Read Gerard Henderson's Correspondence with Media Watch

Home , Anne Henderson (author), Media Watch (TV program), Monica Attard

On 28 August 2006 Media Watch included these references to Gerard Henderson amongst its comments on media coverage of the Supreme Court’s decision to overturn the conviction of Jack Thomas.

And Gerard Henderson said the verdict drew a line between those who get the problem of terrorism and those who don't.

Unanimous verdict in democracy divided The Thomas case outlines the division between civil libertarian types (trial lawyers, artists, humanities academics, comedians and the like) who focus on legal process and others who take terrorists at their word and regard them as a genuine threat to democratic societies. — Sydney Morning Herald, Unanimous verdict in democracy divided, 22nd August, 2006

Well it goes without saying that if you're with the comedians you're not taking this seriously enough. But Mr Henderson went further and queried the background of one of the three Appeal Court judges, Justice Maxwell.

According to Who's Who in Australia, he is a former staffer to a federal Labor attorney-general and a past president of Liberty Victoria. Maxwell was appointed to his present position by Steve Bracks's Labor Government, which has good relations with the civil liberties lobby. — Sydney Morning Herald, Unanimous verdict in democracy divided, 22nd August, 2006

And he wasn't alone.

Here's Alan Jones, parroting Gerard Henderson, on 2GB.

Mr Justice Maxwell in the Court of Appeal was a former staffer to a federal Labor attorney-general, a past president of Liberty Victoria, appointed by the Bracks Labor government. Do these judges bring their baggage with them as well in the determinations that they reach? — Radio 2GB, Breakfast show, 23rd August, 2006

But the commentators weren't all of one view…

[read or view the whole story here http://www.abc.net.au/mediawatch/transcripts/s1726396.htm]

Media Watch’s passing reference to Gerard Henderson provoked this email from him.

TO : PETER McEVOY Executive Producer, Media Watch - ABC FROM : GERARD HENDERSON

DATE : 31 AUGUST 2006

Dear Peter

Background

As you may, or may not, recall – on a couple of occasions in the past decade you have asked me whether I would like to be considered as a presenter of the ABC TV Media Watch program. I have no idea whether I would have got the gig – frankly, I very much doubt it. However, as you will recall, on both occasions I declined to express an interest. My position was that the Media Watch format was tired. I proposed that, instead, Media Watch should have two presenters and that it should be the occasion of debate and discussion about journalism – rather than a pulpit from which a presenter lays down the Media Watch line. You indicated to me that ABC TV was committed to the current format – and that was that.

Media Watch and Jack Thomas

As you are aware, Media Watch devoted most of its program on Monday 28 August 2006 to fanging critics of the Victorian Court of Appeal’s decision in The Queen v Joseph Terrence Thomas (2006 VSCA 165).

Monica Attard criticised – in order – The Australian (particularly editor- in-chief Chris Mitchell and legal affairs editor Chris Merritt), myself, broadcaster Alan Jones and finally Peter Faris QC. Naturally enough, she disagreed with all of the above. Then Ms Attard praised the likes of The Australian’s reporter Mike Steketee, Sydney Morning Herald columnist Richard Ackland and, in passing, the Crikey newsletter along with The Age. Naturally enough, she agreed with all of this group.

At least there was debate on this issue in The Australian, the Sydney Morning Herald and Crikey (but not The Age). However, Media Watch did not even concede that those who were critcised by Monica Attard had any case at all. They were dismissed as simply wrong. Just like the Pope ruling against those who do not follow orthodoxy, as defined by the Vatican.

As you will be aware, I was not contacted by Media Watch prior to last Monday’s program going to air. Nor was I given any opportunity to state my case on the program – or even on the Media Watch website.

The continuing Media Watch format suggests that you are not interested in debate and discussion on the program. Even so, I wish to put on record the comments I would have made had you approached me before Ms Attard editorialised against me. This is the only possible means of doing so – since Media Watch allows no right of reply on (taxpayer funded) ABC television.

First up, Monica Attard bagged me for writing the following in my syndicated column on 22 August 2006 viz:

The Thomas case outlines the division between civil libertarian types (trial lawyers, artists, humanities academics, comedians and the like) who focus on legal process and others who take terrorists at their word and regard them as a genuine threat to democratic societies.

Ms Attard dismissed my comment – not with argument, but, rather with ridicule – by commenting: “Well, it goes without saying that if you’re with the comedians you’re not taking this seriously enough”. This put- down, delivered with a smirk, overlooks the fact that there is a division within Australian society along the lines set out in my column. On the evidence of her performance last Monday, Ms Attard belongs to the civil libertarian types. I doubt that she would deny this.

Following her put-down and attempt at humour, Monica Attard then moved to her essential charge against me. Her editorial comment was followed by a quote from me – as set out below:

Monica Attard: But Mr Henderson went further and queried the background of one of the three Appeal Court judges, Justice Maxwell:

Gerard Henderson: According to Who’s Who in Australia, he is a former staffer to a federal Labor attorney-general and a past president of Liberty Victoria. Maxwell was appointed to his present position by Steve Bracks’s Labor Government, which has good relations with the civil liberties lobby.

The fact is that this quote was not in context. Had Ms Attard excised her attempt at humour, she would have had time to quote from my entire comment about Justice Maxwell – which read as follows:

These days it is fashionable in civil liberties circles to analyse the background of High Court judges. Let's try the same practice with the Victorian Supreme Court, for a change. Take the Court of Appeal president, Maxwell, for example. According to Who's Who in Australia, he is a former staffer to a federal Labor attorney- general and a past president of Liberty Victoria. Maxwell was appointed to his present position by Steve Bracks's Labor Government, which has good relations with the civil liberties lobby.

Intellectual Dishonesty

A comparison of the two quotes underlies Media Watch’s intellectual dishonesty in this instance. Ms Attard dressed me down for daring to query the background of one of the three Appeal Court judges, Justice Maxwell. However, a reference to the full quote would have revealed that I actually wrote that if it was okay to analyse the background of High

Court judges – then it was worth trying the same practice with the Victorian Supreme Court.

As you should be aware, it has been a common practice for commentators to look at the background of the Howard Government’s appointments to the High Court of Australia – namely Murray Gleeson, Ian Callinan, Dyson Heydon and Susan Crennan. Is Media Watch really editorialising that it would be improper to even mention Justice Callinan’s background before his appointment to the High Court by the Howard Government? Almost certainly not. Or is Media Watch really saying that it is okay to analyse the background of judges appointed by the Coalition government in Canberra but not those appointed by the Labor government in Melbourne? Apparently so.

Then there is the matter of public interest. In view of the role played in the current debate by Liberty Victoria as a critic of the Coalition Government’s national security legislation (which enjoys broad support from the Labor Opposition) – surely readers of the Sydney Morning Herald and The West Australian are entitled to know that Chris Maxwell was a president of Liberty Victoria before his appointment as President of the Victorian Court of Appeal. Why should readers be denied this knowledge? It is not as if, when president of Liberty Victoria, Chris Maxwell refrained from a vigorous – and at times, hyperbolic – involvement in the public debate. Mr Maxwell, as he then was: (i) opposed the need for a new offence of terrorism, described the Howard Government’s proposed counter terrorism measures as “intellectually dishonest and profoundly worrying” and even asserted that the legislation was “redolent of Stalinist Russia” (The Australian, 24 December 2001). He also depicted any move by the Attorney-General to detain terrorists for a limited period as “more redolent of the KGB than of Australian civil society” (ABC Radio, The World Today, 28 November 2001).

Media Watch’s intellectual dishonesty did not end there. In her editorial, Monica Attard gave the impression that there was only one valid legal position in this instance – namely that of the three Court of Appeal judges who sat on The Queen v Thomas. She did not mention that the Court of Appeal overruled the decision of the experienced trial judge, Justice Philip Cummins, who sat in the case at first instance – DPP v Thomas (2006 VSC 243). Sure, the Court of Appeal overruled Justice Cummins – but this was no reason for Ms Attard to ignore the decision which led to the appeal. Justice Cummins, who was appointed to the Supreme Court in 1988, is a very experienced judge – and he held that Jack Thomas’ statement to the Australian Federal Police was voluntary.

There was (yet) another example of Media Watch’s intellectual dishonesty in this case. Nowhere in her editorial-to-air did Monica Attard mention that the Victorian Court of Appeal, in a postscript to its decision in The Queen v Thomas, has adjourned for further hearing consideration of whether there should be a re-trial in this case. Nor did Monica Attard mention that Jack Thomas voluntarily made comments to Sally Neighbour and the Four Corners program (which aired on 27 February 2006) that were almost identical to the comments he had made to the AFP which were ruled inadmissible by the Victorian Court of Appeal. As you would know, it is Jack Thomas’s comments to Four Corners which form the basis of the DPP’s application for a re-trial.

If Monica Attard (like all her predecessors on Media Watch) chooses to engage in advocacy then she should consider all the relevant evidence before stating her conclusion. Ms Attard did not do so last Monday when she sounded like a barracker for the Jack Thomas legal team and his supporters at Liberty Victoria.

Media Watch’s Inconsistency

As last Monday’s program demonstrates, the essential problem with Media Watch is that it is light on considered analysis but heavy on barracking. As is often the case with barrackers, there is a tendency to inconsistency. As recently as 8 May 2006, Monica Attard concluded Media Watch with the following statement:

Now just before we go tonight the latest news from the ABC. ABC journalist Quentin Dempster has been elected as staff representative on the ABC board. But Mr Dempster will never get to take up his seat. As we reported a few weeks ago, the government has decided to abolish the staff representative, to keep the board exclusively for government appointees.

Leaving aside the error (the ABC managing director – who sits on the ABC board – is not a government appointee), the clear implication of Ms Attard’s statement is that it is important who the Coalition government appoints to key positions. It follows that the background of such appointments is also important. But Monica Attard criticised me for mentioning the background of a judge who was a Labor appointment. A double standard without question.

