ABC Fair and Balanced Bill: Senate Committee Delivers Final Report

Wednesday 7 March 2018 @ 9.34 a.m. | IP & Media | Legal Research

On 16 February 2018 the Senate Environment and Communications References Committee (the Committee) delivered its final report on Australian Broadcasting Corporation Amendment (Fair and Balanced) Bill 2017 (Cth) (the Bill), recommending that the Bill be passed.

Background to the Bill

The Bill was introduced into the Senate on 18 October 2017 by the Minister for Communications, Senator Mitch Fifield. It was one of two Bills introduced in relation to the operation of the national broadcaster, the ABC. The other Bill was the Australian Broadcasting Corporation Amendment (Rural and Regional Measures) Bill 2017 (Cth) - both these Bills are proposed legislation flowing from the arrangements the government made to negotiate its recently media reform through the Senate.

On 16 November 2017, on the recommendation of the Selection of Bills Committee, the Bill was referred to the the Committee for inquiry and report by 9 February 2018. On 12 February 2018, the Senate extended the reporting date to 16 February 2018.

Purpose of the Bill

The Bill requires news and information produced by the ABC to be "fair and balanced" by inserting the phrase into section 8(1)(c) of the Australian Broadcasting Commission Act 1932 (Cth) (the ABC Act) which relates to the duties of the Board of the ABC. The phrase is inserted in addition to what the section already provides which is the requirement to be "accurate and impartial according to the recognised standards of objective journalism". The rationale for the additional requirements of "fair" and "balanced" are said to derive from the fact that the ABC is "publicly funded" and therefore, should give equal time to "all" views and opinions. According to the Minister for Communications in a Media Release at the time of introducing the Bill:

"The Bill seeks to legislate what the ABC already expects of itself. The ABC’s own Editorial Policies already cover 'fair treatment', as well as requiring 'a balance that follows the weight of evidence’. And the MEAA’s Journalistic Code of Ethics refers to ‘fairness’ no less than six times."

Further, the Minister said in his Media Release that the Bill is about "cement[ing] the standards expected by Australian taxpayers".

The Committee in its report agreed with the Minister saying that:

"The proposed amendment will create a legislative requirement for the ABC Board to ensure that any news or information relating to a particular person or group is presented in a fair and balanced manner, ensuring that an impartial view, supported by evidence, is put forward. It would not however, require that every perspective of an issue be granted equal time, nor every facet of an argument be explored."

Submissions For and Against

The Committee cited support for the Bill as coming from an expectation "that journalism is 'accurate and impartial, and free of political motivation', particularly where this journalism is publicly funded." In this respect the Committee had regard to and mentioned the submissions of the National Farmers' Federation:

"... the NFF supports extending the statutory duties of the ABC Board to also require the gathering and presentation of news and information to be 'fair' and 'balanced' according to the recognised standards of objective journalism."

The committee indicated that some submissions expressed concern with the Bill, expressing the view that the Bill was unnecessary given that "existing ABC Editorial Policies already require fair and honest dealing in reporting". There was also a concern that the Bill could have the unintended consequences of creating a "false balance" or "he said/she said journalism". A further issue raised was that the Bill does not establish ".a compliance mechanism to scrutinise whether the news services of the ABC are indeed fair and balanced".

The submission of the Media, Entertainment and Arts Alliance (MEAA) is mentioned in the report as stating that the ABC's current Editorial Policies already "exceed, in scope and length, any other known editorial policies covering Australian media organisations' and recognise all necessary professional journalistic standards".

The ABC's own submission is also noted in the report as questioning the intention of the Bill:

"... if the intention of the bill is 'to do nothing more than enshrine' the requirements of the ABC's Editorial Policies, then 'the change to the legislation will do nothing more than describe what the ABC already does'. It concluded that 'in the ABC's view, that is no argument to make the change – it is, in fact, an argument not to make the change as it adds nothing of substance'."

Further the ABC's submission also expressed concern that the Bill "manifestly risk[s] creating expectations or misleading the public into believing that the change to the ABC Act will impose new statutory requirements on the ABC that have not previously existed".

Dissenting Reports

Both the Opposition (Labor) and the Greens submitted dissenting reports.

Labor's Committee members opposed the Bill primarily on the basis that the legislation was viewed as being unnecessary:

"Labor Senators oppose the Bill because the insertion of the words 'fair, balanced' into the ABC Act is completely unnecessary, given that the concepts 'accurate and impartial' are already interpreted and applied by the ABC to include 'a balance that follows the weight of evidence' and 'fair treatment', among other things. The new words add nothing in practice, may confuse established interpretation and even create the danger of 'false balance'."

Labor's Committee members were of the view that the Bill did not achieve anything of policy value and that the Bill was mostly politically motivated:

"Labor Senators do not support a bill that achieves nothing of policy value and that permits the Turnbull Government to use the ABC as a political bargaining chip, that forms part of a concerted effort by One Nation to attack the ABC, that provides a platform for One Nation to spread misinformation about vaccination, among other things, and is an unjustified incursion on the independence of the ABC."

The Greens Committee members opposed the Bill because primarily they saw the Bill as undermining the ABC by implying the Bill is correcting a problem which actually does not exist. They also saw the Bill as potentially forcing the ABC to cover or give equal time to clearly unfiltered or discredited views in the interest of balance:

"It [the Bill] undermines faith in a national public institution by implying it is correcting a problem, even though no problem exists. . . Submissions such as those of Mr Mark Zanker question if it is in the service of public interest that 'discredited views [should] be given equal time . . . in the name of balance'. . . . The ABC has expressed concern that if this amendment is to have any of the effect its most strident supporters hope it will, the net effect may be 'a range of unfiltered, unassessed opinions . . . all given equal weight and served to audiences without context, explanation or appropriate rigour'."

The Committee's View

In recommending that the Bill be passed the Committee stated in its report that:

The ABC is Australia's primary publicly funded national broadcaster. Over many decades it has played an important role in dependably presenting reliable and trustworthy news and information to the community. The Australian people expect a publicly funded broadcaster to canvass a broad range of issues, and report on those issues in a fair and balanced manner. . . . The committee notes the concerns raised in submissions that the bill may result in 'false balance' in ABC reporting. However, the committee reiterates that the bill does not create new editorial requirements and simply enshrines existing policies in legislation. The committee notes that this obligation will sit alongside the existing requirement that the ABC's news services are 'accurate and impartial according to the recognised standards of objective journalism'."

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