And as Shakespeare knew, every good story needs some bad people to advance the plot. I keep up my sleeve some colourful characters: General Buldoza, the all-purpose dictator, and Colonel Bazooka, the aggressive military chief; Amanda Autocue, a not over-bright journalist; Senator Gladhand, forever rorting expenses; Andrew Angel (a New South Wales police commissioner who is far from angelic); Phil Fickle (an informer); Judge Knott and Dr Jekyll (a mad scientist from the University of Wollongong), and so on. I play these people, to tempt and cajole the panellists and to advance whatever plot will throw up ethical dilemmas, in imaginary states such as ‘Uforia’ (loosely, the Northern Territory), ‘Amnesia’ or ‘Malaria’ (‘a country teeming with people, corruption and tropical rain’).
As I’ve noted, conventional wisdom holds that talking heads make boring television. ‘If it’s not visual, it’s not a story’ is a common adage among television folk. But the important decisions that are made in the real world are seldom set against glorious sunsets. They are made by people (usually men in grey suits) sitting around a table in a nondescript room. There may be a few notepads, a potted plant and a picture of the incumbent president, but the momentousness of the decision generally bears an inverse relationship to the splendour of the surroundings. Hence the bare Hypothetical stage, with the object of showing how important decisions are actually made. I aim for something more than can be revealed amid the pleasantries of a studio chat show or the rituals of a press conference or a television interview in which development of ideas can be derailed by ego-driven presenters and rehearsed responses from cagey politicians.
That said, a Hypothetical is just another television program – an insubstantial pageant that fades after the last repeat. It is not designed to reach a particular conclusion or to solve an intractable problem or to convey a subliminal message. All I have ever claimed for the format is that it sometimes makes viewers sit up and think, and distinguish in their own minds between good arguments and better arguments.
The Hypothetical on the ethics of the media was conducted at the Channel 9 studios (after lobster and champagne for the celebrated participants), and included as panellists the journalists Richard Carleton and Mike Carlton, the editor of The Age Creighton Burns, the Sydney Morning Herald political editor Peter Bowers, and Senator John Button. If it was to be convincingly about media ethics, it had to have a media mogul. Shortly before the program started, I confided to Andrew Olle, the assistant producer, that I thought my choice of name – Sir Rupert Fairpacker – was too long. ‘Why don’t you call him “Kerry Murfax”,’ Andrew said brightly. Great idea, and Kerry Murfax was born. Had I stuck with Sir Rupert, the proprietor of Channel 9 may not have assumed the moniker referred to him.
My opening was short:
Welcome, ladies and gentlemen, to a land where press is free, trial is fair and news is plentiful. Much of that news is provided by you, employees of the Murfax organisation – a media octopus whose newspapers, radio and television stations are dedicated, at the insistence of your proprietor, Kerry Murfax, to the proposition that the public has a right to know.
The first question was easy – would panellists expose Mr Justice Benchmark, of the High Court of Australia, if they learnt he was an occasional cocaine sniffer? Trevor Kennedy, editor of the Packer-owned Bulletin, spoke for them all.
Kennedy: I think it’s a very important story. Cocaine is a drug that supports a rather unpleasant infrastructure of organised crime and all other sorts of things. By using cocaine the judge supports that.
Moderator: You’re part of the law enforcement network? You’re going to enforce the law of cocaine against this judge?
Kennedy: We’re part of the information network, which simply exposes the truth about as many things as we’re able to.
Moderator: But what’s the public interest in this particular truth?
Kennedy: Well, the public interest is simply in knowing what big and important people do.
More difficult was whether to expose our top fast bowler for the same offence, in the middle of a finely balanced test against England. ‘If we look like winning, I think probably not,’ decided Creighton Burns. Otherwise, they all nodded sagely at Gerald Stone’s philosophy: ‘I know that journalism can create a lot of harm, but I also think in the long run it does more good by publishing the truth.’
