GERARD HENDERSON’S MEDIA WATCH DOG

ISSUE – NO. 470

27 September 2019

* * * *

The inaugural issue of “Gerard Henderson’s Media Watch” was published in April 1988 – over a year before the first edition of the ABC TV Media Watch program went to air. Between November 1997 and October 2015 “Gerard Henderson’s Media Watch” was published as part of The Sydney Institute Quarterly. In March 2009 Gerard Henderson’s Media Watch Dog blog commenced publication.

* * * *

  • Stop Press – Everyone agrees on RN Breakfast; Margaret Throsby’s Boris Johnson rant

  • Editorial – 7:30 still off the pace

  • Can You Bear It? Tom Tilley fawns over Sir David Attenborough; News Breakfast on ‘Boris’; Scott Burchill gratuitous anti-Israel rant; Bonge on good journalism at The New Daily The New Daily’s Michael Pascoe on ‘Stunt Morrison’ and ‘Mad King Donald’; Bonge on the tyranny of democracy

  • New Feature: Good News – Tony Jones’ climate catastrophe that never was

  • Bad Media Joke of the Week – Kerry O’Brien, The Brothel, The Journo & his Piano

  • MWD Exclusive – Jackie chats to La Tingle about the 2019 election

  • An Australian Football Reflection – The Experts vs The Kiss of Death

  • Correspondence – Jack Waterford helps out in the matter of George Pell v The Queen

* * * *

  • EVERYONE ESSENTIALLY AGREES WITH EVERYONE ELSE ON RN BREAKFAST

ABC producers, not presenters, decide on who will be invited to the taxpayer funded public broadcaster’s panels.  The problem is that the ABC is a Conservative Free Zone without a conservative presenter, producer or editor for any of its prominent television, radio or online outlets. Hence the lack of conservatives on so many panels.

And so it came to pass that this morning’s ABC Radio National Breakfast’s political forum on Prime Minister Scott Morrison’s United States visit comprised two left of centre critics of the Coalition. Namely, The Guardian’s Lenore Taylor and News Corp’s Malcolm Farr.  And then there was The Conversation’s  Michelle Grattan who is not a leftist but is no conservative. Geraldine Doogue was in the presenter’s chair.

Consequently it was not surprising that on such issues as (i) Mr Morrison’s relationship with President Trump, (ii) China and (iii) Australia’s position on climate change, Lenore essentially agreed with Malcolm who essentially agreed with Michelle who essentially agreed with Lenore who essentially agreed with herself (in a leftist Guardian kind of way).

Of particular interest was the universal view that Mr Morrison’s visit to Ohio – which saw him caught up in a Donald Trump “Make America Great Again” moment – would have adverse political effects in Australia. Turn it up.  The fact is that most Australians do not give a stuff about what the Prime Minister did on his official visit to the United States – provided he didn’t steal the silverware or set fire to the Oval Office.

The problem with this morning’s political forum turned on the fact that it was of the media bubble, by the media bubble and for the media bubble. What was missing was a difference of opinion.

  • MARGARET THROSBY’S BORIS JOHNSON RANT

Did anyone hear the Journo’s Forum on ABC Radio Sydney 702 Drive with Richard Glover last evening?

Here’s what ABC Classic FM’s Margaret Throsby said about Britain’s prime minister Boris Johnson:

Margaret Throsby:  I just get a bit seasick when I think about Boris Johnson.  Because he sort of has a bet both ways. Was he going to be for Brexit?  Then he was furiously for Brexit, and now he is furiously –.  And he’s a funny sort of guy. I love watching him – he’s mad, he’s a nutbag.  And he should ask for the money back on the haircut, I think.

So there you have it.  According to Ms Throsby, Boris Johnson is both “mad” and a “nutbag”. This is what passes for commentary among ABC staff with respect to a political conservative.  Others might regard it as mere abuse.


EDITORIAL

7.30 STILL OFF THE PACE

No wonder ABC TV is bleeding viewers. Take last night’s 7.30, for example.  Presented by Ellen Fanning, it covered such worthy issues as (i) the possible release of Jock Palfreeman who has served 11 years for murder in a Bulgarian prison, (ii) Parkinson’s disease, (iii) the actor Deborah Mailman and (iv) the prospect of an AFL team being located in Tasmania.  Oh yes, there was also Mark Humphries’ contribution, which ABC feels the need to warn viewers in advance that there is, wait for it, satire.  Only the Palfreeman story was contemporary.

What was missing from the line-up was any national or international hard news and current affairs.  Nothing re Boris Johnson and Brexit and British politics. Nothing re Donald J. Trump and Ukraine and the 2020 United States presidential election.   Nothing re the wash-up of Scott Morrison’s visit to the United States. Nothing re China or Hong Kong or the likely outcome of the Israel election or Iran. Nothing even on tomorrow’s AFL Grand Final in Melbourne.

Under former managing director and editor-in-chief Michelle Guthrie, the ABC dropped 30 minutes from The World Today on its metropolitan radio stations and junked the ABC TV’s evening Lateline program. And under the new management of David Anderson, news and current affairs seems to be in the background as the public broadcaster gives greater emphasis to lifestyle/wellness matters.  Then there are the gestures such as the Mission to Bankstown which was discussed in last week’s MWD.  What the ABC needs is more focus on news and current affairs and the introduction of political plurality into the ABC’s Conservative Free Zone.


Can You Bear It

  • TOM TILLEY’S FAWNING INTERVIEW WITH SIR DAVID ATTENBOROUGH

On ABC TV’s Media Watch on Monday, presenter Paul Barry bagged Sky News’ Paul Murray’s four minute interview with President Donald Trump.  He said it contained a Dorothy Dixer question and avoided important issues.  However, your man Barry said nothing about Tom Tilley’s fawning ABC TV 7.30 interview with Sir David Attenborough on Tuesday 24 September 2019.

Here are a few of your man Tilley’s comments:

Tom Tilley:  What’s it like for you to connect so strongly with the younger generation?