A Leftist Predictability

The fact is that Media Watch is becoming increasingly predictable, in a leftist way. It has editorialised in favour of leftist cartoonist Michael Leunig but bagged Sydney Morning Herald editor Alan Oakley who refused to publish one of Leunig’s Howard-hating cartoons (Media Watch, 29 May 2006). Now it has effectively editorialised in support of the civil liberties lobby in the Jack Thomas case – for which it was thanked by his brother Les Thomas on ABC TV Lateline the same evening.

Media Watch’s leftist editorialising even extends to the use of language. A couple of examples illustrate the point. Keith Windschuttle is a “controversial historian” who has made an “infamous” claim against the ABC (Media Watch, 19 June 2006). However, ABC staffer Chris Masters is a “distinguished” journalist who should be supported by the ABC (Media Watch, 3 July 2006). How about that?

Conclusion

In conclusion, I repeat that Media Watch should desist from its (one- sided) advocacy and facilitate genuine debate and discussion about the media – where different voices are heard. Media Watch’s barracking last Monday demonstrates the extent to which the program distorts debate in order to advocate its favourite causes.

Yours sincerely

Gerard Henderson cc: - Kim Dalton, Director of Television, ABC TV - Monica Attard – Presenter Media Watch, ABC TV - Chris Mitchell - Chris Merritt - Alan Jones - Peter Faris QC

The next day Media Watch presenter Monica Attard phoned Gerard Henderson. Media Watch offered to publish his letter on the program’s website and Henderson agreed. On the following Monday Media Watch quoted from the letter and told viewers they could find it all on the website:

And The Sydney Morning Herald's Gerard Henderson also complained to us.

As last Monday's program demonstrates, the essential problem with Media Watch is that it is light on considered analysis but heavy on barracking. As is often the case with barrackers, there is a tendency to inconsistency. [Email from Gerard Henderson to Media Watch]

We think it's worth reiterating that Media Watch wanted to highlight the facts of the judgment and the misreportage of those facts. The Court quashed the charges against Jack Thomas because his confessions - contained in an interview with the Australian Federal Police in Pakistan - were tainted by threats of torture. Media Watch did not say it was wrong to question the judgment. Merely that it was important to report the facts correctly. Now we're too modest to show the emails of support, but if you'd like to see the complaints, they're all on our website - abc.net.au/mediawatch.

[Watch the segment or read the transcript http://www.abc.net.au/mediawatch/transcripts/s1732801.htm]

Two days later Gerard Henderson wrote to Media Watch again:

From: Gerard Henderson Sent: Wednesday, 6 September 2006 2:01 PM To: Monica Attard Subject: Media Watch's Intellectual Dishonesty - Part II

Dear Monica

You will recall that, following my email to Peter McEvoy dated 31 August 2006, you called me during the afternoon of Friday 1 September 2006. As you will remember, the conversation was – well – frank. You, on behalf of Peter McEvoy and the Media Watch team, dismissed my email in its entirety.

This I expected. Media Watch makes pronouncements on the Australian media in much the same way as the Pope makes pronouncements on morality. So it would be almost impossible for Monica Attard, speaking ex cathedra on Monday 4 September 2006, to contradict Monica Attard, who had spoken ex cathedra on Monday 28 August 2006.

However, I was genuinely shocked – and then amused – by your constant refrain during our phone call that I had not been criticised in any way on the Media Watch program which screened on 28 August. You said this on numerous occasions – maintaining that all Media Watch had done was to state what I had written about the Victorian Court of Appeal’s decision in The Queen v Joseph Terrence Thomas. This was a ridiculous statement which soon became farcical.

You then called me a second time to check whether I wanted a written reply to my email of 31 August. As you will recall, I replied in the affirmative – stating that I would file the reply under “comedy”. My point was that it was laughable for you to state that I had not been criticised by Media Watch and I would like to have Media Watch’s position on this stated in writing.

By the way, I have still not received the promised reply. In view of this, I do not regard any reference to your two phone calls to me as off-the- record. They are the only responses I have received so far and, consequently, they are all I have to work with in reply to your two (false) criticisms of me in successive weeks.

During our first phone conversation, you asked permission to quote from my email of 31 August. This I readily gave – along with a request that – on this occasion – any quote from me on Media Watch should be in context. I confirmed this in writing on the morning of Monday 4 September, when I emailed you to the following effect:

As discussed, I have no problem with you quoting from my email on Media Watch tonight – provided, of course, the quote is in context. However, I make one request. Since, as seems likely, Media Watch will engage in its usual practice of declaring itself as

absolutely correct while dismissing its critics as simply wrong – then I suggest that you should place my entire email on the Media Watch website and refer to it in the Media Watch transcript.

As expected, last Monday night Media Watch did engage in its usual practice of declaring itself absolutely correct while dismissing its critics as simply wrong. After all, that is the Media Watch (ex cathedra) way. However, what you said on air on 5 September was completely different from what you had said to me on the phone on 1 September. You introduced the final segment – on the Jack Thomas legal case – on Media Watch last Monday as follows:

We commented on incorrect reportage of the Victorian Court of Appeal’s decision to quash the convictions against him. Some people were pleased that we’d pointed out the failings of the media’s coverage of the decision. But those we criticised were furious…(Emphasis added. By the way, you gave special projection to the word “furious” – any fair reading of my note to Peter McEvoy would demonstrate that it was moderately worded and anything but “furious”.)

You then proceeded to list those who Media Watch had “criticised” on 28 August in the following order – (i) The Australian, (ii) Piers Akerman and (iii) myself.

Intellectual Dishonesty – Continued

So, you now do concede that I was criticised by you on 28 August. However, once again, Media Watch’s coverage of what I wrote in my syndicated column on 22 August was intellectually dishonest. With all Media Watch’s resources, you should be able to do better than this.

On Media Watch last Monday, you specifically linked me with a group of commentators who you asserted had involved themselves in an “incorrect reportage” and “misreportage” of the Victorian Court of Appeal’s decision in The Queen v Thomas.

The fact is that I did not write anything that was “incorrect” about the case. Sure, I criticised the Court of Appeal’s decision and indicated my preference for the ruling of the highly experienced trial judge, Justice Philip Cummins, in the case at the first instance. That was it. No one – apart from Media Watch – has claimed that I made any factual error of any kind in my column on The Queen v Thomas.

It is a serious – and professionally damaging – claim to assert (without any supporting evidence) that I was “incorrect” in reporting a legal case, that I failed “to report the facts correctly” and that I engaged in “misreportage”. This is especially so since, as my Who’s Who in Australia entry indicates, I have a law degree and a Ph.D. In other words, I am expected to understand legal judgments.

Since you made the claim – you should supply the evidence. Please advise ASAP as to what were my (alleged) errors of fact.

Media Watch - and Barracking

On Media Watch last Monday you effectively dismissed what you presented as a complaint from me about the program’s barracking. Yet, in your first phone call to me on 1 September, you acknowledged that in its program on 28 August Media Watch was “barracking for Thomas’ civil liberties”. I took a handwritten note of your comment at the time and, as you will recall, I repeated your comment about Media Watch “barracking for Thomas’ civil liberties” back to you – and you defended your correctness of your case. What you completely failed to understand is that there is a genuine difference of view about Jack Thomas’ civil liberties and the continuing liberties of all Australians.

How about that? Last Friday you admitted in private that Media Watch had engaged in “barracking” in the Jack Thomas case but on Monday you presented such a critique of the program as unreasonable.

Conclusion

As I have commented previously, there is more balance among presenters on Rupert Murdoch’s Fox News than there is on the ABC. Likewise the Fox News News Watch program actually engages in debate and discussion about the media and hears the views of conservatives and left- liberals alike. On Media Watch, however, a series of leftist presenters simply lay down the line, declare that Media Watch’s position is correct and label those who hold a different view as simply wrong.

Since there is no adequate right of reply on Media Watch – and no debate – all I can do is to write to Peter McEvoy (as executive producer) or you (as presenter) and state my case – while requesting that you provide the evidence for your false – and intellectually dishonest – claims about me.

So, I await:

(i) a reply to my email to Peter McEvoy, which you said would be forwarded. (ii) the evidence to support your allegation that my analysis of the Court of Appeal’s decision in The Queen v Thomas was in any way “incorrect” or that I failed “to report the facts correctly”.

Over to you. Best wishes.

Yours sincerely

Gerard Henderson

PS : Since there is no right of reply on ABC TV, I request that you place this email on the Media Watch website. Limited as this is, there is no other way of registering a correction to your ex cathedra pronouncements. cc: - Peter McEvoy - Kim Dalton - Chris Mitchell - Chris Merritt - Alan Jones - Peter Faris QC

Media Watch Executive Producer Peter McEvoy, in consultation with ABC TV management, decided that this letter constituted a complaint that should be referred to ABC Audience and Consumer Affairs. In the meantime Anne Henderson, the deputy director of the Sydney Institute and Gerard Henderson’s wife, publicised his complaint in Crikey:

20. Media Watch lacks professionalism – Henderson Anne Henderson, deputy director of The Sydney Institute, writes: Has ABC TV’s Media Watch finally taken the government funded broadcaster to a zenith in partisan and unrepresentative comment? Judged from the past fortnight’s programs, it certainly has. In February this year, Monica Attard sent me a friendly email, in response to an invite to a fundraising lunch for refugees. Ms Attard couldn’t make the lunch but wondered how I found her (just begun) presentation of Media Watch.

