By Peter Clarke
March 6, 2013
If you have been following the Jon Faine ‘bias’ affair you will know that ABC Television’s Media Watch covered the Faine controversy on 4 February – almost the only ABC coverage of the finding and resultant strong dissent by Faine and several leading ABC current affairs journalists. (Faine archive)
In that edition, the presenter, Jonathan Holmes, made it clear that, with some caveats, he supported the negative finding against Faine by the ABC’s blandly titled Audience and Consumer Affairs Department.
Within the tight time constraints of that fourteen minute program, he made his reasons reasonably plain.
While writing the previous articles on this affair, I was able to communicate with Jonathan Holmes via email and Twitter to explore and clarify his views on the issue itself and the investigative and assessment processes around the finding.
He agreed to answer some questions via email on the record.
Holmes’ perspectives and analyses are very useful coming from a journalist of his long experience and, now, as the most established presenter of Media Watch on ABC Television. He took up that role in 2008.
He started in journalism in 1971 at the BBC and went on to Executive Produce the ABC’s Four Corners, Foreign Correspondent and The 7.30 Report. Later he went back in the field as a foreign corespondent for the ABC in Washington and as a reporter for Four Corners.
His report for Foreign Correspondent on the Balibo Five won a Logie in 1998 and his earlier film on the Hoddle Street massacre was also an award winner.
These answers from Jonathan Holmes put more flesh on the bones of his original Media Watch script.
1. On 27 February, in a tweet reply to one of my tweets you said:
@MediaActive agree ACMA is v legalistic but both applying same woolly ABC Ed pols: not 'blackletter law'
— Jonathan Holmes (@jonaholmesAge) February 27, 2013
Would you expand on what you mean by “woolly ABC Ed pols”? Are those “Ed pols” flawed to the extent they need reform in your view?
Do you mean the authentic application of these “Ed pols” by the ABC itself or by ACMA is intrinsically compromised by that “woolliness?
The current ABC Editorial Policies were issued in April 2011. They were drawn up by the then Director of Editorial Policies, Paul Chadwick (who has since left the ABC). Chadwick reduced the former Editorial Policies, which had accumulated over half a century and ran to a substantial booklet well over 100 pages in length, to a much shorter document encapsulating various Principles and Standards.
In addition, Chadwick issued (with the imprimatur of the MD) various Guidance Notes to expand on the much shorter Ed Pols – though none which are of much relevance to this particular matter.
The goal of the revision was, on the whole, admirable. But inevitably, in so drastically reducing the length of the old document, Chadwick resorted to general statements that were in the old document (in some cases at least) more precise and prescriptive. Mind you, I don’t want to exaggerate this. Editorial Policies designed to cover the vast range of the ABC’s output are always going to leave plenty of room for judgment – and for differing judgments – among program makers, editors, managers and regulators.
For example, the new Ed Pols part 4 deals with ‘Impartiality and Diversity of Perspectives’. It is a mere two pages long. The ‘Standards’ – the rules to which all ABC ‘news and information’ program makers and presenters must adhere – are worth restating in full:
4.1 Gather and present news and information with due impartiality.
4.2 Present a diversity of perspectives so that, over time, no significant strand of thought
or belief within the community is knowingly excluded or disproportionately represented.
4.3 Do not state or imply that any perspective is the editorial opinion of the ABC. The
ABC takes no editorial stance other than its commitment to fundamental democratic
principles including the rule of law, freedom of speech and religion, parliamentary
democracy and equality of opportunity.
4.4 Do not misrepresent any perspective.
4.5 Do not unduly favour one perspective over another.
To help interpret these standards, program makers and regulators can resort to the ‘Principles’, section which states that:
the ABC is guided by these hallmarks of impartiality:
• a balance that follows the weight of evidence;
• fair treatment;
• open-mindedness; and
• opportunities over time for principal relevant perspectives on matters of contention
to be expressed.
The Principles section also states that:
Assessing the impartiality due in given circumstances requires consideration in context
of all relevant factors including:
• the type, subject and nature of the content;
• the circumstances in which the content is made and presented;
• the likely audience expectations of the content;
• the degree to which the matter to which the content relates is contentious;
• the range of principal relevant perspectives on the matter of contention;
Now, these are crisp, well-written sentences. They nevertheless leave huge latitude for interpretation and judgment by broadcasters and regulators (by regulators I mean not only the ACMA but the ABC’s Audience and Consumer Affairs department (A&CA), which found against Jon Faine in this instance). For example, Jon Faine could argue (and no doubt did) that taking into account the type, subject and nature of his program, and of these particular interviews, and his audience’s expectations, he was entitled to take a very “robust” line. The A&CA felt he breached one or more of the standards regardless.
