By Dr Dan Mealey, former Army medical doctor
Twice, sensitive information entrusted to Andrew Hastie has found its way to journalists after he decided the public interest warranted disclosure. The former SAS officer and senior parliamentarian is entitled to question institutions. But Australians are equally entitled to ask when he acquired the authority to bypass them, and whether those entrusted with public confidence should strengthen due process rather than substitute their own judgment for it.
There is something profoundly important about the commission of an Australian Army officer. It’s not merely a credential acquired at Duntroon, nor a professional qualification surrendered with a uniform at the end of military service. It is an investment of trust. We trust officers with weapons, intelligence, soldiers’ lives and, ultimately, the lawful application of lethal force on behalf of the Commonwealth. We expect from them judgment, restraint and an understanding that authority is exercised through institutions rather than personality. Parliament asks something similar of those elected to it. We entrust parliamentarians with information and influence unavailable to ordinary Australians, while expecting them to strengthen the institutions upon which democratic government depends.
Andrew Hastie has occupied both positions. He was a commissioned officer and troop commander in the Special Air Service Regiment. He subsequently became the federal member for Canning, chairman of Parliament’s powerful intelligence and security committee, Assistant Minister for Defence and a senior figure in the Liberal Party. Few Australians have moved between the military and political arms of the state carrying comparable institutional authority.
That’s why recent evidence in a Western Australian courtroom deserves consideration beyond the immediate defamation dispute in which it arose. Hastie acknowledged providing journalist Nathan Hondros with a covert recording made by businessman Aaron Grainger of a conversation with property developer Greg Poland. The recording concerned a proposal involving contaminated soil from the Forrestfield Airport Link project. Hastie told the court that he regarded the contents as a matter of public interest.
Hastie did not make the recording, a distinction that matters legally and factually. What matters for present purposes is what he did after receiving it. A piece of sensitive information was placed in his hands. Hastie formed a judgment about its public importance and transferred it to a journalist.
It would be an unremarkable episode were it not for an earlier one.
Years before the Poland litigation, Hastie had become an important interlocutor for journalists Chris Masters and Nick McKenzie as they investigated rumours of misconduct by Australian special forces in Afghanistan. Hastie spoke with journalists about rumours concerning his former SAS colleagues, including Ben Roberts-Smith VC MG. None of the information he discussed was criminality he had personally witnessed. In the Federal Court, Hastie himself described one rumour concerning Roberts-Smith and an Afghan detainee as a “fairly well-established rumour” within the Regiment. He nevertheless defended the role of journalism in bringing allegations into public view. His explanation was revealing: “My view is that the system failed, which is why public interest journalism is important.”
here, perhaps, lies the common thread.
Hastie appears willing to take information that he believes reveals institutional wrongdoing and place it into the hands of journalists when he concludes ordinary institutional mechanisms have proved inadequate. He appears to regard the Fourth Estate not merely as an observer of accountability, but in some circumstances as an alternative mechanism of accountability itself.
There are occasions when that proposition is entirely defensible. Journalism has exposed corruption, criminality and institutional abuse precisely because insiders were prepared to speak when institutions protected themselves. No serious democracy should demand unquestioning institutional obedience from whistleblowers. Nor should governments be permitted to extinguish embarrassing truths merely by stamping them “confidential.” The Fourth Estate exists partly because governments, armies, police forces and bureaucracies sometimes fail.
But there is an equally important democratic principle that has received considerably less attention. Journalists are not courts; newspapers are not military investigative authorities; reporters do not possess coercive investigative powers equivalent to police, nor do newspaper editors conduct criminal trials according to rules of evidence. And the public-interest defence of journalism does not transform journalism into a substitute judicial system.
That distinction becomes particularly important when the person supplying information is not an ordinary whistleblower but a former commissioned officer and serving parliamentarian.
Serious allegations of murder or unlawful conduct on military operations have formal destinations. They can be reported through the chain of command, military investigative authorities, the Inspector-General of the Australian Defence Force, civilian police and other authorised investigative mechanisms. Protected disclosure mechanisms exist precisely because reporting wrongdoing through institutions can be difficult. Those mechanisms are imperfect, sometimes painfully so. But their purpose is to receive allegations, preserve evidence, protect witnesses, distinguish suspicion from proof and afford the accused procedural fairness.
Going to a journalist does something fundamentally different. It can move an allegation from the investigative realm into the public consciousness before any court has determined its reliability. Once there, it cannot easily be retrieved.
