Talking about facts, Paul’s a bit of a Barry

IN his book about Kerry Packer, Paul Barry is described as an “award winning investigative reporter’’.

IN his book about Kerry Packer, Paul Barry is described as an “award winning investigative reporter’’. The ABC website says he is “one of Australia’s most respected journalists’’. He appears to specialise in writing books targeting media moguls, the latest being Breaking News: Sex, Lies and the Murdoch Succession.

As presenter of the ABC’s flagship program Media Watch, he sits in judgment over the nation’s media ethics, issuing condemnations which are often controversial. He appears to concentrate on claims against the Murdoch press.

One which stands out was his report about the alleged losses of The Australian. Central to this was his failure to speak to the newspaper’s editor-in-chief Chris Mitchell. This surprised me. From my years at the Press Council I knew that journalists are programmed to try to speak to the persons most involved and most affected in any story. But in this case it seemed that he couldn’t even be bothered to try to seek out Mitchell’s comment. That in a later program a crucial part of an interview with Mitchell was not broadcast exacerbated the offence.

This failure to follow elementary rules rang a bell, recalling one matter in which I was intimately involved. This was in his book Who Wants to Be a Billionaire? The James Packer Story.

This related to an Australian Broadcasting Authority inquiry into whether Kerry Packer, who then had a 15 per cent shareholding in Fairfax, actually controlled it. If he did, this would have been a serious breach of the cross-media laws. The inquiry followed the appointment of Brian Powers as chairman of Fairfax. Powers had previously been a chairman of Packer’s PBL. For a breach to be found, the ABA would have had to be satisfied — at least on the balance of probabilities — on two points.

The first was that Brian Powers and Kerry Packer were ‘‘associates’’. This would mean that they had a habit or custom of acting in concert in relation to the conduct of the affairs of Fairfax.

The second point which had to be proved was that Powers was actually in control of the company.

Barry begins his investigation of the ABA ruling by referring to a draft report written by the staff representing the majority view which found a breach. This was sent as required to Packer’s and Power’s lawyers.

I was ABA chairman at the time. Describing me as a — nudge, wink — “great admirer of the Packers’’, Barry claims I then wrote a minority report clearing Packer and Powers.

Actually, my minority report had gone out with the draft report. The draft report had been written by staff to support the majority’s conclusion that Packer and Powers were associates with Powers already in control of Fairfax.

In retaliation, he says, the majority then wrote another report affirming a breach. This is an invention.

Then he claims that the Prime Minister’s office got wind of our disagreement and intervened.

He suggests they made the ABA back down. This is another invention.

Then, he says the ABA ‘‘backed down and a fudge was put in place’’ clearing Packer, denying the public ‘‘a field day’’. Yet another invention — there was no fudge. The ABA acted on expert legal advice.

The fact is that before putting a pen to paper, even a cadet reporter would have first tried to contact me.

On the most elementary internet search, our cadet would have found that I had written about this in a chapter in a book, Malice in Media Land.

This was published four years before Barry’s.

Although the ABA had used its considerable investigative powers to the full, both by way of subpoenas and examinations on oath, there was not a skerrick of evidence, oral or written, before the agency that Packer and Powers were acting in concert or that Powers was in control. One of the strongest proponents of finding a breach answered my objections this way: ‘‘These people meet one another, they play golf. That is where they make their decisions.’’

He claimed there were “two camps’’ in Sydney — Packer and Murdoch. ‘‘Powers is in the Packer camp,’’ he said.

I said that this was not evidence, just gossip. This would never satisfy the applicable standard of proof. Because of the consequences of an adverse finding, I thought the standard would be higher than the civil standard. I also argued that absent unusual conditions, we could not assume a chairman controlled a public corporation. The majority seemed to waver on this but remained insistent on finding Packer and Powers were associates.

That was why I wrote a minority opinion, an unprecedented act which upset some of my colleagues. I provided it to the ABA lawyers who sent it out with the majority draft report.

Packer and Powers insisted they were not associates.

When the ABA next met, we decided to obtain the opinion of a Queen’s Counsel who was an expert in the field. He would be asked to provide an opinion on the law, and on such evidence which we had collected. (I did not choose the silk; our ABA lawyers did.)

The QC was in complete agreement with me on both points. So were the ABA’s lawyers. When asked, the silk advised that we would probably lose if a breach finding were challenged in court and costs would be awarded against us.

So I wrote again to my colleagues, offering this time a face-saving solution. I proposed that we deal first with the question of control. Then we would not have to deal with the question of whether Packer and Powers were associates. They agreed. So there was no ‘‘fudge’’ as Barry claimed and there was certainly no prime ministerial intervention. Our ­approach followed the very best expert legal advice available.

Had Barry phoned me, or had he done an internet search and ­located my book, he would have realised his story was without foundation. He could then have easily independently corroborated my position. What is curious is that an award-winning journalist could be so sloppy in a matter of such significance. But what is truly extraordinary is this man sits in judgment on other journalists and the Australian media.

David Flint is the author with Jai Martinkovits of Give Us Back Our Country, 2nd edn. Connor Court, 2014.