GOVERNMENT ADVERTISING BILL 2011
The Hon. MICHAEL GALLACHER
(Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [11.08 a.m.]: I move:
That this bill be now read a second time.
The Government is pleased to introduce the Government Advertising Bill 2011 to restore integrity to government advertising. Governments in New South Wales have long used advertising campaigns to deliver important messages to the community. Such advertising campaigns should always be designed to benefit the community; for instance, to encourage people to be healthier, to be safer on our roads, to protect our environment or to take part in civic activities.
The advertisements reach citizens in many ways, but principally through television, radio, the internet, newspapers and magazines. The people of New South Wales should be able to expect that each dollar spent on a campaign is spent for their benefit and not for the benefit of politicians or political parties. There have been examples in the past of political advertising designed to make people feel good about the Government of the day, sometimes featuring Ministers spruiking the achievements of their administration. In opposition the Coalition parties sought to improve the standards for government advertising, including through the introduction in the other place of the Government Publicity Control Bill 2007. However, the Government of the day opposed the bill.
The tendency to politicise government advertising has coincided with a rise in the amount of public money spent on it. The Auditor-General estimates that in the decade from 1999 to 2009 total annual expenditure on government advertising ranged from around $80 million to around $120 million. In round figures this put the cost of government advertising at $1 billion per decade. This Government will ensure that advertising spending is managed responsibly to ensure that it is for proper public purpose and this bill is a key way of achieving that.
The bill delivers the Government's commitment contained in its 100 Day Action Plan to introduce legislation to eliminate taxpayer-funded political advertising. It stops Ministers and government agencies spending funds on advertising unless the campaign complies with the new laws. The bill restores the integrity of advertising by the New South Wales Government by, one, prohibiting party-political material in government advertising; two, prohibiting advertising campaigns designed to benefit a political party; three, protecting the independence of heads of government agencies authorising advertising campaigns, ensuring they are free from interference by a Minister; four, providing a role for the Auditor-General to scrutinise government advertising campaigns; and five, making governing political parties liable to pay back the costs of advertising campaigns that breach these laws.
I will now turn to features of the bill. A wide range of government agencies need to comply with the provisions of the bill. They are set out in part 1 and include public service departments, statutory bodies representing the Crown, the New South Wales Police Force, the teaching service and the New South Wales Health Service. Other bodies may be prescribed by regulation. State-owned corporations, however, are not engaged in the types of businesses and activities that lend themselves to political advertising, so these corporations are not subject to the arrangements in the bill. Nonetheless, the Government will continue to monitor the advertising practices of State-owned corporations with a view to regulating them in future if there is a need.
A key concept in the bill is "government advertising campaign" which is set out in part 1. It provides that a government advertising campaign is the public dissemination of information about matters of government or public importance. The information is distributed under a commercial advertising agreement and paid for by or on behalf of a government agency. In practice, these are the types of advertisements that are seen and heard every day on commercial radio or television, on commercial news or entertainment websites and in newspapers. A government agency purchases time or space on a commercial advertising platform alongside other advertisers.
Part 2 provides that the Premier as Minister responsible may augment and detail the practices for government advertising through guidelines. The foundations of the guidelines to operate under the bill are in the existing New South Wales Government Advertising Guidelines published as Premier's Memorandum 2010-08.
These guidelines have been revised a number of times in recent years in response to shortcomings identified by the Auditor-General. While these revisions have improved the integrity standards in principle, they have not been supported by compliance machinery. This bill rectifies this shortcoming by providing the incentives for compliance. Governing political parties will need to be on guard to ensure that the provisions of the bill are not breached—at the risk of having to pay back the cost of an advertising campaign that is prohibited under the new laws.
Clause 6 sets out those prohibitions concerning advertising campaigns. The first prohibition is that a government advertising campaign must not be designed to directly or indirectly influence support for a political party. Because the design of any advertising campaign involves subjective opinions, the bill provides that the circumstances in which a campaign is taken to comply with these provisions may be set out in the regulations. The second prohibition for a government advertising campaign is that it must not contain the name or give prominence to the voice or image of a Minister, a member of Parliament or a nominated candidate for election to Parliament. Third, the name of any political party, its logo or slogan may not be in a government advertising campaign. There are times when such material must be communicated to the public of New South Wales by agencies involved in the conduct of elections, principally the Electoral Commission and the Electoral Funding Authority. Government advertising campaigns containing service announcements required for the purpose of a State election are not subject to the prohibitions in this clause.
The formal, apolitical process for developing each and every government advertising campaign will be established under this bill. The heads of government agencies will be responsible for independently managing and vouching for the integrity of the campaign. Further, they will not be subject to Ministerial control concerning any government advertising campaign. Clause 7 requires that the head of a government agency must ensure that a cost-benefit analysis is carried out for a proposed government advertising campaign likely to exceed $1 million, and a peer review is required if any proposed campaign is likely to exceed $50,000. The agency head must certify these steps have occurred prior to the government advertising campaign going to air, into print, or going live on the internet. In exceptional circumstances, such as a civil emergency or sudden health epidemic, the peer review or cost-benefit analysis may be undertaken and certified after the commencement of the campaign.
The Government recently took action to improve the integrity of parliamentary processes by introducing legislation that effectively means any future government will only be able to prorogue Parliament before a general State election from Australia Day. For consistency, clause 10 provides that most types of government advertising campaigns must not be carried out after the same date, that is, Australia Day before a general election. A limited number of non-contentious categories of advertisements are allowed, such as public health or safety matters, job advertisements and government tenders. As a further measure of independence of the machinery put in place by this bill, the Auditor-General will play a crucial role in monitoring government advertising campaigns and sounding the alert when the provisions in this bill are breached. The Auditor-General has been consulted in the design of these provisions.
Clause 14 specifically provides that the Auditor-General will carry out an annual performance audit of the activities of one or more government agencies in relation to their advertising campaigns. The Auditor-General will be required to determine whether an agency has carried out the campaign economically, efficiently and in compliance with the provisions in the bill and the advertising guidelines. When providing a performance audit report the Auditor-General may determine that the content or other elements of a government advertising campaign constitute a breach of the prohibited conduct provisions, that is, designing a campaign to favour a political party, including politicians in a campaign, or including party political slogans or references. An adverse finding by the Auditor-General will include the cost of the advertising campaign. Now to the enforcement provisions of the bill—
Dr John Kaye:
Your favourite bit.
The Hon. MICHAEL GALLACHER:
Of course; most certainly. These are provisions that at last give teeth to the ethical regulation of government advertising in New South Wales. If a government advertising campaign breaches the requirements of clause 6, the prohibitions on political advertising, the governing political party will be automatically liable to pay the costs of the campaign. This liability may arise irrespective of whether the particular advertising campaign has been the subject of an Auditor-General's report. The cost of the campaign may be recovered as a debt due to the Crown. Clause 13 of the bill provides that a governing party may apply to the Supreme Court to review its liability to pay the whole or part of the impugned campaign. In essence, the enforcement provisions of this bill provide for a rigorous and transparent process. Political parties have access to the courts to dispute their liability to pay back advertising campaign costs.
To conclude, the Government recognises the benefits of advertising as a tool to inform the people of New South Wales about important issues that affect the community, and that may affect them personally. Done properly, it is a cost-effective way of raising awareness and improving behaviour in areas of public safety, health and the engagement with public services. However, it is unacceptable when government advertising crosses the line into partisan politics and public money is used to promote a party of government or its Ministers. The integrity measures in this bill mean that governing political parties must take their hands off the levers that control the content of government advertising campaigns or face paying back the costs to the taxpayer. This reform is long overdue and I commend the bill to the House.
The Hon. LUKE FOLEY
(Leader of the Opposition) [11.21 a.m.]: I indicate at the outset that the Opposition will move numerous amendments to the Government Advertising Bill 2011 in the Committee of the Whole stage that we believe will improve the bill. I note that the genesis of this bill was the private member's bill moved by the now Premier when he served as Leader of the Opposition in 2007. As Opposition Leader, Mr O'Farrell introduced the Government Publicity Control Bill 2007. He said then that his bill would:
... put transparency and some accountability into the process. They are designed to ensure that New South Wales taxpayers' funds are not misused by any government of any political persuasion for purposes that are simply designed to suit the party in power.
