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senate vote 2021-02-24#1
Edited by
mackay staff
on
2022-04-22 13:20:23
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Title
Bills — Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021; in Committee- Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 - in Committee - Minister's determination
Description
<p class="speaker">Jane Hume</p><p>by leave—I move government amendments (1) to (5) on sheet PG138 together:</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2021-02-24.156.4) introduced by South Australian Senator [Sarah Hanson-Young](https://theyvoteforyou.org.au/people/senate/sa/sarah_hanson-young) (Greens), which means it failed.
- This was an amendment to an original Government amendment.
- Senator Hanson-Young [explained that](https://www.openaustralia.org.au/senate/?gid=2021-02-24.156.1):
- > *It is an amendment to the government's amendment in relation to schedule 1, item 1, page 8, proposed subsection (3)(b). It goes to this point that we've been debating here this morning in relation to significant contributions to the sustainability of the Australian news industry. I think it's fair to say that all the questions this morning have been surrounding this element. As I said, there is a concern that, unless this is specifically referenced, small, medium and regional publishers will be overlooked in that definition of the significant contribution. So all I am asking for is that we clarify that in paragraph (3)(b) with the words 'including by entering into agreements with a significant number of those businesses'—and this is the important amendment—'that include small, medium and regional organisations'. The government has said it intends to ensure that this is the case. I don't see why there would be any problem in ensuring that they are included. I urge the government to accept this amendment. It would put at ease a number of nervous organisations this morning.*
- ### Amendment text
- > *AMENDMENT OF GOVERNMENT AMENDMENTS [SHEET PG138]*
- >
- > *(1) Paragraph (3)(b), omit "(including agreements to remunerate those businesses for their news content)", substitute "(including by entering into agreements with a significant number of those businesses, that include small, medium and regional organisations, to remunerate those businesses for their news content)".*
- ### Original Government amendment text
- > *(1) Schedule 1, item 1, page 8 (lines 10 to 13), omit subsection 52E(3), substitute:*
- >
- >> *(3) In making the determination, the Minister must consider:*
- >>
- >>> *(a) whether there is a significant bargaining power imbalance between Australian news businesses and the group comprised of the corporation and all of its related bodies corporate; and*
- >>>
- >>> *(b) whether that group has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses (including agreements to remunerate those businesses for their news content).*
<p class="italic">(1) Schedule 1, item 1, page 8 (lines 10 to 13), omit subsection 52E(3), substitute:</p><p class="italic">(3) In making the determination, the Minister must consider:</p><p class="italic">(a) whether there is a significant bargaining power imbalance between Australian news businesses and the group comprised of the corporation and all of its related bodies corporate; and</p><p class="italic">(b) whether that group has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses (including agreements to remunerate those businesses for their news content).</p><p class="italic">(2) Schedule 1, item 1, page 8 (after line 15), at the end of section 52E, add:</p><p class="italic">(5) Before making the determination, the Minister must give the corporation notice in writing that the Minister intends to make a determination under subsection (1) specifying the corporation and a particular service or particular services.</p><p class="italic">(6) The Minister must not make the determination before the end of the period of 30 days starting on the day on which the notice under subsection (5) is given.</p><p class="italic">(3) Schedule 1, item 1, page 24 (after line 3), at the end of section 52ZC, add:</p><p class="italic">(4) Subsection (2) does not apply in relation to differentiation if:</p><p class="italic">(a) there is an agreement between:</p><p class="italic">  (i) the responsible digital platform corporation, or a related body corporate of the responsible digital platform corporation; and</p><p class="italic">  (ii) a corporation that is registered (or is eligible to be registered) under section 52G and, either by itself or together with other corporations, operates or controls a news business; and</p><p class="italic">(b) the agreement provides that a corporation mentioned in subparagraph (a) (i) will ensure that remuneration is to be paid to the news business for the making available of the news business' covered news content by the digital service; and</p><p class="italic">(c) the differentiation arises solely from the amount of that remuneration.