Nationals Senators Additional Comments
1.1The inquiry into the Labor Government's Misinformation and Disinformation Bill has demonstrated the proposed legislation compromises the free speech of Australians and is a threat to the free exchange of ideas and democracy.
1.2The evidence presented throughout this inquiry showed that although the Hon Michelle Rowland MP, Minister for Communications (the Minister) was taking a second run at this legislation—after failing spectacularly a year earlier—the legislation proposed was again half-baked and poorly considered.
1.3Witnesses such as Nine Entertainment were very clear that their primary position is that this bill should not be passed and that this bill is censorship.[1] Mrs Lorraine Finlay from the Australian Human Rights Commission recommended that the bill not be passed in its current form for reasons such as:
… the inherent dangers in allowing any one body ‒ whether it be a government agency or social media platform − to make decisions about what is and what is not misinformation and disinformation without robust safeguards and accountability mechanisms.[2]
1.4From the outset, the Labor Government treated this inquiry process as though the Misinformation Bill was a done deal, and treated the necessary consultation and scrutiny process for such a controversial piece of legislation with low regard. They limited the timeframe to accept submissions, attempted to restrict hearings to a single hearing, and to date only 105 of the more than 28 000 submissions are publicly available on the committee website.[3]
1.5The Labor Government's core argument in defending this proposed legislation seemed to be that this bill relates to rules digital platforms must follow when dealing with information, rather than rules related to specific pieces of misinformation, and a lack of understanding as to why Australians are worried about it.[4] But Australians are worried. They are worried that this legislation will stifle free speech and result in censorship of legitimate viewpoints.
1.6Throughout the inquiry, witnesses raised serious concerns and criticism of the definitions in the proposed bill and its Explanatory Memorandum, which were repeatedly described as too 'vague', 'broad', and 'subjective'. Strong concerns were raised from almost all witnesses, including lawyers, industry and everyday Australians. Mr Brian Marlow from CitizenGO warned the committee 'when you have definitions that are this loose, which I believe is deliberate, it allows unelected bureaucrats to enact their own personal biases and crack down on all forms of speech'.[5]
1.7The Senate referred the provisions of the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (the bill) to the Environment and Communications Legislation Committee on 19September 2024, for report by 25 November 2024. Submissions closed on 30September 2024, with the submission process open for 7 business days. In that period, the committee was inundated with submissions, with more than 28 000 received.
1.8Although many of the contributions submitted to the inquiry were proforma petition emails, more than 8 000 were received from individuals and due to the truncated and rushed process allowed by the Labor Government, Senators on the committee have been unable to view these publicly.
1.9As at 22 November 2024, only 105 submissions out of more than 8 000 individual contributions have been published. On 11 November 2024—the final hearing date for this inquiry—only 98 had been published.
1.10Senators' offices were overwhelmed by emails and telephone calls from stakeholders and individuals who were deeply concerned about the reckless inquiry approach applied to this proposed legislation and on 1 October 2024 the Nationals Senate team wrote to the committee requesting they consider the following:
extending the date to receive submissions;
holding a minimum of three—and preferably five—public hearings; and
extending the reporting date until at least December 2024, and preferably into 2025.
1.11The Nationals Senate team raised concerns that lack of proper scrutiny and consideration would set a worrying precedent for governance, and is a disservice to the democratic fabric that underpins our nation.
1.12The Australian Senate Practice handbook states:
One of the principal functions of the Senate … is to conduct inquiries into such matters of public interest and into the conduct of government. Inquiries assist the Senate to obtain information which is necessary to enable it to legislate effectively and to inform the public of the manner in which government is conducted so that the electors will also be capable of making informed decisions.
Inquiries are conducted principally by seeking information and opinions from persons who possess the information and whose views are likely to be significant. The formal method whereby this information-gathering is conducted is through hearings of evidence at which witnesses attend and provide information by making submissions and answering questions.[6]
1.13The committee declined to extend the submission date and the date for the committee to provide a report, however it did agree to accept late submissions upon consideration, and provided the minimum three public hearings we requested.
1.14Despite Nationals Senators' protestations, the more than 8 000 individual contributions have yet to be published. The Australian public has the right to participate in a fair and transparent consultation, not a rushed push to bypass scrutiny in pursuit of political gain. This has not occurred in this inquiry. Voices who raised concern or query over this rushed Labor Government legislation were gagged. The committee was unable to review and consider these submissions as part of the inquiry.
