7.1
This chapter sets out the evidence considered by the committee on some of the measures the Commonwealth could, and in some instances should, adopt to support a healthy and diverse public interest news media sector in Australia. This includes:
adequately funding Australia's public broadcasters, the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS), including to cover gaps in the provision of news services in regional, rural and remote communities, as well as online;
ongoing funding for the Australian Associated Press (AAP) to provide accurate newswire and fact checking services;
funding a permanent Public Interest News Gathering (PING) program to stimulate the production of news in Australia, including in small communities, and rural and regional areas;
protecting public ownership of the National Broadband Network (NBN) as essential communications infrastructure for the future;
offering research and development-style tax credits or rebates (R&D) for appropriate organisations investing in public interest journalism; and
encouraging philanthropic support for news media, by extending Deductible Gift Recipient (DGR) status to organisations producing public interest journalism.
7.2
Following this, the chapter moves to consider potential amendment to legal frameworks that indirectly hamper a healthy media sector in Australia. This notes the committee's recent inquiry into Press Freedom, which made a number of recommendations that the government has not yet responded to, as well as the ongoing reform of defamation laws by states and territories.
7.3
Lastly, the chapter sets out the committee's views.
Commonwealth funding for news media
7.4
The committee received evidence on a number of potential measures or reforms that the Commonwealth could adopt to directly assist and fund Australia's news media sector, which will be discussed in turn.
Stable and adequate funding for public broadcasters
7.5
The submission made by the Department of Infrastructure, Transport, Regional Development and Communications (the Department) stated that public broadcasters are provided with long-term funding certainty through a three‑year allocation process which has been in place since 1988. This equates to a total of nearly $3.2 billion for the ABC and $887 million for SBS over the three-year cycle.
7.6
Some evidence suggested that the government should reconsider funding the ABC, putting forward privatisation and cutting the current support for entertainment content as potential savings measures. For example, the Institute for Public Affairs argued that the government should consider 'privatisation, reform of the ABC into a subscription service, or to allow to the ABC to air advertising'. Freedom Publishers suggested the ABC charter should be amended for it to be solely a news service, which would allow 'wasted' funds spent on the creation of entertainment content to be used to produce current affairs.
7.7
However, overwhelmingly the evidence provided by stakeholders was that they saw current funding levels for public broadcasters as being at a critically low level, and unsustainable for meeting charter obligations. This was particularly the case regarding ABC funding.
7.8
One 2020 estimate suggested the ABC operational funding budget had been cut by a total of $783 million since the Abbott Government was elected in 2014. This analysis suggested that this general trend has been exacerbated by the 'funding freeze' put in place by the Turnbull Government in 2018, which has resulted in a cut in real terms of $83.7 million to the ABC's operating budget. Flowing on from the freeze, there were around 250 direct job losses at the ABC, as well as a reduction of some services, including axing the major 7.45 am news radio bulletin.
7.9
Mr Ranald Macdonald, former managing director of David Syme & Co, owner of The Age, and principal founder of the Australian Press Council, outlined some consequences of reduced ABC funding, which he saw as driven primarily by ideology, rather than sound fiscal management or efficiency:
The Federal Government's decision in effect to pursue the death of the ABC 'by a thousand cuts' as supported by many in the Coalition and boosted by the Murdoch Mafia, the Institute of Public Affairs and other short term thinking critics with political or other agendas… Australia is at risk of losing a strong and independent news and current affairs voice, as well as gifting to the commercials and pay for view [e.g. News Corp]…countless millions of dollars on top of what has already been gifted by this Government.
7.10
A large number of submissions argued that these cuts should be reversed, and the ABC's funding be made stable. For example, Dr Benedetta Brevini, Associate Professor in Media and Communication at the University of Sydney, submitted that there must be:
A reversal of the drastic reduction of public funding to the ABC and SBS, as the remit of public service media is needed more than ever as a publicly accountable platform operating separately from the state and market.
7.11
The University of Canberra's News and Media Research Centre (N&MRC) provided evidence that the ABC should be funded appropriately to provide more news and current affairs to regional and rural communities where there are 'news gaps':
Based on our data about lower engagement with news by rural and regional Australians and the news gaps in parts of regional Australia, we not only recommend an increase in funding to regional journalism outlets, but also to the ABC. [An] increase in funding specifically for regional news provision would help the ABC fulfil its charter by providing coverage of courts and council—basic public interest journalism—in areas where there is no local reporters and help maintain the health and identity of those communities.
