Section 18C, ABC Fact Check and the 'ill-informed' Attorney-General

Context - "All we want are the facts, ma'am", Sgt Joe Friday, Dragnet

First, the ABC deserves to be applauded for establishing the Fact Check unit. It is entirely in keeping with the role of the national broadcaster as set out in its statutory charter.

Secondly, the ABC Fact Check unit's role is described on the ABC web site.

Thirdly, the unit is assisted by external advisory panels. It has a very distinguished Legal Advisory Panel: two former Commonwealth Solicitors-General and a leading Professor of Public Law. Their opinions and analyses are sought prior to publication, but are not revealed. Verdicts are solely determined by ABC Fact Check and do not necessarily reflect the views of the panel.

Finally, no matter what it does or does not broadcast, the ABC will be criticised. Its numerous sworn enemies are always ready to pounce, some because the very concept of a national broadcaster is anathema, others more pragmatic than ideological, because they see the ABC simply as a potential juicy profit-centre which should, in the natural mercantile order, be transferred to the private sector, and others - as the late N K Wran QC demonstrated in his own marvellous way - because of visceral reasons that transcend partisan divides.

If the ABC Fact Check folks have been a bit hasty in reproving some suspected errant observer of public affairs, the ABC will have nobody to blame but itself and especially if one of its "verdicts" suggests even a whiff of partisanship.

"Fact-checking" and the law

In his first sentence, Senator Brandis was referring to what humans have in their hearts and minds. In a free and open society, a legal command that "No person shall entertain any offensive, insulting, prejudiced or bigoted idea or belief" could not be taken seriously.

It was the words "... and to say things …" in his second sentence that got the Attorney into boiling water.

You do not need to be a lawyer to know that, first, a statement about "rights" can be one about what the law is or is not, or ought or ought not to be. In other words, it might be (or be taken to be) a statement of fact or one of opinion or a mixed statement of fact and opinion, and, secondly, all such statements may be hotly contested.

Nevertheless, there are incontrovertible statements of what the law is. The key is precision in formulation of the statement.

Its report and "verdict" admit of no other interpretation than that the ABC Fact Check unit approached the Attorney's words by characterising them at face value as essentially factual: "Is he correct in asserting . . . ?"