Tim Storer (SA, Independent) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

I table an explanatory memorandum, and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

AUSTRALIAN BROADCASTING AMENDMENT (APPOINTMENT OF DIRECTORS) BILL 2018

Threats to the independence of the ABC are nothing new.

By my estimation, since the mid-1970s no fewer than four of the eleven ABC Board Chairs have had their terms cut short for failing to live up to the expectations of the government of the day — both coalition and Labor.

Three Managing Directors have met the same fate.

Some displeased the government of the day, some were not up to the job.

What unites them all is that they were subject to less than transparent processes which have cumulatively led to a loss of public confidence NOT in the independence of the ABC, but in its ability to withstand attacks on that independence.

Now it has happened again despite the 2012 introduction of new measures for board appointments designed to ensure, as stated by the government of the day, "a transparent and democratic board appointment process that appoints non-executive directors on merit".

But in recent years, the intention and the spirit of this process have been ignored on at least three occasions, leading to public disquiet about the independence and integrity of the ABC.

Three appointees to the ABC Board by this government were not recommended by the independent Nomination Panel; a fourth was highly rated by the Panel, but then withdrew from the process and was subsequently appointed by the Minister.

The National Broadcasting Legislation Amendment Act 2012 established an independent Nomination Panel designed to nominate appointments of non-executive directors to the boards of the ABC and SBS based "on merit".

According to the Act the nominees were required to have had "experience in connection with the provision of broadcasting services or in communications or management"; "expertise in financial or technical matters"; or "cultural or other interests relevant to the oversight of a public organisation engaged in the provision of broadcasting".

But the Act also enabled the Prime Minister of the day to ignore Panel nominations as long as he or she tabled "the reasons for that appointment in each House of the Parliament no later than 15 sitting days ... after that appointment is made."

The intention was honourable, but it has turned out to be a substantial deficiency.

As Senator Nick Minchin, then Shadow Communications Minister, said in this place on November the 17th 2009 when the legislation was introduced:

"While the government is establishing a Nomination Panel for the appointment process, at the end of the day the scope remains for the minister and the Prime Minister to ignore Panel nominations and appoint whoever they like."

And so it has turned out to be, setting in train a course of events which once again sees the ABC with a Managing Director whose term has been cut short and a Chair whose actions have forced him to resign.

A bare majority of the current ABC Board was appointed as a result of recommendations from the independent Nomination Panel.

Two of the current board were not nominated as qualified candidates by the Panel; one did not even apply.

The amendment I am proposing is designed to remedy this situation by returning to the spirit and intention of the legislation which set up the independent Nomination Panel and the process surrounding it.

It is a modest proposal -- a multi-stage, graduated process designed to enhance independence, transparency, multi-partisanship and public confidence both in the appointment process and the future independence of the ABC.

What it is NOT is an attempt to impose US Senate-style confirmation hearings on Australian democracy. The Bill is consistent with the principles of Westminster government: the ultimate appointment of a non-executive director remains the prerogative of the Governor-General on the recommendation of the Prime Minister or Minister.

The Bill requires the Prime Minister in the case of the Chair of the ABC or the Minister in the case of the other non-executive directors to publish the name of their proposed appointee if they intend to ignore the recommendations of the independent Nomination at least 30 days before the appointment proceeds.

This strengthens the integrity of the Panel process and of its members.

It maintains the confidentiality of those candidates not recommended by the Panel and enhances the authority of Panel nominations by putting them in the public domain.

The confidentiality of the nomination process before the Panel's announcement minimises the likelihood of well-qualified individuals being deterred from putting their names forward.

It reduces the prospect that the efforts of the Panel will have been a waste of time as former Panel member and former coalition government minister Neil Brown has pointed out when his and other Panel members' nominations were ignored.

The reasons must be published on the website of the Department of Communications and the Arts. The Opposition Leader must be informed in writing and invited to comment within a reasonable period.

If the Opposition Leader informs the Prime Minister (in the case of the Chairman) or the Minister (in the case of other non-executive directors) in writing within the specified period that he or she does not agree with the appointment the Prime Minister must cause a statement of reasons, including an assessment of the appointee against the selection criteria set down for the independent Nomination Panel, to be tabled in both Houses of Parliament.

In that situation, the Prime Minister or the Minister, must not recommend the Governor-General make the appointment until after the end of the 90 day period beginning when the statement was tabled in the second of the Houses.

This strengthens the current legislation which requires the Prime Minister consult the Opposition Leader only in the case of the appointment of the ABC Chair before recommending the appointment to the Governor-General.

Following tabling of the government's statement of reasons in both Houses of Parliament it would be open to the Senate to hold an inquiry into the nomination by the relevant committee.

It is to be hoped that this new final step need never be taken; that the modest, measured and graduated steps I am proposing would be sufficient to encourage governments to accept the nominations of the independent Nomination Panel.

Should they not, the voters would see where responsibility for the consequences of the government's actions lie — with the government and no one else.

And that is where responsibility for the recent episode centring on the former Chair and former Managing Director of the ABC lies — with the government and no one else.

They appointed Justin Milne; he headed the Board who appointed her. Neither process was sufficiently transparent.

We now know that the Minister was informed of the breakdown in relations between the Board and Ms Guthrie on September 12th, 12 days before her dismissal became public.

The Minister denies that he has ever "in any way shape or form sought to involve himself in [ABC] staffing matters."

Clearly, Mr Milne saw it differently.

In the report commissioned by the Minister from his Department Secretary Mr Milne does not deny that he wrote an email to Ms Guthrie about an article by ABC Chief Economics Correspondent Emma Alberici.

That email stated that "they [the government] hate her."

"We are tarred with her brush. I think it's simple. Get rid of her. We need to save the ABC ¬not Emma. There is no guarantee they [the Coalition] will lose the next election."

According to the report of the Secretary of the Department of Communications and the Arts, the former ABC Chair acknowledges that a conversation with Ms Guthrie about ABC Political Editor Andrew Probyn "was around what to do with him".

Mr Milne does not recall, but does not deny having used the term "to shoot him" in reference to Mr Probyn in that conversation.

According to the report, Mr Milne "does not consider that either communication was a direction to the MD."

It does not matter what he thinks. What is significant is what Ms Guthrie thought was the import of Mr Milne's communications with her.

According to the report, Ms Guthrie does consider the Alberici email "constituted a direction to take action" and was "consistent with what she regards as an interventionist approach to individual staffing and editorial matters which the Chair adopted.'

Equally, Ms Guthrie regards the Probyn phone call from Mr Milne as providing "significant pressure to terminate Mr Probyn's employment."

"Shoot him", "get rid of her", "bone her", "spear him" — no one who uses colloquial Australian would have any doubt what they mean, whatever Mr Milne believes.

The current processes for appointing non-executive directors to the ABC board may have been well intentioned, but they have failed.

It is time for the Senate to pass the modest, measured, graduated steps I am proposing so that the chances for political interference in the ABC — real or perceived — are reduced and the public can be assured that the pre-eminent cultural institution is not only genuinely independence, but also has the protections to withstand attacks on that independence as well as its autonomy and integrity.

I commend the bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.