The ABC has handed to the Senate an internal review looking at bias in its election coverage. The public broadcaster objected to producing the report. This is chair Ita Buttrose’s letter to the Senate president explaining why.
10 December 2020
Dear Mr President
RE: Notion of Motion 934
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On 9 December 2020, the Senate ordered that there be laid on the table by the minister representing the minister for communications, cyber safety and the arts, by no later than midday on 10 December 2020, the report by Kerry Blackburn (the “Blackburn Review”), commissioned by the Australian Broadcasting Corporation (ABC), in relation to the ABC’s coverage of the 2019 election (the report).
While the ABC has chosen to produce the report in this instance, we do so while maintaining our strong objection against its production on public interest grounds. While it would be unproductive to canvass those complaints in full here, they are consistent with the grounds that appear below in support of a request for a non-publication order. We reserve our ability to take formal objections to similar motions should they occur in the future.
We enclose a copy of the report in compliance with the Senate’s order and request non-publication for the reasons given below. The managing director and I also wish to state our serious reservations that use of this Senate power will potentially create an unfortunate precedent undermining the ability of the ABC board to properly deliberate on governance matters in the future and the ABC’s statutory independence.
Request for non-publication
In accordance with the established procedures of the Senate in dealing with orders for the production of documents, the managing director, Mr David Anderson, and I ask that the report be received in camera, that is, that it not be further published beyond the Senate.
We raise three grounds in support of the non-publication of the report, outlined below.
First ground: interfering with the development of program material
The report was commissioned by the ABC board in accordance with its obligations under the Act. The report was one of a number commissioned by the ABC board. Two other reports were published — the iSentia Share-of-Voice report and the Election Coverage Review Committee report.
The report was commissioned by the ABC board to examine a small portion of the five weeks of election coverage to assess whether coverage in that Sample was accurate, reflecting an appropriate diversity of perspectives and duly impartial.
As the reviewer, Kerry Blackburn, noted the review is not a comprehensive analysis and was intended to give ABC editorial managers starting points for discussion.
The ABC board determined that it was deliberative material for program makers and should be used internally.
There is a public interest in the ABC being able to deliberate on and develop ideas for its program material in a confidential way. This places it on a par with other news media entities with whom it competes in an aggressively contested commercial environment.
The Parliament has recognised the force of this public interest by enacting a special exemption for the ABC from the disclosure of documents under the Freedom of Information Act 1982. Under s 7 of that Act, read with Schedule 2 to the Act, the ABC is exempt from the operation of the FOI Act in relation to its program material. The Federal Court of Australia has confirmed that the exemption applies not only to program material itself (eg a recording of a program) but also information relating to program material (such as a complain about a program, or, as in this case, a review of a program or programs): Australian Boradcasting Corporation v The University of Technology, Sydney  FCA 964.
The ABC’s exemption (unlike some others in the FOI Act) is not conditional upon a weighing of competing public interests. It is absolute. This serves to underline the emphatic nature of Parliament’s intention that the ABC be permitted to operate in a confidential way with respect to its program material.
To be clear, the ABC does not resist production to the Senate in this case. However the public interest identified above justifies an order that the publication be limited to the Senate.
The ABC’s purpose is to deliver valued services that reflect and contribute to Australian society, culture and identity. It does this primarily through its delivery of quality program material. It is in the public interest that the ABC be able to fulfil this important purpose. Public discussion of its internal deliberations on program material will hinder the free exchange of ideas about program material, and this is to the detriment of that public interest. For that reason, it is in the public interest that the Senate receive the report on an in camera basis.
Second ground: interfering with the proper workings of the ABC, including its board
As noted above, the report was prepared for the purpose of the board’s deliberations with respect to the ABC’s programming, both past and present. It was presented to the board and was the subject of discussion at a board meeting.
We are concerned that disclosure of this board paper will undermine the board’s ability to properly deliberate on governance matters in the future. It is a longstanding and well understood principle that the deliberations of boards are confidential, for the very same reason Cabinet deliberations are confidential, to allow robust debate between members to ensure the organisation they are responsible for is run in the best manner possible. The ABC board operates on this premise.
It is in the public interest that the ABC’s governance frameworks operate robustly and effectively. The confidentiality of the board’s deliberations is an important ingredient in making sure the board is as effective as possible. Reqauiring public disclosure of board materials undermines the governance framework, and thereby undermines the public interest in effective governance of the ABC.
We accept that on this occasion it is appropriate to comply with the Senate order. But for the reasons outline, again, this should be on an in camera basis.
Third ground: interference with the rights and interests of third parties
As a final matter, we note that the report contains a substantial amount of commentary on the contributions made to programs by third parties (such as guest panellists on television programs). In many cases the commentary reflects on those third parties directly and personally, such as commenting on whether those third parties contributed content of a particular quality or whether their contribution might be aligned with a particular political point of view. We are concerned that public disclosure of that commentary could be prejudicial to the rights and interests of those indicuviduals. That is contrary to the public interest in and or itself.
The ABC sought to manage this risk in the course of commissiong the report by asking that third parties not be named (which they are not). Nevertheless, given the report comments on published program material, the ABC believes that the individuals will still be readily identifiable by comparing the commentary in the report with the programs as broadcast.
It is in the interests of avoiding prejudice to the third parties, and consequent prejudice to the ABC’s future programming, that the Senate receive the report on an in camera basis.
Your consideration of our concerns is appreciated.