Russell v Australian Broadcasting Corporation

Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019) Descheemaeker, E, 'A man must take care not to defame his neighbour: the origins and significance of the defence of responsible publication' (2015) 34(2) University of Queensland Law Journal 239 Explanatory Note, Defamation Act 2013 (UK) Explanatory Note, Defamation Amendment Bill 2020 (NSW) Gould, K, 'The more things change, the more they stay the same … or do they?' (2007) 12 Media and Arts Law Review 29 Keating, GC, Reasonableness and Risk: Right and Responsibility in the Law of Torts (Oxford University Press, 2022) Kenyon, AT, 'Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice' (2004) Melbourne University Law Review 406 Milmo, P and Rogers, W V H (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 9th ed, 1998) Mitchell, P, The Making of the Modern Law of Defamation (Hart Publishing, 2005) New South Wales Attorney-General's Task Force on Defamation Law Reform, Defamation Law - Proposals for Reform in NSW (2002) New South Wales Law Reform Commission, Defamation (Discussion Paper No 32, 1993) New South Wales Law Reform Commission, Report of the Law Reform Commission on Defamation (Report No 11, 1971) New South Wales, Parliamentary Debates, Legislative Assembly, 13 September 2005 New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 Parkes, R, Mullis, A et al (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 13th ed, 2022) Queensland, Parliamentary Debates, Legislative Assembly, 19 July 1889 Rolph, D, 'A Critique of the Defamation Act 2013: Lessons for and from Australian Defamation Law Reform' (Legal Studies Research Paper No. 17/98) Rolph, D, 'A serious harm threshold for Australian defamation law' (2022) 51 Australian Bar Review 185 Starkie, T, A Treatise on the Law of Slander and Libel and incidentally of Malicious Prosecutions (London, 2nd edn, 1830) Stone, J, Legal System and Lawyers' Reasonings (Stanford University Press, 1964) United Kingdom, Hansard, House of Commons (12 June 2012) Walker, S, 'Lange v ABC: the High Court rethinks the "constitutionalisation" of defamation law' (1998) 6 Torts Law Journal 9 Williams, G, Textbook of Criminal Law (Stevens & Son, 2nd ed, 1983)

National Practice Area: Other Federal Jurisdiction

Date of hearing: 28, 31 July; 1-4, 7, 29-30 August 2023

Counsel for the applicant: Ms S Chrysanthou SC with Mr N Olson and Mr T Smartt

Counsel for the respondents: Mr N Owens SC with Ms L Barnett and Ms M Cowden

Solicitors for the respondents: Australian Broadcasting Corporation Legal Services

AND: AUSTRALIAN BROADCASTING CORPORATION First Respondent

order made by: LEE J DATE OF ORDER: 16 OCTOBER 2023

THE COURT ORDERS THAT:

1. The proceeding be stood over to a date and time to be fixed within the next seven days for the entry of judgment in favour of Mr Russell in the sum of $390,000 together with interest at the rate of 3 per cent per annum and for determination of the applications made by Mr Russell to enjoin the respondents and for costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A INTRODUCTION AND OVERVIEW 1 Mr Heston Russell, a former Major and Commando Officer within the Special Operations Command of the Australian Defence Force (Defence), sues the Australian Broadcasting Corporation (ABC) and two of its journalists, Mr Joshua Robertson, and Mr Mark Willacy, in defamation, in relation to four publications. 2 In February, for the reasons set out in Russell v Australian Broadcasting Corporation [2023] FCA 38 (first judgment), I determined almost all questions of meaning, finding that some imputations were conveyed, and many were not, including rejecting imputations pleaded in relation to the publication known as the Radio Broadcast. These reasons assume a familiarity with the first judgment. This hearing deals primarily with any defences to the publication of the November Article, the Linked Article (being the November Article read together with the October Article) and the Television Broadcast, and, if the defences fail, the issue of relief. 3 There have been several developments since the first judgment by which various defences pleaded by the ABC have all but fallen away. The one remaining defence also died but rose again on the third day (as was explained in Russell v Australian Broadcasting Corporation (No 2) [2023] FCA 808 (second judgment)). In the end, what remains is the defence of public interest as provided for in s 29A of the Defamation Act 2005 (NSW) (Defamation Act). 4 For reasons that follow, no party emerges from this case without criticism, but my conclusion is that the respondents have not established the public interest defence and, as a consequence, Mr Russell is entitled to judgment and an award of ordinary compensatory damages. 5 My reasons are structured as follows: B BACKGROUND AND PRINCIPAL PLAYERS C FACTUAL FINDINGS AS TO THE CONDUCT OF THE ABC D THE SEPARATE HEARING AND THE IMPUTATIONS E SERIOUS HARM F THE PUBLIC INTEREST DEFENCE: THE LAW G THE PUBLIC INTEREST DEFENCE: CONSIDERATION H FURTHER FACTUAL FINDINGS AS TO DAMAGES I ASSESSMENT OF DAMAGES J CONCLUSION AND ORDERS.

B BACKGROUND AND PRINCIPAL PLAYERS 6 The trial took place over nine days and involved the tender of affidavits, documentary evidence and oral testimony of seven witnesses. The evidentiary record includes a joint statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth) (EA). I record in this section of my reasons some overview findings as to the principal players, the relevant chronology, and some uncontroversial facts. As the headings above make clear, I will make further factual findings of relevance to the public interest defence and the assessment of damages below.

B.1 Inquiries into Conduct of Australian Forces in Afghanistan 7 The backdrop to this dispute was Australia's contribution of troops to the recent hostilities in Afghanistan and allegations of serious misconduct by Australian soldiers. 8 In 2016, the then Chief of Army required the Inspector General of the Australian Defence Force (IGADF) to investigate and report upon the allegations and the IGADF appointed Major General the Honourable Paul Brereton AM RFD as an Assistant IGADF to conduct an inquiry (IGADF Afghanistan Inquiry), culminating in what is commonly referred to as the Brereton Report, released in November 2020. The primary focus of the Brereton Report was the Special Air Service Regiment (SASR). 9 In January 2021, the Commonwealth established the Office of the Special Investigator (OSI). The purpose of the OSI was to: (a) review the findings made in the Brereton Report; (b) work with the Australian Federal Police (AFP) to investigate the commission of criminal offences under Australian law arising from misconduct by members of Defence in Afghanistan from 2005 to 2016; and (c) develop briefs of evidence in respect of any offences established, for referral to the Commonwealth Director of Public Prosecutions (DPP).

B.2 Mr Russell 10 Mr Russell joined the army in 2003, at the age of seventeen. His family's connexion with the military may be traced back five generations, to his great-great-grandfather who served with the First Australian Imperial Force on the Western Front during the Great War. 11 He became the commander of November Platoon within the 2nd Commando Regiment, Alpha Company (November Platoon), in November 2010, and was first deployed to Afghanistan in October 2011. Relevantly, he was the commander of November Platoon during a deployment to Afghanistan within Special Operations Task Group (SOTG) Rotation 18 in 2011-2012. 12 Mr Russell served for sixteen 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. 13 Following a stint as an operations manager at fitness group "Barry's Bootcamp", Mr Russell asserts he now primarily focusses upon veterans' advocacy and charity work. In any event, he seems to spend a great deal of time on social media and has over 103,000 "followers" on Instagram and a personal website. He posts on a variety of matters (including criticism of the ABC and updates on this proceeding).

B.3 November Platoon 14 The 2nd Commando Regiment comprises Alpha, Bravo, Charlie, and Delta companies, each containing two or three platoons. Alpha Company consisted of November and Oscar Platoons (the latter being mistakenly referred to in aspects of the evidence as "October Platoon"). 15 "Task Force 66" was deployed in Afghanistan in 2012 and included Alpha and Bravo companies.

B.4 Key Players at the ABC 16 Messrs Willacy and Robertson are journalists in the ABC's Brisbane Bureau, of which Mr Willacy is the Bureau Chief. Both are journalists for "ABC Investigations", which might be described as an enclave within the general "News" division of the ABC. ABC Investigations publishes its work across the ABC's various news and current affairs programmes and platforms, and collaborates with other units, in particular, Four Corners and 7.30. 17 At all relevant times, Messrs Willacy and Robertson reported to Ms Jo Puccini, based in Sydney, who performed the role of "Investigations Editor". Unless an editorial decision needed to be (to use the awkward expression in the evidence) "upwardly referred", Ms Puccini was the editorial decision maker for publications by the journalists who reported to her. 18 Mr Willacy has been a journalist with the ABC since 1995, including as a foreign correspondent in the Middle East and Afghanistan, and as senior reporter for ABC Investigations since 2014. He has had a distinguished career. He has been awarded the Walkley Award for journalism on seven occasions, including in 2020, for a Four Corners programme entitled Killing Field, concerning the killing of unarmed non-combatants by Australian forces in Afghanistan. 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 non-fiction. 19 Since 2019, Mr Willacy has focussed on investigating alleged war crimes by Australian soldiers, primarily being those allegedly committed by the SOTG during the Afghanistan War. 20 Mr Robertson has been a journalist since 2005, joining the ABC in 2017. He is also an experienced and well-regarded journalist and has known and worked with Mr Willacy since 2017. On the evidence before me, Mr Robertson's first publication in relation to alleged war crimes by Australian soldiers was the November Article, although Mr Robertson's evidence was that Mr Willacy had kept him abreast of relevant developments in his reporting from time to time. 21 The dramatis personae also includes Ms Alexandra Blucher and Mr Daniel Oakes, journalists for ABC Investigations in Brisbane and Melbourne respectively. Relevantly, Ms Blucher was the "producer" of the October Article. The role of producer involves coordinating the dissemination of a story on various media, including selecting vision and images for use in television broadcasts and online articles, editing audio for radio broadcasts, reviewing scripts and draft copies, and conducting additional research where required. 22 Mr Oakes is a senior reporter who has investigated and reported on potential war crimes by Australian soldiers since approximately 2017. While doing so, he has accrued a few contacts including current and former members of the Defence community. As explained below, Mr Oakes contacted several of his sources and attempted to contact members of November Platoon prior to the publication of the impugned publications.

B.5 "ABC Investigations" 23 I remarked in my first judgment (at [32]) that the appellation "ABC Investigations" suggests a certain rigour and depth to the work conducted by the team. Indeed, Mr Willacy and Ms Puccini accepted that when ABC Investigations is referred to in a story (for example, in the by-line of an article, as was the case with the November and Linked Articles, or in the introduction to a television segment, as was the case with the Television Broadcast), a representation is made to the audience that an investigation has been conducted, and that not insignificant time and resources have been directed towards it. 24 The impression that ABC Investigations is constituted by journalists held out to be an elite corps is reinforced by its description at various points in the evidence as "independent" of the ABC more generally. But this is an inapt descriptor. The unit only sits apart from the general News division insofar as it has its own Investigations Editor and Head of Investigative Journalism. Where matters require escalation, they are directed to the Director of News, then the Director of News, Analysis and Investigations and, finally, the Managing Director. Matters may also be filtered through from ABC Investigations to the ABC's editorial unit and then to the Managing Director. 25 I now turn to the processes applicable to the publication of the October Article and the impugned matters. 26 At all relevant times, the general editorial process began with a journalist "pitching" a story to Ms Puccini. Ms Puccini would then consider whether, in her opinion, the story met a threshold of public interest, defined in the ABC's Glossary to its Editorial Policies as follows: The 'public interest' cannot be exhaustively defined. It includes but is not confined to: • exposing or detecting crime; • exposing significantly anti-social behaviour; • exposing corruption or injustice; • disclosing significant incompetence or negligence; • protecting people's health or safety; • preventing people from being significantly misled by a statement or action of an individual or organisation in relation to a matter of public importance; • disclosing information that assists people to better comprehend or make decisions on matters of public importance. There is also a public interest in the internationally recognised civil and political rights, which include freedom of expression. 27 Stories were also supposedly required to meet the ABC's Code of Practice, as well as its editorial policies and guidelines, including as to accuracy; independence, integrity, and responsibility; fair and honest dealing; appropriate attribution and provision of anonymity of sources; and impartiality. Ms Puccini told the Court journalists at the ABC are "bound" and "obliged to abide by" these standards: T693.13-14. ABC journalists also subscribe to a code of ethics published by the Media, Entertainment and Arts Alliance, a union and advocacy organisation (MEAA Journalist Code of Ethics): T196.27-31. 28 Once a journalist had drafted a story, they would provide it to Ms Puccini who would review the draft and determine whether it was ready for publication, or otherwise instruct the journalist to make any necessary edits or conduct further research. The next stage was, if appropriate, any "upward referral" or referral to ABC Legal before the draft would be provided to a digital producer and inputted into the ABC's content management system. 29 The digital producer would add "Key Points", being short bullet points featured in large print, capturing the main points (presumably as teasers or for the benefit of those who have difficulty taking in information of complexity, or those scanning the article or otherwise uninterested in descending into the detail). The digital producer would also add headlines, images, hyperlinks, and captions to the story and return it to the journalist and Ms Puccini for review and approval. Where legal advice had been sought, the headlines and Key Points would usually also be submitted to ABC Legal for review. Once a final review and approvals were complete, certain stories were subedited further by digital editors or producers. 30 Finally, the story would be uploaded onto the ABC website and, if it was sufficiently significant, accompanying radio and television segments would be prepared and published, following a similar editorial process.

C.1 General Observations 31 As will be seen, the Court's task in relation to the s 29A defence is to determine whether, in all the circumstances, the publisher reasonably believed the publication of the impugned matter was in the public interest. 32 Although what follows is regrettably lengthy, when one has regard to the statutory task, it is appropriate to set out in detail my findings as to the steps taken by the ABC in preparing and publishing the November Article, Linked Article and Television Broadcast and the subjective state of mind of relevant persons at the time of publication. Consideration of the Linked Article requires consideration, at least to an extent, of the anterior steps taken in relation to the publication of the October Article which, it will be recalled, is not sued upon. 33 I attend to making these findings below, but at the outset, it is worth remarking on two striking and connected points that emerged in stark relief after seeing the ABC's evidence unfold, which go some way in explaining why this matter has proceeded to a trial. The first is the suspicion harboured by Mr Willacy, Mr Robertson, and Ms Puccini at various times of wrongful conduct by the November Platoon in general and Mr Russell in particular. The second is the view held within ABC Investigations that criticism of the October and November Articles had become a proxy for a broader "culture war" attack on the war crimes reporting of ABC Investigations. 34 As to the first of these matters, the suspicions were not some irrational fancy. 35 Mr Russell's response to the ABC's reporting had one peculiar aspect. Days after the publication of the October Article, Mr Russell identified himself as the commander of November Platoon in an interview with Mr Peter van Onselen on Network Ten's programme The Project (Project Interview). Mr Russell confirmed he was "with the platoon all the time", such that "November Platoon was never deployed on any of our 20 missions into Helmand, Afghanistan, without me". One might expect this to be followed by an assertion that he had never witnessed wrongdoing by men under his control. But when questioned, "And you say no prisoner was ever summarily executed that you saw", Mr Russell gave an answer that might be regarded by some as oddly non-responsive. He replied, "So, we're responding to the direct allegation that this marine on a mission heard seven detainees turn to six and heard a pop and that was the execution that never happened". Ms Puccini, to my mind unsurprisingly, gave evidence she considered Mr Russell's response to be "curious" as he was careful to deny only the specifics of the allegation put forward in the October Article. 36 Mr Russell has since reaffirmed this approach in engaging with the allegations. In an editorial complaint submitted to the ABC on 16 December 2021, he complained a statement given by him had been misleadingly paraphrased as a denial of any wrongdoing and asked, "[h]ow can this be stated as such or is this the Journalists [sic] poetic licence?", continuing, "I have always spoken specific [sic] to the 'Marine Heard a Pop' incident and professed that this did not happen. I have not ever provided such broad statements and would like to know who approved this?" 37 This may all be true and literally correct but is not an approach apt to dispel some suspicion of wrongdoing, however speculative such suspicions may be. Moreover, there were also dealings between the ABC and the OSI, which caused those within ABC Investigations to think that they may be onto something of substance. The OSI requested access to the footage and material which formed the basis of the October Article, and conducted two in-person interviews with Mr Willacy, during which the OSI confirmed they had conducted background checks into Mr Willacy's source and intended to consult the source as part of their investigations. Mr Willacy, Mr Robertson, and Ms Puccini were spurred on by what they considered to be the interest of the specially established investigator in the allegations canvassed in the October Article (although I will return to those dealings, and what I consider they demonstrate, below). 38 As to the second matter, I gained the impression that a highly defensive mentality arose within the ABC in relation to the work done by ABC Investigations and, in particular, Mr Willacy. Four aspects of the evidence provide good examples of this mindset. 39 First, shortly after the October Article was published, Mr Jonathon Moran of The Daily Telegraph published an article entitled "Heston Russell: Ex-commando says alleged Afghan murder never happened" (Telegraph Article). 40 For reasons that are unclear on the evidence, the national broadcaster thought it necessary to criticise the Telegraph Article in forceful terms and dismiss, in a supercilious tone, the author as an "Entertainment writer". The ABC published a detailed press release, headed "Response to today's story by Jonathon Moran in News Corporation titles", in which it: (a) branded the Telegraph Article "a weak attempt to undermine the ABC's important journalism on this public interest issue" and a "slur on months of dedicated reporting"; (b) reproduced the questions the ABC received from News Corp and their answers, in full, undermining Mr Moran's recount of that exchange; (c) emphasised the ABC "stands by the reporting done by our award-winning journalist Mark Willacy and the Investigative Reporting Team"; and (d) implied the veracity and gravity of the ABC's reporting by suggesting a causal link between Mr Willacy's reporting on war crimes generally and actions taken by the IGADF. 41 The press release also acknowledged Mr Russell's criticism of the October Article, retorting, "Russell was not named in our report. We have no knowledge that he was even on the raid in question." 42 Around the same time, and as explained in detail below, Mr Willacy had been corresponding with his source whose allegations formed the basis of the October Article, a United States Marine known in this proceeding as "Josh". The pair had a phone call, in which they discussed "standing by the story": T296.15. Shortly after, Mr Willacy sent the following email to Josh: Let me know if you hear from any Aussie journos! But as suggested, I'd just say I stand by my account, read the ABC story, and I won't answer any questions. Murdoch's people are tabloid bottom-feeders … 43 There was evidence as to Mr Willacy's state of mind at the time of composing the email and he was asked whether it would be fair to say he was encouraging Josh to say what is recorded in the email and to avoid contact with "Murdoch's people". Mr Willacy agreed with the first proposition and, as to the second, explained that persons like Josh (at T297.9-28): … didn't have a great trust in certain sections of the media … MS CHRYSANTHOU: You were saying, "Don't trust them. Just trust me."?---You probably judge from [Josh's] tone that he was no fan of Donald Trump, for example. He had particular views we discussed. And yes, I wanted him to trust me. I think he did trust me. So when you say he didn't like Donald Trump, you're suggesting the difference between right wing and left wing media. Is that where you're going?---I'm suggesting that he had a - yes, a distrust of right wing media. All right. But your co-respondent [Mr Robertson] spent seven years working at the Courier Mail?---Then he went The Guardian. Okay?---He obviously tried to absolve himself of all those sins. 44 We do not really need to explore why Mr Willacy considered working for a News Corp publication required expiation of sin and why working with The Guardian would bring about the necessary propitiation, but it does rather confirm the mentality within ABC Investigations of which Ms Puccini spoke. What relevantly matters is that although there is no evidence that Josh had been contacted by any other Australian journalists, Mr Willacy perceived a need to appeal to Josh's distrust of "tabloid bottom-feeders", encourage him to stand by his account and protect the October Article from criticism. 45 Ms Puccini also came in to bat for her colleague on Twitter, responding to a tweet from Mr Moran from her personal account on 28 October: I have no issue with people disputing accounts although not sure Russell "was there". My issue was the appalling front page. Accusing a journalist of writing "Fiction" is the worst kind of defamation, not just of him but also accusing the US marine of lying. It's sad … 46 On the same date she retweeted the ABC's press release, writing: It's a shame The Tele invests in tearing down excellent journalism instead of exposing what went on in Afghanistan. @markwillacy's reporting, over months, has revealed alleged crimes by men who are still serving in our special forces, still representing our country 47 Later, there was another exchange between Ms Puccini and Mr Robertson about Mr Russell's access to the media. Mr Robertson sent a draft of the November Article (which included a comment from Mr Russell calling for an apology in relation to the October Article) to Ms Puccini for approval. She responded swiftly approving the inclusion of the comment, only to change tack not twenty minutes later: Just thinking do we need the "apology" comment? He's had a Huge platform on 2gb. I don't know that we need to amplify it. Especially when we know what we know about him. Thoughts? 48 I am confident that from the time Mr Russell started to engage with the media, 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. They were justifiably proud of their earlier work and took the criticism to heart. 49 Other than the Telegraph Article and exchanges with the ABC's own Media Watch, which are discussed below, the criticisms of the reporting of Josh's allegations were not referred to in any detail at the hearing. I am unable to form any view as to their merit or fairness, but it is sufficient for present purposes to remark upon the mindset within ABC Investigations which, colloquially put, was to circle the wagons against any criticism of the treatment by ABC Investigations of Josh's allegations. 50 A second example arose during Ms Puccini's cross-examination. An impetus for the publication of the November Article was the response from Defence to a freedom of information request submitted by Mr Willacy for material in relation to November Platoon (FOI Response). Defence denied access to all documents pursuant to s 37(1)(a) of the Freedom of Information Act 1982 (Cth) (FOI Act) on the basis that it "would, or could reasonably be expected to … prejudice the conduct of an investigation of a breach, or possible breach, of the law …". Mr Willacy forwarded Defence's response to Ms Puccini and Ms Sally Jackson, an ABC "communications lead", writing, "[t]his is very helpful. Worth a story I think". When senior counsel probed Ms Puccini on what she understood by "very helpful", the following exchange took place (at T755.35-40): MS CHRYSANTHOU: And the reason you wanted to tell the public there was an investigation, in your mind, into the Josh allegation is because the 2GB broadcasting was about the Josh allegation, wasn't it?---Well, no. The 2GB broadcasting strayed into abuse and deriding all the war crimes coverage. I mean, it was - it's a culture war, this issue. It's not - this Josh allegation was a way to - to criticise all the war crimes reporting … (Emphasis added). 51 Upon publication of the November Article, Ms Puccini took to Twitter again, sharing a link to the November Article and writing: "FOI response confirms an incident we reported is under criminal investigation. Will @2gb correct its assertion that it isn't?". 52 Thirdly, Mr Robertson also turned to Twitter around this time and engaged in a series of keyboard skirmishes with members of the public in defence of the October and November Articles. He shared links to the October Article noting, "It's the role and responsibility of the media to report these matters of vital public interest unflinchingly and fairly", tweeted a screenshot of the FOI Response with the words "current investigation of a possible breach of the law" highlighted and captioned "Here's the FOI decision received by the ABC in which Defence revealed the current criminal investigation into conduct by November Platoon in Afghanistan in 2012", reposted the link to the November Article "ICYMI" (shorthand, I am told, for "in case you missed it") and told a critic of the reporting to "read better". 53 A fourth example demonstrates the persistence of the conflict perceived by the ABC. In November 2022, Mr Willacy had what he described as a "frank" telephone conversation with Mr James Willis, the producer of Ben Fordham Live on radio station 2GB Sydney (2GB). Mr Willacy gave evidence he was "aware that 2GB had been engaging in a campaign alongside Heston Russell to criticise the October Article and November Article", and that Mr Ben Fordham had "covered the issue more than a dozen times". Upon receipt of a media query from 2GB in relation to the ABC's defence of this proceeding, Mr Willacy determined to call Mr Willis. There is a difference in recollection surrounding precisely what transpired between them. It is unnecessary to resolve it, but both Mr Willacy and Mr Willis recalled a tense exchange which apparently descended into a barrage of assertions as to how each media organisation operates. 54 Having sketched the thematic background, this is an appropriate juncture to say something generally of the credit of the ABC's key witnesses, before turning to the findings of fact of relevance to the determination of liability in this case. 55 Consistently with their contemporaneous actions, Mr Willacy and Ms Puccini were, at times, combative witnesses. As noted above, Mr Willacy is a distinguished journalist and underlying his oral evidence was a strong belief in the quality and importance of his work and an antipathy to criticism of it, including the measured (and as will be seen justified) criticism expressed by Media Watch. As discussed further below, his commitment to his work extended to an obstinate assertion he did not believe the November Article could be read as accusing November Platoon of the misconduct alleged by Josh and set out at length in the article itself. To his credit, however, Mr Willacy made a series of reasonable concessions during his evidence. I am satisfied he believed publication of the October and November Articles was important, appropriate journalism, and in his participation in their publication, he did not set out to convey anything he believed at the time was wrong. I generally accept his evidence. 56 Ms Puccini was at times palpably frustrated by her participation in a process by which the ABC's conduct was being questioned. Certain of her answers were odd, for example, her assertion she could not remember her involvement in the preparation of the press release published in the wake of the short-lived abandonment of the public interest defence, discussed in my second judgment (at [10]), notwithstanding the events had occurred not three weeks prior to her cross-examination and the tender of contemporaneous text messages demonstrating her involvement: T724.8-10. Others showed equivocation, for example, her initial refusal to accept, unlike Mr Willacy (see T40.33-42), that the issuance of a press release upon the publication of the November Article was highly unusual: T724.22-725.5. Ultimately, she acceded to this proposition: T725.7-8. 57 Perhaps the most curious aspect of her oral evidence was that in approving the November Article, she intended to suggest November Platoon was under investigation, but not for the allegations advanced by Josh and referred to at length in the November Article: T723.7-30; T734.1-735.17. This directly contradicted her tweet upon publication of the November Article, set out above ("FOI response confirms an incident we reported is under criminal investigation"), and her affidavit evidence that following Mr Russell's public response to the November Article, she discussed with Mr Willacy whether Mr Russell's denials "impact our story … Why is he saying he wasn't in Helmand?" 58 I stress I do not consider Ms Puccini set out to mislead the Court, but her defensiveness meant she was chary about giving any answer she considered would amount to a concession. 59 By contrast, Mr Robertson was an engaging witness who provided thoughtful and candid answers to the questions asked of him. By way of aside (and reflecting his background as a philosophy undergraduate who had apparently read Immanuel Kant), he had a familiarity with the structure and limitations of human knowledge and jousted effectively with his cross-examiner. I also generally accept his evidence. Although he was heavily involved in the November Article, he was a relative newcomer to "war crimes" reporting and, unlike Mr Willacy and Ms Puccini, was uninvolved in the ABC's corporate affairs. 60 I now turn to making specific factual findings.