Tom Tilley: When did you first go diving at the Great Barrier Reef? What did it look like then, and how much has it changed?

Tom Tilley: Our Prime Minister, in his former role as treasurer, brought a lump of coal into the Parliament. He said it was a joke, but a lot of people didn’t see it as very funny.

Tom Tilley: Young people have heard the message. Now, millions of students around the world – including here in Australia – are demanding leaders do more.

How about that?  MWD believes that these questions could well have been drafted by the late Ms Dix herself – if only she had existed. Can You Bear It?

  • NEWS BREAKFAST’S UNCORRECTED HOWLERS RE BORIS JOHNSON

Where’s Virginia Trioli when you need her?  If only to keep Michael Rowland, her one-time co-presenter on ABC TV News Breakfast, in order. Let’s go back to 4 June 2019 where the following announcement was made:

Michael Rowland: Can I make a public service announcement? I’ve done this on Twitter already – this will be probably the only breakfast show where there’ll be no “Albo” or “ScoMo” in terms of nicknames. It will be Mr Morrison, Mr Albanese. They are not FM radio hosts or people you play cricket or footy with. They’re the Prime Minister and the Opposition Leader and “Albo” and “ScoMo” will not tumble from our lips. Somebody has to make standards.

Virginia Trioli: Absolutely, Michael. We are not their friends. So, we don’t play buddy buddy with those monikers and those catchphrases either – so they’re the names that you’ll hear.

Quite right. Good show. And so on. MWD welcomes the announcement that nicknames for political leaders should be banned.   Now, let’s go to the transcript of News Breakfast this Wednesday when Danni Hunter (Victorian chief executive officer of the Urban Development Institute of Australia) did the “Newspapers” gig:

Danni Hunter: The first story today is obviously focused on Boris Johnson and the Supreme Court decision in England that the five-week prorogation of parliament was illegal. And they’ve called Boris back and taken back control – or they will take back control particularly from Boris Johnson and also from the Queen who had supported Boris Johnson in that effort as he went over to New York.

Michael Rowland: What does he do? One analyst in the UK was saying today he’s got two choices, one is to seek a delay of the deadline and he has staked so much political capital, you know, “die in a ditch”. It’s [Brexit’s] happening on October 31st, you’d think that would be politically unfeasible. The other option is for him to quit.

Danni Hunter: Quit and call an election. Which the opposition is demanding that he do. So, it’ll be very interesting between now and the end of October. We’re almost in October, it will very interesting to see how that shapes up.

Hang on.  So, it seems that “ScoMo” and “Albo” will not do when discussing Australia’s senior politicians.  But “Boris” is quite okay when referring to Britain’s prime minister Boris Johnson.  No doubt, La Trioli would have corrected this – but her replacement as News Breakfast co-presenter Lisa Millar said nothing.

And then there’s a question of facts. First up, the Queen did not support Boris Johnson. She simply did her duty as head of state in accepting the advice of the head of government to prorogue the Parliament. Moreover, contrary to Ms Hunter’s contention, the Labour Opposition in Britain is not “demanding” that Mr Johnson call an immediate election. Not at all.  In fact, Jeremy Corbyn and his Labour comrades voted against amending Britain’s Fixed-term Parliaments Act to make it possible for Boris Johnson to take the British people to an early election.

The big story on Wednesday was about the UK Supreme Court’s decision in R (on the application of Miller) v The Prime Minister in favour of the applicant.   Whereupon Danni Hunter declared that Mr Johnson should quit as prime minister and call an election.   The only problem here is that if he quits as prime minister, Boris Johnson cannot call an election.  And if Mr Johnson stays as prime minister he is prevented by a majority of the House of Commons from calling an election.  Mr Rowland and Ms Millar did not correct either howler.  Can You Bear It?

  • SCOTT BURCHILL’S GRATUITOUS ANTI-ISRAEL RANT

While on the topic of News Breakfast, wasn’t it great to see Scott Burchill – a scholar who has risen all the way to be a senior lecturer in something or other at Melbourne’s Deakin University – doing the “Newspapers” segment again on Tuesday?  Dressed, as usual, as if he was about to take a load to the local tip. Dr Burchill, for a doctor he is, managed to take a few gratuitous strikes at Israel and Australia.

First up, in a discussion on Australia’s concern about China’s treatment of its Uighur Muslim minority, your man Burchill wondered why Australia had not raised concerns about West Papua, Yemen and “the massacre of Gazans by the Israeli Defence Force over the past year or so”.

In fact, the situation on the Israel/Gaza border is not similar to anything occurring in China, West Papua or Yemen.  The land on Israel’s side of the Israel/Gaza border has been Israeli territory since the nation was formed, with the support of the United Nations, in 1948.  In short, it is not part of what some call the Occupied Territories.

It is estimated that around 250 Palestinians have been killed trying to break into Israel though the border fence.  The terrorist group Hamas is involved in the actions. The IDF is protecting Israelis and Israel’s land. That’s all.

Then Burchill sought to use Australia’s inability (so far) to have Malka Leifer, who is accused of historical child sexual abuse, extradited from Israel.  Let’s go to the transcript:

Scott Burchill: They’re trying to extradite her to face charges in the Victorian courts. This is an appalling delay of justice for her victims…They can’t seem to get an agreed psychiatric evaluation of the woman, and this is delaying the case. And now she’s going to apply for bail to try and get off whilst the new panel is put together, which must be devastating for Dassi Erlich and the other victims of her crimes. It’s a really appalling situation, and it just shows you how little influence the Australian government has over the Israeli judicial system. This is really a judicial scandal, justice delayed is justice denied and there’s nothing truer about this particular case, it’s really appalling.

It’s legitimate, and appropriate, to criticise the Israeli judicial system over its handling of the Leifer case. But this has nothing to do with either the Israeli or Australian government.   The fact is that the Morrison government cannot “influence the Israeli judicial system”. Nor can other Western nations.

