There are rumours that the ABC is about to hold another review into its complaints system. The last one, in 2009, recommended the abolition of the Independent Complaints Review Panel, the ICRP, because it was an expensive and time-consuming duplication of the role of the regulator, the ACMA.

One of that review’s authors was then ABC Chairman Maurice Newman – now a columnist at The Australian and one of the ABC’s most trenchant critics.

Eleven years later, here we go again.  News Corp Australia is in the forefront of calls for a more “independent” ABC complaints system.

Meanwhile, what used to be “recognised standards” for all journalism, public or commercial, are nowhere to be found at News Corp’s own Sky News.

By  Jonathan Holmes / 22 September 2021

IN LIKE FLINT

The push is on again, fuelled and fired, predictably, by The Australian and Sky News, for the ABC to set up an “independent” mechanism for reviewing complaints. 

The catalyst, it seems, was the ABC’s publication of an independent review that it had itself commissioned, which was critical of some aspects of the documentary series Exposed: The Ghost Train Fire.  Communications Minister Paul Fletcher reportedly pointed out to The Australian that the ABC’s Audience and Consumer Affairs unit had earlier found that the series did not breach the ABC’s editorial policies. He thought the ABC Board “should consider whether the existing complaints mechanism is working the way it should”.

“If viewers or listeners have a concern about a program, they should have access to a robust, independent complaints process,” The Australian quotes him as saying.

Mind you, it’s not wise to believe everything you read in the papers – especially The Australian. Just a few days earlier, on August 24, The Oz’s media writer Sophie Elsworth reported that former ABC Board member and Victorian Liberal Party faction boss Michael Kroger had called for “a completely separate independent ombudsman … to properly investigate complaints against the ABC”.

The next paragraph of Elsworth’s report read:

Opposition communications spokeswoman Michelle Rowland said it was vital the ABC had an independent disputes mechanism to handle complaints.

“It is imperative that the ABC have operational and editorial independence,” she said.

Curious that the ALP seemed to have joined the government pile-on, I called Rowland’s office. The sentence in quotation marks, I was told, was accurate.  But Michelle Rowland did not say, and does not think, that the ABC needs a more independent disputes mechanism than it already has. If complainants aren’t happy with the ABC’s response, her office pointed out to Elsworth, they can go to the independent regulator, the Australian Media and Communications Authority, the ACMA.

I emailed Sophie Elsworth to ask about her apparent misreporting. She didn’t get back to me.

But her report has taken on a life of its own on Sky News.  On August 27, three days after it was published, Nicolle Flint, the MP for Boothby in South Australia, was invited on to Cory Bernardi’s Sky News program. “Michelle Rowland has said,” she asserted, “that the ABC should have an independent complaints dispute mechanism, so I’m calling on Labor to work with us to get this through Parliament”. 

Flint also made the remarkable claim that “the ABC, who get a billion dollars of taxpayer funding, … do not have a complaints system that is nearly as robust and thorough as the … commercial TV stations.”

We’ll come back to that claim shortly.  

Meanwhile, the ALP and Greens members of the Senate Communications Committee are much more concerned about the regulation – or lack of it – of Sky News than they are about the ABC.

WHAT DO YOU ACTUALLY DO?

On 6 September, Greens Senator Sarah Hanson-Young chaired a public hearing of the Senate Communications Committee’s inquiry into media diversity.  YouTube had taken down more than 20 Sky News video clips about COVID-19 because they infringed its policy on COVID-19 medical misinformation – most of them, it’s believed, because they promoted ivermectin or hydroxychloroquine as effective treatments for the disease.  

Thanks to its deals with Southern Cross Austereo and WIN, Sky News has aired the same content on its dedicated free-to-air channel through most of regional eastern Australia; but the ACMA has done nothing.

Quizzing ACMA chairperson Nerida O’Loughlin, Hanson-Young professed herself “astonished” that the media regulator had taken no active steps to prevent what she called “the distribution and promotion and publishing of information that puts people’s lives at risk” on Sky News.

O’Loughlin responded that the ACMA did not monitor free-to-air television.  It relied on the viewing public to complain, and very few had.  

The ACMA could take a much more active role, if it wanted to.  It could, for example, commission a university to monitor Sky News’s COVID coverage for a month or six. If the monitors found material that seemed to pose, in YouTube’s words “a serious risk of egregious harm”, the ACMA could conduct its own investigation into those segments – it doesn’t need to wait for a complaint. If necessary, it could issue a “standard”, a legally-binding directive about what is, or is not, “medical misinformation”.