1.15Nationals Senators acknowledge the hard work and dedication of the Environment and Communications secretariat staff and the long hours worked to support this inquiry. Nationals Senators are aware of the resource burden on the team during an inquiry of this magnitude and in such a short timeframe. The secretariat was at all times helpful, balanced, easily contactable and fair as they worked to support the committee.
1.16Nationals Senators would like to thank the Environment and Communications secretariat for their work on this inquiry.
1.17Throughout the inquiry, concerns were raised over the unclear and uncertain definitions of misinformation and disinformation in the proposed bill, including from Mr Mejia-Canales, who believed 'the bill could benefit from tightening up some of these definitions'.[7]
1.18The inquiry raised concerns about interpretation of the definitions within the legislation and Explanatory Memorandum, as without clarity these definitions could be misinterpreted or incorrectly applied, which could result in the restriction of legitimate freedom of expression, or fail to address harmful behaviour not adequately prescribed.
1.19Senator Ross Cadell questioned where the definition of 'politically motivated censorship' sat under the broader definitions, to which Mr Daniel Wild from the Institute of Public Affairs (IPA) responded it was 'pretty vague and subjective'.[8]
1.20One of the IPA's main reservations is:
…that misinformation and disinformation themselves are very broad terms. So you look at the concept of harm, the potential to cause harm, to a range of factors, including the Australian economy and so forth. It's hard to think of any politically contested issue that could not be conceivably captured under these laws, and that's a real concern of ours.
As we know, in our society, people can take offence or claim that they've been harmed by something. They may genuinely mean that. They may genuinely feel harmed by someone's speech. But that is an incredibly low threshold by which to police what people can say online. We also know the prospect of activists, that will weaponise this to try and shut down debate, by claiming something has been harmed, and they use that to weaponise, which then has a chilling effect. People will say, 'I'm not going to engage anymore because I'm worried that I'm going to get censored under this regime'.[9]
1.21The proposed legislation and its Explanatory Memorandum's lack of clear and precise definitions for misinformation and disinformation undermine the very purpose of the bill and the principles of freedom of expression and legal certainty.
1.22The vague and overly broad definitions of 'misinformation' and 'disinformation' in the proposed bill pose a significant risk of overreach, potentially restricting lawful speech under the guise of addressing misinformation. The ambiguity of the proposed bill and its Explanatory Memorandum may result in individuals fearing to express legitimate opinions, or even to engage in open discourse due to fear of regulatory or legal repercussions. The IPA provided evidence that whilst people are concerned about the spread of misinformation, in polling they conducted, 49 per cent of respondents believed the solution to countering misinformation was more debate or more freedom of speech.[10]
1.23Dr Duxbury of Digital Industry Group (DIGI) opined ‘[w]e think the definitions are too broad and, unfortunately, they put the digital platforms in the position of being the sole arbiters of truth online’.[11] The definitions provided in the legislation and explanatory memorandum are broad and vague. Clear and concise definitions are fundamental to effective legislation as they determine the scope, application and interpretation of laws and ensure they are effective for their intended purpose.
1.24The Australian Human Rights Commission warned that 'if we can't clearly define what the problem is, it is very difficult to come up with a legislative response that will strike the right balance in addressing that problem'.[12]
1.25Further, Mrs Finlay provided evidence that inadequately defined terms could lead to censorship of human rights defenders exercising their rights 'to criticise the environmental or human rights policies of major companies in Australia'.[13] Public debate and open discourse on issues such as climate change, economic policy, or healthcare should be encouraged and not suffocated.
1.26The bill in clause 13 defines misinformation as the 'dissemination of content using a digital service', where it 'contains information that is reasonably verifiable as false, misleading or deceptive'. The content also must be provided to one or more end users and is 'reasonably likely to cause or contribute to serious harm'.[14]
1.27Information is not just limited to content that is said to be a 'fact', but also extends into the realm of 'opinions, claims, commentary or invective'.[15] This poses serious concerns that this bill could empower the Australian Communications and Media Authority (ACMA) to require digital platforms not only to censor misleading facts, but also to engage in deciding whether an individual's 'opinion' or 'commentary'—particularly on controversial political, economic or even academic topics—could fall foul of this bill.
