Democracy at work: Hansard1

ENVIRONMENT, COMMUNICATIONS AND THE ARTS
ECA 42 Senate Monday, 26 May 2008

CHAIR—I welcome the officers from the Australian Broadcasting Corporation.

Senator ABETZ—I start by asking about the ABC 7.30 Report on 5 June 2007 titled ‘Pulp mill could taint catch: fishing industry’. I understand there was a review of that particular 7.30 Report, is that correct?
Mr Scott—I believe that right.
Senator ABETZ—What did that review find?
Mr Scott—I do not have the details in front of me. I will be able to find them and forward them to you if you would like. I believe we may have clarified some factual matters in that in our online reference to that report.
Senator ABETZ—But not on the TV program itself.
Mr Scott—No, I believe that is correct, but I can check the details.
Senator ABETZ—Why not, when the ABC itself says ‘The correct information was known to the reporter before the story was broadcast’.
Mr Scott—I do not have the precise details in front of me but, as I recall, there was some debate around that program as to whether, in fact, the mussel industry had been suspended or had been effectively stopped. As I recall, we did clarify those matters in the online report on that program, so anyone who is factually checking that or reviewing that will be able to find that detail in our online version of the report.
Senator ABETZ—Yes, but when you publicly broadcast something which the journalist knew to be wrong, does the ABC not have an obligation to also broadcast its finding that the ‘correct information was known to the reporter before the story was broadcast; the report should not have gone to air in the form that it did and it breached the ABC code of practice.’ They are all things, are they not, that the ABC has now admitted to concerning this report?
Mr Scott—I do not have that detail in front of me, but I am happy to review it and come back to you on it.
Senator ABETZ—How quickly can you get this information? I would have thought something like this would have been at the forefront of your mind for Senate Estimates.
Mr Scott—I would simply point out to you that that report went to air a year ago. It was not raised at the last Senate Estimates hearing, and so I do not have that detail in front of me, but I am happy to get that material and to respond to any questions you want to raise on it.
Senator ABETZ—When will you get that material for us?
Mr Scott—I will try and get it as soon as we can, and if there are any questions you want to raise on that matter, you can.
Senator ABETZ—What does that mean? After lunch we can review this?
Mr Scott—I will take advice on it and I can come back to you on that. If I get material today, I will be able to speak on it today; otherwise I will be able to respond to you in writing as soon as possible.
Senator ABETZ—There is a problem with getting these things responded to in writing. As I understand it, complaints were made about this ABC program. You hide behind the fact that it was a year ago. Can you tell us at what date the ABC finalised its internal review in relation to this and came up with the final decision?
Mr Scott—I will get that detail for you, Senator.
Senator Conroy—I can make the point—given you are picking on individual circumstances, and I have no difficulty at all with that—that it might have helped if you had advised Mr Scott in advance that you were going to pursue this particular line of questioning and he might have been able to bring that information with him.
Senator KEMP—Oh!
Senator Conroy—No, the attacks on the ABC were almost—
Senator ABETZ—Senator Conroy, that is great cheek coming from you! The simple fact is that it breached the ABC code of practice. Can you confirm that to me?
Mr Scott—Senator, you have material there; I do not have material on this specific incident in front of me. If you have documents there that you are referring to, of course, I accept your word on that. I would say to you though, Senator, speaking broadly, that we have the most detailed audience and consumer affairs service of any media outlet in the country by far. It is very detailed, very systematic, and so if you are saying to me that an incidence has been found where an error was identified then, yes, we do have processes to alert errors. We often correct those errors on the online site, so anyone going back and checking on that story, drawing up that information can review the correction that takes place, so this does happen.
Senator ABETZ—There is a very big difference, Mr Scott, between an error and a journalist deliberately not using information available to them so as to slant a particular story, which then leads to the ABC itself saying that it breached the ABC code of practice. I can understand that a journalist may accidentally say 10 instead of 20 or make an error, but this is a breach of your code of practice, so please do not try to dismiss it as a little error. This was a deliberate breach.
