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Wednesday, 20 June 2012
Page: 3935


Senator BIRMINGHAM (South Australia) (17:00): I want to commence my contribution to this debate with a quote:

You do not just need to be here in this chamber to realise how arrogant and out of touch this government has become, with the ramming through of legislation, ridiculously tight deadlines for legislation, changing the sitting pattern all the time and using the guillotine. It is turning this chamber, which for 30 or 40 years has been a chamber of accountability and scrutiny, into a farce.

These words were those of the minister responsible for the bill before us, Senator Conroy. They were uttered on 19 October 2006, when he was criticising the then government for its application of the guillotine—a guillotine that was applied by that government over the entire course of a term of the Senate on the same number of occasions that this government has decided to apply the guillotine just in this sitting fortnight. Such is the hypocrisy of the government and of Senator Conroy in this regard.

This bill before us—the National Broadcasting Legislation Amendment Bill 2010—is a classic shining example of total mismanagement by this government of proper parliamentary process. Let me dwell on the last part of the bill's title: 2010. This bill was first introduced into the Senate on 24 November 2010, more than 18 months ago. I rise to speak on it as the first contributor to this debate. In the entire period of time—more than 18 months—since this bill was first introduced, we have had the situation in which the government has not managed to find the time or the will to bring it on for debate. In more than 18 months the government has not managed to find time in the sitting calendar to bring it on for debate. Despite the bill's being able to languish there for 18 months, with zero action from the government, suddenly it is urgent. Suddenly it must be dealt with in this sitting fortnight. Suddenly it warrants not substantive debate, not decent debate, but guillotined debate in a ridiculously short period of time.

It is just turning this chamber into a farce. This bill has absolutely no budget implications; it is totally unrelated to the budget. Usually any urgent legislation we deal with in this sitting fortnight is relevant to the new financial year and the implementation of the budget. There is nothing in this bill that demands that it be dealt with today. There is nothing in this bill that says it could not wait until a sitting period in which there is less congestion. Equally, there is nothing to say that in the past 18 months the government could not have managed to find a sitting day on which to deal with this bill without the application of the guillotine. Yet here we have the government forcing the guillotine, totally unnecessarily, onto this piece of legislation.

This piece of legislation itself is unwise, it is unwarranted, it is unnecessary and it is unhelpful. There is nothing in this bill that is particularly worthwhile or that will add to the effective running of either the ABC or SBS. This bill is just a small collection of political point-scoring by Minister Conroy and the government. I strongly support both the ABC and SBS. They are important national institutions. Indeed, particularly through the ABC's news and current affairs arm, the ABC will become a more important national institution over the next few years as we see the changing dynamics in the media landscape.

But this bill does not enhance the ABC's operations or SBS's operations; it simply seeks to play with the construct of their boards—no more, no less. It seeks to amend the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 to establish what the government calls a merit based appointments process for directors of the respective boards. It also seeks to put certain qualifications on who can serve on those boards and ban former members of parliament or former senior political staff from holding board positions, and it seeks to reinstate the staff elected director to the ABC board. That is all it does. That is all that is so urgent that it must be done today—just three things: a merit based appointments process, restricting members of parliament and former staff, and a staff elected director.

Let us look at those three things in sequence. First, regarding this idea of a merit based appointments process, the bill will establish a nomination panel to assist, through a legislated merit based selection process, the Prime Minister and minister to make their recommendations to the Governor-General for the appointment of the ABC and SBS chairpersons and of other non-executive directors. The nomination panel will consist of a chair and two or three other members to be appointed by the Secretary of the Department of the Prime Minister and Cabinet for terms no longer than three years.

I understand the intent behind this. Indeed, Minister Conroy has been applying this process voluntarily for the entire duration of his term as communications minister. That is his prerogative. He is able to decide to apply, as minister, whatever process to select who should be nominated to the ABC's or SBS's or any other boards however he wants to. But through this legislation he wants to tie the hands of all who come after him as well to the process that he chooses to use. That is totally inappropriate and totally unnecessary. Future ministers should, through the usual processes of government, be able to make appointments to the ABC and SBS boards in the same way that appointments are currently made to the Reserve Bank board and numerous other significant government institutions—without the type of process that Senator Conroy today seeks to enshrine in legislation.

It is not just that the process ties the hands of future ministers; it is also that the process is cumbersome, wasteful and expensive. To date, because Senator Conroy has voluntarily used this process, we know that up until 31 January this year it has cost $525,719.49, exclusive of GST, just to run the appointments process for ABC and SBS board directors. More than half a million dollars has been spent—not on better programming by the ABC or SBS, not on keeping open their foreign bureaus in Afghanistan, not on better equipment or services, and not on anything that provides a better ABC or a better SBS—on appointments of people and on the appointment or recruitment of recruitment consultants to provide recommendations to Senator Conroy about who should serve on the ABC or SBS board.

The most high-profile position on these boards was filled recently. The costs of filling that position are incorporated in this tally of more than half a million dollars which has come about as a result of Senator Conroy's appointments process. That position of course is that of the ABC chairman. The new chairman is Mr Jim Spigelman—a very good appointment, an appointment welcomed by both sides of politics and an appointment which was floated very early on in the process. Last year, in fact, when the process of appointing the ABC chairman began, there were newspaper reports identifying former New South Wales Chief Justice Jim Spigelman as the frontrunner for the position. What happened? Thousands of taxpayer dollars were spent to go through a process which eventually saw—guess what—Jim Spigelman appointed as chairman of the ABC.

