The ABC Charter is not “Law”

A lot of people make the argument that the ABC is required “by law” to be impartial. Tonight Andrew Bolt was making the argument. But it’s not quite true.

It is entirely correct to point to section 6 of the Australian Broadcasting Corporation Act 1983 when arguing about ABC bias.

Charter of the Corporation

(1) The functions of the Corporation are:

(a) to provide within Australia innovative and comprehensive broadcasting services of a high standard as part of the Australian broadcasting system consisting of national, commercial and community sectors and, without limiting the generality of the foregoing, to provide:

(i) broadcasting programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community; and

(ii) broadcasting programs of an educational nature;

(b) to transmit to countries outside Australia broadcasting programs of news, current affairs, entertainment and cultural enrichment that will:

(i) encourage awareness of Australia and an international understanding of Australian attitudes on world affairs; and

(ii) enable Australian citizens living or travelling outside Australia to obtain I       nformation about Australian affairs and Australian attitudes on world affairs; and

(ba) to provide digital media services; and

(c) to encourage and promote the musical, dramatic and other performing arts in Australia.

Note: See also section 31AA (Corporation or prescribed companies to be the only providers of Commonwealth-funded international broadcasting services).

(2) In the provision by the Corporation of its broadcasting services within Australia:

(a) the Corporation shall take account of:

(i) the broadcasting services provided by the commercial and community sectors of the Australian broadcasting system;

(ii) the standards from time to time determined by the ACMA in respect of broadcasting services;

(iii) the responsibility of the Corporation as the provider of an independent national broadcasting service to provide a balance between broadcasting programs of wide appeal and specialized broadcasting programs;

(iv) the multicultural character of the Australian community; and

(v) in connection with the provision of broadcasting programs of an educational nature–the responsibilities of the States in relation to education; and

(b) the Corporation shall take all such measures, being measures consistent with the obligations of the Corporation under paragraph (a), as, in the opinion of the Board, will be conducive to the full development by the Corporation of suitable broadcasting programs.

(3) The functions of the Corporation under subsection (1) and the duties imposed on the Corporation under subsection (2) constitute the Charter of the Corporation.

(4) Nothing in this section shall be taken to impose on the Corporation a duty that is enforceable by proceedings in a court.

Notice a few things:
First – section 6(4) – the Charter is not enforceable in a court of law.
Second – there is no enforcement mechanism.
Third – there is no penalty for failure to comply with the section of the act.

So while the Charter is contained within a piece of legislation, it is not law. It imposes no duty to act, or refrain from acting, and it imposes no penalty for failure to comply with the provisions of the Act. In fact, section 6(4) explicitly excludes the courts from enforcing the ABC Charter. No wonder the ABC routinely ignores its charter – there is no duty upon them to follow it.

Also note the reference to section 31AA – when I refer to the ABC as being the Australian government’s official news agency, I’m not taking a cheap shot.

This entry was posted in Australian Story, Media, Politics. Bookmark the permalink.

50 Responses to The ABC Charter is not “Law”

  1. Lysander

    Sinc sticking up for the ABC; the world has gone mad.

    I’ve written my fair share of complaints to their ABC, they selectively consider it as law (when it suits them).

  2. Sinclair Davidson

    Sinc sticking up for the ABC …

    Hmmmmmm, no. I’m explaining a loophole that allows the ABC to completely ignore its charter.

  3. John Constantine

    “To read aloud from the taxfunded bully pulpit all activist created press releases that are spoonfed to their activist mates occupying the producers booth.”

  4. crazydude

    Are you suggesting that it should be law? Perhaps you’re really suggesting that we sell it. Either way, you’re right.

  5. Carpe Jugulum

    Demolish the buildings

    Salt the earth

    You know it makes sense.

  6. So it wasn’t technically illegal for the ABC to use its strike-force of patronising fops, giggly man-boy comedians and scolding harpies to foist the Turnbull Spring on the Australian public?

    Now we’re stuck with an inarticulate stumblebum as our PM in particularly dangerous times.

    But at least it was legal.

  7. pete m

    the provider of an independent

    Independent means free from bias or influence.

    Also consider Ministerial directions.

  8. Tel

    Is it actually possible for the Australian Parliament to create a corporation that is not subject to jurisdiction of a court?

