Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (2024)

Outline of chapter

1.1 This Bill establishes a mandatory code of conduct to help supportthe sustainability of the Australian news media sector byaddressing bargaining power imbalances between digital platformsand Australian news businesses.

Context ofamendments

1.2 In December 2017, the Government directed the ACCC to inquire intothe impact of digital platform services on the state of competitionin the media and advertising services markets.

1.3 The ACCC’s Digital Platforms Inquiry Final Report wasreleased in July 2019. Among the key findings was that the majorplatforms are unavoidable trading partners for Australian newsbusinesses, and therefore possess substantial bargaining power overthese businesses.

1.4 The Government Response to the Digital Platforms Inquiry FinalReport, released on 12 December 2019, directed the ACCC to workwith major platforms and Australian news businesses to develop andimplement a voluntary code of conduct to address bargaining powerimbalances between digital platforms and media businesses.

1.5 The ACCC was to provide a progress report to the Government in May2020, with the code to be finalised no later than November 2020. Ifan agreement was not forthcoming, the Government would developalternative options, which could include a mandatory code (jointmedia release by the Prime Minister, Treasurer, Attorney-Generaland Minister for Communications, Cyber Safety and the Arts, dated12December2019).

1.6 The Government requested an update on progress towards a voluntarycode from the ACCC ahead of May 2020. This update noted that whilediscussions between the parties had been taking place, progress ona voluntary code had been limited. The ACCC considered it unlikelythat any voluntary agreement would be reached with respect to thekey issue of remuneration for content.

1.7 On 20 April 2020, the Government directed the ACCC to develop amandatory code of conduct. This reflected:

• that the Australian media sector was already under significantpressure, which was being exacerbated by a sharp decline inadvertising revenue driven by the Coronavirus; and

• the advice of the ACCC that digital platforms and news businesseswere unlikely to reach voluntary agreement on the key issue ofrevenue-sharing (joint media release by the Treasurer and theMinister for Communications, Cyber Safety and the Arts, dated 20April 2020).

Summary of new law

1.8 The Bill establishes a mandatory code of conduct to addressbargaining power imbalances between digital platform services andAustralian news businesses.

1.9 It does this by setting out six main elements:

• bargaining - which requires responsible digital platformcorporations and registered news business corporations that haveindicated an intention to bargain, to do so in good faith;

• compulsory arbitration - where parties cannot come to anegotiated agreement about remuneration relating to the makingavailable of covered news content on designated digital platformservices, an arbitral panel will select between two final offersmade by the bargaining parties;

• general requirements - which require responsible digitalplatform corporations to provide registered news businesscorporations with advance notification of planned changes that arelikely to have a significant effect on covered news content;

• non-differentiation requirements - responsible digitalplatform corporations must not differentiate between the newsbusinesses participating in the Code, or between participants andnon-participants, or between non-participants because of mattersthat arise in relation to their participation or non-participationin the Code;

• contracting out - the Bill recognises that a digital platformcorporation may reach a commercial bargain with a news businessoutside the Code about remuneration or other matters. It providesthat parties who notify the ACCC of such agreements would not needto comply with the general requirements, bargaining and compulsoryarbitration rules (as set out in the agreement); and

• standard offers - digital platform corporations may makestandard offers to news businesses, which are intended to reducethe time and cost associated with negotiations, particularly forsmaller news businesses. If the parties notify the ACCC of anagreed standard offer, those parties do not need to comply withbargaining and compulsory arbitration (as set out in theagreement).

1.10 The Bill provides that the Minister may designate a digitalplatform corporation and digital services that must comply with theCode. The Minister may only designate a digital platformcorporation and services if the Minister has considered whetherthere is a significant bargaining power imbalance betweenAustralian news businesses and the digital platformcorporation’s corporate group. In forming a view, theMinister may consider ACCC reports or advice.

1.11 A responsible digital platform corporation for a digital platformservice is required to participate in the Code if the Minister hasmade a determination that a service is a designated digitalplatform service of the corporation.

1.12 The responsible digital platform corporation will be either:

• a related body corporate (of the corporation identified in theMinisterial determination) that is incorporated or managed inAustralia and operates or controls the designated digital platformservice; or

• if that subsidiary does not operate or control the digital platformservice by itself or with one or more other entities - thedesignated digital platform corporation.

1.13 For a news business corporation to participate, it must beregistered by the ACMA. The ACMA must register a news business (andthe applicant corporation as the registered news businesscorporation) if the applicant had an annual revenue above $150,000in the most recent year or in three of the five most recent years,and the news sources comprising the news business:

• have the primary purpose of creating and publishing core newscontent;

• are subject to relevant professional journalistic standards;and

• operate predominantly in Australia for the dominant purpose ofserving Australian audiences.

1.14 Once a news business corporation is registered by the ACMA, eachresponsible digital platform corporation that operates or controlsa designated digital platform service must comply with the generalrequirements with respect to each registered news business.However, this is subject to any agreement outside the Code whichcontracts out of the general requirements.

1.15 Once a news business corporation is registered by the ACMA, it maygive notice of an intention to bargain under the Code with aresponsible digital platform corporation that operates or controlsa designated digital platform service in relation to its coverednews content.

1.16 One or more registered news business corporations may form a groupfor the purpose of bargaining collectively with a responsibledigital platform corporation under the Code. The collective maynominate one of the group members or a third party to represent thegroup during the bargaining process.

1.17 The Bill specifically authorises collective bargaining so that itdoes not contravene the restrictive trade practices provisions inthe CCA. Nothing in the Bill is intended to prevent news businesscorporations from engaging in discussions with one another aboutforming a collective. This is because forming a collective isauthorised under the Bill.

1.18 If a registered news business corporation or collective hasindicated an intention to bargain, a responsible digital platformcorporation and a registered news business corporation mustnegotiate in good faith. Breaches of this requirement are subjectto a civil penalty.

1.19 If an agreement is not reached between the parties within threemonths of the registered news business corporation indicating anintention to bargain, the matter will be subject to compulsoryarbitration if the news business elects to begin arbitration.

1.20 If a responsible digital platform corporation and a registered newsbusiness corporation are subject to compulsory arbitration, anarbitral panel chosen by the bargaining parties (or by the ACMA ifthe parties fail to agree on panel members) will select between thefinal offers made by the parties.

1.21 Both parties must submit a final offer to the arbitral panelstating a remuneration amount. The amount must be expressed as alump sum and is the amount of remuneration to be paid by theresponsible digital platform corporation to the registered newsbusiness corporation in relation to making its covered news contentavailable on a designated digital platform service.

1.22 The arbitral panel must accept one of those offers, unless itconsiders that the final offers are not in the public interest, inwhich case the arbitral panel may amend the more reasonable of thetwo offers. This is expected to happen in very limitedcircumstances.

1.23 The Bill provides that a review of the Code will begin within oneyear of the commencement of the new law.

1.24 All legislative references in this Chapter are to the CCA, unlessotherwise specified.

Comparison of keyfeatures of new law and current law

Detailed explanation ofnew law

1.25 This Bill establishes a mandatory code of conduct to help supportthe sustainability of the Australian news sector by addressingbargaining power imbalances between digital platforms andAustralian news businesses.

Deals outside the Code- contracting out

1.26 Nothing in the Bill prevents a responsible digital platformcorporation from reaching a commercial agreement outside the Codewith a news business corporation about the matters subject to theCode. [Schedule 1, item 1, sections 52ZZI and52ZZJ]

1.27 The Bill provides a pathway for a commercial agreement to bereached outside the Code between a responsible digital platformcorporation and a news business corporation about the mattersregulated by the Code. The Bill allows agreements to disapply thegeneral requirements, bargaining and arbitration for the partiesmaking the agreement with respect to their obligations to eachother. [Schedule 1, item 1, sections 52ZZI and52ZZJ]

1.28 However, an agreement to disapply parts of the Code must be reachedbefore a determination has been made under the arbitration processor before an information request is complied with under the Code. [Schedule 1, item 1, section52ZZL(3)]

1.29 An agreement outside the Code may also relate to one or morenon-designated digital platform services, including remunerationfor such services. Such an agreement may contain clauses thatprevent the news business from utilising the Code for one or moredesignated digital platform services of that responsible digitalplatform corporation. [Schedule 1, item 1, sections 55ZZJ(4)(d) and52ZZL(1)(f)]

1.30 Nothing in the Bill restricts the terms on which an agreementoutside the Code can be made with news business corporations ingeneral. [Schedule 1, item 1, section52ZZM]

Standard offers

1.31 A responsible digital platform corporation may make a standardoffer to a corporation that operates or controls a news business,by itself or together with other corporations. A news businesscorporation must be registered under the new Part IVBA to accept astandard offer. [Schedule 1, item 1, section52ZZJ]

1.32 Regulations may be made that restrict standard offers to a class ofregistered news business corporations. If no regulations are made,the responsible digital platform corporation must make the standardoffer to every registered news business for the offer to berecognised by the Code. [Schedule 1, item 1, section52ZZJ(2)]

1.33 A standard offer may be made that relates to one or more designateddigital platform services of the responsible digital platformcorporation in respect of remuneration or other matters. [Schedule 1, item 1, section52ZZJ(5)]