7.12
ABC Alumni argued that the steady diminution, in real terms, of the broadcaster's funding has a deleterious impact on its news journalism:
…the government has refused to rescind the decision made in the Turnbull government's 2018 budget that ABC funding should no longer be indexed, resulting in a cut, in real terms, of an estimated $80 million over the ensuing four years... [R]educed funding leads inevitably to centralisation. For example, the old state-based versions of the 7.30 Report cost many millions of dollars more than the Sydney-based national program that superseded them in the 1990s. Later, further cuts in funding forced the ABC, reluctantly, to drop the once-a-week state-based current affairs program, Stateline. In the view of ABC Alumni, the lack of a television forum for the scrutiny of state government and policy is deeply regrettable. But we accept that Stateline could have been retained only at the expense of even more savage cuts elsewhere in the ABC's output.
7.13
The Media, Entertainment and Arts Alliance (MEAA) suggested that the view that public broadcasters 'should confine their operations to areas that commercial media do not resource' was 'specious'. It argued:
Our public broadcasters must be funded in a manner that enables achievement of their charter obligations and to provide high quality, fact‑driven comprehensive news content across platforms.
As levels of commercial media concentration grow, the body politic must embrace the fact that our public broadcasters are invaluable public resources and should be funded accordingly.
7.14
The total funding quantum for Enhanced Newsgathering, a program established in 2013 under Prime Minister Rudd, has also fallen under successive Coalition governments.
7.15
The Journalism Education & Research Association of Australia noted that the ABC provided a valuable counterweight to the 'distortion' provided in some other aspects of Australian news media, which skewed public debate:
Restoring funding of the ABC and SBS to recommended levels is a powerful antidote to the distortion of the Australian public sphere. The ABC is bound by its charter to offer national forums for respectful public debate, in stark contrast to what occurs on Sky News after 6pm. Significantly, the amount and quality of journalism done by the ABC and SBS is not only a matter of concern for Australian citizens. Across the globe there are only between 11 and 15 properly funded public broadcasters that have independence from government and corporate influence and interference. Given these low numbers, if the ABC or SBS is diminished, so is independent in-depth journalism.
7.16
The committee also notes the recommendation of the Australian Competition and Consumer Commission (ACCC) Digital Platforms inquiry, which advised that the public broadcasters should be given stable and adequate funding by the government:
In recognition of the role performed by the ABC and SBS in addressing the public good nature of journalism and consequent risk of under provision of public interest journalism, the ACCC recommends that stable and adequate funding be provided to the ABC and SBS.
However, while the public broadcasters have performed, and will continue to perform, an extremely important role in addressing under-provision of certain forms of journalism and contributing to media plurality, a wider range of news sources should also be active in the provision of all categories of journalism in order to ensure depth of coverage and broader range of media voices throughout Australia. Further, the public broadcasters are not currently resourced to fully compensate for the decline in local reporting previously produced by traditional commercial publishers.
7.17
The ABC and SBS's three-year funding cycle will expire on 30 June 2022. Accordingly, the public broadcasters will shortly be submitting their next funding requests for the 2022-23 Federal Budget.
7.18
In its Annual Report 2021, the ABC particularly flagged that it will be seeking a continuation of funding for the Enhanced Newsgathering program, which enables it to deliver more tailored and local news, and bring news from across the country to a national audience: 'It is due to lapse at the end of the triennium'.
7.19
In the Commonwealth Budget 2019-20, the government provided $43.7 million over three years from 2019-20 to the ABC 'to continue to support local news and current affairs services, particularly in regional areas'. Although the government has not formally committed to renew this important funding source, Senator the Hon Jane Hume, representing the Communications Minister, advised the Environment and Communications Legislation Committee that 'it is my understanding that [this funding] will be extended'.
Security of funding for AAP's newswire services
7.20
Newswire services are critical to the health and diversity of news media, as they provide reliable and unbiased information that informs and sustains news organisations to produce public interest journalism.
7.21
AAP is Australia's longest-serving and most-respected newswire service, which submitted that:
With no political axe to grind, nor advertisers to please, AAP was formed to supply news 'without any tendency toward or opportunity for the exercise of political partisanship or bias'… As Rupert Murdoch himself noted '[a]s an organisation that sits to one side in a fiercely competitive industry, it has a vital role in ensuring an accurate, independent and comprehensive coverage of the daily news events across the country, providing a wide choice of content for the media, no matter what they are or what their market'.
7.22
AAP indicated that it has around 70 editorial staff, complemented by a network of regular freelance contributors, including journalists working in regions, and photographers covering local events. It noted that:
Around the clock, 365 days a year, AAP supplies core news to over 400 media outlets across Australia. Every day, AAP publishes over 220 stories and captures over 400 images for use by our customers across their websites, papers and broadcasts.
A pooled newswire service reduces the cost of general news collection for media companies, public broadcasters and the public at large. AAP is a 24 hour, 365 day operation playing a critical role in reporting areas of high public interest including national and state-level politics and policy, court reporting and breaking news from across the country.
