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This is a Bill, not an Act. For current law, see the Acts databases.
NATIONAL BROADCASTING LEGISLATION AMENDMENT BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Broadcasting Legislation
Amendment Bill 2009
No. , 2009
(Broadband, Communications and the Digital Economy)
A Bill for an Act to amend the law relating to the
Australian Broadcasting Corporation and the
Special Broadcasting Service Corporation, and for
related purposes
i National Broadcasting Legislation Amendment Bill 2009 No. , 2009
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Merit-based appointment of ABC and SBS
non-executive Directors
3
Australian Broadcasting Corporation Act 1983
3
Special Broadcasting Service Act 1991
15
Schedule 2--ABC staff-elected Director
21
Australian Broadcasting Corporation Act 1983
21
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 1
A Bill for an Act to amend the law relating to the
1
Australian Broadcasting Corporation and the
2
Special Broadcasting Service Corporation, and for
3
related purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act may be cited as the National Broadcasting Legislation
7
Amendment Act 2009.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
column 2 of the table. Any other statement in column 2 has effect
12
according to its terms.
13
2 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
1
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 2,
item 1
At the same time as the provision(s) covered
by table item 2.
4. Schedule 2,
item 2
Immediately after the commencement of the
provision(s) covered by table item 2.
5. Schedule 2,
items 3 to 7
At the same time as the provision(s) covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
2
passed by both Houses of the Parliament and assented to. It will not be
3
expanded to deal with provisions inserted in this Act after assent.
4
(2) Column 3 of the table contains additional information that is not
5
part of this Act. Information in this column may be added to or
6
edited in any published version of this Act.
7
3 Schedule(s)
8
Each Act that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 3
Schedule 1--Merit-based appointment of ABC
1
and SBS non-executive Directors
2
3
Australian Broadcasting Corporation Act 1983
4
1 Subsection 3(1)
5
Insert:
6
Prime Minister's Department means the Department of the Prime
7
Minister and Cabinet.
8
2 Subsection 3(1)
9
Insert:
10
senior political staff member means a person included in a class of
11
persons specified under subsection (3).
12
3 At the end of section 3
13
Add:
14
(3) The Minister may, by legislative instrument, specify a class of
15
persons for the purposes of the definition of senior political staff
16
member in subsection (1).
17
4 After paragraph 12(1)(a)
18
Insert:
19
(b) the Chairperson; and
20
5 Paragraph 12(1)(c)
21
Omit "5", substitute "4".
22
6 Paragraph 12(1)(c)
23
Omit "7", substitute "6".
24
7 Subsection 12(2)
25
Omit "paragraph (1)(c)", substitute "paragraph (1)(b) or (c)".
26
8 After subsection 12(2)
27
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
4 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
Insert:
1
(2A) The sum of the periods for which a person holds either or both of
2
the following offices must not exceed 10 years:
3
(a) an office referred to in paragraph (1)(b);
4
(b) an office referred to in paragraph (1)(c).
5
Example 1: Assume a person holds office as Chairperson for an initial period of 5
6
years and then holds office as Chairperson for a further period of 5
7
years.
8
The person cannot hold office as Chairperson again and cannot hold
9
office as a Director referred to in paragraph (1)(c).
10
Example 2: Assume a person holds office as a Director referred to in
11
paragraph (1)(c) for a period of 5 years and then holds office as
12
Chairperson for a period of 3 years.
13
The person may now hold office as Chairperson, or as a Director
14
referred to in paragraph (1)(c), for a maximum period of 2 years.
15
9 Subsection 12(3)
16
Omit "to be the Chairperson of the Board and another of the
17
non-executive Directors".
18
10 Subsection 12(4)
19
Omit ", by reason that there is no Chairperson or Deputy Chairperson",
20
substitute "or of Chairperson, by reason that there is no Deputy
21
Chairperson".
22
11 Subsection 12(4)
23
Omit "5", substitute "4".
