Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Democrat amendments (1) and (2) on sheet 4914:

(1)    Schedule 1, page 3 (after line 8), after item 2, insert:

2A  After subsection 12(3)

Insert:

       (3A)     In making an appointment in accordance with subsection (2) or (3), the Governor-General is to have regard to the merit selection processes described in section 12A.

(2)   Schedule 1, page 3 (after line 12), after item 4, insert:

4A  After section 12

Insert:

12A  Procedures for merit selection of Board

        (1)    The Minister must, within 9 months of the commencement of this section, determine a code of practice for selecting and appointing directors of the Board that must include the following general principles:

             (a)    merit, including but not limited to appropriate broadcasting industry knowledge; and

             (b)    independent scrutiny of appointments; and

             (c)    probity; and

             (d)    openness and transparency.

        (2)    The Minister must cause to be tabled in both Houses of the Parliament a copy of the code of practice within 15 sitting days after determining the code in accordance with subsection (1).

        (3)    The Minister must cause to be tabled in both Houses of the Parliament an amendment to the code of practice within 15 sitting days after the amendment is made.

These amendments are not unfamiliar to the chamber. This is, I think, the 31st or 32nd time these amendments have been moved. We consistently move these amendments to various bills covering various acts with the intention of applying a general principle to the issue of appointments to government boards and agencies.

The amendments do not reflect adversely on many fine appointments made by both the Labor Party when in government and by the coalition since it has been in government. Plainly, many appointments to government boards and agencies have been exemplary and the persons concerned have performed to expectations with respect to their duties. However, there is an issue of both perception and reality. The widespread perception in the community is that political patronage applies. This is a complaint laid before all governments all over the world, and it is a reality that people who are close to, networked with or in touch with the government of the day—are simpatico with them, if you like—end up being appointed to boards and agencies as a consequence. That perception and reality has led to the phrase ‘jobs for the boys’ being coined—although, in this age of nondiscrimination, it turns out to be jobs for the girls as well.

The difficulty with the ABC is that it is a particularly sensitive institution. All politicians are extremely sensitive to the media and to media commentary. It is a fact that, whilst all politicians will argue that they want the media to be objective, effectively they much prefer if the media are biased, but biased to their particular argument and their particular character. And, when the political class have the opportunity to influence the media, they are seen to do so. Therefore, any appointments to the ABC board would be seen within that prism, and it is an area which is particularly sensitive.

This is not just a national problem; it is an international problem. The Democrats therefore searched around to see how other parliaments and other governments have dealt with it. We have decided that the United Kingdom model would be most attractive—and, as you know, as a country we are very close to the United Kingdom, both constitutionally and culturally. The interesting thing about the United Kingdom is that it is much less of a democracy than ours. For a start, it has a grossly elitist and unelected upper house—in complete contrast to our nearly proportionately representative, democratically elected, compulsorily voted for, preferentially voted for upper house. They do not have any such thing. Like us, of course, they have the house of the executive—there it is known as the House of Commons; here it is known as the House of Representatives—where the party of the day rules. Fortunately in England, to my knowledge, all parties admire conscience votes. The Labour Party there, which is in government at present, is mature enough to allow conscience votes, so it tends to be a far less rigid house than is our House of Representatives, in the sense of the views expressed and the way people vote.

The point of those remarks about the United Kingdom parliament is that, even there, where the executive, in my view, has even greater sway than the executive in Australia, they are constrained by both convention and public opinion. Public opinion, reinforced by strong and consistent media campaigning, resulted finally, in the nineties, in pressure to review the way in which government appointments were made. It was in those circumstances that Lord Nolan was commissioned to review appointments, and he came up with a set of criteria which have been adopted.

Yesterday, in my speech during the second reading debate, I outlined the Nolan committee principles, which were accepted by the United Kingdom parliament in 1995. Those principles to guide and inform the making of appointments are: a minister should not be involved in an appointment where he or she has a financial or personal interest; ministers must act within the law, including the safeguards against discrimination on the grounds of gender or race; all public appointments should be governed by the overriding principle of appointment on merit; except in limited circumstances, political affiliation should not be a criterion for appointment; selection on merit should take account of the need to appoint boards that include a balance of skills and backgrounds; the basis on which members are appointed and how they are expected to fulfil their roles should be explicit; and the range of skills and backgrounds that are sought should be clearly specified.