7.23
Evidence highlighted the value of AAP's newswire and fact checking services to the reliability and balance of Australia's media sector. For example, the Chair of the ACCC, Mr Rod Sims told the committee that newswires were important for diversity, competition, and encouraging new entrants to market:
Certainly some of the smaller publications to get started need that newswire because it can give them stories that they wouldn't otherwise get. As for what I think is the other point, taking court reporting as a classic, you're just not going to send journalists from four or five papers down there; but having an organisation that can send one [journalist] down there and then circulate it is really important… So I think it is important for quality of journalism and for competition as well because certainly some of the publications I'm aware of, and some who are perhaps doing quite well now, have said that they could not have got started without the newswire.
7.24
In noting the value of newswire services, stakeholders recommended that the government should lock in funding for its viability, particularly given that AAP was very nearly shut down in 2020, due to News Corp and Nine pulling out of subsidising arrangements. Mr Campbell Reid, Group Executive overseeing Corporate, Policy and Government Affairs, at News Corp, commented on the decision made by his organisation and Nine not to fund AAP, referencing the commercial realities of newswire services:
…newswire services globally are under immense pressure as media companies replace the services they traditionally provided with stuff that they can get for free on the internet. It was responsible, as board members, to make a decision. The very fact that AAP Newswire ended up in the hands of extremely good people, but with a philanthropy and a government model in train, is evidence that, in our view, the board was right that the commercial newswire was unsustainable.
7.25
A range of submitters and witnesses, including AAP itself, noted that other countries had recurring funding from government for newswire services, recognising the crucial role they play in a healthy media landscape, including increasing diversity and the availability of public interest journalism.
7.26
For example, Dr Denis Muller, a Senior Research Fellow at the Centre for Advancing Journalism, told the committee:
[AAP] has a long and distinguished history of providing comprehensive, accurate, politically neutral coverage free of commercial considerations. It's now owned by a consortium of investors and philanthropists who were alarmed when AAP was shut down as a result of a decision by its two biggest shareholders, News Corp and Nine Entertainment…
Government support for a newswire service would…go some way to remedying the deficit in public interest journalism, provide a news lifeline to rural and regional media and increase diversity by helping innumerable local media outlets to survive.
7.27
The Chief Executive Officer of AAP, Ms Emma Cowdroy, told the committee in February 2021 that AAP's sustainability depends on three income streams: commercial revenue, philanthropic donations and government support, noting:
…every other newswire agency in the world gets a form of government support, as I say, whether by way of a commercial arrangement, so they take the service, or by way of funding. Some of them get both. In France, Agence France-Presse get 131 million euros from their government as a funded arrangement and then a further 20 million euros by way of the government paying for the service.
7.28
At that time, Ms Cowdroy noted that AAP had received $4.5 million support from the Commonwealth, with a further one-off payment $500 000 to come in May 2021. Ms Cowdroy told the committee that AAP had requested government funding of $8–10 million dollars a year for three years, to ensure its short-term viability. Subsequently, the government committed $15 million funding over two years in the 2021-22 Budget to AAP, to support its financial sustainability over two years.
A fund for public interest journalism
7.29
One of the proposals made in the government's 2020 Media Reform Green Paper (Green Paper) was to:
…establish new funds to support the provision of more regional news and more Australian drama, documentary and children's content, with those funds capitalised with a share of the expected proceeds from reallocating spectrum which will no longer be required by the free-to-air television sector.
7.30
The reasoning underpinning this proposal was that the future rationalisation of the radiofrequency spectrum could result in certain frequencies becoming available for reallocation. The auction of this valuable spectrum could generate substantial proceeds for the Commonwealth, and potentially:
A portion of the proceeds of the auction could be allocated to capitalise specific funds that would be established to support future television content delivery, in two priority areas: support for regional news services; and support for Australian drama, children's and documentary content. Each would be established as a trust fund operating under a legislative framework and would be overseen by an independent board of trustees. The first would be known as the Public Interest News Gathering Trust (PING Trust); the second would be known as the Create Australian Screen Trust (CAST).
These arrangements would be implemented through legislative amendments to the [Broadcasting Services Act 1992], the Radiocommunications Act 1992 and other relevant legislation.
7.31
The Department clarified that this would not only apply to television content, but provide funding across media in regional areas:
The purpose of the PING Trust would be to provide a capital fund that could be drawn on over time for grant funding to support the provision of newspaper, radio, television and online news services in regional Australia. This focus on the needs of regional and remote areas of Australia recognises that the provision of news and journalism in these markets is particularly challenged.
7.32
Some evidence to this inquiry confirmed that stakeholders supported this new funding proposal, with some qualifications. For example, Ms Rachel Launders and Mr Hugh Marks from Nine spoke favourably of the PING funding they had already received, and the potential for it to continue. In doing so, Ms Launders noted that any sale of spectrum could impact regional communications, and so should not be undertaken without due consideration.
