Chau v Australian Broadcasting Corporation (No 3)
[2021] FCA 44
•2 February 2021
FEDERAL COURT OF AUSTRALIA
Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44
File number(s): NSD 1088 of 2017 Judgment of: RARES J Date of judgment: 2 February 2021 Catchwords: DEFAMATION – national broadcast of television program said to convey defamatory imputations – where program, co-produced by the first and second media respondents and third respondent reporter made available for viewing online until trial – whether ordinary reasonable viewer of program would have understood imputations to be conveyed – whether disclaimers in program sufficient to dispel imputations of guilt
DAMAGES – where applicant did not speak or understand English and did not see program but told about its stings – whether possible for applicant to recover compensatory damages for hurt feelings where he only read a translation sometime after broadcast or where he did not give evidence that he understood matter complained of to convey imputation
DAMAGES – mitigation – where applicant had brought previous defamation proceedings relating to other publications carrying similar imputations which had resulted in an apology and award of damages respectively – whether effect of those outcomes mitigated any damage to applicant pursuant to s 38 of the Defamation Act 2005 (NSW) by publication of the matter complained of
DAMAGES – where applicant claimed aggravated damages by conduct of respondents including maintaining a truth defence, failing to apologise and continuing to make the program available online – whether conduct of respondents improper, unjustifiable or lacking in bona fides
INJUNCTION – jurisdiction to grant injunction to restrain publication of defamatory matter – whether applicant had to have a legal proprietary right before Court had power to grant injunction – whether Harbour Radio Pty Ltd v Wagner [2019] 2 Qd R 468 plainly wrong – whether respondents should be prohibited from continuing to publish program online – whether damages a sufficient remedy – where respondents contended that program dealt with matters of ongoing public interest – where respondents proffered undertaking to publish a statement to readers of online version of the program noting that applicant had successfully brought defamation proceedings and giving hyperlink to judgment – where applicant would require leave of a court under s 23 of the Defamation Act to bring further proceedings if program remains online
Held: verdict for applicant for $590,000 and injunction restraining publishers from conveying imputations found to have been conveyed
Legislation: Federal Court of Australia Act 1976 (Cth), ss 5 and 22
Defamation Act 2005 (NSW), ss 8, 23, 25, 34–39
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Common Law Procedure Act 1854 (UK)
Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Broadcasting Corporation v Chau [2019] HCA Trans 245
Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Bauer Media Pty Ltd v Wilson [2018] VSCA 68
Bonnard v Perryman [1891] 2 Ch 269
Broome v Cassell & Co Ltd [1972] AC 1027
Buchanan v Jennings [2005] 1 AC 115
Cairns v Modi [2013] 1 WLR 1015
Carpenders Park Pty Ltd as trustee of the Carpenders Park Pty Ltd Staff Superannuation Fund) v Sims Ltd [2020] FCA 1681
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Chau v Australian Broadcasting Corporation [2019] FCA 1856
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Dingle v Associated Newspapers Ltd [1964] AC 371
Eatock v Bolt (2011) 197 FCR 261
Edgington v Fitzmaurice (1885) 29 Ch D 459
Farah Constructions Pty Ltd v Say Dee Pty Ltd (2007) 230 CLR 89
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Fitzgerald v Penn (1954) 91 CLR 268
Gleaner Company Ltd v Abrahams [2004] 1 AC 628
Harbour Radio Pty Ltd v Wagner [2019] 2 Qd R 468
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
John Fairfax & Sons Ltd v Cojuangeo (1988) 165 CLR 346
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Jones v Dunkel (1959) 101 CLR 298
Jones v Skelton (1963) 63 SR (NSW) 644
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90
Lewis v Australian Capital Territory (2020) 381 ALR 375
Ley v Hamilton (1935) 153 LT 384
Lloyd v David Syme & Co Ltd [1986] AC 350
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] QB 783
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Montgomery v Thompson [1891] AC 217
Nationwide News Pty Ltd v Rush (2020) 380 ALR 432
Patrick Stevedores (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Praed v Graham (1889) 24 QBD 53
Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rush v Nationwide News Pty Ltd(No 9) [2019] FCA 1383
Saxby v Easterbrook (1877) 3 CPD 339
Stocker v Stocker [2020] AC 593
The “Siskina” [1979] AC 210
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Tournier v National Provicial and Union Bank of England [1924] 1 KB 461
Triggell v Pheeney (1951) 82 CLR 497
Trkulja v Google LLC (2018) 263 CLR 149
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Veliu v Mazrekaj [2007] 1 WLR 495
West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387
Wing v Australian Broadcasting Corporation [2018] FCA 1340
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 196 Date of hearing: 6–8 October 2020 Counsel for the Applicant: Mr B McClintock SC with Mr M Richardson Solicitor for the Applicant: Mark O’Brien Legal Counsel for the Respondents: Dr M Collins QC with Mr M Lewis Solicitor for the Respondents: MinterEllison Table of Corrections 16 March 2022 In paragraph 194, “at [22]” has been replaced with “at [29]”. ORDERS
NSD 1088 of 2017 BETWEEN: DR CHAU CHAK WING
Applicant
AND: THE AUSTRALIAN BROADCASTING CORPORATION
First Respondent
FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720
Second Respondent
NICK MCKENZIE
Third Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
2 FEBRUARY 2021
THE COURT ORDERS THAT:
1.There be a verdict for the applicant in the sum of $590,000 (inclusive of pre-judgment interest).
2.The respondents by themselves, their servants and agents be restrained from publishing, making available online for download or otherwise, so much of the Four Corners program first broadcast by the first respondent on 5 June 2017 and subsequently made available for download, playing, streaming or otherwise being viewed on any website of, or controlled by, them or of any of them that conveys any one or more of the following imputations of and concerning the applicant, namely that:
·he is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department;
·he donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party;
·he paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe; and
·he was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.