It is perfectly possible for the broadcaster to believe that he/she did not breach the standard, and for the A&CA to find that he/she did; or for the A&CA to find that the ABC did not, but for the ACMA to find that it did. Frankly, this is inevitable.
That’s why I don’t think it’s useful to talk about the ACMA applying blackletter law and the A&CA not doing so. Everyone is applying their judgment to the Ed Pols as best they can. There is no ‘right’ answer – but experienced broadcasters and editors should know what is, and what is not, within the standards, and they mostly do.
However I do have a problem with the new Ed Pols in that they lump all ‘news and information’ programs under the same standards – see below.
2. During Media Watch of 4 February 2013 you broadly supported the finding against Faine by the ABC’s Audience and Consumer Affairs unit. You said Faine “simply wasn’t listening”.
Expanding on that script, what in more detail and in relation to the ABC Code of Practice convinced you that Faine “crossed the line”? And where, in your view, does that line lie?
Bearing in mind what I have said above, I must stress that I am simply applying my own judgment to the interview, in the light of the Ed Pols but also of some 40 years in professional broadcast journalism, including some 6 years as the Executive Producer of frontline current affairs programs (although admittedly TV not radio). What follows is simply an opinion (which almost uniquely on ABC TV, the presenter of Media Watch has always been free to express). But I should add that I pay great attention to the views of my own executive producer and the rest of Media Watch’s journalistic staff. If my judgment meets strong opposition from some or all of the team, I tend to rethink. In this case we at Media Watch were unanimous.
In his introduction to the interview with Michael Smith (and it was that interview far more than the one with Mark Baker which I felt breached the ABC’s Ed Pols) Jon Faine said this:
I can see all sorts of questions that Julia Gillard says she’s answered and I can see why people might be jumping to conclusions, but I cannot see where there is a legitimate point of public interest or ongoing police investigation. Either way, I don’t get it. Maybe Michael Smith can explain it to us. He joins me after the news headlines.
That sets up an expectation that Smith will be given a chance to explain to Faine’s listeners what he believes are the “legitimate points of public interest and ongoing police investigation” in the Gillard-Wilson matter. The interview can and should be judged, in my view, on the extent to which the listeners were any clearer after the interview than they were before about what Smith’s views are on those matters. Jon Faine’s views were already well known on the matter.
In my judgment, Smith was given precious little chance to explain.
For example, here is an early exchange:
MS: Disclosing it would only share the responsibility amongst the partners. It’s improper to have a relationship of that character while you’re working for a client that’s paying the bills, the AWU . . .
JF: . . . Who says it’s improper? Where’s the rule that says you have to disclose who your boyfriend is when you’re a lawyer?
MS: The Law Institute . . .
JF: . . . No, it doesn’t . . .
MS: . . . has a view about that, about ethical conduct . . .
JF: . . . There’s no, there’s no rule saying you have to tell your employers who your boyfriend is – that’s rubbish . . .
MS: . . . Let’s let’s look at what it- Well, when it’s your client . . .
JF: . . . That’s rubbish . . .
MS: . . . Let’s look at what happened then, Jon, as a result of that . . .
JF: . . . Let’s move on. What else are you worried about?
Now it seems to me that in this exchange, during which Smith is hardly allowed to complete a sentence, Faine is (deliberately or otherwise) avoiding the point at issue and in the process misleading his listeners. The point is not whether there is a rule or law which says that a solicitor must disclose “who your boyfriend is” or “tell your employer who your boyfriend is”. That’s utterly to trivialise the point Smith is trying to make. Wilson was not just a boyfriend, he was a senior official of one of Slater and Gordon’s major clients. Ms Gillard was doing legal work for him on which she did not open a file and about which she did not inform her partners (she may or may not have informed Bernard Murphy – I don’t think anyone knows about that). That work included setting up an association in W.A., which had “AWU” in its title, and which was subsequently used by that “boyfriend”, it is alleged, to siphon large amounts of money out of the W.A. branch of the AWU and into the pockets of him and his partner Ralph Blewett. Nobody, so far as I know, is suggesting that Ms Gillard was aware of the uses to which the Association was put by Wilson. But Michael Smith was perfectly entitled to raise the question of how ethical her behaviour was (especially given the consequences) without being told that he was talking ‘rubbish’. He wasn’t even allowed to make the argument.
