Bills Digest no. 85, 2017–18
PDF version [706KB]
Dr Rhonda Jolly
Social Policy Section
15 March 2018
Contents
The Bills Digest at a glance
Purpose
Background
Key issues
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Senate Environment and Communications
Legislation Committee
Senate Scrutiny of Bills Committee
Select Committee on the Future of
Public Interest Journalism
Policy position of non-government
parties/independents
Australian Labor Party
Nick Xenophon Team (NXT)
Other
Position of major interest groups
Comments to public interest
journalism inquiry
Box 1: civic and/or public interest
journalism: two views
Canadian House of Commons report
Box 2: Canada Periodical Fund
Submissions to the Senate Committee
inquiry
Administration by ACMA
Eligibility criteria
Better use of funding issue
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Date introduced: 6
December 2017
House: Senate
Portfolio: Communications
and the Arts
Commencement: the day
after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
March 2018.
The Bills Digest at a glance
Purpose
The purpose of the Communications Legislation Amendment
(Regional and Small Publishers Innovation Fund) Bill 2017 (the Bill) is to
establish a legislative framework for a grant funding scheme, the Regional and
Small Publishers Innovation Fund, to be administered by the Australian
Communications and Media Authority (ACMA).
Background
In
2017 the Government agreed to certain compromises with crossbench Senators in
order to achieve passage of media changes which removed certain broadcasting
ownership and control rules.
This
Bill has been introduced to fulfil the Government’s commitment to the Nick
Xenophon Team to provide financial assistance to publishers and content
providers.
Key issues
Traditional media stakeholders generally support
legislation that will assist them to cope with the changing media environment
and this is the case with this Bill.
There have been three main issues raised in relation to
the Bill. First, some consider the eligibility criteria are too limited as they
do not include regional broadcasters, particularly Indigenous broadcasters, nor
does the Bill take into account the financial circumstances of some smaller
publishers which may have a foreign parent company.
The second criticism of the Bill is that its funding is
short-lived and short sighted and that there is need for more comprehensive and
long term solutions to be put in place to assist the media to adapt to the new
media environment so that it can provide news content that meets the criteria
for delivering civic journalism, which investigates public policy and explains
issues with the aim of engaging citizens in public debate and enhancing
democratic processes.
A third issue is whether the ACMA is the appropriate body
to administer the fund set up under the Bill.
Purpose of
the Bill
The purpose of the Communications Legislation Amendment
(Regional and Small Publishers Innovation Fund) Bill 2017 (the Bill) is to
establish a legislative framework for a grant funding scheme, the Regional and
Small Publishers Innovation Fund, to be administered by the Australian
Communications and Media Authority (ACMA).
Structure
of the Bill
The Bill consists of one Schedule which proposes to amend
the Broadcasting
Services Act 1992 (the BSA) to insert a new Part 14F.
The new Part 14F will provide the legislative authority for
the communications regulator, ACMA, to grant financial assistance to publishers
of newspapers, magazines or other periodicals and to content services providers
over a period of three years commencing 1 July 2018.[1]
Background
In 2016, Communications Minister Mitch Fifield introduced reform
proposals into the Parliament which the Minister argued were not only ‘the most
significant reforms to media laws in a generation’, but also the means to support
the viability of ‘local [media] organisations as they face increasing
competition in a rapidly changing digital landscape’.[2]
Minister Fifield’s major changes were primarily intended to repeal the
long-standing 75 per cent audience reach rule and a cross-media
control rule, but they also included changes to licensing and anti-siphoning
rules.[3]
There was general support for abandoning the audience
reach rule, but achieving repeal of the cross media control rule—the two out of
three rule—in the Parliament proved challenging for the Turnbull Government.
Nonetheless, after weeks of negotiations between the Government and the minor
parties, particularly the crossbench Senators from One Nation and the Nick
Xenophon Team (NXT), a number of compromises were reached to allow for the Government’s
reform package to be passed by both Houses by 16 October 2017.[4]
One of the compromises resulting from the Government
negotiations stemmed from a package of measures presented to the Government by
the NXT in July 2017. The NXT package reportedly included a number of proposals,
to which the Government appeared in principle to agree—an Australian
Competition and Consumer Commission inquiry into the impact of Facebook and
Google on media; a further extension for community television licensees and a
roundtable discussion on the sector’s future; a review into the reach of
Australian broadcasting services in the Asia-Pacific and enhancing local
content in smaller regional markets through the points system.[5]
However, it rejected a proposal for delivering tax breaks for smaller and regional
publications;[6]
Minister Fifield declaring that tax subsidies which benefitted foreign
multinational media organisations, such as Guardian Australia, should not be
introduced.[7]
In addition, the Minister also raised concerns over ‘Government intervention’
in commercial media, which he believed could ‘only be contemplated when the
implications for freedom of speech and freedom of the press are fully
understood’.[8]
In response, Senator Xenophon believed that the Government’s
concerns over tax breaks could be ‘worked through’.[9]
While it took some weeks, the idea of tax breaks was abandoned on 14 September 2017
when Senator Xenophon announced that the NXT had reached agreement with the
Government on a package which would ‘assist smaller publishers and foster
diversity’.[10]
On 18 September 2017, the Government confirmed that it had agreed to introduce
measures to assist regional and small publishers. These measures were to
deliver:
- a
Regional and Small Publishers Innovation Fund (funding of $50.1 million)
- a
cadetship program to support 200 cadetships ($8.0 million) and
- 60 regional
journalism scholarships ($2.4 million over three years).[11]
The Government anticipated that the Regional and Small
Publishers Innovation Fund would be able to:
... allocate grants to programs and initiatives such as the
purchasing or upgrading of equipment and software, training, development of
apps and business activities to drive revenue and readership, all of which
would help small publishers to expand their businesses and create more jobs.[12]
In October 2017, the Department of Communications and the
Arts (the Department) published a factsheet on the Regional and Small
Publishers Innovation Fund. It stated:
Grants will be made via a
competitive application process for initiatives that will support the
availability of Australian civic journalism. The types of projects that may
receive funding includes purchasing or upgrading equipment and software,
development of apps, business activities to drive revenue and readership, and training.