1.34 A registered news business corporation that becomes bound by astandard offer may receive the benefit of the general requirements.However, becoming bound by a standard offer may prevent aregistered news business corporation from utilising the bargainingor arbitration Divisions of the Code. [Schedule 1, item1, sections 52ZZJ(4) and 52ZZK(4)]

1.35 A responsible digital platform corporation may also make a standardoffer relating to one or more non-designated digital platformservices on terms that include that the registered news businesscorporation would not be able to utilise the Code for one or moredesignated digital platform services of that digital platformcorporation. [Schedule 1, item 1, section52ZZJ(4)]

1.36 A standard offer will not exclude bargaining or arbitration if,before the agreement became binding, a registered news businesscorporation has notified the responsible digital platformcorporation that it wishes to bargain. [Schedule 1, item1, section 52ZZK(3)]

1.37 Standard offers must have a duration of two years in order to bevalid under the relevant provisions of the Code. [Schedule 1, item1, section 52ZZJ(4)]

Process for making astandard offer

1.38 A responsible digital platform corporation may choose if and whenit wishes to make a standard offer for a future two year period toregistered news business corporations. [Schedule 1, item1, sections 52ZZI and 52ZZJ]

1.39 A standard offer remains open for a period of 60 days unlessotherwise prescribed in regulations. If a registered news businesscorporation wishes to be bound by the standard offer, it mustaccept the offer during the offer period. [Schedule 1, item1, sections 52ZZJ(3) and (8)]

1.40 At the end of the offer period, the offer becomes binding on theresponsible digital platform corporation and all registered newsbusiness corporations who accepted the offer. [Schedule 1, item1, section 52ZZK]

1.41 During the offer period, a responsible digital platform corporationmay withdraw the standard offer, in which case the offer will notbe binding under the Code. A registered news business corporationmay revoke any acceptance of the standard offer during the offerperiod. [Schedule 1, item 1, section52ZZJ(3)]

1.42 The content of the standard offer can be determined by theresponsible digital platform corporation. The regulations mayprescribe features that must be included in a standard offer inrelation to remuneration. [Schedule 1, item1, section 52ZZJ(5)]

1.43 For example, the regulations could set out that remuneration shouldbe based on a percentage of the cost of producing covered news. Aresponsible digital platform corporation would then need to decidewhat percentage would be appropriate and include this as a term inany standard offer.

1.44 The standard offer provisions do not prevent the responsibledigital platform corporation reaching agreements with registered orunregistered news businesses through other similar processes (forexample, offers to certain kinds of news businesses, or offerssubject to deadlines for acceptance).

Which digital platformsmust participate in the Code?

1.45 A digital platform must participate in the Code if one or more ofthe services it operates or controls has been designated by theMinister as a designated digital platform service. Thedetermination will also specify the corporation as the designateddigital platform corporation. [Schedule 1,item1, section 52E]

1.46 In making a determination, the Minister must consider whether thereis a significant bargaining power imbalance between Australian newsbusinesses and the group comprised of the corporation and all ofits related bodies corporate. The Minister may consider any reportsor advice of the ACCC. [Schedule 1, item 1, sections 52E(3), (4) and(5)]

1.47 ‘Digital platform’ is not defined in the Bill and isintended to take its ordinary meaning. It is intended that it willcapture platforms that deliver a wide variety of services such associal media services, search engines and other digital contentaggregators.

1.48 If a news business corporation wishes to approach a responsibledigital platform corporation to negotiate about its non-designateddigital platform services then it can do so in the ordinary courseof commercial dealings. The Code allows but does not require theresponsible digital platform corporation to bargain in relation tothose other non-designated digital platform services.

Responsible digitalplatform corporation

1.49 Under the Code, the party with whom the registered news businesscorporations must bargain is known as the ‘responsibledigital platform corporation’. This is also the partyresponsible for complying with the general requirements andnon-differentiation obligations.

1.50 The responsible digital platform corporation is either:

• an Australian corporation that is related to the corporationidentified in the Minister’s designation, that either byitself or together with other corporations operates or controls thedigital platform service in supplying services that are used byAustralians; or

• if there is no such corporation - the designated digitalplatform corporation for the designated digital platformservice.

[Schedule 1, item1, definition of ‘responsible digital platformcorporation’ in section 52A]

Which news businessescan participate in the Code?

1.51 To participate in the Code, a corporation must apply for their newsbusiness to be registered by the ACMA. An ‘applicantcorporation’ seeking to register a news business must alsoapply to be registered by the ACMA as a ‘registered newsbusiness corporation’ and demonstrate that they operate orcontrol that news business, either by themselves or together withother corporations. [Schedule 1, item 1, sections 52F and52L]

1.52 When registering a news business with the ACMA, an applicantcorporation must list each ‘news source’ that makes upthe news business. It must also provide a point of contact for thecorporation. [Schedule 1, item 1, section52F(2)]

1.53 If the ACMA considers that the applicant corporation and anynominated news business satisfies the eligibility criteria, then itmust register the applicant corporation as a registered newsbusiness corporation and register the news business. The ACMA mustalso endorse the registered news business corporation as operatingor controlling the particular registered news business. [Schedule 1, item 1, section52G]

1.54 The ACMA may endorse a registered news business corporation ascontrolling multiple news businesses, if the news businesscorporation operates or controls those news businesses, either byitself, or together with other corporations. [Schedule 1, item1, section 52L]

1.55 The general requirements part of the Code applies separately inrelation to each registered news business. [Schedule 1, item1, section 52Q]

1.56 A ‘news business’ means a news source or a combinationof news sources. A ‘news source’ includes:

• a newspaper masthead;

• a magazine;

• a television program or channel;

• a radio program or channel;

• a website or part of a website; or

• a program of audio or video content designed to be distributed overthe internet.

[Schedule 1, item1, definitions of ‘news business’ and ‘newssource’ in section 52A]

1.57 The definition of ‘news source’ also requires the newssource to produce and publish news content online. News content isintended to take its ordinary meaning under the Code. [Schedule 1, item1, definition of ‘news source’ insection 52A ]

1.58 In order for a news business to be registered, each news source ina news business must meet the following requirements:

• the content test;

• the Australian audience test; and

• the professional standards test.

[Schedule 1, item1, section 52G]

1.59 A news source cannot be registered twice. That is, the news sourcesset out in the news business corporation’s application cannotform part of another news business that is already registered. [Schedule 1, item 1, section52G(2)(b)]

1.60 The ACMA must publish the details of the registration on itswebsite, including the registered news business corporation’scontact point for the purposes of facilitating communicationbetween the registered news business and the responsible digitalplatform corporation. [Schedule 1, item 1, section52G(3)]

1.61 A news business corporation is not required to nominate all of itsnews sources. It may select the news sources that it wishes tonominate, in any combination it chooses. [Schedule 1, item1, section 52F(3)]

1.62 However, all negotiation, bargaining and arbitration facilitated bythe Code applies only to the covered news content of those newssources. The Code does not apply to other content produced orpublished by the registered news business corporation. TheCode’s general requirements also only apply to covered newscontent of those registered news sources.

The revenue test

1.63 A news business corporation satisfies the revenue test ifeither:

• its annual revenue (or the annual revenue of a related bodycorporate) in the preceding year exceeded $150,000; or

• its annual revenue (or the annual revenue of a related bodycorporate) in at least three of the five preceding financial yearsexceeded $150,000.

[Schedule 1, item1, section 52M(1)]

1.64 This test is applied at the corporation level. A news businesscorporation does not need to show that the revenue was generatedby, or relates to, the operations of its news sources.

1.65 The revenue must be set out in the news businesscorporation’s (or the related body corporate’s) annualaccounts prepared with generally accepted accountingprinciples. [Schedule 1, item 1, section52M(1)]

1.66 If a news business corporation has acquired a news business overthe preceding five years, and the business’ previous annualrevenue is ascertainable from the annual accounts of its formerowner, this annual revenue can be used to support the revenue testof its new owner. This allows the revenue test to be applied tonewly acquired news businesses. [Schedule 1, item1, sections 52M(2) and (3)]

The content test

1.67 A news business satisfies the content test if the primary purposeof each news source is to create and publish core news content. [Schedule 1, item 1, section52N(1)]

1.68 Content does not need to be created solely for the purpose ofpublishing it online, noting the definition of a news sourcerequires the publication of news content online. For example, atelevision news broadcast may be produced primarily for atelevision audience but it would satisfy the content test if it isalso published online.

1.69 It is intended that a news source can be considered to have createdcontent even if it commissions or otherwise obtains the contentexternally.

1.70 Core news content is content that reports, investigates orexplains:

• issues or events that are relevant in engaging Australians inpublic debate and in informing democratic decision-making; or

• current issues or events of public significance for Australians ata local, regional or national level.

[Schedule 1, item1, definition of ‘core news content’ in section52A]

1.71 Core news content can relate directly to matters of public policyand government decision-making at any level of government. However,it can also include other matters of public significance, such asreporting on law and order, health, education, environmentalissues, science, industrial relations and business.

1.72 It also includes coverage of current issues or events where theseare of public significance at a local, regional or national level.Reporting on community issues or events is considered core newscontent if they are of public significance. Matters that areprincipally private or special interest are not intended to beincluded.

1.73 Pure opinion or commentary on news content will generally not beconsidered core news. Applicant corporations seeking to includeopinion based or editorial content will need to demonstrate how thecontent plays a significant role in reporting, investigating orexplaining issues that are relevant in engaging Australians inpublic debate and in informing democratic decision-making.

