection in Washington on January 6, 2021.

Key Points: 
  • Australia has not escaped, although the consequences here have been nothing as compared with Brexit or the insurrection in Washington on January 6, 2021.
  • Social media has been the primary agent of this democratic dysfunction, but parts of the professional mass media have also contributed.
  • The Voice referendum, with its impassioned arguments on both sides, presents the Australian media with an opportunity to show their capacity for truth-telling and impartiality.
  • The result is that absurd or far-fetched propositions go unchallenged other than by an opposing political voice.
  • The starkest examples come from stories about the scope and power of the proposed Voice.
  • An example was a front-page story in The Australian, amplified by Sky News, in which Opposition Leader Peter Dutton said the Voice could offer advice on interest rates.
  • Attempts like this to panic the population have their parallels in the scaremongering over native title 30 years ago.
  • Read more:
    What happens if the government goes against the advice of the Voice to Parliament?
  • A third argument is that the Voice is a mechanism to enshrine racial difference as a feature of the Constitution.