O’Loughlin agreed that the ACMA had those powers. But, she added, “we have not seen that level of concern on this matter at this time”.

Labor Senator Kim Carr got so frustrated by O’Loughlin’s responses that at one stage he asked: “What do you actually do?”

FOUR IRONIES AND A COUNTRY MILE

There are some rich ironies here. 

Irony One:  It was allegations by Sarah Hanson-Young about former Senator Bernardi’s behavior in the Senate, aired in the ABC series Ms Represented, that prompted Bernardi to make a formal complaint to the ABC. Nicolle Flint also complained: the whole series was biased against the Liberal Party, she maintained. In the Sky News segment on August 24 both Flint and Bernardi bemoaned the fact that the ABC had not responded to their complaints within 30 days, as it says that it strives to do. 

Under the “much more robust and thorough” commercial television system, the broadcaster has 60 days to respond to a complaint before it’s in breach of the rules.

Irony Two: A few days later – one day, in fact, after the media diversity inquiry hearing – the ABC’s Audience and Consumer Affairs unit, so derided by Bernardi and Flint, upheld Bernardi’s complaint. The allegations, it found, should have been put to him. He should have been given a right of response.  They weren’t, and he wasn’t. The ABC apologised and has inserted his denials, rather clumsily, into the iView version of Ms Represented. 

Irony Three: Nicolle Flint’s complaint was rejected, on the grounds that the series included contributions from at least five prominent Liberal MPs, and that several others had been invited to participate but declined. Ms Flint, so concerned about the lack of an independent complaints mechanism, has the right to take her complaint to the ACMA. So far as we know, she has not. 

As Flint rightly points out, the commercial television Code of Practice, by law, has to be drawn up by the broadcasters, posted for public consultation, then signed off on by the ACMA. The ABC’s Code of Practice does not.  

But complaints to both the ABC and commercial broadcasters are dealt with, in the first instance, by the broadcasters themselves. Both have 60 days – two whole months – to respond to the complaint. If complainants are dissatisfied, in both cases they can appeal to the ACMA, which will take more time – often some months – to investigate, and rule on whether or not there has been a breach of the relevant Code of Practice.

Hard to see how one system is more “rigorous and thorough” than the other.

Irony Four, however, is this: the ABC’s Code of Practice is completely different from commercial television’s. And if you compare them, the ABC’s is the more“robust and thorough”, by a country mile.

A CODE FULL OF HOLES

One of the ACMA’s duties, under clause 1(i) of the ACMA Act 2005, is to assist commercial broadcasting service providers “to develop codes of practice that, as far as possible, are in accordance with community standards”.

Clause 123(2)(d) of the Broadcasting Services Act 1992 says that those codes of practice may relate to “promoting accuracy and fairness in news and current affairs programs.” So the parliament clearly thought back then that a modicum of accuracy and fairness in commercial news and current affairs was a “community standard”.

But the current commercial TV code of practice as it pertains to “fairness” is as weak as water and as full of holes as an Emmentaler cheese. 

Section 3.3 of the 2018 Code, headed “Accuracy and Fairness”, is about half a page long.  It starts like this:

3.3.1  In broadcasting a news or Current Affairs Program, a Licensee must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.

That wording represents a subtle, but crucial, watering-down of the previous version, dated 2010. The relevant clause of that code read:

4.3 In broadcasting news and current affairs programs, licensees … must broadcast factual material accurately and represent viewpoints fairly.

Well, obviously, a requirement to represent a viewpoint fairly sets a higher bar than merely “not misrepresenting” a viewpoint. More important still are those four words “included in the program”.

Go back to the 80s and 90s, when commercial TV broadcast programs like Nine’s Sunday or Seven’s Witness.  They may not always have been acmes of journalistic excellence.  But their producers would mostly have agreed that on highly contentious topics, they had some duty to at least nod in the direction of the most important contending views, if not in one segment, then over time. That’s what they would have taken the words “represent viewpoints fairly” to mean.

Well, not any more.  Under the current code, the only obligation is not to misrepresent the viewpoints that you decide to include in the program. There is no obligation at all to deal, fairly or otherwise, with any other viewpoints.  You can simply ignore them.

If there were any doubt about that, it is dispelled by clause 3.4, “Impartiality”:

3.4.1 In broadcasting a news Program, a Licensee must: 

(a) present news fairly and impartially;

(b) clearly distinguish the reporting of factual material from   commentary and analysis.

