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Environment and Communications Legislation Committee

CASSIDY, Mr Brian, Chief Executive Officer, Australian Competition and Consumer Commission

GLENN, Mr Richard, Assistant Secretary, Business and Information Law Branch, Attorney-General's Department

McNEILL, Ms Jennifer, General Manager, Content, Consumer and Citizen Division, Australian Communications and Media Authority

O'LOUGHLIN, Ms Nerida, Deputy Secretary Broadcasting and Digital Switchover, Department of Broadband, Communications and the Digital Economy

PELLING, Dr Simon, First Assistant Secretary, Department of Broadband, Communications and the Digital Economy

WEBB, Ms Rose, Executive General Manager, Mergers & Adjudication Group, Australian Competition and Consumer Commission


CHAIR: I welcome representatives from the Department of Broadband, Communications and the Digital Economy, Australian Communications and Media Authority, Australian Competition and Consumer Commission and the Attorney-General's Department. I thank you for talking to us today. As government officers, you will not be asked to give opinions on matters of policy, though this does not preclude questions asking for explanations of policy or factual questions about when and how policies were adopted. Does anyone wish to make a brief opening statement before we go to questions?

Ms O'Loughlin : Not from the department.

Ms McNeill : Nor from the Communications and Media Authority.

Mr Cassidy : Nor from the ACCC.

Senator BIRMINGHAM: Thank you all for coming along.

CHAIR: I did not miss the Attorney-General's Department, did I?

Mr Glenn : No.

CHAIR: This looks like estimates and you are not normally here.

Senator BIRMINGHAM: That is true. We might be tempted to ask Ms O'Loughlin or Dr Pelling about other issues. Thanks to you all for coming along. I will start with the drafting of these bills and, in particular, with the decision to pursue the public interest media advocate and the News Media (Self-regulation) Bill. When were those two bills first drafted?

Ms O'Loughlin : Senator, I do not think it is probably appropriate for us to discuss the toings and froings of the bill. The bills were considered last week by the government and introduced last Thursday.

Senator BIRMINGHAM: Ms O'Loughlin, I think the Chair just read the usual statement, which does reflect that it is reasonable to pursue issues of timing and so on in relation to decisions that were made. Were these bills drafted ahead of last week's cabinet meeting? Did they exist then?

Ms O'Loughlin : Yes, Senator, they did. There were some minor amendments before they were finally introduced.

Senator BIRMINGHAM: And how long prior to that had these bills existed?

Ms O'Loughlin : They had existed in one form or the other over the last couple of months, but they were not finalised until after the cabinet meeting last Monday.

Senator BIRMINGHAM: Has the constitutionality of these bills been considered?

Ms O'Loughlin : Yes, Senator, it has.

Senator BIRMINGHAM: And I assume the government believes they would withstand High Court challenge?

Ms O'Loughlin : Yes, Senator, they do.

Senator BIRMINGHAM: Have any particular issues been raised, does the government have any concerns or have you taken any particular actions to try to prevent the risk of successful challenge to any of these bills?

Ms O'Loughlin : Senator, we have taken advice on the matter during the drafting of the bills.

Senator BIRMINGHAM: Have any particular precautions or steps been taken to ensure that these bills would withstand challenge?

Ms O'Loughlin : My advice is that, firstly, we have taken advice on the matters but also both bills contain provisions to the effect that respective acts do not apply to the extent, if any, that they would infringe any constitutional doctrine of implied freedom of political communication.

Senator BIRMINGHAM: I want to work through some of the terms in the bills. I will ask about the News Media (Self-regulation) Bill, which is the one I have in my hand. Section 5 part 2—

CHAIR: What bills are we on?

Senator BIRMINGHAM: The News Media (Self-regulation) Bill. Section 5 part 2 provides a range of exemptions in terms of how they apply. One of those exemptions is for material that is targeted to a special interest group. How is that defined?

Ms O'Loughlin : Senator, it is not defined in law, but I think there are various tests available to understand what is a special interest group. What the legislation is trying to achieve there is to make sure that things that are produced for local community groups, the trade press or for small areas of special interest are not captured by the provisions in the act.

Senator BIRMINGHAM: Is there a threshold that applies to what constitutes a special interest group?

Ms O'Loughlin : No, Senator, there is not. But if there were any doubt, that would be a matter that the PIMA could look at.

CHAIR: I missed that, Ms O'Loughlin. It is a matter for?

Ms O'Loughlin : The public interest media advocate could look at that issue.

Senator BIRMINGHAM: In terms of threshold content, can you talk us through exactly the government's understanding of what is captured in terms of news media that will have to be subjected to this self-regulation, as it is described?

Ms O'Loughlin : The government's proposals are aimed at significant providers of print and online news and current affairs. A news media organisation will not be eligible, as defined, for the exemption under the Privacy Act. The news media organisation rules are defined in section 4. Then there are a number of exemptions. The purpose of the proposals is to capture into the scheme the significant providers of print and online news but to not capture those organisations producing information and news for smaller communities. So it really is around the significant providers of news and online services. It does not apply to broadcasters. It really is defined around print. It does not apply to small business operators within the meaning of the Privacy Act.

Senator BIRMINGHAM: So how big does a newspaper have to be to be captured?

Ms O'Loughlin : It just needs to be a corporation. There are no defined thresholds, unlike under the public interest test, where there are thresholds.

Senator BIRMINGHAM: So any publication produced by a corporation that contains news and does not manage to fit within a description of something for a special interest group or the like would be captured?

Ms O'Loughlin : Senator, if they are not captured by the various exemptions which are included in the bill, they would be captured.

Senator BIRMINGHAM: How many newspapers or publications are believed to be captured by the bill?

Ms O'Loughlin : Senator, we have spent quite a bit of time trying to draft the bill in a way that really sticks to the purpose of the exercise. It really is focussed, as I said, at the significant news and current affairs providers. That would, I think, from our analysis, pretty much take in most of the people you would expect that would be covered by it, such as the major national newspapers and the major regional newspapers, but not get down to things like the local society gazette in a community or a particular print publication which was designed to go only to a small number of interested parties.

Dr Pelling : Senator, I also draw attention to the definition of a news media organisation, which is a constitutional corporation whose activities are wholly or principally media related activities and consist of or include news and current affairs activities. It does not include a small business operator within the meaning of the Privacy Act, which I believe is any corporation with a turnover of less than $3 million.

Senator BIRMINGHAM: Would, for example—this is a publication I am not terribly familiar with—the Women's Weekly be captured?

Ms O'Loughlin : I would expect that it would not meet the definition of a news media organisation as its activities do not consist of or include news or current affairs activities and are wholly and principally media related activities.

Senator BIRMINGHAM: So although they might cover public interest stories, including profile pieces on public figures, and may even cover news stories of interest to people that touch on news content on a regular basis, probably in every edition, that would not be captured?

