Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (5) on sheet PG138 together:

(1) Schedule 1, item 1, page 8 (lines 10 to 13), omit subsection 52E(3), substitute:

(3) In making the determination, the Minister must consider:

(a) whether there is a significant bargaining power imbalance between Australian news businesses and the group comprised of the corporation and all of its related bodies corporate; and

(b) whether that group has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses (including agreements to remunerate those businesses for their news content).

(2) Schedule 1, item 1, page 8 (after line 15), at the end of section 52E, add:

(5) Before making the determination, the Minister must give the corporation notice in writing that the Minister intends to make a determination under subsection (1) specifying the corporation and a particular service or particular services.

(6) The Minister must not make the determination before the end of the period of 30 days starting on the day on which the notice under subsection (5) is given.

(3) Schedule 1, item 1, page 24 (after line 3), at the end of section 52ZC, add:

(4) Subsection (2) does not apply in relation to differentiation if:

(a) there is an agreement between:

  (i) the responsible digital platform corporation, or a related body corporate of the responsible digital platform corporation; and

  (ii) a corporation that is registered (or is eligible to be registered) under section 52G and, either by itself or together with other corporations, operates or controls a news business; and

(b) the agreement provides that a corporation mentioned in subparagraph (a) (i) will ensure that remuneration is to be paid to the news business for the making available of the news business' covered news content by the digital service; and

(c) the differentiation arises solely from the amount of that remuneration.

(5) Subsection (2) does not apply in relation to differentiation if:

(a) there is an agreement between:

  (i) the responsible digital platform corporation, or a related body corporate of the responsible digital platform corporation; and

  (ii) a corporation that is registered (or is eligible to be registered) under section 52G and, either by itself or together with other corporations, operates or controls a news business; and

(b) the agreement provides that:

  (i) a corporation mentioned in subparagraph (a) (ii) will ensure the provision of a specified type of coverednews content to be made available by the digital service; and

  (ii) a corporation mentioned in subparagraph (a) (i) will ensure that the content is ranked preferentially when the digital service distributes the covered news content; and

(c) the differentiation arises solely from that preferential ranking.

(6) For the purposes of this section:

(a) treat the reference in the definition of news source in section 52A to "it produces" as instead being a reference to "it regularly produces"; and

(b) treat the reference in that definition to "news content" as instead being a reference to "covered news content".

(4) Schedule 1, item 1, page 26 (after line 26), after Subdivision B, insert:

Subdivision BA—Mediation

52ZIA Obligation to participate in mediation

(1) This section applies if:

(a) the bargaining parties have not reached agreement over each core bargaining issue within 3 months after the notification was made for the purposes of subsection 52ZE(1); or

(b) the bargaining parties agree to refer the core bargaining issues to mediation under this Subdivision.

(2) Each bargaining party must participate in a mediation about the core bargaining issues.

(3) To avoid doubt, each bargaining party must comply with section 52ZH (good faith negotiations) in respect of the mediation.

(4) The mediator is to be appointed by the ACMA.

52ZIB Rules about conduct of mediation

(1) The regulations may set out rules relating to the conduct of a mediation under this Subdivision.

(2) A mediation under this Subdivision is to be conducted according to those rules.

(3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

(4) Without limiting the scope of regulations that may be made for the purposes of subsection (1), those regulations may:

(a) set out rules relating to the payment of the costs of the mediator; and

(b) without limiting the scope of paragraph (a), specify who is to pay those costs.

52ZIC Termination of mediation

(1) A mediation under this Subdivision terminates if:

(a) unless paragraph (b) applies—2 months have passed since the start of the mediation; or

(b) if the bargaining parties agree to a 2-month extension of the mediation—4 months have passed since the start of the mediation; or

(c) the mediator decides to terminate the mediation in accordance with subsections (3) and (4); or

(d) the bargaining parties agree to terminate the mediation.

(2) To avoid doubt, the bargaining parties can only agree to one extension in accordance with paragraph (1) (b).

(3) The mediator may decide to terminate the mediation if, having regard to the conduct of the bargaining parties in the mediation, the mediator considers that there are no reasonable prospects of the bargaining parties reaching agreement over each core bargaining issue.

(4) The mediator may decide to terminate the mediation whether or not a bargaining party has asked the mediator to do so.

(5) Schedule 1, item 1, page 27 (line 26) to page 28 (line 5), omit subsection 52ZL(2), substitute:

(2) The bargaining party that is the bargaining news business representative may give a notice to the Commission that arbitration about the remuneration issue should start, if:

(a) both of the following conditions are satisfied:

  (i) mediation in respect of the core bargaining issues has terminated in accordance with section 52ZIC;

  (ii) the bargaining parties had not reached an agreement about terms for resolving the remuneration issue before the mediation terminated; or

(b) the bargaining parties have agreed to arbitration about terms for resolving the remuneration issue no earlier than 10 business days after the notification referred to in paragraph (1) (a) was made.

These amendments will make clear that a decision to designate a platform under the code must take into account whether a digital platform has made a significant contribution to the sustainability of the Australian news industry through reaching commercial agreements with news media businesses. A digital platform will be notified of the government's intention to designate prior to any final decision, noting that a final decision on whether or not to designate a digital platform would be made no sooner than one month from the date of notification. Nondifferentiation provisions will not be triggered because commercial agreements result in different remuneration amounts or commercial outcomes that arose in the course of usual business practices. Final offer arbitration is a last resort when commercial deals cannot be reached, by requiring mediation in good faith to occur prior to arbitration for no longer than two months.

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

We've had some radical changes to this legislation overnight, and of course there are a lot of questions, both from Labor and, really, the Australian community as a whole. I will ask at the outset: does the government intend, in this case, for the threat of regulation to do most of the work in levelling the imbalance in bargaining power between news media and digital platforms? Is it the instrument itself that will have this influence, or is it now the threat of regulation that is going to level that imbalance in bargaining power?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It's a matter for the minister as to whether the digital platforms get designated under the code.

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

Yes, we do understand that, but clearly there seems to have been a flurry of activity in terms of deals being done now because of the so-called threat of platforms being designated. How do you relate what's currently going on to those deals being made and addressing the imbalance in bargaining power?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government has always said that it's preferable if deals can be done outside of the code, and we've seen a number of media organisations that have already entered into letters of intention with Google. Yesterday of course Seven West Media announced it had entered into a letter of understanding with Facebook. This is all good news. We expect the digital platforms to continue their efforts to enter into agreements with more news media businesses. They can do this outside of the code by putting a standard offer on the table which publishers can choose to accept or as a catalyst to reach a commercial agreement. It's important to remember that, in deciding whether to designate a digital platform, the Treasurer will have regard to whether the digital platform has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content.

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

We've seen big sticks from the government in relation to energy in the past and an argument that the threat of a big stick would bring people to negotiate and address issues. Why was this done in a rush in the last few days as opposed to having these kinds of principles embedded in the legislation earlier? Couldn't the outcome have been reached much earlier than today?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The aim of these amendments, obviously, is to provide more clarity to the digital platforms and to the news media businesses about the way the code is intended to operate and to strengthen the framework for ensuring news media businesses are fairly remunerated. It's all about clarification. These amendments were done on the advice of Treasury and after hearing submissions that were made to the committee that was scrutinising this bill.

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

How will it provide clarification if these deals are done outside the code and its reporting regime?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There will be a review of the code after a year.

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

Is the review enlivened if nothing is designated?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Yes.

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

The code and the amendments make it clear that a decision to designate a platform must be taken into account in terms of whether a platform has made a significant contribution through commercial agreements with news media businesses. What thresholds will apply to the concept of a significant contribution?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The platforms will be asked to provide a report on the contribution they have made and then the decision to designate will be made by the Treasurer. A final decision to designate or not designate a digital platform will be made no sooner than one month from that date of notification.

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

That doesn't really tell me what the threshold of a significant contribution is. Does that mean that the minister, in assessing a significant contribution, has full access to the contracts that have been signed, or are they commercial-in-confidence?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The platforms will have an opportunity to make that information available before the decision is made. That's up to the platforms.

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

What if the platforms don't want to supply that information?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government is giving the platforms an opportunity for procedural fairness here. The decision will then be the Treasurer's, depending on that interaction between the platform and the Treasurer.

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

Can I assume, therefore, that the only way of getting the platforms or, frankly, even the media businesses that have done deals to demonstrate to the minister what significant contribution they have made would be the threat of designation?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There have already been public statements on deals that will be made. It will be up to the platforms to then demonstrate to the minister that that wouldn't be necessary.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I think Senator Pratt is narrowing in on what is quite a concerning new development in this media bargaining code story. It appears as though we've gone through a situation where the gauntlet was laid down and the government came up with strong legislation that would assist public interest journalism. Then what happened was that Google and Facebook pushed back. We saw Facebook do so in a very terrible manner in the last week or so. I was moved by some of the Prime Minister's statements—for example, when he said:

We will not be intimidated by this act of bullying by Big Tech, seeking to pressure parliament as it votes on our important News Media Bargaining Code.

He also said:

I would just say to Facebook: This is Australia. If you want to do business here, you work according to our rules.

That's what the Prime Minister said.

In the meantime, the Treasurer has gone around and started a discussion with these tech companies, and they've effectively managed to get to a point where bargaining is taking place and we're getting some good results for the big players: the Murdochs and the bigger news organisations. What this amendment signals to everyone is that as long as those guys are okay the minister will not designate as per the act. What's going to happen? We can see here that this legislation will pass, the minister won't designate because the deals will have been done with the big guys, and the little guys and the regional guys are going to miss out. That's what this amendment says. You know what? In a year's time, when Mr Murdoch says, 'I need a bit more money,' the Prime Minister is going to remind everyone of this legislation and threaten designation, there will be another deal and Murdoch will be happy. But the little guys will miss out again. That's exactly what is happening here. No-one should have any misconception about exactly what's going on. If I were a betting man—and I'm not—I would bet you folding money that if Louis Mayfield of the Whyalla News, a good journalist, calls up the Prime Minister and says, 'Google isn't negotiating with me; please designate them,' he'll get a very different story to the one Mr Murdoch gets.

This signals a complete backdown by the government in the face of the pressure. It is inconsistent with what the Prime Minister has indicated publicly. It was hollow rhetoric from the Prime Minister. This is a most concerning amendment. It lowers the threshold. So I ask the minister: is it the intention of the minister, based on current facts, to, once it receives royal assent, designate Facebook and Google in accordance with the act?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The decision will be made based on the information that is available at the time and in accordance with advice from the ACCC. I should remind you that this amendment has not taken out final offer arbitration from the code. In fact, final offer arbitration is still a last resort, when commercial deals cannot be reached, by requiring mediation in good faith to occur prior to arbitration for no longer than two months. Importantly, the amendments strengthen the hand of regional and small publishers in obtaining appropriate remuneration for the use of their content by the digital platforms.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

That only happens if the company is designated—that is, if you designate Facebook and Google. This amendment raises the threshold, and we have no understanding of what it means. Minister, if a number of smaller players are dissatisfied, is that cause for the minister to make a designation or is it only when it's Channel 9, Channel 7, The Australian and all the big players? Is it only when they have a complaint that suddenly the minister is moved? How does the little guy, in these circumstances, make representation to the minister that they are being ignored by the behemoths that Google and Facebook are?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

This is all about outcomes. We have made our expectations very clear, and the news of the recent deals that have been done is proof that Google understands our expectations and, indeed, now so does Facebook. The government has not indicated that it will hold off on the designation process. We're very much focused on getting the code through parliament, first and foremost. We have indicated that Google and Facebook can reach commercial agreements outside of the code. It strengthens the hands of the digital platforms to make a case to the Treasurer that designation might not be needed. We have been very clear that nothing currently prevents Google or Facebook from reaching a commercial agreement outside of the code. Indeed, this bill provides a pathway for such deals. The bill is obviously still in parliament—we want it to become law—so it's premature to say that a decision has been made about a designation.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

What representation do the small guys get in relation to this? What is the process for all of the regional players who are not making headway with Google or who feel dissatisfied? Remember, the point of this legislation, as originated from the ACCC, was to address a concern about an imbalance. That imbalance will still exist if the companies are not designated, so the regional players will sit down with Google and Facebook and get nowhere. The ACCC says that's exactly what will happen.

