Stephens, David: And another thing: yet more on Ben Roberts-Smith

David Stephens*

‘And another thing: yet more on Ben Roberts-Smith’, Honest History, 6 June 2023 updated

18 August 2023: Stokes/Seven resisting respondents’ access to emails. ‘As part of its application for a third-party costs order, Nine is seeking to show ACE and Seven controlled the litigation.’ Was Roberts-Smith not just an Anzac mascot but also a puppet?

2 August 2023: David Stephens in Pearls and Irritations on making the best of the Ben Roberts-Smith fiasco.

There may be an upside to the Ben Roberts-Smith case. Not for the family of Ali Jan or the people of Afghanistan. Not particularly for Roberts-Smith and the men of the SAS, past and present, or their commanders, only some of whom deserve an upside. No, an upside for the rest of us, Australians all.

Update 31 July 2023: Court gives respondents (media) access to 8600 emails 2018-23 between Seven West Media people, including Kerry Stokes, and Roberts-Smith lawyers.

Update 24 July 2023: War Memorial without fanfare adds some explanatory panels to some of its displays featuring Roberts-Smith. 

Update 22 July 2023: Military historian Albert Palazzo writes in The Saturday Paper (‘Afghanistan: the illegitimate war’):

There is, however, an issue that goes beyond the commission of war crimes. Were Australians sent to fight a war in Afghanistan that was not legitimate? …

Australia did have a policy objective for this war, but it was not one directly associated with Afghanistan. Australia’s objective was to support the United States in order to strengthen the alliance with its superpower protector …

For a war goal to be legitimate, however, the government must acknowledge its existence. A policy objective that is not fully articulated to those doing the fighting, or to the citizens supporting them, undercuts the moral justification for the war. Australia’s objective in going to war in Afghanistan was treated as something that those in the know were supposed to assume but not discuss, at least not in public. Alliance management is not a good enough rationale because its achievement required the harming of a third party – the Afghan people.

Update 19 July 2023: Material accessed by Crikey under FOI shows the conniptions caused at the War Memorial by the outcome of the Roberts-Smith case. Among other things, the material shows the internal dissent at the Memorial’s decision to leave Roberts-Smith material in place. Update 24 July 2023: Crikey reader comments.

Update 17 July 2023: Mark Baker in Inside Story reviews books by Nick McKenzie and Chris Masters on the BRS case.

Update 4 August 2023: Final para in Masters’ book Flawed Hero is crucial in summarising the wider implications of the Roberts-Smith case: ‘A story [BRS’s] meant to be inspirational became a case study of failure. The hubris, the chest-beating, the rank romanticism that elevated a counterfeit exemplar did nobody, including Ben Roberts-Smith, any favours.’

Update 11 July 2023: Roberts-Smith appeals.

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The complete verdict from Justice Anthony Besanko is now available. The summary judgement released last week.

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Honest History’s laptop has been inaccessible to this writer for a few days so he has had the interesting experience of observing from a distance the playing out of the Ben-Roberts Smith defamation case. Perhaps that gives a bit of perspective on what has been called the biggest defamation case in Australian legal history.

Honest History has followed the case, though not in exhaustive detail. (Another link, with some overlapping material.) This has been particularly because of the status of Mr Roberts-Smith for some of that time as a larger than life mascot of the Australian War Memorial, and the hero-worship of him by the then Director of the Memorial, Dr Brendan Nelson. (There are any number of newspaper pictures of Mr Roberts-Smith and Dr Nelson in affectionate embrace. There are others of Roberts-Smith, Nelson and Kerry Stokes.)

All this post does is note, first, some nooks and crannies of the history that others may not have explored and, secondly, link to some of the more notable items of commentary on the Besanko verdict. There is an Appendix.

History

2014: When the now famous Michael Zavros Pistol Grip painting of Mr Roberts-Smith was unveiled at the War Memorial, some words from Mr Zavros were placed on the Memorial’s website, beneath a reproduction of the painting: ‘Zavros observed that when he asked Roberts-Smith to pose in a fighting stance, “He went to this whole other mode. He was suddenly this other creature and I immediately saw all these other things. It showed me what he is capable of … it was just there in this flash”.’ The words are still on the website.