Ms O'Loughlin : Senator, the definitions of news or current affairs activities are the collection, preparation for dissemination or the dissemination of any of the following material for the purpose of making it available to the public—material having the character of news or current affairs, material consisting of commentary or opinion on or analysis of news or current affairs.

Senator BIRMINGHAM: They are relatively broad, in a sense, though, Ms O'Loughlin—commentary on news or current affairs . Let me turn to the online sphere. Another outlet that perhaps is not on my regular visit list is the Mamamia blog. Would it potentially be captured?

Ms O'Loughlin : Again, Senator, I do not think it falls under the definition of news or current affairs or opinion. Most of the Women's Weekly and the Mamamia sites are more straight information sites or entertainment sites.

Senator BIRMINGHAM: A lot of opinion goes on in the Mamamia site. The Prime Minister has even seen fit to have to court the editors and writers on the site to help disseminate and influence public opinion.

Ms O'Loughlin : Senator, the rules under the law are material consisting of commentary or opinion and material having the character of news or current affairs. I do not think that those types of services, which are a mixture of many things, would fall under even the plain English version of what people would think were news or current affairs or opinion and activities which are specifically directed and principally about news, current affairs or opinion.

Senator BIRMINGHAM: Will PIMA identify those outlets that it expects must be a member of a regulated organisation?

Ms O'Loughlin : The way the legislation works is that it is up to a news media self-regulation body to establish itself. It is open to providers of services to join that body if they so choose if there is any concern that they might be caught by the legislation. Or they can sit outside that if they consider that they fit within the exemptions. I think you will find that a lot of small business operators which fit outside the exemptions will be quite happy to sit outside a news media self-regulation body. But there may be bloggers who feel that there is benefit in them being part of that news media self-regulation body. That would be a matter for them.

Senator BIRMINGHAM: Would a journalist who is writing for the Women's Weekly or Mamamia, for example, enjoy the exemptions under the Privacy Act that are targeted in these reforms?

Ms O'Loughlin : I might pass over to my AGD colleague.

Mr Glenn : The question was around?

Senator BIRMINGHAM: Would a journalist who is writing for something like the Women's Weekly or the Mamamia blog enjoy the exemptions under the Privacy Act that these bills potentially would draw, should they not be a member of a relevant organisation?

Mr Glenn : Senator, to the extent that the subject matter that is being written about by the particular journalist who is working for that media organisation can fall within the definition of a media organisation in the Privacy Act, then, yes, they could be covered by the exemption in the Privacy Act. In an organisation that is not covered by the provisions to be inserted into the Privacy Act that deal with news media organisations under this scheme, they could still nonetheless be able to access the media exemption under the Privacy Act if they are able to now.

Senator BIRMINGHAM: So there could well be people operating as journalists who are working for major outlets or publications rather than simply a community service newspaper or particular special interest outfit. There could be journalists who would be able to enjoy the exemptions under the Privacy Act but not be subjected to the proposed regulatory structure?

Mr Glenn : Potentially, yes, Senator. If the journalist or the media organisation does not fall within the definition of news media organisation proposed by the amendments put forward in these bills but nonetheless is able to enjoy the media exemption in the Privacy Act now, they will continue to be able to enjoy that exemption.

Senator BIRMINGHAM: Is this felt to be a loophole or inconsistency that the government looked at, or was there consideration given to how you might attempt to align these definitions?

Mr Glenn : Senator, I think that is actually about the scope of the regulation that is being introduced by these bills, and the entities they are being directed at is a narrower set of entities than those that the broader journalism exemption in the Privacy Act applies to.

Senator BIRMINGHAM: I come to the online space in particular. What online sites and services will be captured?

Ms O'Loughlin : Again, Senator, this is about organisations and not necessarily about particular publications of organisations. The news media organisations are caught by it. Again, if there are organisations that are engaged in wholly or principally media related activities and these consist of or include news or current affairs activities, they will be caught by the regulation. There are, again, exemptions around some of the online material in that it does not apply if it is associated with a broadcasting service. It does not apply if it is associated with a data casting service and anything done by the provider of news or current affairs aggregation service. So what we are not trying to do is put people in the loop who really do nothing more than pull together sources of news and current affairs and opinion from all over the place and just put it out. We are looking for people who are directed towards an Australian audience and who also have editorial control.

Senator BIRMINGHAM: So if you are specifically an online business and you provide your content for free, are you captured?

Ms O'Loughlin : It would depend on whether or not you were an online service which undertook news and current affairs activities, whether or not you were a small business provider, whether or not you were associated with any of the exemptions in the act and whether you had editorial control over the content. So it really depends on what type of organisation you are and what type of service you are providing.

Dr Pelling : The section 5 provisions at various points, for example, say that subsection 1 does not apply to material disseminated by various things, an online service that is not targeted to the public in Australia or material that is including an online service that is targeted to special interest groups. So the same sorts of divisions, I think, would apply in relation to online services as to other forms of services in terms of who the target audience is.

Senator BIRMINGHAM: So would Crikey be covered?

Ms O'Loughlin : We would expect that Crikey would be covered because it is primarily a news and current affairs site and opinion site.

Dr Pelling : Provided it is not a small business operator. I do not know the size of Crikey in terms of the business.

Senator BIRMINGHAM: And in that sense there is essentially an honesty system at play, is there? They would have to self-regulate themselves by joining the Press Council, or will PIMA be able to look into whether somebody has tripped the small business threshold?

Ms O'Loughlin : That would be a matter when applying the privacy exemption that would have to be looked at. The proposals are that the industry itself would develop a self-regulation scheme, including coverage of members who are covered by the provisions in the act. The privacy provisions would be available to those members of those organisations. It would be a matter to consider when the privacy exemption needed to be applied as to whether or not the provisions in this act applied in those circumstances. Sorry, I said that really badly.

CHAIR: You can try again, Ms O'Loughlin.

Ms O'Loughlin : I will try again. I am sorry, Senator. If a journalist were not part of the news media self-regulatory scheme and there was an issue in terms of the Privacy Act, the protections under this scheme would not be available to them.

Senator BIRMINGHAM: So we understand very clearly at the Privacy Act level, can we talk through what exemptions currently apply? What exemptions would apply in the future to journalists who are not captured by an organisation that has to join a news media self-regulation body? What provisions would apply to journalists who in the future are working for a captured news media self-regulation body?

Mr Glenn : We will start with the existing rules in the Privacy Act. There is an exemption in section 7C of the Privacy Act for an act done or a practice engaged in by a media organisation. It will be exempt if it is done in the course of journalism at a time when the organisation is publicly committed to observe standards that deal with privacy and have been published by the organisation. So typically media organisations that are operating under this Privacy Act exemption now have either a self-published set of standards that they say they adhere to in relation to privacy or are a member of another body that does that. In that sense, this exemption engages. If there is a complaint made against that particular media organisation in relation to an interference with privacy, they can claim the exemption in relation to that complaint.

