The whole essence of freedom is that it is freedom for others as well as ourselves… [It is] a conception which is not born with us, but which we must painfully acquire. Most of us have no instinct at all to preserve the right of the other fellow to think what he likes about our beliefs, and to say what he likes about our opinions… [But] if truth is to emerge, and in the long run be triumphant, the process of free debate – the untrammelled clash of opinion – must go on.
This timeless quote from the founder of the Liberal Party highlights the danger in the recommendations put forward by the majority report. These reckless recommendations would undermine freedom and freedom of the press in Australia.
In my First Speech to the Senate, I made it clear that my philosophy as a legislator would always be guided by the principles of free enterprise, saying ‘We support enterprise. We believe in markets. And we believe in some regulation of industry. We believe markets must serve the public interest’.
Accordingly, I am open minded about intervention but there must be a very clear case.
There has been no case made for a judicial inquiry with Royal Commission style powers into the private economy. The threshold test of systemic failure or malfeasance for a Royal Commission into a sector of the private economy has not been met.
The threshold test is higher in this case as this sector of the private economy plays a pivotal role in our liberal democracy and government intervention should be an absolute last resort.
The recommendations are aimed at one particular organisation which has a large exposure to newspapers. Assessing media concentration upon the ownership of newspapers in the digital age is a deeply embarrassing and totally inappropriate measurement.
It would be like conducting an assessment on the prospects of Kodak film without considering digital cameras and iPhones.
The media landscape in Australia is extremely diverse. Following the disruption of Big Tech, which the majority report’s recommendations ignore, Australians can access a broad array of free and paid journalism.
A 2020 University of Canberra study showed more than half of Australian news consumers (51 per cent) use five or more news brands. Only seven per cent of Australians access just one brand for their news.
The same study states that 60 per cent of Australian news consumers use their mobile phones to access news. This occurs through various apps and social media platforms.
Australians can access streaming and on demand services through their televisions, computers, tablets and phones across the ABC, free to air television, Netflix, Prime or Stan.
Australians can read news about the economy, sport or politics for free on the Guardian Australia, the ABC and news.com.au.
They can purchase a subscription and access content from the Australian, the Sydney Morning Herald, the Economist or the New York Times.
Radio, subscription television and a range of established and new newspapers offer further options.
Google, Apple and Facebook offer curated content to their millions of users in Australia. Google News is the most popular news aggregator, being used by 17 per cent of Australians according to the University of Canberra.
Younger Australians also source news information from Reddit and TikTok. The disruption of Big Tech has caused major changes in newsrooms, but it has widened the ability of Australians to access a broader range of content from more locations and sources.
The perspectives included across these platforms are extremely diverse. Australians can access news and opinions on politics which are totally different. They can do this on a range of platforms.
While it is true that there are two major newspaper outlets, this is not a proxy for media diversity. But even within the Nine and News Corp groups, there is significant diversity which can be seen in the various editorial positions of the respective mastheads.
The recommendations rest upon a 1950s formula which shows that this inquiry is a stunt and should not be treated seriously by the executive government of Australia.
Recommendations
Recommendation
There should be no inquiry into a private media organisation.
None of the recommendations are worthy of consideration, but this is not to say that we cannot improve the regulatory landscape.
It is not the role of the government to interfere in private media organisations, however the government has an interest in ensuring self-regulation measures are effective.
Recommendation
The Press Council should be reformed by its members to be more responsive and adopt stronger powers of self-regulation.
The Press Council has been a toothless tiger over newspapers, and it could only improve.
The government cannot compel non-traditional press organisations to join an industry body. But we can suggest to the organisation that it work with its constituent members to improve its standing with the community. The perception of the Press Council is generally poor. It should be taken more seriously and that is a job for the members.
One key point which is missed in the majority report is that most media consumption occurs outside of newspapers. Therefore, the self-regulation of media organisations which are not newspapers is of critical importance. There is no clear group of organisations which can represent the diverse technology companies with exposure to the media. The lack of such a body makes it difficult to make a recommendation which could be taken seriously.
In the online space groups such as DIGI could perform a similar role to the Press Council and have commenced with some industry policy work. For example, DIGI has launched a Code of Practice on Disinformation and Misinformation, which has been adopted by Abode, Apple, Facebook, Google, Microsoft, TikTok and Twitter.
In the absence of serious self-regulation from Big Tech, the only option is government intervention. Accordingly, the government’s world-leading initiatives to regulate Big Tech should be maintained as the focus of our efforts. The initiatives have already supported Australians and public interest journalism.
Recommendation
Any outlet which publishes consumer media should consider having an independent Ombudsman, appointed by the board of the organisation.
