New Matilda’s Response To Brian Walters QC on Cate Faehrmann

Yesterday morning, we published a reply to Brian Walters QC, who took up the case for Greens NSW pre-selection candidate Cate Faehrmann. Editor Chris Graham promised a reply to Mr Walters article. This is it.

Contrary to popular opinion, the key job of a lawyer is not to get to the facts. It’s to construct a convincing argument around a ‘set of facts’ which might be open to different interpretations. As you might expect, Mr Walters has done exactly that. He is, after all, a very competent, very well respected QC.

New Matilda’s brief, however, is quite different. Ours is to get to the facts. It’s also to provide political opinion and analysis. That’s what we did in the three-part series recently written by Michael Brull, which has been the subject of ongoing outrage among supporters of Greens NSW member Cate Faehrmann (and later Jeremy Buckingham).

Walters’ article is laced with hyperbole. Indeed it was submitted with the headline ‘Michael Brull spits the dummy’. It’s not the considered response I would ordinarily expect from a Queens Counsel, but then this whole saga has provided a series of responses that I wouldn’t ordinarily expect from Greens politicians, or their supporters. So I guess we live in a brave new world.

We’ll let the hyperbole fly through to the keeper for now, because the main charge by Walters is that Michael Brull “… bases his farrago on a bizarre series of falsehoods”. To put not too fine a point on it, no, he does not.

Walters writes: “In the middle of an internal Greens pre-selection, Michael Brull, a Greens member, has written for New Matilda a series of articles attacking a candidate – Cate Faehrmann. As he must know, candidates for pre-selection are not permitted to speak to journalists, and therefore have no right of reply. It is an archetypal act of cowardice to attack a person who is unable to defend herself.”

That’s very chivalrous of Mr Walters, and also nonsense. Cate Faehrmann is and was more than capable of defending herself, and did so in a private Facebook group with 800 Greens members (printed in part below), albeit muddying the waters and misleading as she did.

But that aside, the Greens NSW policies are the Greens NSW policies. They can do with them what they will. What I won’t do with those policies is allow them to prevent New Matilda from publishing on matters of public interest when they occur, and particularly when those matters of public interest occur at crucial times, such as party pre-selections to nominate people to receive taxpayer funded positions of substantial influence. That is precisely the time when additional scrutiny should be applied.

Constructing a ‘cowardly attack on a defenceless woman’ narrative, while colourful, does Mr Walters no credit whatsoever.

Regardless, Cate Faehrmann presumably also didn’t know Greens NSW policy prevented her from commenting publicly, because she wrote to me on April 27 – right in the middle of the pre-selection – requesting “a comparable amount of space and prominence in your publication for a right of reply”.

Or maybe she did know? Because in the very same email, Faehrmann also wrote, “No doubt you are aware I am in the middle of a pre-selection within the Greens NSW and our rules dictate that I cannot speak with journalists about internal Greens matters or the pre-selection.”

Had Faehrmann just contradicted herself once in the email, you might let it slide. Unfortunately, it was the theme.

In the same correspondence Faehrmann writes this: “Brull at no time has attempted to clarify any of his conclusions with me and I have had no opportunity to respond to any of the allegations he has made.”

Followed immediately by this: “His only approach was to send a series of loaded questions via Facebook a week ago that indicated he had already made up his mind about my role in the issues he intended to write about.”

Right. So Brull did offer Faehrmann the opportunity to comment. Faehrmann just didn’t like the questions. By contrast, she didn’t say in reply, ‘I cannot comment because of party pre-selection rules’. Instead, Faehrmann saw the message, and chose to ignore it.

And then there was this from Faehrmann: “It is difficult to see how Brull’s conduct is not in breach of the MEAA’s Code Of Ethics. There is clear evidence his published pieces breach fairness ethic – his unfounded allegations linking me to conflict within the party and his failure to allow me an opportunity to clarify or respond are examples of this.”

