Broadcasting Legislation Amendment (News Media Diversity) Bill 2013

March 19, 2013

Mr TURNBULL (Wentworth) (19:02): At this moment, this chaotic and dysfunctional government, this government devoid of any purpose but a desire to survive, is turning this parliament into a farce. It is currently doing a dirty deal with various of the Independents to change the nature of the Public Interest Media Advocate. Who knows—it could be somebody selected from the member for Kennedy’s electorate. Or it could, perhaps, be the member for Fisher; he is part of the discussions. It could be a panel. Nobody knows.

A little while ago, we thought we were going to deal with the four bills relating to the Public Interest Media Advocate together; we were going to debate them in a cognate way, because they all link together. They establish the Public Interest Media Advocate, and then they deal with the Public Interest Media Advocate’s jurisdiction, his control over media acquisitions and his supervision of the content of newspapers via his oversight of the standards of the press council and so forth. But now we have learned, just in the last few minutes, of a dramatic change. The Leader of the House wants us to consider the Public Interest Media Advocate bill in isolation, at the very end—as the last bill on the program. And the reason for that is: he does not know what it is going to say. He is still negotiating its contents. He is still doing his deals with the crossbenchers. Not only has Senator Conroy demanded that the parliament pass this legislation without due process, without due consideration, without any opportunity for interested parties to present their cases before committees and without any opportunity for proper debate; now, in what can only be described as the most absurd farce this wretched government has dragged this parliament into, we are being asked to consider a bill, and pass it, which refers again and again to the Public Interest Media Advocate. Again and again, it runs through the bill: ‘The PIMA does this,’ ‘The PIMA does that,’ ‘The PIMA has this responsibility,’ ‘The PIMA must use his or her best endeavours,’ ‘If the PIMA accepts the variation,’ and ‘Before making a decision the PIMA must’—it goes on and on and on. That is what this bill is all about.

Yet we do not know what the PIMA is going to be, because the PIMA is defined as the Public Interest Media Advocate as established in the Public Interest Media Advocate Act 2013. Well, the Public Interest Media Advocate Bill 2013, which is the foundation of this whole exercise, is a work in progress. The Leader of the House does not know what it involves. The minister on the other side of the table does not know what the Public Interest Media Advocate will be. Who knows? Is this policy making on the run—legislation on the run? What sort of government is this? It is asking parliament to pass a law which vests enormous power in a public official, of which the identity, the nature, the term, the qualifications, the duties and even the number—we do not know whether the public interest advocate might not be a troika: three people; that is one of the things that has been put to them by the crossbenchers—all of that detail, is unknown. This is completely and utterly absurd.

I never thought the government would reach this low. But every time you think the government have plumbed the depths of absurdity and dysfunctionality, they find a new depth to which they can sink, and that is what they are doing tonight.

Now what are we debating? What is this Public Interest Media Advocate? Who is it? Who is she? Are there three? Are there five? Are they appointed for life? Do they have to be residents of a particular electorate? Are they appointed for three years or four years? What are their qualifications? We have no idea. And we have no idea because the government have no idea.

They have no concept of what they are doing and yet this is the work of a minister, Senator Conroy, the man famous for saying he is so powerful he can force business executives to wear red underpants on their heads. This is the work of a minister who said, only few days ago, that this whole package was non-negotiable and said: ‘There will be no bartering.’ I will tell you what: there is plenty of bartering going on tonight. Who knows what is being offered in return, because the Prime Minister realises that this is a test of confidence. In the House today, she was not prepared to say that the failure of these bills would be a vote of no confidence, but she knows her backbench are staring at oblivion ahead of them in the election. They know that they are being dug into a deeper and deeper hole by the incompetence of this crew.

You have to wonder whether there is not a sort of Manchurian candidate element, and I am not referring to the member for Griffith and his famous skills in Chinese. But we know that on the weekend before last there was a meeting at the Lodge at which Senator Conroy persuaded the Prime Minister that this media reform package—never has ‘reform’ been used as ill-advisedly as on this occasion—should be brought in with the demand that it be passed in four days. So it was presented to the cabinet as a fait accompli. It was decided at the Lodge by this group.