Many issues on the regulation of Big Tech remain unresolved. One issue is that media outlets and Big Tech companies can be hard to deal with as a consumer. Accordingly, all media outlets, including the Big Tech publishers, should establish an Ombudsman to deal with consumer complaints.
Background
On 11 November 2020, the Senate Environment and Communications References Committee commenced an Inquiry into the state of media diversity, independence and reliability, and the impact on public interest journalism and democracy.
The remit of this inquiry extended to the state of public interest journalism in Australia, media concentration, impact of online platforms, state of independent and community news, and the role of government in promoting public interest journalism.
The Senate performs an important function in inquiring into matters relevant to the public interest. The ability to collect evidence, call for submissions and witnesses, and report back to Parliament, is critical to the Senate’s ability to fulfill its legislative mandate.
We owe this to our constituents. I had hoped that this inquiry, like many others tabled in the past year, would be a worthwhile contribution to the legislative process and to wider policy debate. Unfortunately, this has not been the case.
This is a matter of profound regret. An open and vibrant public sphere is essential for the functioning of any democracy. Without the right to free speech and a free press, it is not possible to claim or assert other rights. Neither is it possible to maintain an open electoral democracy.
Despite the absence of any explicit constitutional protections, the value of free speech has been consistently recognised by the High Court, whose judges have stated that: ‘freedom of political communication is essential to the maintenance of representative democracy’ and that ‘representative government…is not concerned merely with electoral processes… The central thesis of the doctrine is that the powers of government belong to, and are derived from…the people’.
Regulating the media environment in the public interest is a delicate exercise. I agree that a vibrant, diverse, and competitive environment is necessary in a democracy. Further, the Commonwealth has a responsibility to guarantee a framework where this can occur.
Instituting a framework which does not overstep the bounds of legitimate government action is a delicate exercise. As legislators, it is right that we keep a watchful eye on the operation of this framework, with a particular focus on its continual improvement.
We do this as part of our mandate to make laws in the public interest, specifically laws which relate to interstate commerce and corporations. Moreover, a free public sphere depends on competition in the media marketplace. This means that the government regulates to guarantee, not to restrict, market competition.
This idea does not mean that the government should determine or impede upon market outcomes. To do so would undermine not only the market but also our democracy. Simply put, members of Parliament do not pick the winners of the game, they write the rules. The two roles are not compatible.
The recommendations of this report do not represent a serious contribution to our national policy conversation. Instead, this report pushes an ideological agenda in the fulfillment of obscure and trivial goals.
In doing so, the recommendations of this report do not advance the stated objectives of this inquiry. Instead, if implemented, they would undermine it.
This process has been very unusual. Over 5000 public submissions were received by this committee. The vast, vast, majority of these submissions were done as part of a carefully coordinated campaign, one which was shepherded by former Prime Minister Kevin Rudd and the activist group GetUp.
Upon reviewing these submissions, it was clear that this campaign was not directed at good faith participation in the policymaking process. On the contrary, the volume of interest from specific sectors of society, all of whom seemed to be saying the same thing, had the effect of swamping and obstructing the committee process. Moreover, it served to obscure the views of stakeholders who sought to make a worthwhile contribution to the policy discussion. It is a classic case of stunts and gimmicks from protestors who do not expect to undertake roles in executive government.
Response to recommendations in the committee report
Any market intervention must be justified, this is especially true of interventions in the media market, which has consequences for the health of our democracy.
We should take care to ensure that these interventions are only justified in light of the quantum of any adverse consequences. Unfortunately, the committee has opted not to conduct this analysis, instead the majority has decided to engage in empty performance politics.
Comment on committee Recommendation 1
With respect to committee Recommendation 1: The committee recommends that the Commonwealth initiate a judicial inquiry, with the powers of a Royal Commission, to determine whether the existing system of media regulation is fit-for-purpose and to investigate the concentration of media ownership in Australia.
It is not clear what this recommendation is, or what it would achieve. While the recommendation states that the inquiry will look at a number of aspects of the media market, investigating the concentration of media ownership will no doubt end up being directed at one or two media organisations.
In doing so, the report does not cite any powerful or compelling reasons as to why such an inquiry would be specifically warranted. Nor does the report justify why this inquiry would be more appropriate or effective than existing processes. The regulation of the press is a profound public policy issue, one which affects the democratic process.
It is essential that these questions should be considered in the democratic sphere, and not outsourced to unelected judges or commissioners. We are elected to consider these questions. That is our mandate.
