Coalition Senators' Dissenting Report
The Coalition's belief in a free media
The Coalition shares the concerns of many witnesses that the
Public Interest Media Advocate (PIMA) is an unprecedented attack on free speech
and a free media.
The Coalition is proud to have a strong commitment to free
speech and a free media in both our philosophical underpinnings and the history
of our party. From John Stuart Mill's optimistic belief in 1859 that the time 'is
gone by, when any defence would be necessary of the liberty of the press' to
Robert Menzies 1942 plea for 'freedom for people who disagree with us as well
as our supporters', the liberal support for a free media has been a defining
trait.
A free media is an essential feature of a modern democracy.
The media should keep citizens informed of the performance and priorities of
the polity. In Australia we have such a media. Australians value press freedom
and, tellingly, this is the first attempt to restrict freedom of the press in
our peacetime history.
At a time like this, where the Government has complete
disregard for the conventions of the Parliament and of good governance and
where even the most egregious failures of Ministers go unpunished, a critical
media eye is essential.
Press freedom is a key tenet of the Australian democracy and
was passionately defended by many witnesses, including by Fairfax Media Chief
Executive Mr Greg Hywood who stated:
...regulation of the media should be the last resort of any
democratic government and be as light a touch as possible to achieve a clear
public good. It is our strong view that the fact that a government feels it is
not getting a fair go from one or other media outlet is a very poor reason to
regulate; in fact, it is the worst reason. Is the media perfect? No. Does it
get everything right? No. But is our media effective in delivering the public
good of keeping our community open and transparent? Absolutely.[1]
News Limited Chief Executive Officer Mr Kim Williams who
stated:
These bills breach constitutional rights, equate to direct
government intervention and regulation of the media and are a direct attack on
free speech, innovation, investment and job creation.[2]
And Seven West Media Chairman Mr Kerry Stokes who stated:
As a result of that [these changes] you would not get things
like Eddie Obeid being discovered; you would not get the investigative
journalism which is so important to a free democracy to our standing. He [PIMA]
has a power to actually change that, and I find that scary.[3]
FOXTEL Chief Executive Officer Mr Richard Freudenstein
explored the industry's bewilderment at the spectre of the regulations,
stating:
As others have observed, this is a solution in search of a
problem. It is a basic tenet of the regulation of business activity that
regulatory intervention should only occur where there is a demonstrated need or
case of market failure.[4]
The changing media landscape
The Government has repeatedly asserted that with a changing
media environment there exist threats to the diversity of media voices.
Labor Members and Senators have launched shrill attacks on
the Murdoch press and spread assertions of unfounded breaches of media
standards in Australia.
While there are countless examples over recent years, even
as recently as during the extremely limited timeframe of the conduct of this
inquiry, Labor's disposition was made very clear by a Labor member of the Joint
Select Committee on Broadcasting Legislation, Mr John Murphy MP:
We are all aware that News Ltd have a stranglehold on the
print media in our country. They have a 50 per cent share in monopoly pay
television; they have one of the most accessed sites on the
internet—news.com—and many of us in this place want to be the guardian of any
extension of the reach of News Ltd in our country, particularly as it relates
to free-to-air television network and radio stations. Most fair-minded people
do not think that is in the public interest or good for our country. I welcome
the fair, balanced and objective reporting of your media. I also acknowledge
and accept that a large company like News Ltd can report the news the way they
want to, and whether it is described as opinions or propaganda, that is their
right. But what is at the heart of this for most people who are very concerned
about this is that News and the Murdoch family could drown out more voices,
including yours, and we do not believe that that is in the public interest or
good for the future of our democracy.[5]
The Coalition is wholly unconvinced that convergence is
resulting in less media voices. In fact convergence is providing more media
voices than ever before. In recent times we have seen the launch of The
Guardian Australia, The Conversation and Mamamia to name just
a few.
Nowadays anyone with a webcam can create media content and
upload it to social media or content sharing platforms like YouTube. The
traditional costs associated with publishing media content—printing presses,
television studios or radio equipment—can be a thing of the past. Anyone with a
laptop and basic IT skills can start their own news site.
Fairfax Media Chief Executive Greg Hywood reflected on this
changing landscape stating:
When I started in journalism in the late 1970s, there were
newspapers, a handful of free-to-air TV stations and a handful of magazines in
this country that ran news. We have seen an absolute explosion of sources of
news and information in that period. People have the power. Fundamentally, the
barriers to entering the media industry have collapsed. Once upon a time, you
needed to spend hundreds of millions of dollars on a printing press to get a
newspaper out or to get news and information out or you had to have a
television licence. This required substantial funds, substantial capital. Now
you need a computer and you can run a blog.
You have seen the number of news sites there are. Crikey is a
web-only news site. You have seen Business Spectator. You have seen a whole
range of other sources of news and information that provide a multitude of
voices. So the barrier entries are very low. The irony of this legislation is
that it comes when voices have (a) never been louder and (b) never been more
extensive for news and information in this country.[6]
FOXTEL Chief Executive Officer Mr Richard Freudenstein,
likewise, outlined his views on the new news media landscape:
In the digital and internet age there is no want of access to
news and information.
