Labor Senators' Minority report
ABC Board Appointments
Introduction
1.1
The terms of reference for this inquiry are to inquire into and report
on:
The development and implementation of options for methods of
appointment to the board of the Australian Broadcasting Corporation (ABC) that
would enhance public confidence in the independence and representativeness of
the ABC as the national broadcaster.
1.2
At the outset, it is important to note the context of the referral of
this matter for the Committee’s consideration. The ABC has undergone
considerable change over the past eighteen months since the appointment of the
new Managing Director by the ABC board. Many of the changes made have elicited
considerable community comment on the future and independence of our national
broadcaster.
1.3
Australians revere the ABC for its independence and integrity. It fills
a unique and critically important role in Australian society as an independent
provider of information to the public.
1.4
Labor Senators support the ABC’s independence in this important role.
The Australian Labor Party’s Platform states that:[1]
Labor is committed to the provision of an independent, balanced,
comprehensive and national public broadcasting service free from political or
ideological interference, and free from advertising and sponsorship.
1.5
Some witnesses before the Committee blame the ABC board for
inappropriate changes in the ABC by the Managing Director, because the board is
ultimately responsible for fulfilling the obligations in the ABC Act and
Charter. However witnesses have been unable to provide proof demonstrating that
the board has acted in a politically partisan manner.[2]
1.6
Clearly however, the dubious propriety of some recent events in the ABC
raises a perception of political interference. The perception of interference
is equally damaging as proof of actual interference for an organisation that is
characterised by its reputation for independence and impartiality.[3]
1.7
The vast majority of submissions to the inquiry fail to address the
terms of reference, that is, they do not address ‘options for
methods of appointment to the board of the ABC’. Rather, many submissions
express dissatisfaction with the present board, Chairman and/or Managing
Director, and call on this Senate inquiry to recommend the introduction of a
system of selection of ABC board members which ensures members of the ABC board
are appointed on the basis of merit and commitment to independent and
comprehensive public broadcasting.
1.8
The issue of whether change in the method of appointment of Board
members is warranted is outside the scope of the terms of reference of this
inquiry, and so these submissions go to matters outside the Committee’s
inquiry. This issue is discussed in the following paragraphs entitled “Impetus
for change”.
Impetus for change
1.9
Submissions to this inquiry indicate considerable community concern
about the independence of the ABC, the direction of the ABC, and the possible
impact of politicisation of the ABC (for example submissions to the Mansfield
inquiry indicated the extent of community concern for the integrity and
independence of the ABC; the amount of press attention to the ABC is indicative
of importance;[4]
recent public rallies have been well attended; and letters to editors regularly
express public concern.[5])
1.10
Some of these concerns relate to the politicisation of appointment of
board members, however adequate funding of the national broadcaster would solve
many concerns.
1.11
A number of arguments have been put to the Committee for change in the
method of appointments to the ABC board. Potentially, however, disadvantages of
the models may, in the case of the ABC, defeat the purpose of changing the
method of appointment in the first place. This is why it is so important that potential
models are properly analysed and attention is paid to their detail prior to
selection of one particular model.
1.12
Arguments advanced in support of the change are founded on the premises
that changing the method of appointment of board members will depoliticise the
board and in turn, depoliticising the board will improve the performance and
independence of the board. Those arguments are that:
- By ensuring the ABC is well governed and well managed so that it
produces excellent quality programs[6]
and independent, cutting edge news and current affairs, the ABC board will
serve the common good of the people, as it should;[7]
- The disposition of the board should not compromise the ABC’s
independence through commercialisation or privatisation;[8]
- Independence, integrity and autonomy of the ABC is central to Australia’s
system of media regulation;[9]
and
- Any perception of political interference in appointments to the
board, which is charged with maintaining the independence of the organisation,
tarnishes the ABC’s reputation for independence, and consequently, undermines
the ABC’s value.[10]
1.13
Contradicting the premise that a change in the method of appointment of
board members will depoliticise the board is the fact that all methods
suggested to the Committee pose some degree of risk of politicisation of the
appointment process.
1.14
Several witnesses acknowledged that depoliticising the board would not
necessarily improve the performance of the board, and one witness acknowledged
that the general performance of appointed board members was at a remarkably
good level across the board.[11]
There do, however, seem to be problems at the ABC that can be correlated to
politicisation of the present board.
1.15
Witnesses acknowledged that political involvement of a board member does
not necessarily result in politicised decision-making and behaviours. Several
witnesses even concluded that political involvement should not necessarily
preclude an applicant’s appointment if selection criteria are fulfilled.[12]
1.16
Unfortunately the premises on which these arguments are based cannot be
taken for granted, and this is one reason why potential appointment processes
require in depth examination to ensure that they will achieve their objectives.
Alternatives for appointment of board members
1.17
A variety of alternative processes for appointment of board members have
been canvassed in the few submissions that address this matter. There is no
consensus on the most appropriate method, and a number of submissions concede
that each has merits and disadvantages. There has not been detailed analysis of
the relative merits of proposed alternatives. A more thorough consideration of
the alternatives than this inquiry permits is necessary.