The interview moved on to Smith’s allegation that Julia Gillard had falsely claimed to have witnessed Ralph Blewett’s signature on the power of attorney that enabled Bruce Wilson to purchase a property in his name. At least Smith is allowed to make this argument. Faine reminds his listeners forcefully that Blewett – on whose evidence the allegation is primarily made – is a ‘self-confessed fraudster’. Fair enough. But the circumstantial evidence Smith tries to adduce is simply dismissed. Really, from then on, the interview descends to a succession of insults by Faine. He keeps asking Smith to “give it your best shot”, but dismisses everything Smith says – “a house of cards”, “becoming absurd”, “laughable” – in many cases without even the pretence of listening to Smith’s argument.
As I said in the program, I agree with Michael Smith’s characterisation of the interview: “He didn’t have me on to hear what I had to say; he had me on to act as a lightning rod to his own commentary.”
To apply the criteria in the Ed Pols, in my view Faine did not give Smith fair treatment, and he did not approach the interview with anything resembling an open mind.
There is no nice, hard and fast ‘line’. Of course interviewers are entitled to challenge interviewees robustly. They are not, in my view, entitled to drown them out, or to ridicule them, or to mislead their listeners as to the substance of the arguments being put. I think Faine did all three. Whether that is what the ABC’s A&CA thought, we don’t precisely know. Which brings us to your next question:
3. You also referred to the “wording” of the finding. What concerns you specifically about the wording of the finding by the ABC that might hand “a rod to its critics”?
I must say I think I made my reservations about the wording of the ABC’s finding quite clear on Media Watch. The problem is that, whereas the old Ed Pols made a distinction between news and current affairs, on the one hand, and factual programming on the other, the new Ed Pols do not. All news and information programs are to be kept, it seems (to quote the A&CA’s finding) to the same “rigorous impartiality standard”. I think this is an unfortunate impression to give.
In his response to Media Watch’s questions, Michael Millett (who as the ABC’s Director of Corporate Affairs has taken over some of Paul Chadwick’s responsibilities) told us that even under the old Ed Pols, an interview such as this, on the Jon Faine program, would have come under the ‘current affairs’ aegis. Maybe. But in my view the ABC would be wise to spell out much more clearly than it does that more leeway for opinion, and indeed ‘argument-ativeness’, can be afforded to hosts of talkback radio stations (or programs like Late Night Live and Counterpoint) than is afforded to the presenters of current affairs programs like AM and PM.
That said, in my view, and for the reasons stated above, Faine’s interview with Michael Smith would have breached the old ed pols as it breached the new ones.
4. Much attention has been paid to the word “argumentative” in the statement of finding. Is this word ambiguous in your view? Isn’t being “argumentative” one of the necessary elements in the repertoire of any frontline interviewer in an “accountability” style interview?
The problem was not that Faine was argumentative. It’s that he was too argumentative. It is a matter of degree. I think the Ed Pols are unwise to suggest that presenters like Faine should “take no editorial stance”. Or that they should be completely impartial in matters of controversy. In my view they should and must be permitted to express a viewpoint, otherwise their programs would become very dull. But that doesn’t mean that, in doing a ‘token’ interview to let the other side have a say, they can drown out the very voice they have invited onto their program. That’s what 2GB does. It’s not what listeners expect of the ABC.
My problem with the A&CA’s finding was more with the phrase “rigorous impartiality standards”. If the A&CA had said that the interview was TOO argumentative and that Faine’s personal opinions were stated TOO strongly, even for a talkback program where wider latitude is allowed, I would have been a lot more comfortable with its finding.
5. Do you believe those assessing this interview against the ABC Code of Practice took sufficient notice of the surrounding context of media commentary and claims regarding the AWU slush fund matter both on 774 ABC Melbourne and via other outlets? Or was it examined in isolation as a broadcast event in your view?
I don’t know, although I understand that the A&CA went into considerable detail about the claims made by Smith and the surrounding context.