Senator BIRMINGHAM: It is an automatic exemption if they meet the relevant tests in there? There is no need to apply for it?

Mr Glenn : That is right.

CHAIR: On that point: we had a submission today from Dr Margaret Simons from the Centre for Advanced Journalism in Melbourne. She brought a Daily Telegraph front page that showed a footballer who was in rehabilitation. Inside it showed the footballer's children with their faces pixelated. Is that a breach of privacy?

Mr Glenn : Senator, I could not comment on whether a particular incident is a breach of privacy. I can say in that situation, though, that that media organisation has the advantage of the exemption in the Privacy Act if at the relevant time it had privacy standards that it said it was meeting, so the exemption operates.

CHAIR: So a company says, 'Our privacy standards are that we can from a public place with a long lens zoom take a photograph of a footballer in rehabilitation. That is our standard.' Is that acceptable?

Mr Glenn : Whether that meets the standard that the organisation has said that it would meet in terms of the exemption I do not know. That is a matter for that particular standard. In terms of whether, though, the Privacy Act exemption has been engaged by the organisation saying that they have privacy standards and publishing them, that in itself, on the current law, is sufficient to engage the exemption for journalism.

CHAIR: So even if the standard does not meet what most people would think would be a fair and reasonable position? So you can set your standard extremely low under the current legislation. You can set your standard so low that it gives you the exemption. Is that correct?

Mr Glenn : The act does not talk about the nature of the standards that are to be applied. It simply talks about the organisation being publicly committed to observe standards that deal with privacy in the context of the activities of a media organisation and that have been published.

CHAIR: Roughly, how long has that statute been in place?

Mr Glenn : This exemption was introduced into the law in late 2001.

CHAIR: It is pretty vague, but it has been there for 12 years and we have managed to work with it.

Mr Glenn : Yes, Senator.

CHAIR: Ms O'Loughlin, you wanted to say something.

Ms O'Loughlin : Thank you, Senator. The proposed amendment, of course, builds on that exemption. Our amendments to the Privacy Act just strengthen the condition by, in effect, requiring the news media organisation to commit to standards set by an independently approved news media self-regulation body, as evidenced by the news media organisation becoming a member of that body.

CHAIR: That is this legislation?

Ms O'Loughlin : That is correct.

CHAIR: I am talking about the current legislation.

Senator BIRMINGHAM: Which brings it back, in a sense, to the question that I originally asked. Ms O'Loughlin or Mr Glenn, provide some clarity. Ms O'Loughlin was just outlining that this legislation proposes to be the threshold test in the future for journalists working for organisations that are captured by the legislation. That would change the test. It would be the same exemption except for the fact that the test to qualify for the exemption is that you would have to be meeting a privacy standard of the Press Council or whomever rather than your own privacy standard?

Ms O'Loughlin : That is right. You would have to be a member of a body which is a registered body that the public interest media advocate has designated to be an appropriate body.

Senator BIRMINGHAM: And if you are not in a news media organisation as defined and captured by this legislation but are a working journalist, you can still enjoy the existing exemption in the future with the existing terms of needing to have your own privacy code?

Mr Glenn : Yes.

Ms O'Loughlin : And the small business exemptions may apply.

Senator BIRMINGHAM: Small business exemptions may apply with the Privacy Act?

Mr Glenn : Yes. There are a range of exemptions in the Privacy Act, including one for small business operators.

Senator BIRMINGHAM: I turn to the example Senator Cameron gave before. How is the Privacy Act policed or enforced?

Mr Glenn : The Australian Information Commissioner, along with the Australian Privacy Commissioner, have regulatory responsibility for the Privacy Act. The Privacy Commissioner has the ability to receive complaints in relation to people who allege that there has been an interference with their privacy. It has the ability to investigate those complaints. It also has the ability to initiate own motion investigations if the commissioner becomes aware of circumstances where privacy may have been breached.

Senator BIRMINGHAM: So in this instance of the footballer who had been photographed in what is claimed to be a breach of the organisation's own privacy principles, if that were the case and it was a breach of the privacy guidelines of the news media organisation and they went ahead and published a photograph in breach of their own guidelines, that would be a breach of the Privacy Act? The exemption would not apply and they would have breached the act. Is that correct?

Mr Glenn : No, Senator. As I understand it, the exemption would still apply but that media organisation would have breached its own privacy standards. Whatever consequence there was for the media organisation for having done that in relation to its own privacy standards would flow.

Senator BIRMINGHAM: Is there any capacity for such an organisation who has its own standards to breach the Privacy Act, or is it a blanket exemption in that section?

Mr Glenn : In relation to its activities as far as journalism is concerned, the exemption would stand.

Senator BIRMINGHAM: Once they qualify, it is blanket?

Mr Glenn : The rest of the organisation defines that.

Senator BIRMINGHAM: Excellent. I want to move further into the news media self-regulation body. I go to some of the matters to which PIMA must have regard in making a declaration, which is 7 part 3, the very long part. How does the department expect matters of privacy, fairness, accuracy and other matters relating to the professional conduct of journalism to be defined?

Ms O'Loughlin : Senator, what the provisions in this part of the act do is to say that the PIMA must have regard to a range of matters when assessing whether or not it can declare a news media self-regulation body. The way the provisions work is to really put the emphasis back on the news media self-regulation body to come forward with proposals in each of the areas that these matters cover for consideration by the PIMA. So it would be up to the news media self-regulation body to present to the PIMA standards that deal with privacy, fairness, accuracy and other matters relating to the professional conduct of journalism rather than for the PIMA to define that.

Senator BIRMINGHAM: But the PIMA is going to have to define it because the PIMA is going to have to approve whether those standards are met or not.

Ms O'Loughlin : The PIMA must have regard to the following matters. Those matters talk about the extent to which the standards formulated deal with the following and the extent to which those standards reflect community standards and a number of other provisions aimed at accountability and transparency and complaints handling.

Senator BIRMINGHAM: So if the Press Council code simply says that news media organisations must have regard to matters of privacy, fairness, accuracy and other matters relating to the profession or conduct of journalism in their conduct as a news media organisation, is that sufficient to meet the standards of the public interest media advocate?

Ms O'Loughlin : I think it would be unlikely that any news media regulation body that took the provision seriously would present something that just repeated back the legislation. Journalists and the council have spent a lot of time and energy in developing different standards around privacy, fairness and accuracy. They are things that the sector takes quite seriously, so I expect that they will bring forward standards which are quite precise. Some of the evidence earlier today from both the council and from the Independent Media Council talked about how they have presented quite extensive work in the area of privacy, fairness and accuracy. That is what we would expect would be brought forward. If the PIMA felt there were any difficulties around that and the other provisions, it could request that the news media self-regulation body amend its standards or expand its standards. If it felt that privacy was not covered in the standards, it could ask for it to come back and provide something on privacy. But it is really up to the self-regulation body itself to come forward with what it thinks should be covered. Because it is not just that PIMA is going to tick this off. This is about a news media self-regulation body taking self-regulation seriously.