1.74 There is no requirement that the content be produced by ajournalist. For example, news content produced by a team forbroadcast television and radio could meet the definition of corenews content.

1.75 The level of core news content a news source publishes mayfluctuate over the course of a year taking into account holidayperiods and peak news periods such as election cycles. The policyintent is that these variations will not cause a news business tofail the content test. [Schedule1, item 1, section52N(1)]

Example1.1 Application of ‘content test’ to online newsbusiness

Maurice Media (MM) is an Australiancorporation that produces a news website called A+ Articles, whichreports on Australian economic, business and political issues. MMalso produces a news podcast called A+ Articles: Audio, which ishosted on the A+ Articles website, and provides a shortened audioversion of its online news articles in the form of a daily newsbriefing.

In addition, MM publishes a separate websitecalled Access: Aussie Rules, which provides match scores, a blog ofmatch highlights, and a footy tipping competition for an AustralianRules football league.

MM seeks to register as a news businesscorporation under the Code, and nominates A+ Articles (the website)and A+ Articles: Audio (the podcast) as the news sources which makeup its news business for the purpose of the bargaining Code.

MM chooses not to nominate the Aussie Ruleswebsite as a news source for the purpose of the Code because itsprimary purpose is not the provision of core news and it would notmeet the content test.

MM satisfies the other tests forregistration. The ACMA registers MM as a registered news businesscorporation, registers a news business consisting of A+ Articlesand A+ Articles: Audio, and endorses the control relationshipbetween the news business corporation and news business.

Example1.2 Application of ‘content test’ to online andoffline news business

Commercial Broadcast Network (CBN) is amajor Australian commercial free-to-air television network. CBNairs a wide variety of programs, including several dedicated newsand current affairs programs. CBN also broadcasts a series oflighter ‘infotainment’ programs, such as its dailymorning show, which includes a short regular news segment.

CBN offers a live stream of its televisionbroadcast online. It also runs a popular CBN news websiteconsisting of both original news articles and video clips fromacross its news programs and its morning show.

CBN applies to the ACMA to register a newsbusiness under the Code and lists its CBN news website and itsdesignated news and current affairs TV programs as its newssources. CBN decides not to include its daily morning TV show, asit cannot demonstrate that its primary purpose is creating corenews content.

The CBN news website and the designated newsand current affairs TV programs are considered eligible newssources under the content test.

The Australian audiencetest

1.76 A news business satisfies the Australian audience test if the newssources comprising its news businesses operate predominantly inAustralia for the dominant purpose of serving Australian audiences. [Schedule 1, item 1, section52O]

1.77 A foreign news business that only occasionally produces Australiannews content, or that has an Australian news segment, may have adominant purpose of serving Australian audiences, or thoseinterested in Australia, but does not qualify under the Australianaudience test unless it is also operating predominantly inAustralia. [Schedule 1, item1, section52O]

Example1.3 Application of ‘Australian audiencetest’ to international news outlet

Overseas News Network (ONN) is aninternational news organisation, headquartered in the UnitedKingdom. The ONN website provides a mix of UK domestic and worldnews, including an Australian news tab. This Australian tab linksto a page containing curated ONN articles and videos coveringAustralian news (or news of relevance to Australian audiences). ONNapplies to the ACMA, seeking to register a news business under theCode based solely on their Australian news page.

While ONN meets the content test byproviding core news content to Australians, the news business willbe ineligible based on the Australian audience test. This isbecause ONN is unable to show that its news business (theAustralian page on its website) operates predominately inAustralia, as it has no operations in Australia, and has no localnewsroom or locally-employed staff producing its news content.

The professionalstandards test

1.78 A news business satisfies the professional standards test if eachof the news sources in the relevant application has editorialindependence from the subjects of its news coverage and is subjectto a professional standard.

1.79 A news source is subject to a professional standard for thepurposes of the Code if:

• it is subject to the rules of the Australian Press CouncilStandards of Practice or the Independent Media Council Code ofConduct;

• it is subject to the rules of the Commercial Television IndustryCode of Practice, the Commercial Radio Code of Practice or theSubscription Broadcast Television Codes of Practice;

• it is subject to the rules of the Australian BroadcastingCorporation or Special Broadcasting Service codes of practice;

• it has internal editorial standards that are analogous to the abovementioned rules regarding internal editorial standards relating tothe provision of quality journalism;

• it is subject to rules specified in the regulations that replacethe above rules; or

• it is subject to other rules specified in the regulations.

[Schedule 1, item 1, section52P]

1.80 A news source has editorial independence from the subject of itsnews coverage if it is:

• not owned or controlled by a political or advocacy organisation(such as a political party, lobby group or a union); and

• not owned or controlled by a party that has a commercial interestin the coverage being produced (for example, a publication thatcovers a sport that is owned or controlled by the sport’sgoverning body).

1.81 The editorial independence requirement is not intended to exclude anews source that otherwise qualifies on all the tests, andoccasionally includes reporting about itself or a related business,or about an issue affecting itself or a related business.

1.82 However, an advocacy body that mainly publishes news about its ownsector will not meet the professional standards test.

Example1.4 Application of ‘professional standards test’to advocacy organisation

Caterers First is a lobby group in Australiathat advocates for catering industry policies and raises money forcatering industry events and causes. Caterers First employs a smallteam of journalists to produce Caterers First News - a newswebsite and daily email newsletter which reports on topicalAustralian catering news and events. Caterers First News has robustinternal editorial guidelines and processes to ensure it operatesat arm’s length from the lobbying side of the business.

Despite these internal measures, CaterersFirst News is unlikely to be eligible under the professionalstandards test. This is because the news source is controlled by anadvocacy organisation and reports exclusively on the subjectrelated to their advocacy work, raising legitimate concerns aboutits editorial independence.

Loss of eligibility ofa registered news business corporation

1.83 The ACMA may revoke the registration of a news business corporationif:

• one or more of the news sources that form part of the registerednews business form part of another registered news business; or

• the content, Australian audience or professional standards testsare no longer being met.

[Schedule 1, item1, sections 52H(1) and (2)]

1.84 A registered news business corporation for a registered newsbusiness must notify the ACMA as soon as practicable, in writing,if it is no longer eligible to be registered under the Code. [Schedule 1, item 1,section52J]

1.85 A failure to notify is subject to a maximum civil penalty of 600penalty units. [Schedule 1, items 7, 9 and 10, sections76(1)(a)(iaa), (1A)(bab) and (4A)(a)]

1.86 If a corporation is the registered news business corporation formultiple registered news businesses, and one of its registeredbusinesses has its registration revoked, the corporation remainsthe registered news business corporation for its other registerednews businesses.

1.87 It is intended that short term changes or fluctuations in the typeof content that a registered news business publishes will notresult in the registered news business being required to notify theACMA that they are no longer eligible. For example, if a registerednews business usually creates content that is core news content butfor one day after registering they cover more celebrity news thancore news content, they do not need to notify the ACMA that theyare no longer eligible.

Change in ownership ofa registered news business

1.88 The Code contains a process for the transfer of ownership ofregistered news businesses between registered news businesscorporations. A registered news business corporation must notifythe ACMA if they no longer operate or control (by themselves orwith other corporations) a registered news business. [Schedule 1, item1, sections 52J and52G]

1.89 A registered news business corporation can apply to the ACMA to beendorsed in relation to a news business which has already beenregistered and endorsed to another registered news businesscorporation. [Schedule 1, item 1, section52G]

1.90 If the ACMA is satisfied that the new applicant news businesscorporation has purchased the registered news business and is nowin control of, or operates the registered news business, the ACMAmay reflect the transfer of the ownership of the registered newsbusiness by endorsing the new applicant registered news businesscorporation. The ACMA will also revoke the endorsement of theprevious registered news business corporation. [Schedule 1, item1, sections 52G and 52H(6) and (7)]

Adding or removing anews source from a registered news business

1.91 A registered news business corporation can apply to the ACMA to addor remove a news source from one of the registered news businessesfor which it has been endorsed. [Schedule 1, item1, section 52K]

1.92 The addition or removal of a news source does not affect anyexisting agreements a registered news business corporation may havewith a responsible digital platform corporation. The registrationof a new news source does not trigger a right to bargain inrelation to the news source, until the next round ofbargaining.

False or misleadinginformation

1.93 The ACMA may revoke the registration of a registered news businessor registered news business corporation and the endorsement of anews business corporation for a news business if the ACMA considersthat the corporation gave the ACMA information that was false ormisleading in a material particular. [Schedule 1, item1, section 52I]

Generalrequirements

The generalrequirements - overview

1.94 Once a news business corporation is registered by the ACMA, eachdesignated digital platform service must comply with a number ofgeneral requirements. This includes general requirements whichrelate to covered news content of the registered news business. [Schedule 1, item 1, sections 52Q and52R]

1.95 A digital platform service can make available covered news contentin a number of ways, and the Code does not exhaustively detail allof these. However, the following are listed in the Code as ways aservice makes content available:

• the service allows for covered news content to be reproduced, orotherwise placed on the digital platform service, in whole or inpart (including in the form of snippets); or

• the service allows for links to covered news content to be placedon the service.