That is, until the next client of my cocaine dealer was brought to their attention – none other than Kerry Murfax, heard in a tapped telephone call ordering a lot of the drug. I asked the question of Trevor, who went ashen and seemed to slide under the table, as did the Channel 9 lawyer. John Button particularly enjoyed watching the journalists squirm, but we had to move on. Cocaine having flooded the streets of Sydney, the government called a hypothetical royal commission. The Herald obtained an advance copy of its report and Paul Landa (the state attorney-general) obtained a court order for the newspaper to reveal its source. A terrific row ensued between journalists and editors as to whether it should do so.
Then Mark Day, editor of Strewth, got hold of some naked pictures of Jana Wendt, and Jana and her producer, Gerald Stone, wanted to injunct their publication. There was an interview with Mrs Lily White, an anti-abortion campaigner with views akin to those of Fred Nile. Richard Carleton had information she had been seen going into Dr Jekyll’s abortion clinic twenty years ago. Would he ask her? After much hesitation he did, on a pre-record, and she (as played by me) told him honestly, ‘It’s true, twenty years ago I went to an abortion clinic, because I had been raped.’ Most would have complied with her request to edit out the question and answer, but not Mike Carlton, who charged her with hypocrisy, to which she replied, ‘I stayed one night in that dreadful place that Dr Jekyll used to run, and I realised I couldn’t face it. I left, without having the abortion. I had the child; my boyfriend, Peter White, stood by me and married me. My daughter is now twenty and at Melbourne University. She doesn’t know Peter is not her father. She doesn’t know her real father is a rapist. Please don’t transmit this interview.’
That was a bridge too far, even for Mike, who conceded he would worry about publishing this truth – that the daughter had been fathered by a rapist. The editors of The Age and the Herald would not publish. Peter Bowers even said, ‘I have to live with my conscience,’ which I thought was the best line in the show.
After a few more murders and privacy invasions, it was back to the case against Kerry Murfax. Trevor Kennedy finally summoned up the courage to confront him with the wire-tap evidence that he had ordered cocaine. Kerry gave a long and loud proprietorial laugh and explained that he was acting as a decoy, pretending to buy it. The cocaine dealer had contacted him earlier, and like the good citizen he was Kerry had reported the offer to the police and helped to trap the criminal. ‘I wouldn’t break the law, because I would lose my television licence and you would all be out of work.’ The laughter – somewhat relieved – at the last line gave me a moment to face the audience as Geoffrey Robertson and deliver a message that I had often tried to convey to Old Bailey juries: ‘Where there’s smoke, ladies and gentlemen, there’s usually fire. But sometimes, there’s only a smoke machine.’
So Kerry came up roses in the end. But perhaps Kerry Packer, Sam Chisholm and their lawyer Malcolm Turnbull did not watch until the end. The tapes of the show mysteriously disappeared – possibly deep-sixed in the ocean off the Packer residence at Palm Beach. They were not fast enough to stop an audiotape, however, which provides a record of this censored event. (I published it thirty years later, in Dreaming Too Loud.)1 But back in 1984, Peter Luck and Andrew Olle waited and waited – the tapes had simply evaporated. Of course, the editors and journalists on the panel, and their guests in the audience, became curious: when would the ‘media Hypothetical’, which had been titled ‘We Name the Guilty Men’, be put to air? The Channel 9 press office provided a stock answer, for over a year, that it was ‘still being edited’. Mike Carlton then blew the story in his column in the Herald, acidly remarking that this
would be the most exquisitely edited program ever to grace Australian television. Given that I had battled against censorship since I was a schoolboy, it was ironic to be caught up in a controversy over a story which quickly became prophetical – shortly after the show was recorded came the Costigan Commission report implicating Packer in drugs importation; the murder of a judge’s wife; the exposure of bribe-taking by the former New South Wales minister for Corrective Services; the media campaign against Justice Murphy; and the prosecution of the National Times for publishing a secret government report – all of them creating dilemmas akin to those we had played out in ‘We Name the Guilty Men’.
It was nervousness over the Costigan inquiry that caused Kerry Packer to ban the show about the proprietor he thought was his namesake, but Kerry Murfax’s innocence was also prophetic. Costigan was following some claims about drugs secreted in stumps brought from Pakistan by the Packer cricket team, but this and other allegations turned out to be smoke without fire – just a smoke machine. Banning the show was entirely unnecessary, but it did have one good result: a telegram from Ken Myer, chairman of the ABC, saying that Hypotheticals were obviously too difficult for commercial television – could I do them for the ABC? I could, and looked forward to having them screened without commercials. But first I had a contract with Channel 9 which required me to conduct two more programs.
