Ben Roberts-Smith appeal dismissed

Australia Broadcast Center

16-05-2025

Samantha Donovan: Hello, welcome to PM, I'm Samantha Donovan, coming to you from the lands of the Wurundjeri people of the Kulin Nation in Melbourne. Tonight, war veteran Ben Roberts-Smith loses the appeal in his defamation battle with the Nine Group newspapers. Also, Israel continues its bombardment of Gaza and two dedicated crews set out to row boats all the way from WA to the coast of Africa.
Matt Mason: So we're going to try and be the first and fastest classic style boat to row across the Indian Ocean. That's a different type of boat compared to a lot of the majority of ocean rowing boats. Slightly tougher rowing and takes us a lot longer.
Samantha Donovan: War veteran Ben Roberts-Smith is vowing to take his defamation case all the way to the High Court after the Federal Court dismissed his appeal today. In 2023, the court found in favour of three newspapers upholding their truth defence and finding it was more likely than not that Mr Roberts-Smith had been involved in the murder of four Afghan prisoners while he was serving in Afghanistan between 2009 and 2012. Mr Roberts-Smith has consistently denied those allegations and hasn't been charged with any criminal offences. Alison Xiao has this report on the latest in his multi-million dollar defamation case.
Alison Xiao: It was all smiles as lawyers for Nine left the Federal Court this morning.
Reporter: How is your client feeling about this decision? Any celebrations planned for later tonight?
Alison Xiao: Decorated war veteran Ben Roberts-Smith has been ordered to pay Nine newspapers legal costs after the full bench of the Federal Court shot down his appeal to overturn the decision in his defamation case against the media outlet. The former Special Forces Corporal had unsuccessfully sued three Nine-owned newspapers for defamation over a series of articles in 2018 which contained allegations of war crimes in Afghanistan as well as bullying and domestic violence. His appeal was heard in February last year and his legal team argued there were several legal errors. The judges hearing the appeal disagreed, explaining their unanimous decision in an executive summary.
Judges' Statement: Having carefully considered all these matters, we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential.
Alison Xiao: The Victoria Cross recipient has also lost a bid to reopen the appeal with the inclusion of new evidence. Nine's management and its journalist Nick McKenzie have described their win as emphatic and vindication for Australian soldiers who told the public the truth. Lara Khider from the Australian Centre for International Justice has welcomed the decision but called for Mr Roberts-Smith to be held criminally accountable.
Lara Khider: It's very important for whistleblowers and for investigative journalists to be able to feel protected, to be able to do such important work that helps to expose war crimes and allegations of the sort that are very serious and the public must be aware of. We would be hoping for not just a positive civil outcome but an outcome in relation to criminal accountability.
Alison Xiao: The defamation case is estimated to have cost more than $25 million and lasted more than 100 days. This morning at Federal Court in Sydney, Mr Roberts-Smith didn't appear and his lawyers stayed silent outside court.
Reporter: Is this the end of the road for Ben Roberts-Smith?
Alison Xiao: The saga looks set to continue. Ben Roberts-Smith says he will immediately seek a High Court challenge to today's decision. In a statement he says, I have only ever asked for a fair and just hearing. That has not occurred. Mr Roberts-Smith has always denied the allegations made against him and no criminal charges have been laid against the former Special Forces Corporal.
Samantha Donovan: Alison Xiaoa with that report. The reasons for today's judgement by the Federal Court's full bench won't be released until next week. Dr Michael Douglas is a barrister specialising in defamation law at Francis Burt Chambers in Perth. He told me he's not particularly surprised Mr Roberts-Smith lost his appeal.
Michael Douglas: It was always going to be a difficult task for Mr Roberts-Smith to overturn what was quite a rigorous first instance judgement. And part of the difficulty facing Mr Roberts-Smith is that he was essentially challenging factual findings. Ordinarily for a defamation case, it's the application of the Lord of the facts that's where usually you'll go to challenge a first instance judge on appeal. But here, he's not all made findings about the allegations of Ben Robert Smith committing essentially war crimes that they were justified and trying to overturn factual findings about what evidence meant. That's always going to be quite difficult within an appeal court.
Samantha Donovan: Ben Roberts-Smith is now adamant that he'll challenge the judgement in the High Court. Do you think it's a case the High Court will take on?
