The federal government’s controversial Big Tech media bargaining code has passed Parliament with bipartisan support, despite a number of crossbench senators raising concerns that small and regional publishers will miss out entirely.
The bargaining code legislation, which will force designated companies into ‘final offer’ arbitration as a last result with media firms to determine revenue sharing deals, was passed by the Senate on Wednesday.
The code also requires designated companies to provide advance notice of relevant algorithmic changes as a result of human intervention.
Treasurer Josh Frydenberg announced on Tuesday afternoon that the government had struck a deal with Facebook to make a number of last-minute changes to the bargaining code legislation in exchange for the social media firm reversing its block on news content.
The amendments were moved in the Senate late on Tuesday and the subject of heated debate on Wednesday morning, with crossbench senators claiming they amount to a capitulation from the government, with the code no longer supporting smaller media players.
The last-minute amendments include the introduction of a two-month mediation period before the parties are forced into final offer arbitration, a requirement that the government consider commercial deals already made by the relevant parties before designating Facebook or Google, and a one-month notification period before the designation is made.
Despite announcing that news content would soon be allowed back on Facebook, in a statement the company said that it has retained the right to decide if news appears on its platform so that it is not forced into arbitration.
The legislation was passed by the Senate on Wednesday morning with the support of the Opposition, despite criticisms from the Crossbench and the Greens on the final amendments made by the government, and concerns that no-one will actually be designated under it.
The government’s amendment was supported in the Senate by government and Labor senators, with only the Greens, Centre Alliance and independent senators voting against it.
Concerns centred on how the amendments undermined the intent of the code, watered down the final offer arbitration and gave the government an out to not designate either companies under the code.
Crossbench Senator Rex Patrick, who was previously in support of the code, said the changes signalled a “complete back down from the government in the face of the pressure”, raise the threshold for arbitration and will mean the “little guys miss out again”.
While the code has now passed into law, it does not truly come into effect until the Treasurer moves to designate either Facebook or Google.
With the new amendments and Google having already signed a number of deals with large Australian media companies for its Showcase service, the government may not move to designate the search engine giant.
The Coalition also has room to not designate Facebook if it also moves to make deals with the big players, and it may also move to block news content again if it becomes subject to the code.
Despite voting in support of the bargaining code legislation, a number of Labor Senators raised concerns about the functioning of the code and the consultation process behind it, along with the power left to the Treasurer to designate companies, without parliamentary oversight.
Labor Senator Deborah O’Neill said there are a number of unanswered questions around the designation process and called on the government to use more “precise” language around it.
“This move for delegated legislation, giving all the power to one person, and taking away the scrutiny of this place, the Australian people’s place, where they send us to stand up for them, is just a signature move by this government; it’s a concentration of power,” Senator O’Neill said.
Fellow Labor senator Tony Sheldon said that the code “fails to genuinely protect the media diversity that underpins our democracy”, while Senator Tim Ayres said that the code is “heavily weighted to the large media interests”.
Independent Senator Jacqui Lambie was the only parliamentarian to speak in complete opposition to the bargaining code before the amendments were moved, slamming the government, Opposition and Greens over the legislation on Monday.
“Every time a person shares a news story on Facebook with their friends and family, Facebook has to pay. Facebook is paying for someone else’s use of their platform, a platform they’re providing to that user for free. Something’s not right here; it’s not common sense,” Senator Lambie said.
“You’ve made the Australian media landscape more dependent on the success of Google and Facebook, not less…what a load of rubbish. This whole exercise has been so embarrassing. You’re all so desperate for positive press that you’re prepared to make bad policy the law of the land because you think it will make them like you.
“This is bad policy done bad, for bad reasons and for reasons of interests. Anybody who supports a strong public broadcaster should oppose this legislation. The Greens and the Labor Party should be embarrassed with themselves…it’s a shakedown. This is a bipartisan shakedown delivered by a consensus of absolute stupidity here this evening.”
Earlier in the lower house, shadow industry and innovation minister Ed Husic questioned the intent and motivation behind the margaining code.
“Does anyone really believe that the government did this for anything other than big interests in the media? They did it for the bigger interests in media. They did it for News Corp, they did it for Fairfax, they did it for the big commercial free-to-airs. That’s what they did it for,” Mr Husic said.
“Will it just mean that there is a transfer of wealth, out of the tech firms and into the shareholders, and we never see the benefit out of it? Because if that’s what happens then this whole process is a joke … if that happens it should be called out.
“There are some of us that are watching, and we will see if this genuinely leads to more and better journalism. I am all in favour of those revenues going towards that, but I’m not in favour of a transfer of wealth.”