6. Does Jon Faine’s personal style, including his abrasiveness at times, play a role in your appraisal? Do you think it is a key factor in assessing his performance by others against the criteria? Could the same verbal content delivered in a calmer and less “aggressive” style be appraised differently in your view?
Not precisely the same verbal content, but certainly Smith could have been robustly challenged, and Faine’s view that there was no substance to his allegations been made clear to listeners, without breaching the ed pols. But I think it’s important to understand that this interview was not typical of Jon Faine’s style. I think, if you ask him, he might confirm that he himself regarded this interview as very exceptional.
7. Are you happy with the actual PROCESS involved in coming to a decision on Faine’s interviews with Smith and Baker especially the secrecy surrounding the actual reasoning of the complaints committee? Has this in your view caused either confusion or open opposition in the ranks of journalistic interviewers at the ABC (Colvin, Uhlmann, Epstein etc.) Is this “dissent” healthy or a sign of a disconnect between the bureaucratic complaints process and frontline journalistic interviewing?
I don’t know much about the process. Usually programs/broadcasters are given plenty of chance to put their case. In the case of complainants who are dissatisfied with an A&CA finding, they can appeal to the ACMA. That is obviously not a recourse available to Faine. Presumably he could appeal to the MD (now that Paul Chadwick has left, it’s not clear to whom else he could appeal). But it is not my impression that his superiors in radio disagreed with the finding. If they did not, it’s unlikely that an appeal to the MD would be of much help to him.
As to secrecy, the ABC has a duty to keep its disciplinary proceedings confidential. I have no strong opinion about how much of its reasoning should be made public, given that there will always be those who disagree with the finding no matter how much is published.
I think the reaction of some ABC people would have been less vociferous if the judgment had been worded differently. They were, I surmise, reacting to the idea that no ABC interviewer (in any factual program) can be argumentative or can express a personal opinion. I don’t think that is in fact the ABC’s view, but this ruling will make it possible for complainants to claim that it should be. That’s the rub.
8. Should Faine have a “right of review” within this process at the ABC? What is preventing that happening in your view?
Oh well. I guess perhaps he should. But the ABC got rid of its three-tiered complaints process (A&CA, Complaints Executive, ICRP) at the same time as it simplified the ed pols, because complaints were taking forever to resolve. In my view he might be better to cop it and move on.
9. Does there seem, in your view, overt inconsistencies around the application of the ABC Code of Practice across the many ABC programs and outlets from clearly defined news and current affairs programs to other broadcast journalistic programs on Local Radio and Radio National? Of particular note are programs such as Late Night Live and Counterpoint (especially in its earlier version). Would a forensic audit of ABC programs against the Code of Practice, in your view, show up a plethora of inconsistencies around the criteria included in the ABC finding against Faine and other matters such as advertising goods and services (especially arts programs and interviews)?
I agree with the first two sentences. See above. I don’t think that the Code of Practice (or the Ed Pols – one is just a shorter version of the other) are applied inconsistently, however: I think Faine’s interview was more argumentative and opinionated than you would ever normally hear on LNL or Counterpoint, or indeed on 774 Melbourne. Advertising is another matter altogether and I’m not going to go there.
10. Does it concern you that the Faine finding was reported by other outlets (Crikey, The Age, The Australian etc.) but minimally by the ABC with the obvious exception of Media Watch. What in your view is stopping the ABC reporting on this matter? Do you agree with ABC Head of News Policy, Alan Sunderland, that it represents 1.3 on the editorial Richter scale? (Tweeted to Margo Kingston 26 February). Can the lack of coverage be seen as some kind of “avoidance’ or a variety of “self-censorship” by the ABC?
No. I really don’t think it was that a big a deal. Faine referred to it (and his listeners were the ones affected). I think it is entirely unreasonable to expect any media outlet to engage in protracted navel-gazing every time one of its broadcasters/journalists is found to have breached a code of practice. We reported on it, because that kind of thing is grist to Media Watch’s mill (and the ABC, uniquely, allows us to grind our own grist as well as other people’s). But I think other ABC editors didn’t report on it simply because they didn’t think it would much interest their viewers/listeners, and I think they may well have been right.
YOUR responses to the Holmes’ analysis and opinions would really add to the lively dialogue around this unsettled controversy (at least in terms of public response and internal dissent at the ABC).
All contributions are welcome, and please address the content of the Holmes’ responses in as much detail as you like.
I shall return to add my thoughts this week.