Scott Burchill should know this.  But he used News Breakfast to criticise the Morrison Government concerning a matter over which Australia has no control.  Yet, neither of News Breakfast’s co-presenters, Michael Rowland nor Lisa Millar, demurred. Can You Bear It?

  • PAUL BONGIORNO ON HOW TO FIND GOOD JOURNALISM – AMONG THE RANTS OF THE NEW DAILY’S MICHAEL PASCOE

It was Post-Dinner Drinks Time on Monday, when Jackie’s (male) co-owner was activated by a Bonge tweet.  It was a message from The Saturday Paper’s Paul (“I used to share digs with Gerald Ridsdale but I don’t talk about it much”) Bongiorno concerning the quality of Australian journalism.

Paul Bongiorno (@PaulBongiorno)

23/9/19, 10:19 pm

Hey #Q&A good journalism is available in The New Daily, The Guardian Australia and The Saturday Paper. None main stream, none owned by Murdoch or the government.

How about that?  According to Bonge, good journalism can only be found in the leftist The Saturday Paper (which goes to print on Thursdays), the leftist The New Daily (which is only available online) and the leftist The Guardian Online (which is only available online).  None of which is owned by Rupert Murdoch or the Australian government. [Funny that.  Bonge seems to have forgotten that the ABC is owned by the government and he has lotsa leftist mates there. – MWD Editor.]

In any event, here’s an example of the “good journalism” that can be found in The New Daily. Step forward its deputy editor Michael Pascoe:

Michael Pascoe (@MichaelPascoe01)

25/9/19, 9:57 am

So Stunt Morrison drops his pants for Mad King Donald, pledges Australia’s allegiance to a lying maniac, needlessly piles on Trump’s China trade bashing to offend our most important partner – just in time for impeachment starting.
Someone give him the “I’m with stupid” t-shirt.

Sure it was Hangover Time on Wednesday morning. Even so, here was The New Daily’s contributing editor referring to Australia’s prime minister as “Stunt Morrison” and the United States president as “Mad King Donald”. This was preceded by a homophobic slur.  There was more verbal abuse as the United States president was described as a “lying maniac”.

Yet, according to Bonge, Comrade Pascoe and his fellow wage slaves at The New Daily offer “good journalism” all year round.  Can You Bear It?

[Er, no. Not really.  I note that The New Daily is backed by Industry Super Holdings.  I would be surprised if the workers, whose superannuation funds financially support The New Daily, approve of Michael Pascoe’s homophobic abuse.  And what do the likes of Eric Beecher and Bruce Guthrie – who are described as key executives of The New Daily – think about Michael Pascoe’s early morning contributions to the public debate? Especially since the duo frequently bewail the quality of journalism in Australia – MWD Editor.]

 

  • BONGE OPPOSES THE DICTATORSHIP OF THE MINORITY – BUT NOT THE MAJORITY

And what about the “good journalism” displayed by the wage slaves at Morry Schwartz’s The [Boring] Saturday Paper?  – MWD hears you cry.  Well, here’s a tweet put out by Paul Bongiorno at 10.39 pm (i.e. Post Dinner Drinks Time) on Tuesday.

Paul Bongiorno @PaulBongiorno

The ill conceived bull shit of the Brexit referendum must be discarded. It is a device that has no place in Westminster representative liberal democracy. It is the tool of tyranny where the majority overruns the minority. The beginning of tyranny.

10:39 PM Sep 24, 2019

So, there you have it.  Bonge reckons it’s a tyranny when a majority prevails over a minority in a Westminster democracy.  But not, apparently, when a minority prevails over a majority?  Can You Bear It?


NEW FEATURE

  • TONY JONES’ PREDICTION THAT SEA LEVEL INCREASES WILL BE 6 METRES HIGH AND RISING CONTESTED

Aware of the burden of this Vale of Tears – after The Fall and all that – MWD has decided to present avid readers with some Good News from time to time.  Here we go:

Jackie’s (male) co-owner was walking Jackie at Hang-Over Time yesterday morning when he heard, on ABC Radio National Breakfast, a report about the very latest Inter-governmental Panel on Climate Change on rising sea levels.  It went something like this:

In a best case scenario, global average sea levels could still rise by between 0.3-0.6 metres above current levels by 2100.

In a worst-case scenario if emissions continue to rise and we hit 2°C or more of warming, the sea level could rise between 0.61 metres to 1.1 metres by 2100. This is 10 centimetres higher than the IPCC’s assessment six years ago, based on changes in the melting rates of the Antarctic ice sheet.

What’s the good news here?  – MWD hears you cry. Well, it sure beats the catastrophic prediction of ABC TV presenter Tony Jones – delivered on 7 April 2009 – i.e. less than a week after April Fools’ Day. This is what your man Jones had to say on the ABC TV Lateline program that very night – when interviewing (then) Labor environment minister Peter Garrett – along with the response:

Tony Jones: Here is something that is new: the report of the Scientific Committee on Antarctic Research, its 23 nations contribute to this, on the impact of climate change in Antarctic. It will be released today. It says that in west Antarctica the attribution of ice lost to human-driven warming is now strong – and it warns that a number of climate influences could amplify this ice loss and accelerate future sea level rises. The most scary thing it says is the upper level of those rises in global sea level could be as much as six metres – six metres – by the end of the century.

Peter Garrett: Look, I haven’t seen that report yet, Tony. But I don’t think there’s any doubt those kinds of projections and scenarios are consistent with what the Inter-governmental Panel on Climate Change [IPCC] brought forward over the last couple of years. And as more scientists do more work on potential climate change impacts, we’re likely to be presented with these kinds of scenarios. Now, I have to say, I haven’t seen this specific report yet, but the fact is that we’re now entering a period where we are in a position to observe, particularly in the Antarctic, the consequences of global warming and climate change.

 

The Jones/Garrett exchange of a decade ago caused fear across the land – as those with native title over Uluru wondered what the rock would look like surrounded by ocean. It was the start of what has been diagnosed subsequently as eco-anxiety.  It’s a condition born of eco-catastrophism.