7.33
Free TV Australia expressed some doubts about the proposed PING Trust. First, it noted that the proposed funding model would depend on 'some of our members agreeing to transition to new spectrum arrangements'. Second, it suggested:
The spectrum auction will not occur until 2025. This is far too late to address this pressing concern, as the funding is needed now.
7.34
However, Mr Marks noted the benefits of the proposal, specifically the great value of funding to employ journalists outside of metropolitan areas:
Obviously you want to have journalists employed in the regions. What is going to be the best way to do that? We have, and we have in the past, invested in local news gathering through our organisation, including in regional areas… Any [Commonwealth] funding that goes specifically to that regional news will be readily accepted by media organisations and used to support employment of journalists, and that's the best way you can continue to provide that sort of coverage.
7.35
Ms Cowdroy of AAP judged that even if a PING Trust, as canvassed in the Green Paper, would be 'helpful' to the sector, it may take a while to develop and implement:
My understanding, though, is that that process is going to take some time, potentially some years. The industry is in a crisis now, and I think something needs to be done now.
7.36
Some evidence suggested that government support should not be limited to supporting regional media outlets, but should also fund small, independent and new publications more generally. For example, a number of eminent editors and journalists recommended the establishment of:
…a legislative or regulatory mechanism that actively supports and funds the growth of existing independent media and the creation of new journalism start-ups… It should support the viability and growth of public interest media ventures on a scale that aims to redress the imbalance created by the power and dominance of the major media companies and the economic collapse of quality journalism in Australia.
This could require a single initiative or a range of measures to strengthen existing independent publications and encourage would-be publishers to enter a space that is currently loaded against new entrants and incumbent independents because of the market power of the big players.
7.37
This proposal recommended the fund be independent, as 'journalists like to be at arm's length from governments because they must, ultimately, hold them accountable'. It would encompass a range of functions, including to:
'provide financial support for independent journalism publishers and start‑ups';
'seek to address areas of particular market failure (and watchdog journalism) through the establishment of independent grants for journalism'; [and]
'[provide grants] to hire journalists to provide coverage of town halls, courts and police rounds, regional Australia and specialist reporting in a range of areas now sadly neglected'.
Journalist cadetships
7.38
The Department noted that one of RASPI's objectives was to create employment opportunities for cadet journalists. As such, 'a total of $8.0 million in administered funds was allocated to the Regional and Small Publishers Cadetships Program for two rounds'. However, only a fraction of this allocation has been granted to publishers:
A total of $1.922 million was committed under the first round of the Cadetships Program. A total of $0.957 million has been spent to date. Some grantees did not take up the full allocation of funding due to the co‑contribution payment arrangement or had difficulties in finding or retaining cadets. A second round was not conducted.
7.39
Mr Bruce Ellen, Board Member of the Country Press Association, commented that there should have been $6 million left in the Cadetships Program. He believed however that the money had been rolled into the PING program. Mr Ellen noted that the government has since actively supported apprenticeships but that support has not been extended to cadet journalists:
…you'd be aware that the government allocated hundreds of millions of dollars to apprenticeship support. We have put numerous submissions into the Treasurer and into the minister for communications asking: what about our apprentices? Our apprentices are, obviously, our cadets. To me, it's a no-brainer that if we want media diversity, if we want young people to enter the industry and grow through it and if we want to help employ a greater number and variety of journalists, surely an apprenticeship program for newspapers—that being simply our cadets—should be put in place. I made the point that this was already in place and was working very well but was abandoned.
Protecting public ownership of the NBN
7.40
Some evidence argued that the NBN should be regarded as, and remain, essential publicly‑owned communications infrastructure. This, it was suggested, would ensure that Australians have a continued access to a healthy and diverse news media. The submission made by Per Capita suggested that Australia's broadband communications infrastructure should remain publicly owned, as:
All media content will be delivered over the broadband technology sooner rather than later, with the exception of short-wave radio for emergency services. A publicly owned wholesale broadband distribution platform could radically democratise the distribution of media content in Australia.
The original FTTP NBN was designed to have a number of ‘ports’ into the home: to allow for ‘broadcast’ television and radio, and telephone and internet services, from multiple providers. Critically, the original design included an additional port to allow for the future delivery of public service content, particularly programs of communication around education and health.
7.41
Per Capita noted that the NBN was originally intended to be sold once completed but argued that the government should reverse this policy as privatisation could compromise its accessibility, not only for everyday Australians accessing content, but also for start-up media companies trying to enter the market.
