Senate debates

Tuesday, 23 February 2021


Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021; Second Reading

12:01 pm

Photo of Malarndirri McCarthyMalarndirri McCarthy (NT, Australian Labor Party) Share this | | Hansard source

To give you some idea of the scope of the First Nations media sector, it includes over 230 radio broadcast sites coordinated by 35 licensed community-owned not-for-profit organisations. These radio services are able to reach around 320,000 First Nations people, including around 100,000 very hard to reach people in remote Indigenous communities, or approximately 48 per cent of the First Nations population. They broadcast live shows plus interviews, radio documentaries, news, emergency information, community events, government and other messaging within community broadcasting guidelines. These video and film production services create culture and language based content for broadcast and online distribution. In the TV sphere, we have NITV broadcasting nationally and local TV services at Goolarri TV at Broom and Larrakeyah TV at Darwin. ICTV satellite TV service reaches 240,000 remote households as well as their free-to-air regional locations.

In terms of news production, First Nations media is rich with national, regional and local news and current affairs services for broadcast as well as print and online news media such as the National Indigenous Radio Service, NIRS, with its national Indigenous news and Weekly News in Review, and Central Australian Aboriginal Media Association's news service, including its Strong Voices program. There's Koori Radio's news and current affairs programming, NITV News and Living Black. Print media include Koori Mail and National Indigenous Times, and there is a strong online presence with sites such as IndigenousX.

First Nations media organisations did have a strong social media following and published content online daily. These channels offer a wide range of programming, including news and current affairs, reporting from a First Nations' perspective in over 25 Indigenous languages nationally, including the first language of many people in remote communities. These First Nations media organisations want to keep going from strength to strength.

First Nations broadcasters and not-for-profit community organisations are providing a primary and essential service to their communities. Radio services reach nearly 50 per cent of the Australian Aboriginal and Torres Strait Islander population, but are prevented from providing a primary radio service to all Aboriginal and Torres Strait Islander people due to lack of funding and spectrum availability. The sector reaches significant audience share, with 91 per cent of people in remote Indigenous communities being regular listeners to radio services and watching ICTV at least once per month.

In the remote context First Nations media is the most reliable radio and media service available to audiences. I'm very pleased to support First Nations Media Australia and their call for appropriate government reform that fairly treats and invests in diverse creators of public interest journalism, including smaller media organisations and community broadcasters. Many First Nations media organisations have built strong social media followings as a forum for community engagement on topics relevant to Aboriginal and Torres Strait Islander audiences.

First Nations people are avid consumers of social media. In many ways, Facebook is the new bush telegraph. Certainly a lot of my families and kinship groups keep in touch through Messenger and group chats, with relatives from all over the country joining in, having a laugh and keeping in touch about all sorts of things, even as to whether the flood levels are up and rivers are impassable.

It's wonderful, because, when I'm here doing work in the Senate in Canberra, I can still be in touch with what's going on in Borroloola, Ngukurr, Numbulwar and Urapunga, but it is a double-edged sword, because we know social media can be a prime vehicle for spreading untruths and misinformation. It is especially worrying at this time when we're about to start a mass vaccination campaign in the fight against COVID-19. First Nations communities are among those at the head of the queue to receive the vaccine, and we must make sure First Nations community broadcasters maintain their social media presence and can get out the facts and information to their audiences in the most appropriate way.

At the beginning of this pandemic, First Nations media organisations were at the forefront of getting the information out to communities, keeping them safe and informed. Working with governments and community-controlled health services, the sector used their social media and broadcast channel to spread the word. Whether it was developing jingles in language to promote handwashing, animations that demonstrated the impact of community lockdowns or using local leaders promoting health messages in language, First Nations media literally helped saved lives.

The Chair of First Nations Media Australia, Dot West, said last week, 'Never has our media been more vital than during a global pandemic.' In Dot West's words:

First Nations media services are not the same as commercial outlets and should not be negatively impacted by an industry wide response to corporate interests.

First Nations Media Australia provided input to the development of the proposed mandatory news bargaining code, encouraging flexibility in the legislation to avoid unintended consequences, such as what we're seeing. The financial interests of commercial enterprises should not come at the expense of independent publishers of information vital to community safety and democracy in this country.

The federal government must heed the voice of Dot West and others and the First Nations Media Australia and seek an immediate resolution to its conflict with Facebook and protect the First Nation media industry from further negative impacts. The government must also recognise the importance of First Nations news and journalism by providing support for the production of news content essential to First Nations communities. We must have appropriate government reform that fairly treats and invests in diverse creators of public interest journalism, including smaller media organisations and community broadcasters. I reflect on the Katherine Times and the Centralian Advocate. It is vital that these regional newspapers are supported, but we have seen the demise of many of these across the country. Community broadcasters are vital cogs in our media landscape, producing and broadcasting both hyperlocal and national news for millions of listeners across Australia; creating significant employment, training and career opportunities; and, ultimately, strengthening Australia's democracy by sharing diverse content by diverse and underrepresented voices.

The government contends that one of the reasons for these amendments is to support public interest journalism. I totally agree that it needs to be supported. But that is not happening under this government, which is too busy pandering to the interests of big media business mates to be concerned about what is happening to the broadcasters and journalists who are embedded in our communities and keeping their voices alive when we see so much of our smaller and regional media landscape gutted.

12:10 pm

Photo of Claire ChandlerClaire Chandler (Tasmania, Liberal Party) Share this | | Hansard source

I rise today to make a contribution on the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020. Last week, we saw a blatant attempt by a foreign owned company, one of the world's largest corporations, to bully Australia. The tactics used by Facebook to make its point included taking down the pages of children's cancer charities, domestic violence fundraisers, state health departments, women's legal services, and even government websites responsible for issuing emergency and weather warnings. The reason for this unacceptable behaviour was that the Australian government is seeking to make laws that ensure that big tech companies do not abuse their market power in relation to Australia's journalism and news industry. Facebook or any other company is entitled to express a view and take a position on legislation proposed by the Australian government. But what kind of company would take down a children's cancer charity page to make their point?

Countries around the world are becoming increasingly concerned about the market power of big tech and the way in which those companies are using that market power. Last year, a US Congress inquiry into big tech found that companies like Amazon, Google, Facebook and Apple wield their dominance in ways that erode entrepreneurship, degrade citizen's privacy online and undermine the vibrancy of the free and diverse press. The committee report from that inquiry was critical of the testimony of the CEOs of those corporations, saying:

… answers were often evasive and non-responsive, raising fresh questions about whether they believe they are beyond the reach of democratic oversight.

Facebook's actions in Australia last week clearly raise the question of whether it believes it is beyond the reach of democratic oversight in this country. Quite clearly, their actions were designed to heavy the Australian government and, indeed, this Senate into not proceeding with this bill that we're discussing here today. They want to send a message that they are bigger and more powerful than the Australian people—that they can press a button and change the minds of those of us elected to represent the Australian people in the nation's parliament. Today, we are here sending the message that that is not the case.

It's hard to deny that massive corporations like Facebook, Twitter and Google have made themselves central to public life and daily communication in Australia. Over the last decade, they have become primary methods for government departments, health and emergency authorities, news media, politicians and political parties to disseminate information amongst the public. It has become a fair expectation that a government health department, for example, has a Facebook and a Twitter account. People have become accustomed to going to these pages to find the information they need. Yes, there are obviously other ways they can find out that information from those organisations. But, if you don't see the information in the way that you are accustomed to, what guarantee is there that you'll go and visit a website and track it down for yourself there?

One could, of course, make the argument that nobody is compelled to use these services and that it's not compulsory for these companies to provide a platform to every individual or organisation. That's true. But nobody could deny that, in 2021, trying to communicate with a large audience without relying to some extent on these big tech platforms—Facebook, Twitter, Google—is going to seriously limit the number of people you can reach. I acknowledge the decision of Google, in this instance, to act responsibly and negotiate with Australian news media organisations to reach a fair commercial outcome regarding the sharing of journalism on its platform. Nevertheless, we still have a situation in Australia where any of these major corporations have the power, if they choose to use it, to destroy an Australian business or to affect the outcomes of a democratic election in Australia.

