Thursday, 15 November 2018
Australian Broadcasting Corporation Amendment (Appointment of Directors) Bill 2018; Second Reading
I rise to speak to the Australian Broadcasting Corporation Amendment (Appointment of Directors) Bill 2018. Watching Four Corners on the ABC is rarely less than instructive, and that was certainly the case with this week's program on the recent leadership crisis at the ABC. Instructive it was in a number of ways. First, it was a reminder that no other major media organisation in the country would have the courage to take a look at itself in such depth without fear or favour. Second, it revealed that as the people appointed to run the national broadcaster and chair its board were engaging in a battle for personal survival, the staff at the ABC were getting on with the job. Third, it showed that neither the sacked managing director nor the former chair was suitable to lead and care for our most important cultural institution, as it was put in The Guardian by Margaret Simons, a distinguished journalist and academic who has reported authoritatively on the ABC for many years. Fourth, it showed that parliament must now take steps to ensure that this never happens again—that there is more independence, integrity and transparency in the process for appointing board directors. That is the point of the legislation I have introduced, the Australian Broadcasting Corporation Amendment (Appointment of Directors) Bill 2018, which we are debating today.
I do not intend to bring this to a vote today, but I do hope the provisions of this bill may be incorporated in amended terms of reference for the current Senate inquiry into allegations of political interference at the ABC. On the other hand, I believe it would be useful for the committee to use the process I am proposing as guidelines in coming to a set of recommendations to try to ensure that what we have seen in recent weeks cannot happen again. As the terms of reference of that inquiry indicate, it must examine why it was that the board decided to terminate the contract of Ms Guthrie less than halfway into her contract.
Public knowledge of what happened remains imperfect, despite the best efforts of journalists, including those working for Four Corners. It is also the case that there is more to learn about the efforts of the government to influence the ABC. We now know that Mr Milne did want the ABC's chief economics correspondent sacked, to 'explore external development opportunities', as he put it to Ms Guthrie. 'What did that phrase mean?' Sarah Ferguson asked Mr Milne on Four Corners. Mr Milne replied that it was a 'silly corporate euphemism for firing her'. Mr Milne denied that the government had ever placed political pressure on him either to sack ABC journalists or to influence the way the broadcaster reported events. However, he did acknowledge that the communications minister, Senator Fifield, called him frequently to 'discuss issues', as he told Four Corners. This does leave questions for the Senate inquiry to ask, but it would be a failure if the committee were to simply delve into the past rather than looking to solutions for the future.
The ABC is the most trusted media and cultural organisation in the country. That was the finding of the Roy Morgan research organisation, which reported in May that just nine per cent of those surveyed distrusted the ABC, well ahead of commercial media. According to Morgan, the ABC is by far the nation's most trusted media organisation. This is backed up by the ABC's own research, which has found that 82 per cent of people trust the information provided by the national broadcaster—again, well ahead of its commercial counterparts. Nothing could be more telling in this regard than another recent episode, again with Four Corners at its centre. The mere prospect of a Four Corners program on aged care led the government to announce a royal commission. If the ABC in general, and Four Corners specifically, did not have a well-earned reputation within the community for accuracy and impartiality, the government would not have acted with such haste. Those opposite knew that it would be better to get in first with a royal commission, that what was coming would make a compelling case for action, as other Four Corners programs have done in the past. The government knew it would be better to move with speed, rather than having to face the music before taking action. I commend the government for its good sense in this regard.
The ABC has been the prism through which Australians have been able to inform and add to their knowledge about themselves and the world for close to a century. It also provides entertainment as well as services for children and those in the bush that no other organisation has been prepared to do or capable of doing. It is well worth the public money invested in it. Indeed, the ABC continues to do more with less. Since 2014, the government has cut more than $250 million from the budget and another $84 million in the last budget. In the run-up to the Mayo by-election, a ReachTEL poll conducted in my home state of South Australia found that close to three-quarters of Australians wanted the ABC's funding increased or maintained at its current level. That includes more than 70 per cent of coalition voters. Given the results of the Mayo and Wentworth by-elections—the ABC was an issue in both polls—there are lessons for all of us in those findings. The implications are that the public do not appreciate perceptions that the ABC is under political pressure and that its independence is threatened. For those two reasons alone, the bill I have introduced would be an important step forward in enhancing the ABC's independence and ability to withstand political pressure.
Threats to the independence of the ABC are nothing new. By my estimation, since the mid-seventies no fewer than four of the 11 ABC board chairs have had their terms cut short for failing to live up to the expectations of the government of the time, 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. On that score, Ms Guthrie told Four Corners, as we saw last Monday, that the minister had complained to the ABC six times in five months. 'Unprecedented in any term' was the phrase used to describe the minister's behaviour. Now another chair and another managing director are gone, mid-term, despite the introduction in 2012 of new measures for board appointments designed, as stated by the government of the day, to ensure 'a transparent and democratic board appointment process that appoints non-executive directors on merit'. 'Transparent' and 'on merit' are the key terms here.
