Ghosts Can’t Sue

The three-part investigation of the 1979 Luna Park Ghost Train fire by the ABC’s Exposed team reminded Jonathan Holmes of the time almost forty years ago when Four Corners took on NSW Premier Neville Wran. In this special article for ABC Alumni, Jonathan recalls the challenges to investigative journalism posed then, as now, by Australia’s defamation laws – and asks whether new amendments, which come into force in some states in July, will make any difference. Perhaps, he writes, they will. But don’t hold your breath.

By Jonathan Holmes / 2 May 2021

Caro Meldrum-Hanna and Patrick Begley’s three-part series on the 1979 Luna Park Ghost Train fire (Exposed series 2, ABC iview) is an extraordinary piece of work: beautifully shot, edited and put together (without the aid of narration), and awesomely researched. They seem to have persuaded just about everyone who is still alive and relevant to talk to them, and to have acquired an impressive portfolio of documents which have never before seen the light of day.

The crucial point, however, is that almost all of the numerous characters they point the finger at, from Detective Inspector Doug Knight to the then-premier of NSW, Neville Wran, with the odd crime boss, police commissioner and High Court judge thrown in along the way, are not still alive. If they were – if any of them were – the ABC’s lawyers would have been far more constrained in what they could have allowed the team to say, or even to hint at. But ghosts can’t sue.

It is not as though much of the information so formidably assembled by the Exposed team was utterly unknown to those who took an interest in the Ghost Train fire. Indeed, as the series made clear, the basic thesis that it proposes – that the fire was not an accident, but arson; that corrupt policemen deliberately covered up the evidence; that the instigator was the notorious ‘king of King’s Cross’, Abe Saffron, who had for decades lusted after the invaluable harbourside real estate on which Luna Park sat; and that, with help in high places, he was able to secure that control as a direct consequence of the fire – was contained in a collection of files and audio tapes put together over decades of obsessive sleuthing by maverick artist and cartoonist, Martin Sharp.

Plenty of investigative reporters in the 80s and 90s sat down with Sharp to try to see how this mountain of material might be used. But in the end, no reputable media organisation would touch it, until, after Saffron’s death, the Sydney Morning Herald’s Kate McClymont was able to tell some of the story.

Then, as now, the laws of defamation made it practically impossible to make allegations about living people, no matter how clearly in the public interest, unless you could prove their truth on the balance of probabilities – a bar that the courts have set very high indeed.

And you need to prove, not just the truth of what you actually say, but of the ‘imputations’ of what you say – and generally, it is the plaintiff who gets to decide what those imputations are.

For example, the third program in the Ghost Train series clearly alleges that the then-premier of New South Wales, Neville Wran, met socially with Abe Saffron on more than one occasion; and that a High Court judge, Lionel Murphy, and a solicitor who was known to act for Abe Saffron, Morgan Ryan, discussed in several tapped telephone conversations how Wran might be persuaded to back a bid for the burnt and shuttered Luna Park site by a company ultimately controlled by Saffron. As indeed transpired.

It would have been hard enough, in a defamation trial, to prove the truth of those allegations – especially as the telephone conversations were tapped by New South Wales police illegally, and both the tapes and the transcripts of them have long since been destroyed.  You can get a fair idea of the arguments the program would have faced by reading Troy Bramston’s  impassioned defence of Wran in The Australian (paywalled).

But there are more legal hurdles that the ABC would have had to surmount.  Neville Wran, if he had been alive, would surely have claimed that an imputation of the series, in other words one impression that an ordinary, reasonable viewer would have come away with, is that he knew of and condoned police corruption, that he knew of and endorsed the deliberate setting alight of the Ghost Train, and that he was therefore an accessory to murder.   If a judge had accepted that those imputations were conveyed the ABC’s goose would have been cooked. There is no way they could have proved their truth.  The damages would have been all but incalculable.

Lionel Murphy
Abe Saffron

Of course there’s an argument that if you haven’t the ammunition to make allegations against the living, you shouldn’t make them against the dead.   In some eyes – including those of former ABC managing director David Hill, whom Wran promoted from his political staff to head NSW State Rail – the allegations against Wran in part 3 of Exposed are not supported by nearly enough evidence to justify smearing a dead man’s name.  Hill has labeled the program ‘sloppy journalism’.  ‘I’m disappointed in the ABC for airing these allegations, comfortable in the knowledge that dead people aren’t there to defend themselves or sue for defamation,’ he has told The Australian (paywalled).