7.42
The submission proposed that a publicly-owned NBN could:
incorporate a Commonwealth education platform, which could assist in delivering remote learning and support services;
a trusted public health information and communications portal, which would help combat misinformation and disinformation on private media channels;
enable considerable savings to the operational costs of transmission for ABC and SBS (currently around 20 per cent of their funding), which they could put into content generation;
accommodate commercial broadcasters in the provision of streaming services;
ensure accessibility to online infrastructure for existing and new entrants to the market, which would guarantee no concentration of ownership for online infrastructure and create the conditions to drive diversity and competition.
Support through reform of the taxation system
7.43
The committee considered several options for tax reform that would create increased diversity of titles and voices by supporting sustainable models for existing news organisations and encourage new players to enter the market.
Research and Development-style tax credits or rebates
7.44
The Commonwealth currently offers tax concessions for organisations undertaking R&D that would not have otherwise been conducted, to boost competitiveness and productivity. Some evidence to this inquiry suggested that the Commonwealth could use this model to offer tax credits or rebates to organisations producing public interest journalism, to offset the considerable cost of employing journalists.
7.45
A report prepared for the Public Interest Journalism Initiative (PIJI) noted that 'tax credits were an efficient approach to targeting quality journalism', citing expert analysis that found:
Tax credits or other indirect subsidy schemes that directly reduce the marginal cost of investing in journalism are the most efficient scheme to increase the quality and quantity of journalism and stimulate investigative journalism. Tax credit schemes are widely used in OECD countries to promote R&D investments, but not much used as a media policy instrument. We believe they deserve far more attention from both academics and policy makers who reflect on how to secure high quality journalism when the traditional business model of the media industry is eroded by the internet and more or less free distribution of news.
7.46
Mr Dan Stinton, the Managing Director of Guardian Australia, noted that a tax incentive could offset the most significant outlay of media organisations—employing journalists:
…our biggest expense, as you would expect, is investment in journalism and civic journalism. So, if there was a tax incentive for that investment, that would make a really material difference to our business because we would have a lot more money to invest in more civic journalism.
7.47
It was noted in evidence that an R&D-style tax incentive would depend on the adoption of an adequate and assessable definition of 'public interest' journalism, to ascertain eligibility and ensure robust oversight.
Ms Lenore Taylor, Editor of Guardian Australia, suggested ways that a tax incentive for journalism could be targeted, once that definition had been set, as well as other criteria, such as:
….how you define the eligible investment [in public interest journalism] and how you make sure that it is additional to investment that would have happened anyway. If policy makers wanted to help smaller publications in particular the benefit could be tiered; greater for companies with lower turnovers and lesser for higher turnovers.
Deductible gift recipient status for news organisations
7.48
The committee is aware that many independent media organisations around the world are sustained through charitable donations and philanthropic bequests. This is encouraged by governments allowing donors to claim tax deductions for donations for eligible news organisations.
7.49
The Australian Gdovernment has already approved DGR status for the AAP from 9 June 2020, which suggests there is some precedent for this to be extended to other eligible media organisations.
7.50
A number of submitters and witnesses suggested that Australia should adopt this model to encourage diversity, as it would encourage new entrants to the market, as well as assisting the viability of a number of existing outlets.
7.51
The PIJI provided research to the committee that found there is a 'small but growing market of philanthropists supporting public interest journalism' because they see its value as a public good. This research noted that philanthropists are often unaware of the need for support, and that media organisations are not experienced in seeking philanthropic contributions. However, it was argued that the 'key constraint' was regulatory:
By addressing regulatory constraints and tapping into existing cause areas, there is potential to grow philanthropic support for the not-for-profit journalism sector.
7.52
The Judith Neilson Institute for Journalism and Ideas (JNI), an organisation using a philanthropic model, argued that government should amend current provisions to allow easier access for philanthropy 'supporting and nurturing' journalism, noting that in this regard 'Australia still lags behind other democratic nations'. In a 2019 submission to the ACCC Digital Platforms inquiry, the JNI set out the benefits of this model:
Philanthropy … can inject new funds into the industry… it can also help the media and correspondingly, the public, in other less immediate ways by taking the commercial risk out of innovation; by supporting emerging and local media that is not initially commercially viable; and by ensuring that issues that are neglected for commercial or other reasons receive appropriate coverage for the benefit of all Australians.
7.53
One example of the use of DGR status is the Guardian's establishment of the Guardian Civic Journalism Trust. This entity can offer DGR status for philanthropic donations and uses this to fund positions undertaking 'specific in-depth public interest journalism years earlier than we might have been able to fund it on our own', including on Aboriginal and Torres Strait Islander, and Pacific issues. The Managing Director of Guardian Australia, Mr Dan Stinton, told the committee that current provisions for DGR could be made broader, and easier to access:
…it would be very helpful if there was a way that there could be across‑the-board DGR status for philanthropic grants for public interest journalism. We accept philanthropic grants now because we have partnered with Melbourne University to launch the Guardian Civic Journalism Trust. That collaboration means that when we get a grant we can use it for journalism, but we also, through the partnership, have to use it to benefit journalistic education through internships, guest lectures, funding student reporting projects and the like.