3.The respondents pay the applicant’s costs.
4.The applicant have leave to file and serve any application for an order to vary order 3 on or before 9 February 2021 together with any supporting affidavit and written submissions, not exceeding two pages.
5.The respondents file and service any evidence in opposition and written submissions, not exceeding two pages, on or before 16 February 2021.
6.The applicant file and serve any written submissions in reply, not exceeding one page, on or before 18 February 2021.
7.Any application made under order 4 be listed for argument on 25 February 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
The issues
[3]
Liability
[5]
The matters complained of
[5]
The pleaded imputations
[30]
Were the imputations conveyed?
[31]
Imputation 1: Dr Chau betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf
[41]
Imputation 2: Dr Chau is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department
[47]
Imputation 3: Dr Chau donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party
[52]
Imputation 4: Dr Chau paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian Government on behalf of the Chinese Communist Party
[60]
Imputations 5 and 6: Dr Chau paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe and was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.
[63]
The impact of the defamation on Dr Chau
[72]
Dr Chau’s background
[72]
Dr Chau learns of the program
[77]
Dr Chau’s reputation
[86]
Earlier proceedings based on similar defamatory publications
[95]
Damages
[103]
The damage to Dr Chau’s reputation
[103]
Compensatory damages – principles
[110]
Assessment of compensatory damages
[124]
Should damages be assessed on the basis that these reasons will vindicate Dr Chau?
[129]
Aggravated damages – principles
[134]
Claim for aggravated damages
[135]
The single award issue
[136]
The truth defence issue
[139]
The continuing publication and apology issue
[149]
Assessment of damages
[160]
Injunctive relief
[172]
The publishers’ submissions
[172]
Principles
[173]
Consideration
[184]
Conclusion
[196]
Dr Chau Chak Wing seeks damages for defamation against the Australian Broadcasting Corporation (ABC), Fairfax Media Publications Pty Ltd and Fairfax’s employee, Nick McKenzie (collectively the publishers), arising from the publication on and after 5 June 2017, of the Four Corners television program entitled “Power and Influence”, initially broadcast on ABC nationally and thereafter made available for viewing online on the ABC website.
Dr Chau was born in Guangdong province in the People’s Republic of China in 1949 and became an Australian citizen in about 1999. He came from a poor family and had no tertiary education. As he was growing up, he saw the value of a good education at a tertiary institution through the success in life of a person who had lived in his village and later obtained such an education. Dr Chau’s childhood ambition, which he has pursued with the benefit of his own business success, was to support education and educational institutions. In 2003 Dr Chau was awarded an honorary doctorate of humane letters by a college in the United States and, in 2014, the University of Technology Sydney awarded him another honorary degree. Dr Chau has contributed considerable sums over the years to educational institutions as well as to other causes, including Australia’s major political parties, being matters that the program explored.
The issues
Dr Chau contends that the program conveyed six imputations that were very serious, false and defamatory. The publishers contest that the ordinary reasonable viewer of the program would have understood it to convey imputations of the degree of seriousness that Dr Chau alleges. This is a central issue between the parties. The other central issue is the assessment of any damages to which Dr Chau might be entitled. The publishers have no other substantive defence. That position came about as a result of my earlier decisions striking out a defence of justification (Wing v Australian Broadcasting Corporation [2018] FCA 1340, which the Full Court upheld in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632) and my refusal to allow the publishers to amend that defence to add another plea of justification (Chau v Australian Broadcasting Corporation [2019] FCA 1856).
In these reasons I will first, describe the program, secondly, determine whether the imputations of which Dr Chau complains were conveyed, thirdly, make other findings of fact based on the evidence and last, deal with the legal issues and the damages to which Dr Chau is entitled.
LIABILITY
The matters complained of
Four Corners is a flagship investigative journalism program that the ABC has broadcast, on a weekly basis, for over 45 years. The program went to air on national television at about 8.30pm on 5 June 2017 on the ABC 1 channel. The ABC republished it in broadcasts at other timeslots on the same channel at 10.00am on 6 June 2017 and 11.00pm on 7 June 2017. It also broadcast the program on its ABC News 24 channel at about 8.00pm on 10 June 2017. A total of 1,045,952 viewers saw the matter complained of on television (these broadcasts comprise the first matter complained of). There were 59,882 page views that led to 11,464 plays of the online video version of the matter complained of (the publication and making available for viewing online of the program comprise the second matter complained of). The online version was still available for viewing at the time of the hearing.
I have annexed the full transcript of the program to these reasons. What follows is a summary of the salient features in it that, in my opinion, bear on the meanings that the ordinary reasonable viewer would have understood the program to have conveyed about Dr Chau.
The matter complained of commences with a focus on spying, clandestine activities and interference by the Chinese government and Chinese Communist Party (or CCP), together with its proxies, to affect the integrity of the Australian political system. The opening words are spoken by the then Chairman of the Homeland Security Committee of the United States Congress, Representative Mike McCaul, who says “it’s almost like out of a spy novel”. Next, the presenter, Chris Uhlmann, sets the scene by describing the concern of the Australian Security Intelligence Organisation (ASIO) that espionage and foreign interference that were occurring on an unprecedented scale in Australia. Mr Uhlmann told viewers that, while ASIO had not identified the key suspect, Four Corners and Fairfax could. He then named the Chinese Communist Party and identified its targets as including universities and some of Australia’s leading politicians. He asserted that the Four Corners investigation “reveals that business leaders allied to Beijing are using millions in political donations to the major parties to buy access and influence, and in some cases to push policies that may be contrary to Australia’s national interests”.