Note that these onerous requirements apply only to “a news program”, not to current affairs.  Clause 3.4.3 makes that crystal clear:

3.4.3 Current Affairs Programs are not required to be impartial and may take a particular stance on issues.

In commercial current affairs programs, you still have to “broadcast factual material accurately”.  But there’s no obligation to “clearly distinguish factual material from commentary and analysis”, and there’s no obligation to air more than one point of view, ever. The notion of “fairness” barely gets a look-in.

The new code suits the output of Sky News perfectly – and that may well not be coincidence. In 2016, News Corporation Australia bought Sky News from its previous owners, Seven, Nine and British Pay TV operator BSkyB. In May 2018 Sky escaped the confines of pay TV.  It signed a deal with regional broadcaster WIN to air Sky News on one of its digital free-to-air channels.  

Earlier this year, WIN decided to revert to Nine programming after its short-lived partnership with Ten.  In most of its franchise areas, though not in all, WIN has dropped Sky News in favour of Nine programming. Southern Cross Austereo has happily moved into the vacuum.   

The upshot is that Sky News is available on free-to-air TV in more areas of regional Australia than ever. 

The programs that feature Sky’s line-up of “after dark” pontificators – Jones and Credlin and Murray and Bolt and Dean and Bernardi and the rest – are all classified as “current affairs” by the ACMA. Under the current Code, their hosts can opine as much as they like about the wonders of ivermectin, or the uselessness of lockdowns, or global warming hoaxes, or the tyranny of Dan Andrews.  

Anyone who complains that their opinions are unfair, or biased, or even dangerous, won’t get anywhere unless they can separate out from the morass a clear statement of fact, and produce evidence that the fact is “materially” wrong.

If the broadcaster or the ACMA agrees with the complainant, a correction on Sky News’s website is all that is required to put matters right.

And in fact very few people do complain. If your business model is to target an audience that agrees with a certain set of views, and ignore everyone else, those watching won’t be likely to complain, and those who are likely to complain won’t be watching.  

So much for the “rigorous and thorough” commercial TV complaints system.

THE ABC CODE: PRINCIPLES AND STANDARDS

The ABC Code of Practice – which is essentially identical to the Editorial Policies that ABC program makers know and love – could hardly be more different.

Take that issue of “Fairness”.  The ABC Code has a whole section devoted to “Impartiality and Diversity of Perspectives”.

It has ‘Principles’, which underlie the rules, and ‘Standards’, which program makers are expected to abide by.  Among the ‘standards’ are these:

4.1  Gather and present news and information with due impartiality.

4.2  Present a diversity of perspectives so that, over time, no significant strand of thought or belief within the community is knowingly excluded or disproportionately represented.

4.4 Do not misrepresent any perspective

4.5  Do not unduly favour one perspective over another.

And in addition to the Code itself, there’s an Editorial Guidance Note on Impartiality, several thousand words long.

Unsurprisingly, complaints that the standards have been breached are common, and sometimes very detailed. Audience and Consumer Affairs pore over the whole lot in deciding whether to uphold a complaint; and then, if necessary, the ACMA pores over it all again.  For one typical example, see ACMA’s investigation report no. BI-587, about whether or not Craig Reucassel’s Plan for Planet A unfairly ignored the perspective of the cattle industry.  It’s long, and detailed, and hair-splitting. What does ‘due’ impartiality mean? Or ‘over time’? Study, and discover.

In that case, the ACMA decided the ABC had not breached its Code of Practice. Occasionally, it decides that it has. It was an ACMA ruling that obliged me to apologise to News’s Andrew Clennell on Media Watch, an experience I won’t forget.

For rigour and thoroughness, there isn’t another media organisation’s complaints system that comes anywhere near the ABC’s.

 “THE RECOGNISED STANDARDS…”

So it should be, the critics argue. The ABC is funded by the taxpayer. It should be held to a different standard from commercial news media.

Well actually, that’s not what the ABC Act says. Its most famous clause is 8(1)(c):  

It is the duty of the Board to ensure that the gathering and presentation by the Corporation of news and information is accurate and impartial according to the recognised standards of objective journalism.

Yes, the ABC is legally bound to be accurate and impartial. But back when the Act was written, in 1983, every respectable news organisation felt bound to the ideal of accuracy and impartiality, at least where its news columns were concerned. Those were the “recognised standards”.  As the legendary editor of the Manchester Guardian, C.P. Scott, famously put it back in 1923: “Comment is free, but facts are sacred”.

The only difference between the ABC and commercial news outlets was that the ABC couldn’t comment, it could only report. As today’s editorial policies put it in Standard 4.3: 

The ABC takes no editorial stance other than its commitment to fundamental democratic principles.