Dr Pelling : I think also it would be difficult, if you think of the practicalities of how this would be implemented, for an organisation like the current Press Council to come to the PIMA with a significantly watered down set of things and say, 'Having lived with an existing code or just recently upgraded the code, we now choose to bring it down to what might be the possible lowest common denominator'. For the PIMA to say that is acceptable.

Senator BIRMINGHAM: It would seem that simply regurgitating the requirements of the act is not acceptable. Is the current code of the Press Council acceptable?

Ms O'Loughlin : Senator, I am not going to speculate on that. It would be a matter for the PIMA to do so.

Senator BIRMINGHAM: The minister has indicated that it is.

Ms O'Loughlin : I am not going to speculate on that. They are the minister's comments.

CHAIR: The officer has indicated that she does not believe it is appropriate for her to comment.

Senator BIRMINGHAM: So are there any guarantees in this legislation that the current code would meet the requirements of the PIMA?

Ms O'Loughlin : Senator, again, I am not going to speculate. What we have provided in the provisions of this act is what the PIMA would consider. It is up to the new self-regulatory body to bring forward a code that it considers covers off all the clauses that are required.

Senator BIRMINGHAM: So if the existing Press Council model were put forward, the PIMA could say yes or it could say no or it could request changes?

Ms O'Loughlin : It could say yes or it could say no, yes.

Senator BIRMINGHAM: Or it could request changes?

Ms O'Loughlin : It could advise the self-regulatory body that it was not prepared to say yes or no at that time. But it cannot put forward suggestions and drafting changes to codes or standards. So it is not like it will come back with, 'Add this in here. Add that in there.' That is not the intention of the PIMA. It can say that it accepts the self regulatory body's proposals or it does not. Or it may work with the applicant to refine matters in some areas. But it is not designed to write the standards itself.

Dr Pelling : I draw your attention, Senator Birmingham, to section 8, which states that before making a declaration under 7(1), the PIMA must consult with the Privacy Commissioner and cause to be published a notice setting out the draft declaration, inviting persons to make submissions to the PIMA about the draft declaration and consider any submissions. So there is a process, too, for deciding to approve or not approve.

Senator BIRMINGHAM: Is the PIMA prohibited from making suggestions?

Ms O'Loughlin : Under the proposals, it has the power to approve or revoke, but it does not have any power to make suggestions.

Senator BIRMINGHAM: But is it prohibited from making suggestions?

Ms O'Loughlin : It is not part of its powers.

Senator BIRMINGHAM: Section 8, which Dr Pelling drew our attention to before, requires the PIMA to set out a draft declaration. Would a draft declaration include reasons?

Ms O'Loughlin : Yes, it would. But it would not provide direction back to the self-regulatory body. As I said, the PIMA is not engaged in trying to define for the body itself what its standards would be. Its role is to consider a range of matters that are brought forward from the industry to assess whether or not it thinks it will be a robust self-regulatory scheme. While some of these matters go to standards, a lot of the other matters go to some of the areas that have been of most concern in the current arrangements, which are about accountability, transparency, independence and dealing with complaints.

Senator BIRMINGHAM: If an individual who has been appointed to the position of PIMA—I will try to come back to that—publishes a declaration or makes a declaration or a decision in relation to either bringing into play a news media self-regulatory body or the revocation of their status and in that declaration says, 'We are revoking or refusing status because it fails to do these things. But if it did these things, we would approve it', would that be in any way prevented by the legislation before us?

Ms O'Loughlin : That would not be an acceptable way of the PIMA. Going back to industry, after its consultation, it would provide back to industry that consultation information. It would either revoke or accept.

Senator BIRMINGHAM: You are telling me it is not acceptable, Ms O'Loughlin. Where is the legislative clause that says they cannot do that? Yes, they can approve. Yes, they can revoke or refuse. Yes, they can publish a draft that sets out reasons. Why in those reasons can they not make suggestions? Where is the prohibition?

Ms O'Loughlin : Senator, the PIMA has been provided with functions and it cannot operate outside its functions. Its functions are to accept or to revoke.

CHAIR: On this issue: if a news body says to PIMA, 'We have this problem. You're looking at it. Because of your knowledge and understanding of these issues, can you give us some suggestions without exercising power?', would that be acceptable?

Ms O'Loughlin : Senator, that is not the way that the PIMA is expected to operate. This is expected to be a self-regulatory scheme. The PIMA may say to the people working on the proposals to come forward. Their role is to accept or revoke. It would not be appropriate for them to guide the development of the standards or guide the development of the scheme.

CHAIR: Is this to ensure that self-regulation is self-regulation without any interference or advice from PIMA?

Ms O'Loughlin : The proposals are directed towards improving the current self-regulatory scheme and having an independent oversight of the development of that scheme. That is so it can be assured that, for example, it improves on the issues that have been dealt with in the privacy debates around dissatisfaction with issues of privacy in newspapers, where consumers have not had satisfaction through the process.

Senator BIRMINGHAM: If the PIMA behaved in a manner that I outlined before and provided suggestions in a ruling, what recourse is there for anybody, including the minister?

Ms O'Loughlin : There are powers in relation to the PIMA. I will just need to find it.

Senator BIRMINGHAM: If you are looking for the termination of appointment of the PIMA, that is section 16 of the bill.

Ms O'Loughlin : The minister may terminate the appointment of the PIMA for misbehaviour, if the PIMA is unable to perform the duties or becomes bankrupt, and there are a number of additional provisions.

Senator BIRMINGHAM: So if the minister of the day thought that it was inappropriate for the PIMA to provide explicit suggestions about what should be in a code, the minister of the day might define it to be misbehaviour and terminate the PIMA? Is that the process we are looking at here with all of those things in mind?

Ms O'Loughlin : I think it would depend on what the intent of the PIMA was in providing that advice. The PIMA, once appointed, is very clear in its role. It would be very clear in its role in terms of accepting or revoking. Whether or not the provision of advice came down to the need for termination of appointment would be a matter to be considered at the time. I would expect that the first instance would be that the industry self-regulatory body itself would not accept any advice coming from the PIMA which crossed the line in terms of trying to guide the development of their self-regulatory body. That is certainly not the intention of the act and certainly not within the PIMA's powers.

Senator BIRMINGHAM: So if it works as you are saying it will work, Ms O'Loughlin, and the PIMA does not provide any direction or advice and the self-regulatory body puts up its model and the PIMA says no, the self-regulatory body then goes back and tries again?