Firstly, there is no breach of the MEAA Code of Ethics. It’s a simple analysis piece, albeit one which Faehrmann strong disagrees with. That’s her right.

Secondly, Brull does link Faehrmann to conflict within the party. Faehrmann is a controversial figure with Greens NSW. The fact that she had to go to court to win pre-selection somewhat proves that point. It doesn’t mean Faehrmann is in the wrong – indeed, Brull’s article acknowledges several times her position was right – but it’s patently absurd to say it’s not true that Faehrmann is a source of controversy, and Brull is well within his rights to publish a political analysis which asserts that.

Thirdly, no Cate, sorry, you were afforded the opportunity to respond. And you damn well know it.

As it was, Faehrmann wrote back four hours later, withdrawing her request and re-explaining that she wasn’t allowed to speak. I replied that she was welcome to respond at any time.

In public, Faehrmann was telling a similarly confused story, posting to social media that Brull had never offered her the opportunity to respond… but possibly had.

“Some members may have seen articles this week in New Matilda, written by Greens member Michael Brull, personally attacking me and making a number of sweeping and unproven allegations, which I have found distressing to say the least. It’s clear these were run in an attempt to smear my reputation during a tough pre-selection. The allegations in these articles were never put to me to respond to. This goes against the journalist’s Code of Ethics and New Matilda’s integrity as a publication in publishing them. Last week I was contacted by Brull (who I don’t believe I’ve ever met) with a number of loaded questions. Our pre-selection rules dictate candidates cannot talk to the media during a pre-selection so I did not respond.”

This kind of response is precisely what I expect – and have experienced many times – from Liberal and Labor party members. Muddying of the waters, a series of ‘proven conspiracies’, and some creative writing. It’s not, however, what I would traditionally expect from Greens members, particularly politicians. Politicians like, say, Jeremy Buckingham, who – a few days after we published the Faehrmann stories – pulled an obscene gesture at a Greens fundraiser. He responded by claiming the camera angles made it look like something it wasn’t, that it was all a misunderstanding, that he didn’t know the gesture was rude, and that in any event, he was simply mimicking a television hero of his (who, notably, has never used that gesture… but even if he had, how does that assist given the gesture is vulgar and used to demean women?). And then, as we now know, Buckingham’s media adviser tried to background New Matilda to smear David Shoebridge instead.

But back to Mr Walters’ letter, because there’s no confusion in his reply, just an unfortunate series of quotes selectively plucked from the story.

He writes: “Mr Brull repeatedly asserts that Cate Faehrmann was attempting to change the constitution. That is patently false. Cate Faehrmann was seeking to have the terms of the constitution obeyed. That was the whole point of the advice and of the subsequent legal proceeding.”

This is a cleverly constructed argument, from a clever QC. It’s also, respectfully, not correct. Michael Brull did not assert that. Here’s what he actually wrote: “Achieving constitutional change is difficult, because decision-making at SDC requires consensus, or at least a three to one majority to ‘change the status quo’. Faehrmann would have needed a three quarters majority to have had the constitutional interpretation changed.” The key words here being ‘constitutional interpretation’.

What Brull was arguing is that there was difference of opinion in how processes should be followed. In order to accept Walters’ assertion, you have to accept that Greens NSW not only had no case, but knew they had no case. In truth, Greens NSW simply did not agree with Faehrmann’s interpretation of their constitution. Walters seemed non-plussed by this – after all, he provided them legal advice which said Faehrmann was correct. So of course, Greens NSW should have just accepted that. Right?

Well no, obviously. But the court, as it turned out, did. However, Walters appears to be asking you to believe that while his client acted out of the purest of motives, Greens NSW knew they were in the wrong and went to court anyway. Lawyers sometimes say this about their opposition. That doesn’t make it true.