24
12 Subsection 12(5)
25
Repeal the subsection, substitute:
26
(5) Before the Governor-General appoints a person as a Director
27
referred to in paragraph (1)(b) or (c):
28
(a) if the appointment is of the Chairperson--the Prime Minister;
29
or
30
(b) if the appointment is not of the Chairperson--the Minister;
31
must be satisfied that the person is suitable for appointment
32
because of:
33
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 5
(c) having had experience in connection with the provision of
1
broadcasting services or in communications or management;
2
or
3
(d) having expertise in financial or technical matters; or
4
(e) having cultural or other interests relevant to the oversight of a
5
public organisation engaged in the provision of broadcasting
6
services.
7
(5A) The following persons are not eligible for appointment as a
8
Director referred to in paragraph (1)(b) or (c):
9
(a) a member or former member of the Parliament of the
10
Commonwealth;
11
(b) a member or former member of the Parliament of a State, of
12
the Legislative Assembly for the Australian Capital Territory
13
or of the Legislative Assembly of the Northern Territory;
14
(c) a person who is or was a senior political staff member.
15
(5B) Subject to subsections (5C) and (5D), a person must not be
16
appointed as a Director referred to in paragraph (1)(b) or (c) unless
17
Part IIIA is complied with.
18
(5C) The Prime Minister may recommend to the Governor-General that
19
a particular person be re-appointed as Chairperson without
20
Part IIIA being complied with.
21
(5D) The Minister may recommend to the Governor-General that a
22
particular person be re-appointed as a Director referred to in
23
paragraph (1)(c) without Part IIIA being complied with.
24
13 Subsection 12(6)
25
Omit "Chairperson,".
26
14 At the end of section 12
27
Add:
28
(7) The appointment of a Director referred to in paragraph (1)(b) or (c)
29
is not invalid merely because of a defect or irregularity in relation
30
to the appointment (including a failure to comply with Part IIIA).
31
15 After Part III
32
Insert:
33
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
6 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
Part IIIA--Merit-based appointment of
1
non-executive Directors
2
Division 1--Establishment and functions of Nomination
3
Panel
4
24A Establishment
5
The Nomination Panel is established by this section.
6
24B Functions
7
(1) The Nomination Panel has the following functions:
8
(a) to conduct a selection process for each appointment of a
9
Director referred to in paragraph 12(1)(b) or (c);
10
(b) to assess all applicants for the appointment against the
11
selection criteria determined under subsection 24W(1) and
12
any additional selection criteria notified under subsection
13
24W(2);
14
(c) to assess all applicants for the appointment on the basis of
15
merit;
16
(d) to give a written report:
17
(i) if the appointment is of the Chairperson--to the Prime
18
Minister and the Minister; or
19
(ii) if the appointment is not of the Chairperson--to the
20
Minister;
21
on the outcome of the selection process that contains a list of
22
at least 3 candidates who are nominated for the appointment
23
and a comparative assessment of those candidates;
24
(e) other functions that are conferred on it by, or under, this Act;
25
(f) other functions that are conferred on it by, or under, the
26
Special Broadcasting Service Act 1991.
27
(2) For the purposes of paragraph (1)(c), the assessment of applicants
28
for appointment as a Director referred to in paragraph 12(1)(b) or
29
(c) is based on merit if:
30
(a) an assessment is made of the comparative suitability of the
31
applicants for the duties of that Director, using a competitive
32
selection process; and
33
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 7
(b) the assessment is based on the relationship between the
1
applicants' experience, skills and competencies and the
2
experience, skills and competencies genuinely required for
3
the duties of that Director; and
4
(c) the assessment focuses on the capability of the applicants to
5
achieve outcomes related to the duties of that Director; and
6
(d) the assessment is the primary consideration in nominating the
7
candidates for that appointment.
8
Advertising appointments
9
(3) The Nomination Panel must invite written applications by persons
10
seeking to be appointed as a Director referred to in paragraph
11
12(1)(b) or (c) by advertisements published:
12
(a) in either or both of the following:
13
(i) a newspaper circulating generally throughout Australia;
14
(ii) for each State, the Australian Capital Territory and the
15
Northern Territory--a newspaper circulating generally
16
in that State or Territory; and
17
(b) on the Department's website.