C.2 Josh's Allegations 61 On 15 July 2020, Mr Willacy received an email from Josh, who described himself as a helicopter crew chief in the HMLA-469 unit of the United States Marine Corp (US Marines), deployed in Afghanistan in 2012. 62 I explained in my second judgment that the respondents initially relied upon the so-called common law "Newspaper Rule" to protect Josh's identity, although at no stage sought to invoke the source privilege in s 126K of the EA in relation to him (despite asserting s 126K privilege in relation to several "confidential sources"). They did not rely on the statutory privilege expressly designed for protection of sources of journalists in relation to Josh because they could not, given that the ABC had published identifying material. Before the hearing, Mr Russell's lawyers uncovered Josh's identity and read an affidavit (protected by an interim confidentiality order to be revisited at the trial) establishing his identity beyond peradventure. No application for a final confidentiality order was made by the ABC, and by the third day of the trial, no confidentiality order subsisted. Given the breadcrumbs dropped by the ABC, the whole confidentiality issue became somewhat farcical, but there is no point in going out of my way to refer to Josh by his real name in these reasons; I will continue to use the pseudonym. 63 Prior to receiving the email, Mr Willacy did not know Josh and had never previously communicated with him. It is unnecessary to form a view for present purposes as to how Josh obtained Mr Willacy's contact details, but I infer he had engaged with Mr Willacy's reporting (most recently an article co-authored with Ms Blucher and published on 14 July entitled, "Witnesses say Australian SAS soldiers were involved in mass shooting of unarmed Afghan civilians", and a 15 July article co-authored with Mr Rory Callinan entitled, "The same AK-47 was photographed on two dead Afghan civilians killed by Australian soldiers"), and determined to contact him using the contact details available via the ABC website or Mr Willacy's Twitter account. 64 Josh advanced three allegations: first, a second-hand account that an "Aussie" shot an unarmed Afghan man sitting on a wall (Throwdown Allegation); secondly, that Josh heard but did not see "the[m]" (apparently a reference to Australian soldiers) shoot and kill a prisoner under control (PUC) because the prisoner would not fit in a helicopter (Helicopter Allegation); and thirdly, a second-hand account that "they" had killed an Afghan family, including a small child. He also made a series of general observations as to "Australians" in Afghanistan, including that they "left burning villages and dead bodies in their wake", went on "a month long rampage", and committed acts which were "blatantly f***ed up". 65 It is immediately obvious upon reading Josh's email that he was careful not to overstate the extent and quality of his recollection. Indeed, he added an important qualification to the end of his email, explaining, "my memory is fuzzy enough that I'd be useless anyways when it comes to giving specific enough details to go on". 66 Upon receipt of Josh's email, Mr Willacy conducted online searches and concluded Josh was a US Marine. He swiftly formed the view that Josh's allegations were "potentially credible" for the following reasons. First, "similar allegations" had been made in the collection of stories known as the "Afghan Files", published by the ABC and Mr Oakes, and triggering a raid by the AFP on the ABC in 2018, and in a recent article published by The Age concerning a member of November Platoon known as "Soldier X", who allegedly confessed to executing unarmed Afghan prisoners. Secondly, Mr Willacy had investigated and considered similar allegations in his own reporting and had, by that stage, received what he considered to be many "credible" accounts from confidential sources alleging Australian soldiers had killed civilians and PUCs. Thirdly, there had already been extensive public reporting (including in the 15 July article by Messrs Willacy and Callinan) and confidential sources had discussed "throwdowns" by Australian soldiers, that is, planting military equipment on civilians or PUCs to make it appear the person had been armed, and that the killing was justified. Fourthly, he was aware that the IGADF Afghanistan Inquiry was investigating what he perceived to be "similar claims". 67 Mr Willacy was at the time conducting research for what became Rogue Forces. He determined to respond to Josh to ascertain whether his allegations warranted inclusion in his book or resulted in other leads. He responded on 15 July, asking Josh for further detail as to the timing of his deployment, and whether they could continue their correspondence on a confidential basis. 68 Josh replied on or about the same day, cautioning as to an "obvious caveat" on his account: … it all happened a long time ago in the midst of constant combat operations where I had very little sleep and was constantly working with people from different units and countries, so I likely won't be able to provide you with actionable information that could go anywhere useful in any specific investigations, only the bits and pieces I remember. It's been on my conscience for awhile though obviously, and if someone like you is doing the work to piece together a narrative that can stick and force some action, I would be happy to answer any questions you had to the best of my abilities … 69 Mr Willacy told the Court he was impressed by Josh's candour. His willingness to admit where he was unsure of details gave Mr Willacy faith in the honesty of his account and his credibility as a source. It is certainly open to conclude that Josh's readiness to admit the "obvious caveat[s]" on his account demonstrates truthfulness and sincerity on his part. But a more obvious and significant conclusion is that Josh may not, because of the admitted frailties of his memory, have had his facts right, such that the viability of the story depended upon further research and confirmation. Put another way, fuzziness of recollection might be consistent with candour and could, depending upon the circumstances, provide comfort a witness is not prone to exaggeration nor overstatement, but fuzziness of recollection also heightens the possibility of error and the need for increased scrutiny and circumspection. 70 Mr Willacy did press on, seeking further information about Josh's background and to draw out further details as to the Helicopter Allegation. Importantly, he asked Josh to specify, "[w]as it the SAS or the Commandos?". This was the first attempt in the correspondence to attribute the alleged conduct to a subset of Australian soldiers. Indeed, Mr Willacy admitted the most specific label Josh attributed to the alleged wrongdoers at any point was "Task Force 66" which, Mr Willacy understood, comprised both Alpha and Bravo companies (that is, over 300 persons): T204.1-7. However, it was around this time that Josh provided Mr Willacy with a link to an article published in the Sydney Morning Herald and concerning the deaths of two commandos described as being from the 2nd Commando Regiment (Herald Article), and informed Mr Willacy: … the people killed in the crash from this news article were flying with us and the article lists them as Aussie [commandos], but that's as specific as I could be about what unit we worked with and I have no idea if we were working with different units within the task force for the missions we were on … 71 This is one of very few instances in which Josh implicates the commandos. However, it should be noted that under cross-examination, Mr Willacy accepted at numerous points that Josh never told him he worked with the 2nd Commando Regiment nor the commandos generally: T275.12-32; T275.44-46; T276.22-40; T277.44-45: T421.10-17. 72 Mr Willacy "cross-check[ed]" material facts in Josh's story against Chapter 23 of Chris Masters' No Front Line (Allen & Unwin, 2017) concerning Rotation 18 of the SOTG of which, as noted, November Platoon was part. Mr Willacy considered Mr Masters' book a de facto official history of Australia's role in the Afghanistan War. Mr Willacy found that: (a) the time of Josh's deployment period of May to November 2012 materially overlapped with that of Rotation 18 of the SOTG (which he understood was deployed from about 18 July 2012 to late November 2012); and (b) in Rotation 18, FE-Bravo was described as undertaking drug raids with US Marines under the auspices of the US Drug Enforcement Administration (DEA), which activity was consistent with Josh's information that he helped provide air support for Australian soldiers undertaking drug raids. Mr Willacy knew from other sections of No Front Line that references to "FE-Bravo" or "Bravo company" were reference to the 2nd Commando Regiment. 73 Mr Willacy also conducted online searches in relation to Josh's identity and uncovered he had served in HMLA-469 in the period May-November 2012 in Helmand Province. This confirmed his view that Josh had worked with November Platoon, and he pursued this line of enquiry with conviction, writing: It does sound like you did operations with 2 Commando. They did a lot of anti-drug work with DEA in Afghanistan. They are also under investigation here by the Inspector-General of the Australian Defence Force for possible war crimes in Afghanistan. The Inspector-General has the power to recommend charges of war crimes, so there could very well be a reckoning. And to me, your insights would be invaluable to this book I'm working on. 74 It was suggested by senior counsel for Mr Russell that at this point, Mr Willacy's mind was already "closed" against any suggestion the soldiers the subject of the allegation were not soldiers from Rotation 18. To make this point good, Mr Willacy was asked why he did not discover in this proceeding Chapter 22 of No Front Line (which concerns Rotation 17, whose deployment also overlapped with that of Josh). Mr Willacy said he believed from what he had been told and from the allegations he had been made aware of it was more likely Josh was referring to Rotation 18 and narrowed his enquiry on this basis. He admitted, however, that if one was to view Josh's account in the light of only Chapters 22 and 23, one would conclude Josh's allegations concerned Rotation 17, rather than Rotation 18: T188.1-5. There is some force in the submissions made on behalf of Mr Russell, but I do not think Mr Willacy was initially consciously committed to connecting the allegations with Rotation 18. However, it is fair to conclude he was quick to draw conclusions from material which he thought was reliable and this served to narrow his ambit of further enquiry. 75 Mr Willacy and Josh arranged to speak over Skype on or around 21 July 2020. Mr Willacy recorded the conversation with Josh's consent. They spoke for approximately one hour, during which Josh repeated the substance of the Throwdown Allegation and the Helicopter Allegation and provided the following by way of elaboration. First, he said he could not remember the number of prisoners present when the Helicopter Allegation took place, noting there were "close to half a dozen. So we'll just say seven for the sake of explaining". Secondly, he stated the Helicopter Allegation took place "somewhere up north, I don't remember exactly where and I want to say it was probably late June or early July, if I had to guess". Thirdly, in response to a question from Mr Willacy about whether he could see anything down below, Josh responded, "it was all comms". Fourthly, he repeated that the soldiers he had worked with generally wore "baseball hats" (often backwards) and "tennis shoes" instead of boots, had "very long" hair which was "pretty wild usually", "huge beards" and "gauged ears". The Court was helpfully informed that ear gauging is the curious practice of piercing one's earlobe and placing a stretching device in the pierced hole. 76 As a result of this conversation, Mr Willacy formed the view that Josh was "a credible source … detailed, cogent and comprehensive … careful not to overstate things" and that his accounts were internally consistent. He believed he had adequately "tested" the allegations by revisiting them with Josh on a video call: T205.19-21. 77 At the end of the call, Mr Willacy asked Josh if he could speak to other US Marines from his unit in relation to the allegations. Josh was reticent to connect Mr Willacy with any of his colleagues, explaining he believed they wanted to put Afghanistan behind them, but noting he would try to reach out. He did not, however, put Mr Willacy in touch with anyone and Mr Willacy did not follow up. Rather, Mr Willacy formed the view that he did not expect Josh to provide him with further leads and, in any event, did not consider it necessary to confirm Josh's story with another US Marine for the October Article to be published. 78 Mr Willacy continued to probe for further detail from Josh, particularly in relation to the Helicopter Allegation. On 31 August, Mr Willacy emailed Josh, setting out questions and proposing details which might trigger his memory, such as: (1) "Typically, how big were the Australian Commando teams that your group would drop in the field?" (2) "Can you remember as best you can the actual back and forth between the Australians on the ground and your pilot over the comms? (I assume it was your pilot). Even the sort of language you guys used in radio comms would be great (call signs and that sort of stuff, if you can remember)"; and (3) "Explain how awkward the silence was when you heard the shot over the comms, how you immediately knew what it was, and the looks you guys gave yourselves and what the trip back to base was like". 79 Josh responded on 2 September, in more specific terms than his previous accounts, but importantly reiterating his hesitance as to the reliability of his memory. Notably, and consistently with his lack of detail, he referred only to "Aussies" without ascribing any further specificity; could not recall precise circumstances, the timing of the alleged events or the "exact numbers" of soldiers present and so fell back on guesses and a lack of generality ("I would guess it was sometime around 1-3 AM … but couldn't say specifically, and I couldn't be certain of the date, only that it was likely somewhere between mid June-July"; "probably around 20 [soldiers] or so would be my guess depending on the mission"; and "[t]ypically we would come back for the extract and there would be a lot of destruction left behind"). There were only three points Josh asserted with surety: first, that he "never actually saw any DEA guys with the Aussies in the time I worked with them"; secondly, "[t]he night the prisoner was shot, we were somewhere pretty far up north of Bastion, not sure exactly where, but it was close enough that we didn't need to leave the ground forces to go refuel"; and thirdly, and importantly, he was specific about his lack of specifics, noting: I wish I could help you with the specifics there … Wish I could be more specific with the details, but those were some extremely hectic times where we worked with a ton of different units on a variety of missions with not much sleep to be had in between, so most of it is pretty fuzzy. Let me know if there's any other questions I can help you with, and I'll do my best to answer them if l can pull some clarity from all the fog. Keep up the hard work of shining a spotlight on the things people want to ignore, including myself at the time, it will give the public a more accurate picture than the black/white worldview a lot of them have.

C.3 First Conversation with Confidential Source A 80 In August 2020, Mr Willacy spoke with a source known as Confidential Source A (owing to a claim for privilege pursuant to s 126K of the EA). In advance of that conversation, Mr Willacy noted down he intended to discuss Josh's allegations with Confidential Source A. Mr Willacy cannot recall if he discussed Josh's allegations with Confidential Source A but gave evidence that Confidential Source A told him they had heard the IGADF was interested in speaking to Mr Russell and three other commandos from November Platoon deployed between July and November 2012.

C.4 The October Article 81 In about September 2020, Mr Willacy decided he would not refer to Josh or his allegations (which, as Mr Willacy understood it, related only to the 2nd Commando Regiment) in the draft which became Rogue Forces. The concept for the book had narrowed to concern only a single unit in the SASR. 82 Mr Willacy continued to seek further information from Josh. On 1 October, he wrote to Josh asking: … what you thought if I was to run a news story about what you saw over there with the Australians. As per our arrangement, I wouldn't identify you by name (I'd give you a pseudonym). Of course, I would still feature your story in the book, but I am told the Inspector General of Defence could be releasing his long-awaited report this month and I think your story would be good to get out there before that happens as a news feature. (Emphasis added). 83 Why Mr Willacy told Josh he would feature him in his book when he had, by that stage, determined his account was no longer required for the book is perplexing and inadequately explained. An available conclusion is that Mr Willacy made this less than frank representation to procure Josh's continued co-operation, but it is unnecessary to reach a conclusion as to why this was said. What is clear was Mr Willacy's desire to push out a "timely" article given the pendency of the Brereton Report and Mr Willacy's belief "the story was worthy and in the public interest and, yes, that there might be something that comes back because often that's what happens": T232.31-35. 84 Josh responded confirming Mr Willacy could "do whatever [he thought made] sense" with his story. Mr Willacy subsequently arranged a further video call which took place on or around 5 October and was recorded. During that call, Josh confirmed he had spoken to past colleagues to ascertain whether they would be interested in going on the record, and that no-one was content to do so. Mr Willacy again did not take any further steps, including steps independently of Josh, to contact anyone in Josh's unit: T235.32-33.

C.4.1 Preliminary Steps 85 In early October 2020, following discussion with Mr Willacy, Ms Puccini sought editorial advice from Mr John Maley (Editorial Policies Director) as to the risks attending the publication of a "single person account". Mr Maley explained the ABC occasionally ran allegations of public interest which had not been corroborated by another source, provided the ABC had done its homework and was not "blaming anyone". 86 Based on this generalised advice, Ms Puccini considered a single person account could be published depending on the circumstances: T696.38-44. She justified this position under cross-examination with reference to two previous stories published by the ABC: (1) Mr Dusty Miller was a medic who saw an injured Afghan being taken away by an SAS soldier. The following day the son of the man found his dead body with boot prints on his chest: T700.24-27. The ABC published a story with only the account of Mr Miller and the account of the deceased's son; and (2) Mr Braden Chapman saw a fellow SAS soldier shoot an Afghan with his arms in the air. The ABC published a story based on a helmet-cam video in which members of the squadron discussed the killing days after it was said to have occurred: T700.45-701.16. 87 Ms Puccini recounted counselling Mr Willacy in relation to the viability of publishing the Helicopter Allegation. She, with respect prudently, asked him to attempt to find another witness, preferably an Australian, to verify the story, or, failing that, the find a commando to talk about missions generally. She instructed Mr Willacy to "talk to Defence … although they probably won't say anything useful" and to "check out [Josh's] bona fides". 88 Around this time, Mr Willacy enquired with Mr Oakes as to whether he would contact his sources to "corroborate" Josh's account.

C.4.2 Research and Drafting 89 Mr Willacy gave evidence he wanted to publish an article prior to the release of the Brereton Report, which was expected to be published in October or November. He sent a first draft of the October Article to Ms Blucher and Ms Puccini on 10 October. 90 On 12 October, Ms Puccini responded with the following questions: I'm happy with this. just a few questions: 1) did he actually see it happen? if so, can we describe that? if not, i think we need to expand on that. say that he didn't see it but believes it happened because xxx. 2) given we aren't naming him, are we showing his face? i think we need to explain why we're not naming him properly ... fear of retribution? 3) in the section towards the bottom where his colleague talks to the commando i think it would be good to build that out a bit. were the commando and the colleague both at the raid? if so i reckon we should say so … 91 This reply is consistent with Ms Puccini's evidence that she "trust[ed]" Mr Willacy's journalism (T714.12-13) and that "[w]ith Mr Willacy and all the other journalists on the team, I don't do their journalism for them": T714.4-8. At no point did she or anyone else check Mr Willacy's work against the information he had at the time of preparing the October Article: T715.25-29. Ms Puccini did concede, consistently with her initial view, that the ABC "could" have sought to contact other persons implicated in the allegations, rather than relying on Josh's "recollection" alone: T717.39-40. 92 Mr Willacy responded to Ms Puccini less than an hour later: To answer your questions ... I) He saw them wrangling prisoners but didn't see them kill one. They all heard the pop on the radio and then them report one less prisoner. I thought it was pretty much explained in his grab? 2) Yes, he's happy for us to show his face. He just doesn't want people to be able to Google his name. He does fear a backlash 3) Yes, they were. I'll state that 93 Notably, the explanation that Josh was not named for "fear of retribution" appeared in the next draft. 94 Contemporaneously, Mr Oakes had a brief telephone conversation with a member of Oscar Platoon, whom Mr Oakes had previously spoken to and who had deployed on several rotations in Afghanistan, including Rotation 18. Mr Oakes asked the source if he remembered anything like the Helicopter Allegation. The source said he had not but that he "did hear other stuff. It was certainly at a high level", continuing: Our platoon commander pulled our platoon together and said that the [DEA] have said in no uncertain terms have said they won't operate with November platoon any more due to their behaviour in the field, and us at Oscar would have to take the burden of all counter narcotic operations as a result, but we must not relay these concerns to November platoon. At the same time, a JTAC who was a captain in the [Royal Australian] Air Force was assigned to our rotation and he said the aircrews are at the point of not wanting to support FE-Bravo operations any more, and this had political and operational consequences. 95 Mr Oakes did not ask this source any further questions, nor did he seek to speak to the commander referred to by the source. He emailed the above passage to Mr Willacy for proposed inclusion in the October Article and, the following day, spoke to a further source from Oscar Platoon, providing Mr Willacy with the following quote: I remember talking to [DEA agent] afterwards, and he said 'we're not going out with those f***ing guys ever again'. Every DEA team that went through there loved working with us and had no problem, but November platoon was the first platoon that the DEA said they wouldn't work with. They didn't give any specifics, but it was just a look. Something obviously went down. 96 Mr Oakes was a generally measured witness who conceded the mere fact that a serious allegation is plausible to another person who has been in the same situation is not, without more, a sufficient basis upon which to conclude the allegation is true: T656.19-21. But he did not think Mr Willacy had mis-stepped in publishing Josh's allegations as he did. 97 Mr Willacy did not enquire of Mr Oakes how, or from whom, he obtained these comments; he relied upon his belief he knew and trusted Mr Oakes' "methods" ("[h]e's a very, very credible and hard-working journalist"): T236.12-13. Mr Oakes also told the Court he sought to contact members of November Platoon, but no-one was prepared to talk to him, on or off the record. 98 Mr Willacy added the following to the draft on 12 October, in the section discussing the Helicopter Allegation: It was part of a wider joint Australian Special Forces-US Drug Enforcement Agency campaign targeting illicit drug operations that were financing the Taliban insurgency. We had done the drug raid, the Aussies actually did a pretty impressive job, wrangling all the prisoners up," Thomas said. "We just watched them tackle and hog tie these guys and we knew their hands were tied behind their backs. 99 By this addition, Mr Willacy connected the Helicopter Allegation and the contention the DEA refused to work with November Platoon, notwithstanding the want of evidence they were linked. Tellingly, Ms Puccini noticed this on her next review, and questioned Mr Willacy, asking whether he thought November Platoon was responsible, and whether the draft should clarify the allegations relating to the DEA were separate from the Helicopter Allegation. Mr Willacy said he could not be sure the Helicopter Allegation concerned November Platoon, but that he did not think the DEA comments should be set apart because there was no suggestion another platoon had perpetrated the alleged conduct or otherwise behaved badly. In effect, Mr Willacy said that if a distinction was drawn, it might "point the finger at the other platoon [Oscar Platoon]. We do have that context of bad behaviour with the November Platoon": T285.35-286.19. Ms Puccini did not raise the issue again. 100 On the morning of 13 October, Mr Willacy sent a "legalled and edited" draft of the October Article to Ms Clare Blumer, a digital editor, and copied in Ms Blucher. That afternoon, Ms Blumer provided comments, including a query as to the proposed use of the term "executed". Mr Willacy responded addressing the comments, and further correspondence passed between Ms Blumer and Mr Willacy as to the appropriate headlines to be used.

C.4.3 The Final "Fact Check" 101 Ms Blucher gave evidence that once Ms Blumer had sent a near-final version to Mr Willacy and Ms Blucher that same day, Mr Willacy asked Ms Blucher to conduct a "final fact check". Mr Willacy was silent on the issue, and Mr Oakes could not recall this process occurring, but assumed that it would have as standard procedure for "a publication of this nature": T671.31-32. Mr Russell invited the Court to infer that whatever evidence Mr Willacy might have given about this issue would not have assisted him or the ABC, suggesting an inference of the type explained by Handley J in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (at 418-419) should be drawn. He also asked the Court to take the further step of inferring no fact checking occurred at all. But I can see no reason to disbelieve Ms Blucher's evidence that something described as a "fact check" took place (although as to what occurred, see below). 102 Ms Blucher had a meeting with Mr Willacy, at which she had access to a printed copy of the digital copy for the October Article and a copy of the transcripts from Mr Willacy's interviews with Josh in July and October: T585.32-36. Ms Blucher does not recollect whether she had access to any further materials, such as the emails between Mr Willacy and Josh. 103 Ms Blucher went through the copy line by line, asking Mr Willacy "what he had to back up each line". Where sources were quoted, she asked Mr Willacy whether what was in the copy was consistent with what he had been told by his sources. Ms Blucher also compared the digital copy with the interview transcripts. She then called Mr Oakes and read him each quote he had sourced, asking him to confirm whether the quotations in the draft matched what his sources had told him. 104 Ms Blucher was satisfied each line of the proposed copy was based on information provided by the sources and trusted that both Mr Willacy and Mr Oakes had satisfied themselves as to the reliability of their sources. She did not consider it her job to assess the reliability of the sources. 105 The real difficulty is that the so-called fact-checking process, in effect, amounted to little more than checking that the words in the draft, particularly those taken from sources, had been written down correctly. Indeed, Ms Blucher's evidence was that (T603.6-14): I think that that was sufficient because … I believe that [Mr Willacy] - I believe that he was capable of providing very credible sources who were saying what we've got in the story and me asking him those things is enough. 106 When pressed to explain the utility of such an exercise, Ms Blucher could say no more than "[t]o make sure that what we've got in the article is the same as what [Mr Willacy] was told." This was said to be sufficient because, in Ms Blucher's view, Messrs Willacy and Oakes were journalists of integrity in whom she reposed trust (at T604.8-13): … if you are deciding whether to include an anonymous source in a story and whether or not you ask to find out the identity of that source, you have to consider what the - a reason why you might not, you know, request that you speak directly to the source or get the identity of the source. It's - it is the reputation of that staff member or the credibility of that staff member and experience of that staff member, from memory. 107 All in all, the production process undertaken in relation to the October Article amounted to little more than an elaborate close proofreading. 108 The only other notable step taken in the initial drafting process was that Mr Willacy sought and obtained legal advice from ABC Legal in relation to the October Article twice, on 12 and 15 October.

C.4.4 Second Conversation with Confidential Source A 109 Shortly before the publication of the October Article, Mr Willacy met with Confidential Source A. The purposes of the conversation were to discuss Josh's allegations and to discuss other names and information he received while researching for Rogue Forces. 110 Mr Willacy relayed to Confidential Source A the Helicopter Allegation and the Throwdown Allegation. As to the former, it is said Confidential Source A expressed a view that the allegations were credible and that the IGADF was investigating November Platoon in relation to the execution of PUCs. Mr Willacy's contemporaneous notes record the name "Russell" in connexion with this conversation.

C.4.5 Contact with Defence 111 On the morning of 20 October, Ms Blucher submitted the following questions to Defence, requesting a response by 5pm: I work for ABC Investigations and have a query regarding a 2 Commando Regiment operation in mid-2012 in northern Helmand Province. I'd like to request a television interview with a relevant spokesperson for Defence about the story. If an interview is not possible, please provide responses to the following questions. 1. Is Defence aware of any allegations that in mid-2012 a member or members of 2 Commando Regiment in Afghanistan shot an Afghan detainee during an operation in northern Helmand Province? 2. Did Defence investigate any such allegation or allegations? 3. Did United States Coalition partners ever raise concerns about the treatment of Afghan detainees by Australian Special Forces? 112 Defence responded at approximately 6:20pm: "It is not appropriate for Defence to comment on matters that may or may not be the subject of the Afghanistan Inquiry". 113 The Defence comment was added to the draft October Article. Mr Willacy was of the view this was an important addition to demonstrate that the ABC had approached the relevant agency to satisfy its obligation to prepare and provide a balanced report. 114 No FOI request was made of Defence. Mr Willacy deposed this was because he knew from experience any such request would be denied because the IGADF Afghanistan Inquiry was still on foot.

C.4.6 Publication 115 Following further confirmation of Josh's military activities by Mr Willacy, the October Article was published on 21 October. 116 The following may be said of the October Article as published. 117 First, it states that Josh alleged the asserted wrongdoing was committed by the 2nd Commando Regiment. But the high-water mark was Josh's assertion he had worked with commandos identified in the Herald Article, and that he had worked with Task Force 66. And yet, the language deployed (for example, "Josh told ABC Investigations he was a door gunner providing aerial covering fire for the Australian soldiers of the 2nd Commando Regiment during a night raid in mid-2012" (emphasis added); Josh recounted "commandos then called up the US aircraft to pick them and about seven prisoners up"; and Josh attributed the Throwdown Allegation to commandos) plainly suggests ABC Investigations obtained specificity from Josh. Mr Willacy, to his credit, and correctly, ultimately accepted it was wrong for the October Article to state that Josh had told the ABC that he was working with the commandos that night: T275.12-32; T275.44-46; T276.22-40; T277.44-45: T421.10-17. Mr Robertson also properly conceded this point (T493.30-494.46) but the more combative Ms Puccini would not: T707.32-40; T708.40-46; T709.2-T710.19; T711.42-44. 118 Secondly, the account ultimately presented was not, even based on the limited information available to Mr Willacy, internally consistent. For example, Mr Willacy accepted that Josh never told him that it was the commandos he was working with that night: T276.33-34. He said he deduced this conclusion because of his information that it was the commandos who were working with the DEA: T284.20-21. However, the basis for drawing this conclusion was infirm as it put to one side the fact that Josh had expressly told him on 2 September that he never saw the DEA with the Australians he worked with in July 2012. 119 Thirdly, the Helicopter and Throwdown Allegations are linked to the comments from Mr Oakes' sources despite there being no connexion between them. Josh's account of the Throwdown Allegation is immediately followed by a heading, "We're not going to work with those f***king guys", and the following passage: A member of 2nd Commando's Oscar platoon who served on that deployment has confirmed that the Americans were unhappy with the conduct of some of his comrades. 'Our platoon commander pulled our platoon together and said that the [DEA] has said in no uncertain terms that they won't operate with [2nd Commando] November platoon any more … 120 Moreover, the "Key Points" displayed in bold, enlarged font at the top of the article present it as a coherent whole: Key points: • A US marine says Australians were known to leave "fire and bodies" in their wake in Afghanistan • Australian soldiers from 2nd Commando Regiment told the ABC the US Drug Enforcement Administration refused to work with the November platoon in Afghanistan • It is unclear if the alleged killing is covered in the Inspector-General of the Australian Defence Force's inquiry 121 Consistently with my findings in my first judgment, any rational reader would glean from this that November Platoon was the subject of criticism and, it is implied, the object of suspicion in relation to the specific allegations canvassed. 122 Fourthly, no reference is made to Josh's memory being incomplete or fuzzy, despite Josh repeating his concerns about his memory (including as recently as 2 October). Readers were not told of the "caveats" on Josh's account: T209.19-40. Mr Willacy's view was that notwithstanding Josh was consistent about his level of recollection during their interchanges, Mr Willacy had done independent work by which he was satisfied in his mind that there was a sufficient basis upon which he could be more specific than Josh: T207.28-39. Although the role of this deductive or inferential reasoning by the author in informing what was published was not made clear. 123 Fifthly, and in a similar vein, the caveats provided by Mr Oakes' two sources, "it was certainly at a high level" and "they didn't give any specifics", were not included. 124 Sixthly, the ABC Investigations team acknowledged there were steps which could have been taken in the research and drafting process which were not taken. There were obvious sources of potential corroboration which Mr Willacy did not seek out, notwithstanding Ms Puccini's suggestion he seek to verify Josh's allegations. Three examples suffice. First, no attempt was made to speak to the "platoon commander" referred to in Mr Oakes' comment (T278.16-30; T658.23-38); Mr Willacy accepted it would have been "helpful" and was a necessary step: T279.3-7. Ms Puccini accepted she could have asked either Mr Willacy or Mr Oakes whether they had spoken to the platoon commander, that it was "perhaps" an obvious step and that his name was ascertainable: T717.22-718.29. Secondly, no-one sought to speak to the "DEA agent" referred to, being Mr John "Bret" Hamilton, who worked with November Platoon in his role as team leader of the DEA's Foreign-deployed Advisory and Support Team (FAST). Thirdly, Mr Willacy admitted he should have clarified that Josh had said he saw no DEA agents with Australian soldiers at any time, whereas Mr Willacy was of the view the DEA was present and prepared the October Article on this basis.

C.5 Events following the Publication of the October Article 125 The material events of the year following the publication of the October Article may be classed into seven topics, broadly in chronological order: first, Mr Russell's public self-identification and denials of the allegations; secondly, the release of the Brereton Report and further research conducted by Mr Willacy; thirdly, the OSI's interest in the allegations put forward in the October Article; fourthly, the ABC's reporting into other aspects of Mr Russell's life; fifthly, an interaction between Messrs Russell and Willacy at a launch event for Rogue Forces; sixthly, the first editorial complaint by Mr Russell on behalf of November Platoon (First Complaint); and seventhly, a conversation between Mr Willacy and Mr Hamilton.

