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Investigation Report No. 2865

File No. ACMA2012/1146

Broadcaster Australian Broadcasting Corporation

Station ABC Canberra

Type of Service National broadcasting

Name of Program 7.30

Date/s of Broadcast

27 February 2012

Relevant Code Standards

Standards 2.1, 2.2, 4.1, 5.3 and 5.4 of the ABC Code of Practice 2011

Date Finalised 30 May 2013

Decision No breach of standards 2.1, 2.2, 4.1, 5.3 or 5.4 of the ABC Code of Practice 2011

ACMA Investigation Report – 7.30 broadcast by ABC on 27 February 2012

The complaintThe Australian Communications and Media Authority (the ACMA) received a complaint regarding a segment of the program ‘7.30’ (the Program) broadcast by ABC Canberra (the ABC) on 27 February 2012.1

The complainant complained in the first instance to the ABC and was not satisfied with its response. In a subsequent complaint to the ACMA, she alleged that the segment was biased, inaccurate, failed to provide an opportunity to respond and failed to attribute information to its source.

The ACMA has investigated the ABC’s compliance with standards 2.1, 2.2, 4.1, 5.3 and 5.4 of the ABC Code of Practice 2011 (the Code).

The programThe Program is described on the ABC’s website as providing ‘the best analysis of local, national and international events from an Australian perspective, weeknights on ABC1’.2

The episode broadcast on 27 February 2012 featured a segment almost eight minutes in length entitled ‘Look inside a leadership tilt’ (the Segment). Earlier that day, the then Foreign Minister and former Prime Minister, the Hon Kevin Rudd MP (Mr Rudd), had unsuccessfully challenged the serving Prime Minister, the Hon Julia Gillard MP (the Prime Minister) , for leadership of the Australian Labor party in a bid to reclaim the Prime Ministership.

The Segment was introduced as follows:

The critical question for Julia Gillard is whether this truly marks the end of Kevin Rudd's campaign, despite his insistence that he won't mount another challenge and the Government's determination to present a united front after the open warfare of the last week. Sceptics think today was just stage one in a two-step bid to regain the Prime Ministership. In a moment we'll put that question to key Rudd backer Anthony Albanese, but first, [Reporter] reports on the stealth campaign Kevin Rudd denied he was waging.3

The Segment was introduced by a presenter (the Presenter) and featured a reporter (the Reporter) narrating the piece, and interviewing various political figures, including the Prime Minister and Mr Rudd, the Hon Kate Ellis MP (Ms Ellis), the Hon Simon Crean MP (Mr Crean), the Hon Tony Burke MP (Mr Burke) and the Hon Michael Danby MP (Mr Danby). The Segment also included comments by Mr David Koch, television presenter, in an excerpt from the Seven Network and an interview with (BH), an advisor to Mr Rudd.

A transcript of the Segment is at Appendix A.

AssessmentThis investigation considered submissions from the complainant and the ABC, as well as a copy of the Segment provided to the ACMA by the ABC. Other sources have been identified where relevant.

1 For clarity, the ACMA notes that the complainant in this matter was not Mr Rudd. In line with its usual processes, the ACMA took into account submissions from the complainant and broadcaster about the substance of the matters in this report. The ACMA did not require or seek submissions from Mr Rudd or other parties.

2 www.abc.net.au/7.30/about.htm3 www.abc.net.au/7.30/content/2012/s3440774.htm

ACMA Investigation Report – 7.30 broadcast by ABC on 27 February 2012 2

http://www.abc.net.au/7.30/content/2012/s3440774.htm

http://www.abc.net.au/7.30/about.htm

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. 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.4

The ACMA examines what the ‘ordinary, reasonable viewer’ would have understood the Segment to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn and, in the case of factual material, relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.

Issue 1 - AccuracyRelevant Code standards

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

The Code requires that the standards are interpreted and applied in accordance with the Principles applying in each Section.

Relevant Principles in relation to factual accuracy include the following:

Types of fact-based content include news and analysis of current events, documentaries, factual dramas and lifestyle programs. The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

• the type, subject and nature of the content;

• the likely audience expectations of the content;

• the likely impact of reliance by the audience on the accuracy of the content; and

• the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can. The accuracy standard requires that opinions be conveyed accurately, in the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed. The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts. The passage of time or the inaccessibility of locations or sources can affect the standard of verification reasonably required.

4 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167


The ABC should make reasonable efforts, appropriate in the context, to signal to the audience gradations in accuracy, for example by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Appendix B.

In applying standard 2.1 of the Code, the ACMA usually adopts the following approach:

Was the particular material (the subject of the complaint) factual in character?

Did it convey a ‘material’ fact or facts in the context of the relevant segment?

If so, were those facts accurate?

If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?

In applying standard 2.2 of the Code, the ACMA usually adopts the following approach:

Was the particular material (the subject of the complaint) factual in character?

Was that factual content presented in a way that would materially (i.e., in a significant respect) mislead the audience?

SubmissionsThe submissions of the complainant and ABC are at Appendices C and D respectively.

In relation to questions of factual accuracy, the complainant submitted that the following had been inaccurate:

Claims about photographs of the Prime Minister’s Office;

Claims Mr Rudd used the foreign affairs portfolio ‘to his advantage’, including claims that the Commonwealth Ministerial Action Group (CMAG) meeting was timed to coincide with the Royal wedding and that Mr Rudd was ‘conspicuous’ at the Commonwealth Heads of Government Meeting (CHOGM);

Claim that Mr Rudd briefed journalists on his alleged strategy to reclaim the position of Prime Minister; and

Claim that Mr Rudd’s Chief of Staff, referred to in the report as [PG], met business representatives during the CHOGM summit and briefed them on the implications of the return of a Rudd government.

Photographs of the Prime Minister’s office

During the Segment, the following statement was made (relevant portion in italics):

Reporter: ‘But how long did it take for the deposed leader to start planning a resurrection? His enemies in the party, and there are many, believe it was instantaneous. So much so that staff in his office took care to photograph the place before leaving so they'd know how to set it up on Kevin Rudd's return.’

Use of the Foreign Affairs portfolio to Mr Rudd’s ‘advantage’:

a) The allegation that the CMAG meeting was timed to coincide with the Royal wedding, to trump the Prime Minister’s own appearance later that week



Reporter: ‘In the Foreign Affairs portfolio the former Prime Minister found a high-profile, high-flying job and he used it to his advantage. But his performance in the role often raised eyebrows. When the world was focused on London's Royal wedding, he was there, convening a meeting of the Commonwealth Ministerial Action Group... His colleagues at home saw it as an attention-seeking stunt designed to trump the Prime Minister's own appearance later that week.

Mr Rudd (on stage at the End Polio concert): I sing like a cow.’

b) The allegation that Mr Rudd was ‘conspicuous’ at the Commonwealth Heads of Government Meeting.

During the Segment, the following statement was made:

Reporter: ‘At last November's Commonwealth Heads of Government meeting, Kevin Rudd was again conspicuous.’

Claim that Mr Rudd briefed journalists on his alleged strategy to reclaim the position of Prime Minister

During the Segment, the following statements were made (relevant portions in italics):

Reporter: ‘But does the rumoured two-stage strategy still exist? In his campaign, Kevin Rudd is known to have briefed a handful of journalists on his intentions to challenge not once, but twice.’

Reporter: ‘It seems fairly clear now that Kevin Rudd has been briefing journalists, that in those briefings he told them that there is a two-step strategy: challenge once and lose, and then come back and challenge again. Is that the path that he is likely to follow?’

Claim that Mr Rudd’s chief of staff met business representatives during the CHOGM summit and briefed them on the implications of a return of a Rudd Government


Reporter: ‘7.30 can provide a glimpse of the behind-the-scenes lobbying underway [during the week of the CHOGM]. Mr Rudd's chief of staff [PG] met several business leaders on the sidelines of the summit. He reassured them that a future Rudd government "would not revisit past issues" with business. It would "let bygones be bygones". They were told that Kevin Rudd was being "practical and moving forward," that "old arguments" over workplace laws, emissions trading and the mining tax would "not be fought again”’.

FindingThe ABC did not breach standards 2.1 or 2.2 of the Code.

ReasonsThe particular material the subject of the complaint (see extracts above) is appropriately characterised as factual in character in that it is stated in unequivocal terms without any reference to judgement or opinion. In the context of a report which purports to provide background to and evidence of a ‘stealth’ campaign, the relevant facts conveyed are material for the purposes of the Code.

Photographs

In relation to the accuracy of the material relating to the taking of photographs, the complainant has submitted that ‘staff were consumed by the effort to pack up the office’, that ‘there was little time for activities other than basic pack-up’ and that ‘all the photographs that I


personally am aware of having been taken were mementos of serving the outgoing Prime Minister’.

The ABC has submitted that it ‘relied on a highly placed and highly reliable source for the information about Mr Rudd’s staff photographing his office’.

The ACMA has been presented with different interpretations of the same event and is unable, on the evidence before it, to determine the purpose for which each photograph was taken on the day.

The ACMA has examined the ABC’s efforts to ensure that this information was accurate. As noted above, the ABC has submitted that it relied on a highly reliable source. In this regard, the ABC has submitted that ‘the program has confirmed that the quality of the source, and their close proximity to the events concerned, allowed it to be satisfied of the accuracy of the statement.’ It further stated that ‘after careful consideration by the program’s senior editorial staff and adherence to the mandatory upward referral guidelines relating to the use of anonymous sources, 7.30 satisfied itself that the information was accurate and could be reported as fact.’

In this case, an important factor in the ACMA’s determination is that the broadcast itself included explicit denials by Mr Rudd of the core of the story: the notion that Mr Rudd had covertly been undermining the Gillard government for an extended period of time. Accordingly, the ACMA considers that the audience expectations and understanding of this issue were appropriately informed.

The ACMA finds the ABC’s efforts reasonable in these circumstances. Reliance on a source of this nature may not always amount to reasonable efforts and each situation is judged on its merits, taking into account the ABC’s own Principles in relation to gauging efforts.

CMAG meeting timing

In relation to the claim that Mr Rudd timed the CMAG meeting to coincide with the Royal wedding in order to trump the Prime Minister’s appearance later that week, the ACMA is persuaded by the ABC’s submission that the statement did not convey this information. Rather, it simply conveyed that Mr Rudd was present in London convening the meeting at the same time as the Royal wedding and that this had been perceived by some political figures as an attempt to ‘trump’ the Prime Minister’s presence at the wedding. The Segment did not state or imply that Mr Rudd’s presence in London was designed by him to outshine the Prime Minister’s appearance at the event, but rather that others had interpreted it in this way.

The ACMA has not been provided with any information that suggests that this claim was inaccurate, and accordingly considers that the ABC did not breach the Code in relation to these statements.

