Australian Labor Party, Australian Greens and Australian Democrats - Minority Report
Since 1983 under both Coalition and Labor Governments, the
Board of the ABC has included a director elected by the staff. The
staff-elected director is but one of a maximum of 9 directors. Up to 7 members
of the Board are appointed by the Government and the Managing Director is
appointed by the Board.
The Australian Broadcasting Corporation Amendment Bill 2006 (the
Bill) proposes to abolish the staff-elected
position.
In the view of Labor, Green and Democrat Senators, the
Government has failed to make the case for changing the composition of the
Board in this way.
We believe that the Bill will
adversely impact on the performance of the ABC Board and undermine public
confidence in the independence of the ABC.
Experienced broadcasters have always filled the
staff-elected position. In the future, if this Bill
is passed, the Board will be deprived of the valuable insight into policy
issues that the staff-elected director has been able to bring to Board
deliberations. The actions of ABC management are likely to receive less
scrutiny,
The Government has claimed that the staff-elected director
is subject to a potential conflict because they may feel obliged to represent
the interests of the people who elected them rather than to act in the best
interests of the ABC.
Evidence received by the
committee at the hearing demonstrated conclusively that there is no such
conflict. While the method of appointment for the staff-elected director differs
from other non-executive directors, the ABC Act is quite clear that the duties
and responsibilities are the same for all directors.[50] The current staff-elected director and
former holders of that office all stated that the role does not involve representing
the staff in the Boardroom.
Mr
Dempster stated:
You are not the shop steward for any of
the in-house unions. That is clearly understood...You are there for policy
development and operational matters.[51]
The committee did not receive any evidence that the current
or previous staff-elected directors had failed to act in the best interests of
the ABC or that they have put the interests of staff ahead of the corporation.
Indeed a number of examples were cited where staff-elected
directors argued against initiatives that would have directly benefited staff
because they would have undermined the ABC's independence. One case was the
proposed partnership between Telstra and the ABC which would have allowed Telstra
to influence the ABC’s production decisions.[52]
In making the case for change, the Government has relied
heavily on the Uhrig Review of Corporate Governance of Statutory Authorities
and Office holders. Mr Uhrig
cautioned against representational appointments to Government boards.
Labor, Green and Democrat Senators do not believe that these
comments are relevant to the position of the staff-elected director on the ABC
Board.
The Australian
Broadcasting Corporation Act 1983 (the ABC Act) makes quite clear that the
staff-elected director has no role to represent the interests of the ABC
employees. As Ms
Greenhill from the Friends of the ABC (ACT
and Region) noted 'Uhrig’s use of the term ‘representational is not at all the
same as by means of election.'[53]
The
method of appointment to the Board is not the exclusive determinant of whether
a position is a representative one. In the case of the ABC, the staff-elected
director is not a representative of the staff just as directors appointed by
the Government should not be representatives of the Government on the Board.
Furthermore,
it is clear that Mr Uhrig
did not examine the governance arrangements at the ABC. He did not make any
inquiries of any current or previous member of the ABC Board. Mr
Uhrig’s terms of reference directed him to
focus on a very different class of Government agency than the ABC.[54]
We
believe that the ABC is a special institution. Its governance needs require
specific consideration.
The Majority
Report also relies on the submission of Professor
Stephen Bartos,
a director at the National Institute of Governance. It is important to note Professor
Bartos did not endorse the removal of the
position of the staff-elected director. He stated that this was a matter for
political judgement. Professor Bartos
also observed that: 'In governance terms, the choice of model to be adopted for
a public sector body should not be static or formulaic, but be driven by the
objectives of the organisation concerned.'[55]
Given that the objectives of the ABC include the maintenance of independence,
it is appropriate for a staff-elected director to sit along side government
appointed directors.
For
the last twenty three years, the staff-elected position has ensured that at
least one member of the Board has an extensive understanding of broadcasting
and public broadcasting in particular.
The
evidence at the hearing clearly demonstrated that this has been of great value
to the ABC.
One
of powerful example of the important contribution of the staff-elected director
was provided by Mr Cassidy
from the Friends of the ABC (SA).
Mr
Cassidy related the incident where ABC
management under pressure from the Government of Papua New Guinea wanted to
censor an interview conducted by Four Corners.
Mr
Cassidy told the committee:
Tom Molomby, the staff elected member, was critical in the decision to
overrule the management and to uphold the independence of the ABC. That board
decision to overturn the management was carried by a majority of one. It was
carried against the diehard opposition of some ABC staff, including the then
managing director, who threatened to resign if the management proposal was
overturned, and including threats from other senior managers at the ABC.[56]
Labor, Green and Democrat Senators believe that this Bill
represents an ideologically motivated attack on the ABC. The staff-elected
position is one position on the Board that is beyond the Government’s capacity
to influence or control.
This Bill comes after a
decade where the ABC has been chronically under-funded and follows the
appointment of a series of strident conservative supporters to the ABC Board.
We believe that this legislation is part of a concerted attempt by the
Government to crush any semblance of independent thought within the ABC.
It is true that there is public concern about the governance
of the ABC. This concern relates to the
succession of blatantly political appointments to the ABC Board. There is no
doubt that this practice has undermined public confidence in the independence
of the ABC.
Labor, Democrat and Green Senators believe that this
practice has to stop.
There should be an open and transparent process for making
appointments to the ABC board. Vacancies should be advertised and there should
be clear merit-based selection criteria.
An independent selection panel should conduct the shortlist
selection process.
If the Minister does not appoint a short-listed candidate he
or she should be required to table in Parliament a formal statement of the
reasons for departing from the shortlist.
These are the measures that are required to strengthen the
independence of the ABC and ensure that it has the expertise to meet the
challenges of public broadcasting in the 21st century.
This Bill does nothing to
advance those objectives and should be immediately withdrawn.
Attack on Ms Koval
Labor and Democrat and Green Senators are disturbed by the
attack on the integrity of the current staff-elected director Ms
Romana Koval
in paragraphs 1.17 to 1.19 of the Majority Report.
The Majority Report criticises Ms
Koval for failing to sign the ABC Board
Protocol and cites it as an example of the staff-elected director lacking
independence.
There is no basis for this claim.
Ms Koval
made clear she has no objection to maintaining Board confidentiality and that
she had at all times complied with her obligations as a director under the ABC
Act and the Commonwealth Authorities and
Companies Act 1997.
Ms Koval
stated that she had received legal advice that the protocol was inconsistent
with her legal obligation to act independently.
This legal advice was not challenged in any evidence before
the committee.
Ms Koval
told the committee that many versions of the protocol were put to her over
several months and that:
I was very happy to sign a protocol that I could sign if I felt
that it was not illegal for me to sign it. I did not want to sign away my
rights as an independent director.[57]
In her submission Ms Koval
stated:
It is clear that a
Director must act bona fide in the best interests of the Corporation. But that
assessment is a matter for the individual director, and is not determined by
the opinion of other directors.[58]
Labor, Democrat and Green Senators believe that there is no
basis for the Majority Report to impugn Ms
Koval’s conduct in relation to the protocol.
Senator
Kate Lundy
ALP, Australian Capital Territory
Senator Dana Wortley
ALP,
South
Australia
Senator Rachel Siewert
AG, Western Australia
Senator Lyn Allison
AD,
Victoria
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