In the state of paranoia (a good title, come to think of it, for a hypothetical country) at Channel 9, Sam Chisholm would have paid me not to conduct them. But Peter Luck was courageous and committed, and insisted on going ahead – despite having had his company car confiscated as punishment, and the prospect of his own contract not being renewed (which it wasn’t). We chose ‘medical ethics’ as the least politically controversial subject, and to circumvent Sam Chisholm we secretly recorded the show, without an audience, on a Saturday afternoon and stayed up through the night editing it for transmission the next day at 9 am. We survived, and went for a big finale on Australian defence – lots of army brass in uniform (all horrified at the suggestion of gay diggers), the head of the defence force (Admiral Anthony Synnot), ministers and their shadows and so on. My storyline turned out, once again, to be horribly prophetic: anti-American Islamic extremist terrorists hijack a Qantas passenger jet as it flies over Derby and divert it to Pine Gap – they obviously plan to crash it on the American spy facilities. The RAAF scrambles from its Northern Territory base at Tindal, but what are its pilots ordered to do? Are they instructed to shoot down the plane, killing all the passengers, or should they allow it to crash into Pine Gap and disable it, killing a lot of Americans as well as all the passengers?
I played this around the table in real time – these decisions must be made in minutes, not hours – and everyone was slightly panicked: ‘You should fire a shot across their bows,’ said Admiral Synnot to the F-111 pilots, as if they were flying corvettes. It was seventeen years before 9/11, and no one had yet imagined this kind of kamikaze terrorism. I hope that none of bin Laden’s henchmen watched the show and took note of the idea.
And so I said farewell to the little white cottage on the Channel 9 estate at Willoughby where Sunday was plotted, and to the team, although not to junior reporter Jennifer Byrne. Nor, as it happened, to Mr Packer. A year or so later, in London, I received a brief from Malcolm Turnbull’s law firm, to advise a ‘Mr Bullmore’, an Australian media mogul in trouble with the tax office over investment in a questionable film scheme. I duly provided an opinion, as did several silks, although mine was the only one that Malcolm did not send to the Director of Public Prosecutions. I had pronounced Mr Bullmore innocent, however, on the evidence the tax office had collected. I was invited to meet the man himself at the Packer hospitality tent at Wimbledon.
Let me make clear that I would accept an invitation to Saddam Hussein’s hospitality tent at Wimbledon if it came with good tickets to the centre court in the final week. In the case of Kerry Packer, it became a fixture for several years. Once, I took Julius, who was instantly befriended by Alan Jones, and on another occasion I was there when Alan Bond was negotiating to buy Channel 9 for $1 billion. (‘You only get one Alan Bond in a lifetime,’ said Kerry later. Bondy emerged from the meeting looking depleted, as well he might, so I took him off to watch the girls’ doubles final in an attempt to cheer him up.
Kerry Packer was famously generous to friends and advisers. His generosity was distributed by his secretary, at the door to his suite at the Savoy Hotel: she asked as you went in (with piles of cash in front of her) how much you would like. I always declined – I really did have to be prim and proper with my tax. At a social meeting, after he’d returned from an extremely painful kidney dialysis, Packer presented me with a dilemma worthy of Hypotheticals. He asked me to join him in a quiet bedroom, and – in obvious pain – vented his fury at the delay in the decision on whether to prosecute him over the tax matter. The decision would be made by Ian Temby QC, whom I knew. Kerry worked himself up to a lather of anger, saying – twice – ‘If that Temby decides to prosecute me, I will have him killed.’ ‘Oh, no you won’t,’ I replied, and did my best over the next half-hour to reason him into a less murderous state of mind (I thought, successfully). Still, the threat had been made. Should I report it to the federal police, to the attorney-general, to Temby himself?
