In Like Flint

The mainstream media leftie thought police are in full cry in pursuit of the scalp of Australian Broadcasting Authority boss Professor David Flint. Media Watch’s David Marr revealed a sickeningly sycophantic fan letter written by Flint to talkback radio King/Queen Alan Jones shortly before the ABA’s “cash for comment” enquiry was convened (and before Jones’ name became associated with the “cash for comment” allegations:

Dear Alan,
“¦you have an extraordinary ability of capturing and enunciating the opinions of the majority on so many issues.

Red Kezza O’Brien jumped on the bandwaggon in last night’s 7.30 Report, fulminating and indignantly spluttering his way through an interview with a hilariously patrician, arrogant, condescending Flint. If nothing else, their diametrically opposed caricatured personae made for rivetting television.

Now the ALP has jumped aboard the tumbril as well, with lightweight former leadership contender Lindsay Tanner calling for Flint’s resignation.

My personal instinctive sympathies are a bit mixed. I strongly disagree with Flint’s monarchist viewpoint, and I dislike his supine, excessively laissez faire approach to media regulation. On the other hand, I accept that this approach is in large measure mandated by the legislative framework within which he is required to work. The previous Labor government quite deliberately substituted a “light-handed”, overtly self-regulatory ABA model for the previous, more interventionist Australian Broadcasting Tribunal structure. Moreover, Labor did so in large measure to curry favour with media proprietors who had come increasingly to resent what they saw as the ABT’s excessive interference.

Flint’s habitual arrogant, patrician demeanour is anything but endearing, but then the same is true of Marr and O’Brien’s unshakeable pomposity and self-righteousness.

I appeared in front of Flint as ABA Chairman for several days in a radio licence hearing a few years ago, and found him an unfailingly polite and scrupulously fair adjudicator. Then again, my benign evaluation of the good Professor is probably assisted by the fact that my client was awarded the licence against stiff opposition.

However, whatever one might think of Flint personally, should he be sacked or forced to resign for writing a “fan letter” to Alan Jones? Certainly, writing such a letter on ABA letterhead was ill-advised and shows poor judgment. Moreover, the letter’s contents clearly reveal Flint’s partisan political sympathies, and they’re anything but pro-Labor: hence Lindsay Tanner’s gleeful intercession. But everyone has political sympathies, and conservative predilections don’t disqualify a person from a quasi-judicial office like ABA Chairman any more than Lionel Murphy’s ALP leanings disqualified him from judicial office.

Nor does the writing of such a letter, before the “cash for comment” enquiry was convened, and before any allegations against Alan Jones were even known, provide a legal basis for disqualification on bias grounds from any future hearing involving Jones. Lawyers and judges, even in quite large cities, usually know each other quite well and regularly fraternise socially. General friendly relations and social contact (other than during (quasi) judicial proceedings themselves), including exchange of admiring correspondence, mostly wouldn’t constitute grounds for disqualification for bias. The same is true in the media industry, where frequent contact between ABA members and media personalities is unavoidable. It’s a point Flint made succinctly and correctly to O’Brien, but which Kezza predictably ignored:

The system of co-regulation that we have means that you get to know people in the industry.

It’s not unknown, for example – we’re talking together now – it’s not unknown, for example, for complaints about the ABC to come to the ABA and we don’t exclude ourselves because we know the person involved.

We’ve had contact with them.

We may have even praised them.

The question is – had I previously taken a view in relation to personal sponsorships and I had not.

The broad principles governing disqualification for bias in Australian law are usefully summarised in the High Court’s decision in Ebner v The Official Trustee in Bankruptcy in 2000 :

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence. …

In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference. …

It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party’s lawyer, or a witness, or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an “association” will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party’s lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits. …

So it is in the case of Flint and Jones. Knowing each other, even being friendly and sharing a general political viewpoint/orientation, is irrelevant. Had Flint written Jones such a letter after the “cash for comment” enquiry was convened, and especially after allegations against Jones became known, it might well have been different. But that wasn’t the situation, so it’s much ado about nothing.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Homer Paxton
Homer Paxton
2022 years ago

M’lud Ken,

There a a number of letters. All on ABA letterhead.
This gives the impression of the ABA supporting the parrot.

Of course Lawsy’s revelations gives this issue even more legs!