A headline is not subject to cross-examination. An anonymous allegation cannot be confronted in the manner of a witness. Repetition itself acquires evidentiary force in the public imagination. The allegation is reported, another outlet reports that it has been reported, commentators discuss the controversy created by the reporting, politicians are asked to respond to the controversy and eventually millions of Australians remember not where the allegation originated, but merely that they have heard it repeatedly.
That process matters particularly where criminal proceedings may ultimately follow. Saturating the public sphere for years with allegations concerning an identifiable accused creates an obvious downstream problem for the administration of justice. Courts possess mechanisms for identifying juror bias and judges can give directions, but no sensible person should pretend that relentless national publicity is irrelevant to the environment from which a jury must eventually be drawn.
The irony is now acute. Following the laying of criminal charges against Roberts-Smith in April, Hastie issued a statement urging Australians to respect “the rule of law, the criminal justice system, and the accused’s right to a presumption of innocence and a fair trial.” He further stated that he would make no further comment because he did not wish to prejudice the proceedings. That restraint is proper.
But it also invites an uncomfortable question. Why should that restraint begin only when criminal charges are laid?
Roberts-Smith is now an accused person facing criminal proceedings. He denies wrongdoing and is entitled, without qualification, to the presumption of innocence in those proceedings. The civil findings previously made against him were reached on the balance of probabilities and do not determine his criminal guilt. That distinction should be especially respected now.
Yet the broader principle extends beyond Roberts-Smith. If public commentary is capable of prejudicing a fair trial after charge, years of extraordinarily prominent reporting before charge cannot simply be treated as having no consequence. The presumption of innocence is not merely a courtroom incantation activated when an indictment is filed. It expresses a deeper cultural expectation that accusations of grave criminality should be tested rather than converted prematurely into public verdicts.
This is where Hastie’s status as a former officer becomes significant.
Leaving the Defence Force does not confer carte blanche over information acquired through military service. Former ADF members may remain constrained by Commonwealth secrecy and national-security laws, depending upon the nature, provenance and classification of what they disclose. Whether Hastie crossed any legal or professional boundary in conveying sensitive military information to Masters or McKenzie is not for journalists, commentators or former soldiers to determine. That judgment properly belongs to the very institutions of law, investigation and accountability whose processes Hastie bypassed when he leaked allegations to the media.
There is an uncomfortable irony in that. We must trust those institutions to determine whether Hastie acted improperly in circumventing them.
The more immediate question, however, is not criminal but ethical. An officer acquires extraordinary access because people trust the commission he holds. Soldiers speak differently among soldiers. Officers encounter operational information, intelligence, personal confidences and the imperfect rumours of a closed military culture because they belong to an institution whose effectiveness depends heavily upon trust. Resignation does not erase the moral history of how that access was obtained.
That places an especially heavy responsibility upon a former officer to distinguish what he knows from what he believes, what he witnessed from what he was told, reliable intelligence from hearsay, and corroborated allegation from barracks rumour.
This distinction is central to Hastie’s involvement in the Roberts-Smith saga. Hastie was certainly in Afghanistan and was present on operations later scrutinised by the courts. But presence in the same theatre is not eyewitness evidence of criminality. In 2022 he told the Federal Court that the allegation that Roberts-Smith had kicked a detained Afghan from a cliff was a “fairly well-established rumour”. Those words deserve contemplation.
A rumour can be true. A second-hand allegation can ultimately be corroborated. But a subsequent judicial outcome does not retrospectively convert everything everybody believed beforehand into first-hand knowledge. Nor does it answer the separate question of whether a commissioned officer turned parliamentarian should transmit untested allegations to journalists before formal processes have run their course. The greater the authority of the messenger, the greater the responsibility.
When a former SAS captain and federal parliamentarian speaks to a journalist about alleged war crimes inside the SAS, his words don’t arrive with the weight of ordinary gossip. They arrive wrapped in the authority of the Australian Parliament and the credibility of the officer’s commission he once held. The journalist reasonably assumes that this source knows things others do not. The public subsequently assumes that the journalist’s unnamed or partially identified military sources possess privileged knowledge. Authority compounds authority.
That’s why motive is also a legitimate subject for scrutiny, provided questions are not masqueraded as conclusions.
Hastie has presented his involvement as an exercise in conscience and institutional accountability. That explanation may be entirely sincere. But the public is entitled to apply the same scrutiny to the whistleblower that the whistleblower asks journalists to apply to everyone else.
Indeed, precisely this issue arose under oath. During the Roberts-Smith defamation trial, counsel put to Hastie that he supplied Nick McKenzie with information and received favourable media treatment in return. Hastie rejected the allegation. Reports of the cross-examination noted that articles had described him as an “emerging Liberal star” and a “moral champion” of the Afghanistan war crimes investigation. Hastie denied that his engagement with journalists was designed to advance his political career and said his ambition was to preserve the SAS by confronting its mistakes.