What about the small guys—some of the smaller players who are confronting this monopoly, as described by Mr Sims of the ACCC? If you do not designate these larger companies, there is no mechanism for arbitration for them. My question is: how do the smaller players get access to the minister to be able to make representations to say, 'This threshold has been met,' because the small guys have effectively been mistreated and been subject to the very large corporations that Google and Facebook are?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government's amendment to the bill requires the Treasurer to consider: whether there is significant market power imbalance between Australian news media and the digital platform and whether the digital platforms have made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content. This means that the Treasurer will have regard to the deals that Facebook and Google have done with news media businesses, which will include agreements they have entered into with regional publishers who fall within the parameters of the code.

In addition to being able to reach direct deals with the digital platforms, the code provides an option for default offers to be made to publishers and an opportunity for smaller publishers to come together to collectively bargain. Facebook restoring news pages also helps small community news that operates solely within the Facebook environment or relies heavily on Facebook to disseminate news to local communities. I want to remind you that this code has not yet been passed into law, so I think that some of your questions are premature. There is a review that is taking place in 12 months time.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Again, it goes to what processes you're putting in place to make sure the smaller players, the regional players, are able to make proper representation to the Treasurer, in relation to these amendments, to make sure that it's not just the big boys that are getting looked after. I'm sure that Rupert Murdoch does have the Prime Minister's phone number; Louis Mayfield of the Whyalla News probably doesn't. I'm really just trying to understand what mechanisms the government will put in place to make sure the smaller players can get access to the Treasurer to make their concerns known and to pressure the minister, in making the designation, to be informed by the smaller players, not just the big players.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Senator Patrick, as I mentioned to Senator Pratt earlier, the digital platforms will be compelled to report to the Treasurer on the deals that have been done or that are underway, and it will become apparent from those reports whether a designation is necessary.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I, too, have some concerns about the government amendments as circulated, particularly to schedule 1, proposed subsection (3)(b). I am worried that this does not give significantly enough assurance to small, medium and regional media organisations that their welfare—for lack of a better word—and their ability to negotiate with Google and Facebook have been considered before the government makes any decision either to designate or not designate under these new provisions. I am extremely worried. Whether or not the government's intention is to keep small, medium and regional companies out, it looks like they will fall between the cracks. I wonder whether the government would be opposed to simply adding the words 'small, medium and regional' to make it absolutely crystal clear.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The legislation talks about the Australian news industry, which, of course, already includes small, medium and regional publishers. So they are already encompassed in that legislation.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I understand that. But there is a concern about the power imbalances not just between these big tech giants and Australian media but between the big media organisations and the small and regional media organisations. I don't think it would be particularly difficult for this government to send a clear message that small and regional media are being looked after if, indeed, that is what your intention is.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Senator Hanson-Young, I don't want to repeat myself and give the same answer that I've given to Senator Pratt and Senator Patrick. But I think the government's made it very clear that the amendments that we've put forward here are to improve the opportunities for regional and smaller publishers, because a decision to designate a platform under the code will now take account of whether a digital platform has made a significant contribution to the sustainability of the Australian news industry as a whole.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Perhaps we could just step back a little bit and consider how this is going to work in the real world in terms of how small and regional companies will now engage in negotiations with either Google or Facebook in the absence of any designation by the minister. Could the minister outline for me how small publishers such as Women's Agenda, Junkee or Her Canberra would be able to use the provisions in this piece of legislation to ensure that Facebook come to the negotiating table and are prepared to speak about ensuring that they too get paid for their content?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Those publishers will have to register under the code, and then they will fall under the criteria for the reporting that's coming back from the digital platforms when the decision for designation is made.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

When you say 'register', do you mean register with the ACMA, and is there a cap as to who is in and who is out?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

With the ACMA there are eligibility criteria. I am uncertain as to whether there is a cap, but there are criteria.

The CHAIR: Centre Alliance has advised that they will not be moving their amendments. Senator Pratt, you have the call.

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

I was asking about thresholds in relation to the concept of the significant contribution, and I think that integrates well with questions that others have asked. Has the government given any undertakings or signals to Facebook, Google and the news media around thresholds that might be attached to the significant contribution? We have been talking about regional media. Can a threshold be met if, for example, it only included news outlets with a national footprint as opposed to those who have a regional footprint?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There is a benefit in flexibility in the definition of significant contribution. The range and breadth of the deals that are done, as well as the type of outlets and publishers that the deals have been done with, will be taken into account.

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

So the breadth of the deals that are done will be taken into account. What about the breadth of the deals that are not done—for example, a digital platform that does deals with national media outlets but doesn't cover news outlets that have a regional focus and only a regional footprint?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

That would be something the Treasurer would take into account in those decisions.

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

Where in the legislation does it say that they would take that into account? How do we know that these will be addressed within the thresholds of a significant contribution? Have undertakings been given to organisations such as Facebook and Google that they must look to making these kinds of deals in order to meet that threshold?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Again, I go back to that issue of flexibility and ensuring that the information that is made available at the time is taken into account. The ACCC reports to the Treasurer, and the decision will be made on the information available at the time. It's very hard to talk about hypotheticals in this situation, though, and we don't want to be limited by specifics in these circumstances.

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

I understand that. Nevertheless, we have had a radical amendment overnight and things have purportedly settled down with Facebook. In that context you would expect that there have been some signals or undertakings given to Facebook, Google and news media around what those thresholds look like. I think the Senate, in considering this legislation, has a right to know what those undertakings or signals are.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There have been no undertakings provided around thresholds, and, moreover, we would disagree with you quite vehemently that these are radical amendments. We haven't taken final offer arbitration out of the code. That still remains and it's there as a last resort when commercial deals can't be reached, by requiring mediation in good faith to occur prior to arbitration for no longer than two months. The most important thing about these amendments is that they will strengthen the hands of regional and small publishers in obtaining appropriate remuneration for the use of their content by the digital platforms.

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

In that context, we know we've got competing local news media. It's great to have a diversity of newspapers across our suburbs and our towns. It's terrific. But sometimes it's difficult for two news outlets to be sustainable. We've seen some fall by the wayside. Is it good enough, for example, for a digital platform to make a deal with just one syndicated owner covering, say, all the regions that they represent and leave the other player and their competition out of such a deal?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think the most important issue to cover here is that the code isn't yet law, and the fact that these deals are already being struck is, in fact, a good sign. Just because the deals have not been struck yet with smaller or regional media companies, that's not evidence to suggest that they won't be and that that will remain the case, or that the standard offers won't be made by those digital platforms. We're well aware that discussions are taking place right now and that the digital platforms are taking steps to address this issue.

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

In that context, what would it mean in terms of those thresholds if such a deal said, 'Okay, Victorian newspapers have done deals—we think that's significant enough to meet the threshold—but Queensland has been left out.' I still don't have a clear indication of how you're going to judge the significant contribution.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I'm not entirely sure we can get into the details of those sorts of hypotheticals. One of the reasons we've maintained this flexibility is so that all of those hypotheticals—whether they be raised by you or Senator Hanson-Young or Senator Patrick today—can be dealt with efficiently and fairly.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Minister, do you have a working definition of 'significant'?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

That is an issue for the Treasurer to consider at the time, with the information that he has available to him.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Minister, would you be able to outline for us today what arrangements have already been struck between the big tech companies and media organisations, which would fall outside this code, of course, because they've been struck prior to it, but would fall into consideration under this particular clause in schedule 1, in terms of considering the significance?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There is a letter of intent between Google and Seven, Nine, The Guardian and 74 publishers. Obviously we've heard Facebook has a deal in the offing with Seven, and apparently there are more to come.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Just to clarify, it's Seven News, not seven publishers?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Seven West Media, yes.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is there anything that falls outside these amendments that was part of the negotiation between the Treasurer and Facebook? Is there anything else that Facebook has demanded in this arrangement in order for them to put Australian news back on their platform?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Certainly not that I'm aware of.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Did Facebook see a copy of these amendments prior to them being circulated in this chamber?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is there any document which outlines the intentions of the government in amending this legislation that has been given to Facebook prior to these amendments being circulated?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think that the Treasurer has made it pretty clear that he has been in conversations with Facebook not just over the weekend but for weeks in advance of this legislation, so I would imagine that a lot of issues were canvassed but that doesn't determine the government's amendments.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

So just to be clear, is there any written agreement between the Australian government and Facebook?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is there any agreement between the Australian government and Google?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There have been good-faith negotiations, and Google have made their intentions and their commitment to Australian news media clear to the Treasurer.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I go back to the issue of the designation power and the consideration of what arrangements perhaps are in place before that power is used. Could the Minister outline the role of the ACCC in helping to advise whether there is still a power imbalance between the big tech companies and the media organisations?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The Treasurer will avail himself if he needs to with information from the ACCC. He can request that information from the ACCC as to whether there is a power imbalance that is remaining between the digital platforms and news media outlets.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

What is the process for a small or a regional publication if, after this legislation passes today, they are not able to even get in the room with Facebook, get a call back or an email back? I mean, I must say, I've spent months now working on this issue with a number of small and independent publishers, and their constant frustration has been the inability to even get around the table with a number of these tech giants. Facebook in particular has been by far the worst when it comes to its attitude towards Australian publishers, particularly the smaller players, refusing to even get back to them, to answer their calls and their queries, let alone sit around the table and have a genuine negotiation.

This legislation is meant to try and give a bit more fire power to these publishers in this exchange, in this process of negotiation. I'd just like to know what happens if Facebook still refuses to contact, sit around the table or behave in a fair and decent manner, particularly with small publishers? I'm not worried about the big players; they will look after themselves—they already are. I'm worried about making sure there is a genuine line of communication and good faith between these tech giants and the small publishers, who, let's be honest, are the ones that really do deliver the local news, the information to their communities and who curate it sometimes in a narrow way but give a very significant contribution to their audiences and their readers.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I want to reiterate that the code is obviously not yet law and the fact that there are deals already being done—and, yes, they have been with larger news outlets—is a good sign. The fact that deals haven't been struck with the smaller and regional media companies doesn't necessarily provide evidence that that will remain so. In fact, we expect standard offers will be made by the digital platforms. Certainly, the Treasurer has been very clear that in his discussions with Mr Zuckerberg, both over the weekend and prior to that, Mr Zuckerberg has indicated a willingness to negotiate in good faith with Australian news outlets.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is there a current working list of publishers which either are registered or will be registered in relation to being able to use these processes to get Facebook to the table to negotiate? Is there a working list that the government is aware of?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There is not a working list, but the explanatory memorandum makes it clear that there are between 100 and 200 Australian news publishers out there that would fall within the eligibility criteria.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

So there are between 100 and 200 publishers that could be eligible, fall within the criteria. I guess what I'm getting at is, if this legislation passes and the government is not intending at this stage to use the power of designation, we need to make sure that this list of publishers actually understand (a) what they need to do and (b) that, if they're not getting anywhere, someone in Treasury's office, someone in the communications minister's office or somebody in the ACCC is actually looking out for them and helping them step through the process, so that they don't get left out in the cold.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The Australian government have not said that they will not designate. This is all about outcomes. We've made our expectations very clear, and the news of those recent deals has actually demonstrated that the large digital platforms understand our expectations.