One of those present was the Leader of the House, the member for Grayndler, and I wonder whether there was not a bit of a Manchurian candidate element there. I wonder, given his notorious affection for the member for Griffith and his even more notorious lack of affection for Senator Conroy, whether he did not rub his hands in a Mr Burns imitation, welcoming this opportunity to create even more disaster for his boss. Who knows? The fact of the matter is this: we as legislators should be doing our work in a responsible way. Let’s reflect on this: the government is asking us to pass a law, this bill, which gives a person, an official, called the Public Interest Media Advocate, enormous powers over media acquisitions. Basically, the Public Interest Media Advocate can determine whether a media takeover can go ahead on the basis of concepts as wafty as public interest and public benefit—completely undefined.

From a legal point of view, it is a hopeless proposition that will only lead to uncertainty and political influence peddling, because we all know there is nothing more political than media acquisition. Why did the Hawke and Keating government allow Rupert Murdoch’s News Ltd to buy the Herald and Weekly Times in 1986 and create the concentration of daily newspaper ownership that they now keep complaining about? It was their creation—the whole transaction was written and directed by the Labor Party, and Paul Keating subsequently said it was done in order to pay back Fairfax for their unfavourable coverage of the Labor government. If you ever want proof that you should not allow wafty concepts like public interest to come into legislation like this, there you have it.

We have no idea who the Public Interest Media Advocate is. We do not know who is going to appoint them or how they are going to be appointed—that is all up in the air. All members—and I appeal to all members of this House: government members, crossbenchers and, of course, all our colleagues on the coalition side—should be ashamed that the government have presented this bill here. The government should be ashamed. If they do not have their ducks in a row, if they cannot deliver on their promise of no bartering with the crossbenchers and if they have to do a deal with the crossbenchers on the identity of the Public Interest Media Advocate, common sense dictates that we should move on to another matter of business. Then, if and when they finally reach some resolution, let them bring it back in and we can have a debate about who and what the Public Interest Media Advocate would be. Having determined that and having settled that, you can discuss the powers this Public Interest Media Advocate should have.

We know that the government have been infuriated by their treatment within newspapers, in particular within News Ltd newspapers. I said in this House only yesterday that they have taken a beating in the press, they have taken a beating on the ABC, they have taken a beating on the commercial broadcasters, and they have taken a beating in every pub, club, street corner, coffee shop and workplace around Australia, and they have taken that beating because they have been such a hopeless government and because they do things like this. This militant idiocy is serial incompetence. How can you seriously ask the parliament to consider a law giving enormous power to an official without knowing who that official will be and how that official will be appointed? That is what we are being asked to do tonight. That is the depth of the absurdity.

For the purpose of the remainder of my remarks, let’s assume that the Public Interest Media Advocate is a government official appointed in the manner that was originally proposed, before the non-bartering communications minister started doing his dirty deals with the crossbenchers. Let’s assume that it is still what they had before. What the government is saying is that, in order to protect diversity—which presumably means competition—you need to have a new official.

The reality is that we have a high degree of concentration in the metropolitan daily newspaper market; we know that. It was created by the Labor Party, or enabled by the Labor Party. But we also know that in the intervening nearly 30 years there have been enormous technological changes. The arrival of the internet and social media and all these other platforms has resulted in a vastly enhanced range of information sources. The Murdoch share of the newspaper market is as big as it was in 1986, when they bought the Herald and Weekly Times. But the newspaper share of the overall media and news information pie is much smaller and is getting smaller every day. That is a fact.

So, diversity is on the increase; it is improving. We are seeing more variety. People are much less dependent on any one source of information. I am not sure that I am enamoured of this neologism, but there is a new expression—multisourcing—which is the phenomenon that I think we all experience. We are getting our news and information from a combination of Twitter, Facebook and some online sources—the ABC, commercial radio, online newspapers and blogs and of course, from time to time, even hard copy. All of that has dramatically changed the way news is being looked at. So you would have to say that if you were concerned about concentration in the Australian media you would be comforted, really, by the technological changes we are experiencing at the moment. That, of course, is why the government’s claim that this is all about protecting diversity is such humbug. It has no credibility.

Having created the lack of diversity, at least in the metropolitan newspaper market, they are now, just as we are seeing more diversity, trying to insert this new official. And you also have to ask yourself: if you are concerned about monopolies being created, or a substantial lessening of competition, doesn’t the ACCC do that already? Isn’t the ACCC there to regulate competition laws? And didn’t the ACCC recently stop Kerry Stokes buying a greater share in Fox? That was the system working. The laws are there. It is a remarkable thing—but I suppose we should not be surprised, given the events of the last hour or so—that here you have, for the first time in our peacetime history, the government creating a public official answerable to the government who would have an involvement in, oversight of and influence over the content of newspapers.

