Senior executives at Network Ten should be buying lottery tickets, because they just got very lucky.
Justice Michael Lee has found their journalism entirely lacking in rigour, fairness, and reasonableness – but you wouldn’t know it from Ten’s reaction.
In a statement, Ten called their win in the defamation case brought by Bruce Lehrmann “a triumph for truth”.
Ten employee Lisa Wilkinson said outside court: “Today, the Federal Court has found that I published a true story about a rape in a federal minister’s office in March of 2019.”
Legal partner Justin Quill, who also advises The Australian, said on behalf of his client Ten: “This is the problem with defamation law in Australia; the way in which judges and barristers pick apart and dissect what journalists did or didn’t do in applying a legal threshold, a legal test of ‘reasonableness’ is quite often divorced from reality.”
Well, here’s the reality, according to the Federal Court of Australia.
Justice Lee said Ten failed to properly investigate the gaping holes in Brittany Higgins’ story, gleefully signed up to her boyfriend David Sharaz’s crusade against the Morrison government, gaily destroyed the reputation of staffer Fiona Brown, falsely claimed there was a political conspiracy to cover it all up, and didn’t give Bruce Lehrmann a fair chance to respond.
Ten’s response has not been to crawl away in mortified relief.
No, Ten immediately sent trumpeters to the city walls to herald its noble championship of public interest journalism.
So why is Ten lucky? Because Brittany Higgins just happened to be telling the truth.
Not about everything – the judge said she lied and misdirected, including in the witness box – but Justice Lee found her central claim utterly believable: her harrowing description of drifting into consciousness to see the face and sweaty body of Bruce Lehrmann above her on that sofa.
That means Ten gets the overall win, but loses badly on the virtue it’s now trumpeting: journalism.
Justice Lee has done the journalism Ten should have done in 2021: he’s stripped away the fibs and silly inconsistencies, and followed a trail of common sense and contemporaneous evidence.
That allowed him to distinguish Higgins’ initial untruths, which he said were an understandable response to trauma and humiliation, from her later evocation of a grand conspiracy, which the judge has said was utterly false.
When it published its Project story in 2021, Ten didn’t know if Higgins was telling the truth, and had not made much effort to find out.
Presenter Lisa Wilkinson and producer Angus Llewellyn wanted to believe, and that was enough.
Their five-hour pre-interview, played to the court, was a meeting with Sharaz and Higgins in which Wilkinson and Llewellyn did not ask any hard questions at all.
Here’s what Justice Lee wrote about that meeting: “The respondents (Ten and Wilkinson) asserted the purpose of the first interview was for Mr Llewellyn and Ms Wilkinson to determine whether the story was worth pursuing and to assess Ms Higgins’ reliability and credibility as a source. This does not ring at all true from listening to the audio recording.
“Ms Wilkinson was on board with telling the explosive story before even meeting Ms Higgins.”
This was the meeting where Sharaz canvassed – with the enthusiastic participation of Wilkinson – getting friendly Labor figures including Katy Gallagher to pursue the matter in Question Time and Higgins claimed that her phone had completely died and suggested it could have been wiped remotely by the Government.
Higgins also claimed at this meeting she’d been excluded, bullied and pressured to stay quiet by both her then-boss, Fiona Brown and minister Linda Reynolds.
Justice Lee said their behaviour at the meeting and afterwards showed they did not approach the story with “disinterested professional scepticism”, and nor did they “conscientiously consider the motives of Ms Higgins and Mr Sharaz.”
As to Sharaz’s motives, the judge said “any journalist who did not think Mr Sharaz had a motivation to inflict immediate political damage would have to be wilfully blind.”
Higgins told the journalists she didn’t have much contemporaneous evidence – like photos – because her phone had been mysteriously wiped, maybe by the government.
The judge was scathing about this, saying it was a “warning light alerting to the necessity for care in assessing whether the maker of such a representation was open to speculation and conspiracies.”
Ten accepted in its written submissions that this was Higgins voicing a conspiracy theory.
Higgins told Ten she really only had one photo from the time – the bruise photo, which had miraculously survived the ‘wipe’ of her phone.
Neither Wilkinson nor Llewellyn pondered why the bruise was on her right leg, when she described her left leg being squashed on the sofa.
Neither bothered to have a look at the photo’s metadata to establish when it was taken.
Wilkinson, to her credit, showed more curiosity than Llewellyn, telling him by WhatsApp later she was confused how the ‘bruise shot’ had survived the phone’s death.
Llewellyn responded with a reassuring brush-off: “My gut feeling is to avoid the topic as it raises unanswerable questions and weakens rather than strengthens her very strong claims by adding in unnecessary doubt where there currently isn’t any.”
Ten could have layered this story with rigour and sober scepticism – but it didn’t have time.
In the meeting on 27 January, 2021, David Sharaz said the story had to be published in a parliamentary sitting week in March to allow Labor to put maximum pressure on the Coalition government – before Scott Morrison called an election and prorogued parliament.
Sharaz: “I’ve got a friend in Labor, Katy Gallagher on the Labor side, who will probe and continue it going. So sitting week, story comes out, they have to answer questions at question time, it’s a mess for them.”
Ten ran a highly political story, brought to them by a conduit who articulated clearly his political motive, on his timeline, for his purposes, without proper fact-checking.
What really riled up Justice Lee is Ten’s continuing defiant defence of its decision to approve and endorse Lisa Wilkinson’s Logies speech, which blew up Lehrmann’s criminal trial.
Justice Lee called Ten’s conduct “egregious” and “grossly improper”, and slated its chief litigation counsel.
In this trial, Ten and Wilkinson had two defences: truth and qualified privilege, which requires a demonstration of ‘reasonableness’.
Early in his decision, Justice Lee said their conduct was “not reasonable”.
That left them relying on truth: or, to put it more transactionally, the hope that Bruce Lehrmann’s lies outweighed Brittany Higgins’ lies.
That, at least, was true.
Lucky.
Claire Harvey is the host of our daily podcast The Front. Listen now on Apple Podcasts, Spotify or The Australian’s app.
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