Four Corners and ‘The Big League’

Wran’s supporters were just as outraged by a Four Corners program that aired back in 1983, when I was its executive producer.

The program, which we called The Big League, gave rise to an unprecedented royal commission, in which New South Wales’s serving chief justice stood in judgment over – and finally exonerated – its serving premier. 

It also demonstrated how difficult the defamation laws make investigative journalism about living public figures, then and now. Chau Chak Wing is a recent winner. Ben Roberts-Smith and Christian Porter wait in the wings.

The Big League story concerned events that had allegedly occurred seven years earlier. Neville Wran was premier of New South Wales in 1977, and he was still premier in 1983 – the most formidable and longest serving Labor politician in the country. His reaction to the program’s revelations – just like Christian Porter’s in recent months – was to deny the allegations, scoff at the idea of an impartial inquiry, and sue the ABC for defamation. He was backed all the way by the newly-elected Prime Minister, Bob Hawke.

I had arrived in Sydney from London just a year earlier, knowing next to nothing about Australia, to run its premier current affairs program. I found myself in a city rife with rumours of corruption. Rogue policemen were running the heroin trade in King’s Cross, I was told. There were stories about paper bags full of cash being dropped off in politicians’ offices. But it was all scuttlebutt – nothing you could send a reporter to investigate with much hope of a result within a reasonable space of time.

In January of 1983, I invited a young reporter from the ABC’s rural department, Chris Masters, to join the Four Corners team. For his first program, he decided to tackle the parlous state of rugby league: shonky and suspect refereeing, falling attendances, maladministration at the top. His older brother Roy was at the time coaching the St George Dragons, so Chris knew a bit about the game. I teamed him with our most experienced producer, Peter Manning, who already had a reputation as a dogged investigative reporter.

An unexpected tip-off

Halfway through their research, Chris and Peter stumbled on to a huge story that was only marginally connected to the game of rugby league. Following up a tip-off from another well-known coach, they discovered that seven years earlier, in August 1977, the manager of the Balmain Leagues Club, Kevin Humphreys, who was also the President of the NSW Rugby League and Chairman of the ARL, had been prosecuted for fraud. Allegedly, he’d been using Balmain Leagues Club funds to pay off gambling debts.

The police believed they had a solid case. But at the committal hearing it was dismissed by the magistrate, Kevin Jones. There was not enough evidence to sustain a conviction, Jones declared, and that was that.

‘Talk to the magistrates’, the tipster told Chris and Peter. ‘You’ll find there was something very fishy about that case.’

And so they did. For weeks they pursued that story and a dozen others that popped up along the way. They dug and dug. They interviewed dozens of people off the record – including a senior magistrate, and the deputy chief magistrate, and the clerk of the magistrates’ court.

‘The premier is on the phone’

What they heard from these sources was simple enough. On the morning that the Humphreys case was due to be heard – 11 August 1977 – the chief magistrate, Murray Farquhar, was chatting to a group of his colleagues when his secretary came in, and told him, ‘The premier is on the phone’.

Within an hour, Farquhar had ordered his deputy to switch the case to Kevin Jones, a magistrate who was not, in Farquhar’s words, ‘a policeman’. ‘The premier doesn’t want Humphreys committed’, Farquhar told his deputy. Then Farquhar talked to Jones – who never spoke to Four Corners – and a troubled Jones consulted a colleague, a respected magistrate called Kevin Waller. Waller wouldn’t tell us what Jones had said. He did tell us what he had replied: ‘Stuff Wran. Just try the case on its merits.’

Jones subsequently dismissed the case, and Humphreys walked free.

That was the story we told, in the second half of The Big League (a program whose first part is long forgotten, although it brought about some major reforms in the game’s administration). We interviewed a retired judge who said that, if the chief magistrate had intervened as our sources claimed, and especially if he really was doing so at the behest of the premier, it was a clear case of perversion of the course of justice, a serious crime. We called for a judicial inquiry.