2017: There was a skirmish between then War Memorial Director, Brendan Nelson, and then Chief of Army and ex officio member of the War Memorial Council, then Lieutenant General Angus Campbell. ABC TV News on 2 November 2017 repeatedly ran an interview by Defence reporter, Andrew Greene, with Dr Nelson, in which he questioned the time being taken by the Army’s review into the conduct of Special Forces in Afghanistan. ‘Where is the national interest’, the Director asked (not for the last time), ‘in tearing down these heroes?’. The TV version of the interview disappeared fairly quickly but the radio version is still extant. It was unclear at the time how much Dr Nelson was concerned to spray Army and General Campbell and how much to plug the then current Memorial exhibition From the Shadows: Australia’s Special Forces. Dr Nelson’s initial five-year term as Director was renewed in December 2017 in rather a rush; we have no idea whether there was any connection between this circumstance and the events of November.

2020: When newish War Memorial Director, Matt Anderson, in November 2020 after the release of the redacted Brereton Report, said that the Memorial should be ‘a place of truth’ in relation to Afghanistan, he was corrected by shock jock Ben Fordham and then Prime Minister Morrison. More here, including linked articles, especially by the ABC’s Mark Willacy. The Memorial Council met and resolved as follows:

Council agreed that the existing exhibitions should not be altered but future proposed exhibitions would be informed by the outcomes of the investigations as a result of the report.

The Director advised that no changes had been made to the Afghanistan gallery in response to the report. Due process must be followed and “strategic patience” would be central to the Memorial’s response. It would, as ever, hasten slowly.

(For a close comparison, see the Memorial’s statement of last week as reported.) At the same meeting, the Council unanimously expressed its confidence in Council Chair, Kerry Stokes, who had raised ‘concerns about the impact of recent media interest regarding his support of war veterans on his role of Chairman, and the potential impact on the Memorial’s reputation’. The Council Minutes also said, ‘anyone who did not support veterans should not be on Council in the first place’.

2022: Brendan Nelson published his autobiography, Of Life and Of Leadership. Honest History reviewed the book – in two parts (it was a big book). This is what Dr Nelson said about Mr Roberts-Smith (page 465):

I stood in support of Ben Roberts-Smith VC MG against the attacks on him by elements of the Australian media. I still do. War is a messy business, none more so than Afghanistan. [He summarised Mr Roberts-Smith’s exploits in the war and ‘his courage’.] “Extreme devotion to duty and the most conspicuous gallantry”, the Victoria Cross citation reads. Damn right I support this man.

Dr Nelson went on to say that responsibility should be sheeted home to ‘the politicians, including me’ who repeatedly sent men to Afghanistan, and to ‘the military chain of command’.

And so it goes on: While Kerry Stokes retired in April 2022 as Chair of the Memorial Council  (to be replaced for a few months by Dr Nelson, then Kim Beazley) the Council still includes James McMahon from Western Australia, a member since 2015, whose day job (Update 1 August 2023: until July 2023) is Chief Operating Officer of Australian Capital Equity (ACE), Mr Stokes’s private company.

Commentary (some paywalls, but subscriptions worth it – to most of them)

Mark Baker, Inside Story:

Just as the misconduct of a minority has tarnished the reputation of the entire SAS and all those who fought with courage and dedication in Afghanistan, so too has that misconduct cast a shadow over the reputation of the entire ADF, its proud legacy in two world wars and multiple other conflicts, and its claim to be the repository of the hallowed Anzac spirit and a standard-bearer of the Australian character.

The problem has been compounded by sections of our defence establishment who have resolutely defended Ben Roberts-Smith and denounced the work of those journalists who dared to challenge his record, not least within the previous leadership of the Australian War Memorial. Most egregious among them was former AWM director and later chairman Brendan Nelson who, after the first reports appeared in the Age, accused the journalists of running a scurrilous and unfounded campaign against the SAS and Roberts-Smith in particular.

“Australians need to understand that we have amongst us a small number of real heroes and Ben Roberts-Smith is one of them,” Nelson declared. “I say to the average Aussie, if you see Ben Roberts-Smith, wave and give him a thumbs up.”

Maeve McGregor, Crikey: ‘For nearly 30 years, quiet but solemn commemoration of the military has gradually been superseded by the drumbeat of a blind veneration that gifts the military immunity from public scrutiny’.

Laura Tingle, ABC: ‘Swirling through all of this are the complex problems of collective and individual responsibility, and of the dangers in politics of wrapping yourself in the glory of military action’.

Daniel James, The Monthly: ‘The rise and plummet of Roberts-Smith has occurred in the context of an increasingly nationalistic Australia where, it seems, the further distanced in living memory we have become from the First and Second World Wars, the more the legend of the Anzac has been used by leaders of all persuasions to justify not only our involvement in American theatres of war but also the actions of those who serve in them.’

