Saturday, December 14, 2019

Singapore's "fake news" laws can be enforced in Australia and against Australian based journalists -Australian judicial officers new found willingness to rely on Malaysian decisions to make quasi-judicial findings of criminal defamation to blame

by Ganesh Sahathevan

The NSW Attorney-General wants Australia's defamation laws to be more "tech-savvy".

 The NSW Attorney-General Mark Speakman wants Australia's defamation laws to be more "tech-savvy".It is hard to see that he would oppose an application by a  foreign government like that of Singapore enforcing its fake news laws in Australia.

Singapore has recently enacted and started enforcing its "fake news" laws, formally known as  The Protection from Online Falsehoods and Manipulation Act It enables government ministers to order a correction to be carried for a false or misleading claim, and for material not in the public interest to be taken down.

Alex Tan, an Australian citizen who lives in Sydney, was one of the first persons against whom the Singapore law was enforcedPenalties for breaches of the law  range from prison terms of as many as 10 years or fines up to $SG1 million ($AU1.08 million).

While the enforcement of those penalties via an Australian court is normally assumed to be very highly unlikely, recent quasi-judicial decisions by senior judicial officers including the Chief Justice Of NSW Tom Bathurst suggest that punishment and gagging  of journalists based  in Australia for findings in say Singapore or Malaysia may yet be possible.

As this writer discovered recently, an application to practise as a lawyer was turned into an examination and critique of his work of more than 25 years as a journalist, by the Legal Profession Admission Board NSW, which comprises senior judges and lawyers, and which is chaired by the Chief Justice Of NSW,, Tom Bathurst.

In coming to their conclusion that this writer's work was defamatory of "many (unnamed)  eminent persons", was "subjective", and found to be fabricated and without basis, the Board relied on a number of defamation actions brought by Vincent Tan Chee Yiuon, and continued to do so despite being provided the official findings of the Malaysian RCI which confirmed that Tan had interfered with the judiciary.

Of greater concern was the fact that Board and the Chief Justice decided to not only ignore but re-write the facts of the NSW Supreme Court decision in Carlovers which went decisively against Vincent Tan, and in which this writer was the defendant (see story below).

The Board was even prepared to believe that well known journalists from the ABC's 4 Corners programme had been bribed by this writer to air a "fake news" story about the former Prime Minister Of Malaysia, Najib Razak's part in the 1MDB scandal, placing reliance on what is believed to be a Najib Razak linked website( see story from The Australian below).

The Chief Justice NSW and other members of the NSW LPA Board have demonstrated that if they so wish they can find the means in Australian law to deem anything defamatory; in fact they have shown that they can easily make a finding of criminal defamation. In addition to the above findings the Chief Justice and the NSW LPAB placed reliance on an Industrial Court decision(this writer against the same Vincent Tan's Sun Media) where the chairman of the Court made findings of criminal and civil defamation, breaches of Malaysia's notorious  Printing Presses and Publications Act 1984 and other crimes despite there never being any finding in any of Malaysia's criminal or civil courts against this writer for any of those matters, or indeed in any matter at all. 

In light of the above it does seem as if enforcement of Singapore's fake news laws could be a relatively simple matter, especially in NSW. Recall that if found guilty of publishing "fake news", the penalty could be "prison terms of as many as 10 years or fines up to $SG1 million ($AU1.08 million)". Consequently, the Singapore Government could seek to extradite from Australia any person it has found guilty of breaking the provisions of its fake news laws.

While extradition is a complex matter the process would have to go before an Australian court and the above suggests that  Australian or at least NSW courts are not likely to dismiss out of hand an application by the Government Of Singapore, and is likely at the very least ensure that journalists and others found guilty by the Singapore Government are subject to the full rigour of the process.As many subject to even cvil defamation claims have learnt, the process is enough to destroy a person financially, regardless what a court might ultimately determine.



Tuesday, June 11, 2019

Protection provided journalists, whistle blowers and sources by Carlovers v Sahathevan ,Bond v Barry undermined by NSW judicial body overseen by Chief Justice NSW, and AG Speakman

by Ganesh Sahathevan

In October 2001 the Supreme Court NSW handed down its decision in Carlovers Carwash Ltd v Sahathevan . The decision provided this writer and other journalists significant protection, and was later applied in Bond v Barry, where Paul Barry (better know now as host of MediaWatch)  relied on  the Carlover's decision to successfully defend himself against a charge of defamation by the late Alan Bond.