Our problem was that none of our three principal sources would appear on camera. They would not consent to be named. They would not sign a statutory declaration. They would not do anything but confirm, verbally or with initials, that Chris’s written notes of their conversations with him and Peter were correct. They did, however, promise that they would give evidence to a properly constituted court or inquiry.

I made matters worse, from our lawyers’ point of view, by insisting that for the story to be understood, we needed to re-enact the crucial scenes.

The lawyers, a QC and his experienced junior, pored over our script. It was clear that even if our sources confirmed everything in our story to a court, neither we nor they could prove that Wran actually made that call.

But the fact that many magistrates believed that the premier had intervened to secure Humphreys’ acquittal had been poisoning their own confidence in the justice system for seven years. It was, we thought, essential that we made clear that the person who Farquhar had claimed wanted the case dismissed was not ‘a cabinet minister’, or ‘a powerful government figure’, but the premier himself.

‘Reasonableness’ and Mr Wran

Neville Wran

Of course, the program was highly defamatory of Neville Wran. And we were unlikely to be able to prove the clear imputation that Wran had intervened in the case. But the lawyers believed that we could successfully use the defence of ‘qualified privilege’. It applies when the utterer of defamatory matter has a duty or interest in doing so, and the hearer has a reciprocal duty or interest in receiving the information. For example, a former employer who says uncomplimentary things about a prospective employee to the person who is thinking of hiring him would be covered by qualified privilege.

In theory, the defence might cover the publication to the general public of a matter of genuine public interest such as the Wran allegations. But to plead it successfully, the defendant needs to prove to the court that publication was ‘reasonable in the circumstances’.

Our lawyers worried that the court might not think the re-enactments ‘reasonable’. And they worried that we did not propose to approach Neville Wran’s office until just before publication. But we were terrified that Wran’s immediate reaction would be to seek an injunction against publication. If he succeeded, the story would be delayed for weeks, and perhaps forever. In either case, our chances of keeping it under wraps for that time were pretty near zero. But the courts, the lawyers warned, didn’t take a sympathetic view of the media’s desire to preserve the exclusivity of a scoop.

In those days the program aired on a Saturday evening. We alerted Wran’s office on the Wednesday (I think). Outlined the allegations, asked for an interview. We got instead an outraged denial, and a threat that if we published, Wran would sue.

Meanwhile the tape of the completed story was rising through the ABC hierarchy. The general manager of what was still then the Australian Broadcasting Commission, Keith Jennings, was a temporary appointment with no journalistic experience. Most unusually, he referred the decision to the chair, the formidable Dame Leonie Kramer. At my urging, the lawyers informed her that in their opinion the program, though highly defamatory, was defensible. Kramer consulted the two other Sydney-based ABC board directors – Laurie Short, who was president of the Federated Ironworkers Union and an ALP stalwart, and Ken Tribe, a lawyer and arts patron. On the Friday afternoon, they voted two to one for publication (of course, it was Short who voted against publication).

It could so easily have gone the other way. If David Hill had been ABC chairman then (as he became in 1986) or managing director (as he was from 1987 to 1995) it’s a fair bet the program would never have been aired.  To him, and to many other Wran admirers, the program remains an unpardonable transgression, a smear on the reputation of a great man.  The fact that the chief magistrate indubitably used the premier’s name to pervert the course of justice has never seemed to them to justify its publication.  

What is or is not in the public interest is seldom an uncontroversial issue.

Street Royal Commission

The program, predictably, caused a sensation. A furious Wran said he would not be standing down, that a defamation court would decide the truth of these ‘spurious’ allegations. But when magistrate Kevin Jones admitted to an internal inquiry that Murray Farquhar had indeed told him that morning that the premier wanted the case dismissed, and that this might well have influenced his judgment, the government had no choice. It announced a Royal Commission, to be led by none other than the sitting chief justice of New South Wales, Sir Laurence Street. And Wran stood aside from the premiership.

Sir Laurence Street

(Interestingly, no one back then argued that to hold an inquiry into an alleged crime, rather than referring it to the police, constituted an attack on our entire system of justice – an argument we have heard repeatedly in recent months.)