The reporter, Mr McKenzie, begins on the same theme. He narrates that it is October 2015 and ASIO counter-espionage agents are breaking into a Canberra flat. This is portrayed against a mock re-enactment of the raid in the dead of night. The target is a Chinese woman whom ASIO suspects is involved in spying for the Chinese government. Professor Rory Medcalf emphasises the significance of the raid by stating that it required the authorisation of the Attorney-General and other parts of the Australian national security community. Prof Medcalf states that this would reflect “deep and real concern about Chinese espionage in Australia”. Mr McKenzie then reveals that the woman’s name is Sheri Yan. Mr McKenzie then asks Professor John Fitzgerald whether Ms Yan might be a Chinese intelligence operative of some sort. He replies that he understands that “she is very closely connected with some of the most powerful and influential families and networks in China”, adding “Once you know that, you don’t need to know much more”.
Mr McKenzie then reveals that Ms Yan’s husband, Roger Uren, was until 2001 an Assistant Secretary in the Australian Office of National Assessments, which is responsible for providing secret intelligence briefings to the Prime Minister. He states that in the raid ASIO seized computers and documents as well as discovering there classified Australian government files on the work of Chinese intelligence. He says that Mr Uren was being investigated because of the possible illegal removal of what Prof Medcalf describes as very significant and highly secret files. Mr McKenzie adds that, in the weeks before the raid, ASIO analysts had been tracking links between political donors in Australia and the Chinese Communist Party whose donations “provided access to the most powerful politicians in the land”.
Mr McKenzie says that the Director-General of ASIO, Duncan Lewis, was so worried that he organised meetings with the directors of the major political parties to warn them that the donors could compromise their parties. Prof Medcalf says that for the Director-General to take such a step is very unusual and “would reflect very real, very real concern”. Mr McKenzie continues that, when Mr Lewis briefed the party officials, he told them that the donors that ASIO was examining were breaking no laws but warned that their strong connections to the Chinese Communist Party meant that the donations might “come with strings attached”. Mr McKenzie adds that ASIO had also briefed the then Prime Minister, the Hon Tony Abbott MP. Peter Jennings, the executive director of the Australian Strategic Policy Institute, says that this type of “naked influence buying” is damaging to Australia’s political system.
Mr McKenzie states that ASIO had singled out two billionaire donors with especially close ties to the Chinese Communist Party, the first being “enigmatic property developer Dr Chau Chak Wing, a man who keeps a low profile except when it comes to his big donations”. A former CIA China expert, Peter Mattis, adds an air of mystery about Dr Chau by saying that he “sort of appeared out of nowhere” and that little was known about him before he made his entry into the Australian and Chinese business scene.
Next, the program depicts the then Governor-General, the Hon Sir Peter Cosgrove AK, at the opening of the Dr Chau Chak Wing building at the University of Technology Sydney (UTS). The building was designed by the internationally acclaimed architect, Frank Gehry.
The reporter emphasises Dr Chau’s wealth. He states that Dr Chau was “not content with having a building named after him” adding that he bought a six storey mansion for $70 million, which was Australia’s most expensive home purchase in 2015. Mr McKenzie asserts that Dr Chau’s money allowed him to “regularly rub shoulders with the great and good of Australian politics” and that he had donated more than $4 million to the major parties over the preceding decade. He states then that “the question that ASIO has been probing is what [Dr Chau] wants from his donations.”
The program then provides three different views from Prof Medcalf, Mr Mattis and the former Australian ambassador to China, Geoff Raby, on that topic. Prof Medcalf emphasises that it was uncertain whether the donations were driven or encouraged by the Chinese Communist Party or were independent actions that the donor thought would benefit him in China through his involvement in a change in the Australian political discourse. Mr McKenzie, at this point, emphasises that Dr Chau is an Australian citizen but adds “back in his homeland, China, he was also a member of a Communist Party advisory group known as a people’s political consultative conference or CPPCC”. He states that the CPPCC carries out the work of “an opaque lobbying arm of the Party” called the United Front Work Department. Prof Medcalf asserts that individuals like Dr Chau have “really deep and serious connections to the Chinese Communist Party” who, even if not subject to direction, would feel a sense of obligation or desire to make the right impression on the powers that be in China to demonstrate that they were being good members of the Party and pursuing its interests.
Mr Mattis reinforces that theme by adding that “with wealth comes responsibility, and that responsibility is to respond to the Party when they ask you to do a favour for them”. Mr Raby then posits that the reasons for the donations are mainly to do with the donor’s business interests in Australia and that making gifts reflects a traditional way of doing business in China. He says that most businessmen and developers who make donations crave prestige and status through being photographed next to politicians on both sides of politics to reflect their influence, position and image. He says that the donors see that this helps their business and gives their family respect consistently with “a traditional Chinese way of operating”.
Immediately after this, Mr McKenzie reveals that Four Corners had learnt that ASIO’s interest in Dr Chau arose partly from his association with Sheri Yan, whom he described as “an old friend”. Mr McKenzie reminds the viewer that it was Ms Yan whom ASIO suspected of spying and whose Canberra apartment the agency had raided (being a reference to the spy raid re-enacted at the beginning of the program). Next, Mr Mattis comments that Ms Yan was an Australian-Chinese businesswoman who had made her livelihood out of building connections between China and the outside world. He said that she provided a bridge between foreign businessmen and foreign government officials “who are trying to get things done in China or find their way among [its] bureaucratic and political landmines”. Mr McKenzie tells viewers that Dr Chau used Mr Yan “as a consultant, somebody able to open up the right doors”.
Mr Raby explains that Ms Yan was a dynamic person who speaks both languages perfectly and is well connected, although he does not know what her connections are. Mr Mattis says that her father was a People’s Liberation Army officer, adding “so she is connected to sort of the core of the CCP in a sense”. He says that no one could explain where her original connections, means of opening doors and money came from in China. Mr McKenzie adds that Ms Yan divides her time between New York, Beijing and Canberra and “moved with ease among the A listers”. He says that she was close to, among others, the President of the United Nations General Assembly, John Ashe.