C.5.1 Mr Russell's Self-Identification and Denials 126 Following the publication of the October Article, Mr Russell embarked upon a media campaign by which he identified himself as commander of November Platoon and denied, specifically, the Helicopter Allegation. 127 As noted above, the Telegraph Article was published on 28 October 2020, leading to the publication of the press release discussed above (at [40]-[41]). On the same date, an interview with Mr Russell was broadcast on Sky News, elements of which were recounted in a further article published by The Daily Telegraph the next day, attributed to Ms Sally Coates, and entitled "Ex-special forces soldier Heston Russell says veterans used as 'punching bags'". 128 On 1 November, the Project Interview aired and, ten days later, Mr Russell was interviewed by Mr Fordham on 2GB. Mr Russell was introduced by Mr Fordham at the commencement of the interview as follows: "Heston Russell was there, he says it simply didn't happen. He's on a mission to clear his name and the names of others". Mr Russell repeated the Helicopter Allegation and expressed his disappointment that "individual circumstances [may be] put under the microscope … without context". 129 Mr Russell also wrote two opinion pieces in November 2020. The first was published in the Courier Mail on 13 November, and relevantly states, "Now, for the last two months, I have been requested to also provide evidence to support an AFP investigation". The second was published on 20 November in The Daily Telegraph, the Herald Sun and the NT News. There, Mr Russell asserted: I was crucified in my conversations with General Brereton ... I made a couple of tactical decisions that in context I want the Australian public to understand. I authorised my guys to fire warning shots because I was sick of us shooting people who were dropping weapons and running away ... So I authorised my guys to fire warning shots because we could not catch the people and we were legally authorised to shoot them. But basically that was a breach because Australians are not authorised to fire warning shots … Gen Brereton and his team basically used that, my permitting my guys to do that, to unpick the entire legitimacy of my moral and ethical leadership and actions in combat. 130 It is worthwhile saying something of Mr Willacy's public response to these denials. On 7 May 2021, during a stage interview with Mr Masters at the Walkley Awards, Mr Willacy explained he had "spent two months" working on the October Article, only to find himself frustrated at "this idea", apparently perpetuated by The Daily Telegraph, that "we make sh** up and we don't": And I found it a bit disappointing that you know, yeah, come after me if I've made a mistake or I've been loose with my journalism, come after me, I welcome it. But this journalist didn't even call me. Didn't ask to speak to the people I've spoken to. And I just found it annoying that in one day someone can pull down reporting or will try to pull it down, that takes two months. Um, and so I found that there was this competition that was healthy and collegiate within our organisation. And there was others that I found, yeah, a bit cheap at times. 131 These remarks capture Mr Willacy's belief in his journalism; however, that the notion he welcomes people coming after him alleging his journalism has been "loose" is difficult to reconcile with his reaction to criticism revealed in this case, including from Media Watch.

C.5.2 Relevant Findings in the Brereton Report 132 On 10 November 2020, a redacted version of the Brereton Report was released. Messrs Willacy and Robertson both read the report around this time. While its focus was undoubtedly on the SASR, it was clear that some adverse findings were made concerning the commandos: (1) Chapter 3.03, "Command and Collective Responsibility", contained the following statements: 25. [Redacted] commanded [redacted] Platoon, [redacted] Company Commando Group, FE[redacted], SOTG [redacted], as to which see Chapter 2.51 ([redacted]). 26. While [redacted]'s approach to the rules of engagement was somewhat cavalier - [redacted] - the Inquiry has not elicited any evidence that suggests that he knew, or suspected, that prisoners were being killed. (4) Chapter 2.51, to which reference was made in connexion with the Platoon commander referred to in the above example, was redacted in its entirety. Annexure C to Chapter 1.01, however, set out a consolidated list of findings and recommendations in other parts of the Report. In relation to Chapter 2.51 it said: On the available evidence, save for what is described in Chapter 2.43 [redacted], rumours concerning the killing of prisoners by members of [redacted], [redacted], in [redacted] of SOTG [redacted], are not substantiated. (Emphasis added). (5) The finding in relation to Chapter 2.43 was described as follows: There is credible information that at some stage during Special Operations Task Group Rotation [redacted] or [redacted], [redacted] wilfully and unlawfully caused the death of an unknown male Afghan, when he was hors de combat, being unarmed and under control, by shooting him, and that he did so at the direction of a superior. This may have been on [redacted] 2012 at [redacted]. It is possible that, at the same time and place, [redacted] male Afghan, who was hors de combat, being unarmed and under control was also wilfully and unlawfully killed. However, there is insufficient credible information to make a finding to that effect. (Emphasis added).

C.5.3 Further Research by Mr Willacy 133 Sometime in December, Mr Willacy had a conversation with Confidential Source A in which the pair spoke generally about November Platoon. Mr Willacy does not remember precisely what was said but has a contemporaneous note of soldiers' names he recognises as being in November Platoon, including Mr Russell's name. Around the turn of the year, Mr Willacy had a further conversation with Confidential Source A, in which Confidential Source A said he had heard Mr Russell attracted negative comments in the Brereton Report, and that he had acted without regard for the rules of engagement. 134 In May 2021, Mr Willacy watched what was known in this proceeding as the "souvenir video" for the 2nd Commando Regiment during their deployment to Afghanistan in the period 17 July 2012 to 1 December 2012. He had received the souvenir video from Mr Oakes sometime in 2020 and observed: (a) two separate incidents of an Australian commando shooting out of a helicopter towards an individual on the ground; (b) the firing of a javelin missile by an unspecified soldier; and (c) a tribute to the HMLA-469 unit, being the unit of which Josh was a member. 135 After the publication of Rogue Forces in August 2021, Mr Willacy was contacted by a former 2nd Commando Regiment soldier who had participated in more than half a dozen tours of Afghanistan, including Rotation 18 in 2012 (Confidential Source B). Mr Willacy asserts journalist privilege pursuant to s 126K of the EA in relation to the identity of Confidential Source B. By this time, he had known Confidential Source B for approximately a year. 136 Mr Willacy met in person with Confidential Source B, who apparently expressed a view to the effect that November Platoon were the "worst team", that the DEA "took their dealings with November Platoon up the chain", that a senior US military source had said to Confidential Source B he "only went out with that platoon once" and was "never going out with those mother f***ers ever again", that Mr Russell was in the platoon in question and that Confidential Source B had been interviewed by the IGADF in relation to these issues. 137 Mr Willacy told Confidential Source B about the Helicopter Allegation. Confidential Source B thought it sounded credible. He admitted he had not heard the exact allegation but suggested there were serious allegations around November Platoon executing PUCs, such that it would not surprise him if the Helicopter Allegation was true. Under cross-examination, however, Mr Willacy properly accepted that by relaying the Helicopter Allegation to Confidential Source B, he may have influenced Confidential Source B, who disliked November Platoon and Mr Russell, to say "exaggerated, negative things" about them: T400.6-14. Indeed, Mr Willacy told the Court under cross-examination he spoke with another source in about July 2020 who memorably criticised Confidential Source B as, among other things, a "signaller" and a "show pony" with "a way with words": T252.11-15. This description was not referred to in Mr Willacy's affidavit evidence, where he gave evidence he regarded Confidential Source B as credible. 138 Confidential Source B also explained that the 2nd Commando Regiment was in Southern Afghanistan in late 2012, that he was personally on that deployment, and the only platoons from 2nd Commando Regiment on Rotation 18 were Oscar and November Platoons.

C.5.4 The OSI's Interest in the October Article 139 I have already mentioned the interest taken by the OSI in the allegations put forward in the October Article. By way of elaboration, on 28 August 2021, Mr Willacy received an email from Mr Ross Barnett (the director of investigations at the OSI) requesting an opportunity for the OSI to take a statement from him to: establish a solid relationship of trust, confidence and confidentiality with you as we expect to need to talk to you again as our investigations progress and your relationship with key witnesses is very important to us. After that we are keen to talk through your knowledge of the key players you speak of in your book and your knowledge of the war crimes alleged in the book … 140 Mr Willacy attended the AFP offices in Brisbane on 1 and 2 September 2021 for those purposes: T326.28-29. He signed a statement on 2 September 2021 setting out those matters but excluding any information as to Josh and the allegations advanced by him: T326.21-36. 141 On 13 October 2021, Mr Willacy volunteered his emails with him to the OSI "as background only and not [to] go into your official record at all". Mr Willacy claimed in that email there had been "potential threats emanating from Heston Russell following the broadcast of my story. I heard from a former ADF officer who was in touch with Heston Russell that Russell had spread the word around that they were trying to find Josh": T330.32-37. 142 Mr Barnett expressed an interest in investigating Josh's allegations further. 143 On 1 November, Ms Puccini received a letter from the OSI requesting a copy of a compilation of helmet camera footage recorded by members of the 2nd Commando Regiment and footage of Mr Willacy's interviews with Josh. That letter explained the OSI was "review[ing] the findings of the [IGADF Afghanistan Inquiry]"; "work[ing] with the [AFP] to investigate the commission of criminal offences under Australian law arising from or related to any breaches of the laws of armed conflict by members of [Defence] in Afghanistan from 2005 to 2016" and established to "develop briefs of evidence in respect of any offences that are established, for referral to the Commonwealth Director of Public Prosecutions for prosecution." It continued to say it would "assist our investigation if [the ABC] could provide the OSI with the [requested material]" and that "[t]o avoid prejudicing any ongoing investigations, we ask that this request be regarded as confidential". 144 Mr Willacy was visited at his home a few days later and questioned by Mr Barnett and two OSI team members. The focus of the OSI was the 2nd Commando Regiment (T356.1-9) and November Platoon (T403.29-40), including alleged executions of non-combatants. They also confirmed they had verified Josh's record, that his deployment period overlapped with November Platoon and the OSI intended to speak with him. 145 Mr Willacy gave evidence he did not recall any member of the OSI team informing him that Mr Russell was the subject of a criminal investigation. 146 It is well here to deal with Mr Russell's submission that the OSI was interested in meeting with Mr Willacy because it was labouring under the misapprehension that Josh had squarely accused November Platoon of the Helicopter Allegation. This might have some truth in it, but it is also likely that Mr Barnett saw Mr Willacy as someone with whom the OSI should establish an ongoing relationship, owing to the sources and material he had collected in preparing numerous articles and reports and in writing Rogue Forces.

C.5.5 Further ABC Reporting on Mr Russell 147 Once Mr Russell had self-identified as the commander of November Platoon, his name came across desks at ABC Investigations with increasing frequency. Ms Puccini gave evidence that not all the possible stories arising from these communications met the ABC's "public interest threshold" and it was decided they would not be pursued: T677.35-36. 148 One story the ABC decided to publish concerned legal action and an investigation by NSW Fair Trading regarding fundraising by Mr Russell's company, Voice of a Veteran Pty Ltd. On 10 September 2021, Mr Robertson co-wrote with Ms Kate Banville and Mr Oakes an article entitled "Former commando Heston Russell sued over unpaid 'veteran supporter pins' as he prepares to register political party" (Supporter Pins Article).

C.5.6 The Bookshop Interaction 149 One of the more curious occurrences in the period between publication of the October and November Articles took place at the Avid Reader Bookshop in Brisbane on 28 September 2021, at a book launch for Rogue Forces. 150 The launch event involved a book signing and an interview between Mr Willacy and journalist Mr Peter Greste. Mr Willacy told the Court he brought with him a friend who had previously served in the SASR because he was "concerned [his] book might attract people who want[ed] to hurt [him]". 151 Mr Russell was in the audience and filmed part of the event on his mobile phone. Mr Willacy gave evidence he understood the act of filming to be one of "attempted intimidation". Mr Russell's position is that he filmed the event for his social media. Mr Willacy mentioned Mr Russell in response to a question from an audience member about the impact his book might have on veterans noting Mr Russell's work in relation to veteran suicide and mental health issues. 152 Once the formalities had concluded, Mr Russell approached Mr Willacy with a friend. There are discrepancies in the accounts as to how long the conversation lasted and precisely what was said was also contested. It is agreed however that the October Article was discussed at length. Mr Willacy gave Mr Russell his contact details and offered to discuss his complaints, but Mr Russell did not take up this opportunity. It is unnecessary to resolve the conflicts in the evidence about these matters.

C.5.7 The First Complaint by Mr Russell 153 On 17 October 2021, just shy of one year after the publication of the October Article, Mr Russell sent a complaint to the ABC's Audience and Consumer Affairs Department (ACA) about the October Article "on behalf of November Platoon" (First Complaint). The First Complaint called for an "independent review" of the October Article and provided (at [6]): "We were all being recorded on our comms," he ('Josh') said. Have you requested access to these from the Department of Defence including the submission of a FOI? (Every mission's [sic] communications were indeed recorded). 154 The First Complaint was handled by Ms Kirstin McLiesh, then Head of ACA. 155 The complaint was received well after the ABC's six-week acceptance period. Ms Puccini requested a meeting with Ms McLiesh and Mr John Lyons (who was at the time Executive Editor and Head of Investigative Journalism), as well as Messrs Maley and Willacy "to ensure confidential sources were protected in the complaint handling process". During the meeting, Ms Puccini also indicated her view that the ABC should accept the complaint in the light of Mr Russell's "public campaign" to date, to ensure he would not use any rejection of the complaint to suggest the ABC was trying to hide something. 156 Ms Puccini's concern and, as she put it, "frustration" about Mr Russell's media campaign is reflected in the following email she sent to Mr Willacy around this time: Is this too provocative a response to a question about Heston? "Liam you'll appreciate that I can't comment about that while there's an abc investigation and other police investigations going on into the matter" Or something like that. Something that might freak Heston out a little Too much? 157 Ms Puccini could not recall with precision the circumstances in which this email was sent but inferred "Liam" was likely a reference to Mr Liam Bartlett, a reporter known for his work on the 60 Minutes programme. Although this email does not reflect well on Ms Puccini, it is easy to be critical of private emails and it should be recognised that Ms Puccini did not send a response in these terms; and she accepted it would have been "inappropriate" to respond to a press inquiry with the stated motive (T745.15-21); "[t]hat's why I didn't do it", explaining: [i]t was a moment of frustration to a colleague because we - I wasn't able to get out information that would have made known that it was a serious enough allegation for the OSI to be interested in and that's it. I didn't act on it. I moved on. 158 Returning to the chronology, on 2 November, Ms McLiesh requested information from Mr Russell as to his reasons for the delay in making the complaint. Mr Russell responded emphasising the seriousness of the allegations made and representing he and other members of November Platoon had assumed the ABC would initiate its own review. 159 On 18 November, the ACA notified Mr Russell (and, separately, Mr Willacy and Ms Puccini), that it intended to investigate Mr Russell's complaint. 160 Mr Russell was not advised of the outcome of the investigation until 29 March 2022, some four months after the publication of the November Article.

C.5.8 Conversation between Mr Willacy and Mr Hamilton 161 On 17 November 2021, four days before the publication of the November Article, Mr Willacy belatedly contacted Mr Hamilton (as noted above, a previous DEA team leader), on LinkedIn, requesting an "off-the-record chat" in relation to the deployment of the 2nd Commando Regiment with the DEA on counter-narcotics missions. 162 Mr Hamilton responded within a few hours, "I'd be happy to to [sic] speak to you. Especially about the work we did with 2nd Commando. It was the highlight of my professional career". 163 Messrs Hamilton and Willacy had a video call on or about 17 November, during which Mr Willacy asked Mr Hamilton about November Platoon and Mr Russell. Mr Hamilton explained the FAST operations between the DEA and other forces in Afghanistan in 2011 and 2012. He said the 2nd Commando Regiment were the "most professional guys" who were "easy to work with", and that he had not experienced "heavy handedness" by them. 164 Reflecting evident resistance to what he was being told, Mr Willacy put forward a number of negatively loaded and leading propositions about November Platoon: "it's just that a few of the guys have raised to me again and again, this is just between you and I, that there was a few things that happened with November platoon that even the Aussie guys were not comfortable with …"; "Would it be fair to say, the November boys who are a little bit heavy handed than sort of what's come from Oscar towards us anyway?"; "So the November they just moved a bit too fast and maybe the attitude wasn't quite right. That's an accurate rendering, you think?"; and "Do you remember much about young Heston? He was very young at that time, and he's a very having met him … he's a very confident young bloke". 165 Mr Hamilton was having none of it. In response, he described Mr Russell as: a very confident young man. A little bit, a little bit boisterous maybe. Yeah. I had a great deal of respect for him. And I mean, the guy physically was a man was a stud. I mean, he, I think I mean I don't know this for sure but I think he had the respect of his platoon. You know, he command I remember he commanded. He had a great command presence on the ground. He was very confident on target you know, the one or two times we went out on or went out with them and that's really all I remember. 166 Mr Willacy did not ask Mr Hamilton if he could utilise his comments in any future reporting about November Platoon or Mr Russell. He did not feature Mr Hamilton's comments in the November Article nor correspond further with Mr Hamilton in relation to it. 167 I pause here to note three matters. 168 First, I asked Mr Willacy why, if all he was seeking to do was elicit information in a neutral way, he would put such leading propositions to Mr Hamilton, to which he responded, "Well, I wouldn't put a leading proposition like that to someone on the record on camera interview. But I thought - in a background check conversation, I thought it would be okay but I get your point": T364.9-13. The nature of this interaction supports the submission of Mr Russell that (at least by this time) Mr Willacy was more focussed on obtaining confirmation of views he had already formed than in obtaining information which could clarify or challenge the information already conveyed as to Josh's allegations. 169 Secondly, given its terms, it is odd that Mr Willacy did not include anything about it in his first affidavit. His position was that he recollected the communication when he affirmed his affidavit and believed such material would have been in existence, but could not find a contemporaneous note, recording or transcript at the time. He described its exclusion from his first affidavit as an "oversight": T190.6-46. 170 Thirdly, as will be seen, this conversation is neither referenced nor alluded to in the November Article, despite taking place only days before its publication. As I understand it, the justification proffered was that the discussion between Messrs Hamilton and Willacy was off the record, and, in Mr Willacy's terms, "not for reporting … This is just for background and context and goes no further". What is apparent, however, is that Mr Hamilton's views did not qualify or apparently inform any non-attributed information contained in the November Article or prompt further enquires or reconsideration of what had previously been published, prior to publishing the Linked Article.

C.6.1 FOI Application 171 On 23 October 2021, in the light of Mr Russell's First Complaint, Mr Willacy submitted a request for documents to Defence pursuant to the FOI Act (FOI Application). 172 By the application, Mr Willacy sought: (1) audio copies of recorded mission communications including radio communications) for November Platoon, 2nd Commando Regiment, during missions in Afghanistan between 1 June 2012 and 31 July 2012; (2) mission summary reporting by and/or about November Platoon, including numbers of detainees taken off target and "Enemy Killed in Action" data, between 1 June 2012 and 31 July 2012; (3) communications, including emails and reports, between Defence and the DEA between 1 January 2012 and 31 August 2012; and (4) any complaints and/or disciplinary action taken against members of November Platoon in the calendar year 2012. 173 Mr Willacy told the Court he was "reasonably confident" he would get a non-response or "TPP response" from Defence (that is, a response that information could not be released because it might disclose Defence "tactics, policies and procedures"): T368.23-28; T962.20-21. When asked by senior counsel for Mr Russell whether the FOI Application was "a ruse to generate a story", Mr Willacy did not embrace the pejorative characterisation but responded (T368.30-34): Well, if it's a story, it's a story. And you generated it?---Sometimes, we do generate stories, by going to look for them. Yes. 174 Sometime in late October or early November, Mr Barnett informed Mr Willacy that the FOI Application had been referred to the OSI, and that he did not think Mr Willacy was likely to be successful in obtaining the information. Mr Willacy took this to mean the information would be withheld because it was part of an investigation. 175 On 19 November 2021 at 7:19am, Mr Willacy received the FOI Response from Defence, indicating his request had been refused. It made specific reference to, and extracted, s 37(1)(a) of the FOI Act (at [5]) and paragraph 5.86 of the guidelines made under s 93A of the FOI Act (Guidelines) (at [6]) and stated, "I found that the documents contained information, if disclosed, could reasonably be expected to prejudice the conduct of a current investigation of a possible breach of the law" (at [7]). The FOI Response went on to refer to paragraphs 5.92 and 5.79 of the Guidelines (at [8]) and concluded "The release of this information prior to the conclusion of the investigation could impact the direction of the investigation. Further, I consider the pre-emptive release of the documents, which may be used as evidence by the investigating body, could also jeopardise the outcome of the investigation" (at [9]). 176 For reasons discussed below, Mr Willacy was not at work but emailed a copy of the FOI Response to Ms Jackson and Ms Puccini at around 7:25am, stating, "[t]his is very helpful, worth a story I think". He told the Court he believed a story should be published urgently because he was concerned Defence's response would be featured on Defence's FOI disclosure log and risk being reported on by another media organisation: T403.5-16; T515.20-41; T516.25-45. Senior counsel for Mr Russell made much of the fact that the FOI disclosure log is only updated where Defence provides documents in response to an application, submitting that Mr Willacy must have known this was the case, given his experience in completing FOI applications and that accordingly, there was no urgent need to publish the November Article. But I accept that Mr Willacy and Mr Robertson believed that the FOI Response might be published on the disclosure log by Defence, in the light of their awareness that: (a) Defence's webpage relating to FOI requests which states that "FOI request outcomes are disclosed on the FOI disclosure log page"; and (b) other agencies do publish outcomes where no documents are released: T245.10-27; T515.20-22. In any event, this seems to me to make much ado about nothing: it is not disputed the ABC intended, following receipt of the FOI Response, to push out an article as promptly as possible. 177 I find that Mr Willacy perceived the FOI Response confirmed an investigation into November Platoon was underway and that circumstance was "worth a story" which might cause further witnesses to come forward. 178 Ms Puccini and Mr Willacy had a telephone conversation about the proposed article, and by 8:03am, Mr Willacy had prepared and sent a draft of the November Article to Ms Puccini and Mr Robertson with the covering email: "Let's discuss. But whoever does the attached should do radio news too". 179 This email was the first Mr Robertson had heard of the proposed story, but he took it as an indication he would be responsible for it. He was aware Mr Willacy would be on leave and that the OSI had been in communication with the ABC about November Platoon and had recently conducted work on potential stories relating to Mr Russell as well as the Supporter Pins Article. He understood, based on this information, that the OSI was investigating November Platoon, and assumed the investigation, at least in part, concerned Soldier X: T510.35-41. 180 It is relevant to note that Mr Robertson had, by this time, seen the souvenir video and was told by both Mr Willacy and Mr Oakes the person shooting from the helicopter was allegedly Mr Russell. Mr Robertson prepared a draft article about this allegation in September but determined not to pursue publishing it as it was "rough as guts", and he was "unable to satisfy [himself] that a publication about that allegation at the time would be in the public interest": T506.23-35. 181 It is also necessary to address here the repeated submission by Mr Russell that Mr Willacy's involvement in the November Article was deliberately concealed for some nefarious purpose. I am unconvinced this was the case. Despite the scepticism of senior counsel for Mr Russell, the most likely explanation for Mr Willacy's exclusion from the by-line is that he was on leave, having lunch and drinks with friends and the issue was not at the forefront of Mr Robertson's mind. I do not consider there was some sort of conspiracy to hide his involvement: if so, it would have been a poorly executed one as the November Article included a link to the FOI Response, which names Mr Willacy as the requesting party.

C.6.2 Steps Taken Prior to Publication 182 Notwithstanding his indication that Mr Robertson or another journalist should take carriage of the story, Mr Willacy contacted the OSI media team in the following terms at 8:43am, seeking a response by midday: Can the OSI confirm it is investigating November Platoon over an incident described in the ABC news link below or for any other incident in Afghanistan during the time period specified in the ABC's FOI to Defence? https:l/www.abc.net.au/news/2020-10-21/soldiers-killed-man-who-could-notfit-on-aircraft-says-us-marine/12782756 Would it be possible to have a response by midday today? 183 In the meantime, Mr Robertson set upon preparing Mr Willacy's draft for publication. 184 Mr Robertson was candid as to the steps taken (and not taken) by him in the lead up to publication, making several appropriate concessions. He understood he was responsible for the story, and that he was taking responsibility for the "entire content" and all allegations advanced: T511.29-30; T514.27-30. 185 Ultimately, Mr Robertson formed the view he did not need to investigate the allegations put forward in Mr Willacy's draft himself. He understood that the article would be a "follow" to the October Article, namely that it would "build on investigative work, but it wasn't an investigative piece, per se, because it's done as a follow, in a response to, you know, a document that lobs - it's done, sort of, within hours": T533.27-29. He told the Court he trusted the work of his colleague and was content to rely on casual conversations they had previously had about Josh's allegations, November Platoon and Mr Russell: T487.33-36. This is so notwithstanding his acceptance of the abstract proposition that when given information as an investigative journalist, one needs to check it, regardless of its provenance: T506.44-46. 186 The Court heard Mr Robertson had the following strands of information available to him. 187 First, Ms Puccini had been contacted by the OSI in relation to providing footage, including of Mr Willacy's interview with Josh, to the OSI. He also knew Mr Willacy had been in "serial" discussions with the OSI "in relation to various special forces matters but including November Platoon, and he said they were asking about Heston Russell, but I didn't have the belief that Heston Russell personally was being criminally investigated": T544.14-18. 188 Secondly, he thought the allegations made by Josh were against November Platoon: T481.22-25; T482.1-3, 14-17: T483.18-22. Furthermore, having read the October Article and the draft of the November Article, he was impressed by Josh's willingness to "put his face behind the allegation", seeing this as a "marker, in my experience, of … somebody who lends more credibility to their account": T486.9-12. 189 Thirdly, he considered the FOI Response and formed the view that although only three of four categories requested specifically referred to November Platoon, he considered all categories were relevant to any investigation of November Platoon. He gleaned from the reasons for decision that there was a "current or pending investigation", and that such an investigation would not be on foot unless the OSI considered there was a reasonable basis to suspect there had been a possible breach of the law. Reasonable suspicion is, in his view, a "prerequisite" for devoting resources to an investigative pursuit: T498.29-37. He also inferred it was a criminal investigation. He accepted, however, that if he had not had this understanding of the FOI Response, he would not have believed the story was in the public interest: T571.1-9. 190 I should set out here several aspects of Mr Robertson's evidence in cross-examination. 191 First, Mr Robertson intended to allege that November Platoon was the subject of the Helicopter Allegation and was under investigation for that killing: T495.39-46; T496.1-5. Secondly, he had no awareness Josh had placed caveats on his account owing to "fuzzy" memory and said he would have regarded this as relevant to his assessment of whether to publish the allegation: T488.35-489.40. Thirdly, assuming Josh never directly implicated the 2nd Commando Regiment, Mr Robertson told the Court he may not have put his name to "Josh told ABC Investigations that his team was providing aerial covering fire for the Australian soldiers of 2nd Commando Regiment": T494.15-22. Fourthly, and similarly, he would not have referred to the commandos if Josh had referred only to Australian soldiers, unless it was "inescapable that it was the commandos": T494.39-43. Fifthly, he did not know whether Mr Russell was the subject of an active criminal investigation: T566.35-40. Sixthly, he also had no information of any allegation directly against Mr Russell: T566.42-45. 192 On the information before him, Mr Robertson amended Mr Willacy's draft to simplify and strengthen the lead. Mr Willacy's draft emphasised that Defence had: refused to release audio recordings and reports relating to the conduct of an Australian Commando platoon in Afghanistan in 2012, saying to do so would compromise an ongoing investigation and prejudice any possible trial. 193 Mr Robertson changed the focus slightly such that primary focus was placed on the existence of an active criminal investigation rather than the refusal of the FOI Application; Mr Willacy agreed. He also recommended Mr Robertson seek comment from Mr Russell and speak to Ms Puccini and ABC Legal. 194 Mr Robertson expressed these views to Ms Puccini and ventilated queries as to whether Mr Russell should be contacted. Ms Puccini advised he should be contacted because he had previously criticised the ABC's coverage in the media. Before doing so, Mr Robertson conducted internet searches as to Mr Russell's response to the October Article so that he could include Mr Russell's recently publicised position. 195 Mr Robertson's searches revealed Mr Russell's position was to deny the allegations, and he included this in the draft: "Heston Russell later said he was present on operations and denied that his soldiers had ever harmed a prisoner, calling on the ABC to retract the story and apologise". 196 Shortly before midday, Mr Willacy received the following response to his request to the OSI, which he forwarded to Mr Robertson and Ms Puccini: "Consistent with your earlier enquiry, we do not comment on specific allegations or investigations". Mr Robertson included it in the current draft. 197 In the mid-morning, Mr Robertson had phone conversations with both Mr Willacy and Ms Puccini, before sending proposed radio and online stories to both around midday (and sending the online story to Mr Dan Harrison, a digital editor). Mr Willacy proposed certain amendments to the radio story. Meanwhile, the current draft article was "referred up", including to Messrs Lyons and Maley. Notably, Ms Puccini circulated the draft with the following covering email: Can you please have a look at this ASAP? Sally Jackson wants to release a statement with the story embedded once it's published We will go to Heston Russell once you have approved (Emphasis added). 198 A short time later, Mr Lyons responded, "I'm good with this story all", which Mr Robertson believed constituted his approval of the publication of the story. 199 Before 1pm, Mr Robertson emailed Ms Puccini and Mr Harrison asking whether they had any last minute views as to what he should ask Mr Russell. Ms Puccini responded with the following admonition: No just keep it straight Is he aware of an investigation Has he been contacted by investigators To his knowledge has anyone at November platform [sic] been contacted 200 During the day Mr Willacy was copied in on a number of internal emails regarding the November Article but gave evidence he did not read them until much later in the day, and that he did not respond to them. None of the emails were directed to him for response and both he and Mr Robertson considered Mr Robertson had carriage of the story. Mr Robertson accepted he took responsibility for the allegations in the November Article because the by-line bore his name only: T511.29-39.

