Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

I seek leave to present a supplementary explanatory memorandum to the bill and to move government amendments (1) to (19) as circulated together.

Leave granted.

I present a supplementary explanatory memorandum to the bill and I move government amendments (1) to (19) as circulated together

(1) Schedule 1, item 1, page 18 (line 1), omit "or practice".

(2) Schedule 1, item 1, page 18 (lines 5 and 6), omit "or internal practice".

(3) Schedule 1, item 1, page 19 (line 1) to page 21 (line 3), omit sections 52T and 52U.

(4) Schedule 1, item 1, page 21 (line 4), omit "Sections52S, 52T and 52U", substitute "Section52S".

(5) Schedule 1, item 1, page 21 (lines 5 and 6), omit "paragraphs 52S(1) (b), 52T(1) (b) and 52U(1) (b)", substitute "paragraph 52S(1) (b)".

(6) Schedule 1, item 1, page 21 (line 14), omit "Sections52S and 52T", substitute "Section52S".

(7) Schedule 1, item 1, page 21 (line 15), omit "paragraphs 52S(1) (c) and 52T(1) (c)", substitute "paragraph 52S(1) (c)".

(8) Schedule 1, item 1, page 21 (line 27), omit "paragraphs 52S(1) (c) and 52T(1) (c)", substitute "paragraph 52S(1) (c)".

(9) Schedule 1, item 1, page 24 (before line 22), before subparagraph 52ZC(2) (a) (i), insert:

(ia) a corporation being registered under section 52G, or being endorsed under that section as the registered news business corporation for a news business;

(10) Schedule 1, item 1, page 25 (line 13), omit "subparagraph (a) (i),", substitute "subparagraph (a) (ia), (i),".

(11) Schedule 1, item 1, page 25 (line 25), at the end of subsection 52ZC(2), add:

; or (c) differentiate between news businesses that are not registered news businesses, because of any of the following matters:

(i) a corporation being eligible to be registered under section 52G, or being eligible to be endorsed under that section as the registered news business corporation for a news business;

(ii) a corporation applying under section 52F for registration of itself, or of a news business, or for endorsement of itself as the registered news business corporation for a news business.

(12) Schedule 1, item 1, page 33 (line 7), omit "issues", substitute "services".

(13) Schedule 1, item 1, page 37 (line 20), omit "an amount", substitute "a lump sum amount".

(14) Schedule 1, item 1, page 37 (line 23), at the end of subsection 52ZX(1), add:

; and (c) is consistent with rights under contracts that are in force between:

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

(ii) the registered news business corporation for the represented registered news business or a related body corporate of that registered news business corporation.

(15) Schedule 1, item 1, page 37 (line 26), omit "amount should be", substitute "amount should be (expressed as a lump sum)".

(16) Schedule 1, item 1, page 39 (after line 3), after section 52ZX, insert:

52ZXA Final offer to be accompanied by information about contracts

(1) If a bargaining party submits to the panel a final offer in accordance with subsection 52ZX(4), it must, on the same day that it submits the final offer to the panel, give the panel information that:

(a) is relevant to the arbitration; and

(b) relates to all contracts that are in force between:

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

(ii) the registered news business corporation for the represented registered news business or a related body corporate of that registered news business corporation.

(2) Nothing in subsection (1) requires the giving of information if doing so would disclose information that is protected against disclosure by a duty of confidence.

(3) To avoid doubt, subsection (2) does not prevent a bargaining party from giving information under subsection (1) if the other bargaining party agrees to the bargaining party doing so.

(17) Schedule 1, item 1, page 39 (lines 21 and 22), omit paragraph 52ZZ(1) (c), substitute:

(c) the reasonable cost to the registered news business of producing covered news content;

(ca) the reasonable cost to the designated digital platform service of making available covered news content in Australia;

(18) Schedule 1, item 1, page 41 (lines 6 and 7), omit "about both final offers", substitute "in relation to the arbitration".

(19) Schedule 1, item 1, page 41 (after line 10), after subsection 52ZZC(1), insert:

(1A) The information contained in the submission must be:

(a) impartial factual information that relates to the relevant market; and

(b) impartial information that relates to relevant economic principles.