It is working well and it allows us to accept some philanthropic grants, but there is obviously a limit to how many projects you can accept with that kind of an arrangement. We have several times now suggested a small amendment to the income tax act to allow institutional philanthropic donations for the purpose of civic journalism.
7.54
The use of DGR status was outlined in one of the recommendations made by the ACCC's Digital Platforms inquiry, which noted the promising success of philanthropic models for news overseas:
Philanthropic support for journalism could be encouraged in Australia by enabling donors to make tax-deductible contributions to not-for-profit organisations that produce, promote or assist the production of public interest journalism. To do so, the ACCC recommends that the Government amend tax settings to create a specific charitable purpose and a new category of deductible gift recipient (DGR) status for not-for-profit organisations that carry out such activities.
Reform of law relating to defamation and freedom of the press
7.55
In addition to the measures the Commonwealth could adopt to directly support Australian news media, there are a number of areas of reform that government should consider to bolster the health of the sector indirectly.
7.56
In particular, the committee has considered evidence relating to the reform of defamation laws. Additionally, this section revisits some of relevant issues considered by this committee in its May 2021 report into Press Freedom, which has still not been responded to by the government.
Defamation laws
7.57
The Council of Attorneys-General representing all states and territories agreed to reform Australia's defamation laws in 2004, by supporting the enactment of uniform Model Defamation Amendment Provisions (MDPs). In 2018, the Council agreed to review the MDPs, and in 2020 supported the enactment of Model Defamation Amendment Provisions 2020.
7.58
These reforms set out to achieve a fairer balance between freedom of expression in the public interest, and the right of individuals to protect a reputation.
7.59
Stage 1 of these amendments came into effect in New South Wales, Victoria and South Australia on 1 July 2021. The remaining Australian states and territories have committed to implementing the new regime as soon as possible after 1 July 2021. Stage 1 reforms cover:
Clarification of the cap on damages for non-economic loss
Introduction of a new public interest defence
Introduction of a serious harm threshold
Introduction of a single publication rule
Introduction of a mandatory concerns notice procedure.
7.60
Stage 2 of the MDPs is still in development, and is focused on two issues: the question of internet intermediary liability for defamatory conduct of third parties; and considering the impact of defamation law on reports of alleged criminal conduct and misconduct.
7.61
Evidence suggested that the cost of bringing defamation cases was too great for victims, particularly individuals of limited means who wished to challenge well-resourced media companies. Moreover, it was commented that defamation proceedings could only be brought by individuals, and so organisations who had been misrepresented could not take legal action to defend their reputation.
7.62
On the other hand, media owners suggested that the risks of costly defamation settlements could diminish their willingness to publish some stories that were in the public interest.
7.63
The Hon Malcolm Turnbull AC, formerly both a defamation lawyer and Prime Minister of Australia, suggested a potential reform to make defamation quicker and fairer for both individuals and media organisations:
…if a person…who feels they have been defamed brings their complaint to a publisher and the publisher, within a reasonable time, whether it is a week or two weeks, publishes a correction and apology in an equally prominent position, then they should not be able to get damages other than actual pecuniary damages—say, if their business revenues were halved, they could be compensated for that. In other words, it provides an incentive for media outlets to get the facts straight, quickly.
Implications of the 'Voller' case
7.64
In September 2021, the High Court affirmed that media organisations are responsible for comments posted by third parties on articles on their websites.
7.65
The case stemmed from a claim made by Mr Dylan Voller in the NSW Supreme Court in 2019 against the owners of the Sydney Morning Herald and The Australian, over third-party comments that had been made on news stories posted by those companies on Facebook. In this case, and a subsequent case in the Court of Appeal, it was found that the media companies who hosted the Facebook pages had published the material, and therefore were liable for any defamatory comments made about Mr Voller by users.
7.66
In essence, this affirms that media companies are considered as 'publishers' of articles posted to online platforms, and so liable for third-party comments. By extension, this finding may have serious implications for platforms such as Facebook, which for many years has argued it is a 'tech platform' but not a 'publisher'.
7.67
Nine's submission to this inquiry suggested there are opportunities for the government to reform defamation and related laws. On the Voller case—which at the time of submission was not yet fully resolved by the courts, Nine noted:
Developments in defamation law have significantly increased the risk profile of creating and supporting public interest journalism. In particular the Voller decision, makes Australian media companies responsible for user comments in circumstances where they cannot control or disable user comments. Compounding this issue was the removal of a proposed provision giving Australian media companies the ability to request this right, from the draft Mandatory Code before it was introduced into parliament on 9 December 2020, and the Digital Platforms making it clear in commercial negotiations that the right to disable or control user comments is not something they will grant.