In reply I offered a few lines of honest, but tactful, advice: I liked her new hairdo on screen, thought the first story from that week was trivial and that too often the ABC’s political correctness meant it saw nothing wrong in blasphemous reports on Christianity or Judaism while at the same time taking on inappropriate reportage of Islam. Then I opined, seriously, that the format of one person on the screen was tired and too preachy, and often Media Watch’s judgements were simply opinions delivered as fact. Monica replied, “glad you’re still watching ... I’ll call re coffee next week sometime.” I have not heard from her since. Media Watch personnel don’t like criticism, while dishing out their own stinging attacks on others. But the MW response to the overturning on appeal of Jack Thomas’s conviction for his self- confessed links with al Qaeda has revealed an astonishing conceit in the MW team. The baddies according to MW, in Attard’s school principal style, are The Australian’s Chris Merrit, lawyer and broadcaster Peter Faris QC, the Daily Telegraph’s Piers Akerman, 2GB’s Alan Jones and The Sydney Morning Herald’s Gerard Henderson. The goodies are those who support Thomas. As Attard later admitted to Henderson, MW was in fact “barracking for Thomas’s civil liberties”. In a private exchange, Chris Mitchell offered MW executive producer Peter McEvoy a very credible defence of The Australian’s reporting of the Thomas saga. McEvoy stated that Mitchell was “simply wrong”. Such self-righteousness is to be found in fundamentalist texts but is certainly not what most taxpayers expect from a public broadcaster in a Western democracy. The Mitchell-McEvoy emails, initiated by McEvoy, reveal an unashamedly partisan MW in the Jack Thomas case, happily convinced of who was “right” and who “wrong”. Yet educated individuals know that legal opinion is just that, opinion, even if decisions made are final. Many trials are disputed; there is only the court’s decision. The law can be an ass, as Charles Dickens once wrote – just his opinion of course. Mitchell concludes, with justification, that MW lacked professionalism in the Jack Thomas affair: "The problem with Media Watch's approach on the Jihad Jack story is that the principles applied to its criticisms were political rather than journalistic." But in a pluralist society, it doesn’t pay to be so certain.

McEvoy’s emails to Mitchell attempt point scoring, accusing The Australian of selectivity in its reportage. Yet, even as he did this, McEvoy and Attard were themselves selective in reporting the Thomas story. MW failed to mention that the Court of Appeal had reserved its decision as to whether there should be a retrial, based on statements from Thomas, freely made to the ABC’s Sally Neighbour and aired (27/2) on Four Corners. Gerard Henderson has his own record of email and phone exchanges with MW, following its criticism of his SMH columns on the Thomas case and its legal outcomes. In an email to McEvoy, Henderson accused MW of quoting him out of context. Like Mitchell, he argued his case. McEvoy has not replied but Attard, in a phone call to Henderson, opined that he was “wrong”. In other words, there is only one valid view of the matter – the MW view. But Attard has also twisted and turned. Henderson pointed out that during her phone call Attard denied that MW had criticised his views. Yet, in her lead into the issue the following Monday evening (4/9), Attard said on air, referring to Henderson et al, “those we criticised were furious”. Henderson points to this admission on air, noting he was right after all. He adds that he is still annoyed by the unprofessional usage of his views. Accused, by MW, of being part of a group of commentators who were involved in “incorrect reportage” of the Victorian Court of Appeal’s decision, Henderson has demanded the evidence, claiming he has not made any factual errors in his comments on the case. The “evidence” is yet to be provided. Peter Faris QC likewise is incensed, remarking that the MW criticism of him was based on a selective quote from his 3AW program that left him looking at fault under fire from civil libertarian Robert Richter QC. This was never balanced by Faris’s position in response. As I told Monica Attard last February, media watching on the ABC is well overdue for a new look. Disclosure: The Gerard Henderson in these comments is both my partner at work and at home – which should be well known to the media. [crikey.com.au 7/09/2006]

Media Watch didn’t agree with Ms Henderson’s take on events, but chose not to reply. Read the “hairdo” email exchange with Monica Attard referred to above. A few days later Gerard Henderson wrote to the ABC again:

From: Gerard Henderson Sent: Monday, 11 September 2006 12:18 PM To:[Kim Dalton, Director of ABC TV] Subject: Media Watch's failure to provide evidence to support (incorrect) allegation about me on last Monday's program Dear Kim

I am writing to you in your capacity as the ABC’s Director of Television – and, as such, responsible for the ABC TV Media Watch program.

As you will recall, I have forwarded to you copies of my recent email correspondence with Peter McEvoy (dated 31 August 2006) and Monica Attard (dated 4 September 2006).

As you will be aware, on last Monday’s Media Watch, Monica Attard alleged that I was one of several commentators who failed “to report the facts correctly” concerning the Victorian Court of Appeal decision in The Queen v Thomas. She also accused myself and others of “incorrect reportage” and “misreportage”. This, as you will understand, is a serious – and professionally damaging – accusation.

On Wednesday 6 September I wrote to Monica Attard (and sent a copy to Peter McEvoy) requesting, inter alia, that she provide to me “the evidence to support your allegation that my analysis of the Court of Appeal’s decision in The Queen v Thomas was in any way ‘incorrect’ or that I failed ‘to report the facts correctly’”.

Five days have passed – and neither Ms Attard nor Mr McEvoy has provided any evidence to support the criticism which Media Watch made of me on last Monday’s program. In fact, no evidence has been provided because no evidence exists.

In view of this, I expect that Ms Attard will make an on-air correction on Media Watch tonight – acknowledging that I did not fail to report the facts correctly concerning the Victorian Court of Appeal’s decision in The Queen v Thomas.

Looking forward to hearing from you.

Gerard Henderson

cc: Peter McEvoy – Executive Producer, Media Watch Monica Attard – Presenter, Media Watch

And the next day this: From: Gerard Henderson Sent: Tuesday, 12 September 2006 1:16 PM To: [Kim Dalton, Director of ABC TV] Subject: The continuing saga - Media Watch's denial, self-justification and evasion

Dear Kim

I refer to my email of yesterday morning. I note that, in presenting Media Watch last night, Monica Attard did not correct the false statement about me which she made on Media Watch on Monday 4 September 2006.

I note that Media Watch’s reaction to my criticisms of its references to me on both Monday 28 August and Monday 4 September has been to engage – successively – in denial, self-justification and evasion

There has been no written response to my email to Peter McEvoy dated 31 August and no response of any kind to my email to Monica Attard dated 6 September. My email to you yesterday morning was not even acknowledged.

I understand that ABC staff are busy – even so, this is a remarkably unprofessional way to handle a serious complaint. This underlines the fact that there is no effective right of reply to Media Watch’s editorialising. On Fox News’ News Watch, on the other hand, there is no editorialising, much debate and a right of reply. ABC TV can – and should – do better with respect to Media Watch.

In any event, this issue will not go away simply by Peter McEvoy and Monica Attard ignoring my correspondence. I thought you might like to know this.

Best wishes

Gerard Henderson cc: Peter McEvoy Monica Attard

The ABC’s Director of Television Kim Dalton replied that day.

12 September 2006 Mr. Gerard Henderson

Dear Gerard,

Thanks for your email.

The Executive Producer of Media Watch Peter McEvoy has determined that your email of 4 September 2006 is a complaint.

In line with ABC Editorial Policy your complaint has been referred to the Head of Audience and Consumer Affairs. She will investigate the issues you raise and provide a direct response.

Yours Sincerely

Kim Dalton Director of Television

The next day Mr Henderson wrote back.

From: Gerard Henderson Sent: Wednesday, 13 September 2006 1:08 PM To: [Kim Dalton, Director of ABC TV] Subject: Peter McEvoy's most recent fudge

Dear Kim

Background

Thanks for your email dated 12 September (which was received at 7.40 pm) in response to my emails of 11 September and 12 September.

I note your advice that “the Executive Director of Media Watch has determined that your email of 4 [sic] September 2006 is a complaint” and that, consequently, the issue “has been referred to the Head of Audience and Consumer Affairs”.

This is not a promising start. The email to which Mr McEvoy must be referring is that which I forwarded to Monica Attard on 6 September – not 4 September. My brief note to Ms Attard dated 4 September was sent before the Media Watch program of the same day when incorrect comments were made about me. This is yet another example of Media Watch’s evident lack of professionalism – especially since Peter McEvoy and his team are so critical of the errors of others.

Evidence Sought – Complaint Not Lodged

A reading of my email of 6 September to Monica Attard demonstrates that I was not lodging a complaint. In so far as the Media Watch program of 4 September is concerned, I simply asked Ms Attard to provide:

…the evidence to support your allegation that my analysis of the Court of Appeal’s decision in The Queen v Thomas was in any way “incorrect” or that I failed “to report the facts correctly”.

Neither Ms Attard nor Mr McEvoy even acknowledged my email of 6 September – so, obviously, both failed to provide any evidence to support Media Watch’s criticism of me on its 4 September program. Now, after ignoring my email for some six days, I am now advised that Peter McEvoy regards my request for evidence as “a complaint”.

How convenient for Media Watch. Peter McEvoy has failed to provide any evidence of any kind in support of Media Watch’s criticism of me. Moreover, by unilaterally handing the matter over to the Head of Audience and Consumer Affairs, Mr McEvoy has managed, at the very least, to postpone a resolution of the issue – perhaps even beyond Media Watch’s 2006 season. According to the ABC’s Fact Sheet titled ABC Audience Complaint Handling, the Head of Audience and Consumer Affairs “aims to respond to all complaints within four weeks of receipt” but a response may “be delayed past this point”.

Media Watch’s Appalling Double Standard

Such a tactic of delay is not tolerated by Media Watch itself when it seeks responses to its own queries prior to criticising journalists/commentators on its own program. Take Media Watch’s initial coverage of the Jack Thomas case, for example. Peter McEvoy emailed Chris Mitchell, The Australian’s editor-in-chief, at 2.50 pm on Friday 25 August and requested his “response by 10 am Sunday 27 August 2006”. In other words, Mr McEvoy requires that his requests for evidence should be met

19 within less than two days. However, he is happy to initially ignore requests to Media Watch for its own evidence and then to pass the matter to the Head of Audience and Consumers Affairs – which could involve an additional delay in resolving the matter of up to four weeks or more. An appalling double standard, if ever there was one.

Just A Reminder

As you may recall, when we had lunch on 27 June I mentioned to you my criticisms of Media Watch – namely its tendency to preach, the lack of debate within the program and its unwillingness to acknowledge its own errors in private along with its refusal to correct its mistakes on air. All these matters are evident in Media Watch’s handling of the present matter.

I regret that, as Director of Television, you did not intervene in this matter at an earlier date – since, as you are aware, I copied all my correspondence to Media Watch to you. The result is that I still have not received a written reply to my email dated 31 August to Peter McEvoy (in spite of the fact that Monica Attard advised me that a written reply would be sent) and Peter McEvoy declined to respond to my email dated 6 September.

Conclusion – Peter McEvoy’s State of Denial

In my view you should have addressed the fact that Media Watch’s executive producer, Peter McEvoy, is in denial – as a brief summary of the matter demonstrates:

▪ On Monday 4 September Monica Attard alleged that I was one of the number of commentators who had (i) made “incorrect” comments, (ii) failed “to report the facts correctly” and (iii) engaged in “misreportage” – with respect to the Victorian Court of Appeal’s decision in The Queen v Thomas.

▪ In making this claim Ms Attard, was clearly referring to my Sydney Morning Herald column of 22 August 2006 when I wrote:

the interview as evidence in his trial. It was this ruling that was overturned by the Court of Appeal, which quashed the conviction.

▪ A reading of the full Court of Appeal judgement in The Queen v Thomas indicates that my comment (quoted above) is completely accurate.

▪ Yet Monica Attard alleged on Media Watch – without evidence – that my analysis of the judgement was “incorrect”. Meanwhile Peter McEvoy still refuses to provide any evidence to support Ms Attard’s allegation. This denies me the opportunity for prompt correction and demonstrates, once again, the inadequacy of the ABC’s complaints procedures – in the first instance, at least.

Best wishes

Yours sincerely

Gerard Henderson cc: - Peter McEvoy - Monica Attard - Chris Mitchell - Chris Merritt - Alan Jones - Peter Faris QC

And Gerard Henderson also wrote to the ABC’s Head of Audience and Consumer Affairs.

TO : KRISTIN McLIESH Head – Audience & Consumer Affairs ABC FROM : GERARD HENDERSON

DATE : 13 SEPTEMBER 2006

Dear Ms McLiesh

I have been advised by Kim Dalton that the executive director of Media Watch, Peter McEvoy, has determined that an email which I forwarded to him in early September 2006 is a complaint – and that, as such, it has been referred to you in your capacity as Head of Audience and Consumer Affairs.

This was not my wish. As my email to Monica Attard dated 6 September clearly indicates, I asked Media Watch to provide evidence to support the false claims which were made about me on the 4 September program. Media Watch declined to even acknowledge my email – so, obviously no evidence was provided.

What I was hoping for was a quick correction by Media Watch – preferably on the 11 September program. Now this has been denied to me by what seems to be a tactic of delay. If Mr McEvoy had the evidence, he should have provided it to me on request. If Mr McEvoy did not have the evidence, he should have arranged for Media Watch to make a quick correction on its 11 September program. In fact, he did neither.

I have attached copies of the entire correspondence in this matter – viz: ▪ Gerard Henderson to Peter McEvoy, 31 August 2006 ▪ Gerard Henderson to Monica Attard, 4 September 2006 ▪ Gerard Henderson to Monica Attard, 6 September 2006 (note this documents Ms Attard’s phone call to me on 1 September) ▪ Gerard Henderson to Kim Dalton, 11 September 2006 ▪ Gerard Henderson to Kim Dalton, 12 September 2006 ▪ Kim Dalton to Gerard Henderson, 12 September 2006 ▪ Gerard Henderson to Kim Dalton, 13 September 2006

Despite the lengthy (and mostly unacknowledged) correspondence, the specific matter at issue is quite straight forward.

▪ On Media Watch on Monday 4 September, Monica Attard alleged that I was one of the number of commentators who had (i) made “incorrect” comments, (ii) failed “to report the facts correctly” and (iii) engaged in “misreportage” – with respect to the Victorian Court of Appeal’s decision in The Queen v Joseph Terrence Thomas (2006 VSCA 165).

▪ In making this claim, Ms Attard was clearly referring to my Sydney Morning Herald column of 22 August 2006 where I wrote:

In the Supreme Court at first instance, [Justice] Cummins found Thomas’s interview with the AFP was conducted properly and fairly, that the answers of the accused were voluntary and that the absence of legal representation should not lead to the exclusion of the interview as evidence in his trial. It was this ruling that was overturned by the Court of Appeal, which quashed the conviction.

▪ A reading of the Court of Appeal’s judgment in The Queen v Thomas indicates that my comment (quoted above) is completely accurate.

▪ Peter McEvoy will neither provide evidence in support of Monica Attard’s (false) assertion – nor will he agree to run a brief correction on Media Watch. By engaging in the self-serving tactic of delay (by treating my request for evidence as a complaint) he has effectively brought about a situation where there can be no immediate correction to Media Watch’s error – at a time when the program of 4 September 2006 is fresh in viewers’ minds. This is convenient for Mr McEvoy and Ms Attard – but the delay in making a correction is damaging to my professional reputation.

I trust that this matter can be readily resolved. Mr McEvoy’s apparent delay of almost a week – from the arrival of my email of 6 September until the advice I received today from Mr Dalton that the matter had been referred to you – has already slowed the resolution of this issue.

Yours sincerely

Gerard Henderson

The next day the ABC’s Director of Television replied to Mr Henderson again.

14 September 2006 Mr. Gerard Henderson

Dear Gerard,

Thanks for your email.

My apologies for misdating your correspondence as 4 September. Your email was, as you say, sent on 6 September.

I note that in your email of 12 September you describe your correspondence as "a serious complaint".

We have treated it as a complaint and referred it to the Head of Audience and Consumer Affairs. I can assure you it will be considered and fully investigated in accordance with ABC Editorial Policy.

Yours Sincerely,

Kim Dalton Director of Television

And Mr Henderson wrote back that day.

TO : KIM DALTON Director of Television FROM : GERARD HENDERSON

DATE : 14 SEPTEMBER 2006

Dear Kim

Many thanks for your prompt response. Your apology for the wrong date is accepted. I assume (but do not know) that the error emanated from Peter McEvoy and the Media Watch team.

It is true that, in my email to you dated 12 September, I did refer to my (unanswered) correspondence with Media Watch as involving “a serious complaint”. But this did not entail – and was not intended to imply – that I wanted to lodge a formal complaint under the ABC’s audience complaint handling procedures. Had I wanted to do this, I could have initiated such a procedure myself. As the record demonstrates, I did not do so.

If someone asks me to provide evidence to support a criticism which I have made of him/her, I provide the evidence. When I asked Peter McEvoy and Monica Attard to provide evidence to support the criticism which was made of me on Media Watch on 4 September 2006, Media Watch referred the matter to the ABC’s Head of Audience and Consumer Affairs.

This is a convenient delaying device – and underlines a flawed procedure in the ABC complaints procedures, in the first instance at least.

If I make an error in, say, my Sydney Morning Herald column, the SMH Editor can run a correction immediately or the SMH Letters Editor can publish a letter correcting the error. Quite rightly, I would have no say over whether or not such a correction or letter was published. If Media Watch is accused of an error, the program’s executive producer can thwart an immediate correction by classifying a request for evidence or a correction as a formal complaint and then referring the matter to the Head of Audience and Consumer Affairs – with the inevitable delay that such procedure entails.

The fact is that if Mr McEvoy and/or Ms Attard had responded to my request that they provide the (alleged) evidence – there would be no need for the matter to be referred to the Head of Audience and Consumer Affairs.

Best wishes

Yours sincerely

Gerard Henderson cc: Peter McEvoy Monica Attard

The ABC’s Head of Audience and Consumer Affairs also wrote to Gerard Henderson.

From: Kirstin McLiesh Sent: Thursday, 14 September 2006 10:31 AM To: Gerard Henderson Subject: RE: Media Watch

Dear Mr Henderson,

Thank you for your email regarding Media Watch.

I acknowledge that it was not your wish that your correspondence be referred to Audience & Consumer Affairs. However, ABC Editorial Policies oblige program makers to refer all written complaints alleging a breach of these policies to Audience & Consumer Affairs for investigation. This investigation will now proceed unless you withdraw your complaint.

As you are aware, the ABC aims to respond to all complaints within four weeks of receipt. I do not expect that investigation of the matters you have raised will take that long, and will respond to you as soon as my investigation is complete.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

Mr Henderson replied.

From: Gerard Henderson Sent: Thursday, 14 September 2006 4:00 PM To: Kirstin McLiesh Subject: RE: Media Watch

Dear Ms McLiesh

Many thanks for your prompt response.

As the record demonstrates, I did not initiate a formal complaint under the ABC's audience complaints handling procedures. Now that the matter

26 has been referred to you by Media Watch, I have little alternative but to hear what you have to say.

If someone asks me to provide evidence to support a criticism which I have made of him/her in one of my articles or broadcasts, I provide the evidence. When I asked Peter McEvoy and Monica Attard to provide evidence to support the criticism which was made of me on Media Watch on 4 September 2006, they refused to provide any evidence and referred the matter to you. This is a convenient delaying tactic - even if you manage to complete your investigation in a relatively short period. It underlines the flawed nature of the ABC's complaints procedures - in the first instance at least. The longer the time between an incorrect statement on the electronic media and a subsequent on-air correction, the less valuable the correction is.

The fact is that if Mr McEvoy and Ms Attard had responded to my request to provide the (alleged) evidence, there would have been no need for the matter to be referred to Audience and Consumer Affairs.

