The Australian Bias Corporation

Thanks to an extra $10 million given to the ABC by the Greens/ALP Government outside of the normal budget process, or the triennial funding arrangements, and at a time the budget is hopelessly in deficit, we will now have the ABC’s Fact-checker, along with a Vote Compass, to assist us in the upcoming election campaign.

The ABC’s “fact checking” unit has been tasked to “check the accuracy and factual basis of public statements by politicians and other public figures and groups, and provide background, context and verification on important issues.”

And while Anthony Green’s blog stresses that “vote compass is not a how-to-vote tool” we have already been warned that the vote compass will “surprise” participants “by where their attitudes line up in relation to the political parties” – which is tantamount to inviting users to consider changing their vote.

At a time of budget emergency, a Government in its death throes finds money outside the normal processes, to permit the ABC to venture beyond political reporting and become an arbiter of political ‘fact’ and an interlocutor between political parties and the public. The federal Labor Government’s refusal to evenly fund the local Government referendum ‘yes’ and ‘no’ cases entitles us to believe that its approach is not even-handed or motivated by the national interest, but by its partisan interest. So the establishment of a “fact-checker” and a “Vote Compass” by “our ABC” attracted my attention – quite separately from their Orwellian Ministry of Truth overtones.

It was Friedrich Nietzsche who said, “There are no facts, only interpretations.” I believe that anyone who asserts a capacity to determine and divine the truth and facts in all matters should by definition be treated sceptically, especially when it impacts on our democratic processes. This particularly applies to publicly funded authorities on which the public rely – such as the Australian Broadcasting Commission , the ABC.

One of the threads in the tapestry which is our rich Australian democracy and the rule of law is the rule against bias and apprehended bias. Like the presumption of innocence, and the courts of appeal, proscriptions against bias – and even apprehended bias – have enriched our legal and democratic processes in a manner that makes us the envy of the world. The principle against bias is that decision making must both be, and be seen to be, impartial.

When juries are selected, they are asked if there are issues that may impact their capacity to afford a fair trial to the accused. Thus, the Constitution of the Liberal Party in Tasmania does not allow my wife to be a Senate selector – for which I am very grateful!

To prove actual bias can be exceptionally difficult. But given the need for confidence by the citizenry in our institutions, which is paramount for the proper functioning of our society, the rule relating to apprehended bias has been widely adopted as the proper standard. As Chief Justice, Lord Hewart, determined in the 1924 case of R v. Sussex Justices, ex parte McCarthy: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” This case is famous for its statement of the principle that the mere appearance of bias is sufficient to overturn a judicial decision. Thus the principle of impartiality applies to judges, who are required to recuse themselves where there is apprehended bias. The rule or principle is a logical progression and development in our society’s legal system, built as it is on the Judeo-Christian ethic of amongst other things, natural justice, fairness and transparency.

One’s perception of office holders impacts on the respect in which an institution is held. Where there is no respect for the principle of apprehended bias, there is no respect for the institution. So where, for instance, we get a disproportionate tribe of Trade Union officials appointed to the Fair Work Commission, we lose respect for the Commission and its decisions.

In brief – an absence of apprehended bias promotes confidence in an institution, and confidence in institutions is vital for the acceptance of outcomes determined by institutions and for societal stability.

The High Court’s decision of Ebner v. The Official Trustee in Bankruptcy tells us – apprehended bias is where “a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.” And one of the many tests applied is, “if the decision maker appears to have views which suggest they may pre-judge the outcome.”

The test to be applied is objective and the question is of possibility (real and not remote), not probability.

The High Court in the decision of Johnson v. Johnson encapsulated the concept as follows:

“Whether a fair minded lay observer might reasonably apprehend, that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

SO WHY this mini-lecture on apprehended bias? Because one would have hoped that in appointing a “fact-checker”, charged with delivering “content that builds a reputation for accuracy, impartiality and clarity,” the ABC might have applied these fundamental principles.

Now the man the ABC has appointed to head its ‘Ministry of Truth’ is one, Russell Skelton.

The advent of social media platforms like Facebook and Twitter allow us to obtain previously unavailable insights into their inner thoughts, policy framework, beliefs systems, and yes, biases of even minor celebrities. What can we glean about the ABC’s choice as their ‘fact-checker’ from his social media history, which even the ABC’s own Media Watch program has acknowledged comprises part of his work or ‘brand’ as a journalist?

Many hundreds of his tweets and re-tweets were very instructive.