Quite apart from affirming the statutory safe harbor provisions protecting journalists found in for example the Fair Trading Act NSW, the cases were important for the defining the noun " journalist" in very broad terms.That broad definition is especially relevant today given the ability of researchers, investigators and writers to self-publish via their own blogs and social media such as Twitter and Facebook. Bond v Barry continues to be quoted to this day (and Sahathevan concedes he will never be as famous as Barry).

There has however been a recent decision of a quasi-legal body that seems to suggest that the protection provided by those cases and the decisions that follow them is being restricted, if not discarded by the legal establishment, especially in NSW.

In a recent decision finding this writer not fit and proper for admission to practice law in NSW the Legal Profession Admission Board (LPAB), which is overseen by the Chief Justice of NSW Thomas Bathurst,  the LPAB (which includes three sitting judges,) determined that the Carlovers decision  did not concern the work of a journalist but rather a Carlovers  employee who after being sacked by Carlovers, harassed, threatened and intimidated the company and its directors.

In doing so the LPAB is suggesting that the  Carlovers decision was incorrectly decided, or that the NSW Supreme Court's views on the rights of journalists to report, and of press freedom generally, have become more restrictive.

The Carlovers decision attracted much media attention locally and in this region and it has relevance especially today given the recent raids by the Australian Federal Police In his story on that matter published in the SMH on 14 October 2000 the last Ben Hills reported:

Mr Sahathevan's counsel, Ms Judith Gibson (now Judge Judith Gibsion) , 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.

The LPAB put its findings with regards Carlovers in the context of what it claimed was evidence of this writer's history of publishing material that was false or otherwise lacking any evidence and were in fact part of this writer's criminal enterprise (see story below published in The Australian on 17 January 2019).

So certain is the LPAB of its findings that it has included in its findings a determination that this writer has shown no  remorse for his work as a journalist; it has made specific reference to the story this writer investigated and wrote for publication in  The Sun newspaper in Malaysia in 1996, which earned him the  sacking from that paper  which in turn led to a number of related defamation matters in Malaysia and Australia, including the Carlovers matter.

In Carlovers submissions were made by Carlovers and its directors about this writer's sacking from The Sun,and the Malaysian matters which included an AUD 7 Million claim for damages.The directors included the Malaysian  businessman Vincent Tan Chee Yioun, who owned The Sun,and still controls it via his Berjaya Group of companies. The LPAB has found that these submissions were "irrelevant".

Tan's role in a number of questionable high profile defamation and corporate matters in Malaysia were well known, and the subject of adverse media reports worldwide, even in 2000. In 2006 a Malaysian Royal Commission which investigated corruption of the judiciary found that there was prima facie evidence that Tan and two former chief justices of Malaysia had committed offences under Malaysia's Sedition Act, Official Secrets Act, Penal Code and the Legal Profession Act. Early this year the Malaysian Government announced that there will be a second RCI into judicial corruption; the events of the past continue to have an impact even today. 

The LPAB's findings given the issues concerning Vincent Tan described above suggests  that the  current NSW Supreme Court will not tolerate investigation by journalists regardless of how serious the matter.It does suggest a degree of antagonism towards journalists that is so great that the Court would be happy to re-write its past decisions,no matter how well established  those decisions might be. In doing so the Court 's seem prepared to re-interpret the not merely the opinion but even the facts of past decisions.

Meanwhile, this writer continues to investigate and write about the issues and facts he discovered in 1996 which got him sacked, as well as other more recent events such as the 1MDB affair, Australia's submarines, and the NSW legal establishment's College Of Law.



Bizarre blog claims used to deny man right to practise law

The body overseen by Chief Justice Tom Bathurst responsible for deciding who can practise law in NSW relied on a wildly defamatory Malaysian blog depicting ABC journalists, former British prime minister Tony Blair, financier George Soros and others as part of a global conspiracy when deciding to deny a would-be solicitor a certificate to practise.