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

In the context of designation, if the government elects not to designate any platforms or services—and we did ask this question of the minister in the House and it was not a clear answer—will ACMA still register news businesses under the code? To express that in another way, will the ACMA still register news businesses in order to assist digital platforms like Google when it comes to providing standard offers?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Yes, ACMA will still register businesses under the code.

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

So businesses that are wondering where they fit in this in terms of their definition of whether they would be eligible as public interest journalism should seek to register with ACMA. How will ACMA make decisions about who will and won't be registered?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There are eligibility criteria under the code:

To participate in the Code, a corporation must apply for their news business to be registered by the ACMA. An 'applicant corporation' seeking to register a news business must also apply to be registered by the ACMA as a 'registered news business corporation' and demonstrate that they operate or control that news business, either by themselves or together with other corporations.

This is outlined in the explanatory memorandum, points 1.51 to 1.57, under which news businesses can participate in the code.

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

It seems to me that there's a specific business structure in mind here. Do you expect local news organisations that operate under different models to be supported to be able to change their structure so that they can be assessed?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Point 1.56 in the EM describes a news business as meaning 'a news source or a combination of news sources'. A 'news source' includes, it says:

I think that's a rather broad definition and a considerable catch-all.

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

How many businesses are currently registered with ACMA, and will they have extra resources? Do you expect all of those types of businesses to now register with ACMA so that they can be made available to approach Google about accessing their standard offers, just as an example?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Businesses can't be registered until this code comes into the law, so we're getting a little chicken and egg here, but there is an expectation that that will be the case.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Just a very quick question to start with, and excuse my lack of knowledge here because of the late tabling of these amendments: was there an explanatory memorandum tabled with these amendments?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Yes, I tabled it last night.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Thank you very much. That's helpful. My staff will no doubt try and get that to me. I want to go to proposed subdivision BA, which talks about mediation. My understanding of the history of this is that it was originally in the bill but got taken out, and for that reason I haven't really paid enough attention to this. I want to get an understanding about the mediation and where it fits into the total schema in terms of companies negotiating with Facebook and Google: how it applies in circumstances where the company's not designated, how it applies if it is designated—so if Google and Facebook are designated—and what happens in the event that mediation fails.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

They can negotiate outside of the code. They can negotiate inside the code for a period of three months. If they cannot come to a satisfactory outcome within that three months then they go to mediation for two months. If they don't reach an agreement there then they go to final offer arbitration.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Is the mediation option only available to them in circumstances where a company like Google or Facebook is designated, or is the mediation available to them without the designation?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The provisions in the code are only available on designation.

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

In the context of arbitration, if the minister considers designating a company on the basis of, say, publishers that have missed out on being able to secure deals, will those companies that already have deals be able to join in the arbitration or will they be excluded?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

If a news media company already has a deal it wouldn't be part of any negotiations with other news media companies and the digital platform.

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

Organisations might revisit the fairness of such a contract. There's nothing in this that would overturn the fairness of those contracts and would cause the minister to assess whether those deals are fair? I know, indeed, that part of the assessment would have to be whether or not the digital platform has made a significant contribution. So if a digital platform puts forward, 'We've already cut these particular deals; we think that's significant,' and you've got a whole bunch of new players who want to participate in arbitration because they've been locked out, surely that might indicate that deals that have already been done aren't significant enough to qualify as a significant contribution and therefore they should be revisited.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Deals are a commercial matter between two parties, whereas designation is entirely separate from that and should remain so.

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

I can't see, with respect, Minister, how they can be separate, because it still relies on the minister to assess whether the existing deals that have been done qualify as a significant contribution. That means, in some context, the minister needs to assess the adequacy and fairness of those deals.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The Treasurer will receive a report from the parties involved and will make an assessment, based on the deals that have been done already, as to whether a significant contribution has been made. But it's important to maintain the flexibility rather than define it; otherwise, that will limit opportunities for smaller and regional publishers.

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

I still want to revisit whether these deals are binding. For example, a digital platform does deals that suit big news media outlets—they're already dominant players—really well. There are smaller players that feel forced into making deals because they can see, for example, that the existing advertising revenue they get from other sources is going to be gobbled up and stolen by news media deals between the big players and platforms. They try to save themselves from this by signing a deal. The minister has to assess whether that's significant. Then you get other players who aren't part of that deal with that platform that say, 'We don't think we're being treated fairly; we can't get a deal at all.' How can you not consider whether the minister needs to revisit the deals that have been done when assessing significance?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The whole point of this legislation is not about imposing terms on the parties; it's to ensure that where a deal can't be struck there is a pathway for arbitration to take place.

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

If all news media, all of the companies registered with ACMA who are news businesses, cut deals but are still driven into unsustainability, how do they enliven their negotiating power to bargain if they're already locked into unfair contracts that have no access to arbitration?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think we're going to commercial arrangements that are already in place, and that's not the purview of this legislation. This is for those arrangements that aren't yet in place and should be. I think we're now getting back into the area of hypotheticals, and I don't think it's appropriate to talk about hypotheticals here. The code isn't yet in place. The fact that deals have been struck already with large media organisations is a good thing and is an indicator of the good faith these platforms will use in their approach to deals they will strike with smaller and regional providers.

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

So if deals that have already been enlivened or considered, with those news outlets making deals with digital platforms, currently, lock in unfair contract terms, the bargaining provisions of this can't be enlivened, despite the fact that the minister might assess that the contribution of the deals that have already been done wouldn't meet a threshold of significant contribution.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The deals that are being struck, or have already been struck, are being done so on the basis of commercial terms. Again, we're talking hypotheticals here. I'm not sure whether Senator Pratt has an example of a deal that's been struck on unfair commercial terms. Perhaps, if we could deal with specifics rather than hypotheticals, we could get a better answer for you.

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

Just to revisit this clearly, Minister, I'd like you to confirm, if the minister does not designate any digital platforms under the code, will ACMA still register news businesses? Will this registration process assist small publishers in accessing support for negotiations with digital platforms? And will this registration process assist the minister in determining whether there has been a substantial contribution to the sustainability of the Australian news industry?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

As Minister Fletcher made very clear, ACMA will still register businesses under the code.

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

Okay. In assessing the significant contribution of a digital platform, will that registration base of businesses form a basis for assessing that contribution in terms of those that have made deals, haven't made deals, good or bad?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think we're beginning to repeat ourselves. Yes, that is the case. Everything will be considered in making a decision about what sustainability means.

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

Will they do deals with those that are designated under the ACMA code? What if they do deals with outlets that are outside it? It would be difficult to see that happening, because they wouldn't necessarily be news media in terms of publishing standards et cetera, but I'm keen to know what happens if no deals are done with those registered news businesses?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Any deals that are done with businesses that aren't registered are entirely commercial decisions for the platforms and those businesses and not at all within the purview of this legislation, but, certainly, the Treasurer's decision to designate or not will occur with the understanding of those businesses that are registered with the ACMA code. And there are an awful lot of other factors as well to take into account before the Treasurer makes a decision to designate.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Continuing on this question, I'm trying to get some clarity around schedule 1(3)(b) and the new addition of the government's amendments in relation to the significant contribution. It's important that we talk specifics here. I have a lot of questions because, while I understand the argument the government are making—you're trying to keep it as broad as possible—sometimes you can make it so broad that people miss out, so I'm just trying to make sure people are not going to miss out. I want to know if a television channel that doesn't have links to a newspaper or a radio station—it's purely a standalone television channel in this country—was not included, if it wasn't able to strike a deal with Facebook or Google, would the government still consider Facebook or Google to have given a significant contribution to Australia's media landscape? Just to be clear, Minister, what I'm asking is: we don't have many channels, so, if one of the three commercial channels was not able to strike a deal, would the government consider Facebook and Google to have made or not made a significant contribution?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

That's a very specific question, and an awful lot more has to be taken into the context of the decision that the Treasurer will make at the time. One of the reasons why we've kept this so broad is so that people don't fall through the cracks and so that the net is cast far more widely.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Let's be clear. If Channel 10 is not able to strike a deal with Facebook, is that a problem for the government?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It would depend on the other deals that Facebook has struck with other news outlets, not just television channels and not just print media but far more broadly. It's a contextual decision and it should be a contextual decision.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

That I find extremely concerning—that, if one of the three commercial television stations is left out, the government will still be prepared to consider that Facebook has given a significant contribution. I find that not very reassuring. Our media landscape is highly concentrated as it is. There are not that many players, even in the medium space, let alone the large space. I can't imagine that people up in the gallery in Channel 10 right now are feeling very good about your answer. I'd like you to consider that again. Are you suggesting that, if Channel 10 were not able to strike a deal with Facebook but Channel 7 and Channel 9 were, that would be enough to tick a box for this government in terms of Facebook's contribution?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

We're not suggesting anything of the sort, and to do so is to create a hypothetical and then make it a fact.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

It wasn't a hypothetical.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It is a hypothetical, asserted as fact. This code is not yet in place. The fact that deals are being struck now is a good sign, not a bad sign, before this has even been legislated. So I wouldn't actually go out there frightening the horses and suggesting that the sky is going to fall, when the code is not yet in place. There are plenty of opportunities here for good work to be done, and I think that the digital platforms have demonstrated that in just the last few days and weeks.

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

Following up on that line of questioning: if the existing deals that are done needed to be rated as a significant contribution, would that leave an organisation like Channel 10 able to access arbitration or not? How would you assess 'significant contribution'? Is there any guarantee that those who are left on that list without deals registered with ACMA are going to have their rights enlivened in terms of accessing arbitration?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Again, I think we're going round in circles, because this has already been addressed numerous times. The issue of significant contribution is based on available information at the time. The fact that we haven't actually passed this legislation yet means that we can't define what 'significant contribution' means, because it hasn't come into play yet. It should be flexible. It should take all information into account, and it does.

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

Can you guarantee that this bill will support the interests of small and regional publishers?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government amendments will improve opportunities for regional and smaller publishers because the decision to designate a platform under the code will now take into account whether a digital platform has made that significant contribution to the sustainability of the Australian news industry.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Just going back to the hypothetical: in this chamber we always deal with hypotheticals, because we're always dealing with laws that have not yet passed that will have effect moving forward. I think it's reasonable for Senator Hanson-Young to put a proposition. Of course, you could say that the legislation wouldn't permit that, but, in circumstances where you can't say that, it's proper for us to explore how these laws may in fact play out, particularly in circumstances where you've just said to the chamber that the words 'significant contribution' have not been defined.

