Appendix 3

Recommended amendments to National Broadcasting Legislation Amendment Bill 2010

Recommendation 3

2.49 The committee recommends that the bill be amended to provide that a former politician or senior political staff member is eligible for appointment to the ABC and SBS boards provided that they meet the following conditions:

• the individual ceased to hold office at least 18 months prior to the appointment; and
• the individual is nominated by the nomination panel following an independent, merit-based selection process as set out by the bill.

Recommended amendments

(1)       Schedule 1, item 12, page 5 (lines 8 to 15), omit subsection 12(5A), substitute:

(5A)  The following persons are not eligible for appointment as a Director referred to in paragraph (1)(b) or (c) while they hold office, or for a period of 18 months after they cease to hold office:

(a)  a member of the Parliament of the Commonwealth;

(b)  a member of the Parliament of a State, of the Legislative Assembly for the Australian Capital Territory or of the Legislative Assembly of the Northern Territory.

(5AA)  A person who is employed as a senior political staff member is not eligible for appointment as a Director referred to in paragraph (1)(b) or (c) while they are employed as a senior political staff member.

(5AB)  A person who was employed as a senior political staff member is not eligible for appointment as a Director referred to in paragraph (1)(b) or (c) for a period of 18 months after ceasing to be employed as a senior political staff member.

(5AC)  Subsections (5B), (5C) and (5D) do not apply to a person to whom subsection (5A), (5AA) or (5AB) applies.

(5AD)  A person to whom subsection (5A), (5AA) or (5AB) applies must not be appointed other than in accordance with a competitive selection procedure set out in section 24B.

Note:         A former politician or a former senior political staff member is not eligible to be appointed as a Director unless the person has been nominated by the Nomination Panel.

(2)    Schedule 1, item 24, page 16 (lines 1 to 10), omit subsection 17(2A), substitute:

(2A)  The following persons are not eligible for appointment as a Director referred to in paragraph 8(a), (aa) or (b) while they hold office, or for a period of 18 months after they cease to hold office:

(a)  a member of the Parliament of the Commonwealth;

(b)  a member of the Parliament of a State, of the Legislative Assembly for the Australian Capital Territory or of the Legislative Assembly of the Northern Territory.

(2AA)  A person who is employed as a senior political staff member is not eligible for appointment as a Director referred to in paragraph 8(a), (aa) or (b) while they are employed as a senior political staff member.

(2AB)  A person who was employed as a senior political staff member is not eligible for appointment as a Director referred to in paragraph 8(a), (aa) or (b) for a period of 18 months after ceasing to be employed as a senior political staff member.

(2AC)  Subsections (2B) and (2C) do not apply to a person to whom subsection (2A), (2AA) or (2AB) applies.

(2AD)  A person to whom subsection (2A), (2AA) or (2AB) applies must not be appointed other than in accordance with a competitive selection procedure set out in section 43.

Note:         A former politician or a former senior political staff member is not eligible to be appointed as a Director unless the person has been nominated by the Nomination Panel. 

Recommendation 4

2.63 The committee recommends that the government include the Merit Protection Commissioner as a permanent member of the Nomination Panel for appointments to the ABC and SBS boards.

Recommended amendment

(3)       Schedule 1, item 15, page 8 (lines 28 to 31), omit section 24E, substitute:

24E  Membership

The Nomination Panel consists of the following members:

(a)  the Chair of the Nomination Panel;

(b)  the Merit Protection Commissioner appointed under Part 6 of the Public Service Act 1999, or his or her nominee; and

(c)  at least 1, and not more than 2, other members.

Recommendation 5

3.19 The committee recommends that the bill be amended to provide that a staff‑elected Director may hold office for a maximum of one five-year term. 

