Sunday, June 23, 2019

Protection provided journalists,whistle blowers and sources by Carlovers v Sahathevan ,Bond v Barry undermined-Courts must not have power to determine how journalists should conduct their investigations

by Ganesh Sahathevan

It has been previously written  that the 
protection provided journalists,whistle blowers and their sources by Carlovers v Sahathevan and Bond v Barry has been undermined by the Legal Profession Admission Board NSW (LPAB) , a judicial body overseen by the Chief Justice NSW, and the  AG NSW Mark Speakman.

In re-writing the facts of the Carlovers decision (see story below) the LPAB determined that the Carlovers decision was in fact decided on the basis that Sahathevan had harassed, threatened and intimidated the company and its directors. The LPAB did so despite Levine J rejecting arguments from Carlovers on that point (see reporting by Ben Hills below, which includes references to submissions from counsel).

The LPAB has used its particular interpretation of the Carlovers decision to justify its reliance on the decision of the Malaysian Industrial Court in 
Sun Media Group Sdn Bhd v. Ganesh Sahathevan [Case No: 2(12)(2)/4-588/98] despite the problems with that decision to which it had been alerted. 

The LPAB then went on to determine that this writer's queries put to the College Of Law (which the College acknowledged were the queries of a journalist) and the Attorney General NSW Mark Speakman SC were threatening and intimidatory;  it then  relied on the Carlovers and Sun Media decisions to prove  that this writer has a history of that sort of behaviour.

Quite apart from the worrying and irregular re-writing of the facts of the Carlovers  judgement there is the concern that judges in NSW may now  determine defamation matters in which journalists are defendants  based on their perception of whether the journalists acted in accordance with what they determine to be acceptable behaviour.  
Questions from journalists, especially from  those of us involved in investigative work, are more likely than not to be perceived as threating and intimidatory.  While lawyers and judges are entitled to perceive  the conduct of journalists unacceptable by the norms of  their profession, the converse is likely to be true of journalists with regards the methods used by lawyers and judges. However, it is only judges and lawyers who can through the judicial system enforce their worldview on all others, including journalists.

Stating the above is to state the obvious but it does appear that lawyers and judges seem intent on imposing their worldview on journalists (and others) and seek to do so even outside the courtroom.

Two examples are provided by way of example.

First,  in 2014 the AFR reported, quoting the Chief Justice Thomas Bathurst QC AC:

They hear about counselling services for unemployed youths and people with drug problems, and meet lawyers from the community. Among the more pervasive concerns relayed to the judges this year was the demonisation by parts of the press.
"They start to feel more and more isolated and misunderstood," said chief justice Bathurst.
"But the community generally appreciates the courts will treat them just like anyone else."
While His Honour's work as one of Australia's best commercial silks is undisputed, his is not a name that one encounters in the  works of those of us who have spent many years researching and writing about jihadism
Comments such as the above cast doubt on  the work of journalists, researchers and information providers specialized in the area, and  can be used by those under investigation  to deflect queries on matters that they are determined to keep hidden from public view. 

The second example is that of the public condemnation by members of the Bar of a recent judgement by Mr Justice Desmond Fagan. The incident, and the harm it caused to the judiciary and to terrorism research, particularly jihadism, has been described here:


Judges,senior lawyers present at Muslim service where Justice Desmond Fagan’s decision in R v Bayda, R v Namoa (No 8) was undermined


The comments by Mr Arthur Moses SC not only undermined a judgement of the Court of which he is an officer, it has also caused harm to the public debate on the issue of jihadism which is  vital to research particularly in the area of passive support of  jihadis.


These public statements outside of court and the conduct of the LPAB give rise to the perception that judges, assisted by like-minded lawyers intend not only to impede the freedom of speech but also the methods of inquiry that underlie the public’s right to know.
The law of defamation provides sufficient avenues for judges to determine if publications are made with  malicious intent; it is unnecessary and unwise for the law to be broadened to allow judges to determine how journalists should conduct themselves in the course of their investigations. As illustrated above, judges and lawyers are not well placed, and would usually lack the knowledge and experience to do so. When they have tried to do so they have embarrassed themselves and caused harm to the rest of us.



