Be wary of Ministerial discretion

One of the key features of the News Media Bargaining Code is the role of the Treasurer in ‘designating’ a digital platform. The legislative scheme lies dormant until brought to life by this act of ministerial discretion – hence the deals that Google and Facebook have struck with publishers around the country in a bid to avoid designation.

We’ve said in our submission to the Treasury review that we think this part of the scheme could be improved. For a start, the test the Treasurer applies is ambiguous with no guidelines around what amounts to ‘a significant contribution’ to the sustainability of the Australian news industry via these deals with publishers.

In addition – as Michael notes above – there is a lack of transparency and reporting under the scheme. This leaves doubt over the quality of information available to the Treasurer when making the decision to designate. Sure, the Treasurer will likely know about the news businesses that have not got a deal, but those that have will be sworn to secrecy.

Beyond this, there’s a more fundamental problem with the Treasurer making the decision. In our submission we point out that the authority given to ministers has been regarded as ‘broad and unfettered’ in comparison to the authority given to regulators and independent government agencies. The law considers it reasonable for a minister to take into account policy considerations in a way that it would not be appropriate for a government regulator to do.

This is different from the approach we’ve taken in Australia to decisions on media mergers: we leave mergers to independent agencies. The ACCC applies a test under the Competition and Consumer Act and the ACMA applies ‘bright line’ rules in the Broadcasting Services Act about shareholdings and other interests. In this way, we avoid the risk of powerful businesses trying to influence the decisions of elected officials who may, in some cases, benefit from these decisions.

None of this is to say that the holder of the office of Treasurer will be biased or unduly influenced in the act of designation, just that there’s a good case for requiring a more carefully constrained framework for making that decision in the public interest. In the environment of the NMBC, that means taking the decision away from the Treasurer and giving it to the ACCC.

Derek Wilding, CMT Co-Director

 

This article was first published in the CMT newsletter of 13 May 2022, which dealt with key issues of public interest - Election misinformation, radicalisation through social media and public interest journalism and more. Click to read the full edition here. If you want to receive this newsletter direct to your inbox, please subscribe here.