Richard Ackland, The Saturday Paper: ‘From this epic wrestle between Roberts-Smith and the press much bigger issues are at stake. There is an assault on Australia’s idea of the noble Digger, even one who celebrated swilling beer from the prosthetic leg of a shot captive and has been sponsored by a friendly billionaire benefactor with a reverence for the warrior class.’

Paul Daley, Guardian Australia: ‘[The judgement] has, perhaps irrevocably, tarnished the carefully curated, revered legend of Anzac and its spurious myth of the white-hatted, egalitarian, hard-but-fair battlefield conduct of the celebrated Aussie digger’.

Kit Messham-Muir, The Conversation:

Following the ruling, much public debate has focused on what the Australian War Memorial should do with Robert-Smith’s uniform, helmet and other artefacts of his on display.

Greens senator David Shoebridge called for the removal of these objects from public display to correct the official record and “to begin telling the entire truth of Australia’s involvement in that brutal war” …

The portraits should be displayed in ways that address this complexity, capturing the evolving story of Roberts-Smith in explanatory wall text. There is an opportunity here to not simply “correct” the official record, as Shoebridge suggests, but to have a deeper conversation about the role of hero narratives in diverting attention away from more important public debates about Australia’s involvements in conflicts.

Peter Stanley, The Australian, 3 June (text supplied by author):

How should the Memorial now treat a man who evidently has failed to live up to the image fostered by the Memorial (and, it has to be said, a largely compliant media)? Greens Senator David Shoebridge has called for these items to be removed from display immediately. While we should deplore Roberts-Smith’s conduct, we might pause before effacing him from our national war museum.

Senator Shoebridge assumes that gaining a place in the Memorial is necessarily an “honour”. But museums tell the truth; or they should. Removing his portrait and uniform might satisfy a modish desire to obliterate the memory of his actions, but by “cancelling” him we would lose the chance to tell the truth; to explain how the trial’s evidence contradicts the heroic story that the Memorial, among others, cultivated …

This soldier has been found wanting, in character and conduct. Despite his swagger, he is clearly a troubled veteran, even if his arrogance, aggravated by his boosters’ adulation, contributed to his disgrace.

We might then also ask: why were he and other SAS men even allowed to do six tours in a stressful war-zone? Who facilitated his actions? Who looked away? Who else in military authority is culpable for this corporal’s failures? Are we also facing what ADF chief, Angus Campbell, elliptically calls “command accountability failures”?

More broadly, this case should make us reflect on how we tell our military history. The uncritical adulation of Roberts-Smith is only the most extreme example of how Australians have been encouraged to regard those who serve the nation in conflict automatically as “heroes” – now the inevitable word – praising them uncritically. Australian soldiers are held to high standards, expectations that the overwhelming majority meet with restraint and judgment. When they fail, they deserve condemnation but also compassion. The great Australian war historian Charles Bean wrote of telling both “the good and the bad” in our war history. Roberts-Smith was extolled as the good: now he represents the bad. But both sides need to be told.

First Dog on the Moon (Andrew Marlton) cartoon in Guardian Australia: ‘A teacher explains why the Ben Roberts-Smith exhibit has been moved at the war memorial’. Biting satire, suggesting in the final frame that ‘the real victims of this bitter conflict are the conservative media who have had their magical soldier feelings hurt’.

Rachel Withers in The Monthly daily newsletter: ‘The need to venerate our veterans at all costs, and to tear down the “woke”, has led many of the right to lose touch with reality, to the point that they are now suggesting that those horrified by war crimes are engaged in “fits of moral indignation”’.

Elizabeth Flux in SMH interviews Michael Zavros, artist of Pistol Grip (see above, 2014): ‘Asked about the War Memorial considering adding additional content and context given the judgment, Zavros said he supports this approach and would be interested in being part of those conversations’.

Retired Major-General Mick Ryan on the ABC website: ‘Beginning with the Brereton report of 2020, and through to the BRS judgement last week, two Australian judges have exposed war crimes by Australian special forces soldiers but have also shown how the command and leadership culture of the Australian Defence Force (ADF) failed … Our nation can do better. The judgement in the defamation battle of retired Corporal Roberts-Smith is an opportunity for the Australian government, and our community more broadly, to consider anew the full implications of Brereton’s 2020 report.’

