The ABC published a new election coverage policy in January this year - Web Archive suggests it was published between 21 and 31 January. Julia Gillard announced the election on 30 January this year, with the polls to be held 14 September 2013. The proximity of the Gillard announcement to the ABC policy change gives rise to some reasonable questions - why the change and why now?
Here are the links to the ABC's old and new electoral coverage policies. And for completeness, here is a link to the relevant sections of the governing legislation, the AUSTRALIAN BROADCASTING CORPORATION ACT 1983.
The New Policy Header
The new policy explicity states that it's been approved by the ABC Board . While the new policy doesn't repudiate the older Fact Sheet, I'll presume that the explicit imprimatur of the Board and the later date (2013 v 2010) implies that it takes precedence. Just to confuse things, the older Fact Sheet is still online at the ABC website here.
The first sentence in each document is telling.
The new policy suggests that the Act delegates decisions over what gets covered to the ABC itself. The new policy deletes the words "subject to the act". It's a very important distinction and it is particularly relevant to this year's long lead-time election.
The New Policy includes this definition of "Election Period"- which was not in the old policy.
Section 79A of the Australian Broadcasting Corporation Act tells us
So the law says "Subject to this Act" and the Act goes on to define an "election period", it means:
(a) in relation to an election to the Legislative Council of Tasmania, or an ordinary election to the Legislative Assembly for the Australian Capital Territory--the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and
(i) the day on which the proposed polling day for the election is publicly announced; or
(ii) the day on which the writs for the election are issued;
whichever happens first, and ends at the close of the poll on the polling day for the election;
Public announcement of polling day, or issue of writs - whichever happens first.
There's nothing there about common sense. Just a law that applies equally to all political parties and the ABC.
This exchange from the Senate Estimates hearing took place on 11 February this year.
Mr Scott: Under section 79A of the Australian Broadcasting Corporation Act, the ABC may determine to the extent, and the manner in which, it will broadcast political matter. So the ABC has determined that the free broadcasting time shall be allocated to political parties during an election campaign for announcements of party policies. We have eligibility guidelines to this that are spelt out in the ABC board's policy statement. We have taken the decision that we will treat the election campaign period as running from the issuing of the writs to the close of polling. We believe it is within our rights under the act to take that approach.
Senator BIRMINGHAM: Have you received legal advice on that?
Mr Scott: No, we have not...
Mr Scott: Senator, I want to clarify something. My understanding is that we have not taken external legal advice on this matter, but this has been reviewed by our senior team and we are following the processes that we have traditionally followed in election coverage. And that seems the common-sense way.
Senator BIRMINGHAM: So it has been reviewed by your external lawyers?
Mr Scott: We have looked at the act and we have decided that to operate in the way that we have traditionally operated is the common-sense way to go ahead and that we are within our rights under the legislation to do that.
There are other subtle changes too.
The New Policy
We've moved from an obligation to present the principal points of view to an obligation to present a range of perspectives. Who decides what is in "a range of relevant perspectives". Is it an ABC Committee, the ABC Board, the journalists union? What could that range of perspectives include, - the Muslim perspective, the Greens perspective, the UN perspective, Hezbollah's perspective?
Thank you reader Kev of Canberra for the tip about the policy changes. It seems unwise for the ABC's Board and its Managing Director to allow their view of "common sense" to take precedence over the law.
The ABC must not only be impartial, it has an obligation to itself to be seen to be manifestly impartial. The law should guide and protect the ABC's board from allegations of partisan conduct. Perhaps Mr Scott might reconsider that decision not to get legal advice.