Justice Michael Lee has untangled the web of lies, obfuscation, political intrigue and bad journalism by two Australian television networks to arrive at a finding that Brittany Higgins was, on the balance of probabilities, raped by Bruce Lehrmann in the early hours of March 23rd, 2019. However, there was no finding of a political cover up.
All that’s left to quibble over is who pays for the defamation proceedings brought and lost by Bruce Lehrmann against Network Ten and its journalist, Lisa Wilkinson.
As has been commented upon by many journalists, few escape unscathed in Lee’s long judgment. Although not apparent from comments after the judgment by Lisa Wilkinson or Ten’s Lawyer, Justin Quill, the drubbing the Ten Network received by Justice Lee must surely hurt.
Successfully invoking the ‘substantial truth’ defence to defamation, Ten’s ‘The Project’ proved on the balance of probabilities that Bruce Lehrmann did rape Brittany Higgins. But, in a failure for journalism, Network Ten’s other defence of qualified privilege, which tested whether the program acted reasonably in publishing, failed.
It’s worth noting what Lee had to say about journalism and in particular, the sort of journalism practised by The Project. It could be the foreword in the Guide to Advocacy Journalism.
Justice Lee said Wilkinson should not be criticised for advocating for victims of sexual assault. But this advocacy informed her conduct as a journalist. She “associated herself with Ms Higgins and was willing to assist in the politicisation of Ms Higgins account of the rape which included an attempt by politicians and public servants to cover it up”. Ms Wilkinson, said Justice Lee, had “helped craft Ms Higgins’ responses: and was dismissive about anything which might be seen to constitute information contrary to what Ms Higgins said right up to the time of publication.”
“The fact she did allow this commitment to undermine her independence emerges clearly from the evidence.
“Of course, she was perfectly entitled to her view, but it is not redolent of the conduct of a highly experienced journalist dealing with facts, not instincts, and ensuring any belief or commitment did not undermine fairness or independence.”
Still, for both Wilkinson and Quill, a win is a win. Once the (probable) truth of the rape was proven, the reasonable behaviour that needed to be applied to the entire story, including allegations of a political cover up, became less important for the case. But this aspect of the story, found to be unsubstantiated, caused harm.
Justice Lee searched for a test of reasonableness in journalism, and looked to the MEAA Code of Ethics for help, particularly in determining whether the publisher was reporting and interpreting honestly, striving for accuracy, fairness, and disclosure of all essential facts; and/or not allowing any belief or commitment to undermine fairness or independence.
His conclusion? “…taking all relevant considerations into account, including the desirability of not allowing any belief to undermine fairness or independence, the conduct of Network Ten and Ms Wilkinson in publishing the matter in its character of conveying the defamatory imputations of rape fell short of the standard of reasonableness.”
Impartiality identified as independence is critical for Lee. And the requirement for it under MEAA Code of Ethics, to which The Project was not beholden as its staff were not members of the union, is clear. But impartiality in current affairs programs is not a requirement under the Commercial TV Industry Code of Practice, to which The Project team did have an obligation. The finding of truth in relation to the rape – even if only on the balance of probabilities – is surely a relief for Wilkinson and Ten. But it’s also a relief to have judicial recognition of what advocacy journalism looks like, and what harms it can inflict.
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Monica Attard, CMT Co-Director