Our sources duly fronted up to the royal commission, and on the whole they told Sir Laurence the same story they had told us. But the terms of reference were narrow, and the Commissioner had clearly in view the need for a clear-cut decision. Shades of grey would not do. Any reasonable doubt about Wran’s role must lead to his exoneration.

And as it turned out, Neville Wran had a cast-iron alibi. On the morning that Kevin Waller told the royal commission that he had heard Farquhar’s secretary tell her boss that ‘the premier’ was on the phone, Wran was in a meeting with a string of the state’s top public servants. Only a formal inquiry could have elicited that sort of detail about the premier’s diary from seven years earlier. There is no way Four Corners could have obtained or verified it before we went to air. But Street concluded that the premier could not have made the phone call – not then, at any rate, and that’s when the witness said it took place. Farquhar and his secretary both denied that it had taken place at all.

The royal commission’s findings were suitably black and white.
Did Murray Farquhar attempt to pervert the course of justice? Answer: yes. Farquhar was subsequently tried, convicted, and jailed.
If so, did he do so at the behest of the premier? Answer: no. And Neville Wran resumed the premiership, a vindicated man.

There have been plenty of aspersions cast at the conduct of the royal commission. Most recently, Farquhar’s successor as chief magistrate, Clarrie Briese, has published a book called Corruption in High Places. Briese was the primary witness against High Court justice Lionel Murphy, who in the 1980s was accused of perverting the course of justice by trying to protect his ‘little mate’, Abe Saffron’s fixer Morgan Ryan. Murphy, Saffron and Ryan, of course, were three of the players named in Exposed’s revelations about the Ghost Train saga.

But Briese has a bit to say too about the Street royal commission. He reveals that on the day of the Humphreys committal hearing in August 1977, two police prosecutors saw Neville Wran waiting near Farquhar’s car in the court house car park, and subsequently in the court house itself.

When the royal commission was announced, those two policemen made a statement, which they expected their superiors to pass on to the commission. But they were never called to give evidence, and it’s unclear if their statement ever reached the commissioner.

Clarrie Briese told The Australian in March this year (paywalled) that the policemen’s evidence ‘would have had a significant effect – or let me say, should have had a significant effect’ on the commission’s findings.

Maybe it should have, but I doubt if in fact it would have. Wran’s presence in the court house that day suggests plenty, but in my view doesn’t prove anything, and only powerful proof would have persuaded Street to find that Wran was implicated.

Unreasonably Qualified Privilege

I doubt too, in hindsight, if the ABC would have succeeded with a qualified privilege defence in a defamation action. Sir Laurence Street, the chief justice, apparently did not expect it to. Clarrie Briese reveals that, before the Wran government agreed to a royal commission, Street called Briese, and told him that he thought Wran would win ‘a seven figure sum’ in damages from the ABC. Clearly, the mindset of the future royal commissioner was that the premier was innocent.

The matter was never tested, because after Wran’s exoneration, the ABC – under a new board and chairman, because by then it was the Australian Broadcasting Corporation – decided to settle. The terms are still secret, but we understood at the time that the ABC paid Wran’s costs, but no damages. No seven-figure sum.

But the fact is, judges almost never considered then, or consider now, that publication of defamatory allegations is ‘reasonable’. Again and again, in the intervening decades, the media has tried, and failed, to plead qualified privilege.

In 2005, the states and territories agreed on a unified defamation law, section 30 of which describes the qualified privilege defence. The defendant must prove that it reasonably believes that the person who receives the information (in the media’s case, the general public) has an interest in receiving it; and it retains the requirement that the defendant prove that publication was ‘reasonable in the circumstances’.

There follows a long list of matters which the court may ‘take into account’ when considering whether publication was reasonable – including, for example, whether the plaintiff was given the chance to respond to the matter, the integrity of the defendant’s sources, and ‘any other steps taken to verify the information in the matter published’.

Since that unified law was adopted, only once in any jurisdiction in Australia has a journalist – the ABC’s Steve Cannane – successfully pleaded the qualified privilege defence.  In that case, ironically, the judge found that all the defamatory imputations conveyed about the applicants in Cannane’s book about Scientology were substantially true, so the qualified privilege defence was incidental. (More on this case in part 2 of this series.)

