The public interest test that would be applied to major media company transactions under the government’s proposals would be vague and provide little certainty for either media companies or citizens concerned about media diversity. That’s clear from the draft bills for the package.
The bills implementing the package have been released this morning as the government moves to introduce them in the House of Representatives today, with the aim of debate and passage on Tuesday and debate and passage in the Senate on Thursday.
The bill implementing the public interest test, the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013, establishes a new class of regulated media, news media voices, which are television (free-to-air or subscription), commercial radio, newspaper or online publications that have audiences or paying subscribers above 30% of the average metropolitan commercial television evening news audience — currently around 59,000 people. Any transactions and acquisitions from the moment of introduction into the House of Reps today involving news media voices will have to meet a public interest test.
However, the test itself remains profoundly vague. There are no criteria for how the test will be implemented (by the Public Interest Media Advocate, a new position). The test is simply:
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“the applicant satisfies the PIMA that the relevant control event will not result in a substantial lessening of diversity of control of registered news media voices; or
the PIMA is satisfied:
that the relevant control event is likely to result in a benefit to the public; and
that the benefit outweighs, or would outweigh, the detriment to the public constituted by any lessening of diversity of control of registered news media voices that would result from the relevant control event.”
This lack of detail raises some key questions. The issue of what constitutes “substantial lessening” has been addressed under competition law for decades, although the lessons of competition don’t necessarily translate perfectly to diversity. But “diversity” is still a nebulous concept even when confined to ownership. Does it relate to the entire media industry, or can it relate to specific sub-sectors eg. would a News Ltd buy-out of Telstra’s stake in Foxtel represent a substantial lessening of diversity despite being confined to the subscription TV sector? Does a buyout of regional media fail the test because of serious local impacts even when there are no national implications?
And then there’s the issue, which will be crucial because the proponents of more or less any major transaction will argue that the transaction is in “a benefit to the public”, of how “benefit” is measured — is it purely economic, or does it embrace vaguer concepts like a “marketplace of ideas” and diversity of voices (as opposed to diversity of control).
The PIMA may well be grappling with these issues in parallel with the ACCC, which is likely to be considering the impact of the same transactions on specific markets like advertising.
This goes to the heart of the problem with a public interest test: if Communications Minister Stephen Conroy had to include a definition of substantial lessening of diversity, or of how the public benefit should be assessed, what would he include beyond motherhood statements? The UK public interest test includes issues such as share of voice and accuracy of news reporting, but these don’t get very far in addressing the problem.
The result is that both media companies and supporters of media diversity will have little clarity about how the test will be implemented, except by considering the previous views of a PIMA appointee. An Allan Fels might be dreaded by media companies; a David Flint considered a disaster by supporters of media diversity.
Significantly, the bill establishing the Public Interest Media Advocate also doesn’t contain a provision for consultation with the opposition, although Conroy said earlier this week the appointment would be “in consultation with the opposition”. Instead, the minister is only required to consult with Australian Communications and Media Authority and the ACCC, as well as any other media bodies deemed appropriate, and the appointment will only be made by written instrument, which means it is not disallowable by parliament. The Minister’s office, however, pointed out the commitment was made in the Second Reading Speech for the Bill as well.
The bills will be referred to a Senate committee, with the government pushing for it to report by next Thursday; the Coalition has pushed for a June reporting date. It is understood the Greens will back the government’s deadline.