Mr Rudd ‘conspicuous’ at CHOGM

In relation to whether or not Mr Rudd was ‘conspicuous’ at CHOGM, there is some evidence to suggest that Mr Rudd did maintain a high profile at CHOGM, and to an extent that surprised some commentators.5

5 www.theage.com.au/opinion/huskyvoiced-rudd-does-a-mae-west-20111026-1mk82.htmlwww.news.com.au/business/kevin-rudd-steals-centre-stage-as-chogm-threatens-to-implode/story-

e6frfm1i-1226176763861www.news.com.au/national-old/kevin-rudd-raises-eyebrows-with-his-strange-stage-act/story-e6frfkvr-

1226180696751www.smh.com.au/opinion/politics/gillards-the-organised-one-but-rudd-grabs-chance-to-strut-20111027-

1mm1b.html


http://www.news.com.au/national-old/kevin-rudd-raises-eyebrows-with-his-strange-stage-act/story-e6frfkvr-1226180696751

http://www.news.com.au/national-old/kevin-rudd-raises-eyebrows-with-his-strange-stage-act/story-e6frfkvr-1226180696751

http://www.news.com.au/business/kevin-rudd-steals-centre-stage-as-chogm-threatens-to-implode/story-e6frfm1i-1226176763861

http://www.news.com.au/business/kevin-rudd-steals-centre-stage-as-chogm-threatens-to-implode/story-e6frfm1i-1226176763861

http://www.theage.com.au/opinion/huskyvoiced-rudd-does-a-mae-west-20111026-1mk82.html

http://www.smh.com.au/opinion/politics/gillards-the-organised-one-but-rudd-grabs-chance-to-strut-20111027-1mm1b.html

http://www.smh.com.au/opinion/politics/gillards-the-organised-one-but-rudd-grabs-chance-to-strut-20111027-1mm1b.html

The ABC submitted that ‘it is a self-evident statement of fact that Kevin Rudd was conspicuous at the CHOGM meeting. His appearance at the End Polio concert demonstrated this, attracting widespread media coverage in Australia. At no stage did the reporter state that Kevin Rudd had “designed” his appearance at the concert to be conspicuous. He was making the obvious point that Mr Rudd maintained a high profile, and that the level of exposure he received was criticised by some of his colleagues who questioned his motives’.

The ACMA accepts this submission and is satisfied that the ordinary, reasonable viewer would have interpreted the statement in this way.

Mr Rudd briefed journalists on his alleged strategy

The complaint is that the Segment claims that Mr Rudd briefed journalists on ‘his intentions to challenge not once but twice.’ The complainant submitted that ‘Mr Rudd denies having briefed journalists on a “leadership strategy”’, while the ABC submitted that ‘7.30 and a number of its journalistic peers [had] direct, first-hand knowledge’ of the briefings, that the claim was backed by demonstrable evidence, and that BH’s response and Mr Rudd’s denial that he was seeking to destabilise the government were included in the Segment.

The ACMA considers that the material facts presented in the Segment were that Mr Rudd was planning a two-pronged leadership challenge.

The ACMA notes that the Presenter’s introduction included ‘Sceptics think today was just stage one in a two-step bid to regain the prime ministership’ (emphasis added). The Reporter describes the notion of a two-stage strategy as a rumour and poses it as a question. BH does not deny that it was a strategy at some point, but states that Mr Rudd will not challenge the Prime Minister again.

In addition, the inclusion of the following quote from Labor MP Michael Danby in the Segment is noted:

The thing with the journalists is the most obvious smoking gun, and until it's denied, this is really very serious evidence of undermining of a Prime Minister and a Labor government.

The inclusion of this comment served to further demonstrate that the claim that Mr Rudd had briefed journalists was an allegation; one that had not been denied by him.

In the context of the leadership challenge that had occurred on the day of the broadcast, the ACMA therefore accepts that rumours of Mr Rudd having briefed journalists were circulating and that the Segment presented the facts of Mr Rudd’s strategy to reclaim the leadership (including a possible two stage strategy) accurately and in context. The ACMA also accepts that in relying on its own journalists’ direct first-hand knowledge of the briefings, the ABC satisfied its ‘reasonable efforts’ obligation.

Mr Rudd’s Chief of Staff

The complainant submitted that:

The allegation that [PG] met business representatives and briefed them on the implications of the return of a Rudd government was put to the Foreign Minister’s office by email at 5:42pm on the evening the program aired. At 5:47pm [PG] denied the allegations as absolute nonsense and entirely false... The story ran without any attribution of the source of the allegation or the office’s denial. The reality is that [PG] was completely occupied during CHOGM by the intensive diplomatic demands of the event.

The complainant also submitted that while PG did talk with some mining representatives sitting at his table during an African Mining Breakfast, he merely indicated to them that ‘Mr Rudd was ready to have constructive dealings with the industry as Foreign Minister’.


The ABC submitted to the ACMA that ‘7.30 relied on a highly placed and highly reliable source for the information about [PG]’s entreaties on behalf of Mr Rudd at the CHOGM meeting, with first-hand knowledge of the events in question’. It added that the ‘fact that the ABC contacted Mr Rudd’s office seeking a comment on this matter does not mean that it had an editorial requirement to report the denial in response’ and that it ‘chose not to include the denial... based on the strength and credibility of the information provided by its source, the claims did not relate to Mr Rudd’s own conduct or actions, and it did not believe the denial was in any way conclusive’.

The ABC also submitted that ‘after careful consideration by the program’s senior editorial staff and adherence to the mandatory upward referral guidelines relating to the use of an anonymous source, 7.30 satisfied itself that the information was accurate and could be reported as fact’.

In response to the ACMA’s preliminary Investigation Report, the ABC further submitted that ‘the program has now advised that it had two sources on which the relevant statement about briefings with business leaders was based’, and that business leaders were also ‘reluctant to go on the record in relation to these matters’. The ABC also noted that it is clear that it is restrained by its ethical obligations to maintain source confidentiality.

The ACMA accepts that that the ABC is not in a position to name its sources (discussed further at Issue 4 below). It considers that there is no dispute that PG entered into discussions with business leaders at CHOGM, and this was a material fact. The ACMA also accepts that relying on two sources of the calibre described in the ABC’s submissions for the details of such discussions, meets the ‘reasonable efforts’ threshold imposed by standard 2.1 of the Code.

The complainant submitted that PG denied the claim as false and this denial did not feature in the Segment. In its further submissions, the ABC submitted that, ‘at no time did [PG] himself deny the allegations to the ABC’. The denial was made by the complainant and ‘she provided no detail to support her claim that the story was false’ and did not attribute the denials to PG. It also submitted that the account of his assurances to business leaders was not damaging, negative or particularly sensitive.

Further, the ABC submitted that, as there were several denials from Mr Rudd in the Segment and the complainant’s denial on behalf of PG was the least relevant and compelling and related to the least significant elements of the Segment, the audience was not materially misled.

The ACMA considers that the Segment in its entirety made it clear that the allegations of a leadership challenge by Mr Rudd were denied and that these denials would have covered the particular statements alleged to have been made by PG. In view of the explicit denials in the Segment by Mr Rudd, and given that there is no dispute that PG had met with business representatives at CHOGM, the ACMA accepts that the material facts concerning him were presented accurately and in context. It also accepts that factual content concerning PG was not presented in a way that would materially mislead the audience.


Denial of allegations

The ACMA notes that the Segment included Mr Rudd’s refutation of some of the allegations levelled at him, as well as several representations of his viewpoint, including the following:

Presenter: ‘... the stealth campaign Kevin Rudd denied he was waging’.

Reporter: ‘To this day, he denies it’ (in reference to the alleged cabinet leaks).

Mr Rudd: ‘We did nothing of that sort. It's very easy for people to run around and make those accusations. You know that as well as I do’ (in response to the claims of leaking Labor party information).

BH: ‘I don't think [allegations of cabinet leaks] was the reason [that he lost the leadership challenge]. I think a lot of people who were involved in his removal in 2010 became very agitated at the prospect of his return and went out and publicly attacked him in a way that really forced him to resign.’

Mr Rudd: ‘That's not true. What other people may choose to reflect on in those conversations is a matter for them’ (in response to the allegations of inappropriate comments he made at the Stag Hotel).

BH: ‘Clearly there's a disconnect between public opinion and caucus opinion. And caucus is just going to have to deal with that disconnect now and make sure that Julia Gillard really does start to be seen as the leader that the public want.’

Reporter: ‘Is that possible?’

BH: ‘Oh, I think it is, but it'll be hard. It's going to be much harder than if Kevin Rudd had been leader.’

BH: ‘Well I think he's given a very clear undertaking both before the ballot and since then that that's going to end now [the alleged two-staged challenge theory]. There's not going to be a two-stage approach. He's been out there and said he's not going to challenge again and I think we can believe him with that.’

The ACMA considers that the claims made about Mr Rudd in the Segment were clearly denied. The material facts were presented in context and the ordinary reasonable viewer would have understood that the claims were in dispute. Further, factual content was not presented in a way that would have materially misled the audience.

For the reasons set out above, the ACMA considers that the ABC did not breach standards 2.1 and 2.2 of the Code in relation to the above statements.

Accordingly, the ABC did not breach standards 2.1 and 2.2 of the Code.


Issue 2: ImpartialityRelevant Code standard

4.1 Gather and present news and information with due impartiality

The Code requires that the standards are interpreted and applied in accordance with the Principles applying in each Section.

Relevant Principles in relation to impartiality and diversity of perspectives 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.

[...]

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.

The considerations which the ACMA has regard to in assessing the ABC’s compliance with standard 4.1 of the Code are found at Appendix E.

SubmissionsThe submissions of the complainant and the ABC are at Appendices C and D.

FindingThe ABC did not breach standard 4.1 of the Code.

ReasonsThe ACMA notes that current affairs programs are entitled to take a critical stance regarding the manner in which they present various issues or controversies. The key issue in assessing the ABC’s compliance with standard 4.1 involves an examination of the manner in which a segment is presented. Material should be presented in a manner which avoids conveying a


prejudgement, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast.

Whether or not a beach has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

The ACMA considers that impartiality was achieved during the Segment. The tone of the Segment, as well as the terminology used, was of an objective and straightforward nature. The ACMA is satisfied that the ABC had not prejudged the issue and that, in the context of a political story following Mr Rudd’s leadership challenge, the ordinary, reasonable viewer would have understood that there remained considerable controversy and contention behind many of the claims that were made during the Segment.

As noted above, the Segment included Mr Rudd’s refutation of many of the allegations levelled at him, as well as several representations of his viewpoint, set out at Issue 1 above.

In addition, the ACMA accepts the ABC’s submission that the Segment generally ‘made reasonable efforts to seek and include the principal relevant perspectives’ on a number of the issues.

As such, the ACMA is satisfied that the ABC did not breach standard 4.1 of the Code.

Issue 3: Opportunity to respondRelevant Code standardStandard 5.3 of the Code states:

Opportunity to respond

5.3 Where allegations are made about a person or organisation, make reasonable efforts in the circumstances to provide a fair opportunity to respond.

SubmissionsThe submissions of the complainant and broadcaster are at Appendices C and D.