18
One selection process for 2 or more appointments
19
(4) The Nomination Panel may conduct one selection process for 2 or
20
more of the following appointments (including any combination of
21
them):
22
(a) an appointment of the Chairperson;
23
(b) an appointment of a Director referred to in paragraph
24
12(1)(c);
25
(c) an appointment of the Chairperson under the Special
26
Broadcasting Service Act 1991;
27
(d) an appointment of a non-executive Director referred to in
28
paragraph 8(b) of the Special Broadcasting Service Act 1991.
29
Selection process creates another appointment
30
(5)
If:
31
(a) under subsection (3), the Nomination Panel invites
32
applications by persons seeking to be appointed as
33
Chairperson (whether or not it also invites applications by
34
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
8 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
persons seeking to be appointed as a Director referred to in
1
paragraph 12(1)(c)); and
2
(b) as a result of the selection process, a Director referred to in
3
paragraph 12(1)(c) is appointed as the Chairperson (allowing
4
another appointment (the new appointment) of a Director
5
referred to in that paragraph to be made);
6
then:
7
(c) the Panel is not required to conduct another selection process
8
for the new appointment; and
9
(d) if the Panel does not do so--paragraphs (1)(b), (c) and (d) of
10
this section apply in relation to the new appointment as if:
11
(i) the unsuccessful applicants (other than a Director
12
referred to in paragraph 12(1)(c)) for the appointment as
13
Chairperson were applicants for the new appointment;
14
and
15
(ii) if the Panel also invited applications by persons seeking
16
to be appointed as a Director referred to in paragraph
17
12(1)(c)--the unsuccessful applicants for the
18
appointment were applicants for the new appointment.
19
24C Nomination Panel not subject to direction
20
The Nomination Panel is not subject to direction by or on behalf of
21
the Government of the Commonwealth.
22
24D Nomination Panel has privileges and immunities of the Crown
23
The Nomination Panel has the privileges and immunities of the
24
Crown in right of the Commonwealth.
25
Division 2--Constitution and membership of Nomination
26
Panel
27
24E Membership
28
The Nomination Panel consists of the following members:
29
(a) the Chair of the Nomination Panel;
30
(b) at least 2, and not more than 3, other members.
31
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 9
24F Appointment of members
1
(1) A member of the Nomination Panel is to be appointed by the
2
Secretary of the Prime Minister's Department by written
3
instrument.
4
Note:
A member of the Nomination Panel is eligible for reappointment: see
5
subsection 33(4A) of the Acts Interpretation Act 1901.
6
(2) A member holds office on a part-time basis.
7
(3) A member holds office for the period specified in the instrument of
8
appointment. The period must not exceed 3 years.
9
(4) The Secretary of the Prime Minister's Department must give notice
10
on the Prime Minister's Department's website of each person
11
appointed to the Nomination Panel.
12
24G Acting appointments
13
(1) The Secretary of the Prime Minister's Department may, by written
14
instrument, appoint a member of the Nomination Panel to act as the
15
Chair:
16
(a) during a vacancy in the office of Chair (whether or not an
17
appointment has previously been made to the office); or
18
(b) during any period, or during all periods, when the Chair is
19
absent from duty or from Australia, or is, for any reason,
20
unable to perform the duties of the office.
21
(2) The Secretary of the Prime Minister's Department may, by written
22
instrument, appoint a person to act as a member (other than as
23
Chair):
24
(a) during a vacancy in the office of such a member (whether or
25
not an appointment has previously been made to the office);
26
or
27
(b) during any period, or during all periods, when such a member
28
is absent from duty or from Australia, or is, for any reason,
29
unable to perform the duties of the office.
30
(3) Anything done by or in relation to a person purporting to act under
31
an appointment is not invalid merely because:
32
(a) the occasion for the appointment had not arisen; or
33
(b) there was a defect or irregularity in connection with the
34
appointment; or
35
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
10 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
(c) the appointment had ceased to have effect; or
1
(d) the occasion to act had not arisen or had ceased.
2
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
3
24H Remuneration
4
(1) A member of the Nomination Panel is to be paid the remuneration
5
that is determined by the Remuneration Tribunal. If no
6
determination of that remuneration by the Tribunal is in operation,
7
the member is to be paid the remuneration that is prescribed by the
8
regulations.
