Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Link to this | Hansard source

The purpose of the National Broadcasting Legislation Amendment Bill 2010 is to amend the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991. The amendments would also reinstate the ABC’s staff-elected director. In effect, this bill fulfils two important and longstanding commitments by Labor. We undertook in our national platform in 2007 to end political interference in the ABC by introducing a new transparent and democratic board appointment process. Indeed, this will be the realisation of that objective. It will also be the realisation of the goals that we set out as a government to ensure that there would be an independent and democratic board appointment process in which non-executive directors would be appointed.

This is one of my shorter contributions to the debate on this matter, but it is an important bill and the government is very happy to commend it to the House.

Malcolm Turnbull (Wentworth, Liberal Party, Shadow Minister for Communications and Broadband) Share this | Link to this | Hansard source

Today I speak on the National Broadcasting Legislation Amendment Bill 2010 and the effects that this legislation will have on the public broadcasters in Australia. As my colleagues have stated in this House many times, the coalition strongly support Australia’s national broadcasters and recognise that the ABC and SBS play a very important role in the lives of all Australians. It is precisely because of the significance of these two great Australian institutions that the shortcomings of this bill need to be properly scrutinised.

Firstly, the bill seeks to implement a new merit based board appointment process to appoint directors to the ABC and SBS boards by amending the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991. The bill seeks to insert a provision in both the SBS and the ABC acts to enshrine the merit based selection process and require that appointments not occur unless that process has been undertaken. The only exceptions to this are on the advice of the Prime Minister in relation to the reappointment of an ABC chairperson and on the advice of the minister in relation to the reappointment of the chairperson of the SBS.

The merit based approach proposed by the government establishes a nomination panel, the purpose of which will be to conduct a selection process for each appointment of a director. This panel will comprise a chair and at least two, but not more than three, other members who have been appointed by the Secretary to the Department of the Prime Minister and Cabinet. The appointment will be for a period which does not exceed three years, and it is a part-time office. The nomination panel proposed is an unnecessary and overly bureaucratic process. In order to seek an appointment, the panel must first advertise any vacancy nationally, and it must assess all applications against the selection criteria set by the minister. In the case of the SBS chairperson, the panel must provide a report to the minister or, in the case of the ABC chairperson, provide a report to the Prime Minister and the minister which outlines at least three nominations.

In 2009, the government created a nomination panel to assess the applications for two directors to both the ABC and SBS boards. A Senate estimates inquiry found that the government spent approximately $200,000 on these appointments. Included in this was payment for the members of the nomination panel and the engagement of a recruitment company, as well as the cost of advertising. However, as the bill makes clear, there is no guarantee that this whole process will result in a successful nomination, and the government still retains the power to make an appointment that has not been recommended by the nomination panel, so long as the process is undertaken in the first place. This bill is simply creating a new and unnecessary bureaucratic process.

Secondly, the bill proposes that former politicians and their senior staff members are ineligible for appointment to the boards of the national broadcasters. This suggestion is very hypocritical on the part of the government. I applaud the recommendations of a recent report from the Senate Environment and Communications Legislation Committee which advised that this absurd double-standard be amended to provide that there is at least an 18-month cooling-off period—an entirely rational and practical response, given this is the case for the majority of other governmental advisory boards.

It is hypocritical for the government to argue that politicians are deemed unsuitable for positions on the boards of the national broadcasters while they are perfectly acceptable on the boards of other entities. Many former politicians have provided a valuable contribution to the board of the ABC and other government bodies. In 1994, for example, the former South Australian Labor Premier John Bannon was appointed by Labor to the board of the ABC, as was the former Liberal senator Neville Bonner in 1983. As my colleague the member for Dunkley pointed out last year, Prime Minister Rudd’s appointments of former Labor minister John Kerin to the CSIRO board, Peter Costello to the Future Fund board and Steve Bracks as an adviser to the car industry highlight the irrationality and inconsistency of the government’s position on this issue.

Members of this parliament and of state parliaments gain great experience in the affairs of this nation across a wide range of areas. When they cease to be members of parliament, they are in a position to continue to provide that experience to the community and, almost invariably, most of them do so. There is obviously an issue with public broadcasters about partisanship and so some cooling-off period may be appropriate, but to put a permanent stigma on every former member of parliament and every senior member of staff is really a very extreme response.

Further, the blanket ban on politicians serving on the boards of the national broadcasters does not serve to depoliticise these institutions as there is no reference in the legislation to prevent current or former party officials or others with political affiliations so serving. Former Labor staffer and lobbyist Jody Fassina was appointed as one of the four directors of the Tasmanian NBN Co. On this issue, there is obviously an opportunity for some compromise. On the one hand, the government is advocating independence and accountability by proposing a nomination process and ban on politicians and, on the other hand, the government can override this process by appointing their own directors. Why should the board of the national broadcasters be any different from the boards of other government agencies? Why has the government not considered a cooling-off period, as is the case with other government agencies? I urge the House to consider the recommendations put forward by the Senate committee on this issue.