AssessmentIn order to determine whether the ABC has complied with the requirements of standard 5.3, the ACMA must determine:

Was an allegation made about a person or organisation?

Were reasonable efforts made in the circumstances to provide a fair opportunity for that person or organisation to respond?

The ACMA notes that the Macquarie Dictionary (Online) defines an allegation as ‘a mere assertion made without proof’.

The ABC has published a Guidance Note dealing specifically with the interpretation of standard 5.3 of the Code, relevant portions of which are reproduced below at Appendix F (the First Guidance Note). The First Guidance Note refers to material that will attract the operation of clause 5.3, namely allegations referring to ‘action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or antisocial.’


It is made clear that providing an appropriate opportunity to respond to allegations as well as adequately and fairly including the response is necessary. Once obtained, the response should be treated fairly and accurately, but need not necessarily appear in full or verbatim. It needs to be included in appropriate detail; simply stating the person ‘denied the allegations’ may not be sufficient. It is also noted that a person cannot control a disclosure by withholding a response and that the inability to obtain a response will not prevent the ABC from disclosing allegations where it is appropriate to do so.

As noted in the First Guidance Note, reasonable efforts to respond will depend on the circumstances, and will include: the extent to which a person is the focus of the allegations, the seriousness of the matter, the characteristics of the subject, the age of the allegations, the situation of the subject at the time, the complexity of the matter and the directness of the approach.

As discussed above at issues 1 and 2, in the context of the Segment as a whole, the claims made against Mr Rudd were presented as allegations as opposed to incontrovertible fact. In respect of its obligations under standard 5.3, the ABC submitted that Mr Rudd’s denial that he was engaging in a stealth leadership campaign was noted in the introduction to the Segment and that for the most part, the Segment was not making fresh allegations against him.

The ABC also submitted that it had made several requests to Mr Rudd for an interview in the lead-up to the Segment being broadcast, but they had all been turned down. The complainant has not refuted this claim. The ABC submitted that these invitations were made since the beginning of 2012 and included email exchanges between the program and the complainant on 10 and 25 February ‘explicitly requesting an interview with Mr Rudd’. Further, in a phone call after the Segment had been broadcast, the ABC extended an additional invitation to Mr Rudd to respond to the allegations made in the Segment, thereby adding to the efforts they had already made to give Mr Rudd an opportunity to respond.

The complainant categorised what she considered to be allegations made against Mr Rudd along the following lines:

Claims relating to events at the Adelaide Fringe Festival

Reporter: ‘According to those who were there, it was in fact one of the many places Kevin Rudd was seen and heard plotting his revenge.’

Reporter: ‘[At the Stag Hotel, Kevin Rudd is] accused of calling Julia Gillard a "childless, atheist ex-Communist”.’

Ms Ellis: ‘I certainly was one of the many, many people who saw that behaviour that night.’

Claims about photographs of the Prime Minister’s Office

Reporter: ‘But how long did it take for the deposed leader to start planning a resurrection? His enemies in the party, and there are many, believe it was instantaneous. So much so that staff in his office took care to photograph the place before leaving so they'd know how to set it up on Kevin Rudd's return.’

Claims Mr Rudd used the Foreign Affairs portfolio ‘to his advantage’

Reporter: ‘In the Foreign Affairs portfolio the former Prime Minister found a high-profile, high-flying job and he used it to his advantage. But his performance in the role often raised eyebrows.

Reporter: When the world was focused on London's Royal wedding, he was there, convening a meeting of the Commonwealth Ministerial Action Group.’


Reporter: ‘His colleagues at home saw it as an attention-seeking stunt designed to trump the Prime Minister's own appearance later that week.’

Reporter: ‘At last November's Commonwealth Heads of Government Meeting, Kevin Rudd was again conspicuous.’

Claim that Mr Rudd ridiculed the PM’s National Conference Speech

Reporter: ‘Later that night in a Darling Harbour restaurant, Kevin Rudd ridiculed the speech to a table of journalists. He complained of being air-brushed from history and scorned the "We are us" refrain’.

Claim that Mr Rudd briefed journalists on his alleged strategy to reclaim the position of Prime Minister

Mr Danby: ‘The thing with the journalists is the most obvious smoking gun, and until it's denied, this is really very serious evidence of undermining of a Prime Minister and a Labor government.’

Reporter: ‘But does the rumoured two-stage strategy still exist? In his campaign, Kevin Rudd is known to have briefed a handful of journalists on his intentions to challenge not once, but twice.’

Reporter: ‘It seems fairly clear now that Kevin Rudd has been briefing journalists, that in those briefings he told them that there is a two-step strategy: challenge once and lose, and then come back and challenge again.’

The allegation that [Mr Rudd’s chief of staff] met business representatives during the summit and briefed them on the implications of the return of a Rudd Government.

Reporter: ‘Mr Rudd's chief of staff [PG] met several business leaders on the sidelines of the summit. He reassured them that a future Rudd government "would not revisit past issues" with business. It would "let bygones be bygones." They were told that Kevin Rudd was being "practical and moving forward," that "old arguments" over workplace laws, emissions trading and the mining tax would "not be fought again”.’

FindingThe ABC did not breach standard 5.3 of the Code in relation to these statements.

ReasonsThe ACMA considers that the statements identified by the complainant constituted allegations against Mr Rudd and against PG.

As outlined above, the First Guidance Note sets out various categories of behaviour, allegations of which will trigger the operation of standard 5.3. These are allegations of ‘action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or antisocial.’

The ACMA considers that the claims referred to above were not of a type or of sufficient gravity to fall within these categories. Leadership challenges are a part of political life and the (alleged) actions of Mr Rudd cannot properly be characterised as behaviour that was unlawful, improper, incompetent, corrupt, dishonourable or antisocial (i.e. of falling within the ambit of the First Guidance Note).

On this basis, the ABC did not breach standard 5.3 of the Code in relation to the above claims.


Claims of an extensive leaking and destabilisation campaign

Presenter: ‘...but first, [the Reporter] reports on the stealth campaign Kevin Rudd denied he was waging.’

Reporter: ‘Only weeks later his presence haunted Julia Gillard's every move in the election campaign. A devastating cabinet leak almost brought it undone.’

Reporter: ‘At the time, Kevin Rudd was suspected. In the past week, the suspicions have erupted into open accusations.’

The Prime Minister: ‘Well the 2010 election was sabotage. We were in a winning position in that campaign until the sabotage that knocked that campaign very, very solidly.’

Mr Crean: ‘Kevin talks about stealth. I mean, this was been a covert operation and he's up there operating the drone 24 hours a day 'cause he never sleeps. He's always manipulating something.’

Mr Burke: ‘There's no doubt that Kevin has been engaging in undermining of the Government for more than a year now.’

Reporter: ‘Many caucus members blame Kevin Rudd for the cabinet leaks during the 2010 election campaign.’

FindingThe ABC did not breach standard 5.3 of the Code in relation to these claims.

ReasonsThe ACMA accepts that these allegations can be distinguished from those mentioned above in that they are of a far more serious nature. The leaking of confident cabinet documents is an illegal act. Allegations of this kind are inherently significant and serious and accordingly trigger the operation of standard 5.3 of the Code. The ABC was therefore obliged to provide Mr Rudd with a fair opportunity to respond.

As stated earlier, however, it is noted that the introduction to the Segment featured the following:

...but first, [the Reporter] reports on the stealth campaign Kevin Rudd denied he was waging.

As such, the ACMA considers that it would have been immediately apparent to the ordinary, reasonable viewer that Mr Rudd denied much of the content of the Segment. It is accepted that Mr Rudd’s denial of the allegation was made clear.

In addition, in its response to the complainant on this point, the ABC stated the following:

Mr Rudd is on record denying the allegation and that denial was prominent in the report. We cannot agree with your claim that a response from Mr Rudd was not ‘reflected in the program.’

The ACMA accepts this submission. It is evident from the broadcast that these allegations had previously been made against Mr Rudd on a number of occasions, and that he was ‘on the record’ as having denied them. This point is made apparent by the following portion of the Segment:

Reporter: ‘To this day, he denies it.’

David Koch, Sunrise Presenter: ‘Yeah, but behind the scenes you can categorically guarantee you did not leak anything or your staff in the lead-up to the 2010 election?’

Mr Rudd: ‘We did nothing of that sort. It's very easy for people to run around and make those accusations. You know that as well as I do.’


In these circumstances, the ACMA is of the view that the claims of Mr Rudd leaking cabinet documents were not fresh allegations. Rather, they had been previously put to Mr Rudd, and he had denied them on a number of occasions. Further, those denials featured in the Segment.

The ACMA is accordingly satisfied that the ABC’s obligations under standard 5.3 have been met.

Issue 4: Attribution and sourcesRelevant Code standardStandard 5.4 of the Code states:

Attribution and sources

5.4 Aim to attribute information to its source

AssessmentThe ABC has published a Guidance Note that deals specifically with the interpretation of standard 5.4 of the Code (the Second Guidance Note), relevant portions of which are produced below at Appendix G. In the Second Guidance Note, the following is stated:

While anonymity for sources is justifiable in some cases, it should be the exception not the rule. Circumstances in which a source is given a commitment that his or her identity will be protected should involve the public interest in the free flow of information. It is not enough that anonymity merely serves the source’s convenience. The information the source is conveying should have genuine public interest value.

It also lists the following (relevantly) as ‘other factors to consider’ in revealing the identity of the source of information or not:

The public interest: Whether the disclosure of the information unattributed would serve a sufficiently important public interest.

Personal attack only?: Whether disclosure of the information unattributed would amount only to a personal attack made on another person by the source under cover of anonymity provided by you.

Timeliness: Whether the information can be obtained from an attributable source of comparable reliability for disclosure to occur within a time period that would allow the public interest to be adequately served.

Form of attribution: A form of attribution which, while preserving anonymity, would give the audience an opportunity to weigh the reliability of the information, at least to some extent. Phrases like ‘sources said’ are unhelpful. The following advice adapts the New York Times’ guidance on this point to the Australian context:

‘Australian diplomat’ is better than ‘Western diplomat’, which is better than ‘diplomat’. Still better is ‘an Australian diplomat who took part in the meeting’. The phrase ‘a person familiar with the case’ is vague enough to include the reporter. Better are ‘an executive from the plaintiff company’ and ‘a staff member who has read the draft’.

FindingThe ABC did not breach standard 5.4 of the Code.


ReasonsThe ABC has submitted that it relied on either a ‘highly placed and highly reliable source’ or ‘[journalists on the Program] and a number of [their] journalistic peers’ in relation to a number of statements made during the Segment.

The complainant submitted that the Segment ‘failed to meet the ABC’s editorial guidelines in a number of areas, including... attribution of sources’, and that one of the claims made during the Segment was run ‘without any attribution of the source of the allegation.’