However, payment of salaries will not be permitted under the Fund.
To be able to apply for a grant
under the Fund, applicants will need to meet eligibility criteria. One
requirement will be meeting annual turnover thresholds of not less than $300,000
revenue and not more than $30 million in revenue. Additional criteria will
include:
- a primary purpose test (of
producing civic and public interest journalism with an Australian perspective)
- an Australian residence test
(being incorporated under Australian law and having central management in
Australia)
- an independence test (not
affiliated with a political party, union, superannuation fund, financial
institution, non-government organisation or policy lobby group)
- a control test (being an entity
that is majority controlled by Australian residents)
- being a member of the
Australian Press Council or having a robust and transparent complaints process,
and
- having in place editorial
guidelines, a code of conduct or similar framework relating to the provision of
quality journalism.
Grants will be capped at a
maximum of $1 million per year for any media group, and at least two thirds of
total funding must go to regional publishers and not less than 25 per cent for
non-regional publishers.[13]
Committee
consideration
Senate
Environment and Communications Legislation Committee
On 7 December 2017, the Senate Selection of Bills Committee recommended
the Bill be referred to the Senate Environment and Communications Legislation
Committee but could not reach agreement on a reporting date.[14]
The Senate accepted the recommendation with a reporting date of 12 February
2018.[15]
The Senate Environment and Communications Legislation
Committee published nine submissions
and held a public
hearing for the inquiry on 1 February 2018. The Committee reported on 12
February 2018, with the majority of the Committee recommending that the Bill be
passed.[16]
Australian Labor Party (Labor/ALP) made additional comments and the Australian
Greens issued a dissenting report, calling for the ‘control test’ to be removed
from the Bill. These positions are discussed further below.
Senate
Scrutiny of Bills Committee
The Senate Scrutiny of Bills Committee considered the Bill
and noted that ‘none of the substantive requirements and criteria for
eligibility [for grants of financial assistance] are set out in statute’.[17]
It stated:
It therefore appears that neither the criteria for the award
of a grant nor the purposes or conditions for which grants may be awarded are
included in the bill. Instead, these matters are to be determined by
non-statutory policy or included in individual agreements. The practical effect
of this approach is to delegate general criteria and conditions for the award
of a grant to ACMA. It is also noted that if general non-statutory rules are
not developed, then the legislation confers on ACMA an extremely broad
discretionary power to allocate a substantial sum of money.[18]
The Scrutiny of Bills Committee sought the Minister’s
advice as to ‘why the criteria for the award of the grants and the standard
terms and conditions to be imposed are not included in the bill or subject to
any other appropriate level of parliamentary scrutiny’.[19]
At the time of writing this Digest, the Minister’s
response had not been published.[20]
Select
Committee on the Future of Public Interest Journalism
On 10 May 2017, the Senate established a Select Committee on
the Future of Public Interest Journalism.[21]
The Committee tabled its report on 5 February 2018. The Committee noted the
Bill was ‘under consideration by another Senate committee’ and stated it would
‘not be making any substantive comment in this report’.[22]
However, while the Committee did not directly consider the Bill, the inquiry
included discussion regarding models of support for public interest journalism
(see below).
Policy
position of non-government parties/independents
Australian
Labor Party
Labor was opposed to the removal of the two out of three cross
media control rule. Labor’s spokesperson in the 2017 media reform debate, Shadow
Minister for Communications, Michelle Rowland, stated that the ALP’s position
had been ‘crystal clear’ for some time and that in taking its stance Labor was defending
the public interest in opposing further concentration of the media which it
believed would result from removal of the rule.[23]
Labor was not convinced that any of the compromises reached
between the Government and crossbench parliamentarians would effectively
alleviate the damage it saw resulting from removal of the two out of three
rule. With regards to the compromises made by the NXT, during debates on the
2017 media reform legislation Labor Senators criticised Senator Xenophon for making
a deal that ‘would sell out Australian media diversity’ in return for what they
argued was minimal funding for regional media.[24]
Labor’s Senator Don Farrell claimed that if the $50 million Fund was ‘split evenly across the states and territories’ it would amount to approximately
$2.0 million a year. According to Senator Farrell, when that funding was
again shared amongst the media of each state ‘frankly ... it's not very much
money’.[25]
Senator Sam Dastyari described the proposed fund as a
‘farce’ and part of a ‘dirty deal’ done to secure the passage of legislation.[26]
He characterised the fund as:
... a $60 million slush fund that we find out is to buy iPads.
It's to buy iPhones. Everyone's going to get a new iPhone X under this
proposal! This is the slushiest fund imaginable. This isn't about the future of
journalism. This is about a government throwing money at a problem to try to
get the passage of legislation.[27]
While not dissenting from the Senate Environment and
Communications Legislation Committee’s recommendation that the Bill be passed,
Labor Senators on that Committee criticised the Government’s approach to the
media and public interest journalism, in particular the removal of the two out
of three rule. They stated:
Labor Senators regard the Regional and Small Publishers
Innovation Fund to be a short-term Band-Aid solution that does nothing to fill
the void left by the repeal of the 2 out of 3 rule and is too little, too late
for many media organisations.[28]
Nick
Xenophon Team (NXT)
Extensive negotiations took place between the Government
and crossbench Senators in order to pass the 2017 media changes. In return for
its support for the package, the NXT presented the Government with a number of
proposals which it considered would counter the removal of the two out of three
cross media ownership rule. These included a tax offset scheme (see more
discussion in the section on major interest groups later in this digest) and
government funding for journalist salaries. These measures were rejected by the
Government.[29]
The proposal in this Bill is based on measures in the NXT
package, but it does not exactly match the NXT’s expectations as announced in a
September 2017 press release, which coincided with media reform discussion in
the Senate.[30]
The NXT press release contained more detailed criteria for
recipients for grants of funding assistance and these are reflected in the
Explanatory Memorandum rather than the Bill. These included:
To be eligible to apply for
grants, entities would need to meet eligibility criteria. The criteria include:
-
a primary purpose test (of producing civic and public interest
journalism with an Australian perspective);
-
an Australian residence test (being incorporated under Australian law
and having their central management and control in Australia);
-
an independence test (not affiliated with a political party, union,
superannuation fund, financial institution, non-government organisation or
policy lobby group);
-
control test (not controlled by an entity that is not majority owned by
Australian residents);
-
being a member of the Australian Press Council or having a robust and
transparent complaints process; and
-
having in place editorial guidelines, a code of conduct or similar
framework relating to the provision of quality journalism.
