Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TREASURY LAWS AMENDMENT (NEWS MEDIA AND DIGITAL PLATFORMS
MANDATORY BARGAINING CODE) BILL 2021
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the
Treasurer, the Hon Josh Frydenberg MP)
Table of contents
Glossary................................................................................................. 1
General outline and financial impact ...................................................... 3
Chapter 1 News Media and Digital Platforms Mandatory
Bargaining Code - Parliamentary Amendments .......... 5
Chapter 2 Statement of Compatibility with Human Rights .......... 11
Glossary
The following abbreviations and acronyms are used throughout this
explanatory memorandum.
Abbreviation Definition
Competition and Consumer Competition and Consumer Act 2010
Act
The ACMA The Australian Communications and Media
Authority
The Bill Treasury Laws Amendment (News Media
and Digital Platforms Mandatory Bargaining
Code) Bill 2021
The Code News Media and Digital Platforms
Mandatory Bargaining Code
1
General outline and financial impact
News Media and Digital Platforms Mandatory Bargaining Code
- Parliamentary Amendments
The Parliamentary Amendments to the Bill:
• amend the process to designate a digital platform service under
the Code, so that when the Minister is deciding whether to
designate a digital platform service, the Minister must:
- provide notice to the responsible digital platform
corporation that the Minister is intending to designate the
digital platform service;
- not designate the digital platform service until 30 days
after the notice is given;
- consider whether the digital platform has made a
significant contribution to the sustainability of the
Australian news industry through agreements for news
content, including through remuneration; and
• amend the non-differentiation provision to clarify that it does not
prevent commercial agreements; and
• add a new mediation process for registered news businesses and
designated digital platforms reach commercial agreements.
Date of effect: The day after the Bill receives the Royal Assent
Proposal announced: These amendments have not previously been
announced.
Financial impact: Nil.
Human rights implications: The amendments do not affect the analysis
of the human rights issues provided for in the Explanatory Memorandum
to the Bill. See Statement of Compatibility with Human Rights --
Chapter 2
Compliance cost impact: The amendments are not expected to
substantially alter the cost impact outlined in the Explanatory
Memorandum to the Bill.
3
Chapter 1
News Media and Digital Platforms
Mandatory Bargaining Code -
Parliamentary Amendments
Outline of chapter
1.1 The Parliamentary Amendments to the Bill:
• amend the process to designate a digital platform service under
the Code, so that when the Minister is deciding whether to
designate a digital platform service, the Minister must:
- provide notice to the responsible digital platform
corporation that the Minister is intending to designate the
digital platform service;
- not designate the digital platform service until 30 days
after the notice is given;
- consider whether the digital platform has made a
significant contribution to the sustainability of the
Australian news industry through agreements for news
content, including through remuneration; and
• amend the non-differentiation provision to clarify that it does not
prevent commercial agreements; and
• add a new mediation process for registered news businesses and
designated digital platforms reach commercial agreements.
Comparison of key features of new law and current law
New law Current law
When deciding whether to include a When deciding whether to include a
digital platform in the Code, the digital platform in the Code, the
Minister must consider whether there Minister must consider whether there
is a significant bargaining power is a significant bargaining power
imbalance between Australian news imbalance between Australian news
businesses and the group comprised businesses and the group comprised
of the responsible digital platform of the responsible digital platform
corporation and all of its related corporation and all of its related
bodies corporate. The Minister must bodies corporate.
5
Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code)
Bill 2021
New law Current law
also consider whether that group has
made a significant contribution to the
sustainability of the Australian news
industry through agreements in
relation to news content of
Australian news businesses
(including agreements to remunerate
those businesses for their news
content).
The Minister is required to provide a The Minister is not required to give
responsible digital platform notice when designating a digital
corporation notice when designating platform service under the Code.
a digital platform service.
The Minister must not designate a The Minister can designate a digital
digital platform service under the platform service under the Code
Code, until 30 days after notice is immediately after Royal Assent.
given to the responsible digital
platform corporation.
A responsible digital platform A responsible digital platform
corporation cannot differentiate corporation cannot differentiate
between news media businesses by between news media businesses by
reason of their participation in the reason of their participation in the
code. However a responsible digital code.
platform corporation can
differentiate between news media
businesses on the basis of a
commercial agreement and can
remunerate different news media
businesses differently under different
commercial agreements.
The Bill requires a responsible The Bill requires a responsible
digital platform corporation and digital platform corporation and
news business corporation bargain in news business corporation bargain in
good faith for three months, enter good faith for three months and then,
into a mediation and then, if they if they cannot reach an agreement,
cannot reach an agreement during enter into an arbitration.
mediation, enter into an arbitration.
6
News Media and Digital Platforms Mandatory Bargaining Code - Parliamentary Amendments
Detailed explanation of new law
Changes to the designation process
The new designation criterion
1.2 The Parliamentary Amendments to the Bill add an additional
criterion for the Minister to consider, when deciding whether to designate
a digital platform service under the Code.
1.3 Previously, the Minister was required to consider whether there
is a significant bargaining power imbalance between Australian news
businesses and the responsible digital platform corporation group. The
amendments require that the Minister must also consider whether the
group comprised of the responsible digital platform corporation and all of
its related bodies corporate has made a significant contribution to the
sustainability of the Australian news industry through agreements in
relation to news content of Australian news businesses (including
agreements to remunerate those businesses for their news content).
