Politics
Lessons from the Ben Roberts-Smith defamation case
So far the media’s coverage of the case has been mainly about Ben Roberts-Smith’s personal behaviour. Nine Entertainment (The Age and The Sydney Morning Herald) and individual journalists must have had plenty of articles sitting in their hard disks waiting for a judgement. Nick McKenzie of The Age and Sydney Morning Herald goes into a great deal of such hitherto bottled-up reporting: – Stick to the code: New tapes reveal Ben Roberts-Smith’s campaign to silence soldiers.
On different angle another Age-Sydney Morning Herald article, by barrister Matt Collins –Ben Roberts-Smith took the fight to The Age and The Sydney Morning Herald – it was a disastrous miscalculation – goes into the risks and asymmetric costs of defamation:
The temptation for all media, in the face of the eye-watering costs and risks involved in preparing and then defending serious investigative journalism, is to retreat to cheaper and safer options; to prefer trivia over substance and comment over news. We may never know what important stories are spiked, or never pursued in the first place, because a publisher or broadcaster does not have the appetite or resources to fight for the public’s right to know.
Writing in The Conversation, David Rolph of the University of Sydney tells us what the judgment reveals about defamation law. He explains the defamation law concepts of “substantial truth” (the tougher criterion for an accusation) and “contextual truth” (the fallback). He warns anyone contemplating a defamation case:
… the law is a very blunt instrument. It’s very hard to get people to change their minds about what they think of you.
A more detailed explanation, including a legal description of defamation, is given by Ricardo Villegas and Rick Sarre of the University of South Australia, also writing in The Conversation.
This case was adjudicated on the basis of defamation laws in effect before there were reforms in 2021, which introduced a public interest defence. Rolph suggests that if the case were to be litigated under present law the publishers would use that new defence.
This civil case is legally separate from the issue of possible war crimes, which has been the concern of the 2020 Brereton report. The Parliamentary Library has a neat explanation of the Brereton Report, with links to relevant material.
The focus of the Brereton Report is a military-legal one, concerning possible war crimes. Writing in The Conversation –Australian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story –Dean Aszkielowicz and Paul Taucher of Murdoch University describe what would be involved in a war crimes trial and the importance to Australia of being seen as “a champion of the laws and proper conduct of war”.
The defamation case and its judgement should raise public issues, lacking the media appeal of stories about one person’s behaviour and possible war crimes, but which are also important concerns of public policy.
One is the culture and command structure in elite units, covered to a certain extent in the heavily-redacted Part 3 of the Brereton Report, which considers:
the strategic, operational, organisational and cultural issues which may have contributed to the creation of an environment in which this conduct [alleged war crimes] could take place; why the mechanisms of the Australian Defence Force for inquiries and oversight failed to detect it; and the responsibility of commanders.
The relevant recommendations in the Brereton Report have been implemented in a reform plan adopted by the Department of Defence, covering organizational, command and cultural matters. This appears to be a response in line with sound organizational behaviour practice, with an emphasis on ensuring that special forces do not develop a culture that becomes detached from the general military culture.
Although the specific context of the case is a military one, it raises issues relevant to the government as a whole, particularly in relation to the responsibilities of those who believe they have been given an illegal order, or lied to by those further up the chain of command – issues that came to the fore in the Robodebt inquiry.
Retired army major-general Mick Ryan, writing on the ABC website, raises the question of the responsibility senior officers should bear for unethical conduct down the line. The military makes this task difficult for itself in its separation between “officers” and “other ranks”. In most large organizations hierarchical separation between senior managers and front-line supervisors (the civilian equivalent of corporals and other NCOs) mean that those at the top can be oblivious to bullying, misogyny, racism and other dysfunctional behaviour by managers at lower levels, who are often adept at conveying a positive impression to their own bosses.
The case also raises questions about wider issues of group loyalty, namely the extent to which people’s loyalty to a small group often runs counter to the interests of the larger group of which it is a part. That’s an age-old tension.
More revelation of Coalition corruption – the Community Health and Hospitals Program
The Australian National Audit Office has come down hard on yet another Coalition program of discretionary grants – the Community Health and Hospitals Program. Established in late 2018, it involved $2 billion in grant and other funding to primary health networks, non-government organisations and state and territory governments.