    I note that the same disclaimer appears in Section 8 regarding the ABC Board: “(3) Nothing in subsection (1) or (2) is to be taken to impose on the Board a duty that is enforceable by proceedings in a court.”

    But what does it mean to have a law come from Parliament and then say this law is not enforceable by a court? How else can a law be enforced in this country?

  9. Sinclair Davidson

    Are you suggesting that it should be law? Perhaps you’re really suggesting that we sell it.

    Ideally we would sell it. Failing that, we would operationalise the charter as law by building in penalties for non-compliance.

  10. Rabz

    First – section 6(4) – the Charter is not enforceable in a court of law.
    Second – there is no enforcement mechanism.
    Third – there is no penalty for failure to comply with the section of the act.

    Tough – it still doesn’t mean that a certain Mantra™ shouldn’t be unleashed on their flabby commie arses.

  11. Rabz

    Ideally we would sell it.

    Seriously, Sinc – to paraphrase Barnaby Rubble, “Who in their right minds would buy it?”.

  12. Roger

    No, a charter is not law, but it imposes obligations on those who administer it.

    That the administrators in question have clearly not been held to account tot eh charter is down to our political representatives, the relevant ministers for Communications especially.

    Still, there’s nothing but sentiment to prevent the government from privatising it.

    Give it ten years and the demographics will ensure that no-one will care, either.

  13. Tel

    Who in their right minds would buy it?

    Scrap metal dealer would probably give you a fifty.

  14. Habib

    Pravda did a better job, for less money. The fact that such a worthless, pathetic edifice as the ABC is untouchable, unaccountable, and indisposable is reflective of this country- no portion of government can ever be croaked, it can only ever expand, and become more insulting. Rational, self-sufficient people are doomed.

  15. Sinclair Davidson

    … it imposes obligations on those who administer it.

    Those obligations are meaningless without mechanisms to enforce the obligations.

    It isn’t that the ABC is “out-of-control” there is no control.

  16. Roger

    Those obligations are meaningless without mechanisms to enforce the obligations.

    It isn’t that the ABC is “out-of-control” there is no control.

    Isn’t that what I said?

    Funding is an excellent motivator to change, I hear.

  17. egg_

    It isn’t that the ABC is “out-of-control” there is no control.

    A Green-Left trainwreck, with the Commercials following suit.
    What of the predation of Fairfax’s audience?

  18. Sinclair Davidson

    Isn’t that what I said?

    Oh. Sorry.

  19. Roger

    Oh. Sorry.

    Don’t mention it.

  20. simon

    I think its best look at the original charter. Has been evolved many times

  21. kevin

    Who would buy it? Alan Bond?

  22. struth

    Their charter is irrelevant left wing politically correct tosh.
    Who cares.
    Take the funding away .

    We, the taxpayers are their bosses.
    Which one of us idiots allowed them to right their own charter, and not be answerable to us?

  23. Rayvic

    Many believe that ABC reporting should be “balanced”, as in providing both sides of an argument. This appears to be due to misinterpretation of “balance” in Charter section 2 (a) (iii) the responsibility of the Corporation as the provider of an independent national broadcasting service to provide a balance between broadcasting programs of wide appeal and specialized broadcasting programs;

  24. classical_hero

    Make it a truly public broadcaster and allow those that want it to donate their own money.

  25. Crossie

    Charter, schmarter. Cut the funding and tell them to decide what they consider important and then stand back and watch the fireworks.

    I know, first they will start wailing about children’s programming. That may have worked in the past but I doubt it will again. Most children these days are into Disney and other children’s programming as most people have Foxtel.

  26. Crossie

    Make it a truly public broadcaster and allow those that want it to donate their own money.

    That will also work. Even low income families pay for Foxtel so why shouldn’t the Friends of the ABC pay for their own entertainment?

  27. stackja

    ABC listeners/viewers are happy. There is no hope of reform.

  28. Rabz

    Who would buy it? Alan Bond?

    Alas, we only got one of them in our lives and he’s carked it.

    At the rate things are going the most suitable buyer would probably be the Chinese commies. They’re certainly getting value for money with their new stake in Fauxfacts.

  29. Boambee John

    Imagine the reaction were the government to insert in the Immigration Act a clause to the effect that “nothing in the Act shall be taken to impose on the government a duty that is enforceable by proceedings in a court.”