Michael Douglas: It's hard to say. The High Court doesn't take on many cases. You need what's called special leave to appeal to the High Court. And it's unclear whether this is the sort of case where special leave would be granted. It does raise an issue of public importance in the sense that whether or not Mr Roberts-Smith committed war crimes and did the things he was alleged to do, those are topics that go to really important issues about not just Mr Roberts-Smith, but the treatment of the military and various other things. So that part of the test is satisfied. But the reason why I'm quite sceptical is that there doesn't seem to be any issue of legal principle that really jumps out at me that anyone has got wrong. The first instance judgement was pretty orthodox, an orthodox approach to evidence. So it's going to be really difficult for Mr Roberts-Smith to get special leave. But that said, I wouldn't want to prejudge what the High Court does and they may take a different view. So we'll have to wait and see.
Samantha Donovan: Dr Douglas, what sort of costs bill do you think Mr Roberts-Smith will be up for at the conclusion of this appeal to the Federal Court?
Michael Douglas: I honestly don't know. I know, however, that it's going to be massive and it will dwarf nearly any other defamation case in the history of our country. Whatever it is, I'm sure Kerry Stokes will be able to afford it. But nonetheless, it's not a sum that any ordinary person could afford.
Samantha Donovan: And in terms of defamation law, what is the significance of this case?
Michael Douglas: I don't see it as being of huge legal significance. It's more of, I guess, cultural or political significance in that Mr Roberts-Smith is a public figure and he's taken up a large part of the Australian public consciousness. But in terms of setting a legal precedent, I'm not sure that it's going to change much. But I stand to be corrected if the reasons for decision deal with issues that I'm unfamiliar with, it may be more significant than I think.
Samantha Donovan: Dr Michael Douglas is a defamation barrister in Perth and he was referring there to billionaire WA businessman Kerry Stokes, who's been financing Mr Roberts-Smith defamation case. Well, to another defamation case now, and the former leader of the Victorian Liberal Party, John Pesutto , is at risk of being bankrupted and booted from state parliament after an order he pay more than $2 million in legal costs. Last December, the federal court found he defamed his Conservative Party colleague, Moira Deeming , by falsely implying she had links to neo-Nazis. Mr Pesutto lost the Liberal leadership as a result of the case. The moderate MP who had been trying to stop the state Liberal Party moving further to the right says he's determined to stay in parliament. Kimberley Price has more.
Kimberley Price: The public stoush between John Pesutto and his Conservative colleague, Moira Deeming, has resulted in the former Victorian opposition leader facing bankruptcy. It is understood Mr Pesutto cannot pay the $2.3 million ordered by the court after Ms Deeming successfully sued him for defamation. If he's declared bankrupt, Mr Pesutto will be unable to sit in parliament. A GoFundMe page has now been launched to help pay Mr Pesutto's fees. All of Victoria's living former Liberal premiers have financially supported Mr Pesutto, including Geoff Kennett. He's called on the party and the public to help.
Jeff Kennett: I think and hope there'll be a whole range of people, fair-minded people out there in the public arena, who will help John Pesutto meet this extraordinary bill. What's occurred is very, very sad and I've never seen it occur in my political life before.
Kimberley Price: But Liberal leader Brad Battin, who ousted Mr Pesutto in December, did not indicate whether or not the Liberal Party or the party's investment arm, the Cormac Foundation, should help Mr Pesutto. And he refused to answer questions about the future of Mr Pesutto's grip on the seat of Hawthorne.
Brad Battin: It is a hypothetical at the moment. We haven't had any conversations about that. I have had a focus to work with John as I have in the past and I will in the future. I would like to see John there in November 2026.
Kimberley Price: In December, a federal court found Mr Pesutto defamed Ms Deeming on multiple occasions by associating her with neo-Nazis after she attended a 2023 anti-trans rally that was gate-crashed by a group who performed the Nazi salute. Ms Deeming was later expelled from the parliamentary team. After losing the case brought against him, Mr Pesutto lost the party leadership and Ms Deeming has since been returned to the party room. In a statement today, Mr Pesutto says he's committed to his electorate.
