Burke could cost Nine Network millions

AFR BUSINESS NEWS 
Nine Entertainment Co. CEO, David Gyngell, at Studio 22, Channel Nine, Willoughby, after releasing the company's Interim FY15 results. 26th February 2015.
Photograph by Dallas Kilponen
AFR BUSINESS NEWS Nine Entertainment Co. CEO, David Gyngell, at Studio 22, Channel Nine, Willoughby, after releasing the company's Interim FY15 results. 26th February 2015. Photograph by Dallas Kilponen
David Leckie at the launch of Harold Mitchell's photographic collection by Fairfax photographers at Machiavelli Restaurant in Sydney.
18th November 2014
Photo: Janie Barrett

David Leckie at the launch of Harold Mitchell's photographic collection by Fairfax photographers at Machiavelli Restaurant in Sydney. 18th November 2014 Photo: Janie Barrett

He seemed the man least likely. On camera, Don Burke was affable and eminently bankable: the green-thumbed star who turned gardening into a ratings juggernaut for the Nine Network.

Now the Burke's Backyard frontman, who attained iconic status in Australia at the height of the program's popularity, has become the local face of a global scandal that could cost the network millions.

Burke, 70, is the first high-profile Australian celebrity to be hit with a wave of sexual misconduct allegations since The New York Times' groundbreaking expose of Hollywood movie mogul Harvey Weinstein.

He faces multiple accusations of sexual misconduct from women within and outside the entertainment industry, along with men who claim to have witnessed his predatory behaviour. As in the Weinstein case, the accusers have spoken out on the record - and in record numbers.

More than 50 people were interviewed as part of a joint Fairfax Media/ABC investigation into allegations of bullying and sexual harassment by Burke.

Producers and researchers on Burke's radio and TV programs spoke of alleged incidents of sexual harassment including unwanted touching.

Since the first report was published on Monday, the media outlets have been inundated with hundreds of emails and calls from people wanting to share their stories.

Burke has vehemently denied the harassment allegations but in a bizarre interview on A Current Affairon Monday he admitted the "bullying may be true".

Exactly what Nine management knew about the scandal, and when, will be critical in any legal action that may flow from recent allegations.

Among the potential legal claims being mooted are sexual harassment complaints to the Australian Human Rights Commission - which can result in payouts - or actions in court for negligence, breach of contract or workers' compensation.

A potential sticking point for Nine, if it sought to fight any claim, is that it appears at least some of Burke's alleged behaviour was an open secret.

By 1991 - Burke's Backyard first aired in 1987, and would run for the best part of two decades - the Herald's Richard Glover had unearthed enough material to write a searing feature on the presenter for Good Weekend magazine. The feature did not refer to sexual harassment allegations but the suggestion Burke had a darker side was clear.

The presenter's nickname in some quarters was the Antichrist, Glover wrote, and even his supporters would not describe him "as the sort of character who appears on our television sets - that relaxed, laid-back, cheerful fellow with the twinkling dark eyes and engaging smile".

But, while Burke was pulling in millions of viewers each week, the show went on.

The Burke's Backyard juggernaut

Don Burke in 1987, when his new TV show was announced.

Don Burke in 1987, when his new TV show was announced. Photo: Publicity

Just how he amassed such an audience is now the stuff of legend. The television myth, as it was told, went something like this: Burke, amiable host of a Saturday afternoon gardening program, habitually pestered the programming department at Nine for access to more valuable prime-time television real estate.

The too-clever-for-its-own-good programming department offered him a slot on Friday at 7.30pm, thinking the quaintly-titled Burke's Backyard would drown in a sea of sport and that its host would be banished back to the weekend longueurs of the program schedule.

Instead, they woke the next morning to discover their hastily-stitched-together green monster had delivered a titanic audience, lurched off the operating table and lumbered into ratings history.

The truth of that story may be slightly less dramatic than the re-telling, but it does speak to the central themes in the narrative of commercial TV's most commercially successful gardener: that he was an unexpected success, that everything he touched turned to gold and that despite his success he was never fully given his due.

A glance backwards into the television history of Burke's Backyard recalls a host (and producer) whose leitmotifs were either extolling his own brilliance, or noting the failure of others so to do.

"I've changed the face of gardening in this country," he said, of himself, in one interview.

But it was the late David Lyle, one of the last properly original personalities of television's executive floor, who most accurately observed Burke. "I'd suggest that no matter how good things were for him, the glass was always a tiny bit empty," he once said.

From that one small but ambitious Friday night acorn did a multimillion-dollar television empire grow.

At its height, Burke's Backyard scraped together a national audience around the 2 million viewer watermark, a figure that would draw gasps today. Repeats commanded an audience almost half of that.

The series, which topped the ratings totem pole for the best part of a decade, won six TV Week Logie Awards - between 1990 and 1995 for most popular lifestyle program - though Burke was himself denied the award for most popular light entertainment personality by, on different years, Tonight Live host Steve Vizard and another Nine personality, Daryl Somers.

Unlike most Australian television programs at the time, which were owned by networks, Burke's company CTC (Cut The Crap) Productions owned the series.

It allowed him to cut himself a generous deal for TV, licence a Burke's Backyard-branded magazine via Nine's magazine publishing cousin ACP and control of a raft of other tie-ins and spin-offs including a syndicated radio show and, later, other TV series such as Backyard Blitz and DIY Rescue.

All of it turned CTC, and its owners Don and his wife Marea Burke, into powerful, if slightly unlikely, dealmakers.

It is television folklore that they were offered their own channel on Foxtel when pay television launched in Australia in the early 1990s and - stunningly - turned the offer down.

In Burke's wake came Harry's Practice, Animal Hospital, Our House, Money, Better Homes and Gardens and Good Medicine, all of which enjoyed enormous ratings of their own.