C.6.3 Mr Robertson's Contact with Mr Russell 201 At around 1pm, Mr Robertson called Mr Russell for comment. Mr Russell gave evidence he was "disturbed" by the fact Mr Robertson recorded the conversation without his consent or knowledge (this evidence was given notwithstanding Mr Russell secretly recorded people without their knowledge, and then released and used those recordings for his own benefit (T79.42-80.26; T81.25-44)). He also advanced a submission Mr Robertson violated certain ABC codes, policies, and guidance notes in recording the conversation. But Mr Robertson did not contravene the policies set out in Mr Russell's written submissions (at [172A]), which are directed towards obtaining material by deception, not to recording lawfully (given Mr Robertson's location in Queensland) as a substitute to notetaking. 202 Mr Russell said he would only participate in a live, unedited interview and queried why the ABC had not yet responded to his First Complaint. While Mr Robertson was aware of Mr Russell's concerns about the October Article because of the Telegraph Article and other press appearances, at no time prior to the above conversation was Mr Robertson aware that an editorial complaint had been made about the October Article. He informed Mr Russell it was "out of his hands". Mr Robertson asked if Mr Russell was aware of a criminal investigation into November Platoon; if he was aware of any members of November Platoon being contacted by investigators; and whether he had been contacted by investigators. He answered no on each occasion and, when asked if he had anything further to add, noted he was looking forward to the ABC conducting a review of the October Article and issuing an apology. 203 As is evident, Mr Robertson did not stray from the questions proposed by Ms Puccini. Importantly, because of Ms Puccini's email, he did not put to Mr Russell that the ABC would be re-publishing the substance of the October Article: T547.11-16. By failing to do so, he deprived Mr Russell of a specific opportunity to state a position in defence of himself and November Platoon. Indeed, Mr Robertson properly accepted it was an obvious decision as a matter of fairness to speak to Mr Russell about what was about to be published and to record a response to the allegations that were going to be made in the article: T533.44-534.2. He accepted that the story, which was already drafted, went well beyond his questions: T553.43-47. If a genuine response was being sought, Mr Russell should not have been left to guess that Mr Robertson intended to state, as fact, that a criminal investigation was underway and that he intended restate the allegations from the October Article and link them to his question about a criminal investigation. 204 After the call, Mr Robertson amended the draft article to include a comment from Mr Russell as follows: When contacted by the ABC, Heston Russell said he was not aware of the investigation, nor of investigators contacting any member of his former platoon. ~I'm looking forward to the ABC conducting their internal review of their November Platoon I marine heard a 'pop' story and an apology being issued," he said. 205 At about 1:15pm, Mr Robertson sent a copy of the revised draft to Ms Puccini and Mr Harrison, copying in Mr Willacy. Ms Puccini responded at 1:23pm: "Thanks. I'm good to publish". 206 But Ms Puccini was dissatisfied upon further reflection. As noted above, and reflecting the defensiveness within ABC Investigations, her perception of being part of a culture war and the suspicions in relation to Mr Russell, at 1:43pm she sent a further email to Messrs Robertson and Harrison as follows: Just thinking do we need the "apology" comment? He's had a Huge platform on 2gb. I don't know that we need to amplify it. Especially when we know what we know about him. Thoughts? 207 Mr Robertson wrote back in agreement a minute later: "I'm totally ok with not giving him air to do that because it was a less than relevant aside at the end". He described his rationale as wanting to avoid equipping Mr Russell with a "big stick" with an "ABC logo on it to hit us": T561.15-17. Further, he considered it sufficient to feature an unreserved denial by Mr Russell (T545.41-42); he asked Mr Russell if there was "anything else" he would like to say, to which Mr Russell said nothing, but Mr Robertson considered it appropriate to include a summary of the denial: T546.1-11. 208 Mr Robertson did not think it was necessary to include in the November Article that the October Article was the subject of an editorial complaint; he does not, as a journalist, feel obliged to explain precisely the story that will result to those he questions (T548.1-6), but nonetheless thought his explicit questions as to a criminal investigation into November Platoon were "a fairly large cue about what I'm looking at": T546.23.

C.6.4 "Digital" Editing and Final Steps 209 The baton then passed to Mr Harrison as digital editor. 210 At 1:57pm, Mr Harrison emailed Mr Robertson and Ms Puccini (copying in Mr Willacy) with a first draft of the digital story. In his role as digital producer, Mr Harrison was responsible for drafting the Key Points and adding the internal story hyperlinks and related stories hyperlinks at the bottom of the page. He also, consistently with Mr Robertson and Ms Puccini's views, removed the quote from Mr Russell as to his demand for an apology. 211 Mr Harrison had inserted a bullet point in the Key Points which stated: "The ABC last year reported a US Marine's allegations that the November platoon killed an Afghan prisoner after being told he would not fit on an aircraft". This reflected his (entirely understandable) reading that it seemed to him to be "central to the November Article". 212 Mr Harrison then emailed the draft to Mr Robertson and Ms Puccini with his changes, copying in Mr Willacy. Mr Robertson read the Key Points and did not alter them, accepting that the "distinction between Josh's claims and the November Platoon in the October Article may have been lost on [him] at the time". 213 Meanwhile, Mr Willacy was enjoying his day off, out with mates at a hotel (T367.31-32; T404.30; T404.42-43), and Ms Puccini was at a Walkley Award judging event. Ms Puccini did not read the article properly once it reached the digital editing stage, and so had not seen the final product, including the Key Points, telling the Court it did not come to her attention until raised by Ms McLiesh in the complaints process: T765.10-21. She admitted she "made an error" in failing to review the final draft closely: T767.13-15. 214 The final step taken before publication was an email exchange between Mr Robertson and ABC Legal. 215 The November Article was published at 3:24pm. It included links to the October Article in three places. 216 The following mobile alerts were published, "The Defence Department has confirmed a platoon accused of unlawfully killing an Afghan prisoner is now the subject of a criminal investigation" and "An Australian platoon accused of unlawfully killing an Afghan prisoner is now the subject of a criminal investigation, the Defence Department says". The following "teaser titles" were used across the ABC's online platforms: (1) "Defence confirms active criminal investigation into conduct of Australian Commando platoon in Afghanistan"; (2) "Australian Commando platoon's conduct in Afghanistan under criminal investigation, Defence confirms"; (3) "Australian platoon accused of unlawfully killing Afghan prisoner the subject of criminal investigation, Defence confirms"; and (4) "Platoon that was accused of killing Afghan prisoner to save space on aircraft now under criminal investigation, Defence confirms". 217 Within minutes of publication, Mr Robertson sent Mr Willacy a text message, "The eagle has landed", along with a link to the published article. Mr Robertson gave evidence he was not consciously referring to the popular Jack Higgin's novel or 1976 film telling the story of a fictitious German attempt to assassinate the Prime Minister during a visit to Norfolk, but rather, simply intended to indicate to Mr Willacy that "it has happened, it has been done": T563.35. Messrs Robertson and Willacy and Ms Puccini also tweeted the November Article almost immediately. Other ABC employees also tweeted about it. 218 Later that day, the ABC published a self-congratulatory press release, reminiscent of that published in the wake of the Telegraph Article: Stories about alleged war crimes can be deeply distressing for everyone involved, but the conduct of Australian forces, particularly in combat situations, is of crucial concern to all Australians. It's the role and responsibility of the media to report these matters of vital public interest unflinchingly and fairly. A complaint regarding the October 2020 story "US marine says Australian special forces soldiers made 'deliberate decision to break the rules of war" is being investigated by the ABC's Audience & Consumer Affairs unit. Before accepting the complaint, A&CA initially sought further information about it, as the usual window to consider editorial complaints is within six weeks of publication and this complaint was received almost a year after the story was published. The story was the result of extensive work over two months, including multiple interviews with the key source, who stands by his account. We do not comment in detail on our war crimes stories outside our careful reporting, as that has the potential to jeopardise confidential sources - people who themselves are or were members of the military - and adversely impact sensitive and important investigations. Mark Willacy has committed more than two years to comprehensively researching and investigating stories about allegations of serious misconduct by Australian special forces in Afghanistan, including the findings of the Brereton Report, which found evidence of 39 unlawful killings of prisoners and civilians by, or at the instruction of, members of the Australian special forces, most notably the SAS. Willacy is one of Australia's best and most highly-awarded journalists. The issues investigated in his reporting are highly newsworthy and represent matters of public interest worthy of examination. Willacy's reporting has been based on concerns raised from within the ranks of the elite unit by serving and former members, SAS operators, support staff and intelligence officers. Stories he has produced have been followed up by the Brereton Inquiry and sparked a war crimes investigation by the AFP. At all times Defence has been provided with an opportunity to respond to the issues raised in the reporting … 219 Pausing here, it is worth highlighting Mr Willacy's repeated assertions (including to the OSI) that he had investigated the substance of the October Article for "months". This is less than accurate, yet this comment was repeatedly deployed to add rigour to Mr Willacy's reporting. His evidence initially was that he investigated the allegations for three months, including sending "dozens of emails" over 24 separate dates (T209.8-12), then it was that the work occurred "over three months" (T304.25-28), but then it was accepted that he did not spend even close to 40 days on it but "was working on it over the period": T349.30-350.11. Indeed, he also gave evidence he was off work in August and September 2021 to conduct work on Rogue Forces.

C.7 The Television and Radio Broadcasts 220 Shortly before 4pm, Mr Robertson was asked by other ABC staff whether he was available to appear on ABC News in relation to the November Article. He agreed to appear and provided questions to the television team for the purpose of the programme. The Television Broadcast aired at around 5pm and was made available for later viewing. 221 The Radio Broadcast was also published around the country and made available for later listening.

C.8 Mr Russell's Response 222 Although the events following initial publication are directly relevant to the defence only as they relate to continuing publication, they are apparently relied upon by Mr Russell as shedding some light on the reasonableness of contemporaneous belief that publication was in the public interest. Hence, I will deal with them in this section of my reasons although, as will be seen, these events, to the extent they are relevant, relate far more to issues of the extent and aggravation of damage. 223 In any event, on the day of publication, Mr Russell emailed Mr David Anderson, Managing Director of the ABC, along with Mr Willacy, the ABC Board, Mr Gaven Morris, and Mr Craig McMurtrie, "volunteer[ing]" to conduct a live interview with ABC. He did not receive a response, although the email was discussed internally and came to the attention of each of Messrs Willacy and Robertson and Ms Puccini. 224 On 23 November 2021, Mr Russell published a YouTube video and a statement, raising an issue as to the presence of November Platoon in Afghanistan at the time the events the subject of the Helicopter Allegation were said to have taken place: The fact is that November Platoon was not deployed to Afghanistan until the middle of July 2012 ... November Platoon did not commence outside the wire operations in Afghanistan until August 2012 … November Platoon did not even conduct a mission into or enter Helmand Province until September 2012. Nearly two months after the alleged incident was supposed to have taken place.

C.9 The Amendment of the November Article 225 Upon hearing of Mr Russell's response, Ms Puccini understandably asked Mr Willacy whether Mr Russell's version of events impacted upon the November Article. Mr Willacy said it did not, but that the article should be updated to reflect that there were categories of the FOI Application directed at a wider date range (including one limb reflecting the entire 2012 calendar year). This was done on 23 November, and an editor's note was also added to explain the change. Mr Willacy maintained, in his oral evidence, that he did not believe the November Article was structured in such a way as to accuse November Platoon: T286.18-287.19; T306.12-13. 226 Mr Russell's position is that the amendment and note were disingenuous because the first two bullet points of the FOI Application concerned June and July 2012, while the third did not mention November Platoon at all, and was a claim for all communications between the Defence and DEA from 1 January to 31 August 2012, unlimited by topic. The fourth bullet point sought all complaints or disciplinary action against November Platoon for 2012. Mr Willacy knew that Josh had repeatedly said that the incident occurred in June or July 2012, and that it was at the beginning of his deployment, which started in May, and once said it was perhaps late July or early August: T183.11-15; T247.16-22; T423.14-17.

C.10 The Telegraph Article 227 On 24 November, Mr Charles Miranda of The Daily Telegraph published an article headlined, "Defence fires back at ABC over war crimes probe", setting out comments from Defence including that, in direct opposition to the headline of the November Article, "Defence has not confirmed there is a current criminal investigation involving November Platoon in Afghanistan in 2012" and "Defence is not currently conducting an investigation into this matter." 228 Notwithstanding these public statements by Defence, the headline of the November Article ("Defence confirms…") was not altered. Mr Willacy sensibly accepted it should have been (T431.16-36) but, for reasons I do not understand, both Mr Robertson and Ms Puccini rejected this proposition: T539.26-28; T577.7-21; T621.1-622.40; T777.36-778.44.

C.11 The December Article 229 On 4 December, the ABC and Mr Robertson published a further article entitled, "Former soldier and Values Party founder Heston Russell sold porn online while fundraising for veterans [sic] charity" (December Article). 230 Importantly for present purposes, the December Article repeated the allegation that Mr Russell led a platoon "accused of killing an Afghan prisoner to save space on aircraft now under criminal investigation, Defence confirms".

C.12 The Media Watch Programme 231 On 6 December, the ABC broadcast an episode of Media Watch, which partly concerned the October Article, the November Article and the December Article. 232 In the days before this, the Media Watch team asked the following (with respect, prescient) questions of Mr Willacy in relation to the November Article, sending a copy to Ms Puccini: 1. Why didn't you interview and quote another US crew member to corroborate Josh's account? 2. Why didn't you speak to November platoon before publishing? 3. Why didn't you interview Heston Russell once he outed himself as commander of November platoon? 4. Do you now think you had enough evidence to publish the Oct 2020 story, based on only the account of one unnamed person present during the alleged execution of a prisoner by November platoon? 233 One might have thought these well directed questions may have resulted in some introspection and mature reflection upon whether the reporting was open to fair and legitimate criticism. After all, these queries were not emanating from sections of the media that could be dismissed by those within ABC Investigations as "bottom feeders" or protagonists in a culture war. But the internal communications in evidence reveal defensiveness and a perception that any questioning of the October Article or November Article undermined the important war reporting of ABC Investigations generally. What happened is that Mr Willacy and Ms Puccini consulted Ms Jackson for "advice" and "perspective". Ms Jackson then responded as an "ABC spokesperson". The responses echoed the public comments outlined above, for example: "[t]he story was based on credible information from interviews with multiple sources"; "the ABC spent two months checking his detailed account"; "the Department of Defence rejected an ABC freedom of information request … on the grounds that there was an active investigation"; and "Mark Willacy has been reporting on alleged war crimes for 2 ½ years". 234 Media Watch advanced a perspective with which I generally agree, describing the amendment to the November Article as "a strange way of acknowledging they screwed up on the dates", and summarising their criticisms as follows: should the ABC have asked more questions and found more support for the allegation before publishing? And from what we've seen, the answer is yes. Mark Willacy and ABC Investigations have a great track record. We certainly don't believe their story was "garbage" or "fabricated", as Ben Fordham and Heston Russell have called it. But we believe the ABC pressed publish too soon and should either have waited or told viewers the allegation of unlawful killing was uncorroborated and might not be true. It should also have given Heston Russell a right to answer the allegations once he'd made it clear back in October 2020 that he was the November platoon's commander. We'll see what happens to that complaint. But in the meantime, the ABC Investigations Unit has hit back at Russell by publishing [the December Article] on the weekend … 235 Consistently with the initial reaction to the questions raised, a string of defensive correspondence ensued whereby Mr Willacy and Ms Puccini complained directly to Media Watch and eventually escalated an alleged "serious factual error" to the ACA (despite, at that time, not having a right to do so as ABC staff), complaining that: [t]he statement Paul Barry made on Media Watch - that we accused November Platoon of killing an unarmed prisoner - was made without qualification, nor context. It was not presented as Paul Barry's view but rather as a statement of fact. And it is wrong. 236 Mr Willacy and Ms Puccini's commitment to their construction of the November Article reflects their obduracy in admitting error on this topic. Indeed, as Media Watch's Mr Timothy Latham correctly put it in response to the complaint, it is "somewhat flummox[ing] … because [the] story is about November Platoon and while [they] may not have explicitly said so, there can be no other conclusion". I agree.

C.13 The Second Complaint by Mr Russell and the ABC's Response to the First and Second Complaints 237 Mr Willacy and Ms Puccini submitted their response to the First Complaint in December 2021. It contained several statements, the veracity of at least one of which was dubious, being that Josh's allegations "were thoroughly vetted over a more than two-month period". Although it might be correct that "[t]his reporting has also sparked war crimes investigations by the IGADF, the AFP and the Office of Special Investigator", this does not mean every criticism could be peremptorily rejected. Again, the response reflects the nature of the defensiveness as to admitting any error and its public campaign to maintain the position that: "[n]ot a single story we have published has proved to be incorrect or inaccurate. It has led to the discovery of crimes and alleged perpetrators". 238 Mr Russell submitted an editorial complaint about the November Article on 16 December 2021 (Second Complaint), which included his expression of frustration that the ABC had reported November Platoon denied ever harming an Afghan prisoner, rather than denying they had been involved in the conduct the subject of the Helicopter Allegation. 239 The ABC amended the November Article and added the following editor's note on 19 January 2022: "The story was further amended January 19, 2022 to reflect Heston Russell's denial of the specific allegation made by a US Marine who said Australian commandos shot and killed an Afghan prisoner". 240 Following correspondence between Ms McLiesh, Ms Puccini and Mr Willacy, on 16 February the ABC sent an email to Mr Russell stating that aspects of his Second Complaint had been addressed before his complaint was received and otherwise finding there was no breach of the ABC's editorial policies. Ms McLiesh found that the October Article needed a clarification to prevent readers from misinterpreting the article as accusing November Platoon of murder. Ms McLiesh also found that the November Article was in breach of standard 2.1 as to accuracy for errors in characterising Josh's allegation. 241 Ms McLiesh escalated concerns the November Article was obviously understood as asserting the Helicopter Allegation pertained to November Platoon. Eventually, after apparently having been dragged to face reality, Mr Robertson and Ms Puccini belatedly proposed that the first Key Point be changed to make clear that Josh alleged that Australian commandos, not November Platoon, killed an Afghan prisoner after being told he would not fit on an aircraft. 242 A further change was added to the November Article on 11 March, as follows: A key point for this story initially stated that a US Marines helicopter crew chief alleged that November platoon killed an Afghan prisoner after being told he would not fit on an aircraft. It was amended on March 11, 2022 to reflect that the marine's allegation did not identify a particular platoon. 243 Later, on 18 March, the ABC added the following clarification to the October Article: On October 21, 2020, the ABC published this story comprising two elements: firstly, a US Marine Corps helicopter crew chief's allegation that Australian soldiers of the 2nd Commando Regiment shot and killed a bound Afghan prisoner after being told he would not fit on the US aircraft coming to pick him up; and secondly, accounts from members of the 2nd Commando Regiment's Oscar Platoon that the 2nd Commando Regiment's November Platoon had a bad reputation among the Americans based on their behaviour in the field. The US Marine Corps helicopter crew chief did not claim that the commandos he alleged killed a prisoner were from November Platoon and nor did the ABC's story. 244 Negotiations then ensued about the wording of the press release, in which Ms Puccini and Mr Willacy were heavily involved. On 21 March, Ms Jackson sent proposed wording. Ms Puccini suggested the release record that the "error occurred during the production process of the story"; she also argued, misguidedly, that the wording should be changed because "Kristin agreed" that "the only person who misinterpreted it was Heston Russell". 245 On 16 February, the ABC emailed Mr Russell stating that aspects of his editorial complaint about the November Article had been addressed before his complaint was received and otherwise finding there had been no breach of editorial policies. 246 On 29 March, the ABC provided its decision in relation to the First Complaint, finding it had not breached the ABC's editorial policies. On the same date, it revised its decision as to the Second Complaint, upholding one aspect of Mr Russell's complaint, as to the Key Point in the November Article which stated, "The ABC last year reported a US Marine's allegations that the November platoon killed an Afghan prisoner after being told he would not fit on an aircraft". 247 The ABC published a press statement about the Second Complaint on 30 March, explaining the amendments made and notes added, and noting: An aspect of this complaint was subsequently upheld for inaccuracy. ABC News has explained that an error in the story and an alternate headline arose in the production phase for the story. These have been amended and a correction has been published at the bottom of the story. 248 It is a further reflection of the mindset within ABC Investigations, to which I have repeatedly referred, that both Mr Robertson and Mr Willacy thought it appropriate to take to Twitter following publication of the press release, respectively writing, "And, so, ICYMI, my report about defence confirming an active criminal investigation into November platoon stands" and: Contrary to the spin of Heston Russell and his media fan club, the ABC has confirmed my story on the alleged killing of an Afghan prisoner was fair and accurate. Oh, and its being investigated by war crimes investigators. Much more to come.

C.14 Continuing Publications 249 As noted above. the November Article and Linked Article are continuing publications, in the sense that since the time of their initial publication they have been available online. Publication of these articles occurs each time they are downloaded and comprehended by a reader: Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (at 606-607 [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

D THE SEPARATE HEARING AND THE IMPUTATIONS 250 The first judgment sets out my reasons for finding the following imputations were conveyed by the impugned publications (adopting an updated nomenclature for the purposes of these reasons): Matter Imputation November Article Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon (November Imputation 1) Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon (November Imputation 2) Linked Article Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon (Linked Imputation 1) Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon (Linked Imputation 2) Mr Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012 (Linked Imputation 3) Mr Russell, as the commander of November Platoon, habitually left "fire and bodies" in his wake when deployed in Afghanistan (Linked Imputation 4) Mr Russell, as a commando in Afghanistan, habitually and knowingly crossed the line of ethical conduct when he was deployed there (Linked Imputation 5) Mr Russell, as a commando in November Platoon, had behaved so immorally when deployed in Afghanistan, that American forces refused to work with him (Linked Imputation 6) Television Broadcast Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon (TV Imputation 1) Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon (TV Imputation 2)

251 I did not deal with Mr Russell's "true innuendo" case at the separate hearing, as this aspect of the case was premised upon a factual contention neither evidenced nor agreed pursuant to s 191 of the EA. In the light of my findings as to meaning, little turns on this issue other than (in theory) quantification of any damages. Accordingly, it is addressed below in Section I.

E SERIOUS HARM 252 By amendment in July 2021, the Defamation Act provides that it is an element of a cause of action for defamation that "the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person": see s 10A(1) of the Defamation Act; sch 1, cl 6 of the Defamation Amendment Act 2020 (NSW) (Amendment Act). Section 10A is modelled on s 1 of the Defamation Act 2013 (UK) (UK Act), which has been considered by superior courts in the United Kingdom (see, in particular Lachaux v Independent Print Ltd [2020] AC 612 (at 622-624 [10]-[16] per Lord Sumption (with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed)), and by Brereton JA (with whom Macfarlan JA agreed) in Rader v Haines [2022] NSWCA 198 (at [19]-[29]). 253 In combination with the repeal of the defence of triviality in s 33, s 10A is intended to give effect to the view that courts and respondents in this country were too often burdened with "trivial, spurious and vexatious backyard claims": New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (at 3); see also Professor D Rolph, 'A serious harm threshold for Australian defamation law' (2022) 51 Australian Bar Review 185 (at 185-186). 254 Whether a publication "has caused, or is likely to cause" serious harm is an objective question, directed to the proven or probable consequences of the publication on the applicant's reputation. It depends upon "a combination of the inherent tendency of the words and their actual [or probable] impact on those to whom they were communicated": Lachaux (at 623-624 [14] per Lord Sumption JSC with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed). 255 Mr Russell relies on numerous particulars of serious harm in relation to the November and Linked Articles and the Television Broadcast (see amended statement of claim (at [12.1]-[12.19], [13.1]-[13.17])), including but not limited to: (a) the reach of publications by the ABC; (b) the ABC's portrayal of itself as a respected and reliable news source; (c) the seriousness of the imputations carried by the publications; (d) the sharing of the October and November Articles on social media; (e) the ABC's presentation of Josh as an "eyewitness", which is said to give credence to the allegations; (f) the ABC's "stubborn adherence" to the content of the November and Linked Articles despite criticism of them; (g) Mr Russell's status as the only named and pictured member of November Platoon; (h) the continued publication of the November and Linked Articles; (i) Mr Russell's receipt of "hateful messages" as a result of the publications; and (j) that Mr Russell, his family and his friends have been approached and spoken to about the allegations in the publications. 256 In the light of my findings as to meaning in the first judgment, the respondents admit serious harm in relation to the initial publication of the November and Linked Articles and the Television Broadcast. 257 For completeness, it is worth recording that the respondents submit that if the Court finds a change of circumstance has occurred resulting in the public interest defence being lost, Mr Russell is required to reprove serious harm in relation to the continuing publication of the November and Linked Articles. 258 For reasons that follow, it is unnecessary to determine this issue. Having noted this, s 10A refers to "the publication of defamatory matter", being the download and comprehension of a continuing publication online. It seems to me to follow that an applicant must establish that those continuing publications (as distinct from those made earlier) have caused, or are likely to cause, serious harm. Consistently with the position in the United Kingdom, this necessitates reconsideration of serious harm at any later date upon which a public interest defence, which once operated, ceases to apply: see Banks v Cadwalladr [2023] EWCA Civ 219; [2023] 3 WLR 167 (at 179-181 [40]-[51] per Warby LJ, with whom Singh LJ and Victoria P agreed).