7.68
The full effects of the Voller findings have not played out at the time of writing. However, representatives of media companies, including News Corp and Nine, have indicated it will have significant consequences for the operation of any public page on social media, including those administered by large media companies.
7.69
Members of the government, including the Attorney General, Senator the Hon Michaelia Cash, have also signalled to the states and territories that reforms to defamation laws must include consideration of the new realities of media content appearing on Facebook and other online platforms.
7.70
The Prime Minister has also indicated potential changes to Commonwealth laws regarding social media platforms being considered as publishers under certain circumstances.
Recommendations of the Press Freedom report
7.71
In May 2021, the committee tabled a report into Press Freedom. The report made 16 recommendations to the government for the reform of laws relating to reporting on issues of national security, the freedom of information framework, whistleblower protections, and other matters.
7.72
The government has not yet responded to these recommendations, even though it is obliged to do so within three months of tabling.
7.73
Concurrent with the committee's inquiry, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) conducted a similar inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. This committee made 14 recommendations to the government, to which the government responded in December 2020.
7.74
Many of the committee and the PJCIS recommendations overlap, and therefore the government already has a view on the matters examined by the committee in its inquiry. However, its response to the committee is now overdue.
Committee view
7.75
As discussed in previous chapters, the legal and policy framework applying to Australia's media sector needs systemic and top-down reform, which the committee considers would be best developed by an independent judicial inquiry.
7.76
However, the committee considers that there are several short-term reforms the government should adopt to foster diversity in Australia's news media and enhance public interest journalism in Australia. These reforms would support existing outlets and create conditions conducive to attracting more entrants to the sector.
7.77
This section outlines a number of matters for consideration, including adequate funding for public broadcasters, the potential for direct grants administered by an authority at arms-length from the government of the day, protecting public ownership of the NBN, and assistance to media organisations through adjustments to our taxation system.
Funding our public broadcasters—ABC and SBS
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A common theme of the evidence received by the committee highlighted that the public broadcasters, the ABC and SBS, are cherished national institutions that are central to Australia's media landscape.
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Time and time again in evidence, it was noted that the ABC is the most trusted and valued news organisation in Australia, and unique in its capacity to reach Australians across the country with reliable news, including in regional and rural areas which are underserviced by other providers. Moreover, it was noted that SBS services an important and diverse segment of our community, and significantly enhances our multicultural nation's access to reliable current affairs.
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Evidence strongly showed that well-funded national broadcasters ensure diversity, depth and balance in the news media ecosystem, and allow Australians from all over the nation to access quality journalism, as well as other essential services in times of crisis or emergency.
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However, it was also widely noted in evidence that the current government has greatly reduced funding for our public broadcasters, and for the ABC in particular. Some also suggested that the government has engaged actively in politicisation of the institution and cast aspersions upon the ABC's production of fair, accurate and impartial news content, as it is required to do by its charter obligations.
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In the campaign preceding the 2013 election, the then-leader of the Coalition, the Hon Tony Abbott, committed to making 'no cuts' to the ABC and SBS. Despite this, the Coalition Government has consistently and significantly cut the ABC's funding under three successive Prime Ministers.
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As noted above, a 2020 analysis showed that rather than the 'no cuts' promised, the ABC was subjected to around $783 million of cuts in the seven years following the Abbott Government's election in 2013. The current government has also indicated that there will be no change to the indexation freeze for the ABC, which means that the cumulative and ongoing cuts to the ABC's operating budget under the Abbott-Turnbull-Morrison governments have severely impacted its capacity and services to the Australian public.
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This has created tremendous uncertainty for the ABC, with job losses, the cessation of crucial established news programs, and reduced services including in news provision for regional and rural areas that depend heavily on the ABC for reliable news.
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Moreover, in recent years, the ABC has endured accusations of partiality in its reporting, with the implication that the public broadcaster is biased and produces news material that goes against its charter obligations. This attack has come both from media companies, including News Corp, as well as from the ranks of the government itself.
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Despite the present government’s attitude to the ABC, the broadcaster has consistently been found to be our most trusted and reliable news provider, and supported by Australians as a leading pillar of our news media and a vital part of our national identity.
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It is essential that the government reverse the cuts to the ABC and increase its funding to sustainable levels, so the corporation can meet its charter obligations satisfactorily and provide public interest journalism for all Australians, including in regional and rural areas. In addition, the committee considers that the funding for public broadcasters should be increased from its current 3-year cycle to a 5-year cycle, which would give them certainty for their planning and security for the services they provide.