Brull articulates this better than I do in the article, a part of which Mr Walters also neatly sidesteps: “Faehrmann implies that if legal advice had been sought, they would have simply agreed with her, and her provisional status would have changed. Yet the Greens did ultimately seek legal advice. After she issued the party with a summons on 6 March, the Greens sought legal advice, and the lawyers they hired sent a letter setting out their opinion that Faehrmann was a provisional member. In the end, the court sided with Faehrmann. Yet this does not mean that the issue was unarguable, or that the Greens NSW at any point acted in bad faith.”

This paragraph from Mr Walters contains similar hyperbole: “Office bearers of the Greens NSW went to great lengths to stop Cate Faehrmann from running for preselection, risking the party’s reputation and finances in the courts.”

Did they Mr Walters? Really? Or did they apply the rules as they understood them, and had consistently applied them to others? The court disagreed with their interpretation. That happens. But inflating that to a conspiracy against Faehrmann…? That’s what Faehrmann supporters have been saying on social media for weeks, but a QC saying it – and a QC who provided the initial advice, no less – doesn’t make it any more valid either.

Mr Walters also wrote: “The matter was taken to the Greens NSW State Delegates Council (‘SDC’). Mr Brull writes that the SDC ‘was able to have a say about whether the rules should be changed. The membership declined to do so.’ This is not true. There was no decision to ‘decline’ to have a say, and nor was there any question of changing the rules. Rather, the position was that the issue of interpreting the constitution was deadlocked, and no decision was forthcoming.”

Apart from the fact that Brull later specifically refers to a “stalemate”, here’s the full paragraph that Walters is selectively quoting: “The person in charge of membership made a decision consistent with previous decisions. When it was controversial, he didn’t simply decide she was too important to lock out. Instead, it was referred to SDC, and the membership was able to have a say about whether the rules should be changed. The membership declined to do so.”

That is precisely, exactly what occurred.

Walters further writes: “Mr Brull goes on to assert about this process that ‘Greens processes had been followed and Faehrmann had lost’. This is a blatant reinvention of history.”

I agree. It is a reinvention of history. Here’s what Brull actually wrote:

“As noted by Chief Justice Ward, a ‘number of resolutions’ were proposed on this subject. None were carried. I will discuss later why this may have been. Suffice to say, at this point, the processes of the Greens had been followed, and Faehrmann had lost. Her supporters might call this a stalemate, but the effect was the same. She had quit a high-profile job to stand for pre-selection, which she was being denied for seemingly minor technical reasons. She had presumably paid for solicitors and barristers to provide legal advice and draft a letter to the NSW Greens urging them to accept her as a member. This had not gotten her anywhere.”

Brull doesn’t suggest that the Greens NSW processes were right. Indeed he explicitly states, several times, that they were wrong.

“I am not going to get into legal analysis of the Greens NSW constitution. The review of the legal issues by the Chief Justice of the Supreme Court in Equity should be regarded as authoritative. Put differently: on legal construction, Faehrmann was right, and her lawyers were correct. At this stage, Faehrmann had good reason to believe that her interpretation of the constitution was correct, and had legal experts on her side. At this point, it is fair to say that no one acted inappropriately, though the clash would soon emerge.”

There’s also this: “Mr Brull’s narrative is one of hardworking party members following process and Cate Faehrmann blindly taking the party to court to pursue her own selfish agenda. Brull implies that Cate Faehrmann was seeking an ‘exception’ to the rules and asking office bearers to ‘bend the rules’.”

Which is not what Brull implied at all. The statement Walters refers to was presented as a possible alternative to going to court – one which some of Faehrmann’s supporters actually argued for on social media, but didn’t attribute to Faehrmann.

Additionally, here’s some excerpts of the reporting from Brull’s story that Mr Walters, and Faehrmann and her supporters have conveniently left out, presumably because it didn’t fit the conspiracy narrative.

There was this: “Faehrmann was understandably upset by this ruling. She had quit her job to stand for pre-selection. She has lived in NSW in the past, and only moved to Victoria temporarily for work. It is natural that she should be upset, particularly given her view that she stood a strong chance of pre-selection. Certainly, she would have had the advantages of former incumbency, and the various connections that would ensue from her prominent positions in the party.”