The ACMA acknowledges that attribution of anonymous sources in the media can be a controversial issue. On the one hand, audiences should have a right to know the source of information broadcast, so that they may make a more meaningful evaluation of its credibility. In addition, there are strong arguments to suggest that a culture of anonymity and secrecy may encourage both the making of baseless allegations and irresponsibility on the part of both journalists and public figures. This is to be weighed, however, against the fact that many sources will only approach journalists on the condition of anonymity, and that a failure to protect those sources’ identities may result in serious repercussions for them, as well as providing less of an incentive for them to come forward in the first place and disclose information that may have a real public interest value.

As noted above, the Second Guidance Note leans in favour of revealing the identity of sources, stating that ‘while anonymity for sources is justifiable in some cases, it should be the exception not the rule’.

The ACMA has assessed the public interest value of the information involved in the Segment, (including the statements about Mr Rudd’s actions and those of his Chief of Staff). The questions of the current and possible future leadership of the country, and the future stability of the government are, inherently, matters the exploration of which is in the public interest.

In the ACMA’s view, the public interest in exploring these matters was such that the ABC’s approach to anonymity and sources was justified in the circumstances of this broadcast.

The ACMA recognises that revealing the identity of sources may have had serious repercussions for the individual(s) involved, given that he/she/they may (hypothetically) have an ongoing professional relationship with Mr Rudd or would potentially face a backlash from the media and/or the Australian public, which may have an adverse effect on any reputations going forward.

As far as the other factors to consider outlined in the Second Guidance Note are concerned, the ACMA has no evidence to suggest that the source(s) disclosed the information purely as a personal attack on Mr Rudd. Further, the ACMA recognises that any form of attribution to a source may have immediately made it clear who the source was. Therefore, any such form of attribution may have been futile.

The ACMA is accordingly satisfied that the ABC did not breach standard 5.4 in the broadcasting of the Segment.


Appendix A

Transcript of the SegmentPresenter: The critical question for Julia Gillard is whether this truly marks the end of Kevin Rudd's campaign, despite his insistence that he won't mount another challenge and the Government's determination to present a united front after the open warfare of the last week. Sceptics think today was just stage one in a two-step bid to regain the Prime Ministership. In a moment we'll put that question to key Rudd backer Anthony Albanese, but first, [the Reporter] reports on the stealth campaign Kevin Rudd denied he was waging.

Reporter: It's a warm evening in February, 2011, and Adelaide's Stag Hotel is heaving with crowds at the opening night of the city's Fringe Festival. But was this the scene for more than just summer revelry? According to those who were there, it was in fact one of the many places Kevin Rudd was seen and heard plotting his revenge.

Ms Ellis: I certainly was one of the many, many people who saw that behaviour that night.

Reporter: The sudden brutal dismissal of a Prime Minister stunned the nation in mid-2010. It stunned Kevin Rudd too

Mr Rudd (June, 2010): I hope I've been able to demonstrate to you that, um, this has been a very busy two and a half years.

Reporter: But how long did it take for the deposed leader to start planning a resurrection?

Mr Rudd (June, 2010): Gotta zip!

Reporter: His enemies in the party, and there are many, believe it was instantaneous. So much so that staff in his office took care to photograph the place before leaving so they'd know how to set it up on Kevin Rudd's return. Only weeks later his presence haunted Julia Gillard's every move in the election campaign. A devastating cabinet leak almost brought it undone.

ABC Newsreader: 12 days into the election campaign, the Prime Minister's cheery demeanour has cracked, and it wasn't Tony Abbott who caused it. Labor has a leaker in its ranks and Julia Gillard says she's angry. She halted campaigning today to deal with claims that she'd argued against pension increases and paid parental leave when she was in the Rudd cabinet.

Reporter: At the time, Kevin Rudd was suspected. In the past week, the suspicions have erupted into open accusations.

The Prime Minister: Well the 2010 election was sabotage. We were in a winning position in that campaign until the sabotage that knocked that campaign very, very solidly.

Mr Crean: Kevin talks about stealth. I mean, this has been a covert operation and he's up there operating the drone 24 hours a day 'cause he never sleeps. He's always manipulating something.

Mr Burke: There’s no doubt that Kevin has been engaging in undermining of the Government for more than a year now.

Reporter: To this day, he denies it.


David Koch, Sunrise Presenter: Yeah, but behind the scenes you can categorically guarantee you did not leak anything or your staff in the lead-up to the 2010 election?

Mr Rudd: We did nothing of that sort. It's very easy for people to run around and make those accusations. You know that as well as I do.

Reporter: [BH] is one of Kevin Rudd's closest advisors. Many caucus members blame Kevin Rudd for the cabinet leaks during the 2010 election campaign. Is that a main part of the reason why he lost today?

BH: No, I don't think that was the reason. I think a lot of people who were involved in his removal in 2010 became very agitated at the prospect of his return and went out and publicly attacked him in a way that really forced him to resign.

Reporter: In the Foreign Affairs portfolio the former Prime Minister found a high-profile, high-flying job and he used it to his advantage. But his performance in the role often raised eyebrows. When the world was focused on London's Royal wedding, he was there, convening a meeting of the Commonwealth Ministerial Action Group.

David Koch: Kevin Rudd, good to see you mate.

Mr Rudd: Look after yourself, enjoy the wedding, and all the world loves a lover.

Reporter: His colleagues at home saw it as an attention-seeking stunt designed to trump the Prime Minister's own appearance later that week.

Mr Rudd (on stage at the End Polio concert): I sing like a cow.

Reporter: At last November's Commonwealth Heads of Government Meeting, Kevin Rudd was again conspicuous.

Mr Rudd (on stage): We ... can ... eliminate ... polio ... from the planet!

Reporter: 7.30 can provide a glimpse of the behind-the-scenes lobbying underway that week. Mr Rudd's chief of staff [PG] met several business leaders on the sidelines of the summit. He reassured them that a future Rudd government ‘would not revisit past issues’ with business. It would ‘let bygones be bygones’. They were told that Kevin Rudd was being ‘practical and moving forward’, that ‘old arguments’ over workplace laws, emissions trading and the mining tax would ‘not be fought again’.

The Prime Minister: We follow it simply because we are us.

Reporter: Labor's national conference provided another flashpoint as leadership tensions grew. Julia Gillard's speech pointedly ignored her predecessor. Later that night in a Darling Harbour restaurant, Kevin Rudd ridiculed the speech to a table of journalists. He complained of being air-brushed from history and scorned the ‘We are us’ refrain. For many, the encounter confirmed what others believed they saw earlier that year at the Stag Hotel: a former leader intent on getting his job back. There, he's accused of calling Julia Gillard a ‘childless, atheist ex-Communist’.

Ms Ellis: I certainly was one of the many, many people who saw that behaviour that night. But I would say: this is about being honest with the community.

Mr Rudd: That's not true. What other people may choose to reflect on in those conversations is a matter for them.

Reporter: Today some of Kevin Rudd's team believe caucus made the wrong decision.


BH: Clearly there's a disconnect between public opinion and caucus opinion. And caucus is just going to have to deal with that disconnect now and make sure that Julia Gillard really does start to be seen as the leader that the public want.

Reporter: Is that possible?

BH: Oh, I think it is, but it'll be hard. It's going to be much harder than if Kevin Rudd had been leader.

Reporter: But does the rumoured two-stage strategy still exist? In his campaign, Kevin Rudd is known to have briefed a handful of journalists on his intentions to challenge not once, but twice.

Mr Danby: The thing with the journalists is the most obvious smoking gun, and until it's denied, this is really very serious evidence of undermining of a Prime Minister and a Labor government.

Reporter: It seems fairly clear now that Kevin Rudd has been briefing journalists, that in those briefings he told them that there is a two-step strategy: challenge once and lose, and then come back and challenge again. Is that the path that he is likely to follow?

BH: Well I think he's given a very clear undertaking both before the ballot and since then that that's going to end now. There's not going to be a two-stage approach. He's been out there and said he's not going to challenge again and I think we can believe him with that.

Presenter: [The Reporter] with that report.


Appendix BConsiderations which the ACMA has regard to in assessing whether or not broadcast material is factual in character The primary consideration is whether, according to the natural and ordinary meaning of

the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion. In that regard, the relevant statement must be evaluated in its context, i.e. contextual

indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.


Appendix CComplainant’s submissionsThe complainant submitted in her email to the ABC of 29 February 2012 that:

1. Claims relating to events at the Adelaide Fringe Festival

[…]

At the beginning of the package, it is claimed that according to those who were there, it was in fact one of the many places Kevin Rudd was seen and heard plotting his revenge.

Later, at approx. 5.50 in the package, ‘that behaviour’ is described in the following terms: what others believed they saw earlier that year at the Stag Hotel: a former leader intent on getting his job back. There, he's accused of calling Julia Gillard a "childless, atheist ex-Communist".

This piece includes Ms Ellis comments, I certainly was one of the many, many people who saw that behaviour that night. But I would say: this is about being honest with the community.

Basis for complaint: 7.30 did not contact the Foreign Minister’s Office prior to the airing of the story to discuss these allegations. 7.30 did not contact the Advisor who was the Minister that night. They did not contact Mr Rann and his wife, who had invited Mr Rudd to the event, and with whom he spent the evening.

Had these contacts been made, each of these people would advise that they witnessed none of the claims made in the program, even though they were with him throughout the evening. The piece uses Ms Ellis’ comments about “that behaviour” without clarification, and despite the fact Ms Ellis herself has not claimed to have spoken to Mr Rudd during the evening, or heard the alleged conversation.

2. Claims about photographs of the Prime Minister’s Office

The second allegation claims that Mr Rudd’s plans to challenge the leadership were so instantaneous that staff in his office took care to photograph the place before leaving so they’d know how to set it up on Kevin Rudd’s return. This is presented as fact.

Basis for complaint: There is no truth to the claim. The allegation was not put to Mr Rudd, nor I believe his staff, prior to the airing of the program. In fact, in the short period between Mr Rudd’s loss of the leadership and departure from the office (Mr Rudd’s senior staff left the office on the morning of 24 June), staff were consumed by the effort to pack up the office, as well as dealing with the distress of their colleagues. There was little time for activities other than basic pack-up, not least because the new Prime Minister’s staff visited the office that same morning to identify the desks and offices they wished to occupy. All photographs that I personally am aware of having being taken were mementos of serving the outgoing Prime Minister.

3. Claims of an extensive leaking and destabilisation campaign

The program contains a number of allegations without evidence that Mr Rudd ran a comprehensive destabilisation campaign over a long period of time.

Basis for complaint: This office was not approached to respond to the claims of an extensive leaking and government destabilisation campaign. Nor is a response from Mr Rudd reflected in the program. These claims are very serious and highly contested in the public debate. But the package presents them as unchallenged.

4. Claim Mr Rudd used the Foreign Affairs portfolio ‘to his advantage’

[…]

4(a) The allegation regarding the timing of CMAG was not put to the office. There is no truth to the claim that the SMAG meeting was timed to coincide with the Royal Wedding.