Moreover, conferring the powers of a Royal Commission on an inquiry which will have oversight of media operators endangers democracy. As mentioned, the questions which would be considered by this hypothetical inquiry would affect some of the core functions of democracy. To confer on an unelected official extensive investigatory powers over participants in the public sphere would constitute an unacceptable intrusion into our democratic process, for no apparent benefit.
Comment on committee Recommendation 2
With respect to committee Recommendation 2: Ensuring that the nation’s news media are sufficiently diverse, in ownership and in opinion, to maintain a vigorous democracy.
It is ironic that this recommendation commences by saying that ‘it is parliament’s responsibility’ to uphold these principles, before recommending a series of expansions in executive power and more public funding.
While I recognise that public interest journalism is valuable, I am not sure how this could be enhanced by furthering its reliance on government support. The diversity, both in ownership and opinion, sought in the news media market has always been a product of innovation and growth in the private sector.
The report has not considered the very real adverse consequences of making the media market further dependent on government support. Surely this is anathema to the idea of a vigorous and independent media.
State of Media Diversity
The majority report repeatedly contends that ‘Australia has one of the most concentrated news media markets in the world’ but did not provide supporting evidence. There is a disproportionate focus on the market for newspapers and other traditional media. The vast majority of news in Australia is consumed online.
On the contrary, Australian news consumers have never been exposed to a more diverse media environment. Diversity extends beyond ownership and into the multitude of mediums which people can be exposed to. As the Chair of the Australian Competition and Consumer Commission, Mr Rod Sims, stated:
I think you’ve got more competition than you had before… the more competition you’ve got, I think it follows that the more diversity you’ve got.
The repeated statement in the majority report that the Australian news media sector is ‘one of the most concentrated markets’ cites scant supporting evidence. It is a statement of opinion which is liable to be contested according to assessments of the scope and structure of the media market, as well as comparability between countries. The committee should be wary about undermining its integrity by being so flippant about the distinction between fact and opinion.
The most viewed news website in Australia is abc.net.au. Of the top 10, according to Nielsen data, one was owned by News Corp, three by Nine, and one each by Australian Community Media, the Daily Mail, the Guardian Australia, and Seven West. Individuals will often regularly consume news from four or five regular sources, including sources which are ideologically diverse.
News feeds on social media sites are typically used as landing pages, which can provide news from a range of sources offering a range of views. We also consume far more news than we used to. Gone are the days where one household would get the bulk of their news from a single newspaper with a highly loyal subscriber base.
The intense focus on News Corp also obscures the fact that News Corp is present primarily in the newspaper market. The viewership of Sky News is miniscule compared to the viewership of Nine, Seven, SBS, and the ABC. Although even News Corp’s presence in the newspaper market has been overstated.
Kevin Rudd claimed that News Corp accounted for 70 per cent of the newspapers in Australia. This is factually incorrect. It accounts for 33 per cent. News Corp websites reach 1.2 million fewer readers than those owned by Nine. Kevin Rudd repeatedly claimed that News Corp had a monopoly on newspapers in Queensland. Also patently untrue. There are 46 printed newspapers in Queensland, of which News Corp owns six.
As the Press Council notes, ‘one of the most significant impacts on the Australian commercial media industry in recent times has been the emergence of digital platforms’. The five most visited websites in Australia: Google (Alphabet), YouTube (Alphabet), Facebook (Meta), Google Australia (Alphabet), Shopify (Shopify). All of these are foreign owned companies: four based in the United States and one in Canada.
They have a staggering amount of data points about their Australian users: where they shop, what they search, private messages, private emails, email addresses, viewing habits, location data. Algorithms are used to feed information to users in a way which is explicitly directed towards monetising this information.
This has a profound impact on our vital national interests. Often these sites operate as ‘platforms’ or gateways to the rest of the internet, hosting organic content which has been generated by users. Some have argued that the function of these sites is not dissimilar to a utility. But one cannot assume that they will conduct themselves properly. This poses some existential questions: do we really trust a foreign company with data which we would not be comfortable with personally sharing publicly? How do we know these entities are not vulnerable to outside interference in how they share this information?
Following the proposal for the News Media Bargaining Code, these platforms used their significant market power to manipulate our political process, threatening to withdraw services if the legislation passed. They also used their platforms to host their own content criticising the proposal. Parliament should be focused on the gross misuse of power by Big Tech companies, rather than the disrupted traditional media sector. Surely this would be the focus of any responsible or serious inquiry.
A Judicial inquiry or Royal Commission is not necessary
The Commonwealth has had nine Royal Commissions in the past ten years. By contrast, in the previous decade, we had five. The past decade also exceeds the number of Royal Commissions in comparable jurisdictions, such as New Zealand (four), the United Kingdom (zero), and Canada (two).