When the United Kingdom government accepted the Nolan committee’s recommendations, the Office of the Commissioner for Public Appointments was subsequently created. Its level of independence from the government was similar to that of the Auditor-General to provide an effective avenue of external scrutiny. That has not meant that controversy has not continued to reign over appointments, but it has meant that there is a system to limit the controversy and to provide a framework for appointments to be made objectively and in circumstances in which political patronage can be limited. That is a very useful model.

The alternative model is the American model, whereby appointments are vetted by the parliament and can become highly politicised and extremely personalised. That has some very unpleasant side effects, both from the perspective of the individuals under scrutiny and from the point of view of the parliament. My party and I are thus more attracted to the United Kingdom model.

The Minister for Communications, Information Technology and the Arts is quite correct in saying that a number of acts do specify some criteria—mostly about the sorts of abilities or skills that should be apparent in some appointments to some particular tasks. The Australian Broadcasting Corporation Act is one of those, but it does not cover the field—which is what the Democrat amendments are about. Although all governments—federal, state and territory—continue to resist this model, in my view the desire for good government and good governance should require them to take it up eventually. One would hope that an opposition would have the honesty and the integrity to finally adopt a standard of governance which lifts standards rather than maintains old standards. And one would hope that the media would continue to be persistently and consistently aggressive in this field.

Whatever we as politicians or members of the public may say about the media in general, most media organisations are corporations and many of them are publicly listed corporations. Most board appointments are subject to the election process established in the organisation’s corporate constitution. When you get to government appointments, the nature and the character of the minister and of the agency affect the way in which appointments are made, and all governments—federal, state and territory—should really be driving to resist political patronage in this area.

Democrat amendment (2) does not seek to repeat the Nolan principles word for word. It merely states:

The Minister must, within 9 months of the commencement of this section, determine a code of practice for selecting and appointing directors of the Board that must include the following general principles:

(a) merit, including but not limited to appropriate broadcasting industry knowledge; and

(b) independent scrutiny of appointments; and

(c) probity; and

(d) openness and transparency.

This is an extremely broad remit; it is a generous remit which does not unnaturally confine the minister. In fact it is, in some respects, quite weak in comparison with the Nolan principles, because the Nolan principles are very specific. Our amendment is designed in this way because we recognise the apparent limits of and the resistance to this principle by the governments of the day.

I do not think that the principle of appointment on merit is enshrined anywhere in the Commonwealth statutes—and the minister can correct me, and I am sure the advisers would know the statutes well. I do not think that it says anywhere that appointments should be made on merit. This seems to me to be a quite extraordinary omission which reflects very badly on the bureaucrats who advise the ministers as to how bills should be constructed. It reflects much more on the ministers and the backbenchers who decide on the content of bills. We really should, in this modern age, be into the principle of meritocracy and without regard—with respect to the lady senators who are present—to gender discrimination, which still goes on. The glass ceiling still exists. The number of women appointees on both private and public boards is still too low. That is still an issue, and perhaps an appointment on merit process might advance that cause as well.

With that reasonably broad-ranging motivation for the Democrat amendments—which will no doubt be turned down for the 30th or 31st time, to the discredit of those who vote against it, may I say, without reflecting on the vote of the Senate, because it has not occurred yet—I commend the amendments to the Senate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

It is probably worth while going back to what this bill is in fact about before I deal with the Australian Democrats’ amendments. The Australian Broadcasting Corporation Amendment Bill 2006 is a short bill, and Labor opposes it because what it does is reduce—and this is the technical way of doing it—the maximum number of directors on the ABC board from nine to eight by abolishing the position of the staff-elected director. That is what we are talking about today with this bill.

The government argues that the staff-elected director is subject to potential conflict—perhaps a conflict of interest or feeling obliged to represent the interests of the people who elected them—rather than acting in the best interests of the ABC itself. That argument has been totally rejected. I think the debate over the last day has demonstrated that. I think Senator Coonan has failed to make the case for why this bill should be supported by this parliament. Labor has not heard any evidence to support the position that has been put by the government in respect of this bill. There is nothing that can be pointed to that demonstrates that any staff-elected director has failed to comply with their duties. When you look at what is really behind the legislation, it is all about undermining the independence of the ABC.