Recommended amendments

(4)       Schedule 2, item 4, page 22 (line 27) to page 28 (line 6), omit subsection 13A(5), substitute:

(5)  Subject to sections 16 and 18, the person who is the staff‑elected Director holds office on a part‑time basis for a period of 5 years starting:

(a)  if, on the day on which the person is declared to be elected, another person holds office as the staff‑elected Director because of a previous election—on the day after the day on which the other person ceases to hold office; or

(b)  in any other case—on the day on which the person is declared to be elected.

(5)       Schedule 2, item 4, page 23 (lines 7 to 9), omit subsection 13A(6), substitute:

(6)  A person who has been elected as the staff‑elected Director at one election is not eligible for election at any other election of the staff‑elected Director.

Recommendation 6

3.24 The committee recommends that the SBS Act be amended to include a staff‑elected Director on the SBS Board.

Recommended amendment

(6)       Schedule 2, page 23 (after line 22), at the end of the Schedule, add:

Special Broadcasting Service Act 1991

8  Paragraph 8(b)

Repeal the paragraph, substitute:

(ab)  the staff‑elected Director; and

(b)  not fewer than 3 nor more than 7 non-executive Directors.

9  Paragraph 17(2)(b)

Omit  “; and”.

10  Paragraph 17(2)(c)

Repeal the paragraph.

11  At the end of section 17

Add:

(4)  In this section, non-executive Director does not include the staff‑elected Director.

(5)  If there is a defect or irregularity in the appointment of a person as a staff‑elected Director, the performance of the functions, or the exercise of the powers, of the Board is not affected by anything done, or omitted to be done, by or in relation to that person while he or she purported to be, or to act as, the staff‑elected Director.

12  At the end of section 18

Add:

(3)  In this section, non-executive Director does not include the staff‑elected Director.

13  At the end of section 21

Add:

(3)  In this section, non-executive Director does not include the staff‑elected Director.

14  At the end of section 24

Add:

(7)  In this section, non-executive Director does not include the staff‑elected Director.

15  At the end of Division 1 of Part 3

Add:

27A  Staff‑elected Director

(1)  Subject to this section, the staff‑elected Director must be elected in accordance with the regulations.

Note:         As a member of the Board, the staff‑elected Director is a director of a Commonwealth authority for the purposes of the Commonwealth Authorities and Companies Act 1997: see the definition of director in section 5 of that Act.

Eligibility for election

(2)  A person is eligible to be a candidate for election, and to hold office, as the staff‑elected Director if:

(a)  the person is an employee of the SBS who, by the terms of his or her employment, is required to devote at least 22 hours per week to the duties of that employment; or

(b)  the person (the relevant person) performs services for the SBS, under the direction and control of the Managing Director or an employee of the SBS, under:

(i)  a written contract entered into between the SBS and the relevant person; or

(ii)  a written contract entered into between the SBS and a person other than the relevant person, being a contract that specified the relevant person as the person who would perform the services under the contract.

Effect of candidate ceasing to be eligible after nomination

(3)  If a person who has been nominated as a candidate for election as the staff‑elected Director ceases to be eligible to be such a candidate after having been nominated and before the day on which the election takes place:

(a)  if there are 2 or more other eligible candidates—the election must be held as if the person were not a candidate; or

(b)  if there is only one other eligible candidate—the other candidate must be declared to be elected; or

(c)  if there is no other eligible candidate—fresh invitations must be issued for the nomination of candidates.

Candidate may vote at election

(4)  A person who is eligible to be a candidate for election as the staff‑elected Director is eligible to vote at the election.

Period of office

(5)  Subject to sections 26 and 27, the person who is the staff‑elected Director holds office on a part-time basis for a period of 5 years starting:

(a)  if, on the day on which the person is declared to be elected, another person holds office as the staff‑elected Director because of a pervious election—on the day after the day on which the other person ceases to hold office; or

(b)  in any other case—on the day on which the person is declared to be elected.

(6)  A person who has been elected as the staff‑elected Director at one election is not eligible for election at any other election of the staff‑elected Director.

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