They are noble sentiments but now that Mr O'Farrell is the Premier and leads the Government his position has changed somewhat. The bill that the Leader of the Government has just introduced is a weaker version of the private member's bill moved by the member for Ku-ring-gai in the other place four years ago. Mr O'Farrell's rhetoric remains the same but the bill is substantially weaker than the private member's bill he sponsored in 2007.
I turn now to the provisions of the bill. According to the O'Farrell Government the Government Advertising Bill 2011 stops Ministers and government agencies spending funds on advertising unless the campaign complies with these proposed new laws. The bill seeks to do a number of things, including prohibiting party political material in government advertising, prohibiting advertising campaigns designed to benefit a political party, protecting the independence of heads of government agencies authorising advertising campaigns ensuring they are free from interference by a Minister, providing a role for the Auditor-General to scrutinise government advertising campaigns, and making governing political parties liable to pay back the costs of advertising campaigns that breach these laws.
The Government tells us that a government advertising campaign must not contain the name or give prominence to the voice or image of a Minister, a member of Parliament or a nominated candidate for election to Parliament. The heads of government agencies will be responsible for independently managing and vouching for the integrity of the campaign. Those heads of government agencies will not be subject to ministerial control concerning any government advertising campaign. These are all worthy objectives and I endorse them all. A wide range of government agencies will need to comply with the provisions of the bill. They are set out in part 1 and include public service departments, statutory bodies representing the Crown, the New South Wales Police Force, the teaching service and the New South Wales health service. Other bodies may be prescribed by regulation. State-owned corporations are not subject to arrangements in the bill because, we are told, they are not engaged in the types of businesses and activities that lend themselves to politicised advertising.
Part 1 of the bill provides that a government advertising campaign is the public dissemination of information about matters of government or public importance and the information is distributed under a commercial advertising agreement and paid for by or on behalf of a government agency. A government agency purchases time or space on a commercial advertising platform alongside other advertisers. Part 2 of the bill provides that the Premier, as Minister responsible, may augment and detail the practices for government advertising through guidelines.
Clause 6 of the bill sets out those prohibitions concerning advertising campaigns. Clause 7 requires that the head of a government agency must ensure that a cost-benefit analysis is carried out for a proposed government advertising campaign likely to exceed $1 million. A peer review is required if any proposed campaign is likely to exceed $50,000. Clause 14 specifically provides that the Auditor-General will carry out an annual performance audit of the activities of one or more government agencies in relation to their advertising campaigns.
Many parts of the bill are the same or extremely similar to the current government advertising guidelines. For instance, clause 7 requires that the head of a government agency must ensure that a cost-benefit analysis is carried out for a proposed government advertising campaign likely to exceed $1 million. The requirements for cost-benefit analyses and peer reviews for campaigns if a proposed campaign is likely to exceed $50,000 are part of the current guidelines, as is the requirement for the head of a government agency to provide a compliance certificate in relation to a campaign. However, I note that the requirement that a peer review panel include a reviewer independent of the public sector is in the current guidelines but is missing from this bill. I ask the Government to explain why a number of current guidelines have been included in this legislation but the particular provision to which I just referred has been excluded. Four years ago, Mr O'Farrell said:
This legislation is simple: ... It enables the Auditor-General to order a public authority to stop dissemination of government publicity in certain circumstances, and it may order that a political party pay back the amount of expenditure on government publicity for political purposes incurred by a public authority where that party is held to be responsible for the publicity.
The bill before us does not do this. The member for Ku-ring-gai's 2007 private member's bill would have required the Auditor-General to review a campaign costing $200,000 or more. That is not in the bill before us. Indeed, this bill weakens the Auditor-General's role when compared with the role the Auditor-General was to have under the member for Ku-ring-gai's 2007 private member's bill. Clause 14 of the bill only provides that the Auditor-General carry out an annual performance audit of the activities of one or more government agencies in relation to their advertising campaigns. Unlike the 2007 private member's bill of the member for Ku-ring-gai, this bill does not make it clear who has responsibility for making a decision that there has been a breach or a prohibition and for taking cost-recovery action.
If it is not the Auditor-General, as promised by Mr O'Farrell in the past, we can only assume it is the head of a government agency. This bill states that the heads of government agencies will be responsible for independently managing and vouching for the integrity of an advertising campaign. The bill states they will not be subject to ministerial control concerning any government advertising campaign. Yet Ministers appoint the heads of agencies and approve pay increases, and there is plenty of ministerial control there. How would the head of an agency fare with his or her Minister if the head were to declare that the Liberal Party or The Nationals must pay for an advertising campaign? In the real world, the head of an agency would not be game to make the declaration.
The most obscene government advertising campaign that our country has ever seen was the Howard Government's $100 million-plus campaign spruiking the benefits of WorkChoices. That was the Australian record when it came to the expenditure of public funds to prosecute the case for a political party. It did not do the Coalition much good. The sum of $100 million is about the amount the New South Wales Government spent on all advertising campaigns for the whole of the last financial year. The Premier waxes lyrical about government advertising, but when this bill is held up to the light it falls short of his rhetoric, and it falls short of the provisions that were included in his 2007 private member's bill. As such, the Opposition will be moving a number of amendments at the Committee of the Whole stage to make the Government live up to the rhetoric of its leader. We believe those amendments will strengthen the bill and match the Premier's tough talk with real action.
Dr JOHN KAYE
[11.33 a.m.]: I speak on behalf of The Greens in the second reading debate on the Government Advertising Bill 2011. Government advertising plays an important role in the functioning of the State. It is an important mechanism for disseminating public health information, information about law and order, information about maximising compliance with laws and regulations, information about encouraging the use of government products and services, assisting in the preservation of order in the event of a crisis or emergency, or in the recruiting of staff. These are all valid and important functions of the State, and they are important engagements of the State with the process of democracy. So no objection is being raised to those activities.
However, government advertising gets into trouble when it is used to promote a party of government. The 2009 Auditor-General's performance report on government advertising identified four campaigns. One was the New South Wales Public Sector Cadetship program, another was the Investing in a Better Future campaign, and two public health campaigns, one relating to the winter 2009 influenza campaign, and the other about tobacco legislation changes under the No Smoking in Cars with Children campaign. The Auditor-General gave a complete clean bill of health to the influenza and no smoking in cars campaigns, identifying that they complied with the government advertising guidelines operating at the time and that they were totally valid campaigns.
The Auditor-General raised concerns about the Public Sector Cadetship and the Investing in a Better Future campaigns. The Auditor-General noted that the Investing in a Better Future campaign was clearly misleading in that it implied that 160,000 new jobs were created in New South Wales, when in fact that figure related to the position Australia wide, with only a third of the positions being in New South Wales. The Auditor-General said the Public Sector Cadetship program used an inappropriate photograph of the Premier—inappropriate because the Premier had no role in such an activity. One would argue that no politician's photograph should be included in any government advertising because we get plenty of access to the public through our work and through the media.
The legislation before the House aims to stop the rorting of government advertising. However, this legislation fails to live up to the Coalition's election promises, and it fails to live up to the standards of the 2007 private member's bill of the then Opposition leader, now Premier. The Government Advertising Bill now before the House, a bill that was part of the Coalition's 100 Day Action Plan, in the first instance leaves the final decision on government advertising in the hands of the department and the agency heads, who will inevitably be under pressure from their Ministers to use public funds to lend a helping hand to the Government. Secondly, the bill lacks sufficient oversight from an independent watchdog to make sure that the Government is not promoting itself using the public purse. Thirdly, the bill does not empower citizens to lodge complaints against government agencies suspected of using public moneys to provide electoral advantage to government parties. The Greens will be moving a number of amendments to make this bill at least as powerful as Mr O'Farrell's 2007 bill, and also to force the Government to live up to its own 2011 election promises.