In fact, the CMAG meeting was timed to fit with Mr Rudd’s visit to Villers-Bretonneux for the ANZAC Day commemoration and a bilateral visit to France…This timing was also convenient for other members of CMAG because many Commonwealth delegations were in London at the time. The Foreign Minister’s Office consulted with the High Commission in London to ensure that the CMAG obligation and the Royal Wedding arrangements would not give rise to complications and were advised that they would not. His travel to London for CMAG was approved in the normal way by the Prime Minister’s Office.

There is no truth to the claim that Mr Rudd sought to use his presence in London to “trump” the Prime Minister’s attendance at the Royal Wedding. In fact, Mr Rudd conducted just one interview (with Sunrise) in relation to the wedding prior to the PMs arrival, notwithstanding multiple media requests from many outlets. The single interview was conducted with the express approval of the Prime Minister’s Office.

4(b) The allegation that Mr Rudd did the very barest media that would normally be required of the hosting Foreign Minister of the Pre-CHOGM Foreign Ministers’ Meeting. Despite numerous requests from news outlets attending CHOGM, both domestic and international, Mr Rudd conducted no interviews. He undertook a number of short press conferences approved by, and requested by, the CHOGM Taskforce and inserted in the CHOGM programs well in advance of the event.

With the full knowledge and approval of the Prime Minister’s office and the CHOGM Taskforce, the Minister also conducted a background briefing with the Australian journalists attending CHOGM to take them through the progress of the Pre-CHOGM Foreign Minister’s Meeting. Through the use of footage in [the reporter’s] package, the implication was that it was Mr Rudd’s appearance at an End Polio concert which was somehow designed to be ‘conspicuous’.

Mr Rudd was one of more than 18 politicians invited to the concert. The Foreign Minister’s portfolio deals directly with the issue of tackling polio world-side and as part of the Government’s engagement with the event, the Prime Minister had also sent a video message played earlier in the evening at the concert to foreshadow an announcement of additional ausAID funds for the eradication of polio.

Mr Rudd’s office did not alert the Minister’s 10pm appearance at the concert to the media, nor did the media attend the event. The coverage of the event came about as the result of a CHOGM camera and feed.

4(c) The allegation that [PG] met business representatives and briefed them on the implications of the return of a Rudd Government was put to the Foreign Minister’s office by email at 5.42pm on the event of program aired.

The story ran without any attribution of the course of the allegation or the office’s denial. The reality is [PG] was completely occupied during CHOGM by the intensive diplomatic demands of the event. He has no meetings with any business representatives. Far from seeking out business figures, he did not even attend the CHOGM Business Forum.

[PG] did attend an African Mining Breakfast in order to support Mr Rudd’s role as keynote speaker. [PG] indicated to mining representatives at his table that the mining industry should understand Mr Rudd was ready to have constructive dealings with the industry as Foreign Minister. The African Mining Breakfast and mining development announcements were demonstration of that. At no time did [PG] refer to the idea of a return of a Rudd Government. This is the only interaction with business representatives during CHOGM recalled by [PG].

5. Claim that Mr Rudd ridiculed the PM’s National Conference Speech

The fifth allegation is that Mr Rudd ridiculed the PM’s speech to journalists at the ALP National Conference, This is presented as fact.


Basis for Complaint: Mr Rudd has not denied that a brief, friendly chat with journalists took place on night during the conference, when they called him over to their table as he was walking by. He does deny the way that conversation has been misrepresented and characterised. It was a humorous conversation, led by the journalists. Mr Rudd was not angry or ‘briefing’ the journalists. He is response when asked about the event by Laurie Oaks on Sunday 26th February 2012 was:

Now I’m not going to say that I necessarily would have given the speech a huge, ringing endorsement, but can I just say that, as described – including other more colourful descriptions of that encounter with journalists – it’s somewhat more complex than that, I’ve got to say.

This explanation of that reported event was not reflected in the 7.30 Report package. It should also be noted, in terms of undermining or upstaging, that Mr Rudd did not, despite many requests, conduct any interviews during ALP National Conference. In addition, he went to some lengths to enter and exit the centre without media attention where possible.

6. Claim that Mr Rudd briefed journalists on his alleged strategy to reclaim the position of Prime Minister

This allegation was not put to the office. Mr Rudd denies having briefed journalists on a “leadership strategy”. Mr Rudd’s denials were not included in the package.

[…]


Appendix DBroadcaster’s submissionsThe ABC submitted in its email response to the complainant of 26 April 2012 that:

7.30 has explained that the intention of the report was to review the campaign for the Labor Party leadership that Mr Rudd denies waging, covering the history of his actions and statements during the period between losing the leadership in June 2010 until the spill in February 2012.

I am advised by ABC News management that 7.30 has issued repeated invitations to Mr Rudd for an interview since the beginning of this year. They have all been declined. I understand the broad thrust of your complaint to be that the report presented allegations as fact and did not seek or carry a denial from Mr Rudd on each of the matters detailed. For the reasons set out below, your complaint about these matters have not been upheld. There are two points that I feel it is important to make at the outset.

The first is that Mr Rudd’s denial of the core of the story – that is, that he was waging a campaign for the Labor Party leadership – was prominently noted at the introduction to the report. The second is that the program was, for the most part, not making new allegations but recapping a series of allegations that had previously been made and which Mr Rudd had previously responded to on numerous occasions. Two of these public record denials were included in the program, in addition to [BH’s] denial, effectively on Mr Rudd’s behalf, of a two-step strategy to re-assume the leadership.

(1) 7.30 acknowledges that Kevin Rudd has publicly denied the alleged events at the Stag Hotel and that denial was included in the broadcast:

Reporter: …For many, the encounter confirmed what others believed they saw earlier that year at the Stag Hotel: a former leader intent on getting his job back. There, he's accused of calling Julia Gillard a "childless, atheist ex-Communist".

Kate Ellis: I certainly was one of the many, many people who saw that behaviour that night. But I would say: this is about being honest with the community.

Kevin Rudd: That's not true. What other people may choose to reflect on in those conversations is a matter for them.

Audience and Consumer Affairs is satisfied that the allegations of Mr Rudd’s behaviour are newsworthy and a matter of public interest. The claims were clearly presented as allegations, they were attributed, and immediately followed in the report by Mr Rudd’s denial.

Given that Mr Rudd’s categorical denial of the claims was publicly available and included in the report, we cannot agree that there was any editorial requirement for the program to contact Mr Rudd or his office on this specific issue.

I am advised by the ABC News Management that 7.30 contacted Mr Rann on two separate occasions seeking his view on the matter. He declined to comment. 7.30 is not aware there was an advisor present with Mr Rudd on the night in question and did not consider it appropriate to contact Mr Rann’s wife on this issue.

The ABC understands that Kate Ellis was present on the night in question and has gone on record to note her “disgust” at the disloyalty Mr Rudd showed to the Prime Minister on the night in question, declaring that “I know for a fact that he was talking down the Prime Minster” and that “He was telling anyone who would listen that it was his mission, that he was going to get his revenge and come back”.

We are satisfied that she represented a principal relevant perspective, that the allegations were clearly attributed and that Mr Rudd’s denial was suitably prominent in the report.


Audience and Consumer Affairs have concluded that the program’s treatment of this issue was in keeping with the accuracy, impartiality and fair and honest dealing standards in sections 2, 4 and 5 of the ABC Editorial Policies. The issue is highly newsworthy, the program made reasonable efforts to seek and include the principal relevant perspectives on the issue and no one version of the events at the Stag Hotel was unduly favoured over another.

(2) I am advised by ABC News Management that 7.30 relied on a highly placed and highly reliable source for the information about Mr Rudd’s staff photographing his office.

Audience and Consumer Affairs acknowledges that anonymous sources exercise the power of widespread disclosure of information without having to share the responsibility for its reliability and for the consequences of its disclosure. That responsibility lies with the ABC. When the ABC carried unattributed information it is, in effect, vouching for the information to its audience. The ABC is asking it audience to take the information on trust and is investing its own credibility in the material. After careful consideration by the program’s senior editorial staff and adherence to the mandatory upward referral guidelines relating to the use of anonymous sources, 7.30 satisfied itself that the information was accurate and could be reported as fact.

We cannot agree that there was an editorial requirement for the program to include Mr Rudd’s denial of events that the program had made reasonable efforts to ensure had actually occurred. The program has confirmed that the quality of the source, and their close proximity to the event concerned, allowed it to be satisfied of the accuracy of the statement.

Nonetheless, the positioning of the statement within the report associated it with the view of Mr Rudd’s enemies in the party who believed his decision to start “planning a resurrection” was instantaneous. As previously noted, Mr Rudd’s denial that he was engaged in a campaign to resume the leadership of the party had been reported in the opening words of the item.

Audience and Consumer Affairs has concluded that the program gave due consideration to the fair and honest dealing standards in sections 5.3 and 5.5 of the ABC Editorial Policies in broadcasting the statement regarding the photographing of Mr Rudd’s former office. We have concluded that this aspect of the report is also in keeping with the accuracy standards in section 4 of the ABC Editorial Policies.

(3) The allegations that Mr Rudd leaked against Ms Gillard have been covered extensively by the ABC since 2010.

Mr Rudd is on record denying the allegation and that denial was prominent in the report. We cannot agree with your claim that a response from Mr Rudd was not “reflected in the program”. Given the program included his clear denial, we cannot agree that there was any editorial requirement for the program to seek his views on this specific matter:

Reporter: At the time, Kevin Rudd was suspected. In the past week, the suspicions have erupted into open accusations….To this day, he denies it.

David Koch, Sunrise Presenter: Yeah, but behind the scenes you can categorically guarantee you did not leak anything or your staff in the lead-up to the 2010 election?

Kevin Rudd: We did nothing of that sort. It's very easy for people to run around and make those accusations. You know that as well as I do.

Audience and Consumer Affairs has concluded that the claims of extensive leaking and destabilisation against the government are in keeping with the accuracy and impartiality standards in sections 2 and 4 of the ABC Editorial Policies.

(4) 7.30 is a news and current affairs program that provides context and analysis of current political issues. We believe it was reasonable for the reporter to note that “In the Foreign Affairs portfolio the former Prime Minister found a high-profile, high-flying job and he used it to his advantage”.


Given the focus of the report was Mr Rudd’s approach to attempting to re-assume the leadership of his party, we believe it is relevant to note that the position of Foreign Minister afforded him a good deal of exposure and that he used it to his advantage, such as his appearances on Sunrise to defend himself against accusations and criticism.

Audience and Consumer Affairs is satisfied that it was reasonable to state that Mr Rudd’s performance in the role often raised eyebrows, which was substantiated by the reporter’s reference to some of Mr Rudd’s colleagues questioning his appearance in London during the Royal Wedding.

The program did not state that Mr Rudd convened the Commonwealth Ministerial Action Group meeting to coincide with the Royal Wedding. The program accurately stated that “When the world was focused on London's Royal wedding, he was there, convening a meeting of the Commonwealth Ministerial Action Group”. The reporter then noted how some of Mr Rudd’s colleagues had interpreted his presence in London, and criticised him for seeking to upstage the Prime Minister.