1.18
There are a number of guiding principles that, it has been suggested,
are critical elements of an appointment process. These are as follows:
- Appointment process should be public, transparent, open and
accountable.[13]
- Applications should be invited in advertisements in the national
media – criteria should be stipulated in advertisements.[14]
- Assessment of applications should be independent.[15]
- Applications should be assessed according to certain defined and
publicly available criteria.[16]
Suggested criteria include:
- A
commitment to public broadcasting.[17]
- Breadth
of vision.[18]
- Regard
for community interests.[19]
- Regard
for the public good.[20]
- Nolan’s
seven principles of public life – selflessness, integrity, objectivity,
accountability, openness, honesty, leadership.[21]
- Areas
of expertise required on the board.[22]
1.19
Labor Senators believe that making selection criteria publicly available
would be a useful step towards ensuring the competence of applicants. This
action would also counteract any public perception of bias in the selection
process and the resultant damage to the ABC’s reputation.
The method of appointing board members
1.20
Several models have been implemented internationally for the appointment
of board members to public institutions. Notable examples brought to the
Committee’s attention were the systems operating in the UK and the USA.
1.21
The Nolan system in the UK has been implemented
for all appointments to public office. In this system, an independent
assessment by bureaucracy filters applicants according to criteria, which
include Nolan’s seven principles of public life, and then hands the Minister a
short-list from which the Minister makes his or her selection.[23]
1.22
The United States has a congressional hearing system where candidates
for public appointments are vetted publicly at public hearings to guarantee
their competence and disposition for the appointment.[24]
1.23
Based on these international examples, submissions to the Inquiry
suggested alternatives modelled on those systems.
1.24
One suggestion that received considerable support was that an
independent individual be given the task of assessing applications to the ABC
board in the same way the UK’s Nolan Committee assesses all appointments to
public office.[25]
Difficulties implementing such a system would include practical problems
ensuring the assessor was not a political appointment, and because the Minister
retains ultimate decision-making authority the risk of politicisation remains.
1.25
It has been argued that the transparency of the process would make sure
the government or Minister of the day was accountable for decisions made.[26]
However all political board appointments to the ABC have been made in the face
of public scrutiny, and the political consequences of the decisions have not
historically deterred Australian governments and Ministers.[27]
1.26
Similarly, the suggestion that appointments be made by a joint standing
committee of the parliament fails to take account of the fact that such a
committee would have a majority of members from the government of the day, who
would therefore control the process.[28]
1.27
Labor Senators conclude that without means of overcoming the problems
with the suggested systems, depoliticisation of the board would not be an
assured outcome of change to the appointment process.
1.28
A number of witnesses before the Committee indicated that benefits from
these systems are primarily the direct result of the transparency in the
decision-making processes that is achieved.[29]
Although it is true that publicity arising from transparency can affect
Government decision-making, Labor Senators conclude that experience with ABC
board appointments suggests that depoliticisation would not result simply from
transparency of the process.
1.29
Another alternative appointment process would be to require bicameral
approval of appointees by passage of appointments through a joint sitting of
both houses of parliament or alternatively through both houses consecutively.
1.30
This brings the appointment process very close to the political process
such that politicisation remains a risk.
1.31
In any event, the detail of all of these processes has not yet been
elaborated, and requires further investigation.
Labor Senators’ criticisms of Chair’s report
1.32
Labor Senators dispute a number of the Chair’s
conclusions based on their failure to take account of the evidence presented to
the Committee, or their direct contradiction of the evidence.
1.33
The Chair’s report finds that there is a reality
and perception that appointments to the ABC board, by both parties, have been
on the basis of political affiliation rather than exclusively merit. However
the conclusion that appointments made partly on the basis of political affiliation
rather than exclusively on merit have led to any real political bias of the
board is a tenuous one. Indeed a number of witnesses have stated that there is
no evidence of a link between political affiliation and demonstrable bias as a
board member.[30]
1.34
In response to that finding, the Chair’s report
recommends a system based on the principles of openness and transparency
modelled on the UK Nolan rules. The proposed system calls for the development
of selection criteria, public advertising for applications, short listing of
candidates by a parliamentary Committee, and final appointment by the Minister.
1.35
The model proposed was not suggested by a single
witness. Witnesses and those who have made submissions to the inquiry have not
had an opportunity to comment on the merits of this new model envisaged by the
Chair. Indeed several witnesses indicated flaws in the models from which this
proposal draws which have not been addressed. Additionally, the parliamentary
model suggested by the Chair is based on the American system which received
some strong criticism as not being adequately transparent and falling well
short of world best practice.[31]
1.36
Some specific criticisms of the model
recommended by the Chair are detailed below under “Development of the selection
criteria” and “Shortlisting by a Parliamentary Committee”.