Probably the most outrageous item on Skelton’s twitter feed was his re-tweet of a Marcia Langton tweet of 5 May this year which asserted:

Abetz and Christian fundamentalists want race war. Begins in September!

When I questioned Mark Scott at Senate Estimates about whether he believed any Parliamentarian currently serving would want a race war with Australia’s Indigenous community, eventually Mr Scott responded, “I would not have thought so.” Mr Scott’s rationalisation was that Mr Skelton wasn’t an ABC employee at the time and that by re-tweeting Langton’s defamatory smear, he might merely have simply been drawing attention to it rather than endorsing its content.

“Let me tell you why I would put that up on my account,” Scott continued, then seeking to liken the issue to the controversy over Eddie McGuire’s remarks about Adam Goodes, the AFL player.

Regrettably it needed to be pointed out to Mr Scott that Eddie McGuire actually said the words of which he stood accused, whereas I and other Christians had not. To the proposition that a race war might just be in a bit of a different category, Mr Scott told us, “I am not going to those facts.”

Mr Skelton is known for his coverage of Indigenous issues, he regularly promotes Marcia Langton’s views, has recently defended her from critics and has favourably reviewed her work.  He regularly tweets her and re-tweets her sometimes outlandish statements. 

So why would he forward this tweet unless he agreed with its sentiment?

I then questioned Mr Scott on Mr Skelton’s tweets about Tony Abbott, such as ‘Abbott’s extremism on display’, ‘No statesman with no style’, ‘a shameless opportunist’; his offensive tweets about Senator Barnaby Joyce – who seems to be a bit of an obsession in the Skelton family; about his derogatory tweets about a range of other Coalition frontbenchers; and about his fawning tweets about Julia Gillard, such as ‘grace under pressure’.

One of Skelton’s most concerning tweets was his direct reply to Tony Abbott’s tweet about repealing the Carbon Tax, which said ‘Don’t you have to get elected first?’ One interpretation would be that Mr Skelton – whose tweets display some fondness for the Carbon Tax – was displaying his opposition to the election of Tony Abbott.

And when, after all of these tweets, and there were many of them, I asked Mr Scott whether they were an indication of Mr Skelton’s partiality and  incapacity to do the job, we were told that the fact-checker “will be judged on his work”.

As part of Mr Scott’s sad response, he made this comment: “If there are concerns about the performance of that unit, I am sure they will generate attention here” i.e. at Senate Estimates. Now, all things being equal, these recent Senate Estimates hearings were the last before the election, which means that it will be too late by then for any redress.

I then took Mr Scott to the issue of perceived bias or the perception of bias, or apprehended bias, to which Mr Scott lamely responded, “I think people will come to a conclusion on the performance of the unit ….”

But just in case you thought Mr Skelton’s tweets were limited to personal vitriol against Coalition members, and commentators such as Gerard Henderson, Andrew Bolt, and Paul Sheehan, you would be sorely mistaken. Mr Skelton has also tweeted ‘pot smokers don’t puff away lung health: study’. In other words, there was Mr Skelton propagating to the world the view that the inhalation of marijuana smoke has no ill effects on the lungs. Whilst Mr Scott tried to deny any medical knowledge of this area, unfortunately for him the ABC’s Health and Well-being ‘Fact File’ informs us, as does virtually every medical study, that marijuana inhalation increases risk of  bronchitis, damaged airways and lung cancer. Mr Scott did not respond to my suggestion that Red Skelton, rather than Russell Skelton, may have been a better choice for the ABC’s fact-checker.

Since that Senate Estimates hearing, just in the last week, the North Territory Minister, Alison Anderson, has alleged that Russell Skelton’s Walkley Award winning book, King Brown Country – the Betrayal of Papunya, which stigmatised Anderson, contains almost 70 errors of basic fact.

It’s also emerged that the person who introduced Skelton to Papunya, and who even attended his Walkley Award presentation, was Anderson’s long-time political rival, Des Rogers, who Anderson beat for ALP preselection for the NT seat of McDonnell way back in 2005 and who she beat again when he stood against her at the 2012 election. Alison Anderson also accused Russell Skelton – who filed stories on last year’s election contest – of conducting himself “more like a campaigner than a reporter”, an assessment with which I would agree.

This is not the first time that Skelton has been accused getting his facts wrong. 

Anderson’s accusations of partisanship, or bias, as well as inaccurate journalism, add to criticism of Skelton’s one-sided reporting by the ABC’s own Media Watch, and about his reporting of the famous Bakhtiari family, who falsely represented themselves as Afghan refugees and which I raised at Senate Estimates.  Surely, the existence of such criticisms should give Mark Scott added cause to question the suitability of Mr Skelton as the ABC’s chief fact-checker. Sadly, this is not the case.

