Des Houghton: Taxpayers to pay for ABC’s court loss against former special forces soldier Heston Russell

Two leading ABC journalists came under fire in a recent defamation case, which has left questions over the public broadcaster’s credibility and cost taxpayers big, writes Des Houghton.

Has the defamation case successfully brought by former special forces soldier Heston Russell left a permanent stain on the ABC’s credibility?

In the court of public opinion, the jury is still out.

We do know our national broadcaster seriously defamed the soldier and resisted efforts to clear the record.

Gold Walkley Award winner Mark Willacy, who grew up at Jondaryan on the Darling Downs and studied engineering before switching to journalism, was the senior journalist, with Josh Robertson, in an ABC investigation that went after Russell.

Willacy has had a stellar career. So, too, had Russell, who joined the army aged 17 and graduated from Royal Military College Duntroon.

Willacy was part of a team that operated under a siege mentality and approached investigations into ­alleged war crimes as members of a culture war, according to a Federal Court judge who found the ABC defamed the former commando.

Judge Michael Lee awarded Russell $390,000 ($412,315.15 with interest) in damages after he sued the ABC, Willacy and Robertson over two articles that he claimed, through the use of links and his photograph, implied he was complicit in the execution of an ­Afghan prisoner.

The court heard the first article, published in October 2020, relied on the evidence of “ear witness” Josh, a US marine who heard a “pop” over a radio and asserted that Australian soldiers had killed the prisoner.

Former special forces soldier Heston Russell. Photo by: NCA Newswire / Gaye Gerard

The second article, published in November 2021, said the Department of Defence had revealed there was an active criminal investigation into the conduct of an Australian commando platoon in Afghanistan in 2012.

Justice Lee said Willacy and ABC head of investigations Jo Puccini became increasingly “defensive” about any criticism of their war crimes reporting, especially after Russell outed himself as the subject of the first article and gave interviews with rival media organisations.

“Mr Willacy and Ms Puccini had become defensive about any criticism of the October article and considered such criticism was emblematic of a broader culture war attack on all the other war crimes reporting of ABC Investigations,” the judge said.

He said Willacy and Robertson reported to Puccini, based in Sydney, who was “Investigations Editor”.

“Ms Puccini was the editorial decision-maker for publications by the journalists who reported to her,” Justice Lee said.

The court heard Alexandra Blucher, described as a producer in Brisbane, and Daniel Oakes, a reporter in Melbourne, also worked on the stories.

Justice Lee criticised the Investigations team for getting defensive when the ABC’s own Media Watch program began scrutinising their reporting, instead of undergoing “mature reflection upon whether the reporting was fair”.

Mark Willacy.

Josh Robertson.

Willacy has been a journalist with the ABC since 1995 and was a foreign correspondent in the Middle East and Afghanistan.

He covered the Iraq war. He was in the Tokyo bureau when the Fukushima nuclear plant blew.

Before that he was in the ABC’s Jerusalem office and told Nance Haxton on her Streets of Your Town podcast that he stepped over body parts when covering about 20 suicide bombings.

Willacy told Haxton that the Jondaryan of his youth was a “flyblown, tumbleweed town” and he was determined “to get the hell out of there”.

Journalism became his great adventure and his great escape.

“I’m very rarely at my desk,” he told Haxton. “You have to go out and pound the shoe leather and eyeball people. You have to make contacts. Contacts are the lubrication of journalism.”

In court, Willacy’s career was described as “distinguished”.

“He has been awarded the Walkley Award for journalism on seven occasions, including in 2020, for a Four Corners program entitled Killing Field, concerning the killing of unarmed non-combatants by Australian forces in Afghanistan,” Justice Lee noted in his judgment.

“His third book, Rogue Forces, was published in August 2021 and concerns the conduct of Australian forces in Afghanistan. It was awarded the 2022 Prime Minister’s Literary Award for nonfiction.

“Since 2019, Mr Willacy has focused on investigating alleged war crimes by Australian soldiers, primarily being those allegedly committed by the SOTG, the Special Operations Task Force, during the Afghanistan War.”

Heston Russell leaving the Federal Court in Sydney with his legal team. Picture: NCA Newswire /Gaye Gerard

The court heard Robertson has been a journalist since 2005.

He worked at The Courier-Mail where he was affable and popular.

He left to join the ABC in 2017.

Justice Lee said he was “an experienced and well-regarded journalist”.

I have worked in newsrooms for more than 50 years now and I have noticed that some journalists seem happy to sit in cardigan corner sipping coffee their whole careers without rocking the boat.

Mark Willacy and Josh Robertson are not among them.

However, the ABC top guns picked a fight with the wrong guy.

Commando Heston Russell’s great-great grandfather served on the Western Front in World War I. His father, grandfather and great grandfather were also decorated soldiers.

“His family’s connection with the military may be traced back five generations,” Justice Lee said.

He became the commander of November Platoon within the 2nd Commando Regiment, Alpha Company, in November 2010, and was first deployed to Afghanistan in October 2011. Relevantly, he was the commander of November Platoon during a deployment in 2011-12.

“Mr Russell served for 16 years, including in Iraq, electing to discharge in January 2019. He was awarded several medals and awards for his service, including in recognition of his conduct in Afghanistan,” Justice Lee said.

To my mind one of the most telling sentences in the judgment was this one: “There may be several reasons why this dispute resulted in expensive and protracted litigation, but one of them was the existence of a defensive mindset inhibiting a proper remedial response to criticism.”

At one point Russell’s barrister, Sue Chrysanthou, SC, said the ABC had been running a “disgraceful publicity campaign” issuing statements about some aspects of the case.

And Justice Lee criticised Russell for some of his evidence.

Ultimately, Justice Lee concluded “the ABC did not have an objectively reasonable attributed belief that publication of the November article was in the public interest”, and found that their defence failed.

It’s now left to the taxpayers to clean up the ABC’s mess.

Parliament heard the ABC had agreed to pay Russell’s costs in addition to the damages plus its own legal costs of $700,000 to $800,000.

At a senate estimates hearing this week, Liberal senator Sarah Henderson said the litigation “has ended up costing several million dollars, at least, of taxpayers’ money”.

At the same hearing ABC managing director David Anderson refused to apologise to Russell.

That response says so much about the ABC.