</p><p class="italic">(5) Subsection (2) does not apply in relation to differentiation if:</p><p class="italic">(a) there is an agreement between:</p><p class="italic">  (i) the responsible digital platform corporation, or a related body corporate of the responsible digital platform corporation; and</p><p class="italic">  (ii) a corporation that is registered (or is eligible to be registered) under section 52G and, either by itself or together with other corporations, operates or controls a news business; and</p><p class="italic">(b) the agreement provides that:</p><p class="italic">  (i) a corporation mentioned in subparagraph (a) (ii) will ensure the provision of a specified type of coverednews content to be made available by the digital service; and</p><p class="italic">  (ii) a corporation mentioned in subparagraph (a) (i) will ensure that the content is ranked preferentially when the digital service distributes the covered news content; and</p><p class="italic">(c) the differentiation arises solely from that preferential ranking.</p><p class="italic">(6) For the purposes of this section:</p><p class="italic">(a) treat the reference in the definition of <i>news source</i> in section 52A to "it produces" as instead being a reference to "it regularly produces"; and</p><p class="italic">(b) treat the reference in that definition to "news content" as instead being a reference to "covered news content".</p><p class="italic">(4) Schedule 1, item 1, page 26 (after line 26), after Subdivision B, insert:</p><p class="italic">Subdivision BA—Mediation</p><p class="italic">52ZIA Obligation to participate in mediation</p><p class="italic">(1) This section applies if:</p><p class="italic">(a) the bargaining parties have not reached agreement over each core bargaining issue within 3 months after the notification was made for the purposes of subsection 52ZE(1); or</p><p class="italic">(b) the bargaining parties agree to refer the core bargaining issues to mediation under this Subdivision.</p><p class="italic">(2) Each bargaining party must participate in a mediation about the core bargaining issues.</p><p class="italic">(3) To avoid doubt, each bargaining party must comply with section 52ZH (good faith negotiations) in respect of the mediation.</p><p class="italic">(4) The mediator is to be appointed by the ACMA.</p><p class="italic">52ZIB Rules about conduct of mediation</p><p class="italic">(1) The regulations may set out rules relating to the conduct of a mediation under this Subdivision.</p><p class="italic">(2) A mediation under this Subdivision is to be conducted according to those rules.</p><p class="italic">(3) Despite subsection 14(2) of the <i>Legislation Act 2003</i>, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.</p><p class="italic">(4) Without limiting the scope of regulations that may be made for the purposes of subsection (1), those regulations may:</p><p class="italic">(a) set out rules relating to the payment of the costs of the mediator; and</p><p class="italic">(b) without limiting the scope of paragraph (a), specify who is to pay those costs.</p><p class="italic">52ZIC Termination of mediation</p><p class="italic">(1) A mediation under this Subdivision terminates if:</p><p class="italic">(a) unless paragraph (b) applies—2 months have passed since the start of the mediation; or</p><p class="italic">(b) if the bargaining parties agree to a 2-month extension of the mediation—4 months have passed since the start of the mediation; or</p><p class="italic">(c) the mediator decides to terminate the mediation in accordance with subsections (3) and (4); or</p><p class="italic">(d) the bargaining parties agree to terminate the mediation.</p><p class="italic">(2) To avoid doubt, the bargaining parties can only agree to one extension in accordance with paragraph (1) (b).</p><p class="italic">(3) The mediator may decide to terminate the mediation if, having regard to the conduct of the bargaining parties in the mediation, the mediator considers that there are no reasonable prospects of the bargaining parties reaching agreement over each core bargaining issue.</p><p class="italic">(4) The mediator may decide to terminate the mediation whether or not a bargaining party has asked the mediator to do so.</p><p class="italic">(5) Schedule 1, item 1, page 27 (line 26) to page 28 (line 5), omit subsection 52ZL(2), substitute:</p><p class="italic">(2) The bargaining party that is the bargaining news business representative may give a notice to the Commission that arbitration about the remuneration issue should start, if:</p><p class="italic">(a) both of the following conditions are satisfied:</p><p class="italic">  (i) mediation in respect of the core bargaining issues has terminated in accordance with section 52ZIC;</p><p class="italic">  (ii) the bargaining parties had not reached an agreement about terms for resolving the remuneration issue before the mediation terminated; or</p><p class="italic">(b) the bargaining parties have agreed to arbitration about terms for resolving the remuneration issue no earlier than 10 business days after the notification referred to in paragraph (1) (a) was made.</p><p>These amendments will make clear that a decision to designate a platform under the code must take into account whether a digital platform has made a significant contribution to the sustainability of the Australian news industry through reaching commercial agreements with news media businesses. A digital platform will be notified of the government's intention to designate prior to any final decision, noting that a final decision on whether or not to designate a digital platform would be made no sooner than one month from the date of notification. Nondifferentiation provisions will not be triggered because commercial agreements result in different remuneration amounts or commercial outcomes that arose in the course of usual business practices. Final offer arbitration is a last resort when commercial deals cannot be reached, by requiring mediation in good faith to occur prior to arbitration for no longer than two months.