One of the most concerning actions of Facebook last week was that, in the midst of the Western Australian state election campaign, it suddenly and without warning took offline the page of the Western Australian opposition leader. People from all sides of politics have denounced this action because it reveals a very serious potential problem for our democracy. That problem is that these platforms are so dominant and play such a major role in how our society communicates with each other that, if some participants in an election have access to platforms and others don't, we can reasonably expect that to have an impact on how people vote. What happens if big tech decides that it doesn't want a certain party to form government at the next election or that it doesn't want certain senators elected? Does anyone really doubt that these massive foreign companies could have a major impact on the results of our democratic elections or that, if they thought it was in their commercial interests to do so, they would?

Even before last week, it was clear that big tech companies were willing to take sides on political issues in public debates and remove access to their platforms to people they judge to have the wrong point of view. It's well documented that Twitter, for example, regularly bans accounts of women who tweet about sex based rights for women. One of the most egregious examples that has been brought to my attention by constituents is an account which was banned for tweeting that 'only females get cervical cancer'. Twitter judged this comment to be a violation of its rules against hateful conduct. Is it any wonder, when Twitter bans simple statements of fact like that—a fact which is central to how we fight a deadly disease that kills millions of women—that we see other media censoring the same views in universities, governments and other institutions, developing policies which are increasingly out of touch with reality? It's just one example of how tech giants can and do play a major role in public policy debates by using their power to determine what is seen as acceptable speech and what isn't, and what a politician or a political candidate can say and what they can't.

While Facebook is clearly front of mind at the moment because of its misguided behaviour last week—and we've heard extensively across the chamber from other senators expressing their views about this—we shouldn't overlook the fact that Twitter also has huge market power over the flow of information. As others have pointed out, these tech companies, like Twitter and Facebook, have very poor records at tackling illegal content on their platforms. Both have, frankly, been repeatedly too slow to take down accounts distributing child abuse material. Both have hosted material promoting violence and terrorism. When this is pointed out to them, they claim that it's too difficult to find and take down these accounts. Yet Facebook had no problem pushing a button last week and banning all Australian news content. And Twitter has no problem removing an account that tweets that only females get cervical cancer.

Of course, if Facebook or any other company doesn't wish to offer news content on their site, that's up to them. Ultimately, if that's the path they're going to pursue, then it's up to their customers to determine whether they will keep using a platform which doesn't offer any real news or journalism. But what wasn't acceptable was the decision by these companies, by Facebook, to try and bully the Australian government and the Australian parliament into making a different decision by suddenly and arbitrarily banning all sorts of pages, as we saw last week. In my own state of Tasmania, the Facebook pages of our Women's Legal Service and Sexual Assault Support Service were both shut down. This is an absolute disgrace. It's been well documented that charities and essential services were also taken offline without any justification or prior notification. Mark my words: this is not the behaviour of a good corporate citizen.

It has been interesting to note the reaction from around the world to Facebook's actions. Much of the commentary has focused on the fact that what Facebook is trying to do is to send a message to the governments of other countries. As I referenced earlier, the issue of the dominance of big tech and the impact those companies have on businesses and on our democracy is one which many countries are grappling with. Other nations may or may not choose to pursue the same type of law we are debating here today, but it's clear that many nations will be taking steps to curtail the abuse of market power by big tech. That's why leaders from other countries have urged Australians to stand our ground and not to back down. Once again the world is looking to Australia as a leader in standing up to attempts at coercion, and once again the Australian government is showing leadership by demonstrating our sovereignty and our commitment to making laws which this parliament deems to be in the interest of the Australian people. As the Prime Minister has said repeatedly over the last 12 months, Australia does not respond to threats. We are a sovereign nation and we are not going to be bullied or coerced by other nations or by foreign corporations worth hundreds of billions of dollars.

It has been pleasing that politicians from all sides have supported this principle and made it clear that Facebook's actions last week were utterly unacceptable. I sat in the chamber last night and listened to a range of contributions, and it would appear that the concerns I have raised in my short remarks in the chamber today are widely shared. It's one of those unfortunately rare moments in this place when we, as parliamentarians, come together and, while we might disagree on the manner in which we determine to solve a problem, agree that a problem exists and something must be done to rectify it. That's why, as a nation and as a parliament, we will continue to pass laws which are in the interests of our society, our economy and our people. After the events of last week, it might be the case that in the future we need to make further laws to tackle the undue influence of massive tech companies on our democracy. If that is the case, I'm confident that the government will, as it has always done, take advice from the experts and consult at length with the public and all affected participants and businesses before passing legislation.

It would be remiss of me, in making these remarks to the chamber today, not to mention the good work of the Senate Economics Legislation Committee, chaired by Senator Slade Brockman, who is in the chamber. The inquiry that they undertook into the very piece of legislation we are discussing here today canvassed many of the issues that I have raised in my contribution, around the market power that these big tech companies have and the pervasive and somewhat disruptive impact they have had in terms of both our media landscape in Australia and, more broadly, our democracy.

As one of the younger senators in this place, I am of the generation that effectively grew up with Facebook and Twitter and, before that, Myspace, although that is not necessarily what we're talking about here today. When I was compiling my notes to speak on this bill, I was thinking about how social media has changed the way that we communicate with each other and, more importantly, how we get information. Fundamentally, it has changed massively in the last 10 to 15 years as fellow millennials have grown up and embraced social media. We've seen all of the good that it can do but we now see some of the challenges that it raises, and I think it's really pertinent that this government and this parliament have turned their minds to some of these issues and are looking to address them with the bill we are debating here today. I suspect more needs to be done, but this is an incredibly important space for government to be proposing solutions in.

12:25 pm

Photo of Susan McDonaldSusan McDonald (Queensland, National Party) Share this | | Hansard source

I would also like to acknowledge the presence in the chamber of Senator Slade Brockman, who has chaired the Economics Legislation Committee so ably through this process. Indeed, I acknowledge all of the senators who have been a part of the Economics Legislation Committee hearings on this issue of considering a news media and digital platforms mandatory bargaining code. As a member of that committee, I had the opportunity to see firsthand the quite extraordinary behaviour of Google and Facebook. It was, in many ways, a terrific example of just why this legislation has been considered and why it's so important. The churlish actions of both companies prior to the hearings and during the hearings into the Australian media landscape and, of course, Facebook's latest actions show that the attempts by the Morrison-McCormack government to bring fairness to the sector are exactly the right thing to do.

In Australia we have a relatively small population, and this is not the only example where we've had to address a market imbalance through the introduction of a code. There are many agricultural industries and supermarkets that have benefited from a rebalancing of the market. The evidence from the ACCC and Professor Allan Fels was quite startling in its directness about how there was a market failure and how important it was to have a mandatory code in this space because it was only the threat and then execution of a mandatory code that would force these digital megacompanies to come to the table and negotiate with Australian media businesses.

I want to clarify again, for anybody who is unsure, the purpose of this code. It is a world first, and we will have much of the world looking at Australia and the success of this binding code that will address the bargaining power imbalance between news media businesses and digital platforms. The bargaining code has been developed after extensive public consultation, which has gone on for nearly three years. The code will ensure that news media businesses are fairly remunerated for the content they generate, helping to sustain public interest journalism in Australia. It is the role of the fourth estate, the media, to hold business, the government and other politicians to account as well as to manage the very important process of informing our communities. The idea of hyperlocal media is so critical to the success of our communities. If there's something that's come out of COVID, it is our desire to feel more connected, to understand more of what's going on in our streets, suburbs, towns, regions, states and nation. In a world of increasingly global events, it is so important that we have a media capable of doing that. The code will support a diverse and sustainable Australian news media sector, including Australia's public broadcasters. The most important part is to encourage the parties to undertake commercial negotiations outside of the code, and I am very pleased to note they have commenced.

One of the things we heard during the evidence was a lack of connection being made by these digital platforms around what their impact has been. They were proposing that they were merely a platform that provided media to be read, but what they failed to address was the number of Australian businesses who have been lured away from traditional advertising media. By that I mean advertisements in the local paper, advertising on the local radio and this move to advertising and promoting on Facebook and buying Google ad words.

I've spoken to so many businesses that have invested a significant amount of their marketing dollars into these global tech giants but it has come at a price, and that price has been that our local media outlets have lost that advertising revenue which then allowed them to pay for their journalists, pay for the news content. What we have to understand is what percentage of the market that Facebook and Google have now obtained of the digital advertising space. We have to exclude things like billboards but understand, of the marketing dollars being spent in Australia, how much it is and where it is going.