The Government Advertising Bill 2011 requires a cost-benefit analysis for any campaign costing more than $1 million and peer review of spending of more than $500,000. However, it does not require that this work be carried out by an independent person. It could be conducted, for example, within the bureaucracy. The bill, in clause 6, also prohibits political advertising using the public purse. The prohibitions include that a government advertising campaign must not be designed so as to influence, directly or indirectly, support for a political party, and further provide that material in the advertising campaign "must not contain the name, or give prominence to the voice or any image, of a Minister, any other member of Parliament or a candidate nominated for election to Parliament".
The bill requires the relevant government agency head to issue a compliance certificate for each advertising campaign, to certify that it complies with the Act, regulations and guidelines, including not promoting a political party. The bill requires, in clause 9, that the head of agency is "not subject to the control of any Minister in the exercise" of the functions under this Act. The bill requires government parties to refund the cost of a campaign that is found to breach the prohibition on political advertising. That all sounds great. In theory, it all looks fine. But, when analysed, the legislation will fail to stamp out the rorts because it still leaves agency heads in control of providing the certificate, by clause 8; causing the cost-benefit to be performed, by clause 7; and determining whether to take debt recovery action, by clause 9 (1) (c).
While clause 9 does say that the agency head is not under the control of the Minister, the decision is still being made by a public servant who is ultimately accountable to the Minister and whose future largely depends on his or her ability to work with his or her Minister. Complaints about a campaign must be made by the same agency head who signed the compliance certificate. In effect, we are putting the fox's employee in charge of the henhouse. The Greens believe these actions should be independent of government. The bill does not provide a mechanism for an individual or public interest group to pursue an alleged breach of the prohibition on political advertising.
This legislation is weaker than Barry O'Farrell's 2007 bill and it breaks the Coalition's election promise. In 2007 as Leader of the Opposition the Premier introduced the Government Publicity Control Bill 2007. That bill aimed to separate decision-making from the bureaucracy by creating a much greater role for the independent Auditor-General, who would have been required to review any campaign spending over $200,000 and had the power to make an order to have an inappropriate campaign stopped. However, the current bill has been stripped of the most powerful elements of the 2007 legislation, making it largely toothless. During the 2011 State election campaign the Liberal-Nationals Coalition promised on its website "to introduce legislation to require approval of the Auditor-General for advertising campaigns." Interestingly, that statement is no longer on the website. Fortunately, the National Library of Australia—that great institution of record—took a snapshot of that portion of the Liberal Party's website on 25 March 2011.
The Hon. Dr Peter Phelps:
Just like the BDS was removed from The Greens website.
Dr JOHN KAYE:
It is still there. That snapshot shows clearly that the Liberal-Nationals Coalition promised "to introduce legislation to require approval of the Auditor-General for advertising campaigns". That promise is not part of the 2011 bill and has disappeared entirely. While the 2011 legislation allows the Auditor-General to embark upon an annual audit of one or more government agencies, it does not require the Auditor-General to approve all advertising campaigns, as the Coalition promised before the election. The Greens will move amendments to the bill to restore to the Auditor-General the powers contained in the Coalition's 2007 bill and to make the Coalition live up to its 2011 election promises. The Greens will move, first, to require the Auditor-General to review and approve any advertising campaign that spends over $200,000; secondly, to allow complaints to be lodged with the Auditor-General regarding an advertising campaign breaching the guidelines; and, thirdly, to give the Auditor-General responsibility for determining breaches of the guidelines or the Act, and the power to carry out cost recovery.
Let me be clear: The Greens amendments give the power to the Auditor-General rather than leaving it in the hands of the department head—the same department head whose job depends on their relationship with the Minister and the Government, and who will sign the certificate to say the campaign complied. That is worse than putting the fox in charge of the hen house. I cannot think of a good analogy to describe this bill other than to say it is totally and completely non-functional. No individual can be expected—even the best of bureaucrats, and New South Wales is lucky to have some extremely fine bureaucrats who take their jobs seriously—to do what the bill proposes. We are stretching things beyond the limits of human behaviour to say to somebody, "You have to be your own auditor, your own police person, you have to dob yourself in and, by the way, when you dob yourself in, you are going to profoundly annoy the Government on whose favour your future promotion or continuation of your current job depends."
If we had a truly independent bureaucracy and were not suffering under the changes made by the Greiner Government when it politicised department heads, perhaps the proposal would work. However, this State has moved well beyond that point. Because of the introduction of the concept of the senior executive service this State no longer has department heads who can be fearless and frank to the point of dobbing in the Government party and themselves. That will not happen. This bill is largely meaningless. In opposition Mr O'Farrell and his Coalition were enthusiastic about holding the Government to account for using the public purse to promote the ruling party—one suspects because he was not in the ruling party at the time but, instead, was battling it. Now that Mr O'Farrell has the reins of power he has backed down, introducing legislation that is riddled with conflicts of interest that will make it difficult to stop the rorting.
The Greens will hold the Coalition to the promise it made in opposition to put an end to the abuse of public funds for political advertising. The Government Advertising Bill 2011 is nothing but a pale imitation of Mr O'Farrell's 2007 effort and of his party's 2011 election promise. Instead of allowing the Auditor-General to have the final say on big campaigns, Mr O'Farrell has handed over certification control and prosecution to his senior bureaucrats. Claims of independence from the Government are totally meaningless. The same senior bureaucrat who signs off on the campaign has responsibility for prosecuting the governing parties for a breach of the prohibition on political advertising. That would probably be the worst career move any bureaucrat could ever make. In effect, this bill invites senior bureaucrats, agency heads, within the Government to commit career suicide.
The agency head then is expected to continue to work with the Minister whose party has just been stripped of hundreds of thousands of dollars. This is not a Coalition or Labor problem; it is a human problem. Nobody will do it. No department head would put themselves in a position where they effectively bankrupt a political party in the lead-up to an election. It simply will not happen. The bill contains tough penalties for misusing the public purse, and The Greens welcome them, but they are utterly irrelevant. The only way they can be imposed under this legislation is if the agency head decides to take action against the party to whom their Minister belongs. Despite the pre-election promises and the model legislation introduced in opposition, the Coalition's political advertising bill is as ineffective as Labor's guidelines. The fox will remain well and truly in charge of the henhouse.
If Mr O'Farrell's commitments in opposition were anything other than posturing to score easy points against the then Labor Government—and they were easy points to score—he will have no choice but to accept The Greens amendments in Committee. The Labor Party has also foreshadowed moving amendments similar to those of The Greens, but they are largely based around introducing a government advertising committee that makes recommendations in respect of breaches of a particular campaign. Those recommendations include things such as the head of the government agency concerned stopping the campaign, ensuring the campaign is modified or expenditure is limited, or ruling that the governing party pays back the costs. However, Labor's amendments then state that the head of the government agency must comply with a recommendation of the government advertising committee. In effect, Labor is taking the Auditor-General out of the equation after Mr O'Farrell promised in 2007 and during the 2011 election campaign to include him but then failed to do so in the current bill. Effectively, Labor is substituting a government advertising committee for the Auditor-General.
Labor proposes that the government advertising committee consist of the Information Commissioner and two persons with knowledge or experience relevant to advertising. Certainly that strengthens the legislation and is better than just having the head of the agency making the decisions. Labor's amendments take the responsibilities that reside with the head of agency and pass them to a substantially independent committee. That independent committee will be appointed by the Minister—who I presume in this case is the Premier—and operate with expertise provided by the two independent members and the Information Commissioner. It is a step in the right direction. It is better than leaving the matter in the hands of the agency head, but it does not take it out of the hands of the bureaucracy. It does not bring into play a truly independent agent, like the Auditor-General.
There are real concerns about not involving the Auditor-General in this process. We are talking about substantial amounts of government funds. In 2009-10 the Labor Government spent $101.7 million on government advertising. Much of that work was important. For example, it related to important public health messages around the influenza campaign and tobacco. They are important contributions to the public debate and instituting them through government advertising is a sensible use of public money. I do not think anybody argues with that. However, as I observed at the outset, the problem remains the issue of the inappropriate use of the image of the Premier and of data to imply greater achievements by the Government than occurred in reality.
