Jennifer Marohasy

a forum for the discussion of issues concerning the natural environment

Media Rules Prohibit Dissent

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MODERN history suggests that democracy aligns, and progresses, with the expansion of civil liberties, including access by ordinary citizens to government information. But the new media reform bills tabled in [Australian] federal Parliament last week appear unashamedly about the introduction of an additional layer of bureaucracy unaccountable to the public or the judiciary.

To address the potential problem of a concentration of media control, the government appears determined to concentrate the power of oversight into the hands of a single political appointee – the public interest media advocate (PIMA) – entrusted to be wise enough to act in the public interest.

The PIMA will administer public interest tests in the merger or takeovers of media interests. But unlike other areas of government where there is a public interest test, such as the application of freedom of information laws, the decisions of the PIMA will not be subject to judicial review or appeal through the courts.

It may even be unique in this respect.

Under the constitution, the doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial.

The legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws.

This doctrine is often assumed to be one of the cornerstones of fair government. It enables an entity separate from the executive to review a government decision such as that resulting from the implementation of a public interest test.

But this is possible only if the specific legislation embodying a public interest test has incorporated this safeguard for an appeal through the courts.

This is the case, for example under freedom of information legislation, FOI. In contrast, under the proposed media reform legislation, review of decisions will not be available.

The explanatory memorandum says these processes would be costly and time consuming to review, but we consider such an argument entirely unpersuasive.

The new public interest test will be considered in addition to the existing Australian Competition and Consumer Commission’s substantial lessening of competition test, the Australian Communication and Media Authority’s existing media diversity tests and where necessary, the Foreign Investment Review Board’s national interest test.

The idea of applying a public interest test to determine the acceptability of any proposed further concentrations in media control or ownership may be appealing to some who may view this as an extra safeguard.

However, let’s consider how well a public interest test may operate in practice with reference to FOI.

Under FOI, a public interest test is applied, in some circumstances, by government agencies and departments to determine public access rights to documents.

This test requires the government department to state relevant factors, both for and against disclosure.

This should be, in theory, followed by a balancing of these factors, each objectively examined and given an appropriate weighting, leading to an impartial decision on whether the public interest is better served by disclosure or by non-disclosure.

When we applied in 2010 to the Department of Climate Change and Energy Efficiency (DCCEE) for disclosure of documents relating to expenditure on certain science programs it administered, our request was initially refused.

Following a protracted appeal process through the Information Commissioner that included scrutiny of the manner of application of the public interest test, the original decision was reversed and the documents eventually were fully disclosed.

Had this review failed, it would have been possible for us to appeal against the decision through the Administrative Appeals Tribunal, the Federal Court and the High Court.

No such appeal will be possible when the PIMA hands down his or her decisions.

****

This opinion article by John Abbot and Jennifer Marohasy was first published in the Australian Financial Review on Monday 18th March, 2013. http://www.afr.com/p/opinion/media_rules_prohibit_dissent_YY0bcVGgqdzXvNgEXC8gLO

Reader Interactions

Comments

  1. spangled drongo says

    Well said Jen. Thanks to people like yourself, Conjob has pulled his head in on PC infringers and feeling hurters being guilty until proved otherwise. However this is still a dreadful bit of
    legislation.

    Imagine a single bureaucratic mind being responsible for a “public interest test” on all private media owners without the recourse to review or appeal.

    If they really believed that a public interest test was necessarily they could start with a trial run on the ABC and SBS. An area seriously in need of a “public interest test” [witness the ridiculing of Piers Ackerman on “Insiders” over this].

    But even then it should be made up of a broad group, with right of review.

  2. cohenite says

    Yeah, good stuff.

    Censorship is censorship no matter how the thug Conroy dresses it up; in fact Conroy hasn’t dressed it up at all; there is no reason for this proposed censorship; like everything else this government does it is motivated by spite and revenge.

  3. spangled drongo says

    Yep, as much spite, revenge and damage as they can muster before being kicked into obscurity. How the independents can allow them to do this to the country for another day is beyond me.

