The media reform bills – what is really in them

Daily_Telegraph_19_3_2013 For the last 12 months we’ve been warned on an almost daily basis that the sky is about to fall in on media freedoms in Australia, but what does the legislation before parliament this week actually propose?

News Media (Self regulation) Bill 2013

There is one simple purpose to this legislation and it is not to stifle freedom of the press. Instead this bill simply creates the conditions under which the Public Interest Media Advocate (PIMA) can declare that an organisation is a “news media self-regulation body”.

The definition of a self-regulator rests on one condition: the body must have a self-regulation scheme that is binding on members.

The only other function of this bill is to remove a news organisation’s exemption from some provisions of the Privacy Act 1988 if it is not a member of a self-regulatory body recognised by the media advocate.

The effective clause of the Privacy Act is 7B(4) and as it currently stands, a news media organisation is only exempt from some Privacy Act provisions if it adheres to public standards. This new bill changes nothing in that regard.

That is it; that is all this legislation is aimed to do. The self-regulation scheme proposed in the bill is no tougher than the current rules and membership requirements of the Australian Press Council.

Business as usual for the Press Council

Under the terms of self-regulation bill, the self-regulatory bodies will still devise their own standards; investigate breaches, handle complaints and apply sanctions. The “remedial direction” available to the self-regulatory body (not to the PIMA) is either an apology or a correction. That is exactly as it is now.

Contrary to the screams of impending doom and horror from the news media bosses and their hired guns, this legislation does not imply any form of censorship over content.

The PIMA’s advocacy role is limited to assessing the effectiveness of any proposed self-regulation scheme and standards.

Even this has caused hand-wringing and weasel words from the news media. Why?

The legislation mentions “community standards”, which are notoriously hard to define. However, at the end of the day, common sense tells us that community standards are fairly relaxed and comfortable.

Whatever they are at any given time is surely a measure of the community’s tolerance and limits of what is acceptable. Why should this frighten the horses?

The PIMA’s ability to suspend an organisation – that is to revoke its status under the legislation – is also limited to circumstances that currently apply anyway to the Australian Press Council: failure to pay registration fees, or failure to comply with a remedial direction.

It is important to remember that remedial orders are not given by the advocate, but by the self-regulatory body. This is no different from the situation today.

Any move by the PIMA to disallow a media self-regulation body must only follow a period of full consultation; it is not the sword of Damocles we’re talking about here.

There is also an important clause in the legislation that signals clearly that the intent is not to shut down news media hostile to the current, or any subsequent government:

14: Implied freedom of political communication This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

Finally, the lifespan of the legislation (if passed this week) is limited to three years; after which time it is to be reviewed.

Public Interest Media Advocate Bill 2013

The second piece of legislation being debated this week is the bill to establish the public interest media advocate (PIMA).

The advocate has a limited range of functions: (a) such functions as are conferred on the PIMA by: (i) the Broadcasting Services Act 1992; or (ii) the News Media (Self regulation) Act 2013; (b) to do anything incidental to or conducive to the performance of those functions.

The advocate will be appointed after a period of consultation with the industry and other stakeholders. It will only be a part-time position so will not really be able to interfere very much with anything.

There is no provision for the PIMA to be told what to do by governments and there is no provision for a large bureaucracy to be built around the office. The advocate will not be a media ‘tsar’ and there won’t be any gulags for miscreant columnists.

In spite of the mild language in the 5,500 words contained in both of these bills at least 20 times that amount have been written to bolster claims that this is an attack on freedom of speech and freedom of expression.

Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013

This bill amends other legislation to bring it into line with the realities of convergence and to overcome the techno-legal time-gap that exists between analogue laws and digital technologies.

The key pieces of legislation affected are the Broadcasting Services Act 1992; the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991.

The effect of the changes are: • to ensure there are no more free-to-air network licenses granted; effectively limiting Australia to three FTV networks (7,9,10) • to slightly increase the Australian content quota required for free-to-air television networks’ • to bring the digital services of the ABC and the SBS into the coverage of their respective Charters.

The Australian content quota will increase over the next three years to be not less than 1460 hours per year in 2015.

Broadcasting Legislation Amendment (News Media Diversity) Bill 2013

It is this legislation that perhaps most upsets the bosses at News Limited because a major implication of this bill is that it will bring subscription television services and platforms – such as Sky News and Foxtel – under the auspices of the Broadcasting Services Act 1992.

Other amendments to the BSA 1992 include adding digital services to sections of the act where previously only newspapers were mentioned. This is another simple tidy up from analogue to digital realities.

This bill also introduces the PIMA and relates it to ACMA by allowing ACMA to disclose material to the advocate if it would assist her/him to carry out specified duties. This is a standard boilerplate clause in legislation of this type as it merely allows the machinery of the bureaucracy to mesh cogs effectively. It does not represent a draconian increase in powers. However, there are other changes to the ACMA legislation as a consequence of the new bill.