Later again came Australia's Best Backyards, Hot Property and many more. Foxtel's Home made art of it; Moar Gardening made it clever.

At several points Burke himself would lay claim to inventing the genre, though the British series Gardeners' World, which premiered in 1968, and the US series Victory Garden, which premiered in 1975, could successfully challenge the point.

By 2004, with its audience halved, and regime change coming to the Nine Network, Burke's Backyard was axed after 17 years and 713 episodes.

Despite that, as recently as the mid-2000s, Burke was listed on the BRW magazine richest entertainers list, with an empire valued at about $8 million, putting him in the esteemed company of the band Powderfinger and actors Cate Blanchett and Hugh Jackman. Burke was no Wiggles, but he made more than John Farnham and Eddie McGuire put together.

And yet in the public eye, the curtains were never fully drawn. Like most grandiose showbiz personalities, the titanic ego behind the benign little garden gnome was hiding in plain sight, a man who seemed to both compel and repel those with whom he did business.

On that point, the last word belongs to the dry wit of David Lyle, who said: "Don Burke is one of the most gifted television presenters it's ever been my misfortune to work with."

The fallout at Channel Nine

Tracy Grimshaw interviews Don Burke for Nine's A Current Affair.

Tracy Grimshaw interviews Don Burke for Nine's A Current Affair. Photo: Channel Nine/A Current Affair

Nine must now confront the legacy of a celebrity it cultivated for almost two decades.

The network said on Wednesday it had set up a new telephone hotline and independent counselling service for former employees to report "instances of past behaviour they would like addressed".

Both Burke and Nine could face potential legal action, and hefty damages payouts, if the women who have alleged misconduct against the former presenter took action in court or elsewhere, such as in the Australian Human Rights Commission.

Nine pointed out in a statement this week that Burke's Backyard was a production of CTC productions, and Burke's company employed and managed all staff rather than the network.

However, some of Burke's worst behaviour allegedly occurred while the program was produced at Nine. Burke took over production in 1991.

Maurice Blackburn principal Alex Grayson, who heads the firm's employment law department in Sydney, said a sexual harassment complaint to the Australian Human Rights Commission would be the first port of call in cases involving claims of inappropriate touching or any other unwanted sexual conduct at work.

The first step in the process is a confidential mediation, which could lead to an apology and training for offenders as well as a damages award.

"If that mediation fails, then the next step is to go to the Federal Court or the Federal Circuit Court to have the matter fully litigated," Grayson said.

Grayson said the usual approach was to make a claim against the perpetrator themselves, as well as their employer if they haven't taken "all reasonable steps to prevent the harassment". Reasonable steps would include having a policy prohibiting sexual harassment - and following it.

"Where an allegation of sexual harassment is made one of these reasonable steps that should be taken is that it should be properly investigated and if the allegations are substantiated then disciplinary action will likely follow," Grayson said. "If an employer doesn't take all reasonable steps they can also be found to be liable for the sexual harassment of their employee."

A negligence action or workers' compensation claim might also be considered.

A potential hurdle in the Burke case is the time limits on making complaints. In the Human Rights Commission, the standard time limit is six months but it has a discretion to accept complaints made after this time.

"I think in circumstances where many people made a complaint about similar treatment, the AHRC would be more likely than if it was just a single person to actually accept those complaints and mediate them," Grayson said.

The response of Nine executives to the Burke allegations this week has raised questions about whether the network took reasonable steps, or indeed any steps, to prevent the harassment of its staff.

Former Nine chief executives Sam Chisholm and David Leckie were candid this week in their response to the allegations.

Chisholm described Burke as a "terrible grub" who was "a disgrace because of his behaviour internally and externally".

Asked if anyone ever came to him personally about Burke, Chisholm said: "Probably they did, but I don't know. It's a long time ago."

His successor Leckie - who didn't beat around the bush, describing Burke as "horrible, horrible man" - confirmed there were complaints about the presenter but suggested he heard them second-hand.

"I am not going to mention any specific girls or anything like that," he said.

David Gyngell, a former chief executive at Nine who remains a director, would not be drawn on the allegations but said he "fully endorsed" the network's response to the matter this week.

Grayson said the comments by the former executives might "go to demonstrating that Nine hasn't taken all reasonable steps".

Melbourne-based barrister Jacinta Forbes, QC, said the comments "raise more questions than they answer".

"The fact that you know somebody is not necessarily a nice person might not tell you very much about their actions," she said. "It would be the sort of thing that would attract a fair amount attention in the running of [any] trial I would have thought, and it would be hotly contested."

Forbes said some of the alleged behaviour "may well be criminal conduct" that could be reported to police.

As for civil claims in court, much would depend on the employment relationship between the parties.

"Is the person making the complaint an employee of Channel Nine, are they an employee of Don Burke's production company, are they employed by some other production crew. All of those things are important," she said.

Commentators have suggested Nine may have exposed itself to a class action brought by former staff. Forbes said there could be some difficulties bringing factually distinct cases as a single case.

"I wouldn't say it couldn't be a class action but I can see some difficulties in doing it that way," Forbes said. "I think these days the courts are very good at looking at ways to accommodate a volume of litigation that is similar in nature in the issues raised but perhaps not amenable to a class action."

But there is no certainty that any claims will be brought in court at all.

Seven West Media's Supreme Court brawl this year with Amber Harrison, the former lover of its chief executive Tim Worner, generated a string of damaging headlines for the company. It said it had no choice but to bring the claim to stop her releasing confidential material.

Given a choice, Nine may opt to nip any disputes in the bud and pay up.

This story Burke could cost Nine Network millions first appeared on The Sydney Morning Herald.