The program depicts Ms Yan at a meeting while engaging in commentary as to how she and her husband networked together. Mr McKenzie says that Mr Uren’s previous work as a high-ranking Australian intelligence official with top security clearance meant that he was trusted in Canberra, but that “not everyone trusted Sheri Yan”. Prof Fitzgerald says that he had been advised by an old friend in Australia’s security establishment “to stay well clear of Sheri Yan” but that he was not entirely sure why.
The program then switches to a news clip of the Attorney for the Southern District of New York announcing, in October 2015, the arrest of Ms Yan as part of “yet another wide-ranging corruption scheme” that was simultaneously local, global and centred at the United Nations. Mr McKenzie says that the raid on Ms Yan’s Canberra apartment occurred at the same time as her arrest in United States, where she was accused of bribing the United Nations General Assembly President. Mr Raby says that he was very surprised and could not believe, when he had heard it, that she had been arrested.
The program then switches to the then Foreign Minister, the Hon Julie Bishop MP, being interviewed about Ms Yan’s arrest but giving no information on the subject other than that she had been briefed on it. The verbal part of the program then proceeds:
NICK MCKENZIE: One of the events that led to Sheri Yan's arrest unfolded at the luxury Imperial Springs Resort, which is owned by none other than the Australian political donor Dr Chau Chak Wing. The FBI alleged Yan bribed the UN general assembly President to speak at the resort, at a conference hosted by Dr Chau. A sealed indictment from a New York Court against Sheri Yan refers to Dr Chau using a codename – CC3. Sheri Yan was alleged to have told the UN President
FEMALE VOICE-OVER: [CC3's] office emailed me the invitation. I will ask $200,000 for this trip...
NICK MCKENZIE: A draft invitation sent to the United Nations president and allegedly approved by Dr Chau stated his desire to make the UN chief his "sincere friend in Guangdong Province”
MALE VOICE OVER: And your friend here has the pleasure to offer you a permanent convention venue for the UN meeting ...
NICK MCKENZIE: The UN president’s bank account was then wired $200,000 by one of Dr Chau's companies. Under US bribery law it was illegal for Ashe, as a UN official, to receive this payment. There is no suggestion Dr Chau knew it was illegal.
PETER MATTIS: At least some of the money that was moving through Sheri Yan, or that she was facilitating, came from him. And it doesn't mean that there was necessarily anything untoward about it, but just the fact of large amounts of money being moved or paid to people because of introductions or the activities of Sheri Yan make it, make it somewhat suspect. ...
NICK MCKENZIE: Sheri Yan pleaded guilty to bribery charges and was jailed last year. Dr Chau has never been charged with any offence and denies any wrongdoing. ASIO's interest in Sheri Yan is just one of many suspected foreign interference and intelligence cases being probed by Australian agencies, and which lead back to Beijing.
(emphasis added)
Prof Medcalf then states that ASIO and other agencies are “alive and alert to these issues” such as Ms Yan’s arrest. Mr McKenzie comments that concerns about the Chinese Communist Party interfering in Australian politics is growing in Washington, where senior officials believe that Australia is open to compromise, including through foreign donations. Then Mr McCaul states that, in his country, foreign money cannot be used lawfully in their elections so that foreign governments could not influence them. He says that he was surprised that Australia allows foreign contributions, particularly because a lot of those appeared to be coming from China which:
has a very strong influence in the region. They want to influence Australia. They want a stronger presence in Australia, and what better way to do that than to influence political figures through, through foreign contributions.
Mr McKenzie then explains that Mr McCaul had been a prosecutor at the United States Department of Justice and had investigated a scandal known as “China-gate” concerning Chinese spies funnelling donations into the Clinton Presidential campaign. A short clip of President Clinton welcoming a Chinese man is then interpolated into the broadcast with Mr McCaul’s opening line in the program “It’s almost like out of a spy novel”. He says that this had been the most interesting case he had ever prosecuted. The program repeats the sequence from its opening moments. Mr McCaul says that “these are very dangerous clandestine figures in Chinese intelligence and there was a concerted effort to, to influence our (ie. American) elections.” Mr McKenzie asserts that Mr McCaul warns that Australia is badly exposed, unless its laws are changed, because of the capacity of a foreign government to influence Australian elections. Mr McCaul says that China is the biggest offender in providing foreign contributions to influence elections.
The program then turns to the recent visit to Australia, in March 2017, of the Chinese Premier, Li Keqiang. Mr McKenzie states that the emboldened Chinese Communist Party is no longer prepared to hide its strength and bide its time. He tells viewers that there is a debate raging in Australia’s diplomatic and security community about why and to what extent China is seeking influence in Australian institutions. The program then depicts a demonstration in Canberra to welcome Premier Li, interviews with a student in the demonstration as well as with a student activist, Anthony Chang.
Mr McKenzie interviews a Sydney academic who is a fierce critic of the Chinese Communist Party’s interference in Australia, Dr Feng Chongyi. Mr McKenzie then tells viewers that, while Dr Feng was “trapped in China”, having been detained there for questioning, Premier Li was guest of honour at a Chinese community event held in the Sydney Town Hall and that Dr Chau was sitting at the head table opposite the Premier. He continued:
a couple of seats over from him was another Chinese billionaire Huang Xiangmo. Like Dr Chau, Mr Huang has come to the attention of ASIO. Mr Huang is the second donor named by ASIO in its secret warning to the Coalition and Labor about the danger of Chinese Communist Party interference in Australian politics.
The program then spends a considerable deal of time discussing Mr Huang and his activities, including his appearance at an event in Australia which Mr McKenzie presages by saying “In the right company, Mr Huang makes no secret of his devotion to the Chinese Communist Party”. The program shows Mr Huang, through an interpreter, saying:
We overseas Chinese unswervingly support the Chinese government’s position to defend our nation’s sovereignty and territorial integrity. We support the development of the motherland always and take on an important role in building one belt, one road.
