Chapter 1Introduction

1.1On 11 May 2023, the Senate agreed to refer the Murdoch Media Inquiry Bill 2023 (the bill) to the Senate Environment and Communications Legislation Committee (the committee) for inquiry and report by 16 October 2023.[1] The bill was introduced into the Senate on 13 June 2023 by Senator Sarah Hanson-Young, as a private Senator's bill.

1.2On 16 June 2023, the committee was granted an extension to 12 December 2023 to report.[2] On 10 November 2023, the committee was granted an extension to 30 April 2024.[3] On 30 April 2024, the committee was granted a further extension to 10 October 2024.[4]

1.3The bill seeks to establish a Parliamentary Commission of Inquiry, to be known as the Murdoch Media Commission of Inquiry (Media Commission or Commission) to inquire into the current state of media diversity and conduct of media outlets operating in Australia, in particular the Murdoch media empire, and its impact on Australian democracy.

1.4The proposed Media Commission would be established in statute, have the full powers of a Royal Commission, and would report back to the Australian Parliament. The Media Commission would inquire into a range of matters including existing media regulation, the concentration of media ownership, the culture of media outlets in Australia and the influence of the media on democracy, among other matters.

1.5The Senate would be required to appoint one member to the Media Commission.

Conduct of the inquiry

1.6Details of the inquiry were advertised on the committee's website, including a call for submissions by 31 August 2023. The committee wrote directly to various stakeholders to invite them to make submissions.

1.7The committee received 25 submissions, which are listed at Appendix 1 and are available on the committee's website.[5]

Acknowledgements

1.8The committee thanks the organisations and individuals who made submissions to the inquiry and appeared before the committee at the public hearing.

Background to the bill

1.9Despite previous government reviews of media ownership in Australia, concerns over the Murdoch media's dominant market share persist.[6] The bill's Explanatory Memorandum (EM) states:

Australia has one of the most concentrated news media markets in the world. The Murdoch controlled News Corp owns more than two thirds of all print media outlets in Australia. Through News Corp, the Murdoch empire wields enormous power and political influence, largely unchecked and unchallenged. The impact on democracy is corrosive and has eroded trust in journalism and public institutions.[7]

1.10In the 46th Parliament, the Senate Environment and Communications References Committee conducted an inquiry into media diversity in Australia, which reported in December 2021. That committee recommended a judicial inquiry with the powers of a Royal Commission be established to determine whether the existing system of media regulation is fit-for-purpose and to investigate the concentration of media ownership in Australia.[8]

1.11On introducing the bill, Senator Hanson‑Young drew attention to this recommendation of the report, arguing that:

Only an inquiry with the powers of a Royal Commission can uncover the extent of the Murdoch media's influence and control over our democracy and fully examine media concentration in Australia.[9]

1.12Accordingly, the bill seeks to establish a Parliamentary Commission of Inquiry into the 'current state of media diversity and conduct of media outlets operating in Australia … and their impact on Australian democracy', with a specific focus on Murdoch-owned media.[10]

1.13The EM further suggests that a Commission of Inquiry is needed as the regulation of media in Australia is 'not fit for purpose' and:

… has not kept up with the ever-changing media landscape. There has been a clear failure in regulation as monopolies have been allowed to flourish in both traditional media and through online platforms.

This Bill sets up a Commission with the powers to delve deeply into issues of media diversity, regulation, ethics and conduct in Australia to deliver a report to the Parliament on how best to regulate the news media sector to protect Australia's democracy.[11]

Parliamentary Commissions of Inquiry

1.14Parliamentary Commissions of Inquiry are created by statute by the Australian Parliament (Parliament), to report back to the Parliament. It is open to the Parliament to establish a Commission of inquiry, to give it powers and immunities and to require it to report back to the two Houses of Parliament (rather than executive government).[12]

1.15A Parliamentary Commission of Inquiry has been held once—a 1986 inquiry into Justice Lionel Murphy (1986 Commission of Inquiry). The inquiry was established by the Parliamentary Commission of Inquiry Act 1986 in May 1986, andrepealed by the Parliamentary Commission of Inquiry (Repeal) Act 1986 in September 1986. It was established to inquire into and advise the Parliament whether any conduct of Justice Murphy amounted to misbehaviour within the meaning of section 72 of the Australian Constitution. The Commission of Inquiry was discontinued following Justice Murphy's diagnosis with a terminal illness.[13]