Publishers with an annual turnover
of not less than $300,000 in revenue and not more than $30 million in revenue
would be eligible. Large publishers (such as News Corp and Fairfax) are
ineligible. Public broadcasters are ineligible.
Funding grants would be capped at
a maximum of $1 million per year for any media group.[31]
Additional conditions included an independent review of
the fund after 12 months of operation, with the review conclusions to be made
public, and a condition for allocation of funding whereby least two-thirds would
be awarded to regional publishers and not less than 25 per cent to non-regional
recipients.[32]
Senator Xenophon stated in Parliament that the deal
announced in the NXT media release was the best he was able to reach with the
Government.[33]
The NXT has released no comment in relation to the Bill, but from a comparison
with the September 2017 media release, it appears that the provisions of the
Bill do not wholly set out what was agreed. For example, a review of the
program is not mandated in the provisions of the Bill, however the Department
has confirmed that a review of the program is intended to be undertaken after
the first round of funding.[34]
Australian Greens
The Australian Greens issued a dissenting report on the
Senate Environment and Communications Legislation Committee’s inquiry into the
Bill, which ‘strongly recommended’ that the proposed eligibility criterion requiring
an entity to be majority controlled by Australian residents be removed as it:
creates unnecessary and ideologically driven carve-outs and exceptions
that do nothing but limit eligibility to the grant scheme to those the Government
believes are ideologically 'friendly'. This defies the intent of the Bill, and makes
clear why civic journalism is so necessary.[35]
Other
There appear to be no specific comments made by other parliamentarians
on the measures in this Bill.
Position of
major interest groups
The traditional media organisations have consistently
argued that their viability is under threat in the changing media environment,
so it is unlikely that any publisher would criticise the principle of providing
government support to assist the industry, albeit in the case of this fund,
that there are limitations on which publishers are able to access that funding.[36]
However, as is discussed in the sections below, the issues surrounding who is
able to access the financial assistance provided through the Regional and Small
Publishers Innovation Fund, the amount of funding available and the limited
timeframe for which it is available have attracted comment.
In addition, some stakeholders have suggested the three
year time period in which funding can be awarded delivers only limited value in
achieving what appears to be a fundamental aim of this Bill as stated in the
Explanatory Memorandum — to ‘support the continuation, development, growth and innovation’
of civic or public interest journalism.[37]
Comments to
public interest journalism inquiry
A Senate Select Committee inquiry into the Future of Public
Interest Journalism considered a number of issues which are relevant to the
Bill. The Explanatory Memorandum to the Bill states the proposed innovation
fund grants of financial assistance ‘will be able to be used by publishers for
initiatives that support the continuation, development, growth and innovation
of Australian civic journalism, including initiatives that explore and expand
the journalism funding model’. It defines the primary purpose of civic
journalism as ‘investigating and explaining public policy and issues of public
interest or significance with the aim of engaging citizens in public debate and
informing democratic decision making’.[38]
The terms of reference for the Senate Select Committee
inquiry included that it inquired into the state of public interest journalism
(see comment on what constitutes public interest journalism in Box 1 below) in
Australia and the role of government in ensuring a viable, independent and
diverse media service.[39]
Box 1:
civic and/or public interest journalism: two views
- The Conversation Media Group remarked in its
submission to the Inquiry into Public Interest Journalism:
Public interest journalism can provide essential context to help
people make sense of a complex and confusing barrage of information.
Any working definition of public interest journalism should
reflect:
1) A systemic publishing activity in institutional framework in
which public good or serving the public is a stated priority.
2) An organisation that is committed to factual accuracy, backed up
by documented processes to ensure truth, accuracy, fact checking and
reliability.
3) A code of ethics and public commitment
to accuracy.
4) Systems of accountability and accreditation
for contributors and journalists.
5) Policies and procedures around correction
of misinformation.
6) Systems to ensure transparency of
any conflicts of interest or vested interests.
7) Systems for audience feedback. [40]
- The Ethical Journalism Network states:
‘Just because the public
is interested in something has nothing to do with whether it is in the public
interest.
The public interest is in having a safe, healthy and
fully-functioning society. In a democracy, journalism plays a central role in
that. It gives people the information they need to take part in the democratic
process. That is why there is a public service ethic at the heart all of
serious journalism.
If journalists are good at their job, and to win the trust of the
public they must hold governments and other institutions to account and they
must act and behave ethically’.[41] |
A range of proposals were made to support public interest
journalism in Australia. For example, Professor Rodney Tiffin argued that it is
important that journalism is subsidised in a politically independent and commercially
neutral way.[42]
This fund goes some way towards such an end. However, some have suggested that
there is the potential for the Government to influence the award of funding,
given for example, that the Minister has the final say on the composition of an
advisory committee. Professor Tiffin suggested that the Government should look
at funding an agency which wholesales pedestrian and routine news, the labour
intensive and commercially unrewarding tasks of news gathering; thus giving
outlets capacity to fund investigative reporting. Funding such an agency would
most likely be significantly more expensive than the measures in this Bill,
however, and it would be an ongoing public expense.
