Failed media reforms show new Parliamentary human rights scrutiny is working

The most recent session of the Commonwealth Parliament has ended with the Government’s proposed media reform package in tatters. Two of the six bills were passed by the lower house – being the two relatively uncontroversial bills relating to the expansion of Australian content on TV and the updating of the charters of the ABC and SBS to require the production of online content. The other four bills, which proposed the establishment of a new media regulatory body are now unlikely to progress in this term of Parliament.

The haste with which the Government expected Parliament to deal with the bills was unrealistic. The inter-related bills that, as the Government recognised, had an impact on human rights and freedoms, deserved more thorough consideration and time for community input and debate.

The Australian Human Rights Commission raised concerns that the media regulation scheme proposed in the bills lacked sufficient procedural safeguards, particularly in relation to the operation of the proposed Public Interest Media Advocate. There was a lack of clarity on the criteria to be used by the PIMA in its decision-making role, and an absence of procedural fairness in its operation.

Other aspects of the reform package advanced human rights by promoting diversity on the boards of the ABC and SBS. Moreover, the proposed measures to prevent undue concentrations of media ownership were a response to international concerns that media ownership in Australia might jeopardise freedom of speech.

As the dust settles on the debates, however, a story of success is emerging, albeit not one the Government expected. For less than 12 months into its operation, the Joint Committee on Human Rights has consolidated its scrutiny function of all legislation and bills that raise human rights implications. The analysis by JCHR of the media reform bills exemplifies this role.

Since 2012, all legislation introduced into parliament must be accompanied by a statement of compatibility with human rights. This statement then forms the starting point for scrutiny by the JCHR.

The committee has now provided 12 reports to Parliament, analysing all legislation introduced since June 2012. One of the main trends that has arisen in legislation over this period is the tendency for the Government to seek to limit procedural safeguards that accompany a number of proposed measures. The media bills are not unusual in this respect.

Through their reports, the JCHR has provided clear guidance to Government departments on their expectations about what statements of compatibility should contain. This has started to result in improvements in the quality of statements of compatibility over the course of the year.

There are clearly limits to the usefulness of statements of compatibility. It would be highly unusual for the proponent of a bill to admit that any restrictions on the exercise of human rights are not justified. So what a statement of compatibility provides is a starting point for the scrutiny process: a basis upon which to analyse proposed legislation rather than a determinative statement about human rights compliance. The existence of statements of compatibility is not enough of itself. Rather, the importance of the statement of compatibility lies in its capacity to streamline the process of scrutiny undertaken by the JCHR.

The media reform bills were introduced to Parliament on 14 March, with the Government stating it intended to have the bills dealt with by the end of the parliamentary session on 21 March. The JCHR published its commentary on the 6 bills on 19 March – just five days later. The Committee’s detailed advice identified a range of preliminary concerns with the bills.

The most significant issues raised by the Committee concerned whether the basis for decision-making by the PIMA is sufficiently precise (as required by article 19(3) of the ICCPR), the absence of merits review of decisions, whether the imposition of strict liability offences is proportionate, and whether the proposed changes to news media regulation are necessary and are the least intrusive option available in the circumstances.

The JCHR also identified issues on which it required further information from the Government in order to be able to assess whether the claims in the statement of compatibility could be substantiated or not. For this reason, the Committee may well raise further concerns about the bills when the Government responds to their request for information.

For now, we are left with media regulation processes that are less than optimal and that do not respond to the challenges of media in the digital age. The JCHR has, however, provided us with important guidance for protecting the vital function of the media in our society and the right to freedom of speech.

The saga of the bills leaves me confident about the robustness of our parliamentary processes. The combination of the requirement for statements of compatibility being produced for each bill and the independent scrutiny role performed by the JCHR has resulted in high quality analysis of the compatibility of these bills with Australia’s human rights obligations.

This should be seen as an important step forward in the promotion and protection of human rights in Australia.

Professor Gillian Triggs is the President of the Australian Human Rights Commission.