These are a set of technical amendments which go to further the effective operation of this code, and they are designed to give effect to the government's policy intention and take account of a number of technical matters which have emerged during the process of the bill being considered. For example, the amendments include measures that would provide for the simplification of the requirement in the code for the advanced notice of algorithm changes. There's clarification that arbitration will be balanced—that is, the arbitrators should consider the reasonable cost of both the news media business and digital platform. The code will stipulate, for the avoidance of doubt, that remuneration that is arbitrated is to be made in the form of a lump sum. That is the effect of one of the other significant amendments before the House, and the amendments clarify the information that the ACCC can provide in the arbitration process. There's an amendment to give effect to the government's policy intent that the code should not interfere with existing contractual rights. There's an amendment to ensure that the anti-avoidance provisions can take effect from the commencement of the code.

These amendments are very much about enforcing the overall policy intention of the code and the legislation which embodies it and make a series of technical and clarifying amendments, and so I commend the amendments to the House.

Lucy Wicks (Robertson, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments (1) to (19), as circulated, be agreed to.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

I refer to the designation process under the code and the requirement for designation in order to enliven the provisions of the code. I ask the minister: What digital platforms and services does the government intend to designate? When is it intended that this will be effected? And, in line with that, on what basis will the government decide what platforms and services it will so designate? I refer to the number of commercial deals that have been struck in recent days between Australian news media and the platforms—in particular, Google, in this case. Will the designation—including the timing and the actual services and platforms that will be designated—be done on the basis of how many commercial deals are secured under Google News Showcase? Is it another measure that the government seeks to employ in identifying when and what services will be designated? So I ask the minister those questions.

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

I thank the shadow minister for those questions. As we've consistently made clear—and, indeed, as the legislation provides—designation will be a decision of the Treasurer on the basis of advice given to him by the ACCC. As the Treasurer has previously indicated and as the government has indicated, our thinking is that the services to be designated would be the search product of Google and then the Facebook News Feed; those are comments that the Treasurer has made previously. As the shadow minister rightly notes, there's been an announcement to the market by Seven West Media that it has concluded an agreement with Google, and there have been reports of a number of other deals presently being negotiated, and that's certainly consistent with the government's understanding.

Of course, the policy intention of the code is to encourage commercial negotiation. It is an example of a negotiate-arbitrate model, as the shadow minister would be very familiar with from her previous professional experience. Negotiate-arbitrate is widely used in telecommunications, and there are similar structures in other industries that the ACCC regulates.

So in response to the specific question 'What is the government's intention as to what will be designated?' I make the point that the Treasurer has made previous comments about that—about the scope—but that ultimately it will be a decision for the Treasurer, based upon advice provided to him by the ACCC, and that advice will be given against the backdrop of the overall market conditions, including and of course informed by what has been the extent to which deals have been done and who the parties are to those deals. So those are all factors to be considered. But the government's position in relation to how the designation process will work has been consistent. The framework is clearly set out in the bill, and ultimately it will be a decision of the Treasurer, based upon the advice he receives from the ACCC at the time.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

I ask the minister: what confidence does the government have that Google will remain in Australia in the event that the government designates Google Search under the code?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

I thank the shadow minister for the question. The government have been very clear, all the way along, that we will legislate this code, as we have said—and we acknowledge the support of the opposition and of the minor parties, as manifested in the report of the Senate committee. We acknowledge the concern expressed for the objective of a vigorous news media sector by the opposition and by the minor parties.

In relation to whether Google is likely to stay in Australia or exit Australia, I think what we can conclude is that the behaviour that Google has shown in concluding the deal with Seven West Media, as disclosed by that company, and in the behaviour that we understand it's presently exhibiting in being in advanced negotiations with other Australian news media businesses, is I think, in any view, the behaviour of a company that intends to stay in this market. After all, certainly under the deal that's been announced to date, there is obviously significant value passing from Google to Seven West Media. So that is the behaviour of a company which intends to stay in this market. The government welcome the behaviour that has been demonstrated, and we have been consistent from the outset: we wish to see Google and Facebook remain in this market. That's our preference. As the Digital Platforms Inquiry itself reported, over 19 million Australians use Google every month and over 17 million Australians use Facebook. Of course, what we also expect them to do—as we expect any company to do that is doing business in Australia—is to comply with the laws passed by the duly elected parliament of Australia.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

As I noted, if the government refrains from designating digital platform services under the code, the provisions of the bill will not be enlivened. If the government thus elects not to designate Google Search or Google News Showcase under the code, how will news media publishers avail themselves of the negotiate-arbitrate provisions under the code? How will smaller publishers avail themselves of collective bargaining under the code? And how will the imbalance in the bargaining power between the news media and the digital platforms be addressed if the government elects not to designate any platforms or services?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

I will make a couple of points. The intention of the code, from the outset, has been to encourage commercial negotiation reflecting the underlying policy position, as advised to the government by the ACCC, that there is an imbalance of bargaining power between the news media businesses, on the one hand, and the digital platforms, on the other. The consequence of that has been that commercial deals which would ordinarily occur in a market which did not have these serious market power issues have not been occurring.