Other suggestions made to the Public Interest Journalism
Committee which may be less of a cost burden to government, and which could be
considered once the funding for the measure in this Bill ceases, include extending
tax deductible gift recipient status to organisations which contribute to civic
journalism. Currently, this status applies to a variety of organisations such
as libraries, museums and health promotion charities.[43]
In his submission to the Public Interest Journalism Committee Dr Chris Berg believed,
however, that the risk in this approach is that it ‘might encourage future
parliaments to interfere with the free press, raising freedom of speech
concerns’.[44]
The Independent Australia submission to the inquiry also
raised the issue of ongoing subsidies for public interest journalism arguing
that ‘the best means to encourage a diversity of voices would be to add a not
for profit public interest journalism deductible gift recipient (DGR) category into
Australia’s Income Tax Assessment Act’.[45]
Currently, there are approximately 50 DGR endorsement categories and two types
of deductible gift recipients, those endorsed by the Australian Tax Office and
those listed by name in law. Eligibility for DGR is based on an organisation's
purpose or the purpose of a fund, authority or institution which it operates.[46]
Further suggestions made to the Public Interest Journalism
Committee would supplement the measure in this Bill and provide ongoing support
once the funding in the measure is expended. Country Press Australia, for
example, noted that a means to aid journalism in regional Australia would
simple involve the continued placing of Government advertising and messages
through the print and online editions of regional and community media.[47]
Academics from Deakin University suggested that additional policy
interventions could be adopted to assist emerging sources of community news by
maximising existing operations, offering seed funding for new initiatives and
creating partnerships with public broadcasters and local operators who
demonstrate their media provides civic benefits.[48]
The Deakin academics argued that community media and hyperlocal news sites have
the potential to fill the gaps created by the decline of traditional media.[49]
In addition, they observed that publicly funded broadcasters already provide an
important source of public interest journalism which is less attractive to
privately owned media now faced with increasing commercial pressures. However,
as the Special Broadcasting Service (SBS) submission to the Senate inquiry into
this Bill also pointed out, publicly owned media are not only ineligible for
funding under this measure, their capacity to provide public interest
journalism has declined as the result of government funding cuts in recent
years.[50]
Comments made to the public sessions held by the Public
Interest Journalism inquiry also noted the need for long-term public funding to
support a wider array of public interest journalism sources. Michael Taylor, Managing
Editor of the Australian Independent Media Network, argued:
Unless public funding is available to support genuine public
interest journalism in regional areas and linguistically diverse communities,
what little there is might wither on the vine. The fact that some smaller local
foreign language papers survive because locals buy them regularly is testimony
for the desire of such journalism. Some public funding would make survival
easier. I think government should subsidise community radio and credible
journalism sites in order to provide a voice to the people and help promote an
interest in politics and the community. Too many people have no interest,
because they feel they have no say. [51]
As Associate Professor Andrew Dodd of the Public Interest
Journalism Foundation noted, there is in fact a need for a ‘suite of solutions’
to the assist print and broadcasting media to compete in what has become a
rapidly changing media environment.[52]
Canadian
House of Commons report
A report of the Canadian House of Commons Standing
Committee on Canadian Heritage (the Fry Committee report), published in June
2017, addressed Professor Dodd’s point.[53]
Canada already has a fund which provides assistance to publishers — the Canada
Periodical Fund (CPF), but the Fry Committee recommended the expansion of this
fund to encompass more options to assist publishers to cope with their changed
circumstances (see Box 2 below for summary of the funding under the CPF). Some
of the Committee’s recommendations were to make more publications eligible for
funding, provide more support to assist in online distribution and offer more
assistance to Indigenous and ethnic print media.[54]
Box 2:
Canada Periodical Fund
The Canada Periodical Fund
consists of three components:
- Aid to Publishers which provides funding to support content
creation, production, distribution, online activities or business development.
- Business Innovation which encourages innovation to adapt to
changing market conditions and contributes to the diversity of content.
- Collective Initiatives which supports broad-based marketing
plans, research into new technologies and projects that tackle systemic issues
affecting the industry.
Only publishers producing printed paid or request circulation
magazines and paid circulation non-daily newspapers are eligible.
Non-Indigenous publications must have sold at least 3,500 paid copies during a
financial year, while the sales threshold for Aboriginal, official language
minority and ethnic magazines and non-daily newspapers is 2,000.[55] |
Other recommendations of the Fry Committee included
introducing a five-year temporary tax credit ‘to compensate print media
companies for a portion of their capital and labour investments in digital
media’ and that the Canadian Government changed the definition of a registered
charity in the Canadian Income Tax Act to include not-for-profit media
or foundations.[56]
Submissions
to the Senate Committee inquiry
Submissions to Senate Environment and Communications
Committee inquiry into this Bill were supportive of the Government’s proposal
to fund small and regional publishers. The majority of concerns raised
regarding the Bill relate to administration by ACMA, issues related to eligibility
and whether the fund as proposed represents the best use of assistance funding.
Administration
by ACMA
Some submitters to the inquiry questioned if ACMA was the
appropriate body to administer a fund which is to assist publishers of
newspapers, magazines and other periodicals. The Indigenous Remote
Communications Association (IRCA), for example, argued that ACMA ‘has no
current capacity for administering a grants program’; it further questions ‘the
cost effectiveness, and risk of mixed purpose, in establishing a grants program
in ACMA without the history of grants administration’.[57]
The IRCA suggested that the Department of Communications and the Arts should be
the body to administer the fund.[58]
At the public hearing for the inquiry, Dr Carolyn
Patteson, from the Department responded to this issue:
One of the key objectives is to ensure that [the fund] is
administered at arm's length from the government to avoid any perception, real
or otherwise, of interference of any type with the administration of the fund,
and the ACMA fulfils this criterion. It's a statutory body with broad
independence from government. Although to date it hasn't implemented grant
programs on behalf of the Commonwealth, obviously the ACMA has extensive
experience in and knowledge of the media industry.[59]
Eligibility
criteria
The IRCA submission to the Senate inquiry objected to the
exclusion of Indigenous licensed community broadcasters from eligibility for funding
from the Small and Regional Publishers Innovation Fund.[60]
The IRCA argued that Aboriginal and Torres Strait Islander audiences are more
likely to receive their news and information from broadcasting services than
print or online sources (see table below).[61]
For this reason the IRCA called for the eligibility
criteria for funding to be extended to Indigenous broadcasters because of their
unique role in the provision and interpretation of news and current affairs to
Indigenous people and for a minimum of ten per cent of funding to be provided
under this Bill to be allocated to the various Indigenous media. In addition,
the IRCA considered that there should be a requirement under the Bill for the
representation of minority and culturally and linguistically diverse
communities on the fund’s advisory committee.