Audience and Consumer Affairs Cannot agree that there was an editorial requirement to seek Mr Rudd’s view on the interpretation of some of his colleagues regarding his attendance in London.

It is a self-evident statement of fact that Mr Rudd was conspicuous at the Commonwealth Heads of Government meeting. His appearance at the End Polio concert demonstrated this, attracting widespread media coverage in Australia. At no stage did the reporter state that Mr Rudd had “designed” his appearance at the concert to be conspicuous. He was making the obvious point that Mr Rudd maintained a high profile, and that the level of exposure he receive was criticised by some of his colleagues who questioned his motives.

I am advised by ABC News Management that 7.30 relied on a highly placed and highly reliable source for the information about [PG’s]’s entreaties on behalf of Mr Rudd at the Commonwealth Head of Government Meeting, with first-hand knowledge of the events in question.

After careful consideration by the program’s senior editorial staff and adherence to the mandatory upward referral guidelines relating to the use of anonymous sources, 7.30 is satisfied that the information was accurate and could be reported as fact.

The fact that the program contacted Mr Rudd’s office seeking a comment on this matter does not mean that it had an editorial requirement to report the denial provided in response.

The program has explained that it chose not to include the denial based on the strength and credibility of the information provided by its source, the claims did not relate to Mr Rudd’s own conduct or actions, and it did not believe the denial was conclusive.

The program made reasonable efforts to ensure that the actions attributed to [PG] actually occurred. The program has confirmed that the quality of the source, and their close proximity to the events concerned, allowed it to be satisfied of the accuracy of the statement. The program did not state that the meetings were formal, pre-arranged diarised meetings.

Audience and Consumer Affairs has concluded that these aspects of the report were in keeping with the accuracy and fair and honest dealing standards in sections 4 and 5 of the ABC Code of Practice.

(5) ABC news advises that several journalists present at the restaurant have confirmed the details of Mr Rudd’s criticism of the Prime Minister’s National Conference speech, despite Mr Rudd’s denial.

The program satisfied itself that its characterisation of Mr Rudd’s review of the Prime Minister’s speech was consistent with the published accounts of those present. As you have noted, Mr Rudd confirmed to Laurie Oakes that he had not exactly given the speech a “huge, ringing endorsement”, implicitly confirming that he had criticised it.


Audience and Consumer Affairs has concluded that the statement that Mr Rudd “ridiculed” the Prime Minister’s speech was in keeping with the accuracy standards in section 4 of the ABC Code of Practice.

(6) 7.30 and a number of its journalistic peers have direct, first-hand knowledge of the fact that Mr Rudd did in fact brief journalists on a leadership strategy, despite his repeated public denials.

The program put Mr Rudd’s leadership strategy to [BH] for comment and his response was included in the report, as was Mr Rudd’s denial that he was seeking to destabilise the government.

This approach was in keeping with the ABC’ editorial standards. I am advised by the program’s producer that during her telephone conversation with you, she extended an invitation to Mr Rudd to rebut any of the claims made in the report and to allow him to state his views on the issues raised in the report at any time that was convenient. This invitation was declined.

Audience and Consumer Affairs has concluded the reporter’s analysis; that Mr Rudd had been briefing reporters about his intentions to stage a two-step strategy to reassume the leadership, was backed by demonstrable evidence and was based on the reporter’s professional expertise and judgement, not on his personal opinions.

We are satisfied that the reporter’s assessment is in keeping with the accuracy and impartiality standards in sections 2 and 4 of the ABC Code of Practice.

[…]

In correspondence to the ACMA dated 28 November 2012, the ABC submitted the following to the ACMA (the ACMA notes that a considerable portion of this submission repeats the ABC’s response to the complainant of 26 April 2012):

Standards 2.1 and 2.2 of the Code

The ABC notes ACMA’s request for “any material that would go towards proving the accuracy of the above statements”. It is important to note that the ABC’s standards do not require ‘proof’ or absolute accuracy; rather, the standards require that “reasonable efforts” are made to ensure that material facts are accurate and in context. Further, the assessment of adherence to the standards should be seen in the context of the type of report under review and the conditions under which any particular report was produced.

Political reporting presents particular challenges to journalists and leadership challenges more so than many other types of story. Reporters must routinely weigh contradictory accounts of events, making judgements about the motivation and credibility of sources and the plausibility of narratives. When primary sources speak on the record about subjects such as leadership challenges it is not uncommon for them to dissemble. It is further complicated by the fact that information is routinely communicated through surrogates such as paid advisors and factional allies who are secondary rather than primary sources. Sources, both primary and secondary, frequently demand strict confidentiality. Summaries of events, therefore, can be accumulations of on and off-the-record briefings and published accounts and stories, which themselves may be disputed.

In practice, to produce political stories that satisfy viewers’ legitimate expectation for an accurate account of events, reporters often cannot prove whether a particular event occurred the way sources describe, but must present conflicting versions, with appropriate context. This allows the audience to make their own judgment on the relative credibility of the claims and counter claims made.

This story is an example of the appropriate way to report on an issue where many basic facts and allegations are fiercely disputed.



The claims against Mr Rudd regarding events at The Stag Hotel were clearly presented as allegations, and were properly attributed and contextualised. The ABC understands that Kate Ellis was present on the night in question and went on record to note her “disgust” at the disloyalty Mr Rudd showed to the Prime Minister on the night in question. The allegations were immediately followed in the report by Mr Rudd’s categorical denial.

This approach was in keeping with the ABC’s accuracy standards; the claims were presented as allegations not material facts; and the allegations were properly contextualised by attributing the claims and including Mr Rudd’s denial.

2. Claims about photographs of the Prime Minister’s office

7.30 relied on a highly placed and highly reliable source for the information about Mr Rudd’s staff photographing his office. The program has confirmed that the quality of the source, and their close proximity to the events concerned, allowed it to be satisfied of the accuracy of the statement. After careful consideration by the program’s senior editorial staff and adherence to the mandatory upward referral guidelines relating to the use of anonymous sources, 7.30 satisfied itself that the information was accurate and could be reported as fact.

The program made reasonable efforts to ensure the accuracy of the statement that “…staff in his office took care to photograph the place before leaving so they'd know how to set it up on Kevin Rudd's return”; in keeping with the ABC’s accuracy standards.


The accusations of leaking by Mr Rudd were presented as allegations which were properly contextualised by the attribution of the claims and the inclusion of Mr Rudd’s denial. For example, accusations from Simon Crean and Tony Burke were presented, together with a clear denial from Mr Rudd that neither he nor his staff had leaked information during the 2010 election. This approach was in keeping with the ABC’s accuracy standards; the claims were presented as allegations not material facts; and the allegations were properly contextualised by attributing the claims and including a denial from Mr Rudd.

4. Claim Mr Rudd used the foreign affairs portfolio “to his advantage”, including:

- That he convened a meeting of the Commonwealth Ministerial Action Group at the time of the royal wedding, to trump the PM’s own appearance later that week;

The reporter stated: When the world was focused on London's Royal wedding, he was there, convening a meeting of the Commonwealth Ministerial Action Group. His colleagues at home saw it as an attention-seeking stunt designed to trump the Prime Minister's own appearance later that week.

The story did not suggest that Mr Rudd had timed CMAG to coincide with the royal wedding, but rather that ‘he was there, convening a meeting’. It was not reported as fact that this was to ‘trump’ the Prime Minister, but rather that this was the way it was seen by his colleagues at home.

- That he was “conspicuous” at the Commonwealth Heads of Government Meeting (CHOGM);

It is a self evident statement of fact that Mr Rudd was conspicuous at the Commonwealth Heads of Government Meeting (CHOGM).

Mr Rudd’s attendance at CHOGM attracted extensive media coverage, for instance:

www.dailytelegraph.com.au/archive/national-old/kevin-rudd-steals-centre-stage-as-chogm-threatens-to-implode/story-e6freuzr-1226176712205

www.abc.net.au/news/2011-10-24/rudd-urges-chogm-to-take-action-on-malnutrition/3597726

www.abc.net.au/pm/content/2011/s3348710.htm


http://www.abc.net.au/pm/content/2011/s3348710.htm

http://www.abc.net.au/news/2011-10-24/rudd-urges-chogm-to-take-action-on-malnutrition/3597726

http://www.dailytelegraph.com.au/archive/national-old/kevin-rudd-steals-centre-stage-as-chogm-threatens-to-implode/story-e6freuzr-1226176712205

http://www.dailytelegraph.com.au/archive/national-old/kevin-rudd-steals-centre-stage-as-chogm-threatens-to-implode/story-e6freuzr-1226176712205

www.theage.com.au/opinion/politics/gillards-the-organised-one-but-rudd-grabs-chance-to-strut-20111027-1mm1b.html

Further, Mr Rudd addressed a crowd of thousands at the End of Polio concert while attending the Commonwealth Heads of Government, which was also widely reported in the media, for example:

http://media.smh.com.au/news/national-times/rudd-can-you-bring-my-voice-back-2738801.html

www.smh.com.au/national/julie-bishop-calls-rudd-a-tosser-20111101-1mtbr.html

www.perthnow.com.au/entertainment/perth-confidential/k-rudd-a-dud-of-a-singer/story-e6frg30l-1226180368765

- That his chief of staff [PG] met several business leaders on the sidelines of the summit to reassure them that a future Rudd government would not revisit past issues with business, would “let bygones be bygones”.

7.30 relied on a highly placed and highly reliable source for the information about [PG’s] entreaties on behalf of Mr Rudd at the Commonwealth Heads of Government Meeting, with first-hand knowledge of the events in question. After careful consideration by the program’s senior editorial staff and adherence to the mandatory upward referral guidelines relating to the use of anonymous sources, 7.30 satisfied itself that the information was accurate and could be reported as fact.

The program made reasonable efforts to ensure the accuracy of the statement “… Mr Rudd's chief of staff [PG] met several business leaders on the sidelines of the summit ...”; in keeping with the ABC’s accuracy standards.

5. Claim that Mr Rudd ridiculed the Prime Minister’s national conference speech

ABC News advises that several journalists present at the restaurant have confirmed the details of Mr Rudd’s criticism of the Prime Minister’s National Conference speech, despite Mr Rudd’s denial. This incident had been previously reported, and the program satisfied itself that its characterisation of Mr Rudd’s review of the Prime Minister’s speech was consistent with the published accounts of those present. As the complainant noted, Mr Rudd confirmed to Laurie Oakes that he had not exactly given the speech a “huge, ringing endorsement”, implicitly confirming that he had criticised it.

The program made reasonable efforts to ensure the accuracy of the statement that Mr Rudd “ridiculed” the Prime Minister’s speech, in keeping with the ABC’s accuracy standards.


The story reports that Mr Rudd was “known” to have briefed a number of journalists on his intentions to challenge for leadership twice. 7.30 and a number of its journalistic peers have direct, first-hand knowledge of the fact that Mr Rudd did brief journalists on a leadership strategy, despite his repeated public denials. For instance: www.abc.net.au/news/2012-02-17/cassidy-leadership-tussle/3834486

The program made reasonable efforts to ensure the accuracy of this statement, in keeping with ABC standards.

