REPORT OF COALITION SENATORS
BACKGROUND & OVERVIEW
In 1998, the Auditor General issued a set of draft
Guidelines for Government Advertising.
These Guidelines were the subject of a review by the Joint
Committee of Public Accounts and Audit in 2000.
They were further revised in 2008 as Government policy and
were revised again in March 2010.
This Bill seeks to codify advertising guidelines, based on
the 2008 iteration. Importantly, the changes which have taken place between the
original 1998 draft Guidelines and the current Bill are quite significant.
The Bill also seeks to require the Auditor-General to assess
all advertising material (above a spending threshold of $250,000) prior to its
publication or broadcast.
THE ROLE OF THE AUDITOR GENERAL
This requirement upon the Auditor-General is both the core
requirement of this Bill and its most contentious element.
Coalition Senators have genuine concerns with placing the
Auditor-General in such a role.
Proponents of this Bill have not sufficiently addressed the
concern that it may not be appropriate for the Auditor-General to be involved
in the creation of a campaign, to approve a campaign and then retrospectively
assess such campaigns through the process of performance audits.
The Auditor-General himself outlined these risks.
Immediately after the election, in a letter to the Prime Minister, dated 26
November 2007, the Auditor-General wrote:
"Given the sometimes controversial history of government
advertising there is a real risk that whoever administers the guidelines could
be drawn into the policy and political debate as an active participant in, and
possible defender of the processes of executive government. To preserve both
the real and perceived independence of this office, I and my predecessors have
actively sought placing the ANAO in such a situation."
We know from evidence in the JCPAA that the Prime Minister
could not even be bothered to respond to this letter and, instead, pushed ahead
with the 2007 Labor policy.
Instead, the Auditor-General proposed:
"a model involving a small independent committee with an
executive or advisory role in relation to government advertising."
This would leave the Auditor-General free to pursue the
traditional role of post-publication assessment of campaigns via regular
performance audits.
The fundamental problem, however, remains unresolved. The
Auditor General, under this Bill, is both decision-maker and auditor.
Furthermore, the use of the Auditor-General in this role
does not necessarily guarantee the outcomes desired by the proponents of this
bill.
In the JCPAA hearings regarding the 2008 Guidelines, the
Audit-Office officials could only guarantee a ‘limited’ level of assurance, not
even a ‘reasonable’ level of assurance of compliance with the Guidelines.
To more forensically investigate the advertising would put
them in the position of being a decision-maker and thus voiding their own
ability to engage in post-campaign performance audits!
THE CURRENT CRISIS – LABOR'S SPECTACULAR BACKFLIP
This inquiry arises out of revelations that the Labor Party
decided to bypass the Independent Communications Committee (ICC) in favour of a
highly-politicised framework in the final months before an election.
In March and April 2010, the Government had engaged a
research company to undertake fieldwork to identify understanding of tax reform
in the context of the forthcoming release of the Henry Tax Review.
On 21 April 2010, the ICC was provided with a Communications
Strategy for a proposed campaign. There was no indication, at any stage, that
there was a particular urgency to this campaign. The ICC approved the Strategy
and a Brief was issued to a number of advertising agencies, who were due to
present their creative executions on 10 May 2010.
In the first week of May, the Government announced its
response to the Henry Tax Review. At this stage there was only muted criticism
of the Government’s response in the media, with only two full-page
advertisements critical of the Government’s proposal appearing on consecutive
days in the West Australian. There was no other paid advertising or no campaign
of misinformation that justified seeking an exemption from the Guidelines.
However, the Treasurer, Mr Swan, hit the ‘panic’ button. On
10 May 2010, he wrote to the Cabinet Secretary, seeking exemption from the
advertising Guidelines. That same day, the advertising agencies were
scheduled to present their creative pitches to the Department of the Treasury
officials. The agency selected, Shannon's Way, has a long and close
association with the Labor Party, including being the agency for Labor election
campaigns.
The following day, in the Federal Budget, the Treasurer
announced that the communications campaign would have an appropriation of
$38.5m.
On 14 May 2010, the Department provided a brief to the
Minister which included a draft letter to the Treasurer and a draft Statement
to Parliament. The Cabinet Secretary then ‘sat’ on this brief for ten days.
On 24 May 2010, the Cabinet Secretary approved the request
for exemption, citing ‘extreme urgency’ and ‘compelling reasons’. Mr Hawke has
made it clear that the ‘compelling reasons’ justification was never intended to
be used in this manner.
However, the notification to Parliament was deliberately
delayed for another four days. It was only tabled on 28 May 2010 which was,
notably, the day after the Senate Estimates hearing into government advertising
had concluded.
However, the Cabinet Secretary laid an unintentional trap
for the Treasurer. In his letter of 24 May 2010 to the Treasurer, he stated:
Despite the exemption, there are associated campaign
processes which can be applied without any impact on the ability of the Government
to quickly communicate important information relating to Tax Reform. I expect
the Treasury to adhere to the intent of the Guidelines...
In that context, the Government Mining Tax advertising
campaign fails to meet the conditions set. In the current Guidelines, it is
clear:
18. The subject matter of campaigns should be directly
related to the Government’s responsibilities. As such, only policies or
programs underpinned by:
- legislative authority; or
- appropriation of the Parliament; or
- a
Cabinet Decision which is intended to be implemented during the current
Parliament should be the subject of a campaign.
The Mining Tax campaign does not meet any of the three
criteria. It is not yet legislated for; there has been no appropriation for
the Mining Tax; and the decision is not intended to be implemented in the
current Parliament.
As such, the Treasurer is in breach of the Cabinet
Secretary’s own conditional approval for exemption.
What appears clear is that the Guidelines, which had already
been weakened by the March 2010 changes, were still too restrictive for Labor’s
wish to use taxpayers' funds for partisan political advertising.
The Labor Government clearly felt that, in the run up to an
election, they needed to run an aggressive, partisan campaign and wanted
complete control over the nature and content of that advertising.
CONCLUSION
While the conduct of the Labor Party in regard to government
advertising has shown an unparalleled hypocrisy and disregard for honesty and
integrity as well as the Parliament (particularly the Senate Estimates
process), the proposal to place the Auditor-General at the centre of approval
for future campaigns does not address the problems outlined.
The Auditor-General's independence is of paramount
importance to the statutory responsibilities of that office.
To place the Auditor-General at the centre of
decision-making will potentially risk the perceived independence of the office
and also put at risk the ability of the Auditor-General to undertake
performance audits on behalf of the Parliament.
Coalition Senators believe the Auditor-General's paramount
role is as outlined in the Audit Act, to audit the finances and performance of
the Commonwealth. This includes advertising campaigns, and the assessment of
compliance with the Guidelines. This role can potentially be strengthened with
a requirement for such an assessment within a short time period from the
commencement of the relevant campaign.
Coalition Senators do not support the proposed Bill.
Senator Scott Ryan
The Liberal Party of Australia
Senator
for Victoria |
Senator
Helen Kroger
The
Liberal Party of Australia
Senator for
Victoria |
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