Ms O'Loughlin : Yes.

Senator BIRMINGHAM: If the PIMA says no, the self-regulatory body goes back and tries again?

Ms O'Loughlin : Well, the legislation is very clear about the matters that the PIMA must have regard to. So it would be unusual for a proposal to come forward that did not have regard to those matters in presenting a proposal to the PIMA.

Senator BIRMINGHAM: Yes. But if those matters are to be precise or prescriptive and the PIMA is to sit in judgement on whether they are appropriately precise or prescriptive, then the organisation is going to have to try to keep guessing until they meet the PIMA's satisfaction, if the PIMA is not going to provide any guidance to them.

Ms O'Loughlin : The proposals in the legislation are specifically objectives based, not prescriptive, because we consider that that is a better model for the news media self-regulatory scheme. It would be inappropriate for the setting down in the law of highly prescriptive arrangements that a news media self-regulatory body would have to tick off. That is not the way that the scheme is intended to work and really flies in the face of the intent of the scheme, which is for it to be a self-regulatory body. Self-regulatory bodies can put up proposals to the PIMA, who can accept or revoke. If the news media organisations felt that the advocate had directed them inappropriately, there is nothing to prevent them undertaking court action.

Senator BIRMINGHAM: That does flow nicely into one of the other issues raised here. In terms of the determinations of the PIMA, the right of appeal for a news media organisation would be that you would have to go straight to the Federal Court?

Ms O'Loughlin : Yes.

Senator BIRMINGHAM: Was any consideration given to putting any internal appeals process into this legislation?

Ms O'Loughlin : Senator, what we have included in the PIMA's role is a high level of transparency in its activities so that it does need to consult both with the Privacy Commissioner in terms of the news media self-regulation bill, with the ACMA and the ACCC in relation to the media diversity bills and to open up its decisions for public consultation in advance of the final proposals. It has a high level of transparency built into its processes so that its decision making is transparent to the community as well as the people who are involved in its decisions. The types of decisions it makes, we consider, are best then assessed by the court.

Senator BIRMINGHAM: In expecting transparency and expecting to provide a high level of transparency, you are really expecting it is going to provide detailed reasoning for its determinations, are you not, Ms O'Loughlin?

Ms O'Loughlin : Senator, the PIMA will provide such information as it sees fit against the matters that it has to assess the proposals against, which are laid out in the bill.

Senator BIRMINGHAM: The last of the long list of factors that the PIMA can consider are such other matters, if any, as the PIMA considers relevant. Basically it gives the PIMA a blank cheque as to how they want to work, does it not?

Ms O'Loughlin : No, Senator. I would not characterise it that way at all.

Senator BIRMINGHAM: Why not?

Ms O'Loughlin : Because the PIMA is very clearly defined in that the intent of its appointment is to approve or revoke a scheme presented by an applicant to become a news media organisation under the law. It is not intended to consider anything outside that remit. As you know, usually with legislative drafting, one does not want to miss things in the drafting. Being highly prescriptive, you can actually miss things along the way. We have chosen an approach to not be prescriptive, but we have provided some sensible flexibility for the PIMA. Of course, those considerations have to be relevant within the context of their overarching role.

Senator BIRMINGHAM: Could the PIMA determine that a news media self-regulation body had to have a scientific adviser informing their decisions on complaints made to them about their member organisations?

Ms O'Loughlin : Senator, there is nothing in the matters that it has to have reference to which would get down to directing the body as to who should be on it and who should not be on it. Its role is to be provided with by an applicant a scheme that it can approve or revoke. Within that scheme it is up to the new self-regulatory body that is applying to identify how that scheme will work, including its membership, including how its complaints handling processes will work, and including the make-up of those people who will make decisions on the complaints put forward to it. So it is all embedded back in the industry itself to come forward with proposals which spell out a scheme that the advocate will either tick off or not tick off.

Senator BIRMINGHAM: It is then completely within the discretion of the PIMA themselves as to whether they are satisfied with all of those terms, including matters such as who will sit on judgement of complaints made to a news media self-regulation body?

Ms O'Loughlin : Sorry, Senator, what was the question?

Senator BIRMINGHAM: The PIMA then has complete discretion in terms of whether it accepts or rejects an application as to whether it is satisfied with the type of person who is going to sit on a complaints body?

Ms O'Loughlin : No, Senator. It does not have a role in choosing between the people who are going to sit.

Senator BIRMINGHAM: I did not say the people. I said the type of people.

Ms O'Loughlin : Or the type of people. It has a role in reviewing from the public interest perspective the self-regulatory scheme that is provided to it by the industry itself. So its role is to sit in the seat of the public to say, 'Does this scheme stack up, given the community concerns? Does it have the types of matters covered off which are in the law?' That is its job.

Dr Pelling : Senator, if you look at 7(3) again and the list of things that can be taken into account in the approval process, you will see that they relate to processes like complaints handling. They relate to standards and various things about how the organisation functions. They relate to independence and other similar sorts of things. But there is nothing in there which goes to individual people who might be involved or appointed by that body to undertake particular functions and so on.

Senator BIRMINGHAM: Dr Pelling, it was the type of person rather than individual people. I think a number of those matters could potentially go to the type of person. Surely the PIMA is going to say, 'Well, there must be a level of independence amongst these people. There should be some degree of representation of community standards, which is a factor that has to be considered in here. There should be perhaps somebody with an understanding of privacy considerations. There are a number of things that the PIMA could—

Ms O'Loughlin : That is not the way the legislation works. The legislation spells out to the industry the matters that the PIMA will have consideration of. It is not—

Senator BIRMINGHAM: And that it is in the PIMA's discretion and judgement?

Ms O'Loughlin : But it is not in the PIMA's discretion and judgement to go back and provide prescriptive direction.

Senator BIRMINGHAM: The PIMA can just say no?

Ms O'Loughlin : That's right. The PIMA can say no.

Senator BIRMINGHAM: And in just saying no, the industry has to guess what they got wrong, if that is the approach that the PIMA takes?

Ms O'Loughlin : The PIMA would direct the applicant to relook at the legislation and the issues that they have to have regard to.

Senator BIRMINGHAM: The legislation is pretty sweeping in its construct, though. So the applicant just has to keep guessing until they get it right or ratcheting it up until they meet the PIMA's satisfaction, unless the PIMA does actually provide detailed reasons?

Ms O'Loughlin : Senator, the emphasis in law is on the industry itself to take seriously a self-regulatory body. It is not just for the purpose of getting a tick from the PIMA. It is about the industry itself taking responsibility for addressing the concerns of the public around news media coverage. That is the intent. The incentives are there to improve the current self-regulatory schemes, not to provide some sort of de facto prescriptive arbitrator under the PIMA. The whole purpose of these provisions is about the independent role and the freedom of the press and all those issues and saying, 'The expectations of the community are that there should be some consideration of whether that body is working effectively and will work effectively.'