Development of the selection criteria
1.37
The Chair’s model suggests the development of
selection criteria by the Merit Protection Commissioner. One of the points
that emerged in the evidence was that a key consideration is the balance of
skills on the Board taken as a whole. Arguably, the Merit Protection
Commissioner would not be in a position to set good selection criteria on the
grounds that he or she would lack the detailed knowledge of the strengths and
weaknesses of the existing board, and thus, the sort of skills needed in an
appointment round.
1.38
A better solution may be for the selection
criteria to be prepared by the Board itself, or the Department, subject to the
approval of the Minister. The main consideration is that the appointment be
made on the basis of public selection criteria.
Shortlisting by a Parliamentary Committee
1.39
A number of witnesses raised concerns at the
suggestion of a parliamentary Committee reviewing applications for board positions.[32] The major concern was that the
process would subject candidates to a public interrogation by members of the
Committee, and unless this was tightly controlled, questioning could become
personal and be aimed at destroying the credibility and political sympathies of
the candidate rather than exploring their expertise. This would be both unfair
and a potential deterrent to worthy applicants.
1.40
A further problem with the use of a
Parliamentary Committee to shortlist applicants is that the shortlisting would
in practice be done principally by the secretariat of the Committee with only
the final stages of the shortlisting actually being performed by the Members
and Senators. It is questionable whether the secretariat is suited to this
role.
1.41
Placing so much of the process in the hands of
the Parliament potentially violates the principle of Ministerial
responsibility, under which the administration of government is the
responsibility of the Ministers, who are accountable to the Parliament for that
administration.
1.42
Appointments to government agencies, the
judiciary, boards of cultural and educational institutions and other similar
public appointments are decisions of the government of the day. Arguably the
appointment of ABC board members is indistinguishable from these similar
high-level public appointments. If the method of appointment of board members
of the ABC were to change, consistency would require an overhaul of all
appointment methods.[33]
The desirability of such a fundamental transfer of responsibility away from
government is a relevant issue that requires further consideration.
1.43
Labor has a plan for better public
administration which would apply to appointments to the ABC board, although it
does not preclude further measures being considered in relation to the ABC:[34]
With statutory office holders, the relevant Minister will, as a
first step, consider whether vacancies should be advertised on the basis that
this would normally be done well in advance of vacancies falling due.
Ministers will ask the Secretaries of their departments to prepare a report on
each vacancy. These reports, which will include such details as the current
appointee, the timing of the vacancy, the conditions of appointment and the
process followed to identify the recommended new appointee, will be made
available to Cabinet, to inform its consideration of proposed appointments.
Therefore, in the case of both Secretaries and statutory office
holders there will be a more wide-ranging canvassing of possibilities and
broader based advice to the Government that will focus on the inherent merit of
individuals rather than on their perceived political alignment.
1.44
Parliament might more appropriately scrutinise
the selection process, via the normal procedure of questions asked of the
Minister in question time, underpinned by transparency in documenting the
process.
1.45
Finally, as mentioned previously, under the
usual system of establishing joint Committees, the government has the majority
membership of the Committee, otherwise both Houses of Parliament will not agree
to the Committee. The result would be a Committee that is still closely
associated with the government, and is consequently no more independent than
the current system.
Conclusions
1.46
Labor believes that the most important means of ensuring the
independence of the ABC is through the provision of adequate funding, since the
principal way governments have tried to influence the ABC in the past has been
through funding reductions. Labor is committed to adequately fund the ABC:
Labor will provide adequate funding on a triennial basis to
ensure quality is maintained in both the program and service delivery areas, as
well as ensuring that Australian content levels are maintained at an
appropriate level to foster the development of our cultural identity. Where
appropriate, Labor will ensure that adequate funding is provided to assist the
ABC ... with the introduction of digital broadcasting and online technologies.[35]
1.47
The Committee has not received sufficient detail on alternative
selection processes of ABC board members to be able to conclude that a specific
process would ensure depoliticisation of board appointments through the
appointment of members on the basis of merit and commitment to independent and
comprehensive public broadcasting. Nor is there consensus in evidence to the
Committee on the appropriate model for appointment of board members.
1.48
No evidence was received from the Board, the
Minister, the department, or the media making it difficult to get a
comprehensive picture of the existing system and its practical operation, and
potential areas for improvement.
1.49
In order to make an informed decision on the most appropriate
method for appointment of board members in Australia, further investigation
into the relative merits of the various models proposed, and the success of
models implemented internationally, is necessary.
1.50
Labor Senators see merit in the establishment of criteria against
which applications for board membership can be assessed, and advertising and
inviting applications for board positions. This will assist in achieving the
important objective of depoliticising the ABC board, and assuring the
independence of the ABC into the future. Further investigation into the merits
of alternative processes for selecting appointments from the applications
received is needed in order to ensure that the options are well considered and
analysed. This will guarantee the best outcome for the ABC.
________________________
SENATOR MARK BISHOP
A.L.P. (W.A.)
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