Table 1: news sources in remote communities
1 |
Local Indigenous community radio news |
61% |
2 |
NITV News |
58% |
3 |
ABC TV news |
52% |
4 |
CAAMA News |
51% |
5 |
Newspapers |
23% |
6 |
Online news service |
1% |
Source: Indigenous Remote Communications Association (IRCA).[62]
The Guardian Australia also considered that the criteria
for assistance under the fund are too narrow as they exclude that publication.
The Guardian’s submission to the Senate inquiry argued that, despite its having
a foreign parent company, its business in Australia depends on maintaining ‘a
viable Australian revenue model’ and that its profits are ‘reinvested in
Australian journalism’.[63]
The Guardian found it inconsistent that this restriction applies in the case of
the regional and small publisher fund, but it appears that it is not to apply
in the case of funding to be provided to help regional news organisations
employ journalism cadets.[64]
The Guardian argues that, for this reason, the current
form of the legislation, therefore, disadvantages ‘a new, fast growing source
of Australian news and of jobs for Australian journalists, when the whole
purpose of the fund is to encourage both those things’.[65]
At the public hearing James Penprase, from the Department, commented on the
policy reason for this differentiation:
The innovation fund is designed to help small and regional
publishers transition, so it is a business oriented fund. The government's
decision was to target that fund towards Australian owned and Australian
controlled entities. While there will be benefits for industry, I think it's
fair to say the primary benefit will be for cadets, for young journalists
trying to get into the industry. Because the bulk of those benefits go to an
individual level, restricting them on the basis of ownership of the business,
there's probably not a pertinent eligibility criterion for that, hence the
difference between the fund and the cadetship program.[66]
Schwartz Media’s submission to the Senate inquiry noted
that important questions regarding accountability are not answered in the
legislation; they will be addressed in the guidelines to be issued by ACMA.[67]
Regarding eligibility criteria, Schwartz Media asks what is meant by the ‘robust
and transparent complaints process’ that publishers will be required to have in
place in order to access funding. Similarly, what is meant by the requirement
to have in place ‘editorial guidelines’ and ‘a code of conduct or similar
framework relating to the provision of quality journalism’?[68]
While Schwarz Media asked other questions which are more related to process,
the two questions noted appear to raise again the issue of whether ACMA is the
appropriate body to administer the Regional and Small Publishers Innovation
Fund.
Better use
of funding issue
Country Press Australia (CPA) questioned whether the money
allocated to the fund this Bill proposes to establish could ‘be more wisely
spent, with better long-term outcomes for business and for jobs, and therefore
a better result for Federally-allocated finances’.[69]
CPA believed that funds ‘would be better spent supporting long-term employment,
making it possible to support local young adults from school into permanent
employment’ and this could be achieved through taxation rebate or wages
support.[70]
In discussing the Government’s three proposals to assist
regional and small publishers (as noted in the Background section of this
Digest) the Media, Entertainment and Arts Alliance (MEAA) noted that while it
is supportive of the Government’s general approach it is concerned these short
term programs need to be followed up, otherwise they may only ‘temporarily
boost the numbers and scope of journalists and journalism’.[71]
The MEAA believed unless consideration is given ‘to sustaining these programs
during their rollout’, their ‘benefits will be largely exhausted shortly after
the 2020-21 financial year’.[72]
Financial
implications
Grant funding will be up to $50.1 million over a three-year
period commencing 1 July 2018.[73]
ACMA will appropriate departmental expenses from the funding to administer the
program and the funding to remunerate members of the advisory committee (should
the Minister choose to appoint such a committee) will also come from the $50.1
million.[74]
Remuneration for the advisory committee will be determined by the Remuneration
Tribunal but, if no remuneration is determined by the Tribunal, the Minister
can determine in writing what remuneration committee members receive (proposed
section 205ZK).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[75]
The Explanatory Memorandum notes that the Bill ‘engages
the right to freedom of expression’ in Article 19 of the International
Covenant on Civil and Political Rights (ICCPR) as it provides
incentives ‘that support the continuation, development, growth and innovation
of Australian civic journalism’.[76]
In so doing it supports ‘the freedom to seek, receive and impart information
and ideas of all kinds using any media of choice’.[77]
In terms of the human rights of Indigenous people, in its
submission to the Senate inquiry into this Bill the IRCA disagrees that this
Bill is fully compatible.[78]
The IRCA draws attention to Article 27 of the ICCPR which states:
In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own
language.[79]
The IRCA argues that because this Bill intends only to
fund publishers it is remiss in terms of Article 27 because Indigenous people
access a number of sources for news and cultural information and the Bill does
not take into account this reality. It cites the 2016 Remote Indigenous
Communities Media and Communications Survey to justify its case (see table 1
above).[80]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
the Bill did not raise human rights concerns.[81]
Key issues
and provisions
Proposed
section 205ZG sets out a simplified outline of the new Part 14F of
the BSA. This covers ACMA’s authority to administer grants,
the time periods when grants must be made and the capacity of the Minister to
constitute an advisory committee to advise ACMA.
