Investigation Report No. BI-228

Investigation report no. BI-228

Summary
Broadcaster / Australian Broadcasting Corporation
Station / ABC
Type of service / National broadcasting—television
Name of program / The Drum
Date of broadcast / 2 August 2016
Relevant code / ABC Code of Practice 2011 (revised in 2016)
Date finalised / 22 September 2016
Decision / No breach of Standard 4.1 [due impartiality]
No breach of Standard 4.2 [diversity of perspectives]

Background

In September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 151 of the Broadcasting Services Act 1992 (the BSA) into The Drum broadcast on ABC by the Australian Broadcasting Corporation (the ABC) on 2 August 2016.

The ACMA received a complaint alleging that the program was biased and lacked a diversity of perspectives.

The ACMA has investigated the ABC’s compliance with Standards 4.1 [due impartiality] and 4.2 [diversity of perspectives] of the ABC Code of Practice 2011 (revised in 2016) (the Code).

The program

The Drum is a news analysis program broadcast Monday to Friday on ABC from 5.30 pm to 6.00 pm and on ABC News 24 from 6.30 pm to 7.00 pm. The program features a host and a panel of guests who discuss current topics of interest.

The program broadcast on 2 August 2016 was hosted by Ms Julia Baird. It was a special edition dealing exclusively with the issue of same-sex marriage, in contrast to regular editions of The Drum, which canvas a number or series of topical issues.

Excerpts of the relevant discussions of 2 August 2016 are at Attachment A.

Assessment and submissions

When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian courts have considered an ‘ordinary reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[1]

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.

The investigation takes into account relevant submissions from the complainant (Attachment B) and the ABC (Attachment C).

Relevant Code provisions

Standard 4.1

Gather and present news and information with due impartiality.

Standard 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.

The Code requires that Standard 4 is interpreted and applied in accordance with the relevant Principles, which include the following:

Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, 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.

[...]

Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

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; and
• the timeframe within which it would be appropriate for the ABC to provide opportunities for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate.

Finding

The ABC did not breach Standards 4.1 and 4.2 of the Code.

Reasons

The complainant submitted that:

The drum presented an article in which they ensured that the presentation would be biased, three panellists opposing one, and the reporter Ms Baird also demonstrated bias in unduly, pointedly and persistently grilling Mr Shelton […]

Further, the complainant alleged that the segment was abruptly cut off which meant that guest panellist, Mr Lyle Shelton, did not have a ‘chance for decent responses’ to Ms Baird’s last question to him.

The ABC submitted that:

Ms Baird asked a number of questions of Mr Shelton. In doing so she used the adversarial or ‘devil’s advocate’ approach, in order to take relevant points of criticism and put them to the Mr Shelton for his response. This approach can sometimes give the impression that these are the personal views of the questioner, but that is not the case. As host and moderator of the panel’s discussion, Ms Baird had a duty to test the participants where appropriate, and to put other points of view to them. She also had a duty to ensure that questions were answered.

[…]

While rigorous, we consider that Ms Baird demonstrated a consistently civil and objective approach. More generally, we are satisfied that all of the participants were given the opportunity to engage with the key issues raised in the debate and to express their perspective.

To assess compliance, the ACMA has considered the following:

 contextual factors

 the ABC’s hallmarks for impartiality:

• a balance that follows the weight of evidence
• fair treatment
• open-mindedness
• opportunities over time for principal relevant perspectives on matters of contention to be expressed.

Contextual factors

The Drum is presented as a forum for the expression of opinions on topical news and current affairs. In this case, the discussion of same-sex marriage occurred as part of a wider discussion against the background of the Government’s intention to address the matter in a plebiscite, announced prior to the federal election in July 2016.

The program included the following panellists:

 Mr Tiernan Brady, political director of the ‘Yes’ campaign in Ireland’s constitutional referendum on same-sex marriage

 Mr Lyle Shelton, managing director of the Australian Christian Lobby

 Ms Moo Watson-Baulch, CEO of Domestic Violence NSW

 Mr Paul Ritchie, communications specialist and former adviser to then Prime Minister, Mr Tony Abbott, MP, and the National Rugby League.