I find that extraordinary because drafters, when they use language, are precise in what they do and words like 'may', 'must' and 'reasonableness' tend to play out very significantly if a matter is brought before a court. It's very difficult, in these circumstances, when a minister is granted a discretion because the courts are very reluctant to play into those sorts of discretions and to interfere. It is important to understand what that means, and I find it almost unbelievable that in the drafting of those words there isn't a definition in mind in which the words 'significant contribution' were used. There must've been some discussion, reason or definition that sits behind those very important words in the provision.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Again, I go back to the importance of flexibility. In a fast-moving landscape like this where you have ministerial discretion, it's important to maintain that flexibility; otherwise, poor outcomes could be made as well as good.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

In the development of this legislation, the government were very clear in saying that this wasn't about news getting particular deals. However, it ends up that that's the effect of it. The root of this comes from the ACCC's recommendation dealing with what is effectively a monopoly, an imbalance in power. If a very large company does not become designated, we still end up with a proposition that the smaller, typically, country or niche media organisations are left in the very same situation that the ACCC warned against and was trying to remedy. Again, I'm very troubled by this provision and how it will affect the implementation of what the ACCC has raised as a concern. Does this not undermine the ACCC's desire to deal with huge imbalances between a small player and a large player because the Treasurer has found that in a number of different cases a deal has been done? However, it doesn't resolve the power imbalance for perhaps a smaller player that we want to have fostered amongst our journalist community.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No, Senator Patrick, that's not the case. In fact the Treasurer will take into account advice from the ACCC about significant power imbalances, and so this actually gives effect to the ACCC's recommendations as opposed to defying them.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Let's say, a couple of players attempt to contact—maybe they can't contact, as Senator Hanson-Young has suggested—Google or Facebook and they simply don't engage because they are small and perhaps insignificant in the minds of a very large overseas corporation. What if some smaller players—one in your home state, one in my home state—make representations to the Treasurer that they are still finding themselves in a situation where they're dealing with a goliath? Would that fit within these new provisions? Could the Treasurer make a ruling on the basis that these small players can't negotiate, or haven't been able to negotiate, and therefore make a statement that the significant contribution test has not been met?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Senator Patrick, I think you've just made the case for having ministerial discretion, and flexibility within that discretion.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I want to understand the nature of how that discretion will be exercised. It's not an unreasonable thing. The parliament is being asked to grant a discretion to the minister. It's not unreasonable to ask how that discretion may be exercised. We can do that by putting forward a few different examples and trying to tease out what discretion we are actually granting to the minister.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I understand what you are trying to do, Senator Patrick, but the problem is you can't, because decisions need to be made within the context at the time. What you can't do in these hypotheticals is describe the context at the time: what deals have already been struck, what the digital platform is and what the contribution to the sustainability of the Australian news industry has been that's being assessed. That can't be done, so your hypotheticals are simply impossible to answer in these circumstances.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

In terms of a significant contribution to the sustainability of Australia's news businesses and the Australian news industry, would it be a problem if one-third of Australia's television channels were not able to access remuneration in this way?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It would be a decision for the Treasurer, but I would imagine that would be a very significant consideration.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

We know that many of Australia's news publishers are moving more and more to video. At what point will the government consider whether to include Facebook Watch and YouTube in the discussion? Of course, not every television station in this country has a newspaper or a radio station as well; the ABC, SBS and Channel Ten primarily rely on content that is watchable. With Facebook Watch and YouTube not included, is the government giving consideration to a point at which that will be reviewed?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There are two issues there. The first is that the bill is specifically about news content, not general content, and I think that's an important distinction to make. The other issue is that this bill and current discussions about Google and Facebook have come as a result of the ACCC's recommendations and, from there, the digital platforms inquiry. Any future designations or digital platforms that would be considered for designation would also come from the ACCC's recommendation.

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

Drilling into the technical detail in terms of the old law and the new law, does the government regard distribution through a platform as a contribution? How will that be assessed in the context of a significant contribution? Does making a contribution require the exchange of revenue?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Can you give me a moment on that one, Senator Pratt? I have to admit that's something I hadn't considered. I would imagine that that would again be part of making sure this decision that we make is flexible and takes into consideration all aspects. I think that that's an important consideration to make.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Minister, are you seeking the call to continue your answer?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Thank you. Clause 3(b), the proposed amendment to schedule 1, item 1, page 8, says:

whether that group has made a significant contribution to the sustainability of the Australian news industry through agreements in relation to news content of Australian news businesses (including agreements to remunerate those businesses for their news content).

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

The new EM says that in the new law:

A responsible digital platform corporation cannot differentiate between news media businesses by reason of their participation in the code. However a responsible digital platform corporation can differentiate between news media businesses on the basis of a commercial agreement and can remunerate different news media businesses differently under different commercial agreements.

That's the new law. The current version, which is being replaced by these amendments, says 'a responsible platform cannot differentiate between news media businesses by reason of their participation in the code'. I understand that, therefore, remuneration might be different under different commercial agreements. How does that relate to agreements that might also affect the access of someone who has a deal versus someone who doesn't have a deal in relation to not just remuneration but also distribution?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Under the current drafting, the anti-avoidance provisions prevent digital platforms from retaliating against news businesses on the basis of having entered into an agreement to pay remuneration under the code. The plan is to clarify, via these amendments, that digital platforms would not be penalised from engaging in normal commercial practices such as paying different remuneration amounts to different news businesses and promoting or boosting a news business's news content as part of the terms of those commercial deals. The scope also of the news content that's captured by the anti-avoidance provisions is also clarified here. It will be made abundantly clear that a news source must regularly produce news content that's the subject of bargaining and arbitration. So that's the definition of covered news.

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

Thank you for your explanation. It doesn't mitigate my concerns. So if, for example, a digital platform does a deal with a local newspaper and says, 'We're going to help drive traffic and we'll complement other's advertising,' that's a great commercial deal. But the competing paper sits on the ACMA list without having struck a deal only to find that the competitiveness of the advertising deals that they'd normally get through their own revenue streams that have nothing to do with these platforms is now becoming undercut and less sustainable because of the kind of deals that have already been done. Previously, it said you can't differentiate between businesses by reason of their participation in the code. I'm now concerned, and I would like an explanation about how those commercial agreements for those that are left out isn't just about whether they're going to get a benefit of revenue but whether, in fact, that benefit is created and gobbled up from increasing the competitive pressure on the other media players. I want to know how you'll assess that issue. It seems to me that these deals might not contribute to a positive significant contribution. Indeed, they could undermine a contribution if players that are left out of the deals become more unsustainable.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The non-differential provision doesn't impact normal commercial deals. It's a matter for the ACCC to apply the law there. The provision only deals with negotiations that are made under the code.

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

Okay, but I think this emphasises my point. If you've got deals that are made outside the code, you can assess whether those deals are significant in the context of media sustainability but you don't have access to see what's inside those deals in terms of working out whether they have actually increased the competitive pressure on those that have been left out of deals.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

In enforcing the code, the ACCC has information-gathering powers that will cover the non-differentation provisions.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would just like the minister to outline to us how the standard offer process will work and what assistance publishers will have in accessing the standard offer and understanding the significance of it. Where do they go if, indeed, they believe they should be negotiating with Facebook and Google in relation to a standard offer but still haven't received even a phone call back?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Sorry, Senator Hanson-Young. Just give me a moment, I have so many bits of paper in front of me. I do have one specifically on this for you.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

That's fine. I genuinely want a full answer so I appreciate you getting that information.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government has always said it is preferable that deals can be done outside the code. We have seen that a number of media organisations have already entered into letters of intention with Google. Obviously yesterday Seven West Media announced it had entered into a letter of understanding with Facebook. We expect the digital platforms to continue those efforts to enter into agreements with more news media businesses and they can do this by putting a default offer on the table which publishers can choose to accept or use as a catalyst to reach a commercial agreement. It's important to remember that, in deciding whether to designate a platform, the Treasurer will have regard as to whether they have made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content.

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

I have a question that has come in over Twitter. Someone wants to ask: what is the definition of 'intentionally'?

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Point of order: I think we are getting into very dangerous territory.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brockman, what is your point of order?

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The point of order: Senator Pratt clearly indicated that she was taking questions over a device from a live feed.

The TEMPORARY CHAIR: Senator Brockman, that is not a point of order; that is a debating point and this is the people's house.

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

It is a legitimate point. I am very happy to frame it as my own question: do we have any definition of 'intentionally'? The legislation says it only covers news content that's made 'intentionally' available. Now, I'm assuming that means that if I copy and paste a news article then there's no way of tracking the outcomes and the revenue streams. Or does it also mean that, if I tweet something and I get people to share it and it all goes back to a particular news article, I can't artificially drive up the revenue streams? What does 'intentionally' mean?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

'Intentionally' means in the context of this change to the explanatory memorandum. It has been added to make it clear that, if Facebook takes all the news off its platform in Australia, it's not intentionally making news available in Australia.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Minister, previously you have told the chamber that 100 to 200 publishers are expected to be registered as news publishers for the purposes of this code and for the purposes of striking a commercial arrangement with the two big tech giants. You've said that there isn't a working list of these publishers but surely Treasury has some idea of who they are, if indeed you have come up with 100 to 200 publishers who could be eligible. How do these media organisations know who they are for the purposes of this if there is no working list? Have they been contacted? Will they be contacted? What is the proactive role of ACMA to ensure that these publishers are participating in this process, engaging with the big tech giants and trying to strike a deal to ensure—as you've gone to many times today—that we make Australia's news industry sustainable?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

ACMA is reactive; it's not proactive. If those small publishers, or whoever those news outlets may be, want to be included on the digital platforms, if they want to be included as part of the code, then they will proactively reach out to ACMA.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

It's been raised with me by a number of publishers and bodies representing the needs and the interests of publishers that there is a lack of information about how this will be done. There's concern about the level of resources that even registering will take. I'm just wondering what services or support will be delivered by the government to ensure that those who are eligible and can walk into a negotiating meeting with Facebook know very well, 'We will be registered; we have every intention and understanding that ACMA will register us,' or 'Here is our registration,' and feel like they are empowered by this process. The reason I'm asking all this is that there is still uncertainty; people are feeling like they're going to fall through the cracks. I'm urging the government to consider what other services or support they need to offer to ensure that people don't unnecessarily fall through the cracks here.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

If these news outlets were to negotiate directly with Facebook or with Google or with a large digital platform, there would have to be a certain amount of work done already. I would imagine that the intention here for them to register with ACMA would require far less work than it would to negotiate directly with those digital platforms. This should make life easier for those news platforms, not more difficult.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Will the government undertake to support and ensure that queries and questions by small and regional publishers will be responded to by the minister's office if they need direction on how to engage in this process?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The Treasurer's office has always made itself available to requests from news media outlets if they have an issue, and that's why this code is coming about.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Just to be clear: should a publisher seek the guidance and advice from the minister for communications or the Treasurer? I just don't want people to get the run-around here.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

They would engage with ACMA in the first instance, and then after that they would engage with the ministers, whether it be the Treasurer or the minister for communications.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

If, indeed, this legislation passes this week, when will ACMA be up and running to engage in this process with publishers? Are they ready to go, are they just waiting for the legislation to pass, or is there some type of time frame we need to see before publishers can start registering with ACMA and get that support?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

ACMA will be up and running as soon as possible. They have already issued guidance to industry as to how they will consult and negotiate between them.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Have ACMA raised any concerns with the government in terms of resourcing this from their end?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

We'll make sure that ACMA is appropriately resourced, but there has been no specific inquiry.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I want to alert the chamber that I've circulated an amendment on sheet 1215. It is an amendment to the government's amendment in relation to schedule 1, item 1, page 8, proposed subsection (3)(b). It goes to this point that we've been debating here this morning in relation to significant contributions to the sustainability of the Australian news industry. I think it's fair to say that all the questions this morning have been surrounding this element. As I said, there is a concern that, unless this is specifically referenced, small, medium and regional publishers will be overlooked in that definition of the significant contribution. So all I am asking for is that we clarify that in paragraph (3)(b) with the words 'including by entering into agreements with a significant number of those businesses'—and this is the important amendment—'that include small, medium and regional organisations'. The government has said it intends to ensure that this is the case. I don't see why there would be any problem in ensuring that they are included. I urge the government to accept this amendment. It would put at ease a number of nervous organisations this morning.