Senator Chandler made some terrific points as she spoke just then, particularly around Facebook making commentary around how difficult it was for them to manage content on their pages and yet they were so quick to shut down so many pages just recently. Charities; emergency services; important weather information, like the Bureau of Meteorology; women's legal centres; community noticeboards—all of these have been in the situation of providing really important local news and media to their communities. That was a really unfortunate own goal. To Facebook's credit, much of it has been quickly rectified, but it has demonstrated the extraordinary power and reach that these businesses now have. I know how important these pages are in my regional parts of Queensland. Senator McCarthy talked about the Facebook groups and news groups that connect her across her people around the north and it is the same for me. The shared joy and despondency as people read the 'who got the rain' Facebook page. Those who have got it are very happy and those who don't manage to contain their despair. In some ways it's no different to the old phone party lines where people used to ring up and share news of rain.

I personally know Queensland journalists who were made redundant in recent years as advertising dollars went from regional newspapers to the big tech companies and offshore, instead of being reinvested into the industry. As advertisers devoted more of their budgets to Google and Facebook, News Corp made the decision to stop printing newspapers in the smaller centres—Charters Towers, Bowen, Whitsundays, Port Douglas, Atherton, Mareeba and Innisfail just to name a few—resulting not only in job losses but in the loss of key local information sources in those communities.

I just want to call out a few of those incredible community leaders who have continued, people like Colin Jackson, the tireless editor of The Longreach Leader newspaper, who by his own admission has made his life so much tougher by expanding into other towns in Central Queensland. The leader now covers a vast area from the Western Queensland border right down to the south-west corner. Now with papers operating in Emerald and elsewhere in Central Queensland it's great to see that local news is still a hot commodity in the bush. Colin's brother David has also started a paper in Home Hill in North Queensland and each edition is voraciously consumed by the town's folk. You'll be all be interested to know that there is a North Queensland businessman by the name of Scott Morrison—not our own Prime Minister but a very active businessman who recently started the Burdekin Local News. I acknowledge Carl Portella at the Mareeba Express, who has weathered the storm and continues to service the Atherton Tablelands. I'd also like to acknowledge the commitment to local news of Al Kirton, the group general manager of North Queensland radio, which covers Innisfail, the Gulf of Carpentaria and all points in between. I couldn't go on without mentioning Ben Dobbin, who on his Rural Queensland Today show covers so many of the important issues that stretch across our state. Derek Barry, at The North West Star in Mount Isa, is one of the most committed newspaper editors I've seen when it comes to ensuring that everything, from the very important to the very trivial local events, is covered.

We heard evidence from Country Press Australia, a terrifically important organisation which represents more than 160 independent, regional and local mastheads across Australia. This organisation is more than a hundred years old and has mastheads within its membership that are more than 160 years old. So it is terrifically important that as part of this process we continue to consider regional newspapers and other regional media and the role that they play in holding local members, local organisations and local issues to account and that, when the code is reviewed 12 months after its introduction, we also consider how those community papers and media organisations are being treated.

Google and Facebook have now negotiated to pay Australian media outlets for the content they promote on their sites, and the ABC will be a beneficiary of this. During the hearings, the ABC said it was committed to spending extra revenue on regional journalism, which is so important. The ABC likes to promote itself as covering weather events and other important issues around the nation, but, of the ABC's 3,273 content makers, just 537 are located outside of capital cities. This is a staggering disparity and it brings into sharp relief the work that is being done by journalists such as Charlie McKillop and Tom Major in Far North Queensland. I never cease to be amazed by the miles they do and the important events they cover. There are also ABC North Queensland's Michael Clarke and ABC Far North Queensland's Adam Stephen, with whom I have regular contact through their radio shows, as well as Krystal Gordon and Zara Margolis at ABC North West Queensland, Shirley Way from Resonate regional radio, Paula Tapiolas in Townsville and Eric Barker—just to name a very few more.

These journalists epitomise the commitment to regional journalism that must be admired and respected. They are the ones who act as the photographer and the sound producer. They write and edit their own stories. They drive thousands of kilometres every year to get around, yet they are so poorly resourced by the ABC. I make it very clear that, as part of the Senate inquiry, the ABC made a commitment that this additional revenue would flow to these kinds of content makers and journalists. I intend to hold them very carefully to that commitment. During the hearings, the ABC said it wanted to move 75 per cent of the Ultimo Bay staff out of Sydney within next five years. But, given that Parramatta in Western Sydney is considered regional, I am not holding much hope of them getting too far. But, again, I'm sure that they will be making a very valiant attempt to commit to genuinely regional Australia.

The government running this agenda during COVID was terrifically important, because we know how important it is to know what happens in your local community and we need qualified and trained journalists to gather this information. We need it distilled, we need it presented, we need it fact-checked, and these journalists need to be paid for this important work. The code provides a framework for parties to reach commercial agreements so that news media businesses are fairly remunerated for the content they generate. The central feature of the code is that it encourages parties to undertake commercial negotiations outside the code. It's encouraging to see recent reports that that is exactly what's happening. The code, as I said, will be reviewed by Treasury one year after its operation to ensure that it is delivering the outcomes that are consistent with the government's stated policy intent.

12:40 pm

Photo of Ben SmallBen Small (WA, Liberal Party) Share this | | Hansard source

I rise to address the chamber today on the very important matter of the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021. It should come as no surprise to honourable senators here today that, yet again, the eyes of the world are on Australia and on the Morrison government because not only in our response to the global COVID-19 pandemic, but also in this very important area, the Morrison government is at the very forefront of progress on important matters.

This bill, as we've heard around the chamber today, establishes a world first mandatory code to address the bargaining power imbalances between digital platforms and Australian news businesses. As someone who grew up in regional and rural Australia, I found that Senator McDonald's comments resonated very strongly with me as someone who understands fundamentally the importance to the Australian people of access to journalism that represents them, their lives, their communities, the places in which they choose to bring up their children. So it is absolutely right that it is a priority of the Morrison government to ensure and sustain the accessibility of quality public interest journalism across Australia.

I guess the reality of this situation is that regulation around large digital platforms is a very new thing. When I first went to high school iPhones and iPods were not yet a thing. Yet now Facebook and Google are ubiquitous in our lives not only online in the content that we consume but in appliances and in a sweeping connectivity thanks to the Internet of Things. So the very real question for governments not just here in Australia but around the globe is: how do we appropriately regulate those businesses in a way that doesn't undermine their business models, and doesn't undermine the business models of other sectors, yet allows fairness, transparency and the integrity that we've come to expect in all aspects of Australian business, including the fourth estate?

Consumers are obtaining more and more news online. That reflects the broader shift in the way Australians consume much of the material that we see, listen to and read. For instance, I long ago stopped my hardcopy newspaper subscription and instead read Australian journalism on my iPad. I think that makes me not an outlier but very much in line with most Australians—traditional business models have been disrupted by the rise and rise of technology.

It is very clear from the bill before the parliament that it is the Morrison government's intention to ensure that the sustainability and future of Australian media outlets is embedded in a mandatory code that will enhance, not undermine, public interest journalism. It's no bad thing that the digital platforms are thriving. In fact, that's a very good thing for Australians. But the reality is that their advertising revenues are growing in leaps and bounds. Those very same advertising revenues were once what supported quality journalism in rural, regional and urban Australia.

My very first job was, in fact, delivering a regional newspaper. I was particularly grieved to see that the BunburyMail, which provided me with that very first taste of what it is to be employed in Australia, was unfortunately suspended at the onset of the COVID-19 pandemic. Those are very fond memories of mine: rising early in the morning, heading down to the warehouse with my long-suffering mother, collecting vast bundles of newspapers and advertising pamphlets, which we had to hand insert into each paper, and delivering them across the neighbourhood, all before turning up to school bright-eyed, bushy-tailed and ready to go again.

The point, there, is that quality journalism is important to me and is important to the Morrison government. That's why we encourage parties to undertake commercial negotiations, either inside or outside the provisions of this code. The code itself does, however, set a minimum standard for commercial negotiations between Australian news and media businesses and the digital platforms to address that power imbalance that was so clearly evident in the ACCC report and has been the subject of further inquiry with the good work of the Senate committee, ably chaired by my colleague and fellow Western Australian Senator Brockman.

