Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Assistant Minister for the Republic) Share this | Hansard source

Labor has offered in-principle support for a workable code in this industry from the outset, and we're supporting this bill, the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020, as amended. Yet there remains a great deal of uncertainty about the future designation of platforms and services, which remains a matter of ministerial discretion. Not all Australian news media businesses have struck commercial deals with digital platforms, and the passage of the bill may impact on their relative negotiation position with digital platforms. It's not clear how the Morrison government will achieve the intention of levelling the bargaining position between news media and digital platforms if the negotiation or arbitration provisions of this bill do not apply. For this reason, Labor recommends that the government use precise language in public statements regarding what designations it intends to make under the code. This is in order to save any misunderstanding or unnecessary uncertainty for the media, digital platforms, small businesses, citizens and consumers who may be impacted. Labor welcomes progress to address the imbalance in bargaining power between the news media and digital platforms. We've always ensured that the focus remains on maintaining extensive public interest journalism in Australia.

There is broad in-principle support for a code and regulation of digital platforms. We note that stakeholders such as the Media, Entertainment & Arts Alliance have welcomed the reported deals between Google and Nine Entertainment and Seven West Media. But the MEAA says the parliament must proceed with the bargaining code legislation to ensure all regional operators, including AAP, regional and local organisations and others, regardless of their size, are compensated by digital platforms for the use of their content.

Prior to that latest development, many stakeholders had expressed serious and specific concerns with the bill, as drafted. Google and other platforms, such as Facebook, have said they're willing to pay for news content, but the question, of course, has always been about the mechanism. And it wasn't just Google and Facebook voicing their concerns. A range of other stakeholders had issues with this bill, including peak business bodies such as the Business Council of Australia, Ai Group, peak media bodies, Free TV, the Press Council and many others.

It has been Labor's clear view that it's the government's job to get this right—to make sure that there is a workable code—and to find a way to support Australian media without undermining Australia's digital economy and, importantly, without undermining many of the businesses that rely on the digital economy to trade and promote their businesses using platforms such as Google and Facebook. And it has been Labor's view that the government should give credible responses to the concerns and the issues that have been raised by stakeholders about that. We've extended constructive in-principle support while the government has been signalling and considering amendments to its own bill in consultation with the digital platforms and media. We've been of the view that it's for the government to ensure that a bill of such consequence, in a negotiation context, be ready to be debated in parliament. Labor has been waiting for the government to reveal its amendments to the legislation for weeks now. The Morrison government describes these amendments as 'a number of clarifications and technical amendments'. Since the bill was introduced, the government has made quite a spectacle of the so-called threats made by digital platforms. Yet, at the end of the day, it would appear that the resolution of the issues required just 'a number of technical amendments'. There have been varying reports as to whether the government have caved in or backed down or whether they are simply making some minor changes.

At all times Labor has been outcomes focused. The code is about ensuring the sustainability of public interest journalism and the importance of the fourth estate in shining a light on the ongoing disruption the news media has experienced, over decades, to its traditional business models and also in response to the impact of the market power of the digital platforms. Ultimately, this has to be about the healthy functioning of our democracy. Given the impact of this legislation on media businesses, digital platforms, small businesses and consumers, the government should have had its ducks all in a row. The government should have circulated its amendments much earlier than it did to end the uncertainty around levelling the playing field between news media and digital platforms.

Of course, the code is only one suite of measures recommended by the ACCC to support public interest journalism in Australia. In the time since the ACCC released the final report of the Digital Platforms Inquiry in July 2019, the Morrison government has failed to address a number of those important recommendations, including genuine media reform, stable and adequate funding of public broadcasters, adequate direct funding, tax incentives, and philanthropy measures. The government must do more to support public interest journalism in Australia, and that is why I think there is scepticism about whether this code will work.

Many are saying they don't believe that the code is going to result in more diversity in our media, in more journalists being employed or in a strengthening of our democracy through the notion of freedom of speech and through the media highlighting the importance of what goes on in government and the decisions that are made by government. It's important that the government understand that that scepticism is born out of the fact that this government's approach to regulation of the media in Australia has resulted in a contraction of the diversity that we've had in our media organisations. That is not good for Australian democracy. The changes that the Turnbull government made to cross-media ownership laws have resulted in a number of big media players buying up smaller players and reducing the diversity of voices that is crucially important to a healthy democracy and to the strength of media diversity. There is nothing in this code or in the government's response to the ACCC recommendations that provides any support for growing media diversity in Australia.

The second point I'd like to make is that many have used this code as a means of promoting the notion of public interest journalism and media businesses being able to afford to do their jobs and, ultimately, to hire more journalists to report on the news cycle and the happenings particularly of government at all levels in this country. It's my hope that that will be the outcome of this particular code—that it will result in more journalists being employed by media organisations—but I see no mechanism in this code for that to occur. I think there should be some mechanism to ensure transparency around the funds that go from these digital platforms in paying the bigger news outlets in Australia. There needs to be some reporting by those news outlets of what that money is being spent on and whether or not it's resulting in more journalists being employed in Australia, which is crucially important to diversity and to increasing the views and strengthening Australian democracy.

Another point I'd like to make in respect of the code, one that has been raised in the Senate inquiry on a number of occasions, is the notion of the risk to the Commonwealth from court proceedings, following the introduction of this legislation. Treasury has raised concerns that the legislation, as drafted, contains some critical weaknesses, enough to expose the Commonwealth to the risk of litigation and failure in what may be protracted legal proceedings. These concerns relate to the minister's ability to designate and to make a determination that there is a bargaining power imbalance between Australian news businesses and a group comprised of the corporation and all its related bodies corporate. In making that determination under this code, the minister must consider any reports or advice of the ACCC. In paragraph 2.10 of the explanatory memorandum to the bill, Treasury notes:

The Code has been constructed to minimise the potential for successful legal challenge under the Australian law. Nevertheless, it is possible that, for example, decisions by the Treasurer to designate digital platforms could be subject to legal challenge.

That's from the explanatory notes to the code, and it's a pretty damning indictment of the possibility that the Commonwealth is opening itself up to legal challenge through the minister's ability to designate those media organisations under the code. That remains a risk to the Commonwealth, and I don't think it has been adequately dealt with by this government.

So, whilst we welcome the passage of this bill, whilst we are certainly keen to see a rebalancing of the power between digital platforms and news outlets, we want to make sure that this code works and that it doesn't result in the Commonwealth being prosecuted because of those issues associated with the Treasurer being able to designate a particular body and a bargaining imbalance under the code. We want to see that there is a greater diversity in the Australian media and that more public interest journalism is promoted in this country. But there is scepticism, and rightfully so, about whether that will be the outcome from this particular bill.

That is why the shadow minister has moved that second reading amendment—to make sure that in the future the government keeps an eye on these things and we don't end up, as we have in the past under this Liberal government, with further concentration of our media, a lack of diversity and an undermining of the importance of the fourth estate and journalism critical to our democracy.

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