Our first preference is that there be commercial deals. That of course is why it's known as a 'negotiate-arbitrate model', because if you can negotiate a commercial outcome then you never need to go to arbitration. But, of course, what the government clearly recognises is that you need to be in a position to impose the arbitration process if a commercial deal is not done.

I know the shadow minister is asking about various possibilities, but I want to be very clear: the code provides a process under which the Treasurer can designate services of digital platforms, and that will be considered by the Treasurer when he receives advice from the ACCC. So no conclusion should be drawn as to how the Treasurer's going to deal with that issue; he will deal with that issue on the merits, based upon advice from the ACCC and having regard to factors such as the number of news media businesses which have advised the government that they've entered into commercial deals. So that will be a very live consideration.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

I ask the minister: what will the government do if the public broadcasters or regional and small publishers are unable to conclude satisfactory deals with Google after the passage of the bill through the parliament?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

Well, again, I make the point that we could work through a number of possible outcomes. Our focus is on getting this bill passed into law so that the code comes into force, so we are then in a position to designate and, of course, to register news media businesses, which is the requirement on the other side. Our whole intention is to establish this so that deals are done, either commercially or through arbitration. We're focused on getting outcomes for news media businesses of all sizes, and passing this bill is a key step toward achieving that outcome.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

The bill empowers the minister to make designation determinations. Does the bill give the minister the flexibility to carve out or mix and match certain services with different elements of the code? To put it another way, would it be possible for the minister to designate Google Search for the purposes of the minimum standards under the code and designate Google's News Showcase for the purposes of remuneration and arbitration under the code?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

The provisions don't allow for that kind of mix and match. So it's a designation, a decision made in respect of the service on the advice from the ACCC.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

If the government elects not to designate any platforms or services under the code, will the ACMA still register news businesses under the code? To put it another way, will the ACMA still register news media businesses in order to assist digital platforms like Google when it comes to providing standard offers?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

The point is that there are two separate processes under the bill. One is the registration of news media businesses. The other is the designation of digital platforms. Each of those processes occurs in accordance with the criteria set out in the bill. The ACMA will go through its processes in relation to registration, and that will happen in relation to any news media business that puts in an application to be registered.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

News media businesses are subject to significant legal risks regarding user generated content, which means the ability to manage these features is increasingly important. News media businesses submit that the provision of moderation tools for managing user comments on digital platform services should be included in the code. This was provided for in the exposure draft of the bill but was removed from the bill that is now before the parliament. Why were these provisions removed?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

I thank the shadow minister for the question. She's right to say that there were provisions dealing with this in the initial draft of the code that was released by the ACCC for public comment. The government took the view that ultimately this code was not the appropriate place to include such provisions. The government recognises that this is an issue that presents complexities for news media businesses. That's particularly as a consequence of a decision in, I think, the New South Wales Supreme Court—certainly a decision some time in the last year or two in one of our courts. There is a process presently underway, being led by the attorneys-general collectively—and I believe it's the New South Wales Attorney-General who is leading that process—recognising that defamation matters are state responsibilities. That is a process that offers an opportunity to consider the issue the shadow minister raised.

Michelle Rowland (Greenway, Australian Labor Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

On the same point, I note that the SBS, in its submission, said:

The absence of these safeguards places audience at risks of harm through exposure to illegal or inappropriate online content or harmful conduct on social media sites. The introduction of these safeguards would complement the work of the eSafety Commissioner, the purpose of which is to 'help safeguard Australians at risk from online harms and to promote safer, more positive online experiences'.

I note that the eSafety Commissioner also works with social media services to remove abusive or illegal online content material. The inability to moderate or switch off comments also has a chilling effect on the distribution of news, as media organisations will avoid posting stories that will require higher levels of moderation.

So, as I note from SBS's previous submissions, the safeguards should include the ability to remove or filter comments, to switch to premoderation and to pause live video comments. In light of all this, does the minister stand by his answer that he's just given that it is appropriate that these provisions that were in the exposure draft have been removed from the bill now before us?

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

Yes, I do stand by those comments.

Question agreed to.

Bill, as amended, agreed to.