Senator BIRMINGHAM: Ms O'Loughlin, in the end it comes down to the judgement of whoever is appointed as the PIMA as to how these matters are actually interpreted and applied, does it not?

Ms O'Loughlin : It comes down to the guidance that is provided to the PIMA in the law as to what matters it must consider and how it goes about its business.

Senator BIRMINGHAM: And the PIMA has a long list of matters it must consider. It must then exercise its judgement as to whether those matters are adequately addressed.

Ms O'Loughlin : They have a number of matters that they must consider and then they can come to a conclusion.

Senator BIRMINGHAM: And the conclusion is they exercise their judgement as to whether the matters are addressed to their satisfaction or not.

Ms O'Loughlin : With objectives based legislation, yes, of course, it will be a judgement.

Senator BIRMINGHAM: It comes down to their judgement.

Dr Pelling : And there is a consultation process.

Senator BIRMINGHAM: And there is a consultation process, where every media critic in the country can make their comment on the satisfaction or otherwise as well as—

Ms O'Loughlin : Also, importantly, the Privacy Commissioner.

Dr Pelling : Going to a matter that you mentioned earlier, I am just looking at the explanatory memorandum and notice it must also set up the body corporate news media self-regulatory scheme and the initial views of the public interest media advocate concerning the matters to which it must have regard. So there is a capacity for them to provide views and then get comments from anybody who feels like putting in comments.

Senator BIRMINGHAM: I did not quite catch all of that, Dr Pelling.

Dr Pelling : I am just reading it out. You raised a point about what can be a company. Can the declaration that it puts out to the public have an explanation of the PIMA's views? The answer, according to the explanatory memorandum, is that it is a matter that it can include.

Senator BIRMINGHAM: It can include its reasons and those reasons, as reasons often could, could inherently have suggestions within them?

Dr Pelling : Well, initial views is what the EM says.

Senator BIRMINGHAM: To the appointment of the PIMA and who that person may be. The minister has said that the government will consult with the opposition. The minister has said that he does not foresee that it would be a former member of parliament or the like. Are there any requirements in the legislation that meet the minister's commitments there?

Ms O'Loughlin : There are requirements for the types of skills that the PIMA should have. There is not a specific inclusion in the legislation about the consultation with the opposition. But the minister has made that commitment publicly.

Senator BIRMINGHAM: And unlike the ABC Act, there is no specific prohibition on who could possibly be appointed to the PIMA? I was about to say a member of the PIMA, but of course there is only one, so it is who is appointed as the PIMA.

Ms O'Loughlin : In terms of the consultation process, there is information in the explanatory memorandum that clarifies that there would be consultation with the opposition. But there are not the exclusions in the act that are in the ABC Act about the exclusion of certain types of people. It is more in looking at the types of skills that you would want in an advocate. Those skills are laid out in the legislation itself.

Senator BIRMINGHAM: An example I have given is Nicola Roxon, the former Attorney-General, who has substantial experience in the law and substantial experience in public administration. She would meet the sole criteria that exists in the legislation?

Ms O'Loughlin : I am not going to speculate on who might meet the criteria, Senator.

CHAIR: Thanks, Senator Birmingham. One of the criticisms we had about the bill is division 1 on page 9 and 7C.

Ms O'Loughlin : Senator, my apologies. Which bill?

CHAIR: The News Media (Self-regulation) Bill at page 9, which sets out what PIMA has regard to. We went there earlier. We had a bit of a discussion about clause C, the extent to which those standards reflect community standards. Have you got that?

Ms O'Loughlin : Yes.

CHAIR: How do you make a judgement about community standards? The criticism is that this is too wide-ranging.

Ms O'Loughlin : The concept of community standards is actually fairly common across the codes of practice which are covered off by the Broadcasting Services Act currently. For example, the ACMA, in registering codes of practice for the commercial broadcasting sector, both radio and television, has to take into account community standards. I am sure Ms McNeill will correct me if I get that wrong. So it is a reasonably standard clause when we are looking at these types of issues of delivering content to the Australian community. I might ask Jennifer to comment on it. Normally that would be either through consultation processes, or research can be undertaken. They are the types of things that would test what community standards were at any given time. I will ask Ms McNeill if she wants to add to that.

Ms McNeill : Under the BSA, the ACMA must register codes of practice provided they meet a couple of preconditions. One of them is that they contain appropriate community safeguards. When the ACMA is forming a view on that, obviously they draw on the experience of the various members of the authority. They also draw heavily on community research that is conducted into attitudes to particular protections and to particular matters. We closely consider any apparent deficiencies that might have become manifest over time while a code has been in place—whether complaints are coming to us raising issues which are not covered off by codes and so forth. So it is possible to form a view on community safeguards and, by implication, community standards.

CHAIR: So it is not uncommon for an individual to rely on their experience? Is that why Ms O'Loughlin or whoever gets the PIMA role must be experienced?

Ms O'Loughlin : That is certainly part of it. As I said, the PIMA already has consultation processes built into that. That would be a way of testing community standards. Or it may wish to undertake research in a particular area to assist it in its decision making. But also its own experience and its own skills, within the skills and experience that we have requested under the law, would certainly add to that.

Dr Pelling : Senator, remember that the whole point of this is that the self-regulatory body brings forward its own proposal. So there is plenty of scope for the self-regulatory body, in bringing forward to that proposal, to argue a case and to demonstrate the research that it has based on its own intelligence out in the community about why it thinks a particular standard reflects the community standard.

Ms O'Loughlin : And specifically in relation to privacy, of course, the consultation with the Privacy Commissioner would tap into the experience and understandings of the commissioner around community standards as well in the area of privacy.

CHAIR: The commissioner is a part-time position, as I understand?

Ms O'Loughlin : That is correct, yes.

CHAIR: So there is not a huge amount of resources there, is there, because it is just monitoring; it is not actively managing, is it?

Ms O'Loughlin : The role of the PIMA is envisaged as a part-time position because the expectation is that in the area of the News Media (Self-regulation) Bill there will be one, two or three proposals perhaps come up at the beginning if the legislation is passed. Then there is a role for the PIMA if there is substantial change to that body. Or if there are substantial changes to the workings of that body, it would come back to the PIMA for assessment as to whether it should be revoked or accepted. So there is a peak of work at the beginning, but then we would expect that it would not be a position where it had a full-time role after that.

Dr Pelling : I also draw your attention to clause 18 of the media advocate bill, which says that assistance to the PIMA is given by any or all of the following: the ACMA, the ACCC, the department.

CHAIR: So what bill are we on?