    There would be screams of outrage that something should be placed beyond the scope of judicial review! But it is OK for Their ABC to beyond that scope.

    magine the reaction were the government to insert in the Immigration Act a clausd to the effect thet nothing in the Act

  30. Boambee John

    Sorry about the redundant last para.

  31. .

    John that would be impossible post Kable. So I’m wondering if Sinc is actually right at all.

  32. Tel

    ABC listeners/viewers are happy.

    The opiate of the upper middle class masses.

  33. 1234

    The usual three monthly self indulgent frolic/rant/bush lawyer bullshit about selling the ABC. Surprising, given the popularity of the ABC on this blog and that it wouldn’t have anything to rail against if the ABC didn’t exist. Defined by what you oppose.

  34. .

    1234 – tell me why I am wrong about Kable. Piss or get off the pot.

  35. old bloke

    Seriously, Sinc – to paraphrase Barnaby Rubble, “Who in their right minds would buy it?”.

    The ABC’s TV spectrum would be valuable to those businesses selling vacuum cleaners and flab reduction machinery. We need more vacuum cleaners and more flab reduction machinery.

  36. old bloke

    ABC listeners/viewers are happy. There is no hope of reform.

    Regular ABC viewers that I know only watch BBC programs rebroadcast on the ABC. I have never heard any of them wax lyrical about any of the ABC’s “drama” or “comedy” programs.

    Sell one channel to the BBC and the number of ABC viewers will drop from near zero to less than zero.

  37. kevin

    Rabz. What might have been
    Bond buys the ABC, puts it somewhere no-one can find it.

  38. I’ve had a few thoughts today.
    As I recently said to an ABC presenter on facebook, when I grew up ABC was all we had and particularly in the last couple of years I have been turned off, literally, by the ideology and I feel the separation hard.
    I did happen to take in 5 minutes of Mark Kenny/ Ian Henschke talking about One Nation today and it underlined the futility of hope.
    Listening to Molyneux’ latest Call in show as he talked about SJW destroying old business models reinforced the hopelessness of hoping for change.
    We have to rid ourselves of the ABC as so0n as possible.
    As much as the appropriate doctrine is Fire them all, shut it down, salt the earth, this aint gonna happen. What follows is what I believe can happen.

    We have to offer them something. My recipe is to give the ABC, its businesses, its properties and its bandwidths to the employees, shares divided pro rata based on time served.
    As well as this we should offer them the withdrawal of the charter, it being obviously too onerous a duty to comply with.
    In return we withdraw all government funding.

    I understand this is way too generous but its the only way I can see to quit the bloated carcase of cess as quickly as possible. Please offer constructive critism to the concept.

  39. Combine Dave

    It’s the 21st century.

    There’s no credible reason to maintain a state funded broadcaster.

  40. Boambee John

    Henry2,

    Tell the ABC Board that the government will fund the ABC on the assumption that its TV channels are operating on a pay to view basis, at $25 per month subscription, with an initial one million subscribers from its loyal viewers. That would reduce the ABC budget by some $300 million pa.

    Add that the government will assume that subscriber numbers increase by ten percent per annum, and subscriptions by five percent.

    Leave it to the ABC Board to decide how they actually operate to make up the gap. Then we can see how serious they are.

  41. Dave, I agree but we have to have a method of escape. Currently there is no way the 2 majors would consider any anti ABC move. What happened to Abbott was proof enough of that. If the rightist minors, PHON, LDC, FF etc. move with a united voice and effort we might be able to convince the Libs if theres enough incentive for the ABC themselves.
    John, too slow. Any vestige of public funding would soon be revived by a Labor/Greens administration. If they can get subscriptions, let them find subscribers for the lot. Give them a base of capital assets that they can monetise for anything beyond subscriptions. We know it wont last but hopefully I dont think they do. Let them be exposed to the market.

  42. Law graduate

    Hate to be technical, but I might as well make a few legal points.