Ken Parish
Ken Parish
2022 years ago

Homer,

As I said, my understanding is that the letters predated both the “cash for comments” enquiry and Jones’ name being put forward as a person involved in the scandal. In those circumstances, only a person ignorant of the facts could sustain an “impression of the ABA supporting the parrot”.

As for Laws’ claim about Jones asserting he’d put the weights on Howard to re-appoint Flint as ABA Chairman, that also doesn’t reflect on Flint in a legal bias sense nor demonstrate any impropriety on Flint’s part. Jones is well-known for attempting to use his media clout to achieve desired outcomes with politicians e.g. getting the former NSW Police Commissioner Peter Ryan sacked by the Carr Labor government. I’m not suggesting the issue is entirely devoid of political interest; simply that calls for Flint’s sacking or resignation are misconceived in a legal sense.

Dave Ricardo
Dave Ricardo
2022 years ago

Ken,

Flint is a public servant and the regulator of our broadcasters – including Alan Jones who overtly boasts of, and wields, immense political influence, nearly always on the side of the conservative parties and conservative causes.

Flint is also a player on the side of conservative politics – witness his ongoing role in the monarchy/republic debate, his book , his numerous opinion pieces in the media supporting the Government’s position on Iraq, amongst others. He is also an active member of the Liberal Party – he was on the selection committee that awarded Malcolm Turnbull his pre-selection.

He cannot be both a partisan player and a senior public servant – let alone one with his responsibilities – and it is outrageous that he continues to be a partisan player and participant in controversial debates, while Chairman of the ABA. No other senior public servant does it, no matter what opinions they privately hold.

Having David Flint as ABA Chairman is akin to a Latham government appointing Phillip Adams to be the next ABA Chairman.

Sedgwick
2022 years ago

“Now the ALP has jumped aboard the tumbril”… Lightweight as you might view Tanner I don’t think he’s quite that misguided. Think that like Madame de Farge he might more likely be sticking to the knitting.

The Flint/Jones letter (chronology aside) begs the question of what was it doing on ABA letterhead anyhow? Or am I missing something obvious?

Ken Parish
Ken Parish
2022 years ago

Dave,

I wasn’t aware that Flint was a current Liberal Party member or a member of the selection committee for Turnbull. Those facts potentially put his situation much closer to the line in terms of disqualification from a future enquiry involving Jones and “cash for comment” (e.g. the Telstra deal). The fact that both Jones and Flint have active/prominent current Liberal affiliations, and that the issues surrounding the Telstra deal are inherently of a political partisan nature (given the major parties’ opposing positions on sale of Telstra) might be argued with some force to give rise to a reasonable perception of bias.

BTW Do you think Richard Butler should be sacked as Tasmanian Governor given his overtly political statements since appointment? Or is politicising an office only relevant where the perpetrator is a Tory?

Ken Parish
Ken Parish
2022 years ago

Sedgwick,

I agree that the letter/s ought not to have been on ABA letterhead. That’s partly why I labelled their sending as “ill-advised” and showing poor judgment. But it’s not a sacking offence in itself, at least the first time, and given that he wasn’t trying to use his office to pressure someone to do something (cf Wilson Tuckey).

Sedgwick
2022 years ago

Wilson’s iron barred letters did cross my mind last night as I watched “Celebrity Squares”.

My serious concern (if I were disposed to storming barricades – but I’m too much of a lazy cynical sod to so do) is that Flint didn’t see that there was anything wrong in his use of the office equipment … and his contortions to sustain that position were cringe making to watch.

Don’t think you have to be a media leftie thought copper to view him as a pompous git (as you more than intimate) and whilst hubris may not be a hanging offence it’s not pretty to watch nor a desirable characteristic in an adjudicator.

(And no, I won’t trot out those laughing stock values – “due process”, “transparency” or “impartiality” lest I frighten the horses.)

Jim Birch
Jim Birch
2022 years ago

Sorry, Ken, you’ve lost me.

Surely, it’s unacceptable that a partisan Flint could fix the inquiry into Jones. Whether this happened is unknown (to us) but, surely, it’s a reasonable inference to make from the available facts. That in itself is unacceptable.

More broadly, under Howard the politicisation of the PS has entered new dimensions. I’m not sure how to redress the situation but the public have to be able to trust THEIR public servants.

