Senator MURRAY (3:34 PM) —In speaking in the second reading debate on the Primary Industries and Energy Legislation Amendment Bill (No. 3) 1997 , I would address one area of concern the Democrats have. The Senate would be aware that I have circulated item 849 revised. That amendment of ours refers to some 10 different acts covered by this bill.

The bill has attended to questions of board membership and of employee relationships. The Democrats are concerned to ensure that, wherever appointments are made to the governing organ of public authorities—whether they be institutions set up by legislation, independent statutory authorities or quasi government agencies—that the process by which these appointments are made is, and is seen to be, transparent, accountable, open and honest.

The adage of `jobs for the boys' should be an anachronism in 1998. Notwithstanding this, there is a widespread public perception that it is not. Many appear to believe that government appointments result in patronage to handsomely remunerated positions. This perception can damage the reputation of these bodies, as in the public eye they are then seen as being controlled by persons who lack the appropriate independence and who may not be as meritorious as they might be.

The Democrats are of the opinion that, while this is often not so, and many outstanding appointments have been made by both the previous and present governments, nevertheless this is a matter which has to be addressed. In truth, there is little empirical evidence that can be brought to bear to rebut this perception. It is still the case that appointments to statutory authorities are left largely to the discretion of the minister with the relevant portfolio responsibility. In the absence of umbrella legislation to correct this situation in a systematic fashion, the Democrats will have to argue for each piece of legislation dealing with these bodies to include standard provisions setting out an accountable regime governing such appointments made by ministers.

The 1995 Nolan committee, which reviewed the processes for making public appointments in the United Kingdom, set out the following principles to guide and inform the making of such appointments: firstly, a minister should not be involved in an appointment where he or she has a financial or personal interest; secondly, ministers must act within the law, which includes its safeguards against discrimination on grounds of gender or race; thirdly, all public appointments should be governed by the overriding principle of appointment on merit; fourthly, except in limited circumstances, political affiliation should not be a criterion for appointment; fifthly, selection on merit should take account of the need to appoint boards which include a balance of skills and backgrounds; sixthly, the basis on which members are appointed and how they are expected to fulfil their roles should be explicit; and, seventh, the range of skills and backgrounds which are sought should be clearly specified.

Those Nolan Committee guidelines provide only a basic framework for ensuring that proper practices are followed in the making of government appointments. They do not necessarily represent best practice; rather they set out what should really be taken for granted in a modern, democratic system of accountable government. Indeed, the United Kingdom Conservative government accepted fully the Nolan Committee's recommendations on public appointments. The office of Commissioner for Public Appointments was subsequently created, with a similar level of independence from the government as the Auditor-General, to provide an effective avenue of external scrutiny.

The commissioner subsequently developed a code of practice for public appointments, which came into force on 1 July 1996. The code regulates, inter alia, appointments to non-departmental public bodies. It sets out seven principles upon which such appointments must be based. Those seven principles are: ministerial responsibility, merit, independent scrutiny, equal opportunity, probity, openness and transparency, and proportionality. The code provides mandatory guidelines for the application of these principles.

A comparison of these reforms with the current practice of government in the federal sphere in Australia shows clearly that we lag well behind the United Kingdom in this respect. We not only lack the external scrutiny mechanism in the form of the Commissioner for Public Appointments but, more fundamentally, do not have even basic procedural safeguards. This should be redressed as a matter of public importance, with a far higher priority attached to it than has hitherto been the case.

The public must have trust and confidence that a minister will not allow improper or irrelevant considerations or personal interests to influence public appointments. Indeed, this relationship is in some respects analogous to those of a fiduciary nature, such as trustee and beneficiary, in that it is founded on a high degree of trust and confidence. Yet where a breach of duty occurs in a fiduciary relationship, the person to whom the duty is owed has access to a range of equitable remedies. This is not the case where a minister acts for improper purposes in making an appointment.

There is no law to prohibit a minister from doing this or, where the appointment has been made, to make the appointment voidable. This omission is addressed in the recommended amendments to the bill, which I will move, which require that all appointments to the authority be made in accordance with a published code of practice. I might say—and it is self-evident whenever you raise these issues—that such codes and such amendments are not in the interests of those who wish to assume power. They very much like to be able to dish out the jobs.

The code of practice is intended not to act as a mere guideline to ministers in making appointments but to regulate by law the way in which the minister exercises the power of appointment. The content of the code of practice is designed to accommodate those principles designated as fundamental by the Nolan Committee and the United Kingdom Commissioner for Public Appointments, as outlined earlier.

A further provision requires that, even where the code of practice has been adhered to in determining an appointment, the minister will be further obliged to consider the impact of the appointee on the overall complexion of the authority. This provision is aimed at ensuring that `capture' of the authority by any particular interest group cannot occur. It is essential that boards are genuinely representative of the inevitably divergent views of those groups affected by their actions. Without this requirement, the potential remains for appointments to be made to boards of persons who are well qualified but who all hold similar views on key areas of policy. This must be avoided, not simply because it is good public policy practice to do so but to maintain the credibility of the authority in its area of operation.

Some senators who have been party to some of the debates in which we have been involved where we have raised these issues might know that these issues represent a campaign by us to lift standards in the area of ministerial appointments and to arrive at a situation where the public can be guaranteed that appointments are made as objectively and as much in the public interest as possible. It is not our intention to imply that all or most appointments are made for improper motives. It is a fact—and I repeat what I said earlier—that both this government and the previous government have made many outstanding appointments. Nevertheless, we are concerned that the public perception of jobs for the boys and, hopefully, jobs for the girls needs to be ended. I will address these matters at greater length in the committee stage.