Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Hansard source

The bill before us in the chamber, the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021, as we know, is a bill to establish a mandatory code of conduct to help the sustainability of Australian news media. It does this by seeking to address the bargaining power imbalances between digital platforms and Australian news businesses. Most Australians will know something about this because it's certainly been in the news of late, and if they didn't see it in the news then many Australians would have seen their Facebook content and platforms disrupted. We know that this code has been more than three years in the making, spearheaded by the ACCC through the digital platforms inquiry. It is Australia's attempt to address the decline in public interest journalism by capturing news media revenue from dominant digital platforms, as other jurisdictions have attempted to do with varying degrees of success.

From the outset, Labor has indicated in-principle support for a workable code to address the bargaining imbalance between dominant digital platforms and Australia's news media. On that note, Labor supports the bill to establish this mandatory code of conduct to address this imbalance. However, we note that the code of conduct does not preclude parties from their own commercial negotiations or reaching deals outside the code, and I look forward to hearing more from the government about that later, as we note that seems to have been happening. The bill has a framework to empower the minister to designate certain digital platform services with a significant bargaining power and to empower ACMA to register certain news media businesses that meet certain thresholds so that those parties may be brought together to arbitrate, negotiate and bargain in good faith to reach binding agreements or access an independent arbiter to determine remuneration under final offer arbitration, should they be unable to reach agreement. We also see that the bill will enable digital platforms to publish standard offers which provide smaller news media businesses with a pathway to accessing those agreements, as well as setting minimum standards for digital platforms, including having 14 days advance notice of algorithm changes that might impact news media businesses. We note that the code will be reviewed within one year of the commencement of the bill.

The Labor Party have extended constructive in-principle support and we see that the government has signalled the consideration of amendments. However, I think the minister tabled some amendments to the explanatory memorandum. I'm unaware whether they have tabled or signalled any amendments to the bill itself in this chamber. We saw that the government circulated amendments for debate in the House on 17 February and described those amendments as 'a number of clarifications and technical amendments'. Progressing from there, we supported the bill as amended by the government in the House. But we stand here today with still a number of questions for the government on how it intends to implement this law in practice. These questions are particularly in relation to what digital platforms and services will be designated under this new code and when. Those questions from the Labor Party remain outstanding. As late as today we have been waiting to find out whether you would amend the bill further. We've seen Treasurer Frydenberg say that he is continuing discussions with Facebook chief executive Mark Zuckerberg about the outstanding issues within the code. He indicated that some amendments might be made. But we see that the government has not elected to amend the bill. Labor is of the view that, for the government to ensure that a bill of such consequence in a negotiation context be readied for debate in this parliament, it's not good enough that these issues have remained unclear until now. I'm assuming that no amendments are to be made.

For many months now Google and Facebook have expressed concerns that the code wasn't workable and explained that they may withdraw products and services from Australia if their concerns were not addressed. Indeed, we've seen news that Google has been working to land deals with Australian news media publishers, which is a welcome thing. But it appears that there is also some kind of understanding that's been negotiated between Google and the government when it comes to the future designation of Google services under the code. However, we see that Facebook continues to express serious reservations about the bill, and somewhat of an explosion of that has impacted on many Australians' access to information.

Facebook took the unprecedented world-first step of restricting publishers and people in Australia from sharing or viewing Australian and international news content. But we see also that there was a large-scale overblocking of material not subject to the code, including the pages of health, emergency and community services, and we'll need to discuss these issues further in the committee stages. Millions of Australians are understandably aggrieved that Facebook blocked them from accessing content, including important community services, in the midst of a pandemic. Issues like this need to be fixed as a matter of urgency. Blocking news services subject to the code could persist, impacting large mainstream media companies as well as smaller publishers. So we need to call on the government today to do its job, to craft a workable news media code that supports the media without undermining our digital economy or disrupting millions of Australian citizens and small businesses, as we have seen, because a great many communities benefit from sharing information on these platforms.

In the additional comments to the report of the Senate inquiry into this bill, Labor senators cautioned, very strongly, that the withdrawal of Google search and Facebook news sharing from Australia would disrupt many millions of Australians who use these services every month and more than a million small businesses that are relying on these platforms as part of their rebuilding after COVID. The delay and uncertainty with these processes has dragged on, and we've seen the disruption to millions of Australians of the services they access online.