Ken Parish
Ken Parish
2022 years ago

Jim,

There’s an important distinction that needs to be drawn here. There’s nothing wrong per se legally with an adjudicator who has well-known broad political viewpoints sitting in judgment on someone with similar broad vewpoints, even if they’re mutual admirers. Thus, one couldn’t have objected successfully to Murphy J sitting on a case involving a known ALP sympathiser, or Barwick CJ a known Liberal supporter, although that may depend on the nature of the case. Everyone has broad political views, and it would be no more fair for the natural justice rules to require that an accused person must be judged by a person of opposing political predilection than by someone of similar viewpoint. The mischief (in a natural justice sense) may arise where we get the adjudicator and accused person both holding prominent CURRENT political roles, and the subject matter of the adjudication is itself highly party political. I still don’t think Flint’s fan letter justifies his sacking or forced resignation, but he might well be obliged to disqualify himself from future enquiries into the telstra deal involving Jones, and one might also regard his apparent role in procuring a major change in the recently-released report as highly dubious (legally challengeable?).

Dave Ricardo
Dave Ricardo
2022 years ago

“BTW Do you think Richard Butler should be sacked as Tasmanian Governor given his overtly political statements since appointment?”

Yes

“Thus, one couldn’t have objected successfully to Murphy J sitting on a case involving a known ALP sympathiser”

Murphy had (I hope) resigned his membership of the ALP.

Would Murphy have been allowed to sit on a case of a person whom he had gushingly praised in a letter written on High Court letterhead?

Let us not forget Flint only very recently tried to injunct Media Watch’s program on the ABA draft report.

Was Flint trying to protect the organisation he leads, or was he trying to protect the man he so admires, Alan Jones? His fellow ABA board members obviously didn’t think the ABA needed protecting, because they rolled him on the injunction.

Flint’s position is untenable.

Geoff Honnor
Geoff Honnor
2022 years ago

I have no problem with Flint’s ongoing fantasy about being the Grand Duchess of Mecklenburg-Strelitz, nor do I take any particular issue with his Great Friendship with a man memorably described by John Laws as “a vicious old tart.”

I do have immense difficulty with his obdurate refusal to acknowledge the obvious: that his enthusiastically offered, common cause support for Alan Jones might engender some legitimate concern about the form – if not the substance – of his regulatory overview of Jones’actions.

That and his simpering claim about his politics being unknown prior to his appointment as Chair of the ABA – “let’s appoint Flint. Good bloke if a trice obsessed with Debrett’s Peerage. Who knows what his politics are? He may well turn out to be the only Emeritus Professor of Law who combines card-carrying membership of Socialist Action with an encyclopedic knowledge of ancien regime Court Etiquette…..” It’s not all that plausible as a scenario.

The intervention of Laws – in an obvious bid to have a go at the vicious old tart rather than the supercilious old tart – will probably seal his fate. I agree with Dave in terms of likely outcome but it’s probably derisory laughter that’s likely to finish him off.

observa
observa
2022 years ago

Now this all begs the question as to whether Flint should take the more detached, arms length and antiseptic role of an ACCC toward an Ansett or OneTel, or an APRA toward a HIH.

Dave Ricardo
Dave Ricardo
2022 years ago

Laws told his listeners yesterday, “I can assure you, before this is over, it’s going to be more than truth that’s going to be outed”.

I don’t understand what he meant by that.

Geoff Honnor
Geoff Honnor
2022 years ago

“I don’t understand what he meant by that.”

I’d be really surprised if that was the case Dave…:)

Norman
Norman
2022 years ago

On the only occasion I encountered Flint [as a result of being invited to a discussion he was leading for genteel members of an upper North Shore church group] I was impressed by his apparent inability to maintain an intellectually coherent position. His admirers weren’t concerned with such trivial detail, and I suspect he’s moved in such admiring circles so long, he rarely feels the need to “touch base” with the outside world.
His performance on the O’Brien programme, made me wonder whether, in fact, he’s losing some of his marbles a little earlier in life than do most? His memory at least certainly seems to be suffering almost as severely as that of Alan Jones.
An interesting issue O’Brien failed to follow up, was the question of Flint’s correspondence. In ANY even half efficient bureaucracy, you can’t get away with implying that you not only can’t recall correspondence, but there isn’t a filing somewhere which enables your staff to quickly check its existence. I was expecting Flint to be asked whether, assuming he hadn’t been using a shredder and/or the delete button overtime, surely there must be a means of confirming what had actually been written on the official letterhead. But Kerry possibly doesn’t want to push his guests too far, for fear of frightening off potential future participants?
As for Richard Butler, I’d be quite happy to toss a coin. ‘Heads’, it’s Flint and Butler for the jump, ‘Tails’, it’s Butler and Flint for the jump.

