Australian Broadcasting Corporation (Definition of senior political staff member) Instrument 2024

Explanatory Statement

Issued by the authority of the Minister for Communications

Australian Broadcasting Corporation Act 1983

Authority

The Australian Broadcasting Corporation Act 1983 (the ABC Act) establishes the Australian Broadcasting Corporation (ABC) and its Board. The Special Broadcasting Service Act 1991 (the SBS Act) establishes the Special Broadcasting Service Corporation (SBS) and its Board.

as a Chairperson or non-executive Director to the ABC Board, either while they hold their senior political staff member position or within 12 months of holding such a position (see subsections 12(5A) and 12(5AA) of the ABC Act); and
as a Chairperson or non-executive Director to the SBS Board, either while they hold their senior political staff member position or within 12 months of holding such a position (see subsections 17(2A) and 17(2AA) of the SBS Act).

Part IIIA of the ABC Act establishes the Nomination Panel, whose role is to conduct a merit‑based assessment of candidates for Chairperson and non-executive Director roles on the ABC Board and the SBS Board and report to the Minister (and the Prime Minister, if the appointment is of an ABC Chairperson) on the outcomes of these selection processes.

The ABC Act does not impose any conditions that need to be satisfied before the power under subsection 3(3) may be exercised.

Purpose

The purpose of the 2024 Instrument is to repeal and replace the Australian Broadcasting Corporation (Definition of senior political staff member) Instrument 2014 (2014 Instrument). The 2014 Instrument is due to sunset on 1 April 2025.

The 2024 Instrument largely replicates the 2014 Instrument by specifying two classes of persons for the purposes of the definition of senior political staff member in subsection 3(1) of the ABC Act, one class relating to Commonwealth senior political staff members (see Class A in subsection 6(2)) of the instrument) and one class relating to State or Territory senior political staff members (see Class B in subsection 6(3) of the instrument).

The language and structure of the instrument has also been updated to align with current drafting standards.

Summary

In high level terms, the ABC and SBS (being the national broadcasters) are required to provide high-quality, innovative and comprehensive broadcasting and digital services to inform, entertain, educate, and reflect the cultural diversity of the Australian community.

Consistent with this, the national broadcasters deliver broadcast programs and services including news and emergency broadcasting, cultural events and education initiatives, with the ABC also providing international broadcasting and regional capacity-building. The boards of both the ABC and SBS are required to ensure that the functions of the national broadcasters are conducted with independence, integrity and impartiality (section 8 of the ABC Act and section 10 of the SBS Act).

The 2024 Instrument supports the independent and impartial operations of the ABC and SBS by excluding senior political staff members from consideration for board positions, and extending this exclusion to persons who have been employed as senior political staff members within the previous 12 months. The instrument specifies classes of senior political staff members for those employed by federal, state, and territory parliaments.

Senior political staff members are often aligned, or can be perceived to be aligned, with the political party to which their member belongs. Their exclusion from the boards of the ABC and SBS reduces perceptions of political bias and supports the independent operations of the national broadcasters.

The 2024 Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to the default sunsetting requirements and disallowance. It commences the day after it is registered in the Federal Register of Legislation.

Details of the instrument are set out in Attachment A.

Consultation

To support the introduction of 5-year funding terms for the ABC and SBS, the government requested the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the department) review options to support the national broadcasters’ independence. The review sought views on a wide range of topics, including ABC and SBS board appointment processes and the 2014 Determination.

The department also conducted targeted consultation with the ABC, SBS and Nomination Panel from July-August 2024 to inform the final drafting of the 2024 Instrument.

No Regulation Impact Analysis was required for the replacement instrument (reference number OIA24-07902).

Statement of Compatibility with Human Rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.

Attachment A

Details of the Australian Broadcasting Corporation (Definition of senior political staff member) Instrument 2024

Part 1—Preliminary

Section 1 – Name

Section 1 provides that the title of the instrument is the Australian Broadcasting Corporation (Definition of senior political staff member) Instrument 2024.

Section 2 – Commencement

Section 2 provides for the whole of the instrument to commence on the day after it is registered on the Federal Register of Legislation.

Section 3– Authority

Section 3 provides that the instrument is made under subsection 3(3) of the Australian Broadcasting Corporation Act 1983 (the ABC Act).

Section 4– Definitions

Section 4 provides for the definition of several key terms, and provides examples of what constitutes ‘Policy Advice’ (a term which is relevant to interpreting subsection 6(4)):

developing policy proposals for the consideration of the member;
analysing policy proposals and making recommendations to the member;
participating in policy discussions with or on behalf of the member;
where the member is a Minister, working with public sector employees to implement policies.