There has been an explosion in sources of news, information
and opinion in Australia and globally. Low barriers to entry, thanks to digital
delivery, means that everyone from micro bloggers to major media organisations
like The Guardian can establish themselves and develop audiences.
Search engines, content aggregators and social media
disseminate videos, articles, opinions and ideas at an amazing pace.[7]
With more news source competitors than ever before,
traditional news media organisations have faced sustained pressure on their
business models which has resulted in the restructure of many news operations
and the loss of jobs in the news media sector.
This reform and its imposition of additional regulatory
costs and burdens comes at the worst possible time for new media regulations.
No case for reform
Neither the Prime Minister nor the Communications Minister has
been able to coherently outline why the PIMA is necessary. In fact, they have
been unable to point to a single instance of where existing self-regulation has
failed where the PIMA would have produced a different result.
Seven West Chairman Mr Kerry Stokes was similarly perplexed
as to the need for the PIMA:
I have yet to see anybody explain to me any problem that
warrants these laws – not only warrants these laws but warrants them being passed
and debated within a week.[8]
The Coalition agrees with The Australian Law Reform
Commission who stated in 2007 that:
In the ALRC's view, freedom of expression is a fundamental
tenet of a liberal democracy. Appointing an independent government body to
oversee the media is a measure of last resort. Such an approach should be taken
only where there is substantial evidence that self-regulation and co-regulation
in the media industry have failed.[9]
Further, the United Nations Human Rights Committee has
stated that:
When a State party invokes a legitimate ground for
restriction of freedom of expression, it must demonstrate in specific and individualized
fashion the precise nature of the threat, and the necessity and proportionality
of the specific action taken, in particular by establishing a direct and
immediate connection between the expression and the threat.[10]
The Government has failed to present any evidence that
self-regulation has failed, let alone that such an act of last resort is
required.
The only justification offered for the extraordinary
intervention in the operation of the media is that there were failures in media
regulation overseas. No evidence of similar systemic failures in Australia has
been presented at any stage.
Seven West highlighted that:
In fact there is no evidence that either the Independent
Media Council or the Australian Press Council do not rigorously apply their own
published standard or that these standards are not satisfactory.
Aside to references of what may or may not have happened
overseas, the only case presented was that of Professor Ricketson where he
claimed several instances represented breaches of media standards. Under
questioning it was revealed that none of these cases had been investigated and
they had not even all attempted to use existing self-regulatory procedures to
pursue their case:
Senator BIRMINGHAM: Professor Ricketson, you gave a
list of examples that you said provided some justification for this
intervention into the operation of the media. In each of those examples had the
anonymous individuals taken a complaint to the Press Council?
Prof. Ricketson: In the case of some I think yes and
in the case of others no. One of the issues with the Press Council there's
another annexure dealing with complaints to the Press Council is they're not
always dealt with to the satisfaction of the complainant and so...
Senator BIRMINGHAM: And generally speaking
complainants won't be satisfied unless their complaint is upheld, so did you do
any analysis of the merits of those complaints?
Prof. Ricketson: The ones that, the, we are looking
at? Yes we looked at those and we thought that they were all prima facie as far
as, I mean again as Mr Finkelstein has said we didn't follow these sorts of
matters to the enth degree because that was not the purpose of the enquiry but
we were satisfied prima facie that there appeared to have been a problem in a
way in which these matters were reported in the news media and that was enough
for us at that stage.
Senator BIRMINGHAM: Prima facie, so there was no
particular checking with the media outlets in question?
Prof. Ricketson: No.
The Government's failure to provide any compelling
justification for this reform leaves only the conclusion that this is an
exercise in political revenge from a government that feels aggrieved by the
eminently warranted criticisms of its gross failures and incompetence.
The ultimate determinant of community standards is the
decision for consumers to either purchase the media product (or watch/listen to
it) or not. There is a case to regulate in certain circumstances where
irregular decisions with high costs, such as the purchase of a home. But in the
case of the Australian media market, where consumers make many small decisions
with low costs, there is no case to regulate.
Public Interest Media Advocate
The appointment of the Public
Interest Media Advocate
The process of appointment of the PIMA alarms the Coalition.
While noting our opposition to the PIMA, we are nonetheless concerned that, if
this legislation passes, the PIMA will be appointed at the whim of the Minister
of the day, and can conversely be sacked on the whim of the Minister.
While Senator Conroy has promised 'consultation' with the
Opposition and stated that he does not believe a former Member of Parliament
would be a suitable candidate, there are no such requirements in the Bill.
Network Ten correctly notes that:
Missing from the PIMA Bill is any obligation on the Minister
to consult on the appointment of the PIMA or seek independent recommendation.
Consultation is optional.[11]
The Coalition expected to see provisions requiring
consultation with the Opposition and prohibitions on former MPs or Senators,
but notes that the Bill omits any of these conditions and simply says:
Clause 8 of the Bill outlines:
Division 2—Appointment
8 Appointment of PIMA
(1) The PIMA is to be
appointed by the Minister by written instrument.