However, in recent years the intent and 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 Bill 2012 led to the establishment of 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 requirement is for nominees:
(c) having had experience in connection with the provision of broadcasting services or in communications or management; or
(d) having expertise in financial or technical matters; or
(e) having cultural or other interests relevant to the oversight of a public organisation engaged in the provision of broadcasting services.
But the act also enables 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 17 November 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 that, 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 were appointed as a result of recommendations from the independent nomination panel. Two of the current board were nominated as qualified candidates by the panel and one did not even apply.
The amendment I am proposing is designed to remedy this situation by returning to the spirit and intent of the legislation that set up the independent domination panel and the process surrounding it. It is a modest proposal, a multi-stage, graduated process to enhance independence, transparency, multipartisanship and public confidence in both 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, in the case of the chair, or the minister, in the case of a director. 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 appointment at least 30 days before the appointment proceeds, if they intend to ignore the recommendations of the independent nomination panel. 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 nominations, and those of other panel members, were ignored. The reasons must be published on the website of the Department of Prime Minister and Cabinet, and the Leader of the Opposition must be informed in writing and invited to comment, within a reasonable period. If the Leader of the Opposition 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 review panel, to be tabled in both houses of parliament. In that situation, the Prime 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 to consult with the opposition leader only in the case of an appointment of the ABC chair before recommending the appointment to the Governor-General.
Following tabling of the government's statements of reasons in both houses of parliament, it will be open to the Senate to hold an inquiry into the nomination by the relevant committee. It is hoped that this new final step need never be taken and that the modest, measured, graduated steps I am proposing will be sufficient to encourage governments to accept the nominations of the independent review panel. If they are not, the voters would see where responsibility for any consequences of the government's actions lie—with the government and no-one else.
That is where the responsibility rests for the recent episodes centring on the former chair and former managing director of the ABC—with the government and no-one else. They appointed Justin Milne. He headed the board which sacked Ms Guthrie. He was recommended by the independent nomination panel, but, as he told Four Corners, he put his name forward only after being approached by the minister. We now know that the minister was informed of the breakdown in relations between the board and Ms Guthrie on 12 September, 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's secretary and in the Four Corners program, Mr Milne did not deny that he wrote an email to Ms Guthrie about an article by ABC chief economics correspondent Emma Alberici. That email stated:
Mr Milne said in the email of Alberici, according to Fairfax Media—
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—
will lose the next election.
According to the report of the Secretary of the Department of Communications and the Arts, the former ABC chair acknowledged 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, in the secretary's report, does not deny having used the term 'to shoot him' in reference to Mr Probyn in that conversation. According to the secretary's report, Mr Milne does not consider that either communication was a direction to the managing director.
But it doesn't matter what Mr Milne thinks. What is significant is what Ms Guthrie thought was the message of Mr Milne's communications with her. According to the secretary's report, Ms Guthrie did consider the Alberici email constituted a direction to take action and was consistent with what she regarded as an interventionist approach to the individual staffing and editorial matters which the chair adopted. Equally, Ms Guthrie regarded the 'Probyn phone call' from Mr Milne as providing significant pressure to terminate Mr Probyn's employment. 'Shoot him' and 'get rid of her'—no-one who uses colloquial Australian would have any doubt what those phrases mean, whatever Mr Milne believes.
The current processes for appointing non-executive directors to the ABC board may well have been well intentioned, but they have failed. It is time, in my view, for the Senate to pass the modest, measured, graduated steps I am proposing so that the chances of political interference in the ABC, real or perceived, are reduced and the public can be assured that this pre-eminent cultural institution not only is genuinely independent but also has the protections to withstand attacks on that independence, and so that its autonomy and integrity are strengthened. With a Senate inquiry underway, it is better, in my view, that this committee either consider amending its terms of reference to incorporate the intent of this bill or use this legislation as a road map for making sure the appointment process for members of the ABC board becomes more independent and transparent, as well as improving its integrity.
The independent nomination panel deserve to know that their work will be treated with respect. They also need to know that their reputations are linked to the quality of their recommendations. The public have repeatedly made it clear that they expect their ABC to be free of political interference and to have management and a board that have the back of the staff as a priority. There is much else that needs to be done—greater funding certainty for the ABC, for example—but I believe this bill is a modest, necessary step forward. I do hope the Senate agrees.
It is useful at the outset of this debate to say something about the existing appointment process for people to be added to the ABC's board. It is worth noting that the coalition government's appointments to the ABC board have been made not in accordance with a process that the coalition designed but in fact according to a process that was designed and legislated by the Labor Party when in government. The government has, despite having no input into that design, followed this process to the letter on each and every occasion that it has made an appointment to the ABC board. The process requires the involvement of the independent nomination panel for ABC and SBS appointments, whose four members are appointed by the secretary of the Department of the Prime Minister and Cabinet.