Section 5 – Schedules

Section 5 provides that each instrument specified in the Schedule is amended or repealed as set out in the applicable item in the Schedule concerned, and that any other item in a Schedule to the instrument has effect according to its terms. There is only one Schedule, which repeals the Australian Broadcasting Corporation (Definition of senior political staff member) Instrument 2014.

Section 6 – Specification of classes of persons

Section 6 sets out two classes of persons specified for the purposes of the definition of senior political staff member in subsection 3(1) of the ABC Act.

Subsection 6(2) relates to Commonwealth senior political staff members (Class A). The class includes persons employed under the Members of Parliament (Staff) Act 1984 (Cth) and who occupy a position in the ‘senior staff’ classification as defined by the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-2023 made under the Fair Work Act 2009. This would include persons occupying positions with the classification of Principal Adviser, Senior Adviser, Chief of Staff and Senior Media Adviser.

The incorporation by reference to the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-2023 is an incorporation of that document as it is exists when this instrument is made. It is intended to support applicants, the Nomination Panel and Minister by identifying what constitutes a senior political staff member for the purposes of Class A. The operation of paragraph 6(2)(b) is not intended to be tied to this specific enterprise agreement being in force at the time an appointment to the ABC or SBS Board is made.

Subsections 6(3) and 6(4) specify the class of State or Territory senior political staff members (Class B). This class includes persons employed in a senior position by or on behalf of a member of a State Parliament or the Legislative Assembly for the Australian Capital Territory or of the Northern Territory to primarily provide advice about policy matters, the communication of policy matters to the public, and/or parliamentary matters. ‘Policy advice’ is defined in subsection 4(3).

In addition, subsection 6(4) provides that persons whose positions are known by certain designations are deemed to be persons ‘employed in a senior position’ for the purposes of this class. These include Chief of Staff, Deputy Chief of Staff, Principal Adviser (however described), Senior Adviser (however described), Senior Media Adviser (however described) and Specialist Adviser (however described).

This deeming provision is not intended to limit the operation of subsection 6(3) of the instrument. Rather, it is intended to capture the various classifications for senior advisers across different States and Territories. For example, in South Australia there is currently a position designated as ‘Senior Ministerial Adviser’ The reference to Senior Adviser (however described) in paragraph 6(4)(d) of the instrument is intended to capture this (and other similar) positions.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Broadcasting Corporation (Definition of senior political staff member) Determination 2024

This legislative instrument is compatible with the human rights and freedoms recognised in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

Subsection 3(3) of the ABC Act provides that the Minister may specify a class of persons for the purposes of the definition of a senior political staff member in subsection 3(1) of the ABC Act. These persons are ineligible for appointment as a Chairperson or non-executive Director to the ABC Board, either while they hold their senior political staff member position or within 12 months of holding such a position (see subsections 12(5A) and 12(5AA) of the ABC Act).

These persons are also ineligible for appointment as a Chairperson or non-executive Director to the SBS Board, either while they hold their senior political staff member position or within 12 months of holding such a position (see subsections 17(2A) and 17(2AA) of the SBS Act).

Part IIIA of the ABC Act establishes the Nomination Panel, whose role is to conduct a merit‑based assessment of candidates for Chairperson and non-executive Director roles on the ABC and SBS Boards and report to the Minister (and the Prime Minister if the appointment is of an ABC Chairperson) on the outcomes of these selection processes.

The boards of both the ABC and SBS are required to ensure that the functions of the national broadcasters are conducted with independence, integrity and impartiality (section 8 of the ABC Act and section 10 of the SBS Act).

The 2024 Instrument supports the independent and impartial operations of the ABC and SBS by excluding senior political staff members from consideration for Board positions, and extending this exclusion to persons who have been employed as senior political staff members within the previous 12 months.

The 2024 Instrument specifies classes of senior political staff members for those employed by federal, state, and territory parliaments.

Human rights implications

This instrument engages the following rights:

The right to enjoy and benefit from culture
The right to freedom of opinion and expression
The right to take part in public affairs and elections

The right to enjoy and benefit from culture

Australia is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), one of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Article 15 of the ICESCR protects the right to enjoy and benefit from culture, including the right to take part in cultural life.

Similar protections for women, children and people with disabilities are found in Article 13 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEWAD), Articles 30 and 31 of the Convention on the Rights of the Child (CRC) and Article 30 of the Convention on the Rights of Persons with Disabilities (CRPD) respectively. Further, Article 5 of the Elimination of All Forms of Racial Discrimination (CERD) guarantees the right of everyone to equal participation in cultural activities without distinction as to race, colour, or national or ethnic origin.

In order for the right to enjoy and benefit from culture to be ensured, States must both refrain from interfering with the exercise of cultural practices and with access to cultural goods and services, and take positive action by ensuring preconditions for participation, facilitation and promotion of cultural life and access to and preservation of cultural goods[1].

