After leading a six-year battle for the reinstatement of the staff-elected director position to the ABC board, veteran public broadcasting activist Quentin Dempster finds himself ineligible to stand under Labor’s long-awaited legislation.

Dempster, a veteran journalist and host of the NSW 7.30 edition, broke the news in a note he emailed to all ABC staff late yesterday. He said he was “distressed by this turn of events but have no choice now but to withdraw”:

“My legal advice is that the recently passed National Broadcasting Legislation Amendment Bill and associated regulations about to be proclaimed will retrospectively and unfairly discriminate against ABC employees who served two successive terms as director before the abolition of the position by the Howard government in 2006.”

Veteran ABC journalist Matt Peacock — whose crusading asbestos reporting has been turned into an ABC mini-series airing this Sunday — will now run for the position with Dempster’s support.

The position of SED was introduced by the Whitlam government in 1975 and its abolition was one of the parting shots of the Howard government in 2006. Dempster had been eligible to nominate (and in fact won the position) in 2006, even though he’d served two terms as staff-elected director from 1992 to 1996. But the Coalition’s amendment abolishing the position meant he never took his seat on the ABC board and was reduced to “director in exile” status.

The current prohibition on any staff member standing for election if they had previously served two successive terms in the SED role is retrospective, despite the six-year hiatus, and despite the new amended legislation expanding the SED term to five years, in parallel with the appointed directors.

Dempster’s email to staff noted that “the minister’s office has indicated my ineligibility is an inadvertent and unintended consequence of legislative drafting”. A spokesperson for Conroy’s office tells Crikey it is “unfortunate” and Dempster is held in the “highest regard” but the legislation was on the books and communicated to the broadcaster and the Community and Public Sector Union some two-and-a-half years ago.

Only after the legislation passed — a long-running parliamentary battle opposed by the Coalition — did Dempster request changes to the legislation so he could run. The Minister rejected pleas to pass an amendment given the difficulty of getting the initial legislation through Parliament.

“Had this been brought to our attention prior to the legislation being passed we would have fixed the drafting error. We have tried to do so via the regulations but that’s not possible,” they said.

Dempster told Crikey this morning he only found out about the clause a month ago. “I had been operating under the impression, at no time corrected by people familiar with the legislation since 2009, that although I had served two successive two-year terms in the ’90s, I would still be eligible as I was in 2006 under the old act,” he said.

“Having accepted that it was difficult in the current federal Parliament to carry a further amendment to remove the retrospectivity, I had no choice but to accept this and started looking around for a committed public broadcaster to carry the torch. Fortunately Matt Peacock agreed to take it on.”

Dempster has made many enemies within the broadcaster over his stand against the outsourcing of ABC TV production, and for his forceful advocacy of public broadcasting principles. He said in his note yesterday he will “remain an advocate for non-commercial mainstream public broadcasting in Australia”.

ABC corporate affairs director Michael Millett says the matter was determined by government and the broadcaster had no role in drafting or seeking amendments to the legislation. The only other serving ABC employee to be affected by the rule is John Cleary, who has no intention of standing again.

Sydney-based Peacock is expected to visit ABC centres in Brisbane, Melbourne, Hobart, Adelaide, Perth, Darwin and other regional stations to engage with staff and write a detailed position paper ahead of his nomination. Dempster calls him an “experienced, courageous and committed public broadcaster”.

In his note to staff, Peacock expressed concerns about funding cuts in the next triennial negotiations with government:

“The ABC staff-elected director position, along with merit selection of all board appointments for the ABC and SBS, has been achieved because of the campaigning of many committed people over the last six years. We now have an opportunity to generate a genuine discussion about what a public broadcasting system can cost-effectively deliver through the digital revolution.

“The ABC faces uncertainty until we see the result of the triennial funding negotiations, soon to be underway as the ABC makes its formal submission.

“At a time when other mainstream media organisations are shedding staff, it is more important than ever to secure the ABC’s role as an independent, creative and stabilising institution.”