Proposed section 205ZH is the key provision of the
Bill. It provides that ACMA, on behalf of the Commonwealth, may grant financial
assistance to a constitutional corporation[82]
that publishes a newspaper,[83]
magazine or other periodical; or a content service provider.[84]
These grants must be in respect of financial years
commencing 1 July 2018, 1 July 2019 or 1 July 2020 and the total amount of the
grants ‘must not exceed $50,100,000’.[85]
The Explanatory Memorandum notes that the ‘Government has
announced that applicants for grants are to meet a number of eligibility criteria’
which it expects will be ‘reflected in the Grant Guidelines to be issued by the
ACMA, and that ... ACMA will apply these criteria in assessing applications for
funding received under the grant scheme’.[86]
It states:
One requirement will be meeting
annual turnover thresholds of not less than $300,000 and not more than $30 million.
Additional criteria include:
- a primary purpose test
(of producing civic and public interest journalism with an Australian
perspective);
- an Australian residence
test (being incorporated under Australian law and having central management in
Australia);
- an independence test (not
affiliated with a political party, union, superannuation fund, financial
institution, non-government organisation or policy lobby group);
- a control test (being an
entity that is majority controlled by Australian residents);
- being a member of the
Australian Press Council or having a robust and transparent complaints process;
and
- having in place editorial
guidelines, a code of conduct or similar framework relating to the provision of
quality journalism.
... It is the intention that grants
will be capped at a maximum of $1 million per year for any media group.[87]
Proposed section 205ZJ provides that terms and
conditions relating to grants are to be set out in a written agreement between
ACMA and the grant recipient. The Bill does not require that funding is to be
based on an organisation’s commitment to civic or public interest journalism. Instead,
the Explanatory Memorandum states that it is intended that the terms and
conditions of an agreement are broad. The Explanatory Memorandum does not
appear to explain why this is so, particularly given that it stresses that
grants will be able to be used for ‘the continuation, development, growth and innovation
of Australian civic journalism’.[88] The ‘core condition’ of an
agreement is that funds are spent on matters that concern a recipient’s
activities as a publisher or content service provider.[89]
It appears that ACMA will be given considerable leeway to decide the purposes
for which funding will be allocated.
The Explanatory Memorandum lists the following ‘terms and
conditions’ which may require funding be:
-
used to purchase a particular piece of technology or equipment; or
-
directed into a program or an initiative that is intended to promote
civic journalism; or
-
used to develop an application for the delivery of news, and other media
related content services; or
-
spent on training and upskilling of staff; or
-
directed to increasing revenue and readership.[90]
Proposed section 205ZK provides that the Minister may
set up a committee to advise ACMA and that ACMA must ‘have regard to’ relevant
advice given by that committee. This section raises a number of issues. First,
it is not a requirement of the legislation that an advisory committee is set
up; this is subject to the Minister’s discretion and if a committee is set up
its members will be ‘invited’ to participate by the Minister.[91]
Second, ACMA does not need to accept the advice of the committee. Third, while
the Minister is on record saying that a committee will consist of ‘appropriate
industry representatives’, there is nothing in the legislation which refers to
the composition of the committee.[92]
In addressing these issues the Explanatory Memorandum
acknowledges that the establishment, composition and appointment of members of
the advisory committee are solely the Minister’s prerogatives. The Explanatory
Memorandum continues that it ‘is expected’, however, that the committee will
comprise representatives from the Australian Press Council, the Walkley
Foundation and Country Press Australia.[93] In their submission to the
Senate Committee inquiry into this Bill, Professor Matthew Ricketson, Dr Kristy
Hess and Dr Julie Freeman from Deakin University noted that all of these
organisations ‘have significant experience in the news media field’.[94]
The Deakin University academics argued however, that membership of the advisory
committee could be further enhanced:
... by including representatives from the Media Entertainment
and Arts Alliance (MEAA), the primary body representing journalists in
Australia, and from academia. Journalism schools in universities are
represented by the Journalism Education and Research Association of Australia
(JERAA).[95]
With regards to ACMA accepting the committee’s advice, the
Explanatory Memorandum appears to consider that this will be inevitable, given
that the members of the committee ‘will have significant experience with
matters relating to news, journalism and other media related content’.[96]
It would appear that proposed section 205ZL would provide ACMA with
a more compelling reason to heed the advice of advisory committee, however, as
the regulator is required under this section to record any advice given to it
by the committee in its annual reports.
Proposed section 205ZL requires the Chair of ACMA
to include in the ACMA annual report each financial year:
- the
name of each recipient of one or more grants of financial assistance
- the
amount of each grant
- the
purpose for each grant and (as noted above)
- any
advice given to ACMA by the advisory committee.
Proposed section 205ZM provides that the inclusion
of the expression ‘Regional and Small Publishers’ in the short title of the
Bill does not limit the powers conferred by new Part 14F of the BSA. The
Explanatory Memorandum provides:
This reflects that, notwithstanding the short title of the
Bill, ACMA can make grants to entities operating in both regional and
metropolitan areas, and to publishers, broadcasters, and content service providers’.[97]
The reference in the Explanatory Memorandum to the
eligibility of ‘broadcasters’ does not seem consistent with the criteria for
eligibility for grants in proposed section 205ZH. Departmental
officers confirmed that the fund is not intended to be available for
broadcasters at the public hearing for the Senate Environment and
Communications Legislation Committee’s inquiry into the Bill.[98]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Content
Service is defined in Schedule
7 of the BSA as a service that delivers content to persons having
equipment appropriate for receiving that content, where the delivery of the
service is by means of a carriage service or a service that allows end-users to
access content using a carriage service. Carriage Service is defined in the Telecommunications
Act 1997 as a service for carrying communications by means of guided
and/or unguided electromagnetic energy. Carriage services include internet,
social media, phone et cetera.
[2]. M
Fifield (Minister for Communications and the Arts), Modernising
Australian media laws, media release, 1 March 2016.