His denial should be recorded fairly. But the question itself remains legitimate because public-interest disclosure requires scrutiny not only of the information disclosed but of the interests of the person disclosing it.
What, if anything, did Andrew Hastie stand to gain from his relationships with journalists?
After securing his victory in the 2015 Canning by-election, his subsequent emergence as a national political figure, former SAS officer and prominent public advocate for confronting alleged misconduct inevitably makes the relationship between media access and political profile a legitimate subject of inquiry, particularly because that very proposition was tested in court.
There is another uncomfortable contrast. On February 28, 2013, Captain Hastie was the Australian ground commander when an engagement involving US Apache helicopters went catastrophically wrong. The intended targets were suspected insurgents. The dead were two Afghan boys, Toor Jan, aged seven, and Odood, aged six. The Parliamentary Library’s chronology records that a NATO inquiry found that the Australian commander on the ground and the US helicopter pilot failed to fulfil targeting obligations by not coordinating observation and fire onto the same point.
Hastie has spoken movingly about those deaths. He has described his horror at seeing the rounds strike hundreds of metres from the intended target and has accepted the moral burden of having authorised the engagement. His public account deserves to be treated with humanity. War is not a television studio and decisions made in seconds under threat should not casually be judged by people who have never carried their consequences.
Hastie was also afforded something enormously important: investigation, context and the opportunity for the facts surrounding that terrible event to be examined before a simplistic public verdict consumed him.
Years later, the deaths of Toor Jan and Odood became part of Hastie’s public story of war, responsibility, moral injury and eventual political life. He first spoke publicly at length about the incident after leaving Defence and after entering Parliament. His account presented a soldier profoundly affected by tragedy, a man reflecting upon the moral cost of war.
There is nothing inherently improper about that. But fairness permits another question: why should the failures, mistakes and alleged crimes of ADF officers be allowed to pass first through investigative processes, while allegations concerning soldiers are escorted (in this case by an ADF officer) into the newsroom?
And there is a still more uncomfortable question that should neither be asserted as fact nor prohibited from being asked. Did Hastie’s engagement with journalists allow him to participate in constructing a morally favourable account of his own difficult war while helping expose the alleged failures of other soldiers to a far less forgiving media process? Was this simply conscience? Was it politics? Was it the natural human tendency to understand one’s own failures through context while judging the failures of others through consequence?
Or was something more personal operating?
Roberts-Smith’s lawyers alleged that resentment, rivalry and jealousy existed among some of his SAS detractors. Hastie himself testified that Roberts-Smith had treated him “like a scum-bag” during SAS selection and described Roberts-Smith’s instructional style as distinctive.
https://medium.com/@danielmealey/when-the-fourth-estate-becomes-the-first-resort-4abcb376c3a7
None of this definitively proves envy, vengeance or improper motive. But journalists should not automatically confer moral purity upon sources merely because those sources describe themselves as whistleblowers.
That proposition formed a central argument of an article I wrote in 2023, “Spies, Lies, and Envy: How our SASR was Destroyed”. My concern then was that the motivations of anonymous and identified military sources had escaped anything approaching the scrutiny applied to the men they accused. Military units are human institutions. They contain loyalties, rivalries, grievances, professional competition, humiliation, ambition and envy alongside extraordinary courage and sacrifice. To imagine that every person who takes an allegation to a journalist has transcended those ordinary human motives is not investigative journalism. It is to investigate the accused while granting the accuser immunity from investigation.
So the difficult question must be permitted: was Hastie ever able to weaponise journalists to settle scores born of his own resentments or rivalries?
The answer may be no. Hastie would plainly reject the proposition, just as he rejected in court the suggestion that he traded information for favourable political coverage. But serious journalism should be capable of asking the question without pretending already to know the answer. The motives of the accused are scrutinised mercilessly. The motives of accusers, intermediaries and politically powerful sources deserve scrutiny too.
This brings us back to Greg Poland. The circumstances are very different. Poland is not Roberts-Smith. A covert recording concerning a Western Australian development proposal is not an allegation of murder on an Afghan battlefield. The applicable laws, institutions and consequences differ profoundly. Comparison should not become conflation. Yet the method is sufficiently similar to deserve attention.
Information created or supplied by somebody else reaches Hastie. Hastie considers its contents important. Hastie forms his own view that the public interest warrants exposure. A journalist becomes the vehicle through which the information enters the public domain. In the Poland case, Hastie has acknowledged giving the recording to Hondros and has defended his conduct by reference to the environmental and public significance he perceived in its contents.