Renee
Renee
2022 years ago

Dave wrote: “Laws told his listeners yesterday, “I can assure you, before this is over, it’s going to be more than truth that’s going to be outed”.

I heard this gem too. Just prior to saying that, Lawsie revealed that, as a boy, his mum always told him that “The Truth Will Out”

……whatever that means!

My own Mum’s version of this principle was “The Truth will set you free”….Similar, but different.

I don’t think Flint should necessarily be flicked. But if he does bow to the pressure and stand down, any idea who could take up the post? Would it have to be someone who is totally value-free, politically neutral, and who does not mix with prominent personalities?

Any suggestions?

Sedgwick
2022 years ago

A fairly recent past GG seems to be at a loose end.

Homer Paxton
Homer Paxton
2022 years ago

How M’Lud Ken can seek to justify Flint using ABA letterhead to issue such a gushing letter is beyond me.
If it had been a private letter then I would be in agreement. Given it was on ABA letterhead then it does give inplicit support to Jones over whom Flint is supposed to be regulating.

even simple simons like me can see a problem here, an untenable one at that.

Observa
Observa
2022 years ago

Homer, would there be any different implication if Flint had written the same blurb on a private letter-head? Give Flint his due, he was prepared to commit his view at the time in writing. He could have quietly peed in Jones ear over drinks. I think this shows a fair degree of openness. The question is, has the ABA discharged its duty without fear or favour? It seems to have got stuck into Aunty for perceived bias, as well as getting up the noses of Laws and Jones over cash for comments. Compare this with APRA and the ACCC with the likes of HIH, Ansett and OneTel. Nobody committed themselves on any letter-heads there and look at the debacle as they all ducked for cover, when the manure hit the fan. What a bunch of detached,arms-length, nincompoops!

Ken Parish
Ken Parish
2022 years ago

“How M’Lud Ken can seek to justify Flint using ABA letterhead”

Homer, I’m beginning to wonder about your literacy skills. I didn’t “seek to justify” the use of ABA letterhead. In fact I said it was ill-advised and showed poor judgment, but was not in itself a hanging offence, given that its purpose was not to utilise the prestige of the office to secure some private outcome (which would certainly have been seriously improper cf Wilson Tuckey). It’s ill-advised in any event, because it still has some potential to politicise the ABA and generate unnecessary controversy (as we’ve now seen). But it doesn’t of itself provide a sufficient basis for sacking Flint. I wouldn’t have thought that labelling something wrong but not so seriously wrong as to merit dismissal could reasonably be characterised as amounting to “justifying” that thing.

Graham
2022 years ago

“The mainstream media leftie thought police are in full cry in pursuit of the scalp of Australian Broadcasting Authority boss Professor David Flint.”

I think, that for once, we can just sit back and watch the bonfire burn.

Anyway, I thought it was an open secret that Alan Jones is gay…

Geoff Honnor
Geoff Honnor
2022 years ago

“Anyway, I thought it was an open secret that Alan Jones is gay…”

Does every unmarried, sexagenarian man with a strong interest in Edwardian lavatorial plumbing fixtures – not to mention the best interests of strapping, well-appointed young sporting chaps – automatically have to be ‘gay’ Graham….?

Rex
Rex
2022 years ago

C’mon Geoff, spill the beans!

Homer Paxton
Homer Paxton
2022 years ago

M’Lud Ken, as you know I have no literacy skills as they had to burn the chool to get me out.

Flint is the regulator and H\Jones is the regulated. A letter on ABA letterhead in fulsome praise is simply intolerable.

Rather than looking at the letter of the law in pharsaic fashion look to the intent.

snuh
snuh
2022 years ago

BTW Do you think Richard Butler should be sacked as Tasmanian Governor given his overtly political statements since appointment? Or is politicising an office only relevant where the perpetrator is a Tory?”

i would’ve thought politicising an office is only relevant when said office actually has a policy/regulatory role, which the tasmanian governor’s office plainly does not.

snuh
snuh
2022 years ago

incidentally, i should say that i think butler’s conduct to have been ill advised, revealing poor judgment, and other phrases as well.

Geoff Honnor
Geoff Honnor
2022 years ago

“I would’ve thought politicising an office is only relevant when said office actually has a policy/regulatory role, which the tasmanian governor’s office plainly does not.”