However, a decade later, we learn that – at worst – ocean levels could increase by 1.1 metre by 2100. Which is a long way south of Tony Jones’ 6 metre assertion made just a decade ago.

Fortunately, Comrade Jones posed for MWD last night – celebrating the Good News and drinking to the fact that he will no longer have to carry around his 6-metre water measuring gauge.  Not until the end of the 21st Century, at least.


KERRY O’BRIEN, THE BROTHEL, THE JOURNO AND HIS PIANO

How old is the joke about the bloke playing the piano in a brothel?  Half a century?  A full century? MWD recalls the British journalist Malcolm Muggeridge (1903-1990) referring to the saying in the 1960s.

In any event, in a rambling performance on Q&A last Monday, the Byron Bay-based former ABC TV presenter Kerry O’Brien initially responded as follows to a question from presenter Terry Jones suggesting that journalists have ignored or failed to confront fake news.

Kerry O’Brien: But when I first came into journalism, I can remember jokes about journalists being down the bottom of the pile. And I can remember the joke about the two guys at the bar. And one says, “What do you do?” And the bloke says, “Oh, well, I’m a travelling salesman.” And the guy says, “And – and what do you do?” And the bloke says, “Well, look, my wife’s coming here in a moment, so I’d rather you don’t let on what I’m telling you, but – but I’m a journalist. But my wife – my wife thinks I play piano in a brothel…”.

Groan. What a long way of saying that journalists are not well regarded in the general community.  Especially since the piano-in-the-brothel joke is so old that it has heritage listing.  MWD hears that next time Red Kerry appears on Q&A he will tell the joke about what Methuselah said to the bar-maid about sex with a 969 year old patriarch.


JACKIE TALKS TO LA TINGLE ABOUT THE 2019 ELECTION AND ALL THAT

Like John Howard, Jackie’s (male) co-owner no longer automatically watches ABC TV’s nightly news and current affairs programs – since they don’t contain as much news and current affairs as was once the case.  So, lotsa thanks to the avid reader who drew MWD’s attention to Laura Tingle’s report on 7.30 on Thursday 19 September 2019.  The ABC’s transcript of the segment was titled “Has Labor learnt any lessons from its bruising election loss?”

Here’s how 7.30’s political correspondent concluded her report –  which covered Labor’s (i) leadership, (ii) policy platform and (iii) campaign.

Laura Tingle:  Looking back at 2019, Labor faces the reality that it ultimately failed on all three counts and, if it is honest, it now has to confront not just a review of its policies but whether it can position Anthony Albanese as that inspiring leader with a clearly articulated policy position and a formidable campaigning team.

What was lacking in this analysis was any recognition that the media in general and the Canberra Press Gallery in particular also failed – in that most journalists tipped a Labor win under Bill Shorten’s leadership.  Despite Labor’s leadership, policy platform and campaign.

In fact, Laura Tingle was among the worst of the media pundits – telling 7.30 viewers on Wednesday 15 May, three days before the election, that the Coalition “will not be in a position to form a government” after 18 May. Not “may not”, or “might not” – but “will not”.  On Thursday 16 May Laura Tingle even predicted that the Coalition would lose Cowper in Northern NSW to Independent Rob (“My short speeches are only 17 minutes long”) Oakeshott.  In fact, the seat was comfortably retained by the Coalition.

In the wake (and for many journos and others it was a real wake) of the 2019 election, MWD obtained an “exclusive”. Namely, “The Canberra Press Gallery’s Fulsome Apology For Last Saturday – As Told to Jackie” – see here.  Among other things, the blokes and sheilas of the Canberra Press Gallery apologised for its (almost collective) view that because Scott Morrison eats pies, drinks beer and is a believing Christian he was totally out of touch with Australians and would lose the election.

That was a collective statement. This week one of the key players in the Canberra Press Gallery – who works for both the ABC and Nine newspapers – agreed to give an exclusive sit-down interview with Jackie about 18 May and all that.  Apparently the journalist in question sought cathartic relief after accepting having been in denial since signing the “Fulsome Apology” of recent memory.  Here we go. The transcript of the interview is to be headed “Has the Press Gallery learnt any lessons from Labor’s bruising election loss?”

Jackie: How come you and your comrades in the Press Gallery got the 2019 election result so wrong?

La Tingle: Well, I accept full responsibility for telling 7.30 viewers that Labor “will win” – now that I know it didn’t.  Full responsibility. The truth is that I asked Niki Savva and she told me that only Malcolm Turnbull could lead the Liberal Party to victory. And Mal (as we liked to call him) lost the leadership to that Happy Clappy bloke named, er, ScoMo.  So I followed Niki in believing that the Coalition could not win without Mal.

Jackie:  Okay. But didn’t Ms Savva ’fess up in her book Reflections of a Conservative Leftie that, as a journalist, on occasions she lied through her teeth. Perhaps she was misleading you so as to get more gigs than you on the Insiders couch – once it was evident that your election prophecy was of the Bob Ellis kind.

La Tingle:  I doubt it. No – Niki and I are besties.  She genuinely believed that no incumbent Liberal Party prime minister should ever be rolled – except if their name is Tony Abbott.  And, as I said, she believed that only Mal could defeat Bill Shorten.

Jackie:  But Mr Turnbull lost 14 seats in 2016.

La Tingle:  Yes, But that was then. By 2018 it was clear that only Mal could overcome the Liberal Party’s women problem.

Jackie: But weren’t there any women voters in the 14 seats that Mr Turnbull lost in 2016?

La Tingle:  Next question.

Jackie: What about your prediction that Rob Oakeshott would win the NSW seat of Cowper as an Independent?

La Tingle: I accept full responsibility for this. You see Paul Bongiorno told me that the electors of Cowper were so grateful that Rob Oakeshott – with a little help from Tony Windsor – kept Tony Abbott out of office in 2010 that they would vote for him. It was a case of supporting the man who delayed the Abbott clerical fascist dictatorship for three years. According to Bonge, at any rate.