The Minister for Communications, Information Technology and the Arts, Senator Coonan, did announce plans to restructure the ABC board back in March, and it is fair that people expected that a reasonable restructure might be undertaken. This is the result: a very short bill which deals with abolishing the position of a staff-elected director on the ABC board. It is hardly what you would call a realistic approach to a restructure—hardly a true attempt to ensure that the corporate governance arrangements for the ABC mean it remains independent. All this government has done over its period in government is stack the ABC board with its political mates to try to gain control. That is all it seems to have sought to do.

This bill was also subject to a Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry. That inquiry did not find any evidence that we should depart from the current arrangements. So, if the minister were serious about a proper restructure, it would be a case of taking the bill back to the drawing board and having a proper look at it. But of course the minister is not serious about that at all. The minister does not want a truly independent statutory governing body for the ABC.

Since 2003, Labor has argued that there should be an open and transparent process for making appointments to the ABC board. If the minister was serious about a restructure, she could certainly have a look at that proposal—but no. I do not think we are going to hear that from this government, not on this issue.

Turning to the Democrat amendments, Labor does support the sentiment behind them. As Senator Conroy indicated yesterday in his contribution to the second reading debate, Labor believes that there should be a merit based selection process for appointments to the ABC board. It is a sensible way of appointing people to the board. While the final decision should remain with the minister, the eligibility of candidates would be determined by an independent selection panel. If the minister appointed a person not nominated by the selection panel, a statement to parliament setting out the reasons would be required.

This model is based on the Nolan rules, which govern appointments to the BBC in the United Kingdom. Labor has consistently argued for this policy for the last three years. So it was not a case of the minister not being aware that this was on the table. If there was going to be a true restructure of the ABC board—as the minister, I suspect, tried to promise back in March—then those matters should have been put on the table and argued out to come up with a reasonable model that would in fact deal with the range of issues that have come up in the last couple of years.

Unfortunately, the appointment model suggested by the Democrats does not meet the requirements set out by Labor. So, although we are of a mind to support the sentiment behind the Democrat amendments, we are in a position where we cannot actually support the amendments as proposed by you, Senator Murray, although we do understand that you have brought this idea forward a number of times and have argued quite passionately for it. The idea that there should be clear merit based selection criteria is one that I think we all agree on—except the government. It does not seem that we are going to gain much ground with this government, given its past practices and its actions today—not that that should deter us from continuing to argue the point. Perhaps Labor and the Democrats can still argue the same point from different perspectives, even though we might not agree on the black-letter print. One of the issues I would raise in respect of Senator Murray’s amendments is that they do not appear to be binding on the government as they only require the Governor-General to ‘have regard’ to the principle of a merit based selection process in making appointments.

Labor do not believe that this bill can be fixed on the run. The government should have taken the opportunity during the review process to look at the issues that the Democrats have raised and that we have raised about a merit based selection process and dealt with them then. It has avoided the main issue, which is not surprising for a government that, by the look of it, seeks to continue to ensure that its political mates can be put on the ABC board. Unfortunately, Senator Murray, Labor think that the amendments that you have proposed leave the minister with too much discretion. Given the minister’s form, we do not think they should be supported. In fact, we believe the legislation should be rejected outright.

Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Link to this | Hansard source

I want to make a few comments in response to Senator Ludwig’s unwarranted attack on the motives behind the government bringing forward this bill. Senator Ludwig—and I will be very brief about this—has made a number of fairly wild and unsubstantiated assertions about the government stacking the ABC board, without, of course, naming names or being prepared to have the courage to indicate who he is talking about.

The interesting thing about this is that if the government had any interest in stacking the ABC board—which of course we do not and which we emphatically reject as an allegation—the director’s position simply could have been left there and the characteristic or the component of it being an ABC nominee could have simply been removed, which would have allowed yet another position to be so-called stacked. It gives the lie, of course, to Senator Ludwig’s assertion that the government is trying to keep directors there for some unidentified purpose. I do not intend to go into a more substantial refutation of those allegations because they are simply not made out. They are very wild and there is no evidence to support what Senator Ludwig has said.