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

Senator Hanson-Young, before I ask the minister to speak, are you moving that amendment?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 1215:

AMENDMENT OF GOVERNMENT AMENDMENTS [SHEET PG138]

(1) Paragraph (3)(b), omit "(including agreements to remunerate those businesses for their news content)", substitute "(including by entering into agreements with a significant number of those businesses, that include small, medium and regional organisations, to remunerate those businesses for their news content)".

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government believes the amendment that you've circulated is unnecessary because the existing provision already enables the Treasurer to consider these matters and the amendment may, in fact, reduce the flexibility of the Treasurer to take into account the full range of considerations relevant as to whether a digital platform has made a significant contribution to the Australian news industry.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I understand that the government believes that they've said enough in relation to this, but the truth is that out there in the real world they haven't. Out there in the real world, media organisations small and medium and in the regions are worried that they will be overshadowed by the big players. The whole point of this legislation is to ensure there is a power rebalance to make sure that those creating public interest journalism in this country are paid for the contribution they make. I am extremely concerned that these big global tech giants will weasel their way out of this unless we make it absolutely crystal clear that, when we talk about the ecosystem of Australia's news industry and public interest journalism landscape, small, medium and regional players play a significant role in that. All we're asking is for them to be noted and given the nod that this government also believes that they are a significant part. I don't see why the government wouldn't agree to this. It would put to bed the criticism that is coming. After all the questioning today from those of us on this side of the chamber, I must say I feel that, if the government isn't willing to put this in, it begs the question: can we really believe you? Why wouldn't you accept it? You say this is the case. Let's just put it in there.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think that, on the whole, there is vehement agreement in this chamber that this legislation is a significant move in the right direction. As to your specific amendment, this is not simply government opposition. We have actually received advice from Treasury on this amendment and the effect of this amendment, and Treasury have come back to us with official advice saying that the amendment is unnecessary and will actually reduce the flexibility of the Treasurer to take into account the full considerations relevant to whether a digital platform has made the significant contribution to the Australian news industry that we're looking for.

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

In relation to the ACCC's involvement, has the government considered ways that the ACCC's role could be strengthened—for example, by considering the fairness of the provision of standard offers by digital platforms? Who's going to assess whether they are decent offers or not? They're not yet inside the code, because that hasn't been enlivened through registration. Nevertheless, those standard offers will still need to be assessed in relation to strengthening sustainability.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The EM's section on standard offers states:

1.31   A responsible digital platform corporation may make a standard offer to a corporation that operates or controls a news business, by itself or together with other corporations. A news business corporation must be registered under the new Part IVBA to accept a standard offer. …

1.32   Regulations may be made that restrict standard offers to a class of registered news business corporations. If no regulations are made, the responsible digital platform corporation must make the standard offer to every registered news business for the offer to be recognised by the Code. …

1.33   A standard offer may be made that relates to one or more designated digital platform services of the responsible digital platform corporation in respect of remuneration or other matters. …

1.34   A registered news business corporation that becomes bound by a standard offer may receive the benefit of the general requirements. However, becoming bound by a standard offer may prevent a registered news business corporation from utilising the bargaining or arbitration divisions of the Code. …

In addition:

1.35   A responsible digital platform corporation may also make a standard offer relating to one or more non-designated digital platform services on terms that include that the registered news business corporation would not be able to utilise the Code for one or more designated digital platform services of that digital platform corporation. …

I should also add:

1.36   A standard offer will not exclude bargaining or arbitration if, before the agreement became binding, a registered news business corporation has notified the responsible digital platform corporation that it wishes to bargain. …

1.37   Standard offers must have a duration of two years in order to be valid under the relevant provisions of the Code. …

In addition to that there is a process for making a standard offer:

1.38   A responsible digital platform corporation may choose if and when it wishes to make a standard offer for a future two year period to registered news business corporations. …

1.39   A standard offer remains open for a period of 60 days unless otherwise prescribed in regulations. If a registered news business corporation wishes to be bound by the standard offer, it must accept the offer during the offer period.

1.40   At the end of the offer period, the offer becomes binding on the responsible digital platform corporation and all registered news business corporations who accepted the offer. …

1.41   During the offer period, a responsible digital platform corporation may withdraw the standard offer, in which case the offer will not be binding under the Code. A registered news business corporation may revoke any acceptance of the standard offer during the offer period. …

1.42   The content of the standard offer can be determined by the responsible digital platform corporation. The regulations may prescribe features that must be included in a standard offer in relation to remuneration.

1.43   For example, the regulations could set out that remuneration should be based on a percentage of the cost of producing covered news. A responsible digital platform corporation would then need to decide what percentage would be appropriate and include this as a term in any standard offer.

1.44   The standard offer provisions do not prevent the responsible digital platform corporation reaching agreements with registered or unregistered news businesses through other similar processes (for example, offers to certain kinds of news businesses, or offers subject to deadlines for acceptance).

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

That still leaves me with a number of questions. If those standard offers aren't decent enough to have made a substantial contribution to the sustainability of news media, how will that be assessed? You didn't really answer my question in the context of the ACCC and whether they would have a role in looking at whether the standard offers do in fact make a contribution to the questions that the minister would later need to address.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think that, when we originally spoke about the minister's discretion in making the designation, we said that the ACCC would be involved in that process and would make comment or report to the Treasurer on the existence of power imbalance, on the basis of the offers that are out there and the deals that are already done.

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

The ACCC keeps a registration of standard offers in other industries. This would seem to be an obvious area where a similar role for the ACCC should be resourced and enlivened.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

We will take that as a comment.

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

Did you not consider bringing those provisions into this legislation where registration of standard offers is required by the ACCC?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Under the provisions of the code, the details of standard offer will be provided to the ACCC as well as to the digital platform.

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

That's not the same as registration, but I do understand that we probably won't get any further on that. In terms of those who have access to a standard offer, do they have to be on ACMA's list or, for example, could an independent media journalist, under the $150,000 profit, be able to strike a deal under that standard offer? You've said that commercial agreements aren't subject to the code, so I guess it would just be a different commercial agreement. However, you would also have to rule out whether the use of such offers are making a contribution to sustainable media or not. Can these offers only be picked up by people on the ACMA list?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Standard offers outside the code can be made to anyone. Standard offers within the code are made to those on the ACMA list.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

What are the rules surrounding the ACMA list? Will that be published and, if so, when?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

A list of parties that are registered with ACMA will be available online. You'll be able to see who they are.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

On the ACMA website?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Yes.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I want to go back to this issue of the government's refusal to amend their amendment to include small, medium and regional publishers. Is this because Facebook only wants to do deals with the big guys?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No, it's on Treasury advice. It would limit the flexibility of the Treasurer.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

In the Treasurer's negotiations with Facebook, were any media organisations referenced in terms of the deals that would need to be done to satisfy whether Facebook had made a significant contribution to the Australian news industry?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

My understanding is discussions weren't that specific.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Has the Treasurer specifically asked Facebook to pay for the content of small and regional players?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No, not that I am aware. I think that the discussions between the Treasurer and Facebook have been about negotiating in good faith.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Has the Treasurer advocated in his negotiations with Facebook that small and regional news agencies must be part of the players that this big tech giant engages with and strikes deals with?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

My understanding now is that the Treasurer has made it clear in his discussions with Mr Zuckerberg that he expects Facebook to negotiate with regional, small- and medium-sized news outlets as well as the larger players.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

And what will the government do if he doesn't?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

That is exactly what will be taken into account when making the decision about designation.

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

Thank you. I just want some clarification on the answers we received to my previous questions. Is the role of the ACCC enlivened when deals are done using standard offers, or is it only enlivened if an organisation is designated?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The platforms can make standard offers outside the code, but the ACCC's role is enlivened when standard offers are made within the code.

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

I think it's fairly clear now, but how do we assess? How does the ACCC play a role in assessing whether the contribution of these deals is making a significant contribution if those standard offers are assessed by the ACCC only if the code is enlivened? How do we know that these standard offers are fair at all or that they might be fair to those who sign them but come at the expense of the sustainability of businesses that haven't had the opportunity or have been refused a standard offer?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

When the Treasurer is making a decision, he requires the digital platforms to report on whether they are making a significant contribution to the sustainability of the Australian news industry, and the ACCC will also inform the Treasurer when he is assessing that report.

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

So that would require an organisation that hasn't been able to get an offer to go to the Treasurer and say, 'We would like you to designate because we've been locked out.' Is it only then that the ACCC would start to look at the power imbalances, or who's in and who's out of those deals that have been negotiated?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

When making a designation, the Treasurer will take advice from the ACCC. He'll also take advice from Treasury. It will also require a report from the digital platforms themselves, who will be required to demonstrate that they are making a significant contribution to the sustainability of the Australian news industry through reaching those commercial agreements with news media businesses.

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

What oversight does the ACCC have of these deals if the code is not enlivened by an organisation making an application?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The ACCC will have information about those deals. On a register it will have information about those deals.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I want to indicate that I'll be supporting the Greens amendment to the motion. It is important that we protect the small players. The government's amendment basically allows the Treasurer not to make a designation in circumstances where some of the players are happy. The minister can't define what 'significant contribution' means. That leaves this chamber with great ambiguity, and, in those circumstances, the chamber should act to protect the smaller players.

I'd also foreshadow, in the event that Labor, for example, doesn't want to support the Greens amendment, that another way to remedy this situation is to return the bill to the position it was when—as I understand it, based on conversations around this building and the committee report—people were supporting it. Removing item (1) on sheet PG138 is a possibility. I would ask the chamber that when we put this to a vote item (1) be voted on separately to items (2) through (5).

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

Thank you, Senator Patrick. Minister, do you have a comment? No? Thank you. The question before the chair now is that the amendment to the government's amendments, as moved by Senator Hanson-Young on sheet 1215, be agreed to. That is the question before the chair.

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

I'm still not in a position to go to a vote on that because there are outstanding questions about how they interrelate. I need, please, to ask some further questions, because when we're looking at reporting and benchmarking it's still not entirely clear to me about who's in and who's out. I have a question about consultation with industry around the drafting of the professional standards test, which is at section 52P. Have the Press Council, Independent Media Council, Free TV, ASTRA and Commercial Radio Australia been asked to provide input or comment?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There was a public consultation process in which all parties, all media outlets, were invited to make submissions, and that went on for a period of four weeks once the exposure draft was released.

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

Were any changes made to it as a result of those consultations?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Yes, there were.

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

Can I ask the minister, please, to inform the Senate why provision 52P of the bill allows regulations to be made that replace or add to the standards of practice of the Australian Press Council, the Independent Media Council, Free TV, ASTRA and CRA with government standards? Does it flag a lack of support for these provisions by these bodies?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I'll have to take some advice on that very specific question. I don't have an answer for you right now, but my understanding is that it certainly doesn't demonstrate that.

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

If regulations allow those professional standards to be amended by government, does that not mean that the government prefers its own standards over and above the professional boards that should be defining these things?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The way these provisions are drafted, they don't override any professional standards that are already in existence, and if they are different then the appropriate regulations apply.

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

Will the government be able to impose the news standards by regulation?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think that's what that meant.

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

Nevertheless, this provision gives the government the power to do that.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No, that's not the case.

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

Why do 52P(1)(a)(v) and (vi) of the bill allow regulations to be made to replace the complaints process of the Australian Press Council and the Independent Media Council with a government-run complaints process or add a government complaints process to them?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

They don't. That's not the case.