Jackie: Did you underestimate Prime Minister Scott Morrison?

La Tingle:  Perhaps a bit – for which I take full responsibility. You see Malcolm Farr – one of the few lefties on News Corp’s payroll – told me that the Australian electorate would never accept as prime minister a Christian fundamentalist who eats pies and wears caps.  I could see where Comrade Farr was coming from. You know, someone who believes in miracles but not in same sex marriage.  My god – this is not what God stands for today.  I now recognise that the 21st Century God failed to pass on this message to the good people of Northern Tasmania, Western Sydney and Queensland in May 2019.  But that’s not my fault – even though I take full responsibility for –

Jackie: – Finally, I note that virtually everyone at the ABC predicted a Labor victory.  Why would this be the case?

La Tingle:  Well, I can’t talk for others.  But I do take full responsibility for failing to recognise that so many of our sisters and brothers in the suburbs and the regions are as thick as two planks – thick enough to vote for coal-loving ScoMo and the Coal-ition. Get it?  I now concede that Leigh [Sales], Andrew [Probyn], Fran [Kelly], Tony [Jones] and myself at the ABC should have spent more time “learning” them.  You know, telling them “the truth”.  That if the country was not going to have Mal – then it had to be Labor.  But we didn’t get the message across that ScoMo and his team were hopeless.  My fault, in part, I regret to say.

Jackie:   So you could have done more?

La Tingle: Sure – for which I take full responsibility.  I didn’t realise how many suburban and regional types wanted to be employed in mines and heavy industry, were worried about their energy bills, were proud of their faith and didn’t like being taxed.  However, it’s not my fault that fools are fools who are happy to be governed by clowns. We must work harder next time.

Jackie: Thanks for giving so generously of your time.

La Tingle: The pleasure was mine. It was great to have the opportunity to concede that my election prediction wasn’t totally without merit.  The real problem was that the teeming masses voted for the wrong party.  If they hadn’t been so stupid, then I would have been right. Right?

Jackie:  One quick one.  Has the Gallery learnt any lessons from getting the 2019 result so wrong?

La Tingle:  Look at it this way. If Labor and Bill Shorten were not so hopeless – my prophecy would have been right-on.  The same applies to my Canberra Press Gallery comrades. By the way, thanks for the opportunity to download. I feel better now.


AN AUSTRALIAN FOOTBALL REFLECTION

MELBOURNE MEDIA’S HOPELESS FOOTBALL TIPS – EXCEPT FOR “KISS OF DEATH”

On AFL Grand Final eve, around Gin & Tonic time, Hendo usually examines the tips in Melbourne’s The Age and Herald-Sun to get a heads-up on which team might win on Saturday.  But not this afternoon.

Why? Well, what’s the point?  Last Saturday evening, Greater Western Sydney prevailed over Collingwood in the second preliminary final to earn the right to play Richmond in the grand final tomorrow. So how did what The Age terms the “Experts Tips” go?

Alas, no good.  12 out of 12 Age experts picked Collingwood to defeat GWS – a failure rate of a mere 100 per cent. The Age’s “experts” included the literary ex-footballer Bob Murray and Caroline (“I used to want to sack Richmond’s coach Damien Hardwick but not anymore”) Wilson.

Meanwhile the Herald-Sun did better – with a failure rate of only 96.67 per cent.   29 out of 30 Herald-Sun “experts” picked Collingwood to win – including the likes of Gerard Whateley, Sarah Jones and Mark Robinson. The only one who called the result was the anonymous Kiss of Death. Here’s how Kiss of Death presents:

Enough said.


This overwhelmingly popular segment of Media Watch Dog usually works like this. Someone or other thinks it would be a you-beaut idea to write to Gerard Henderson about something or other. And Hendo, being a courteous and well-brought up kind of guy, replies. Then, hey presto, the correspondence was published in MWD – much to the delight of its avid readers.

There are occasions, however, when Jackie’s (male) co-owner decides to write a polite note to someone or other – who, in turn, believes that a reply is in order. Publication in MWD invariably follows. There are, alas, some occasions where Hendo sends a polite missive but does not receive the courtesy of a reply. Nevertheless, publication of this one-sided correspondence still takes place. For the record – and in the public interest, of course.

On 20 June 2019, ABC TV’s 7.30’s executive producer Justin Stevens wrote to Hendo and stated – with evident irony – “you have a habit of publishing private email correspondence like this”. Quite so – and so it came to pass that his emails were published in Issues 455 and 456.  For his part, Jackie’s (male) co-owner reckons it’s a bit much for journalists who spend a large part of their professional life receiving leaked information – including private correspondence – to lecture others about good manners with respect to the handling of private correspondence.

As MWD readers are aware, The Guardian Australia’s deputy editor Katharine Murphy put out the following tweet on 6 June 2014 at 4.33 pm – when that issue of MWD was “hot off the press”. Here is Ms Murphy’s tweet: “Without in any way wanting to breach anyone’s human rights or free speech – why do people write emails to Gerard Henderson?” It’s a very good question. Thankfully, not everyone follows Katharine Murphy’s wise counsel – not even, on occasions, Ms Murphy herself (See MWD Issue 297).

GERARD HENDERSON AND JACK WATERFORD

In recent weeks, MWD has carried articles titled “MWD v Jack Waterford” (Issue 467) and “MWD v Tim Soutphommasane (Issue 468) following articles they wrote concerning the Victorian Court of Appeal decision in George Pell v  The Queen. Dr Soutphommasane did not respond to MWD’s critique. However, Mr Waterford did.  Now read on:

Jack Waterford to Gerard Henderson – 17 September 2019

Dear Gerard,

I was off in Central Australia during your denunciations so am only now responding. I hear this afternoon that Pell has lodged his application for special leave, so, presumably, we should know soon the outcome.