[Schedule 1, item1, section 52B]

1.96 The responsible digital platform corporation must ensure thegeneral requirements, including the minimum standards, are met.This reflects its responsibility for compliance, even if anotherentity in the corporate group carries out the task because, forexample, the other entity controls a relevant algorithm orpossesses relevant information. [Schedule 1, item1, section 52Q]

1.97 The minimum standards require the responsible digital platformcorporation to ensure registered news businesses are:

• provided with clear explanations of the types of data collected bythe designated digital platform service in relation to users’interaction with covered news content, where the designated digitalplatform service has shared this data with one or more otherregistered news businesses; and

• notified in relation to planned changes to designated digitalplatform service algorithms that are likely to significantly affectthe referral traffic to registered news businesses’ coverednews content.

[Schedule 1, item 1, sections 52R, 52S, 52V and52W]

1.98 The minimum standards extend beyond the core news content of thenews source of the registered news business to covered news contentproduced by the registered news business.

1.99 Covered news content is a broader category than core news contentand includes:

• core news content; and

• any other content that reports, investigates or explains currentissues or events of interest to Australians.

[Schedule 1, item1, definition of ‘covered news content’ in section 52Aand sections 52R, 52S, 52V and 52W]

1.100 Covered news content is intended to capture content includingsports and entertainment news such as interviews with coaches andplayers, reporting about the entertainment industry, coverage ofreality television and certain talk-back radio discussions.However, covered news content is not intended to include:

• broadcasts of sports games or publication of sports results orscores; and

• entertainment content such as drama or reality TV programming.

1.101 Further, covered news content is intended to exclude:

• specialty or industry reporting;

• information published by government, health, charitable orcommunity organisations for the purpose of informing thepublic;

• product reviews; and

• journals and publications intended primarily for academic, newscontent.

Example1.5 Covered news content - weather reporting

Michaels Weather Alerts (MWA) is a websitethat produces weather forecasts and alerts for weather in rural andregional Australia. MWA does not provide any commentary or analysison the weather or contain any other content. MWA is not producingcovered news content and cannot participate in the Code because theinformation is information published for the purpose of informingthe public.

1.102 The minimum standards apply to the broader category of covered newscontent, as many news businesses publish a mix of stories of broadinterest to cross-subsidise the production of core news content.Content that is neither covered nor core news does not benefit fromthe minimum standards. The cross-subsidisation business model meansthat it is important for registered news businesses to receiveinformation relating to, and can bargain over, a broader range ofcontent than just their core news content.

Example1.6 Core news content versus covered news content

Tom’s News Network (TNN) is a newsbusiness that produces several news websites. The websites focus onnational and regional political news reporting (considered corenews content in the Code), but also feature some sports reportingand entertainment news.

TNN applies to be registered by the ACMA toparticipate in the Code, nominating all its news websites as newssources. The ACMA finds that each source has the primary purpose ofproducing core news content and TNN meets all the other criteria.The ACMA registers TNN as a news business corporation.

The general requirements that theresponsible digital platform corporation must meet in the Codeapply in relation to all of the covered news content TNN produces,not just its political news and court reporting (core news), andmay include its sports reporting and entertainment news. This willallow TNN to gain a full picture of the performance of its storieson the digital platform service and to bargain with the responsibledigital platform corporation under the Code in relation to thiscontent.

Example1.7 Core and covered news content

Ros’ Review is a news business thatmaintains a website. The site features articles on topical issuesand events, written either by academics who are expert in the fieldor ‘in house’ by journalists who Ros’ Reviewemploys. Ros’ Review’s journalists also make editorialrevisions to the articles written by academics.

Ros’ Review applies to be registered bythe ACMA to participate in the Code, nominating its website as itssole news source. The ACMA finds that the site’s primarypurpose is the creation and publication of core news content andRos’ Review meets all the other criteria. The ACMA registersRos’ Review.

Even if a small portion of Ros’Review’s content would not be considered core news content,it would all be considered covered news content.

1.103 Information provided to registered news businesses by theresponsible digital platform corporation under all the generalrequirements must be provided in terms that are readilycomprehensible. [Schedule 1, item1, sections 52R(1)(b) and52S(2)(c)]

1.104 None of the general requirements require giving information thedisclosure of which would reveal a trade secret, or which ispersonal information within the meaning of the Privacy Act1988 . [Schedule1, item 1, sections 52R(5), 52ZAand 52ZB]

Minimum standards- giving explanations about types of data provided

1.105 Where a responsible digital platform corporation provides dataabout user interactions with covered news content to one or moreregistered news businesses, it must inform all other registerednews business corporations about the types of data it has provided. [Schedule 1, item 1, sections 52Q and52R]

1.106 This obligation to inform registered news businesses about theprovision of data to other registered news businesses is limited todata about user interactions with covered news content madeavailable on a designated digital platform service.

1.107 A user interacts with content made available by a service bycommenting, sharing, modifying or otherwise engaging with thecontent in some way. The concept is intended to be broad andinclude brief and minimal interactions with content such aspausing, scrolling through, or hovering a cursor over the content,or portions of the content.

1.108 A user who interacts with a link to content made available by adesignated digital platform service, interacts with the content,even if the linked material is contained on a website separate tothe designated digital platform service. [Schedule 1, item1, sections 52C and 52R]

1.109 This provision is not intended to require the designated digitalplatform corporation to provide information about data it collectsfrom websites that are not part of a designated digital platformservice.

1.110 There is no obligation on a responsible digital platformcorporation to share any user information. Nor is there anyrequirement to make the same data available to all registered newsbusinesses if data is shared with one registered news business.This provision only requires that if a responsible digital platformcorporation chooses to share user interaction data with one or moreregistered news businesses, it must inform all other registerednews businesses, at least in general terms, about the types of datait has provided by listing and explaining the shared data. [Schedule 1, item 1, section52R]

1.111 The information about types of data provided must relatespecifically to the designated digital platform service thatcollects the information. [Schedule 1, item1, section 52R(1)(c)]

1.112 The responsible digital platform corporation must ensure theinformation is provided to registered news business corporationswithin 28 days of their registration by the ACMA. The responsibledigital platform corporation then has an ongoing obligation toupdate that information every 12 months. [Schedule 1, item1, sections 52R(1)(d) and (4)]

1.113 The intent behind the obligation is to provide a minimum level oftransparency so that all registered news businesses are aware ofthe types of information that are being provided to other newsbusinesses.

1.114 The ACCC may issue an infringement notice of 600 penalty units fora failure to comply. In the alternative, a maximum civil penalty of6000 penalty units applies. [Schedule 1, items1, 7, 9 and 10, sections 52ZZG and 76(1)(a)(iaa), (1A)(baa) and(4A)(c)]

Minimum standards- referral traffic to covered news content

1.115 A responsible digital platform corporation must give 14 daysadvance notice to a registered news business corporation of plannedchanges to its designated digital platform services algorithm,where:

• the dominant purpose of the change is to bring about an identifiedalteration to the distribution of content on the designated digitalplatform service; and

• the change is likely to have a significant effect on the referraltraffic to covered news content made available by the designateddigital platform service.

[Schedule 1, item1, section 52S]

1.116 The Bill aims to clarify, without limiting, the ways in which adigital platform service can distribute content made available onthe service. Broadly, distribution methods include ways to rank,curate, impact prominence or alter the extent to which a user wouldbe likely to interact with the content on the service. [Schedule 1, item 1, section52D]

1.117 The Bill also provides a number of examples of the way a digitalplatform service can alter the distribution of content. [Schedule 1, item 1, section52D(3)]

1.118 A notification is only required in relation to planned changes toan algorithm. [Schedule 1, item 1, section52S(1)(a)]

1.119 This is intended to capture algorithm changes which involve anactive decision to modify how content will be distributed on adesignated digital platform service. The provision is not intendedto capture:

• changes that are generated by a review process which is almostentirely automated (such as a change designed and implementedalmost entirely by machine learning);

• changes which are not planned; and

• routine updates which may be made with high frequency.

Dominant purpose

1.120 The dominant purpose of the planned change must be to bring aboutan identified alteration to how content is distributed on adesignated digital platform service. This means the planned changeto an algorithm must be intended by the responsible digitalplatform corporation to bring about a predetermined identifiedalteration to the distribution of content . [Schedule 1, item1, section 52S(1)]

1.121 A change will not have the dominant purpose of bringing about anidentified alteration to the distribution of content on thedesignated digital platform service if the planned change is:

• a change made as part of routine maintenance with the dominantpurpose of ensuring the ongoing effectiveness of the algorithm;or

• a change made with the dominant purpose of ensuring that thealgorithm operates more quickly or efficiently.

[Schedule 1, item1, section 52V]

Significant effect oncovered news content on the designated digital platformservice

1.122 The Bill sets out a number of matters which should be considered ordisregarded when assessing whether a change is likely tosignificantly affect the referral traffic to covered news contentof registered news businesses.

1.123 The matters that should be considered are:

• whether, as a result of the change, there is likely to be asignificant variation to the amount of covered news content madeavailable by the designated digital platform service;

• whether, as a result of the change, there is likely to be asignificant variation to the proportion of content made availableby the designated digital platform service which is covered newscontent; and

• any other relevant matter.

[Schedule 1, item1, section 52W(1)]

1.124 The matters that are to be disregarded are:

• whether, as a result of the change, there is likely to be asignificant increase or decrease to the proportion of a particularregistered news business’ covered news content that makes upall the covered news content made available by a designated digitalplatform service;

• the relative turnover of registered news businesses whose coverednews content is made available by the designated digital platformservice;

• the relative volume of covered news content created by registerednews businesses whose covered news content is made available by thedesignated digital platform service; and

• the relative financial position of registered news businesses whosecovered news content is made available by the designated digitalplatform service.