While it is hard to arrive at an accurate cost estimate, the Banking Royal Commission cost taxpayers, at a minimum, $70 million, although estimates of the total (public and private) costs range as high as a billion dollars.
Just as the frequency of these Commissions has increased, so has the scope. It used to be that Parliament dealt with matters relevant to the public interest, and Royal Commissions were established to answer very specific and serious questions.
A Royal Commission allows legal professionals to take a detailed look at specific questions, especially where the legislative framework has failed significantly. Notable examples include the inquiry into HIH Insurance, then the largest corporate collapse in Australian history; into the Oil-for-Food scandal; and the Banking Royal Commission.
It does not make sense to have Royal Commissions look at issues relevant to the broader public interest. That is our job as Parliamentarians. In effect, establishing a Royal Commission on a broad public policy question is tantamount to retaining lawyers to stand-in as legislators.
We need to establish that a clear threshold of seriousness is required for opening a Royal Commission. We have been far too flippant about what Royal Commissions entail: extraordinary costs, an outsourcing of the democratic process and broad legal investigations. This should only be reserved for serious issues which cannot be addressed through judicial, parliamentary or executive inquiries. We owe this to voters and taxpayers.
More weight should be given to the second part of this standard, especially the value of this process, the committee process. The tabling of reports in Parliament allows for recommendations to go straight into the legislative process. We are also elected to perform this function. The Senate can call for witnesses and documents, and such proceedings enjoy the protection of parliamentary privilege. We can table recommendations directly to Parliament.
In fact, this committee did just that, and failing to find the results that they were hoping for, and shrinking from the hard task of devising policy solutions, they have instead decided to outsource this responsibility to retained lawyers, at considerable public expense and for no apparent reason.
Calling for a Royal Commission into something that falls well within our purview, like media diversity, is not a serious contribution to public debate. In fact, calling for a Royal Commission amounts to running away from public debate and public responsibilities. They have kicked the can down the road and the taxpayer will be footing the bill.
Moreover, a Royal Commission can only be established by a Letters Patent signed by the Governor-General. It is a function of the executive government. The Senate knows full well that this is the case. They know that the decision to hold, or not hold, a Royal Commission is one which is at the discretion of the executive government.
It is a profound irony that the majority report is calling for a Royal Commission—the highest level of public inquiry—which appears to be directed at one or two media providers. This follows the Chair’s motion to gag a very specific and limited inquiry into another media provider which is funded by taxpayers. What explanation exists for this other than politics?
Let us spell out the hypocrisy presented by this situation. It is more than the Chair preventing an inquiry into one media organisation while calling for an inquiry into another. It is far more lopsided than that.
The ABC is publicly funded, News Corp is not. Taxpayers fund the ABC, giving it a stream of revenue that is more reliable than the revenue stream of any other media organisation in Australia. The ABC has a statutory mandate, News Corp does not.
ABC News is the most-viewed news website in Australia, ABC News 24 the most viewed news channel. News Corp-owned Sky News does not remotely approach this reach.
A Senate inquiry can report on its terms of reference with minimal costs to the taxpayer and minimal inconvenience to witnesses; the cost of a Royal Commission often goes into the tens of millions, the witnesses all have to retain their own lawyers and are subjected to intrusive questioning.
The terms of reference for the Senate inquiry were confined to a matter of public interest, the terms of reference for the Royal Commission are expansive and open-ended. Members of a Senate committee are elected and accountable directly to the voting public. Royal Commissioners are appointed for secure tenure. Members of a Senate committee report to the whole house, a Royal Commission reports to the government.
To argue that the Senate cannot inquire into ABC News, but that a Royal Commission is somehow required for News Corp, is an absurdity so extraordinary that it defiles the dignity of Senate processes. It is a flagrant abuse of one of the strongest and most productive tools of our democracy for nakedly political ends.
ABC inquiry
An independent public broadcaster performs a vital function in any democracy. The ABC is a national institution which serves us well. The ABC Act establishes the organisation as an ‘independent national broadcasting service’ and the Editorial Standards establish ‘maintaining independence and integrity’ as a core objective.
This inquiry refused to consider if the ABC was living up to these aspirations. This undermines the extent to which this inquiry can be taken seriously, especially given the vital role that the ABC and public broadcasters play in the media ecosystem. Further, recent events have confirmed that serious questions must be asked about the extent to which the ABC is adhering to these standards.
The ABC is unlike any other media organisation in the country in being able to rely on a stable stream of revenue from taxpayers. We should always be holding it to the highest possible expectations, at a minimum this should require a level of scrutiny which ensures that they are living up to their statutory mandate. This is our responsibility.