1.28As stated by Professor Anne Twomey, 'once you go beyond what's verifiably untrue to things like claims and opinions that are made [for example] during an election process…then you're right slap-bang into political communication, and that's where the thing will fall over'.[16] The far reach of this definition broadens the scope of the bill beyond a protection of the public from misleading facts but rather stifles potential public debate on important and controversial issues.[17]
1.29In distinguishing disinformation from misinformation, the bill also adds that for content to satisfy the disinformation requirement there must be an intent to deceive another person or that the dissemination of the content involved 'inauthentic behaviour'.[18]
1.30From within the digital platform industry, concerns around the clarity and the breadth of the definitions for misinformation and disinformation have made the bill potentially unworkable. Google stressed that the bill lacked the 'requisite certainty', in order to 'meet obligations under the Bill in a way that minimises the risk of unintended consequences, notably the removal of content'.[19] The Digital Industry Group Inc. (DIGI) stated that the scope of the definitions remains 'too broad'.[20]
1.31The Victorian Bar Inc. also expressed apprehension as the bill hinges on the concepts of 'misinformation' and 'disinformation' and these will 'inform the interpretation of every provision of the Bill'.[21] If the definitions of these two crucial concepts are impractical, then the bill itself would not translate to a functional piece of legislation.
1.32Whether something is 'reasonably verifiable' as false, according to the Explanatory Memorandum, requires the ACMA or the digital platforms themselves to engage either in a process of fact-checking, contracting it out to third parties, or engaging 'expert opinion'.[22] The process of determining whether something is reasonably verifiable as false and could lead to the cause of 'serious harm' would result in a scrambled approach by digital platforms and the ACMA whenever there is an election, religious holiday, delayed major infrastructure project or controversial forecasts on the Australian financial markets.
1.33The dangers of this scrambled and potentially unsustainable approach were articulated by Professor Twomey who observed that when engaging an 'expert opinion', often a fact checker who is not as well versed in the matter would 'misunderstand the experts',[23] which can result in inaccurate fact checking reports or indeed potentially unreasonable determinations of falsehood.
1.34These concerns were further examined by the Australian National University (ANU) Law Reform and Social Justice Research Hub. In their submission they emphasised the difficulties of relying on experts to determine content to be 'reasonably verifiable' as false. They wrote that 'whilst experts are often correct within their particular domain of expertise, they are sometimes wrong ‒especially when making determinations on issues whereby time has not allowed substantial research to be conducted'.[24]
1.35Dr Nick Coatsworth, speaking from a public health perspective, discerned that it was 'simply not conceivable', for the ACMA, the Minister or government bodies to determine an 'uncontested' threshold for something being 'reasonably verifiable' as false in the area of public health.[25]
1.36When discussing her YouTube channel, which provides public education about constitutional issues, Professor Twomey expressed concern that she doesn't know whether her content falls within the category of reasonable dissemination of academic material, stating 'well, if I don't know then maybe that is a problem'.[26]
1.37The definitions of the bill required the inclusion of the element of 'serious harm' in order to satisfy whether content on a digital platform constitutes misinformation or disinformation. ‘Serious harm’ has been also considered too broad and vague by inquiry participants.[27] 'Serious harm' is defined through six elements; that is, that the content is reasonably likely to cause or contribute to:
harm to the operation or integrity of an Australian electoral process
harm to public health in Australia
vilification of a group in Australian society distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality or national or ethnic origin, or vilification of an individual because of a belief that the individual is a member of such a group
intentionally inflicted physical injury to an individual in Australia
imminent damage to critical infrastructure or disruption of emergency services in Australia
imminent harm to the Australian economy.[28]
1.38It goes without saying that the categories set in this bill attach themselves to key areas of civic and political debates within Australia. This concern was highlighted by the IPA in their evidence to the inquiry when they stated 'the concept of harm, the potential to cause harm, to a range of factors, including the Australian economy and so forth. It's hard to think of any politically contested issue that could not be conceivably captured under these laws'.[29]
1.39A common example raised by the IPA and other submitters related to the discussion of interest rates, which could harm confidence in financial markets despite legitimate concerns of rising inflation and the cost of living. Discussion of these matters could be considered 'serious harm' under this bill.[30] The bill could also stifle content that also could question legitimate debate around corrupt trade practices or banking that could lead to potential inquiries in future.[31]
1.40Regarding the economy, the DIGI in its written submission stated that harm to the Australian economy was ‘highly speculative and not grounded in any evidence of harmful mis/disinformation that is not already covered by other laws.’[32] This further supports that certain elements of the bill target areas where controversial policy discussions or topical issues could be unduly censored by a subjective code or standard set by the ACMA.