[3]. More
detail on media regulation is presented in R Jolly, Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017, Bills digest, 8,
2017–18, Parliamentary Library, Canberra, 2017. The rules to be replaced were
the 75 per cent rule (audience reach rule) which was that a person, either in
his or her own right or as a director of one or more companies, must not be in
a position to exercise control of commercial television broadcasting licences
which have a combined licence area population that exceeds 75 per cent of the
population of Australia. The two out of three rule (cross-media ownership rule)
was that a person can only control two of the regulated media platforms
(commercial television, commercial radio and associated newspapers) in a
commercial radio licence area.
[4]. Parliament
of Australia, ‘Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017 homepage’, Australian
Parliament website.
[5]. R
Lewis, ‘Media
reform stalemate over Xenophon tax break plan’,
The Australian (Business Review online edition), 17 August 2017.
[6]. Ibid.
[7]. M
Fifield (Minister for Communications and the Arts), Turnbull
Government working with Senate crossbench to secure passage of vital media
reforms, media release, 17 August 2017.
[8]. Lewis,
‘Media
reform’, op. cit.
[9]. Ibid.
[10]. N
Xenophon, Media
reform measures negotiated by NXT, media release, 14 September 2017. It
was reported in the media that a Government assessment of a tax offset scheme
‘found it would deliver little in the way of benefits to publishers – perhaps
as little as $2 million a year in total to the industry’. A Tillett and M
Mason, ‘How
media reform finally got done’, The Australian Financial Review, 23
September 2017, p. 25.
[11]. A
Sinodinos and M Fifield (Minister for Communications), New
measures to support regional media organisations, media release,
18 September 2017.
[12]. Ibid.
[13]. Department
of Communications and the Arts (DCA), Regional
and Small Publishers Innovation Fund, fact sheet, DCA, October 2017, p.
2.
[14]. Senate
Selection of Bills Committee, Report, 15, 2017, The Senate,
7 December 2017.
[15]. Australia,
Senate, Journals,
79, 2016–17, 7 December 2017, p. 2514. Senator Rachel Siewert unsuccessfully
moved to amend the reporting date of the inquiry to 19 March 2018.
[16]. Senate
Environment and Communications Legislation Committee, Communications
Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017,
The Senate, Canberra, 12 February 2018, p. 19.
[17]. Senate
Standing Committee for Scrutiny of Bills, Scrutiny
digest, 1, 2018, The Senate, 7 February 2018, p. 14.
[18]. Ibid.,
p. 15.
[19]. Ibid.
[20]. The
Minister’s response was received by the Committee on 21 February 2018. See Senate Standing Committee for Scrutiny of
Bills, Ministerial
responses, The Senate, Canberra.
[21]. Australia,
Senate, Journals,
40, 11 May 2017, p. 1330-32.
[22]. Senate
Select Committee on the Future of Public Interest Journalism, Report,
The Senate, Canberra, February 2018, p. 19.
[23]. M
Rowland, ‘Second
reading speech: Broadcasting Legislation Amendment (Broadcasting Reform) Bill
2017’, House of Representatives, Debates, 20 June 2017, p.
7097.
[24]. P
Wong, D Farrell, A Gallacher (Senators for South Australia), Xenophon
must protect SA media diversity and jobs, media release, 13 September
2017.
[25]. D
Farrell, ‘Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017: Commercial Broadcasting
(Tax) Bill 2017: In Committee’, Senate, Debates, 14 September 2017,
p. 7361.
[26]. S
Dastyari, ‘Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017, Commercial Broadcasting
(Tax) Bill 2017: In Committee’, Senate, Debates, 14 September 2017,
p. 7371.
[27]. Ibid.
[28]. Senate
Environment and Communications Legislation Committee, Communications
Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017,
op. cit., p. 22.
[29]. Lewis, ‘Media
reform’, op. cit.
[30]. Xenophon,
Media
reform measures negotiated by NXT, op. cit.
[31]. Ibid.
Explanatory
Memorandum, Communications Legislation Amendment (Regional
and Small Publishers Innovation Fund) Bill 2017, p. 7.
[32]. Xenophon,
Media
reform measures negotiated by NXT, op. cit.
[33]. N
Xenophon, ‘Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017: Commercial Broadcasting
(Tax) Bill 2017: In Committee’, Senate, Debates, 14 September 2017,
p. 7356.
[34]. J
Penprase (Department of Communications and the Arts), Evidence
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, 1 February 2018, p. 3.
[35]. Senate
Environment and Communications Legislation Committee, Communications
Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017,
op. cit., p. 24.
[36]. For
example comments in favour of media changes are included in the Library’s Bills
digest for the 2017 media changes, R Jolly, Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017, Bills digest, 8,
Parliamentary Library, Canberra, 2017–18.
[37]. Explanatory
Memorandum, Communications Legislation Amendment (Regional and Small
Publishers Innovation Fund) Bill 2017, p. 2.
[38]. Ibid.
[39]. Select Committee on the Future of Public Interest Journalism, ‘Terms of reference’.
[40]. The
Conversation, Submission
to Senate Select Committee on the Future of Public Interest Journalism, Inquiry
into the Future of Public Interest Journalism, [Submission no. 68], August 2017,
pp. 3–4.
[41]. Ethical
Journalism Network, ‘Is it in the
public’s interest?’, Ethical Journalism Network website.
[42]. R
Tiffin, Submission
to Senate Select Committee on the Future of Public Interest Journalism, Inquiry
into the Future of Public Interest Journalism, [Submission no. 12], 14 June
2017.
[43]. C
Berg, Submission
to Senate Select Committee on the Future of Public Interest Journalism,
Inquiry into the Future of Public Interest Journalism, [Submission no. 16],
June 2017, p. 4.
[44]. Ibid.
[45]. Independent
Australia, Submission
to Senate Select Committee on the Future of Public Interest Journalism, Inquiry
into the Future of Public Interest Journalism, [Submission no. 55], June
2017, p. 5.
[46]. See
the Australian
Tax Office website for more detail on deductible gift recipient categories.
[47]. Country
Press Australia, Submission
to Senate Select Committee on the Future of Public Interest Journalism, Inquiry
into the Future of Public Interest Journalism, [Submission no. 15], June
2017.