Finally, the bill seeks to reinstate the staff elected director position on the ABC board. In 2006, following the advice of the Howard government’s Review of Corporate Governance of Statutory Authorities and Office Holders, the staff elected director position was abolished. This review, known after its chairman as the Uhrig review, found that having a staff elected director was an anomaly amongst other government agency boards as well as posing a significant potential for conflict of interest, as the director—who is legally required to act in the best interests of the ABC as a director—is, however, appointed as a representative of the staff. I note that our other national broadcaster, SBS, does not have a staff elected director.

The coalition stands by the Uhrig report that did not support representative appointments to governing boards, as:

… representational appointments can fail to produce independent and objective views. There is the potential for these appointments to be primarily concerned with the interests of those they represent, rather than the success of the entity they are responsible for governing. While it is possible to manage conflicts of interest, the preferred position is not to create circumstances where they arise.

We have a tradition of corporate governance in Australia, as honourable members are well aware, that does not and should not favour representational appointments. The Uhrig review confirmed this stance.

It is a fundamental principle of company law in Australia that directors act in the interests of the company and all of its shareholders. So having a director who is a representative of one group is really trying to turn the board of directors into a quasi-shareholders meeting. The directors have to act in the interests of the entire corporation—in this case of the whole of the ABC. A staff appointed director is invariably going to be seen as effectively a shop steward at board level. There are obviously very powerful arguments for the interests of staff to be represented and for their point of view to be well argued, but they should not be represented in this way inside the boardroom.

In the ABC submission to the Senate inquiry into the 2006 legislation, the then acting Managing Director of the ABC, Murray Green, stated in relation to the conflict of interest for the staff elected director that it is:

… inevitable that there has been a tension between the expectations placed by others on their role and their established duties as directors of a corporation.

The most recent evidence given to the Senate committee’s inquiry into this legislation found that staff elected board members would not necessarily perform badly. There is no question that you can have very capable people—and have had very capable people—elected as staff elected board members. So there is no criticism of the individuals involved or their calibre. But they will be subject to an ongoing conflict of interest and an ongoing tension in their role because the purpose of them being placed on the board is to represent not the interests of the whole company but the interests of the employees of the company.

The committee also heard that there is no need to have a member of the board representing staff interests, nor was there evidence that the ABC’s performance had suffered as a result of the absence of a staff elected director. In fact, since 2006, the ABC has really flourished with the launch of two additional television channels—the children’s channel, ABC3, and ABC News 24, Australia’s first free-to-air 24-hour news channel. The ABC has moved into digital radio, established the No. 1 rated online opinion site The Drum and launched the ABC Open project, which produces and publishes local contributions from ABC regional audiences. Recently the ABC has announced its intention to expand its international presence by consolidating the ABC’s presence in the Asia-Pacific and establishing new services in Africa, Latin America and the Middle East.

One only has to have regard to the ABC’s really formidable achievements—they are among the world’s best in my opinion—in the online space to see that its lack of a staff elected director has not held it back or compromised its activities at all. In fact, I would say that the ABC, in its range of activities, is more dynamic than it has probably ever been in its history. The government should recognise, therefore, that the reform of the ABC board carried out by the coalition has been in the best interests of the ABC. So far the government has ignored all arguments as to how the coalition’s reforms to the ABC have contributed to the broadcaster’s very successful transition into the modern media and digital environments while proving to be consistent with the contemporary standards of corporate governance.

Australia’s national broadcasters play a unique and essential role in the lives of all Australians. In order for them to have the best possible chance of continuing to provide Australians with their services, they need to have the best possible boards that can be provided. Allowing for the appointment of politicians and their staff to the boards after an 18-month cooling-off period is manifestly in the best interests of both our broadcasters and Australians. The 18-month cooling-off period is really more than sufficient—I would say quite a bit more than sufficient—to deal with any concerns about contemporary partisan considerations being brought to bear on the boards of those companies. We really do have to be very careful that we do not make it appear that because somebody has served in a parliament or in a senior advisory position to a member of the House of Representatives or a senator they are somehow or other regarded as stigmatised. The members of this House and the members of the Senate are engaged in public service, and it is very responsible and important public service. That service brings experience and, if members and senators having left the parliament want to continue to make a contribution to the nation, the provision of that service should be encouraged, not discouraged.

We also remain opposed to the staff elected director for the same reasons we were opposed to it when it was removed in 2006. Since then, on any view, the ABC has gone from strength to strength. It is impossible to point to any deficiencies or inadequacy on the part of the ABC occasioned by the absence of a staff elected director. There is a very important role for the staff of the ABC to be represented in their dealings with management but, as far as having a representative of the staff on the board of the ABC as a staff elected director, that is totally contrary to the traditions and principles of Australian corporate law. That is not the way companies are managed in Australia. As the Uhrig review demonstrated, it is manifestly not in the interests of the community to have public corporations with persons on their boards whose job it is to represent a particular sectional interest as opposed to the interests of the corporation as a whole.

