Chapter 3
ISSUES
3.1
The primary focus of evidence in relation to the bill concerned the proposed
scrutiny function performed by the Auditor-General. Whilst the 2010 Guidelines
on Campaign Advertising by Australian Government Departments and Agencies (the
2010 guidelines) replaced the Auditor-General as the scrutiny body with that of
the Independent Communications Committee (ICC), the bill reinstates the
Auditor-General in this role.
Evidence supporting the bill
Legislative framework
3.2
Professor Graeme Orr supported the 'legislating of government
advertising', underscoring that 'it is advisable to enact principled
legislation to guide and restrain executive discretion'. He noted that the bill
'in essence, will give binding statutory force to the administration regime
which the Rudd Government applied until early 2010'.[1]
Adjunct Professor Tim Smith and Associate Professor Ken Coghill also commented
that it is 'highly desirable that there be clear legislative provisions as to
acceptable limits to the use of public funds for advertising by the executive
government'.[2]
Role of the Auditor-General
3.3
In his submission, Professor Orr stated that Guideline 2 refers to the
Auditor-General's report on a proposed campaign and noted that it would be wise
'in any principles-based legislation, to ensure that some independent vetting
mechanism is required during the development of large campaigns'.[3]
3.4
The following discussion in support of the role of the Auditor-General
as envisaged in the bill is drawn from comments made in other arenas. In a
submission to the current JCPAA inquiry on the role of the Auditor-General in
scrutinising government advertising campaigns, the Auditor-General acknowledged
the risk in 'providing assurance in relation to campaigns ahead of their
commencement' and that the Australian National Audit Office (ANAO) was
'conscious of these risks and have been managing them through our review
procedures including specific inquiries of departments and agencies,
examination of documents, and by seeking the representation from Chief
Executives'.[4]
The Auditor-General further argued that:
From my perspective, there is no doubt that the involvement
of the ANAO in reviewing the campaign arrangements prior to its launch has
resulted in better outcomes than would have been the case had the ANAO not been
involved in undertaking reviews at this stage.[5]
3.5
Indeed, the Auditor-General has argued that the involvement of the ANAO
has resulted in 'better targeted and supported campaigns'.[6]
In his submission to the committee, the Auditor-General commented that 'the
framework introduced by the Government in June 2008 has been demonstrated to
work effectively, albeit with scope for some improvement'.[7]
3.6
In response to the view that the Auditor-General's involvement in
undertaking reviews of advertising campaigns made it difficult to then
undertake performance audits, the Auditor-General argued that:
The benefit of our review activity is that it is much more
timely than a performance audit in gaining access to information and personnel,
and in providing feedback to agencies individually and collectively; on the
other hand, reviews focus only on the Government's Guidelines and provide
limited assurance due to time and resource constraints, and do not address
issues that have even problematic under former arrangements, such as contract
management and performance issues. Reviews and audits are complementary
however, and performing reviews does not exclude the conduct of subsequent
performance audits. Rather, the reviews provide information which allow better
targeting of decisions.[8]
3.7
Moreover, in response to the Hawke review claim that the role the
Auditor-General was given 'has undermined the proper accountabilities of
Secretaries for managing their departments and the Auditor-General's proper
place [in] the scheme of things'[9],
the Auditor-General held that the Hawke review 'seriously misunderstands the
role of the Secretaries and the Auditor-General'.[10]
In a letter to the Cabinet Secretary in March 2010, the Auditor-General argued
that:
Secretaries have sole responsibility for certifying
compliance with the Government's advertising guidelines; the role of my office
is to report to the responsible Minister on whether anything has come to
attention from our review of the certificate, and information supporting the
certificate, to suggest that the relevant campaign does not comply in all
material respects with the requirements of the advertising guidelines. The
final decision on whether a campaign proceeds appropriately rests with the
responsible Minister.[11]
3.8
Under the 2008 guidelines, Secretaries did have sole responsibility for
certifying compliance (as they do under the 2010 guidelines). The evidence
heard by Dr Hawke and by the JCPAA has revealed that secretaries may not have
considered this to be the case in reality, despite what the guidelines state. Professor
Orr stated that the ICC was appointed to take over the scrutiny role of the
Auditor-General:
Possibly because the Auditor-General was building up too much
expertise and it may have been felt that by some heads of departments that the
Auditor-General was having too much weight and too much say in the crafting of
campaigns.[12]
Guidelines
3.9
The guidelines proposed in the bill counter some of the concerns raised
by the Auditor-General in relation to the 2010 guidelines of which the ANAO
argued that a number of principles were 'less specific' than the guidelines
contained in the 2008 version.[13]
In his submission to the committee, the Auditor-General noted:
The Schedule to the Bill draws on the experience of the
operation of earlier arrangements by addressing some of the practical issues
that have arisen in areas such as the need for a clear definition of campaign
advertising, that campaign information included the Chief Executives'
certificate be published on the agency's website, and that campaigns include
those conducted by third parties.[14]
3.10
The Auditor-General concluded:
While necessarily there will be judgments involved in
assessing campaigns against the proposed bill and guidelines, the draft legislation
builds on experience to date, and subject to [certain matters] provides a sound
basis for Parliamentary consideration.[15]
Evidence not supporting the bill
3.11
The Government's 2010 guidelines define campaign advertising,
advertising campaign compliance and ICC reports must be published on the agency
and ICC websites.
