Today I was alerted to the following tweet made by ABC/Fairfax journalist, Nick McKenzie, on his federal court of appeal loss in the defamation action taken by Australian businessman, Dr Chau Chak Wing.
I agree with Nick McKenzie that the decision makes ‘all journalists jobs harder’, not because it is a ‘terrible precedent for journalism’, but rather because it is an excellent precedent for journalism. This case sets an excellent precedent for what the community expects from journalists: that all journalistic claims be based in fact, backed by real evidence, and published in good faith. For some journalists, that's a hard job.
I like facts, so I will go straight to Justice Rares’s original decision and pull out the main points as to why he struck out Nick McKenzie and his team’s truth defence. While Nick McKenzie, in his anti-defamation law campaign, will have you believe that Justice Rares's decision was based in defamation law, it was actually more based in evidence law and court procedure law which applies to all areas of law, not just defamation.
I have broken down Justice Rares’s reasons for his decision into grouped key issues.
ISSUE 1: Hearsay evidence made under parliamentary privilege does not amount to admissible evidence
Nick McKenzie and his team tried to rely on Andrew Hastie MP’s parliamentary speech made under privilege that Dr Wing was CC-3 and implicated in a US bribery scandal as evidence. In response, Justice Rares referred to the Parliamentary Privileges Act that specifically states that statements made in parliamentary proceedings cannot be lawfully tendered as evidence in a court. Even if it hypothetically could, Justice Rares pointed out that Hastie’s evidence would still be inadmissible because it amounts to hearsay evidence under the Evidence Act (paras 36-38).
WHY IS THIS GOOD FOR JOURNALISM? It will dissuade journalists from producing reports that are based in hearsay evidence.
ISSUE 2: Parties cannot make up their own definitions of words that already carry an ordinary meaning
Nick McKenzie and his team came up with their own definition of ‘espionage’ which they attributed to Dr Wing. The dictionary states that espionage is ‘the practice of spying’, but Nick McKenzie and his team expanded it to ‘conduct which achieves or is intended to achieve, or ... make possible, influencing and/or subverting and/or otherwise interfering with, covertly and/or deceptively (in the sense that the Agent’s role as such Agent is not disclosed), the policies of foreign governments and/or the political and democratic processes of foreign countries’. As Justice Rares noted, their definition ‘is equally capable of applying to a dual citizen or foreigner who exercises his or her right publicly to criticise, or lobby to change, government policy’ and could even apply to the ‘activities of the Opposition, other minority parties and independents in our parliamentary system, as well as those of the media and any member of the population who seeks to influence or change a government’s policy’ (paras 85-86).
WHY IS THIS GOOD FOR JOURNALISM? It will dissuade journalists from unilaterally engaging in Orwellian-like manipulation of the English language, thereby safeguarding the ordinary meanings of words commonly understood by the public.
ISSUE 3: When serious allegations are made, they must be backed by facts, not mere speculation
Nick McKenzie and his team alleged that Dr Wing is a traitor who spied on Australia for the Chinese Communist Party. To support this claim, Nick McKenzie and his team, for example, asserted that Dr Wing had met with 11 present and past prominent Australian politicians. Yet, as Justice Rares noted, ‘not one word of what was said, done or gleaned in those meetings’ was pleaded. Instead, Nick McKenzie and his team ‘simply asserted that, somehow, just because the meetings occurred (and ASIO had suspicions), an inference should be drawn against him that he concealed his connections to the Chinese Communist Party (and other entities), and, attempted to influence each politician…’. Justice Rares went on to state that ‘perhaps one could infer that the participants in the meetings exchanged pleasantries but, beyond that lies only speculation, since [Nick McKenzie and his team] have not served any outline of evidence of any witness present at, or particularised anything that occurred in, any of those meetings. Those particulars are embarrassing because they are conclusory and have no content or substance.’ Justice Rares went on to point out the silliness of similar claims made by Nick McKenzie and his team (paras 88-99).
WHY IS THIS GOOD FOR JOURNALISM? This will dissuade journalists from misleading the public by disguising their mere speculations as facts.
ISSUE 4: Statements must be sufficiently detailed, accurate and consistent to allow the other side to properly defend themselves
Rule 16 of the Federal Court Rules states a pleading must ‘state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not evidence by which the material facts are to be proved’. Justice Rares found the pleadings of Nick McKenzie and his team were inadequate in detail, contradictory and failed to give Dr Wing a meaningful case that was sufficiently clear to allow him a fair opportunity to dispute it. For example, Nick McKenzie and his team stated that the inference should be drawn that Dr Wing ‘deliberately intended to conceal his connections to the [Chinese Communist Party] so as to secretly advance their interests…’. But Justice Rares found this to be a non-sequitur, stating: ‘The particulars [also] asserted that Dr Wing launched a newspaper in China, chaired or participated in all the associations alleged, in 2014 met the former President Hu and Premier Wen and held large meetings at his resort. All of those activities appear to have been public and open, as was his meeting with President Xi… . And the earlier particulars asserted that these activities were bases on which it could be inferred that he was a member, or associate of, or connected to, the [Chinese Communist Party and its other entities]. Yet [they also] made the opposite allegation, namely, that he had deliberately concealed those alleged connections’ (paras 98-109).
WHY IS THIS GOOD FOR JOURNALISM? This will dissuade journalists from playing fast and loose with the truth and dissuade journalists from not genuinely giving their targets a substantive right of reply.
Reading Justice Rares reasons for his decision gives some insights into the amount of work he had to do to unravel and structure Nick McKenzie and his team’s mess of non-sequiturs, gish gallops, alogisms, anthorisms, pleonasms, innuendos, confirmation bias, and conclusory and circular arguments. Perhaps Nick McKenzie is used to the public, politicians and bureaucrats falling for these trickster tactics, but did Nick McKenzie seriously think judges would be equally naive or gullible? Apparently so, as he is now contemplating going shopping in the High Court… at tax payer’s expense, no less.