Michelle Rowland (Greenway, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the National Broadcasting Legislation Amendment Bill 2010. This bill amends the Australian Broadcasting Corporation Act and the Special Broadcasting Service Act to implement a new merit based appointment process for the ABC and SBS boards. The bill also reinstates the position of staff elected director to the ABC board, a position that was scrapped by the Howard government.

I believe our national broadcasters are unique institutions. I firmly believe that the boards of our national broadcasters should not be politicised. It is simply not acceptable that individuals are appointed to the ABC and SBS boards simply because they hold views that are sympathetic to the ideology of the government of the day. Merit, not an individual’s political ideology, should be the guiding and underlying principle behind appointments to the ABC and SBS boards.

The contrast between the approach taken by this government since its election in 2007 and the previous Howard government on this issue could not be clearer. There can be no objective disagreement with the way in which the independence of the ABC and SBS has been compromised in the past through a series of blatantly political board appointments. For the benefit of the House, I wish to highlight some of these appointments. In 1996, Donald McDonald, a long-time friend of former Prime Minister Howard, was appointed chair of the ABC board. In 1998, Michael Kroger, who we all know is an active member of the Victorian branch of the Liberal Party, was appointed to the ABC board. Conservative commentators Janet Albrechtsen, Ron Brunton, Keith Windschuttle and Morris Newman were also appointed to the board of the ABC from 2003 to 2007. Furthermore, Christopher Pearson, a former speechwriter for John Howard, was appointed to the board of SBS in 2003. In addition to serving as directors of the ABC and SBS, these individuals were united in their support of the Liberal Party and its ideology.

The former Minister for Communications, Information Technology and the Arts, Richard Alston, revealed the underlying objective behind these blatantly political appointments in May 2003 when he claimed that the ABC was biased in its coverage of the Iraq war. The then government’s solution to this alleged bias was to appoint known members and supporters of the Liberal Party, such as Ms Albrechtsen, Mr Brunton, Mr Windschuttle and Mr Newman, to the ABC board.

On the same day Senator Alston accused the ABC of bias, he told Lateline:

I think the ABC has a duty to its listeners and the tax-paying public. To uphold the highest standards of journalism. To accept that it’s accountable. And to ensure that it is meeting its own codes of practice.

I could not agree more with the former minister. The ABC does have an important responsibility to present the news in a balanced and independent manner. It is a pity that loading the ABC board in the manner I described directly undermined the ability of the ABC to fulfil its code of practice. May I suggest that Senator Alston was not referring to an anti-Liberal bias when he made his allegation in 2003. May I suggest that his allegation was simply a cover for the frustrations his government felt over the fact that the ABC was presenting a balanced coverage of the Iraq war. The Howard government fundamentally neglected the principle of merit and that is why this bill is so important. By amending the Australian Broadcasting Corporation Act and the Special Broadcasting Service Act, this government is taking important steps to ensure the practices of the former government never happen again.

This legislation will lead to the establishment of a nomination panel to oversee the merit based appointment of non-executive directors. All non-executive director vacancies will be advertised, which gives every Australian the opportunity to apply. As such, political affiliation will no longer be an unofficial prerequisite to be considered for an appointment to the boards of the ABC and SBS.

New part III of the Australian Broadcasting Corporation Act will clearly set out the process by which this independent merit selection process will take place. Equally, the insertions to part 3 of the Special Broadcasting Service Act will set out the process by which the nomination panel will appoint non-executive directors to the board of SBS. Features of this process include assessing candidates against a core set of published selection criteria, specifically the skills, experience and competencies of the applicants. The nomination panel will provide a report to the minister with a short list of at least three candidates for each vacant position. The minister will select a candidate from the short list and write to the Governor-General recommending the appointment as required under the legislation.

It is also important to note that this bill amends subsection 12(5) of the ABC Act and subsection 17(2) of the SBS Act to specifically prevent current and former members of state and federal parliaments and current and former senior political staff from being appointed to the boards. I also draw to the attention of the House the proposal to insert new section 24C into the ABC Act, which states:

… the Panel is not subject to direction by, or on behalf of, the Government …

The processes outlined in these respective parts of the ABC Act and SBS Act will ensure the process of appointing members to the boards will no longer be subject to partisan interference. This means that the blatantly political appointments to the boards of the ABC and SBS that occurred under the Howard government will never happen again.

I now wish to turn my attention to the second aspect of this legislation, the reinstatement of the staff elected director to the ABC board. This will be achieved by amending subsection 12(1) of the ABC Act to include the staff elected director as a member of the board. New section 13A outlines the obligations of the staff elected director. The minister representing the communications minister said in his second reading speech:

The staff-elected director plays an important role in enhancing the ABC’s independence by providing the board with a unique and important insight into ABC operations. The staff-elected director will often be the only individual with the expertise to question the advice coming to the board from the ABC’s executive.