3.12
Clause 10 of the bill is an attempt to bind this Senate, any future
Senate, and the House of Representatives, and any future House of
Representatives, in relation to its plenary power over government advertising
for all time. The Greens' bill purports to limit the powers of the Senate. The
rights of the Senate cannot be given away. The Australian Constitution says
that only the Australian people may determine, by peaceful referendum, whether
the legislative powers of the Parliament including of this Senate, may be
limited. To seek to pass a bill that strips this and all future Senates and
Houses of Representatives has questionable Constitutional validity, threatening
the doctrine of the sovereignty of the Parliament that underpins our entire
system of democracy. This power, that the bill seeks to strip away, can only be
given away with a referendum bill on this issue.
Role of the Auditor-General
3.13
The bill provides for the Auditor-General to review government
information and advertising campaigns in excess of $250 000. Concerns
regarding the Auditor-General fulfilling the scrutiny function in relation to
proposed government advertising were raised in the Hawke review. Dr Allan Hawke
stated in the review that the 2008 arrangements drew into question the
'independence of the Auditor-General and potential create conflicts of
interest'.[16]
He took the view that:
In order to protect its position, the Australian National
Audit Office (ANAO) has had to adopt a highly risk-averse approach, placing a
heavy (and unnecessary) bureaucratic and administrative burden on departments.
In essence, the role that the Auditor-General has been given has undermined the
proper accountabilities of Secretaries for managing their departments and the
Auditor-General’s proper place the scheme of things.[17]
3.14
Dr Hawke argued that whilst the primary role of the Auditor-General is
to reach a view on whether the proposed campaign complies with the guidelines,
'the processes established by the ANAO result in intervention in areas clearly
outside its expertise'.[18]
3.15
Findings of the review in relation to the role of the Auditor-General
upheld the view that the current governance arrangements 'place the
Auditor-General in a very difficult position in respect to conflict of interest'.
In this regard, Dr Hawke stated that:
(a) mechanisms
to protect the independence of the Auditor-General (through processes and
internal guidelines) have resulted in a highly risk-averse and conservative
approach to Government advertising activity;
(b) whether the
Auditor-General can conduct regular performance audits of Government
advertising effectively when he is bound up in the process of developing and
approving campaign advertising;
(c) the ANAO
is venturing into areas outside its expertise and over-riding expert advice and
communications research; and
(d) the
Auditor-General's role has the potential to undermine the proper
accountabilities of Secretaries and CEOs for the management of their
departments and agencies.[19]
3.16
Dr Hawke noted that in 2007 following the federal election, the
Auditor-General raised concerns with the Prime Minister that 'whoever
administers the guidelines could be drawn into a policy and political debate as
an active participant in, and possible defender of, the processes of executive
government'.[20]
The Auditor-General proposed that a small independent committee assess
proposals of compliance with the guidelines and that the ANAO conduct
periodical audits to report on whether the arrangements were operating as
intended.