1.16The 1986 Commission of Inquiry was established to allow the Houses of Parliament to perform their function in relation to the removal of judges under the Constitution, as only the Governor-General in Council, on an address from the Houses of Parliament in the same session may remove a justice of the High Court or other courts created by the Parliament.[14]

Operations of Commissions of inquiry

1.17Advice provided by the then Clerk of the Senate in August 2016 made several observations about the operations of Parliamentary Commissions of Inquiry. The Clerk noted (among other things):

suchinquiriesarecreated bystatuteand are 'necessarily creatures oftheexecutive government because ofthat';

the 'Parliamentary Commission ofInquiry Act 1986 wasso-named because ofitsfunction, notbecauseitrepresented analternativemodeofinquirythatcouldbeusedinsteadofaRoyal Commission,but reporting to the Parliament rather than theGovernor-General';

theCrownhasaprerogativepowertoestablishCommissionsofInquiry, but thegeneral practiceis forRoyal Commissions tobeestablished undertheRoyal Commissions Act1902; and

there are parliamentary, constitutional and procedural barriers to Parliamentary Commissions of Inquiry, including that:

the legislation has to pass both Houses;

the Commission needs to be fully funded—however, the Senate is prevented from initiating an appropriation by section 53 of the Constitution, as are non-executive members of the House of Representatives because of the House's standing orders; and

any legislation establishing a Commission (if passed) could be challenged for validity by anyone with standing, and 'costly interference could be run by interests opposed to such an inquiry' with 'litigation at every step to frustrate the Commission'.[15]

Key provisions

Establishment of a Commission

1.18The bill seeks to establish a Commission of Inquiry, the Media Commission, to be constituted by one member appointed by a resolution of the Senate.[16] The member to be appointed must be a former Judge of a court established by the Parliament or of the Supreme Court of a state or territory.[17]

1.19The Commission may appoint a legal practitioner to provide counsel.[18]

Media Commission terms of reference

1.20The terms of reference for the proposed Media Commission are set out in the bill, and are as follows:

(a)whether the existing system of media regulation in Australia is fit-for-purpose;

(b)the concentration of media ownership in Australia;

(c)the impact of Australia's media ownership laws on media concentration in Australia;

(d)the relationship between the media and government in Australia and whether fear of retribution in the press has hampered the creation of public policy;

(e)the need for a single, independent media regulator to harmonise news media standards and oversee an effective process for remedying complaints;

(f)the efficacy of current legal frameworks and mechanisms for managing misinformation and disinformation in the media;

(g)the culture, ethics and practices of media outlets operating in Australia;

(h)the targeting of marginalised communities by the media including people of colour, people with disabilities, the LGBTQIA+ community and people on income support;

(i)the impact on democracy of the 'Foxification' of some media outlets operating in Australia, including undermining trust in public institutions and public interest journalism;

(j)the impact of the political influence of major media outlets operating in Australia;

(k)the impact of online global platforms such as Facebook, Google and Twitter on the media industry and sharing of news in Australia;

(l)the barriers faced by small, independent and community news outlets in Australia;

(m)the role of government in supporting a viable and diverse public interest journalism sector in Australia; and

(n)any matter reasonably incidental to a matter mentioned in the above paragraphs.

1.21The EM sets out that the terms of reference have been drafted to provide for broad investigation:

The terms of reference have been drafted to allow the Commission to undertake a broad investigation of the media industry in Australia as a whole, as well as look specifically at the conduct and practices of the Murdoch media empire in Australia.[19]

1.22The bill stipulates that the conduct of the inquiry will not adversely interfere with any matter before the courts. The Media Commission is not required to inquire or continue to inquire into a matter if it is satisfied that the matter has been, is being or will be sufficiently and appropriately dealt with by another inquiry or investigation or a criminal or civil proceeding.[20]

1.23The Media Commission would be able to determine its priorities to investigate and report on matters.[21]

Report to Parliament

1.24The Media Commission is required to present its report to the Presiding Officers of the Parliament, the President of the Senate and the Speaker of the House of Representatives. The report, containing findings and any recommendations, is required to be presented within one year of the inquiry's commencement, but the reporting period can be extended through a resolution of the Senate.[22]

1.25The bill seeks to establish that the report be made public by the Presiding Officers as soon as is practicable.[23]

1.26A separate report may be provided to the Presiding Officers with findings and conclusions which may prejudice a current criminal proceeding or investigations, disclose confidential sources or prejudice or endanger a person.[24]

1.27Any separate report is not required to be made public.

