AUSTRALIAN Press Council chairman Julian Disney seems to be a frustrated newspaper editor. However, it would be in the interests of press freedom in Australia if he devoted more time to focusing on law – which the professor studied at university.
On February 27 this year, the APC issued an adjudication in what is commonly called the case of Ashby v Slipper. In December 2012, Justice Steven Rares of the Federal Court threw out a sexual harassment claim brought by one-time political staffer James Ashby against his former employer, Peter Slipper.
The case was controversial at the time because the minority Labor government had elected Slipper, the one-time Liberal National Party member for Fisher, to the position of Speaker in the House of Representatives.
In fact, then prime minister Julia Gillard did not need to reduce the Coalition’s numbers by one in the parliament since Labor had the support of Greens MP Adam Bandt along with that of rural independents Rob Oakeshott, Tony Windsor and Hobart-based MP Andrew Wilkie. Yet Labor was nervous that its member Craig Thomson might retire or be forced to resign on account of financial impropriety during his time at the Health Services Union.
Ashby joined Slipper’s staff, in late December 2011, as a political adviser. In April 2012 Michael Harmer, Ashby’s solicitor, filed an application alleging, among other things, that Slipper had sexually harassed Ashby during the course of his employment. The commonwealth government had earlier settled Ashby’s claim with a payment of $50,000.
Daily Telegraph journalist Vanda Carson obtained access to Ashby’s statement of claim against Slipper under the rules pertaining to the Federal Court and the story was followed up by journalist Steve Lewis. This was a legitimate scoop and, not surprisingly, obtained exclusive coverage in The Daily Telegraph on April 21, 2012. The following day Slipper stepped down as Speaker. It is a matter of record that Slipper’s resignation as Speaker (he continued as the MP for Fisher) made no difference to the political balance in the House of Representatives.
An examination of evidence before the Federal Court suggested that Ashby had a strong case. Yet Rares threw out Ashby’s claim. He found that Ashby’s predominant purpose in taking this action was to pursue a political attack against Slipper and that Harmer had engaged in an abuse of process.
Rares, in the course of proceedings, made an adverse finding against, among others, Mal Brough the then LNP candidate for Fisher who subsequently defeated Slipper at the September 2013 election. This made the decision controversial because it then led to criticism of the high-profile Brough by the Labor Party and quite a few journalists. Labor’s Mark Dreyfus called for Brough to be disendorsed and journalist Michelle Grattan declared that the decision had “bolstered” the government and “embarrassed” Tony Abbott’s opposition.
And then along came left-wing activist and former Fairfax Media journalist Margo Kingston, the author of Not Happy John! Defending Our Democracy. Enough said. Kingston, who had no standing in the matter, complained to the APC that The Daily Telegraph’s report of the Rares decision – which appeared on page 17 of the newspaper on December 13, 2012, under the heading “Court rejects Slipper case” – was not prominent enough.
A reasonable person, whether or not legally trained, who read Rares’s judgment should have come to the conclusion that Ashby’s appeal had a reasonable chance of success. In other words, the case was not closed. But Disney and his colleagues at the APC seemed to assume that Rares’s judgment, at first instance, resolved the matter. In its adjudication of February 26, 2014, the APC upheld Kingston’s complaint “due to the very stark difference between the detail, tone and prominence of the newspaper’s initial coverage on 21 April (2013) and of its report on 13 December (2013) of the dismissal” of Ashby’s case.
On the day of the APC’s decision, the Federal Court comprising justices John Mansfield, Antony Siopis and John Gilmour delivered its decision in relation to Ashby’s application for leave to appeal. Mansfield and Gilmour upheld Ashby’s appeal and awarded him costs. As a result, Ashby can have his day in court against Slipper.
It is not unfamiliar for a court of appeal to overrule the decision as a judge at first instance. But the majority judgment in Ashby v Slipper, handed down on February 27, contains a devastating critique of Rares.
The court found that “the primary judge” had made numerous errors – in particular in dismissing the evidence of psychiatrist Jonathan Phillips.
Mansfield and Gilmour also found that the “adverse inferences” drawn by Rares against Brough and some others were not open for him to make “on the balance of probabilities”. They also found no evidence that Lewis had acted improperly. Moreover, while declining Harmer’s application for leave to appeal, Mansfield and Gilmour concluded that the “adverse findings in relation to his conduct … ought not to have been made”.
The Daily Telegraph reported the Federal Court’s decision to grant Ashby’s application for leave to appeal on page 17 (on the right side of the paper) – the same page on which it had reported Rares’s decision to dismiss Ashby’s initial application as an abuse of process.
This was a sound judgment, on both occasions. The decision of a court rarely has the news value of an accusation of sexual harassment by a political staffer against a prominent office-holder at a time of political instability and minority government. In any event, Disney should have anticipated that Ashby’s appeal might succeed – in which case the matter would end up where it was when the story was first reported.
The APC’s decision in this case amounts to an improper intrusion into the right of an editor to cover a story in accordance with editorial judgment on the day in question. Moreover, it is unlikely that Kingston would have got involved in such a way if the target of sexual harassment complaint was a politician supportive of a Coalition prime minister.
Gerard Henderson is executive director of The Sydney Institute.