I may be a bush lawyer, as you say, but I am a lawyer, and I have reported closely on the High Court since 1979. Four of these involved being at the court every day, including during the special leave matters. To this day, I read most of the court’s judgments, and the special leave papers. I think I can modestly say that I know well both the statutory basis of special leave, which as my article said, turned on important new issues of law, or the resolution of significant divergences in approach to matters of law between courts.

I do not want to overstate any qualifications I have to comment on matters legal or High Court, but you might note that I was invited by Michael Coper, Tony Blackshield and George Williams to contribute a number of articles to The Oxford Companion to the High Court of Australia, one of which involves discussion of special leave. I also contributed a chapter to a scholarly book on the Mason Court, and have participated in any number of legal conferences on the work of the court, alongside, I guess, at least a dozen High Court judges over the years, including at least four Chief Justices. I have also been a litigant in the court, albeit one who lost three (Mason, Brennan and Wilson) to two (Deane and Dawson).

It is true, as I wrote in the piece to which you objected, that judges still allow the possibility that special leave can be granted if there is significant doubt as to the facts in a verdict (or for any other reason at all), but, I have not seen that discretion exercised really since when, in Chamberlain, more than 30 years ago, a majority of the judges refused to intervene on such a ground. As I commented, it emerged that Lindy Chamberlain was innocent, but that did not lead to any significant retreat by the court on the principle that third-tier appeals were restricted to matters of law only.

On a number of cases where the verdict on the facts “troubled” one or more judges, the court seems to have preferred making a few heavy-handed comments about their concerns, along with the giving of some advice to appellants about the scope for asking for an inquiry if significant new facts emerge, or where there is a present (and previously unlitigated) reason to doubt some of the foundations of a case. See for example Eastman, or the High Court decision in the (Witness X) case (Gobbo), the latter now the subject of a Royal Commission.

One of the considerations in the Pell matter that is not getting enough commentary is the reverence that judges tend to display (or affect) for jury verdicts. Outside the court, many judges are as cynical about the capacity of juries to get things right as anyone else, but in court they see the jury tradition as being of both the invisible and visible constitution, and as an element uniting the judicial system with (what they now regard as) the ultimate font of their power: the people. Cue in any amount of British judicial history in which juries rejected virtual directions from Kings, judges or parliaments, and phrases about ultimate defences against tyranny by the executive and so on.

But jury trials are slow and very expensive, and some people (particularly on the prosecution side) think that too many of their verdicts are perverse: ie that they acquit too often. Few complain that they convict too often, although that obvious happens too. The “right” to trial by jury has been progressively diminished over the past hundred years, primarily by putting more and more matters within the jurisdiction of magistrates’ courts, where there was never a jury. Old felony/misdemeanour distinctions are slipping away, and, with them, some civil rights.

In addition, in all states but Victoria, have legislated to permit trial by judges alone even in serious felonies (eg murder) if (depending on the state or territory), one or the other, or both sides agree). Oddly, this has tended to lead to an acquittal rate often higher than juries, is rarely quicker or cheaper, and, often, there are interminable delays (sometimes into years) while we await written judgments. But judge-alone verdicts have the advantage of written consideration of the facts as well as the law, providing great fodder (in the event of a guilty verdict for close parsing an analysis of every sentence in search of some misreading of the evidence capable of being called a mistake of law.

If it can be shown that a judge’s directions to a jury were wrong in law, a court will be quick to order a fresh trial with a properly instructed jury, or, if they consider the prosecution case weak, will order a quashing of the verdict, operating as an acquittal. But Pell’s case was, as I pointed out, one in which there was no issue taken with the judge’s summing up, or directions during the trial.

In such a case, as the majority judges said (and I quoted) the function of a first instance court of appeal was to examine whether there was, in fact and law, evidence capable of satisfying the jury that Pell was guilty. It was not the function of the appeal court to consider the evidence and hand down the verdict they might themselves have come to, unless they were satisfied either that, as a matter of law, there was something insufficient about the totality of the evidence (for example, as to the existence of some necessary element of the offence) or that there was some gap in the chain of evidence which meant that no jury could have been satisfied as to guilt.The majority judges did just such an examination. Like the jury, they have heard all of the arguments by Robert Richter, and the gloss on them provided by Brett Mason [sic] (two of Australia’s finest advocates). We cannot (and, apparently, should not) know just what the jury thought, but the majority judges went through the points made on behalf of Pell carefully over many pages. They found that while many of these points were arguments that could have been made, they did not amount to an insuperable barrier to a path leading to a guilty verdict. They took the right approach to their duty.

They did not substitute their verdict, but found that the jury was, on the facts, capable of coming to the conclusion it had. If you read Professor Gans, you will find that he confirms this notion of the duty of the judge, even if he does not entirely agree with the law. (It is true that he is also critical of the majority view, but that is not on that account).

Incidentally, the views of Professor Finnis, who is much more a philosopher than lawyer, add very little to any argument that would get much traction in the High Court. Nor do they convince me that the approach of the majority judges, who plainly accept the prosecution (though they did not necessarily need to do so to affirm the verdict) was wrong. I suspect that behind the thicket of the prose of Finnis is the familiar argument that seems to beset most of the critics of the case: Pell is a good chap, and I cannot believe he is guilty. I am the more certain of this, like Greg Craven because I have been a recipient of his patronage. Anything that tends to suggest he was must therefore he discounted.

You criticised me for saying that most of the criticism was rehashed Richter, suggesting instead that people such as yourself (who apparently always had an open mind on the subject) were convinced not by Richter, but by Weinberg. But Weinberg’s argument is pure Richter (or glossed Richter, per Mason [sic]). Weinberg did not introduce any fresh arguments, or material in favour of the proposition that there was insufficient evidence to convict Pell, or, perhaps, that he himself had a “doubt” as to whether the verdict was the correct one. Weinberg put his argument with great conviction and passion, and I am not surprised that it comforts those discomforted by the verdict. But, as any number of High Court judges, and as Gans, said, he did not use the right legal test. You have criticised my comment that he seemed to think himself the 13th juror – but that is exactly what he seemed to do.