The program opened with an introduction outlining the subject by Ms Baird. This was followed by a recorded statement by the Hon. Malcolm Turnbull, MP, Prime Minister of Australia, re-affirming the Government’s intention to hold a plebiscite, and predicting that a yes vote would be ratified by parliament.

Material provided throughout the program further contextualised the panel discussion. This included an outline of the legislative changes that had occurred in other countries, a recorded segment featuring personal testimony of two same-sex couples wanting to marry, and references to surveys and opinion polls on the issue itself and the proposed plebiscite.

The issue of same-sex marriage, whether or not the Marriage Act 1961 should be changed, and the manner in which such change should be instigated has been, and continues to be, the subject of intense public debate. This profile of the issue is appropriately reflected in the fact that this episode of The Drum dealt exclusively with the issue.

The ACMA accepts the ABC’s submission that:

the panel traversed a range of topics including:

• the experience in overseas jurisdictions in moving to legalise same-sex marriage;

• the flow on consequences of legalising same-sex marriage;

• the role of marriage in Australian society from a public policy perspective; and

• the general tenor of the public debate in the lead up to a plebiscite.

The ACMA further accepts the ABC’s submission that the topics of discussion were inherently newsworthy and that the program provided a comprehensive exploration of issues that were the subject of intense public debate.

Viewers would have understood from the broadcast that there were opposing views on the subject of same-sex marriage and the proposed plebiscite.

Hallmarks of impartiality

The ABC is entitled to explore issues of controversy, as long as the hallmarks of impartiality are met; namely, that there is 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.

Whether a breach of the Code has occurred will depend on the themes in the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

The discussion in this broadcast of The Drum was appropriately framed with statements by the Prime Minister, reference to legislative change in other countries, opinion polls about support for same-sex marriage and personal testimonies from same-sex couples on the issue. The discussion in the program reflected the current debate in the community and did not infer a consensus of views in favour of same-sex or traditional marriage. In this way, the program achieved a balance that followed the weight of evidence.

Three of the panellists expressed views in favour of legalising same-sex marriage while one panellist, Mr Shelton, expressed objections and concerns. Mr Shelton was given many opportunities to provide his point of view during the program and he responded at length and in detail. At times in the discussion, Ms Baird specifically asked for Mr Shelton’s views.

Achieving impartiality requires a broadcaster to present material in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter, who plays a key role in setting the tone of the program, through their style and choice of language. The ACMA considers that Ms Baird’s tone was probing, but in a respectful way, often asking for Mr Shelton to elaborate on his answers. She did not express a personal opinion on the issues raised. The host allowed for a range of views to be elaborated on, and asked relevant follow-up questions, displaying fair treatment and open-mindedness.

The ACMA considers that, although the panel discussion finished abruptly, Mr Shelton was given an opportunity to give an answer to the final question put to him by Ms Baird. The ACMA accepts the ABC’s submission that The Drum is broadcast live, and on this occasion, the debate was somewhat abruptly cut short as the program was out of time.

The ACMA considers that the segment contained sufficient material, in terms of information and viewpoints, for viewers to make up their own minds on the particular issues raised. Given the focus of the material, the program conveyed an open-minded exploration of relevant issues.

The ACMA accepts the ABC’s submission that the panel for The Drum is convened ahead of time with a view to ensuring a range of perspectives are achieved, as well as recognising that its impartiality standards do not require panels to be evenly split across a political or other spectrum.

The ACMA has noted in previous matters that the composition of a panel will not necessarily indicate bias, particularly where a topic of debate covers a range of issues.[2] A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Impartiality does not require that every perspective receives equal time, nor that every facet of every issue is presented.

Further, participants on panel discussion programs such as The Drum are not required to be impartial but are able to express their own points of view.

The Code does not require that all perspectives on an issue be broadcast nor that principal perspectives be given within a single program. The issue of same-sex marriage has been addressed in a large number of ABC programs and reports, including a panel discussion on Q&A on 17 August 2015. This broadcast was the subject of an ACMA investigation (Investigation report No. BI-123), which resulted in a no breach finding of the impartiality standard.

After considering the broadcast against the four hallmarks of impartiality set out in the ABC’s Principles, the ACMA finds that the ABC did not fail in its duty to gather news and information with due impartiality under Standard 4.1 of the Code.