</p> <p class="speaker">Louise Pratt</p><p>We've had some radical changes to this legislation overnight, and of course there are a lot of questions, both from Labor and, really, the Australian community as a whole. I will ask at the outset: does the government intend, in this case, for the threat of regulation to do most of the work in levelling the imbalance in bargaining power between news media and digital platforms? Is it the instrument itself that will have this influence, or is it now the threat of regulation that is going to level that imbalance in bargaining power?</p> <p class="speaker">Jane Hume</p><p>It's a matter for the minister as to whether the digital platforms get designated under the code.</p> <p class="speaker">Louise Pratt</p><p>Yes, we do understand that, but clearly there seems to have been a flurry of activity in terms of deals being done now because of the so-called threat of platforms being designated. How do you relate what's currently going on to those deals being made and addressing the imbalance in bargaining power?</p> <p class="speaker">Jane Hume</p><p>The government has always said that it's preferable if deals can be done outside of the code, and we've seen a number of media organisations that have already entered into letters of intention with Google. Yesterday of course Seven West Media announced it had entered into a letter of understanding with Facebook. This is all good news. We expect the digital platforms to continue their efforts to enter into agreements with more news media businesses. They can do this outside of the code by putting a standard offer on the table which publishers can choose to accept or as a catalyst to reach a commercial agreement. It's important to remember that, in deciding whether to designate a digital platform, the Treasurer will have regard to whether the digital platform has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content.</p> <p class="speaker">Louise Pratt</p><p>We've seen big sticks from the government in relation to energy in the past and an argument that the threat of a big stick would bring people to negotiate and address issues. Why was this done in a rush in the last few days as opposed to having these kinds of principles embedded in the legislation earlier? Couldn't the outcome have been reached much earlier than today?</p> <p class="speaker">Jane Hume</p><p>The aim of these amendments, obviously, is to provide more clarity to the digital platforms and to the news media businesses about the way the code is intended to operate and to strengthen the framework for ensuring news media businesses are fairly remunerated. It's all about clarification. These amendments were done on the advice of Treasury and after hearing submissions that were made to the committee that was scrutinising this bill.</p> <p class="speaker">Louise Pratt</p><p>How will it provide clarification if these deals are done outside the code and its reporting regime?</p> <p class="speaker">Jane Hume</p><p>There will be a review of the code after a year.</p> <p class="speaker">Louise Pratt</p><p>Is the review enlivened if nothing is designated?</p> <p class="speaker">Jane Hume</p><p>Yes.</p> <p class="speaker">Louise Pratt</p><p>The code and the amendments make it clear that a decision to designate a platform must be taken into account in terms of whether a platform has made a significant contribution through commercial agreements with news media businesses. What thresholds will apply to the concept of a significant contribution?</p> <p class="speaker">Jane Hume</p><p>The platforms will be asked to provide a report on the contribution they have made and then the decision to designate will be made by the Treasurer. A final decision to designate or not designate a digital platform will be made no sooner than one month from that date of notification.</p> <p class="speaker">Louise Pratt</p><p>That doesn't really tell me what the threshold of a significant contribution is. Does that mean that the minister, in assessing a significant contribution, has full access to the contracts that have been signed, or are they commercial-in-confidence?</p> <p class="speaker">Jane Hume</p><p>The platforms will have an opportunity to make that information available before the decision is made. That's up to the platforms.</p> <p class="speaker">Louise Pratt</p><p>What if the platforms don't want to supply that information?</p> <p class="speaker">Jane Hume</p><p>The government is giving the platforms an opportunity for procedural fairness here. The decision will then be the Treasurer's, depending on that interaction between the platform and the Treasurer.</p> <p class="speaker">Louise Pratt</p><p>Can I assume, therefore, that the only way of getting the platforms or, frankly, even the media businesses that have done deals to demonstrate to the minister what significant contribution they have made would be the threat of designation?</p> <p class="speaker">Jane Hume</p><p>There have already been public statements on deals that will be made. It will be up to the platforms to then demonstrate to the minister that that wouldn't be necessary.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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