COLIN HAWES. Why Defamation Lawsuits Are Crucial for Protecting Rule of Law: A Comment on the Chau Chak Wing Case

Mar 19, 2019

Following the recent success of Dr. Chau Chak Wing’s defamation lawsuit against Fairfax and John Garnaut, Liberal MP Andrew Hastie stated that the judgment will be “carefully analysed”: “The ability to report freely and fairly on national security is a vital part of our democracy,” and “we are concerned about the impact that defamation laws in Australia are having on responsible journalism that informs Australians about important national security issues.” One can only hope that Hastie and related national security hawks do actually read the Federal Court’s 100-page meticulously reasoned judgment before jumping to conclusions about protecting “democracy” and “responsible journalism”.

Justice Wigney provides detailed and fascinating evidence demonstrating the numerous reporting errors and unfounded biases that led to Garnaut’s defamatory characterization of Chau as a bribery suspect seeking to avoid extradition by “bunkering down” in China.

Of particular interest to Mr. Hastie should be Justice Wigney’s conclusion that Garnaut had “no rational or reasonable basis” for his “extraordinary, if not outlandish and paranoic, statements or theories … that Dr Chau may have [been] ‘an agent of … the Chinese State’ or … ‘an actual asset of the Chinese intelligence system.’ Mr Garnaut did not … shed any light on how and why Mr Ashe’s appearance at a conference organised by a group of non-government organisations somehow advanced the interests of the Chinese State or its intelligence services” (judgment para 147).

Prior to writing the impugned article, Garnaut had already formed a negative bias against Chau based on “speculative and exaggerated” misinterpretations of their earlier interactions, including Chau’s invitations to his estate in China, gifts of wine and offers of further hospitality. As Wigney notes: “It is difficult to see why Dr Chau’s explanation that these were simply incidents of politeness and traditional Chinese culture was in any way implausible” (141-2)

This negative bias led Garnaut to overlook the serious errors and misleading assumptions in his account of Chau’s alleged connection to a United Nations bribery case.

The first error was to misread the indictment in that case to conclude that Chau was under investigation and risked extradition to the United States, which was false (171, 178). The second error was to rely on unattributed statements by the husband of Sheri Yan, an accused person in that case, which clearly were conflicted, and an “attempt to shift the blame from Ms Yan to Dr Chau” (197).

The third error was Garnaut’s failure to take contemporaneous notes of his conversations with several people that he relied on as sources for his article. These included Sheri Yan’s husband, some anonymous Australian “officials” who allegedly believed Chau risked extradition, and Chau’s daughter Winky (195, 210, 220, 261). For a “responsible journalist”, taking notes of conversations with sources should be standard practice. Garnaut’s failure to do so here led Justice Wigney to seriously doubt his credibility (120), and to question whether some of these conversations actually took place at all (213-221), or were fictitious additions by Garnaut to add a sheen of authority to his unsupported speculations: “I am not persuaded that Mr Garnaut was being entirely truthful about those matters (219) … The likelihood is that Mr Garnaut’s evidence concerning that source was manufactured” (120).

The fourth error was to state that Chau’s company Kingold had “scrubbed” all references to a 2013 conference attended by UN President Arthur Ashe from its website, as if to hide the connection between Kingold/Chau and the UN bribery case involving Ashe. If true, Wigney notes, this would have implied a guilty conscience on the part of Kingold and Chau (231).

However, the claim was false: two of Garnaut’s colleagues had emailed him with working links on Kingold’s website containing the agenda and speakers at the conference, including Ashe’s attendance – information which Garnaut totally ignored (238-241). My own five-minute search of Kingold’s website found a report on the conference still there today.

This is another basic failure of responsible journalistic practice.

The final error was that Garnaut failed to accurately report Dr Chau’s statements giving his side of the story. Chau’s explanation was effectively reduced in the article to a “meaningless” single phrase: “I don’t know the details, you understand?” (290). But what Chau actually told Philip Wen, Fairfax’s China correspondent, was that “he was not personally involved in the organisation of the conference, and therefore did not know the details concerning the invitation to Mr Ashe and any payment that may have been made to him” (290, 275). Justice Wigney concluded: “Indeed, the article … did not point out that the conference was organised by a group of apparently reputable non-government organisations, that Kingold was only a co-organiser, and that a number of other notable persons spoke at the conference and were paid speaker’s fees. One of the other speakers was the former President of the United States of America, Mr Bill Clinton” (290).

Unfortunately for Garnaut and Fairfax, the numerous careless factual errors in the article and their failure to properly cite Chau’s rebuttal meant they had acted unreasonably, and their defence of qualified privilege failed (324-5).

It may be true, as Fairfax stated after the judgement, that generally Garnaut “is a careful, meticulous … journalist.” As a China specialist, I benefited from reading his well-balanced reports when he was a China correspondent. But this particular article displayed no evidence of these positive qualities.

What is especially disturbing and ironic is that numerous equally misleading media reports, published or broadcast since 2015, have attacked the so-called harmful influence of Chinese-Australian business people, Chinese students in Australia, and Australian universities conducting China-related research, directly leading national security advocates to propose a bill that, in its initial form, would have criminalized journalists reporting the opinions of foreign organizations from any country, and would have “fundamentally restrict[ed] the rights of all Australians … to legitimately participate in the democratic process.”

Garnaut’s article certainly should not be held out as evidence of over-reaching defamation laws threatening “responsible journalism” about supposed “national security” issues. Quite the opposite, Wigney’s judgment should be “carefully analysed” as a textbook case demonstrating why defamation laws, though imperfect, are an essential check on journalistic misbehaviour and a bulwark of our democratic rule of law system.

Colin Hawes is an associate professor in the Faculty of Law, University of Technology Sydney, specializing in Chinese and corporate law.

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