Mr Scott—I was not attempting to dismiss it at all. I want to refresh myself with the details around it. The issue I do recall was that there was some debate whether the mussel industry had been suspended for a period of time to allow it to foster and redevelop or had permanently been abandoned. There was some debate and ambiguity around that and I think the story went to that matter.
Senator ABETZ—I think we might be talking scallops.
Mr Scott—Scallops, thank you. That is why I need to check the details and come back to you on it, if I may.
Senator ABETZ—It was a matter of particular concern to me and I will lay my cards on the table—at the time I was minister for both fisheries and forestry. There was a lot of concern expressed on whether I was looking after fisheries or forestry and, given this report, a lot of people who were relying on the misinformation of that report occasioned a lot of extra work and unnecessary angst. What I am trying to get at is: has the journalist been named who was responsible for this?
Mr Scott—Let me check the detail on that.
Senator ABETZ—Would you please name the journalist who was involved in that story? Can you then tell us whether she or he has been counselled?
Mr Scott—Again, I will have to check the details.
Senator ABETZ—And then who they have been counselled by? And please do not tell me it was David Marr or Peter Garrett.
Mr Scott—Without even checking my notes, I can assure you that neither of those gentlemen were
involved.
Senator ABETZ—Good. That was somewhat tongue-in-cheek, but at least we have a definite answer on something, which I do appreciate, because we do not seem to be getting any definite answers in relation to other very, very serious matters. Can you tell us what the counselling actually involves?
Mr Scott—We have quite a detailed process that takes place when there has been a breach of our editorial policies and there is a range of responses that can take place.
Senator ABETZ—For this particular journalist and in this particular case, what counselling did he or she receive?
Mr Scott—I will need to check on the specifics of that matter, but if you are asking me what counselling involves generally I can speak to you about that. If you question specifically about that matter I will need to check the file.
Senator ABETZ—All right, if you can get for me details of the specific counselling that took place. Over what period of time? How many sessions? Who with? Were any warnings administered verbally or in writing? I want the full gamut of the ABC’s response in relation to the matter. When a journalist has behaved in such a way, are they then taken off reporting on that general area in the future, at least for a period of, let us say, six months?
Mr Scott—I do not want to speak about that specific matter. Can I speak broadly about performance
management issues in relation to breaches of editorial policies because that is what I can speak to.
Senator ABETZ—No, sorry. I want to know the specifics because often with these cases we get drowned with the generalities, and on this occasion I want to know the specifics about whether this particular journalist was taken off reporting on forestry issues as a result of the gross bias that was displayed in the particular report.
Mr Scott—I will have to take that on notice.
Senator ABETZ—Are you aware of the response of the ABC to the ‘Lords of the Forest’ report?
Mr Scott—I am aware of that. It went to air early in 1994 and, shortly after I was appointed to my current role, a judgement came down from ACMA on the ‘Lords of the Forest’ report. I am aware that the ABC responded to that and the response included putting a slide up at the end of the Four Corners program alerting people to the online site where the ACMA report was.
Senator ABETZ—Could I encourage the ABC to do exactly the same in relation to this 7.30 Report, and that is to put up a slide alerting people that that segment they had watched had breached the ABC code of ethics and that correct information was known to the reporter before the story was broadcast.
Mr Scott—I want to check on this for you, but I believe the community group may have actually put in a formal appeal, so that matter is currently being reviewed by our executive complaints review process. When we have reached a judgement, I will be able to brief you on that.
Senator ABETZ—We have had The 7.30 Report segment and we have had the Four Corners segment— have there been any ABC programs that have run into trouble because they went the pro-forestry line?
Mr Scott—I do not have any detail to hand but I can check that and come back to you.