I strongly agree with the minister’s statements.

An inquiry into the Australian Broadcasting Corporation Amendment Bill 2006 by the Senate Environment, Communications, Information Technology and the Arts Legislation Committee heard numerous examples in which the staff elected director acted to maintain the independence of the ABC. This view is reinforced by the author of Whose ABC? and This is the ABC, Professor Ken Inglis, who stated:

The staff-elected director has exercised more influence than any other single director apart from the Chairman and Deputy Chair.

The staff elected director had real power and exercised this power to maintain the ABC’s integrity and independence; there was no guarantee they would be sympathetic to the ideology of the government of the day; and it was the only appointment to the board of the ABC that the then government could not control.

To justify their decision to abolish this position, the Howard government referred to a review of the corporate governance arrangements of statutory authorities and officeholders conducted by John Uhrig. Uhrig’s report, entitled Review of the corporate governance of statutory authorities and office holders, was quoted in the explanatory memorandum of the Australian Broadcasting Corporation Amendment Bill 2006, the very bill that led to the abolition of the staff elected director position. The explanatory memorandum included the following excerpt from the Uhrig report:

The Review does not support representational appointments to governing boards as representational appointments can fail to produce independent and objective views.

This was hailed as an independent endorsement for what the then government was attempting to do. However, this comment was one very minor aspect of a 133-page report. In fact, no reference was made to the ABC in Uhrig’s report. Nevertheless, even if one were to falsely accept that the Uhrig report explicitly referred to the ABC and the position of the staff elected director, it is somewhat hypocritical to claim that the staff elected director is unable ‘to produce independent and objective views’. If the staff elected director is unable to act in an independent and objective way, how is it possible to expect openly partisan individuals, such as Michael Kroger, to act in an independent and objective manner?

For this reason, I suspect that the Howard government abolished the position of staff elected director simply because they feared the director’s independent and objective views. I am concerned that the opposition continues to oppose the reinstatement of the staff elected director. I refer the House to a media release issued by the former shadow Minister for Broadband, Communications and the Digital Economy, Senator Minchin, in which he stated:

The position creates the potential for conflict of interest with the staff-elected director legally bound to act in the best interests of the Corporation, despite having been appointed as a representative of staff and elected by them.

This is a flawed analysis. It shows a complete disregard for this comment by the last staff elected director, Quentin Dempster:

The staff director is not the shop steward for the unions.

This directly contradicts the claim made by Senator Minchin that the staff elected director will simply act as a staff representative.

We on this side of the House believe in the importance of independent national broadcasters. That is why we are seeking to implement this legislation. We are seeking to amend the ABC Act and the SBS Act to ensure that board appointments are made on the basis of merit, not political affiliation. We are also seeking to amend the ABC Act to reinstate the position of staff elected director because we believe this position enhances the independence of the ABC by providing a unique and important insight into the operations of our national broadcaster. These amendments are needed to help undo the damage done by the Howard government to the ABC and SBS. These amendments form part of the government’s commitment to reform Australia’s communications sector. We now need to consider how we, as a nation, can best respond to the challenges and opportunities of the emerging digital and online environment. In delivering their mandates under their respective statutes, the ABC and the SBS play a critical role. Their governance arrangements should reflect this mandate and I commend the bill to the House.

Paul Fletcher (Bradfield, Liberal Party) Share this | Link to this | Hansard source

The National Broadcasting Legislation Amendment Bill 2010 is a wholly unnecessary piece of legislation. The three core elements of this legislation are all, in my view, poor ideas. The first idea is to resuscitate the position of staff-elected director. The second idea is to impose a formal blanket ban on former politicians and senior political advisers being appointed to the board of the national broadcasters. And the third poor idea is the process set out in the bill for what is described as ‘merit based appointment’.

Unfortunately, this legislation is evidently the product of a fairly desperate moment, casting around and trying to fill out a rather thin-looking policy in advance of the 2007 election. Clearly somebody said: ‘We must have a policy on broadcasting. Quick, what are we going to put in there? Let’s come up with some ideas. Let’s look like we’re taking action.’ This bill emerges from the same policy factory that gave us the citizens’ assembly, and evidently was a process with about as much rigour.

I want to address all three of the rather poor ideas that are inherent in this bill. The first of those is the reinstatement of the position of staff-elected director at the Australian Broadcasting Corporation. There is an extraordinary claim in the second reading speech offered in justification for this measure:

The staff-elected director is often the only individual with the expertise to examine the advice to the board from the ABC’s executive.