A concern with the December 2010 New South Wales Government advertising guidelines—and many of the appropriate uses defined in them are excellent and should be supported—is the possible inappropriate use of government funding to raise awareness of a plan or pending initiative reporting on performance in relation to New South Wales Government undertakings. That is a source of real concern. The previous speaker, the Leader of the Opposition, pointed out how the Howard Government spent more than $100 million promoting the goods and services tax, raising grave concerns that this was a profoundly political issue that should have been promoted by the party in government, not by the Government itself.
The Government has plenty of access to the airwaves to promote its planned or impending initiatives; it is inappropriate to use government advertising for that purpose. Those guidelines remain in force. Presumably after the legislation is passed the Government will introduce new guidelines. We wait to see what they are. The Greens will not oppose the legislation because it appears to be a step forward. We believe Labor's amendments will improve the bill as it stands but do not go far enough. I foreshadow that in Committee The Greens will move amendments that not only fulfil the Coalition promises made prior to the 2011 election but also will protect public funds from abuse through inappropriate government advertising.
The Hon. Dr PETER PHELPS
[11.53 a.m.]: I have had a close and detailed association with government advertising, albeit at the Federal level, for many years. As chief of staff to the Federal Special Minister of State, I sat and observed the actions of the Federal Ministerial Committee on Government Communications between May 2000 and November 2007. I saw literally everything from Unchain My Heart
to WorkChoices—the brilliant and the disastrous. I will explain how the Federal system worked. A Minister would suggest, or a department would suggest to the Minister, that there was a certain aspect of government that needed to be promoted in the community. It normally had to do with the rights and responsibilities of individuals, new legislation, new benefits or new impositions that required communication to the people of Australia. In the olden days perhaps you could have had a town crier or used the Government Gazette
but in a modern age the most effective way to communicate with people is through advertising.
The Minister would bring a proposal to the Ministerial Committee on Government Communications, which was staffed by members of Parliament, political advisors, bureaucrats from the Department of Prime Minister and Cabinet and the home department of the proposing agency. Between them, they worked out and assessed the proposals put forward. They called for tenders, they assessed the tenders and ultimately they selected, on a collegiate basis—and with the emphasis on unanimity of decision-making—which campaign was to go ahead. Subsequently they would approve the various creative elements. It was a good system and it was a responsible system. But, listening to Dr Kaye, you can tell that he has never been in government and seen how bureaucrats work. I assure him that if a bureaucrat was unhappy with a proposal—
Dr John Kaye:
Point of order: The Hon. Dr Peter Phelps speaks in complete ignorance of my history and is misleading the House about my work background.
Order! That is not a point of order. Should the member wish to pursue the matter, he is aware of the forms of the House that are available to him. The member will not abuse the standing orders by making a debating point under the guise of a point of order.
The Hon. Dr PETER PHELPS:
Dr Kaye has obviously never been around a table where advertising was discussed because if he had he would know that bureaucrats are quite happy to tell the Government that they do not believe a certain level of advertising is appropriate. This is the nature of the system we are proposing. It is a system whereby bureaucrats will not be in the position of seeking to impose fines on various political parties because that will be obviated from the start. The decision of the department to approve a process—to approve the system, to approve the agency and to approve the creative output—obviates the need for bureaucrats to come back subsequently and say, "No, it was out of order". That is the beauty of this system.
I was always startled, as was everyone who had anything to do with the Federal Ministerial Committee on Government Communications, by the brazenness of the New South Wales Labor Government's advertising campaigns. They were the subject of much discussion and obiter dicta by various members of the committee. I refer to the vacuous "Teach Your Children Well" education campaign, which had cutesy visuals of rural and regional schools with the Teach Your Children Well
song played over the top. There was absolutely no call to action. There was absolutely no new policy description. There was absolutely no call to arms at the end. It was totally vacuous. Amazement was expressed that the New South Wales Government would allow the Premier to appear in television commercials. It was absolutely unheard of. You did not have Ministers or the Prime Minister appearing in television commercials. We had the ridiculous "We Are Moving This State Forward" advertisements, which were glib propaganda. There were the infamous mock recruitment advertisements for police, teachers and nurses that were essentially spruiking the alleged achievements of the State Government. None of those advertisements would have been allowed under the unlegislated—I emphasise that point—Federal system.
We are told that the Government of New South Wales spent between $80 million and $120 million per year on advertising. That means that, bar the goods and services tax campaign, it was spending exactly the same amount as the Federal Government on advertising. For five million people, the New South Wales Labor Government was spending the same amount in dollar terms as the Federal Government was spending for 20 million people. Yet when any criticism of government advertising was made it was always about Federal advertising. And didn't the critics come out of the woodwork. Presumably there would be such an outcry over Federal Government advertising, one would have thought thousands would have written to complain about it. The 2005 Senate inquiry into government advertising received submissions from nine people, all professionally aggrieved leftists. A submission was received from Sally Young of the University of Melbourne, who conveniently forgot to mention that she was an ardent member—indeed, a board member—of the Fabian Society. Why would that society criticise the Federal Government of John Howard?
A submission was received from Joo-Cheong Tham, another tenured leftist, who wrote in another paper that it was okay for trade unions but not businesses to give money to political parties. Trade unions okay; businesses not okay. We can see where he is coming from. A submission was received from Graeme Orr, who had the nonsensical idea that advertising should be treated like pocket money. He literally used the words "pocket money". A submission was received from Professor Stephen Bartos, who failed to mention that he was a former member of the Australian Capital Territory branch of the Australian Labor Party. A submission was received from Harry Evans, Mr Professional Opinion, who made outrageous suggestions about advertising agencies charging lower fees for government advertising campaigns and then working on party political campaigns. He made the allegation of "corruption". It was errant nonsense.
The Hon. Adam Searle:
I think you mean "arrant".
The Hon. Dr PETER PHELPS:
It was errant as well as arrant. The ironically titled Democratic Audit of Australia—a body so radical the Australian National University had to dump it after a couple of years and knowing that no respectable university would pick it up it now finds itself ensconced at the uber-radical and chic Swinburne University—had a great deal to say about advertising, most of which was completely wrong. A 2006 report into political finance and government advertising, again undertaken by the Democratic Audit of Australia and authored by Sally Young and Joo-Cheong Tham, was farcical. In fact, I tried to get factual errors in the report changed. I wanted to help them. The milk of human kindness was flowing through my body, but it swiftly turned to sour cream when they rejected my advances to correct basic factual errors. The reason was because the Left never lets the truth get in the way of a good story. They had a story to tell, a fictitious fable, and they were determined to tell it no matter what.
Even the Federal Auditor-General was led astray. In the 1999 report into government advertising the Federal Auditor-General proposed some nonsensical recommendations to the effect that advertising should be "not liable to be misinterpreted as party political". Anything can be misinterpreted to be party political depending on how illogical one wants to be. I commend—and I do not say these words often—Petro Georgio, who had the foresight as a member of the Joint Committee of Public Accounts and Audit to point out that it was a farcical idea that one of the criteria of government advertising should be that it may not be liable to be misrepresented. I thank the Leader of the Opposition, the Hon. Luke Foley, for raising previous examples of changes of mind between Opposition and Government. Let us look at Labor Party policy before the 2007 Federal election. In October 2007, prior to the Federal election, Kevin Rudd said that government advertising was "a sick cancer within our system. It is a cancer on democracy." The Australian Labor Party platform in 2007 promised:
Labor will not support the use of government advertising for political purposes. Labor will introduce legislation to ensure:
· government advertising campaigns only occur after government policy has been legislated for by parliament;
· all government advertising and information campaigns provide objective, actual and explanatory information free from partisan promotion of government policy and political argument and in an unbiased and objective language;
· all advertising campaigns in excess of $250,000 are examined by the Public Service Commissioner, who will report to Ministers on whether the proposed advertising compliance with Auditor-General's 1998 guidelines on government advertising; and
· the cost of government advertising is minimised by the targeted use of media other than television advertising.
In November 2007 Kevin Rudd revised dot point three of the platform and said:
I can guarantee that we will have a process in place run by the Auditor-General … in terms of establishing the office of the Auditor-General with clear-cut guidelines to whom every television campaign is submitted for approval before that television campaign is implemented. You have my 100% guarantee that that will occur, 100% guarantee and each one of you here can hold me accountable for that.
