Government Senators' Minority Report
1.1
The
terms of reference for this inquiry originally asked the Committee to inquire
into 'the level of expenditure on, the nature and extent of, government
advertising since 1996'. These terms of reference were subsequently amended by
an Opposition dominated Senate to restrict the inquiry into the expenditure,
nature and extent of Commonwealth
government advertising since 1996.
1.2
A
serious and responsible inquiry into the nature and impact of information
activities conducted at all levels of government in this country may have been
a worthwhile exercise. While Commonwealth Government advertising amounts to
some $929 million between 1996 and 2003, in the same period of time State
Government advertising collectively totalled more than $2.15 billion. This is not the inquiry that the Opposition
majority allowed.
1.3
Instead
we have had an inquiry with arbitrarily restricted terms of reference, aimed at
achieving a partisan report.
1.4
The
inquiry received submissions from only 13 submitters (including submissions
from the Special Minister of State and Department of Prime Minister &
Cabinet), most of which were from academics or former public servants with transparent
agendas. No overwhelming public concern was demonstrated.
1.5
It is
also worth noting the conclusion to the inquiry. The Committee cancelled the
final round of oral testimony on Monday 7 November 2005, as the questions to be put to departmental
witnesses had been answered at the Senate Estimates hearings of the previous
week.
1.6
For
these reasons, Government Senators do not consider it necessary to comment in
detail on the majority report. There are, however, four matters requiring
discussion, in order to set aspects of the majority report in context. Those
matters are:
-
justification
of expenditure on government advertising;
-
costs of
independent review;
-
whether
there is a need for a ‘legislative base’; and
-
comments
by the Clerk of the Senate.
Justification of expenditure on government advertising
1.7
Advertising
to communicate with 20 million Australians is a relatively expensive
exercise. Australians are faced with
thousands of messages a day. Some of
these are broadcast, some are narrowcast, but all have the characteristic of
seeking to gain attention and consideration.
1.8
It is
easy to focus on the quantum of expenditure rather than acknowledge the
obligation upon governments to inform citizens of their rights and
responsibilities, of their entitlement to benefits or of changes to government
policy that will affect their lives. It is also important to acknowledge the
cost to the community of citizens not being informed of these things.
1.9
While
much is made in the majority report of the cost of the recent WorkChoices
advertising campaign, in fact by far the most expensive government information
activity is the ongoing Defence Recruitment campaign. This is a campaign that
has bipartisan support and was also at the top of Labor government advertising
expenditure prior to 1996.[307]
1.10
All
parties to the inquiry acknowledge the necessity for government advertising in
relation to a range of issues. As Senator Abetz stated in his evidence to the inquiry:
If you asked Australians in general, 'Do you like government
advertising?' I dare say most of them would say, 'no'. I accept that. But if
you then asked them, 'Do you support Defence Force recruitment?' they would
answer, 'Yes, that is important'. If you asked, 'What about advising the
community about superannuation initiatives?' they would answer 'yes'. If you
asked, 'What about Quarantine?' they would answer, 'Oh, that's okay'. If you
asked, 'What about people becoming citizens of the country?' they would answer,
'Oh, that is a very important thing'. If you asked, 'Do you think people should
be told about the evils of domestic violence?' they would answer, 'Oh yes,
absolutely'. Then if you asked, 'Which campaign would you not have run?' you
would find that virtually all of the campaigns would have been run.[308]
1.11
Where
there are differences of opinion over the value of particular campaigns, these
are matters of judgement. Inevitably these judgements will be coloured by one's
view of the value of the policies about which information is being given, or
the benefits that are being introduced.
1.12
When an
opposition consistently accuses a government of conducting illegitimately
'political' advertising campaigns, it may be evidence more of the policy and
political vision of the opposition than of the character of the campaigns
themselves.