[Schedule 1, item1, section 52W(2)]

1.125 A change may significantly affect the referral traffic to coverednews content of registered news businesses even if it does notaffect every, or even a majority, of registered news business. Ifthe change affects a small number of news businesses who producethe vast majority of covered news content on the designated digitalplatform service, then the change may still have a significanteffect on covered news content.

1.126 The policy intent is that changes are likely to be consideredsignificant if they are likely to result in an approximately 20% orgreater change in referral traffic to registered news businesses asa whole.

1.127 ‘Referral traffic’ from the designated digital platformservice is not defined in the Bill and the term will take itsordinary meaning. It is intended to cover the situation where adigital platform service refers a user to an external website, appor news source via a link.

Other requirements

1.128 The notice must describe the change and effect on referral trafficin a way that is readily comprehensible. The notice must relateonly to the designated digital platform service to which theplanned change relates and not to any other designated digitalplatform service of the responsible digital platform corporation. [Schedule 1, item 1, sections 52S(2)(c) and(d)]

1.129 If the algorithm change relates to a matter of urgent publicinterest, no advance notice is required, but the responsibledigital platform corporation must ensure that the news businesscorporation is notified within 48 hours after the change. Thisexception recognises that urgent algorithm changes such as thosethat might be required in relation to information about an eventsuch as an earthquake or a terrorist event cannot be notified inadvance. [Schedule 1, item 1, section52S(2)(b)]

1.130 The ACCC may issue an infringement notice of 600 penalty units fora failure to comply. In the alternative, a maximum civil penalty of6000 penalty units applies. [Schedule 1, items1, 7, 9 and 10, sections 52ZZG and 76(1)(a)(iaa), (1A)(baa) and(4A)(c)]

Recognition of originalnews

1.131 A responsible digital platform corporation must consult withregistered news business corporations and publish a proposal toappropriately recognise original covered news content within 6months of the ACMA registering the first news business corporationon its designated digital services. This is a one-off obligation. [Schedule 1, item 1, section52X]

1.132 The ACCC may issue an infringement notice of 600 penalty units fora failure to comply. In the alternative, a maximum civil penalty of6000 penalty units applies. [Schedule 1, items1, 7, 9 and 10, sections 52ZZG and 76(1)(a)(iaa), (1A)(baa) and(4A)(c)]

Facilitating opencommunication

1.133 The responsible digital platform corporation must:

• set up a point of contact in Australia no later than 28 days afterthe day the Minister makes a determination that a digital platformmust participate in the Code;

• ensure the point of contact meets the requirements specified inregulations;

• give details of that point of contact to every registered newsbusiness corporation either 10 business days after the point ofcontact is set up, or 10 business days after the news business isregistered, whichever is later;

• acknowledge every communication made to that point of contact fromthe registered news business corporation; and

• ensure the acknowledgement meets any requirements specified inregulations.

[Schedule 1, item1, section 52Y]

1.134 Each registered news business corporation must ensure that:

• a point of contact is set up no later than the day on which it isregistered by the ACMA;

• the point of contact meets the requirements specified inregulations;

• the point of contact acknowledges every communication from aresponsible digital platform corporation that relates to theregistered news business’ covered news content; and

• the acknowledgement meets any requirements specified inregulations.

[Schedule 1, item1, section 52Z]

1.135 The ACCC may issue an infringement notice of 600 penalty units fora failure to comply. In the alternative, a maximum civil penalty of6000 penalty units applies. [Schedule 1, items1, 7, 9 and 10, sections 52ZZG and 76(1)(a)(iaa), (1A)(baa) and(4A)(c)]

1.136 Nothing prevents a responsible digital platform corporationidentifying the same point of contact for multiple registered newsbusiness corporations, provided it can still fulfil therequirements for availability and responsiveness.

1.137 Regulations can be made that contain requirements for theregistered point of contact and acknowledgement of the contact. Theregulations will be subject to disallowance by the Parliament andtherefore will be subject to Parliamentary scrutiny. [Schedule 1, item1, sections 52Y(b) and (e) and 52Z(b) and (d)]

1.138 The regulations could, for example, provide that the points ofcontact must be available during Australian business hours and thatacknowledgement must occur within two business days.

Non-differentiationrequirements

1.139 The non-differentiation provisions apply to any digital service(however described, such as a platform, social media website ormobile phone news app) that is operated or controlled by theresponsible digital platform corporation. This includes digitalservices the responsible digital platform corporation operates orcontrols together with other corporations. This means that itapplies to both digital services which have not been designated, aswell as designated digital platform services. [Schedule 1,item1, section 52ZC(1)]

1.140 The obligation under this provision requires a responsible digitalplatform corporation to ensure that in supplying a digital service,the corporation does not differentiate between registered newsbusinesses or between registered and unregistered news businessesor between unregistered news businesses in relation to crawling,indexing, distributing or making available news businesses’covered news merely because of any of the following:

• a notice of intention to bargain under the Code has been given to adesignated digital platform service;

• a notice of intention to arbitrate under the Code has been given tothe ACCC;

• a registered news business or news business is receivingremuneration for the making available of the news business’covered news content;

• a registered news business or news business is, or is not, subjectto a standard offer with a responsible digital platformcorporation;

• a registered news business or news business is, or is not, subjectto an agreement contracting out of the Code;

• a corporation is registered, or eligible to be registered as a newsbusiness corporation or endorsed as a registered news businesscorporation for a news business; or

• a corporation has applied to be registered or to be endorsed as aregistered news business corporation for a news business.

[Schedule 1,item 1, section 52ZC(2)]

1.141 For the avoidance of doubt, this requirement is not intended tointerfere with the ordinary operation of the proprietary algorithmsof a digital platform.

1.142 Furthermore, the non-differentiation provision does not prohibitthe making of deals and agreements, the substance of which mayinclude terms about remuneration for the making available ofcovered news content or the way in which covered news content isdistributed. Differentiation on the basis of the terms of anagreement, such as providing covered news content on a specifictopic or presented in a specific way that meets the digitalplatform’s business needs, will not be a breach of theprovision.

1.143 However, if differentiation occurred only because a responsibledigital platform corporation paid remuneration to a registered newsbusiness for the making available of covered news content, thenthis will likely breach the provision.

1.144 A failure to comply with the non-differentiation requirements issubject to a maximum civil penalty of the greatest of:

• $10 million;

• if the court can determine the value of the benefit obtained andthat is reasonably attributable to the act or omission -three times the value of that benefit; and

• if the court cannot determine the value of that benefit -10%of annual turnover during the period of 12 months endingat the end of the month in which the act or omission occurred.

[Schedule 1, items 7, 8 and 10, sections76(1)(a)(iaa), (1A)(b) and (4A)(d)]

Bargaining

Topics that may bebargained about

1.145 Once an Australian news business is registered by the ACMA, theregistered news business corporation can notify a responsibledigital platform corporation of its intention to bargain under theCode in relation to one or more ‘specified issues’. [Schedule 1, item 1, section52ZE]

1.146 The issues can be about remuneration or another topic but, in orderfor the Code to apply, they must relate to the registered newsbusinesses’ covered news content which is made available on(or via) a designated digital platform service. [Schedule 1, item1, sections 52ZE(1) and (4)(e)]

1.147 Separately to those topics specified in the notice, the parties canagree in writing to bargain under the Code about issues relating tocovered news content made available by designated or non-designateddigital platform services. [Schedule 1, item1, section 52ZG(2)]

1.148 As explained above in relation to the general requirements, adigital platform service makes available covered news content ifit:

• allows for covered news content to be reproduced, or otherwiseplaced on the digital platform service, in whole or in part(including in the form of snippets); or

• allows for links to covered news content to be placed on theservice.

[Schedule 1, item1, section 52B]

1.149 As explained above in relation to the general requirements, coverednews content is a broader category than core news content andincludes:

• core news content; and

• any other content that reports, investigates or explains currentissues or events of interest to Australians.