9
(2) A member of the Nomination Panel is to be paid the allowances
10
that are prescribed by the regulations.
11
(3) This section has effect subject to the Remuneration Tribunal Act
12
1973.
13
24J Leave
14
(1) The Secretary of the Prime Minister's Department may grant the
15
Chair leave of absence on the terms and conditions that the
16
Secretary of the Prime Minister's Department determines.
17
(2) The Chair may grant leave of absence to any other member on the
18
terms and conditions that the Chair determines.
19
24K Disclosure of interests to the Secretary of the Prime Minister's
20
Department
21
A member of the Nomination Panel must give written notice to the
22
Secretary of the Prime Minister's Department of all interests,
23
pecuniary or otherwise, that the member has or acquires and that
24
conflict or could conflict with the proper performance of the
25
member's functions.
26
24L Disclosure of interests to the Nomination Panel
27
(1) A member of the Nomination Panel who has an interest, pecuniary
28
or otherwise, in a matter being considered or about to be
29
considered by the Nomination Panel must disclose the nature of the
30
interest to a meeting of the Nomination Panel.
31
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 11
(2) The disclosure must be made as soon as possible after the relevant
1
facts have come to the member's knowledge.
2
(3) The disclosure must be recorded in the minutes of the meeting.
3
24M Resignation
4
(1) A member of the Nomination Panel may resign his or her
5
appointment by giving the Secretary of the Prime Minister's
6
Department a written resignation.
7
(2) The resignation takes effect on the day it is received by the
8
Secretary of the Prime Minister's Department or, if a later day is
9
specified in the resignation, on that later day.
10
24N Termination of appointment
11
(1) The Secretary of the Prime Minister's Department may terminate
12
the appointment of a member of the Nomination Panel for
13
misbehaviour or physical or mental incapacity.
14
(2) The Secretary of the Prime Minister's Department may terminate
15
the appointment of a member of the Nomination Panel if:
16
(a)
the
member:
17
(i) becomes bankrupt; or
18
(ii) applies to take the benefit of any law for the relief of
19
bankrupt or insolvent debtors; or
20
(iii) compounds with his or her creditors; or
21
(iv) makes an assignment of his or her remuneration for the
22
benefit of his or her creditors; or
23
(b) the member is absent, except on leave of absence, from 3
24
consecutive meetings of the Nomination Panel; or
25
(c) the member fails, without reasonable excuse, to comply with
26
section 24K or 24L (disclosure of interests).
27
24P Other terms and conditions
28
A member of the Nomination Panel holds office on the terms and
29
conditions (if any) in relation to matters not covered by this Act
30
that are determined by the Secretary of the Prime Minister's
31
Department.
32
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
12 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
Division 3--Meetings of Nomination Panel
1
24Q Holding of meetings
2
(1) The Nomination Panel is to hold such meetings as are necessary
3
for the performance of its functions.
4
(2) The Chair may convene a meeting at any time.
5
24R Presiding at meetings
6
(1) The Chair presides at all meetings at which he or she is present.
7
(2) If the Chair is not present at a meeting, the members present must
8
appoint one of themselves to preside.
9
24S Quorum
10
At a meeting of the Nomination Panel, 3 members constitute a
11
quorum.
12
24T Voting at meetings
13
(1) At a meeting of the Nomination Panel, a question is decided by a
14
majority of the votes of members present and voting.
15
(2) The person presiding at a meeting has a deliberative vote and, in
16
the event of an equality of votes, also has a casting vote.
17
24U Conduct of meetings
18
The Nomination Panel may, subject to this Division, regulate
19
proceedings at its meetings as it considers appropriate.
20
Note:
Section 33B of the Acts Interpretation Act 1901 provides for
21
participation in meetings by telephone etc.
22
24V Minutes
23
The Nomination Panel must keep minutes of its meetings.
24
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 13
Division 4--Role of Minister and Prime Minister etc.
1
24W Selection criteria
2
(1) The Minister must, by legislative instrument, determine selection
3
criteria for the appointment of a Director referred to in paragraph
4
12(1)(b) or (c).