Note: The PIMA is eligible for reappointment: see the Acts
Interpretation Act 1901.
(2) A person is not
eligible for appointment as the PIMA unless the Minister is satisfied that the
person has:
(a) substantial
experience or knowledge; and
(b) significant standing;
(c) in at least one
of the following fields:
(d) the media industry;
(e) law;
(f) business or
financial management;
(g) public administration;
(h) economics.
(3) Before appointing a
person as the PIMA, the Minister must consult:
(a) the ACMA; and
(b) the ACCC; and
(c) such media
industry bodies as the Minister considers appropriate.
(4) Subsection (3) does
not, by implication, prevent the Minister from consulting other bodies and
persons.
(5) The PIMA holds office
on a part time basis.[12]
Coalition Senators explored whether this would allow former
Senators or Members to hold the position of PIMA with several witnesses.
Fairfax Media Chief Executive Mr Hywood stated that there is
indeed no restriction:
Senator BIRMINGHAM: Are there any restrictions that
you are aware of as to who might be able to serve in the position of PIMA?
Mr Hywood: Not as far as I know.
Ms Hambly: There are a few in the bill, but they do
not really go to anything in particular. You cannot be a bankrupt and you have
to have had some kind experience somewhere. I note that it is also part time
and you cannot hold other positions which conflict. That is not unreasonable,
but it does beg the question of who may be in a position to take that role.
Senator BIRMINGHAM: So hypothetically, for example,
the former Health Minister and Attorney-General, Nicola Roxon, when she leaves
the parliament, could well be the PIMA if the government so chooses. There is
nothing in this act that would say that she could not do it as a former Labor
minister, yet she would tick the very basic qualification criteria.
Ms Hambly: I am sure that she would.[13]
The Coalition believes that the process of appointing the
PIMA is open to gross political manipulation and may result in a highly
partisan individual being the sole arbiter on content regulation and media
industry structure. Even more alarmingly, there is no recourse to question or
review the decisions of the PIMA.
News Limited Chief Executive Officer, Mr Kim Williams
effectively summarises this situation, stating:
... the government is proposing to appoint a single part time
member who will be assisted by a department with no expertise in adjudicating
and enforcing the law, who will have wide powers and discretion, given key
terms in the bills are wholly undefined, who will not have to follow long-established
law or principle in relation to the onus of proof, who can seemingly make
decisions retrospective and whose decisions cannot be appealed. This is a
modern-day star chamber—no more, no less.[14]
FOXTEL Chief Executive Officer Mr Richard Freudentein made
clear the Minister's potential for influence over the PIMA stating:
The PIMA is appointed for a period of up to five years, but
appointments could be for a shorter time, maybe even a year, with the threat,
actual or implied, of reappointment being contingent on achieving certain
outcomes.[15]
Such a process is completely lacking and demonstrates a
belief that government should have the right to interfere and determine in an
unfettered manner the business decisions on media organisations. The Coalition
strongly rejects the creation of such an environment.
The Coalition also notes that the PIMA is apparently to be a
part-time appointee, reliant on administrative support from the Department of
Broadband, Communications and the Digital Economy. It is highly irregular for
an allegedly independent statutory office holder to rely on a government
department in this way and adds to the already high risk that the independence
and impartiality of this process is compromised by other government policies or
opinions.
The PIMA as a panel
There has been commentary from certain parliamentarians
suggesting that it would be preferable for the PIMA to be a panel rather than
be constituted as an individual.
This neglects several serious flaws in the approach to the
legislation as a whole. Whilst Coalition Senators reject the overall need and
premise of this legislation, we nonetheless note that numerous witnesses such
as Dr Margaret Simons, who advocates for media legislation, highlighted wider
concerns than just the appointment of a one-man band.
Dr Margaret Simons states that:
In Section 7(3) of the News Media (Self Regulation) Bill, the
PIMA is given dangerously wide discretion in deciding whether a news media self
regulation body meets standards. The long list of eligibility requirements to
which the PIMA must "have regard" include amorphous criteria such as
"community standards" and "other matters relating to the
professional conduct of journalism". The PIMA must "have regard
to" the "extent to which" the body meets these criteria.[16]
The application of “community standards” in this context is
wrong in principle. Journalists, in the course of their work, do many things in
the public interest that violate community norms of behaviour. The public
interest would be severely harmed, and the role of the media dangerously
inhibited, if they were to be prevented from acting in ways that might violate
community standards.[17]
Section 8 of The Public Interest Media Advocate Bill states
that the PIMA is to be appointed by the Minister. Given the importance of this
appointment to issues of freedom of speech, this is an inadequate process and
at odds with the requirement for the PIMA to act independently of executive
government.[18]
What is the public interest?
The PIMA will be empowered to assess any proposed change to
the structure of media ownership against the public interest.
It is therefore bewildering that the 'public interest' is so
ill-defined.