In July 2008 Labor brought in new guidelines for government advertising, based on previously recommended guidelines drafted by the Auditor-General. The Federal Special Minister of State said:
In 2007 Kevin Rudd made an election promise that campaigns over $250,000 would be scrutinised by the Auditor-General. This election commitment is now met … the Auditor-General will provide a "health check" on the final product of a campaign before it is communicated.
However, throughout 2009 it became clear in testimony to the Senate estimates and the Joint Standing Committee on Public Accounts and Audit that the Auditor-General had to repeatedly intervene in advertising campaigns. This was because what was being proposed by the then Labor Government was not within the guidelines that had been laid down for such advertising. In 2008 the Labor Government had promised that it would review the guidelines before July 2010. Instead, in early 2010 the Labor Government commissioned a review of the entire advertising framework. In response to this report not only were the guidelines changed but the Auditor-General was removed from the vetting process. Kevin Rudd had given a 100 per cent guarantee. Suddenly the Auditor-General was gone. Talk about a change of mind.
The Labor Government commissioned a review and, of course, the Auditor-General was replaced by the Independent Communications Committee. That sounds awfully like the old Ministerial Committee on Government Communications [MCGC], which was heavily criticised by Senator Faulkner for seven long years. I had to sit and listen to him in estimates hearings rabbit on about the evil Ministerial Committee on Government Communications, yet as soon as he is booted from the Special Minister of State portfolio the new Minister creates a new version of it. That is an absolute disgrace, Labor. The Independent Communications Committee is made up of three former public servants on short two-year contracts appointed by the Secretary of the Department of Finance and Administration. In contrast, the Auditor-General, who is answerable to Parliament, is on a 10-year fixed term. Even more demonstrative of the hypocrisy of Labor, were the changes to the guidelines. In March 2010 the Auditor-General noted in a letter to the Federal Special Minister of State:
Principle 1 [of the guidelines] appears to allow a broader scope in determining suitable uses of government advertising campaigns, Principal 3 … provides less guidance in interpreting whether campaign materials promote party political interests, and Principle 4 … no longer requires a cost-benefit analysis to support the proposed campaign … These changes represent a general softening in the application of the requirements upon agencies.
I could go on further, and I think I will. The March 2010 guidelines included a specific change with the addition of the phrase "inform consideration of issues". This opened up the floodgates to virtually anything being advertised, not merely legislated programs, as was promised by Labor before the Federal election. To inform the public about the consideration of issues meant anything could be advertised. That was Labor Party policy, Labor Party platform. The other significant change was in relation to running an urgent campaign. It always has been recognised that a major natural or man-made disaster requires the urgent dissemination of information. Previously the Labor rules stated that scrutiny by the Auditor-General could be bypassed where:
The Cabinet Secretary can exempt a campaign from compliance with these Guidelines on the basis of a national emergency, extreme urgency or other extraordinary reasons the Cabinet Secretary considers appropriate.
However, Labor replaced the phrase "extraordinary reasons" with the much weaker "compelling reasons" and the only person who determines whether those reasons are compelling is Labor's Cabinet Secretary. So much for Mr Rudd's promises. So much for the Labor Party platform. So much for hypocrisy on the other side of politics. Let us go through the promises again. Labor promised: "Labor will only advertise legislated programs"—broken; "Labor will have the Auditor-General scrutinise all advertising before it goes to air"—broken; "Labor will stick with the Auditor-General's rules"—broken; "Labor's ads will be objective, factual and free from partisan promotion of government policy"—broken; and Labor will only bypass independent scrutiny of advertising in times of urgent national emergency"—broken. Labor has absolutely zero credibility on this issue.
The best example of Labor's zero credibility is the mining tax advertising cover-up. According to Senator Faulkner there was going to be sunlight and openness. But Senator Faulkner got booted to defence and out came the backroom boys. On 2 May 2010 Labor announced its big new tax on mining. The mining industry responded later that week with a simple one-page advertisement in newspapers that put its side of the story. In response, and before there was any television or radio advertising by the miners, on 10 May 2010 Wayne Swan wrote to Joe Ludwig requesting exemption from the normal vetting procedures so that he could run an advertising campaign countering the campaign run by the mining industry. Why was there the need for such urgency? Why was there a need to avoid scrutiny?
Approval for the campaign was granted by Senator Ludwig on Monday 24 May 2010. However, the notification of this exemption to Parliament—another promise from Rudd before the election—was not tabled until the following Friday, 28 May, despite the fact that the House of Representatives had been sitting all week. The only reason it was tabled on the Friday was because Senate estimates hearings were being held that sitting week and officials with responsibility for advertising were not scheduled to appear until Thursday morning. If Senator Ludwig had tabled the document earlier than Friday the Minister and his officials would have been questioned over why this campaign was so "compelling" and "urgent" that it required special exemption from the normal vetting procedures. It is a clear example of the Labor Government being caught in a backflip and trying to cover it up by dropping the announcement on the Friday after Finance estimates—the same day that it also tried to kill the story by making an announcement on Japanese whaling. How is that Government action on Japanese whaling going, Labor Party members? I would suggest not very well.
All of these things happened under the Rudd-Gillard Labor Government. Yet what did we hear from Sally Young, Joo-Cheong Tham, Grahame Orr, Stephen Bartos or Harry Evans between the fall of the Howard Government in 2007 and the end of 2010? Absolutely nothing. Where were these censorious harpies of indignant leftism? They were not to be heard—because it was never a serious academic argument; it was all about "get Howard". I recognise that this bill was an election commitment, but I remain of the view that I expressed in my inaugural speech:
The ethical do not need a written code of conduct and the dishonest will ignore it anyway ... Laws can punish the wicked but they cannot in and of themselves make men good.
That is absolutely true with respect to the Labor Party at a Federal and a State level. I am sure this Government will be different.
The Hon. PAUL GREEN
[12.13 p.m.]: The Christian Democratic Party supports the Government Advertising Bill 2011 and acknowledges that it manages the Government's responsibility to ensure that public money is used for a proper purpose. We welcome the role of the Auditor-General in scrutinising the Government's advertising campaign and ensuring that public moneys are spent correctly. We look forward to the amendments being discussed in the Committee stage.
The Hon. MICHAEL GALLACHER
(Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.14 p.m.], in reply: I thank members for their contributions, particularly the last two speakers.
The Hon. Lynda Voltz:
Which one did you like best?
The Hon. MICHAEL GALLACHER:
It is touch and go between the two of them. I look forward to debating the amendments in the Committee stage.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Clauses 1 and 2 agreed to.
The Hon. LUKE FOLEY
(Leader of the Opposition) [12.17 p.m.], by leave: I move Opposition amendments Nos 1 to 8 in globo on sheet C2011-058D:
No. 1 Page 2, clause 3 (1). Insert after line 19:
Government Advertising Committee—see section 15.
No. 2 Page 5, clause 7. Insert after line 10:
(3) The head of a Government agency must ensure that a review of a Government advertising campaign of the agency is carried out by the Government Advertising Committee before the campaign commences if the cost of that campaign is likely to exceed $200,000.
No. 3 Page 5, clause 7, line 12. Omit "peer".
No. 4 Page 5, clause 7, line 13. Omit "peer".
No. 5 Page 5, clause 7. Insert after line 17:
(5) Every peer review that is carried out for the purposes of this section is to include a reviewer who is independent of the public sector.
No. 6 Page 7, clause 11. Insert after line 18:
(4) The Government Advertising Committee may make the following recommendations if the Committee is of the opinion that the content or other circumstances of a Government advertising campaign constitute a breach of the requirements of section 6 or regulations made under that section:
(a) that the head of the Government agency concerned immediately stop the campaign,
(b) that the head of the Government agency concerned ensure that the campaign is modified, or expenditure is limited, so that the campaign complies with section 6 and regulations made under that section,
(c) that a governing party pay the costs of the campaign in accordance with this section.
(5) The Government Advertising Committee may make a recommendation following a review under section 7 or following a determination by the Auditor-General on a performance audit.