Chief Justice Bathurst and Legal Practitioner Admission Board executive officer Louise Pritchard declined to answer The Australian’s questions about how the article came into the board’s hands and why its members felt the conspiracy-laden material could be relied upon as part of a decision to deny Sydney man Ganesh Sahathevan admission as a lawyer. Nor would either say which of the 10 members of the LPAB, three of whom are serving NSW Supreme Court judges, was on the deciding panel.

Ms Pritchard has left her role at the LPAB since The Australian began making inquiries in September. The article, published in December 2017 on website The Third Force, accuses Mr Sahathevan of engaging in a conspiracy to attack then Malaysian prime minister Najib Razak.


Mahathir Mohamad, who returned as prime minister after toppling Mr Najib in elections held last May, is also smeared as a participant in the globe-spanning conspiracy.

Mr Najib was under pressure at the time over the country’s sovereign wealth fund, 1MDB, which the US Department of Justice says has been looted of billions of dollars that was spent on property, art, jewels and the Leonardo DiCaprio film, The Wolf of Wall Street.

Malaysian authorities have charged Mr Najib with dozens of corruption offences that could attract decades in jail over his role in the 1MDB scandal, which allegedly included the flow of about $US1 billion through his personal bank account.

The article’s author, Malaysian political operative and Najib loyalist Raggie Jessy, also accused Rewcastle-Brown, Stein and Besser of receiving money, totalling millions of dollars, to participate in a Four Corners program exposing the 1MDB scandal that aired on the ABC in March 2016.

There is no suggestion any of Mr Jessy’s bizarre allegations are true. However, the LPAB cited the piece when denying Mr Sahathevan admission as a lawyer in an undated and unsigned set of reasons sent to him on August 3 last year.

It used the article as evidence in a passage dealing with legal conflicts between Mr Sahathevan, who has largely worked in the past as a journalist, his former employer, Malaysia’s Sun Media Group, and the company’s owner, tycoon Vincent Tan.

In that context, the board said the Third Force article reported “that Mr Sahathevan was investigated for blackmail, extortion, bribery and defamation”. While the article claims that blackmail, extortion, bribery and defamation “are but some of the transgressions many from around the world attribute” to Mr Sahathevan, The Australian was unable to find any reference in it to an investigation into him on these grounds.

It is unclear why the board felt the need to rely on the article, as it also made adverse findings about Mr Sahathevan’s character based on a series of other allegations including that he used “threatening and intimidating” language in emails to the College of Law and the NSW Attorney General and did not disclose his sacking from a previous job to the board.

Mr Sahathevan has denied the allegations in correspondence with the board.

The board also cited evidence that one of Mr Sahathevan’s blogs on Malaysian politics was banned by the Najib regime as indicating his poor character.

In an email to Chief Justice Bathurst, sent on August 30, Rewcastle-Brown said her site, Sarawak Report, which exposed much of the 1MDB scandal, was banned by the Malaysian government.

“I along with other critics of the 1MDB scandal (which includes Mr Sahathevan) became the target of immense state-backed vilification, intimidation and online defamation campaigns on behalf of the Malaysian government,” she said.

She said the board’s use of the Third Force article against Mr Sahathevan displayed “a troubling level of misjudgment and poor quality research, giving a strong impression that someone seeking to find reasons to disqualify this candidate simply went through the internet looking for ‘dirt’ against him”.

“The Third Force has consistently been by far the most outlandish, libellous, vicious and frankly ludicrous of all the publications that were commissioned as part of former prime minister Najib Razak’s self-proclaimed ‘cyber army’ which he paid (and continues to pay) to defame his perceived enemies and critics,” she said.

Besser, who now works in the ABC’s London bureau, told The Australian: “It’s clearly nonsense and comes from the darkest corners of some pretty wild Malaysian conspiracy theorists.”

Mr Sahathevan’s application is to be reconsidered at an LPAB meeting next month (Admission has since been denied, for the same reasons, but without explicit reference to the Thirdforce story).
Business reporter Ben Butler has covered everything from tractors to fashion to corporate collapses. He has previously worked for the Herald Sun and as a senior business reporter with The Age and Sydney Morning... 

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