Dr Pelling : I am looking at the Public Interest Media Advocate Bill, which is the bill that appoints the PIMA. I am looking at page 9, section 18. It sets out that a range of bodies may assist the PIMA in his or her functions. The assistance may include the provision of information, the provision of advice and making available resources and facilities, including secretariat services and clerical assistance.

CHAIR: Could that be ACMA?

Dr Pelling : ACCC, ACMA, the department or any other Commonwealth agency, department or authority of the Commonwealth may assist the PIMA.

Ms O'Loughlin : Because our expectation is also that a lot of the information that would be useful for the PIMA will be collected through processes with the ACMA or the ACMA's research through the ACCC. Of course, the department can also assist the PIMA.

CHAIR: So you would not be expecting PIMA to actually conduct any research but to seek the assistance of other bodies?

Ms O'Loughlin : The PIMA can call on the assistance of those agencies to fulfil its functions. For example, it may call on the ACMA to provide it with research that has been recently undertaken on community standards in a particular area, which may be relevant to its considerations.

CHAIR: There was some speculation today that PIMA may never make any determinations on anything after the initial set-up if the standards bodies—the press councils—actually do the job themselves. Is that correct?

Ms O'Loughlin : That is correct, Chair. The only time that the PIMA's responsibilities would be enlivened again is if there were a substantial change to that body. An example is if half its membership left or it pulled back on its standards. But once they are established and once they are declared, that really leaves the industry to perform its functions well.

Dr Pelling : There is also a requirement that the PIMA must give as soon as practicable after the end of each financial year a report to the minister for presentation to the parliament on its activities in the year and such other matters concerning the operation of the following provisions during that year. It lays out several provisions.

Ms O'Loughlin : That is correct. It could be that once the bodies are established, the PIMA's role is only brought back into effect if something radically changes.

CHAIR: We have had submissions from the Independent Media Council. I think the chair of that media council is a former politician, by the way, appointed by Mr Stokes. If the Press Council sets certain standards and the Independent Media Council sets different standards—it is a Western Australian group—how do we deal with that? Does PIMA say that the community standard that has been set by the bigger organisation is the standard you should set if their standards are set lower?

Ms O'Loughlin : The PIMA's test is really around the extent to which the body corporate's news media self-regulation scheme has been or is likely to be effective—that is one of the core provisions—and that they have standards in place. So if two news media organisations came forward with schemes which deal with the matters that the PIMA is required to consider, then the PIMA could decide whether the two schemes met those criteria and were acceptable. Firstly, there are mandatory eligibility requirements, but the matters are really around the type of arrangements that have been put in place for the body around issues like accountability, transparency, that they have standards in place and that they have complaints handling processes in place. So it is feasible that the PIMA could approve both. I would expect that it is probably likely that through the public consultation process the different bodies that may be putting proposals up may look at the other schemes and adjust their schemes accordingly if they think there is benefit in doing so.

CHAIR: We are still on the self-regulation bill. I want to go to the revocation issue. Obviously, this is an important issue. This is purely hypothetical, but a revocation could be made against the Press Council if it were not meeting the standards. Is that correct?

Ms O'Loughlin : If it was appointed, declared originally by the PIMA and then something substantial changed.

CHAIR: So that revocation takes place. It has a number of members. The change that took place could be the behaviour of one individual member of the Press Council. What happens to all the other members of the Press Council who have not behaved in a manner to excite the attention of PIMA? Are you with me?

Ms O'Loughlin : Chair, the revocation is about the behaviour of the body, not the behaviour of individual members. The emphasis, again, is on the body and how they might handle the behaviour of their own members.

Dr Pelling : There is also a provision that says that PIMA must not revoke unless it has taken reasonable steps to ensure a declaration in relation to—

CHAIR: Yes. I was going to come to that replacement declaration. How would that work in practice? This is 10(6), I think. It is the replacement declaration. PIMA must not revoke under subsection 103 unless PIMA has taken reasonable steps to ensure that a declaration under 7(1) relating to another body corporate will be enforced at least six months before the revocation takes effect. Can you just explain to me what that means?

Ms O'Loughlin : The intent of that clause is to make sure that if one body fails, there is another body that the members may be able to move to in a reasonably timely manner so that they in good time would be able to access another organisation whereby the privacy exemptions afforded for that body would apply to those journalists.

Dr Pelling : So there is always a body, in other words, is the intention.

CHAIR: What happens if no-one wants to form a body?

Ms O'Loughlin : Then they would not be covered by the privacy exemptions.

CHAIR: So that is the incentive and the stick, really?

Ms O'Loughlin : That is the incentive, yes.

CHAIR: So if the existing body does not take steps to comply with its own self-regulation, that is probably the big trigger, is it not?

Ms O'Loughlin : The trigger for revocation, as in division 2, is there are mandatory revocations, which are around things like the body actually does not have a news media regulation scheme any more. Another is if the members decide that they do not want that scheme at all. But then there are some other discretionary revocation factors laid out where there have been significant changes in relevant circumstances and where there has been a change in relevant community standards. The intent there is that the PIMA would only look at discretionary revocation where something significant had changed. As I mentioned earlier, an example is that three-quarters of the members left the organisation and had not established an alternative organisation. Again, before revoking, there are consultation provisions that the PIMA must go through as well. The replacement declaration there is very much recognising the strong incentive in the bills around the access to the privacy provisions and that we do not want disruption in the industry if one scheme and one body fails and there is not a body that journalists could move to.

CHAIR: Can you walk me through the mandatory revocation of declaration? It says that if a declaration is in force under section 7(1) in relation to a body corporate, the PIMA must by writing revoke the declaration if—and then we go to (d)—the body corporate has the power to suspend a news media organisation member's rights as a member of the body corporate or expel a news media organisation member from the body corporate. Then it goes on to say that if there are circumstances that do not involve a failure by the member or a breach of remedial direction. Can you explain that to us?

Dr Pelling : If you go back to 7(2), you will find there is an eligibility requirement, which is a compulsory eligibility requirement. There is a restriction. The only two circumstances—

CHAIR: I have that, yes.

Dr Pelling : that apply relate to a failure to pay a corporate fee or charge payable or a breach of remedial direction. So there is a narrow set of circumstances which applies in relation to the corporation. The mandatory revocation applies if the body corporate has powers which go beyond those limited set of circumstances.

Ms O'Loughlin : As my colleague has just put it, it is to make sure that the body corporate does not just expel people willy-nilly.

CHAIR: But they would have the power to expel provided it was in 7(2)(iii) or (iv)?

Ms O'Loughlin : That is correct.

Dr Pelling : Yes. The only circumstances where they have the power to expel will be a failure to pay a fee or a breach of a remedial direction, which they have themselves imposed.

CHAIR: If they expel a member for not meeting the standards, PIMA does nothing in relation to that, do they?

Ms O'Loughlin : That is correct, yes.

CHAIR: So the question of expulsion is not a PIMA matter; it is a self-regulation matter?