Further, the ACMA finds that the ABC presented a diversity of perspectives on this issue within the episode of 2 August 2016 and over time, so that no significant strand of thought or belief in the community was knowingly excluded or disproportionately represented, as required under Standard 4.2 of the Code.

Accordingly, the ABC did not breach Standards 4.1 and 4.2 of the Code.

Attachment A

Excerpts of the transcript of The Drum, broadcast on 2 August 2016 on ABC:

Julia Baird:Hello, welcome to The Drum, I’m Julia Baird. Coming up: Is Australia ready for marriage equality? Tonight, a special edition of The Drum, looking at what the plebiscite means for those for and against same-sex marriage

[…]

Julia Baird: Lyle.

Lyle Shelton:Julia, you mentioned earlier the polling, and talked to Moo about that. I can understand the gay community not wanting to have a plebiscite, but they’re a small percentage of the Australian community, two or three per cent.

Julia Baird: This is the percentage of the community that we’re talking about.

Lyle Shelton:And I get that. But there’s a big assumption in this debate and this is why I think we do need a plebiscite. The big assumption is that this doesn’t affect anyone else. If you think about the polling, it all seems to say that people support same-sex marriage. But we haven’t had a proper discussion, and when we saw a more nuanced conversation open up on the ABC’s vote compass prior to the election - and I was one of the ones who filled that out - it asked people whether they supported same-sex marriage. 56% said they did and that’s a lot lower than the polls commissioned by interest groups. An ABC audience of hundreds of thousands of people said 56%. And then when people are asked do they support safe schools-type transgender education in schools, that dropped to 37%. So, I think if we have a discussion about what comes with this political rainbow agenda, I think that’s when.. That’s the sort of discussion we need to have in the plebiscite conversation, because there are consequences outside the two or three per cent in the gay community.

Julia Baird: I know that you want to say something [addressing Moo Baulch and Tiernan Brady], but can I just get you to clarify what is a rainbow agenda?

Lyle Shelton:Well, ok… Well, you’ve got a… You see the rainbow flag flying above the Parliament of Victoria. Daniel Andrews pushing for same-sex marriage and safe schools. Ros Ward draped in the rainbow flag as she’s presenting and putting this aggressive gender fluidity program through hundreds of schools in Australia.

Julia Baird: But are you then conflating, because rainbow has a historical association with the gay liberation movement.

Lyle Shelton:Sure, but it has taken on a political agenda to do with same-sex marriage and with safe schools, so these things are a package deal. I think Australians are only just starting to realise. And this is what came in Ireland straight after your debate.

Julia Baird: I just need you to clarify: when you use the term rainbow agenda you mean a small percentage of the LGBTQI community that is assertive and whose views you do not agree with. You’re not talking about all people.

Lyle Shelton: Sure, the people running the political debates, whether it’s for same-sex marriage or the political debate to get funding and access for things like safe schools are all draped in the rainbow flag if I can use that in a sort of vernacular.

Moo Baulch:Didn’t Tony Abbott bring in safe schools, though?

Lyle Shelton:No, Bill Shorten and Penny Wong did. Tony Abbott failed to de-fund it…

Julia Baird: I don’t want to get into that. I just wanted to be clear on that term. Yes?

Tiernan Brady:There’s a genuine problem. I’m repeating the point almost again. If you can’t win the argument about marriage, let’s pretend it’s about something else. We’ve seen this in Ireland and we’re seeing it here.

Lyle Shelton:No, no, no, there’s consequences, Tiernan, there’s consequences.

Tiernan Brady:All the other countries that brought in marriage equality and hopefully that’s one of the things that’s a great reassurance for Australians, as they have this national conversation about the members of their families and friends who are lesbian and gay, is that they can look to so many countries that they relate to and that they share the same values of: Ireland, England, Scotland Wales Canada, New Zealand… Canada for over a decade. And other western European countries… same values, they have marriage equality and we can see that all of those predictions of terrible unforeseen circumstances never came true. All that happened was that nobody lost anything, and one small group in society, our lesbian and gay friends and family members, were allowed to get married, and for the first time ever were given equal status in law and equal dignity in law for their relationships.