That really is quite a remarkable claim, that there is nobody else on the board of the ABC who has the expertise to examine the advice to the board from the ABC’s executive. It is a proposition, I would suggest, which cannot be substantiated on even the most cursory examination. If there is a desire, as there may very sensibly be, to have people on the board of the ABC who have expertise and experience in matters of broadcasting, by all means appoint people with such experience. There are, in fact, a number of people on the board who have such experience. I look, for example, at Dr Julianne Schultz, who is on the board of the ABC. Her resume says that she:

… began her career as a reporter with the ABC … She has held senior editorial roles and worked as media columnist and director of corporate and digital strategy.

I know Dr Schultz a little bit—at least I have come across her at conferences. She is clearly a person of ability. But the more general point is this: it is clearly open to the minister to appoint, as he has on this occasion, persons with industry experience who are able to bring to bear that experience in examining the advice to the board from the ABC’s executive. It is really quite an extraordinary argument that the justification for having a staff-elected director is that that person is the only one on the board with the expertise to examine the advice to the board from the ABC’s executive. It is a proposition which does not stand up to even a moment’s scrutiny. The reason it is such a threadbare proposition is, as is often the case, that it is not the real reason why this government is legislating to seek to reinstate the position of staff-elected director.

Inevitably, regardless of the personal capacities of the individual, the staff-elected director is expected by the persons who elect him or her to be an advocate for their interests. That is the way that elected positions operate. And to have a person on the board who is subject to that set of expectations, to that set of pressures, is inconsistent with basic principles of corporate governance which require that directors are motivated by a consideration of what best serves the interests of the organisation and what best allows the organisation to deliver on its mission, to deliver on its objective of providing outstanding broadcasting to serve the interests of the Australian community.

The proposition that there ought be one member of the board who is elected to represent the sectional and specific interests of ABC staff is a poor one. The person who is charged with selecting the directors of the ABC is, as the law stands today and should remain in respect of every director, the minister. The minister is the person who brings to bear the responsibility, on behalf of the parliament and ultimately on behalf of the people of Australia who have elected that parliament, for the decision making as to selecting directors who are best able to direct the ABC in performing its mission of delivering outstanding broadcasting services to the Australian community.

Let me turn to the second very poor idea which is contained within this bill, which is the proposition that there ought be an automatic and blanket ban on former politicians and on former senior political advisers from being eligible to be appointed as directors of the board of the ABC or the Special Broadcasting Service. Let me quote evidence given by Donald McDonald, a former chairman of the ABC, to a recent Senate inquiry where he said:

I think it is an extraordinary provision, frankly, to suggest that somebody, having served the public as a member of parliament, is, as a result of that, contaminated to the extent that they cannot provide useful service to the public by being on the board of the ABC. I think that is not only extraordinary but profoundly offensive in retrospect to former politicians who have been on the ABC board.

He further observed that in his time as chairman of the board he was well served, and the board was well served, by having as two directors the former Labor Premier of South Australia John Bannon and the former Liberal federal cabinet minister Ian Macphee. Mr McDonald said in his evidence:

They brought a great deal of experience, judgment and balance to considerations, particularly in matters to do with dealing with the government and in lobbying for funding because that is a big chunk of the board’s responsibility once every three years.

There is the voice of direct experience: it is in fact no bad thing, in some instances, to have former politicians serving on the ABC board. I was particularly interested to see the view of the Community and Public Sector Union expressed by another witness before that Senate committee, Dr van Barneveld, who had this to say:

It is simply the view of the CPSU that there is no need to exempt ex-politicians and ex-staffers. However, our view is that the appointments should not be political in nature and that, if ex-staffers or ex-politicians apply—and they should be able to apply, because they potentially have things that they could add to these positions—they are subject to the merit selection process.

It is interesting indeed, is it not, that the CPSU—the union movement—does not support a blanket ban on former politicians, on former political advisers, being directors of the ABC or the SBS?

There are several fundamental problems with this idea. First of all, there is nothing inherently wrong with politicians or former political staffers as a class which should automatically bar them from eligibility for serving on the board of the ABC or the SBS or indeed from any other position in our community. Secondly, as we have seen in the evidence I have cited from Donald McDonald, in fact a rule which excludes politicians and political staffers automatically excludes from consideration a class of persons who may have something distinctly valuable to offer. Thirdly, the gaping inconsistencies between the claimed virtue of excluding the evils of political and governmental contamination on the one hand and the actual drafting on the other simply highlight the absurdity of this policy. There is, for example, no ban in this bill on former senior bureaucrats, including a former Secretary of the Department of the Prime Minister and Cabinet or a former Secretary of the Department of Broadband, Communications and the Digital Economy.

None of these classes of person is banned, nor for example are officials or former officials of political parties. A former federal secretary of the ALP or a former federal director of the Liberal Party would not be banned, nor would former union officials, nor would failed political candidates, nor would advisers to former politicians who did not attain the designated rank, which I think, according to the explanatory memorandum, is ‘adviser’ but not ‘assistant adviser’. One can easily conceive of examples where persons who operated in a strict formal sense at a lower level in fact had just as much influence on the politician whom they served as somebody at a more senior level designated an adviser or chief of staff.