1.41Similarly, the Australian Christian Lobby highlighted ‘[t]he very definition of 'serious harm' is broad, vague, subjective and, really, limitless...’[33] This concept of subjectivity has also been an area of criticism.
1.42One of the dangers of the broad scope of 'serious harm' is that under clause 13(3), to determine whether the content on a digital service is “reasonably likely” to cause or contribute to 'serious harm’, ‘regard must be had to’:
the circumstances in which the content is disseminated;
the subject matter of the information in the content that is reasonably verifiable as false, misleading or deceptive;
the potential reach and speed of dissemination;
the author of the information;
the purpose of the dissemination;
whether the information has been attributed to a source and, if so, the authority of the source and whether the attribution is correct;
other related information disseminated that is reasonably verifiable as false, misleading or deceptive;
any matter determined by the Minister under subclause; or
any other relevant matter.
1.43The above criteria sets out a subjective scope in determining whether content could cause or contribute to 'serious harm.'
1.44The definitions contained in the proposed bill also included the term 'reasonably likely' which, it could be construed, indicates that no actual damage is required, rather that there is a likelihood that damage could result. This creates a broad prospective assessment that the courts will have to apply, which could have serious implications for freedom of expression.[34]
1.45Furthermore, the concept of 'reasonably likely' in both clauses 13(3) and 14 creates a situation in which the bill as legislation would function on a series of subjective value judgements which is determined by the ACMA codes and standards, digital platforms or potentially even the Minister.
1.46This concern was raised by the Victorian Bar who emphasised that these value judgements could be made ‘in respect of favoured and disfavoured 'authors' or 'purposes', without any express obligation to have regard to freedom of expression, privacy, economic liberty or any other countervailing concerns’.[35]
1.47At a public hearing, a representative of the Victorian Bar further highlighted that ‘the power of censorship does indeed lie in the hands of platform operators, it's entirely possible for them wrongly to label, perhaps for an ideological reason’.[36]
1.48Professor Twomey raised concern that there seemed ‘to be a difference between what's actually said in the bill and what the EM says it's supposed to say, and this is where [she] finds it all very confusing.’[37]
1.49The Explanatory Memorandum should sit alongside the legislation and serve as an interpretation device to clarify the intent and purpose of the legislation. It is essential to ensure the Explanatory Memorandum supports rather than confuses the interpretation of legislative provisions. The inconsistencies between the proposed legislation and its Explanatory Memorandum were raised by Professor Twomey:
The bill, for example, says that it's misleading if it's 'reasonably verifiable' as false and misleading. A normal human being would think, 'Okay, is that something that you can actually prove is a matter that's true or false?' For example, take an advertisement that uses a celebrity's face—Twiggy Forrest or someone—and says, 'I'm supporting this, and here's my business.' It's a scam. It's false, okay? Things like that that you can just prove are false—fine. But then, if you look at what it says in the EM, it says, 'No, we're not just dealing with facts here; we are dealing with opinions and commentary and claims and invective.' And you think: 'Well, you can't prove those things are false. You can't prove that someone's opinion is false; it's an opinion.'
Then it goes on in the EM, and it says: 'How do you do that? Oh, you get a fact checker to decide.[38]
1.50If the bill is passed, the inconsistencies and ambiguities in the proposed legislation and its Explanatory Memorandum diminish its ability to serve as a reliable resource to aid Courts and stakeholders when interpreting, understanding and applying the law. Inconsistent guidance may lead to misinterpretations, non-compliance, inadvertent violations and challenges.
1.51This rushed attempt by Labor to tick off an election commitment in the final throes of the Parliamentary term with confusing and inconsistent legislation may have long lasting consequences and legal uncertainty.
1.52The Victorian Bar has expressed significant concerns about the proportionality of the bill in the context of human rights. In both domestic and international human rights law, the principles of proportionality mandates that any restriction on fundamental rights must be necessary, suitable, and the least restrictive means to achieve a legitimate aim (Article 19 of the ICCPR). They assert that the bill and its Explanatory Memorandum imposes restrictions that exceed what is reasonable and necessary whilst attempting to address the legitimate concern of dissemination of misinformation and disinformation.
