Report by Government Senators
Introduction
The Government Members of the Committee do not agree with
important elements of both the central findings and the recommendations of the
Chair’s report.
This Dissenting Report addresses several underlying problems
with the Chair’s report, and then examines the individual recommendations.
Problems with the board – no case to answer
The starting point for any inquiry into the ABC should have
been establishing whether there are problems with the ABC, and the primary criterion
for this judgement is whether the ABC is meeting its Charter as set out in the
ABC Act. Only where there is evidence that the Charter is not being met should
the Board be called to account for its performance. If the Board is found to
be wanting, then and only then is there a legitimate case to examine whether
the method used to select that Board has failed to produce Board members of the
required qualities, and accordingly the method should be reformed.
Instead, the Terms of Reference for this inquiry bypass all
these stages. It is apparently not even necessary to assume that the
Board is failing in its duties, to conclude that all such failings are
attributable to a lack of independence and representativeness in how the Board
members are selected. To this extent, the Terms of Reference are flawed by
asking the wrong question. In turn, the Chairs Report is flawed by answering
this fundamentally flawed question with blithe partiality.
It is the strong view of the Government Senators that evidence
to the inquiry did not demonstrate that the ABC is failing to meet its
Charter. Nor is there a cogently argued case that the ABC Board would perform
to greater satisfaction if it were selected by an allegedly more representative
and independent, but certainly far more convoluted, method.
A significant amount of the evidence received by the inquiry
focused on the perceptions of political bias as the basis of criticisms of the
ABC Board. In some cases, these criticisms are plainly misinformed and misplaced.
A number of submissions, for example, referred to the failure of the Board to
argue for increased funding. In fact, in several public forums the Board has
argued for the need for increased funding, and has subsequently achieved
substantial increases of funds to the ABC of $71.2m over four years.[1]
To take another example, various submissions criticised the
reductions in local-content programming. In fact, on ABC television, recent
changes will result in almost 70 percent of programming between the prime
viewing times of 6pm and 11pm being Australian.[2]
ABC radio is of course almost 100 per cent local content.
At the same time, the ABC has expanded its regional radio
services involving the recruitment of 50 new program makers at 32 stations to
broadcast more than 10,000 hours per year of local programming.[3]
Criticisms of the closure of the ABC archives unit are also
misplaced. According to evidence provided to this Committee during the Senate
Estimates hearings, the changes are limited to a reduction in staff from 16.5
to 12.[4]
The closure of the Cox Peninsula transmission facility was
another case. It is noted that the ABC Chairman, Mr McDonald, has said that he
argued against the closure of the Cox Peninsula transmission facility, and
that:
As a result of the ABC’s advocacy, we have received from the
Government an additional $9m for increased transmission capacity for Radio Australia
and a minimum $75m for an Asia Pacific television service.[5]
It should also be stressed that disagreement with the decisions
of the ABC Board does not amount to evidence of political bias on the part of
the Board. Indeed, it is to be expected that an independent Board will make,
and is entitled to make, decisions that are unpopular with parts of the
population.
This point seemed lost on some of the witnesses.
An indication of this relates to the decision by the ABC
Board not to make a submission to the inquiry. A number of witnesses found
this an indication of political interference or at least the Board’s timidity
where political interference results. In fact, the Board did write to the
Committee declining to make a submission on the ground that it was entirely a
matter for the Parliament.[6]
Although the clear intent of the letter was that the Board did not wish to engage
in political debate, their position when made known was taken as further proof
by several witnesses[7]
that the Board was suffering from political interference!
The Government Senators also note that the majority of the
submissions received by this inquiry are based on a form letter prepared by the
Friends of the ABC. Most of them accept without discussion the assertion by
the Friends of the ABC that the ABC Board is in fact politicised. Accordingly,
there is real doubt as to the representativeness or independence of many of the
submissions received. On this basis, the Government Senators do not accept the
finding of the Chair’s report that there is necessarily a widespread perception
that the Board is politicised.
It is further noted that the Chair’s report makes the point[8]
that appointees who were ‘generally sympathetic to the view of the governing
party’ have not been ‘either incompetent or ineffective in serving the
interests of the ABC or the public’. Why then the necessity of a wholesale
change to the method of appointment, in favour of a complex and untested
method?
Should the ABC be unique?
In this absence of solid evidence of a problem, Government
Senators do not see the rationale of creating for the ABC a costly and complex
system that would be unique among Australian public sector Boards. Government
Senators have been unable to find any other Board of a statutory body that is
selected by such an onerous process.