5
(2) The Minister may, in relation to a particular such appointment,
6
give a written notice to the Nomination Panel of additional
7
selection criteria for that appointment.
8
(3) A notice under subsection (2) is not a legislative instrument.
9
24X Consultation, and selection of candidate not nominated by
10
Nomination Panel
11
Chairperson
12
(1) If the Nomination Panel gives the Prime Minister a report under
13
paragraph 24B(1)(d) in relation to the appointment of the
14
Chairperson, the Prime Minister must consult the Leader of the
15
Opposition in the House of Representatives before recommending
16
to the Governor-General the person to be appointed as
17
Chairperson.
18
(2) If a person not nominated by the Nomination Panel is appointed as
19
Chairperson, the Prime Minister must table the reasons for that
20
appointment in each House of the Parliament no later than 15
21
sitting days of that House after that appointment is made.
22
Other non-executive Directors
23
(3)
If:
24
(a) the Nomination Panel gives the Minister a report under
25
paragraph 24B(1)(d) in relation to the appointment of a
26
Director referred to in paragraph 12(1)(c); and
27
(b) the Minister considers that a person not nominated by the
28
Nomination Panel should be appointed;
29
the Minister must give the Prime Minister a written notice that:
30
(c) specifies the name of that person; and
31
(d) sets out the Minister's reasons for preferring that person.
32
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
14 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
(4) If that person is so appointed, the Minister must table the reasons
1
for that appointment in each House of the Parliament no later than
2
15 sitting days of that House after that appointment is made.
3
24Y Department's annual report
4
The Department's annual report for a financial year must include a
5
statement in relation to each selection process for the appointment
6
of a Director referred to in paragraph 12(1)(b) or (c) that was
7
completed in that financial year.
8
16 Paragraph 68(1)(b)
9
After "Act", insert "(other than Part IIIA)".
10
17 Application and transitional
11
(1)
The amendments made by items 7, 12 and 14 apply in relation to
12
appointments made after the commencement of those items.
13
(2)
Subject to subitem (3), the amendment made by item 8 applies in
14
relation to appointments made before, on or after the commencement of
15
that item (including because of subitem (4)).
16
(3)
For the person holding the position of Chairperson under the Australian
17
Broadcasting Corporation Act 1983 immediately before the
18
commencement of this item, any period occurring before that
19
commencement for which both of the following applied:
20
(a) the person held an office referred to in paragraph 12(1)(c) of
21
that Act;
22
(b) the person was not the Chairperson under that Act;
23
is to be disregarded for the purposes of subsection 12(2A) of that Act
24
(as inserted by this Act).
25
(4)
The person holding the position of Chairperson under the Australian
26
Broadcasting Corporation Act 1983 immediately before the
27
commencement of this item is taken, on the commencement of this
28
item, to have been appointed by the Governor-General under section 12
29
of that Act as the Director referred to in paragraph 12(1)(b) of that Act:
30
(a) for the balance of the person's term of appointment that
31
remained immediately before the commencement of this
32
item; and
33
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 15
(b) on the same terms and conditions as applied to the person
1
immediately before the commencement of this item.
2
(5)
Subitem (4) does not prevent those terms and conditions being varied
3
after the commencement of this item.
4
(6)
The amendments made by this Schedule do not affect the validity of an
5
appointment of a person as a Director referred to in paragraph 12(1)(c)
6
of the Australian Broadcasting Corporation Act 1983 that was made
7
before the commencement of this item.
8
Special Broadcasting Service Act 1991
9
18 Section 3
10
Insert:
11
Nomination Panel means the Nomination Panel established under
12
section 24A of the Australian Broadcasting Corporation Act 1983.
13
19 After paragraph 8(a)
14
Insert:
15
(aa) the Chairperson; and
16
20 Paragraph 8(b)
17
Omit "4", substitute "3".
18
21 Paragraph 8(b)
19
Omit "8", substitute "7 other".
20
22 Subsection 17(2)
21
Omit "In appointing a person as a non-executive Director, the
22
Governor-General", substitute "Before the Governor-General appoints a
23
person as a non-executive Director, the Minister".
