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:
“¦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.