The United Nations Committee on Economic, Social and Cultural Rights has also recognised that applying limitations to the right may be necessary in certain circumstances, in particular in the case of negative practices that infringe upon other human rights. However, such limitations must pursue a legitimate aim and be proportionate[2].

By specifying certain classes of persons within the definition of senior political staff member, this instrument has the effect of restricting the appointment of persons within those classes to the ABC and SBS Boards. In doing so, the instrument may limit these persons’ right to participate in cultural life through their participation on the ABC and SBS Boards.

However, the limitations imposed on these persons’ rights as a result of this instrument are reasonable, necessary and proportionate.

As national broadcasters, the ABC and the SBS play an important role in Australian life by providing broadcasting and digital media services of a high standard that inform, educate and entertain the Australian community. The ABC and SBS also play an important role in Australian cultural life, by contributing to Australia’s cultural identity through their programs, reflecting Australia’s cultural diversity, promoting its linguistic and ethnic diversity, and reflecting the changing nature of Australian society by presenting many points of view and using innovative forms of expression. Both of these roles are reflected in the Charters of both national broadcasters (see section 6 in both the ABC and SBS Acts). The ABC and SBS Boards of directors are responsible for ensuring that the ABC and SBS, respectively, perform the functions in their Charters (see section 8 of the ABC Act and section 10 of the SBS Act).

This instrument (together with relevant provisions in the ABC and SBS Acts) will assist in reducing the potential for actual or perceived political favouritism or bias and reinforce the independence and impartiality of the national broadcasters. In so doing, it will also protect the rights of members of the broader community, as audiences of the ABC and SBS, to freedom of expression and to take part in cultural life.

Right to freedom of opinion and expression

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to freedom of expression. The right includes the right to seek, receive, or impart information and ideas of all kinds, and the means of their dissemination. The right extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising.

Further protections for children and people with disabilities are found in Article 13 of the Convention on the Rights of the Child (CRC) and Article 21 of the Convention on the Rights of Persons with Disabilities (CRPD) respectively. Further, Article 21 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) guarantees the right of everyone to freedom of opinion and expression without distinction as to race, colour, or national or ethnic origin.

The right is not absolute. For example, Article 19(3) of the ICCPR provides that the exercise of the right in Article 19(2) carries with it special responsibilities and may be restricted on certain grounds, including by taking measures to ensure the protection of other citizens’ right to freedom of expression.

The United Nations Human Rights Committee has recognised the important role of the media to ensure freedom of expression in any society[3]. The Committee has stated that, as a means of protecting the right of media users to receive a wide range of information and ideas, State parties should take particular care to encourage an independent and diverse media. State parties should ensure that public broadcasting services, in particular, operate in an independent manner and they should guarantee their editorial freedom[4].

As noted above, the national broadcasters are important contributors to media diversity in Australia and are required under their Charters (section 6 of the ABC Act and SBS Act refers) to provide broadcasting services of a high standard that inform the Australian community, with the SBS having additional responsibilities to provider services for multilingual and multicultural communities. Both the ABC Board and SBS Board must ensure that the gathering and presentation of news and information by the national broadcasters is accurate and impartial (see section 8 of the ABC Act and section 10 of the SBS Act.

The exclusion of senior political staff members from consideration for board positions is intended to strengthen the independence and impartiality of the ABC and SBS Boards. Importantly, for former senior political staff members, this exclusion will only apply for a limited period of 12 months after a person ceases to be a senior political staff member. As a result, the limitations imposed on these persons’ rights are reasonable, necessary and proportionate.

The right to take part in public affairs and elections

Article 25 of the ICCPR protects the rights of citizens to take part in the conduct of public affairs, directly or through freely chosen representatives.

This determination does not engage Article 25 of the ICCPR. The United Nations Human Rights Committee has stated that the conduct of public affairs relates to the exercise of legislative, executive and administrative powers by the constituent parts of government, and covers all aspects of public administration. That is, Article 25 addresses the right to participate in the conduct and exercise of political powers[5]. The role of a Chairperson or non‑executive Director on the ABC and SBS Boards do not involve the conduct of public affairs in this sense. Rather, the ABC and SBS are corporate Commonwealth entities, established by their respective enabling legislation, for a public purpose. Both are separate legal entities from the government.

Conclusion

The instrument is compatible with human rights. To the extent that the measures in the 2024 Determination may limit the right to privacy, they are lawful and non-arbitrary. Additionally, any impacts are reasonable, necessary and proportionate.

[1] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 21, paragraph 6

[2] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 21, paragraph 19

[3] United Nations Human Rights Committee, General Comment No. 34, paragraph 13

[4] United Nations Human Rights Committee, General Comment No. 34, paragraphs 14 and 16

[5] United Nations Human Rights Committee, General Comment No. 25, paragraph 5

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

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