The minimum standards in that code are an advance notice of major algorithm changes, and it's quite important that we recognise the bill contemplates only a content algorithm and not an advertising algorithm. Good-faith bargaining is a principle that upholds all business relations in Australia and, where a commercial deal cannot be reached, a process of fair and balanced arbitration. That process of arbitration—as we've seen some uncertainty eliminated in recent days and weeks—is a lump-sum payment. It is no disincentive to businesses doing well in Australia today.

Senator McDonald raised a very pertinent question, I think, in reflecting on just how much of that advertising revenue goes to the big two digital giants, being Facebook and Google. Honourable senators would be startled to know that $81 in every $100 of online advertising spend in Australia goes to Google and Facebook. In any other market where we saw two players with 81 per cent of the market, Australians would rightly expect that there'd be mandatory provisions within Australia to ensure that good-faith element and uphold the sorts of things that we expect in the course of life.

The code provides for digital platforms to publish standard offers, which are a way for smaller news media businesses to avoid the cost and time of going to arbitration. That's a very real disadvantage for small businesses, which I know too well, and so it's a great thing. Enforcing clearly defined and open standards allows for greater transparency for both parties. I think the Treasurer has been clear that, at this stage, the code will only apply to the Facebook News Feed and Google Search. That very much reflects this 81 per cent share of the market they currently enjoy and, therefore, they have the ability to clearly impact Australian society and Australia's place in the world. Indeed, we have seen an unprecedented level of interest internationally in this Australian legislation, precisely because of the fact that these platforms do have such an ability to influence life here and elsewhere.

I can think of no better example than, as Senator Chandler raised—and this is something that I guess stunned myself, Minister Reynolds and Senator Brockman as Western Australians, along with our fellow WA colleagues—Facebook's egregious breach of faith in blocking access to Zak Kirkup's Facebook page whilst maintaining full rights for the Premier of Western Australia, Mark McGowan, to publish his material. This comes in the midst of an election campaign. It goes to fundamentally undermine an important democratic process that's underway, and so, whilst it might be funny for some to refer to Zach Kirkup as being 'zucked', the rest of us look on aghast. The reality is Zach Kirkup was not alone. WA has recently been struck by very serious bushfires in the Perth hills, so access to Western Australia's Department of Fire and Emergency Services page was blocked, along with the Hobart Womens Shelter. Dare I say, I'm probably not going to come to the assistance of the ACTU in this place very often; however, even the ACTU was deprived of its ability to communicate effectively as a result of Facebook's actions.

We are seeing a response from the Australian people to come out strongly in support of this bill, to come out in support of what is fair and decent and in support of what protects journalism and the generation of quality news content in Australia, particularly regional and rural Australia, and that's welcome. But it is also worthy of reflection that we actually encourage Facebook and Google to continue their important roles in Australia. We contemplate that this bill provides for continued presence in Australia where they and media businesses are able to thrive and prosper together. That is a good thing for all Australians. The actions that they took in retaliation to the Australian parliament contemplating in this provision were rightly egregious; they have since been wound back. So we see that the way forward is to reflect on the provisions of the bill, which have been subject to significant scrutiny. This was not a thought bubble. This was not an idea that the Morrison government has rolled out in undue haste, as honourable senators have previously reflected on; this is a matter of some three years now of reflection, inquiry and careful consideration.

So, with the transparency of due process, with the support of the Australian Competition and Consumer Commission, with the good work that's been done by the Senate committee, with the support of the House of Representatives and, hopefully, the support of the Australian Senate, we will see a piece of legislation through this place which will absolutely see Australia in global headlines. It will be in global headlines for introducing a world-leading and binding code that not only addresses the power imbalance between news media businesses and digital platforms but also allows for those businesses to continue in Australia. It allows for those businesses to undertake commercial negotiations outside the code. In fact, we have already seen that, long before the passage of this bill through the Senate, and that is a fantastic show of faith by the Australian business community.

Seeing media businesses with an efficient pathway to finalise those agreements and without inhibition for small- and medium-size enterprises to reach deals with global giants will be something that Australians will applaud. Ensuring that an independent arbiter is able to determine the level of that remuneration that should be paid under a fair and balanced final offer arbitration model in the event of a dispute or the failure to see an agreement reached is an appropriate safeguard. Setting clear and workable minimum standards for digital platforms, including requiring 14 days advance notice of deliberate algorithm changes, is again something that Australians will see as fair; Australians will see that as reasonable. Most importantly, Australians in rural and regional Australia will continue to be able to enjoy news content that's generated in rural and regional Australia, news content that's meaningful to them, their families and their communities.

In short, we see only good things coming from this bill but, as any responsible government would, we've undertaken to have a review of this legislation just 12 months after its implementation to verify that the operation of the bill is delivering outcomes that are consistent with the very genuine policy intent with which this government acts. It's on that basis that I commend the provisions of the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 to the Senate.

12:55 pm

Photo of Slade BrockmanSlade Brockman (WA, Liberal Party) Share this | | Hansard source

Well, we've seen so much change. I would never reflect on your age, Mr Acting Deputy President Sterle, or mine, but standing up after Senator Small, one of the more recent arrivals to this place and someone who is a little younger than me, and following Senator Chandler, I will reflect that perhaps you and I saw a different telecommunications environment, particularly when we were growing up. Admittedly, I was a little tacker, but I very well remember the fights in the seventies and early eighties over just getting connected to the phone system. The battles then were over access. The battles now, and the challenges that we face as a government and as a society, are over something very different.

The mobile phones that we all carry in our pockets now have a level of connectivity that was unimaginable half a generation ago. They have access to information and news sources that was unimaginable half a generation ago. They are ubiquitous across our society in a way that was unimaginable just half a generation ago. I remember in the early nineties a group of friends and I had one of the first modems in Western Australia and, literally, there were a few bulletin boards that you could access. Today, obviously, the internet allows people, through their devices and their computers, to access news sources not just in their own backyard but right around this planet. That puts an enormous pressure on our regulatory framework. It puts an enormous pressure on society. It puts an enormous pressure on us as lawmakers to make wise choices in an environment where, quite frankly, technological change outpaces the ability of the legal system to keep up.

It is a challenge, and getting the balance right in these things means that we must always be nimble, flexible and willing to try a new approach. But, then, we must also be willing to see if it is working and, if it is not, willing to see where it is working and where it needs to be changed. I think that in this bill, the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021, we see a willingness to embrace the need to address what is a clear and dramatic issue in the media environment. It is an environment where technological change, the platforms people use and the way people interact with the internet is also constantly changing and evolving, so we cannot stand still. As a government, we cannot pretend, and we do not pretend, that this is a one-step process where all the problems that we currently see in the news media environment will be solved by this legislation. In fact, the ministers involved—the Treasurer and the Minister for Communications, Urban Infrastructure, Cities and the Arts—understand fully that we need to look at this area constantly and we need to keep focusing on what is working and what is not working. We need to make sure that we deliver an environment in this country where we balance the needs of the commercial sector with the needs of the fourth estate to maintain a strong journalistic presence that delivers high-quality, factual, evidence based journalism to the Australian people.

People have a thirst for local news in this country. It is one of the great shames of the transition to a new, much more digital world that we've seen those small, regional media outlets—radio stations, TV stations, but, in particular, newspapers—become a severe casualty of the technological change that has washed over the world in the last generation or so. Without those local media sources, people look around at what options are available to them, and, unfortunately, we have an environment where some of the options that are available are not necessarily positive in terms of how those people interact with society, the political environment and information. We see the growth of sources of information that are, at best, dubious and we see the need for high-quality sources of information become much more dramatic.

A few people in this place have mentioned that the Economics Legislation Committee had a look at this bill. As the committee's chair, I come to the examination of an issue like this with the fundamental belief that if we can avoid regulation we should do so; that we should step in not merely because there is a problem but when there is a problem and also a way the government can solve it without overly constraining people's ability to operate in a free and open society. Very telling through that inquiry were some of the comments made by Facebook. But, before I go into that, I wish to acknowledge the other members of the committee. We've already heard from Senator Bragg and Senator McDonald, who are my colleagues on the committee, but I also want to particularly acknowledge Senator Alex Gallacher, who's the deputy chair of the committee. Alex always comes at these issues with a very fair perspective and a very open and inquiring mind. Senator Jenny McAllister and Senator Rex Patrick are also on the committee.