As News Limited Chief Executive Officer, Mr Kim Williams
observes:
The public interest is as long as a piece of string, Senator.
I think the public interest is often used as a term which means many things to
many different people; it is in the eye of the beholder.[19]
Mr Williams also notes in regards to the legislation:
It would be interesting, Senator, to find a definition of the
public interest contained within the bills before you. There is no such
definition.[20]
The Coalition submits that Paul Howes and Pauline Hanson are
likely to have significantly divergent views on what the 'public interest'
entails. Under the proposed legislation, either one could be appointed PIMA and
would be free, under the provisions of this Bill, to bring with them and apply
their own definition of the public interest.
Such vague definitions of key concepts under this
legislation give little comfort to stakeholders that the PIMA will be capable
of operating in a fair, transparent, impartial and predictable manner.
Disclosure of information to the
Minister
Curious provisions in these reforms allow for the PIMA to
disclose confidential information obtained in the course of their work about
media organisations to the Minister.
News Limited is concerned that:
If media organisations seek approval of control transactions
they will no doubt have to provide detailed information to the PIMA. They must
do so in circumstances where the PIMA may share this information with the
Minister.[21]
No justification for these provisions has been provided nor
is any rationale evident apart from a general consistency with the Minister's
approach to accumulating power over the media for his own ends.
News media regulation
Declaration of self-regulation
bodies
The News Media (self-regulation) Bill 2013 requires an
existing self-regulation body to submit itself for assessment and approval to
the PIMA. The PIMA is required to assess the existing body against eligibility
criteria including complaints handling processes as well as standards for
members relating to privacy, accuracy and fairness.
If the PIMA deems the body compliant it will declare it a 'news
media self-regulation body.' News media organisations will only continue to
qualify for journalism exemptions from the Privacy Act if they are a member of
a declared news media self-regulation body.
This is an extraordinary intervention in the existing
self-regulation system which directly involves government assessment and
potentially intervention of media standards. Given it is virtually impossible
for a journalist to operate without the exemptions from the Privacy Act, these
reforms end the notion of self-regulation by the media and create a situation
of mandatory, government sanctioned regulation.
As News Limited states:
The introduction of the Public Interest Media Advocate and
its ability to declare and revoke declarations of self-regulation bodies is
fundamentally inconsistent with the free press.[22]
The PIMA's ability to revoke approvals of self-regulatory
bodies poses significant risks for members of self-regulatory bodies.
The conditions under which the PIMA can revoke approval are
ill-defined and give the PIMA wide scope to interpret conditions as they see
fit. Conditions include 'a significant change in relevant circumstances' and 'a
change in relevant community standards'.
News Limited states that under the legislation a revocation
of approval may result in no self-regulatory body being accredited at a
particular point in time which would:
...result in all media organisations losing their Privacy Act
exemptions through no fault or action of theirs.[23]
The Committee heard from virtually all witnesses that
Privacy Act exemptions are essential to the effective operation of journalists.
Loss of exemptions across an entire company or companies, while a remote
possibility, would cripple the media industry and would make journalism as we
know it unviable. As Greg Hywood stated:
Under the legislation, unless you were accredited, you would
not have an exemption under the Privacy Act, which means that you could not
gather information about people without their consent. So that is a nuclear
option because it would basically shut down a predominantly news-gathering
organisation—and that is what we do.[24]
28 June deadline
The Bill requires that existing news media self-regulating
bodies secure declaration from the PIMA by June 28. If at this time no such
body has been approved, the journalism provisions of the Privacy Act cease to
apply, creating an arbitrary and unnecessary deadline to secure approval.
Under extensive questioning, the Department argued that the
PIMA would not be detailing what a news media self-regulation body would
specifically have to contain in their code, but would instead either approve or
reject it. The Department conceded that on the judgement of the PIMA it could
be rejected multiple times, with no alternative proposed, leaving the body to
have to guess how it could become compliant before losing the Privacy Act
exemptions of it members.
This deadline, with its unjustifiable threat to journalists,
creates undue pressure on media bodies to cede to the PIMA's wishes, or indeed
perceived wishes, as they rush to meet this deadline.
In addition, to introduce such a dramatic change the
regulation of the media just months before a federal election would appear to
be interference in the democratic process with consequent diminishing capacity
of the media to provide frank and fearless commentary and critique of not only
the political process and policy but politicians themselves.
Control over news media
The extraordinary powers of the PIMA to suspend publications
opens the possibility of a potentially outrageous neutering of critical media
content.
As Network Ten alarmingly notes:
There is no obligation on the PIMA to be independent,
impartial or transparent in decision making.[25]
The PIMA will not only be empowered to assess and accredit
self-regulation bodies, but also asses their compliance with unidentified
community standards and the effectiveness of complaints handling arrangements.
Dual regulation role
Several witnesses took issue with the dual regulatory role
held by the proposed PIMA.