(6) A recommendation is to be notified in writing to the Minister and the head of the Government agency concerned.
(7) The head of a Government agency must comply with a recommendation of the Government Advertising Committee under this section.
(8) A recommendation to stop or modify a Government advertising campaign does not:
(a) require a Government agency to stop payment to any person or body for work already done or services already provided for the purposes of the campaign, or
(b) affect any liability incurred by the Government agency under a contract for future work or services related to the campaign unless the contract for that work or services includes a termination provision.
(9) If any such contract is terminated in accordance with a termination provision:
(a) the termination does not affect a right acquired, or a liability incurred, before that termination by a person who was a party to the contract, as a result of the performance before that termination of any obligation imposed by the contract, and
(b) no liability for breach of contract is incurred by a person who was a party to the contract by reason only of that termination, and
(c) neither the Crown nor any member of the Government Advertising Committee incurs any liability by reason of that termination.
No. 7 Page 9. Insert after line 28:
15 Government Advertising Committee
(1) The Minister is to appoint a Government Advertising Committee.
(2) The Committee is to consist of the following members:
(a) the Information Commissioner,
(3) The Information Commissioner is to be the Chairperson of the Committee.
(b) 2 persons who have knowledge or experience relevant to advertising.
(4) Schedule 2 has effect with respect to the constitution and procedure of the Committee.
No. 8 Page 11. Insert after line 23:
Schedule 2 Constitution and procedure of Government Advertising Committee
In this schedule:
appointed member means a person who is appointed by the Minister as a member of the Committee.
Chairperson means the Chairperson of the Committee.
Committee means the Government Advertising Committee.
member means any member of the Committee.
2 Terms of office of appointed members
Subject to this schedule and the regulations, an appointed member holds office for such period (not exceeding 3 years) as is specified in the member's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
Members hold office as part-time members.
An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
6 Vacancy in office of member
(1) A member may, from time to time, appoint a person to be the deputy of the member, and may revoke any such appointment.
(2) In the absence of a member, the member's deputy may, if available, act in the place of the member.
(3) While acting in the place of a member, a person has all the functions of the member and is taken to be a member.
(1) The office of an appointed member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is removed from office by the Minister under this clause, or
(e) is absent from 3 consecutive meetings of the Committee of which reasonable notice has been given to the member personally or by post, except on leave granted by the Minister or unless the member is excused by the Minister for having been absent from those meetings, or
(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.
(2) The Minister may remove an appointed member from office at any time.
7 Filling of vacancy in office of appointed member
If the office of any appointed member becomes vacant, a person is, subject to this Act and the regulations, to be appointed to fill the vacancy.
8 Disclosure of pecuniary interests
(a) a member has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Committee, and
(b) the interest appears to raise a conflict with the proper performance of the member's duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Committee.
(2) A disclosure by a member at a meeting of the Committee that the member:
(a) is a member, or is in the employment, of a specified company or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).
(3) Particulars of any disclosure made under this clause must be recorded by the Committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the Committee.
(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Committee otherwise determines:
(a) be present during any deliberation of the Committee with respect to the matter, or
(b) take part in any decision of the Committee with respect to the matter.
(5) For the purposes of the making of a determination by the Committee under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:
(a) be present during any deliberation of the Committee for the purpose of making the determination, or
(b) take part in the making by the Committee of the determination.
9 Effect of certain other Acts
(6) A contravention of this clause does not invalidate any decision of the Committee.
(7) This clause applies to a member of a committee of the Committee and the committee in the same way as it applies to a member of the Committee and the Committee.
(1) Chapter 2 of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment of an appointed member.
(2) If by or under any Act provision is made:
the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.
(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the duties of that office,
A matter or thing done or omitted to be done by the Committee, a member of the Committee or a person acting under the direction of the Committee does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability, claim or demand.
The procedure for the calling of meetings of the Committee and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Committee.
The quorum for a meeting of the Committee is a majority of its members for the time being.
(1) The Chairperson (or, in the absence of the Chairperson, a person elected by the members of the Committee who are present at a meeting of the Committee) is to preside at a meeting of the Committee.
(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
A decision supported by a majority of the votes cast at a meeting of the Committee at which a quorum is present is the decision of the Committee.
15 Transaction of business outside meetings or by telephone
the Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Committee.
(1) The Committee may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Committee for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Committee.
(2) The Committee may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.
(3) For the purposes of:
(a) the approval of a resolution under subclause (1), or
(b) a meeting held in accordance with subclause (2),
(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Committee.
(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
The Minister may call the first meeting of the Committee in such manner as the Minister thinks fit.
The amendments deal with the creation and operation of a government advertising committee. As I said in the second reading debate, the Opposition notes that the bill introduced by the Government falls a fair way short of the private member's bill introduced by the member for Ku-ring-gai in 2007. The Opposition's amendments seek to strengthen the bill and give it some teeth so that it matches the private member's bill sponsored by Mr O'Farrell in 2007. We seek to give this bill teeth through the introduction of a government advertising committee.
Amendment No. 1 creates a government advertising committee. Amendment No. 2 requires the government advertising committee to review a government advertising campaign before it commences if the cost of that campaign exceeds $200,000. Amendments Nos 3 and 4 omit the word "peer" in two places. These are consequential amendments as a result of amendment No. 2. Omitting the word "peer" means that the words "reviews" or "review" catch both peer reviews and the review conducted by the new government advertising committee.
Amendment No. 5 requires that every peer review that is carried out includes a reviewer who is independent of the public sector. That is consistent with the current guidelines. Amendment No. 6 requires that the legislation must provide that the head of an agency must comply with a recommendation of the government advertising committee. The government advertising committee can make the following recommendations: that the head of the agency immediately stop the campaign, modify the campaign, limit expenditure or ask that the governing party pay the costs of the campaign.
Amendment No. 7 deals with the appointment of members of the government advertising committee. The committee would consist of the information commissioner and two persons who have knowledge or experience relevant to advertising. The information commissioner would be the chair of the committee. The two other members would be appointed by the Minister. Amendment No. 8 outlines the constitution and procedure of the government advertising committee, which is consistent with other boards and committees within the New South Wales public sector. I commend the amendments to the Committee.
The Hon. MICHAEL GALLACHER
(Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.21 p.m.]: On this occasion the Government opposes the Opposition amendments. The amendment that seeks to establish a government advertising committee does not improve the scheme proposed under this bill. A government advertising committee is not necessary—it would add an additional layer of process in the commissioning and review of government advertising, it would slow down the timely implementation of important government advertising and it would be costly to the State. Strong provisions already govern the integrity of government advertising. The provisions in the bill for peer review of campaign, cost-benefit analysis, certification of heads of agencies and reviews of campaigns by the Auditor-General provide robust safeguards for the government's advertising scheme. I remind honourable members that the Auditor-General was extensively consulted during the drafting of this bill. It is an important part of this process.
I reiterate my earlier comments. I note that the effect of amendment No. 6, in particular, but also amendments Nos 7 and 8, would be to impose a second tier of bureaucracy to vet advertising campaigns. The implicit message in this amendment is that heads of agencies cannot make clear and independent decisions concerning the requirements of the bill; that they are somehow being dictated to by their Ministers. The Premier has addressed this issue in the other place. He said that this Government respects the independence and the ethical standards of the public service. He further said that the Government expects the highest standards of integrity from the Executive and government agencies regarding advertising. The provisions of the bill are robust and achieve the required integrity for government advertising.
Dr JOHN KAYE
[12.23 p.m.]: The Greens support the Opposition's amendments because they improve the bill. While I accept the argument of the Leader of the Opposition, I take issue with one thing he said. He said that his amendments would restore the legislation to that introduced into the lower House by Barry O'Farrell in 2007. That is not correct. The 2007 legislation introduced into the lower House by the now Premier, the then Leader of the Opposition, said that the Auditor-General would look at all campaigns over $200,000. Therefore, every campaign worth more than $200,000 would go off to the Auditor-General. In effect, the Opposition's amendments say that all campaigns over $200,000 go off to the government advertising committee, whose decision is then binding on the department head in the issuance of a compliance certificate. Opposition amendments Nos 1 to 8 establish an advertising committee that then plays the role that the Auditor-General played in the O'Farrell legislation. The question is: Is the Auditor-General or the government advertising committee in a better place to assess these matters?
