Explanatory Statement
Special Broadcasting Service Act 1991
Special Broadcasting Service Corporation (Selection criteria for the appointment of non-executive Directors) Determination 2013
Issued by the Authority of the Minister for Communications
Purpose
The Special Broadcasting Service Corporation (Selection criteria for the appointment of non-executive Directors) Determination 2013 (this determination) is made by the Minister for Communications (the Minister) under subsection 43A(1) of the Special Broadcasting Service Act 1991 (the Act).
The purpose of this determination is to determine generally applicable selection criteria for the appointment of the Chairperson and other non-executive Directors of the Special Broadcasting Service (the SBS). Specifically, the Nomination Panel established by section 24A of the Australian Broadcasting Corporation Act 1983 (the ABC Act) is required to assess each applicant for such appointment against the selection criteria that are determined by the Minister (paragraph 43(1)(b) of the Act refers).
This will ensure that the appointment of all non‑executive Directors to the SBS Board is transparent, consistent and based on merit.
This determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Background
The National Broadcasting Legislation Amendment Act 2012 (the NBLA Act) amended the Act and the ABC Act to implement a merit-based appointment process for non‑executive Directors to the SBS and the Australian Broadcasting Corporation (ABC) Boards. The NBLA Act received the Royal Assent on 24 July 2012 and commenced on 24 November 2012.
The merit-based appointment process is conducted by the Nomination Panel, which is established under Part IIIA of the ABC Act. The Nomination Panel plays a central role in conducting the selection process for the appointment of the SBS Chairperson and other non-executive Directors prior to the Governor-General making appointments to the SBS Board.
Specifically, the Nomination Panel:
- advertises and invites people to apply for Board vacancies (refer to subsection 43(3) of the Act);
- assesses all applicants for the appointment against the selection criteria determined by the Minister under subsection 43A(1) of the Act and any additional selection criteria notified by the Minister under subsection 43A(2) of the Act (refer to paragraph 43(1)(b) of the Act);
- assesses all applicants for the appointment on the basis of merit (refer to paragraph 43(1)(c) and subsection 43(2) of the Act); and
- provides a written report to the Minister on the outcome of the selection process. The report must include a list of at least three candidates nominated for the appointment and a comparative assessment of those candidates (refer to paragraph 43(1)(d) of the Act).
This determination sets out the selection criteria determined by the Minister under subsection 43A(1) of the Act. The selection criteria are intended to reflect the duties, skills and desirable attributes of non-executive Directors on the SBS Board, and to address the requirements set out under subsection 17(2) of the Act in relation to the overall composition and competencies of the SBS Board.
Regulation Impact Statement
The Office of Best Practice Regulation has confirmed that the preparation of a Regulation Impact Statement is not necessary, as the determination has a nil or low impact on business or the economy or individuals.
Statement of compatibility with human rights
This statement of compatibility is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
This determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
One function of the Nomination Panel established under section 24A of the ABC Act is to assess all applicants for the appointment of a Chairperson and other non-executive Directors to the SBS Board against the selection criteria determined or notified by the Minister under section 43A of the Act (paragraph 43(1)(b) of the Act).
This determination sets out general selection criteria determined by the Minister under subsection 43A(1) of the Act. The selection criteria are based on the duties, skills and desirable attributes of non-executive Directors on the SBS Board, and address the requirements set out under subsection 17(2) of the Act in relation to the overall composition and competencies of the SBS Board.
These criteria will ensure that the appointment of all non‑executive Directors to the SBS Board is transparent, consistent and on the basis of merit.
Human rights implications
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.
By determining selection criteria for the appointment of non-executive Directors to the SBS Board, this determination positively engages Article 15 of the ICESCR.
As a national broadcaster, the SBS plays an important role in Australian multicultural life and this is reflected in its Charter (section 6 of the Act refers). Under its Charter, the principal function of the SBS is to provide multilingual and multicultural radio, television and digital media services that inform, educate and entertain all Australians and, in so doing, reflect Australia’s multicultural society.
The selection criteria in this determination identify the skills and attributes desirable of non-executive Directors on the SBS Board. These are intended to ensure that the Board is comprised of Directors capable of performing the role and duties of the Board in accordance with the Act, including by ensuring that the SBS performs its functions in a proper, efficient and economical manner, and with the maximum benefit to the people of Australia (see paragraph 9(b) of the Act).
In so doing, this determination will enhance Australians’ ability to enjoy and benefit from culture, including their right to take part in Australia’s multicultural life through the SBS’ services.
The right to take part in public affairs
Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR), another of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
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 constituents 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.[1] The role of non-executive Directors on the SBS Board does not involve the conduct of public affairs in this sense. Rather, the SBS is a body corporate established by the Act for a public purpose. It is a separate legal entity from the government.
Conclusion
This determination is compatible with human rights because it positively engages and promotes human rights.
Consultation
The SBS and Nomination Panel were directly consulted in writing by the Minister during the development of this determination as both are directly impacted by the selection criteria. The consultation informed the further development of the selection criteria in this determination.
Notes on the Special Broadcasting Service Corporation (Selection criteria for the appointment of non-executive Directors) Determination 2013
Section 1 – Name of determination
Section 1 provides that the name of the determination is the Special Broadcasting Service Corporation (Selection criteria for the appointment of non-executive Directors) Determination 2013.
Section 2 - Commencement
Section 2 sets out the date on which this determination commences. This determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 - Definitions
Section 3 sets out key definitions for the purposes of the determination.
Section 4 – Selection Criteria
Section 4 sets out the selection criteria determined by the Minister under subsection 43A(1) and to be used by the Nomination Panel to assess all applicants for the appointment of a non-executive Director under the merit-based appointment process established under Part 3A of the Act.
The selection criteria are intended to reflect the duties, skills and desirable attributes of non-executive Directors on the SBS Board and to address the requirements set out in subsection 17(2) of the Act in relation to the overall composition and competencies of the SBS Board.
Subsection 4(1) requires candidates to demonstrate substantial experience or knowledge in at least one of the following fields:
- the media industry, including broadcasting, digital media and/or digital technologies;
- business or financial management;
- corporate governance, including managing larger and/or complex operations in the private, public or the not‑for‑profit sector;
- cultural industry and/or cultural policy, including its administration;
- industrial relations, including an understanding of interests of employees.
The fields listed in subsection 4(1) reflect the operation of the SBS as a broadcaster and provider of digital media services, the SBS’ status as a large and complex organisation, and the SBS’ functions under its Charter (see section 6 of the SBS Act). Amongst other things, under its Charter, the SBS is required to contribute to meeting the communication needs of Australia’s multicultural society, increase awareness of the contribution of cultural diversity to the development of Australian society, and promote understanding and acceptance of the cultural diversity of the Australian people.
Subsection 4(2) sets out the duties and attributes that candidates are expected to possess. These are:
- demonstrated high level leadership and vision;
- a commitment to high standards of governance;
- high-level judgment;
- the highest standards of professional and personal integrity;
- an understanding of, or the ability to credibly represent, the communication needs of Australia’s multicultural society, including ethnic, Aboriginal and Torres Strait Islander communities; and
- an understanding of the media environment, in particular the role of the SBS as a multicultural broadcaster, its Charter and its place within the Australian community.
[1] United Nations Human Rights Committee General Comment No. 25, paragraph 5.