[Schedule 1, item1, definition of ‘covered news content’ in section52A]

1.150 Nothing prevents the bargaining parties seeking to conductcommercial negotiations on their own initiative on any othermatter. However, this is considered to occur outside the Code,which means the responsible digital platform corporation cannot bepenalised under the Code for failing to participate in good faithbecause the good faith requirement only applies to the corebargaining issues. [Schedule 1, item 1, sections 52ZG(3), 52ZH and52ZJ]

News businesscorporations can bargain individually or collectively

1.151 Under the bargaining and arbitration Divisions of the Code, aregistered news business corporation for a registered news businessis known as the bargaining news business representative. [ Schedule 1, item 1, section52ZD]

1.152 However, a registered news business corporation may appoint a thirdparty to be its bargaining news business representative. [ Schedule 1, item 1, section52ZD]

1.153 A registered news business representative can bargain with aresponsible digital platform corporation. Under the bargaining andarbitration Divisions of the Code, these are the bargainingparties. [Schedule 1, item 1, section52ZG]

1.154 Two or more registered news business corporations can agree tocollectively bargain with a designated digital platform. [Schedule 1, item 1, section52ZZP]

1.155 The collective can select one of its members to be the bargainingnews business representative or appoint a third party to performthat role. The third party could be a peak body, industryassociation, legal representative or other appointed agent. Eachmember of the collective must agree in writing who will be thebargaining news business representative. [Schedule 1, item1, section 52ZD]

1.156 If two or more news business corporations join together tonegotiate with a responsible digital platform corporation, thatcollective bargaining is specifically authorised for the purposesof subsection51(1). [Schedule 1, item1, section 52ZZP]

Indicating an intention to bargain

1.157 The notification must be made by the bargaining news businessrepresentative and set out the matters detailed in the Bill. [Schedule 1, item 1, section52ZE(4)]

1.158 Each registered news business to which the notification relates isa represented registered news business. A notification cannot bevaried to include additional registered news businesses at a latertime. [Schedule 1, item 1, sections 52ZE(5) and52ZG(4)]

1.159 A registered news business is not required to give notice tobargain under the Code. If a registered news business chooses notto bargain, the general requirements will still apply in respect ofthat news business’ covered news content. [Schedule 1, item1, sections 52ZE, 52ZR, 52S and 52X]

Bargaining in goodfaith

1.160 Once a bargaining news business representative indicates anintention to bargain in relation to its covered news content, thebargaining news business representative and the responsible digitalplatform corporation must act towards each other in good faith. [Schedule 1, item 1, sections52ZF and52ZH]

1.161 A failure to bargain in good faith is subject to a maximum civilpenalty of the greatest of:

• $10 million;

• if the court can determine the value of the benefit obtained andthat is reasonably attributable to the act or omission -three times the value of that benefit; and

• if the court cannot determine the value of that benefit -10%of annual turnover during the period of 12 months endingat the end of the month in which the act or omission occurred.

[Schedule 1, items7, 8 and 10, sections 76(1)(a)(iaa), (1A)(b) and(4A)(e)]

1.162 Whether or not a party has acted in good faith will depend on thefacts and circumstances of each case.

1.163 Some examples of conduct which would likely breach the good faithobligation include avoiding or refusing to engage in discussionswith the other party, making clearly unreasonable offers or failingto consider or accept reasonable offers made by the otherparty.

1.164 A party will not breach the good faith obligation for putting itsown commercial interests ahead of the other party’s orrejecting unreasonable offers or demands from the otherparty.

1.165 This good faith bargaining obligation only applies to the corebargaining issues, which are the specified issues set out in thebargaining notification. Parties may agree in writing to bargainabout other ‘specified issues’. These may be about thedesignated digital platform service or other services. Thesespecified issues will also be core bargaining issues. As such thegood faith obligation will apply to these specified issues also. [Schedule 1, item 1, sections 52ZG(3) and52ZH]

1.166 The parties are able to engage in ordinary commercial bargainingover any other issue at any time but the Code’s protectionsand obligations will not cover any of these additional issues. [Schedule 1, item 1, sections 52ZG(3) and52ZH]

Notifying the ACCC of agreements reached

1.167 Both parties must ensure that the ACCC is notified as soon aspracticable if they successfully reach an agreement during thebargaining phase. [Schedule 1, item 1, section52ZI]

1.168 A failure to notify is subject to a maximum civil penalty of600penalty units. [Schedule 1, items 7, 9 and 10, sections76(1)(a)(iaa), (1A)(bab) and (4A)(b)]

Arbitration about theremuneration issue

1.169 Where parties cannot come to a negotiated agreement aboutremuneration relating to the making available of covered newscontent on designated digital platform services, the Code sets outa process for an arbitral panel to select between two final offersmade by the parties.

Startingarbitration

1.170 If a bargaining news business representative indicates an intentionto bargain with a responsible digital platform corporation and anagreement about remuneration in relation to a designated digitalplatform service is not reached within a three month period, thematter can proceed to compulsory arbitration. [Schedule 1, item1, sections 52ZL(1) and (2)(a)]

1.171 The matter can proceed to arbitration earlier if both parties agreeto this. This cannot occur until at least 10 business days afterthe bargaining news business representative indicates an intentionto bargain. [Schedule 1, item 1, section52ZL(2)(b)]

1.172 In order to commence arbitration, the bargaining news businessrepresentative must give a written notice to the ACCC. Only thebargaining news business representative can initiate thearbitration, and only after three months have elapsed sincebargaining began. Nothing in the Bill requires a bargaining newsbusiness representative to proceed to arbitration. [Schedule 1, item1, section 52ZL]

1.173 As soon as practicable after receiving the notice, the ACCC mustgive the ACMA and the bargaining parties a notice stating that anarbitral panel is to be formed. [Schedule 1, item1, section 52ZL(5)]

1.174 The Chair of the arbitral panel will notify the bargaining partiesthat arbitration will start on a specified day. That day must bewithin five business days (unless another period of time isprescribed in regulations) of the arbitral panel Chair’sappointment. [Schedule 1, item 1, section52ZP]

1.175 A bargaining news business representative cannot triggerarbitration more than once within a two year period, in relation toeach registered news business and designated digital platformservice. [Schedule1, item 1, section52ZL(4)]

Register of bargainingCode arbitrators

1.176 A register of bargaining code arbitrators will be appointed andmanaged by the ACMA. [Schedule 1, item 1, section52ZK]

1.177 Each person on the register must be a person experienced in atleast one of legal, economic or industry matters (relevant todigital platforms and news media) or considered by the ACMA to haveappropriate experience to be a member of the arbitral panel. TheACMA must consider relevant regulations in appointing individualsto the register. [Schedule 1, item 1, section52ZK]

The arbitral panel

1.178 When compulsory arbitration begins, an arbitral panel is to beformed by agreement of the bargaining parties. The panel willinclude a Chair of the panel and, unless the bargaining partiesagree that the Chair should be the sole member of the panel, twoother members. [Schedule 1, item 1, section52ZM]

1.179 Appointed panel members need not be on the ACMA register if theywere appointed by agreement of the bargaining parties. The panelmust comply with the arbitral process set out in the Code. [Schedule 1, item1, section52ZM]

1.180 The bargaining parties have 10 business days (unless otherwiseprescribed by regulations) to agree on the membership of the paneland inform the ACCC and the ACMA of the appointments. [Schedule 1, item1, sections 52ZM(6) and (7)]

1.181 If the bargaining parties do not notify the ACMA of the membershipof the panel within that period, the ACMA will appoint anyremaining panel members from the register as necessary. [Schedule 1, item 1, section 52ZM(8) and(9)]

1.182 Before the ACMA appoints a person to be a member of an arbitralpanel, the person must declare any conflicts of interest. [Schedule 1, item 1, sections 52ZN(1),(2) and(6)]

1.183 The ACMA may also remove and replace an ACMA-appointed panel memberif it has reason to consider that the person has an actual orpotential conflict of interest, whether or not the personpreviously declared it. [Schedule 1, item 1, sections 52ZN(3) to(6)]

1.184 Bargaining parties will share equal responsibility for thearbitration costs. Each member of a panel is to determine thatmember’s costs, worked out as daily costs. This will includewhere the members are appointed by the ACMA. [Schedule 1, item1, section 52ZO]

The arbitrationprocess

Topic ofarbitration

1.185 If the arbitration process is triggered, the only mandatory topicfor arbitration is the remuneration issue (the remuneration to bepaid to a registered news business for the making available of theregistered news business’ covered news content by thedesignated digital platform service). [Schedule 1, item1, section 52ZL(1)(b)]

1.186 However, the bargaining parties can agree to arbitrate aboutremuneration for the digital platform corporation making availablethe news media businesses’ covered news content on anotherdigital platform service and if they notify the Chair of the panel.Accordingly, the panel can make a determination that includesremuneration for both the designated and non-designated services. [Schedule 1, item 1, sections 52ZQ and52ZX]

Good faithrequirement

1.187 The bargaining parties must participate in the arbitration in goodfaith. [Schedule 1, item1, section52ZS]

1.188 A failure to participate in arbitration in good faith is subject toa maximum civil penalty of the greatest of:

• $10 million;

• if the court can determine the value of the benefit obtained andthat is reasonably attributable to the act or omission -three times the value of that benefit; and

• if the court cannot determine the value of that benefit -10%of annual turnover during the period of 12 months endingat the end of the month in which the act or omission occurred.