Let me take you through that process. On each occasion the process involved, first, the advertising of vacancies—or a single vacancy, if there is only one—then assessment of applications by a recruitment firm, which works under the direction of the independent panel. From there a shortlist is prepared for the panel to take to interview. Then a report by the panel to the minister is prepared, nominating candidates as suitable for appointment and making recommendations as to whom to appoint. It is and always has been, under governments of any colour in this place, open to the government to accept or reject these recommendations.
At the moment the ABC Act provides two options for the minister. He or she can put forward a candidate that has been nominated by the panel or can put forward another person whether or not they were nominated by the panel. From there each appointment is considered by cabinet. Appointees are then recommended to the Executive Council and, where a person is appointed to the board and has not been recommended by the panel, the minister must table a statement of reasons in the parliament for having made that decision.
The government has followed this process, as I mentioned, on every single occasion it has made appointments to the ABC and SBS boards. Since its election in 2013 this government has made 14 appointments to the ABC and SBS boards. Let's go through the process that applied to each of those. Seven of those have come through the panel process and have been rated as suitable for appointment. I think they would be pretty uncontroversial. Three have been reappointments of directors that were originally appointed by Labor. Reappointments don't require reference to the panel as a new appointment would. You would expect those ones to be uncontroversial too.
Four of them were not nominated by the panel. Those four, though, as you would expect for all appointments, have been consistently highly qualified individuals with a clear demonstration of the requisite skills range to oversee our broadcaster. Significantly, this government has also made considerable effort to include more women in this process. Half of the appointments made to these boards have been women, and it is worth noting that the ABC board now has a majority of women serving on it.
The government has also made an effort to ensure a geographical spread in the appointments made, particularly on the ABC and SBS boards, so that we have true representation of the needs of the whole nation and, in particular, that we don't neglect the importance of the role of the ABC in regional and rural areas, where, as you may know, Madam Chair, people depend more than they do in the city upon the services of the ABC. Historically these boards have been largely filled up with people who live in the big city centres, particularly in Sydney, and that just wasn't delivering the kinds of services that regional Australia needed.
In addition to the steps that are required for the appointment of directors, consultation with the opposition on the appointment of an ABC chair is an existing legislative requirement. This occurred in the case of Mr Milne, who, despite recent media reports, was one of the candidates that was nominated by the panel. Madam Acting Deputy President, you may recall that the Labor Party welcomed warmly the appointment of Mr Milne as chair in March of last year. In a media release dated 23 March 2017 acting shadow communications minister Mark Dreyfus said:
Labor congratulates Justin Milne on his appointment as the new Chairman of the ABC. Mr Milne is certainly qualified for the role given his extensive experience in, and knowledge of, the media industry.
That seems bipartisan by any measure, so it's worth asking: does this process need more rigour; does it need more independence than presently exists?
As I am sure senators can see, the process for making appointments to the ABC board is already much more complex and involved and much more transparent than is the case with many other types of government appointments. At the end of the day, it's fair to say, in my view, that democratically elected governments are entitled to make decisions for which they can ultimately be held accountable at elections. Whenever people in this place attempt to craft so-called independent appointment processes or, even worse, try to make them even more convoluted, in the way that this bill proposes, those efforts are inevitably proven foolish, naive and dangerous. That's so even when they are made with the best of intentions.
What seems to be being proposed here is something that looks an awful lot like US-style Senate confirmation hearings for appointments to the ABC board and that having these will somehow enhance independence. If anyone had seen the recent US Senate style of confirmation hearings in relation to the appointment of a justice of the Supreme Court of the US, one could only say that that process brought out more of the nature of the partisan than anything that we have in the current system here for selecting ABC directors. If there's anyone listening to this debate who thinks that a Senate committee would appoint an independent group, well, I'll tell you what, I've got a number of schemes I'd like to sell you! The truth is that ministers, cabinet and Executive Council are properly equipped to make government board appointments. They're accountable. Ultimately, they bear the burden of justifying their decisions when it comes to an election, and they must bear responsibility when it comes to the media.
As important an institution as the ABC is, let's get a bit of perspective here. It's not the only, or even the most important, institution that matters in this country; far from it. Appointments to its board are not as important as others to the wellbeing of Australians. Does anyone seriously suggest that the work performed by, for example, the Reserve Bank or our Federal Court and High Court or the Pharmaceutical Benefits Advisory Committee—any of those—is less vital than the work done by the ABC? It's not an argument that can be sustained. Yet the process to make appointments to the ABC is already more convoluted than making appointments to those entities I have just mentioned, and this bill would make it even more elaborate and even more laborious. If you think that appointments to the ABC require more attention and more of a process than those that apply to our central bank, our highest courts or a body that decides which life-saving drugs to fund for the Australian people, then that says some really interesting and concerning things about priorities.