Senator ABETZ—I think you know that the answer is that there have been none. The point I want to put to you very seriously is that this is indicative to me of a huge cultural deficiency within the ABC that time and time again we have these very slanted reports on forestry in Tasmania. You started off by talking about errors, but surprisingly if they are genuine errors, I would have thought the errors might occur on both sides of the ledger. But when it comes to reporting forestry in Tasmania, it is always on the one side until the ABC is literally brought dragging and screaming to a point where they finally make some very soft acknowledgment of gross bias. I think the people of Australia deserve a better return on their taxpayer funded public broadcaster.
Mr Scott—Let me make a few comments in response to that. You have identified two programs where there have been concerns. There were serious complaints made about ‘Lords of the Forest’ but when it was independently reviewed by ACMA the actual difficult problems that they identified were far smaller. You have identified another story in The 7.30 Report. I would simply point out to you that every year ABC news and current affairs produces 15,000 hours of unduplicated broadcasts. You can pinpoint two programs over four years that you may have difficulty with. I would not draw from that the kind of conclusion that you are drawing from it. I would also point out that through our audience and consumer affairs program, through our complaints review executive, through ACMA and through the independent complaints review panel, the ABC has the most detailed and systematic process of evaluation of performance, including assessing perceptions of fairness, balance and impartiality, of any media outlet in the country. We currently have completed two reviews of our editorial performance, one of which was reported on in the Age this morning. We have three further reviews under way on impartiality at the ABC. I would simply say that to be so broad brushed in your
comments, Senator, does not present a fair and realistic assessment of the seriousness with which the ABC is attending to matters to do with its reputation, fairness, balance and impartiality.
Senator ABETZ—Mr Scott, some of us have had to live with the bias on forestry issues now for over a decade with the ABC, and your broadbrush approach is not acknowledged in any way, shape or form. There is a cultural issue of concern within the ABC. The problem is that you are not apologising for the ‘Lords of the Forest’ or for this 7.30 Report segment. You dismiss it as an error and then you say that out of 15,000 hours it is just a small little glitch. I would have expected there to be a genuine apology. I would have expected from you, Mr Scott, for there to have been a suggestion that the ABC was very concerned that this impinged on its wonderful reputation of being unbiased, et cetera. We have heard none of that from you. We have heard a very defensive approach to what the ABC has reluctantly had to find was a breach of its own standards.
Mr Scott—I am concerned that that is your view of what I said, because what I outlined to you—
Senator ABETZ—People can read the Hansard.
Mr Scott—The ABC takes its reputation so seriously that we have a detailed and systematic process to identify complaints pertaining to our editorial performance and fairness, balance and impartiality. We not only have a process to review complaints but also have a process to audit our performance over time. So that shows how seriously we do take our reputation. I am saying that you have identified problems with two programs, which have been acknowledged by the ABC. The ABC has acknowledged the ACMA finding on the ‘Lords of the Forest’ segment and the ABC has corrected material errors that appeared in The 7.30 Report story. So we do take errors seriously when they come to mind—
Senator ABETZ—But they are not errors, and you are using that language again. They are not errors. This is deliberate conduct by a journalist to slant a particular story. Even after this discourse—
Senator CONROY—Are you hunting for a question in there, Senator Abetz, or are you engaging in
debate?
Senator ABETZ—Even after this discourse you are unable to bring yourself to admit that this was bias as opposed to an error, and that is the disappointing feature about your responses.
Senator CONROY—That is not a question, Senator Abetz.
Mr Scott—I do want to check the record on The 7.30 Report story because I think one of the issues you raised is still under the review processes that we have. When we have that detail, I can come back to you on that.
Senator ABETZ—Thank you for that. I would have thought that, seeing they were such rare occurrences, you would have been across the detail but clearly not. That is fine. Moving on to another area—
Senator IAN MACDONALD—Just on that particular issue, Mr Scott: I acknowledge that over the years you have manfully attempted to achieve balance but I agree with Senator Abetz that there does seem to be a culture of anti-forestry in the ABC. I cannot name more than the two programs you named. However, I think the first one was 2004 and not 1994.
