How ABA tried to hang Kerry Packer

Pointing out that the parties were entitled to a draft of our tentative conclusions and we had to consider any submissions they made on this, I said the report would have to state what knowledge and what experience was being relied on. How could they make submissions if they did not know the basis of our decision?

In any event, I said, statements made by the board about playing golf and being in one camp were hardly persuasive, and would not satisfy the burden of proof. And if a member wanted to give evidence, he would have to withdraw from taking part in the judgment.

I said that we also had to have evidence showing that Powers was actually in control of Fairfax. But some members argued the ABA could assume a chairman controlled a company. I said they should ask a few chairmen about this.

One of the difficulties of a board trying to make a collective decision on such a matter is that the loudest and most insistent voices tend to prevail. Successive draft reports prepared by staff continued to record a breach finding, but did not also reflect my minority view.

I had to bring this to a head. So I wrote to all members, with a copy to our lawyers setting out my views. I said that, although the subjects of the investigation were rich and powerful, they were entitled to no more or less justice than the most humble citizen. Although we had heard assertions about decisions taken over golf and the Packer camp, there was still no reference to this and no attribution in the report. If that was the reason for finding a breach, why didn't the report say this?

I told the board at the next meeting that my minority view had to be included in the report. If the board voted to gag me, I said I would not hesitate to make the minority report public. And this would not be a leak, but would be directly attributable to me. This did not go down well. I said that while speaking with one voice might be acceptable for policy issues, it was completely unfair when we were deciding on a person's rights.

Senior counsel's views had by then been obtained on the two issues. No doubt to the surprise of some, both opinions supported my position. Eventually, a majority agreed that we could not find that Powers was in control of Fairfax. After the release of the draft and the submissions on this, I suggested a compromise, which was accepted. This was that the ABA merely finds that Powers was not in control of Fairfax. Then there would be no need to decide whether they were associates.

The case taught me two things. First, it is crucial that any dissent on a body, such as the ABA, which can make decisions affecting a person's rights, should be made public. (A later case, that concerning John Laws and Southern Cross, demonstrated to me that this is a most important public safeguard.) Second, this case was but one example of a strange and worrying propensity in some circles to make adverse judgments about public figures based on rumour and gossip, something that Packer had experienced more than once.

Powers, of course, is no longer chairman of Fairfax. But while he remained in that role, no one again seriously suggested that he was still working for Packer.