John Pesutto (Statement): Whilst I'm taking time to review today's court decision with family and advisors, I reiterate that I am determined to continue serving the people of my electorate of Hawthorne and the people of Victoria for as long as they will have me.
Kimberley Price: While the courts and money are central to this story, it's also linked to a battle within the Liberal Party between moderates and more hard-lined conservatives. Emeritus Professor of Politics at Monash University, Paul Strangio, says John Pesutto tried to steer the Victorian Liberals to become more centrist as the state turns more progressive.
Paul Strangio: That's reflected both in federal election results and at state election results. And really central to that was that the party was seen as being out of alignment with Victorians. It was too conservative-oriented.
Kimberley Price: Do you think that is a problem plaguing the Liberal Party as a whole?
Paul Strangio: Undoubtedly. I think it's worth remembering that once upon a time, Victoria was the heartland of liberalism. And what we've seen in Victoria, of course, is that the party has time and again lost the two-party preferred vote here. In fact, on 15 out of the 17 last federal elections, it has lost the two-party preferred vote in this state.
Kimberley Price: Mr Pesutto has the option to appeal today's decision.
Samantha Donovan: Kimberley Price reporting. This is PM, I'm Samantha Donovan. You can hear all our programs live or later on the ABC Listen app. Israeli military strikes in Gaza have left scores of people dead and raised further alarm in the international community. Palestinian health authorities say more than 100 people have been killed in the space of 24 hours. The latest deaths come as Israel's long-time ally, the US, raises concerns about the humanitarian catastrophe in the occupied territory. And a warning, there are some distressing details in this report from Myles Houlbrook-Walk.
Myles Houlbrook-Walk: In the south of Gaza, in Khan Yunis, a mother mourns the loss of her children killed in strikes by the Israeli Defence Force.
Alison Xiao: They are children, what did they do wrong? What did they do wrong?
Myles Houlbrook-Walk: Eerily similar scenes in Gaza's north in Jabalia. A young boy cries for his father killed in airstrikes, screaming, for God's sakes, dad, why did you leave us? According to Palestinian health authorities, more than 100 people have been killed in attacks in the last 24 hours. The Israeli military says it struck Hamas and Palestinian Islamic Jihad fighters in southern Gaza. It's vowed to continue the strikes while Israeli hostages taken in the October 7 terrorist attacks remain in Gaza. Jennifer Tiernay is executive director in Australia for MSF, or Doctors Without Borders. She says Israel is being totally reckless with its approach, killing too many civilians, including children.
Jennifer Tiernay: They have an obligation to protect medical facilities and to protect civilians and they are absolutely not doing that.
Myles Houlbrook-Walk: Israel has stopped medicine and food flowing into Gaza since March 2. For that, it's been condemned by Australia, some European nations and the United Nations. 500,000 people face starvation, according to the UN. Jennifer Tiernay says the situation is dire.
Jennifer Tiernay: The blockade of aid has only exacerbated the fact that there has not been enough medical supply, enough food and safe enough shelter and hospitals that are open for people to be able to access. The situation has been the same for months on end.
Myles Houlbrook-Walk: Israel's strongest ally, the United States, did raise some concern today via Secretary of State Marco Rubio.
Marco Rubio: We think that the elimination of Hamas is what achieves peace. We're troubled by the situation there. Both the Israelis with American backing and support have offered a plan to deliver aid that doesn't get diverted or stolen by Hamas.
Myles Houlbrook-Walk: The US supports a plan to resume aid delivery that could come into effect later this month and would see Israel secure premises where aid can be distributed from. But Jennifer Tiernay says aid distribution needs to be carried out by neutral organisations, not Israel.
Jennifer Tiernay: We have watched Israel ignore the needs of the Palestinian people for months on end. To put our trust in their now supposed care is really, I think, asking us to stretch ourselves to believe in a reality that we've not even seen a glimpse of. So I think it's absolutely essential we use the actors that are in place, the neutral humanitarian actors.
Myles Houlbrook-Walk: Dr Juliette McIntyre is a senior lecturer of law at the University of South Australia and says the legal standing around the provision of aid in conflicts is clear.
Juliette McIntyre: Using aid as a bargaining chip is itself in breach of international law. So aid is required to flow to civilian populations, particularly occupied civilian populations as here, and there's really no sort of negotiation to be had around that.