While we are considering classes of persons who are not barred by this legislation—and, if there were a skerrick of logical consistency about it, they would be barred—let us think about former elected members of parliaments of countries close to our own political tradition, such as New Zealand, the United Kingdom, Canada or other similar nations.

This legislation is rife with gaping logical inconsistencies and, in my view, the prohibition simply makes very little sense. I would suggest, as a very minimum, that if we are going to go forward on this approach then it would be logical at the very least to set some time limit on the period for which former politicians and political advisers are disqualified. The notion inherent in the legislation today, as proposed, that this prohibition lasts forever—the notion that apparently you are so contaminated by political service that you can never be cleansed—is inherently ludicrous.

I turn finally to the formalised appointment process, the so-called merit based selection process, which has been proposed in this piece of legislation. This really is the triumph of the human resources strategist. This is the approach of the government that brought you the 2020 Summit, the gathering of the 1,000 so-called ‘best and brightest’. I well remember the photograph that appeared in one newspaper of the butcher’s paper—which you see so often at these kinds of events—for the breakout groups, which had written across the top of it: ‘There are no stupid ideas.’ The facilitator had wandered away after committing that piece of wisdom to the butcher’s paper.

I have been to a lot of these off-sites. I did not go to Australia’s national off-site, the 2020 Summit, but I have been to a lot of other off-sites and let me tell you there are a lot of stupid ideas. No matter how many times you write across the top of the butcher’s paper, ‘There are no stupid ideas,’ there are stupid ideas, and this is a stupid idea. The idea that we ought to have this formalised multi-step appointment process, going through the appointment of a panel, going through formal notification requirements, and going through step after process step, is a bad idea. Why ought there to be this appointment process conducted at arm’s length from the government? The government is there to govern and that includes appointing people to boards of government entities.

It is no bad thing, of course, to cast the net as widely as possible to have the widest possible range of candidates being invited to apply to become directors. That is no bad thing; it is sensible practice. But to formalise this involved series of steps in legislation is a triumph of process, which we on this side of the House think is wasteful, foolish, unnecessary, and ill conceived.

In conclusion, the idea-generation factory in politics sometimes produces bad ideas. Let us be honest: we all know it. It happens from time to time. We saw one example during the last campaign: the idea of the citizens’ assembly. It was a silly idea that has thankfully been dropped. I appeal to the government today to do the same thing with this bill. The ideas are silly; drop them. Leave things as they are.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The measures in the National Broadcasting Legislation Amendment Bill 2010 are consistent with Australian Greens policy and I rise to support the bill in principle. In making a short contribution to this debate, I want to focus briefly on the appointment mechanisms for the ABC board. It is critical to a healthy democracy that the national broadcaster is truly independent and free to report on issues that cause discomfort to the incumbent government and other powerful interests. Without access to reliable and unbiased information, the public cannot participate in the public political debate effectively. With that principle in mind, I commend the government for putting an end to the practice of stacking the ABC board with directors who have party political interests or who have clear and overt ideological bias.

In his submission to the Senate Environment, Communications, Information Technology and the Arts References Committee in 2001, Quentin Dempster, a former staff-elected director of the ABC, highlighted the problems with the way that the ABC board had been appointed. He wrote that:

The history shows that it is almost impossible for incumbent governments to put the ABC’s clear need for non-controversial appointments of directors with a demonstrated commitment to independent public broadcasting ahead of their party political interest to send ‘signals of influence’ by the appointment of directors with links, connections or associations with their own party. Both the Liberal and Labor parties do not seem to be able to restrain themselves from applying political patronage to the task of selecting ABC directors.  To those of us working at the ABC under this pathetic two-party indulgence it has become wearisome, to say the least.

Ten years later, the government could quite easily have used their position to continue this practice, to tilt the ABC board in Labor’s favour, but they have not done so. That they are seeking to move beyond this politicisation of the ABC board is to be applauded.

Speaking on behalf of the Australian Greens, I can indicate that we place so much importance on the government’s moves to ensure that ABC board members are selected on the basis of merit, free from political interference, that we will be moving amendments in the Senate to further strengthen these measures. We will seek to further limit the scope for political appointments to be made by requiring that suitably qualified and non-partisan people, rather than appointees of the Department of the Prime Minister and Cabinet, fill positions on the nomination panel responsible for selecting the team that will conduct the merit based selection process for ABC board appointments.

On the question of the staff-elected director, the Greens did not support the position being abolished in the first place and it certainly remains our policy to see it reinstated. I note that the opposition which, when in government, removed the staff position continues to make the argument that a staff-elected board member would act in the interests of staff members before the interests of the organisation. The Greens reject these arguments by noting that staff-elected directors in the past have always fulfilled their duties without giving rise to conflicts of interest. Representing staff is first and foremost a job for the unions, not the staff-elected board member.