Underpinning all of this, of course, is a suggestion that the government has sought to interfere with the independence of the ABC, but no-one in the government has ever sought to influence the employment of particular ABC journalists, and, whilst they disagree on many things, this is one fact that both the former chair and the former managing director agree upon. But don't take my word for it; take the word of Labor's shadow minister Ms Rowland. On ABC News Breakfast with Ms Trioli, on 16 October, we saw the following exchange:
TRIOLI: …the inquiry found no justification for the view that either the then Prime Minister Malcolm Turnbull or other Government Ministers tried to secure the sacking of those ABC journalists.
ROWLAND: Well we knew that, and we knew that because both the Minister had stated that, and the former Prime Minister had stated that.
TRIOLI: So, so that's dealt with then?
ROWLAND: That is dealt with …
Let's be real about this. The ABC is one of the important underpinnings of media diversity in Australia. It makes a significant and important contribution to civic journalism in Australia and to the important accountability role of the Australian media.
The independence of the ABC is something that the Minister for Communications and the Arts has very regularly, in this place, committed himself deeply to. The ABC has legislated independence in relation to operational, programming, editorial and staffing matters. The government has always respected the independence of the ABC and simultaneously the ABC enjoys more than a billion dollars of taxpayer funds every single year. While there are always complaints in this place about cuts, the ABC enjoys greater funding certainty than any media organisation in this country. I'd even say that it enjoys greater certainty than most government departments that, as a regular exercise, look for efficiencies in the way they do their business. With such a significant contribution provided to them, it's natural that the ABC should have applied to it a higher level of scrutiny to ensure that they are being the best possible custodians—the best possible stewards—of taxpayer money.
We owe the Australian people no less. That's why the coalition has funded the ABC adequately to do its job. That is why, under the coalition government, the ABC has continued to receive over a billion dollars in funding every year. It's a substantial investment of public funds and it ensures that the ABC is able to continue to provide television, radio and digital media services in line with its charter. But the government also has a very important responsibility to the Australian people to repair this budget. The ABC has been asked, like all government entities, to operate as efficiently as it can to contribute to this effort. It's an effort we all must pull together to make. It is always important to remember that, in a rapidly changing media environment, the ABC still has more funding certainty than any other media organisation in the nation—absolutely every single one. It is well equipped to discharge all of the obligations in its charter. Quite frankly, in circumstances where there has been plenty of concern, in this place, in the media and even from some ABC journalists, about questions of its own partisanship, there is absolutely no place for suggesting the appointment process applied by this government is anything other than appropriate.
I rise to speak to put on the record remarks with regard to the Australian Broadcasting Corporation Amendment (Appointment of Directors) Bill 2018, a private members bill brought by Senator Storer. Recent reports of political interference at the ABC have caught the Liberal government red-handed and thrown their record on the politicisation of the ABC board appointments into sharp relief. In addition to financial and ideological attacks on the ABC, the Liberals have shown flagrant disregard for the principle that the ABC board appointments should be merit based and at arm's length from government.
In government, Labor instituted the nomination panel process to safeguard the independence and integrity of the ABC and it governance, yet the Liberals have shamelessly ignored panel recommendations and processes to politicise the public broadcaster. Labor will consider proposals to strengthen the process for board appointments and safeguard against further attempts at politicisation.
The bill that is before us now is one such proposal. In his contribution this evening, Senator Storer noted the opportunity to use the current bill to provide direction and focus to the Senate inquiry into political interference at the ABC. Labor supports the senator's sentiment, as governance options to strengthen independence are critical to getting this right. We acknowledge Senator Storer's considered approach to this very important issue for all Australians. Labor, along with many in the parliament, including Senator Storer, know that we need to work to restore good governance and trust at the ABC. That's why Labor leader Bill Shorten has written to Mr Morrison, requesting to meet and to discuss proposals for reform, and to affirm that Labor expects to be genuinely consulted on all future ABC board appointments, including the new ABC chair. Unfortunately, as we have seen too often already from this new Prime Minister, Prime Minister Morrison has already dismissed that request out of hand.
ABC alumni have called for a thorough, bipartisan parliamentary inquiry before any new appointments are made to the board to assess how well the current appointment system is working and whether changes are required. Minister Fifield has shown that he simply can't be trusted to respect the spirit of the law in the ABC Act or to follow the nomination panel process. It's clear: he will stop at nothing to damage the ABC with budget cuts and meddlesome bills, inquiries and complaints. Labor has no confidence in this conflicted minister, and Prime Minister Morrison must move him out of the communications portfolio without delay. I seek leave to continue my remarks later.
Leave granted; debate adjourned.