News Limited stated:
The PIMA's dual role is inappropriate. The PIMA is both the
body that approves or disapproves control transactions in the media and also
the body that declares news media self-regulation bodies. The same person who
is to be determiner of media diversity and ownership is also the same person
who oversees the daily reporting standards for journalists.[26]
News Limited further outlines the danger of such a dual
regulatory approach:
The PIMA should not, even hypothetically, be in a position to
use issues arising in one of those areas to influence policies and compliance
in another.[27]
This, however, is a very real concern considering the lack
of detail and direction provided for the PIMA on their role by the legislation
and the fact that, as this report highlighted above:
There is no obligation on the PIMA to be independent,
impartial or transparent in decision making.[28]
Media diversity
Public interest test of media
ownership
Under these reforms, the PIMA is required to assess then approve
or reject transactions pertaining to the control of a media organisation.
Media mergers and control transactions are in many cases
already reviewed by one or more of the Foreign Investment Review Board,
Australian Competition and Consumer Commission and the Australian
Communications and Media Authority.
FOXTEL Chief Executive Officer Mr Richard Freudenstein
relayed to the Committee that:
The ACCC has adequate powers to maintain competition and
diversity in the media. The ACCC has said in its own Media Merger Guidelines
that, and I quote: 'The ACCC will also consider whether a merged media business
could exercise market power by reducing the quality of the content it provides
consumers which could include reducing the diversity of the content it provides.[29]
The Coalition notes that in recent times, in an act that
demonstrates the falsehoods peddled by these who claim current laws lack teeth;
the ACCC rejected an application from Seven West Media. FOXTEL Chief Executive
Officer Mr Richard Freudenstein told the Committee:
You may also be aware that Seven West Media recently applied
to the ACCC to be able to buy a share of FOXTEL and the ACCC indicated that
that would not be possible.[30]
An additional regulatory hurdle to a media transaction
appears excessive in light of the failure of the Minister to demonstrate any
current lessening of diversity nor any need for further regulation.
News Limited highlights that the tests to be applied by the
PIMA appear to replicate, but in vague terms, the existing diversity tests
applied by current review processes:
It is unclear how the diversity test will overlap or be
distinct from the substantial lessening of competition test considered by the
ACCC...[31]
News Limited Chief Executive Officer Mr Kim Williams
highlights the fundamental danger of these proposals:
Senator Conroy's public interest test is really a political
interest test. The PIMA will decide whether media mergers and acquisitions of
national significance cause no substantial lessening of diversity of registered
news voices, but we have no definition of what diversity is. It would be at the
whim of this government-appointed PIMA.[32]
There are no guidelines on the process outline mergers and
acquisitions to guide the PIMA and provide information for those businesses
contemplating a merger or acquisition. This type of information is clear in
both the FIRB with criteria on public interest test and the ACCC in their
substantial lessening of competition test.
Reversal of the onus of proof
The Convergence Review clearly states the regulator should
bear the onus of proof in determining a reduction in media diversity:
The onus should be on the regulator to demonstrate that the
outcomes of the proposed transaction is not in the public interest.[33]
This is of course consistent with normal legal practice and
community expectation of regulation by government, yet it is proposed that the
PIMA not bear the onus to prove a transaction reduces media diversity, but that
the media organisation party to the transaction must prove that it does not
reduce diversity.
As News Limited Chief Executive Officer Mr Kim Williams
highlighted, there are additional challenges in proving a negative:
What is of particular concern and contradicts the government's
own convergence review is that it is now incumbent upon the applicant to
satisfy the PIMA that there is not a lessening of diversity. This deliberate
reversal of onus of proof is unworkable and the convergence review explicitly
recommended against it. Clearly proving a negative is virtually impossible and
logically flawed at law. It is the opposite approach adopted by the ACCC, for
example, on mergers and acquisitions.[34]
Similarly, FOXTEL Chief Executive Officer Mr Richard
Freudenstein noted:
The challenge with the onus of proof is that it is very hard
to prove a negative, to disprove something. It is a very difficult onus of
proof to have it that way around. So we think there is a great deal of uncertainty
in the legislation.[35]
Especially germane to this highly unusual reversal of proof
is the fact that, as News Limited Chief Executive Officer Mr Kim Williams
states:
The Bill contains no guidance for the applicant as to what
factors the PIMA will take into account when considering the application.[36]
Requiring media organisations to disprove the lessening of
diversity without providing a definition of diversity, let alone metrics
against which diversity is judged, is an extraordinary request of which one can
only conclude a design to ensure all requests fail.
Uncertain time periods for
decisions
The PIMA is required to deliver a decision on the review of
a control transaction within 90 days. However, if it requests further
information, which it can do within 30 days of receiving an application, the
clock starts again. This allows the PIMA to take 120 days or more before a
decision is due.
There is, however, no actual obligation on the PIMA to
render a decision in this time period – simply an obligation to use best
endeavours to do so. Such an open-ended timeframe presents clear risks to the
negotiation and conduct of potential control transactions.
Lack of merits review
One of the most egregious features of the proposed PIMA is
the complete lack of any recourse to internal or administrative review or
complaint against decisions.