I was amazed to see the ABC’s Head of Current Affairs Bruce Belsham this week claim that:

“There is a basic principle of freedom of thought and expression here. A successful career in a range of senior journalistic roles that includes a social media presence and voice, should not preclude an individual for being considered for employment at the ABC.”

This is a serious misjudgement by the ABC. Instead of reconsidering Mr Skelton’s appointment, the ABC appears to have dug in. This will inevitably invite questions, not just about Russell Skelton’s impartiality, but about Mr Scott’s judgement and impartiality as well. If Mr Scott can’t see the issue of apprehended bias with Skelton’s appointment, which even Media Watch appreciates, then he personally will wear this decision.

LET ME turn to the ABC’s ‘Vote Compass’.

The ABC tells us it informed itself by talking to the Canadian Broadcasting Corporation. The Canadian Broadcasting Corporation’s, equivalent of Vote Compass, had exactly the same output as GetUp’s infamous ‘how should I vote.com.au, which it used at the 2007 federal election. You will recall that when my friend and colleague Andrew Robb fed his own views into this dodgy vote generator on a number of separate occasions he was inevitably told to vote for his political opponent.

Now, a political science professor in Canada, no less, Kathy Brock from Queens University , used the Canadian Broadcasting Corporation’s vote generator, and guess what? Irrespective of what her input was, the needle always pointed west or to the left!

So I would simply say: Be careful. Be wary. Given the ABC’s track record and its incapacity to detect bias we should be on high alert. [ABC election analyst] Antony Green himself says that participants will be “surprised” by where their attitudes line up.

I know that Andrew Robb was.  I know that Professor Kathy Brock was, and I trust Australians won’t be similarly surprised.

We were told that the ABC Vote Compass is going to be developed by, wait for it, “a group of independent academics.”

And their names?

Well, we haven’t been told yet, the question has been taken on notice, and I am not holding my breath that I will receive an answer before the election, even though I have written to Mr Scott asking for this information post haste.

So my friends, this Vote Compass will, in Mr Scott’s own words, “look at issues like education policy, health policy, tax policy, environmental policy.”

And when I asked Mr Scott if Vote Compass could tell whether political parties would keep their promises – a la Labor’s “there will be no carbon tax” and “we will turn back the boats” promises – he said, “any tool has its limitations.”

Mr Scott was unable to say how the Vote Compass would deal with the Greens who have said they won’t actually be putting forward their usual extremist policies, only general statements of principle. For those parties that actually do have policies, will we need to sign off the policy that is going to be put up on the Vote Compass, or will the ABC simply determine what our policies are, and put them up as interpreted by them?

When I asked Mr Scott about whether the policy statements would need to be signed off by the party concerned he glibly responded: “I am not sure if we are getting into core or non-core issues here? I am not sure. I will have to come back to you on that.”

Whenever I have pursued issues of ABC bias at Senate Estimates, Mr Scott has vehemently denied the existence of such bias. There has never been a genuine concession that there may be an issue – even after Mr Newman, the ABC’s former chairman, blew the whistle. Be it the ABC’s reporting on Israel, or indeed, in my home State of Tasmania, its coverage of the forestry debate, its bias has been there for all to see. Award-winning programs exposed as breaching fundamental ethics, misreporting and containing bias – are apparently just one-offs.

And the fact that the bias always seems to be in one direction, that is Green/Left, is not indicative, we are told, of any culture of bias.

A recent university study in the Australian Journalism Review found that, albeit, in a small sample, 41% of ABC journalists said they would vote for the Greens, 32% for Labor and 15 % for the Coalition.

When Mr Scott was asked if he had any concern that this survey generally reflected ABC journalists’ political leanings, I was given the usual blather.

THE ABC has the pivotal role of being a leader in our community. However, it is painfully clear that, at the very least, the concept of apprehended bias is no longer a consideration in the post-modern ABC which, by appointing Russell Skelton to the critical position of fact-checker, has junked this fundamental principle. As a consequence the ABC runs the very high risk of losing more respect and more audience share.

Some may well think the ABC stands for the Actual Bias Corporation, while others may believe ABC stands for the Apprehended Bias Corporation.

I will let you be the judge.

What seems sure is that for now the ABC thinks it stands for Above Bias Consideration.

Eric Abetz is a Liberal senator representing Tasmania. This is a lightly edited transcript of his mid-June, 2013, address to the Mainstream Policy Forum in Sydney