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  • Jaq James

The Boys Who Cried Spy: Justice Wigney's Analysis of John Garnaut & Philip Wen

Updated: Mar 25, 2020

Mr John Garnaut - son of high-profile international economist, Dr Ross Garnaut - is a very influential figure in China-watching circles, both in Australia and abroad. He is a consultant for the Australian Strategic Policy Institute (ASPI), he has been called upon to give evidence before a US senate committee, and he was a former prime ministerial adviser.

The question is should Mr Garnaut still be as influential as he is in light of the Federal Court’s findings against him? I’m referring to the decision of Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, which was upheld by the Federal Court of Appeal a few days ago in Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48.

To give a quick summary, the Federal Court found that Mr Garnaut had defamed Dr Chau Chak Wing, a Chinese-Australian property developer, by suggesting he was wanted by the US Government for bribery of a UN official.

Below I’ve included some key excerpts from the decision of the primary judge, Justice Wigney, which clearly indicates Mr Garnaut’s evidence did not go well for him. Paragraph numbers for each point made by His Honour are referenced for those who want to read the full context.

⁃ His Honour had “doubts about Mr Garnaut’s reliability and credibility as a witness”, concluding that Mr Garnaut was “prone to exaggeration and hyperbole”, “showed signs of arrogance, if not smugness” and his answers became “inappropriately dismissive, unresponsive, overly defensive or unhelpful” [119];

⁃ His Honour had “serious doubts about the honesty and reliability of at least one aspect of Mr Garnaut’s evidence concerning a supposed confidential source of information.” His Honour expressed “doubt that that confidential source existed”, the likelihood being that “Mr Garnaut’s evidence concerning that source was manufactured” and “the reliability of Mr Garnaut’s evidence concerning this source was, at best, highly doubtful” [120, 201];

⁃ In respect to Mr Garnaut’s oral testimony where he shared various negative opinions he had of Dr Chau, including his belief that Dr Chau “may have been a functionary of the Chinese State or even the Chinese security or intelligence services”, His Honour noted that Mr Garnaut’s legal team didn’t give Dr Chau a chance to address Mr Garnaut’s negative opinions through cross-examination. His Honour surmised that Mr Garnaut was “willing to wound, and yet afraid to strike” [137];

⁃ His Honour considered Mr Garnaut’s evidence in relation to his supposed insights into Dr Chau and the way he operated “was far from impressive” and that “some of his conclusions about how Dr Chau operated appeared to be highly speculative and exaggerated, particularly given the relatively limited interactions he had actually had with Dr Chau and, perhaps more significantly, the relatively limited amount of actual research he had conducted, and the relatively little objective information he appeared to have about Dr Chau” [141];

⁃ His Honour noted Mr Garnaut appeared to have been “particularly awestruck” by Dr Chau’s wealth and privilege, “to the point, perhaps, of being almost mildly obsessed or even infatuated, at least in a professional sense” by Dr Chau. That attitude may well have coloured or clouded Mr Garnaut’s objectivity towards Dr Chau, and Mr Garnaut’s evidence “included some other rather extraordinary, if not outlandish and paranoic statements or theories about Dr Chau” [139, 143, 147];

⁃ His Honour found evidence to suggest that Mr Garnaut approached the task of writing a “big hit” on Dr Chau “with some considerable enthusiasm, if not glee.” [149];

⁃ Relating to a key US Department of Justice press release that Mr Garnaut relied on for his article about Dr Chau, His Honour found it “tolerably clear that Mr Garnaut did not, at any stage, seek to ascertain exactly why… Dr Chau … had not been charged, or even named in the press release." His Honour stated that Mr Garnaut’s explanation for not chasing down this information - that he had never gained much information from any person named at the bottom of a press release - “was likely to be an exaggeration” [179, 183];

⁃ His Honour found that Mr Garnaut’s article on Dr Chau did not provide “a measured analysis”. Rather, His Honour found the language used in Mr Garnaut’s article “was sensationalist and hyperbolic and generally derisive and deprecating when it came to Dr Chau”, and portrayed mere accusations as unequivocal facts [303, 307, 309].

In ordinary circumstances, a person of any profession who had such scathing remarks made about him or her by an objective and respected judicial member would struggle to maintain their credibility and professional standing amongst their peers, and may even lose their employment in their chosen profession. And yet Mr Garnaut seemingly has suffered no such repercussions. One has to wonder if this is an anomaly of the China analyst profession, in which case it shouldn’t be considered a profession at all. Rather, it should merely be considered an occupation, in the same ranks as hairdressing, window cleaning or dog grooming.

On a side note, His Honour also made some interesting remarks about Mr Garnaut’s former colleague, Mr Philip Wen, who helped Mr Garnaut with his article on Dr Chau. For those who don’t know, Mr Wen moved on to work for The Wall Street Journal as a China correspondent, but had his visa cancelled by the Chinese Government last month. The remarks by His Honour set out below gives some sense as to why the Chinese Government may not have trusted Mr Wen to accurately portray China to a Western audience:

⁃ His Honour found that Mr Wen, in communicating directly with Dr Chau to try to get his side of the story, did not clearly and unequivocally put allegations to Dr Chau to give him a fair right of reply, and, with some allegations, Mr Wen did not put them to Dr Chau at all [278-282];

⁃ His Honour found that Mr Wen’s email summary of his conversation with Dr Chau was “inaccurate” and “far from a fair or reasonable summary”, and that the quotes extracted by Mr Wen were, for the most part, “disaggregated and taken out of their proper context” and “were in some respects portrayed in a misleading light”. [283-285, 306].

If you have the time, I recommend reading the whole judgment yourself. It gives you a deep insight into how easy it is to muddy the waters on matters that the public knows little about, and how much effort and skill is required to clean up the mess. Fortunately for the public, Dr Chau’s wealth enabled him to afford the high price of a forensically trained mind that was able to sort fact from fiction, certainty from speculation, and sincerity from game-playing. Imagine how much more truth the Australian public could actually get on China - Xinjiang, Tibet, Tiananmen Square, the Communist Party - if we had minds like Justice Wigney’s on the case.

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