Defamation : Federal Crt Australia that has drawn a distinction between "foreign interference" and "spying" now finds that Australia's most highly decorated soldier committed murder when serving in Afghanistan
by Ganesh Sahathevan
Justice Anthony Besanko (of the Federal Court , Australia) found that, on the balance of probabilities, Roberts-Smith, Australia’s most decorated living soldier, kicked a handcuffed prisoner off a cliff in Darwan (Afghanistan) in 2012 before ordering a subordinate Australian soldier to shoot the injured man dead.
The finding was part of a decision in a defamation matter. However, it should be noted Australian courts have applied something closer to the higher criminal standard in white collar crimel cases.
Additionally, the same Federal Court has held in a previous defamation matter that the plaintiff had been defamed because the publisher concerned had failed to draw a distinction between "foreign interference" and "spying".
To Be Read With
While each decision in each case is determined on its particular facts comments made by judges in the course of hearings can and do influence their decisions and those decisions can have consequences.
In a recent hearing before the Federal Court in a defamation matter brought by Chau Chak Wing against the ABC the judge hearing the matter, Steven Rares J, commented:
"If you (the ABC) had said foreign interference you'd not have a problem ... you've said he's a spy,"
As a result of the comments the ABC appealed to the Full Court of the Federal Court, who decided against the ABC. The matter re-commenced in the Federal Court before Rares J who then handed down a judgement which included these paragraphs:
RARES J:On 31 August 2018, I struck out the particulars of justification in the defence of The Australian Broadcasting Corporation, Fairfax Media Publications Pty Limited and their journalist, Nick McKenzie (the publishers). The publishers appealed to the Full Court, which granted leave to appeal, but dismissed the appeal on 2 August 2019: Australian Broadcasting Corporation v Wing (2019) 371 ALR 545. As a result of remarks I made during the course of argument of the strike out application on 27 June 2018, the publishers began to gather more information to supplement what they had alleged against, the applicant, Dr Chau Chak Wing, whom I erroneously named as Dr Wing in my previous reasons.
The publishers’ assertion is that, on its face, the mere payment of the USD200,000 to secure Mr Ashe’s appearance at the 2013 conference in his role as President (or to consider future use of the Resort) is enough to constitute it as (or as capable of being found to be) a bribe to him. In my opinion, that inference does not arise. The payment to the operating account of the USD200,000 may simply have been an appearance fee paid to him, in his official capacity, to be used for United Nations purposes, or, as Dr Chau is said to have told the FBI, for the alleviation of poverty. While it is clear that Ms Yan and Ms Park, whose guilty pleas are, in my opinion, irrelevant for the purposes of evaluating the strength of the particulars, were involved in securing the payment of bribes to Mr Ashe, there is no material to establish that they admitted that they had procured the USD200,000 as a bribe. Mr Ashe’s 29 October letter, in the final form that Ms Yan had suggested when he accepted the invitation, made clear that Ms Yan, as Mr Ashe’s (not Dr Chau ’s) agent in his official capacity, would be “finaliz[ing] the logistical arrangements for the complete trip”.
As as result of the judgement and the decision it appears now that when publishing anything on intelligence and national security matters one must have evidence of actual "spying"(which remains undefined for the court did not describe what it meant by spying, or by foreign interference) before any allegation of "spying" might be safely mentioned.
The decisions exposes open source intelligence (OSINT) practitioners, including members of thinks tanks, academics and journalists who are not part of any government to actions in defamation which can be brought by anyone who is subject of research and publication.
This can have a chilling effect on Australian or Australian based researchers who work on the growing volume of open source intelligence. Of concern also is the dismissive attitude that Rares J seems to have taken towards statements made in Parliament by Andrew Hastie (see also story below.
It is in the interest of the Commonwealth and State governments who rely on the private sector for intelligence reports to address the problem via legislation.
JUNE 27 2018 - 6:10PM
Comments
Post a Comment