1.53The broad definitions of misinformation and disinformation in the bill raise proportionality concerns and the inclusion of vague terms such as ‘serious harm’ without precise definitions and clarity creates a risk of overregulation.Mr McComish stated: ‘[t]his most peculiar insertion in the explanatory memorandum, which is an extraordinary document, that 'opinions, claims, commentary and invective' can constitute misinformation is one of the most disturbing aspects of this bill for the Victorian Bar’.[39]
1.54They also stated they were ‘astonished’ when they reviewed the Explanatory Memorandum and saw their concerns:
[n]amely, that there was a grave danger to freedom of expression—had been flipped on its head explicitly in the Explanatory Memorandum to encompass the very thing that we feared: that views, opinions, claims, invective and all the kinds of things that one sees on the internet that are not factual claims which are capable of verification are, according to the government's explanatory memorandum, encompassed in this bill.[40]
1.55This further incongruence between the bill and its Explanatory Memorandum highlights the concerns that inconsistency and lack of clarity results in confusion and misinterpretation. Mr McComish called attention to the inconsistencies between the bill and its Explanatory Memorandum as he expressed: ‘That inclusion of 'opinions' and 'claims' within the definition of misinformation—not according to the text of the bill, mind you, but according to the explanatory memorandum—is what gives us grave concern. That's where the language came from. Our concern about the overreach of the bill has taken on a new life, in a very disturbing way, in our view.[41]
1.56Senator Canavan questioned whether the proposed legislation potentially restricts the constitutional protection of freedom of discussion and if it meets a test of proportionality. Professor Twomey expressed concern that whilst the proposed bill does attempt to put in a proportionality test to address it, the terminology used differs from that of the High Court. Professor Twomey suggested this was more ‘a minimal test’.[42]
1.57The Human Rights Law Centre also raised concerns that:
‘[f]reedom of expression can be restricted but, while being compliant with the International Covenant on Civil and Political Rights, the restriction has to be lawful in pursuit of a legitimate objective, proportionate to that objective and, for one of the grounds, permissible, including national security, public order, public safety, public health and of course the protection of the rights, freedoms and reputations of others…the law that seeks to restrict a freedom has to be of sufficient precision to be able to know what is in and what is out—what conduct is and isn't allowed.[43]
1.58The bill and its Explanatory Memorandum fails to meet the standards of proportionality, particularly concerning freedom of expression.
1.59The Parliamentary Joint Committee on Human Rights (the PJCHR) provided advice to Parliament in their report that the PJCHR reiterates its recommendations made in Report 9 of 2024 and further considers that ‘there appears to be insufficient remedies available with respect to breaches of human rights (including the right to freedom of expression and privacy), which raises questions as to whether there is an effective remedy.’
1.60Human rights frameworks rely upon the existence of enforceable and meaningful remedies for violations.If remedies are insufficient or ineffective, the practical realisation of rights such as freedom of expression and privacy are merely hollow promises.
1.61This proposed bill and the Explanatory Memorandum removes all responsibility from the user and governmental responsibility of the education of its citizens and places the onus of media literacy on social media platforms.
1.62The members of DIGI through the voluntary code of conduct have already started to engage in media literacy plans, in order to better equip users to identify misinformation.
1.63Australians don’t need [to be told] how to think and what to believe by governments and bureaucrats. Sometimes people say things that we might not agree with – and that's okay. That's how we progress through proper debate. The notion that government and bureaucrats are going to get in the middle of that is just utterly wrong.[44]
1.64The proposed bill excludes several entities from its scope, including professional media organisations and academia. The exemptions in the bill create what seems to be a two-tiered system that may exempt powerful entities while disproportionately regulating individuals and smaller and new organisations.There are concerns the bill could foster institutional elitism and diminish the integrity of public discourse.
1.65The IPA raised concerns this provides the professional news organisations with unfair protections ‒ protections that are not afforded to citizen journalists:
Senator CADELL: Given the exclusions from this bill of government and big media, is this an elitist censorship? Is this in favour of the big guy? Once upon a time the earth was flat, the sun revolved around us and, if you didn't believe in Christianity, you were burned. Is this protecting a two-tier ability to comment in the world?