(emphasis added)
In the course of this discussion, Mr McKenzie states that “an incident that occurred in June 2016 leaves little doubt that Mr Huang expects something in return for his donations”. Next, the program depicts the then Labor shadow Minister for Defence, Senator the Hon Stephen Conroy, setting out his party’s policy about the South China Sea and criticising the conduct of the Chinese Government there. Mr McKenzie refers to Mr Huang‘s promise to donate $400,000 to the Labor Party which he cancelled after Senator Conroy’s remarks and then says:
Just one day after Stephen Conroy's comments, Mr Huang appeared at a press conference alongside his Labor mate.
Contradicting his Party's position, Senator Dastyari told the Chinese media that Australia shouldn't meddle with China's activities in the South China Sea.
The program then depicts Labor’s Senator Sam Dastyari trying to explain how he earlier had contradicted Labor Party policy on the South China Sea while standing next to Mr Huang in a press conference on the day after Senator Conroy’s remarks. Soon after, Mr McKenzie tells viewers that Mr Huang had previously given $5000 to Senator Dastyari to pay a Labor Party legal bill. Mr McKenzie says that another Chinese donor had given Senator Dastyari $1600 to pay a travel bill before telling viewers that soon after, “the Senator fell on his sword”.
After spending about one third of the program’s running time dealing with Mr Huang, its conclusion discusses the involvement of the former Trade Minister, the Hon Andrew Robb, in his new role as an economic adviser to the Chinese company that recently before the program had acquired a 99-year lease of the Port of Darwin.
The program finishes after Prof Medcalf suggests that the political class in Australia needs to decide, in the interest of Australia’s independence and sovereignty, about restrictions on, and the limitation of, foreign influence in Australian decision-making. Mr Uhlmann leaves viewers with the following parting thoughts:
After being briefed on the 4 Corners-Fairfax investigation, the Attomey General sent us a statement revealing the Prime Minister has asked him to conduct a major inquiry into Australia's espionage and foreign interference laws.
Senator Brandis said, “the threat of political interference by foreign intelligence services is a problem of the highest order and it's getting worse.”
Senator Brandis says he will examine whether the espionage offences in the criminal code are adequate and expects to brief Cabinet on possible changes to the law before the end of the year. We will watch, with interest. Good night.
The pleaded imputations
Dr Chau pleaded that the following six imputations arose from the publication of the matters complained of, namely that:
(1)he betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf;
(2)he is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department;
(3)he donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party;
(4)he paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian Government on behalf of the Chinese Communist Party;
(5)he paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe; and
(6)he was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.
Were the imputations conveyed?
The tribunal of fact (be that a judge or jury) must undertake an objective evaluation in determining whether an ordinary reasonable viewer would have understood that the broadcast complained of (or its online publication) conveyed any particular defamatory imputation or meaning. The process necessarily is imperfect because by the time that the tribunal of fact must decide this question, the matter complained of will have been played several times, counsel will have emphasised factors of it that support the conclusion that favours their respective client and the debate will have focussed around the pleaded imputations as the formulation of the meanings that the publication would or would not have conveyed.
Moreover, the tribunal of fact must also put itself into the position of an ordinary reasonable viewer of the particular publication. This involves some mental agility. The degrees of meaning that a Shakespearean play will both be capable of conveying and that it actually conveys can depend on the education of the audience, its knowledge of Shakespeare and its ability to penetrate what is often the bard’s layers of meanings.
The exercise of ascertaining what meanings such a play conveys is likely to be on a different plane to the approach that the reader or viewer of a tabloid media publication will take in arriving at a meaning conveyed by such a publication. While there may be overlaps, it is unlikely that the audience of a Shakespearean play will have, or exhibit, the same characteristics as that of a tabloid media publication. Hence, the ordinary reasonable viewer is somewhat a chameleon creature whose characteristics and thought processes vary depending on the nature of the defamatory publication and the means of its communication to him or her. Nevertheless, such a person must be a reflection of members of the current society.
The cases have been concerned to formulate an objective, but reasonably adaptive, construct to encapsulate all of the characteristics of the ordinary reasonable viewer (or reader or listener, depending on the medium of publication). When almost all defamation actions in the nation’s four most populous States were tried by jury, Brennan J (with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed), in Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–506, explained how jurors needed to approach their task in deciding whether a particular meaning was conveyed by a publication. He said (at 506):
Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v. Deane ([1937] I KB 818, at 833), being a standard common to society generally (Miller v. David ((1874) LR 9 CP 118); Myroft v. Sleight ((1921) 90 LJ KB 883); Tolley v. J.S. Fry & Sons Ltd. ([1930]1 K.B. 467, at 479).
(emphasis added)
In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–167, Hunt CJ at CL, with whom Mason P and Handley JA agreed, described the approach that a tribunal of fact should take in assessing whether a publication, and in particular a television broadcast, conveyed a particular defamatory imputation or meaning. Broadcasts are transient unlike the print media or online written publications. Of course, in today’s world a television broadcast, such as Four Corners, is also able to be recorded or streamed online (as it was by over 11,400 people) so that it can be replayed, or gone over, just as the printed word. However, replaying a broadcast that lasts over 45 minutes is not a usual activity of an ordinary reasonable viewer of television or internet downloads.
The essential characteristics of the “hypothetical referees” are that they are, first, ordinary members of the community, secondly, reasonable people and thirdly, the reflex of how such persons would have understood the publication complained of when and in the circumstances they saw, read or listened to it. And, as Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin agreed) held in Stocker v Stocker [2020] AC 593 at 605 [37]–[38], where a range of possible meanings presents itself, “the touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning”. He identified that this requires a judge to step away from a lawyerly analysis and to put himself or herself in the position of the typical member of the audience of the publication in issue.
In Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32], Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:
that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell (2005) 79 ALJR 1716 at 1721 [17]; 221 ALR 186 at 192 per Gleeson CJ, McHugh, Gummow and Heydon JJ); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162-1163 per Lord Reid). He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” (Lewis [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719–1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573–574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; Rivkin (2003) 77 ALJR 1657 at 1661–1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.
(emphasis added)
In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 190 [10]–[12], Gleeson CJ, McHugh, Gummow and Heydon JJ said in relation to the capacity of a publication to convey a meaning:
In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd:[[1964] AC 234 at 258]
The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.
Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, [[1964]] AC at 277] that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: [[1964] AC at 285]
It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. [Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293] If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance.
(emphasis added)
The ordinary reasonable viewer of Four Corners would be a person who was interested in watching a serious, well-researched, investigative 45 minute long program, usually, at 8.30pm on a Monday evening, which he or she would understand was intended to inform its audience about a serious matter of current public interest or concern. The ordinary reasonable viewer will watch and listen to the whole of the broadcast before forming a final conclusion as what it conveyed. However, he or she will form impressions about matters as the program progresses, especially about matters that it covered but did not return to later. Those impressions may well last and become the meaning(s) that the ordinary reasonable viewer retains as the meaning(s) that the program conveyed. The more striking or pungent an impression that a part of the program creates in or conveys to the mind of the viewer may be the meaning that he or she infers it was suggesting regardless of other, milder portions. As we know, emphasis, presentation, context, irony, sneers and other rhetorical devices can reinforce or negate a meaning that the same words said or read in isolation of the circumstances of their communication would have conveyed.
I now turn to consider whether each of the imputations was conveyed by the program.
Imputation 1: Dr Chau betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf
Dr Chau argued that imputation 1 would have been conveyed to the ordinary reasonable viewer because of the repetition of Mr McCaul’s saying “it’s almost like out of a spy novel” both in the opening line and part way through the matter complained of, the references in the opening sequences to ASIO’s warnings to the Australian political party officials, Four Corners’ revelation that China was the subject of those warnings and Mr Uhlmann’s concluding statements about the need to change Australia’s espionage and foreign interference laws. He contended that the program created links between his allegedly close friendship and employment relationship with Ms Yan, whom the program stated explicitly was a Chinese spy, ASIO’s interest in Dr Chau having been piqued, partly through that association with Ms Yan, the references to the raid on her apartment in Canberra, what Prof Medcalf described as Dr Chau’s “deep and serious connections to the Chinese Communist Party” and his being an Australian citizen.
I reject Dr Chau’s argument. In my opinion, the ordinary reasonable viewer would not have understood the matter complained of to have conveyed imputation 1. That is because the program did not suggest that Dr Chau had engaged in any act of espionage or spying. The ordinary and natural meaning of “espionage” is the “practice of spying on others” (Macquarie Dictionary online) or “the practice of playing the spy, or of employing spies” (Oxford English Dictionary online). Spying means obtaining secret information or collecting intelligence. Those concepts are distinct from foreign interference, as the program noted.
The publishers accepted that the matter complained of gave rise to a reasonable suspicion that Dr Chau was being investigated for his activities in Australia and that he had connections to Ms Yan and her husband. But, as they correctly argued, there was no incident or other content in the matter complained of that the viewer reasonably could have perceived was suggesting that Dr Chau had engaged in any act of espionage.
The program’s suggestion of foreign interference in Australian political affairs did not direct the reasonable viewer’s perception of Dr Chau’s activities into the realm of spying. The program made clear to the viewer that ASIO’s investigations related to two major concerns: spying and foreign interference. The ordinary reasonable viewer would have been conscious that, although both kinds of activity were antithetical to Australia’s national interests, each was distinct from the other. The matter complained of portrayed Dr Chau as a person who made donations and engaged in high profile activities with universities and politicians. But, it did not convey that he was a spy or had done anything involving the obtaining of information or collection of intelligence to be used against Australia.
While the program drew a link between Dr Chau and Ms Yan, that link was to do with the allegedly corrupt invitation to Mr Ashe. The program did not convey that, even if it was saying that Ms Yan was a spy (because of matters such as the documents found in the raid on her Canberra apartment), Dr Chau engaged in anything more than Mr Jennings’ ascription of “naked influence buying”. The program said that ASIO was warning about Dr Chau’s activities and motives in making large donations and building up connections with persons of influence. While both spying and influence buying could evoke perceptions of some kind of clandestine activity in the mind of the ordinary reasonable viewer, in the context of the program he or she would still regard influence buying using such means as a separate exercise from engaging in espionage. The viewer would have understood Mr McCaul’s twice-repeated melodramatic description, “it’s almost like out of a spy novel” as being a reference to the secrecy involved in the behaviour of what he described as “dangerous clandestine figures in Chinese intelligence and…a concerted effort to… influence our elections” through foreign government contributions.
The ordinary reasonable viewer, taking the content of the program as a whole, would not have understood it to convey the meaning that Dr Chau engaged in obtaining secret information, collecting intelligence or any form of spying.
Imputation 2: Dr Chau is a member of the Chinese Communist Party and of an advisory group to that party, the People's Political Consultative Conference (CPPCC), and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department
The publishers argued that imputation 2 was strained, contrived and was not conveyed by the matter complained of. They contended that while Mr McKenzie had described Dr Chau as currently being Australian citizen, he immediately followed that by saying “back in his homeland, he was also a member of a Communist Party advisory group known as … CPPCC”. They submitted that the ordinary reasonable viewer would have understood that Dr Chau had been in Australia for at least a decade, being the period over which he had been making his donations to political parties, and that the reference to his past membership of the CPPCC “back in his homeland” was temporally significantly earlier than the discussion of his present connections to Australia. They argued that the program did not suggest that Dr Chau was currently a member, or had retained membership in Australia, of the CPPCC or the United Front Work Department. Moreover, they argued, even if conveyed, imputation 2 was not defamatory. That was because membership of the governing political party of a superpower or an advisory group to that party or the carrying out of unspecified work on behalf of a secret lobbying arm of that party would not have lowered the reputation Dr Chau in the minds of ordinary right-thinking people.