Taken separately, either episode might be explained as an exceptional response to exceptional circumstances. Taken together, they raise a question about Hastie’s conception of institutional authority.
How readily does Andrew Hastie reserve to himself the right to decide that established processes are insufficient and that disclosure to journalists is the superior course?
That question matters because “public interest” can become a dangerously elastic concept when the person invoking it is simultaneously the person deciding what it means. Every genuine whistleblower believes ordinary mechanisms have failed. So does every malicious leaker. So does every political operative briefing against an opponent. So does every disgruntled employee convinced of his own righteousness. The moral distinction between them cannot rest solely upon the declarant announcing that his motives were pure. Institutions exist partly to constrain precisely this human tendency.
This is not an argument for blind faith in Defence. I have spent enough of my own life challenging Defence institutions to know how catastrophically they can fail the people entrusted to them. Institutional loyalty must never become institutional inertia. Nor is this an argument against investigative journalism. A free press is indispensable precisely because governments cannot be trusted to investigate themselves perfectly.
This is instead an argument for something more subtle: institutional scepticism must operate in both directions.
We should scrutinise the institution accused of concealing wrongdoing. We should also scrutinise the individual who bypasses it. We should test the allegation. We should also test the motives, knowledge and interests of the person making it. We should ask whether formal avenues genuinely failed, or whether they were never allowed the opportunity to work. We should distinguish whistleblowing based upon evidence from the circulation of hearsay. Above all, we should resist the seductive proposition that declaring something to be “in the public interest” absolves the declarant from examining his own interests.
There is also a deeper issue for Parliament. A parliamentarian is not merely another citizen with a larger megaphone. The authority of elected office derives from public confidence in democratic institutions. MPs rightly expose corruption and challenge bureaucratic failure, but they also carry an obligation not casually to corrode confidence in courts, police, Defence investigators and statutory accountability bodies whenever those institutions fail to produce the result or timetable they personally prefer.
The same applies more strongly to a former officer. Leadership is not simply the courage to speak. Sometimes it is the discipline to know where to speak, when to speak and what one actually knows before speaking.
An officer who hears a rumour of murder has obligations. A parliamentarian who receives potentially explosive information has obligations. A journalist who receives it has obligations. None is entitled to collapse suspicion into guilt simply because each believes the other possesses sufficient moral authority to validate the allegation.
There’s a reason the law separates investigator, prosecutor, witness, judge and jury. Concentrating those functions in the hands of one righteous individual is precisely what liberal democracy was designed to prevent. Hastie, of all parliamentarians, might appreciate the principle: his former prime minister Scott Morrison discovered the hard way that Australians are uneasy when one man quietly decides he can wear several institutional hats at once.
Andrew Hastie’s recent statement concerning Roberts-Smith correctly asks Australians to respect the criminal justice system and the presumption of innocence. Those words should be taken seriously. They should also be applied retrospectively as a principle of conduct and prospectively as a standard for public life.
If the justice system deserves our confidence today, it deserved an opportunity to earn that confidence yesterday.
Sometimes they will be right. Sometimes the journalist really is the last door left open when every institutional door has been slammed shut. But that must be the exception, not an alternative system of justice assembled from a source, a politician and a reporter.
The commission of an Australian officer is founded upon trust. So is election to the Australian Parliament. Both confer authority precisely because the holder is expected to exercise greater judgment than the ordinary citizen, not merely greater access to a journalist.
The question for Andrew Hastie is therefore not whether journalism has a legitimate role in exposing wrongdoing. Of course it does. Nor is it whether institutions sometimes fail. Of course they do.
The question is harder: What threshold does a former SAS officer and senior parliamentarian apply before deciding that his own judgment of the public interest should supersede established investigative, legal and administrative processes? How carefully does he distinguish what he witnessed from the gossip that somebody told him, evidence from intelligence, intelligence from hearsay, and hearsay from rumour? How rigorously does he interrogate his own motives before inviting journalists to interrogate somebody else’s? And when the enormous authority of his former commission and present office gives credibility to an rumour capable of destroying another soldier’s reputation, livelihood and life, does that authority not impose upon him a greater obligation to exercise restraint rather than a lesser one?
These are not questions hostile to whistleblowing. They are questions essential to it. Because if we allow every powerful person who believes himself motivated by the public interest to decide when process may be discarded, we do not strengthen accountability, we merely replace institutional authority with personal authority.
And when the Fourth Estate becomes the first resort, Australians are entitled to ask who, precisely, is holding the whistleblower to account?