Nor, for the same reasons outlined above, can Government
Senators support the implied recommendation of the Chair’s Report, that the
model suggested be extended to all public sector boards.[9]
That seems to us to be an exercise in creating an end to justify a means.
The Government Senators stress that the Nolan Rules, that
inspired much of the recommendations of the Chair’s report, were created as a
response to the finding of severe problems in the UK system of appointments.
As such, they may have been an appropriate solution to those problems. It does
not automatically follow that these rules should also be applied here.
Finally, Government Senators note that a key concern of the
Chair’s Report is to overcome a public perception of politicisation in
appointments to the ABC. In this respect, it should be noted that the findings
of a recent review of the UK Office of the Commissioner for Public Appointments
(OCPA), conducted five years after its inception, demonstrate mixed results for
the reformed process. Public responses continue to demonstrate a widespread
ignorance of the existence and role of the OCPA, and a vague but overwhelmingly
negative impression of the process by which appointments are conducted, based
on a strong belief in politicised appointments.[10]
If the problem is one of
public perception, there is room for some doubt that adoption of the UK system
would necessarily go far in rectifying this in Australia.
Comments in relation to recommendations
Government Senators make the following comments in relation
to specific recommendations:
Recommendation 1
- We do not support this recommendation. There is no substantive
evidence to suggest that the appointment of the ABC Board has not met the
principles of merit and transparency, or that political affiliation has been a
basis of appointment.
Recommendation 2
- We do not support this recommendation. There has been no
suggestion that the position of the staff-elected director will be abolished.
Recommendation
3
- We do not support this recommendation, as it is clearly an
affront to the ABC Board. We accept that current appointees to the ABC Board
have demonstrated a commitment to the principles of public broadcasting.
Recommendation
4
- We do not support this recommendation. The relationship between
the ABC Board and its Advisory Council is a matter for the ABC Board to
determine in accordance with its charter.
Recommendation
5
- We do not support this recommendation. Since, as stated, the
desired selection criteria are already established under the ABC Act, the
substance of this recommendation is superfluous.
Recommendation
6
- We do not support this recommendation, as its purpose is not
clear.
Recommendation
7
- We do not support this recommendation, as its purpose is clearly
superfluous. It is difficult to envisage a situation where a person might be
appointed to a public office without this person’s expressed willingness to
apply for and to serve in that appointment.
Recommendation
8
- We do not support this recommendation as the purpose and meaning
of this recommendation is ambiguous, and possibly in contravention of
anti-discrimination laws.
Recommendation
9
- We do not support this recommendation. The recommended process
appears to be unnecessarily laborious, prescriptive and untested.
Recommendation
10
- We do not support the first part of this recommendation, noting
that the benefit of this proposal is entirely obscure. We further note that
the dominant practice of public sector boards of management is for the
presiding officers to be appointed or, in the notable case of capital city
councils, to be elected directly.
- We do not support the second part of this recommendation, noting
that the ABC Board reports annually to the Parliament.
- We do not support the third part of this recommendation, noting
that matters discussed at the meetings of the ABC Board may be in confidence,
and should only be made public at the discretion of the Board in accordance
with its duties of governance.
Recommendation 11
- We do not support this recommendation for reasons described
above.
Conclusion
By basing the inquiry on a flawed terms of reference, the
Chair’s report finds a solution to a problem before the problem has been
demonstrated to exist. It is perhaps inevitable that the solution so offered
is superficial and irrelevant.
A significant proportion of the evidence given before the
Inquiry was critical of the successive Managing Directors. Much of this
criticism was directed at the style of the individuals rather than their
competence. Nevertheless, given that the role of this office as chief
executive of the ABC and a full member of its Board is pivotal for the
performance of organisation, logically it should be the focus of any suggestion
of reform. Yet the Chair’s report finds no change should be made to the office
of the Managing Director, or its functions. This is indeed a telling
illustration of the futility of this report.
It needs to be recognised that the ABC is currently in a
period of considerable change, caused by rapid developments in both technology
and the structure of the telecommunications industry. As Mr Jonathan Shier,
the current Managing Director of the ABC, recently pointed out in a speech to
the National Press Club, ‘to do nothing is not an option for the ABC’.[11]
This is also occurring in a wider context in which all aspects of government
expenditure have been under considerable pressure.
In these circumstances, it is not surprising that the ABC
Board has made some significant changes and that a number of these decisions
will be disagreed with by sections of society. This, however, is the reality
of an independent Board, and should not be used to justify unnecessary changes
to a long established and effective system.
_________________________
SENATOR TSEBIN TCHEN
LP (VIC)
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