The words “accurate”, “contravene”, “duty”, “ensure”, “impartial”, “independence”, “integrity” and “maintain” are ordinary English words with clear meanings. They are used in sections 6 and 8 of the Australian Broadcasting Corporation Act 1983 (the ABC Act) to make clear the unique legal status of Australia’s national broadcaster.
Section 6 of the ABC Act specifies the functions of the ABC and, in the provision of broadcasting services, requires it to take account of five broad specific considerations. The combination of functions and duties constitute the “Charter” of the ABC. Section 8(1), which specifies the duties of the ABC Board, provides, in part, that:
It is the duty of the Board;
(a) to ensure that the functions of the Corporation are performed efficiently and with the maximum benefit to the people of Australia;
(b) to maintain the independence and integrity of the Corporation;
(c) to ensure that the gathering and presentation by the Corporation of news and information is accurate and impartial according to the recognized standards of objective journalism; and
(d) to ensure that the Corporation does not contravene, or fail to comply with
(i) any of the provisions of this Act or any other Act that are applicable to the Corporation; or
(ii) any directions given to or requirements made in relation to, the Corporation under any of those provisions …”
The operation of sections 6 and 8 of the ABC Act is directly affected by a provision in the following terms:
Nothing in this section shall be taken to impose on the Corporation a duty that is enforceable by proceedings in a court.
That immunity from legal liability for a failure to abide by the foundational functions and duties of the ABC is an explicit statement of the unique public trust which the elected representatives of the nation have conferred on the ABC and its board of directors. The independence and integrity of the national broadcaster are necessary not only to prevent it from being used as a State-run propaganda agency, but also to prevent it from being controlled from within by its employees and agents for partisan propaganda purposes, or any other group. Given the ABC’s unique juridical nature, it is little wonder that its board has been expressly empowered to intervene in the everyday broadcasting activities of its employees or agents to ensure that the ABC’s duties are not flouted.
The same managerial imperative applies to the minister responsible to the Commonwealth Parliament for the administration of the ABC Act. If the ABC strays from its statutory duties, the minister is entitled to consider exercising the limited power conferred by section 8(2) of the Act to furnish to the ABC Board a statement of the policy of the Commonwealth Government and requesting the board to consider that policy in the performance of its functions, and the Board “shall ensure” that consideration is given to that policy.
It could not be seriously suggested, therefore, that the ABC would be acting unlawfully by insisting that its staff and contractors comply strictly with the ABC Act. That the time has come for the exercise of those powers to deal with the systemic partisanship of ABC programme makers which has evolved in recent decades is exemplified in the following broad and specific examples.
First, in the party nomination process preceding the US presidential election of 2016 and continuously since the election of Donald Trump, 45th President of the US, and following the expiry of his time in office, the news and information role of Australia’s national broadcaster has (with some minuscule exceptions which prove the rule) been characterised by overt and unrelenting partisan antagonism to that President, and to the people who voted for him. It should be obvious that the national broadcaster can report “news” and convey “information” about that political struggle, but that the ABC Act explicitly forbids it (which necessarily includes its servants and agents) taking sides.
The basis of the evolution of that ABC animosity is the ideology of identity politics. Its bedrock “truth” is the insistence that some categories of ideas (those concerning arbitrarily selected groups of individuals) are superior to all other ideas and thus can only be thought about and expressed in ways which conform to rigid standards – the world of policed “narratives”, “story-telling” and “conversation”. Despite the all-pervasive use of the abstract noun “diversity”, dissent is forbidden.
One of several recent glaring examples (more recently is the ABC’s hatchet job on Fox News) of the programme-specific failure of the ABC to comply with its statutory duties occurred on March 29, 2021, in the programme Exposed (Series 2) Episode 3, The Ghost Train Fire which concerned the terrible fire at Sydney’s Luna Park on 9 June 1979. In the last half-hour of that programme its makers attack the reputation of the late premier NevilleWran AO, QC (1926-2014) based on conduct attributed to him by the ABC during the time held office as Premier of New South Wales (1976-1986).
There are at least four connected and astonishing elements of what the ABC put to air about Wran in The Ghost Train Fire following its investigation. The first, is the gravity of Wran’s alleged criminal conduct. The second is the absence in the programme of evidence supporting any of the elements of the conspiracy in which Wran allegedly participated. The third is the ABC programme-makers’ casual and absurd response to criticism of its attack on Wran which included the following statement: “In fact, (Exposed) reports an allegation made (publicly for the first time) by former police.” Finally, the ABC has downplayed what it regards as relatively minor deficiencies in The Ghost Train Fire.