Our view is that the Auditor-General is a superior choice because the Auditor-General is genuinely independent. The Auditor-General is an instrument of our society who genuinely stands apart from the government, who has demonstrated independence and capacity to criticise government, and who makes government sit up and take notice. A government advertising committee—a separate layer of bureaucracy, as the Leader of the Government says—would comprise the information commissioner and two persons with knowledge or experience. Those two persons would be appointed by the Minister, presumably the Premier in this case. We would have two Premier's appointees whose background is purely in the advertising industry. That does not make them independent. There is nothing in this legislation to stop the Premier from appointing two people with close ties to the party of government. However, The Greens believe that this is better than the current legislation. Therefore, we support the amendments.
I note that the Leader of the Government quoted his Premier. He said that this Government respects the independence of the bureaucracy—and good for it; that is what it ought to do. However, one should not write legislation that has a problem in it just because that problem will not come about because of good behaviour by the Government. This legislation will specifically regulate the behaviour of Government. It will specifically put constraints around Government. One does not want to necessarily rely on morality. I refer to the contribution of the Government Whip during the second reading debate. He said that one cannot just rely on the morality of government to do the right thing. This legislation needs to be bulletproof.
The Hon. Dr Peter Phelps:
You have to rely on the morality of public servants to administer it.
Dr JOHN KAYE:
I acknowledge the interjection. Without these amendments and/or The Greens amendments, public servants are put in an appalling situation. Public servants are put in a situation where they are in huge conflict not just with their Minister but with their Minister's political party. They are creating that potential conflict which Labor's amendments will remove or at least ameliorate. That conflict is undeserved. There is no reason why that conflict should be put on them.
The Hon. Dr Peter Phelps:
If you are going to make that allegation you should make that allegation.
Dr JOHN KAYE:
I did not make that allegation.
The Hon. Dr Peter Phelps:
It is implicit in what you said.
Dr JOHN KAYE:
For those reasons The Greens support these amendments.
Question—That Opposition amendments Nos 1 to 8 [C2011-058D] be agreed to—put.
The Committee divided.
Question resolved in the negative.
Opposition amendments Nos 1 to 8 [C2011-058D] negatived.
Part 1 agreed to.
Clauses 5 to 7 agreed to.
Dr JOHN KAYE
|Mr Donnelly||Mr Ajaka|
|Mr Roozendaal||Mr Lynn|
|Ms Westwood||Mrs Pavey|
[12.36 p.m.], by leave: I move Greens amendments Nos 1 to 5 on sheet C2011-060B in globo.
No. 1 Page 5, clause 8, line 19. Insert ", the cost of which is in the opinion of the head of the agency not likely to exceed $200,000," after "Government agency".
No. 2 Page 5, clause 8. Insert after line 21:
(2) If the cost of a Government advertising campaign of a Government agency is in the opinion of the head of the agency or the Auditor-General likely to exceed $200,000, the campaign must not be commenced unless the Auditor-General has given an advertising compliance certificate for the campaign.
No. 3 Page 5, clause 8, line 23. Insert "or the Auditor-General" after "Government agency".
No. 4 Page 5, clause 8, line 34. Insert "or the Auditor-General" after "concerned".
No. 5 Page 8. Insert after line 6:
14 Auditor-General may determine complaints and take costs recovery action
(1) Any person may apply to the Auditor-General for a determination as to whether or not a proposed, current or past Government advertising campaign constitutes a breach of the requirements of section 6 or regulations made under that section or breaches the Government advertising guidelines.
(2) The Auditor-General may determine whether or not there is any such breach and must give notice in writing of the determination to the applicant and the head of the Government agency concerned.
(3) The Auditor-General may take action under section 11 to recover the costs of a Government advertising campaign if the Auditor-General determines (whether after a request under this section or otherwise) that the campaign constitutes a breach of the requirements of section 6 or regulations made under that section.
(4) This section is subject to section 13.
(5) This section does not apply to a Government advertising campaign that commenced before the commencement of this section.
These amendments fulfil a promise made by the O'Farrell Government and a promise in Mr O'Farrell's own legislation in 2007. In effect the amendments say that every government advertising campaign costing over $200,000 requires the concurrence of the Auditor-General before an advertising compliance certificate can be issued. I notice that the Hon. Paul Green said in his speech that he supported the legislation in its existing form because—I am paraphrasing him and he will no doubt correct me if I am wrong—all government advertising is being scrutinised by the Auditor-General. That is not correct. Under the bill the Auditor-General can scrutinise some government advertising campaigns as indeed he or she could do without the passage of this legislation and as he or she has done in the past. That scrutiny has occurred. I quoted from the 2009 performance report on four government advertising programs that occurred in the previous year.
The Greens amendments require the Auditor-General to look at every campaign over $200,000. That has the advantage of the Opposition's amendment in taking the burden off the head of the agency and making sure the head of the agency is not in unnecessary conflict with their Minister and the political party from which the Minister comes. Also, it goes beyond what Labor's amendment did and gets an independent set of eyes that are truly from outside government to look at government advertising programs costing over $200,000.
The Greens amendment No. 5 creates the power for any person to apply to the Auditor-General for a determination whether an existing, proposed or past government advertising campaign breaches the requirements of the legislation, the regulations or guidelines. It makes absolutely clear that an individual or an interest group can say: We think this particular piece of advertising breached either the legislation, by promoting a political party, or breached the guidelines, by not fulfilling one of the objectives. That individual can go to the Auditor-General and seek a determination. That is a section 13 determination, which is already within the bill itself. These two sets of amendments will strengthen the legislation. They will take the pressure off the government agency heads. They will create an independent overview of every piece of major government advertising, that is, over $200,000, and will fulfil the promises made by the O'Farrell Coalition when in opposition, both in their 2007 legislation and in their promises made in the lead-up to the 2011 election. I commend the amendments.
The Hon. MICHAEL GALLACHER
(Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.41 p.m.]: The Greens amendments Nos 1, 2, 3 and 4 are opposed by the Government. There is no need to amend the bill to involve the Auditor-General in the issuing of compliance certificates for government advertising campaigns. The head of a government agency is the appropriate officer to sign-off on the compliance of any advertising campaign, as currently provided for in the bill. Any proposed role of the Auditor-General at the front end of an advertising campaign would conflict with his powers and responsibilities, under clause 14 of the bill, to audit the performance of agencies in regard to advertising campaigns once those campaigns are underway or complete.
The Government is opposed to The Greens amendment No. 5. It is not the role of the Auditor-General to make legal determinations concerning any purported breach of the provisions of the proposed Act. Nor is it his role to take action to recover costs if there is a breach of the prohibitions under the proposed Act. The Auditor-General is not a debt collection agency. Under the bill as drafted, the Auditor-General undertakes the appropriate roles of auditing the performance of government agencies and holding the Government accountable. His office will carry out an annual performance audit of at least one government agency to determine whether it complies with the proposed Act. I remind honourable members that the Auditor-General was extensively consulted during the drafting of the bill.
Where there is a breach of the prohibitions in the proposed Act, the provisions for debt recovery from a political party are flexible, but robust. The question of who in government is responsible to recover the debt will depend on the particular circumstances of the alleged breach. Proceedings for recovery of a debt can be initiated by a representative of the Crown. This may include a Minister, the head of a department or a government officer with a finance or debt recovery function.
The Hon. LUKE FOLEY
(Leader of the Opposition) [12.43 p.m.]: The Opposition will support these Greens amendments. We prefer that a government advertising committee be established; those amendments have been defeated. We believe an enhanced role for the Auditor-General will strengthen the bill that is before us. Therefore we will support these amendments.