The ANAO reports that the Health Department’s administration of the scheme was “ineffective and fell short of ethical requirements”, in large part because there was no evaluative framework included in the program’s establishment.
Even though in its assessment plan Health had proposed that only “highly suitable” projects should be short-listed for further consideration, only 2 out of the 63 national partnerships funded by the program were assessed by the department as “highly suitable”. The ANAO found that effective management of the program “was undermined by deliberate breaches of the Commonwealth Grants Rules and Guidelines and failure to advise government where there was no legislative authority for grant expenditure”.
It also found that 60 percent of the projects were in marginal electorates.
You can hear Helen Haines, Independent Member for Indi, describe the Auditor’s findings, on the ABC’s Drive: Scathing report of Morrison-government's health funding program released. (10 minutes) She is “shocked that any government could go that low”, and is seeking to see measures to prevent the current government, or any future government, from treating scarce public funds so irresponsibly.
It seems, from the ANAO report, that the Morrison government rushed the program in the period before the 2019 election. Funding for at least 35 of the programs was announced between February 2019 – just two months after the program’s inception – and May 2019, when the election was held.
Social progress – poor marks for Australia on housing and the social wage
The Social Progress Imperative, a US-based non-profit organization, assesses the social and environmental performance of 169 countries.
Its website, which opens on its social progress index map offers many ways to read its assessments for 2022. Geographically it shows the stark contrast between western Europe and Africa, with most other countries somewhere in between. In a pattern that is common in such indicators the Nordic countries occupy the top ranks, while the lowest ranked countries are mainly in Africa.
Notably, as in many similar indicators, the US is quite a long way down the list: #8 on GDP per capita but #25 on social progress.
Australia, by contrast, is at #16 on GDP per capita but #12 on social progress. It’s informative to look at our scorecard, with its 12 categories and 63 sub-categories of well-being. We rank highly on “access to advanced education”, for example, and on “water and sanitation”. Some may be surprised that we rank very well – #4 – on “intimate partner violence”.
We may be equally surprised to learn that we rank poorly – #81 – on “freedom of peaceful assembly”.(The survey pre-dates the recent South Australian legislation.) A survey of this type, taken 20 years ago, would have ranked us well on “shelter”, but we are at #81, pulled down to position #106 for “dissatisfaction with housing affordability”.
There are two indicators – “equal access to quality education” and “equal access to quality healthcare” where we rank relatively poorly (#46 and #43). These are two essential elements of the social wage, to which Labor governments have traditionally been committed by principles of universalism. These poor rankings should be a wake-up call for the Albanese government.
South Australia’s Putinesque anti-protest law
OK in Canberra but be careful in Adelaide
An Extinction Rebellion protest, in which a demonstrator was dangled off Adelaide’s Morphett Street Bridge, blocking North Terrace, prompted the South Australian Parliament to rush through Parliament tough new penalties – up to $50 000, plus costs, for protestors who cause traffic disruptions.
It’s hard to see how this particular demonstration provoked such a quick and strong response. Because Adelaide is on a regular grid, any blockage is easy for traffic to get around.
Sarah Moulds of the University of South Australia, writing in The Conversation, notes that South Australia is only the latest state to pass such legislation: Laws targeting protesters are being rushed through state parliaments. But they are often poorly designed and sometimes, unconstitutional.
Of most concern is the way the South Australian laws passed so easily through Parliament, the Liberal Party opposition having waved them through the Legislative Assembly. It was only in the Legislative Council that Greens and other “crossbench” members managed to bring on a debate, achieving at least one minor amendment.
Extinction Rebellion protestors, in focusing their protests on inner-city areas, demonstrate an uncanny ability to piss off those urban dwellers who are most likely to agree with their cause. They don’t evoke a great deal of sympathy, even from the “left”. But the point made by Sarah Moulds, by those concerned with civil liberties, and by others concerned for the strength of our democracy, is that we have no explicit freedom of association, only an implied freedom of political communication as can be inferred in our Constitution. There is no constraint on the interpretation of these laws.
Governments may reasonably legislate to prohibit forms of protest that are highly disruptive or dangerous to the public, but these laws are generally so loosely drafted that they could be used to prohibit virtually any form of public political protest.