Court lifts the gag on tycoon expose
Date: 14/10/2000
The Supreme Court has struck down a "gag order" preventing a freelance
journalist from exposing the business dealings of Malaysia's
wealthiest tycoon, Mr Vincent Tan Chee Yioun.
Yesterday, Justice David Levine, the chief judge in defamation,
cancelled an injunction granted in February restraining journalist
Ganesh Sahathevan from distributing information about Mr Tan's
troubled Berjaya Group, whose interests in Australia include the
listed Carlovers' Carwash Ltd, the Video Ezy video-rental chain, and
Sydney's World Square building site.
Mr Sahathevan was sued for defamation and "injurious falsehood" after
he sent emails to business journalists in Australia and Malaysia
making allegations about Carlovers - which is suspended from the Stock
Exchange after failing to produce an annual report. He sent a copy to
company executives, seeking comment.
Mr Tan is a close friend of Malaysia's Prime Minister, Dr Mahathir
Mohamad, and head of the Berjaya Group, which has been hit hard by the
Asian economic crisis. The company has assets of about $5 billion and
employs 25,000 people.
The injunction was granted under the Fair Trading Act to prevent Mr
Sahathevan damaging Mr Tan's business interests. The Press Council
protested, and the Minister for Fair Trading, Mr Watkins, intervened
in the case, arguing that "we do not want consumer protection
legislation used as a de facto gag on the media".
Mr Sahathevan's counsel, Ms Judith Gibson, argued that it was an
important press freedom case, because if injunctions could be used in
this way it would "place every whistle-blower and every source at
risk". She said her client had claimed that Carlovers had made false
and misleading statements to the Stock Exchange.
In an affidavit, the managing director of Carlovers, Mr Andrew Kok
Leng Teh, strongly denied the allegations.
Yesterday, Justice Levine ruled that Mr Sahathevan was a "prescribed
information provider" under the act, and thus exempt from its
provisions. He agreed with an earlier judgment that: "The Fair Trading
Act was never meant to be a substitute for actions for defamation ...
the court should (not allow its use) for a purpose for which it was
never intended."
He dismissed an argument that Mr Sahathevan was "trying to put the
frighteners" on Mr Tan to influence the result of an unfair dismissal
case he had brought after being sacked last year from Berjaya's
Malaysian newspaper, the Sun. Justice Levine said it was "an urban
myth" that a journalist should be ethically prevented from writing
about something in which he had a great interest, adding that such a
prohibition "would come as a great shock to Mr Robert Hughes, Mr
Phillip Adams, Mr Leo Schofield and Mr Piers Ackerman, for example".