Mr Scott—Yes, 2004, I am sorry.
Senator IAN MACDONALD—When I was the minister before Senator Abetz, I observed a general
culture there. I will not go into the political thing—I turn off every ABC current affairs TV program because I just cannot bear to see your presenters putting their own biased political views on issues.
Senator CONROY—Are you aiming for a question any time soon?
Senator IAN MACDONALD—Yes, I am. I wonder whether, in a broader way than you have undertaken to do for Senator Abetz, you could check on what seems to me clearly to be an anti-forestry view of the reporters who reported particularly on TV news. Your radio—as always—is not quite so bad. I am wondering whether as a broader issue you could somehow check to see whether there is an anti-forestry viewpoint in the ABC which pervades their normal independent journalism.
Mr Scott—If I can speak broadly on the forestry issues—we of course do many stories on forestry as an issue. I met representatives of forest industries when I was in Tasmania for a board meeting a few weeks ago and the last complaint that they had raised with us—it is not a group that I think is reluctant to complain if they feel they have a grievance—was The 7.30 Report story. So in all the stories we had run over the last year, they had not felt there was an issue that they needed to complain about. That is my recollection of the conversation. But I am happy for us to do a review of complaints that have come in to see whether there is a trend and pattern and come back to you on that.
Senator IAN MACDONALD—Mr Scott, as we have been through before, and again I acknowledge you personally have done a fabulous job in trying to look through these, it is the wording of the news items. I do not need to go through the examples. It is just the language used on what could be a straight report such as: ‘People demonstrated against forestry’. But it is not that. The language used in the report is: ‘Again thousands of people showed their disgust at forestry.’
Mr Scott—There are two things. Firstly, as I was saying, if the community concerned have a grievance or a problem with the programs, they are not reluctant to point that out to us. So that will give some indication as to levels of complaints and concerns and the investigations that have taken place on the back of that. And, secondly, we have now set up a mechanism for the first time in the ABC to do arms-length audits of our programs. They can be around programs and they can be around issues. I can take on board your desire that forests be addressed as part of that audit program at some point.
Senator IAN MACDONALD—I do not care if they have a bad report but it has to be a balanced factual report. Anyhow, you know what I am talking about. Sorry, Senator Abetz.

L&CA 8 Senate Monday, 26 May 2008
LEGAL AND CONSTITUTIONAL AFFAIRS

Senator ABETZ—I have only a few questions, which might give Senator Nettle time to consider an
apology. If a federal politician is of the view that he or she has been subjected to an offer of a bribe, what course of action should they take? Minister or Commissioner, can you suggest a course of action? Would it be appropriate to take that matter to the Australian Federal Police?
Mr Keelty—Speaking hypothetically, if a member of parliament were offered a bribe then they could raise the issue in two places. One would be in the House itself and the other would be with us if there were criminal activity associated with the action.
Senator ABETZ—So that it is clear in the mind of everybody who suspects that a crime might be being committed, if they were to report such an event in good faith to the Australian Federal Police, could they be subjected to defamation action?
Senator Ludwig—That question is probably bordering on requesting a legal opinion from the Australian Federal Police.
Senator ABETZ—Minister, it is legal studies 101, isn’t it? If it is done in good faith, you are not subjected to defamation proceedings. I would have thought, as a matter of public policy, it is vitally important that you, Minister, and the government spread throughout the community that if somebody honestly believes that a crime has been committed—or indeed if they suspect that there is a potential act of terrorism or something suspicious occurring—we have hotlines for that. There is no suggestion, is there, that if you make such a call you could be submitted to an action for defamation? I think it is important that this is cleared up.
Senator Ludwig—The only point I was making was that you are requesting a legal opinion from the
Australian Federal Police. I am happy for Mr Keelty to make a comment on it. If you then talk about the need to ensure that we have a hotline and strong national security laws and if you are suggesting that people should come forward and provide information about suspected things that you have mentioned then we are in hearty agreement; there is no doubt about that.