However, I do want to spend a moment on Senator Murray’s amendment because—whilst the government will not be supporting it—as with all amendments that Senator Murray moves, I think carefully about the purpose behind him bringing forward those amendments and I have, in fact, thought about what other approach might be taken in relation to appointments. The first thing is that there is some suggestion that appointments are not made on merit. The mere fact that appointments might be expressed to be on merit in a piece of legislation does nothing if you do not also have some guidelines as to how you approach it. I will remind the Senate of the very specific requirements of the act:

A person shall not be appointed as a Director ... unless he or she appears to the Governor-General to be suitable for appointment because of having had experience in connection with the provision of broadcasting services or in communications or management, because of having expertise in financial or technical matters, or because of having cultural or other interests relevant to the oversight of a public organization engaged in the provision of broadcasting services.

If an appointment there does not sit on merit you really wonder how else you would, in all honesty, fulfil the requirements of the criteria set out in the act. I certainly approach it on the basis that it is implied, if not explicit, that appointments are made unequivocally on merit.

The other point that I want to make really underscores why the government does not support this process, and there are a number of reasons that I will not go into. Cutting to the nub of it, I think the existing appointments process for the ABC is very similar to that for most other Commonwealth agencies. From the debate that has taken place in relation to this bill I cannot see that any case has been made out by any speaker—and certainly no case has been made independently of any speaker outside the parliament—to indicate that the process is failing or that the ABC should be singled out from other Commonwealth agencies in this regard.

The method of appointment reflects, I think it is fair to say, standard practice for Commonwealth statutory authorities, and I simply cannot see any rationale for taking out the ABC from a process that works well. The government considers that the current appointments process works well, and it will continue to recommend to the Governor-General the appointment of people to the ABC board who it believes will carry out their responsibilities in line with the very clear requirements of the act.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

There are two things I wish to put. The first is a statement or request and the second is a question. Through you, Chair, I make a request to the shadow minister for communications and information technology. I believe that what Labor have announced and proposed as an improvement on the ABC appointment process is indeed an improvement, and I would be attracted to consider that if it was placed as a legislative amendment to the act. I would request, through the chair, for the shadow minister to put to his caucus the proposition that, the next time a bill is before us dealing with the ABC, Labor in fact put forward a legislative amendment to implement their proposal—with the caveat, of course, that we would always want to see the words. But on the basis of the principles Labor have outlined I would be inclined to argue to my party that we should be supportive of such an amendment. It would be very useful if the Senate was given the opportunity to consider an alternative model. That is just a request through the chair.

My question is to the minister. Minister, I think you stated explicitly rather than implicitly, because of the way in which the act is framed, that the Governor-General is the ultimate arbiter as to whether an appointment conforms with the act. You may be able to correct me because, of course, you would have dealings with him in council in a way I do not, but to my knowledge the deliberations of the Governor-General are not public. We have no way of knowing by what process the Governor-General would examine such appointments and whether they comply with the act. I would assume, given the act gives him a task to do, that the minister responsible would provide a brief and the Governor-General would examine that brief to see if it met the act.

My question is: how does he test that brief? How does he establish it? Does he just accept whatever the minister says at face value? If it is a process that the Governor-General does just accept at face value, to cross reference a remark: somebody once remarked that they had the Governor of the Reserve Bank in their pocket. I would hate to think that the Prime Minister or any minister would think they had the Governor-General in their pocket. If the Governor-General ever rejected a bill or an appointment then I would be satisfied that there was a public signal that he was not just complying with whatever the minister or the government wanted. Speaking personally, I think being the final arbiter of an appointment is an invidious position, frankly, for the Governor-General to be in. I think the process should be ironed out long before that occurs. Perhaps for the elucidation of the Senate, the minister might indicate the precise role of the Governor-General and how he carries it out with respect to the specific requirements of the act.

Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Link to this | Hansard source

Thank you, Senator Murray. Appointments are made in Executive Council in accordance with the processes that the Governor-General participates in, together with ministers. The method of appointment is the same, as I have said, for Commonwealth statutory authorities. As with all of the deliberations of the Executive Council they are private deliberations, but that it is our Constitution.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

In respect of that issue that Senator Murray raised about the merit based selection model, I will take that on board and pass it to the relevant shadow minister, Senator Conroy, for him to consider.

Question put:

That the amendments (Senator Murray’s) be agreed to.