[Amendment 1, paragraph 52E(3)(b)]
The new notice requirements
1.4 The Parliamentary Amendments to the Bill also introduce a
notice requirement under the Code when designating a digital platform
service. Previously the Minister was not required to provide notice when
designating a digital platform service under the Code, however, the
amendments provide that a responsible digital platform corporation notice
when designating a digital platform service. [Amendment 2, paragraph 52E(5)]
1.5 The Minister is required to provide a responsible digital platform
corporation notice when designating a digital platform service.
[Amendment 2, paragraph 52E(5)]
1.6 The amendments also provide that the Minister must not
designate a digital platform service under the Code, until 30 days after
notice is given to the responsible digital platform corporation.
[Amendment 2, paragraph 52E(6)]
Clarifications to the non-differentiation clause
1.7 The amendments clarify that digital platforms can enter into
commercial agreements with terms which are not identical without
breaching the non-differentiation clause.
1.8 Previously under the Bill a responsible digital platform
corporation cannot differentiate between news media businesses by reason
of their participation in the code. The amendments clarify that a
responsible digital platform corporation can differentiation between news
media businesses:
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Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code)
Bill 2021
• on the basis of a commercial agreement, which includes
remuneration, where the differentiation arises solely from
that amount of remuneration; and [Amendment 3,
paragraph 52ZC(4)]
• where:
- the responsible digital platform corporation has entered
into an agreement with a news media business, where the
news media business is required to provide a certain type
of content to the digital platform;
- the responsible digital platform corporation will ensure
that the content is ranked preferentially on the designated
digital platform; and
- the differentiation arises solely from that preferential
ranking.
[Amendment 3, paragraph 52ZC(5)]
1.9 Amendments are also made to clarify the news content to which
the non-differentiation clause applies. The non-differentiation provision
will only apply to covered news content which is contained in news
sources which regularly produce covered news content. [Amendment 3,
paragraph 52ZC(6)]
The new mediation process
1.10 The Parliamentary Amendments add a new mediation process in
between the bargaining and arbitration stages of the Code.
1.11 Previously, the Bill required a responsible digital platform
corporation and news business corporation to bargain in good faith for
three months and then, if an agreement is not reached, enter into an
arbitration. The amendments require a responsible digital platform
corporation and news business corporation bargain in good faith for three
months, then, if an agreement is not reached enter into a mediation.
[Amendment 4, section 52ZAI]
1.12 The mediator will be appointed by the ACMA and the mediation
must be undertaken in good faith. [Amendment 4, section 52ZAI]
1.13 The mediation will end when either:
• two months after the mediation commences;
• if the parties agree to extend the mediation by two months -
4 months after the mediation commences;
• when the parties agree to terminate the mediation; or
• the mediator decides to terminate the mediation if, having
regard to the conduct of the bargaining parties in the
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News Media and Digital Platforms Mandatory Bargaining Code - Parliamentary Amendments
mediation, the mediator considers that there are no
reasonable prospects of the bargaining parties reaching
agreement over each core bargaining issue.
[Amendment 4, section 52ZIC]
1.14 The amendments provide that the bargaining parties can only
commence arbitration after the end of the mediation. [Amendment 4,
section 52ZL(2)]
1.15 An arbitration between the bargaining parties can only
commence if:
• a mediation between the parties has occurred and no
agreement about the remuneration issue has been reached; or
• the parties voluntarily submit themselves to arbitration, at
least 10 days after the bargaining between the parties
commenced.
[Amendment 5, section 52ZL(2)]
1.16 Regulations may set out rules about the conduct of mediation.
These rules may be incorporated via a reference in the Regulations to
extrinsic materials and must apply as in force at the time the regulations
are made or at another fixed point in time. This is to ensure consistency
across mediations and provide certainty for bargaining parties. A
mediation must be conducted in accordance with any rules set out in the
Regulations. The regulations may also set out rules relating to the
payment of costs. [Amendment 4, section 52ZIB]
Corrections to the Explanatory Memorandum
1.17 At the end of paragraph 1.47 add:
• This code only applies to the extent a platform is making
covered news content available through those services
intentionally.
1.18 At the end of paragraph 1.202 before the full stop add:
• over the relevant period.
Application and transitional provisions
1.19 The Bill as amended will commence on the day after it receives
the Royal Assent.
9
Chapter 2
Statement of Compatibility with Human
Rights
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Treasury Laws Amendment (News Media and Digital Platforms Mandatory
Bargaining Code) Bill 2021
2.1 These Amendments are compatible with the human rights and
freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
2.2 The Parliamentary Amendments to the Bill:
• amend the process to designate a digital platform service under
the Code, so that when the Minister is deciding whether to
designate a digital platform service, the Minister must:
- provide notice to the responsible digital platform
corporation that the Minister is intending to designate the
digital platform service;
- not designate the digital platform service until 30 days
after the notice is given;
- consider whether the digital platform has made a
significant contribution to the sustainability of the
Australian news industry through agreements for news
content, including through remuneration; and
• amend the non-differentiation provision to clarify that it does not
prevent commercial agreements; and
• add a new mediation process for registered news businesses and
designated digital platforms reach commercial agreements.
Human rights implications
2.3 The Parliamentary Amendments do not engage any of the
applicable rights or freedoms.
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Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code)
Bill 2021
Conclusion
2.4 The Parliamentary Amendments are compatible with human
rights as they do not raise any human rights issues.
2.5 The Bill as amended is compatible with human rights as
provided for in the Explanatory Memorandum to the Bill.
12
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