Weinberg did not (in my opinion could not) conclude that what he saw as the inadequacy of the case meant that, as a matter of law, the verdict was unsustainable, or was so cock-eyed that it was simply irrational or completely against the weight of the believable evidence. That could be a special leave point, could not pass measure.

The proposition was perhaps put better in an article written entirely independently of me by my colleague Crispin Hull, also a lawyer who has been commenting on High Court cases from close up for decades:

[Here Jack Waterford quoted an article by Crispin Hill, titled “Court Out: The Trouble with juries”, which was published in The Canberra Times on 31 August 2019.]

You seem to lean very hard on the idea that Pell has been convicted on uncorroborated evidence. Actually, a good deal of the evidence, e.g. about the robing room, where the wine was, (which was different then than now), etc was capable of being corroborative. But so too was the evidence of Pell himself. He did not get in the box (which was in one sense wise, because, innocent or guilty, George would have been a terrible witness, because of his public empathy problem, but also problematic). Pell’s evidence – unequivocal denials but with demeanour – came from the video-record of [the Victoria Police] interview, and would have been considered by the jury. In the circumstances, to have found him guilty, they definitely found him to be a liar.

In a day long gone, I was an altar boy, indeed I sometimes served several masses (in Latin) a day. I could not help recalling, as I heard dogmatic assertions of the impossibility of pulling out one’s old fellow while in full vestments, alb, chasuble, cincture and all, that several priests of my acquaintance, would nearly always go to a urinal after vesting but before leaving the sacristy. Probably because of the prostates, I guess. There was not a hint of indecent exposure, to me or anyone else. Tis a small thing perhaps, but it inclined me to some cynicism about some of the “impossibility” argument.

There are an amazing number of commentators who seem to be astonished that a person can be convicted of a crime on one person’s evidence alone. It is amazing that this concern has seemed to surface only in the Pell case, because it has been happening for years in rape and other sexual abuse cases. Not entirely without corroboration, for information about prior or later events, about the locale etc can be (was here) corroboration, but certainly in he-said, she-said cases where only one witness can be believed.

The presumption is stacked heavily against a victim – because a juror has, in effect, to positively believe the victim and to positively disbelieve the accused; any reasonable doubt works to the advantage of the accused, as a jury will be told over and over.  In advocacy and discussion about this, defence counsel is able to warn jurors of the risk of malicious allegations, and the fact that have been such allegations in particular cases.

Nonetheless, juries can decide that a witness, particularly one who has been cross-examined uphill and down dale as this witness was, is a witness of undoubted truth. Given that sexual assault is generally crime committed without independent witnesses, it would be almost impossible to have sexual offence laws otherwise.

Your statement that my column was replete with legal or factual errors is wrong. I fancy rather that the incapacity to look at the case with detachment is all your own. You seize on slight points and ignore the big ones. Just what does it mean, for example, when two appeal judges, with access to all of the material before the jury, entertained no doubt about the verdict?. An anti-papist conspiracy, I suppose.

My reference to the resources available to and used by the defence was not a sneer, but a comment that Pell’s case did not fail for want of quality of legal argument, or lack of access to opportunities to put his case.

I have no objection to having people disagree with me, or to being subjected to critical scrutiny. I have to say that my withers are entirely unwrung by your analyses. But, by all means continue on your lonely crusade. As ever, I am somewhat bemused by the way in which the League of George Pell supporters, now or in the past, see themselves (and George) as persecuted folk kicking against the pricks. Whatever Pell’s virtues, I have never been able to see him as the martyr that his current champions think.

Jack Waterford

Gerard Henderson to Jack Waterford, 27 September 2019

Dear Jack

I refer to your email of 17 September 2019 following your return from Central Australia concerning my article titled “A Bush Lawyer Examined: MWD v Jack Waterford” which appeared in Media Watch Dog Issue Issue 467 (6 September 2019).  By the way, your two references to Brett “Mason” should be Brett Walker S.C. – whom, as you know, appeared for the applicant along with Ruth Shann in George Pell v The Queen.

I note, initially, that – towards the end of your email – you refer to the “League of George Pell Supporters”. This is a sneer – not an argument – which diverts attention from the fact that you are a long-time Pell antagonist.

My responses are as follows:

▪ I accept that you have an LLB – but this does not necessarily absolve you of being a Bush Lawyer in the public debate. By the way, you seem somewhat sensitive on this issue.  You describe yourself as a “lawyer” but I am not aware that you have ever practiced law.

▪ You have conveniently avoided my reference to major howlers in your Canberra Times article titled “High Court should leave Pell alone” of 24 August 2019.  You provide no evidence that (i) “Pell apologists have merely been parroting the defence summing up” by Robert Richter QC, (ii) or that there is such a jury verdict as “demonstrably cockeyed”, (iii) or that a “defendant would almost have certainly have failed to get a hearing” if he/she was not “well-heeled” as George Pell, (iv) or that “some…would deny Pell’s guilt even if there were 1000 witnesses” (as you know, there was no independent witnesses or forensic or other objective evidence – so this comment is meaningless).  All these statements were either false or exaggerated – or both.

And then there is your claim that Pell’s arguments have been “rejected by three judges and a jury”.  In fact, the trial judge, Chief Judge Peter Kidd, make it clear that it was not his role to second guess the jury – in other words, he did not express any comment about the verdict brought down by the jury.  It is both false and misleading for you to assert that the Chief Judge “rejected” Pell’s arguments.

When I studied criminal law, we were taught that judges were obliged to accept jury verdicts. Even if you missed the occasional lecture, you would know this if you read carefully Chief Judge Peter Kidd’s sentencing comments in The Queen v George Pell.

▪ Unlike you, I am not in the business of telling the High Court what it “should” do.