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The committee notes that the government has flagged its intention to extend funding for the ABC's Enhanced Newsgathering program in the 2022-23 Federal Budget. The government should firmly commit to this extension in the ABC's next triennial funding cycle.
Funding for AAP
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The committee considers that newswire services are an essential pillar in a healthy and diverse media landscape. Modest yet appropriate levels of Commonwealth funding would ensure the independence of AAP and ensure that it remains a significant contributor to the health, reliability and diversity of Australian media.
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Evidence on AAP's value to Australian news media was expressed consistently in evidence, as was the observation that many governments around the world support newswire services with public funding.
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The committee notes that the government did apportion two years of funding to AAP in the 2020-21 Federal Budget.
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This funding will clearly assist AAP to transition to a new not-for-profit model, supported by industry and philanthropy. However, the committee considers that this funding should be made permanent, to give surety to its planning, and to consolidate it as a central pillar of our news media.
Public investment in journalism through a PING Trust
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The government's own Media Reform Green Paper canvased the idea of setting up a permanent and independent PING Trust to support the health and diversity of regional and rural news media organisations.
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The committee supports this initiative, as have numerous stakeholders to this inquiry. However, the Green Paper proposal is premised on a permanent trust being funded by the sale of broadcast spectrum, which is a proposal that will only occur well into the future.
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Small, independent and local publications along with new entrants are essential components of a healthy and diverse news media industry. The committee heard evidence that called for a direct and targeted government funding mechanism for small, independent and new journalistic endeavours. The PING Trust could effectively provide this support mechanism. The proposed PING Trust as outlined in the government’s Green Paper should be broadened to include small, independent and emerging news media organisations. In addition to supporting regional news media, the PING Trust should be open to applications from this subsector of the broader news media landscape.
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Many news organisations need assistance immediately, as without near-term support many will be forced to close. In regional areas, there is a risk that journalists will move on to different places and industries, and local communities will be left without the current affairs and local news they need.
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An independent PING Trust should be funded by government immediately from general revenues, which could be offset by a future sale of spectrum.
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Moreover, the committee notes the implementation and uptake issues for the PING program that were outlined in Chapter 3. The committee recommends that the fund be made more accessible and transparent, particularly for genuinely small and independent titles, rather than for large corporates that generally do not employ regional journalists to make dedicated content for local communities.
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Similarly, the program should also extend cadetship provisions to small and independent news organisations.
Responding to the Media Reform Green Paper
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The government's Green Paper sought stakeholder views on its proposals for crucial reforms to the future of Australia's television landscape. Submissions to the Green Paper process closed on 23 May 2021.
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It is vital that the government clearly responds to this consultation process, and sets clear expectations for stakeholders, and let Australians know the government's intention for the final proposals for reform.
Protecting public ownership of the NBN
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While the traditional media of newspapers, television and radio are sure to remain pillars of the Australian media sector for the foreseeable future, it is clear that online platforms will continue to grow.
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News will increasingly be delivered and distributed online, including by traditional media through digital platforms, existing web-based outlets, and new entrants to the market.
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Privatisation of all or parts of the NBN would risk large conglomerates in media and other businesses exercising even more control over a large swathe of our communications infrastructure. In turn, this could work against other media organisations and make it more difficult for new players to enter the market.
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A publicly owned NBN would ensure Australia maintains open access to communications infrastructure. As a result, it would increase the viability of new entrants to the market, and enhance the diversity, depth and accessibility of Australian-produced public interest journalism
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It is essential that the NBN remains in public ownership, for the health and diversity of our news media sector for the future. The committee considers that the Commonwealth should commit to protecting public ownership of the NBN.
Reform to the tax system
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The committee heard of the opportunities available to the Commonwealth to support organisations producing public interest journalism through amendments to the tax system. It is clear to the committee that these would be worthwhile the Commonwealth to consider, as they offer tremendous opportunities to revitalise Australian news media and increase diversity in the sector, with a very minimal impact on tax revenues. Moreover, such adjustments to the tax system would not compromise the principle of press freedom and journalistic independence.
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Allowing some journalistic organisations to claim DGR status would encourage private benefactors to support not-for-profit media organisations, including new start-ups entering the market.
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Although Australia does not have the same degree of philanthropic giving as some other jurisdictions, such as the US, this measure could unlock significant funding to support greater diversity in Australia's news sector.
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The offering of an R&D-style tax concession would also be an opportunity for the government to encourage organisations to employ staff producing public interest news content.
Defamation and press freedom
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Regarding defamation, the committee makes no recommendations, but notes that there is ongoing work across states and territories to harmonise defamation laws.
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Moreover, the committee also notes there are serious implications for the press that stem from the High Court's findings in the Voller case. There have been no Commonwealth proposals in policy and law to date, and consequentially no Parliamentary consideration of these matters.
Senator Sarah Hanson-Young
Chair