[Schedule 1, items7, 8 and 10, sections 76(1)(a)(iaa), (1A)(b) and(4A)(f)]

Early termination ofarbitration by agreement

1.189 If the parties are able to resolve the remuneration issue beforethe panel makes its remuneration determination, they can agree toterminate arbitration if neither party has yet made an informationrequest. The parties must notify the Chair of the agreement as soonas practicable for the termination to take effect. If they fail tonotify the Chair in time and the panel proceeds to make itsremuneration determination, the remuneration determinationprevails. [Schedule 1, item 1, section52ZW]

Final offers

1.190 Each of the bargaining parties must submit to the panel a finaloffer on the remuneration amount to be paid by the responsibledigital platform corporation to the registered news businesscorporation for making available the registered news businesscorporation’s covered news content. The remuneration amountmust be expressed as a lump sum. [Schedule 1, item1, section 52ZX]

1.191 Final offers are due within the time specified in the Code, unlessthe panel grants an extension for exceptional circumstances (or ifthe regulations set another period). Each party must give a copy ofits offer to the ACCC, who will then give a copy to the otherparty. [Schedule 1, item 1, sections 52ZX(2) to(4)]

1.192 If a bargaining party submits to the panel a final offer duringarbitration, it must, on the same day that it submits the finaloffer to the panel, give the panel information that is relevant tothe arbitration and relates to all contracts that are in forcebetween the parties (including related bodies corporate of thebargaining parties). The parties are not obliged to provide theactual contracts. Nor are they required to provide all of thecontracts between the parties. Rather, they are required to provideinformation which is relevant to the arbitration relating tocontracts between the parties. In doing this, the parties shouldconsider all contracts between them and, having done that,determine whether the information to be submitted about thosecontracts is relevant to the arbitration. If the information is notrelevant, then it should not be provided. They are not required todisclose information which is protected from disclosure by a dutyof confidence, which might exist as a matter of law or under acontract. If such a duty of confidence exists between the parties,then they can agree, for the purposes of the arbitration process,for that information to be provided to the panel. [Schedule 1, item1, section 52ZXA]

1.193 The bargaining parties may give a response submission to the panelabout the other party’s final offer. The response submissionmay only deal with issues that are dealt with in the materialaccompanying the respective final offers. As with final offers,parties are to give a copy of their response submission to theACCC, who will then give a copy to the other party. [Schedule 1, item1, sections 52ZX and 52ZZB]

1.194 The ACCC may also provide a submission to the panel. The submissionmust be impartial and only include factual statements orinformation about relevant economic principles. The bargainingparties may submit a response submission to the ACCC’ssubmission. [Schedule 1, item 1, section52ZZC]

1.195 The panel must accept one of the final offers, unless the panelconsiders that each final offer is not in the public interestbecause it is highly likely to result in serious detriment to theprovision of covered news content in Australia or to Australianconsumers. [Schedule 1, item 1, section52ZX(7)]

Arbitration istime-limited

1.196 The panel must make the written final determination forremuneration no later than 35 business days (unless anotherdeadline is prescribed in regulations) after the latest of thedeadline for final offers, the deadline for response submissions,the deadline for an ACCC submission or the deadline for bargainingparty responses to an ACCC submission. This accounts for the factthat parties or the ACCC may opt not to make response submissions. [Schedule 1, item 1, section52ZZA]

What must the panelconsider in making its determination?

1.197 In making a determination on the remuneration issue, the panel mustconsider the benefit (monetary or otherwise) of the registered newsbusiness’ covered news content to the designated digitalplatform service and the benefit (monetary or otherwise) to theregistered news business of the designated digital platform servicemaking available the registered news business’ covered newscontent. [Schedule 1, item 1, section52ZZ]

1.198 The panel must also consider the reasonable costs to the registerednews business of producing covered news content. Similarly, thepanel must also consider the reasonable costs to the designateddigital platform service of making available covered news contentin Australia. [Schedule 1, item 1,section52ZZ]

1.199 The panel must also consider whether a particular amount ofremuneration would place an undue burden on the commercialinterests of the designated digital platform service. It isintended that the panel will consider whether a particular amountof remuneration would place an undue burden on the revenue of aservice’s Australian operations as opposed to the globaloperations. [Schedule 1, item 1,section52ZZ]

1.200 When considering all the matters above, the panel must consider thebargaining power imbalance between Australian news businesses andthe designated digital platform corporation. This allows the panel,in making their determination, to consider the outcome of ahypothetical scenario where commercial negotiations take place inthe absence of the bargaining power imbalance. [Schedule 1, item1, section 52ZZ]

Example1.8 Panel determination

The Daily Chronicle is a registered newsbusiness that is a party to an arbitration process with adesignated platform service named Digiplat.

When assessing both parties’ finaloffers, the panel considers a range of factors. This includesthe benefit that Digiplat provides to the Daily Chronicle.For example, the Daily Chronicle receives a significant number ofreferrals to its website from Digiplat. These referrals provideconsiderable benefits to the Daily Chronicle by increasing itsonline audience and therefore its potential advertising andsubscription revenue.

The panel also considers the benefits thatthe Daily Chronicle provides to Digiplat. In this example, there ismeaningful value that is derived from the Daily Chronicle’scontent appearing on Digiplat.

The panel also considers the reasonablecosts that the Daily Chronicle incurs in producing relevantcontent, and the reasonable domestic costs that Digiplat incurs inmaking relevant news content available on its platform.

In addition, the panel considers the extentto which there is a significant bargaining power imbalance betweenAustralian news businesses and the designated digital platformcorporation. To do this, the arbitrator may consider arguments inthe final offers about the size of the benefits to both Digiplatand the Daily Chronicle that may have occurred in the absence ofany bargaining power imbalance.

1.201 The Bill specifies that the remuneration determination must set outa lump sum amount. The determination must also be consistent withrights and obligations of the parties under contracts that are inforce between the relevant parties. [Schedule 1, item1, section 52ZX]

1.202 If the panel does not accept one of the final offers made by theparties, it must adjust the most reasonable of those offers in amanner that takes into account the above factors, and results inthat offer being in the public interest. [Schedule 1, item1, section 52ZX(8)]

1.203 If one of the parties fails to make a final offer, the panel mustaccept the final offer submitted by the other party, or adjust thatoffer in accordance with the above factors. [Schedule 1, item1, section 52ZX(9)]

1.204 If neither party makes a final offer within the mandatory timeframeset out under the Code, the arbitration terminates on the next day,and the parties cannot utilise the arbitration process under theCode for a period of two years. [Schedule 1, item1, sections 52ZL(4) and 52ZY]

Decision-making by thepanel

1.205 The Bill provides that panel members must endeavour to makeunanimous decisions. Where a unanimous decision is not possible,the panel must make the determination by majority decision of themembers of the panel. [Schedule 1, item 1, section52ZZA(2)]

Effect of arbitraldetermination

1.206 The bargaining parties must comply with the arbitral panel’sdetermination. [Schedule 1, item 1, section52ZZE]

1.207 A failure to comply is subject to a maximum civil penalty of thegreatest of:

• $10 million;

• if the court can determine the value of the benefit obtained andthat is reasonably attributable to the act or omission -three times the value of that benefit; and

• if the court cannot determine the value of that benefit -10%of annual turnover during the period of 12 months endingat the end of the month in which the act or omission occurred.

[Schedule 1, items7, 8 and 10, sections 76(1)(a)(iaa), (1A)(b) and(4A)(h)]

1.208 The obligation to pay the remuneration amount consistent with thearbitral determination is also enforceable by private action. Aswith any breach of the Code, the standard provisions in the CCA forinjunctions and damages apply, which would, for example, enable theregistered news business corporation or the ACCC to seek a courtorder for payment. [Schedule 1, items 11 and 12, sections80(1)(a)(iiaa) and 82(1)(a)]

Duration of arbitraldetermination

1.209 The amount determined by the arbitral panel is for remunerating theregistered news business for making its covered news contentavailable by the designated digital platform service for two years. [Schedule1, item 1, section52ZX(1)(b)]

1.210 Nothing prevents the parties agreeing to continue the arrangementinto subsequent years.

Informationrequests

1.211 During arbitration, either of the bargaining parties may make onerequest that the other bargaining party provide it with informationif the request is reasonable for the purposes of the arbitration.The requesting party must also give the panel a copy of therequest. [Schedule 1, item 1, sections 52ZT(1) and(4)]

1.212 This request may relate to information held by the responsibledigital platform corporation and any related bodies corporate orinformation held by the registered news business corporation forthe registered news business and any related bodies corporate. Thatis, the bargaining parties are responsible for ensuring informationin the control of their respective corporate groups is provided,regardless of whether it is in their direct possession. [Schedule 1, item 1, section52ZT(2)]

1.213 The request must be made in writing, set out reasons why it isreasonable for the information to be provided and comply with anyregulations. [Schedule 1, item 1, section52ZT(3)]

1.214 The other bargaining party must ensure that the request is compliedwith no later than 10 business days after it was made or ruledreasonable by the panel (unless another deadline is prescribed inregulations) and that the information is given in terms that arereadily comprehensible, compliant with any regulations, andspecific to the service in question. [Schedule 1, item1, section 52ZT(5)]

1.215 Alternatively, the other bargaining party may apply to the panel,in writing, for a ruling that it was not reasonable for the otherbargaining party to make the request for the purposes of thearbitration, in relation to all or parts of the informationrequested. This application must be made within 10 business days ofreceiving the request (unless another deadline is prescribed inregulations). [Schedule 1, item 1, sections 52ZU(1), (2) and(4)]

1.216 The panel may find that such a request is not reasonable, in whichcase the bargaining party who received the request need not comply.Otherwise, the receiving party must comply within 10 business days(unless another deadline is prescribed in regulations) from thepanel’s decision. [Schedule 1, item 1, sections 52ZT(5) and52ZU(6)]

1.217 The panel must make its finding within 10 business days (unlessanother deadline is prescribed in regulations). In making itsfinding, it must consider the factors set out for making theremuneration determination during final offer arbitration. [Schedule 1, item 1, sections52ZU(3) and(5)]

1.218 The parties are not required to give information which, ifdisclosed, would reveal a trade secret or give information that ispersonal information within the meaning of the Privacy Act1988. [Schedule 1, item 1, sections 52ZV(1) and(2)]