Standard 4.1 of the Code

Issues relating to a challenge to the leadership of the Prime Minister are clearly highly newsworthy. This report sought to recap on allegations and events which were central to a fundamental disagreement between Mr Rudd and other members of the Government; whether Mr Rudd had been organising and agitating for a leadership challenge in the months before February 2012.


http://www.abc.net.au/news/2012-02-17/cassidy-leadership-tussle/3834486

http://www.abc.net.au/news/2012-02-17/cassidy-leadership-tussle/3834486

http://www.perthnow.com.au/entertainment/perth-confidential/k-rudd-a-dud-of-a-singer/story-e6frg30l-1226180368765

http://www.perthnow.com.au/entertainment/perth-confidential/k-rudd-a-dud-of-a-singer/story-e6frg30l-1226180368765

http://www.smh.com.au/national/julie-bishop-calls-rudd-a-tosser-20111101-1mtbr.html

http://media.smh.com.au/news/national-times/rudd-can-you-bring-my-voice-back-2738801.html

http://www.theage.com.au/opinion/politics/gillards-the-organised-one-but-rudd-grabs-chance-to-strut-20111027-1mm1b.html

http://www.theage.com.au/opinion/politics/gillards-the-organised-one-but-rudd-grabs-chance-to-strut-20111027-1mm1b.html

As explained above, 7.30 had actively and repeatedly sought an interview with Mr Rudd; all interview requests were declined. The program actively sourced and presented rebuttals to allegations from Mr Rudd and his adviser [BH]. Further, the program sought and featured an interview with Anthony Albanese, Leader of the House and a supporter of Mr Rudd, which aired on the same evening of the report in question. The program was demonstrably and clearly in keeping with the requirement to “Gather and present news and information with due impartiality”.


When assessing fair opportunity to respond regarding the allegations in this report is important to note that;

- Mr Rudd’s denial of the core of the story – that is, that he was waging a campaign for the Labor Party leadership – was noted in the introduction to the report.

- 7.30 had issued repeated invitations to Mr Rudd for an interview since the beginning of the year. This included email exchanges between the program and the complainant ... on 20 and 24 February explicitly requesting an interview with Mr Rudd. All interview requests were declined. Further, following broadcast, the program was contacted by the complainant who raised concerns about the report. Again Mr Rudd was invited – at any time – to come on the program and rebut any of the allegations made; again that invitation was declined.

- For the most part, the report was not making new allegations but recapping a series of allegations that had previously been made and which Mr Rudd had previously responded to on numerous occasions. Two of these public record denials were included in the program, in addition to [BH’s] denial, effectively on Mr Rudd’s behalf, of a two-step strategy to re-assume the leadership. It is not necessary, particularly with a largely retrospective story of this nature, to provide another opportunity to respond to allegations when a previous rebuttal is already on the public record.

On the specific points 1-6:


A response from Mr Rudd was included in the report.

2. Claims about photographs of the Prime Minister’s office

The program satisfied itself that it was accurate to state: "that staff in his (Mr Rudd’s) office took care to photograph the place before leaving so they'd know how to set it up on Kevin Rudd's return.” There is no editorial requirement for the program to include Mr Rudd’s denial of an event that the program had made reasonable efforts to ensure had actually occurred. The incident was related to illustrate the view of those in the ALP who believed his decision to start “planning a resurrection” was instantaneous; importantly Mr Rudd’s denial that he was engaged in a campaign to resume the leadership of the party had been reported in the opening words of the item.


A response from Mr Rudd was included in the report.

4. Claim Mr Rudd used the foreign affairs portfolio “to his advantage”, including:

- That he convened a meeting of the Commonwealth Ministerial Action Group at the time of the royal wedding, to trump the PM’s own appearance later that week;

There was no editorial requirement to seek Mr Rudd’s view on the interpretations some of his colleagues made regarding his attendance in London; their interpretations do not amount to an ‘allegation’ requiring response.


- That he was “conspicuous” at the Commonwealth Heads of Government Meeting (CHOGM);

This is a self evident fact, not an ‘allegation’ requiring a response.

- That his chief of staff [PG] met several business leaders on the sidelines of the summit to reassure them that a future Rudd government would not revisit past issues with business, would “let bygones be bygones”.

As explained above, 7.30 satisfied itself that this information was accurate and could be reported as fact.

As explained to the complainant, the fact that the program contacted Mr Rudd’s office seeking a comment on this matter does not mean that it had an editorial requirement to report the denial provided in response. The program has explained that it chose not to include the denial based on the strength and credibility of the information provided by its source, the claims did not relate to Mr Rudd’s own conduct or actions, and it did not believe the denial was in any way conclusive.

5. Claim that Mr Rudd ridiculed the Prime Minister’s national conference speech

As explained above, 7.30 satisfied itself that this information was accurate and could be reported as fact, rather than as an allegation requiring a specific response from Mr Rudd.


A response from Mr Rudd’s adviser [BH] was included in the report.


As explained to the complainant, the ABC acknowledges that anonymous sources exercise the power of widespread disclosure of information without having to share the responsibility for its reliability and for the consequences of its disclosure. That responsibility lies with the ABC. When the ABC carries unattributed information it is, in effect, vouching for the information to its audience. The ABC is asking its audience to take the information on trust and is investing its own credibility in the material. After careful consideration by the program’s senior editorial staff 7.30 satisfied itself that information provided by anonymous sources on points (2) and (4, in relation to [PG]) as above were newsworthy and accurate and should be reported as fact, and without attribution to the source. This approach is in keeping with 5.4, which states that journalists should “aim” to attribute information; it is not mandatory and it recognises that at times if the source of the information were to be revealed they may be at risk of various types of harm such as harm to reputation or livelihood.


Appendix E

Considerations which the ACMA has regard to in assessing the ABC’s compliance with standard 4.1 of the ABC Code of Practice 2011

In determining whether or not material complained of is compliant with the ABC’s obligations under standard 4.1 of the Code, the ACMA generally has regard to the following considerations:

The meaning conveyed by the relevant material is assessed according to what an ordinary reasonable viewer (as to which, see pages 2-3 of this report) would have understood the program concerned to have conveyed.

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgement, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast. In this regard:

o The ACMA applies the ordinary English meaning of the word ‘impartial’ in interpreting the Code. The Macquarie Dictionary (Fifth Edition)6 defines ‘impartial’ as: ‘not partial; unbiased; just’. It defines ‘partial’ to include: ‘biased or prejudiced in favour of a person, group, side, etc., as in a controversy’. ‘Bias’ is defined as: ‘a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question’.

o The ACMA considers that a helpful explanation of the ordinary English usage of the term ‘bias’ is set out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng7 as follows:

‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’.8 It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgement. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘anything which turns a man to a particular course, or gives the direction to his measures’.

The relevant provision requires the ABC to ‘gather and present news and information with due impartiality’. Inclusion of the word ‘due’ indicates an element of flexibility depending on the particular context: for example, the gathering and presentation of factual information for a news bulletin may be materially different from an interview of a political figure, where challenging questions are ordinarily appropriate.

A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of the Code has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

6 Online edition at www.macquariedictionary.com.au7 (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing.8 Oxford English Dictionary (Second Edition), meaning 3(a).


http://www.macquariedictionary.com.au/

Presenters and reporters can play a key role in setting the tone of a program through their style and choice of language. The manner in which a report is presented or reported can influence the conclusions that an ordinary reasonable viewer would draw from a broadcast.

The nature of current affairs reporting requires reporters and presenters to be questioning, and at times sceptical, in their analysis of important issues. However, while probing and challenging questions may be used to explore an issue, programs must demonstrate a willingness to include alternative perspectives without prejudgement.


Appendix F

ABC Guidance Note – Fair Opportunity to RespondIssued: 12 December 2011

Status of Guidance Note

This Guidance Note, authorised by the Managing Director, is provided to assist interpretation of the Editorial Policies to which the Guidance Note relates. The Editorial Policies contain the standards enforceable under the ABC’s internal management processes and under the ABC’s complaints handling procedures.

It is expected the advice contained in Guidance Notes will normally be followed. In a given situation there may be good reasons to depart from the advice. This is permissible so long as the standards of the Editorial Policies are met. In such situations, the matter should ordinarily be referred upwards. Any mandatory referrals specified in Guidance Notes must be complied with.

[...]

Scope

The ‘Note on Interpretation’ at the outset of the Editorial Policies – Principles and Standards draws attention to the need to apply standards with due regard for the nature of the content under consideration in particular cases. Section 5.3 applies to news and current affairs and other types of factual content, such as documentaries.

The focus of this Guidance Note is on the provision of a fair opportunity to respond prior to disclosure of allegations. When allegations are made during live content it is necessary to consider offering an opportunity to respond in the ordinary course of ongoing coverage (see below ‘What if allegations are made in a live broadcast?’).

This Guidance Note does not apply to –

content that is found to be flawed after broadcast or publication and an opportunity to respond is provided as part of the editorial remedy; or

content genres in which the provision of an opportunity to respond is not a recognised standard – criticism and review of artistic works is one example; comedy and satire is another.

The editorial standard in section 5.3 should not be taken to change the usual conventions for fair reporting of courts, commissions of inquiry and other proceedings in which the person who is the subject of allegations has an opportunity in due course to respond in those proceedings.

Why the requirement to provide a fair opportunity to respond?

In the course of fulfilling its statutory duty to provide independent news and information, the ABC reports allegations including about action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or anti-social. To make such disclosures in the public interest is a core function of the media in a free society.

One of the recognised standards of journalism is the provision of an opportunity to respond to allegations. It is fundamental to fairness. Providing an appropriate opportunity to respond to allegations – and adequately and fairly including that response in the story – can also make the difference between having or not having a defence in some legal contexts. For example,


the law may excuse defamatory material which cannot be proved to be true if, among other things, the broadcaster made a reasonable attempt to obtain and present a response from the person who claims to have been defamed.

Seeking a response can help to achieve accuracy by providing an opportunity for errors to be identified and misunderstandings to be clarified.

Obtaining a response can also contribute to the quality of a piece of journalism by enriching the detail, sharpening the point or opening fresh angles of enquiry.

How much information should be given to the respondent?

The opportunity is more likely to be regarded as fair if you err on the side of clarity and precision rather than be vague and broad about what is being alleged and the basis for it.

Provide sufficient information to allow the person or organisation to understand the allegation and its basis. It is not usually enough to tell the person that you wish to talk to them about some general topic. Even if you believe the person is familiar with the allegations already, you should not assume that and should set out the relevant information.

Subject to any specific need to keep the identity of a source confidential, it is preferable if the person is told the source of the allegations as that information may enable the person to provide a more detailed and effective response. Summaries should be accurate. In most cases there is no need to provide access to the raw material on which allegations are based.

