Gina Rinehart has turned her fight with the ABC into a legal one. Hancock Prospecting, the company she chairs, has formally placed three of the broadcaster's most senior figures on notice of what it describes as detailed allegations of serious contraventions of multiple Australian criminal and civil laws, over the Race Around the World film describing her being sodomised and killed, and the ABC's refusal to take it down.
The three named are ABC Chair Kim Williams AM, Deputy Chair Lisa Caffery and Managing Director Hugh Marks. The letters went out late on Thursday. No proceedings have been filed and none of the allegations has been tested. Our earlier report set out the segment and the broadcaster's defence of it.
Hancock gave the ABC board one week, and got nothing back
In a statement issued on Friday, Hancock Prospecting said it wrote to the ABC Board on 23 July about the publication, and continued publication, of material concerning "its Executive Chairman, Mrs Gina Rinehart AO." It asked for three things.
"Hancock called upon the ABC to immediately remove the material from all ABC platforms, publicly apologise to Mrs Rinehart, and undertake a comprehensive investigation into how the material came to be commissioned, approved and published, together with full accountability for those responsible."
On the company's account, a week went by with no substantive public response, no substantive response to Hancock or to Rinehart, and no move to remove the material, despite what it called widespread public condemnation and serious risks to Mrs Rinehart.
The ABC says it will respond in due course
The broadcaster confirmed it had received correspondence from lawyers acting for Rinehart and would respond "in due course." It repeated that its Ombudsman is reviewing audience complaints about the 12 July episode under its complaints handling process. It has not apologised, and the film is still up.
The episode was rated MA15+, and that rating has rules of its own
There is a second standard here that has had almost no attention. The episode carried an MA15+ classification, and the ABC Code of Practice permits depictions of sexual violence at that rating only if they are not frequent, prolonged, gratuitous or exploitative. Separately, the ABC's Code of Practice requires content likely to cause harm or offence to be justified by its editorial context, and requires audiences to be given appropriate warnings through classification labels or other advice.
The ABC has argued the film was editorially justifiable. It has not explained how a scene describing a named living woman being sodomised with a stick until she dies sits within the classification the broadcaster itself applied to the episode.
The regulator is waiting for the ABC to finish reviewing itself
The one body outside the ABC that could act has decided to wait. The Australian Communications and Media Authority said it would let the ABC's internal process run before deciding whether to open its own investigation, pointing to the framework in the Broadcasting Services Act that gives broadcasters the first opportunity to respond to complaints under their own codes. ACMA confirmed the matter had gone to the ABC Ombudsman and said it was appropriate for that to happen first.
Follow that through. The Ombudsman is independent of the programme makers, but it sits inside the ABC and reports to the ABC board, an arrangement the broadcaster's own annual report calls ABC self-regulation. So the external regulator is standing back until the ABC has finished examining itself, over content the ABC has already declared justified.
The ABC charter cannot be enforced against it in any court
There is a third layer to this, and it is written into the law itself. The ABC charter sits in section 6 of the ABC Act. Section 6(4) of that Act reads: "Nothing in this section shall be taken to impose on the Corporation a duty that is enforceable by proceedings in a court."
In plain terms, the charter everyone keeps saying the ABC is bound by cannot be enforced against it by anybody in a courtroom. Put that beside an Ombudsman that reports to the ABC board, and a regulator waiting for that Ombudsman to finish, and the picture is complete. Three layers of accountability, and not one of them can make the broadcaster do a thing it does not want to do.
Bronwyn Bishop, the former Speaker of the House of Representatives, wants that clause gone. She told News24 it should be stripped out so action can be taken when the ABC breaches its charter. "So, what's the point of it?" she said. "I've said for years, take that provision out, go for it."
Richard Marles called it unacceptable, then said he hadn't watched it
Acting Prime Minister Richard Marles was asked about the segment on Friday and condemned it without having seen it. "I haven't seen this video so I want to make it clear but certainly as it has been described to me from my perspective it sounds completely unacceptable," he told News24. He didn't call for an apology, and called the referral to the Ombudsman a good step. Three days earlier, Communications Minister Anika Wells had responded in much the same way.
Sarah Henderson is the only one demanding the ABC actually act
Opposition communications spokeswoman Sarah Henderson went considerably further than the government. She told The Australian the ABC's failure to apologise and remove the content was shocking, and called it a clear breach of the broadcaster's Code of Practice and editorial policies. Henderson said Marks, as editor in chief, should have acted immediately, and dismissed the argument that the segment was intended to be satirical in tone as nonsensical.
The contrast with the government is hard to miss. Henderson has no power over the ABC. She cannot set its funding or appoint its board. Anika Wells sits in the government that does both. The Communications Minister called it unacceptable on Wednesday, then declined to ask for an apology, said nothing about whether the segment breached the ABC's own Code of Practice, and pointed instead to the broadcaster's editorial independence.
So the politician with no authority over the ABC is the one demanding it act. The minister whose government funds the broadcaster and appoints its board is waiting for the ABC's own Ombudsman to report back on the ABC.
Bronwyn Bishop asks where Anthony Albanese's statement is
Bishop used the same interview to turn on the government's silence, saying Australians should press the Prime Minister to condemn the broadcaster rather than sidestep the whole thing.
"Let's not let the Prime Minister off the hook. Where is his statement coming out condemning this sort of violence?"
She asked the same of senior Labor figures Penny Wong and Katy Gallagher. Bishop said the film turned her stomach every time she heard it repeated, and that the ABC had failed at every level, pointing to its legal department, its experienced executive producers and a board she said should know better. She put the double standard plainly too, asking people to imagine the reaction had the same thing been made about a Labor figure.
Bishop backed Rinehart directly, describing her as a courageous achiever who cares about the nation and who rewards Australian athletes, and said she hoped the action against the ABC would be strong. She went further on the broadcaster itself, telling News24 that if this was not the death knell for the ABC, it was coming close.
The only apology in three weeks came from the filmmaker, which still didn't mention Gina's name
The single apology in three weeks came from Kate McGuinness, who wrote and performed the film and is not named in the legal letters. It runs to six sentences, published by the ABC on its own website and endorsed by it, and Gina Rinehart is not named in any of them. She apologised "to anyone I've offended," which is an apology aimed at the audience, not at the woman her film described being sodomised and killed.
In the same breath she defended the work as farcical, cartoonish, always satirical and never meant to be taken literally. The closest thing to regret on offer is that jokes do not land with everyone. Gina Rinehart is not named anywhere on the ABC page either, as set out in our full report. News24 has also reported that McGuinness filmed herself twerking on a rooftop to The Last Post, the bugle call played at ANZAC Day services for the war dead, in 2021.
The film remains on the ABC's platforms. Nobody at the broadcaster has apologised to Gina Rinehart. And the three people at the top of it are now holding Hancock's allegations.