It is remarkable, isn’t it, that there has been no effort to deliver a regulatory impact statement. A regulatory impact statement should be produced with every piece of legislation. This is, on any view, a very big deal. The RIS requires a number of things to be done. One of them is to ask: ‘What exactly are you trying to achieve? What are the objects? What is the mischief? What is the problem we are trying to address?’ We have asked the Prime Minister several times now in question time: ‘Give us an example of the problem you are seeking to address. What has gone wrong? What requires you to take this new step?’ And of course she has not been able to provide any such evidence. No, she does not have any explanation for it. And then the RIS would ask: ‘What are the impacts on the industry? What are the costs and benefits associated with this additional regulation?’

I remember when the Rudd government was elected they were going to cut red tape. They were also going to do a cost-benefit analysis of major infrastructure projects. There were a lot of things they were going to do, and of course there were a few things they were not going to do, too, such as a carbon tax. So, keeping promises has never been a strong suit. But this is a classic case of where there should have been a careful, sober, objective analysis of what the problem is, what the options are for dealing with it, how this proposal measures up. But we see none of that. We see this hectic rush to get the legislation passed, and no-one is given any explanation for why it is so urgent. We recall—I think it was about 18 months ago, or perhaps a little longer—when the phone hacking scandal emerged in the United Kingdom. The Prime Minister leapt on that and said, in her best effort to appear chilling, that News Limited had hard questions to answer. And of course News Limited’s response was to ask, ‘What are those questions?’ She could not nominate any of those questions. What she was trying to do, of course, was to take advantage of the disgraceful and indeed criminal conduct by employees of news in the United Kingdom and somehow or other taint the organisation here with the responsibility for that.

But it has to be said that the phone hacking offences that were committed in the United Kingdom were serious breaches of British criminal law. Whatever criticisms can be made of the police over there in the past, the fact is that people are being arrested, people are being charged, people will be brought to trial and perhaps several of them will spend time in jail as a consequence. The criminal justice system is working there—and it is perhaps somewhat overdue. But there has been no counterpart to that in this country. We have had no evidence of any atrocities of that kind. The only offence the News Limited papers seem to have committed is not running headlines every day saying what a fabulous job the Prime Minister is doing! Well, they actually had a piece in the Telegraph today saying much the same thing—but it was a satirical column. It is very difficult to expect a government to be happy with the media, but to seek to regulate it simply because you are unhappy with the headlines and the treatment is really the stuff of authoritarianism. That is why the various proprietors and chief executives and editors have been so critical.

Just looking at some of the feedback on this public interest test in terms of media acquisitions, I note that Graeme Samuel, the former chairman of the ACCC, who obviously knows a great deal about competition law, said:

The public interest is extremely difficult to define and has a tendency to morph into a political interest. It would give those in government greater control over the media.

And he is quite right. I note also—and Free TV, which is the industry body of the free-to-air television stations made this point, and it is a very powerful one—that they pointed to the uncertainty and subjectivity of the public interest test as introducing, as I have said earlier, a very high degree of complexity, as well as an increased likelihood of contested results. They said:

For example in the UK, consideration of the BSkyB/ITV case took more than three years to resolve, including references to both the Competition Appeal Tribunal and Court of Appeal. It has been observed that one of the problems with the public interest test in the UK is that too much discretion is given to regulators, which leads to contested decisions. Again, this leads to uncertainty for industry.

In my youth, I used to practice in the area of broadcasting law and I have been involved in a professional way with many of the big media takeovers in Australia. I represented Kerry Packer when he sold the Nine Network to Alan Bond. I represented him when he bought it back. I was involved in restructuring Network Ten. I sold Network Ten on behalf of Westpac, who owned it after it had gone into receivership. And there were many other transactions involving Fairfax and so forth. This is an area of practice I am very familiar with—media acquisitions.

I can say without any shadow of doubt that they are always intensely controversial and intensely political. The best practice is to keep the politicians out of it because what would-be proprietors will always do, if they need a political approval—and it does not matter who is in government—is that they will offer fine headlines, good coverage and good return for some sort of governmental approval. We are better off not creating that temptation if we can possibly avoid it.