And this: “The controversy could have been resolved here. However, Faehrmann faced some difficulty.”

And this: “Her supporters might call this a stalemate, but the effect was the same. She had quit a high-profile job to stand for pre-selection, which she was being denied for seemingly minor technical reasons. She had presumably paid for solicitors and barristers to provide legal advice and draft a letter to the NSW Greens urging them to accept her as a member. This had not gotten her anywhere. If she was to stand for pre-selection, she could try mediation, or she could take the party to court. Given that the matter did go to court, and costs were awarded against the Greens NSW, one might think it would have been better if the matter had somehow been resolved without going to court. Why not just let Faehrmann bypass her provisional status?”

That last paragraph  in particular is important: It was Brull’s view that Faehrmann shouldn’t have taken his party to court. It’s Walters’ view that she should have. Brull is a member of the Greens. Walters is a lawyer who provided initial legal advice to Faehrmann. Anyone surprised by the different positions?

In legal terms, we call that a ‘disagreement’. But Mr Walters is seeking to cast it as something else entirely.

Long story short, Mr Walters missive is a misrepresentation of Michael Brull’s article. To suggest that it was anything other than a fair, reasonable analysis from one perspective on a matter of important public interest is wrong. You might not like the timing, and you might not like the subject, but the article was not wrong, and it was not based on a “bizarre series of falsehoods”.

Which brings us to the response of Faehrmann’s supporters, and Faehrmann herself, which has been instructive. Indeed, it goes to one of the central points that Brull makes in the article – that Faehrmann and her faction run a brand of politics that grates inside the Greens. To pretend this is not the case in the face of all that has subsequently transpired is utterly ridiculous. Again, you might not like that reality, but that doesn’t make it ‘not a reality’.

In Walter’s defence he doesn’t pretend this. He just doesn’t acknowledge it.

Faehrmann’s camp responded in precisely the same way Jeremy Buckingham’s camp did when he was exposed for pulling his obscene gesture in a photograph (followed by his office trying to background this writer to attack one of Buckingham’s political opponents… ironically a point also highlighted in Brull’s three part series).

And speaking of Michael Brull, over many years, he has been one of the most consistent, calm and considered writers on New Matilda. He doesn’t, however, pull any punches. He ‘goes after his own’ as hard as he goes after others. That’s the thing about Brull that I most respect, and it’s why he fits an independent publication like New Matilda so well. He’s fair, but he’s fearless.

Brull is best known for his writing on Israel. He is a Jew. Or a self-hating Jew, if you believe his critics. Brull recently wrote on the Greens NSW. He’s a member of the Greens NSW. But now he’s being called part of the ‘Old Guard’ trying to shore up factional rivalries. Brull has been a member of the Greens for one year. I guess time moves quickly in politics.

The fact is, Brull doesn’t belong to ‘Left Renewal’. He doesn’t hold a brief for any Greens politician. He wrote an analysis about an important issue in his party, and in my view, the response to that article proves precisely why the article was – and should have been – written in the first place.

On that front, Cate Faehrmann did win pre-selection in a tight contest. Good on her, the democratic process worked. The members had their say. But the response to scrutiny of her appears, unfortunately, to be an increasing part of Greens NSW DNA. If the commentary on social media is anything to go by, it’s driving people away from the party.

As to the various Greens identities’ claims that it’s also driven people away from New Matilda, obviously, it hasn’t. Throughout this ordeal, New Matilda readership and subscriptions have continued to spike upwards. That’s not why we published it, but it’s a nice bonus. Our readers always respond well when we report without fear and without favour.

New Matilda exists to apply equal standards across the political spectrum. We don’t get embroiled in factional politics. And we don’t care what those factions subsequently say about how they’ve been treated when the spotlight is on them.

We also don’t change course because political insiders yell ‘conspiracy’. But by all means, keep yelling. The louder the din, the more we know we’re on the right track.