Senator ABETZ—I would like to think you may have misunderstood rather than sought to sidestep the question. The point was we do have such things as hotlines. We do invite and encourage people to make a report if they see something suspicious. Is that right?
Senator Ludwig—That is right. Absolutely.
Senator ABETZ—If a citizen were to do that, in good faith, would they be subjected to defamation
proceedings? I think every citizen of Australia is entitled to know the answer to that question. I would have thought legal studies 101 would tell you that you are not subjected to defamation. I cannot see the difficulty in you clarifying that for us.
Mr Keelty—In the normal course, if somebody made a complaint to the AFP about an alleged crime, it would not become public unless the person themselves made it public, which is sometimes the case with some types of investigations where it might be politically expedient to release the details of the investigation to the media before coming to us. Having said that, in the normal course, people who make a complaint to the police are entitled to have that complaint validated and investigated in confidence.
Senator ABETZ—Yes.
Mr Keelty—More often than not the most appropriate place for any public knowledge of investigation is once a prosecution, if it is ever launched, becomes public. It raises the opportunity for a person to come forward with a complaint. If the complaint is not substantiated or an investigation is not commenced then it should never become public.
Senator ABETZ—That is exactly right. As a result, somebody saying that they suspect a crime has been committed but not reporting it to the police because they have obtained legal advice that reporting it to the police might subject them to defamation proceedings does not really have the ring of truth about it, does it?
Mr Keelty—I do not want to talk about a particular case, but obviously complaints are made to police
every other day on a variety of issues. To say that you would be subject to defamation does not recognise the fact that you can come and make a complaint to the police if it is a legitimate complaint, you can identify who you think is the offender and the police will investigate it. That is the whole purpose of having an independent policing organisation to conduct its inquiries.
Senator ABETZ—That is exactly right, and that is why Senator Brown’s suggestion that he was offered a bribe and did not take it to police because he had legal advice saying that, if he did, he would be subjected to defamation just does not ring true, does it? I do not expect you to answer that, Commissioner—that is just a rhetorical question—but I think the case has been made this morning. If I may I will come back at Customs
this afternoon.

L&CA 18 Senate Tuesday, 27 May 2008
LEGAL AND CONSTITUTIONAL AFFAIRS

Senator ABETZ—I understand that the Queensland bar have ceded to the Tasmanian bar for a few
questions, and I thank them for it. I have a few brief questions in relation to some legal proceedings that have been undertaken by Senator Bob Brown. I understand that the costs of them, prior to the High Court challenge, have now come out at a figure in excess of $800,000. I am wondering whether the Australian Government Solicitor has been or will be seeking costs in relation to those actions. I refer to the Wielangta court case in particular.
Ms de Gruchy—I have no personal knowledge of the issues relating to that matter. I would need to take your question on notice.
Senator ABETZ—Just last week, the High Court ruled 2-1 against Senator Brown’s appeal in relation to Wielangta. It found its way through the full Federal Court as well, and the departments of environment and agriculture have just given me an indication that their costs to date—prior to the High Court appeal—exceeded $800,000. I would assume, with the High Court appeal, we could well be looking at over $1 million worth of costs occasioned to the Australian taxpayer. Was the Australian Government Solicitor instructed in this matter by the departments?
Ms de Gruchy—As I said, Senator, I have no personal knowledge of the matter.
Senator ABETZ—Does Mr Riggs? I understood that, because Mr Riggs nodded his head when I referred to the case, he understood the case I was referring to.
Mr Riggs—I understood your question, Senator. I do not have any personal knowledge of the matter either.
