Posted 21/12/2021 by Philip Dearman
A debate about how complaints are handled by the Australian Broadcasting Corporation (ABC) has highlighted some enduring tensions in relations between the ABC and the Australian Government.
To understand this debate, it may be helpful to reflect on how the ABC’s complaints policies figure in the wider regulatory framework governing Australia’s broadcast media, and consider what might emerge if a recently postponed Senate inquiry goes ahead.
But first, what has actually happened?
On 18 October 2021, after significant public pressure concerning programs aired during 2021, the ABC Board announced an independent inquiry into complaints handling at the Corporation. The inquiry is scheduled to report in March 2022.
On 11 November 2021, the Environment and Communications Legislation Committee (the Committee) initiated its own inquiry into complaints handling at the ABC and the SBS. It was scheduled to report by 28 February 2022.
On 14 November 2021, ABC Chair Ita Buttrose issued a statement, which described the Committee’s inquiry as a ‘blatant attempt to usurp the role of the ABC Board and undermine the operational independence of the ABC’, and asked that the Senate defend the independence of the ABC by terminating or suspending the inquiry until the process initiated by the ABC Board had been completed.
On 23 November the Senate passed a motion to that effect, proposed jointly by the ALP and the Australian Greens.
This is just one short episode in the often-tense relationship between the ABC and the government of the day, whether Labor or Coalition.
The fact that tensions over funding and editorial independence are so often in the public eye derives from the ABC’s enabling legislation, which—as historian Ken Inglis has noted—makes it dependent on government revenue and simultaneously commissions it to generate ‘information and opinion useful and harmful to people in public life.’
But there is a wider context. Australian broadcasters operate under a co-regulatory framework established by section 123 of the Broadcasting Services Act 1992 (BSA), which obliges them to develop and implement their own codes of practice and, in the first instance, deal with complaints relating to breaches of the relevant code.
The Australian Communications and Media Authority (ACMA), as the regulator, is involved in the development, registration, and enforcement of these codes for commercial and community broadcasters. The public broadcasters, on the other hand, are required by their governing legislation to develop codes of practice, and then notify them to the ACMA.
These arrangements were introduced in the early 1990s. While many other public authorities were being privatised, the ABC retained its status as an independent statutory authority. Section 6 of the Australian Broadcasting Corporation Act 1983 (ABC Act) defines the ABC as ‘the provider of an independent national broadcasting service’. Section 8 states that one of the duties of the ABC Board is ‘to maintain the independence and integrity of the Corporation’. Section 27 states that the Corporation ‘shall develop and maintain an independent service for the broadcasting of news and information by the Corporation’.
But the ABC is not immune to scrutiny. It is obliged to submit annual reports to the Parliament. Executives are regularly questioned at Senate estimates committee hearings. And it has been subject to audit by the Australian National Audit Office (ANAO), most recently in 2018 when the ANAO reviewed the effectiveness of the ABC’s management of complaints.
And like other broadcasters, the ABC is expected to be accountable for how it complies with its published editorial standards. The conditions of that accountability are spelled out in its current Code of Practice: these include that if complaints are not resolved within 60 days by the ABC’s Audience and Consumer Affairs unit, or not resolved to the satisfaction of the complainant, they can be referred to the ACMA.
If the ACMA finds a complaint justified, it can make a recommendation to the ABC, which section 152 of the BSA provides ‘may include broadcasting or otherwise publishing an apology or retraction’.
If the ACMA is not satisfied the ABC has responded appropriately, it may ‘give the Minister a written report on the matter’, and the Minister may in turn ‘cause a copy of the report to be laid before each House of the Parliament within 7 sitting days of that House after the day on which he or she received the report’.
These arrangements are now being tested very publicly, with US cable television network Fox News referring its complaint about Four Corners ‘Fox and the Big Lie’ to the ACMA after the ABC had earlier dismissed its complaint.
Given these constraints, what outcomes might flow from a Senate inquiry?
The first possibility is a recommendation for structural change. As one commentator has noted, an option would be to establish an independent ombudsman as an external body to examine ABC complaints.
Senator Bragg, who chairs the ECLC, told Sky News just before initiating the inquiry that the current system is ‘a bit like Dracula and the blood bank; they basically mark their own homework’.
He commented further that the current debate is an opportunity ‘to get some structural changes at the ABC. I'm very focused on trying to ensure that we deliver something permanent, because at the moment, the model where they mark their own homework has not worked at all.’
The second possibility is that the inquiry is used to publicly register complaints already made privately to the ABC.
Senator Bragg emphasised the ‘publicness’ of the committee process, when he commented that the Senate has stronger powers than those of the ABC-commissioned inquiry, including legal privilege granted to people who make submissions. And he has also noted that that privilege ‘means people can say what they like without the threat of expensive and protracted legal action.’
Given those powers, the inquiry could then function as a very public forum for individuals who have previously complained about ABC editorial content, and not been satisfied with the outcomes of their complaints.
In a statement to the Senate on 1 December 2021, Senator Bragg expressed his regret that the Committee inquiry has been postponed, and described the decision as ‘a very dangerous precedent’. He added:
Sure, people are entitled to provide their advice, but the explicit nature of how this was done is, I think, very dangerous in a democracy like Australia. I don't think that any government agency should be trying to force the elected parliament to do anything other than provide advice which is frank and fearless. I think that sort of direct politicisation is very risky, and, as I said, I regret very much the precedent that has been set here.