But the whole purpose of the qualified privilege defence is to allow the publication of defamatory imputations about matters of real public interest, even if the publisher cannot prove they are true.  And not once, since 2006, has an Australian court found that such a publication was ‘reasonable in the circumstances’.

Possible Relief: A ‘Reasonable Belief’

So blatantly have the courts favoured the plaintiff, and disregarded the public’s interest in receiving information that cannot be proved but justifies formal investigation, that, after persistent lobbying by media organisations, academics, and lawyers themselves, the unified defamation law is in the process of being amended.

Among the amendments is a new ‘public interest’ defence (see p 8 of the NSW Act). Unlike qualified privilege, it’s clearly intended to apply to publication to the community at large. Indeed, the relevant background paper states that its aim is to ‘ensure defamation law does not place unreasonable limits on freedom of expression, particularly about matters of public interest.’

To succeed in a public interest defence, the defendant has to prove just two things:

  1. that the matter concerns an issue of public interest; and
  2. that the defendant reasonably believed that the publication of the matter was in the public interest.

On the face of it, it’s a major victory for free speech and a free press. There was a lengthy consultation process, drafts, discussion papers and the like. Right up until the end, the attorneys-general favoured a law modelled on New Zealand’s, which specifies that the defendant has to prove that publication was ‘responsible’. But the media organisations and their allies successfully argued that that wording would give every chance to the courts to find publication ‘irresponsible’, just as they have always found it, under the current law, to be ‘unreasonable’. It will, it’s hoped, be harder for the courts to find that a defendant’s belief that publication is in the public interest is ‘unreasonable’. But that’s far from certain.

After all, there is still the same – or almost the same – list of matters which the courts ‘may take into account’ in deciding what is ‘reasonable’. There are, admittedly, a few more concessions: for example, the possibility that sources’ identity might need to be withheld is acknowledged; and ‘the importance of freedom of expression in the publication of matters of public interest’ is specifically included in the list.

So it’s possible that the new defence will succeed occasionally, where the old one never did.

The Christian Porter Defamation Case

Potentially the most expensive, and undoubtedly the most politically charged defamation suit facing the ABC right now is, of course, that being brought against it and journalist Louise Milligan by the former attorney-general, Christian Porter. Unfortunately, there is no chance that the ABC will be able to resort to the public interest defence in that case.

New South Wales, which led the reform process, passed the amendments into law back in August last year. Victoria and South Australia have done so too. Queensland, Tasmania, the Northern Territory, the ACT, and Western Australia, so far, have not.

Tired of waiting, the three states which have passed amendment acts have declared that they will come into effect on 1 July this year.

But they will apply only to matters published after that date. The matters Porter is citing were published in February, and earlier.

In any case, the matter is to be tried in the federal court. Broadly speaking, the plaintiff can decide which state law they wish the court to apply. Christian Porter will almost certainly elect to have the matter tried under Western Australian law, since that is where his reputation is most important. And WA is showing no unseemly haste in introducing the promised amendments to its defamation act.

A minor miracle

Yet we should not complain too loudly. It is a minor miracle that we have got this far.

If a future scandal like the Ghost Train fire occurs, it might be possible, assuming the amendments have been enacted in every jurisdiction, for the media to investigate and publish what they find within weeks or months, rather than having to wait for forty years, until everyone implicated is as dead as the tragic victims of the disaster.

Meanwhile, it is not too late for the NSW coroner to revisit the inquest on the Ghost Train fire: Exposed made it clear beyond doubt that evidence that should have been presented to the first inquest was deliberately buried. It’s surely ‘reasonable’ to believe that the families of the victims deserve that much.

Next Time: Part 2 of this series will examine why the federal court has recently become the tribunal of choice for defamation plaintiffs, including the former attorney-general, Christian Porter.  Civil defendants cannot opt for trial by jury in the federal court.  The Commonwealth government has promised to change this.  So far, it has not.

Jonathan Holmes
Jonathan Holmes

Jonathan Holmes is a director of ABC Alumni Ltd and its Press Freedom spokesperson.

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