May 05, 2004 | Graham

In defence of David Flint

My fellow blogger Jeff Wall has now posted twice (here and here) calling on Professor David Flint to step down. While I think that David has made some mistakes, I am not sure that any of them are punishable by public humiliation and then execution. This whole affair is yet another demonstration of the shallowness of public debate in this country, and the ladies and gentlemen of the press bear much of the blame.
Conflicts of interest ought to be avoided wherever possible, and where they cannot be avoided they have to be dealt with transparently. This is a matter of process. The substance behind it is that when a fiduciary or professional duty exists the person to whom that duty is owed ought to be dealt with fairly by the person owing it. The professional or the fiduciary should not be in a position where they may actually be swayed in the exercise of their primary duty by conflicting interests they owe to other parties.
It follows that to have a conflict is one thing, but the real crime consists in allowing the conflict to improperly sway a decision. The fact in this case is that there is absolutely no evidence that, despite having his conflicts of interest, David Flint ever acted on them to the detriment of the people or bodies to whom he owed his professional duty.
In the original cash for comment case, not only was Flint ultimately not a party to the inquiry held by the ABA, but the person to whom he might have been partial – Jones – was punished. In this second cash for comment case Jones has escaped, but not through any intervention of Flint’s but because Jones has walked around the Broadcasting Act. What Jones has done is to change his role from that of contractor to owner, and different legislative rules apply to owners. It is actually in Flint’s favour that when government was amending the act in the wake of the “cash for comment” affair the ABA wanted it amended so as to prevent Jones from doing what he has just done. These amendments did not occur.
The fact that Flint’s conflicts of interest have not resulted in any benefit to Jones and that Jones has earned his $1.2 million cash for comment from Telstra by his own financial engineering has not stopped Media Watch from piling supposition on supposition to point the finger at Flint. This has been extended by John Laws with his allegation that Jones bullied the Prime Minister into reappointing Laws, because Jones said so.
Why do I see a failure in public discourse here? Well, take the last point first. Commentators who would normally not take a word that Laws says seriously suddenly accept it absolutely. Why? One can only conjecture, but maybe it is because that is what they want to believe (which ironically is the charge against the government in the case of WMDs).
There are any number of serious questions that journalists and others ought to be asking and writing opinion pieces and learned articles about which they are just not doing.
First there is the relationship between the critics of Flint, Jones and Prime Minister Howard. Kerry O’Brien gets an honourable mention here. He asked John Laws whether this wasn’t just a case of “sour grapes”. Laws answered honestly and said that it probably was. Why has no-one sought to interview David Marr, presenter of Media Watch and ask him the same question? Afterall, while Flint has been writing glowing letters about Jones he has been excoriating Marr and others in his writings and books like Twilight of the Elites. Isn’t there a reasonable apprehension of bias against Marr?
Beyond the gossip there are more substantial issues. It is said that the ABA is a judicial body, and therefore Flint should not be friendly with any of the people who he regulates. Is that really the case? We have a number of what used to be called QANGOs (Quasi-Autonomous Non-Government Organisations) which are regulator, judge and jury. For every conflict of interest that Flint has, you’ll probably find just as many at organizations like HREOC and ASIC. In fact HREOC (for which I have the greatest admiration) is an interesting case in point. For example its Bringing Them Home report was one of the most conflicted pieces of investigation by a semi-government body in years – it even came with its own propaganda video.
The whole question of whether these organizations and others, which mix judicial and other roles, are set up on an ethically sustainable basis should be investigated.
There are also other questions that ought to be asked about what exactly is required of someone in a judicial or quasi-judicial position. I have often wondered how Flint justifies his very public stance on issues whilst being chairman of a statutory authority; but then I have also wondered, just as frequently, how other activists like Justice Michael Kirby justify their positions.
Then there is the issue of the media as a whole and its conflicts. I’m probably whistling into a really strong headwind here because most of the commercial conflicts in the media occur at the proprietor level. Jones is one of the few who is both proprietor and “talent”, but his case ought to raise huge questions about what other deals Telstra is doing around the country, particularly given its business partnerships with both Packer and Murdoch! Why should broadcast media be singled out and made to be transparent about its cash for comment. Shouldn’t every story in News dealing with Telstra or Foxtel carry a warning? And isn’t the Government in a huge conflict of interest owning any commercial concerns like Telstra that it also regulates?
I could go on, but I’m sure you get my drift. My suspicion is that this spat is not about Flint’s friendships but about his positions on issues which have nothing to do with broadcast regulation; and it is about a couple of media presenters mustering peer group pressure to get back at people they feel have done them an injury; not to mention dislike of Jones. If no-one else will do the work, it looks like I might need to rustle up a few thoughtful opinion pieces from those with insight for On Line Opinion.

Posted by Graham at 11:43 am | Comments (1) |
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1 Comment

  1. I think the membership of a political party is particularly problematic for a holder of a judicial or quais-judicial office. Parties operate as a coalition of people with similar but differing objectives who agree on a common program so that everyone gets some of what they want implemented. This is quite legitimate. However, it means that members of parties quite often vote or argue for things they don’t 100% agree with in order to carry out their part of the barigain with the other members. In other words, they go against their own best judgement for a perceived greater good.
    I think, however, that we expect someone in judicial or quasi judicial office to exercise their best judgement at all times when carrying out the duties of that office – the membership of a political party has to call their ability or willingness to do that into question.
    This is different from their views on particular issues – unless we opt for automatons, office holders are always going to have personal views and legitimately take account of those views in coming to honest decisions. Sometimes where those views are very strong or well known they may need to disclose the views or remove themselves from the particular decision.
    For that reason, I don’t see David Flint’s views on the republic as a problem to him staying in office, but I do see his very active membership of the Liberal Party as a problem. I note that Governors General are expected to resign from polcitical parties when appointed and I think the same rule at least used to apply to members of industrial tribunals.

    Comment by Alex McConnell — May 5, 2004 @ 11:00 pm

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