One of the things that really stood out the day we heard from Google and Facebook was Facebook's answer to a question from my colleague Senator Bragg. He basically asked them what high-quality, objective, independent Australian news was worth to them. The answer was: well, not very much. That was a shocking answer on a number of counts. It's shocking on the surface but it's also shocking because Facebook, at the same time as saying that, had done deals with media companies to pay them for content. So on the one hand Facebook were saying that high-quality content had no commercial value to them but on the other hand they were paying for the same content. That's a circle that doesn't square.

We've got a situation where the environment in which news media is operating has changed very dramatically. As I said, when we were both younger men, Mr Acting Deputy President Sterle, the newspapers were an inch thick. The classified sections were half the paper, and they delivered the proverbial rivers of gold to the large media organisations. I remember the West Australian was literally an inch thick some Saturdays, with a huge classified section—20 or 30 different pull-out advertising materials, plus the copy adverts. That funded a lot of public interest journalism right around this country at a very granular local level, in cities like Bunbury, where Senator Small comes from, right across the regional areas of Australia. In the large cities, obviously, classified advertising provided a really significant source of revenue to provide the copy that drove sales in those papers, keeping people informed of the events of the day. As those classifieds disappeared, as they went online in a variety of different forms and the advertising drifted away—as Senator Small so rightly commented, now 81 per cent of digital advertising goes to those two large companies we're talking about today—we had a gutting of public interest journalism and a significant diminution of the ability of on-the-ground media providers to continue. Not all of that can be addressed through a bill such as this. It doesn't pretend to address all those issues. Many of those issues are structural issues which, in a fundamental way, can never be addressed. It's difficult to conceive of an environment where all those many hundreds or thousands of regional newspapers will ever exist again in the way they did before. That's not to say they cannot be replaced by something else. In fact, many of them have been replaced by online services of one form or another in those towns, perhaps not running exactly what the newspapers provided but certainly providing a source of news and up-to-date information on local events.

In that frame, we have these very large media companies having an extraordinarily dominant position, and the government, through the work of the ACCC, has developed this mandatory code to address the massive bargaining power imbalance which exists between the digital news platforms and Australian news businesses. As we continue to obtain more and more of our news online, we have to give those news media outlets a way of grappling with the need to find those viable and sustainable business models for the provision of that journalism which is so fundamental to a free and open and democratic society. I think the digital platforms themselves would acknowledge that they are thriving and have an extraordinarily central place within the new digital environment that we're all operating in. These behemoths that have such influence, such control over that digital advertising revenue, earn revenue from the content that's created by the media companies in Australia. This code of conduct is a way of allowing Australian news media businesses to be fairly remunerated for the provision of those services. Again, this all comes back to this massive imbalance of bargaining power.

As I've said, my preference would be for as little regulation as possible, and that is why I am extraordinarily pleased that we are seeing so many deals being commenced and concluded outside the code. I think it is very important that, where a commercial deal can be struck between two players in a free market environment, it is struck as soon as possible and with the least regulatory impost as possible. This was always part of the fundamental design of the code and a really important part of the design of the code, and I certainly acknowledge the work of Minister Fletcher and Treasurer Frydenberg. It is very important that, in line with our principles and the way we approach these issues, those agreements outside the code have standing in their own commercial right. They do not need to reference the code and they do not need to be within the code to still exist.

I think it's very important that we listen to the media companies going forward, but we must also listen to Google and Facebook and the other large digital players going forward. As the committee recommended, and as the government had already acknowledged, this is a complex area of law which does need to be examined on an ongoing basis, and we have the review in 12 months time. It is important that we look to see how the digital environment evolves over the next 12 months. I think it is very fair to say, as Senator Small and many others who have made a contribution in this place today and yesterday have acknowledged, the eyes of the world are on us as we do this. We want to, as a government, get this right. We want to be a demonstration to the rest of the world as to how they can get this right.

1:10 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

This Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 will, if passed, see big overseas tech corporations pay Australian news media outlets for content appearing on their platforms. The purpose of the news media bargaining code is to level the playing field between news media and big tech when negotiating commercial agreements. The code was recommended by the consumer watchdog, the ACCC, after its inquiry into digital platforms in Australia.

Google and Facebook are gatekeepers of the internet. They are massive tech corporations which profit off ad revenue that used to support local and independent media. They also profit by harvesting, aggregating and selling data regarding their users. According to the ACCC, Google and Facebook generate more than $6 billion a year of advertising revenue in Australia—massive revenues, massive profits—but they pay little or no tax in our country. These big tech corporations monetise their audiences, ordinary Australians, by selling advertising alongside the news content that they aggregate and curate on their platforms. At the same time, they are collecting huge amounts of personal data from each user which is then monetised and used to better target future advertising at them. As Tristan Harris, a former Google design ethicist, warned on the documentary The Social Dilemma: 'If you don't pay for the product, you are the product.'

Due to their virtual monopolies, news media have had no choice but to distribute their journalism via these big tech platforms. But let's not fall into the trap of seeing media moguls like Rupert Murdoch as a victim in all of this, because, just like Facebook controls much of Australia's online activity, News Corporation—tragically for this country—controls much of the Australian media.

The similarities don't end there: both are big corporations with offshore head offices that don't pay their fair share of tax in this country and their respective leaders, Mark Zuckerberg and Rupert Murdoch, have far too much influence over Australian policy and Australian politics. That is why the Greens have long called for the government to show courage and will to deal with media concentration and online ownership by implementing new tax measures funding public interest journalism and increasing media diversity. It's also why the Greens went into bat for the real underdogs being exploited by big tech—Australia's public media funded by Australian taxpayers as well as the AAP. We secured the inclusion of public broadcasters, the ABC and the SBS, in the code along with public funding to protect AAP in the short-term. These are important reforms but they are not the only reforms that we need to see in the digital space.

Tech giants have profited from a deregulated global market in which personal data is sold to the highest bidder. Australians are becoming more and more aware of how their personal and private data are being harvested and monetised by overseas big tech corporations. People are learning from everything from the Cambridge Analytica data scandal to documentary films like The Great Hack and The Social Dilemma. They have learnt, for example, about how Facebook has allowed itself to be weaponised by violent extremists and conspiracy theorists due to an algorithm that far too quickly leads far too many people to be swamped by conspiracy theories and exposed to the violent rhetoric of hate groups. Facebook's news feed can operate as a propaganda mill which facilitates the dissemination of vile racism and the incitement of violence. Never forget that Facebook live streamed the Christchurch massacre where large numbers of Muslim people, going about their peaceful daily prayers, were mowed down in cold blood by a white supremacist terrorist. It was live streamed on Facebook. Yet we allow Facebook's billionaire founder and CEO to determine what news millions of Australians are exposed to. What a time to be alive! What a world we live in!

Facebook also jumped into bed with Cambridge Analytica, a tech firm headed by a former Trump adviser Steve Bannon, which had worked with Brexit-leave campaigns. Cambridge Analytica harvested the Facebook profiles of millions of people and used them to build a powerful software program to predict and influence voting decisions and the ballot box. That assisted the campaigns of people like Ted Cruz and Donald Trump, as well as the Brexit campaign. Apologising for this breach of trust caused by Facebook's role in the Cambridge Analytica data scandal, Facebook CEO Mark Zuckerberg said: 'We have a responsibility to protect your data, and if we can't then we don't deserve to serve you.' I can agree with him on that at least.

Then there's Google with its long history of monopolistic and antitrust behaviour and billions of dollars-worth of tax avoidance around the planet including here in Australia. Google has worked with US federal agencies—the NSA, the CIA and the FBI—to spy on private citizens. It has worked with governments to develop products with censored search results, for example, Dragonfly, a version of Google's search engine that complied with the Chinese Communist Party's demands to censor sensitive speech and comply with China's data provenance and surveillance laws. This is the same Chinese government responsible for humanitarian atrocities on the Uighur people, the death of democracy in Hong Kong and longstanding crimes against the people of Tibet. Google is also one of the single biggest invaders of personal privacy on the planet. Google tracks your movements, viewing and purchasing through its search engine, browser, audio, YouTube, Gmail and devices like mobile phones running Android operating systems and Google Maps. Google's former CEO, Mr Eric Schmidt, once said: 'If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.' That just shows Google doesn't get it. Wanting privacy is not the same as having something to hide. Anyone who thinks it is shouldn't be trusted with our personal data. This is from a company whose slogan used to be: 'Don't be evil'.