Costs and practicality of independent review
1.13
A number
of submissions to the inquiry suggested that some provision for 'independent’
review or adjudication of the 'political' content of government advertising
campaigns should be made. This 'independent' scrutiny, it is argued variously,
could be done by a separate specialist body, by the Auditor-General or an
Ombudsman, or by a Parliamentary committee.[309]
1.14
Government
Senators acknowledge that there are aspects of government that are rightly
subject to this kind of scrutiny, but there are three strong arguments against
these proposals.
1.15
Firstly,
it naturally follows that if the basis of the criticism of campaign lies in the
opposition to the policy being implemented itself, then it is doubtful that the
existence of an ‘independent umpire’ would ameliorate the criticism. For instance, the 1998 CEP advertising has
been subject to both political and academic criticism despite the Auditor
General finding it to be legitimate.
1.16
Secondly,
none of the witnesses or the Senators in the majority report have been able to
provide clear, practical advice to public servants and officials as to what
would constitute ‘political’ advertising.
They have not solved the problem posed by Mr Petro Georgiou, MP, who wrote in his dissenting statement to the Joint Committee of Public Accounts
and Audit report:
In a
highly combative political system, materials which are totally non-partisan are
open to misrepresentation as party political; and the arrow points indicating
the factors which are used to determine whether material can be perceived as
‘party political’ in this [JCPAA] report do not provide a sufficiently clear
and objective basis for assessing whether or not such a perception is valid.[310]
1.17
Thirdly,
it must be acknowledged that prior scrutiny of each individual campaign would
come at a high cost. There is additional
monetary cost involved in funding an oversight body, there are costs in terms
of reduced capacity to respond promptly and flexibly to the information needs
of the community, and there are opportunity costs, especially for pre-existing
institutions, in having to carry out these processes in lieu of their normal
work.
1.18
For
these reasons, Government Senators consider that the establishment of an
oversight body should only be contemplated when the need for, and functioning
of, such a body has been cogently established.
This has not occurred.
1.19
The
majority report contains no discussion and provides no evidence to suggest that
any of the government advertising campaigns run since 1996 would not have been run
had there been an independent overseer of proposed information activities.
Given this, such a body would constitute an unnecessary additional layer of
government.
Whether there is a need for a ‘legislative
base’
1.20
Some
submissions to the inquiry claimed that it is illegitimate to conduct
government information campaigns without a legislative base.
1.21
There is
no legislative base for many government campaigns, yet almost all of these are
‘non-controversial’: AIDS awareness, anti-domestic violence, anti-smoking,
anti-binge drinking, anti-drugs, Australian citizenship, Defence Force
recruitment, and healthy eating campaigns, for example.
1.22
Indeed,
the need to advertise such things and even prospective legislation is
explicitly recognised in both Australian National Audit Office and Joint Committee of Public Accounts and Audit recommendations:
[G]overnment
may legitimately use public funds for information programs or education
campaigns to explain government policies, programs or services ... Examples of
suitable uses for government advertising include to inform the public of new,
existing or proposed government
policies, or policy revisions;[311]
1.23
Government
Senators do not believe there is substance to claims of the requirement of a
‘legislative base’.
Comments by the Clerk of the Senate
1.24
The most
disappointing aspect of the inquiry, in the view of the Government Senators, were
elements of the evidence of Mr Harry Evans, the Clerk of the Senate.
1.25
The
Clerk made several submissions to the inquiry, in the course of which he deviated
from his role as an independent procedural
adviser to the Senate, to present highly contentious policy advice. Odgers
Australian Senate Practice, edited by the Clerk, nominates the functions of the
Clerk:
The Clerk of the Senate is the principal adviser in relation to
proceedings of the Senate to the President, the Deputy President and Chair of
Committees, and senators generally... the departmental head of the Department of
the Senate... [and] secretary and adviser to the Procedure Committee.[312]
The Clerk is an administrator and technical adviser in
relation to the procedures and prerogatives of the Senate. His role does not
extend to advice on the relative merits of public policy.