[48]. Deakin
University, Submission
to Senate Select Committee on the Future of Public Interest Journalism,
Inquiry into the Future of Public Interest Journalism, [Submission no. 19],
15 June 2017, p. 6.
[49]. Hyperlocal
journalism, sometimes called microlocal journalism, refers to coverage of
events and topics on an extremely small, local scale. Hyperlocal journalism
focuses on news that would usually not be covered by larger mainstream media
outlets, which tend to follow stories of interest to metropolitan, state or regional
audiences. For more comment see D Harte, ‘As traditional media falters, hyperlocal news is on the up’, The
Conversation, 15 August 2015.
[50]. Special
Broadcasting Service (SBS), Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, [Submission no. 62], January 2018.
[51]. M
Taylor (Managing Editor, Australian Independent Media Network), Evidence
to Senate Select Committee on the Future of Public Interest Journalism,
Inquiry into the Future of Public Interest Journalism, 22 November 2017, p.
10.
[52]. A
Dodd (Public Interest Journalism Foundation), Evidence
to Senate Select Committee on the Future of Public Interest Journalism,
Inquiry into the Future of Public Interest Journalism, 21 August 2017, p.
11.
[53]. Canada,
House of Commons, Standing Committee on Canadian Heritage, Disruption:
change and churning in Canada’s media landscape (Fry Report), House of
Commons, Ottawa, June 2017.
[54]. Ibid.,
p. 40.
[55]. Ibid.,
pp. 38–9.
[56]. Ibid.,
Recommendation 5, p. 35 and Recommendation 16, p. 65.
[57]. Indigenous
Remote Communications Association (IRCA), Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, January 2018, p. 11.
[58]. Ibid.
[59]. C
Patteson (Department of Communications and the Arts), Evidence
to the Senate Environment and Communications Legislation Committee, Inquiry
into Communications Legislation Amendment (Regional and Small Publishers
Innovation Fund) Bill 2017, 1 February 2018, p. 3.
[60]. IRCA,
Submission,
op. cit., p. 10.
[61]. Ibid.,
pp. 9–10.
[62]. Ibid.,
p. 9.
[63]. Guardian
Australia, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, n.d.
[64]. Ibid.
[65]. Ibid.,
p. 3.
[66]. J
Penprase (Department of Communications and the Arts), Evidence
to the Senate Environment and Communications Legislation Committee, Inquiry
into Communications Legislation Amendment (Regional and Small Publishers
Innovation Fund) Bill 2017, 1 February 2018, p. 2.
[67]. Schwartz
Media, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, 2018.
[68]. Ibid.
[69]. Country
Press Australia (CPA), Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, 10 January 2018, p. 1.
[70]. Ibid.,
p. 3.
[71]. Media
Entertainment and Arts Alliance (MEAA), Guardian Australia, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, 2018, p. 7.
[72]. Ibid.
[73]. Explanatory
Memorandum, op. cit., p. 2.
[74]. J
Penprase (Department of Communications and the Arts), Evidence
to the Senate Environment and Communications Legislation Committee, Inquiry
into Communications Legislation Amendment (Regional and Small Publishers
Innovation Fund) Bill 2017, 1 February 2018, p. 7.
[75]. The
Statement of Compatibility with Human Rights can be found at pages 3 and 4 of
the Explanatory
Memorandum to the Bill.
[76]. Explanatory
Memorandum, op. cit., p. 3.
[77]. Ibid.
[78]. IRCA,
Submission,
op. cit.
[79]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994).
[80]. IRCA,
submission, op. cit.
[81]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 1, 2018, 6 February 2018, p. 78.
[82]. Section
5 of the BSA
provides a ‘constitutional corporation’ means a corporation to which paragraph
51(xx) of the Constitution
applies. This applies to ‘foreign corporations, and trading or financial
corporations formed within the limits of the Commonwealth’. Proposed
subsection 205ZH(2) also provides that grants of financial assistance must
not be made to a person unless the person is a party to an agreement under proposed
subsection 205ZJ(2).
[83]. Section
5 of the BSA provides ‘newspaper’ means ‘a newspaper that is in the
English language and is published on at least 4 days in each week, but does not
include a publication if less than 50% of its circulation is by way of sale’.
[84]. Proposed
section 205ZH notes that ‘content service provider’ is within the meaning
of Schedule 7 of the BSA. This defines ‘content service provider’ as ‘a
person who provides a content service’. The definition of content service in
Schedule 7 includes ‘(a) a service that delivers content to persons having
equipment appropriate for receiving that content, where the delivery of the
service is by means of a carriage service; or (b) a service that allows
end-users to access content using a carriage service’ and excludes a number of
services such as broadcasting services.
[85]. Proposed
subsection 205ZH(4) provides that payments are to be made out of money
appropriated by another Act. The Explanatory Memorandum notes that this ‘will usually
be an Annual Appropriation Act’ and this is ‘common practice for bills that may
have major financial implications and are introduced in the Senate’ (p. 7).
[86]. Explanatory
Memorandum, op. cit., p. 7.
[87]. Ibid.
[88]. Explanatory
Memorandum, op. cit., p. 2.
[89]. Proposed
subsections 205ZJ(4) to (6).
[90]. Ibid.,
p. 8.
[91]. M
Fifield, ‘Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017: Commercial Broadcasting
(Tax) Bill 2017: In Committee’, Senate, Debates, 14 September 2017,
p. 7354.
[92]. Ibid.
[93]. Explanatory
Memorandum, op. cit., p. 8.
[94]. Deakin
University, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, January 2018, p. 3.
[95]. Ibid.
[96]. Explanatory
Memorandum, op. cit., p. 9.
[97]. Ibid.
[98]. J
Penprase (Department of Communications and the Arts), Evidence
to Senate Environment and Communications Legislation Committee, Inquiry into
Communications Legislation Amendment (Regional and Small Publishers Innovation
Fund) Bill 2017, 1 February 2018, p. 9.
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