Ruth Webber (WA, Australian Labor Party) Share this | Hansard source

As I was saying earlier when I was making a brief contribution to this debate, surely the minister’s statement on 24 March about the roles of directors of the ABC makes clear that the means by which a director is appointed has absolutely nothing to do with the rights, duties and obligations that a person must discharge as a director. In fact, as we all know, and as I said before, it is enshrined within the law. If you are a director it does not matter how you come to be appointed: you must act in the same prescribed manner as all other directors. So the staff-elected director of the ABC does not have the right to cherry-pick which parts of the rights, duties and obligations they can or will undertake. They are required under law to act in the same way as all other directors. So the government’s proposition that the staff-elected director is somehow different under the law is blatantly not true. There can be no uncertainty surrounding their legal position on the board of the ABC. After their election to the board they are simply another director under law.

I will accept that the staff elected director on the board has a different perspective from other directors in that they work within the corporation. They interact on a daily basis as part of their normal work with other staff and management of the ABC. However, that does not change their status or legal obligations. This chamber knows that there is no uncertainty in the legal obligations of the staff-elected director, so why is the minister using that absurd proposition that there is uncertainty about accountability? If this bill is passed by this chamber and becomes law, as the minister and the government are determined that it will, it will mean that all of the directors of the ABC will be appointed by the government. Maybe that is the accountability that the minister is concerned about. Maybe when they say ‘accountability’ the minister and the government actually mean that ultimately all directors of the ABC must be in their view accountable to the whims of the minister and the government of the day and only that, and that they are the only people that should have a say in who the directors shall be.

The government will not have to worry about differences of opinion or dissent on the board of the ABC once the staff-elected director is removed. The only way you can be on the board of the ABC any time in the future once this piece of legislation is passed is if the government appoints you—nothing more, nothing less. Every member of the board of the ABC will be accountable directly to the minister and the government. There will be no uncertainty about accountability in the future. There will be no director on the board who is not put there directly by the minister and the government—no more scrutiny of appointments to the board, no more independent voice. You have to ask yourself the question: why is it now so important to remove the staff-elected director of the ABC board? Why is the minister so concerned about this?

As was outlined in earlier contributions to this debate, the current staff-elected position was created in 1986 under the Hawke government. The staff-elected director has operated therefore for over 20 years. Where has the so-called uncertainty about that staff-elected director’s accountability been in all that time? It would seem that the government has only developed this concern about accountability once it got the numbers in this place to get rid of the only independently appointed director. Has the staff-elected director of the ABC ever been sacked for failing to undertake the duties and obligations as required under the law? Of course they have not. So a system that has worked for over 20 years, one that has provided a voice independent of the government of the day, is now deemed to not be in line with modern principles of corporate governance, according to the minister for communications. That is an absolute nonsense.

Every time the government attempt to cast this amendment in a reasonable way, they are hoist on their own petard. Look at what the explanatory memorandum says:

The election method creates a risk that a staff-elected Director will be expected by the constituents who elect him or her to place the interests of staff ahead of the interests of the ABC ...

The constituents who elect the director can have whatever expectations they want of that director. As the minister so helpfully points out, upon becoming a member of the board of the ABC the staff-elected director has exactly the same rights, duties and obligations as any other director. The risk that the explanatory memorandum talks about is surely no different from the risk that faces all directors of the ABC. The government and the minister, as the constituents who appoint the other directors, may have exactly the same expectation that those directors will place the interests of their constituents above the interests of the ABC. So the risk exists in either case or it does not exist at all. You cannot have it both ways. Election by the staff creates the same level of risk as appointment by the minister.

The amendment contained in this bill will no doubt have to be followed up in other legislation, as other Commonwealth statutory authorities have staff-elected positions on their governing bodies as well. These include, as has been mentioned before, the Australian National University, the Australian Institute of Health and Welfare, and the Australian Film, Television and Radio School. However, this is just the tip of the proverbial iceberg. If we remove all representational members of boards and governing bodies from Commonwealth statutory authorities and corporations, I am sure that there will be a number of members of The Nationals and their fellow travellers who will lose out in a big way. What is the government going to do about all those representational appointments, especially in the agriculture area? How many boards of the Australian government have representational appointments? Surely, if it is good enough for the ABC to do without representational appointments, it is good enough for any government agency or authority?

Let us look at some examples from the corporate world—the arena where the minister’s so-called modern principles of corporate governance can be seen in operation. Firstly, let us look at a government company that was privatised only seven years ago—the Australian Wheat Board. That was done by this government. Let us examine the corporate governance of the AWB. Indeed, there are two different types of directors, class A and class B, who are elected by class A or class B shareholders. Class A directors are elected on a regional basis—two from New South Wales, two from Western Australia, one from South Australia, one from Victoria-Tasmania and one from Queensland-Northern Territory. A further two directors are elected by class B shareholders and two more are appointed by class A directors. So, by any measure, the AWB has a board elected and appointed on a representational basis. Some are elected on a regional basis, some are determined by the types of shares and some are appointed.

Surely, when the government talk about the principles of modern governance for the ABC, they would do well to apply the same principles to Australian companies. Look at what the corporate governance document of the AWB says:

Regardless of who elects or appoints a director, each director is obliged to act in the interests of AWB as a whole. Although directors may be elected by particular shareholders, directors are not considered the servants or agents of particular groups of shareholders or required to follow directions of or requests from any group of shareholders ...

BP Australia simply appoints its directors, and I suppose that is the model that the government are now proposing for the ABC. Woolworths Ltd directors are appointed, and the directors of the Australian Submarine Corporation are all appointed by the Minister for Finance and Administration.

The modern principles of corporate governance seem, from a cursory examination, to consist of directors being appointed by other directors, sometimes being elected by shareholders and sometimes on a representational basis. In none of the examples I am aware of is any director beholden to the group that elects or appoints them. In all cases, directors are required under law to act in the best interests of the corporation or company. The government has used a ridiculous assertion—that of uncertain accountability—to remove the staff-elected director from the board of the ABC. This is not for any reasons of modern corporate governance, nor for the reason of uncertain accountability, but solely for the reason of political expediency. With the removal of the staff-elected director of the ABC, the government will be completely in control of the ABC. This is what Mr Howard’s government has delivered after 10 long years: a less open and transparent ABC, appointed by government to serve the wishes of government without the possibility of independence or dissent.

The ABC, as was mentioned by Senator Conroy, is not like any of the other broadcasting companies in this country. The ABC fills a unique position in the Australian community and is full of hardworking, creative and inspirational talent. The ABC has been at the forefront of innovation, creativity and risk for its entire lifespan. The decision by the minister to remove the staff-elected director is not a step forward into modern corporate governance but a step backwards into an organisation run by mates for mates. The ABC has a unique place in our community, and the staff-elected director has demonstrated that they are able to effectively discharge the duties of a director and act in the best interests of the ABC as a whole. This is not an accountability debate. This is not even close to a corporate governance debate. This is simply a grab for power by the minister and the government, behind spurious and ridiculous reasoning.