The aforementioned lack of detail regarding the PIMA's tests
creates a murky situation where an applicant has no idea what criteria they are
to be assessed against when drafting their application and no ability to seek
recourse if the application is rejected. It is also inconsistent with the
approach of the ACCC with respect to decisions made on mergers and acquisitions
under the Competition and Consumer Act.
This is an untenable situation and, as News Limited states:
It is concerning that the complexity and uncertainty of the
process is being used as a reason why the decisions of the PIMA should not be
subject to review, particularly where the factors to be considered and the
basis for making of the decision are not specified in the Diversity Bill.[37]
It is hard to fathom that the Government is proposing that
an individual it appoints at its own whim should have complete control over the
approval of media transactions and will assess such transactions against
mystery tests which will be unknown to applicants and will provide no normal
recourse to question the decision.
Impacts on restructures and
start-ups
The Coalition is very concerned that the PIMA may actually
stifle new media voices by creating an additional regulatory burden in setting
up a new publication. News Limited states that:
In what is an active disincentive for innovation, publishers
may also need to obtain the PIMA's approval if they want to start a new
publication which is likely to be popular. A bill that potentially imposes a
criminal offence on a failure by an existing Australian news business to get
approval for an increase in the number of voices in the market has to be
seriously flawed.[38]
The proposed regulations do not only catch new media voices,
but have the potential to interfere in the operation of existing media
organisations. News Limited offers itself as an example, stating:
...the PIMA's powers are so vast that companies will have to
seek its approval for internal restructures, even if they do not cause a change
in the number of voices. For instance, our recent organisation and merger of
divisions and changes at news.com.au would likely have been caught by this
provision.[39]
Such overt and undue interference in the operation of news
media organisations is an unacceptable infringement on media freedoms and should
be condemned.
Applicability to online services
Under the News Media Diversity Bill an associated online
service – such as, a website or app - is required to be registered and approved
if it is associated with a news media outlet.
News Limited highlights this folly in suggesting that this
requirement for registration and approval could have ludicrous consequences,
such as if:
The Australian wants to make available on short notice, a
smartphone/tablet app which would update Australian relatives of people caught
in an international crisis or natural disaster on critical developments as they
unfold.[40]
Under such a circumstance, the PIMA is required to make a
determination on approval within 90 days and following a 28-day public
consultation period.
This is obviously a poorly thought out impost on the free
operation of media organisations and may have significant impacts on the
ability of news media operators to offer the public timely online news
platforms for significant news events.
In the changing and challenging modern media landscape
regulatory settings should be doing all possible to encourage innovation and,
where necessary, appropriate restructuring rather than imposing additional
regulations on such activities.
Australia Network
Clause 27 of the Broadcasting Legislation Amendment
(Convergence Review and Other Measures) Bill 2013 inserts a new Section 31AA
that legislates that the Australia Network will remain with the Australian
Broadcasting Corporation in perpetuity with no possibility of the service being
put to tender again.
While the Coalition understands the deep embarrassment felt
by the Government and particularly the Communications Minister, Senator Conroy,
over the handling of the corrupted Australia Network tender process[41],
the Coalition believes it is poor public policy to lock up this contract with
the ABC.
With the ABC mandated as the only broadcaster able to
undertake the broadcast of Australia Network services, if questions arise in
the future over the level of funding or the performance of the ABC in regards
to the Network, ABC Director Legal Mr Robert Simpson, confirms that the ABC can
effectively hold the government of the day to ransom:
Senator BIRMINGHAM: Presumably, the only alternative
available to government would be simply to not have, and not fund, an
international network.
Mr Simpson: Under our charter we are required to
provide international broadcasting services, so I am not sure how that would
work out in practice.
Senator BIRMINGHAM: But, in terms of the operation of
the Australia Network, if the government of the day were dissatisfied with the
ABC's approach to it, they would have no option but to either go with the ABC
or simply not have an Australia Network service.
Mr Simpson: Yes, I think that is correct.[42]
This provision amounts to the Government giving away
significant leverage over the delivery of the Australia Network. With the ABC
guaranteed the contract and associated funding in perpetuity, there is no
incentive for the ABC to ensure it meets the Government's requirements and
expectations for the delivery of the service.
SBS and advertising
The Coalition is supportive of measures allowing SBS to
generate revenue in an appropriate manner, including through advertisements and
sponsorship announcements on its digital media services, but notes the
hypocrisy of the Communications Minister, given his past strident opposition to
advertising measures properly implemented by SBS in accordance with the SBS
Act.
The SBS Board in 2006 approved a new program break
structure, allowing for limited program promotion and advertising within
programs within a legislated cap of five minutes of advertising per hour.[43]
Senator Conroy, then Shadow Minister for Communications and
Information Technology, used Senate Estimates hearings to argue that
advertising during such advertising was not in accordance with the SBS Act
and/or the intent of Parliament.