Bear in mind the need to ensure practical protection of sources – see the Attribution / anonymity of sources Guidance Note.

[...]

Conveying the response to the audience

Once obtained, a response should be treated fairly and accurately. It may generate new angles of enquiry. The manner in which the response is conveyed to the audience is a matter of editorial discretion. A response need not necessarily appear in full or verbatim.

If the person provides a response, it is usually necessary for that response to be in the initial story and any other story reporting the same matters. This is particularly the case where the allegation is later the subject of a defamation or other legal action. It is usually irrelevant to the question of legal liability that the response was put in a subsequent story.

A response should be reported in such a way that a reasonable audience member would understand how the response that was received by the ABC addressed the allegations that were put to the subject of the allegations.

A response needs to be included in the story in appropriate detail and presented reasonably. Simply stating that the person ‘denies the allegations’ may not be sufficient if the person provided a more detailed response. For example –

o The more detailed and complex the allegations, the more likely that it will be necessary to include the person’s response in some detail so that the connection between the person’s response and the key issues involved is made clear to the audience.

o If a story contains an ‘attack’ on a person and the person’s response is reduced to one or two seemingly ‘obligatory’ or ‘throw away’ statements, or the response is presented sarcastically, it may appear that the audience is being led to give little or no weight to the person’s response. That may result in a court or complaints-handling


body concluding that the person’s response has not been adequately and fairly presented.

It is not advisable to present a person’s response and follow it with further material that throws doubt on the veracity of the person’s response.

What if no response can be obtained?

Some subjects of allegations avoid, ignore or decline opportunities to respond. They cannot, by withholding a response, control whether the ABC discloses information which may be adverse to them. Inability to obtain a response will not prevent the ABC from disclosing allegations where it is appropriate to do so.

Keep notes of unsuccessful efforts to provide opportunities to respond. When the allegations are broadcast or published, it is usually appropriate to let audiences know that efforts were made to get a response. It can boost credibility and engender trust. Give as much detail about the efforts as is editorially appropriate.

In some circumstances, there may be sufficient public interest in publishing quickly such that the person to whom allegations relate need not be afforded an opportunity to respond. This could happen, for example, where the public needs to be informed about a person for whom the police are searching and who is considered dangerous. However, such situations are rare and the story would need to be carefully worded.

More generally, legal advice should be obtained for all stories which may contain defamatory material or have other legal risks so that the risks can be assessed and discussed prior to publication.

In the rare circumstances in which it seems necessary for the ABC to report serious allegations without first seeking a response at all, it is mandatory to refer up and consult Legal.

Assessing ‘reasonable efforts’

Whether the efforts made are reasonable to provide a ‘fair opportunity to respond’ must be judged according to the particular circumstances of every case. Factors to consider include the following –

o The extent to which the person or organisation is the focus of the allegations –

Not every person or organisation mentioned in a story is affected to the same degree. The impact of allegations on some may be heavier than on others. This affects assessments about who ought to be provided with an opportunity to respond and, if so, what efforts are required to make the opportunity a fair one in the circumstances.

o The seriousness of the matter –

Efforts to provide an opportunity to respond should generally be commensurate with the seriousness of the allegation. A matter can be innately serious – for example, an allegation of high-level corruption. A matter can be serious because of its effects or implications, even though the core behaviour is not innately grave. For instance, a health official or police officer may act or not act through simple negligence, inadvertence, or a judgement call. But the effects of their decision may be such that the matter becomes serious.


Depending on the circumstances, variables which may be relevant in assessing ‘reasonable efforts’ in general or ‘seriousness’ in particular, include –

o The characteristics of the subject in light of the nature of the allegations –

To illustrate: is it a party of touring rock musicians or a conference of school principals which is accused of anti-social behaviour in a hotel?

o The age of the allegations or of their factual basis –

To illustrate: is the claim that the nominee for judicial office drove recklessly in his or her youth, or that he or she has been flouting the rules of the road more recently? Will certain allegations be just as serious for, say, a priest, no matter how old the allegations or their factual basis may be?

o The situation of the subject at the time the allegations are to be disclosed –

To illustrate: a claim that an MP never completes expenses-related paperwork has different implications depending on whether it is made in a story about the MP’s impending retirement or in a story two days prior to voting in a tight election in which the MP is standing in a marginal seat.

o The complexity of the matter –

The importance of a response tends to increase in proportion to the complexity of the allegations and their basis, simply because there is greater risk of misunderstanding or incorrect information. Complexity can include complicated facts, detailed or interweaving chronologies, multiple disputed recollections, incomplete or jargon-laden documentation, statistical data or interpretations by experts in specialised fields such as finance, science or law.

o The directness of the approach –

Directness is relevant in two senses. First, consider the need for efforts to make direct contact, as distinct from indirect contact, with the affected person, having regard to the extent of focus on them and the likely impact on them of disclosure of the allegations. Second, how direct, in the sense of up-front and clear, is the information provided to the affected person about what they are being asked to respond to?

[...]


Appendix G

ABC Guidance Note – Attribution/Anonymity of SourcesStatus of Guidance Note

This Guidance Note, authorised by the Managing Director, is provided to assist interpretation of the Editorial Policies to which the Guidance Note relates. Guidance notes provide advice to assist in the interpretation of the Editorial Policies, which contain the standards enforceable under the ABC’s internal management processes and under the ABC’s complaints handling procedures.

It is expected that staff will normally act in accordance with the advice contained in Guidance Notes. In a given situation there may be good reasons to depart from the advice. This is permissible so long as the standards of the Editorial Policies are met. In such situations, the matter should ordinarily be referred upwards. Any mandatory referrals specified in Guidance Notes must be complied with.

[...]

Mandatory referrals

The Editorial Standards require (at section 5.9) that an appropriately senior ABC person designated for the purpose must approve in advance, having consulted ABC Legal –

any proposal to broadcast or publish without attribution information that forms the basis of a report and the ABC is to be committed to protect the identity of the source of the information; or

any proposal not to honour an assurance given in relation to conditions of participation, use of content, confidentiality or anonymity.

It is mandatory to disclose a source’s identity, if sought, to an appropriately senior ABC person designated for the purpose.

Any proposal not to comply with a lawful order to disclose, or any proposal not to honour an assurance, must be referred to the responsible Divisional Director.

Presumption of attribution

Aim to attribute information to its source [Editorial Standard 5.4]

When media provide information without attribution, audience members are denied an opportunity to consider the source for themselves and to decide how much weight to give to the information in light of who the source is.

Through agreements with media professionals, anonymous sources exercise the power of widespread disclosure of information without having to share responsibility for its reliability and for consequences of its disclosure. That responsibility lies solely with the media professionals and the outlet through which their work is disseminated.

When the ABC carries unattributed information it is, in effect, vouching for the information to the audience. The ABC is asking its audience to take the information on trust and in that way the ABC is investing some of its own credibility in the material.

[...]


Other factors to consider

In negotiating with sources, also consider the following factors --

The public interest: Whether the disclosure of the information unattributed would serve a sufficiently important public interest.

Personal attack only?: Whether disclosure of the information unattributed would amount only to a personal attack made on another person by the source under cover of anonymity provided by you.

Timeliness: Whether the information can be obtained from an attributable source of comparable reliability for disclosure to occur within a time period that would allow the public interest to be adequately served.

Form of attribution: A form of attribution which, while preserving anonymity, would give the audience an opportunity to weigh the reliability of the information, at least to some extent. Phrases like ‘sources said’ are unhelpful. The following advice adapts the New York Times’ guidance on this point to the Australian context:

‘Australian diplomat’ is better than ‘Western diplomat’, which is better than ‘diplomat’. Still better is ‘an Australian diplomat who took part in the meeting’. The phrase ‘a person familiar with the case’ is vague enough to include the reporter. Better are ‘an executive from the plaintiff company’ and ‘a staff member who has read the draft’.

No misleading descriptors: Anonymity for the source requires an investment of trust in you by the audience (and your colleagues) as well as by the source. Do not say ‘sources’, plural, if there is only one source. Do not give false forms of attribution in order to throw people off the scent of the real source: for example, ‘a parliamentary source’ when actually the source works in a department of executive government. Such actions can undermine the story as a whole and may affect the subsequent willingness of others to invest trust.

Agreed limitations that take effect if circumstances change: Terms of agreement can be specific to what is appropriate to the circumstances of the case and can include agreed limitations to the anonymity. Limitations may include an express understanding between you and the source that if the disclosure of the information supplied by the source causes certain consequences, then the source waives the commitment to maintain anonymity.

Consequences that may lead to a source agreeing to come forward and be identified as the source may include --

o legal proceedings in which you and/or the ABC are lawfully compelled to provide information; or

o the establishment of a process under law, such as a royal commission or parliamentary inquiry, with the capacity to address the issue that the source was trying to bring to light through the media; or

o an investigation under law by an authority, such as a statutory anticorruption body, with the capacity to protect the source from adverse effects of being identified as the source.

[...]


Using unattributed information

An appropriately senior ABC person designated for the purpose must approve in advance, having consulted ABC Legal, any proposal ... to broadcast or publish without attribution information that forms the basis of a report and the ABC is to be committed to protect the identity of the source of the information [Editorial Standard 5.9(c)].This part attempts to ensure that the work of the staff member with the direct relationship with a source is tested through consultation with colleagues before the source’s information is disclosed by the ABC without attribution.

Upward referral before an anonymous source is used as the basis of a story has been a requirement of the News Division’s Style Guide for some years. It is a common feature of the published standards of many respected media outlets.

The practical effect of this section is to compel consultation that should, and often does, occur as a matter of course when disclosures of significance are being contemplated on the basis of information from an anonymous source.

First, the consultation among colleagues is a check on the natural tendency for journalists to get close to their contacts. They may develop an empathy that clouds their judgement. Colleagues, being at arm’s-length, can be more dispassionate. They bring their own knowledge and experience to methods of negotiation, analysis of sources’ motives, forms of attribution, reasonable limitations on commitments, and practical protection of sources.

[...]

Handling hard cases

Experience shows that in this context of source protection, ‘hard cases’ can and do happen from time to time. In such cases, basic values can clash and choices must be made between promise-keeping and another basic value such as truth-telling.

An appropriately senior ABC person designated for the purpose must approve in advance, having consulted ABC Legal, any proposal ... not to honour an assurance given in relation to conditions of participation, use of content, confidentiality or anonymity [Editorial Standard 5.9(d)].Where circumstances arise in which a decision needs to be made about whether to maintain a commitment to a source --

o it is mandatory to refer upwards to the Division’s Director;

o consult Legal;

o consider whether a release from some or all of the commitment can be negotiated with the source in light of circumstances that have developed since the original commitment was made;

o gather and verify the facts needed to make the decision;

o identify the competing values;

o analyse the impact of the various options and how to minimise foreseeable harm.

Having taken these steps, decide whether, in the circumstances, substantial advancement of the public interest or the risk of substantial harm to people justifies overriding promise-keeping in order to serve another basic value.

Explain the decision publicly.

[...]


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