F THE PUBLIC INTEREST DEFENCE: THE LAW 259 In the further amended defence to the amended statement of claim (FADASOC) (at [66]-[67]), the following is pleaded: 66. The November Article, the Linked Article, the TV Broadcast and the Radio Broadcast each concerns an issue of public interest. 67. The ABC, Robertson and Willacy reasonably believed that the publication of each of the November Article, the Linked Article, the TV Broadcast and the Radio Broadcast was in the public interest. 260 The respondents rely on lengthy particulars, set out in sch 2 of the FADASOC. 261 A superior court in this country has not, until now, had cause to examine closely s 29A and its cognates, namely: s 139AA of the Civil Wrongs Act 2002 (ACT); s 29A of the Defamation Act 2005 (Qld); s 27A of the Defamation Act 2005 (SA); s 29A of the Defamation Act 2005 (Tas) and s 29A of the Defamation Act 2005 (Vic). It was addressed by Wigney J in Murdoch v Private Media Pty Ltd [2022] FCA 1275 (at [55]-[86]) in the context of a strike-out application, and by Rares J in Barilaro v Google LLC [2022] FCA 650 (at [382]-[390]) on the question of aggravated damages, where the defence was abandoned on the first day of trial. 262 Statutory reforms to create new defences or delimit or otherwise modify existing defences are usefully contextualised by appreciating the antecedent development (or lack of development) of the law that has led to a perceived need for statutory change or refinement. This need for far more than a superficial textual analysis might be thought particularly important in the modern law of defamation because, as Gummow J explained in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 (at 411 [123]), it has not been "open to the development and rationalisation that is acceptable elsewhere in the common law", and may only be explained in the light of its historical origins: see also P Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 9th ed, 1998) (at [1.11]). 263 This section of my reasons, which discusses the defence, is arranged as follows: F.1 AN OVERVIEW OF SECTION 29A F.2 THE NEW DEFENCE OF PUBLIC INTEREST: CONCEPTUAL ROOTS AND ANTECEDENTS F.3 A PRELIMINARY ISSUE: "MATTER" AND "DEFAMATORY MATTER" F.4 THE PRINCIPLED APPROACH TO THE PUBLIC INTEREST DEFENCE F.1 An Overview of Section 29A 264 Section 29A was inserted into the Defamation Act on 1 July 2021, by cl 27 of sch 1 of the Amendment Act. It is in the following terms: 29A Defence of publication of matter concerning issue of public interest (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter concerns an issue of public interest, and (b) the defendant reasonably believed that the publication of the matter was in the public interest. (2) In determining whether the defence is established, a court must take into account all of the circumstances of the case. (3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances - (a) the seriousness of any defamatory imputation carried by the matter published, (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (c) the extent to which the matter published relates to the performance of the public functions or activities of the person, (d) whether it was in the public interest in the circumstances for the matter to be published expeditiously, (e) the sources of the information in the matter published, including the integrity of the sources, (f) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person's identity to be kept confidential (including, for example, to comply with an applicable professional code or standard), (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published, (i) the importance of freedom of expression in the discussion of issues of public interest. (4) Subsection (3) does not - (a) require each factor referred to in the subsection to be taken into account, or (b) limit the matters that the court may take into account. (5) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established. 265 The defence in s 29A has three elements: (1) the matter concerns an issue of public interest; (2) the publisher believed the publication of the matter was in the public interest; and (3) the publisher's belief that the publication of the matter was in the public interest was reasonable. Underlying all is the imperative of considering "all of the circumstances of the case" (s 29A(2)). 266 The Explanatory Note to the Defamation Amendment Bill 2020 (NSW) (Explanatory Note) articulates the purpose of s 29A (at 9-11): [Section 30] set out factors that the court could take into account in deciding the reasonableness of the defendant's conduct, including the extent to which the matter was in the public interest. These factors were based on the decision of the House of Lords in Reynolds v Times Newspapers Ltd (2001) 2 AC 127 (the Reynolds case) concerning a comparable defence of qualified privilege under the general law of the United Kingdom. The general law in Australia at the time also recognised a similar, though narrower, defence of qualified privilege. In particular, there was case law that rejected the more liberal defence recognised in the Reynolds case. See, for example, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1165]-[1170].The defence at general law required a reciprocity of duty and interest, or community of interest, between publisher and recipients. It did not provide a defence for publication to the world at large. The purpose of the defence under section 30 of the 2005 Act was to create a defence that extended to circumstances where there was not necessarily the reciprocity of duty and interest, or community of interest, between publisher and recipients required by the general law defence. However, section 30 has been largely unsuccessful in liberalising the approach taken by the courts to publications concerning issues that may be of public interest. … The purpose of [the factors in s 29A(3)] is to provide some non-exhaustive guidance to the court. Not all, or any, of these factors must be satisfied. They are not intended to operate as a checklist of relevant factors. Whether the defence is established will be a matter for the jury. One of the objects of the 2005 Act was to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance. The new defence is aimed at promoting that object. … [the amendments to s 30] recasts the factors that may be taken into account in determining whether the defence under section 30 is established so as to minimise duplication with the factors for the new public interest defence. As with the new public interest defence, the purpose of these factors is to provide some non-exhaustive guidance to the court. Not all, or any, of these factors must be satisfied. They are not intended to operate as a checklist of relevant factors. (Emphasis added). 267 The Explanatory Note also states that s 29A is a progeny of the defence of "publication on matter of public interest" in s 4 of the UK Act: New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (at 2870); Explanatory Note (at 9-11); see also the position in New Zealand in Durie v Gardiner [2018] NZCA 278; [2018] 3 NZLR 131; Lange v Atkinson [2000] 3 NZLR 385; and Canada, in Grant v Torstar Corp [2009] 3 SCR 640. 268 Section 4(1) provides that it is "a defence to an action for defamation" for the defendant to establish that (a) "the statement complained of was, or formed part of, a statement on a matter of public interest"; and (b) "the defendant reasonably believed that publishing the statement complained of was in the public interest". As with s 29A, the Court is required to have regard to "all the circumstances of the case" (s 4(2)). 269 Section 4 has been considered in a number of cases in the High Court and also by the Court of Appeal and the Supreme Court of the United Kingdom: see, in particular, Economou v de Freitas [2016] EWHC 1853 (QB); Economou v de Freitas [2018] EWCA Civ 2591; Doyle v Smith [2018] EWHC 2935 (QB); Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455; Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB); and Banks v Cadwalladr [2022] EWHC 1417 (QB); [2022] 1 WLR 5236. 270 The decisions are instructive but should be approached with some caution given three differences between the provisions. The first is that s 29A recasts the language used in the UK Act (which refers to "statements on a matter of public interest") to take into account the language used in the Defamation Act (which refers to the "publication of defamatory matter"). The second is that s 29A specifies certain factors the Court may consider, drawing on factors relevant to the defence derived from Reynolds v Times Newspapers Ltd [2001] 2 AC 127, where s 4 does not specify any matters of potential relevance. Thirdly, two conditions are placed upon the court's task in s 4 which are not present in s 29A: (1) if the "statement complained of" was or formed part of an accurate and impartial account of a dispute to which the claimant was a party, the court must "disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it" (s 4(3)); and (2) the court must "make such allowance for editorial judgement as it considers appropriate" (s 4(4)). 271 It is trite but important to emphasise that notwithstanding s 29A is drawn from s 4, neither section can be divorced from its distinct domestic context and it would, therefore, be dangerous to import unreservedly interpretations of s 4 into the approach to be taken to s 29A: see, to similar effect, the comments of Lord Wilson (with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed) in Serafin (at 2469 [53]). Reynolds and the line of cases reflecting it catch the light somewhat differently in the Antipodes. The similarities and differences are best understood with reference to the genealogy of the "public interest" and "reasonableness" in the law of defamation in Australia, to which I now turn.

F.2 The New Defence of Public Interest: Conceptual Roots and Antecedents 272 The right to publish defamatory statements concerning matters of "common convenience and welfare of a modern plural democracy" has long been recognised, borne out primarily through common law and statutory formulations of the defence of qualified privilege: Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049-50 per Parke B). At common law, the defence requires a respondent to establish three matters: first, the communication was published on a privileged occasion; secondly, the communication was related to the occasion; and thirdly, there was no malice in the publication: Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621 (at 658 [165] per Lee J), citing Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96-97 [55] per Heydon J). 273 The "welfare of society" and the "public interest" are closely allied (Bennette v Cohen [2009] NSWCA 60; (2009) Aust Torts Reports 82-002 (at 62,818 per Ipp JA)) but they are not the same. As Griffith CJ clarified in Howe & McClough v Lees (1919) 11 CLR 361 (at 368-369) (see also Bashford v Information Australia (at 386 [54] per McHugh J)), references to the welfare of society in foundational cases concerning qualified privilege should not be taken to mean the person who made the communication was under an obligation to the public and was justified in publishing it to the public at large. Rather, the common convenience and welfare of society should be understood as meaning the interests of society in general require that a communication made to a particular person in particular circumstances should be protected. 274 It is this requirement of reciprocity which generally precludes the applicability of the defence to large audiences, such as are reached by mass media publications: see Palmer v McGowan (at 658 [164]). Indeed, as explained by Gillard AJA in Herald & Weekly Times v Popovic (2003) 9 VR 1 (at 22 [73]), the problem for the media is "at least twofold": namely, it has never been the duty of any part of the media to publish for profit untrue facts about a person to the public … and secondly, because the media publishes to so many persons, it is nearly impossible to conclude that every publishee, or the great majority of them, had an interest in receiving the particular information … 275 One can, however, detect signs the defence of qualified privilege might have matured differently, which go some way to explaining the intuition that matters published in the public interest deserve the protection of the law. 276 In his comprehensive history of the defence of qualified privilege, The Making of the Modern Law of Defamation (Hart Publishing, Oxford, 2005), Professor Paul Mitchell traces the notion of "duty" back to the first edition of jurist Thomas Starkie's Law of Slander, Libel, Scandalum Magnatum and False Rumours, published in 1812. Professor Mitchell also explains Scots writer John Borthwick introduced the concept of "interest" a short time later in his Treatise on the Law of Libel and Slander (Edinburgh, 1826), outlining a new category of privileged communications, being those made to someone "who has an interest in the matter or for whose material benefit it is that the fact should be made known" (at 236). 277 As Professor Mitchell outlines (at 153), these concepts took flight in Starkie's second edition, A Treatise on the Law of Slander and Libel and incidentally of Malicious Prosecutions (London, 2nd edn, 1830), where Starkie explained (at 292): The extensive principle which governs this class of cases, where the existence of express malice is a test of civil responsibility, comprehends all where the author of the alleged mischief acted in the discharge of any public or private duty, whether legal or moral, which the ordinary exigencies of society, or his own private interest, or even that of another called upon him to perform. 278 Baron Parke recorded this passage into his commonplace book and, in Toogood v Spyring (at 1049-50), in a famous passage regarded as the source of the modern defence of qualified privilege, reasoned: In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. 279 The reification of the defence was a watershed; as Erle CJ remarked in Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838 (at 848), "[t]he privilege of criticising and discussing the words and acts of public man has in modern times been very widely extended … with very good reason". But Parke B's formulation differs from what was contemplated by Starkie, giving greater weight to the need for a community of duty and interest between publisher and reader. Indeed, as Professor Mitchell writes (at 135): when Parke B introduced Starkie's formulation as the test for qualified privilege, he went further than Starkie himself had gone. Starkie recognised that there were some earlier cases that could not be explained using the duty and interest test. For those cases he had developed the further category of communications made in confidence or by way of admonition or advice. The criteria were interpreted broadly: Starkie included within it a case where the defamatory publication was an advertisement to the public. In essence, it was a miscellaneous category. Parke B made no reference to this category at all, so it seemed as if the authorities contained in it were no longer authoritative. (Emphasis added). 280 Interest in Starkie's "miscellaneous category" lingered in a line of cases springing from Toogood v Spyring which took as the basis of the defence the welfare and convenience of society and flirted with something closer to the "public interest". In Coxhead v Richards (1846) 2 CB 569 (at 607-608), Erle J remarked that among "protected communications, there are some in which the protection is derived from the subject-matter alone, without regard to any relation in which the author may stand, such as criticism and public comments". In a similar vein, Blackburn J reasoned in Davies v Snead (1870) 5 LR QB 608 (at 611) that "where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them it is a privileged communication": see also Brett LJ in Waller v Loch (1881) 7 QBD 619 (CA) (at 622), as well as Allbutt v General Council of Medical Education (1889) 23 QBD 400 (CA); Perera v Peiris [1949] AC 1. 281 There were also identified in principle "exceptional cases" where a person could have an interest or duty to publish defamatory matter to the world at large, or "the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified": Blackshaw v Lord [1984] 1 QB 1 (at 27 per Stephenson LJ); Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 (at 261 per McHugh J) and the cases there cited, including Chapman v Ellesmere [1932] 2 KB 431 and Lang v Willis (1934) 52 CLR 637. 282 The position was complicated further when the law of defamation was put on statutory footing in Australia. 283 The common law of defamation in New South Wales was first modified by statute proposed by the remarkable Richard Windeyer, shortly before his premature death in 1847 (the Slander & Libel Act or Injuries to Character Act 1847 (Windeyer's Libel Act)). In 1901, Windeyer's Libel Act was consolidated in the Defamation Act 1901 (NSW) and, subsequently, following further amendments, the Defamation Act 1912 (NSW) (1912 Act). The 1912 Act was amended on three occasions before 1958, when the law in New South Wales was codified under the Defamation Act 1958 (NSW) (1958 Act). 284 The 1958 Act was primarily based upon the Defamation Act 1889 (Qld) (1889 Queensland Act) which sought to state the law exclusively by statute. It contained a defence of qualified privilege, proposed by Sir Samuel Griffith, providing "lawful excuse for the publication of defamatory matter" "if the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or for the public good" (s 17(c)) or in "answer to an inquiry" by a person "with an interest in knowing the truth" (s 17(d)); and "for the purpose of giving information to a person with respect to some subject as to which that person has an interest in knowing the truth" (s 17(e)). In his second reading speech in support of the 1889 Queensland Act, Sir Samuel noted that in his view, the provision largely reflected the then present law: Queensland, Parliamentary Debates, Legislative Assembly, 19 July 1889 (at 735); see also Dun v Macintosh (1906) 3 CLR 1134 (at 1147 per Griffith CJ). Notably, these provisions did not require the controlling factor at common law of reciprocity of duty and interest. 285 The potential of the 1958 Act to protect public interest speech was demonstrated in Calwell v IPEC Australia Ltd (1975) 135 CLR 321, where Mr Arthur Calwell, the former leader of the Australian Labor Party, sued in relation to a newspaper article accusing him of party disloyalty. Justice Mason (with whom Barwick CJ and Gibbs, Stephen and Jacobs JJ agreed) reasoned (at 331) that the publication in question fell within s 17(e). Importantly for present purposes, in addition to protection under s 17(e), Jacobs J (with whom Stephen J agreed) explained that the defence for matters published for the "public good" (s 17(c)) was also satisfied because (at 335-336): It is for the greatest public good that views on the political attitudes, including party loyalty, of members of the Houses of Parliament should be able to be expressed without inhibition. The public are entitled to the views on such a subject of political commentators, expert or inexpert. The views expressed … may be correct or incorrect, but the public has an interest in hearing them whatever they may be and it is for the public good that interest should not be stultified … 286 The Defamation Act 1974 (NSW) (1974 Act) returned New South Wales to the common law, subject to statutory modification. The 1974 Act included a new defence in s 22, concerning the passing of "information", in the following terms: 22 Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward. 287 It was intended s 22 would extend the reach of qualified privilege to defendants who could not satisfy the reciprocity requirement at common law: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 797 per Moffitt P and Hope and Reynolds JJA). In its Report of the Law Reform Commission on Defamation (Report No 11, 1971) (at [103]-[104]), the New South Wales Law Reform Commission (NSWLRC) endorsed ss 17(d) and 17(e) of the 1958 Act and expressed a view the common law position remained "artificial" and was "insufficiently wide to cover many of the cases where protection should be afforded". The NSWLRC explained (at [104]): Section 22 makes the interest or apparent interest of the recipient the determining factor. If there is an appropriate interest or apparent interest, and the conduct of the publisher in publishing the matter in question is reasonable, then the section would give a qualified privilege. The section puts a test of reasonableness in the place of the common law doctrines of interest or duty in the publisher. The section is intended to supplement the common law in this field and not to hinder its development by judicial decision. 288 Notwithstanding Parliament made explicit its intention to broaden the available occasions of privilege beyond those where duty and interest were aligned, the addition of s 22(1)(c) was far from a boon for media outlets: see Nagle v Chulov [2001] NSWSC 9 (at [53] per Levine J). 289 The reason was the judicial narrowing of the concept of "reasonableness", originating from the so-called "checklist" set out by Hunt AJA (with whom Samuels JA agreed) in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 (at 385-388). Notwithstanding that a highly experienced defamation judge made plain these propositions were non-exhaustive, and cautioned it would be dangerous to give comprehensive definition to what conduct would be "reasonable in the circumstances" in any given case, certain propositions have been seen as vital to establishing reasonableness, putting achievement of the standard beyond reach for many respondents: see New South Wales Law Reform Commission, Defamation (Discussion Paper No 32, 1993) (NSWLRC Discussion Paper) (at [10.12]); John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports ¶81-789; Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 109; (2006) 68 NSWLR 150. 290 A particular difficulty has been the respondent's ability to establish honest belief: Professor S Walker, 'Lange v ABC: the High Court rethinks the "constitutionalisation" of defamation law' (1998) 6 Torts Law Journal 9 (at 21). This is especially so where a media respondent may be required to reveal sources: NSWLRC Discussion Paper (at [10.12]); K Gould, 'The more things change, the more they stay the same … or do they?' (2007) 12 Media and Arts Law Review 29 (at 34). 291 Accordingly, litigants sought alternative means to defend the publication of matters to wide audiences. An extended category of common law qualified privilege, now known as the Lange defence, came about as a result of the discernment of the implied freedom of political communication, arising from the text and structure of the Commonwealth Constitution, in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The unanimous decision of the High Court (comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) in Lange confirmed that the concept of representative democracy required and so protected the dissemination of information about government and political matters to the widest possible audience. 292 As I explained in Palmer v McGowan (at 666 [202]-[203]), Lange qualified privilege was conceived of as an extension of the then existing categories of the defence. The High Court reasoned (at 571): The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. 293 Malice remained a controlling element: Lange (at 572). Further, in view of the much wider audience that has an interest in receiving discussion about government and political matters, it was explained, by reference to s 22, that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably. The requirement was articulated as "go[ing] beyond mere honesty" and "properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires": Lange (at 574-575). It was also noted that reasonableness had been invoked in s 377 of the Criminal Code Act 1899 (Qld) (Qld Criminal Code) and s 16 of the Defamation Act 1957 (Tas), and by the plurality in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 (at 136-137 per Mason CJ, Toohey and Gaudron JJ). 294 A short time later, in the United Kingdom, what might be described as a common law prototype of s 4 of the UK Act was seen in the decision of the House of Lords in Reynolds. That decision concerned the publication of a story about Mr Albert Reynolds, Éire's former Taoiseach, in the London edition of the Sunday Times. The publication related to the 1994 political crisis culminating in Mr Reynolds' resignation and the collapse of his coalition government which had, during its course, progressed the peace process in Northern Ireland, memorably entitled, "Goodbye gombeen man: why a fib too far proved fatal for the political career of Ireland's peacemaker and Mr Fixit." 295 The House of Lords held that the duty-interest requirement for privilege could be satisfied by media publications where the public had a right to know in all the circumstances (at 195 per Lord Nicholls). In Bonnick v Morris [2003] 1 AC 300 (at 309 [23] per Lord Nicholls) summarised the position in Reynolds as follows: Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care. (Emphasis added). 296 What is clear, from the bolded text, is that "responsible journalism" is conceived as an inherently mutable concept. As Lord Nicholls remarked in his speech in Reynolds (at 204-205), "the elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern" (emphasis added). This fluid formulation was anchored in ten factors set out by Lord Nicholls (at 205) and said to be illustrative of an occasion of privilege. 297 The passage of time would reveal that Lange would be regularly pleaded but rarely successful. In a similar vein, while Reynolds privilege had some success in the United Kingdom, it did not develop into a "different jurisprudential creature" in Australia: Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783 (at 806 [35] per Lord Phillips MR); Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 (at 381 [46] per Lord Hoffmann, 408 [146] per Baroness Hale). Indeed, in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (at [1165]-[1170]), Beazley, Giles and Santow JJA explained that were it the case that Reynolds expanded the availability of qualified privilege in respect of information of public concern, on application of the common law test of reciprocity of duty and interest, such a test was significantly broader than and "could not stand alongside Lange": see also John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; (2001) 52 NSWLR 373 (at 380-381 [107]-[112] per Heydon JA, with whom Handley and Giles JJA agreed). 298 Recognition was, of course, hampered by the different constitutional environment in which the Reynolds privilege developed, informed as it was by the Human Rights Act 1998 (UK) which incorporated several provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952) including the guarantee of freedom of expression in art 10: Vilo (at 380 [108] per Heydon JA, with whom Handley and Giles JJA agreed); Marsden (at [1168]-[1169] per Beazley, Giles and Santow JJA). 299 But two important factors merit emphasis. 300 First, the Lange formulation of reasonableness was given express endorsement by Lord Bingham in Reynolds in the Court of Appeal (at 176; see also 220-221 per Lord Cooke; and Professor E Descheemaeker, 'A man must take care not to defame his neighbour: the origins and significance of the defence of responsible publication' (2015) 34(2) University of Queensland Law Journal 239 (at 251-252)). Secondly, in New South Wales, the legislature sought, in effect, to import Reynolds into the 1974 Act, at first by the introduction of s 22(2A) in 2002: New South Wales Attorney-General's Task Force on Defamation Law Reform, Defamation Law - Proposals for Reform in NSW (2002), Recommendation 13 (at 30). The section included a list of eight factors, drawn from Reynolds, which the court could, but was not required to, consider in determining whether the conduct of a publisher was reasonable in the circumstances. 301 I cannot pass from this aspect of the history without noting that the reform agenda which saw the insertion of s 22(2A) into the 1974 Act also resulted in the insertion of a statement of objects into that Act, including the object (in s 3(b)) "to ensure that the law of defamation does not place unreasonable limits on the publication and discussion of matters of public interest and importance". 302 The introduction of the uniform defamation legislation in 2005 saw the repeal of s 22 and the conception of s 30, "based on" the second generation s 22 defence: New South Wales, Parliamentary Debates, Legislative Assembly, 13 September 2005 (at 5). There were various iterations of s 30, each fundamentally requiring the following in order to establish a complete defence for the publication of defamatory matter: first, that the recipient has an "interest or apparent interest in having information on some subject"; secondly, the matter is published to the recipient in the course of giving the recipient information on that subject"; and thirdly, "the conduct of the defendant in publishing the matter is reasonable in the circumstances". Section 30(3) also provided a non-mandatory and non-exhaustive list of considerations, to which the court "may" have had regard in assessing whether a publisher's conduct was reasonable. The relevance or weight to be given to any one or more of the factors hinged on the particular facts of the case. 303 But, plus ça change, plus c'est la même chose. 304 Unsurprisingly by this point in the story, experience has shown submissions as to the defence in s 30 often lose sight of the overriding importance of context and a consideration of all relevant circumstances and revert to a form of "checklist" approach: Palmer v McGowan (at 664-665 [195]). While the statutory qualified privilege defence was successfully established on a few occasions, almost all relevant defendants were not media organisations and the impugned material was not published to a wide audience: see, for example, Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690; Haddon v Forsyth [2011] NSWSC 123; and O'Hara v Sims [2009] QCA 186. 305 In 2013, the common law Reynolds defence was abolished by s 4 of the UK Act. Notwithstanding the new phraseology ("reasonable belief" rather than "responsible journalism") and Parliament's earlier rejection of a proposed form of statutory defence modelled directly on Reynolds, the extrinsic materials exhibit an intention that the defence would, in substance, fill the gap previously occupied by Reynolds: see, generally, Professor D Rolph, 'A Critique of the Defamation Act 2013: Lessons for and from Australian Defamation Law Reform' (Legal Studies Research Paper No. 17/98). The new provision was said to be "based on existing common law and the defence established in Reynolds … [it is] intended to reflect the principles established in that case and in subsequent case law…and gives the court appropriate flexibility": United Kingdom, Hansard, House of Commons (12 June 2012) (at col 230); see also Explanatory Note, Defamation Act 2013 (UK) (at [35]). It has been interpreted in line with this intent, and that "it could not sensibly be suggested that the rationale for the Reynolds defence and for the public interest defence are materially different": Economou EWCA (at [86] per Sharp LJ, with whom Lewison and Ryder LJJ agreed). 306 In 2018, the New South Wales Department of Justice tabled a statutory review of the Defamation Act in Parliament, which concluded that the Act's core policy objectives "remain[ed] valid" but the statute "would benefit from some amendment and modernisation": Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019) (at 10) (CAG Discussion Paper). Relevantly, it was noted that there was support for "the more flexible approach adopted in the UK", emphasising that in determining "reasonable belief" in s 4 of the UK Act, the court is to have regard to all the circumstances and "make such allowance for editorial judgment as it considers appropriate": CAG Discussion Paper (at [5.23]). 307 The Council of Attorneys-General agreed in 2018 to reconvene the Model Defamation Law Working Party (Working Party), to consider "whether the policy objectives of the Model Defamation Provisions remain valid and whether the provisions remain appropriate to achieve these objectives": CAG Discussion Paper (at 9-10). The review, led by New South Wales, was conducted in 2019 and 2020. The Working Party recommended to the Council of Attorneys-General that amendments prepared by the Australasian Parliamentary Counsel's Committee be made. The Council agreed in July 2020 to support the enactment of the Model Defamation Amendment Provisions 2020 by each State and Territory. 308 Against the background of this long story, but informed by the history, we now find ourselves tasked with applying s 29A for the first time. Unfortunately, for reasons that might already be evident, the facts of this case do not present a good vehicle for demonstrating that the defence has real work to do in making appropriate allowances for editorial judgment and recalibrating the balance between two important rights which often exhibit tension: the right to freedom of expression on matters of public interest and the right to reputation.

F.3 A Preliminary Issue: "Matter" and "Defamatory Matter" 309 Before proceeding further, it is important to address an issue which appeared in Mr Russell's reply to the FADASOC. At [4.5], Mr Russell "says that s 29A requires the defamatory matter to be engaged by each element of the defence, not just the matter". 310 I have written elsewhere about the tendency of the nomenclature in this area to obscure what is really going on: see, in the context of principles as to meaning, first judgment (at [24]); and in relation to so-called "mitigation" of damage, Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119 (at [7]-[17] per Rares J, with whom Wigney and Lee JJ agreed) and Kumova v Davison (No 2) [2023] FCA 1 (at [98]). 311 Yet another example is the confusion which sometimes surrounds "matter" and "defamatory matter". 312 Nowadays a person has a single cause of action for defamation in relation to the publication of defamatory matter even if more than one defamatory imputation is carried by the matter: s 8 of the Defamation Act. "Matter" is given a broad definition in s 4, relevantly including "an article, report, advertisement or other thing communicated by means of a newspaper"; and "a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication". 313 There is, as identified by Wigney J in Murdoch v Private Media (at [69]), ambiguity as to the meaning of the expression "defamatory matter" and "matter" when used in s 29A. The terms are used in tandem such that it is unclear whether they are mutually exclusive: (1) It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter concerns an issue of public interest, and (b) the defendant reasonably believed that the publication of the matter was in the public interest. (Emphasis added). 314 The question is: to establish the defence in s 29A, is a respondent required to establish their reasonable belief that the publication of the article, report or programme which conveyed the defamatory imputations was in the public interest, or that the publication of the defamatory imputations was in the public interest? 315 Justice Wigney did not decide the issue but indicated a strong inclination to the view (at [70]-[72]) that the reference to "defamatory matter" and "matter" in s 29A is a reference to the article, report or programme which conveyed the defamatory imputation or imputations, not a reference to the alleged defamatory imputation or imputations, or the defamatory sting found to have been conveyed. His Honour continued (at [71]): That construction of s 29A is supported by the broad definition of "matter" in s 4 of the Defamation Act, which relevantly includes "article", "report" and "program". It is also supported by the terms of s 8 of the Defamation Act, which provides that a "person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter". It is clear that the "defamatory matter" in s 8 is the publication which conveyed the alleged imputation or imputations. There is a single cause of action in relation to the "matter" - the publication - even if the publication is alleged to have conveyed more than one defamatory imputation. There is, therefore, a clear distinction between the "matter" and the defamatory imputation or imputations that may have been carried by it. That clear distinction is also seen in the terms of s 29A. It is most apparent in s 29A(3)(a), which provides that, in determining whether the defence is established, the Court may take into account "the seriousness of any defamatory imputation carried by the matter published". 316 I respectfully agree with the view expressed by Wigney J: see also, similarly, the position as to s 4 of the UK Act in Banks v Cadwalladr QBD (at 5266 [121] per Steyn J). It is tolerably clear that Parliament intended s 29A to provide a complete defence ("it is a defence to the publication of defamatory matter …"). I am fortified in this view, as Wigney J was, by the reference to "any defamatory imputation carried by the matter published" in s 29A(3)(a). This constructional choice is consistent with the context in which the provision is found, including, of course, ss 4 and 8 of the Defamation Act, but also the existing state of the law, legislative purpose and the mischief s 29A was intended to remedy: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (at 368 [14] per Kiefel CJ, Nettle and Gordon JJ). To require the defamatory matter to meet "each element of the defence", as Mr Russell submits, would be to introduce a rigidity which is not demanded by text (when read contextually), and would be inimical to the evident purpose of the legislative reform. F.4 The Principled Approach to the Public Interest Defence

F.4.1 The Public Interest 317 As is obvious from Section F.2, the concept of the public interest is not new and its categories are "not closed … [and] different minds will differ as to what is, or what is not, in the public interest": McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 (at 455-456 [93] per Callinan and Heydon JJ), citing with approval Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 (at 59 per Lockhart J). 318 Section 29A deploys the concept of "public interest" in two different senses. Subsection 29A(1)(a) focusses attention on the relevance of the publication to "an issue of public interest" whereas s 29A(1)(b) requires the making of a value judgment about whether the publication was "in the public interest". 319 The former is self-explanatory and objectively determined, "not a matter of the subjective judgment of a journalist or editor": Lachaux QB (at [130] per Nicklin J); Murdoch (at [66] per Wigney J). In Reynolds in the Court of Appeal (at 176-177) (cited with approval in Flood v Times Newspapers Ltd [2012] 2 AC 273 (at 287 [33] per Lord Phillips PSC)), Lord Bingham set out the contours: "matters relating to the public life of the community and those who take part in it" and "the governance of public bodies, institutions and companies which give rise to a public interest in disclosure", but "excluding matters which are personal and private, such that there is no public interest in their disclosure". In a similar vein, in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, Dawson, McHugh and Gummow JJ reasoned (at 221-222) that "the defamation must be published in the course of or for the purposes of a discussion of the conduct of some person or institution that invites public criticism or discussion". It does not hinge upon the number of people directly involved in or affected by it (R Parkes KC, A Mullis et al (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 13th ed, 2022) (at [625]); Doyle v Smith (at [70] per Warby J)), or on the newsworthiness of the material: Jameel v Wall Street Journal (at 408 [147] per Baroness Hale). Equally, the notion that material should only be protected where it is such that the public needs to know it is too onerous: Jameel v Wall Street Journal (at 408 [147] per Baroness Hale). 320 The latter focusses attention of the character of the publication. Where the expression "in the public interest" is used in a statutory context, it "imports a discretionary value judgment to be made by reference to undefined factual matters" (O'Sullivan v Farrer (1989) 168 CLR 210 (at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ)), restricted only "in so far as the subject matter and the scope and purpose of the statutory enactments": Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 (at 505 per Dixon J). Similar expressions, such as "for the public benefit", have a history of use in defamation legislation, and have also been construed as requiring "what is essentially a value judgment as to whether the public would benefit from the subject being discussed publicly": see Bellino v ABC (at 229 per Dawson, McHugh and Gummow JJ) (in relation to s 377(8) of the Qld Criminal Code); Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (at 69 [20]-[21] per Gleeson CJ and Crennan J) in relation to s 15(b) of the Defamation Act 1957 (Tas)).