3.17
In relation to the manner in which the ANAO approached its role, the
Hawke review stated that:
There is a school of thought that it is not the Guidelines
that are the problem, but rather the way in which the ANAO has chosen to interpret
them. So removing the Auditor-General from the decision-making process and
substituting an independent review body may be sufficient to address the
concerns that have been raised.[21]
3.18
Indeed, the Hawke review stated its support for the Auditor-General's proposal
of an independent scrutiny committee whilst recommending that the ANAO focus on
core areas of ANAO expertise, thereby removing the Auditor-General from the
'current position of actual or perceived conflict of interest'.[22]
3.19
The Special Minister of State, Senator the Hon Joe Ludwig, commented on
the changes to the guidelines during the committee's estimates hearing of 25
May 2010 and stated:
The Auditor-General is also free to undertake an audit of any
campaign or aspect of the government advertising framework and has been asked
to consider undertaking at least one audit per year on a campaign or the
administration of the framework. So the short answer is: it is not, no, and,
yes, the Auditor still has a role.[23]
3.20
Professor Tim Smith and Professor Ken Coghill also commented that the 'role
of the Auditor-General must be confined to auditing the process and must not
extend to the approval of content'.[24]
3.21
Professor Charles Sampford noted that whilst the 'ANAO did a very good
job for almost two years', his preference was that of an independent committee
certifying the accuracy and non-partisan nature of the advertising. Professor
Sampford took the view that such a body would give 'the advertising campaign
greater credibility and increase the likelihood that it will be accepted'.[25]
He further argued that:
It will also make it far less likely that the campaigns will
be attacked as false – and if it is so attacked, the government can brandish
the independent arbiter’s decision. This oversight will save time and money
and increase the efficiency and effectiveness of the government advertising.[26]
Other matters
3.22
Professor Orr commented on the problem of the unlimited capacity or size
of campaigns and selectivity which create obstacles. He noted that 'a bill like
this' may only indirectly address those problems 'to the extent that the
Auditor-General may unfavourably comment on the need for a campaign or the
estimated cost and choice of media'.[27]
3.23
Professors Smith and Coghill noted a number of matters:
- that legitimate government advertising (for example, advertising
job vacancies, invitations to tender) should not be interfered with and should
be exempted from the provision of the bill, except for those special categories
subject to regulation;
-
the bill should provide a clear definition of those special
categories subject to regulation;
- the bill should provide a clear definition of those special
categories of government advertising which are not permitted to be funded by
government; and
- the bill should provide a clear definition of the process to be
followed to determine whether the content of particular proposed advertising
falls within the definition of those special categories of government
advertising subject to regulation;
- in relation to the national emergency exemption, approval process
provisions but not the content provisions, should be restricted for a limited,
reasonable and non-renewable period during which the Parliament can be called
to sittings to debate the emergency and give specific authority for further
related government advertising; and
- the guidelines should not be liable to amendment by regulation,
only by act of Parliament.[28]
Committee comments and recommendation
3.24
The Preventing the Misuse in Government Advertising Bill 2010 inquiry
received only four submissions from involved stakeholders and individuals. In
the committee's view, this number is more a reflection of the short reporting
timeframe rather than that of the level or scope of public interest in the
issues surrounding government advertising and the use of public funds therein.
3.25
The committee appreciates that advertising by government has long been a
sensitive issue and notes the comments by Professor Orr that 'the threat of
excessive promotional advertising to political equality is clear'.[29]
3.26
The committee recognises the importance of independent and transparent
mechanism to oversee and report on compliance with the Guidelines on Campaign
Advertising by Australian Government Departments and Agencies. The
committee appreciates that the independent review of Dr Allan Hawke was
commissioned to consider the appropriateness and clarity of the 2008 guidelines
and the effectiveness and efficiency of the current approval process.[30]
It acknowledges that the 2010 guidelines enact recommendations of the Hawke
review, notably the introduction of an alternate, independent and transparent
process for oversight of and reporting on compliance to the guidelines, thereby
enabling the Auditor-General to revert to traditional areas of performance
audit and review of government advertising campaigns.
3.27
The committee considers that the 2010 guidelines meet the requirements
of transparency and rigour with regard to the oversight of proposed government
advertising.
Recommendation 1
3.28
The committee reports to the Senate that it has considered the
Preventing the Misuse of Government Advertising Bill 2010 and recommends that
the bill not proceed.
Senator
Helen Polley
Chair
Navigation: Previous Page | Contents | Next Page