If this had been a professional engagement, it would have been covered by a legal confidentiality, which can only be broken to reveal what is quaintly termed ‘iniquity’, which would cover a threat to murder. Some guidance at the time came from a famous case in California (Tarasoff v Regents of the University of California) where a psychologist, Dr Lawrence Moore, was sued by the parents of Tatiana Tarasoff, who was murdered by Moore’s client, after this man had made threats to kill Tatiana in the course of a confidential conversation with Moore. The court held that Moore had a public interest duty to tell the victim and her family of the threat. That case turned on the credibility of the threat: in my situation, Kerry was lashing out at his demons; I did not judge his threat to be credible – he would not, when calmed down, arrange to implement it. But the dilemma was hypothetically disturbing, and I was relieved a few days later when the attorney-general announced that on Temby’s advice Mr Packer would not be prosecuted.
A few years later, I was involved in creating some English law on this difficult subject, acting for a prisoner who had been convicted of three murders while suffering mental illness. He had been placed in a secure hospital indefinitely. He wanted to apply for parole on the grounds that he was no longer a danger to the public, and his solicitors retained a psychiatrist to report on his mental state. To their (and their client’s) horror, he reported that the man was, in his opinion, still very dangerous. Understandably, they withdrew the application. The psychiatrist, on being told that his opinion would not be needed, sent a copy to the Home Office, in a blatant breach of his duty of confidentiality – or so I argued in the courts. The judges agreed, but found a public interest justification for the breach. They did not impose a duty on the psychiatrist to dob in his client, but allowed him a discretion to do so if, as a professional, he sincerely believed that lives were at stake.2
The problem is that professionals can have inflated opinions of their own ability to detect ‘dangerousness’. In Kerry’s case, I was sure there was no danger he would carry out his threat. If I’d had any reason to believe he might, my conscience and, I reckon, my ethics, would have bound me to inform.
Confidentiality was the theme of my opening ABC Hypothetical, ‘The Angel’s Advocate’, filmed at the Australian Legal Convention in 1985. It was my first opportunity to play to a large audience – over a thousand – in the Melbourne Concert Hall. There was jousting between a purse of silks – Tom Hughes, Ron Castan and Frank Costigan – and the solicitors Frank Galbally, John Marsden and Julian Disney, along with former attorney-general Gareth Evans, Senator Alan Missen, journalists Mark Day and Wendy Bacon, a police commissioner and a judge. The scenarios turned very topical, g
iven the overreach of the Costigan Commission, the publication of the Murphy tapes and an extradition fiasco involving drug kingpin Robert Trimbole, so I had plenty of material to fashion the story of ‘The Angel’s Advocate’. In its course I came up with a tax dodge – a businessman arranges for someone who wants to give him a bribe to libel him instead, and have him pay the bribe money as defamation damages (which are always tax-free) after a ‘friendly’ settlement. I am told this ruse was later used by Alan Bond to pay a tax-free damages bribe to Joh Bjelke-Petersen – not so much a case of life imitating art as copycat criminality.
My ABC team – producers Ken Chown and Pauline Thomas, with John Lander as director (brilliant at intuitively training one of his six cameras immediately on the next talking head) and later Lesley Holden as researcher – worked with me thereafter producing Geoffrey Robertson’s Hypotheticals whenever Geoffrey Robertson could get away from the Old Bailey to make them. We did a Yes Minister show in Canberra, with politicians, businessmen and public servants vying to stuff up Minister John Brown’s vision of a fast train between Sydney and Canberra. It was a delight to meet Dick Smith, who became a friend, to stoke the cynicism of Reg Withers, Alan Ramsey and Graham Richardson, and to watch Sir Lenox Hewitt, who had run the country during John Gorton’s drinking bouts, playing an Australian Sir Humphrey.
I did another program on media ethics, just to show up Channel 9 for not transmitting the first one, and a prophetic Christmas Hypothetical, ‘Unto Us a Child Is Born’, recorded at the Great Hall of my alma mater, Sydney University. The scene was set thus:
A Royal Commission is meeting to discuss what life will be like after the Bicentennial. A leading experimental scientist is worried about his wife’s inability to conceive, the increasingly bizarre behaviour of his bandicoots, and a tempting career offer from the University of the Deep North. A plane crashes, a fridge defrosts, a gramophone plays ‘Send in the Clones’. In a court of last resort, a litigant will one day ask, ‘Who am I?’
Rather His Own Man Page 27