Senator ABETZ—It was a matter that I pursued last time. I am surprised, given the freshness of the case, that we know nothing about it. But that is fine. I invite you then to take on notice whether or not the Australian Government Solicitor has sought costs. This is a case that has attracted over a million dollars worth of support from the taxpayer, and the Australian Government Solicitor seems to be oblivious to it—other than being aware that it might have occurred. I am astounded at that, I must say. Possibly you have got a stack of other cases involving members of parliament that incur greater expenses, but I would have thought this would be one that would attract your attention. That is a bit of self-indulgent editorial on my part. Allow me now to get to the questions. Can you indicate to the committee the total costs, including the High Court challenge, that the Australian Government Solicitor has charged other departments; whether or not it has sought costs; and, in the event that it did seek costs, the outcome of that? If it did not seek costs, why did it not seek costs? I think that
might cover that particular issue. In asking that, I would also inquire, in general terms, what the Australian Government Solicitor’s attitude is in relation to cost recovery when it is successful in court actions. Usually costs follow the event, and I would have thought that when somebody goes on a frolic of their own and incurs over a million dollars worth of taxpayers’ expenditure, it would be something that might be worthwhile being viewed. But I would be interested in the general approach by the Australian Government Solicitor on that.
Ms de Gruchy—Senator, could I please clarify one aspect of the questions taken on notice. That is, the Australian Government Solicitor acts in the capacity of legal adviser and of representing clients. The Australian Government Solicitor would not have a policy view in relation to the recovery of costs. That would be a matter for instruction from our clients. But I am happy to take your questions on notice.
Senator ABETZ—But correct me if I am wrong: you are not simply robots of the department; you are legal advisers. So in the event that the department were to ask you if cost recovery is possible, surely you must have a policy to advise as to how the Australian government should behave as a model litigant in relation to cost recovery. I would have thought that that would be the way that you would be advising departments and that departments would then be liable to follow your advice, given the government’s commitment across all agencies—and quite correctly so—to be a model litigant in relation to matters that proceed to the courts.
Ms de Gruchy—Certainly, Senator, we would be in a position to provide legal advice to our clients as to their entitlements in relation to whether or not to recover costs, but it is under the legal services directions a matter for our clients to make decisions as to whether or not they take any particular action based on legal advice given.
Senator ABETZ—But the department is bound to follow the model litigant rules.
Ms de Gruchy—Departments do follow the model litigant principle set out in the legal services directions and are in fact required to comply with other Commonwealth policy in relation to the recovery of moneys, but that is a matter for the department or the agency who has carriage.
Senator ABETZ—They are required to follow the rules of being a model litigant. The department goes to you asking: what does being a model litigant require of us in these particular circumstances? The department would then be bound to follow your advice, would they not, because they would otherwise be in breach of the model litigant rules.
Ms de Gruchy—We certainly are in a position to ask, as requested by clients, as to the implications of the model litigant principle. It is then a matter for our clients to decide what the course of action is that will be taken—mindful of their obligations under the model litigant principle.
Senator ABETZ—Look, they have to follow the model litigant rules. We are agreed on that, aren’t we?
Ms de Gruchy—Yes.
Senator ABETZ—Thank you. They go to you and say, ‘What do the model litigant rules require of us?’ You give advice on that. Is that correct?
Ms de Gruchy—If we are asked to give advice on that, we will certainly give advice on that.
Senator ABETZ—And if you were not asked to give advice would you consider it within your remit of being general legal advisers to advise the department of the model litigant rules? Surely you do not only answer the questions provided to you by the department but also are in the business of providing general legal advice and also advising clients of potential pitfalls, such as being mindful of the model litigant rules.
Ms de Gruchy—Yes, Senator, there are many occasions on which we will offer advice in relation to the model litigant and also when our clients ask us for advice in relation to the model litigant.
Senator ABETZ—That is right. So you offer advice even when you are not specifically asked about it.
Ms de Gruchy—Yes, Senator. If the circumstances are that there is an issue concerning the model litigant principle that we feel it is important for us to draw to the attention of our clients, we will certainly do that.
Senator ABETZ—Excellent. I think we have finally got to the position I was asserting at the beginning.