Do you seriously believe that the SBS's interpretation is
consistent with the intent of parliament? ... It just seems to me that with the
way the act was written – and I have spoken to some of the people who were
involved in drafting it – it was not open slather. Clearly, it does not say: 'Just
have ads wherever you want;' it says: 'You can have ads in only a couple of
places,' and yet, as you have testified, there is now open slather in every
single program. That just seems to me to be inconsistent with the intent of the
limits that the legislation attempted to set. You have now defined those limits
as being unlimited.[44]
Coalition Senators believe that, if Senator Conroy sincerely
held these views and had the courage of his convictions, he would have sought
to amend the act to prevent the advertising he found so offensive, let alone
specifying in this bill, as he has, that he now guarantees similar advertising
be allowed on digital media services.
Comments by the Parliamentary Joint Committee on Human Rights
The Labor-dominated Parliamentary Joint Committee on Human
Rights, chaired by former Speaker Harry Jenkins, has delivered a damning report
into these bills, which is particularly critical or focuses on the need for
additional information in the following sections:
1.31—the committee seeks further clarification of the
standards to be applied in granting or refusing approval for a change of control
of certain news media organisations.
1.49—expresses concerns that the standards which the PIMA is
to apply in the determination of an application for approval of a transaction
are too broad and general and may in fact lead to being insufficiently precise
for the purposes of satisfying article 19(3) of the ICCPR.
1.50—argues there is insufficient guidance regarding the
standards set out in the bill on the basis of which the PIMA will grant or
refuse approval in relation to a transaction provide the PIMA or persons
affected.
1.51—proposes to write to the Minister for Broadband,
Communications and the Digital Economy to seek clarification of the standards
applied by the PIMA in determining applications.
1.52–1.56—concerns that the bill does not provide for any
right of appeal or for any review on the merits of the decision of the PIMA
under proposed new subsection 78BC(2) to refuse to approve a transaction.
1.57–1.58—concerns that the bill creates a number of offences
and civil penalty provisions. Explanation is sought from the Minister as to the
reasons for the creation of strict liability offences under the proposed new
Division 12.
1.59–1.60—concerns for the proposed new section 78FA which
provides the PIMA with the power to require a person to produce information and
documents where the PIMA believes on reasonable grounds that the person has
information or documents that are relevant to the operation of Part 5 A of the
bill.
1.61–1.63—concerns that these Bills limit the right to
freedom of expression and freedom of association.
1.77—issues that without the benefit of the Privacy Act
exemption, it would be difficult if not impossible for many media organisations
to carry on their news work.
1.80—removal of the exemption of news media organisations
from the Privacy Act 1988 effectively limiting the right to freedom of speech
to the journalists.
1.83–1.85—failure to provide the material with the bill it
needed to assess whether the limitation on freedom of expression is justified.
Neither the explanatory memorandum nor the statement of compatibility
demonstrates why these reforms are even necessary.
1.87–1.90—failings in the evidence presented to the
Parliament in relation to the bill to provide sufficient information about
supposed inadequacies or ineffectiveness of current systems for the regulation
of media to allow an informed assessment of the need for and proportionality of
the proposed scheme of regulation. Lack of assessment as to whether other less
intrusive alternatives to the proposed reforms were considered and if so, why
this scheme was chosen over any less intrusive measures.
1.96–1.97—intention to write to the Minister to seek
clarification about the combined effect of the proposed new section 78FA of the
Broadcasting Services Act 1992 and the proposed power of the PIMA under clause
20 of this bill to disclose information to bodies with prosecution or
regulatory enforcement functions.
Coalition Senators agree with the thrust of the committee's
findings, as no convincing evidence has been provided as to why this bill and
these reforms are even necessary, let alone proportionate to the interventions
proposed by the Government. Coalition Senators hold firm the opinion that
these reforms do in fact unnecessarily limit the right to freedom of expression.
The Government's shambolic media reform process
Rushed nature of inquiry
The Coalition condemns the haste with which the legislation
was introduced, has been partly inquired into and is set for debate and vote.
It may be as little as 7 days between the introduction of these Bills and the
conclusion of their deliberation in the Parliament.
As Network Ten highlighted in its submission:
In 2006 Senator Conroy described the process to implement the
last major media reform package as 'debauched' and said 'we should not be
surprised when such an approach produces poor policy.'... As is obvious from the
above, this current process is far more compressed with far less opportunity
for scrutiny and debate than the 2006 process.[45]
Network Ten also provided the Committee with this comparison
with the 2006 reform package[46]:
|
|
2006
|
2013
|
|
No. of Bills
|
4
|
6
|
|
No. of days Bills in Parliament
|
34
|
7
|
|
No. of working days for Committee—inquiry and report
|
17
|
2
|
Seven West Media's submission discusses the impact of the
short time frame on the ability to analyse and scrutinise the legislation:
There has been very little time to either digest or debate
the measures proposed in this package. It is disrespectful to both industry
stakeholders and the parliament for such a complex and significant package of
legislation to have been announced, introduced and considered by Committees and
voted on in little more than a one week timeframe...
However, it is our understanding that this Committee is
required to deliver an interim report less than a day after conclusion of its
public hearings and that the timetable for voting on the legislation in the
Senate will not permit any issues identified by this Committee to even be
considered.