▪ You seem to be hostile to anyone who disagrees with the unanimous verdict of the jury in the second trial of The Queen v George Pell after the first jury could not reach a unanimous or majority (11 to 1) decision. However, as I recall, you never accepted the verdict of the ACT jury in the first David Eastman murder trial.  Your position was always that, in the Eastman Case, there was a reasonable doubt about his guilt.  So according to you, it’s okay to question a jury verdict with respect to Eastman but not with respect to Pell. A double standard, to be sure.

▪ Once again, you show signs of emoting when discussing the Pell case. You claim that anyone who is not convinced by the majority decision in George Pell v The Queen believes that an “anti-papist conspiracy” is afoot.  This is undocumented hyperbole.  As you know, some of Pell’s critics are Catholics and ex-Catholics while some of his supporters are non-Catholics and atheists.

You assert that “most of the critics” of the majority judgement hold the following view: Pell is a good chap, and I cannot believe he is guilty. I am the more certain of this, like Greg Craven because I have been a recipient of his patronage. Anything that tends to suggest he was [guilty] must therefore he discounted.  The statement is just a figment of your fertile imagination.

Those who disagree with the majority judgment include Justice Mark Weinberg (who has no connection with Pell or the Catholic Church) and Fr Frank Brennan S.J. (who, over the years, has been in disagreement with Pell on a number of theological and administrative matters).  Neither has been a recipient of Pell’s “patronage” – whatever that might mean.  You should be able to do better than this.

As far as I am concerned, Chief Justice Anne Ferguson, President Chris Maxwell and Justice Mark Weinberg all did their duty as required by law as they perceived it.  It’s just that they came to a different decision by two to one.  Your suggestion that Justice Weinberg regarded himself as the “13th juror” is mere abuse.  The fact is that Justice Weinberg is a highly experienced jurist who fully understands the role of judges in appeal cases.

▪ In your final paragraph you wrote:

I have no objection to having people disagree with me, or to being subjected to critical scrutiny. I have to say that my withers are entirely unwrung by your analyses. But, by all means continue on your lonely crusade. As ever, I am somewhat bemused by the way in which the League of George Pell supporters, now or in the past, see themselves (and George) as persecuted folk kicking against the pricks. Whatever Pell’s virtues, I have never been able to see him as the martyr that his current champions think.

Once again, this is mere hyperbole from a long-time Pell antagonist. For one, I have never considered myself persecuted.  However, Paul Collins – who is no fan of Pell – has drawn attention to the strain of anti-Catholic sectarianism which has been a fact of Australian life since European settlement in 1788.  For example, writing in The National Catholic Reporter on 4 March 2019, Collins commented:

There is seething anger within the wider Australian community, much of it fanned by social media, about sexual abuse and church cover-ups. Following Pell’s conviction this has exploded. “Catholicism” is now a dirty word in Australia, and as in most Anglophone countries there’s deep-seated sectarian bigotry against Catholics which surfaces in times like these.

In fact, this “seething anger” was a reality before Pell’s second trial – due to the decade long hostility to him in sections of the Australian media (including Fairfax Media when you worked for it) in addition to social media.  In view of this, it is impossible to dismiss the suggestion that the jury was not affected by what is termed “unconscious bias” – in spite of the direction of the trial judge that jurors should disregard any existing prejudices.  Unconscious bias is said to have affected, among others, officers of the Treasury Department with respect to the employment and promotion of women. So, how can such unconscious bias be ruled out in jury cases? – especially these days when jurors’ phones are not taken away from them and, despite judicial directions, they can readily access both the mainstream media and social media back many years.

As I pointed out in MWD, in your Canberra Times article you did not mention that Victoria is the only mainland state which does not allow for trial by judge alone.  If George Pell had been tried by Justice Mark Weinberg (one of Australia’s most experienced criminal jurists) he would not have been found guilty beyond reasonable doubt.  The same may have been the case if Pell had been tried by members of the County Court or the Supreme Court.

▪ In conclusion I note that, early in your email of 13 September 2019, you made the following claim:

It is true, as I wrote in the piece to which you objected, that judges still allow the possibility that special leave can be granted if there is significant doubt as to the facts in a verdict (or for any other reason at all), but, I have not seen that discretion exercised really since when, in Chamberlain [the Chamberlain Case], more than 30 years ago, a majority of the judges refused to intervene on such a ground. As I commented, it emerged that Lindy Chamberlain was innocent, but that did not lead to any significant retreat by the court on the principle that third-tier appeals were restricted to matters of law only.

On a number of cases where the verdict on the facts “troubled” one or more judges, the court seems to have preferred making a few heavy-handed comments about their concerns, along with the giving of some advice to appellants about the scope for asking for an inquiry if significant new facts emerge, or where there is a present (and previously unlitigated) reason to doubt some of the foundations of a case. See for example Eastman, or The High Court decision in the (Witness X) case (Gobbo), the latter now the subject of a Royal Commission.

If you have read the transcript of proceedings on 11 September 2019 of the High Court decision in Steven Mark John Fennell v The Queen you will be aware that – contrary to your theory – the High Court did look at the Crown’s case and did not focus on matters of law alone.

* * * * *

I await with interest the outcome of Pell’s application of leave to appeal to the High Court.

In the meantime, I remain interested in the fate of the Croatian Six.  There is considerable evidence that, in 1979, the Croatian Six were wrongly convicted of conspiracy to commit an act of terrorism.  At the time of their conviction there was widespread anger in the community about the alleged criminality of Croatian Australians, who were of the Catholic faith.  This anger was fanned by a hostile media.

The Croatian Six were found guilty in 1979 by an unanimous jury and their appeals were rejected by the NSW Court of Criminal Appeal and the High Court of Australia.  ASIO’s official history now classifies the Croatian Six as victims of a “wrongful conviction”.  The case is documented in Hamish McDonald’s Reasonable Doubt: Spies, Police and The Croatian Six (Doosra Media). It demonstrates that juries and appeal courts sometimes get it wrong.

Best wishes,

Gerard

* * * * *

Until next time.

* * * * *