Ms O'Loughlin : The types of actions that the self-regulatory body might want its members to take if they are in breach of its standards would be a matter for the self-regulatory body.

CHAIR: Ms McNeill and Mr Cassidy, does the ACCC have this issue of community standards in your legislation?

Mr Cassidy : No. We do not.

CHAIR: But do you apply community standards at all?

Mr Cassidy : No. Not that I am aware of.

CHAIR: Ms McNeill, you have indicated you do.

Ms McNeill : We have the concept of appropriate community safeguards. I can see that there are some commonalities with the concept of community standards.

CHAIR: Could you take us to the commonalities?

Ms McNeill : Well, appropriate community safeguards involves a consideration of what the community as a whole regards as an appropriate protection or an appropriate standard of conduct from, in our case, predominantly broadcasters. But there are some other frameworks in which a similar concept operates. So that involves accepting that there will be a plurality of views, but pitching it appropriately so that it is reflective of those views, accommodates those views but is not protective of the one per cent, perhaps, who have an extreme or particular view. So that is why I say it involves the exercise of judgement on the part of the authority decision making group. But that would be informed by research. In the past, research we have undertaken has included research on community attitudes to broadcasting privacy protections and community attitudes to accuracy obligations in news and current affairs and a range of things. We update the research periodically.

Only recently we announced a project to undertake a holistic assessment of contemporary community safeguards. Again, that will be informed by research. The focus of our research necessarily reflects our remit. We typically in this context research expectations and attitudes around broadcast content as opposed to, for example, written content. If we are doing something similar in the telco space, where we also have a role, we will look at obviously the safeguards offered in the telco context. So our research is specific to the remit that we are pursuing at any point in time.

CHAIR: Thank you. Mr Cassidy, does the ACCC have a public interest test approach?

Mr Cassidy : We can do what is referred to as our authorisation process. Basically, what that is about is when they approach us, say, in relation to a merger or various other forms of conduct, we say, 'Look, this may well result in a lessening of competition. But we believe there are offsetting benefits as a result of which the commission should authorise us to undertake the conduct.' Those benefits can be fairly widely defined. So, in a sense, if you like, we do get into having to make a judgement about how on the one hand you compare an anti-competitive cost with offsetting public benefits. If you like, you could characterise that, I suppose, as a public interest type test, but it is one that is couched still in an economic framework, if I can put it that way.

CHAIR: Ms McNeill, what about ACMA? Do you have any public interest issues that you deal with?

Ms McNeill : Probably the closest analogue is this concept of community safeguards. Mr Cassidy has referred to the commission's authorisation role. Obviously, the diversity regime that we administer at the moment is not a discretionary regime. It does not have that kind of discretionary functionality built into it. It is much more based on numeric calculations and so on.

CHAIR: Ms O'Loughlin, what about the public interest in relation to mergers? Can you take me very briefly to PIMA's role in terms of making sure there is media diversity?

Ms O'Loughlin : The public interest test set for the PIMA is that in changes of control of significant news media voices, there is not a substantial lessening of diversity in the market. If there is to be a substantial lessening, it is in the public interest. So the test that the advocate is to apply is to look at the significant news media voices, where there may be changes of control through mergers or acquisitions. The advocate is charged with looking at how that transaction will actually affect diversity in the market. For example, at the moment, there are already a number of diversity rules in the current legislation. There is the two out of three rule and the four out of five rule. Neither of those rules actually addresses nationally significant voices at the national level. The current legislation is based around the concepts of radio licence areas. So it is all about who is operating within one licence area or another licence area. The proposals that the government has put forward do a number of things. Firstly, they allow for consideration of national voices, which have not been covered previously in the law. They also allow for changes in the influence or importance of those news media voices over time. For example, at the moment, the media diversity rules are only around commercial television and commercial radio.

CHAIR: Ms O'Loughlin, I will ask you to take this on notice because I have promised Senator McKenzie I will give her the call. We are about one minute away from adjourning. I know that she has a question she wants to ask. I am not sure if she wants to put that on notice. Could you take that on notice?

Ms O'Loughlin : Certainly we can provide you with more information.

Senator McKENZIE: Thank you so much. I would like to let you know that there will be questions on notice from me too, because I have more than one minute's worth of questions. Earlier in questioning from Senator Birmingham, you were outlining whether one worked for a major publication. There was criteria laid out about whether one was covered or not by the Privacy Act. I understand that. Are you not a journalist if you do not work for one of those particular organisations?

Ms O'Loughlin : You are certainly a journalist.

Senator McKENZIE: Are you protected under the Privacy Act if you work for a publication that turns over less than $3 million a year?

Ms O'Loughlin : The small business exemption.

Mr Glenn : Potentially, Senator, yes. The exemption works at the level of the media organisation rather than the level of the journalist.

Senator McKENZIE: So is the Benalla Ensign covered or the Mirboo North Times? Would they or the staff that work for them be covered under this legislation? This is a similar line of questioning to Senator Birmingham's Women's Weekly questions. If you could take that on notice, that would be great. Earlier, we went into great detail on community standards and what that represents. Clauses 10(3)(b) and (c) are about a significant change in relevant circumstances and a change in relevant community standards. Who decides what is relevant and who decides what is significant?

Ms O'Loughlin : Senator, it is a judgement for the PIMA under the current—

Senator McKENZIE: Thank you. That is fine. I am just conscious of time. Does the minister hire PIMA?

CHAIR: Ms O'Loughlin, have you finished your response? Ms O'Loughlin is entitled to finish the answer.

Ms O'Loughlin : It is a matter for the PIMA to be comfortable that they are significant changes, not that they are minor changes.

Senator McKENZIE: Absolutely. We heard that the minister appoints the PIMA.

Ms O'Loughlin : The minister appoints the PIMA.

Senator McKENZIE: Does the minister also have the power to sack the PIMA?

Ms O'Loughlin : As I mentioned earlier, there are provisions in the act for the termination of the PIMA under certain circumstances. I am happy to provide them on notice if that would help.

Senator McKENZIE: Thank you very much. I know we were talking about national significant voices and the diversity of voices. I am particularly interested in local content and local news et cetera. We have heard a lot of evidence around that over the last two days. Could you please provide your understanding of the implications of these media laws on that issue? I am particularly interested in the ACCC's role in protecting competition and diversity within the media environment and how you see PIMA enhancing or assisting. Is there a duality of crossover in terms of what you are looking at? I think that might be it.

CHAIR: Thanks very much. That concludes today's proceedings for the inquiry into the media reform bills. I thank all witnesses for their informative and sometimes feisty presentations. The committee has resolved that answers to questions on notice be returned by 8.00 am on Wednesday, 20 March 2013. In case I have missed anything, it is agreed that all documents tabled be accepted. I declare the hearing closed.

Committee adjourned at 10.01 pm