I think that the conventional understanding is that the Queen’s Representative should be seen to be “above politics.” Ergo, perceptions of political partisanship in a state Governor are pretty much universally viewed as unacceptable.

derrida derider
derrida derider
2022 years ago

Rex – You clearly weren’t living in Sydney when Jones was the Wallaby coach. Or you’d know the beans.

James Hamilton
James Hamilton
2022 years ago

What’s this interest in Edwardian plumbing fixtures business?

I have an interest in Edwardian plumbing fixtures. In fact I am aware that the owner of the trade mark of Thomas Crtapper & Sons is producing toilets and cisterns based on his original designs. They are extrememly attractive. Beautiful ceramic handles joined to a chain in turn joined to a ceiling heigt cistern. That’s flushing.

Why does my need to acieve closure on my movements by pulling a chain somehow disqualify me from being a highly paid radio broadcaster?

Geoff Honnor
Geoff Honnor
2022 years ago

James, I celebrate your interest in Edwardian plumbing fixtures. But it’s a passion that, famously, can be misconstrued by the Metropolitan Police in London when one is located pursuing it in gentlemens public facilities found therein.

William Wallace
2022 years ago

Interesting article from SMH below backing upwhat I have recently been informed of about why Max Moore Wilton really got the chop.

I have it on very good authority from friends in Canberra that John Howard is such a social conservative that he even forced Max the Axe (now the CEO of Macquarie Airports) out of his job as head of the Prime ministers Department (despite all his biddings for the PM from totally politising the Public Service to Children Overboard) all because he was told he was an active gay.

Leak kept me ahead of police – Marsden
Date: September 4 2004

By Kate McClymont

A police task force investigating the solicitor John Marsden over under-age sex allegations was compromised by a leak, he alleges in his forthcoming autobiography.

The task force, led by Superintendent Bob Inkster, was set up after pedophile allegations against Mr Marsden were broadcast on Channel Seven in 1995 and 1996.

In his book, to be published on Monday, Mr Marsden says that he and one of the task force officers shared a mutual friend. After meeting the officer for a drink, Mr Marsden says, the friend, who has since died, “would then ring me and give me all the details of what was going on in the task force”.

“Inkster just couldn’t source the leak in his task force – he failed to appreciate the loyalty of gay people when they sense that actions stem from homophobia,” Mr Marsden writes.

Mr Inkster yesterday challenged Mr Marsden to name the officer so that – “if such a person existed” – he could be dealt with for improperly or unlawfully releasing police information.

Mr Inkster added that Mr Marsden’s claim had “the smell of the old ‘dead man’ trick” but that, “if he’s of a mind”, he would like to speak with Mr Marsden further about his claim.

Mr Marsden also says in his book that Giovanni Di Stefano, the Italian-born lawyer representing the former Iraqi dictator Saddam Hussein, initially introduced himself to Mr Marsden as a “struck-off solicitor from England”.

Some years after they first met, Mr Di Stefano told Mr Marsden he was moving to Australia and would be sending some money in advance. When Mr Di Stefano failed to turn up, Mr Marsden says, he sent the $2 million back.

A week later Interpol contacted Mr Marsden about Mr Di Stefano. The Italian was sentenced to five years in a British jail for fraud in 1986.

And while voters were treated to a re-ignition of Liberal leadership uncertainty this week, courtesy of the Treasurer, Peter Costello, Mr Marsden’s autobiography reveals that the Prime Minister was once preoccupied with a different kind of uncertainty over an earlier deputy.

The Campbelltown solicitor recalls being rung “out of the blue” in the mid-1980s by John Howard, who was then Opposition leader, and asked to lunch.

“I had never been to the Australia Club before – I probably considered myself not good enough for its swanky confines, being from western Sydney – but the food was delightful and the conversation pleasant enough, although we did seem to spend an inordinate amount of time talking about the weather.

“Then, finally, came the crunch question. Did I think his deputy leader, Neil Brown, was gay? Actually, I think Howard might have used the word ‘homosexual’,” Mr Marsden writes. He said he was able to assure Mr Howard “that I had never slept with Neil Brown and therefore could not give anything like a definitive answer, but we had many mutual friends”.

Mr Marsden told the Herald from Damascus this week that Mr Howard had politely thanked him for his observations.

Since leaving politics Mr Brown, a Victorian QC, has separated from his wife. In 1996 he allowed his name to be published in a gay magazine listing “power gays and lesbians”.