The sting of the ABC’s attack on Wran was that he was complicit (after the event) in a fatal arson attack on a public building, a conspiracy to cover-up that heinous homicidal crime and related police and government corruption. Specifically, as Exposed by the ABC:
♦ The Luna Park fire, which resulted in the incineration of six children and one adult, was the work of a gang of bikie arsonists at the behest of Abe Saffron (variously described in the episode as the “crime boss”, “Mr Sin”, “mafia associate”, and “big time crook”);
♦ The purpose of the arson was to enable Saffron, through a corporate entity controlled by him, to secure a permit for the future re-development of the Luna Park site;
♦ The coronial inquiry’s finding regarding the cause of the fire was false, and this was known to corrupt members of the New South Wales Police who engaged in an ongoing corrupt cover-up of the arson in support of Saffron’s ongoing corrupt efforts to obtain a re-development permit;
♦ Wran, who personified the corruption “at the top” of the Government of New South Wales, was a party through dealings with his friends, High Court of Australia Justice Lionel K Murphy and a solicitor, Morgan Ryan, who was an associate of Saffron, in furthering the ongoing Saffron conspiracy, the ongoing corrupt cover-up of the investigation of the cause of the fire, and thus the cover-up of the incineration of the six children and the adult, and,
♦ What had in fact occurred and continued to be covered-up had caused immense, lasting anguish to the families of the six boys and the adult killed in the Ghost Train inferno. This last component is self-evidently true. It seems likely true that the claims exposed by the ABC in the programme have or will aggravate those tragic consequences.
Common sense dictates that the commencement point of any consideration of the programme is for the viewer to pause and take a deep breath and confront the breathtaking gravity of the allegations levelled at Mr Wran. Common sense demands that such a charge can only be made if there is a very convincing commensurate reliable evidentiary basis for it.
Moreover, if objective journalism is a criterion which has any claim to meaningful application, it is one that should impose an even stricter evidentiary burden on the national broadcaster than is applicable to the privately owned mass media. The ABC has to be scrupulous to ensure that it never resorts to peddling conspiracy theories, rumour, tittle-tattle, or other claims which have no specific factual foundation, and to ensure that it does not rush to judgment in what is trumpeted as an Exposé.
In May 2021, Milton Cockburn, a former Wran staff member, and former Sydney Morning Herald editor lodged a complaint concerning The Ghost Train Fire with the ABC Audience and Consumer Affairs Unit. Having regard to the role of that part of the ABC’s management structure and its criteria, its rejection of the complaint and subsequent events, that response can be labelled formulaic.
Readers should make their own assessment by viewing the Sydney Institute online webinar (below) conducted on August 19. To its credit, the ABC Board referred the rejection of Cockburn’s complaint for external review.
However, the following events suggest that, except in one relatively minor contextual way, the ABC board is not prepared to exert its clear statutory authority to ensure that the makers of ABC programmes and the shows’ presenters abide by the ABC’s legal obligations.
Again, readers can make their own assessments by reading the following public documents: the ABC media release of May 21 and the transcript of the evidence given on behalf of the ABC at the Senate Estimates Committee hearing held on May 26. And then there is the brief report of the two reviewers who heaped praise on the episode, but concluded that “The programme makers have not succeeded in framing a conclusion that plainly stated their conclusion.” The response by the ABC director of news, analysis and investigations to the review report included an expression of gratitude for the finding that the programme had “performed an important public service”, describing it as an “outstanding (and “world class”) achievement that very few television series match.”
The fact that the ABC Act effectively forbids the national broadcaster taking sides in controversies does not impede its ability to provide news and information. It can report all sides to controversies and put questions designed to elicit information (including criticisms) and as long as the questioner/moderator refrains from over-stepping the line, the end result should be to ensure that the ABC abides by what in 1983 the Parliament intended by the words of “the standards of objective journalism”.
It is not so long ago that the personal opinions of on-air ABC employees or contractors were a mystery. If ABC journalists are uncomfortable with the requirements of independence, impartiality and integrity mandated in the ABC Act by the elected representatives of the people of Australia, they can seek work in the mass media where they will be free to express their likes and dislikes as the spirit moves them, subject to the proprietor’s final say.
ABC employees and contractors need to remind themselves that the ABC is a creature of statute. In the face of persistent defiant disregard by ABC programme makers and presenters of the unique and explicit fundamental legal obligations in the context of the immunity/privilege of the type conferred by s 6(4) of the ABC Act, it would hardly be surprising if the normal majorities of the Peoples’ House and the States’ House adopted the position that the ABC news and information function has outlived its usefulness and should be re-organized so that it complies with the ABC Act.
The author is a Melbourne barrister
Disclosure: In 1973, the author was a member of the personal staff of Senator the Hon Lionel K Murphy QC, Attorney-General of the Commonwealth of Australia and Minister for Customs and Excise.