I await the result of your investigation.

Yours sincerely

Gerard Henderson

And she replied immediately.

From: Kirstin McLiesh Sent: Thursday, 14 September 2006 4:03 PM To: 'Gerard Henderson' Subject: RE: Media Watch

Dear Mr Henderson,

Thank you for your email and your further comments.

I will write to you again as soon as my investigation is complete.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

The next day Gerard Henderson wrote to the Director of Television again.

From: Gerard Henderson Sent: Friday, 15 September 2006 3:52 PM To: [Kim Dalton, Director of ABC TV] Subject: Media Watch's double standards - Episode 93 Dear Kim

As you will be aware, the Head of Audience and Consumer Affairs has commenced an investigation into my letter to Monica Attard dated 6 September 2006. I await the outcome of Kirstin McLiesh’s investigations.

I was going though some files this morning and remembered that in early 2005 Liz Jackson, in her capacity as “the host of Media Watch”, wrote to the Sydney Morning Herald alleging that I had made an error concerning a program which she did for 4 Corners. Peter McEvoy was executive producer of Media Watch at that time and, presumably, was aware of Ms Jackson’s actions.

My SMH column appeared on 8 March 2005. Liz Jackson’s letter was published the next day. This demonstrates, once again, Media Watch’s double standards. Media Watch insists on corrections when it alleges that incorrect comments have been made about its personnel. But Media Watch refuses to even supply its evidence when others maintain that it has made an error. Instead Peter McEvoy institutes a delay by use of the ABC’s bureaucratic complaints procedure. How about that?

Best wishes – and have an enjoyable weekend.

Gerard Henderson cc: Monica Attard Peter McEvoy

The same day he lodged a new complaint with the ABC.

From: Gerard Henderson Sent: Friday, 15 September 2006 3:17 PM To: Kirstin McLiesh Subject: Some additional material for your investigation

Dear Ms McLiesh

I refer to our recent correspondence where you advised that you were undertaking a formal "investigation" in response to my email to Monica Attard dated 6 September 2006.

In view of this, I should draw your attention to one additional matter. As you are aware, I completely disagree with Ms Attard's allegation that I failed to report the facts correctly concerning my comments on the Victorian Court of Appeal decision in The Queen v Joseph Terrence Thomas (2006 VSCA 165).

However, it is appropriate at this stage to draw your attention to the incorrect claim which Monica Attard made on Media Watch on 4 September when criticising me. The transcript documents that, following a criticism of me, Ms Attard made the following comment:

We think it's worth reiterating that Media Watch wanted to highlight the facts of the judgement and the misreportage of those facts. The Court quashed the charges against Jack Thomas because his confessions - contained in an interview with the Australian Federal Police in Pakistan - were tainted by threats of torture.

Monica Attard's statement is inaccurate. The ratio of the Court of Appeal's decision can be found at Paragraphs 91 to 95 of the judgement, where Maxwell P, Buchanan J and Vincent J wrote as follows:

91 What is important is whether the applicant could, in any real sense, be said to have had a free choice to speak or remain silent. In our view, the Judge fell into error by divorcing the interview from the context in which it occurred, a context which his Honour found operated on the will of the applicant. It is necessary, when considering the admissibility of an inculpatory statement made by a person in the course of a police interview, to bear in mind that evidence of this kind differs from most other forms of evidence. The most obvious difference, which has long been identified and to

29 a large extent underlies the principles governing the admissibility of such evidence, is that the evidence comes into existence at the time of the interview and is a product not only of the interview itself but of many factors, both external and personal to the maker. Whether or not an individual decides to speak or remain silent, and the content and form of any statement made, will inevitably be influenced by his perception of the situation in which he is placed at that time.

92 Obviously, the fact and circumstances of his detention, the various inducements held out and threats made to him, and the prospect that he would remain detained indefinitely, can be seen to have operated upon the mind of the applicant when he decided to participate in the 8 March interview. Whilst nothing occurred in the interview itself that could be seen to overbear the will of the applicant, there can be little doubt he was, at that time, subject to externally-imposed pressure of a kind calculated to overbear his will and thereby restrict, in a practical sense, his available choices and the manner of their exercise. His endeavours to persuade the interviewers of his good faith and the extent of his co-operation up to that point indicate that he was, as the trial judge found, seriously concerned about what would befall him if he failed to do so. [Emphasis added]

93 The interview was conducted in circumstances where the interviewers were well aware of the extreme pressure to which the applicant was subject, including his knowledge that they knew a great deal from the earlier interviews. They must have recognised that there was great pressure on him and, therefore, that this was a situation which carried a substantial risk that his will might be overborne.

94 Admissions made in the circumstances we have described could not, in our view, be held to be voluntary. It follows that the evidence of the interview of 8 March 2003 should not have been admitted. This application should be allowed and the convictions set aside. [Emphasis added].

95 In view of this conclusion, it is not necessary to address the other grounds of the application. For completeness, however, they will be dealt with briefly...

In other words, the Court of Appeal made it clear that its decision turned on its finding that Jack Thomas's interview with the Australian Federal Police could not be held to be voluntary. This is what I wrote in my Sydney Morning Herald column on 22 August 2006. Ms Attard's statement on Media Watch on 4 September demonstrates that she - not me - engaged in misreportage of The Queen v Thomas. The Court did not come to its conclusion because (what Ms Attard termed) the "confessions" of Jack Thomas "were tainted by threats of torture". This is a misreading of the judgment in The Queen v Thomas.

I would be happy to elaborate on any of the points raised in this note.

Yours sincerely

Gerard Henderson

Six days later Mr Henderson wrote again.

From: Gerard Henderson Sent: Thursday, 21 September 2006 11:01 AM To: [Kim Dalton, Director of ABC TV] Subject: Media Watch's double standards - Episode 94

Good morning Kim

It’s now over two weeks since (unilaterally) Peter McEvoy categorised my email of 6 September 2006 to Monica Attard as an official complaint and forwarded it off to the Head of Audience and Consumer Affairs. How time flies. As Mr McEvoy will be aware, the greater the distance between an incorrect statement and a subsequent correction – the less significant such a correction is.

On another matter. When should I expect a reply from Mr McEvoy to my email to him dated 31 August 2006? As previously advised, Monica Attard informed me on 1 September that a written reply would be forthcoming. For the record, the matters raised in my email of 31 August were not classified by Mr McEvoy as a formal complaint under the ABC’s audience complaint handling procedures. So there is no reason why Mr McEvoy should not answer his correspondence – in this instance, at least.

I referred to Media Watch’s handling of the Jack Thomas matter in my address to the Safeguarding Australia 2006 conference which was held in Canberra last Tuesday. I will soon be placing this on the web. The speech includes reference to Ms Attard’s acknowledgement that Media Watch was “barracking for Thomas’ civil liberties”. A number of people at the conference did not believe that Media Watch should be in the barracking business. But, then, they are mere viewers – and taxpayers.

One final point. On flying to Canberra I read Rod Liddle’s fine tribute to the late Michael Vestey, who worked for the BBC before becoming The Spectator’s radio columnist. It so happens that Rod Liddle’s reference to the prevailing leftist BBC culture was very similar to my criticism about Mr McEvoy in my recent emails to you.

Rod Liddle wrote in The Spectator (2 September 2006):

The BBC had very few right-wing journalists when I joined it in 1989. It has scarcely more now. I have no objection to left-wing

points of view and still consider myself of the Left, sort of; but it is that suffocating, moronic, politically-correct, anti-liberal leftism at the BBC which both revolted Michael [Vestey] and, in the end, did for him. The standpoint which insists not that alternative views may be mistaken, even though held in good faith, but are clearly, objectively wrong – no argument – and therefore cannot possibly be countenanced.

This is pure McEvoyism. As I documented in earlier correspondence, Mr McEvoy has branded those who take a different view to Media Watch (on its reporting of what Monica Attard referred to as “Thomas’ civil liberties”) as simply – WRONG.

That’s the problem with Media Watch. It simply does not tolerate alternative views. So much so that Media Watch refuses to answer correspondence which requests the evidence on which it makes its criticisms. Which reminds me – when will Mr McEvoy honour Ms Attard’s promise and reply to me.

I will send you a copy of my Safeguarding Australia speech shortly. For your records.

In the meantime, Keep Morale High.

All the best

Gerard Henderson cc: Peter McEvoy Monica Attard

The next day Mr Henderson received the following reply from the ABC’s Head of Audience and Consumer Affairs.