Dr JOHN KAYE
[12.43 p.m.]: The Leader of the Government says that the Auditor-General should not be a debt collection agency. Then he went on to say that it should be a Minister of the Crown, or an officer of the Crown or the agency head. That gets to the heart of what we are talking about here. The words of the Leader of the Government make it very clear: the inherent contradiction within the legislation, without The Greens amendments, is that—in the case of his Government—it would have to be a member of the Liberal Party or The Nationals who would have to proceed against their own political party in order to recover funding. I cannot see that being a good career move, for example, for the Leader of the House to proceed against The Nationals. Maybe he would like to proceed against certain elements within the Liberal Party, that is his call, but I cannot see that as something that would actually happen.
The Hon. Duncan Gay:
I love the Liberal Party.
Dr JOHN KAYE:
I acknowledge that interjection.
The Hon. Duncan Gay:
I was a Young Liberal.
The Hon. Michael Gallacher:
You were the only one of your kind!
Dr JOHN KAYE:
The Ministers can have their conversation. The real issue here is that the Minister's remarks demonstrate that this legislation has a contradiction built into it, and The Greens amendment addresses that contradiction. The Minister said there is a conflict in the role of the Auditor-General in that he is the person who looks at the matter beforehand and the person who looks at it after. I accept that is an issue—except that that has been well and truly traversed by both the Coalition Government that was in office previously and the Labor Party when it was in office. I remind the Leader of the Government that his predecessors in the Greiner Government used the Auditor-General to audit a transaction that had not occurred—the sale of the State Bank, before that occurred. So that Government had the Auditor-General signing off on that proposal before it had occurred. In fact, from my recollection, the legislation to privatise the State Bank had the Auditor-General's involvement built into it.
Likewise, the previous Government, in its first electricity privatisation debacle, used the Auditor-General—in fact, used a report of the Auditor-General—before that happened. So, unfortunately, we have crossed that bridge; we now do use the Auditor-General beforehand. There is no question, from the Leader of the Government's own remarks, that there is need for an independent oversight body that is thoroughly independent of government. The Auditor-General is the best one available. I commend the amendments.
The Hon. Dr PETER PHELPS
[12.46 p.m.]: I can understand The Greens wanting to move these amendments. What I cannot understand is the Labor Party supporting the amendments. In early 2010, Allan Hawke, a respected senior bureaucrat, conducted a review of the appropriateness of having the Federal Auditor-General vetting government advertising campaigns. Allan Hawke came out unreservedly against that as an improper and illogical use of the Auditor-General when the Auditor-General subsequently had to conduct performance reviews.
Dr John Kaye:
What year was that?
The Hon. Dr PETER PHELPS:
Last year. The Federal Special Minister of State agreed with those recommendations and dissociated the Auditor-General from the pre-vetting of government advertising. That was a policy of the Labor Government after an official review, which was welcomed by the Government. It had had experience with the Auditor-General from 2007 to 2010 vetting government advertising. The Hawke review came in; the Government looked at it. The Hawke recommendations were unequivocal: that it should not be done by the Auditor-General. I could understand The Greens coming in here with these silly proposals. What I cannot understand is that the Labor Party could tell this Chamber that it will be supporting proposals that its Federal colleagues rejected overwhelming one year ago.
Dr JOHN KAYE
[12.48 p.m.]: I thank the previous speaker for his erudite contribution. It is interesting that he quotes Allan Hawke's 2010 review to say why the Auditor-General should not be the person doing the audit of government advertising. It is an interesting question as to why, when he, the Government Whip, was standing as a candidate for this Chamber, stood on a platform that unequivocally said that the Auditor-General should be the final arbiter. That is what the current Government's platform leading to the election said. Now that he gets into government, he suddenly discovers that in 2010—prior to standing for the election, prior to putting up this policy for the people of New South Wales—there is evidence that the Government should not use the Auditor-General. That is a complete and utter reversal of positions. The Coalition went to the people and promised them that the Auditor-General would audit government advertising. Yet one of its senior candidates was in possession of information that that was the wrong thing to do.
The Hon. Dr Peter Phelps:
Dr JOHN KAYE:
You. The Hon. Dr Peter Phelps said to Allan Hawke in 2010 that it is completely inappropriate, yet he went to the polls presenting as a candidate for election on a policy he knew was wrong. There is something deeply and profoundly crazy about this. The Coalition has one policy in opposition and another one when it is in government. The Coalition supports the Auditor-General when it suits its cause, but the minute it realised its advertising campaign—not Labor's—would be subjected to genuine oversight it said, "Oh, no, we couldn't do that. In fact, we had a 2010 report that said we shouldn't do it." This is hypocrisy on a grand scale. If the Coalition thought it was wrong, it should not have introduced the 2007 legislation and particularly should not have gone to the 2011 election—all the way up to 25 March 2011, and possibly beyond—stating on its website that it would do this. Coalition members have one of two choices in voting on these amendments: either stand accused of being complete hypocrites or vote with us. There is no middle ground. This is their election promise; this is what they said they would do. The Coalition either votes for the amendments or breaks an election promise.
The Hon. Dr PETER PHELPS
[12.51 p.m.]: While we are on the subject of hypocrisy, let us go to the subject of misleading the Chamber. Earlier Dr John Kaye asserted in this place that the boycott, divestment and sanctions policy was on The Greens website. I have just gone to The Greens website and I am happy to read out every last one of them.
Dr John Kaye:
Point of order: I am totally happy to debate Mr Phelps' capacity to read a website.
The Hon. Dr PETER PHELPS:
You asserted it.
Dr John Kaye:
I am totally happy to have that debate. If he wants to say I have misled members, he should do so by way of substantive motion. I would welcome that.
The Hon. Duncan Gay:
I think you say that.
Dr John Kaye:
He should move a substantive motion on that matter. I understood that we were debating The Greens amendments Nos 1 to 5, which do not relate to what is or is not on The Greens website. For the member's edification: the boycott, divestment and sanctions campaign is not a policy and never was a policy. It is a resolution and I can show him where it is.
The CHAIR (The Hon. Jennifer Gardiner):
Order! I ask members to address the amendments before the Chair.
The Hon. ROBERT BROWN
[12.52 p.m.]: The Shooters and Fishers Party will not support Dr John Kaye's amendments. Apart from the Government's reasonable arguments, The Greens have a practice of trying to sneak backdoor clauses into legislation at every chance they get. The Greens amendment No. 5 states in part:
Page 8. Insert after line 6:
14 Auditor-General may determine complaints and take costs recovery action
(1) Any person may apply to the Auditor-General ...
That would open a can of worms. No thank you.
Dr JOHN KAYE
[12.53 p.m.]: I thank the Hon. Robert Brown for his comments. If he had paid me the honour of being present when I moved the amendments, he would know exactly what I said. The Greens want to open up the process to any person or any agency. In fact, in New South Wales "person" also means a corporation. The amendment was to enable anyone to apply for a determination. There is nothing backdoor about The Greens amendments. We said very clearly that the intention of amendment No. 5 was to democratise the process of lodging a complaint. The Hon. Robert Brown might not like that, but to call it a backdoor amendment is a rather strange use of the English language.
The Hon. Dr PETER PHELPS
[12.54 p.m.]: Let members remember this vote. If the Labor Party votes to support these amendments, it is a vote of no confidence in the Federal Labor Government's advertising policy. If Labor members vote to support The Greens amendments, they are voting no confidence in the Gillard Labor Government.
Question—That The Greens amendments Nos 1 to 5 [C2011-060B] be agreed to—put.
The Committee divided.
Question resolved in the negative.
The Greens amendments Nos 1 to 5 [C2011-060B] negatived.
Clause 8 agreed to.
Clauses 9 and 10 agreed to.
Part 2 agreed to.
Parts 3 and 4 agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported from Committee without amendment.
|Mr Donnelly||Mr Ajaka|
|Mr Foley||Mr Lynn|
|Ms Westwood||Mrs Pavey|
Adoption of Report
Motion by the Hon. Michael Gallacher agreed to:
That the report be adopted.
Motion by the Hon. Michael Gallacher agreed to:
Bill read a third time and returned to the Legislative Assembly without amendment.
That this bill be now read a third time.
[The President left the Chair at 1.04 p.m. The House resumed at 2.30 p.m.
Pursuant to sessional orders business interrupted at 2.30 p.m. for questions.