Media Commission hearings

1.28The Media Commission may hold hearings anywhere in Australia, as a public hearing unless otherwise determined by the Commission. A person appearing before the Commission may be represented by a legal practitioner.

1.29Hearings conducted in private are to be attended only by the persons authorised by the Commission and the legal practitioners representing them.

1.30The Commission may give directions relating to the publication of evidence and must ensure that the publication does not prejudice or endanger a person or interfere with a fair trial.[25] Evidence which may be published on the authority of the Commission includes:

evidence given before the Commission;

a document's contents or description of a thing provided to the Commission or seized pursuant to a warrant issued under clause 13 of the bill;

any information which might identify a person who has given evidence to the Commission; and

the fact that a person has given, or is about to give, evidence at a hearing.[26]

1.31A witness may be required to take an oath or make an affirmation, to be administered by the Commissioner.[27]

Powers of the Media Commission

1.32The Media Commission would be provided with a range of powers to conduct its function to inquire into the matter before it. These powers relate to access to witnesses and information.

1.33Under the bill, the Commission would be given coercive powers to compel a witness to attend a hearing, to give evidence at that hearing, and to produce documents. Witnesses at the hearings may be cross-examined by Counsel assisting the Commission as well as others called to give evidence or their legal practitioners.[28] The Commission would also be granted the power to issue an arrest or search warrant, obtain relevant material from the Australian Communications and Media Authority (ACMA), and inspect, retain and return documents.[29]

1.34Relating to warrants, the Commission would be granted the power to issue an arrest warrant or a search warrant. An arrest warrant would be issued to bring a witness before a hearing or hold them in custody until ordered by the Commissioner. Search warrants would be issued to obtain relevant material if the Commission has the reasonable grounds to suspect that the documents or material would be concealed, lost, mutilated, or destroyed if summonsed.[30]

1.35The execution of both warrants is to be carried out by the Australian Federal Police or a state or territory police officer who will have legal access to the premises.[31]

1.36The Media Commission would also have the power to obtain relevant material from the ACMA.[32]

1.37Under the provisions of the bill, the Commission may also inspect any documents or materials produced before, or delivered to the Commission, retain the documents for as long as is necessary, and make copies. When no longer required by the Commission, the documents may be returned to the person who has provided them, or the Commission may deal with the documents at the person's direction.[33]

Operation of the Media Commission

1.38The bill sets out the operation of the Media Commission, including in relation to the conduct of hearings and publication of evidence, replacement of the Commissioner, payment of the Commissioner, hiring of staff, protections and immunities, witness reimbursements, sharing of information, funding, and the power of the relevant Minister regarding the functioning and operation of the Commission.[34]

Offences

1.39The bill sets out the penalty regime for various offences relating to the Commission, with each act constituting a separate offence.[35] For the most part, the proposed penalties align with those in the Royal Commissions Act 1902.

1.40However, proposed penalties for the dismissal of a witness by an employer are higher (five years versus one year imprisonment), as are contempt of Commission offences (12 months versus three months imprisonment). Lower penalties are proposed for failure to attend or produce documents or provide evidence (six months versus two years' imprisonment).[36]

Financial impact statement

1.41The bill's EM does not outline the financial impact of the bill and the establishment of a Commission of Inquiry.

Human rights compatibility

1.42The EM notes that the bill is compatible with human rights as it does not engage any human rights issues.[37]

Scrutiny of Bills Committee

1.43The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) reviewed the bill and noted that some proposed provisions may raise scrutiny concerns under Senate Standing Order 24, relating to the scrutiny of bills.[38]

1.44The Scrutiny of Bills Committee noted concerns relating to Standing Order 24(1)(a)(i), relating to whether bills or Acts trespass unduly on personal rights and liberties. These concerned:

clauses 12 and 13, with the potential concern that the provisions may raise scrutiny concerns under principle (i) in relation to coercive powers (arrest of witnesses and use of search warrants); and

clauses 16–26 relating to offences, with potential concerns under principle (i) in relation to significant penalties which have not been justified within the explanatory memorandum.

1.45The Scrutiny of Bills Committee commented that if the bill were to proceed to further stages of debate, it may request further information from the proponent of the bill.[39]

1.46Chapter 2 considers the views of submitters to the inquiry, and the changing media environment.