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

So what is the intent of those sections? Is it to allow government to impose, by regulation, government supervision of the print and digital media? We would be out of step with every Western liberal democracy if that were the case. Why are these provisions here? Why does the government need its own regulatory process separate to the standards generated by those bodies?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It's to enable any new industry standards to be picked up by the code.

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

To go into a little bit more detail, it would mean new industry standards that are put forward and generated by those councils? Okay. So there's no prospect of government putting forward its own standards via regulation?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

That's correct.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I'd just like the minister to outline how the process of review within 12 months is going to work, particularly considering the growing concern around this new amendment that's been put in here at the whim of Facebook. Could the minister please outline what the terms of reference of that review are going to be and the obligations of the government to consult with small, medium and regional players in doing so?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It will be a Treasury review. The terms of reference for that review have not yet been set. That's entirely intentional. We want to see how the code plays out before we set the terms of reference, to make sure that we can cast the net as widely as possible, to include exactly those players that you've mentioned.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Will those terms of reference be tabled in this chamber at some point? When would that be?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

There is no official requirement to do that, so I doubt that that would be the case.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is the minister able to undertake to the Senate that the terms of reference will be made available to this chamber as soon as they are completed? Could the minister please outline what the Treasurer's process will be in determining what those terms of reference are? Who will the Treasurer consult with and is there somebody in the Treasurer's office who is going to be responsible? If so, who?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Treasury will provide advice to the Treasurer on the terms of reference, as will the ACCC, and those terms of reference will be made available publicly.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is there somebody in Treasury that will be responsible for driving this process specifically, and could you tell us who that will be?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

That's the responsibility of Treasury and it's probably not an appropriate decision to be made by this chamber.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Has that been decided or has the Treasury department not worked that out yet? Which department of Treasury is in charge of this?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

What I can tell you is that this bill was generated in the Markets Group of Treasury, and the leader of Markets Group is Meghan Quinn. I'm sure Ms Quinn will have a significant contribution to that review, but it is too early to say whether she will be responsible for that review. This bill hasn't even been enacted into law yet.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

What will the role of the communications minister and his department be in this review?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Treasury will consult with the department of communications and with the minister's office.

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

Following up on my questions in relation to standards of practice, the government said we need these provisions in order to bring in new standards. Did the government not consider strengthening the current standards within current organisations rather than saying, 'Well, let's just have a diversity of other standards?' How will the government address a proliferation of different standards? We've still got to keep this within the realm of journalism and news, yet, unless there's a consolidation of those values within our current perceptions of that, I'm really concerned about how perhaps the government could use this regulation.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Professional standards, as always, should be first and foremost the responsibility of industry, and it is our intention for that to remain.

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

If you're saying it's not your intent to impose government regulation on existing sectors, what is the point in terms of them being drafted in their current form, or is it simply that you can recognise different parts of the industry with different standards alongside these existing organisations? And please explain what the point of that would be.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I'll just repeat that the reason why this provision has been made is so, if professional standards are updated, they can be included within the code using regulatory powers as opposed to having inconsistencies.

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

If the Press Council has a variation in its standard and the Independent Media Council covers the same thing but with different thresholds, are you saying you might take one version of those standards and insert them in all the other codes, or do you have confidence in how those councils are currently conducting themselves? You said it's not your intention to override them, but I don't understand why you need to take a code of practice from one professional council and put it into another.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Inconsistent standards between organisations haven't been a problem thus far. It's really more if a new organisation steps up and creates its own set of standards. We want to make sure that they can be incorporated into the code using regulatory power so it happens immediately.

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

Whose standards would you choose? Would you write them yourself?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It is the media organisations themselves that sign up to standards. We don't need to impose a particular set of standards on any particular media outlet.

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

By inserting new standards, it simply allows you to put in new bodies that meet their own standards. On one hand it seems like you want to strengthen standards but you haven't given me any confidence that this won't be used to bring in new organisations who don't meet the current standards.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Again, we're dealing with the potential for new bodies to be set up, so it's very hard to anticipate what those new bodies might be and what the standards they might set might be, but we want to have the flexibility to be able to bring them under this umbrella.

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

Are you saying that that would also give you the ability to, when there's a new body with a great set of standards, take those standards and insert them into the standards of all the existing bodies? You've said it's not your intent, but it seems like this gives you the power to do that.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

We wouldn't modify the standards of any one particular body, but we would give all bodies an opportunity to adopt standards of other bodies.

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

So, in that context, you would give them the opportunity. But, nevertheless, doesn't this regulation allow you to impose that standard?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No, that's not the case, because to meet the professional standards test you can meet the standards that are within that test.

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

I need to move on to some other questions. In the amendments that we've got before us why do they say, 'need to ensure that content is ranked preferentially by digital services'? Can you explain that part of the amendment?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Chair, if you will just forgive me, can I take advice on that for a moment?

The CHAIR: Yes, certainly.

Thank you. I'm hoping I understand your question, Senator Pratt, but my understanding is the reason for this is to allow for existing commercial agreements to take effect and not undermine them with the introduction of this code.

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

Can those existing agreements still be assessed for the purpose of a sustainable contribution to the viability of news? I think we've been through that, but I want to be able to understand the extent to which those deals will be assessed.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Again, I think we've already been through the assessment process in as much detail as I can possibly give you.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

After assessing what deals have been done and what deals haven't been done, if the Treasurer determines that a significant contribution to the sustainability of Australia's news industry has not been made by Facebook or by Google, is the minister willing to designate one of those services without the other?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Yes.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Is the minister prepared to designate Facebook newsfeed even with the threat of Facebook shutting down all news in Australia?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think that that's exactly what has been demonstrated in the last week.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

No, because the government has buckled here. I just want to be clear. What you've brought to the chamber today are amendments to your own legislation because Facebook had a dummy spit. What is the mettle of the Treasury and your government in designating Facebook News Feed if they don't do deals that satisfy the needs of small independent regional players?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I don't think that goes to the operations of this bill, Senator Hanson-Young. The question is about how much mettle the Treasurer has. I think the fact that this bill has been put forward in the first place demonstrates the determination of this government to get this right.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

But you've blinked; you've weakened the power that the minister has because Facebook bullied you. Facebook knows all they'd need to do is switch news off again and you'll back off. If that is not correct, we need a demonstration that that is not correct, because so far that's what's happened. You're refusing to make sure that all news agencies in this country will be considered. You're refusing to include small and regional players. It seems to me that the Treasurer talks a big game, but, at the end of the day, this is more about a face-saving exercise for him than it is for the big US billionaire over in San Francisco.

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

I would note, Minister, that in relation to the previous version of the mandated code versus the version where the big stick gets people to comply, neither system guarantees the outcomes. In that context, in relation to ranking preferentially by digital services, I think you've explained that it allows commercial deals to be made, but they can still be considered for their contribution to the sustainability and success of news services. What does 'ranked preferentially' actually mean? What do these deals or agreements look like? They're in that overall section of the legislation about those agreements. I'm assuming it's algorithms or something. I'm hoping for an explanation.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The definition is broad. It would include things like ads on Google or posts appearing in News Feed, but amongst other things.

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

I'm assuming you're saying that that's between the platform and the corporation, that it will be fine in these contracts that sustainability in terms of distribution and financial return not be a level playing field in that transaction but to have privileged those arrangements within those contracts. How might that trigger or not trigger enlivening of the code? Does this part of the bill affect how those contributions are assessed?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

I think there is a conflation of two issues. There is the non-differentiation issue and the designation issue, and they're not the same thing.

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

Can you tell me why they're not the same thing? I'm keen for you to explain the amendment and how it works.

The CHAIR: Senator Pratt, you need to wait for the call.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

[Inaudible].

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

I would like you to be able to explain this amendment and how it works in practice, both in terms of the contracts that might be entered into and what they contain, and how those contracts might impact on the rest of the scope of the legislation. What does 'ranking preferentially' mean?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

Essentially this amendment says that commercial agreements that do not discriminate—is that right? Sorry, forgive me—existing agreements or agreements in the future are not held to discriminate if they fall within these amendments.

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

Therefore, contractual arrangements might not just be about 'we will give you revenue if you click on this link' but could have rankings and generation of traffic and all that kind of value that might come with that. Would that mean you can, therefore, differentiate within the contracts about how you might relate to other players in your agreements with them? I'm assuming that's the case. Is this part of the critical change? Why did you come to this conclusion? This seems to be a key change. Before it was, 'You can't differentiate'; now it is, 'You can'. Why has this change been made? What's key about it?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The explanatory memorandum previously said that you could differentiate based on the commercial agreements. This simply clarifies what is already in the EM.

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

But the EM that I've got here says:

A responsible digital platform corporation cannot differentiate between news media businesses by reason of their participation in the code.

So why this change now?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It's to clarify, nothing more.

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

So is the current law, as it's explained on page 6, wrong? Because you're saying you could differentiate under this new version and the old version.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It's to clarify that discrimination in normal commercial practices is allowed.

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

Okay. Did the existing code, before you amended it, say differently? Because it seems to say that.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

No, [Inaudible].

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

What does the current law mean as it's explained in the bill? What does it mean that a 'responsible digital platform corporation cannot differentiate between news media businesses by reason of their participation in the code'? I now understand the new version but it means I no longer understand the old version.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

It's the only one that's relevant.

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

I have to say that it is still relevant because it gets to the core of a level playing field and how the government wants to address bargaining power. So, yes, the new one is the relevant one. Under this legislation, it will be possible to rank digital services preferentially and alter your algorithms et cetera based on the deals that you've done so that you can create some more sustainable revenue with your news partner. It might mean that you're not handing over money but you've made a commitment to generate more traffic for them. In that context, can you please come back to how you assess the impact of those deals if they are outside the code on the ultimate question about the sustainability of the Australian news industry and players that might not be able to get in the tent with such a deal? Are those players able to critique the fact that it's not only that they haven't been able to get a deal but that the deal that's been done in this preferential ranking is damaging their existing revenue streams?

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

We're talking about two different things: the non-differentiation is the change that was already in law; and the designation is an entirely different issue.

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

I want to speak to Senator Hanson-Young's amendment very quickly. We're aware that the bill's been introduced and amended by the government in the context of these negotiations with digital platforms and news media that we've been seeing. We've seen reports that the Prime Minister himself has been sending signals to the platforms as part of these negotiations and that the Treasurer and minister have been involved in a range of those discussions. We would note that neither our shadow minister nor our party has been in the room or at the table, and we are very conscious that ad hoc amendments can impact the balance of negotiations that the government is undertaking.