The clear benefit of seeing a staff-elected board member returned to the board is the sheer wealth of operational broadcasting experience that he or she brings. The ABC board will only be stronger and wiser because of it and I see no reason for parliament to prevent such experience being returned. I thank the government for introducing this bill.

Luke Hartsuyker (Cowper, National Party, Deputy Manager of Opposition Business in the House) Share this | Link to this | Hansard source

I welcome the opportunity to speak on the National Broadcasting Legislation Amendment Bill 2010. The purpose of this bill is to amend the Australian Broadcasting Corporation Act and the Special Broadcasting Service Act to introduce a new board appointment process. The bill also reinstates the position of staff-elected director to the board of the ABC. Appointments of directors to the ABC and SBS boards will not be able to occur unless the merit based selection process is undertaken through a nomination panel. The nomination panel will be comprised of a chair and either two or three other members appointed by the Secretary of the Department of the Prime Minister and Cabinet. After advertising nationally to fill vacant board positions, the panel must assess each candidate against selection criteria set by the Minister for Broadband, Communications and the Digital Economy and provide a report to that minister, or to the Prime Minister in the case of the ABC chairperson, containing at least three nominations.

If the minister chooses to appoint a person not nominated by the nomination panel, the minister must provide written notice to the Prime Minister and table reasons for the appointment in parliament within 15 sitting days. There will be a number of candidates not eligible for appointment, including a member or former member of an Australian parliament or a person who is or was a senior political staff member, which includes such positions as chief of staff or adviser.

The legislation will not provide a completely independent process for appointment to the ABC and SBS boards, as the government claims. Whilst the legislation proposes a merit based process through the selection panel, the minister and the Prime Minister will still be able to ignore panel nominations and appoint whomever they like. The government’s argument that the process will protect the independence of the ABC and SBS is completely exaggerated. I also note that Labor’s emphasis on transparency and independence in this bill is completely at odds with their other policies in communications, such as the National Broadband Network.

The coalition has two further issues with this legislation. The first relates to the reinstatement of the position of staff-appointed director to the ABC board. By reinstating the position of the staff-elected director to the board of the ABC, the government are overturning the coalition government amendments of 2006 which removed the position from the ABC board. The coalition’s amendments were introduced in 2006 following the publication of the Review of the corporate governance of statutory authorities and office holders, known as the Uhrig report. The coalition’s legislation was consistent with the recommendations of that report.

All governmental office holders have a responsibility to ensure good governance and to maintain suitable relationships with the responsible minister, the parliament and the public, including private business. These principles extend to the management and governance of the ABC and of SBS. The coalition supports the important role that the ABC and SBS play in providing diverse content across both television and radio services. In particular, the content provided to regional services is an important service that the coalition strongly supports. Content made available through the ABC and SBS networks is not being provided by commercial networks, and it is important that the government continues to provide these services whilst encouraging a competitive broadcasting sector.

However, ensuring that the ABC and SBS are resourced appropriately and can continue providing unique content important to Australians comes at a substantial cost to taxpayers. For example, the ABC’s revenue from the Commonwealth government in 2010-11 is some $779 million. It is therefore essential that the ABC and SBS balance the need to provide diverse and unique services across Australia with strong and professional boards who understand these responsibilities and who can protect the interests of taxpayers. Board members of the public broadcasters must discharge their responsibilities independently and without being influenced by external groups. This is why the Uhrig report recommended that representational appointments should not be pursued. These types of appointments have the potential to place the success of an entity at risk.

The position of staff-elected director creates the potential for conflict of interest. The director in question has a responsibility to staff as their representative. It is likely that occasionally commercial decisions in the best interests of the ABC will conflict with the interests of staff. The coalition believes that each director must be suitably independent and capable of making commercial decisions without any conflict of interest.

The position is also made redundant by the operation of corporate legislation and statutory duties. As the Minister for Infrastructure and Transport noted in his second reading speech, the staff-elected director has the same duties, rights and responsibilities as all other non-executive directors. Like any other ABC director, the staff-elected director’s primary duty is to act in the best interests of the corporation. Each director has a statutory duty to the ABC. This duty is the same for each director regardless of the terms of their appointment. The statutory duty of a staff-elected representative to the staff is no more than it is for other board members. If a staff-elected board member were to place the interests of staff above the commercial interests of the ABC, that director would be in breach of statutory obligations and liable for penalty.

The coalition abolished the position of staff-elected director on the ABC board in 2006 for these very good reasons. We believed it was both unacceptable and unnecessary for a member of the ABC board to hold a potential conflict of interest between staff interests and company interests. It is unreasonable to place a director of the ABC into such a conflicted position.