    The Charter is law because it is provided for by s 6 of the Act. The content of legislation passed by the legislature is, by its definition, law. Although the Victorian Charter of Human Rights is not enforceable in the sense that injunctions can’t be ordered and damages can’t be awarded for breach of those rights, it is law. This may sound like an empty definition of what ‘law’ is, but the underlying reason that it is still best to think of it as law is that, although the ABC Charter may not be enforceable by a court, the words of s 6 of the Act are law for the court. That is, the Court must have regard to those words, having as they do the authority of the Parliament of Australia. The Court would be in error to disregard s 6. Furthermore, practically speaking, there are many cases of sections such as s 6 being useful in the determination of a case. The stated functions and duties of a statutory body is often very useful in helping to interpret other provisions of the Act, including properly enforceable duties.

    As to the commenter referring to the case of Gregory Wayne Kable, those principles are different to the situation here. The Kable principle is that STATE courts cannot be given powers to act by State Parliaments in a way that undermines its institutional integrity under the Federal Constitution. In that case, it was found that it was unconstitutional for a State law to grant the NSW Supreme Court the power to order preventative detention of a person specified in the Act without regard to any charge or crime yet to be sentenced. Such a law pushed the court past its institutional boundaries.

    In this case, there is no court being given powers that push it past its boundaries. There are guiding provisions for the court given by the Charter. Those provisions do not create any enforceable duties.

    Furthermore, one commenter mentioned the Migration Act, and immigration law, and how there would be uproar if the Migration Act provided that certain rights were not enforceable or could not be challenged. A glance at the recent history of migration law will show that, since the late 1990s, the Migration Act has contained provisions that prevent visa applicants from appealing Immigration Department decisions to the Court on several grounds. Many of the legal cases that law students read in the Administrative Law subject at law school are examples of the judicial rights of visa applicants being undermined by legislation. These cases are examples of the Australian Parliament and Government pushing their powers to their maximum extent over Australian courts. From these cases, the High Court has established many of the principles that determine how far governments can go in stifling the courts in any area of law.

  43. Rabz

    My recipe is to give the ABC, its businesses, its properties and its bandwidths to the employees, shares divided pro rata based on time served.

    No frigging way.

  44. Rabz, I do understand your position but it ain’t gonna happen like that any time soon. Rather than just say you disagree, show me a workable alternative over the shorter time frame. The part that makes us say no way is the part that might make it happen. We have to defund them some way soon.

  45. .

    As to the commenter referring to the case of Gregory Wayne Kable, those principles are different to the situation here. The Kable principle is that STATE courts cannot be given powers to act by State Parliaments in a way that undermines its institutional integrity under the Federal Constitution. In that case, it was found that it was unconstitutional for a State law to grant the NSW Supreme Court the power to order preventative detention of a person specified in the Act without regard to any charge or crime yet to be sentenced. Such a law pushed the court past its institutional boundaries.

    No no, I was referring to the matter in so far as it upheld the right of judicial review as a general principle/power of any court that can exercise Federal power.

  46. Law graduate

    @.

    It is a very interesting point – how would judicial review work for such broad obligations, and which are explicitly stated to be unenforceable’?

    I would interpret the Charter in one of two ways:
    1. It explicitly creates non-binding rights and duties. They are guidelines for the Board’s actions.

    However, I think it is better to think of it as:
    2. A Charter that includes broad obligations that are pretty much unenforceable only IN PRACTICE. This is because the two duties are to i) take account of various matters and ii) to take measures to promote its functions.

    Generally speaking, the right of judicial review by the High Court is indeed constitutionally protected, and cannot be ousted by legislation. However, I find it hard to see how judicial review could operate in these circumstances. Judicial review would require that someone sue the Board for its failure to take account of various matter or to take certain measures. In practice, it is probably very difficult to prove that the Board failed to take those matters into account (it is not a very onerous duty really), and also difficult to prove that the Board did not take measures to best develop programs ‘in the opinion of the Board’. Short of clear corruption, there would be no breach of duty. Furthermore, the person bringing the action would have to have some type of ‘special interest’ or be legally ‘aggrieved’ in some way – it can’t be brought by just any taxpayer.

  47. Boambee John

    henry2,

    See my comments on page 5 of the Wednesday open thread.

  48. Rayvic

    Sinclair, now that you clarified the impartiality shortcomings of the ABC charter, how about writing an article on the justification, if any, for continued taxpayer funding of the Left-biased ABC and SBS, in an age where there is no shortage of alternative broadcasters, thanks to the plethora of alternative digital broadcasting channels and the internet.

Comments are closed.