Senator Conroy, if he had not been so wedded to a process which he now wants to tie future ministers to, could have said: 'My, that is a brilliant idea. Everybody seems to respect Jim Spigelman. He seems to be respected across the political divide. He would be an outstanding chairman. Why on earth would I go through this bureaucratic process, spending thousands of taxpayer dollars, to end up appointing the person who everybody recognised in the first place would be an outstanding appointment?' Instead he spent and wasted taxpayer money to get to that inevitable outcome. Worse still, through this legislation, he now wants to tie the hands of all future ministers—to make them undertake the same wasteful spending and the same bureaucratic process for making these types of appointments.

I move now to the second point of this legislation—the banning of serving members of the Commonwealth parliament, serving members of state or territory parliaments, serving senior political staff, former members of the Commonwealth parliament, former members of state and territory parliaments and former senior political staff from taking the office of chairperson or director of the ABC or SBS. Mr Spigelman is an interesting example again—because he was of course at one stage a senior political staffer. He worked for former Prime Minister Gough Whitlam. Under the legislation drafted by Senator Conroy and introduced into this place in 2010, Mr Spigelman would not have been eligible for appointment. That is how well thought through the process that Senator Conroy wants to undertake is. That is how much consideration was given. In the end, the one new chairperson for the ABC that Senator Conroy has appointed during his time as communications minister would, had the legislation he has introduced already been passed, have been ineligible for appointment.

Thankfully, I understand the government has the intention of accepting coalition amendments to put a sunset on such bans—they would only apply for 12 months.

Senator Ludlam: Shame!

Senator BIRMINGHAM: 'Shame,' says Senator Ludlam. Senator Ludlam does not think Mr Spigelman should be the chair of the ABC, apparently. A 12-month sunset would be a sensible thing because that at least would ensure that a Mr Spigelman could be appointed. The other irony of the approach of the original legislation to banning former MPs and former political staff is that it might knock out a Jim Spigelman and it might knock out a Kim Beazley but—you know what?—it would not knock out a Gina Rinehart. It would not even knock out a Michael Kroger, who has of course been a state president of the Liberal Party's Victorian division and was an ABC director—

Senator Kroger: An outstanding one.

Senator BIRMINGHAM: Indeed he was an outstanding ABC director, Senator Kroger—an appropriate time to enter the chamber. But Mr Kroger has never been a senior political staffer and therefore would not be knocked out by the definitions in the original legislation. That just goes to show you how ridiculous it is to try to do these things through legislation. That is the reason we have to trust the processes applied by ministers of the day and have to trust that they will exercise appropriate judgment in making these types of appointments. They will not always get it right, but they will always be open to public criticism when they get it wrong.

Senator Conroy made reference to Christmas card lists in trying to define the Howard government's approach to appointments. That shows us that his motivations in bringing this legislation forward are political. He made his political points along the way, attacking the Howard government appointments. I note that it is the ABC Board, entirely appointed by the Howard government, that appointed the current managing director, Mr Mark Scott. He is widely recognised as doing a very good job. Senator Conroy seems to have significant faith in him. The appointment of Mr Kroger and others by the Howard government was clearly not so bad after all. It led to the appointment of a very sound managing director in Mark Scott. It just goes to show that this legislation is purely politically motivated.

It is the last part of the legislation, the third component—the staff elected director—that is perhaps more politically motivated than all the others. It is about the Labor Party's need, as always, to appease the unions. In this case, no doubt, it is the MEAA. In June 2004, then ABC chairman Maurice Newman cited a gross breach of boardroom confidentiality and the refusal by the then staff elected director to adhere to the board's governance protocols. It was a serious concern. It left open the potential for further leaking of boardroom deliberations and papers. Mr Newman resigned. His resignation letter stated, in part:

You may be aware of the recent gross breach of boardroom confidentiality on the issue of independent monitoring of ABC broadcasts. This, and the inability to secure the agreement of the staff elected director to the board's governance protocols, leaves open the potential for further leaking of boardroom deliberations and papers should they be judged to be of concern.

Mr Newman was ultimately appointed ABC chairman, as this issue was eventually resolved. It was resolved because the staff elected director position was wisely removed from the ABC board.

It does not happen in any other organisation of this kind. Why on earth should it happen in the ABC? That is a fairly simple proposition. Why would you have the staff of the organisation electing one of their own to sit around the boardroom table, therefore potentially compromising either that person's position within the organisation or the confidentiality and approach of the board's deliberations?

The board has functioned perfectly well without a staff elected director since the position was removed, and indeed former ABC chair Donald McDonald, in evidence to the Senate inquiry into this legislation, highlighted some of the pressures that could be faced by a staff elected director. He said:

They would be bombarded with emails from staff members about issues. I think the most burdensome part of it was that, in the arrangements then—and at least these provisions are an improvement, if they are passed—their term was for two years only and they could stand for another two years. But it meant that if they wanted to do another term they were in a position of campaigning or passively campaigning for a chunk of that time. So they had to deal with all these pressures, all these inquiries and all these bombardments.

There is no justifiable need to have the ABC staff elected director position put back in. There has been no demonstrable argument as to why the ABC is worse off because of it. Anybody who thinks rationally about it would know that it is inappropriate, in many cases, to have somebody representing the staff sitting in the boardroom while difficult decisions are made.

On all three flanks this legislation fails. It is unnecessary to have the staff elected director. It is unnecessary and foolish to go through this so-called merits based appointment process and it is overly expensive to do. It is ridiculous to define out certain categories of people from serving on these boards. In the end, you will simply create a ridiculous inequity where some very worthwhile people will be excluded. This legislation has come to this chamber to debate in a shameful way with a guillotine, but it is unwarranted legislation and really does not deserve the time of day of this chamber.