24
23 Paragraph 17(2)(c)
25
Omit "Governor-General", substitute "Minister".
26
24 After subsection 17(2)
27
Insert:
28
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
16 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
(2A) The following persons are not eligible for appointment as a
1
non-executive Director referred to in paragraph 8(aa) or (b):
2
(a) a member or former member of the Parliament of the
3
Commonwealth;
4
(b) a member or former member of the Parliament of a State, of
5
the Legislative Assembly for the Australian Capital Territory
6
or of the Legislative Assembly of the Northern Territory;
7
(c) a person who is or was a senior political staff member (within
8
the meaning of the Australian Broadcasting Corporation Act
9
1983).
10
(2B) Subject to subsection (2C), a person must not be appointed as a
11
non-executive Director referred to in paragraph 8(aa) or (b) unless
12
Part 3A is complied with.
13
(2C) The Minister may recommend to the Governor-General that a
14
particular person be re-appointed as a non-executive Director
15
referred to in paragraph 8(aa) or (b) without Part 3A being
16
complied with.
17
25 At the end of subsection 17(3)
18
Add "(including a failure to comply with Part 3A)".
19
26 At the end of section 18
20
Add:
21
(3) The sum of the periods for which a person holds either or both of
22
the following offices must not exceed 10 years:
23
(a) an office referred to in paragraph 8(aa);
24
(b) an office referred to in paragraph 8(b).
25
Example 1: Assume a person holds office as Chairperson for an initial period of 5
26
years and then holds office as Chairperson for a further period of 5
27
years.
28
The person cannot hold office as Chairperson again and cannot hold
29
office as a Director referred to in paragraph 8(b).
30
Example 2: Assume a person holds office as a Director referred to in paragraph
31
8(b) for a period of 5 years and then holds office as Chairperson for a
32
period of 3 years.
33
The person may now hold office as Chairperson, or as a Director
34
referred to in paragraph 8(b), for a maximum period of 2 years.
35
27 Subsection 21(1)
36
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 17
Omit "to be the Chairperson of the Board and another of the
1
non-executive Directors".
2
Note:
The heading to section 21 is altered by omitting "Chairperson and".
3
28 Subsection 21(2)
4
Omit "Chairperson," (first occurring).
5
29 After Part 3
6
Insert:
7
Part 3A--Merit-based appointment of
8
non-executive Directors
9
10
43 Functions of Nomination Panel
11
(1) The functions of the Nomination Panel include:
12
(a) to conduct a selection process for each appointment of a
13
non-executive Director referred to in paragraph 8(aa) or (b);
14
and
15
(b) to assess all applicants for the appointment against the
16
selection criteria determined under subsection 43A(1) and
17
any additional selection criteria notified under subsection
18
43A(2); and
19
(c) to assess all applicants for the appointment on the basis of
20
merit; and
21
(d) to give a written report to the Minister on the outcome of the
22
selection process that contains a list of at least 3 candidates
23
who are nominated for the appointment and a comparative
24
assessment of those candidates.
25
(2) For the purposes of paragraph (1)(c), the assessment of applicants
26
for appointment as a non-executive Director referred to in
27
paragraph 8(aa) or (b) is based on merit if:
28
(a) an assessment is made of the comparative suitability of the
29
applicants for the duties of that Director, using a competitive
30
selection process; and
31
(b) the assessment is based on the relationship between the
32
applicants' experience, skills and competencies and the
33
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
18 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
experience, skills and competencies genuinely required for
1
the duties of that Director; and
2
(c) the assessment focuses on the capability of the applicants to
3
achieve outcomes related to the duties of that Director; and
4
(d) the assessment is the primary consideration in nominating the
5
candidates for that appointment.
6
Advertising appointments
7
(3) The Nomination Panel must invite written applications by persons
8
seeking to be appointed as a non-executive Director referred to in
9
paragraph 8(aa) or (b) by advertisements published:
10
(a) in either or both of the following:
11
(i) a newspaper circulating generally throughout Australia;
12
(ii) for each State, the Australian Capital Territory and the
13
Northern Territory--a newspaper circulating generally
14
in that State or Territory; and
15
(b) on the Department's website.
