Jennifer Marohasy

a forum for the discussion of issues concerning the natural environment

Legislation

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.

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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

Conflict of Interest for Chairman of UK Environment Committee

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Tim Yeo used his casting vote as chairman of the all-party Environmental Audit Select Committee to push through a report, published last week, which backed the decision by Alistair Darling, the Chancellor, that new, higher rates of vehicle excise duty (VED) rates should apply to previously-purchased cars.

The committee had been evenly split, with three Labour MPs supporting the Government line while three Tory and Lib Dem MPs opposed it, arguing that the move amounted to retrospective taxation. Mr Yeo broke the deadlock by siding with the Labour MPs.

He is paid £40,000 a year as non-executive chairman of Eco City Vehicles Plc, a company which plans to market a hybrid car which would qualify for low rates of VED under the new tax regime, due to its low carbon emissions.

Telegraph.co.uk: Tory MP Tim Yeo in conflict-of-interest row over car tax report

Panelists Named for Iconic Extinction

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Queensland’s former Douglas Shire is no more. Under amalgamation, the new Cairns Regional Shire extends where Douglas once existed, but not so far that its constituents remain entitled to elect representatives for the genuine care for development. Rather, for the first time in Queensland’s modern history, this entitlement has been usurped by Parliament, so that its Minister for Infrastructure and Planning, currently the Hon. Paul Lucas MP, can decide who to appoint for such a care.

Former member for Toowoomba (1966-1972), Mr. Peter Woods, has been appointed. So too, former head of the Planning Institute of Australlia, Mr. Leo Jensen. Mr. Ken Dobbs, of the Port Douglas Chamber of Commerce and Port Douglas-based architect Mr. Gary Hunt have also been endorsed. Cairns Regional Councillor for Division 10, Ms Julia Leu, completes the appointment.

So, that portion of the new Cairns Regional Shire, declared as ‘Iconic’ by Minister Lucas, can forget about developmental self-determination. And rather than defending the jurisdictions of their respective divisions from the possibility of being similarly stripped of democratic integrity, the other nine councillors remain deafening in their silent opposition of the relinquishment. Then again, so too are the other elected officers around Queensland that have current custodianship of representative authority.

Queensland’s Proposed Iconic Legislation (part II)

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Contrary to the intent of the outgoing Douglas Shire Council’s resolution to not allow Council staff to participate in the process of preparing submissions to Queensland’s Draft Iconic legislation, the Queensland Department of Infrastructure and Planning has contracted the Planning Consultant primarily involved in developing the Douglas Shire’s Planning Scheme, to prepare a Draft Iconic Values Statement for Douglas Shire.

Having previously thought that one-month public consultation for Queensland’s Draft Iconic legislation was inadequate, the six days offered this afternoon, for the Draft Iconic Values Statement, is remarkably challenging. We are advised, “Unfortunately any submissions received after 6pm on Monday the 17th March 2008, will be unable to be considered.”

Two days before this deadline, the inaugural Cairns Regional Council elections will be held, leaving the successful candidates with only one working day to respond within this window of eligibility.

One might be excused for assuming that a Draft Iconic Values Statement for Douglas Shire would be a relatively simple descriptor, given that 82% of the Shire is bedded in World Heritage legislation. The adjacent Great Barrier Reef WH area ensures another binding level of iconic constraint and at a lower level, the Integrated Planning Act ensures the preservation of Good Quality Agricultural Lands.

But no; the Draft Iconic Values Statement for Douglas Shire is unexpectedly more definitive, even down to the level of unsealed roads, oil palms that line the entrance to Port Douglas and the waterfront markets that are valued not only by tourists but also by local residents. It details iconic WH values, biodiversity values (including a new species of fish found in Cooper Creek), the Irrawaddy and Indo Pacific humpback dolphins, migrating birds, waders, flying fox, southern cassowary, stream-inhabiting frog species, Bennett’s tree kangaroo, estuarine crocodile and spotted quoll, among many others.

These ecological values are already protected under the various provisions of the Nature Conservation Act 1992 and World Heritage legislation, but with this new layer of Iconic legislation, it would seem that the forced amalgamations are merely a smokescreen for a de facto dissolution of local governance in the former Shire of Douglas and the expansion of bureaucracy.

Monaro Farmer Seeks Compensation for Carbon Sink

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In the Federal Court of Australia in Sydney on Thursday 20th December 2007, the Court rejected the Commonwealth’s application to strike out a Statement of Claim entered into the Court by Monaro District farmer Mr Peter Spencer.

Mr Spencer has claimed that Intergovernmental Agreements between the Commonwealth and the States and Territories, along with the International Treaty the Kyoto Protocol that was signed in April 1998 that set Greenhouse Emissions Targets that Australia have to meet by 2012, bind both the Commonwealth and State together.

The Carbon Sink developed on his property by the State banning Land Clearing has expropriated Mr Spencers property and prohibited the lawful use of his land for Agricultural purpose and no payments for sequestration and storing Carbon has been negotiated, this acquisition was not on “Just Terms” as the Commonwealth Constitution provides for just compensation for the acquisition of property.

Counsel representing Mr Spencer in proceedings, Mr Peter E King said after the hearing, “This is the first occasion in Australia’s legal history that it has been found there was an “arguable case” against the Commonwealth on behalf of farming interests that the Kyoto Protocol may give rise to Property Rights”.

Mr Spencer said “I am delighted that my case will be heard and it vindicates my beliefs, farmers have as much right as coal – miners to recognition under the Climate Change Convention”.

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** This is the text of a media release from The Commonwealth Property Protection Association made on the 21 December 2007.

Queensland’s Proposed Iconic Legislation

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In August 2007, the Queensland Government introduced legislation to bring about forced amalgamations of many local governments in Queensland.

Extensive argument was responded to by Premier Beattie, who proposed the introduction of ‘iconic legislation’ to afford protection to the particular characteristics of distinctive places, particularly from the councils-to-be-subsumed of Noosa and Douglas.

One month has been offered (from mid August 2007) for stakeholders to suggest the form and intent of the legislation prior to the government commencing to draft the legislation. It will then be introduced into parliament in late October/early November 2007 and brought into effect by 15 March 2008, prior to Council elections.

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‘Iconic’ has been described as including areas of state or national significance, areas of historical significance, areas of unique natural environment and World Heritage areas like the Reef, Daintree & Sandy Straits. It may be an area where development growth is restrained and sustainability is more important than growth.

The stated intent of the proposed legislation is to give the force of state law to already existing planning schemes in environmentally significant and important areas, to ensure those planning schemes now have more grunt and the clout to ensure icons are even more protected, to allow appropriate development to continue but with the new laws, planning schemes in these areas become more powerful than ever.

I can only imagine that the underlying motive of this exercise is to extract political capital from the illusion of parliamentary concern. In the Daintree, for example, World Heritage is already quarantined from development. The Convention for the Protection of the World Cultural and Natural Heritage is enabled domestically under the provisions of the Environment Protection and Biodiversity Conservation Act 1999 and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Queensland’s Wet Tropics World Heritage Protection and Management Act 1993, provides statutory authority to ensure Australia’s international obligations, as defined within the World Heritage Convention, are met. The Integrated Planning Act 1997 provides another level of protection and local government is utterly subordinate to state interests in the adoption of planning scheme amendments.