F.4.2 The Publisher's Belief 321 Section 29A(1)(b) is concerned with the respondent's actual state of mind at the time of publication: see, comparably, Doyle v Smith (at [75] per Warby J). The respondent must prove belief that the publication of the matter was in the public interest: see Lachaux QB (at [131] per Nicklin J). 322 Put another way, this element of the defence is not made good by showing that a notional reasonable person in the respondent's position could have believed that publication was in the public interest. The respondent must prove this element by adducing evidence that the publisher turned the publisher's actual or attributed mind to the issue and did hold the relevant belief: Turley v Unite the Union [2019] EWHC 3547 (at [138(vii)] per Nicklin J). The significance of this aspect of the defence should not be understated. Ex post rationalisations are not enough. In some ways it is analogous to person who made a future representation being required, among other things, to point to some facts or circumstances existing at the time of the representation on which the representor in fact relied to support the representation made: see, for example, Sykes v Reserve Bank of Australia (1998) 88 FCR 511 (per Heerey J at 513); Botany Bay City Council v Jazabas Pty Ltd [2001] NSWCA 94; [2001] ATPR 46-210 (at [84] per Mason P). 323 The statutory formulation directs focus to the publisher's belief, not in the truth of what was published (cf Morgan v John Fairfax (at 387F-G per Hunt AJA)), but in the public interest in publishing the matter in question.

F.4.3 Reasonableness 324 The heart of the enquiry is, of course, whether the respondent's belief the matter was in the public interest was reasonable in all the circumstances. 325 "Reasonableness" is open-textured and value-laden; both a "morally freighted concept": see GC Keating, Reasonableness and Risk: Right and Responsibility in the Law of Torts (Oxford University Press, 2022) (at 5); albeit in a criminal context, Professor Glanville Williams, Textbook of Criminal Law (Stevens & Son, 2nd ed, 1983) (at 49); Serafin (at 2473-2474 [67] per Lord Wilson, with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed). In his text Legal System and Lawyers' Reasonings (Stanford University Press, 1964) (at 263-264), Professor Julius Stone reflected that: [w]hen Courts are required to apply such standards … judgment cannot turn on logical formulations and deductions, but must include a decision as to what justice requires in the context of the instant case … [Such standards] are predicated on fact-value complexes, not on mere facts. 326 As is no doubt evident from F.2 above, this standard of indeterminate reference has long had a place in the law of defamation in this country. 327 "Reasonableness" can be found as early as the 1889 Queensland Act and followed through to s 17(e) of the 1958 Act. In that context, it was applied to the circumstances in which information is passed, an attempted workaround for the duty and interest schema. The controlling hand was good faith, "essentially lack of malice": Descheemaeker (at 254-255). 328 But there was, with the introduction of s 22, a change in meaning, such that the emphasis was directed towards the reasonableness of the publisher's conduct: Descheemaeker (at 254-255). This eventually came to include the need for publishers to establish reasonable enquiries were made as to the truth of the matter and the need for reasonable belief in the truth of the subject matter of the publication. This colouring of reasonableness found favour in 1991 in Morgan v John Fairfax (at 387-388 per Hunt AJA). For completeness, it should be noted that something resembling this approach is discernible in s 6 of the Defamation (Amendment) Act 1909 (NSW) and s 30 of the Defamation Act 1912 (NSW) (cf Macintosh v Dun [1908] AC 390) and may be seen in the extrinsic material for the 1974 Act: New South Wales, Parliamentary Debates (Hansard) 3rd series, vol 108 (1973-1974) (at 854); vol 109 (at 1637). 329 Reasonableness as understood in the context of s 22 was "track[ed]" by the High Court in Lange (O'Shane (at 67,487 [308] per Young CJ in Eq); see generally Professor AT Kenyon, 'Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice' (2004) Melbourne University Law Review 406 (at 417-418)), where it was defined by the High Court as follows (at 574): Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing the imputation, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant had sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. 330 Given the intent of the legislature to mirror s 4 of the UK Act in Australia, the Lange formulation of reasonableness is of considerable importance where s 29A is concerned because of its endorsement by Lord Bingham in Reynolds (at 176; see also at 199 per Lord Nicholls; 220-221 per Lord Cooke). An important digression here is that in the Court of Appeal, Lord Lester QC, as counsel for The Times, had ambitiously pressed the adoption of a defence of the kind in New York Times Co v Sullivan (1964) 376 US 254, where public officials would only be able to recover on proof of malice. This was decisively rejected by Lord Bingham as (at 177-178): … too broad and too narrow. It is too broad because it exposes those who are properly the subject of political speech to false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement. It is too narrow because confined to political speech or discussion. 331 It was on this basis that while the High Court's "solution" in Lange was not wholly adopted by the House of Lords, the reasonableness "control" was. The position that has emerged from English authorities concerning s 4 of the UK Act is generally consistent with this lineage, and Reynolds jurisprudence continues to play a major role: Economou EWCA (at [86] per Sharp LJ, with whom Lewison and Ryder LJJ agreed). 332 So what, in the end, can be said of reasonableness in s 29A? 333 Without diminishing the importance of having regard to all the circumstances, the non-exhaustive factors in s 29A(3) are as follows (identifying, were relevant, where there is overlap with Reynolds, Morgan v John Fairfax, former s 22 and former s 30): the seriousness of any defamatory imputation carried by the matter published (s 29A(3)(a); s 22(2A)(c); s 30(3)(c); Reynolds (at 205 per Lord Nicholls); Morgan v John Fairfax (at 387E per Hunt AJA)); the extent to which the matter published relates to the performance of the public functions or activities of the person (ss 29A(3)(c) and 30(3)(b)); the extent to which the matter published distinguishes between suspicions, allegations and proven facts (s 22(2A)(d); s 29A(3)(b); s 30(3)(d)); whether it was in the public interest (s 29A(3)(d)) or necessary (s 22(2A)(e)) in the circumstances for the matter to be published expeditiously (Reynolds (at 205 per Lord Nicholls); s 30(3)(e)); the sources of the information in the matter published and the integrity of those sources (s 22(2A)(f); s 29A(3)(e); s 30(3)(g); Reynolds (at 205 per Lord Nicholls); Morgan v John Fairfax (at 388B per Hunt AJA)); whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person (s 22(2A)(g); s 29A(3)(g); s 30(3)(h); Reynolds (at 205 per Lord Nicholls)); and any other steps taken to verify the information in the matter published (s 22(2A)(h); s 29A(3)(h); s 30(3)(i); Reynolds (at 205 per Lord Nicholls); Morgan v John Fairfax (at 388B per Hunt AJA)). 334 Beyond this, it would no doubt be unhelpful to enumerate a list of matters always or even sometimes relevant to s 29A, or, as Lord Wilson (with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed) cautioned in Serafin (at 2475-2476 [72]), to equiparate the meaning at common law or a bygone statute with reasonableness in s 29A. 335 Coherence in the law is a good thing and it is clear on the face of s 29A and the explanatory materials that the defence is intended to continue and extend the previous law in this area. To this end, I should address three specific points which assumed significance in oral and written submissions. 336 First, there was some suggestion by senior counsel for Mr Russell that the public interest defence has, in substance, been available to respondents in New South Wales since the advent of s 22 in the 1974 Act. But this submission ignores Parliament's recognition that pre-existing defences have not lived up to the objectively discernible expectations of the jurists, law reform bodies and legislatures who conceived of them. Reform ensures a court is to have regard to all the relevant circumstances in making allowances for editorial judgments as to publications of certain character. The submission is also apt to mislead because it does not recognise that where ss 22 and 30 were concerned with the objective reasonableness of the respondent's conduct, s 29A is concerned with the reasonableness of the respondent's belief the publication of the matter was in the public interest. 337 Of course, conduct may evidence subjective belief. Indeed, almost all of the factors in s 29A(3) are focussed upon the publisher's conduct (leaving to one side ss 29A(3)(d) and 29A(3)(i)). But this shift is nonetheless notable; the renewed focus eschews speculation about what a reasonable person would have done and instead requires the Court to trace a respondent's reasoning as it happened and conduct an objective assessment from that position: see, comparably Economou EWCA (at [86] per Sharp LJ, with whom Lewison and Ryder LJJ agreed). 338 With all of that said, however, consistently with the remarks of Sharp LJ in Economou EWCA (at [86]), it cannot sensibly be suggested that "the rationale for the Reynolds defence and for the public interest defence are materially different, or that the principles that underpinned the Reynolds defence … are not also relevant when interpreting the public interest defence". The same is true of s 29A and its common law and statutory precursors, although the attempt by Mr Russell to suggest nothing of substance has changed must be rejected. 339 Secondly, as a general rule, an important aspect is honest and reasonable belief in the truth of what is published: Lange (at 572); Jameel v Wall Street Journal (at 385 [62] per Lord Hoffmann). This is not to be confused with an assessment of the actual truth or falsity of the allegations concerned: Economou EWHC (at [139] per Warby J). Reading s 29A in isolation, this point may seem unremarkable. But there was a tendency in Mr Russell's submissions and lines of cross-examination to conflate the standard of reasonableness with factual accuracy. Public interest journalism does not pretend to be a form of fact-finding that is functionally equivalent to the judicial process; and it is certainly not the case that its public utility depends upon such an equivalence. 340 Thirdly and finally, in oral argument, senior counsel for Mr Russell went to lengths to emphasise that the conscious publication of misinformation is not protected by the defence, invoking the reasons of Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times (at 137). I need say no more than this was never in issue. Indeed, the knowing publication of misinformation has, understandably, never found protection in this country (except on occasions of absolute privilege).

F.4.4 Ongoing Publication and Change of Circumstances 341 English authorities have recognised that, even if the respondent reasonably believed that publication was in the public interest at the time of initial publication, the defence may be lost if circumstances change, such that the defendant no longer holds the belief or the belief is no longer reasonable: Flood v Times Newspapers Ltd [2010] EWCA Civ 804; [2011] 1 WLR 153 (at 177 [78] per Lord Neuberger MR); Lachaux QB (at [159] per Nicklin J); Banks v Cadwalladr QBD (at 5270 [135] per Steyn J).

G THE PUBLIC INTEREST DEFENCE: CONSIDERATION 342 The parties' submissions as to the s 29A defence were, consistently with the statutory task, heavily fact dependent. At times they passed by one another like ships in the night and had different emphases. They were also liable to stop at generality, without specifically descending to the need, pursuant to s 29A(1)(b), to establish that each respondent reasonably believed the publication of the matter was in the public interest. In this section, I have been economical in summarising the parties' submissions and have taken care not to repeat conclusions already drawn unless necessary to do so. It goes without saying that I have considered all submissions raised, even where I do not expressly refer to them.

G.1 Whether the Publications Concerned an Issue of Public Interest 343 I have already recorded Mr Russell does not dispute that the published matters concerned an issue of public interest. This concession was inevitable. Not only was Australia's involvement in Afghanistan our longest military campaign, but it triggered significant and continuing investigations by public bodies into the commission of criminal offences under domestic and international law. By the time of the October Article, such matters had become a topic of national importance. 344 Notably, the Brereton Report stated that "the Inquiry does not doubt that it has failed to uncover everything that fell within its terms of reference": The Inquiry also does not doubt that, like some of the contemporaneous inquiries and investigations conducted during the Afghanistan era, there are probably cases in which it has been deceived. Reports, rumours and allegations of war crimes in Afghanistan will continue to emerge, following the release of the Inquiry's findings, and potentially for many years … 345 Borne out of this confusion and information gap is a public interest in, and the importance of, the work of journalists in this area. Media reporting has brought allegations to light and encouraged witnesses to come forward. Although it is possible to be critical of the way the defensiveness of the ABC informed some of its actions, it is understandable the ABC considered its general work in this area to be of signal importance. 346 Having established the impugned publications concerned matters of public interest within the meaning of s 29A(1)(a), it is well to address a point raised by the respondents in their written submissions. The respondents submitted the gravity of the subject matter meant the public interest in publishing the impugned matters was "sustained independently of the possibility of inaccuracies of detail" and "as much by the broader implications as the specific details". The public interest is said to have been "engaged at a broader level than the granular detail of a particular incident". 347 On one level this is obviously correct, but it is important to understand there is not some sliding scale which means the greater the public interest in the matter, the greater the margin for error in what is published. To embrace this notion would distort and oversimplify the requirement to make a value judgment about whether the impugned publication was in the public interest by reference to all relevant circumstances. The extent of public interest is relevant to making such allowances for editorial judgment as is appropriate but does not overwhelm the evaluative assessment.

G.2 The Respondents' Subjective Belief 348 When it comes to subjective belief, a preliminary point should be made as to the corporate respondent, the ABC. 349 In determining the state of mind of the ABC, a statutory corporation constituted under the Australian Broadcasting Corporation Act 1983 (Cth), the focus must be on its servants or agents responsible for the matter being published: Austin v Mirror Newspapers Ltd [1986] AC 299 (at 316 per Lord Griffiths); John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [12] per Handley JA, with whom Spigelman CJ and McColl JA agreed); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 (at 72 per Hunt J). 350 Mr Russell submitted that because Ms Puccini accepted the abstract proposition that Mr Lyons was the "ultimate decision maker" (see T697.26-30; T775.5-6), and Mr Lyons was not called to give evidence, it should be inferred his evidence would not have assisted the ABC. This is an unrealistic submission. I decline to draw any inference where, on the evidence before the Court, it is plain Mr Lyons had a very limited role, which might be described as procedural rather than substantive. Indeed, the version of the November Article he saw and "approved" was not the final version; specifically, it excluded Mr Russell's comment, the Key Points, and other digital edits. 351 It is pellucid on the evidence before the Court that the persons substantively responsible for the publication of the November and Linked Articles were Mr Willacy, Mr Robertson, Ms Puccini and, to a lesser extent, Mr Harrison. 352 Mr Russell's position as to all respondents was that they did not subjectively believe the publication of the impugned matters was in the public interest. In reality, Mr Russell's contentions on this issue were largely directed towards reasonableness. As is obvious from my conclusions in Section C above, I accept the respondents subjectively believed the publication of the impugned matters was in the public interest (although they did not believe that the impugned publications conveyed the imputations specified at [250] above). This conclusion is explained and contextualised below. Sections G.4-G.6 below address the reasonableness of the respondents' belief publication of the matters was in the public interest.

G.3 Status of the October Article 353 The October Article occupies a peculiar position in this litigation. Although its publication in October 2020 was the catalyst for the controversy between the parties, it is not sued upon. It is the subject of examination as being a component part of the Linked Article, as published in November 2021. 354 The substance of the October Article, and the respondents' continuing belief in its veracity, are of course relevant matters in my assessment of the reasonableness of their belief that it was in the public interest to publish the November and Linked Articles and the Television Broadcast. A central throughline of the impugned publications is Josh's story, and its origin is repeatedly cited as the October Article. As such, the reasons why the respondents had faith in the October Article, and persisted in this belief in November 2021 and beyond, are important. 355 But it would be unsafe to proceed, as the parties did in certain of their submissions, with a laser-like focus on the subjective belief of the respondents at the time of publication of the October Article when determining the availability of the public interest defence. There are two reasons for this. 356 First, Section C.5 above details relevant developments following the October Article. Rightly or wrongly, it set a hare running, precipitating Mr Russell's identification of himself as commander of November Platoon, the OSI's contact with the ABC and Mr Russell's First Complaint. Its publication was an event and a story in and of itself. So much is demonstrated by the treatment of the October Article in the November Article ("last year, the ABC reported…") and the fact hyperlinks were provided. Whatever the respondents' belief in its public utility in October 2020, by the time of the publication of the impugned matters in November 2021, it was an historical fact, and must be treated as such. 357 Secondly, the passage of time brought with it other developments, most significantly the release of the Brereton Report, and the subjective belief of the respondents much be assessed against this reality.

G.4 November Article 358 I have determined the respondents have not established the public interest defence in relation to the November Article.

G.4.1 Mr Willacy 359 The controversy as to Mr Willacy's involvement in the November Article in effect concerned four issues: first, his reading of the FOI Response; secondly, the reasonableness of his belief he could once again rely on Josh's allegations; thirdly, his drafting choices in the light of the information before him; and fourthly, the urgency he attached to the publication of the November Article. I will address each in turn.

The FOI Response 360 It will be recalled the FOI Application sought documents pursuant to four categories. The first and second categories sought certain documents relating to November Platoon with a date range of 1 June 2012 to 31 July 2012; the third category was broad, seeking "[c]ommunications, including emails and reports, between the Australian Defence Force and the United States Drug Enforcement Administration (DEA) between 1 January 2012 and 31 August 2012"; and the fourth category sought a suite of documents relating to November Platoon "in the calendar year 2012". 361 Mr Willacy formed a view there was more than one document responsive to his request because the FOI Response stated access to "all documents" had been denied pursuant to s 37 of the FOI Act. The next link in his reasoning was that the documents were being used in an investigation because [7] of the FOI Response detailed that "the documents contained information, if disclosed, could reasonably be expected to prejudice the conduct of a current investigation of a possible breach of the law" and [9] concluded: The release of this information prior to the conclusion of the investigation could impact the direction of the investigation. Further, I consider the pre-emptive release of the documents, which may be used as evidence by the investigating body, could also jeopardise the outcome of the investigation. 362 I accept Mr Willacy gave evidence of his genuine contemporaneous view. Two matters reinforce this conclusion. 363 First, the Court should be careful not to parse the FOI Response as a lawyer might. Mr Willacy had extensive experience in preparing FOI requests and receiving responses to them. He read the FOI Response in a way he thought appropriate. 364 Secondly and more significantly, the conclusion drawn by Mr Willacy upon reading the FOI Response must be viewed in the light of its immediately preceding context. At this time, Mr Willacy was also aware of other information which led him to believe the OSI was investigating the 2nd Commando Regiment, and mainly November Platoon, including: Mr Barnett's comment the OSI had the FOI Application referred to it and he did not think Mr Willacy would have "much luck getting that information"; the OSI's letter to Ms Puccini (forwarded to Mr Willacy) which asked their interest in November Platoon be kept confidential so as not to prejudice any investigation; the OSI's attendance at Mr Willacy's home and questioning over 90 minutes including as to Josh, the 2nd Commando Regiment and Mr Russell; and the comments of the OSI during that meeting (including that various members of the OSI team said to Mr Willacy words to the effect that they were focussing on the execution of non-combatants by the 2nd Commando Regiment, that they had spoken with Josh and confirmed his bona fides, and that they intended to have someone speak with him in the United States). 365 For completeness, I should address the submission advanced by Mr Russell in response, namely that Mr Willacy was wrong to assume there could be documents responsive to the first two bullet points of the FOI Response. Mr Russell asserts November Platoon did not conduct missions outside the Wire until August 2012. It is not necessary to form a conclusion on this issue. What matters is that on the information before Mr Willacy at the relevant time, he believed November Platoon was in Afghanistan in June and July 2012. Mr Willacy had the souvenir video, which states (at 00:16) that "[t]he following events took place between 17 July 2012 and 1 December 2012". Further, Mr Willacy had been told by the OSI that November Platoon arrived in Afghanistan in July 2012. He also had information that Rotation 18 commenced in July 2012 from both Mr Masters' book, and his conversations with Confidential Source A. But the real point is that whatever the true position, Messrs Willacy and Robertson believed November Platoon took part in missions in the period referred to in the FOI Application, in circumstances where they had both seen the souvenir video, and Mr Willacy had the information he had from the OSI. 366 But where the conclusions drawn by Mr Willacy from the FOI Response become problematical is where he went so far as to conclude the FOI Response "confirms" the investigation on foot concerned November Platoon. I accept the FOI Response confirms the existence of an active investigation, as the premise for withholding all documents is "the investigation", however, given the importance of the topic, I do not accept it could reasonably or safely be concluded that the FOI Response confirms the investigation concerned November Platoon. A reasonable reader would conclude there was a real possibility that all relevant documents were responsive to the third category of documents sought, which plainly is not limited to November Platoon. Indeed, Mr Willacy properly accepted he could not exclude the documents were relevant only to this category: T372.38-373.4.

Josh's Allegations 367 It was repeatedly suggested by Mr Russell that Mr Willacy (and, indeed, the other respondents) could never have held a reasonable belief it was in the public interest to publish serious allegations, such as those made by Josh, without independent corroboration, preferably from another person who saw the event take place. 368 But any a priori assertion of this type takes insufficient account of two matters relevant to corroboration which, in the present case, pointed in different directions and serve to highlight the difficulty of the work being undertaken by Mr Willacy. The first matter is the general notion that in considering what else needs to be done, much depends upon the quality and specificity of the recollection of the person making gravely serious allegations and the inherent likelihood that the wrongful conduct took place. The second matter, more specific to the circumstances of his case, was the practical difficulties in being able to establish definitively what occurred in Afghanistan. 369 As to the first of these matters, I have already made findings as to the unspecific and fuzzy nature of Josh's recollection. This necessarily called for caution and pointed to the importance of verification and critical scrutiny. As to the second, Mr Willacy was sensible to the reality that, for obvious reasons, witnesses were often not willing to speak on the record, FOI requests would more often than not be refused, and some findings of government inquiries were not open to the public. There was always going to be a necessity for some "reading between the lines". This determined the way in which he, and indeed his colleagues, understood details could be checked or confirmed, and must inform what the Court considers to be reasonable in the circumstances of this case. 370 The real and more substantive complaint appears to be that it was open to Mr Willacy to take a wide range of steps to be careful to distinguish between what was known and what was not known (s 29A(3)(b)), interrogate and explain to readers the integrity of his sources (s 29A(3)(e)), accurately convey (or attempt to ascertain) Mr Russell's side of the story (s 29A(3)(g)) and justify the concealment of Josh's identity (s 29A(3)(f)). In all the circumstances, he simply did not do enough. 371 Mr Russell's submissions as to the reasonableness of Mr Willacy's belief it was in the public interest to ventilate Josh's allegations in November 2022 were generally soundly based. 372 In particular, all Mr Willacy really did to attempt to test Josh's account was satisfy himself Josh was who he claimed to be; make what were not unfairly described as "limp requests of Josh to ask his crew mates to speak to him, which Josh rebuffed and Mr Willacy made no real attempt to pursue"; and asked a "senior military source" who was not present in Afghanistan at the relevant time and gave only a vague indication the allegation was "credible" and "worth reporting": T210.7-13; T291.6; T704.11-19. He did not speak to any commando deployed in Afghanistan in 2012, let alone a soldier from Task Force 66, Rotation 17 nor Rotation 18, and made no meaningful attempt to speak to any American soldier. He did not ascertain, from persons with experience in Afghanistan or anyone with any kind of expertise or on-the-ground military experience, whether Josh's allegations were plausible. Tellingly, many former soldiers gave unchallenged evidence that components of the allegations were not. In the absence of any evidence to the contrary, I infer he would have been told of these implausibilities if he had canvassed the issue widely among those with firsthand experience. 373 At the risk of repetition, the foundation of October Article was someone who was frank about his deficiencies of recollection. A journalist acting reasonably would have done more to explore sources of potential corroboration (and hence do more than have Mr Oakes make limited enquiries and accept Confidential Source A's limited information). 374 More directly, when it came to publication of the November Article, leaving aside the FOI Response, the only additional information Mr Willacy had was someone with mental health issues (Confidential Source B) described to him by another confidential source as a "bottom of the list, wanker, signaller, show pony, way with words"; the (at least to an extent) confounding information given by Mr Hamilton, and the contacts with the OSI (recognising, as the transcript reveals, it is likely a reason why the interest of the OSI was triggered was because they understood Josh had implicated the November Platoon).

The Drafting of the November Article 375 It will be recalled that there was hardly any difference between Mr Willacy's last draft of the November Article and the version published. 376 Mr Willacy's drafting did not distinguish between suspicions, allegations, and proven facts (s 29A(3)(b)). Mr Willacy should have known at the time of publication that any statement of fact that Defence had "confirmed" an investigation was at best put too highly, and at worst, misleading. This is the case even though I accept his reading of the FOI Response and his subjective belief, based upon his deductions, as to the existence of an investigation into November Platoon. 377 The reasonableness of Mr Willacy's belief must be assessed against the seriousness of the imputations carried by the November Article (see s 29A(3)(a)). Despite Mr Willacy's repeated and misguided assertions to the contrary, the November Article did convey that: Mr Russell was the subject of an active criminal investigation by the relevant investigatory authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon (November Imputation 1); and Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon (November Imputation 2). The risk of such serious, specific meanings being conveyed about Mr Russell and November Platoon necessitated care. 378 This was all the more important in circumstances where Mr Willacy was aware of Mr Russell's public denials and formal complaint in relation to the October Article, which the ABC had determined to investigate the day before.

The Urgency to Publish 379 Mr Willacy sought to explain the urgency he ascribed to the publication of the November Article by explaining that from at least receipt of the OSI's letter on 1 November, there was a chafing within ABC Investigations to report the information contained in the letter. That is, the FOI Response was Mr Willacy's ticket to publishing what he already believed to be true because of the communications between the ABC and the OSI. Mr Willacy also said he was concerned the FOI Response would be published on the Defence website and some other news outlet would report on it before the ABC. 380 But the fact Mr Willacy had other reasons to believe November Platoon was under investigation does not establish there was a pressing need to publish the story on 19 November. Although the evidence suggests the FOI Response probably would not have been made public, I accept Mr Willacy was concerned it would be and wanted to expedite the ABC's reporting on it although this was not a sound basis for rushing to publish such serious allegations. 381 Indeed, the perceived urgency was, at least to a significant extent, commercial and vindicatory. I am satisfied that a prominent but not exclusive motivation for the creation and then urgent publication of the story was an eagerness for Mr Willacy to prove wrong those who, in his terms, had "come after [him]" and his reporting. It was not an "urgency" of the kind centrally contemplated by s 29A(3)(d): it was not a story in relation to which there was an immediate need for the public to know, outweighing the need to take further care as to the detail of what was published. The November Article was pushed out in approximately seven hours, on a day when Mr Willacy was not at work and was not able to be meaningfully involved in its finalisation. Once his initial draft had been passed into other hands, and his colleagues had heeded his advice it should be published as soon as possible, Mr Willacy was content to defer to his colleagues. 382 It should be emphasised, as noted above, that the ABC notified Mr Russell of its determination to accept his First Complaint for investigation the day prior to publication. Mr Russell contends that the conduct of Mr Willacy (and the other respondents) in doubling down by rushing to publish a further story about Mr Russell and November Platoon was lacking in good faith, improper and unjustifiable. 383 For present purposes, it is only necessary to record my conclusion it was unreasonable for Mr Willacy to take the view publication in these circumstances was in the public interest, particularly where Mr Willacy gave evidence that it was only the First Complaint (which included a query as to whether the ABC had submitted an FOI request), which prompted him to submit the FOI Application. The publication was partly driven by a desire to prove Mr Russell wrong in a public forum and to vindicate Mr Willacy's reporting and ABC Investigations. Having said this, I reject Mr Russell's submission it was the sole motivation for publication of the November Article. 384 In the end, I have no doubt Mr Willacy believed the publication of the matter was in the public interest. But having regard to his reading of the FOI Response; the information he had available to him as to Josh's allegations; the seriousness of the allegations; his drafting choices in the light of the information before him; and the want of real urgency other than as a means to vindicate his earlier reporting, taking his conduct as a whole, his belief was not reasonable in the circumstances. Accordingly, Mr Willacy has not established the defence in s 29A.

G.4.2 Mr Robertson 385 The position in relation to Mr Robertson is more nuanced. It is useful to commence by dealing with two arguments advanced by Mr Russell: first, Mr Robertson improperly relied upon Mr Willacy's work; and secondly, Mr Robertson acted unreasonably in his dealings with Mr Russell.