Footnotes

[1]Journals of the Senate, No. 48, 11 May 2023, p. 1383.

[2]Journals of the Senate, No. 52, 16 June 2023, p. 1499

[3]Journals of the Senate, No. 81, 10 November 2023, p. 2288.

[4]Journals of the Senate, No. 109, 14 May 2024, p. 3316.

[5]See aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/MurdochMediaBill2023

[6]Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Submission 11, pp. 6–8 and 10–11.

[7]Murdoch Media Inquiry Bill 2023, Explanatory Memorandum, [p. 2].

[8]See Recommendation 1, Senate Environment and Communications References Committee, Media diversity in Australia, December 2021.

[9]Senator Sarah Hanson‑Young, Senate Hansard, 13 June 2023, p. 48.

[10]Murdoch Media Inquiry Bill 2023, Explanatory Memorandum, [p. 2].

[11]Murdoch Media Inquiry Bill 2023, Explanatory Memorandum, [p. 2].

[12]The structure of constitutional government in Australia divides power between the three arms of government: legislative, judicature and executive.

[13]Section 72 of the Constitution sets out how judges can be removed:

72. Judges' appointment, tenure and remuneration

The Justices of the High Court and of the other courts created by the Parliament:

(i)shall be appointed by the Governor-General in Council;

(ii)shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

Chapter III of the Constitution establishes the High Court of Australia and empowers Parliament to create other federal courts and to vest federal judicial power in state and territory courts. Attorney‑General's Department, Courts (accessed 4 October 2023); Parliament of Australia, Odgers' Australian Senate Practice, 14th edition, 2016, pp 677–678.

[14]Dr Rosemary Laing, Clerk of the Senate, Australian Senate Parliamentary Commission of inquiry into the financial sector [letter to Senator Whish-Wilson], 16 August 2016.

[15]Dr Rosemary Laing, Clerk of the Senate, Australian Senate Parliamentary Commission of inquiry into the financial sector [letter to Senator Whish-Wilson], 16 August 2016.

[16]Murdoch Media Inquiry Bill 2023, cl. 6.

[17]Note: Subclause 6(3) of the bill clearly states that 'a person is not eligible for appointment as the member [of the Commission] unless the person is a former judge'. The EM is ambiguous on appointment; Part 2, Clause 6 states 'the Commission [shall] be constituted of one member appointed by resolution of the Senate, and that this Commissioner must be or have been a Judge' (emphasis added).

[18]Murdoch Media Inquiry Bill 2023, cl. 10.

[19]Murdoch Media Inquiry Bill 2023, Explanatory Memorandum, [p. 3].

[20]Murdoch Media Inquiry Bill 2023, subcl. 7(2).

[21]Murdoch Media Inquiry Bill 2023, subcl. 7(3).

[22]Murdoch Media Inquiry Bill 2023, cl. 8.

[23]Murdoch Media Inquiry Bill 2023, subcl. 8(5).

[24]Murdoch Media Inquiry Bill 2023, subcl. 8(4).

[25]Murdoch Media Inquiry Bill 2023, cl. 9.

[26]Murdoch Media Inquiry Bill 2023, subcl. 9(8).

[27]Murdoch Media Inquiry Bill 2023, subcl. 11(2). In this report 'Commissioner' is used to refer to the Commission of Inquiry appointed Member.

[28]Murdoch Media Inquiry Bill 2023, cl. 11.

[29]Murdoch Media Inquiry Bill 2023, cl. 12–15.

[30]Murdoch Media Inquiry Bill 2023, cl. 12–13.

[31]Murdoch Media Inquiry Bill 2023, cl. 12–13.

[32]Murdoch Media Inquiry Bill 2023, cl. 14.

[33]Murdoch Media Inquiry Bill 2023, cl. 15.

[34]Murdoch Media Inquiry Bill 2023, cl. 9, 11 and 27–35.

[35]Murdoch Media Inquiry Bill 2023, Part 4—Offences.

[36]Murdoch Media Inquiry Bill 2023, Explanatory Memorandum, [pp. 5–6]; Royal Commissions Act 1902, s. 3, 6, and Part 3—Offences.

[37]Murdoch Media Inquiry Bill 2023, Explanatory Memorandum, p. 8.

[38]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest No. 7, 2023, p. 17.

[39]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest No. 7, 2023, p. 17.