The Lehrmann defamation case, journalist values and the MEAA Code of Ethics

Apr 9, 2024
Former Seven network Spotlight producer Taylor Auerbach arrives at the Federal Court of Australia in Sydney, Friday, April 5, 2024. The 28-year-old ex-Liberal staffer Bruce Lehrmann is suing Ten and journalist Lisa Wilkinson over a February 2021 report on The Project during which fellow staffer Brittany Higgins claimed he raped her in a Parliament House office in 2019. Image:AAP/Bianca De Marchi

During the early 1990s, I once asked an experienced media adviser with whom I worked and admired what his thoughts were on the Australian Journalists Association (now the MEAA) Code of Ethics. His answer was that the code amounts to a point of departure in the way that journalists practise.

I understood he wasn’t saying they should be a point of departure but simply that, in his experience, they were. For context, he was associating daily with News Limited journalists under whose bylines stories appeared that were often laden with material errors and sometimes were simply fanciful, so what he was seeing, day in day out, were successive departures. When he would challenge a journalist on a mistake or falsehood, the journalist would agree with him but say something along the lines of the story was changed by a sub-editor. It was never the reporter’s fault. But it kept happening.

That reflection from 30 years ago sprung to mind when Justice Michael Lee was trying get his head around evidence he was hearing from Taylor Auerbach in a re-opened defamation case brought by Bruce Lehrmann against Network 10 and Lisa Wilkinson in relation to a report on The Project in February 2021. The report centred on former Liberal staffer Brittany Higgins’ allegation of being raped in March 2019 by an unnamed colleague in the office of the Defence Minister, Senator Linda Reynolds.

The colleague was not long after identified as Lehrmann, the applicant in the defamation action. He has consistently denied having sex with Ms Higgins and a 2022 rape trial charging him with that offence was aborted following juror misconduct.

In the process of hearing submissions from Network 10’s counsel Dr Matt Collins, Justice Lee explained that he was being asked to make an objective analysis of competing accounts of key witnesses who practise as journalists. As part of his judicial obligation to determine what was reasonable or not reasonable in the circumstances, he told counsel that he was being asked to make a values-laden judgement in a values vacuum. To fill the vacuum, he felt a need to resort to the wording of the first and fourth values embodied in the MEAA Code of Ethics. The first focused on the obligation of a professional journalist to “report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts”, and the fourth on a requirement not to “allow personal interest, belief, commitment, payment, gift or benefit, to undermine your accuracy, fairness or independence”.

Admitting he might be naïve, Justice Lee told counsel he couldn’t see why adhering to those values involved a level of difficulty, and pushed back against Dr Collins’ exasperation in trying to explain that the values in the journalist code are aspirational only and don’t oblige a professional journalist in the same way that codes of ethics in other professions oblige practitioners. He might have been thinking of lawyers who hold a practising certificate, and can be struck off as legal practitioners if they are found by their professional body to be in material violation of the code attaching to their certification. There are similar consequences for accountants and medical practitioners breaching their professional codes, for example, but no comparable penalties apply to a journalist falling foul of the aspirational MEAA code.

That said, in the election following the sacking of Prime Minister Whitlam by the Governor General in 1975, journalists at The Australian newspaper were so incensed at the stories they filed being changed to reflect negatively on Whitlam, that they organised a journalist strike. The owner of The Australian, Rupert Murdoch, had issued a memorandum to his editors to “Kill Whitlam” and so as dutiful and perhaps browbeaten employees, his editors complied with that directive. Apart from changing stories of reporters, an example of the directive in action focused on Whitlam’s Treasurer, Dr Jim Cairns, who had openly explained that he had a “special” relationship with his principal private secretary, Junie Morosi. In their keenness to characterise that relationship in the most unsavoury terms, a News Limited tabloid, The Daily Mirror, published a story that included a picture of Dr Cairns and Morosi having what looked like an intimate breakfast. What the picture did not show was that the third person at the breakfast was Cairns’ wife. No negative consequences flowed to the photographer or the editor from that or other stories that were in flagrant violation of the values in the AJA code of “honesty and fairness in disclosure of all essential facts”.

Mr Auerbach may well have had self-serving motives for coming forward to add information to the record in terms of a confidential police e-brief that had allegedly been given by Mr Lehrmann to certain parties at Network 7 and The Australian newspaper who had no right to have seen the material. If the facts were as Auerbach proposed in his eleventh-hour evidence, it was perhaps a rare case of a major media organisation being caught in the act of interfering in the administration of justice, potentially as a party to intimidate a key witness in Ms Higgins by attempting to dissuade her from giving evidence in the defamation action.

Time will tell how much weight Justice Lee will give to the Auerbach evidence but it’s safe to say it has given him cause to arrive at the view that professionals who work in Australia’s mainstream media largely operate in a values-free zone.

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