How many media figures have been walking tightropes as the Channel Nine series Underbelly, by all accounts a landmark piece of drama, has made its way towards the screen?

Contempt of court was surely a most predictable problem. After all, the defamation issues are somewhat simplified by the fact that most of the characters are dead.

Those involved with the series have apparently been only too aware that there were some hurdles between putting the series in the can and getting it to air. They seem to have consciously pushed the line. Crikey hears that doubts were expressed even at the launch party, yet clearly Channel Nine still regarded the series as worth taking the risk. Some precautions were taken, according to what Channel Nine’s barrister, Brendan Murphy QC, told the court yesterday.

So how on earth did things get to this stage – with the whole series under threat and with it Channel Nine’s hopes for the new year? Who were the lawyers, and what did they advise? In particular, were they Sydney lawyers, who are less experienced in navigating through Victoria’s forest of suppression orders and touchy judges, or did they have the sense to use a Melbourne company?

Channel Nine’s publicist did not return calls asking for comment on these matters in time for deadline today.

Channel Nine are not in a good position. The relevant trial judge, Betty King, is known for her suppression orders and her lack of sympathy for the media. She has ordered the tapes to be delivered to the defence and prosecution lawyers in a forthcoming murder trial. It will clearly take at least a day next week to go through the 13 episodes. That raises the possibility of an injunction right on the eve of Wednesday’s screening.

Thus the rubbery nature of the law of contempt is once again in the spotlight. Whether to make the law more restrictive or less is a matter of debate, but at present the rules are flouted so often that with no action from the authorities that, as we saw in another case good lawyers have been known to advise that things once beyond the pale are now acceptable – and to get their client’s fingers burnt as a result. It is surely time for some good hard research on the susceptibility of juries as the basis for overdue law reform.

There are some other tightrope walkers around this issue. Today Age journalist John Silvester has a comment piece on the impossibility of enforcing contempt laws in the new media age. Silvester and his colleague Andrew Rule co-authored the books on which the Channel Nine series has been based. A tie-in edition of their books is due out soon.

So does this give him a conflict? Crikey understands there has been marketing-driven pressure within the Age for Silvester and Rule to write much more – even a piece for every week that the series is shown. Meanwhile there was a proposal for Channel Nine news to promote The Age in news bulletins associated with the series.

Rule says he and Silvester were paid for the rights to their book Leadbelly. The amount was “not enough for each of us to buy a new car. Perhaps enough for a good family holiday.” They were paid another small fee for helping out by introducing the people making the series to key cops and crims. The main incentive from their point of view was to sell more books, Rule acknowledges, about which there is no secret and no shame.

Whether they should be pressured to enter the controversy on the series is quite another matter. This, surely, is a legal and ethical minefield. And all quite foreseeable.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey