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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.

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