A new clause has been added to the Objectives of the Broadcast Services Act 1992 and it is this that is upsetting the media bosses:

(d) to encourage diversity in control of the more influential sources of news and current affairs;

This specifically references news and current affairs providers for the first time. However, it is not, as far as I can tell, the thin end of the wedge that will lead to government control or censorship of news and current affairs.

The real angst generated by this legislation is the joining up of the ACMA and BSA acts with the new office of Public Interest Media Advocate. This occurs in a new Part 5A of the 2013 bill that amends ACMA 2005. Helpfully, the bill provides the following simplified summary of the intentions of the new section.

This Part prohibits a transaction that results in a person becoming the controller of a registered news media voice unless the Public Interest Media Advocate has approved the change of control.

• The Public Interest Media Advocate must not approve a change of control unless:

(a) the change of control will not result in a substantial lessening of diversity of control of registered news media voices; or
(b) the change of control is likely to result in a benefit to the public, and that benefit outweighs the detriment to the public constituted by any lessening of diversity of control of registered news media voices that would result from the change of control.

• Each of the following is a news media voice:
(a) a commercial television broadcasting service that provides news or current affairs programs;
(b) a commercial radio broadcasting service that provides news or current affairs programs;
(c) a subscription television service that provides news or current affairs programs;
(d) a subscription television platform;
(e) a print publication that has news or current affairs content;
(f) an online service that has news or current affairs content.

A registered news media voice is a news media voice that has been registered in the Register of News Media Voices.

A news media voice will be registered if the size of its audience or customer base exceeds 30% of the average metropolitan commercial television evening news audience.

This is the new set of rules that gives the PIMA its power to intervene in the transfer of ownership of significant ‘news media voices’in the Australian market. The figure of 30 per cent of the average evening news audience is an interesting choice.

Channel 10, for example, has an average evening news viewing audience nationally of about 690,000. So on that basis a news voice that attracts anything over about 200,000 readers, viewers or unique visits. On that calculation, if the number is based on audited circulation figures, The Australian might not qualify, its audited circulation is less than 150,000 per day. Nor would the Fairfax Media newspapers either. Only the Melbourne Herald-Sun has a strong Monday to Friday circulation of around 450,000 per day. It really only makes sense if the calculation is done on readership.

Minister Conroy said that the cut-off point would be a media organisation about the size of the Australian Financial Review. However, the legislation already contains a list of registered news voices and all the major Australian news media outlets on AM (talkback) radio, television and in print are listed. The only exception is the Northern Territory News.

Perhaps the NT News is too small, or in the view of the drafting bureaucrats, its contents don’t qualify as news.NT_News_18_3_2013

Controversial ‘control events’

The news media diversity bill is perhaps the most controversial for the current media owners because it introduces a ‘control event’ which triggers PIMA action under the news media diversity provisions. If a person effectively controls a news media voice and is likely to be in a situation to control another registered news media voice then the PIMA can look at that situation.

If the transaction that triggers the control event is not approved by the media advocate, the legislation creates an offence with a 20,000 point penalty, which equates to a fine of $3.4 million dollars.

You can see why this has got the attention of Kerry Stokes, Kim Williams and Greg Hywood; all of whom have been in Canberra to lobby various parliamentary committees. It is here where the much-discussed ‘public interest’ test becomes relevant in Clause 78CB(3).

Under this provision, the PIMA can approve the control event transaction if there is no lessening of diversity in the control of registered news media voices, or if there is a nett benefit to the public interest. There will be an opportunity for public submissions to the PIMA in relation to any determination of a control event.

It is this section of the new legislation (assuming it survives this week) that is likely to be tested first. There are already rumours of possible mergers involving the big networks and smaller regional players in the television market which will trigger control events.

And to ensure that no transactions occur to circumvent the legislation there is a reverse grandfathering clause that allows the PIMA and ACMA to act on control events that might happen before the legislation is gazetted. The big media companies that supply news content are also upset that aggregaters like Google are not caught within the legislation too.

Television Licence Fees Amendment Bill 2013

The purpose of this bill is to provide a financial sweetner to the commercial television networks by reducing their licence fees by upto 50 per cent. It has no other purpose.

There are also consequential amendments within the new raft of bills. Most importantly to alter the Privacy Act 1988 to reference the News Media (Self-regulation) Act 2013. This is in relation to exemptions for properly regulated news media organisations.

These bills might be clumsy, or unnecessary, and it is true that the whole exercise of introducing media reform has been badly handled by Minister Conroy and Julia Gillard, however, there is no fundamental threat to Rupert Murdoch or anyone else in this legislation. Nor is there, as far as I can tell, any reason to think that freedom of the press (for what it is worth) is going to be lessened.

Given the limited changes that these bills give effect to, it is valid to wonder why they have even been drafted in the first place.

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