Myles Houlbrook-Walk: But as for enforceable consequences for potential breaches of international law that Israel has been accused of, it's yet to see many. Dr McIntyre says that's in part due to UN Security Council sanctions being vetoed by the US.
Juliette McIntyre: So the UN Security Council could order other states to, for example, either stop economic support of Israel or stop sending weapons to Israel. But as I said, the US has a veto at the UN Security Council. And so that means anything is going to be blocked in relation to Israel.
Myles Houlbrook-Walk: A tour of the Middle East by President Donald Trump now wrapping up has delivered no headway on a ceasefire or an immediate resumption of aid, nor a change to its voting intentions at the United Nations.
Samantha Donovan: Myles Houlbrook-Walk reporting. Australian Fashion Week comes to an end in Sydney today, and while there's been plenty to celebrate, the industry is concerned so few clothes are being made here. In fact, 97% of the clothing and shoes bought in Australia are imported. Now two powerful fashion figures are trying to establish a national strategy to encourage domestic manufacturing. But high labour costs may be a sticking point. Nadine Haynes prepared this report.
Nadine Haynes: It had all the runway glitz and glamour you'd expect of Australian Fashion Week. Local designers who'd spent months preparing for the event, hoping to catch the eye of Australian and international buyers. But mixed with that excitement is an air of uncertainty. How can we get more fashion manufacturing on Australian soil? Jaana Quaintance-James is the Australian Fashion Council's CEO.
Jaana Quaintance-James: We need to build greater resilience for the Australian fashion industry, which is the $28 billion industry in terms of economic value added to the Australian economy annually employs 500,000 people. Today, 97% of what is sold in Australia is manufactured offshore.
Nadine Haynes: Jaana Quaintance-James says, while we won't see 100% of our clothes being made here, we can definitely do much better than 3%. She points to RM Williams as the gold standard when it comes to manufacturing clothes in Australia. That brand's chief operating officer, Tara Moses, says doing it domestically allows greater quality control of the raw materials and the final product.
Tara Moses: What we see at RM Williams, what that means for us as an industry is that we can have more capabilities here within Australia to manufacture from the very beginning of the process to the very end of the process. And we see with our brand that our customers really care about that and want to contribute to that and have that meaning, that deep meaning and that connection to the products that they wear every day.
Nadine Haynes: Now, Jaana Quaintance-James and Tara Moses have announced a partnership. The goal is to establish a national fashion manufacturing strategy. Some of the issues they're tackling are skills gaps, high labour costs and investment in machinery. It also involves working out what we do well in Australia and building on that.
Jaana Quaintance-James: We grow amazing cotton and amazing wool and we send every single tonne of that offshore to be processed and we don't add, we add very little value in that process and sometimes we're re-importing that material.
Nadine Haynes: Both Jaana Quaintance-James and Tara Moses know the industry has been declining for years.
Jaana Quaintance-James: So the plan is to conduct a national consultation across industry. So we have hundreds of stakeholders mapped out across Australian manufacturing. What we're going to be doing is working with them to understand what the priorities for the sector are in terms of things that we need to solve. And then we'll be using that strategy, which we'll release towards the back end of the year, to really engage with government, with consumers and with industry to drive forward those outcomes.
Nadine Haynes: Tara Moses says that means being more innovative than global competitors. Uniting the scattered industry, she says, would make it easier to do things on a bigger scale. And with scale comes efficiency.
Tara Moses: It is a dying industry in Australia and if we don't right now start to make it grow, we're going to lose a lot of the skill set that exists today. We're seeing a lot of makers and a lot of people with specialty skills, they are retiring out and they aren't able to pass on their knowledge.
Nadine Haynes: Dr Carol Tan from RMIT University is an expert on the business of fashion. She says bringing manufacturing back to Australia will be a challenge.
Carol Tan: Do we have any government support? It could include incentives for local manufacturing, investment in infrastructure and training and perhaps policies that support ethical and sustainable production. And it's not just a Lone Ranger thing that you can do. You need industry collaboration. So collaboration between designers, manufacturers, textile producers.
Nadine Haynes: She says consumers also play a role.
