Why We Shouldn’t Trust Nick McKenzie and Chris Uhlmann in the Defamation Law Debate
A few months ago, I exposed the Australian Broadcasting Corporation’s (ABC) deceptive editing and misrepresentations of an interview they conducted with a Chinese international student for their “reds under the beds” themed Four Corners' story. In my expose, I reported that the target of the defamation, Ms Lupin Lu, had her case settled out of court with a gagging clause, presumably ensuring that Ms Lu could never publicly clear her name. The Four Corners story also resulted in another defamation action lodged by Australian billionaire, Dr Chau Chak Wing, currently being played out in the courts.
Mr Nick McKenzie, one of the journalists who produced the story, decided to impute that I was a liar by claiming I hadn’t reported the “facts”. This left me with no choice but to release the documentary evidence proving that Ms Lu had denied three times in her interview that she was a proxy for the Chinese Communist Party and, each time, her denials were edited out of the final cut to create the false imputation of her being a spy. This documentary evidence was no doubt highly embarrassing for Mr McKenzie, as it brought his credibility into question, not mine. It also gave some insight into how the sausage is made at the ABC.
Another journalist who produced the Four Corners story, Mr Chris Uhlmann, has since put the world on notice with this tweet:
One is left to wonder how many times does poor Ms Lu have to be defamed by the ABC mob? By Mr Uhlmann “standing by every word”, he is perpetuating the lie that Ms Lu is a proxy for the Chinese Communist Party. One is also left to wonder why was compensation paid to Ms Lu and why was Ms Lu’s name deleted from the associated Sydney Morning Herald article if Mr Uhlmann stands “by every word”. As it looks more and more likely that Dr Chau will win his court case, Mr Uhlmann’s cries of indignation feel more like a desperate captain going down with his sinking ship.
It must be remembered that Mr Uhlmann claimed credit for his and Mr McKenzie’s story bringing about Australia’s new far-reaching sub-espionage laws. Now we are discovering that three of the four pillars of the story - Ms Lu, Dr Chau and Mr Huang Xiangmo - have crumbled or are crumbling. This essentially means that we Australians will have new laws with no real justifications, only make-believe justifications.
Sniffing an upcoming loss, Mr Uhlmann and Mr McKenzie are predictably crying out for defamation law reform. But we Australians need to ask ourselves: "If I was interviewed by a journalist and my words were deceptively edited to paint me in a bad light, would I want to be deprived of the right to sue for defamation?" My answer to that question is a resounding “NO!”
If anything, our defamation framework needs to be strengthened! For example, when Ms Lu requested that her full video interview be released to her so she could publicly clear her name, the ABC refused this. Such refusal is actually legal as the ABC are precluded from the Freedom of Information Act for such matters. Mr Uhlmann and Mr McKenzie should be advocating for this preclusion to be abolished and all interviewees be given the right to access their full interviews. Another example, Ms Lu would not have been able to get compensation if she didn’t have the mere luck of attaining a legal team that was charitable enough to offer their services on a "no win, no fee" basis. Mr Uhlmann and Mr McKenzie should be advocating for a public fund to finance members of the public who have reasonable grounds to lodge a defamation action against a media outlet to help overcome the David and Goliath battle. A further example, by a gagging clause being imposed on Ms Lu, she presumably will never be able to publicly clear her name. In the meantime, journalists such as Mr Uhlmann and Mr McKenzie continue to bring her reputation into disrepute. Mr Uhlmann and Mr McKenzie should advocate for the banning of gagging clauses in defamation settlements to give back applicants their freedom of speech.
Of course, it is unlikely Mr Uhlmann and Mr McKenzie will advocate for such law reforms - it seems they would prefer a judicial arm with minimal powers to regulate the Fourth Estate.
If Mr Uhlmann and Mr McKenzie succeed in bringing about a government inquiry into our defamation laws, I will be putting forward a public submission that includes all of the documentary evidence relating to Ms Lu’s case to show just how bad bad journalism can get and why we need to strengthen - not weaken - our defamation laws.
*Jaq James has a background in law, public policy and education. She is the author of Bad Behaviour in the Public Service and The Found One.