I reject the publishers’ arguments about imputation 2. The ordinary reasonable viewer would have understood Prof Medcalf to have been referring to Dr Chau when he said “individuals like that have really deep and serious connections to the Chinese Communist Party”. The focus of the program was on the links between the central figures, including Dr Chau and Mr Huang, whom it told the viewers ASIO suspected of foreign interference and, in the case of others like Ms Yan, also spying. As I have noted in dealing with imputation 1, the focus of the matter complained of in respect of Dr Chau was about the connection between his political donations and foreign interference in Australian politics from the Chinese State or its organs.
Moreover, Mr McKenzie had said earlier, when first introducing Dr Chau to viewers, that:
ASIO singled out two billionaire donors with especially close links to the Chinese Communist Party. The first was enigmatic property developer Dr Chau Chak Wing, a man who keeps a low profile except when it comes to his big donations.
Contrary to the publishers’ argument, the ordinary reasonable viewer was invited to listen to what apparently well-informed, authoritative persons said about Dr Chau in the program on the basis of that introduction. Mr McKenzie subsequently elaborated on Dr Chau’s links to the Communist Party and the Chinese State by informing viewers of his connection to the “opaque lobbying arm of the party called the United Front Work Department.” The ordinary reasonable viewer would have understood that to be a reference to the political lobbying or influencing in foreign countries, not in the one-party State that was China. Prof Medcalf’s remarks immediately following the introduction of that opaque lobbying arm, emphasised that the really deep and serious connections of Dr Chau with the Communist Party were in relation to his activities in Australia. The ordinary reasonable viewer would also have understood that the program was not complimenting, or expressing a Panglossian view, about Dr Chau for his donations, but rather was exposing to scrutiny his motivation for making them. In the context of the matter complained of, the ordinary reasonable viewer was led to an understanding that Dr Chau’s membership of the Communist Party, the United Front Work Department, the CPPCC and the secret lobbying were activities of an untoward, clandestine and sinister nature involving him assisting China in its foreign interference in Australian political affairs.
I also reject the publishers’ argument that imputation 2 was not defamatory. I am of opinion that an ordinary reasonable viewer would think the less of a person who was a member of a clandestine arm of a super power engaged in lobbying in Australia. The imputation suggests, in the context in which the program conveyed it, that Dr Chau had a secret agenda to pursue as a member of a surreptitious agency of a foreign power, China. The program told the viewer that ASIO had concerns about “a concerted campaign by the Chinese government and its proxies to infiltrate the Australian political process to promote its own interests”, being just the sort of activity a secret lobbying arm of the Government would undertake. The thrust of the defamatory meaning is that Dr Chau is not what he appears to be on the surface because of his membership of a secret foreign Government organisation that does clandestine lobbying for it in this country. The viewer would think Dr Chau was not transparent but acted surreptitiously in Australia in pursuing China’s interests. The fact of the secrecy in these lobbying activities would raise a concern in the mind of the ordinary reasonable viewer about its legitimacy and Dr Chau’s involvement in that conduct.
Imputation 3: Dr Chau donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party
The publishers argued that imputation 3 was not conveyed. In particular they relied on what White J had said in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 55 [94], namely:
The word “bribe” does not have a precise meaning as it is capable of encompassing more than one form of dishonest conduct by, or in relation to, a public official. However, I consider that the ordinary reasonable reader would understand that a bribe usually involves the elements of a payment to a public official personally or to someone else on the official’s behalf; a reasonably close relationship between the payment, on the one hand, and an expected decision or action by the public official, on the other; and the payment being made to secure or induce a benefit to the payer from the decisions or action in question. The word bribe is not in ordinary understanding used to refer to the payments made by donors to political parties, or to political candidates, which are unconnected with any particular executive decision making, even if the motivation of the donors is to promote goodwill by the recipient towards themselves.
(emphasis added)
The publishers argued that there was no reason why the ordinary reasonable viewer would have understood the program to be conveying that Dr Chau’s donations of over $4 million to the major political parties during the preceding decade were, or could be understood, as bribes. They pointed to Mr Raby’s comments that payments by wealthy Chinese individuals were very much part of the way in which they do business and were calculated to enhance respect for the donor. They contended that it would be far-fetched for the ordinary reasonable viewer to consider that such donations were bribes.
I reject the publishers’ argument. The program commenced with Mr McCaul, Mr Jennings and Mr Uhlmann all emphasising Chinese attempts to influence elections and the political systems of other nations, including Australia. In Mr Jennings’ words, “naked influence buying is something which is damaging to Australia’s system”. So much so, that Mr Uhlmann had said in his introduction ASIO had warned that espionage and foreign interference were occurring in Australia on an unprecedented scale. He named the Chinese Communist Party as the perpetrator. He said that the program’s investigation “reveals that business leaders allied to Beijing are using millions in political donations to the major parties to buy access and influence, and in some cases to push policies that may be contrary to Australia’s national interests”.
The ordinary reasonable viewer would have been left in no doubt at the conclusion of the program that Dr Chau was one of the “business leaders allied to Beijing” to whom Mr Uhlmann referred. It told viewers that over the previous decade Dr Chau had donated more than $4 million to the major parties and he was one of “two billionaire donors with especially close ties to the Chinese Communist Party” whom “ASIO singled out”. The concept of buying access and influence falls within the natural and ordinary meaning of a “bribe”. The Oxford English Dictionary online defines “bribe” as: “a sum of money, gift, or other inducement which is given to another person in order to influence his or her behaviour, especially to persuade him or her to act in one’s favour”. The Macquarie Dictionary online defines “bribe” as “anything of value, as money or preferential treatment, privilege, etc, given or promised for corrupt behaviour in the performance of official public duty, anything given or serving to persuade or induce”. Of course, in Hockey 237 FCR 33, White J was dealing with a different publication and explaining how he had arrived at his findings about it, not laying down general propositions of law as to how an ordinary reasonable person would understand all publications.