Reliance on Mr Willacy's Work 386 Mr Russell submits it was unreasonable for Mr Robertson to rely on Mr Willacy's work without properly scrutinising it. The November Article did not attribute Mr Willacy as an author and as such, Mr Robertson was publicly taking responsibility for the content and was therefore obliged to check it - or at least present it in qualified language. It is said Mr Robertson's position as to the November Article is inconsistent with his agreement in cross-examination with abstract propositions such as (at T506.44-507.1): And you accept that when you're given information as an investigative journalist as part of the ABC Investigations unit, that you need to check it, no matter who gives it to you? --- I agree. Otherwise, you wouldn't be any kind of investigative journalist, would you? --- True. 387 It seems to me Mr Russell understates the significance of the status of the November Article as a "follow" from the October Article. There is merit in the contention advanced by the respondents that Mr Robertson was entitled, to a significant extent, to rely upon the work done by Mr Willacy, approved by Ms Puccini and published by ABC Investigations the year prior. The October Article was part of the factual landscape upon which Mr Robertson was required to report. Any suggestion that Mr Robertson was required to redo all the work done by Mr Willacy is unsustainable. Understandably, the November Article presents the October Article as a fact of significance, stating: "Last year the ABC reported the allegations of a US marine who said Australian commandos shot and killed an Afghan prisoner after being told he would not fit on a US aircraft during an operation in Helmand province in 2012"; and "Last year, the ABC ran a story detailing the allegations of Josh (not his real name), a United States Marine Corps helicopter crew chief who flew 159 missions for the USMC's Light Attack Helicopter Squadron 469 (HMLA-469)." 388 In a similar vein, the belief held by Mr Robertson must be viewed in the light of the reality that he first became involved in the November Article when an advanced draft came across his desk, which two of his superiors (including the editor of ABC Investigations), in whom he reposed trust, instructed him to progress the advanced draft towards publication. 389 Mr Russell put before the Court a document which became Exhibit P, namely a copy of the November Article as published, with the sections carried through from Mr Willacy's initial draft reflected in highlight. That document demonstrates that the draft as published overwhelmingly reflects the work of Mr Willacy. The substantive changes made by Mr Robertson are the change to the "lead" and the addition of Mr Russell's perspective. Of course, this does not absolve Mr Robertson of responsibility for its drafting and publication. But it is an important circumstance which influences how the reasonableness of his belief should be objectively assessed. 390 As noted above, Mr Robertson formed the obvious view the October Article impugned the conduct of November Platoon, and that Josh had told Mr Willacy as much. In this context, one can appreciate Mr Robertson's belief it was important to republish ABC Investigations' previous reporting and buttress the firsthand account of serious misconduct by November Platoon with further developments thought to vindicate this reporting.

Contact with Mr Russell 391 It became apparent in written and closing submissions that the essence of Mr Russell's complaint was that Mr Robertson did not warn Mr Russell of his intention to republish the substance of the October Article, and that the precise allegations made by the November Article were not fairly put to him. This complaint has substance. 392 Mr Robertson asserted he had published Mr Russell's side of the story for four reasons. 393 First, he included a broad denial by Mr Russell (T545.41-42) (indeed, one broader than the curiously specific denial advanced by Mr Russell). Secondly, he believed Mr Russell had already publicly given the explanation for his denials to the allegations in the October Article "on very large platforms" (T547.11-16), such that he did not need to include this specific detail. Thirdly, he believed the attempt made to obtain a response from Mr Russell was reasonable. He called to ask him about November Platoon being under investigation, and at the end of that call asked him, "Is there anything else you would like to say?" As Mr Russell said nothing further to his previous media responses about the October Article, Mr Robertson considered it appropriate to include a broad summary of the denial: T546.1-11. Mr Robertson considered that his explicit questions to Mr Russell about his platoon being under criminal investigation were "a fairly large cue about what I'm looking at": T546.33-37. Fourthly, to say Mr Robertson was required to tell Mr Russell what he proposed to publish would be to apply s 29A with undue strictness. It was not unreasonable for him to believe the public interest was served by the substance of the article being published without Mr Russell's forewarning because (T548.1-6): I'm not a publisher. I'm a journalist. I draft articles for proposed publication. It's not my decision. I never feel under an obligation to explain to people that I'm questioning for the purposes of a story the exact time and the exact form of the story that will result … 394 Mr Russell asserted Mr Robertson was "wilfully blind" to exculpatory material concerning Mr Russell. This assertion cannot be accepted, but in the light of the findings I have already made, I do not think Mr Robertson's dealings with Mr Russell were satisfactory. 395 I accept Mr Robertson had the October Article, an advanced draft prepared by Mr Willacy, and the direction of his superior to prepare the article. But as Mr Robertson accepted, when a story is published by ABC Investigations, a representation is made the allegations made have been properly investigated, examined, and assessed (T499.34-37) and that an investigative journalist needs to check a proposed story, no matter who has given them information (T506.44-507.1). He had an independent responsibility to satisfy himself he was publishing something that was accurate. One obvious aspect of ensuring accuracy was to obtain, and at least consider, any response from Mr Russell. Indeed, Mr Robertson was bound by the ABC Code of Practice which, among other things, requires, as an aspect of "[f]air and honest dealing", that "[w]here allegations are made about a person or organisation, [a journalist should] make [a] reasonable effort in the circumstances to provide a fair opportunity to respond". 396 As explained in C.6 above, Ms Puccini directed the nature of the communications between Mr Robertson and Mr Russell, and Mr Robertson did not depart from what he had been told to do. Depriving Mr Russell of a properly informed opportunity to respond (see [203] above) meant Mr Robertson did not procure all the information he could reasonably obtain to assess whether what he proposed to publish, serious as it was, was sufficiently accurate. 397 Put another way, it may have been understandable that Mr Robertson took his direction from his editor, but in communicating with Mr Russell, he did not discharge his independent responsibility to elicit and consider a properly informed response. 398 For completeness, I should note that Mr Russell contended it was wrong, in and of itself, for Mr Robertson not to refer to Mr Russell's complaint and the respondents' internal review in relation to the October Article. It is said this would have been relevant to the ordinary reasonable person's reaction to the November Article, including the extent to which they regarded it as credible. I am not convinced by this submission in the terms it was made. The mere fact further information would have been relevant does not make it unreasonable to exclude that information provided the "other side of the story" has fairly been conveyed. It is the failure to procure fairly and then convey Mr Russell's response that is the difficulty.

The FOI Response 399 Additionally, there is the problem that Mr Robertson expressed with certainty matters in respect of which he was not certain. In so doing, he conveyed serious imputations in relation to Mr Russell (s 29A(3)(a)); and failed to distinguish between suspicions, allegations, and proven facts (s 29A(3)(b)). 400 Mr Robertson's belief was that because all the categories referred to, or were likely to refer to, November Platoon, that indicated that the investigation referred to in the FOI Response concerned November Platoon. But this does not substantiate the assertion the FOI Response "confirmed" an active, criminal investigation into November Platoon. 401 The problems with this approach are captured by the following exchange between Mr Robertson and senior counsel for Mr Russell (at T539.21-34): Well, there's a different between something being more probably than not and something being fact. Do you agree?---Yes. And the headline that you published it as fact, not as something that was more probable than not?---I genuinely believed this was the case. Well, can you answer my question. You've already accepted that there was a possibility that the documents that were being refused related to something other than a criminal investigation into November platoon?---I considered that, and excluded that possibility. Well, no, you've already accepted that it was a possibility?---Yes, but I considered it, and then I excluded it as a possibility. How did you exclude it?---Because I considered it far less likely that this would result from - sorry, that this would involve an investigation of a civil breach of the law. I excluded the possibility that it would relate to, perhaps, a criminal investigation by the DEA in relation to narco-trafficking in Afghanistan, and based on the fact that the War Crimes Agency had told Mark - and Mark had relayed to me, and I considered Mark a credible person - that there was an investigation into November platoon, and that they had asked for our material relating to the 'Josh' interview and the 2 CDO highlights video, that contributed to my belief that there was an investigation, that this was confirming that fact. 402 None of this is to say that journalists can only publish matters of which they are sure. Rather, it is to say that there was an infirm basis for Mr Robertson to make the changes he did to Mr Willacy's draft in the light of the information before him. The only firsthand research he undertook was to read and analyse the FOI Response. The remainder of his knowledge of the information canvassed in Mr Willacy's draft was superficial at best. And yet, by his additions, Mr Robertson altered the focus of the story, emphasising that Defence had confirmed the existence of an active criminal investigation, rather than that Defence had refused to provide documents pursuant to the FOI Response which pointed to the possibility of an investigation. Conclusion 403 Upon a consideration of all the circumstances, for the reasons canvassed above, Mr Robertson has not discharged his onus of proving his belief that the publication of the November Article was in the public interest was reasonable, and hence has not made out his s 29A defence.

G.4.3 The ABC 404 I adopt my conclusions as to the reasonableness of the conduct of Messrs Willacy and Robertson and make the following further points as to the unavailability of the public interest defence to the ABC. 405 The evidence of Ms Puccini reveals her participation in the process was primarily informed by her desire to win a skirmish in what she considered was a broader culture war as to ABC Investigations' war crime reporting and, more specifically, to prove Mr Russell and his supporters wrong. 406 Four examples are demonstrative. 407 First, she initially approved the inclusion of a quotation from Mr Russell, but backtracked because she was of the view he already had a "huge platform" and she did not think ABC Investigations needed to "amplify" his story. The tension between this tactical approach and the spirit of s 29A is obvious and engages s 29A(3)(g): as it can hardly be said that the ABC made a "reasonable attempt … to obtain and publish a response from the person". For completeness, this conclusion is bolstered by Mr Willacy's suggestion they contact Mr Russell in case he "complains", and Ms Puccini's instruction to Mr Robertson to "just keep it straight". This conduct was designed to elicit a narrow response that would allow Mr Robertson to finalise the story with celerity and allow urgent publication, thus vindicating ABC Investigations and publishing a story thought to be newsworthy. 408 Secondly, although Ms Puccini was unable to review properly the final draft because of a Walkley's hosting event, she took the trouble to tweet about it promptly upon publication. 409 Thirdly, and most tellingly, where her evidence as to the reasonableness of her belief and conduct was tested in the witness box, there was a lack of reasonable explanation as to what she, as editor of ABC Investigations, believed was being put out into the world. A pertinent example is her repeated denial that she intended to suggest that November Platoon was under investigation for the Helicopter Allegation, even though she accepted that she intended to convey the criminal investigation related to November Platoon: T723.7-30; T734.1-T735.17. Moreover, this evidence contradicted her tweet on 19 November, "FOI response confirms an incident we reported is under criminal investigation". She could not explain this discrepancy, other than by asserting the tweet was an "error": T768.18-769.23. 410 Fourthly, when Mr Willacy first relayed Josh's allegations to Ms Puccini, she expressed an awareness of the risk that serious imputations would be carried by any reporting on the allegations. She recommended Mr Willacy to seek to corroborate Josh's allegations and sought the counsel of Mr Maley. But this concern had apparently dissipated over time. 411 Then there is Mr Harrison. He performed a limited but important role and escalated his suggested edits to Mr Willacy, Mr Robertson, and Ms Puccini. Neither Mr Willacy nor Ms Puccini attempted to "correct" Mr Harrison's Key Points (which stated Josh had alleged November Platoon carried out the Helicopter Allegation). Justifiably, Mr Harrison assumed their approval was sufficient for the November Article to be published and proceeded on this basis. 412 In the end, in publishing the November Article, those within the ABC were concerned to publish a newsworthy story but also to defend Mr Willacy, who had engaged in important work perceived to be under attack. But in fighting back against critics and seeking to justify its earlier story, those responsible within ABC Investigations did not do all they should have done prior to publishing the November Article conveying, as it did, such serious allegations. The ABC did not have an objectively reasonable attributed belief that publication of the November Article was in the public interest and cannot make out the s 29A defence.

G.5 The Linked Article 413 The conclusions reached above as to the November Article obviously apply with equal force to the Linked Article. 414 I am fortified in this view in the light of the problems with the October Article already identified. Furthermore, and at the risk of repetition, none of the developments of the intervening year remedy the issues with the rendering of Josh's story in October 2020, outlined above in Sections C.4.6 and G.4.1, being inter alia: (a) the dubious attribution of the allegation against November Platoon to Josh; (b) its internal inconsistencies; (c) the connexion implied between the Helicopter and Throwdown Allegations and the comments from Mr Oakes' sources as to November Platoon; (d) the failure of the October Article to provide caveats on Josh's account; and (e) the respondents' failure to take further necessary steps to verify Josh's account, including contacting Mr Russell or anyone else in November Platoon. A range of steps could have been taken to bolster Josh's allegations or present them more carefully. No such steps were taken. G.6 The Continuing Publication of the November and Linked Articles 415 It was not clear until Mr Russell's reply submissions whether he persisted in the contention that the existence of the respondents' belief that the publication is in the public interest, and the reasonableness of that belief, are ongoing requirements for as long as the publications remain online. It is now apparent he maintains the respondents have not satisfied their onus that they each had an ongoing, reasonable belief that the publication of the November Article and the Linked Article was in the public interest. 416 Mr Russell submits several changes in circumstances are relevant to the Court's consideration of whether the public interest defence, if established, was lost at some later time. Given my findings above, it is not necessary to determine this issue - it suffices to note that things did not get better as time went on.

G.7 The Television Broadcast 417 The evidence and submissions as to the Television Broadcast were limited. It was viewed as an offshoot of the November and Linked Articles and my reasoning applies with equal force to this publication. Indeed, Mr Robertson, the person with primary responsibility for the Television Broadcast, gave evidence he believed its publication was in the public interest for the same reasons as the November Article. When Mr Willacy conceived the November Article, he entreated its publication be accompanied by "radio news too". 418 It follows that for the reasons given in G.4 and G.5, the respondents' belief it was in the public interest to publish the Television Broadcast was not reasonable. 419 It is useful to make one further point. 420 My first judgment explained (at [87]-[102]) the propensity of the Television Broadcast, in its brevity, to convey serious defamatory imputations (in particular, TV Imputation 1 and TV Imputation 2) by presenting allegations without necessary context. It does not appear any steps were taken to ensure the story sought to be conveyed was thoughtfully adapted for a television audience. Given the absence of evidence of such steps being taken and the seriousness of the content, this does not assist in the respondents' discharging their burden as to this publication.

H FURTHER FACTUAL FINDINGS AS TO DAMAGES 421 Given the respondents have not made out their public interest defence, I now turn to the question of relief. 422 The respondents, in their closing submissions (at [336]), did not dispute Mr Russell suffered damage as a result of the impugned publications. But the respondents challenge the extent of the damage suffered and aspects of Mr Russell's evidence, in particular, as to aggravated damages. As such, it is necessary to make further factual findings as to damages, in relation to three issues: first, further facts not canvassed in Section C above, in particular, as to the conduct of this litigation; secondly, the extent of publication of the impugned matters; and thirdly, Mr Russell's credit.

H.1 Further Factual Findings 423 The salient facts in relation to the conduct of the litigation to date are as follows. 424 Mr Russell served a concerns notice on 26 July 2022, following which Mr Willacy continued to take steps in relation to researching November Platoon, including by requesting a copy of the OSI's notes from their latest meeting with Mr Willacy and engaging in a recorded interview with Mr Hamilton. 425 On 24 August, the ABC, Mr Willacy, and Mr Robertson responded to the concerns notice and on 8 September, Mr Russell commenced this proceeding. Shortly before this, Mr Willacy sought to interview Mr Russell about a story he said he had been working on for eight months concerning his rotation in Afghanistan in 2012. 426 On 21 and 22 September 2022, the ABC, Mr Robertson, and Mr Willacy published articles and a two-part 7.30 broadcast making allegations against the commandos, including allegations of the killing of at least one unarmed detainee in Qarabagh, Helmand Province (Qarabagh Allegation). The reporting stated that the commandos emerged "largely unscathed" from the Brereton Report and that the commander of the relevant platoon was not present and did not see what happened. Under cross-examination, Mr Willacy and Mr Robertson accepted that helicopter footage shown in the 7.30 report (quota video) showed members of November Platoon but not Mr Russell (T447.36-37; T635.9-10) and that Mr Russell was not involved in the Qarabagh Allegation: T447.31-34; T634.17-T635.32. 427 The respondents filed a defence in October 2022, in which they denied the pleaded imputations were carried and that they were defamatory; denied Mr Willacy was a publisher of the November Article; denied serious harm had been established for any cause of action; pleaded a defence of justification to some but not all imputations; pleaded a contextual truth defence; and pleaded a defence pursuant to s 29A of the Defamation Act. Numerous of the particulars of justification ran contrary to the reporting referred to in the preceding paragraph, and also to evidence put forward in this proceeding. The justification particulars were maintained in the November 2022 and March 2023 versions of the defence until struck out on 24 March 2023. 428 Following my first judgment on meaning, the defence was also expanded: the respondents sought to justify Linked Imputation 3, that Mr Russell, as a commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand Province in mid-2012, by reference to the Qarabagh Allegation. 429 Then, there were the events recounted in my second judgment, in particular, the respondents' application for a stay of orders requiring them to provide to Mr Russell's solicitors copies of documents which had been redacted to obscure Josh's identity, and to confer as to documents in respect of which the respondents have made redactions for legal professional privilege or source privilege. At an urgent case management hearing in July 2023, counsel for the respondents told the Court that "as a result of your Honour's orders made yesterday … the respondents have withdrawn their public interest defence": T2.17-19. The respondents also conceded that because of the abandonment of this defence, Mr Russell was entitled to judgment. 430 The case management hearing was followed by a press release issued by the ABC later that evening, which had gone through several drafts, in the following terms: Heston Russell A recent court ruling would have forced the ABC and our journalists to reveal the confidential name of a key source in the defamation matter being brought by former serviceman Heston Russell. The ruling in the Federal Court resulted in the ABC having to choose between protecting the identity of its source by upholding a pre-publication commitment made to the source to not reveal their real name - versus continuing its defence of the defamation proceedings. The ABC had no choice but to uphold its commitment 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 and other news organisations must take the strongest line possible in supporting and defending journalists and sources who have entered into such an agreement. ABC Director News Justin Stevens said: "Commitments made and kept by journalists to sources are central to ensuring 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, 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." (Emphasis added). 431 This press release was, at best, misleading. The document, and its draft iterations, acknowledge no responsibility on the ABC's part for the fact that it was ABC Investigations' own editorial choices that prevented its journalists being able to rely on s 126K of the EA. The press release was an exercise in damage control expressed in such a way as to hold up ABC Investigations as an exemplar of journalistic standards against an overreaching Court (an assertion even more plain in earlier drafts). Evidently, the ABC wanted to promote the message the Court was forcing its journalists to reveal their sources when, in truth, the ABC had been responsible for its inability to maintain the statutory source privilege. Apart from anything else, this "death over dishonour" press release and withdrawal of the defence would have undermined any vindication of Mr Russell in securing judgment (in that the ABC could say to the world it was the Court that prevented the respondents from honourably defending themselves). The release was also notably silent as to the ABC's offer to reveal the source to Mr Russell's legal representatives in correspondence before it later changed tack (apparently because the journalists complained). It was only because evidence was read by Mr Russell revealing that his legal representatives knew the identity of the source that allowed the order to be vacated. There was no reason able to be advanced as to why the defence could not be dealt with on its merits. 432 There is a way for a journalist to protect a source: it is for the journalist to act in way which protects the identity of the source allowing the journalist to invoke s 126K of the EA and, more specifically, to avoid acting in a way which "enable[s] that identity to be ascertained" (like, say, publishing the source's photograph to all and sundry). 433 Curiously, Ms Puccini told the Court she could not remember the extent of her involvement in drafting the press release notwithstanding it was published not three weeks before the trial and she was shown contemporaneous text messages as to its progress. I have some difficulty in accepting this evidence, although it is unnecessary to make a finding in relation to it.

H.2 Extent of Publication 434 The evidence as to the extent of publication is as follows (although, as I note below, there is reason to think the evidence may be incomplete). 435 The November Article had a total of 87,340 unique views, comprising: 86,847 unique page views between 19 November 2021 and 5 October 2022 and 493 unique views between 6 October 2022 and 27 July 2023. 436 The Linked Article had a total of 1,387 unique click-through page views, being 1,362 unique click-through page views between 19 November 2021 and 5 October 2022 and 16 unique click-through page views between 6 October 2022 and 27 July 2023. 437 Finally, the TV Broadcast had a total audience of approximately 194,072 people. The total national audience projection of the live broadcast was 182,171 and there were 11,901 total plays on the ABC's online streaming service, ABC iView.

H.3 Mr Russell's Credit 438 Many experienced judges have expressed the caution that any criticisms of a witness, which go beyond the legitimate necessities of the occasion, should be avoided. In particular, unnecessary credit findings should be avoided. Part of this reticence reflects a body of research casting doubt on the ability of judges to make accurate credibility findings based on demeanour: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 129 [31] per Gleeson CJ, Gummow and Kirby JJ). 439 But this was a case where it is necessary to make a credit finding as to a deficiency in the evidence given by Mr Russell which was both patent and telling. It is necessary to explain it in some detail. 440 By the end of 2021, Mr Russell had become the founder of the "Australian Values Party". He contended he had decided the previous year to raise funds for veterans by using the website "OnlyFans" to share what he described as "risqué" content. The ABC reported at the end of 2021 that it was told Mr Russell had sold explicit images via OnlyFans, including "charging [third parties] $US60 [AUD$94 at the time] on Anzac Day last year for a picture" of Mr Russell apparently holding his tumescent penis. There is little doubt this was newsworthy. Not only was he an aspiring politician, but to those accustomed to seeing funds raised for Australian veterans by schoolchildren selling Legacy pins and the conduct of RSL sub-branch raffles, the fundraising mode allegedly adopted by Mr Russell would likely be considered unorthodox. 441 In any event, Mr Robertson considered that he may have had a story that Mr Russell had misled a veteran-led mental health charity, Swiss 8, about his use of OnlyFans and that he provided to Swiss 8 only part of the $US15,000 Mr Russell had claimed to have raised by these means. It was suggested by Mr Robertson that "[r]ecords provided by Swiss 8 show only a AU$5000 donation after your legal dispute with the charity and a failed attempt to donate $10,000 on the same day". 442 Mr Robertson contacted Mr Russell on 30 November 2021 at 2pm about the allegations and received a response an hour and a half later: I would advise you to re-consult with Swiss 8 and have them show you the personal text messages regarding the quantities of fitness equipment that was purchased with the funds raised from the OnlyFans initiative, only to then have [Mr Adrian Sutter of Swiss 8] change his mind once that arrived and been shipped from overseas - and the costs involved in both purchasing this equipment and shipping was over $10,000 and hence the cancelled donation. 443 Mr Russell gave evidence that he was representing that with the agreement of Swiss 8, he had spent more than $10,000 of the money raised buying and having the equipment delivered, but then Swiss 8 changed its mind: T85.26-29. Mr Robertson made further enquiries and then emailed Mr Russell at 6:09pm as follows: Swiss 8 also say the fitness equipment you refer to was boxes of gym rubber bands that arrived at Coogee RSL about a month before you made the $5000 credit card donation via the Swiss 8 website on December 13. They say the shipment of rubber bands was unsolicited and looked like it was worth closer to $1000. They say they had no notice from you it was turning up or that was what you were spending the proceeds from OnlyFans on. They say after contacting you about it, they had the boxes sent to your then home at Potts Point. Is that correct? If you have any evidence to the contrary, I would welcome seeing it. 444 Mr Russell's response to Mr Robertson (copied to various people within Swiss 8) was at 11:15am the following day. He commenced by asserting: It is clear to see that Swiss 8 and/or you intend to pursue to defame, bully and/or unlawful retaliation given the rescind exposure of ABC's negligent reporting on my former Platoon, November Platoon, and/or underlying issues members of the Swiss 8 Executive have with myself. 445 He then went on: I have included the invoice paid for the bands - and per my direct communications with Adrian Sutter, these are still sitting in storage for Swiss 8. I haven't been able to find the tax/duties costs but can attest that between the direct $5,000 donation and the total cost in these bands arriving at the Swiss 8 place of Business (Coogee Diggers), financial conversion, bank fees, transport and storage - every dollar raised during the period of advertisement for donations to Swiss 8 has been paid and can be directly accounted for. Adrian - please advise when / where you would like these re-delivered, or sold on your behalf? Should you or anyone state, imply, infer or otherwise that I have stolen or misappropriated any funds raised for charity, I will take legal action. (Emphasis added). 446 The attached invoice then became the subject of the following evidence in cross-examination (at T86.14-87.8): Now, the purpose of you attaching that invoice, is this right, was to convince Mr Robertson that it was true that you had placed an order for fitness equipment in the name of Swiss 8 to be delivered to their premises? Correct?---Yes. … And you will see at the top is says: Buyer, Heston Russell, Swiss 8. That's the name of the charity; right?---Yes. And the address is Coogee Diggers which is the - that's where Swiss 8 operated from; correct?---Yes. Now, is that a genuine invoice?---Yes. Are you sure about that?---Yes. Okay. Now, are you aware that, if one looks at the PDF document using Adobe software, it's possible to see whether any changes have been made to a document?---Yes. Would you like to change any of your previous evidence if I tell you that we have used that functionality to examine this invoice?---No. 447 Despite an objection to the cross-examination which I rejected, when cross-examination took place, it became apparent, however, that the "invoice" was a fake produced through an elaborate process of manipulation by Mr Russell. The key detail changed is that the original form recorded the buyer as a company wholly owned by Mr Russell, THIB Ready Products Pty Ltd (THIB) and the address as his address (T90.35-46), whereas Mr Russell changed the buyer details to be the name and address of Swiss 8. 448 Mr Russell eventually accepted what he sent was not a genuine invoice and when I asked why he had earlier told me that the "invoice" was genuine, Mr Russell then said: "You're right, your Honour. I was (1) confused by the question and (2) believe it did represent the - the correct invoice": T92.45-93.5. 449 Dealing with the first of these matters, Mr Russell's explanation that he was confused must be rejected. There was no confusion, which was evident from Mr Russell's changing demeanour as it became apparent that his document manipulation had been exposed. As can be seen, Mr Russell was not only asked if it was a genuine invoice, but he was also invited to change his previous evidence in the light of the fact he was told software would show changes to the document. The answers given by Mr Russell do not reveal any confusion. Rather they reveal Mr Russell was intent on dissembling about the "invoice" until it became evident to him that he could dissemble no more. 450 As to the second "explanation", the following final submission was made by Mr Russell (at [264]): Mr Russell readily accepted he made changes to the invoice (T89.46; T90.1). He explained that he did so to reflect the final invoice, so that the information in the invoice sent to Mr Robertson was the same as the final invoice (T90.3-6; T91.23-27; T91.35-41). He said, "This is me providing what was an exact representation of what occurred, just not the actual document at the time requested by Mr Robertson on his timeline" and "It's a duplication of a document that I've edited to reflect what the final document was" and "This is a replication of the original invoice" (T92.12-17). Mr Russell ultimately accepted that the invoice was not genuine (from T92.45-46) but explained that his previous evidence was the result of him being confused and thinking the invoice sent to [Mr] Robertson did "represent" the genuine final invoice (T93.3-11). His position was perhaps most accurately captured at T93.15-16 ("This is what the final invoice was, but this was not the final invoice") and T94.5-7 ("I was definitely not of an understanding of a genuine invoice. For me, again, it was down to the information, not the physical document, so I was incorrect"). None of that was dishonest: Mr Russell believed the invoice was "genuine" in the sense that it accurately reflected the information in the final invoice (which he could not, in that moment, find), and that it reflected the transaction which actually took place. 451 I reject this submission, which is devoid of merit. Mr Russell did not "readily" accept he created a fake document. The notion Mr Russell engaged in document manipulation to reflect the "actual final invoice" did not come until several questions into the cross-examination (T90.3-6) and it was obvious it was an explanation Mr Russell made up in the witness box. I have little doubt that Mr Russell's assertion there was a "final invoice" that matched the details of the one he amended and provided to Mr Robertson was designed to cover up his lack of candour. 452 A call was made for the document Mr Russell referred to as the "final invoice" and in response to that call, Mr Russell produced the documents that became Exhibit D. 453 Exhibit D includes a trail of correspondence, including between Mr Russell and Mr Tony Lee (apparently a representative of the manufacturer of the bands, Cellcorp Global Limited, located in China), including correspondence during the currency of this trial in which Mr Russell explained to Mr Lee that he was "looking for a copy of the genuine final invoice - similar to the one that I've attached below … Could you help me track down the original final invoice copy - that included the delivery address to Swiss 8". 454 The last document in Exhibit D purported to be the so-called "final invoice". In addition to the dubious circumstances in which it was provided to Mr Russell by Mr Lee, there are numerous issues with this document. 455 First, it was created three minutes before it was emailed by Mr Lee to Mr Russell (although this could be explained simply by the fact that it was a PDF document being created from different data, although no evidence was adduced as to what happened precisely): T827.29-41; T830.10-14. Secondly, the file name is "INVOICE FOR THIB-BANDS-200413-2.pdf", "THIB" being, of course, the name of a company owned by Mr Russell: T808.9-18. Thirdly, in the "paper trail" of documents Mr Lee provided to Mr Russell in December 2021, the only company name and delivery address details provided by Mr Russell to Mr Lee were THIB and Mr Russell's address: T811.1-812.38. Indeed, there is no record, in all the documents produced by Mr Russell, of Mr Russell ever providing Mr Lee with details for Swiss 8 or a delivery address for Swiss 8, being Coogee Diggers: T818.20-23. Fourthly, the banking details on the invoice Mr Russell amended and provided to Mr Robertson, which the respondents submit was the genuine final invoice, reflect the banking details Mr Russell was ultimately told to pay money into in the email chain, whereas the invoice provided to the Court by Mr Russell as part of Exhibit D refers to a different account: T813.39-820.12; T823.22-34; T826.45-827.27; T830.29-30. Fifthly, in further cross-examination, Mr Russell asserted for the first time that the "final invoice" was received in hard copy, not electronically, and there was a hard copy of the invoice with each box of fitness bands: T803.1-14. He also said that he still has the bands (T91.44-45), although it may be inferred from his failure to produce the hard copy invoice that there is no invoice in the boxes that he still has. 456 Finally, Mr Russell relies on a text message (Exhibit V), which refers to the bands arriving at Coogee Diggers. The obvious difficulty is that the Court has no way of knowing how the bands came to be delivered there. It is entirely possible that after they were delivered to Mr Russell at his address, he decided to send or deliver them to Swiss 8. It is noteworthy in this regard that Mr Russell requested, on 9 September 2020, that the bands be sent by "air", so they would arrive "ASAP"; however, the text messages about them arriving at Coogee Diggers were not until December 2020. The more probable conclusion is that they were delivered to Mr Russell in the interim. 457 In the absence of any further evidence as to the creation of the document and the unexplained failure to adduce any evidence from Mr Lee, I conclude that it is more likely than not that Mr Lee created a document as he did not have any "final invoice" in either PDF form or as an email attachment that he could readily provide to Mr Russell when he asked for a copy of the "genuine final invoice". 458 I am conscious of not making too much of witness demeanour, but even leaving aside the fact he gave false evidence (albeit on a somewhat peripheral matter), Mr Russell was generally not an impressive witness; he was regularly non-responsive and was unwilling to make concessions he regarded as contrary to his case. All in all, I do not consider it safe to place any reliance upon his evidence.