16
Selection process creates another appointment
17
(4)
If:
18
(a) under subsection (3), the Nomination Panel invites
19
applications by persons seeking to be appointed as
20
Chairperson (whether or not it also invites applications by
21
persons seeking to be appointed as a non-executive Director
22
referred to in paragraph 8(b)); and
23
(b) as a result of the selection process, a non-executive Director
24
referred to in paragraph 8(b) is appointed as the Chairperson
25
(allowing another appointment (the new appointment) of a
26
Director referred to in that paragraph to be made);
27
then:
28
(c) the Panel is not required to conduct another selection process
29
for the new appointment; and
30
(d) if the Panel does not do so--paragraphs (1)(b), (c) and (d) of
31
this section apply in relation to the new appointment as if:
32
(i) the unsuccessful applicants (other than a non-executive
33
Director referred to in paragraph 8(b)) for the
34
appointment as Chairperson were applicants for the new
35
appointment; and
36
Merit-based appointment of ABC and SBS non-executive Directors Schedule 1
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 19
(ii) if the Panel also invited applications by persons seeking
1
to be appointed as a non-executive Director referred to
2
in paragraph 8(b)--the unsuccessful applicants for the
3
appointment were applicants for the new appointment.
4
43A Selection criteria
5
(1) The Minister must, by legislative instrument, determine selection
6
criteria for the appointment of a non-executive Director referred to
7
in paragraph 8(aa) or (b).
8
(2) The Minister may, in relation to a particular such appointment,
9
give a written notice to the Nomination Panel of additional
10
selection criteria for that appointment.
11
(3) A notice under subsection (2) is not a legislative instrument.
12
43B Consultation, and selection of candidate not nominated by
13
Nomination Panel
14
(1)
If:
15
(a) the Nomination Panel gives the Minister a report under
16
paragraph 43(1)(d) in relation to the appointment of a
17
non-executive Director referred to in paragraph 8(aa) or (b);
18
and
19
(b) the Minister considers that a person not nominated by the
20
Nomination Panel should be appointed;
21
the Minister must give the Prime Minister a written notice that:
22
(c) specifies the name of that person; and
23
(d) sets out the Minister's reasons for preferring that person.
24
(2) If that person is so appointed, the Minister must table the reasons
25
for that appointment in each House of the Parliament no later than
26
15 sitting days of that House after that appointment is made.
27
43C Department's annual report
28
The Department's annual report for a financial year must include a
29
statement in relation to each selection process for the appointment
30
of a non-executive Director that was completed in that financial
31
year.
32
Schedule 1 Merit-based appointment of ABC and SBS non-executive Directors
20 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
30 Application and transitional
1
(1)
The amendments made by items 24 and 25 apply in relation to
2
appointments made after the commencement of those items.
3
(2)
Subject to subitem (3), the amendment made by item 26 applies in
4
relation to appointments made before, on or after the commencement of
5
that item (including because of subitem (4)).
6
(3)
For the person holding the position of Chairperson under the Special
7
Broadcasting Service Act 1991 immediately before the commencement
8
of this item, any period occurring before that commencement for which
9
both of the following applied:
10
(a) the person held an office referred to in paragraph 8(b) of that
11
Act;
12
(b) the person was not the Chairperson under that Act;
13
is to be disregarded for the purposes of subsection 18(3) of that Act (as
14
inserted by this Act).
15
(4)
The person holding the position of Chairperson under the Special
16
Broadcasting Service Act 1991 immediately before the commencement
17
of this item is taken, on the commencement of this item, to have been
18
appointed by the Governor-General under section 17 of that Act as the
19
Director referred to in paragraph 8(aa) of that Act:
20
(a) for the balance of the person's term of appointment that
21
remained immediately before the commencement of this
22
item; and
23
(b) on the same terms and conditions as applied to the person
24
immediately before the commencement of this item.
25
(5)
Subitem (4) does not prevent those terms and conditions being varied
26
after the commencement of this item.
27
(6)
The amendments made by this Schedule do not affect the validity of an
28
appointment of a person as a non-executive Director referred to in
29
paragraph 8(b) of the Special Broadcasting Service Act 1991 that was
30
made before the commencement of this item.