Australia has a Privacy Act but, in the digital world, it is clearly unfit for purpose. There is no greater contrast than between our Privacy Act 1988 and the European Union's General Data Protection Regulation, which came into force in 2018. The GDPR is considered the gold standard for the protection of consumer information. Whereas our Privacy Act provides very limited protection over personal information, the GDPR provides protection over 'any information relating to an identified or identifiable natural person' who can be identified directly or indirectly by personal data.

The differences between the European regime and that here in Australia are born of basic philosophical differences—like the difference, for example, between neoliberalism on the one hand and civil libertarianism on the other. Unlike Australia's neoliberal approach, focused primarily on corporate profit and corporate greed—adhered to both by major parties in this place since it was turbocharged 40 years ago by the Australian Labor Party under Mr Hawke and Mr Keating and then built on and expanded even more rapidly by the arch neoliberals inside the LNP—the European regime takes a human rights approach, which is actually focused on people. What a refreshing change to see people focused on, rather than corporate profit and corporate greed.

Unlike Australia's Privacy Act, the GDPR applies to all organisations, regardless of location or size, who process or control any personal data of EU residents. It requires consent to be given for an organisation to process or control a resident's personal data, and it provides individual rights, such as the right to data portability, the right to object and the very important right to erasure, otherwise known as 'the right to be forgotten'.

The GDPR's regard for data protection as a fundamental right reflects data protection being a constitutionally enshrined right in the Charter of Fundamental Rights of the European Union. But, unlike the EU—or every other liberal democracy in the world—Australia alone does not have a constitutionally or legislatively enshrined charter of rights. We need one desperately. We actually needed one long ago, because, as Justin Warren from Electronic Frontiers Australia has warned, you can't ever get privacy back.

We can't change the past, but we can change the future. We need to start legislating privacy protections now in this country. We need to stop the bleed and protect future generations from being exploited and monetised by big tech, like our generation has been. That's why I'll be moving a second reading amendment that calls on the government to implement data protections equivalent to the European Union's General Data Protection Regulation. Ever since Cambridge Analytica, calls to nationalise social media and big tech have increased in frequency and force, and rightly so.

Colleagues, I ask you to come with me on this. Just imagine we had a publicly owned search engine which did not have to make a profit by selling our data and did not track people's online behaviour and which had an algorithm that prioritised accuracy rather than popularity. Just imagine we had a publicly owned social media platform, one which did not retain data, or perhaps one which did offer the option of retaining people's data but provided it only to the user so that a person could decide, if they wished to, to sell their data or to donate it to a research institution for the public good. Just imagine how much stronger our democracy would be. Just imagine how much stronger and more cohesive our society would be.

The problem we've got is that algorithms on platforms like Google, Facebook, and YouTube are driving the destruction of our very democracy. They are bastardising elections. They prioritise things that get a reaction over things that are factual and truthful. When we look back on this time, not only in our country's history but in our world's history, we will see abundant evidence that these algorithms, developed and kept secret by companies like Google, Facebook and YouTube, are responsible for so many of the evils and the challenges of our world today. We need to rein in big tech. We need to properly regulate big tech. We need to break up some of the monopolistic big tech companies. It is not an exaggeration to suggest that the future of our democracy and our society depends on doing that.

1:25 pm

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

I always enjoy following the previous speaker, Senator McKim, because I know that, if I've come in here with five minutes worth of material, after listening to Senator McKim I will probably have five hours worth of material to debate. At the outset of my contribution on the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 I would like to take advantage of the opportunity which Senator McKim has afforded me and deal with at least three of the points he raised.

The first point I would like to make is to congratulate everyone who was associated with the pressure that was imposed to ensure that our public broadcasters were brought within the ambit of the code. I actually think that was incredibly important. I think it's very good that the ABC and the SBS are captured within the code, so I'm certainly on the same page as Senator McKim in that regard.

I'm also on the same page with Senator McKim in relation to the importance of the Australian Associated Press. I think it is important that that institution continues. It provides an invaluable service to our community and, from my perspective, it encapsulates everything important about public interest journalism. I certainly agree with you on that.

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source


Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

Senator McKim knows me well; there's always a 'but'—well, not a 'but' but an 'and'. I must say I diverge from his drawing of a dichotomy between neoliberalism and civil liberties. I intensely disagree with his characterisation of neoliberalism. I'm quite happy to call myself a neoliberal and also a classical liberal. My philosophy is based in part on a book called On Liberty, written by a fellow called John Stuart Mill. It means—and I'll use Senator McKim as a bit of a prop in my analogy—that, if Senator McKim is one of a hundred people in a room and Senator McKim is of one view and the other 99 are of a different view, the 99 have no more right to silence Senator McKim than Senator McKim has to silence the 99. That goes to the absolute core of my beliefs in terms of classical liberalism. For me, it actually comes down to the individual. It's not about big corporations. Indeed, if one reads a lot of the work of great neoliberals such as Milton Friedman and Friedrich Hayek, one finds they actually decry the power that the big corporations had, as rent-seekers, to get subsidies et cetera from government. They actually attack that on the basis that in a free society it should not occur. So I do diverge quite strongly from Senator McKim's view that neoliberalism and civil liberties are dichotomous. I actually think they should be on the same page, although maybe they're not always practised that way.

Lastly, I must say it caused me to smile when Senator McKim referred to people donating their data to research institutes in some sort of noble public view. Great idea! I doubt, Senator McKim, that my data would be interesting enough. I'm sure it would take a lot of time for whoever was looking at my data to come to any great view with respect to its importance in the context of whatever they were looking at. Maybe Senator Ciccone's data would be far more interesting than my data. Goodness knows what people would find among Senator Sterle's data, but it would be extraordinarily interesting as well. I was thinking of Senator Sterle when Senator Brockman was making his contribution and he referred to the huge Saturday newspapers we used to receive. I can remember seeing the paper, as a boy growing up, when the retail classifieds used to be in there and it was half a foot thick. I was thinking Senator Sterle would have needed his truck to transport that paper back to his home for his morning cup of coffee—there you go.

I think we as a country should be proud that we are at the forefront of making sure that companies like Google and Facebook, and potentially others, pay their fair share for news media and that they fairly remunerate the news media organisations that produce that data. I genuinely believe we should be proud as a country that we are at the forefront of that. Of course, when you're at the forefront of something, the introduction of it and discussions relating to it can get pretty willing. We've seen that recently. I would like to commend Google with respect to the extraordinarily constructive approach they've adopted in dealing with news media providers. They should be congratulated, and strongly so.

With respect to Facebook, I note that discussions are perhaps continuing. In this regard, I would like to quote from a good friend of mine, Mr Sam O'Connor MP, who is the state member for the seat of Bonney on the Gold Coast. Mr O'Connor is an outstanding young state parliamentarian. I am sure Senator Stoker would agree with me when I make that observation. When I wanted to get some information about the sites that are being blocked by Facebook because of its concerns with respect to this legislation, I thought there was only one place I would need to go. I'm sure Senator McGrath would agree with me. I knew that Sam O'Connor MP, state member for Bonney, would be all over it. And, sure enough, he was. I want to quote from a Facebook post—a bit of irony there; I probably don't need to spell it out—on this issue from Sam O'Connor MP, member for Bonney, posted on 18 February at 10.49:

Like many of you, I get a lot of my news through Facebook.

It's even better when that news is written and fact-checked by actual journalists.

Sadly none of that reliable, trustworthy, accurate news will be on Facebook anymore.

As of this morning, Facebook has decided to block all Australian news organisations from posting on here.

…   …   …

They're clearly trying to bully the Federal Government into changing its proposed laws to make social media companies pay for news content.