22 September 2006 Mr Gerard Henderson The Sydney Institute

Dear Mr Henderson,

Further to our earlier correspondence, I write to advise of the ABC's response to your complaint about Media Watch. Before addressing the substance of your complaint, I should advise that Media Watch is a program of opinion and comment. It is classified under section 5 of the ABC's Code of Practice as a Factual program. This means that the program is able to explore, or be presented from, particular points of view. However, every effort must be made to ensure that factual content is accurate and viewpoints are not misrepresented. Your complaint is that on Media Watch on Monday 4 September, Monica Attard alleged that you were one of the number of commentators who had (i) made “incorrect” comments, (ii) failed “to report the facts correctly” and (iii) engaged in “misreportage” – with respect to the Victorian Court of Appeal’s decision in The Queen v Joseph Terrence Thomas (2006 VSCA 165). I have reviewed the 4 September program and cannot support your complaint that you were accused of inaccuracy. The segment that you identify referred to the previous week's episode, in which Media Watch had made a range of observations about media reports of the decision to quash the Thomas conviction. The 4 September segment commenced with the presenter making the following remarks: "...we didn't say a word about the control orders imposed on Jack Thomas last week. We commented on incorrect reportage of the Victorian Court of Appeal's decision to quash the convictions against him. Some people were pleased we'd pointed out the failings of the media's coverage of the decision. But those we criticised were furious, accusing us of mounting an...... hysterical campaign against this newspaper for its coverage of the quashed conviction of confessed terror trainee "Jihad" Jack Thomas fails even the most basic sniff test. — The Australian, 'Beat-ups and Lies, 30th August, 2006" Having reviewed the segment, I understand the words "those we criticised were furious" to be directed solely at The Australian. The program

34 emphasised this by quoting part of one of The Australian's responses immediately afterwards, and using The Australian's own words ("campaign against this newspaper") to describe the response of "those we criticised". Following this discussion of "those we criticised", the program moved on to new criticisms that had been made of it by Piers Akerman and yourself. You indicated in your correspondence of 6 September that you understood "those we criticised" to be a reference to The Australian, Piers Akerman, and yourself. However, a review of the program from 28 August shows that Mr Akerman's work was not mentioned or criticised. Similarly, while your work was mentioned, the program did not suggest that your article was inaccurate in any way. While the ABC acknowledges that the viewpoints expressed during this segment are not the only viewpoints on this matter, we are satisfied that the program met the requirements for accuracy outlined in the Code of Practice. Accordingly, the ABC does not believe that any correction is necessary. Your email of 15 September set out a further complaint that the following statement from Media Watch on 4 September was inaccurate: "We think it’s worth reiterating that Media Watch wanted to highlight the facts of the judgement and the misreportage of those facts. The Court quashed the charges against Jack Thomas because his confessions – contained in an interview with the Australian Federal Police in Pakistan – were tainted by threats of torture." As you say in your email, the Court’s decision was that the confession was involuntary. However, it is also a fair and accurate summary of the Court's decision to say that the confessions were tainted by threats of torture: • The Court of Appeal held that Jack Thomas’ admissions in his AFP interview on 8 March 2003 were involuntary (Judgment par 94 “Admissions made in the circumstances we have described could not, in our view, be held to be voluntary“). • The Court found that the interview during which Thomas made these admissions was held against a background of previous interviews and experiences at the hands of the authorities, and his state of mind had to be viewed in that context. (par 91 “In our view, the Judge fell into error by divorcing the interview from the context in which it occurred”) • The Court found his state of mind was that he believed that he would have to confess; if not, he risked indefinite detention in Pakistan or elsewhere (an ‘inducement held out by authorities’). His apprehension about that indefinite detention was based on his experiences to date, including his treatment at the hands of Joe. (pars 85- 87 “Put bluntly,

there can be little doubt that it was apparent to the applicant, at the time of the AFP interview, as it would have been to any reasonable person so circumstanced, that, if he was to change his current situation of detention in Pakistan and reduce the risk of indeterminate detention there or in some unidentified location, co-operation was far more important than reliance on his rights under the law. Indeed, it is apparent that he believed – and, we would add, on objectively reasonable grounds - that insistence upon his rights might well antagonise those in control of his fate. Those conducting the interview were well aware of his earlier, but inadmissible admissions and knew something, at least, of the treatment to which he had been subjected, including the threats made against him and his wife by the American, “Joe”. As far as the applicant was concerned, nothing had changed.”) • That treatment included threats of torture. (par 33 “He was held in Lahore for three weeks and was interrogated on a daily basis by Pakistani officials and by an American called “Joe”… ‘A point was reached at which Joe made threats to me. … I was kept in a cell smaller than my first one. The living conditions were disgusting. It was wet, the blankets were rotten, there were mossies everywhere, the meals were the same every day. I couldn’t eat. Joe … wasn’t believing me so he was ratcheting up the pressure. He said I would be sent back over the border into Afghanistan, where the latest technique to extract information was twisting testicles. ‘I love to hear the sound’, he said, ‘-‘when they twist their testicles. They just scream.’ He said the guards would not treat me like that here. I would be bashed and beaten every day. He said: ‘You’re just going to have to prove it once you get there.’ I felt sure I was being sent there and no matter what I said wouldn’t console him. I just got to a stage when I broke down because of what he was saying, especially about my wife and sending agents to Australia to rape my wife.’ “) • In this context, it was held by the Court, Thomas’ will was overborne. (par 80 “[T]he applicant believed that the best course for him to adopt to reduce the chance of this happening was to demonstrate as forcefully as he could that he was prepared to co-operate fully with them and, as far as possible, ingratiate himself with the Australian authorities in the anticipation that they might influence the situation in his favour. This assessment by the applicant was made against the background and incidents of his detention and earlier interrogation. It certainly does not require any feat of imagination or any high level of sensitivity to appreciate that the prospects with which the applicant was faced had considerable potential to overbear his will” p92 “there can be little doubt he was, at that time, subject to externally-imposed pressure of a kind calculated to overbear his will)

• This made the confession involuntary.

For these reasons, the ABC is satisfied that Media Watch's brief explanation of the Court's decision in its 4 September episode was accurate. Thank you for giving the ABC the opportunity to respond to your concerns. For your reference, the ABC's Code of Practice is available here - http://abc.net.au/corp/pubs/codeprac04.htm.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

Mr Henderson replied the next working day.

From: Gerard Henderson Sent: Monday, 25 September 2006 1:00 PM To: Kirstin McLiesh Subject: RE: Media Watch

Dear Ms McLeish

I refer to your (completely predictable) email of 22 September 2006.

As the record demonstrates, I did not want this matter to be forwarded to ABC Audience and Consumer Affairs in the first place - because I could anticipate that you would clear your (ABC) colleagues. Peter McEvoy's decision to refer my correspondence to you was a convenient ploy - because it gives him and Ms Attard an excuse not to reply to my emails to Media Watch dated 31 August 2006 and 6 September 2006.

I will not respond in detail to your letter of 22 September. What would be the point?

However, I am genuinely surprised at the intellectual shoddiness (perhaps dishonesty is a better word) in your finding. In your letter of 22 September you wrote, inter alia:

I have reviewed the 4 September [Media Watch] program and cannot support your complaint that you were accused of inaccuracy. Having

37 reviewed the segment, I understand the words "those we criticised were furious" to be directed at The Australian.

You come to this (bizarre) conclusion by interpreting Monica Attard's statement that "those we criticised were furious" as referring to the singular, rather than the plural. The enables you to find that the term "those" did not apply to two or more organisations/individuals but, rather, only to one - i.e. The Australian. This is gross pedantry at best. If Ms Attard really meant this on 4 September - then, surely, she would have said: "The Australian, which we criticised, was furious" - rather than that which she actually viz: "Those we criticised were furious". Clearly Monica Attard was speaking in the plural. Yet you deny this.

In your letter of 22 September you also wrote:

While your work was mentioned [on Media Watch's 4 September program], the program did not suggest that your article was inaccurate in any way.

Once again, this is gross pedantry at best. The fact is that my name was mentioned immediately before Ms Attard referred to the (alleged) "misreportage" in the media of the judgement in The Queen v Thomas. There followed a reference by Ms Attard to "the complaints" on Media Watch's website, which included my email to Peter McEvoy dated 31 August 2006. Clearly Monica Attard was accusing me of inaccurate reporting. Yet you (again) deny this.

As you are aware, and as previously stated, I did not want this matter to be forwarded to ABC Audience and Consumer Affairs. But, on reflection, the process has not been a total waste of time - since it gives me first hand experience of the gross inadequacy of the ABC's current audience complaint handling procedures.

Yours sincerely

Gerard Henderson cc: Kim Dalton Peter McEvoy Monica Attard

The ABC’s Head of Audience and Consumer Affairs Kirstin McLiesh replied.

From: Kirstin McLiesh Sent: Monday, 25 September 2006 2:32 PM To: 'Gerard Henderson' Cc: [Kim Dalton]; Peter McEvoy; Monica Attard Subject: RE: Media Watch

Dear Mr Henderson,

I acknowledge receipt of your email below.

As you are dissatisfied with my response, you may wish to note the avenues of review available to you. These are outlined in section 9 of the ABC Code of Practice, which is available here - http://abc.net.au/corp/pubs/codeprac04.htm.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

Gerard Henderson wrote again the next day.

Sent: Tuesday, 26 September 2006 4:45 PM Subject: Media Watch - request for information

TO : KIRSTEN McLIESH Head – Audience & Consumer Affairs ABC FROM : GERARD HENDERSON

DATE : 26 SEPTEMBER 2006

Dear Ms McLeish

I refer to your email of 25 September 2006 advising of avenues of review which I may wish to take following your determination with respect to my case.

I am aware of the ABC’s audience complaints handling procedures – and I will consider my options.

In my view the whole process is flawed in that it brings about a situation where those who are directly responsible to the ABC’s editor-in-chief do not exercise editorial responsibilities – but, rather, complaints are deflected into the ABC bureaucracy. Then some ABC official – like you, for example – throws the switch to denial by determining that a person did not have a legitimate complaint in the first place. This, in turn, brings about a situation where presenters and executive producers do not have to answer for their own actions and those with editorial responsibilties do not exercise them. It’s quite a farce.

There is, however, something you can do for me. I would like a copy of any correspondence which Peter McEvoy or Monica Attard forwarded to you in relation to your investigation with respect to me. The Media Watch program advocates full disclosure. So I fail to see under what grounds a request for such information would be denied by Media Watch.

Over to you.

Yours sincerely

Gerard Henderson

cc: Kim Dalton

The ABC’s Head of Audience and Consumer Affairs Kirstin McLiesh replied.

From: Kirstin McLiesh Sent: Thursday, 28 September 2006 5:32 PM To: 'Gerard Henderson' Subject: RE: Media Watch - request for information

Dear Mr Henderson,

I have received your email. I am unable to respond at this stage, but expect to be able to do so next week.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

Gerard Henderson wrote again.

Sent: Thursday, 5 October 2006 11:59 AM Subject: Media Watch

TO : KIRSTEN McLIESH Head – Audience & Consumer Affairs ABC

FROM : GERARD HENDERSON

Dear Ms McLiesh

I refer to my (unanswered and unacknowledged) email of 26 September 2006 which is attached.