1.219 If the responsible digital platform corporation gives informationor data to the bargaining news business representative, thebargaining news business representative must ensure that theinformation is not used for any purpose other than the arbitration. [Schedule 1, item 1, section52ZV(3)]

1.220 A failure to comply with a reasonable information request issubject to a maximum civil penalty of 600 penalty units. The sameapplies if a recipient of information uses the information for apurpose other than the arbitration. [Schedule 1, items7, 9 and 10, sections 76(1)(a)(iaa), (1A)(bab) and(4A)(g)]

The role of theACCC

1.221 The ACCC may make written submissions to the arbitral panel. [Schedule 1, item 1,section52ZZC]

1.222 As stated above, the ACCC will receive copies of final offers andany response submissions by parties. Any submission made by theACCC on its own initiative must be provided to the arbitral paneland a copy provided to the bargaining parties within10business days of receiving each bargaining party’sfinal offer. Any responses the bargaining parties may wish to maketo the ACCC submission must be provided to the panel within fivebusiness days, with a copy to the ACCC (who will then give a copyto the other party). [Schedule 1, item 1, section52ZZC(1)]

1.223 Any submissions made by the ACCC do not bind the arbitrators to anyparticular course of action and must be impartial. It is intendedthat the submissions will be in relation to the arbitrationgenerally and will not analyse or comment on the remunerationamount specified in the parties’ final offers. Submissionsshould include relevant information about economic principles. [Schedule 1, item 1, section52ZZC(1A)]

1.224 The ACCC may also make guidelines relating to the conduct ofarbitration under the Code. The arbitral panel may take them intoaccount in conducting the arbitration. The validity of thearbitration will not be impacted if the panel chooses not to takethe guidelines into account. [Schedule 1, item1, section 52ZZD]

1.225 However, the ACCC cannot include matters related to the followingin its guidelines without the approval of the Minister:

• how a panel makes a ruling on information requests;

• the content of bargaining parties’ final offers;

• the content of bargaining parties’ response submissions;and

• how a panel makes the remuneration determination.

[Schedule 1, item 1, section52ZZD(2)]

1.226 The Bill clarifies that the ACCC guidelines are not a legislativeinstrument. This clarification is merely declaratory of the law asthe guidelines would not be a legislative instrument within themeaning of subsection 8(1) of the Legislation Act 2003 , andis included merely to assist readers of the legislation . [Schedule 1, item 1, section52ZZD(7)]

1.227 General information made available by the ACCC in accordance withsubsection 28(1) of the CCA must not relate to the conduct ofarbitration under the Code. [Schedule 1, item1, section 52ZZD(6)]

Record keepingand information-gathering powers

1.228 Regulations may specify requirements for responsible digitalplatform corporations to generate and keep records relating to theoperation of the Code. [Schedule 1, item 1, sections 52ZZF(1) and(2)]

1.229 A failure to comply is subject to a maximum civil penalty of 600penalty units. [Schedule 1, items 7, 9 and 10, sections76(1)(a)(iaa), (1A)(bab) and (4A)(i)]

1.230 The ACCC may give the responsible digital platform corporation anotice requiring it to produce those records. The existinginvestigation power framework for industry codes under the CCA isapplied for this purpose. [Schedule 1, item1, section 52ZZF(3)]

1.231 Whether or not regulations prescribe record-keeping requirements asexplained above, the ACCC’s standard information-gatheringpowers under section 155 of the CCA also apply. Notices issuedunder that section are used by the ACCC to gather information,documents and evidence about potential contraventions of the law orthat are relevant to specific ACCC functions and powers. [Schedule 1, items 1, 19 and 20, sections52ZZF(4) and 155(2)(b)(ib) and (9AB)]

1.232 The ACMA’s information-gathering powers in Part 13 and powerto seek civil penalties in Part 14B of the Broadcasting ServicesAct1992 are also applied to the operation of the Code. Inparticular, these powers enable the ACMA to addressnon-compliance with the Code’s eligibilityrequirements. The maximum civil penalty for obstruction of ahearing or non-compliance with a requirement to give evidence isset at 600 penalty units. [Schedule 1, item1, section 52ZZN]

1.233 No Ministerial directions may be made to the ACMA in relation tothe exercise of these information-gathering powers, or in relationto any other power or function the Code confers on the ACMA. [Schedule 1, item 1, section 52ZZO]

Consequences ofcontravention

Civil penalties

1.234 Civil penalties apply for many (but not all) contraventions of thenew PartIVBA.

1.235 The Code also contains a number of procedural requirements, abreach of which attracts a procedural consequence but not aliability for any pecuniary penalty.

1.236 In the case of non-differentiation, good faith obligations andcompliance with an arbitral determination, the maximum civilpenalty for an act or omission, is the greatest of:

• $10 million;

• if the court can determine the value of the benefit obtained andthat is reasonably attributable to the act or omission -three times the value of that benefit; and

• if the court cannot determine the value of thatbenefit- 10%of annual turnover during the periodof 12 months ending at the end of the month in which the act oromission occurred.

[Schedule 1, items7, 8 and 10, sections 76(1)(a)(iaa), (1A)(b) and(4A)]

1.237 This is consistent with the maximum penalties applicable undersection 76 for a number of contraventions of the CCA.

1.238 Compliance by responsible digital platform corporations andregistered news business corporations with all of their respectiveobligations under the Code is critical to the integrity of thescheme and the achievement of its objectives. The maximum civilpenalty reflects the seriousness of the most egregious instances ofnon-compliance with the Code. Flexibility in the penaltyamount is provided to enable the ACCC to seek penaltiesproportionate to the conduct. Minor breaches are not expected toattract significant penalties under the Code.

1.239 For the purposes of calculating annual turnover under the thirdlimb of the maximum civil penalty, the turnover of related bodiescorporate is included. However, only turnover connected with thesupply of goods and services in Australia is relevant.

1.240 If a responsible digital platform corporation has contravened theCode and it is not the designated digital platform corporation(that is, it is an Australian entity), both the responsible digitalplatform corporation and the designated digital platformcorporation are jointly and severally liable for the civil penalty. [Schedule 1, item 1, section52ZZH]

Infringementnotices

1.241 The ACCC may issue an infringement notice for a contravention ofthe general requirements. The infringement notice penalty amount is600 penalty units. This is consistent with the infringement noticepenalty amount applicable to certain contraventions of theAustralian Consumer Law by listed corporations. [Schedule 1, item1, section 52ZZG]

Other enforcement andredress mechanisms

1.242 On application from the ACCC, a registered news businesscorporation, a responsible digital platform corporation or anotherperson, the court may grant an injunction in relation to a breachor proposed breach of any provision of the Code. [Schedule 1, item11, section 80(1)(a)(iiaa)]

1.243 The ACCC may accept a court enforceable undertaking under section87B in relation to matters arising under the Code.

1.244 A registered news business corporation can bring an action seekingdamages for loss or damage by conduct of a responsible digitalplatform corporation in contravention of the Code. [Schedule 1, item12, section 82(1)(a)]

1.245 Non-punitive orders and other compensatory orders available underthe CCA also apply to contraventions of the Code. [Schedule 1,items15 to 18, sections 86C(4) and 87]

1.246 In the case of damages and other compensatory orders, the court maymake an order against a person involved in the contravention,including, among other things, a person aiding, procuring and beingknowingly concerned in the contravention. [Schedule 1, item6, section 75B(1)]

Review of the Code

1.247 A review of the Code will begin within one year of the new lawcommencing and must be completed within a period of 1 year. Awritten report of the review must be made publicly available by theMinister as soon as practicable after the period of 28 days fromwhen the Minister is given the report. [Schedule 1, item1, section 52ZZS]

Electronictransactions

1.248 Under the Electronic Transactions Act 1999 , parties arerequired to seek consent for providing written information orproducing documents to each other by electronic communication.However, the Code ensures that the parties do not need to seek thisconsent before doing so. [Schedule 1, item1, section 52ZZR]

1.249 Nothing in the Part affects how the Electronic TransactionsAct1999 applies to the Broadcasting Services Act1992 including Part 13 of the Broadcasting Services Act1992 , as that Part applies in relation to this Part.

Other amendments

1.250 The new Part IVBA will bind the Crown. [Schedule1,item 2, section 2B(1)(aaa)]

1.251 The new Part IVBA operates concurrently with State and Territorylaws. [Schedule1, item 1, section52ZZQ]

1.252 The new Part IVBA will extend to engaging in conduct outsideAustralia by bodies corporate incorporated or carrying on businesswithin Australia. [Schedule 1, items 3 and 4, sections 5(1)(aa) and(f)]

1.253 The Minister cannot use the general directions power under the CCAto direct the ACCC with regard to the new Part IVBA. [Schedule 1, item5, section 29(1A)(a)]

1.254 Other amendments are also made to certain provisions about findingsand admissions of fact in prior proceedings, and conduct bydirectors, employees or agents. [Schedule 1, items13 and 14, sections 83(1)(b)(i) and 84(1)(b) and(3)(b)]

1.255 The new Part IVBA is also added to the definition of ‘corestatutory provision’ in subsection 155AAA(21) to ensure thatthe information protection provisions (about the use of informationby the ACCC) in the CCA also apply to the Code. [Schedule 1, item21, section155AAA(21)(a)]

Application andtransitional provisions

1.256 The Bill commences on the day after it receives the Royal Assent. [Schedule 1, clause 2]