This is where it gets interesting, because he actually lists some of the sites in Queensland that were blocked when Facebook adopted this strategy, which I think was totally unproductive. To continue:

Facebook has even banned and hidden all the posts of important sources of information like Queensland Health, Gold Coast Health, TransLink, the Bureau of Meteorology and domestic violence support service 1800 RESPECT.

Even the Betoota Advocate has been caught by the ban!

This means many people won't see alerts about breaking news or even live-streamed press conferences by these outlets.

With their absence, it adds fuel to the fire of misinformation that already runs rampant here.

Yes, I realise the irony of posting this on Facebook but that's kind of the point—Facebook is a vital source of information for most of us.

We need what we're seeing on social media to be from reliable and trustworthy sources now more than we ever have.

UPDATE—The pages I mentioned have thankfully all been unblocked but this still doesn't resolve the issue with our news outlets being banned from one of their main mediums of communication.

I couldn't have put it better myself.

I would also like to make a few comments with respect to the contribution from my good friend Senator Brockman. As is typical in this place, I agreed with everything Senator Brockman said; I don't have any divergence of opinion with what he said. One thing in particular he said which triggered something in my own thoughts was with respect to the importance of our regional newspapers. From my perspective, when the review of this legislation is conducted one year hence, one of the touchstones will be this: has this legislation worked for smaller, regional news providers and regional newspapers and news outlets? That is of key importance to me.

There are two outstanding publications in the vicinity of where my office is in Queensland, in the city of Springfield, which is part of the fastest-growing region in Queensland, the greater Ipswich region, and they are, firstly, The Queensland Times and, secondly, the Fassifern Guardian & Tribune. They are two outstanding local community newspapers. One of the touchstones, for me, as to whether or not this legislation is successful will be whether or not it gets the desired result for those smaller regional newspapers so that they can continue to provide—as they're doing at the moment to the utmost professional standards—local content for local communities. That is just so important, from my perspective, and that's something I'll be looking closely at with respect to the review of the legislation in 12 months time.

There are a few other comments I want to make with respect to the legislation. In particular, I would like to commend the Hon. Paul Fletcher MP with respect to the amendments which were made to the legislation. From my perspective, we have an absolutely outstanding minister for communications in the Hon. Paul Fletcher MP. I congratulate him for working through these issues with all of the stakeholders and making a number of amendments. I'd like to set those amendments out now. The first was to streamline the requirements for digital platforms to give advance notice of algorithm changes to make them more workable. It is a technical issue, but it is very, very important that that technical issue is sorted and it's effective, it's efficient and it's going to work in practice. The second was to clarify the arbitration criteria so that they consider the reasonable costs of both the digital platform and news media business and amend the legislation to remove any doubt that arbitrated remuneration is to be in the form of lump-sum payments. Again, this is an important clarification.

Before proceeding to the other two amendments, I want to say, in relation to the arbitration, that this legislation is extremely well crafted. The reason I say that is that it provides an incentive to the provider of the platform to negotiate with the news media organisation and come to an agreement. Then, if they can't come to an agreement, there is a process where they go to arbitration. But I can tell you, with my experience in matters of commercial negotiation, I would fully expect that both sides of that commercial discussion will want to come to an agreement rather than take the risk of an arbitrated outcome. So I think the appropriate tension is included in this legislation to get the right result.

The third of the four amendments that the Hon. Paul Fletcher MP made to the legislation was to clarify the role of the ACCC, ensuring its focus is on providing factual information to assist the arbitrator. I think that's an extraordinarily important amendment, because, in terms of this legislation and how it's crafted, the ACCC shouldn't be seen as an actor in the process. It's a regulator. So I think it's important that the ACCC's role and standing in this respect is protected. Again, the legislation is well crafted with this amendment to make it clear that the ACCC isn't an actor in this process; it's simply providing factual information to assist the arbitrator. That's important, because it's terribly important that the arbitrator gets all of the relevant information needed, if it gets to that—and, as I said earlier, hopefully it doesn't get to that; hopefully the parties can come to a commercial agreement. But, if it does go to arbitration, it's very, very important that the arbitrator gets access to all the information and analysis that the arbitrator needs.

The fourth and final amendment I'd like to speak to was to adjust the effect of anti-avoidance provisions so that they take effect from the commencement of the code and ensure that the government's policy intent of not interfering with existing contractual rights under the code is achieved. Again, that's important on a number of levels. There need to be anti-avoidance provisions in this regard, to keep all the parties honest in relation to this process, but there also needs to be a recognition with respect to commercial arrangements that have been entered into before the adoption of the code. Again, I commend the minister with respect to the changes which he has proposed in that regard.

Finally, I think that this legislation achieves the right balance, and I think we're seeing that in terms of the contributions from around the chamber. What I'm hearing generally is that there is broad support with respect to this legislation. I think the instances of overreach—if I can describe and characterise it as that—by Facebook over the last week or so have also led to greater community interest and public interest in this legislation. I'm quite happy to commend the bill to the Senate.

1:40 pm

Photo of Matthew CanavanMatthew Canavan (Queensland, Liberal National Party) Share this | | Hansard source

The Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 is, effectively, amongst some very important and historic laws and regulations that are going through this parliament, and I support it. In fact, this is historic, because I think Australia will perhaps be the first nation, or at least one of the very first nations, in the world to effectively establish a new right for people in the profession of journalism, those who do the hard work and write our news, that ensures that they get fair payment for their hard work.

I note that there are some from my own team with whom I've discussed this, and there are certainly those who support the Liberal and National parties, who are a little cautious about establishing a new right like this, because I suppose the government is, in a way, creating a new market here. It's establishing some new property rights. Normally, on our side of politics, we think that rights and property are best left to individuals to work out. But it's at times like this that we must reflect that there is a level of government involvement in all markets and in the establishment of all property rights. At some point in the past, there had to be rules established around who owned certain land, who had the right to develop areas of real estate and who had the right to build buildings and do other things that created economic activity. While we have forgotten how a lot of those rights were established at different times in our history—they have become natural—almost invariably there was some degree of involvement with government agencies, whether that be through the judiciary in a common-law process or, sometimes, through a legislative process in the parliament. So what's happening here, while historic, is not unique.

Those are things that were done in the past, involving other types of rights and intellectual property. This is just updating those rights for the modern age, because prior to the last 10 years or so this wasn't really an issue. It has been very, very recent. I don't know when I got on Facebook, but it was probably sometime in only the last 10 or 15 years. There was a certain framework established so journalists could be compensated through advertising and charging for newspapers and what have you, but a completely different information model has cropped up in the last decade or so. Rights have to evolve. Rights have to change.

When you think about what we're establishing here through a news media and digital platforms code, it's very similar to other types of intellectual property in a way, because, in the end, what journalists create is intellectual property. We have traditionally consumed that intellectual property in a physical version—a newspaper or a magazine or something we can see and touch. But it's not really the paper that has the value; it's the words that are written on the paper that create the value that makes you want to pay $3 for a newspaper or 10 bucks for a magazine at the newsagent. It's the intellectual effort of writing those words and putting them together in a certain way that creates value.

Other types of intellectual property are protected and regulated to ensure that the creators of the property get a certain fair level of compensation. Every time you switch on your radio or, increasingly these days, open up Spotify and play a song, the artist who created that intellectual property will get a payment. You cannot just set up a radio station and start broadcasting whatever music you like for free. There are rules, regulations and laws around the fact that the creator of the song has that intellectual property right, and they deserve a royalty payment every time their song is broadcast over the airwaves or, now, over the interwebs through our phone.

This is very similar to this code. We now have a situation where people's intellectual property, the articles they write, can be shared through social media—extracts of them, parts of them, can be shared through Facebook or Google. I think those people deserve to have some compensation. I was talking to a friend the other day who bemoaned the implementation of this new media code because their way of accessing one particular newspaper in this country has been stopped. Previously, they could just google an article and a link would let them bring up the full article and read it without any need to subscribe, without any need to pay compensation to get through the paywall. Apparently, in just the last few weeks, that particular method of accessing intellectual property created through news has been blocked. I realise that people would love to continue to get their news and media for free, but that model is not sustainable. If journalists are not given fair pay for the work they do, we will have fewer journalists and fewer newspapers, and we will all be the poorer for it. We can all see that. It is happening before our eyes. Journalism is a tough industry right now and, unfortunately, many journalists have lost their jobs in the last decade or two. Nothing in this code will guarantee or protect all of those jobs. The industry is going through an enormous transition which will seemingly continue for some time yet. We've had the printed versions of some newspapers cease. In my area, in regional Queensland, The Morning Bulletin, a great paper for over 100 years, is no longer in print. That is a great shame and a tragedy. Unfortunately, the historic changes we are making here are unlikely to bring it back. But I don't want to lose more. I don't want to see the online version of The Morning Bulletin shut, I don't want to see more newsrooms close their doors and I don't want to see more journalists lose their jobs if we can avoid it.

