Justin Milne has to resign from the ABC board. It’s almost impossible for him to be sacked, should the government decide it wanted to.
Under the ABC Act, Milne, along with directors other than the managing director and the staff-elected director, is appointed by the Governor-General. Section 18 provides that “the Governor‑General may remove a non‑executive Director from office for misbehaviour or physical or mental incapacity”. Those are standard words for a statutory appointment that echoed the constitutional rationale for removal of a judicial officer.
But for judges, there’s now an entire Commonwealth act for the process of determining misbehaviour or incapacity, which involves setting up a parliamentary commission to determine if a judge should be removed. But “misbehaviour” is one of those terms that is purposefully left vague to give decision-makers wriggle room to cover all circumstances. But it would be very hard to claim Milne was guilty of “misbehaviour”.
And a director must be removed if they go bankrupt or miss three or more board meetings in a row without leave. But that doesn’t apply either.
Even if a director breaches the duties of the board that are outlined under section eight, sacking them for that is problematic, because that section also provides this: “Nothing in subsection (1) or (2) is to be taken to impose on the Board a duty that is enforceable by proceedings in a court.”
The whole point of this difficulty is that it prevents governments from sacking statutory officers it doesn’t like merely out of partisan malice or because they’re too independent for the liking of politicians. The rules are intended to protect the independence of bodies like the ABC. The problem is, in this case the independence of the national broadcaster is under threat from the actions of the chair.