The Australian War Memorial is facing calls to remove Ben Roberts-Smith’s uniform from its display after the federal court dismissed the defamation case initiated by Australia’s most decorated living soldier.
But the Australian Special Air Service Association has argued it was “a very disappointing day” for veterans who had served in Afghanistan, saying the majority who had done the right thing were being “re-traumatised after having gone through a difficult war”.
In a landmark defamation case ruling on Thursday, Justice Anthony Besanko found that, on the balance of probabilities, Roberts-Smith kicked a handcuffed prisoner off a cliff in Darwan in 2012 before ordering a subordinate Australian soldier to shoot the injured man dead.
Besanko also found that in 2009 Roberts-Smith ordered the execution of an elderly man found hiding in a tunnel in a bombed-out compound codenamed “Whiskey 108”, as well as murdering a disabled man with a prosthetic leg during the same mission, using a light machine gun.
In Canberra most politicians were reluctant to weigh in on the implications of the ruling but the Greens described the defamation judgment as “an important win for fearless journalism in the public interest”.
The party’s defence and justice spokesperson, David Shoebridge, said: “If this judgment stands, the first step in correcting the official record is for the Australian War Memorial to immediately remove Ben Roberts-Smith’s uniform from public display and to begin telling the entire truth of Australia’s involvement in that brutal war.
“This is not justice for the families who lost loved ones or for the communities that have been brutalised by war crimes, but it takes us a step closer.”
Shoebridge also urged the Albanese government to “urgently progress compensation for families of victims of alleged Afghanistan war crimes, one of the key outstanding recommendations of the Brereton report”.
He called on the attorney general, Mark Dreyfus, to “step in and end the unjust prosecution of Afghanistan war crimes whistleblower David McBride”.
A spokesperson for the defence minister, Richard Marles, said: “This is a civil defamation matter to which the commonwealth is not a party and it would be inappropriate to provide comment.”
The national chairman of the Australian Special Air Service Association, Martin Hamilton-Smith, played down the broader significance of the ruling in an interview with ABC TV, noting it was not a criminal proceeding.
Speaking generally about investigations overseen by the Office of the Special Investigator, he said one person had been charged to date over allegations of war crimes in Afghanistan – and raised concerns that “justice delayed is justice denied”.
Hamilton-Smith urged OSI to “get these matters into a criminal court where they can be dealt with properly and the truth can be established”. He made this comment without naming any individuals.
The Brereton report, released in late 2020, found “credible” information to implicate 25 current or former special forces personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others.
Asked whether Roberts-Smith should hand back his Victoria Cross, Hamilton-Smith said: “I think the only way you will get the real truth of this is to get it into the criminal court where both sides of the story can be told and beyond reasonable doubt the facts established.”
An OSI spokesperson said defamation proceedings were “a civil matter between the parties” and added: “It would not be appropriate to comment on specific allegations or whether they are the subject of investigation.”
The Coalition’s foreign affairs spokesperson, Simon Birmingham, described the defamation ruling as “certainly significant” and said it was a legal process “that deserves to be respected”.
But he said it would be “a difficult day for many” of Australia’s current and former defence force personnel.
“Australia is a country that applies a standard, in terms of expectations of our serving personnel and the transparency and accountability, that few other nations in the world apply,” Birmingham told ABC TV.
“We should be proud of those standards but we should also be proud overwhelmingly of our personnel, of all who have served.”
Birmingham was reluctant to make broader comments about the judgment’s implications for press freedom but noted the outcome would “obviously weigh heavily in terms of what proceedings may be initiated by others in future”.
The shadow defence minister, Andrew Hastie, a former SAS captain who was subpoenaed by the newspapers to give evidence during the defamation case, declined to comment on Thursday.
The Australian War Memorial and the chief of the Australian defence force, Gen Angus Campbell, were also contacted for comment.
Crisis support services can be reached 24 hours a day at Lifeline 13 11 14. The Hayat Line provides free and confidential, culturally sensitive support for Muslim Australians on 1300 993 398. In Australia, support and counselling for veterans and their families is available 24 hours a day from Open Arms on 1800 011 046 or www.openarms.gov.au and Safe Zone Support on 1800 142 072 or https://www.openarms.gov.au/safe-zone-support
