The ABC has dropped its public interest defence in a defamation case brought by the former commando Heston Russell at the 11th hour after a federal court judge ordered the journalists to reveal their confidential sources.
At a hastily convened interlocutory hearing on Wednesday night, the ABC’s barrister, Lyndelle Barnett, said the corporation was prepared to accept the consequences of dropping its defence and paying damages because the issue of protecting sources was paramount.
“This course has been taken because my clients do take their promises to sources very seriously,” Barnett said. “It’s not a course that’s been taken lightly, but it does demonstrate the significance of those promises to my clients.”
Russell is suing the ABC over two online news articles, a television news item and a radio broadcast that relate to the alleged actions in Afghanistan in 2012 of the November platoon, which Russell commanded.
After the hearing, the ABC said it had no choice but to uphold its commitment to protect sources and abandon its defence of proceedings.
“The protection of sources is crucial for public interest journalism, especially when sources fear adverse effects from their real names being revealed,” the ABC said. “The ABC and other news organisations must take the strongest line possible in supporting and defending journalists and sources who have entered into such an agreement.”
The ABC’s director of news, Justin Stevens, said commitments by journalists to sources ensure journalists “retain the ongoing trust of people speaking truth to power – they are a key tenet of journalistic ethics and press freedom in this country”.
“We wanted the opportunity to defend our journalism in court,” Stevens said. “However, a greater principle is now at stake – our ethical responsibility to honour the promise protecting the name of our source.
“Mark Willacy and the ABC’s award-winning investigations team are experienced journalists with a strong track record of reporting on matters of public interest and the ABC supports them upholding their obligations to their sources.”
After withdrawing the ABC’s defence, Barnett asked the court to vacate Justice Michael Lee’s order to produce the documents that would reveal the sources. Russell’s barrister, Sue Chrysanthou SC, opposed the submission. Lee will hear the arguments on Friday.
On Tuesday the federal court heard the ABC had redacted “dozens of documents” on the basis of relevance and Chrysanthou said they “need to be urgently provided unredacted”.
Lee said Russell’s legal team was “entitled” to know the source’s identity as they played “such a central role” in the allegations.
The federal court found in February Russell was defamed by the ABC in a series of articles that linked him to war crimes and alleged he left “fire and bodies” in his wake during his service in Afghanistan.
Lee found the ABC defamed Russell by conveying that he was “the subject of an active criminal investigation into his conduct as a commando in Afghanistan” and “reasonably suspected … of committing a crime or crimes when he was a commando in Afghanistan”.
Russell, a former major in the Australian special forces who served four tours of Afghanistan, has consistently denied all wrongdoing and allegations against him, and that he was the subject of a formal investigation.
The trial had been set to begin on 28 July.
The ABC initially defended its reporting as substantially true but dropped the truth defence in May and subsequently argued there was public interest in its coverage.