This code will provide a lifeline to an essential industry in this country that deserves to get fair compensation for its work. We are in effect setting up a royalty payment for news articles, for news content, for news media—and for TV as well. All that content can now get a revenue stream from those who wish to share that content through the internet. There is no doubt that this code will not be perfect on day one. As I said, we are doing something here that is globally unique. I don't think it's unique in the world of intellectual property, but it is the first time any country is doing this and it is a very complicated area. So I support the code, but I recognise that some degree of adjustment will need to be made over time as we learn and develop how this code works in practice.

I think it is right that the government has sought to focus the code initially on the very large digital platforms. I believe just Facebook and Google search are those identified. I don't think it would be right to try to extend it to the many different digital platforms at this stage, particularly in its early years. Google and Facebook are very large companies with the means to navigate this process. Google reported revenue in Australia of over $1 billion in 2018-19 and Facebook reported revenue of $582 million. That is just in Australia. So I think they have the means to navigate what no doubt are difficult regulations for them to get their heads around given that, as I said, they are unique.

I think it's important to make the point, though, that Google and Facebook don't pay a lot of tax on that revenue they generate in Australia. I recognise that the figures I've quoted are revenue, not profit, but revenue is kind of a fact and profit is the fiction of the accounting world. There are lots of different ways of getting a profit from your revenue lines. Apparently, Google made $1 billion in revenue in Australia but only $200 million of taxable income. That might be true, but they probably made a lot more revenue than $1.1 billion, I reckon. Some of that would be hidden overseas. They paid just $50 million in tax on that. Facebook, of that $580 million in revenue I mentioned, declared taxable income of just $50 million and paid just $15 million in tax. I think Google and Facebook are probably making higher profits than that from their dominance of the advertising market in Australia. I'm not accusing them of doing anything illegal. I'm sure they're legally seeking to minimise their profit, as most taxpayers would seek to do. But I do think there's probably some ability for those two very large companies to make contributions to the news content that is shared or hosted on their websites.

I think it's positive that Google themselves have reached a voluntary agreement with news media organisations. That's what this code was seeking to encourage and it's positive that that's occurred. It's unfortunate that Facebook chose a different course of action, but it's not terminal. I think we're right to push ahead with this, despite Facebook's actions last week, which were the biggest own goal in politics for some time, given they themselves couldn't restrict their prohibitions to the news media industry. As has been well documented, they caught up emergency services, health services, coronavirus information in their news media net. For an organisation that says that it can't get rid of child pornography from their website to overban news is a bit galling for all of us here in Australia. The bullyboy tactics of Facebook last week deserve to be called out. I don't think they were fighting this code; I think Facebook were trying to make an example of us to try to stop other countries from doing the same. Their actions were not so much about Australia. Apparently, Facebook only paid $15 million in tax and only made a $50 million profit in Australia. They're one of the biggest companies in the world. Do you reckon they would threaten their whole business for 50 million bucks? I don't think so. I think that they were trying to make an example of poor little Australia to the rest of the world.

But I'm heartened that we stood up to them last week. I'm heartened that the government has not decided to back down as a result of these sorts of tactics and I'm also heartened by the support we have received from around the world. I read over the weekend that Canada is seeking to progress laws similar to those we're discussing here today, and it seems like Facebook's tactics and actions have only redoubled the commitment of the Canadian government to continue down that path. If we were to buckle to these kinds of tactics from Facebook, we would be outsourcing the political decisions of our country to a US based company. I love America. It is a great friend of this country. But I believe that an American based company should not decide what laws are passed here in this country. They should certainly not have the control to regulate our speech and our political discourse in this nation.

While I support this code and its protection of news media, there is a larger agenda here that we need to focus on about how we protect the free speech of everyday Australians. It is right and proper for us to be protecting the free speech and the rights and the property rights of Australian news media companies to make sure we continue to have Australian content. But I think it's also right and proper that we seek to protect the free speech of everyday Australians so they don't have their thoughts and ideas banned by a company based in America. That would be particularly unfair.

I also believe that, after this law is passed—and I think we have widespread support for it—we need to turn our attention to appropriate restrictions on overseas based companies involving themselves in our media landscape. We have, I think, well established and principled restrictions on foreign ownership of our domestic media entities—our newspapers and our TV stations. They are longstanding arrangements in our laws, but there are no such restrictions on foreign ownership of social media. A foreigner can have 100 per cent of a particular social media platform. Indeed, I would suggest basically 100 per cent of our social media footprint in this country is owned by foreigners—almost 100 per cent. I have been contacted in the last week by a few Australian based social media companies, and I wish them well. I think it is about time we seek to support them, because I would like to see Australian social media companies have a footprint. Australians use Australian IT businesses to discuss issues, to share things with friends and to make sure that we continue to be sovereign and independent of other countries when it comes to the protection of our rights and our speech.

1:55 pm

Photo of Andrew McLachlanAndrew McLachlan (SA, Liberal Party) Share this | | Hansard source

I rise to speak to the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021. This bill has been technically described as a mandatory code with mandatory requirements with which the registered Australian news business corporations and designated digital platform corporations must comply, including provision of information and non-differentiation, and may bargain about the amount to be paid for making available certain news content on designated platform services—quite the bureaucratic speak. In essence, the mischief it is seeking to address is the imbalance of market power, as identified by the Australian Competition and Consumer Commission, the ACCC, between traditional journalism and the distribution through platforms such as Google and Facebook.

In essence, this bill represents a market intervention. I know Senator McKim in his contribution had much to say about Liberals worshipping profit and nothing else, but anyone with a glance through the history of the Liberal Party would realise that we hesitate before market intervention. We do not resile from it, but we make sure that the circumstances are right for intervention so that there are not unintended consequences. In this case, the tipping point has been reached, and we have seen that with the behaviours of Facebook, which have been well articulated in this chamber by many speakers. As I said, the purpose of the code is to address the bargaining power imbalance, identified by the ACCC, between digital platforms and news media businesses. The aim of the government through this legislation is to support a diverse and sustainable Australian news media, which must be able to get a fair day's pay for a fair day's work.

The code creates a framework for commercial arrangements, and that is why I described it as a 'market intervention', but, in my view, it is a measured response, and also with a caveat of a one-year review. Unlike the previous speaker, Senator Canavan, I draw comfort from the fact that this will be reviewed and it will be an ongoing legislative reform process as we grapple with the implications of big tech and how it influences our lives and the marketplace.

The government has based this legislation on accepting the ACCC's conclusion—that there is a need to reform to better protect consumers, improve transparency, recognise power imbalances and ensure that substantial market power is not used to lessen competition. I'm reminded of the words of Clive James, who said, 'The last stage of fitting the product to the market is fitting the market to the product,' which seems to have been a mantra of those founding these large tech giants. I would say to honourable senators that we've been here before; this is not a new situation we face. There have been developments with monopolistic power in the US and even before that.

I would like to thank the Economics Legislation Committee for its work. I found its report enlightening and good reading for the preparation of this speech. I may have an opportunity to enlighten you more later on this afternoon if you pay attention, honourable senators! My wisdom needs to come out in the one go, not necessarily one minute to the axe ahead of question time. I did draw comfort from the public utterances of the minister in relation to this bill and also the fact that this bill hasn't come, as the saying goes, out of the head of Zeus. This morning in our party room we agreed on further amendments, which will be considered in the committee stage.

Honourable Senator:

An honourable senator interjecting

Photo of Andrew McLachlanAndrew McLachlan (SA, Liberal Party) Share this | | Hansard source

I would look forward to you joining the Liberal Party. Then you can come to the party room and I won't need to articulate to you across the Senate chamber.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

We have hit 2 pm. You will be in continuation. We move to questions without notice.