As previously advised, I would like a copy of any correspondence which Peter McEvoy or Monica Attard forwarded to you in relation to your recent investigation with respect to me.

As you are aware, Mr McEvoy and Ms Attard had access to my correspondence to you (since I provided this). In view of this, it is only reasonable that I should have access to any correspondence which they forwarded to you regarding this matter.

This is especially the case since Peter McEvoy and the Media Watch team regularly proclaim the need for full disclosure – so I would doubt that they would wish to apply any form of censorship in this, or any other, instance.

Looking forward to hearing from you.

Yours sincerely

Gerard Henderson cc: Kim Dalton Peter McEvoy Monica Attard

The ABC’s Kirstin McLiesh replied again.

From: Kirstin McLiesh Sent: Friday, 6 October 2006 9:12 AM To: 'Gerard Henderson' Cc: [Kim Dalton]; Peter McEvoy; Monica Attard Subject: RE: Media Watch

Dear Mr Henderson,

I acknowledge receipt of your email below. I also attach a copy of my earlier acknowledgement of your email of 26 September, for your records.

I will respond more fully as soon as I am able.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

Mr Henderson replied.

From: Gerard Henderson Sent: Friday, 6 October 2006 11:37 AM To: Kirstin McLiesh Subject: RE: Media Watch

Dear Ms McLiesh

Thanks for your note. For whatever reason your earlier email was not received - but I accept that it was sent and have placed in on my records.

Yours sincerely

Gerard Henderson

The next day the ABC’s Head of Audience and Consumer Affairs answered Mr Henderson’s request.

From: Kirstin McLiesh Sent: Friday, 6 October 2006 5:11 PM To: Gerard Henderson Subject: RE: Media Watch

Dear Mr Henderson,

Thank you for your email and your comments about the ABC's complaints process.

I regret that you are dissatisfied with my response to your complaint. In view of your dissatisfaction, I encourage you to refer this matter to the statutory authority, the Australian Communications & Media Authority, for independent review. You can write to ACMA at PO Box Q500, Queen Victoria Building, NSW, 1230.

When I received your complaint, I asked Mr McEvoy for his comments. I am obliged to do so under the ABC Editorial Policies. I also watched the programs of 4 September and 28 August and considered the points that you had raised in your correspondence. In his response to me, Mr

McEvoy defended the program and suggested that you were wrong in your analysis of it. Having reviewed all of the material, I concluded that the program complied with ABC Editorial Policies. My response to you explained why your complaint was not upheld.

My response was on behalf of the ABC, and overtakes any material provided to me by Mr McEvoy. However, Media Watch would be happy to pass on to you their defence of the program, and publish all of the relevant material on their website. I suggest you correspond directly with Mr McEvoy to facilitate this.

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

Mr Hendersion replied.

From: Gerard Henderson Sent: Tuesday, 10 October 2006 4:04 PM To: Kirstin McLiesh Subject: RE: Media Watch

Dear Ms McLiesh

I refer to your email of 6 October 2006 (in reply to my email of 26 September 2006), advising that you will not provide me with a copy of Peter McEvoy's defence of Media Watch - concerning what the ABC deemed to be an "official" complaint from me about the program. I am not certain why it took some eight working days for you to advise why I could not receive this material from Audience & Consumer Affairs.

By the way, I have accepted your advice and have approached Peter McEvoy requesting that he provide me with a copy of his defence of the program.

I have also advised Mr McEvoy that I am willing to have all the correspondence published on the Media Watch website - or none at all. I did not agree with your proposal that Media Watch "publish all of the relevant material on their website" - since this would give the Media

Watch team the opportunity to determine what is relevant and what is (allegedly) irrelevant. So it's all - or nothing.

I appreciate your advice that I might wish to refer this matter to the Australian Communications and Media Authority. However, I will not take this option at this time.

Until now, I had no first-hand experience as to how bad the ABC's audience complaint handling procedure really is. So, if I decide to proceed with this matter, I will follow the process through its course - to the Complaints Review Executive and, if necessary, on to the Independent Complaints Review Panel before considering your suggestion about the ACMA. It should be quite a learning experience - and I might have some fun along the way.

Yours sincerely

Gerard Henderson

Kirstin McLiesh replied.

From: Kirstin McLiesh Sent: Tuesday, 10 October 2006 4:08 PM To: 'Gerard Henderson' Subject: RE: Media Watch

Dear Mr Henderson,

I acknowledge receipt of your email. I would be happy to pass our correspondence on to the CRE, Mr Rob Batten, if you wish to pursue that avenue of review. Alternatively, you can contact the CRE directly at [email address].

Yours sincerely,

Kirstin McLiesh Head, Audience & Consumer Affairs

And Mr Henderson wrote to Media Watch again.

From: Gerard Henderson Sent: Tuesday, 10 October 2006 2:14 PM To: Peter McEvoy Subject: Over to you... Dear Peter

As you are aware, on 26 September 2006. I asked Kirsten McLiesh to provide me with any material which you or Monica Attard provided to Audience & Consumer Affairs concerning what the ABC deemed to be my official “complaint” about Media Watch.

On 6 October 2006 Ms McLiesh emailed me – advising, inter alia: My response was on behalf of the ABC, and overtakes any material provided to me by Mr McEvoy. However, Media Watch would be happy to pass on to you their defence of the program, and publish all of the relevant material on their website. I suggest you correspond directly with Mr McEvoy to facilitate this.

I would be grateful if you would provide to me, ASAP, what Kirsten McLiesh has referred to as Media Watch’s “defence of the program”.

On another matter. As you will be aware, I have no problem with Media Watch publishing all of this material on its website – but I do not agree with Ms McLiesh’s proposal that Media Watch publish what she describes as “the relevant material”. What is “relevant” is very much a value judgment. So it’s all – or nothing. Over to you.

Best wishes

Yours sincerely

Gerard Henderson

From: Peter McEvoy Sent: Wednesday, 18 October 2006 12:39 PM To: 'Gerard Henderson' Subject: RE: Over to you...

Dear Gerard,

As requested I've attached a copy of the arguments I put to the ABC's Head of Audience and Consumer Affairs during her investigation of your two complaints.

And as agreed I am posting all the correspondence with you regarding this matter on the Media Watch website.

Regards,

Peter McEvoy Executive Producer Media Watch

Here is the attachment.

Media Watch Executive Producer Peter McEvoy provided the following advice to the ABC's Head of Audience and Consumer Affairs:

Complaint 1 (Henderson 06/09/2006): The words Gerard Henderson underlines - "those we criticised were furious" - were not directed at him, but at The Australian. This is made clear by our script: we quote part of one of The Australian’s responses immediately and even intertwine our sentence with theirs. We then move on to quote Piers Akerman who supported The Australian's criticism of Media Watch in his column and then to note that Gerard Henderson took issue with our program. We quote part of Gerard's letter, published it in full on our website and alerted our viewers to its location. So none of the comments that Gerard claims were made about him and his columns were actually directed at him. The logical flaw in his claims is betrayed in this passage from Henderson's complaint: "'But those we criticised were furious.'... [Monica Attard] then proceeded to list those who Media Watch had "criticised" on 28 August in the following order - (i) The Australian, (ii) Piers Akerman and (iii) myself."

If Gerard had closely watched the program of 28 August he would know that Piers Akerman wasn't even mentioned, so the essential chain of "those we criticised" breaks at that link.

Complaint 2 (Henderson 15/09/2006): Our senior researcher has prepared this note on Mr Henderson's new complaint. The note answers it comprehensively I think. Henderson says the court’s decision was that the confession was involuntary – this is correct. He says MW was mistaken to say the Court’s decision was that the confessions were tainted by threats of torture – this is not correct. The Court of Appeal held that Jack Thomas’ admissions in his AFP interview on 8 March 2003 were involuntary (Judgment par 94 “Admissions made in the circumstances we have described could not, in our view, be held to be voluntary"). They found that the interview during which he made these admissions was held against a background of previous interviews and experiences at the hands of the authorities, and his state of mind had to be viewed in that context. (par 91 “In our view, the Judge fell into error by divorcing the interview from the context in which it occurred,”) They found his state of mind was that he believed that he would have to confess; if not, he risked indefinite detention in Pakistan or elsewhere (an ‘inducement held out by authorities’). His apprehension about that indefinite detention was based on his experiences to date, including his treatment at the hands of Joe. (pars 85- 87 “Put bluntly, there can be little doubt that it was apparent to the applicant, at the time of the AFP interview, as it would have been to any reasonable person so circumstanced, that, if he was to change his current situation of detention in Pakistan and reduce the risk of indeterminate detention there or in some unidentified location, co- operation was far more important than reliance on his rights under the law. Indeed, it is apparent that he believed – and, we would add, on objectively reasonable grounds - that insistence upon his rights might well antagonise those in control of his fate. Those conducting the interview were well aware of his earlier, but inadmissible admissions and knew something, at least, of the treatment to which he had been subjected, including the threats made against him and his wife by the American, “Joe”. As far as the applicant was concerned, nothing had changed.”) That treatment included threats of torture. (par 33 “He was held in Lahore for three weeks and was interrogated on a daily basis by Pakistani officials and by an American called “Joe”… ‘A

48 point was reached at which Joe made threats to me. … I was kept in a cell smaller than my first one. The living conditions were disgusting. It was wet, the blankets were rotten, there were mossies everywhere, the meals were the same every day. I couldn’t eat. Joe … wasn’t believing me so he was ratcheting up the pressure. He said I would be sent back over the border into Afghanistan, where the latest technique to extract information was twisting testicles. ‘I love to hear the sound’, he said, ‘-‘when they twist their testicles. They just scream.’ He said the guards would not treat me like that here. I would be bashed and beaten every day. He said: ‘You’re just going to have to prove it once you get there.’ I felt sure I was being sent there and no matter what I said wouldn’t console him. I just got to a stage when I broke down because of what he was saying, especially about my wife and sending agents to Australia to rape my wife.’ “) In this context, it was held by the court, Thomas’ will was overborne. (par 80 “[T]he applicant believed that the best course for him to adopt to reduce the chance of this happening was to demonstrate as forcefully as he could that he was prepared to co-operate fully with them and, as far as possible, ingratiate himself with the Australian authorities in the anticipation that they might influence the situation in his favour. This assessment by the applicant was made against the background and incidents of his detention and earlier interrogation. It certainly does not require any feat of imagination or any high level of sensitivity to appreciate that the prospects with which the applicant was faced had considerable potential to overbear his will” par 92 “there can be little doubt he was, at that time, subject to externally- imposed pressure of a kind calculated to overbear his will”) This made the confession involuntary.