Carol Tan: So not all consumers prioritise Australian made or sustainability over price. So a large segment of the market will likely to continue to be drawn to affordability and the wide variety offered by platforms like Temu.
Nadine Haynes: Dr Tan says it's all about educating consumers about quality, ethics and sustainability so that they're more willing to pay a premium price for a better product.
Carol Tan: At the end of the day, we cannot compete on price, right? You know that our labour costs are so expensive. I know even with economies of scale, think about what we are paying the worker compared to all these countries that have been doing it for a very long time. And they also have the technology. So unless we start investing in technology, it's going to be actually quite difficult, but possible. So it's not all doom and gloom.
Samantha Donovan: That's Dr Carol Tan from RMIT Uni. Nadine Haynes with that report. Well, can you imagine rowing a from Western Australia all the way to Africa? That's a feat two determined international crews are trying to achieve. By sheer coincidence, they're setting out within days of each other from the town of Carnarvon, 900 kilometres north of Perth. And they expect to be rowing for the best part of three months to reach the African coast. Lina El-Saadi filed this report. This is control centre.
Matt Mason: So we've got a chart plotter, switchboards that powers everything.
Lina El-Saadi: It's all aboard on No Great Shakes. This rowboat, complete with a crew of four from the UK, is in for an incredible journey from Carnarvon on the remote West Australian coast all the way to the African nation of Tanzania.
Matt Mason: So we're going to try and be the first and fastest classic style boat to row across the Indian Ocean. Carnarvon is a great launching off point because of the currency straight out. You know, we've only got a few hundred miles north to go and then we're in the trade is.
Lina El-Saadi: Crew member Matt Mason says the team is trying to row the full distance in under 90 days after careful preparations. No Great Shakes left from Carnarvon around midday yesterday. Part of what makes this cruise attempt unique is the type of boat they're rowing. It's what's called a classic style.
Matt Mason: That's a different type of boat compared to a lot of the majority of ocean rowing boats because we don't have the wind assistance. So slightly tougher rowing and takes us a lot longer.
Lina El-Saadi: In an amazing coincidence, another completely unrelated boat and crew are also making the voyage. The other vessel is called Untamed. It's leaving Carnarvon tomorrow with a crew made up of four men from the Netherlands, Bulgaria, Ukraine and China. They're hoping to make the journey of more than 9000 kilometers to Mombasa in Kenya in 75 days. Along the way, they'll be contributing to research at the University of Western Australia, which in turn is helping them plan their route. Here's one of the rowers, Evgeniy Sudyr.
Evgeniy Sudyr: They want to do this for a couple of reasons. One of them is to check dynamics of ocean rowing boat in the Indian Ocean. And also they want to research how currents and winds are affecting performance. And all of this is a good thing to do research. Nobody did it before.
Lina El-Saadi: One of the rowers on No Great Shakes, Jake Mattock, started running marathons to get ready.
Jake Mattock: These guys are military, you know, Marines and commandos. I'm a civilian that worked in tech sales. I wanted to build up that kind of mental strength that I can sustain like endurance events and have, I can stay calm under pressure in nature.
Lina El-Saadi: Both crews will have two people rowing at a time, two hours on, two hours off, 24 hours a day. That's 12 hours of rowing each, every day. The vast and dangerous Indian Ocean has always attracted adventurers. In 2023, Perth man Rob Barton became the first man to row solo from Australia to mainland Africa. It took him 86 days.
Rob Barton: You do feel very insignificant out there, but you learn to have a lot of faith and confidence in your boat. It's all down to you. Your personal strength just grows as each day goes on. Made it yesterday. Why can't you make it tomorrow?
Lina El-Saadi: And as these two crews set out, No Great Shakes rower, Matt Hemmings, thinks when it's all over, he'll look back on these few months with an odd affection.
Matt Hemmings: It's pretty much type two fun. So it's not going to be fun at the time. You'll look back on it with a weird fondness.
Samantha Donovan: I bet they will. That's Welsh rower, Matt Hemmings, speaking to our reporter, Lena El-Saadi in Carnarvon, WA. And that's PM for this week. PM's producer is David Sparkes. Technical production by Joram Toth, David Sergent and Nick Dracoulis. I'm Samantha Donovan. Have a great weekend. Good night.