We also note that there are a host of other matters and concerns in relation to this bill that have been raised by stakeholders that have not been addressed. We've had some discussion about those in the context of the Press Council already—SBS, ABC and Free TV. We appreciate the sentiment of this amendment, but we do not regard that the amendment cures the uncertainty around designation at all. In that context, we note the minister's advice to the chamber and therefore oppose the amendment.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Pratt for putting Labor's position on the record. I am disappointed that, despite the massive amount of concern and questioning in the chamber today in relation to this, they won't support this amendment, notwithstanding the advice from the government. But let's be honest about what's going on here: the Treasurer has struck a deal with Mark Zuckerberg. They don't want to amend it on the floor. Governments don't like that. However, the precise role of this chamber is to improve legislation to make sure that it doesn't have unintended consequences. And our concern remains that small, medium and regional players will get left out in the cold. If the minister doesn't want that to happen, notwithstanding the success of this amendment, be very sure that week after week after week we are going to be keeping a very watchful eye on this. We are going to make sure that for every media organisation in this country who is not able to get a fair hearing with these tech titans the minister sorts it out. If he wants the discretion in relation to this, if this government wants to make sure that the power is in the Treasurer's hands, it will be on the Treasurer's head if anybody misses out. And we will expect answers in this place over and over again as to who has been screwed over by Facebook or Google—until you understand that it is your job to look after all players, not just the big monopolies, not just the Murdoch press, not just the Nine News empire. In this country, media diversity is at a crisis point because of not just the power that these big tech giants have but the concentration of media ownership across the various different platforms. I don't think it would have been too much for the Labor Party, or indeed the government themselves, to send a very clear message to Facebook and to Google today that we, the parliament of Australia, expect them to understand that small, medium and regional media in this country are essential, are absolutely fundamental to the sustainability of the news industry in this country. So we will be holding your feet to the fire, Minister, and the Treasurer's, in relation to this issue going forward. And we expect, in the review in 12 months time, transparency and honesty about how this has impacted on the various different players. If deals are done with only the friends of this government, those in the media who are their mates, and not with the small and regional publishers, it will be quite clear that this government has been duped. So here is an opportunity to fix it. If you're not going to take it, expect a fight in the months to come.

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

What a ridiculous attack! The government is in the middle of sensitive negotiations. We have seen people's Facebook accounts blocked and all sorts of crazy things happen. We have no indication of the effect of this amendment on those negotiations. We have small publishers, small businesses, community health organisations and stakeholders right around the country who are already in a difficult place. We have this amendment, thrown in at the last minute, when Labor has not been at the table. We have no explanation of how such an amendment would impact on the very organisations that you, Senator Hanson-Young, purport to protect. So it seems absolutely ridiculous to me to be lectured by the Greens on this issue. The government is at the table in these negotiations. If the government were to tell us that this is the best way of protecting small players, then we would be at the table in supporting that amendment. However, not being at the table, we have no evidence to go on that this would make the situation any better. It seems ridiculous to be inserting such things at the last moment.

We, like all senators in this place, have a keen eye on small publishers and regional news. We want to see them supported on fair access to outcomes in terms of their sustainability. That is why we have had such an extensive debate today. You haven't inserted new powers for the ACCC. There are a whole range of things that could be put forward to address these issues. Instead, we get an off-the-cuff amendment from Senator Hanson-Young that we have no confidence in or insight into it making any difference to the outcomes. We, in this instance, will take the minister at her word, but we will also hold the government to account for these outcomes.

The CHAIR: The question is that the amendment moved by Senator Hanson-Young on sheet 1215 to the government amendments be agreed to.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

I now move to government amendments on sheet PG138.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I ask that item No. (1) on sheet PG138 be put separately and I ask the chamber not to support this part of the government's amendments. Labor raised concerns about this amendment this morning. Whilst the argument used in relation to Senator Hanson-Young's amendment was that you didn't understand the consequences of her amendment, or you suggested there might be unintended consequences, if we were to remove this provision of the government's amendment, we would go back to where we were with the understanding we had yesterday. So Labor should be in a position to reject this amendment.

It's a small amendment to what is a very significant bill, a very large bill. I would liken it to the two wires on the service module of Apollo 13. They might seem like just small wires, but after launch of this legislation we're going to find that it doesn't accomplish the mission. We're going to find that the Treasurer will simply be able to not designate Facebook and Google in accordance with the act. That would leave all of the small players, all of the regional players, without the ability to bargain properly against these very large digital companies, these foreign companies. We would, in effect, still have the very thing that Mr Rod Sims of the ACCC was most concerned about, which is a huge imbalance in power between Facebook, Google and the small players. So I would urge the chamber, when this is put, to reject item No. (1) of these amendments because it effectively undermines the whole bill.

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

If this place wants to go back to before there was a deal—we saw just a few days ago that Facebook was threatening to leave the country. We saw a host of crazy things happen out there, and yet we have—just like Senator Hanson-Young did—coming from Senator Patrick, an amendment that does not mitigate those risks. It does not cure the uncertainty that is here. Putting a number on it does not address in any way the power imbalances that need to be addressed. It could, in fact, further distort them, because we don't yet know who's been at the table in the deals.

An honourable senator: You're rolling over again!

This has nothing—

Honourable senators interjecting—

We will not be wedged—

Honourable senators interjecting—

Be it on your head if we go back to the crazy land that we were in a few days ago!

The CHAIR: Order! Senator Pratt, resume your seat. Senator Pratt has the right to be heard in silence. We are in Committee of the Whole. Any senator can stand and put their point of view. I would ask that Senator Pratt be heard in silence.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Point of order, Chair: I just want to correct the record. Senator Pratt said that this is an amendment being put forward by Senator Patrick. It's not. All he's requesting is that the government amendment be—

The CHAIR: Senator Hanson-Young, that is not a point of order.

Point of order, Chair: could you please clarify what the question is before the chair?

The CHAIR: The question before the chair is the government amendments on sheet PG138. Given that Senator Patrick has asked that the matters be split, the matter we are dealing with at the moment is item (1). Please continue, Senator Pratt.

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

In dealing with item (1) on sheet 1197, you cannot split these apart. If Senator Patrick wants to stand up for these players that he's concerned about, why not include all of them? Why not say, 'not just a significant number, but all players'? That is what takes us back to this complete circular logic—when the original version of the bill said, 'You've got to treat everyone the same and you can have no preferential treatment.' You can't just find the balance of that in the middle of these negotiations with the words that Senator Patrick is seeking to put into the legislation. So it is incumbent on this place to consider these issues properly and in the context of the negotiations that are already underway. It is ridiculous to me that inserting words like 'significant' versus 'substantial' will make any assessment of the kinds of difference they should make in the long-term credibility of this regime. It is impossible to make an assessment of what that looks like, particularly in the context of the negotiations that are already underway.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I just want to clarify that I'm not moving any amendment. What I'm asking is that the chamber does not support part (1) of the amendments by the government, because it introduces an uncertainty that Senator Pratt herself has raised questions about today. Let's just understand what's happening here: Labor are capitulating to Facebook and Google. They want to be an alternative government but they're not prepared to stand up to two big international corporations. I've said many, many times before that I'd love to have a strong opposition because I think it makes government better. But, unfortunately, we simply don't have that. I'm not asking for anything to be added to this legislation; I'm asking about the offending provision that talks about a significant contribution, which creates a real possibility that smaller media entities and, indeed, regional media entities will not be protected or get the benefit of being able to negotiate with these very large behemoths of companies.

It's disappointing, but I understand, and everyone also needs to understand, how this works. The government has introduced a last-minute amendment and the Labor Party can't actually react in that time frame because they have to take things back to the minister, who is not in this place, and interact, and then they have to take it to caucus. They are a large organisation that is not nimble and is unable to react to what has happened, and the government has just played them. The government has just played the Labor Party, introducing this at the last minute so that Labor has no ability to think this through and come to a decision. That's exactly what's happening here and it's very disappointing.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Senator Patrick has asked for item (1) of the government's very rushed amendments that were only circulated this morning in this debate to be put separately. That's absolutely within his right. Let's be honest, the attack on Senator Patrick from the Labor Party really just exposes their uncomfortableness with this whole thing. It must be very difficult coming into this place day after day after day and not knowing where you stand on things. That's the truth of it. That is the problem with the Labor Party. I also accept that the government have not just done a deal here that satisfies Facebook and Google, and that they have blinked in relation to that; they have also, in this amendment, delivered for their mates in the Murdoch press. That is what is going on here. That is why this is in here. And that is why the Labor Party is gutless about taking this on. Mr Albanese, we all know, has no chance in any universe of doing anything if he's having to have a fight with the Murdoch press. That's what is going on, so let's just be honest; we're not debating anyone else's amendment but the government's. Our job in the Senate is to hold this government to account. They're mates with the Murdoch press, and now they're best buddies of the billionaires over in the US who have made this government blink. That's what's going on, and that's why the Greens will also request that this item (1) is put separately.

The CHAIR: The question is that item (1) on sheet PG138, as moved by the government, be agreed to.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that items (2) to (5) on sheet PG138 be agreed to.

Question agreed to.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Australian Greens amendments (1) to (3) on sheet 1195 together:

(1) Schedule 1, item 1, page 48 (after line 25), after Division 9, insert:

Division 9A—Reporting to assist in monitoring benefits to public interest journalism from code

52ZZMA Annual report by registered news business corporations

(1) For the purposes of monitoring the benefits to public interest journalism in Australia from the operation of this Part, a registered news business corporation for a registered news business must, at the end of each financial year, prepare and give to the ACMA a report relating to the financial year that complies with the requirements in this section.

Content of report

(2) The report must include the following information:

(a) a description of the activities undertaken by the registered news business corporation (and any related bodies corporate of the corporation) during the financial year that supported the creation of core news content;

(b) for the news content created by each news source that comprises the registered news business—the proportion of the news content that was core news content;

(c) for the amount of code-related remuneration of the registered news business corporation for the financial year—the proportion of the amount:

  (i) that has been expended during the financial year for the primary purpose of the registered news business creating core news content; and

  (ii) that has been committed for expenditure in a subsequent financial year for the primary purpose of the registered news business creating core news content;

(d) if regulations made for the purposes of this paragraph specify other information that must be included in the report—that information.

(3) For the purposes of paragraph (2) (c), the code-related remuneration of a registered news business corporation for a registered news business means the remuneration that:

(a) is paid to the registered news business corporation (or a related body corporate of the corporation); and

(b) is remuneration for the making available of the registered news business' covered news content by a designated digital platform service; and

(c) is paid under or in connection with any one or more of the following:

  (i) an agreement reached as a result of bargaining under Division 6 (bargaining) and notified to the Commission under section 52ZI;

  (ii) a determination of the remuneration amount made under section 52ZX (final offer arbitration);

  (iii) an agreement notified to the Commission under paragraph 52ZZK(1) (e) (section 52ZZK relates to agreements resulting from standard offers);

  (iv) an agreement notified to the Commission under paragraph 52ZZL(1) (g) (section 52ZZL relates to agreements to contract out of the general requirements, bargaining and arbitration provisions of this Part);

  (v) an agreement dealing with matters covered by this Part, including the remuneration issue, that it is reasonable to assume would not have been entered into by the relevant parties to the agreement if this Part was not enacted.

(4) An agreement referred to in subparagraph (3) (c) (v) includes:

(a) an agreement entered into on or after 9 December 2020 but before the commencement of this Part; and

(b) an agreement entered into on or after the commencement of this Part.

Note: In paragraph (a), 9 December 2020 is the date the Bill providing for the enactment of this Part was introduced into the Parliament.

Timing of report

(5) The registered news business corporation must give the report to the ACMA within 30 days after the end of the financial year to which the report relates.

Publication of report

(6) The ACMA must publish on the ACMA's website a copy of each report given to the ACMA under this section within 14 days of receiving the report.

(2) Schedule 1, item 9, page 53 (line 3), omit "or 52ZZF(1)", substitute ", 52ZZF(1) or 52ZZMA(1)".

(3) Schedule 1, item 10, page 53 (line 18), at the end of subsection (4A), add:

; (k) subsection 52ZZMA(1).