A few decades ago, commercial news organisations – especially the so-called ‘quality’ news media – had their editorial and op-ed pages, where comment was free.  The rest of the paper was news, where opinion was frowned on.  n the 80’s, Nine’s 60 Minutes experimented with a “what we think” segment, in effect, an editorial.  It was never more than two or three minutes long.

But times have changed.  As their old business models have staggered under the pressure of the digital revolution, commercial media organisations have discovered that what sells, what people want to read, or hear, or watch, is opinion: preferably, their own opinions writ large. Helped by the dark genius of Roger Ailes, the Murdochs made a fortune by unbridling opinion on Fox News. They are trying to do the same with Sky News Australia.

So nowadays, the ABC finds itself set apart from the rest of the news media firmament.  As then Communications Minister Malcolm Turnbull put it back in 2015: “The ABC has a higher duty, it has a duty of objectivity that the rest of the media does not. They can be as opinionated as they like.”

That applies, it seems, to news as much as to comment. The standards of objective journalism, these days, are “recognised” as applying only to the ABC.

FORWARD TO THE PAST

It’s been set still further apart, arguably, by the system of independent reviews instituted a decade ago by then chairman Jim Spiegelman.   He wanted the Board to be seen to be ensuring that those “recognised standards” were being adhered to. 

So he instituted reviews, by prominent non-ABC journalists, of strands of ABC programming: Q&A, for example, or the ABC’s coverage of a federal election.The purpose was not to identify breaches of editorial policy, but to give a non-binding opinion about whether or not that strand of programming, overall, was “accurate and impartial”. Usually, the resulting reports have been published. 

It’s an exercise in self-criticism that no other media organisation in Australia would dream of imitating.

When Exposed: The Ghost Train Fire came under fire itself, A&CA found no breach of editorial policy. However, the ABC then commissioned an ‘independent editorial review’ of the series by Chris Masters and Professor Rodney Tiffen. Whether that was a Board or a management decision isn’t clear: in either case, it strongly suggests some uneasiness at the top about the A&CA’s finding. There have been 24 earlier reviews, but this was the first to scrutinise an individual program.

The Masters/Tiffen review was overwhelmingly positive, but it did find that the final program would have led viewers to believe, without sufficient evidence, that NSW Premier Neville Wran was corruptly involved in the Luna Park affair.

The review did not find that the ABC had breached its editorial policies.  It wasn’t asked to do that. But the line is a fine one. It’s not surprising that Minister Paul Fletcher, among many others, is now calling for the ABC’s complaints system to be as “independent” as that review panel. It’s not surprising that Fox News, and John Dawkins, are calling for “independent reviews” of programming that has upset them.

It’s worth reminding the critics that for nearly twenty years, from 1992 to 2011, the ABC had an Independent Complaints Review Panel, introduced following Prime Minister Bob Hawke’s strident criticism of the ABC’s coverage of the first Gulf War.  In fact, by the 2000s, there were four layers to the ABC complaints process, up to and including the ACMA, and to exhaust them all took years.

The ICRP – “Icrap”, as it was known inside the ABC – was legalistic, expensive, and rarely used.  In 2009, a comprehensive review of the ABC’s complaints system was conducted by its then-editorial director, Paul Chadwick, and its then-Chairman, and now occasional columnist for The Australian, Maurice Newman.  It was a diligent exercise. There was public consultation. The report is still a public document.

Newman and Chadwick concluded that the complaints system had too many tiers, and was too complex. They recommended the abolition of the ICRP, on the grounds that it merely duplicated the role of the ACMA. Two years later, the ICRP was gone.

There was scarcely a peep from anyone.

But it’s time, it seems, for history to repeat itself. I understand that the Board has called for yet another review of the complaints process. A panel of worthies is being assembled for the task.  

In the meantime, in all probability, the Senate References Committee on Communications will report on media diversity in Australia. It may well recommend that the ACMA take a more active role in ensuring that commercial broadcasters don’t endanger the public’s safety.

Stand by for squeals of “free speech under threat” from the Murdoch media. But they won’t be too worried.The Committee is chaired by a Green; coalition senators are in the minority. Whatever it recommends, the Morrison government will ignore it.

Of course, an Albanese government might feel differently. Which is one of the many reasons why News Corporation Australia will once again pull out the stops, come election time, to make sure that such a disaster does not befall Australia.  

Jonathan Holmes is an award-winning journalist and documentary maker. He’s a former executive producer of Four Corners, Foreign Correspondent and The 7:30 Report, as well as presenter of Media Watch and author of “On Aunty”(2019). He is now chair of ABC Alumni Limited.