Mark Willacy and others on the ABC website: More evidence against Roberts-Smith from Afghanistan. Mark Willacy is the author of Rogue Forces. ‘A classified document seen by the ABC states Mr Roberts-Smith, who at the time was an SAS patrol commander, was “directly involved” in the killing [of Imam Haji Raz Mohammad in 2012]. An internal military investigation found the shooting was justified because the imam was allegedly seen talking on a radio. It recommended that “those soldiers directly involved … [including] CPL Roberts-Smith … be monitored for psychological injury”.’ The then Chief of the Defence Force, David Hurley, is now Governor-General. The article also quotes Shaharzad Akbar, former chair of the Afghanistan Independent Human Rights Commission which investigated the two killings in 2012. Ms Akbar said ‘the commission met with Australian military officials in October 2012 to formally raise concerns about the case but received “no response”‘.

Rodger Shanahan in Guardian Australia on allocation of responsibility to different levels of the military: ‘The Australian public, for whom the military has long held a special place in the national psyche, are entitled to answers as to how this sad state of affairs came to be … The military should be held accountable for the shortcomings of some of its best-trained soldiers. Those calling for such accountability, though, should understand the nature of operational command and control and those empowered and equipped to exercise it. Without knowing this, vague calls for “higher ups” to be held accountable risk drawing attention away from those individuals ultimately responsible for war crimes – the people who pulled the trigger.’

Chris Masters interviewed by Philip Clark on ‘Nightlife’ on the ABC on 7 June: Masters noted how difficult it is for journalists to win in a defamation case. He makes a key remark about the apparent hatred by Afghan people towards Australian soldiers. His relationship with Brendan Nelson, with whom he had worked previously at the War Memorial, deteriorated after he suggested the War Memorial needed to report truthfully on happenings in Afghanistan. He praised the courage of SAS members who testified.

Karen Middleton in The Saturday Paper: A number of SAS members, unwilling to testify in the defamation case, are said to be willing to be witnesses in criminal proceedings. Includes quotes from Chris Masters on ‘Nightlife’ (above). And, on the point raised by Masters about Afghan attitudes towards soldiers:

The first former SAS soldier to whom The Saturday Paper spoke outlined the challenge of an environment where local people constantly switched between rural civilian life and armed insurgency. He described being certain that some individuals they had come across were active insurgents but having no immediate proof.

Ebony Bennett in the Canberra Times:

The Australian War Memorial is currently displaying the uniform of a soldier found by the Federal Court, on the balance of probabilities, to be a murderer, war criminal, a bully and a liar. It’s a desecration of a national monument. It is supposed to be a place to grieve victims of war and to commemorate the sacrifice of those Australians who have died in war or on operational service, not to glorify war, or war criminals …

Investigative journalist Nick McKenzie – the subject of Roberts-Smith’s defamation proceedings alongside Chris Masters, David Wroe, The Sydney Morning Herald, The Age and The Canberra Times – described how the soldier accumulated a “very wealthy, very influential and very determined cheer squad”. Chief among these were two former chairs of the Australian War Memorial, Kerry Stokes, who was also his financial backer, and Brendan Nelson. Both are gone now, but their actions and remarks tarnish the reputation of the Australian War Memorial.

Garry Linnell in the Canberra Times: 

Appendix: Five points about the War Memorial-Afghanistan link (first posted 19 November 2020)

• The War Memorial in recent years has to a large extent come to run its own show.
• The Memorial has been protected by the ‘Anzac cloak’ (which makes critics – and media – careful for fear of being seen to be anti-Anzac or anti-veteran or anti-soldier), by lax accountability mechanisms (especially in Senate Estimates, but also to government), and by the close connections between Memorial (narrowly-based) management and government.
• A sharp focus of the Memorial ‘show’ has been simplistic stories about ‘heroes’. (Former Director Nelson complained more than once that the Afghanistan probes were ‘tearing down our heroes’.)
• Consequently, Brereton’s revelations that there is much more to our war stories than heroes is particularly problematic for the Memorial. (The Memorial has traditionally focussed on how we have fought our wars, and not on more complex issues, like why, was it worth it, and the consequences.)
• If the Memorial’s $498m redevelopment is to be no more than a bigger, glitzier telling of heroes’ stories (complete with lots of retired military kit, made by the Memorial’s donors), that makes the project even more egregious.

*David Stephens has been editor of the Honest History website since 2013 and has been convener of the Heritage Guardians group, which opposed (unsuccessfully) the now $550m redevelopment of the War Memorial, which many observers have seen as a Nelson-Stokes legacy. Mr Roberts-Smith was an honoured guest at the 2018 launch of the project by then Prime Minister Morrison.