These amendments are in relation to making sure that the revenue that is collected as a result of this piece of legislation is spent on journalism here in Australia. This is an important amendment, because we know, after all of these long debates, about the importance of ensuring that our media organisations here in Australia are able to be sustainable and are able continue to do their important work in public interest journalism. The last thing we want to see is some of these big corporations, particularly, international affiliations, whether that be News Corp or others, be able to bank this money, to put it into the coffers or to put the money to the boardrooms rather than the newsrooms. This is about sending a message directly to media corporations that there is an expectation that for the parliament to introduce this type of mandatory code, to go through this arbitration process, to ensure that the money is actually spent on creating more public interest journalism, not just more money for shareholders. I would like the government to at least give an indication that that is their expectation: that this money is spent on journalism jobs here in Australia and on creating public interest journalism in this country. It's not to be frittered away on extra curricula activities by board members or executives.

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

The sentiment behind these amendments is important, but we cannot support these amendments, because they are unachievable. The MEAA, the Media, Entertainment and Arts Alliance, said: 'This is a major concern. We can't see where the revenue is going to go and how it is going to be directed to additional journalists or journalism.' The issue is this amendment does not achieve that accountability in any way whatsoever. The only way you could do that would be by deeper powers of inquiry for the ACCC, for example, to scrutinise the contracts. Amendments like these do very little or, in fact, nothing, or would even exacerbate or overemphasise some streams of revenue without even actually recognising where the real commercial interests lie. It is a naive interpretation of this legislation to think that amendments like these will fix this problem.

We've just had a big discussion about ranking et cetera that will, clearly, be a driver of revenue. There may not even be anything explicit, that you can identify, that demonstrates how there's been an uplift in revenue for one organisation versus another. It goes right down to the details of the deals that are done, and this kind of amendment does nothing to provide that transparency.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government will be opposing this amendment.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Just to be clear, does the minister expect that the revenue generated by this code will be spent on journalism here in Australia or not?

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

I want to ask the minister if the government have an expectation that the revenue that flows from these deals will be spent in Australia—I just want to indicate I'll be supporting this amendment. It does create a minimum level of content that would be in any annual report. It doesn't prohibit further explanation by companies; it simply sets a minimum standard and, right now, the minimum is nothing. So this does more good than harm.

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

I need to further place on the record that such an amendment as is put forward does represent, in this legislation, a new regulatory burden. It could be onerous if unevenly applied. We've seen that a number of news media businesses have negotiated deals ahead of the passage of this bill. How, then, this legislation relates to reporting against this, in terms of how it's enlivened, auditing and enforcement—there is a clear risk, in our assessment, that this kind of reporting regime could underline the independence of some news media outlets.

Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) Share this | Link to this | Hansard source

The question is that Greens amendments (1) to (3) on sheet 1195 revised, moved by leave together, be agreed to.

Question negatived.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 1188, as revised:

(1) Schedule 1, item 1, page 51 (after line 10), after subsection 52ZZS(1), insert:

(1A) Without limiting subsection (1), the review must consider and report on:

(a) the state of public interest journalism in Australia, including the numbers of journalists working in Australia; and

(b) the impact of the operation of this Part on small, independent and start-up news businesses (whether or not those businesses are registered news businesses).

This amendment asks, specifically, for the reference to small, regional and independent publications to be considered, and the impacts of this code on them, in the 12-month review. We did cover quite a bit of this earlier today. I understand the government intends that to be the case. But I think it's important to ensure that there is a discussion in this chamber, which is why I previously circulated this amendment, and I would like the government to consider it.

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

We appreciate the sentiment in this amendment. It is, clearly, in the public interest that public interest journalism be assessed as part of the review. However, I think the government should be able to make an undertaking, in that regard, without biasing the other issues that might also emerge in the time of the implementation of this legislation. We would expect, for example, the work of the Public Interest Journalism Initiative, PIJR, and the Australian news mapping project—these are all important considerations. However, we need to address a context in which the department has failed to produce basic information about newspaper coverage in Australia, particularly given the department's role in relation to the Regional and Small Publishers Innovation Fund. That was announced back in 2017 as well as the Public Interest News Gathering program announced in 2020. So there are a wide range of issues that need to be researched and assessed in terms of the balance of this kind of review. We're very happy to emphasise the needs of small and independent journalists and the Public Interest Journalism Initiative et cetera, but this inquiry and review has to address the needs of a much greater diversity of stakeholders.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government will be opposing this amendment. The review contained in the current legislation is broader in scope than that proposed in the amendment.

Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) Share this | Link to this | Hansard source

The question is that Greens amendment (1) on sheet 1188 revised be agreed to.

Question negatived.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3) on sheet 1197 revised, circulated in my name, together:

(1) Schedule 1, item 1, page 24 (after line 3), after Division 5, insert:

Division 5A—Audits and reviews of designated digital platform services

52ZCA Audits of algorithms and practices of designated digital platform services

Carrying out audits

(1) The Commission may carry out an audit of the operation of the algorithms and internal practices of a designated digital platform service in relation to:

(a) the impacts of their operation on access to, and availability of, covered news content; and

(b) whether their operation causes, or is likely to cause, differentiation of a kind referred to in Division 5 or other anti-competitive or unfair results in relation to the accessibility and availability of covered news content.

(2) Without limiting subsection (1), the audit may include the operation of the designated digital platform service in relation to:

(a) crawling, indexing, making available and distributing news businesses' covered news content; and

(b) referral traffic from the service to news businesses' covered news content; and

(c) the distribution of advertising directly associated with news businesses' covered news content made available by the service.

(3) The Commission must carry out at least one audit of each designated digital platform service during each financial year.

(4) An audit must be carried out by members of the staff of the Commission.

Requirement to produce documents, records or things and provide assistance

(5) A person (the auditor) who is carrying out an audit under this section may require the responsible digital platform corporation for the designated digital platform service:

(a) to produce any documents, records or things that the auditor is satisfied are relevant to the audit; or

(b) to provide the auditor with all reasonable facilities and assistance for the effective exercise of powers under this Division.

(6) A responsible digital platform corporation must comply with a requirement under subsection (5).

Other matters

(7) If there is more than one responsible digital platform corporation for the designated digital platform service, the obligations in this section apply to each of those responsible digital platform corporations separately.

(8) This section does not limit section 155 (which is about the general information-gathering powers of the Commission) or other powers of the Commission under this Act.

52ZCB Annual reviews and public reporting on algorithms and practices of designated digital platform services

(1) The Commission must review, and report each financial year on, the operation of the algorithms and internal practices of designated digital platform services, and their impact on the accessibility and availability of covered news content.

(2) Without limiting subsection (1), a report under that subsection must include:

(a) a summary of the audits the Commission has undertaken under section 52ZCA during the financial year, including the findings of those audits; and

(b) the Commission's assessment of whether the Commission's auditing and review activities have indicated any evidence in relation to digital platform services of anti-competitive activity or practices that unfairly limit or distort access to covered news content.

Report must not include trade secrets

(3) The Commission must not include in a report under subsection (1) information the disclosure of which would reveal a trade secret of a responsible digital platform corporation.

(4) Reports under subsection (1) must also comply with such requirements in relation to the protection of confidential information as are specified in a determination made by the Minister for the purposes of this subsection. For this purpose, information is confidential information if, and only if, the publication of the information could reasonably be expected to prejudice substantially the commercial interests of a person.

Opportunity to comment on proposed report before finalising

(5) After preparing a proposed report under subsection (1), the Commission must give to the responsible digital platform corporation for each designated digital platform service covered by the report either:

(a) a copy of the proposed report; or

(b) extracts of the parts of the proposed report that relate to the responsible digital platform corporation.

(6) If the recipient of the proposed report, or extracts from the proposed report, gives written comments to the Commission within 28 days after receiving the proposed report or extract, the Commission must:

(a) consider those comments before preparing the final report; and

(b) include in the final report the written comments received.

Timing and publication of final report

(7) The Commission must:

(a) give a report under subsection (1) to the Minister as soon as practicable and no later than 6months after the end of the financial year concerned; and

(b) publish the report on its website.

(8) The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

(2) Schedule 1, item 8, page 52 (line 19), after "52ZC,", insert "52ZCA,".

(3) Schedule 1, item 10, page 53 (after line 12), after paragraph (4A) (d), insert:

(da) section 52ZCA;

It remains to be seen whether this legislation will remedy the imbalance of market power between the big digital platforms that dominate our information landscape and the media organisations that provide us with the news and reporting which are a vital underpinning of our democracy. In some senses I think greater uncertainty has been brought about by the government's amendments this morning. It's clear that the bill addresses only a small part of a range of measures that are needed to improve media diversity in Australia and to further support public interest journalism. It will also address other major issues, including the international tax practices of the digital giants that operate across the globe.

These amendments deal with yet another aspect of the situation—the opaque nature of the algorithms and business practices of big tech. A fairly new area of engineering, which I know might be foreign to those present in the chamber, is where independent auditors look at algorithms—it can be algorithms in respect of commercial applications or algorithms used by government—to make sure that those algorithms are performing the functions that they ought to perform and, indeed, not introducing unintended consequences into what are automated processes. Not much needs to be said, for example, about robodebt and the way in which that algorithm did not perform properly. Had there been algorithm auditing, the government may have been in a substantially better financial position than it is in now after having to make payouts to people who, it turns out, robodebt robbed of money.

We've also seen in recent events that the digital platforms are operating with impunity under a shroud of near-total secrecy. Their anticompetitive practices and how their algorithms operate are shrouded from any oversight or accountability. This secrecy has deep implications for our democracy. These platforms have unquestionably amplified the spread of misinformation and falsehood aimed at undermining public confidence in, for example, the COVID-19 health response. They have undermined trust in democratic institutions and supercharged political polarisation. Even during debate on this bill, Google's public campaigning involved actively limiting the information that 250,000 Australians could access, through their so-called experiments. Similarly, Facebook's arbitrary decision to ban news sites extended to government, political and community organisation pages, amply demonstrating the outsized impact that the company's algorithms have on the way we do business here. This has implications far beyond those of the news bargaining code, and in order to deal with them we do need to have a level of scrutiny.

The ACCC actually has the power to go and look at the activities and, indeed, the algorithms of companies—that was confirmed by Mr Sims at the committee inquiry—and the intent of this amendment is to make sure that the ACCC does so. Whilst they have the power now, there is no requirement for them to do algorithm audits. There is no requirement to go in and have a look at what Google and Facebook might be doing, what their algorithms are actually doing, and make sure there is no anticompetitive behaviour being implemented through those algorithms, either intentionally—and one would hope that doesn't occur—or even unintentionally. That would be consistent with the role of the ACCC.

The problem we have here and that this parliament will need to come to grips with moving forward—it is a relatively new field in engineering—is in auditing algorithms independently to make sure they are doing what they are promoted as doing. It's something we will have to take notice of and deal with in the future, not necessarily just for this particular bill. We need to open our minds to the fact that auditing is going to be required right across society where algorithms are being employed. It's no different to the auditing of books. In order to establish confidence in our corporations, we require them to be audited. That gives public confidence and it gives confidence to shareholders. This is no different. It's simply saying: let's audit the algorithms.

It's very clear in my amendment that if the ACCC were to go and do an audit they would not be allowed to reveal trade secrets. They'd simply examine the code, make sure there was nothing in there that was untoward and report back to the public that everything was in good order. If everything were not in good order, they could act in relation to that using their existing regulatory powers. So the amendment doesn't seek to in any way compromise Google and Facebook in their operations. It doesn't seek to require anything to be revealed about how they do their business. It seeks simply that the ACCC regularly audit these algorithms and deal with anything untoward within them.

Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Link to this | Hansard source

The government's going oppose this amendment.

Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) Share this | Link to this | Hansard source

The question is that the amendments (1) to (3) on sheet 1197 revised, moved together, by leave, by Senator Patrick, be agreed to.