And if you’ve got this far and enjoyed reading over 40 pages of Henderson correspondence, the good news is – there may be more to come!

From: Gerard Henderson Sent: Wednesday, 18 October 2006 1:21 PM To: Peter McEvoy Subject: RE: Over to you...

Dear Peter

Thanks. I will read the material shortly. By posting all the correspondence on the Media Watch website, I assume you mean precisely what you say. From my end, this includes all my emails to you

49 all - i.e. Peter McEvoy, Monica Attard, Kim Dalton and Kirsten McLiesh and their responses to me. I also anticipate that the Media Watch website will be updated to include all future correspondence.

Best wishes

Gerard Henderson

Finally…

From: Gerard Henderson Sent: Wednesday, 25 October 2006 11:12 AM To: Peter McEvoy Subject: The Media Watch saga continues...

Peter

I have attached a copy of a self-explanatory email which I sent to Kirsten McLiesh this morning. Congratulations – in this instance at least you appear to be both Executive Producer of Media Watch and (Acting) Head of Audience and Consumer Affairs.

I will trust you will add my letter to Ms McLiesh to what you have labelled as “The Henderson Files” on Media Watch’s website.

Best wishes

Gerard

TO : KIRSTEN McLIESH Head – Audience & Consumer Affairs ABC

FROM : GERARD HENDERSON

DATE : 25 OCTOBER 2006

Dear Ms McLiesh

As you will recall, I wrote to you on 26 September 2006 advising that “I would like a copy of any correspondence which Peter McEvoy or Monica Attard forwarded to you in relation to your investigation with respect to me” concerning the Media Watch programs which aired on 28 August 2006 and 4 September 2006. As you will be aware, I finally received this material by email from Mr McEvoy on 18 October 2006 – i.e. over three weeks after it was initially requested. In other words, it took over three weeks for the ABC to forward to me a two page document.

When I received the material on 18 October I was somewhat busy – and I have only just had an opportunity to examine it in detail. The material

51 confirms my opinion expressed earlier (my email to you dated 25 September 2006 refers) about the gross inadequacy of the ABC’s audience and complaints handling procedures.

I am not surprised that the ABC was so tardy in providing a copy of the material which Peter McEvoy provided to you with respect to what the ABC deemed to be my complaint about the Media Watch program. A textual comparison of what you wrote to me on 22 September 2006 advising, in effect, that Media Watch was right and I was wrong is all but identical with the (undated) advice which Peter McEvoy provided to you advising that Media Watch was right and I was wrong. How about that?

▪ In his note to you, Peter McEvoy engaged in pedantry by arguing that when, on 4 September 2006, Monica Attard said that “those we criticised were furious” she was raising the plural to describe the singular. In other words, Media Watch’s line was that I was not criticised on its 4 September program – only The Australian.

In your letter to me dated 22 September you run exactly the same argument. ▪ In his note to you, Peter McEvoy claimed that the reasons why the Victorian Court of Appeal found that Jack Thomas’ statement to the Australian Federal Police in Pakistan was involuntary is set out in Paragraphs 94, 91, 85-87, 33, 80 and 92 - in that order.

In your letter to me dated 22 September 2006, you run exactly the same argument and you quote paragraphs 94, 91, 85-87, 33, 80 and 92 – in that order.

▪ A textual analysis of your letter of 22 September 2006 demonstrates that you even lifted words from Peter McEvoy’s note to you and placed them in your letter to me. Some examples illustrate the point:

Peter McEvoy to Kirstin McLiesh Kirsten McLiesh to Gerard Henderson

“The Court of Appeal held that “The Court of Appeal held that Jack Thomas’ admissions in his Jack Thomas’ admissions in his AFP interview on 8 March 2003 AFP interview on 8 March 2003 were involuntary” were involuntary.”

“That treatment included threats of “That treatment included threats of torture” torture”

In this context, it was held by the In his context, it was held by the court, Thomas’ will was overborne Court, Thomas’ will was overborne (par 80). (par 80).

This made the confession This made the confession involuntary” involuntary.”

Congratulations for your initiative in altering Peter McEvoy’s small “c” court to your big “c” Court. Well done. In all other respects concerning the words quoted above, however, you have simply lifted Mr McEvoy’s words and passed them off as your own. I wonder whether the Media Watch team – which so readily criticises the plagiarism of others – will take up this particular case. I doubt it.

One final point.

In his note to you Peter McEvoy wrote:

Henderson says that the court’s decision was that the confession was involuntary – this is correct.

Mr McEvoy also went on to assert that “the Court’s decision was that the confessions were tainted by threats of torture”.

In your letter to me dated 22 September 2006, you wrote:

As you say in your email, the Court’s decision was that the confession was involuntary.

You also went on to assert that “it is a fair and accurate summary of the Court’s decision to say that the confessions were tainted by threats of torture”. Here you add the words “it is a fair and accurate summary” – and then pass off Mr McEvoy’s words as your own.

Once again you simply repeat Mr McEvoy’s line – word for word in places. As a result you repeat Mr McEvoy’s error.

In my Sydney Morning Herald column of 22 August 2006 I wrote:

In the Supreme Court at first instance, [Justice] Cummins found Thomas’s interview with the AFP was conducted properly and

fairly, that the answers of the accused were voluntary and that the absence of legal representation should not lead to the exclusion of the interview as evidence in his trial. It was this ruling that was overturned by the Court of Appeal, which quashed the conviction.

This part of my column was criticised on Media Watch on 4 September 2006. Yet Peter McEvoy’s note – which you have endorsed – effectively acknowledges that I was correct. In his note to you Peter McEvoy wrote that I was “correct” in maintaining that the Court of Appeal decided that Jack Thomas’ “confession was involuntary”. This was the ratio of the decision. Yet on Media Watch on 4 September 2006 Monica Attard told viewers that I, among others, misreported the facts. Now, it may be that Ms Attard and you do not know the difference between the ratio and the obiter of a legal decision. But Mr McEvoy does – because he has referred to this elsewhere.

Conclusion

As previously mentioned, I regard the ABC’s existing complaints procedures as a farce. Your handling of this matter demonstrates the point.

I was advised on 12 September 2006 that my email of 4 September to Monica Attard has been regarded by the ABC as a complaint and had been referred to you in your capacity as Head of Audience and Consumer Affairs. You had control of this matter for at least nine working days. But all you did was top and tail a note prepared by Peter McEvoy and send it back to me under your own name.

This is incompetent, unfair and lazy. The Head of Audience and Consumer Affairs is supposed to operate independently of ABC program matters. In his instance you simply forwarded Mr McEvoy’s defence of Media Watch to me under your own name. What a farce.

Yours sincerely

Gerard Henderson cc: Kim Dalton Murray Green Peter McEvoy Monica Attard

Two days later… From: Gerard Henderson Sent: Friday, 27 October 2006 2:54 PM To: Peter McEvoy Cc: Margaret Mathieson; Murray Green; Kirstin McLiesh; Monica Attard Subject: Dear Peter

I note that you have not yet put my letter to Kirstin McLiesh dated 25 October 2006 on Media Watch’s website – despite my request that you do so. It seems to me that what Media Watch has designated as “The Henderson Files” should contain all – not just most – of my correspondence.

I can understand why Media Watch and the Head of Audience and Consumer Affairs may be embarrassed at the way this matter was handled – in that Kirstin McLeish simply plagiarised your report to her and presented it as her report to me. However, I see no reason why viewers of the Media Watch website should be denied this information. Quite the contrary – since you and the Media Watch team have consistently lectured-at-large against the plagiarism of others.

In case you have mislaid my email to Ms McLiesh, I have attached a copy.

By the way, you may (or may not) be interested in Ms McLiesh’s reply to me. She wrote on 25 October 2006 acknowledging my email and concluded: “Your comments are noted”. That’s it. The Head of Audience & Consumer Affairs refrained from responding to any of my criticisms of her finding – in particular, my documented case that she had simply passed-off your report as her own work.

Best wishes

Gerard Henderson cc: Kim Dalton Murray Green Kirsten McLiesh Monica Attard

The Executive Producer of Media Watch Peter McEvoy replied.

From: Peter McEvoy Sent: Friday, 27 October 2006 5:50 PM To: 'Gerard Henderson' Subject: RE:

Dear Gerard,

We are not embarrassed by the handling of your complaint in the least. Your complaint was dismissed because the claims you made about Media Watch were wrong.

In your email of 25 October you quote the particular passage that you claim Media Watch criticised: that passage was never cited or referred to by Media Watch.

You claim Media Watch must have been referring to you on 4 September because we used the plural term "those we criticised". As our other viewers understood, we were referring to "those we criticised" at The Australian newspaper - in particular the Editor in Chief Chris Mitchell and the Legal Affairs Editor Chris Merritt.

You have claimed that Media Watch of 28 August criticised Piers Akerman. He was never mentioned.

Thank you for sharing your correspondence with our viewers.

Yours sincerely

Peter McEvoy