I ASSESSMENT OF DAMAGES 459 Three matters should be noted at the outset. 460 The first is that Mr Russell seeks aggravated damages. One is often left with the impression that defamation practitioners perceive a world awash with aggravating factors. Indeed, Mr Russell initially relied upon no less than 58 particulars of aggravation, a list which waned somewhat over the course of the hearing. The breadth of conduct of a respondent said to found aggravated damages is, as I remarked in Murphy v Nationwide News Pty Ltd [2021] FCA 381 (at [100]), yet another example of how statutory caps on recovery of ordinary compensatory damages together with the accumulated lore of defamation practice has detached this area of the law from the mainstream of the law of torts. 461 In any event, I told senior counsel for Mr Russell I did not think it would be consistent with the efficient use of the Court's time and resources for a judgment to be written addressing in detail all 58 circumstances. In view of the overarching purpose in Pt VB of the FCA Act, I entreated senior counsel to select the three best circumstances of aggravation said to found Mr Russell's entitlement to aggravated damages: T945.22-946.21. 462 A second development of relevance to my assessment of damages is Mr Russell's true innuendo case. Mr Russell's position is that given the imputations already found by the Court to have been conveyed, whether any other imputations were conveyed as true innuendos "really goes only to damages". Beyond the imputations already found to have been carried, it was asserted the following further, true innuendo imputations were carried because of reading or viewing matters together: Imputation Matters 1 Heston Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012. November Article Television Broadcast Radio Broadcast 2 Heston Russell committed a war crime by his involvement in the killing of an Afghan prisoner in Helmand province in Afghanistan in mid-2012. November Article Television Broadcast Radio Broadcast 3 Heston Russell committed a war crime by his involvement in the killing of an Afghan prisoner in Helmand province in Afghanistan in mid-2012. Linked Article Television Broadcast Radio Broadcast 4 Heston Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012. Television Broadcast Radio Broadcast November Article Linked Article 5 Heston Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in mid-2012 as part of November Platoon. Radio Broadcast November Article Linked Article Television Broadcast 6 Heston Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in mid-2012 as part of November Platoon. Radio Broadcast November Article Linked Article Television Broadcast 7 Heston Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during a mission in Helmand province in 2012. Radio Broadcast November Article Linked Article Television Broadcast

463 There was some controversy as to how Mr Russell's case was put. The respondents submitted Mr Russell was going beyond his pleaded case and impermissibly seeking to revive pleaded meanings I rejected in the first judgment. But there is no pleading issue, given the findings sought were not those the subject of my first judgment (which dealt with natural and ordinary meanings only). Having said this, in whatever combination the impugned publications were received, for reasons largely explained in my first judgment, the imputations numbered 2 or 3 in the table above would not have been conveyed. 464 More importantly, it was asserted Mr Russell had created a false issue; if true innuendo goes only to damages, there are real questions as to why it matters at all. Any person who has had imputations conveyed to them has already been accounted for when it comes to damage, having regard to the circulation of the defamatory matters. Any compensation awarded to Mr Russell because of any innuendo meaning conveyed from a combination of publications will result in a double counting of the damage caused by publication. It was also put that there was insufficient evidence to support the innuendo plea. 465 I propose to deal with this issue shortly. It may be accepted that some persons encountered more than one of the impugned publications; common sense suggests this is more likely than not (given each appeared on an ABC platform with extensive national distribution, and the overlapping subject matter). That is, there will have been people who heard the Radio Broadcast after having seen the Television Broadcast or read the Linked Article and so on and would have understood the Radio Broadcast differently. Common sense and the evidence does not suggest, however, this would have been many people. 466 But it is all a tempest in a teacup. I propose to assess damages in relation to all impugned publications together in accordance with s 39 of the Defamation Act, and given the nature of the assessment in this case, the further consideration of this issue is unnecessary to ensure, in accordance with s 34 of the Defamation Act, that there is an appropriate and rational relationship between the overall harm sustained by Mr Russell by reason of the impugned matters and the total amount of damages awarded. Put another way, irrespective as to the precise conclusions on the true innuendo case, it would not have mattered to the combined damages awarded in this case because the overall harm would not have been materially different. The time devoted to this issue is difficult to reconcile with the quick, inexpensive and efficient resolution of this litigation. 467 Thirdly, I made clear during oral closing that I was troubled by Mr Russell's conduct in relation to the Swiss 8 invoices. I raised the spectre of an adverse credit finding and provided the parties with an opportunity to make submissions as to the effect, if any, of such a finding on the measure of damages awarded to him. 468 Whether general damages could properly be reduced on account of the conduct of a plaintiff during litigation was recently considered by Warby LJ (with whom Singh and Andrews LJJ agreed) in Wright v McCormack [2023] EWCA Civ 892. There, his Lordship considered Joseph v Spiller [2012] EWHC 2958 (QB) and FlyMeNow Ltd v Quick Air Jet Charter GmbH [2016] EWHC 3197 (QB), two decisions in which nominal general damages were awarded in circumstances where the plaintiff had advanced a false case and supported it with false evidence in an attempt to deceive the court: Wright v McCormack (at [62]ff); see also Campbell v News Group Newspapers Ltd [2002] EWCA Civ 1143 and, similarly, the line of authorities concerning collateral dishonesty, summarised in Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 WLR 2004. Joseph v Spiller was applied by McCallum J in Cheiko v National News Pty Ltd (No 5) [2016] NSWSC 29 (at [133]-[139]), however her Honour held the deception perpetrated by the plaintiff in that case fell "well short" of that in Joseph v Spiller, such that her Honour was not persuaded the damages awarded to Mr Cheikho should be reduced on account of any such aspect of his evidence. 469 In Wright v McCormack, Warby LJ clarified the circumstances in which evidence of this kind may be considered on the question of damages. Below, it was argued that Campbell v News Group was authority for a broad principle that all and any disreputable conduct by an applicant may be considered in reducing damages. His Lordship determined it was neither necessary nor appropriate to decide this issue, but did note that Campbell v News Group had been seen to be an outlier in the jurisprudence, and that (at [76]), "save in a very exceptional case of abuse of process, a court should not deprive an applicant of rights to which he is entitled", and an applicant's bad reputation can only be relevant to damages if it is in the same sector of his life as the defamatory imputations. 470 Senior counsel for the respondents did not ask the Court to order only nominal damages but noted (T1049.7-18): Joseph v Spiller and the related cases we say are plainly correct law and represent a proper basis upon which the court might, in an appropriate case, deny to a plaintiff any damages leaving them content with the vindication of the judgment. On careful reflection, it is our submission that, although Mr Russell engaged in very great and very deliberate [dis]honesty before your Honour, it is not sufficiently central to his cause of action such as it would operate to deny, per se, his entitlement to damages. What we do say is that it is nonetheless very relevant to your Honour's assessment of damages because, as your Honour says, your Honour has to, at the end of the day, assess his evidence and, based on that assessment of evidence, your Honour has to come to form a view about how many dollars reflects the harm suffered by reason of any defamation that your Honour finds. 471 The respondents' position in not entreating me to award nominal damages was clearly sound and I would observe that the position articulated by Warby LJ seems to me, with respect, to be a correct statement of the position and I will proceed on this basis. More specifically, I accept the submissions made on behalf of Mr Russell that it would be erroneous to "reduce" any component of ordinary compensatory damages otherwise appropriate to be awarded because of general misgivings as to his credit. Accordingly, I will disregard my concerns as to the conduct of Mr Russell in assessing general damages. I will return to this issue in the context of aggravated damages below. 472 Having raised these preliminary issues, the remainder of this section will address the principles, submissions and evidence directed towards general damages; aggravated damages; and any amount of interest payable.

I.1 General Damages Principles 473 The parties agreed as to the principled approach in assessing Mr Russell's entitlement to damages. Those principles are uncontroversial, and I recently set them out in Palmer v McGowan (at 712-713 [425]-[429]). 474 In brief, the award of damages is governed by the provisions of Pt 4 Div 3 of the Defamation Act. By s 34 of the FCA Act, the Court is required "to ensure that there is an appropriate and rational relationship" between the harm sustained and the damages awarded. 475 General damages for non-economic loss are now (contrary to the historical approach) to be awarded separately to any award of aggravated damages: s 35(2B) of the Defamation Act. 476 Pursuant to s 35(1) of the Defamation Act, general damages are capped at an indexed sum, which is currently $459,000 (as at 1 July 2023): s 35(3) of the Defamation Act; New South Wales Government Gazette No 250 (9 June 2023) (at 15). The cap in force at the time of judgment applies and may only be awarded in a "most serious case": s 35(2) of the Defamation Act. Further, it may only be exceeded if the Court is satisfied that the circumstances are such as to warrant an award of aggravated damages: s 35(2A) of the Defamation Act. 477 In reaching a landing as to general damages, there are several factors to be considered including: (a) the severity of the defamatory stings; (b) the purposes of an award of damages in defamation, being consolation for hurt to feelings, recompense for damage to reputation and vindication of reputation; and (c) the extent of publication. I have remarked many times before that consideration of these factors is an intuitive, evaluative process conducted at large, but within the parameters of Pt 4 Div 3.

The Seriousness of the Defamation 478 The respondents accept the imputations carried by the impugned publications are serious but submit two factors should qualify my conclusion as to the seriousness of the defamation. First, allegations of reasonable suspicion and investigation are necessarily less serious than allegations of guilt; and secondly, it is not insignificant Mr Russell was named as part of a class of persons reasonably suspected of wrongdoing and subject to investigation. 479 The concession made by the respondents as to seriousness is properly made. I accept an allegation of guilt and the allegation being directed to a specified individual only would be more serious, but this does not gainsay the proposition that the meanings conveyed were of conduct that would be perceived by right-thinking people to rank high in the calendar of wrongful behaviour. Further, as is evident from my first judgment, some the imputations conveyed (see Linked Imputation 3, Linked Imputation 4, Linked Imputation 5 and Linked Imputation 6) go beyond allegations of reasonable suspicion and investigation. Any damages awarded must take account of, and partly be informed by, the seriousness of all the meanings conveyed.

Damage to Reputation 480 Mr Russell's mother, brother, sister and close friend, Ms Asser, gave unchallenged evidence as to the adverse effect of the publications on Mr Russell's reputation. Australian Defence personnel and members of the United States armed forces also attested to Mr Russell's prior good reputation in the military community. Public figures Mr Alan Jones and Senator Hollie Hughes, as well as Mr Willis of 2GB, did the same as to Mr Russell's reputation in the broader community. I generally accept the ABC's reporting as to November Platoon caused harm to his reputation. 481 But this case has some unusual aspects. It must always be kept in mind that damages in tort are compensatory and vindicatory. Care must be taken in determining damage to reputation caused by the November and Linked Articles and the Television Broadcast, on account of three related matters. 482 First, I must exercise caution in isolating the effect of the October Article (not sued upon) from the damage caused by the impugned publications. Secondly, it is not insignificant that Mr Russell self-identified as the commander of November Platoon following the publication of the October Article and had set upon taking control of the public narrative by the time the impugned matters were published. Thirdly, Mr Russell himself directed traffic to the impugned matters and drew attention to his self-professed "campaign against the ABC" over an extended period. 483 What is evident is that Mr Russell was no shrinking violet in drawing attention to himself and the publications in respect of which he makes complaint. He had the social media skills and media contacts to allow him a platform to put across his side of the story recounted in the October Article well before the respondents conveyed the defamatory imputations. This was not a man that could not procure a platform to push back on the substantive allegations made against him and November Platoon, and this is what he proceeded to do. My task, in determining the damages to be awarded, "is to ensure that there is an appropriate and rational relationship between the harm sustained by [Mr Russell] and the amount of damages awarded": see s 34 of the Defamation Act. Any suggestion these matters are somehow irrelevant to an assessment of causally connected and rationally assessed damages must be rejected. Mr Russell's reputation had been affected by the publication of the October Article and his reputation had also been affected by the public controversy that ensued and he promoted; it would be acontextual to consider the damages sustained by the publication of the defamatory matters without regard to this reality.

Hurt to Feelings 484 Mr Russell asserts he suffered substantial subjective hurt resulting from the impugned publications, and that his evidence on this issue is corroborated by his family, friends and former colleagues. 485 In writing, the respondents submitted "there is no challenge to Mr Russell's evidence as to the hurt he suffered as a result of the publication of the November Article, the Linked Article and the Television Broadcast" but later contended "the Court ought to be very sceptical of anything Mr Russell says where he stands to benefit from it": T1049.31-32. Mr Russell contends that in emphasising the need for the Court to be sceptical, the respondents did not particularise their attack on Mr Russell's credibility in relation to the "invoice issue" and are in breach of the requirement that it was necessary to put squarely to Mr Russell the respects in which his evidence was being challenged: Browne v Dunn (1893) 6 R 67 (at 70 per Lord Herschell LC). 486 This criticism, with respect, is superficial. As I said in Palmer v McGowan (at 719 [462]): … I have specifically taken into account that the evidence as to hurt feelings was not cross-examined upon. It is often remarked that unchallenged evidence that is not inherently incredible ought generally to be accepted by the tribunal of fact (although such evidence may be rejected if it is contradicted by established facts or the particular circumstances point to its rejection): Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 (at 370-371 per Gibbs J); Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 347 [77] per Mansfield and Gilmour JJ). This is not a case where this aspect of Mr Palmer's evidence is relevantly contradicted or undermined by established facts, but this is not the end of the matter. As I recently noted in Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at [284]-[288]), when the law requires proof of any fact, the tribunal of fact must feel actual persuasion as to its occurrence or existence before it can be found. A party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue. In this way, the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 305). Despite the criticisms referred to in Transport Workers' Union of Australia v Qantas (at [286]), this approach is well entrenched and unquestionably represents the current state of the law. Hence it is appropriate I pose the relevant question in this part of the case as being whether, on the whole of the evidence, including the unchallenged evidence, I have reached a state of actual persuasion or reasonable satisfaction that Mr Palmer suffered hurt to feelings by reason of the defamatory publications. 487 In this regard, I did not find Mr Russell's oral evidence as to hurt to feelings persuasive. His actions are consistent with someone who has not suffered significant hurt but rather embraced the public controversy occasioned by the dispute and used it to further his personal causes and profile. With that said, I accept the evidence of other persons that the impugned publications have had a personal toll. Hence, despite any misgivings I have as to the genuineness of Mr Russell's own evidence, including as to the extent of his reaction, a finding as to the existence of real hurt to feelings is inevitable given that no less than seventeen persons gave such unchallenged evidence, and such evidence was not inherently implausible. 488 More particularly, his family explained they perceived Mr Russell was, as his sister Ms Tarlee Russell put it, "plainly extremely distressed", and that there was a "drastic change in his regular behaviour and personality". His mother, brother and Ms Asser recounted their concerns he would harm himself; specifically, his mother recalled occasions where she had contacted Mr Russell, heard nothing from him, and travelled some distance to see him out of fear for his wellbeing. His broader network of friends and contacts spoke of his anger, disbelief, and feelings of, as Mr Dan Fortune put it, being "under siege and … feeling shame … like a death by 1000 cuts", and that Mr Russell saw the publications "as an overwhelming attack on himself, the commandos, November Platoon and veterans generally". It is difficult to reconcile some of this evidence as to the extent of hurt with the objective facts as to Mr Russell's conduct in taking repeated steps to direct attention to himself and to the allegations, but I am satisfied the damages awarded must reflect that he has suffered real hurt to feelings.

Extent of Publication 489 I have set out the evidence as to the extent of publication of the impugned matters above in H.2. Mr Russell submits, and I accept, that the likelihood is that publication is likely higher than these already substantial figures. The figures only include views up until the day before the first day of the hearing. Given the significant publicity generated by the trial, it is likely that further views have accumulated in relation to the November Article and the Linked Article. 490 Certain other submissions advanced by Mr Russell on this issue might be thought to be peculiar in the light of his own conduct in directing traffic to the publications via the dedicated page on his website and his social media. His final written submissions provided as follows (at [389]-[390]): 389. There is evidence that the articles have been republished on other websites. For example, Mr Sudweeks saw them on a Facebook page which regularly posts articles about the ADF: CC.28.p170, [4]. This kind of republication is the natural and probable consequence of the ABC's publication of the articles (noting, for example, that a bar near the top of the paginvites readers to "Share this article" and "Copy Link"), and it should be held liable for it. 390. In addition, there is evidence that the publications have been read overseas. For example, Mr Dennis gives evidence of reading the October Article and the November Article while he was in the US: CC.11.p86, [11]. 491 The first-appearing "highlight" reel on Mr Russell's Instagram page is entitled "ABC Defamation Case", and the first-appearing tab on his website is entitled "Heston Sues the ABC". A direct link to the "Heston Sues the ABC" section of his website is provided in the "bio" at the top of his Instagram page with the call to arms, "Join me & my campaigns via the link below". 492 The "Heston Sues the ABC" section of Mr Russell's website includes a link to the November and Linked Articles, under the heading "Update - continue reading below for ABC's excellent #fakenews story and the real response from Defence", with the caption: The ABC came out with an article implying that they received a specific response that November Platoon is under criminal investigation, but per the Defence response, this could actually mean that the release of the requested information could impact on another or any other allegations under investigation. It says that there is a "current investigation of a possible breach of law" without naming any platoon and as per the ongoing OSI investigation into all allegations in general. 493 The suggestion that the ABC "should be held liable" for republication of the articles must be seen in the context of Mr Russell directing traffic towards the November and Linked Articles and continuing to do so throughout the trial: T74.12-77.21. In any event, publication was extensive, and this must also be considered.

Principles 494 Aggravated damages are more properly called aggravated compensatory damages; at common law they have traditionally been awarded to compensate an applicant for harm that has been exacerbated by a respondent's conduct in publishing the defamatory matter or by subsequent conduct: see Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 (at 496 per Hunt J); Waterhouse v Broadcasting Station 2GB (at 74-75 per Hunt JA). They are usually awarded in relation to injury to feelings but are not so limited. 495 It has long been accepted the Court is entitled to look at the whole conduct of the respondent from publication to the time of judgment: Praed v Graham (1889) 24 QBD 53 (at 55 per Lord Esher MR, with whom Lindley and Lopes LJJ agreed). The applicant must establish that the respondent's conduct was improper, unjustifiable, and lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 (at 513-514 per Dixon, Williams, Webb and Kitto JJ. 496 In its current form, s 35(2A) provides only that "[s]ubsection (1) does not limit the court's power to award aggravated damages if an award of aggravated damages is warranted in the circumstances" (emphasis added). Accordingly, the statutory text now places no emphasis on aggravating circumstances which are part of the circumstances of publication. 497 I raised with counsel whether, given the breadth of the present statutory language ("in the circumstances"), any conduct of Mr Russell in the litigation could be considered in determining whether an award of aggravated damages is warranted. 498 Of course, s 35(2A) does not affect the operation of the general law except to the extent the Defamation Act provides otherwise (whether expressly or by necessary implication): s 6(2) of the Defamation Act. The explanatory materials do not indicate that Parliament intended to broaden the circumstances relevant to an award of aggravated damages beyond the conduct of the respondent. I agree with the joint position of the parties that I must put to one side any conduct of Mr Russell in relation to the litigation, and the relevant focus must be on the conduct of the respondents.

Disposition 499 Senior counsel for Mr Russell identified the following three most significant aggravating circumstances: first, the preparation and publication of the November Article (in particular, the interpretation of the FOI Response; Mr Robertson's failure to put the precise allegations to Mr Russell; and the press release which accompanied the publication of the November and Linked Articles); secondly, the respondents' "dishonest reaction" to public statements by Mr Russell and Defence seeking to correct the November Article; and thirdly, the respondents' conduct of the litigation, in particular, "the hopeless truth defence that was filed in February about Qarabagh, about the helicopter, about the quota video, about the Americans never wanting to work with [Mr Russell] again": T988.3-6. 500 What is missing from this selection is the actions of the ABC in publishing the misleading press release by which it sought to justify the abandonment of the public interest defence discussed at [430]-[433] above. This was understandable - as Mr Owens SC engagingly put it, just because a circumstance aggravates the Court does not mean it warrants an award of aggravated damages. 501 Taking the circumstances in turn, I find as follows. 502 First, I have found the November Article overstated the cogency of the evidence in the ABC's possession and was published following several missteps, including the failure to procure fairly and consider a response from Mr Russell. But, on balance, and notwithstanding a not insignificant part of the motivation for publishing was directed to vindicating the position of the ABC, I am not satisfied the respondents were sufficiently motivated by any improper intention. The accompanying press release was an attempt to push back against criticism of the ABC over the reporting of ABC Investigations, but whatever its shortcomings, I am satisfied those responsible for the publication considered the reporting to which it referred to be important and for the public benefit. I do not think the conduct relied upon rises to a sufficient level to be described as improper, unjustified, or lacking in bona fides. 503 But even if I was wrong in this characterisation of this conduct, I have not been persuaded on the evidence that the conduct increased or aggravated the harm the defamation caused to Mr Russell. Mr Russell was, by the time of publication of the November Article and press release, embroiled in a retaliatory exchange with Mr Willacy and the ABC which found reflection in articles, press releases, social media posts and media appearances by Mr Russell. The remarks of Lush J in David Syme & Co Ltd v Mather [1977] VR 516 (at 526) are apposite here; aggravated damages cannot be awarded "merely for reasons of indignation felt by the jury, but only if the evidence points to the conclusion that the blow to the plaintiff's pride, however it may be called, has been or must have been worsened by what was done". 504 Secondly, the respondents' reaction to public statements by Mr Russell and Defence seeking to correct the November Article is concerning. The editorial amendments to the November Article were workshopped and crafted in such a way as to admit where the ABC had erred in a narrow and literal sense, but not to reflect any wider acknowledgement of other facts which had come to light. But again, although it does not reflect well on those involved, I am not satisfied this conduct rose to the level of being improper, unjustified, or lacking in bona fides (and again, if I am wrong, the evidence does not persuade me that the blow to Mr Russell's pride, however it may be called, has been or must have been worsened by this aspect of the respondents' conduct). 505 Finally, as to the third circumstance, it must be remembered it is not the case every unsuccessful respondent must face the prospect of damages being increased because they have elected to defend the action: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 (at 237 per Toohey J). The justification defence may have been weak and I accept, for instance, that in the light of the evidence presently before the Court, and the ABC's reporting on the Qarabagh Allegation, the attempt to justify Linked Imputation 3 (that Mr Russell, as a commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012) by reference to the Qarabagh Allegation was misconceived. But highly experienced and able counsel settled the pleading and there was, prior to the strike out of the truth defence, a good faith dispute as to what the impugned matters conveyed and as to how my findings as to meaning were to be properly understood. Although I recognise that conduct characterised as unjustified to aggravate compensatory damages, and breaches of ethical obligations are different concepts, I do not consider there was any more going on than a genuine attempt to defend the case. In the end, what went on is best characterised as an incident of hard fought litigation. Again, even if this conduct met the threshold of improper conduct, I am not satisfied by the evidence of Mr Russell that it sufficiently "rub[bed] salt in the wounds inflicted by the libel": Suttcliffe v Pressdram Ltd [1991] 1 QB 153 (at 170 per Lord Donaldson). 506 For completeness, I should also note Mr Russell's repeated assertion the ABC was obliged to act as a model litigant. This contention is probably wrong as a matter of law (for reasons I do not propose to detail), but it is also unimportant for present purposes. As I noted in argument, in determining whether the ABC's conduct of the litigation aggravated the damage suffered by Mr Russell, the Court is concerned with finding conduct of a type inappropriate for any litigant. 507 In summary, although there are aspects of the conduct of the respondents that are worthy of criticism and caused me concern, I have not reached the level of satisfaction that the identified aspects of the respondents' conduct were unjustified, improper, or lacking bona fides such as to warrant an award of aggravated damages. Moreover, even if I was satisfied any one of the three circumstances of aggravation met this threshold, the difficulties I have in accepting Mr Russell's evidence of his subjective reaction mean, in accordance with the principles I explained in Palmer v McGowan (at 719 [462]), I have not reached the level of persuasion or reasonable satisfaction that any of the circumstances have, in truth, aggravated Mr Russell's damage. 508 It is sufficient to dispose of the three circumstances of aggravation to reject the entirety of Mr Russell's claim for aggravated damages. As I am not convinced any one of these circumstances has aggravated Mr Russell's damage, it would be futile to set out detailed reasons why and how the dozens of remaining circumstances also do not reach the necessary thresholds. I would reach the same conclusion even if the particularised conduct was assessed in any combination.

I.3 Quantum 509 As noted above, in the end, I am required to ensure that there is an appropriate and rational relationship between the harm I have found sustained and the damages awarded. I am conscious of comparable awards but do not think it productive to canvass them and, as is often said, no two cases are exactly comparable and what is awarded cannot be arrived at by any purely objective computation. Taking all the matters I have raised relevant to compensatory damages into account and bearing in mind: (1) consolation for such hurt that has been casually related and has been proven; (2) reparation for the harm done to Mr Russell's reputation; and (3) the need for vindication of reputation, I assess damages in the amount of $390,000.

I.4 Interest 510 Finally, an interest rate of 3-3.5% per annum is generally awarded in defamation proceedings: Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 (at [8]-[16] per White J). In the circumstances, I am satisfied a rate of 3% per annum is appropriate.

J CONCLUSION AND ORDERS 511 Among other things, the ABC Code of Practice sets out standards of fair and honest dealing in the conduct of journalism. This includes an institutional commitment to accuracy including "a willingness to correct errors and clarify ambiguous or otherwise misleading information". In this regard, it is recognised "[s]wift correction can reduce harmful reliance on inaccurate information". The same can be said of the MEAA Journalist Code of Ethics, which requires a journalist to do their "utmost to achieve fair correction of errors". 512 These standards recognise errors sometimes happen, even in the work of the most distinguished journalists writing on topics of great public importance. Even Homer nods, let alone journalists within ABC Investigations. Even critics one does not respect, or whose motives are perceived to be unworthy, may have a point. 513 Mr Russell mounted a public campaign and, as I have explained, an aspect of his conduct was apt to reinforce, rather than dispel, suspicion. But he did not rush into litigation. As I have explained, those responsible within ABC Investigations, who had a distinguished record of reporting on war crimes, equated any criticism of the reporting of Josh's allegations and Mr Russell's belated First Complaint as volleys in a culture war. Their desire to defend their earlier reporting and prove their critics wrong partly motivated the publications sued upon and focussed attention away from the substance of any legitimate criticism of the October Article. This same mindset is equally evident in the internal communications dealing with criticism of the November Article by Media Watch or the Second Complaint. Criticism was perceived as undermining the defence of ABC Investigations to external attack. This may be understandable from a human perspective, but one suspects it was not conducive to considering dispassionately whether corrections or retractions needed to be made. 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. 514 Two issues remain for resolution: costs and injunctive relief. By his originating application, Mr Russell seeks orders that: (1) the ABC remove the November and Linked Articles and enjoining republication; and (2) the ABC, Mr Robertson and Mr Willacy be restrained from publishing any matter that carries any imputation found by the Court to be carried by the November and/or Linked Articles. 515 I will enter judgment and hear the parties on the outstanding issues at a date which is convenient to counsel, to be determined within seven days. I certify that the preceding five-hundred and fifteen (515) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.