The second issue of concern for the coalition is the restriction on appointment of former politicians and former senior political staff to the ABC and SBS boards. Despite the minister claiming that this bill will give ‘all Australians an opportunity to nominate for a place on the ABC and SBS boards’, Australians who have previously been involved in politics will be banned from nominating. The government argues that the restriction will enhance the boards’ independence. The explanatory memorandum to this bill states:

The exclusion of former politicians and senior political staffers from consideration for Board positions is intended to strengthen the independence and impartiality of the ABC Board, which is consistent with the Board’s duties under section 8 of the ABC Act. A number of appointments over the years have been perceived as politically biased.

These provisions ignore the fact that former members of parliament have made responsible and valuable contributions to the ABC and SBS boards. For instance, I note that the former South Australian Labor Premier John Bannon served on the ABC board with distinction. The provisions restricting former politicians and political staffers are also completely at odds with this government’s approach to other boards. We all know that the former Prime Minister appointed some high-profile coalition members to government boards. The coalition believes that where someone is capable on merit they should be considered regardless of background. If the government has faith in the merit review process it is implementing within this bill, it should expect that appropriate board members would be chosen regardless of political background.

The coalition will be proposing two amendments in order to rectify these two issues. Our first amendment will oppose the reinstatement of a staff-elected director to the ABC board. As I have outlined, we believe that the appointment of staff-elected directors has an inherent conflict of interest and it is unfair to place a director in such a position. If a current employee of the ABC wishes to become a director, the bill provides other avenues for achieving such an objective through the merit based appointment process. The coalition’s second amendment will oppose the ineligibility of former politicians and former senior staff of politicians from being considered for appointment to the ABC or SBS boards. Our amendments will restrict the appointment of former politicians and senior political staff members to 18 months after ceasing employment in politics. We believe this is a reasonable time frame. As I have outlined, the ABC and SBS boards should not be restricted in who they employ. Former political employees often have experience that cannot be gained in the private sector and the ABC and SBS should be able to utilise individuals with those skills just like any other corporate entity.

These amendments should be accepted by the parliament to ensure that the ABC and SBS boards remain independent and retain the ability to access the most appropriate board members.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

in reply—I thank honourable members for their contributions to the debate on the National Broadcasting Legislation Amendment Bill 2010. This bill will amend the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 to fulfil two longstanding commitments by the government. These amendments will lead to improved governance and better long-term outcomes for our national broadcasters. We promised in 2007 to end political interference in the ABC by introducing a transparent and democratic board appointment process that is based on merit, and we undertook to deal with SBS appointments in the same way. We also committed to restoring the staff-elected director to the ABC board.

The ABC and SBS are our national broadcasters and they play an important role in the lives of all Australians. It is imperative that they perform their functions in an independent and impartial manner. This bill establishes a statutory merit based selection process for the appointment of non-executive directors to the ABC and SBS boards. Strong boards appointed through this robust and transparent process are in the best interests of the country and of the broadcasters themselves.

The process established by this bill gives Australians the opportunity to apply for appointment to the ABC or SBS boards, and all applications will be considered on their merits by an independent nomination panel which will then recommend the best candidates to the minister. In addition, the reintroduction of the staff-elected director to the ABC board will increase the quality of the advice to the board and deliver positive benefits to the ABC and to its audience.

It is well known that the lack of due process has in the past resulted in appointments to the ABC and SBS boards that were primarily motivated by political concerns rather than the best interests of the national broadcasters and the Australian public. There is widespread concern in the community that such political appointments have diminished the level of expertise on both boards and have weakened the ability of those boards to perform their duties.

The role of the national broadcasters in shaping and influencing public opinion and in nurturing our national identity is significant. It is essential, therefore, to ensure that the boards of the national broadcasters fulfil their statutory charters in a manner that is impartial and independent from the government of the day. To this end, the new statutory appointment process will ensure that appointments to the boards are made on merit and result in board members with the necessary skills and abilities to contribute to the effective operation of these important cultural institutions.

A merit based selection process takes the politics out of the appointment process and puts the focus where it should be. These amendments formalise the new merit based appointment process in both the ABC and SBS acts. The legislation is also drafted to ensure that the independent nomination panel conducts its selection process at arm’s length from the government of the day.

The second change to be implemented by this bill is the reinstatement of a staff-elected director on the ABC board. The previous government abolished this position on the spurious ground that election to the board by ABC staff somehow created a conflict with the statutory duties of the staff-elected director to act in good faith and in the best interests of the ABC. Labor do not believe there is any conflict of interest in the position of a staff-elected director and we made a commitment in the 2007 election to restore the position on the ABC board.

The staff-elected director plays an important role in enhancing the ABC’s independence by providing the board with a unique and important insight into ABC operations. The staff-elected director brings particular expertise to the board but is not elected for the purpose of representing ABC staff. This is comparable to the other directors, who likewise do not represent the communities in which they work.

I commend the bill to the House.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the bill be now read a second time. There being more than one voice calling for a division, in accordance with standing order 133(b) the division is deferred until after 8pm.

Debate adjourned.