1.26
The Clerk’s expertise and experience is vital to the stability and
integrity of the legislative process. It is therefore a very serious matter
when the Clerk raises allegations of government corruption which he can not
substantiate. In particular,
Government Senators were concerned about the following remarks made by the
Clerk:
The
other problem which has been perceived in government advertising is the
cross-subsidising of party-political advertising. It is suspected that advertising firms accept
lower fees for advertisements paid for by the party in power with an assurance
that more lucrative government advertising contracts will fall their way. In effect, the expenditure on the government
advertising projects subsidises the party-political advertising of the
government party. This is tantamount to
corruption.[313]
1.27
In oral
and written evidence to the Committee, the Clerk claimed that in referring to
these perceptions and suspicions he was not himself supporting these
allegations, but merely reflecting concerns that had been raised in the Senate
chamber. The Clerk did not provide references
in his written submissions to support the claim that he was merely repeating
assertions made in the Senate. Nor was the
material to hand:
Mr Evans - We
could go through an exercise of assembling all the references in the literature
to support that statement. I hope you do not ask me to do that, but I could.[314]
1.28
Upon
request the Clerk did submit Hansard references in support of his assertions.
He referred the committee to 25 speeches made in the Senate. All were by Labor
Senators: ten from Labor
Senator Robert Ray, nine from Labor Senator John Faulkner, and the remaining six from other Labor
Senators. Despite the partisan nature of the evidence, the Clerk denied this
was an issue:
I have collected a select set of twenty-five
speeches in the Senate referring to alleged improper awarding of government
contracts to who also had contracts with the government political party. At
least seven of these make a direct allegation of cross-subsidisation or other
fraud in the awarding of the contracts. They will be familiar to anyone who has
followed the proceedings in the Senate in recent years. Again I emphasise that
my submissions in no way rely on their truth, and the fact that they were made
by Opposition senators is not to the point. Their existence represents the
problem.[315]
1.29
After the
Clerk’s allegations had been rebutted by the Special Minister of State, the
Clerk wrote:
I
could also have pointed out that cross-subsidising is not tantamount to
corruption, but is corruption. That term
could also be applied to the use of public funds for party-political
advertising even in the absence of cross-subsidising.[316]
1.30
Government
Senators do not believe that the Clerk could be unaware of the political implications
of those two statements, given the context of the debate between the Government
and Opposition in relation to advertising.
1.31
In the
same submission the Clerk directly impugned the honesty of the Special Minister
of State:
The
louder they talk of honour, the faster we count our spoons.[317]
Government Senators are concerned by the Clerk’s allusion to the
Minister’s character. The significance of this statement may be seen in the
fact that this was not simply a line delivered in the cut-and-thrust of oral
questioning. It was a considered
statement, placed in a written submission to the Committee. The Clerk’s actions
in impugning the integrity of a Senator are not consistent with the Clerk’s
obligation to avoid the perception of partiality and to be seen to serve all
Senators equally.
1.32
During
oral evidence the Clerk also questioned the capacity of the High Court to
consider Constitutional matters:
Senator Fifield - You have offered quite a bit of
advice in relation to constitutional law as well in these proceedings. What is
your background in constitutional law? Do you have a law degree, Clerk?
Mr Evans - No, I do not, which is a great assistance in
assessing constitutional questions. The Senate and its committees have found,
over many years, that the worst people to talk about large constitutional
issues are people who have done law degrees. [318]
The Clerk provided his own constitutional advice as to whether monies
for the WorkChoices campaign were legally appropriated.[319]
The High Court has subsequently rejected, by a 5-2 majority, the Clerk’s
interpretation.[320]
1.33
Government
Senators respect the role of the Clerk as a procedural adviser to the Senate and Senators. They do not believe there is a role for the
Clerk as an adviser on either policy
or public administration.
1.34
Government
Senators consider that the intervention of the Clerk in relation to these
matters was unwise, outside his remit and needlessly opened the Office of the
Clerk to allegations of political partiality.
Senator John Watson
Deputy Chairman
Senator Mitch Fifield
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