That is why, in this industry of all industries, the merger rules should be absolutely black and white. There are some very clear ownership limitations in the Broadcasting Services Act. They have changed over the years but they are very clear, black and white rules about overlapping ownership and concentration of ownership. The laws relating to competition in the Competition and Consumer Act are, again, very well understood. They are litigated from time to time but there is a huge body of law and juris prudence around them and people are familiar with it.

To introduce this into the media landscape is simply designed to ensure a highly political process because the way it is proposed to work is that, if the Public Interest Media Advocate thinks there is any diminution in voices—that is to say, in any acquisition by definition it is going to result in some diminution of voices because one media outlet is going to buy an asset, a competitor, a rival or whatever—the Public Interest Media Advocate then has to weigh up whether that is in the public interest or of public benefit—a completely and utterly undefinable term. That inevitably will result in a highly intense political argument.

I cast my mind back to the Fairfax takeover in 1991. Earlier in the year I had assembled the Toorang group with Conrad Black, Kerry Packer and other colourful individuals on one side and Tony O’Reilly on the other. Everyone was running down trying to get okays from Canberra because, of course, there was a political element because there were foreign ownership considerations on both sides. You cannot get around that, and the Foreign Acquisitions and Takeovers Act is there for the long term.

This law would add an entirely additional political element. It would give the politicians more discretion. You can say, yes, there will be this regulator who will act completely independently but that regulator will be appointed by government and government will expect him or her to do the right thing. All of those temptations will be there. As I said right at the outset of my remarks, in this new depth of absurdity, even for this government, we do not even know who this all-powerful official or officials will be. At the present time we have no idea, nor does the government, what the identity of the Public Interest Media Advocate will be.

Honourable members could quite legitimately take very different approaches to this bill, depending on whom that Public Interest Media Advocate could be. Some members might be attracted to it, depending on how the Public Interest Media Advocate is appointed. And so the logical thing, of course, is to deal with it at the outset.

It is hard to understand why the government is rushing into this in the way it is. It is very difficult to see where the urgency arises. Kerry Stokes, the chairman of Seven West, spoke for a lot of people when he said:

I can only recall legislation passed in this haste in the wake of 9/11.

That was a time when we all felt, with more than a little justification, in Australia and in the Western world generally, that we were under almost existential threat. That was a time of war and there was enormous anxiety, and legislation was rushed through. But where is the urgency here? What is the imperative? What is the reason for this? Some people have speculated that the Prime Minister is just looking for a distraction but I am not quite sure what it is a distraction from. Is she trying to distract people from her other failures and so create a dysfunctional mess that is so great that it distracts people from the other dysfunctional messes? Is Senator Conroy smarting under the realisation that the NBN project is going to miss its targets yet again and, under its current rate of construction, it could take over a century to complete the build?

Mr Irons interjecting—

Mr TURNBULL: They would no doubt have to lift their pace, as the member reminds me. What is the distraction? What is the explanation? We have none. As I said, we have been told that there will be no bartering but what we know is going on now behind closed doors is just that.

This is a bad law. There is no justification for involving the government anymore than it is already in media acquisitions. We have adequate laws to deal with competition. If there are threats to diversity, the competition laws can deal with them. And we can be comforted by the reality that diversity is increasing, not diminishing, thanks to technology. The idea of having a new official overseeing the content of newspapers, which is the subject of another bill, is disgraceful. The idea that we would for the first time in our peacetime history have the government involved in the content of newspapers is surely a shocking step and one that, were it ever to be contemplated, be taken with great care and after due consideration.

But tonight we are the victims of a tragic farce. We are here, as I have said, considering a law which will place a government official, an entity, a Public Interest Media Advocate, a PIMA, in charge of media acquisitions, and we do not know what that PIMA will be. We do not know who the person will be, who will appoint that person or what their term will be. We know nothing, because the PIMA bill itself is the one that is being negotiated, with bartering and backroom deals going on with the Independents. Surely this is a government that has sunk very low before, but this must be its lowest moment. This is the moment when it has not only made a farce of its own efforts but sought to make a farce and, in doing so, dishonour this parliament, insult this parliament, insult the intelligence and responsibility of this parliament and, of course, the millions of Australians whom we all represent.

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