  4. ianl8888 says

    @sd

    ” … How can the independents can allow them to do this to the country”

    Yes, I wondered over 2 years ago why Dumb and Dumber (Windsor and Oakeshott) so hated the Nats. Both of them double-crossed their conservative electorates big time, which puzzled me for a while

    I’m still unsure about Oakeshott – I’m inclined to think he’s just a nutter after we’d learnt he’d asked Morris Iemma for a NSW Ministerial post without joining the ALP – but Windsor was forced out of the Nats after a drink-drive charge imbroglio

    In essence, Windsor hates the Nats viciously and seems to be simply attempting to damage the LNP as much as he can. Oakeshott just seems to have an overweening, narcissistic need to feel important … much like Rudd but without any intellect at all

    Probably not well known outside his electorate, but Windsor sold half his farmland to Whitehaven Coal for a goodly sum so that Werris Creek Open Cut could continue and not be forced to close with a worked-out lease. Windsor was the Patron of Caroona (local no-mine-here group) at the time of the sale

    If the Press control bill actually gets up (looking most unlikely), I suggest that Abbott appoint Jennifer Marohasy as the PIMA 🙂

  6. Another Ian says

    Comment from: ianl8888 March 18th, 2013 at 4:35 pm

    That would be a good decision for a rational outcome.

    But IMO it lacks scare factor for the ALP.

    There is the suggestion for them to think that Abbot might appoint someone like one of their betes noir – like Andrew Bolt!

  7. Johnathan Wilkes says

    Another Ian
    “one of their betes noir – like Andrew Bolt!”

    I’m convinced that most people have a grave misconception about what A Bolt stands for.
    Believe me, he would be a pussy cat and a complete pushover as a media boss.

    Sorry to disappoint you.

    Apart from that I’d like this law to be passed, only to show off the timidness of the LNP by not
    using this law to get back at their enemies.
    Privatise the ABC, you are dreaming?
    M Turnbull is the greatest supporter of the joint.

  10. Avatar photojennifer says

    Cohenite
    There are five bills with five memorandums that you should be able to find if you look on the dates they were tabled, I think 13th and 14th March at that site. If you are still stuck send me an email and I will email them as 10 file attachments to you.

  12. John Sayers says

    It won’t get through. But it has shown the ridiculous bias in ABC and affiliated journalists.

  13. Larry Fields says

    In Japanese, the word “pima” means Bell Pepper. When a person is referred to as a pima, it means that he’s an airhead. Interesting coincidence, eh?

  17. spangled drongo says

    And the UK legislation which looks like getting through is just as stupid and will not prevent any future phone hacking, just dumb down reporting.

  18. toby says

    well said Jen, something to genuinely be concerned about…as opposed to the CAGW that has surely run its course now, except for a few rusted on zealots, with sore nuckles from hitting computers and keyboards……. may i hazard a guess and suggest some will support this action just like they support the NBN…cos they only think in terms of benefits and have no concept of real costs vs opportunity cost etc

    it is amazing how low this govt will stoop, and expect it to get worse before its over.

  19. jim karock says

    This looks like another step towards fascism.
    I truly hope you can toss out all of those fascists currently in charge.

    Australia needs an iron clad bill of rights. Sort of like the USA, but actually followed.

    Thanks
    JK

  20. Johnathan Wilkes says

    Jim
    I’m a bit ambivalent about a bill of rights.
    The Problem I see is that anything not specifically mentioned in the bill is up for debate.

    I’d rather have all rights as of right, and exceptions defined.

  21. Roy Baker says

    Hi,

    Nothing new here for the skeptics/deniers but there’s a line in a song by John Mayer called Waiting for the world to change.

    It says ” when they own the information, they can bend it all they want. That’s why we’re waiting, waiting for the world to change”

    It says it all to me.

    Roy

  22. Prompete says

    Eminently readable and well said. Re A Bolt. Whilst he is the bett noir of the left, I believe his judgements would be fair, detailed and balanced until the creeping political correctness reared its head and it would be thumped on (in the politest possible way).

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