Labor very much affirms that Australian sovereignty should be respected and that Australian law should be well crafted, proportionate and fair. We don't say that the government should respond to threats from digital platforms but we do call on the government to do its job—the job it said it would do—and find a way to support the media without disrupting millions of Australians and small businesses. Labor's been very much outcomes focused during this debate. We want a code that's about ensuring the sustainability of public interest journalism and the importance of the fourth estate, in light of the ongoing disruption to the news media that we've experienced over some decades, and its traditional business models, and that's further been disrupted by the power of the digital platforms we're discussing in this legislation today. It is, ultimately, about having a healthy, functioning democracy, which means we need access to news and information.

As to the potential impact of this legislation on news media businesses, digital platforms, small businesses, citizens and consumers, I have to say that the government should have had its ducks in a row a lot earlier, rather than seeing the chaos of last week. We know that there's still a great deal of uncertainty about the future of designation of the platforms and services, which will remain, under this legislation, a matter of ministerial discretion. So we don't know what further disruption we might see as part of future negotiations if the government gets this wrong. Not all Australian news media businesses have struck deals, as we know, with the digital platforms, and the passage of this bill may impact their relative negotiation position with those platforms. We remain concerned about this and we want to see balance.

It's not clear to us how the government will achieve the intention of levelling the bargaining position between the news media and digital platforms if certain services are not designated and the negotiate-arbitrate provisions of the code do not apply. This remains to be seen.

For this reason, Labor recommends the government use precise language in its public statements regarding what designations it intends to make under this code. We want to save any misunderstanding or unnecessary uncertainty for the media, digital platforms, small businesses, citizens and consumers who may be impacted—and they look very likely to be impacted. It goes without saying that the government needs to be judicious when it comes to making designation determinations under this code once it's passed.

There's a great deal of stakeholder concern with the bill. We note that the corollary of addressing the dominance of digital platforms could involve potential impacts beyond the news media, and the outcomes of this might be unknown. Many small businesses, small and medium news media, publishers, citizens and consumers are worried about these impacts. The government's indication by media release on 8 December that the code will apply to Google Search, combined with the minister's subsequent enthusiastic promotion of alternative search engines, such as Microsoft's Bing and DuckDuckGo, caused many Australians and small businesses uncertainty and worry about the potential impacts of this legislation, noting Google's threat to withdraw their search engine from Australia. So we see a great deal of concern from stakeholders expressed should Google Search withdraw—and should Facebook also withdraw news from Australia—in response to the passage of this bill. The disruptions would be very real, and that's despite the alternative search engines and social media platforms that are available. We're very used to the dominance of Facebook and Google in this regard. I'd like to thank all of the constituents for reaching out to us in the Labor Party about those concerns.

Reporting has recently referred to the withdrawal of Google Search from Australia as a 'death sentence' for small to medium enterprises. I don't have time to go into the detail of many of the concerns, such as how much revenue, if any, will be invested in additional journalists, with the exception of the ABC, which is committed to investing in regional services should it be able to access revenue from arbitration and what economic loss to the community there would be should Google or Facebook withdraw services. We can see that some mainstream businesses will benefit from increased traffic and advertising on their news products, but there are also risks to small and independent businesses, who may lose referrals, and media diversity could be undermined rather than strengthened. We in Australia have one of the most concentrated media markets in the world, and search engines and social media are absolutely instrumental in accessing news and information and ensuring that we have access to a diversity of sources both domestic and international. Other reforms that this government has put forward have not been achieved, and there's a lot more to do. We're pleased that evidence that work on the code to date has improved the responsiveness of digital platforms to the news media, but this is not an end in itself.

Finally, we support this bill. The government needs to act on the balance of the recommendations of the report that has prompted this legislation. In closing, I move the second reading amendment standing in my name:

At the end of the motion, add: ", but the Senate:

(a) notes that:

  (i) Australia has one of the most concentrated media markets in the world,

  (ii) since the Government's changes to media law in 2017, there have been alarming contractions and warning signs of market failure in Australia's media landscape, and

  (iii) the Bill was introduced 18 months after the ACCC delivered the Final Report of the Digital Platforms Inquiry in June 2019 and does not address all of the ACCC's recommendations to support public interest journalism; and

(b) calls on the Government to:

  (i) do more to support public interest journalism in Australia as a matter of urgency,

  (ii) deliver a support and transition package to assist news media publishers unduly negatively impacted as a consequence of this Bill, and

  (iii) make appropriate provision to ensure the viability of AAP newswire as a matter of priority".