I called for an inquiry into the ABC’s complaints handling procedures. This was in response to issues which had been raised with me personally by my constituents, as well as further inquiries which indicated that these procedures may not be meeting best practice. Certain multicultural groups were unhappy with complaints related to foreign coverage, and veterans felt they had been represented inappropriately.
To review the functioning of public agencies is one of the Senate’s core responsibilities, and a vital cog in the machinery of democratic government. That inquiry had a simple objective, set out in the terms of reference, to ‘examine the adequacy of the existing arrangements to provide a framework that is accessible, responsive, efficient, accountable and fit for purpose’. It is well within the practices of the Senate to review the performance of public bodies.
That is why I was surprised by the reaction of the Australian Broadcasting Corporation.
The Chair of the ABC, Ita Buttrose, immediately put out a statement which was inappropriate and unfounded. In that statement, the Chair made three contentions which should make everyone profoundly uncomfortable.
First, Ms Buttrose contended that the Senate inquiry was parallel to an internal review which the ABC initiated, claiming that ‘instead of respecting the integrity of this [internal] process, the Senate committee under the leadership of Senator Bragg has decided to initiate a parallel process’. I respectfully disagree. The ABC’s review is being conducted at the behest of the ABC. The organisation which is under review will also be the organisation which initiated the review.
Submissions and testimony will not enjoy the protections of parliamentary privilege, nor will it be conducted by individuals who are accountable to the public. By contrast, a Senate inquiry will be conducted in the public sphere, submissions and testimony will enjoy the protections of parliamentary privilege, and individuals conducting the inquiry are directly answerable to the electorate. To argue that there is any equivalency between the two is not only insulting, it also exhibits a profound misunderstanding of, and disrespect for, the democratic process.
Second, Ms Buttrose contended that this inquiry would interfere with the ABC’s editorial independence, stating that ‘the Committee has, on this occasion, sought to undertake a task that is not only already underway but also is the legal responsibility of the ABC Board’. As I have previously stated, the inquiry was about maintaining the independence of the ABC, not undermining it. It is one of the Senate’s core responsibilities to ensure that public agencies are fulfilling their statutory responsibilities.
Ms Buttrose contended that the Senate should be somehow restricted in that ability, and that any attempt to overstep this is ‘a blatant attempt to usurp the role of the ABC Board’. This contention exhibits a deep contempt for our parliamentary democracy, which requires Parliament to have the ability to inquire into any matter which is relevant to its legislative functions. I find it unfathomable that the Chair of our national broadcaster would hold such a position.
Third, Ms Buttrose contended that the inquiry was a politically motivated attempt to undermine the ABC, describing it as ‘an act of political interference designed to intimidate the ABC and mute its role as this country’s most trusted source of public interest journalism’. Unlike the ABC’s internal review, this inquiry would have been answerable to the public. It would have included representatives from across the political spectrum and called for public submissions on a range of views.
The findings of the inquiry would have therefore been an open question, capable of being judged by the democratic process. I am not sure why Ms Buttrose would take a position on the inquiry’s findings before the inquiry had properly commenced. As I have repeatedly stated, this was an examination of one specific aspect of the functions of a public organisation. An examination which would have ultimately been subject to the value of the democratic process.
Ultimately, the ABC made an extraordinary intervention into our democratic institutions. Unelected officials should not be directing the actions of an elected Parliament. The direct politicisation of their institutional interests is an extremely risky precedent.
Closing down a house of review’s capacity to conduct legitimate inquiries should trouble anyone who is concerned about responsible and representative government. For 50 years, the Senate committee process has been central to our democracy. The ABC has no business actively undermining it.
Moreover, the institutional stance of the ABC clearly bled into their own coverage of their statement. ABC News carried Ms Buttrose’s statement wholesale as a news item, when it was clearly intended as a statement of opinion.
The Media Diversity Inquiry’s refusal to scrutinize a public broadcaster is emblematic of the attitude underpinning the majority report. They are interested in intentions over outcomes, performance over process, and opinion over substance.
Concluding Remarks
This inquiry has been a stunt, conducted at taxpayers’ expense. It offers no serious recommendations for reform. It is designed for the social media platforms of politicians who are more interested in protesting than governing.
The Australian media landscape is dynamic and diverse. People can access news and information from more sources and in more ways than ever before. The policy settings have evolved to address the disruption of Big Tech and public interest journalism is supported by various interventions.
Over the next decade, the Parliament should maintain its focus on the challenges of the Big Tech disruption, rather than looking in the rearview mirror at bogeymen of yesteryear.
Senator Andrew Bragg
Deputy Chair