Moreover, the matter complained of sought to draw a direct connection between Dr Chau’s invitation to John Ashe, as President of the United Nations General Assembly, and the payment of USD200,000 through Ms Yan’s communications to induce him to attend at the Imperial Springs Resort conference that Dr Chau organised. The program conveyed in graphic terms how Mr Huang, the other billionaire “with especially close links to the Chinese Communist Party”, had made perfectly clear that his foreshadowed donation to the Labor Party of $400,000 came at a price. That fact was reemphasised by the program drawing a connection with his payment of $5,000 to Senator Dastyari and the latter’s willingness to depart from the Labor Party’s policy on the South China Sea at an event when he spoke next to Mr Huang.
Mr McKenzie told viewers that “the question ASIO has been probing is what he (Dr Chau) wants from his donations” and that the Director-General of ASIO had warned the Australian party officials that those donations might come with strings attached. And, Mr McCaul explained why United States law expressly prohibited foreign money donations in relation to elections. He said, of Chinese influence in Australia: “what better way to do that than to influence political figures through … foreign contributions?”.
The ordinary reasonable viewer of the program would be drawn to the conclusion that because Dr Chau was a person who had “really deep and serious connections to the Chinese Communist Party” and was a focus of ASIO’s concerns, he had made his significant donations to Australia’s political parties in order to influence politicians to take, not just a favourable approach towards the interests of China, but rather to advance positively the interests of China. The viewer would have been led to understand that ASIO’s warnings to the Australian party officials were that Dr Chau’s donations came at a price, or with strings attached, just as Mr Huang had overtly demonstrated by withdrawing his promised $400,000 donation and paying Senator Dastyari $5,000 for an ALP legal bill. This is similar to the understanding of a “bribe” that White J described in Hockey 237 FCR at 55 [94].
Mr Huang began lobbying his political contacts for assistance.
Four Corners has learned of one politician who agreed to help.
Labor Senator Sam Dastyari.
NICK MCKENZIE: Four corners has learned that after multiple requests from the billionaire donor, Dastyari's office called the immigration department to question the progress of Mr Huang's citizenship application.
In the lead up to the election, Dastyari's office made four separate approaches to the Department.
It's understood Senator Dastyari made two of these calls himself.
NICK MCKENZIE: In a statement, Mr Huang said he took strong objection to any suggestion he had linked his donations to any foreign policy outcome.
Mr Huang's citizenship application is still being reviewed by ASIO.
The signing of the China Australia Free Trade Agreement cemented our vital relationship with the world's new economic super power.
As Trade Minister, Andrew Robb spent years negotiating the deal.
His position brought him in contact with another Chinese billionaire - Ye Cheng, head of the Landbridge Group.
NICK MCKENZIE: Landbridge recently spent $506million to secure a 99-year lease for the Port of Darwin, a hugely controversial deal in light of the company's close ties to the Chinese Communist Party.
PETER JENNINGS: I think Chinese companies understand that if they can actually help to satisfy the strategic and political objectives of the communist party that will insure their prosperity.
It will give them access to cheap finance and it's something, which makes the senior leadership of those firms more prominent and successful in the context of Beijing politics.
NICK MCKENZIE: Before Last year's election, Andrew Robb stepped down from Government, and his final senior position as Australia's Special Envoy on Trade.
A few months later it was revealed he'd been appointed as an economic advisor to Landbridge.
JOURNALIST: And what about your own role at Landbridge because the Prime Minister said that he hadn't been notified?
ANDREW ROBB, FORMER TRADE MINSTER: No why should I? I'm sorry I've now left politics.
JOURNALIST: Well we've now got the Australian Defence Association and the opposition are jumping up and down.
Questions about ministerial conduct and that sort of thing.
ANDREW ROBB: Again, they're implying that I will act unethically and where's the evidence?
I mean, I've been a senior cabinet Minister, I know the responsibilities that I've got.
I've got no intention of breaching those responsibilities.
NICK MCKENZIE: Andrew Robb's confidential consulting deal can now be revealed.
Robb was on the Landbridge payroll from July 1 - the day before the election.
From that date, he's be paid $73,000 a month, or $880,000 a year, plus expenses.
Andrew Robb declined an interview, but told Four Corners he has acted in line with his obligations as former Trade Minister.
PETER JENNINGS: I respect as the Prime Minister said, Mr Robb has a right to go out and earn a living once he's left parliament but he was a cabinet minister for many years and I think now providing advice to the leadership of the Landbridge Group was possibly a step too far too quickly in terms of his departure from politics.
NICK MCKENZIE: Questions around how Australia and its leaders manage the relationship with China are central to the nation's most important foreign policy debate.
Australia must maintain its growing ties to its most important economic partner.
But we also must confront the fact that some of the interests and practices of the authoritarian one party state conflict with our own.
PROF. RORY MEDCALF: There's an awareness of a problem, but the agencies themselves don't have the mandate or the wherewithal to manage the problem.
All they can do is sound the alarm and alert the political class.
The political class needs to take a set of decisions in the interest of Australian sovereignty, in the interest of Australia's independence policy making, to restrict and limit foreign influence in Australian decision making.
CHRIS UHLMANN: After being briefed on the Four Corners-Fairfax investigation, the Attorney General sent us a statement revealing the Prime Minister has asked him to conduct a major inquiry into Australia's espionage and foreign interference laws.
Senator Brandis said, "the threat of political interference by foreign intelligence services is a problem of the highest order and it is getting worse."
Senator Brandis says he will examine whether the espionage offences in the criminal code are adequate and expects to brief Cabinet on possible changes to the law before the end of the year.
We will watch with interest. Good night
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