NSW Chief Justice  Tom Bathurst takes judges to mosque in community reach-out

NSW chief judge in equity Julie Ward is among Supreme Court judges who attend a series of religious ceremonies in a ...
NSW chief judge in equity Julie Ward is among Supreme Court judges who attend a series of religious ceremonies in a community reach-out effort.Peter Braig
by Katie Walsh
Around this time each year, NSW Chief Justice Tom Bathurst and a handful of judges hop on a bus heading to Sydney's west.
The judges are taking the half-hour drive from the city centre to the Ottoman-style Auburn Gallipoli Mosque, and they are not just there for the reliably good spread of food: it is the venue for one of a number of law term opening ceremonies.
"It's important for us to understand what their concerns are, and that we're not seen as remote from these communities," said Chief Justice Bathurst.
"They really appreciate it. It really always strikes home to me the warmth we get - it's not just 'thanks for coming, goodbye'."
Auburn Gallopoli Mosque: NSW judges visit each year to open the law term.
Auburn Gallopoli Mosque: NSW judges visit each year to open the law term. 
Despite being secular, courts have long incorporated religious ceremonies into the opening of the law term after the summer break. In NSW, judges visit Catholic and Anglican churches, a Greek Orthodox cathedral and a Jewish synagogue.
But before the chief justice was appointed to the state's top judicial role in 2011 it did not extend to the Islamic community.
"Once you say that's an important justification, it's important you do it to all groups," he said.
They hear about counselling services for unemployed youths and people with drug problems, and meet lawyers from the community. Among the more pervasive concerns relayed to the judges this year was the demonisation by parts of the press.
"They start to feel more and more isolated and misunderstood," said chief justice Bathurst.
"But the community generally appreciates the courts will treat them just like anyone else."
The short service included a speech from a community member, who "explained the Islamic religion, properly interpreted, is consistent with the rule of law in Australia, and it doesn't involve anything more difficult than that".
The mosque ceremony included Supreme Court judge Stephen Rothman, who has held senior positions in the Jewish community, and NSW chief judge in equity Julie Ward, along with NSW Attorney-General Mark Speakman, NSW Bar Association president Arthur Moses, and NSW Law Society president Doug Humphries.
"There's a whole argument over whether you should have a religious ceremony at all," Justice Ward explains.
"I've taken the view that if I go to one, then I should try to go to them all."

Changing face of the profession

The legal profession is grappling with ways to attract members from different backgrounds and break the monocultural stereotype.
"We've got to look at encouraging diversity in different ways," said Justice Ward.
"I think it's broken down a reasonable amount; there are judges like me that have come from a non-private school background and it is no longer a 'boy's club', so to speak."
After the ceremony, she finds herself talking to community members who are lawyers, or whose family members are part of the profession or studying towards that goal.
The chief justice said the event attracted "a really good number of young lawyers from the Islamic community", including local solicitors, commercial and in-house lawyers, and barristers.
Justice Rothman has co-hosted lectures and seminars with sheikh and family lawyer Haisam Farache; most recently, one on Thursday night pitched at barristers wanting to become familiarised with Sharia or Islamic law, to counter misinformation, which had "the potential to create a misunderstanding of a legal system, which could be strangely familiar".
Mr Moses said he first heard one of their lectures at a Ramadan Iftar dinner last year hosted by the Muslim Legal Network.
"The emphasis is about ensuring that it is understood that we are part of one community and the rule of law must be respected as well as religious beliefs being respected," he said.
"Mr Farache made the point that it was his view that there was nothing in the Islamic faith or law, which authorised practising Muslims to remain seated when a judge enters a courtroom. We need to embrace leaders from all parts of our community in order to assist them to educate the community about our legal system."
He said the legal profession had to reflect the community it serves, if it wanted to attract confidence.
Data on cultural diversity is hard to come by.
According to an October 2016 snapshot of the profession by the NSW Law Society, 28 per cent of the state's solicitors were born overseas. Of those, close to half (42 per cent) were born in an Asian country and another 17 per cent came from the UK or Ireland —  a trend reversing from the statistics a decade earlier, when 30 per cent were born in Asia and 21 percent from the UK and Ireland. The remaining breakup was mixed: Africa (7.8 per cent), Europe (9.5 per cent), Oceania (11.2 per cent), Middle East (5.2 per cent) and North America (4.6 per cent) the next most dominant.  A perspective on the broader cultural mix, including second-generation lawyers, is harder to determine.
Other states hold similar services. In Queensland, there is one ecumenical church service for the opening of the legal year, attended by heads of all faiths, which rotates around the major city churches. This year it was held at the City Tabernacle Baptist Church; last year, the Albert Street Uniting Church.
In Victoria, there are several church services for different faiths as well as a ceremony at the County Court.
But Chief Justice Bathurst has another extension in his sights: he would like to see a general community service in addition to those servicing specific faiths.
"The important thing is it gives the opportunity for the judges to get out and interact with particular groups in the community

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