31
32
ABC staff-elected Director Schedule 2
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 21
Schedule 2--ABC staff-elected Director
1
2
Australian Broadcasting Corporation Act 1983
3
1 Before paragraph 12(1)(c)
4
Insert:
5
(ba) the staff-elected Director; and
6
2 Subsection 12(4)
7
Omit "or of Chairperson", substitute ", of Chairperson or of
8
staff-elected Director".
9
3 After subsection 12(4)
10
Insert:
11
(4A) If an election of a person as the staff-elected Director is invalid
12
because of a defect or irregularity in connection with that election,
13
the performance of the functions, or the exercise of the powers, of
14
the Board is not affected by anything done, or omitted to be done,
15
by or in relation to that person while he or she purported to be, or
16
to act as, the staff-elected Director.
17
4 After section 13
18
Insert:
19
13A Staff-elected Director
20
(1) Subject to this section, the staff-elected Director must be elected in
21
accordance with the regulations.
22
Note:
As a member of the Board, the staff-elected Director is a director of a
23
Commonwealth authority for the purposes of the Commonwealth
24
Authorities and Companies Act 1997: see the definition of director in
25
section 5 of that Act.
26
Eligibility for election
27
(2) A person is eligible to be a candidate for election, and to hold
28
office, as the staff-elected Director if:
29
Schedule 2 ABC staff-elected Director
22 National Broadcasting Legislation Amendment Bill 2009 No. , 2009
(a) the person is an employee of the Corporation who, by the
1
terms of his or her employment, is required to devote at least
2
22 hours a week to the duties of that employment; or
3
(b) the person (the relevant person) performs services for the
4
Corporation, under the direction and control of the Managing
5
Director or an employee of the Corporation, under:
6
(i) a written contract entered into between the Corporation
7
and the relevant person; or
8
(ii) a written contract entered into between the Corporation
9
and a person other than the relevant person, being a
10
contract that specified the relevant person as the person
11
who would perform the services under the contract.
12
Effect of candidate ceasing to be eligible after nomination
13
(3) If a person who has been nominated as a candidate for election as
14
the staff-elected Director ceases to be eligible to be such a
15
candidate after having been nominated and before the day on
16
which the election takes place:
17
(a) if there are 2 or more other eligible candidates--the election
18
must be held as if the person were not a candidate; or
19
(b) if there is only one other eligible candidate--the other
20
candidate must be declared to be elected; or
21
(c) if there is no other eligible candidate--fresh invitations must
22
be issued for the nomination of candidates.
23
Candidate may vote at election
24
(4) A person who is eligible to be a candidate for election as the
25
staff-elected Director is eligible to vote at the election.
26
Period of office
27
(5) Subject to sections 16 and 18, the person who is the staff-elected
28
Director holds office on a part-time basis for a period of 5 years
29
starting:
30
(a) if, on the day on which the person is declared to be elected,
31
the person already holds office as the staff-elected Director
32
because of a previous election--on the day after the day on
33
which that person would, but for having been re-elected,
34
cease to hold office; or
35
ABC staff-elected Director Schedule 2
National Broadcasting Legislation Amendment Bill 2009 No. , 2009 23
(b) if, on the day on which the person is declared to be elected,
1
another person holds office as the staff-elected Director
2
because of a previous election--on the day after the day on
3
which the other person ceases to hold office; or
4
(c) in any other case--on the day on which the person is
5
declared to be elected.
6
(6) A person who has been elected as the staff-elected Director at 2
7
elections is not eligible for election at any other election of the
8
staff-elected Director.
9
5 After paragraph 18(2)(a)
10
Insert:
11
(aa) the staff-elected Director ceases to be eligible to hold office
12
as the staff-elected Director; or
13
6 At the end of section 21
14
Add:
15
(7) In this section, non-executive Director does not include the
16
staff-elected Director.
17
7 Application
18
Subsection 13A(6) of the Australian Broadcasting Corporation Act
19
1983, as inserted by this Act, applies in relation to persons elected as
20
the staff-elected Director under that Act before or after the
21
commencement of this item.
22