This process is nothing short of shameful.[47]
This Committee has been tasked with scrutinising six Bills
comprising some 130 pages of new regulation as well as testimony from 22
witnesses in just three working days and with only two days of hearings.
This interim report was required to be submitted just hours
after the last witness was called, which limits the ability of Senators to
fully analyse evidence given and the impacts of this unprecedented regulatory
impost. Hansard transcripts of the committee's deliberations had not even been
completed by the time this report had to be tabled.
To say this is an abuse of the Senate is understatement in
the extreme.
One can only conclude that the Minister is deliberately
seeking to limit scrutiny and debate of these Bills in an effort to subvert due
process and the full investigation of the provisions of these Bills.
Lack of details and definitions
These Bills as a package lack clarity in the definitions of
what constitutes a media self-regulation body[48],
standards required for decision making by the PIMA and the details on what establishes
the circumstances of a revocation of declaration.[49]
This type of open ended response to vexed policy issues is endemic in the
current government.
The majority of submitters were concerned about the lack of
detail and uncertainty of definition on notions of fairness and accuracy,
community standards and public interest.
Coalition Senators are concerned but not surprised by the
lack of detail contained in the Bills, specifically with respect to the
definitions of key terms.
Despite our rejection of the need for such regulation, we at
least agree with Mr Disney that objective, measurable criteria are more
effective when setting standards[50],
rather than the 'fairness, accuracy, privacy and community standards' that are
referred to in 7(b).[51]
When considering notions of fairness, the PIMA must ensure
that the self-regulating body membership standards are 'fair'. Coalition
senators believe this is a subjective test and question its appropriateness in
this legislation.
Fairfax Media Chief Executive Mr Greg Hywood stated:
They are not at all defined, and some people's version of
fair can be very, very different to what is fair. If we are being fair to
somebody who is corrupt in their terms, we are not doing our job. We have to be
unfair to them in their terms to do our job effectively.
In regards to community standards, again, ambiguity and
subjectivity leading to unintended consequences and the potential for
government interference abound under such loose and immeasurable indicators.
As there is no agreed measure for 'community standards',
ACMA uses surveys and focus groups to ascertain community standards, whilst
commercial broadcasters use a combination of ratings, complaints and surveys.
Community standards vary markedly across regions and
demographic groupings. The idea that one part time person can develop and
determine standards reflective of these various communities to the satisfaction
of all is onerous and problematic.
News Limited Chief Executive Officer, Mr Kim Williams noted:
...it is deeply troubling that the legislation lacks any
detail on how the PIMA would determine what are relevant circumstances and
community standards or what changes would warrant the PIMA's intervention. The
only reasonable conclusion is that a single person, the government-appointed
PIMA, can remove at their whim the most basic rights on which journalists
depend to do their jobs. [52]
While Seven West Media Group Chief of Corporate and
Regulatory Affairs Ms Bridget Fair stated:
I think the point is that the public interest media advocate
is able unilaterally to decide what constitutes community standards. They are
not outlined anywhere in the legislation.[53]
Dr Margaret Simons states that the community standards are
“misguided” as journalists and media sometimes needs to reveal information that
harms others which may offend or concern the community, but in no way breech
the ethics of professional journalism, rather enhances and supports the very
notion of what it means to be a journalist.
The decision to revoke a declaration of an organisation as a
self-regulating body, can occur in similarly murky definitions, Clause 10(3)
b(i7ii) states:
10 Revocation of declaration
Discretionary revocation
(3) If:
(b) the PIMA has reasonable
grounds to believe that, since the declaration was made:
(i) there
has been a significant change in relevant circumstances; or
(ii) there
has been a change in relevant community standards;
the PIMA may, by writing, revoke the declaration.[54]
PIMA can revoke the privilege if there has been a 'significant'
change in 'relevant' circumstance. Evidence to the committee was that the PIMA
was the sole arbiter of what constituted significant, and relevant events. This
leaves too much ambiguity and subjectivity in decision making.
Recommendations
Recommendation 1
Coalition Senators recommend that the Television Licence
Fees Amendment Bill 2013 be passed in accordance with arguments made in the
majority report.
Recommendation 2
Coalition Senators recommend that the Broadcasting
Legislation Amendment (Convergence Review and Other Measures) Bill 2013 be
passed in accordance with arguments made in the majority report, however call
for Clause 27 of the Bill, relating to future funding provisions for
international broadcasting service, to be removed.
Recommendation 3
Coalition Senators recommend that the News Media
(Self-regulation) Bill 2013, the News Media (Self-regulation) (Consequential
Amendments) Bill 2013, the Public Interest Media Advocate Bill 2013 and the
Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 be opposed
on the basis of their encroachment on the freedom of the media, poor design
structures, additional regulatory burden and the absence of any compelling case
warranting their passage.
Senator Simon
Birmingham
Deputy Chair |
Senator Bridget McKenzie |
| |
|
| Senator Anne Ruston |
|
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