Mr Wild: Yes, that's right. It is a two-tiered elitist system where professional news organisations and academia are exempt. So firstly it's unfair. Secondly, if misinformation is considered to be a problem, why does the source of it matter? Why is it that, if a professional news organisation were to write something that is false and knowingly false, let's say, there are no consequences, but, if a regular person wrote literally verbatim the same thing, they would be subject to censorship? It just doesn't make sense. If you're genuinely concerned about misinformation, why would there be any exemptions?[45]
1.66Failure to appear before ACMA with regard to a misinformation or disinformation complaint to give evidence can per the s 202 of the Broadcasting Service Act 1992 result in imprisonment for one year. These concerns were highlighted by the IPA as they could apply to a small content creator on YouTube who may have been flagged for misinformation or disinformation.
1.67The IPA clarified that while the bill doesn't allow investigation into individual posts or individuals there is the potential for individuals to face jail time as a result of failing to comply with a broader inquiry:
The point I understand that you are making is that section 68 of the bill provides that the investigation is not to relate to particular content posted by a single end user. That is easily circumvented by an investigation about a category of content or a type of content or the manner of content being published. As a part of that investigation, ACMA would be entitled under the provisions of the Broadcasting Services Act to give notice to persons in order to aid in their investigation.[46]
1.68In response to a Question Taken on Notice, the Community Broadcasting Association of Australia said that if a broadcaster was to breach their code there would be remedial action taken prior to a licence cancellation or civil action being taken.
1.69The penalties associated with breach of the code is substantially higher than that of the Broadcasting Service Act 1992 and DIGI's submission raises concerns that these penalty amounts aren't in line with other legislation, which when turnover based penalties are only to revenue attributable to Australia, not global revenue.
1.70While the fine is a sufficient incentive to ensure that social media companies comply with the code, there is potential that it's too strong an incentive and has the likely impact of social media companies implementing a better safe than sorry approach and removing more information than they are required to remove to ensure that they don't accidentally breach the code.
1.71The rapid rise of technology and information sharing, especially in the digital age, has resulted in cases of dissemination of misinformation and disinformation, and contending with this may require targeted legislative mechanisms.It is essential to note the distinctions between misinformation and disinformation.
1.72Disinformation involves the dissemination of deception and dishonesty with intent to deceive or harm.
1.73The Labor Government's proposed bill and its Explanatory Memorandum fail to address the differing potential harms caused by misinformation and disinformation, instead they conflate the issues. The bill fails to provide the specificity and nuances required to consider digital platform dynamics, cross-border influences, and emerging technologies such as generative AI.
1.74Misinformation and disinformation are fundamentally different due to the inauthentic nature of a disinformation campaign – they are bots. Concerns were raised whether it is possible under the international covenant, to assign human rights to a bot.[47]Mrs Taylor agreed stating ‘the distinguishing feature between disinformation and misinformation being inauthentic behaviour—I'm not sure that that was clear from the drafting of the bill.’[48]
1.75Miss Dawkins of Reset Tech Australia provided evidence that ‘there are certainly more prescriptions that you could encourage with respect to inauthentic activity’.[49] Professor Twomey stated ‘I think there is a distinction, particularly in relation to the inauthentic behaviour, because I think that's more easily identifiable, and it's less contestable’.[50]
1.76Concerns were raised however regarding the proposed bill's unclear definition of disinformation and whether we can apply human rights tests to inauthentic bots.[51]
1.77These bots are often deployed to spread disinformation using automated accounts and algorithms, are designed to mimic genuine human interaction and operate at an inhuman scale and speed.Regulating these inauthentic entities requires the navigation of complex human rights tests, particularly when applying proportionality tests to an international standards.
1.78Bots and inauthentic entities lack moral responsibility, agency or rights, however they are linked to human accountability by the individuals or entities who utilise them.AI-driven detection methods, though essential, raise concerns about algorithmic bias and overreach.Regulatory frameworks must ensure that automated systems meet transparency and accountability standards.
Recommendation 1
1.79Nationals Senators reiterate the Senate Select Committee on Foreign Interference through Social Media inquiry's report recommendations.[52]
1.80While the bill provides protections for public interest journalism, witnesses raised concerns that while journalists are protected if they're writing for a masthead the protections may not extend to work done by freelance journalists posting on the covered platforms.
Senator CADELL: When you get down to it—and I'm trying to cover very specifically the line you're working here on public interest journalism and getting outside of professional journalism, and on freelancers and how they write their journalism—do you believe there are enough protections in the bill as it stands for public interest journalism where journalists aren't employed by a big masthead in the traditional way that defines media in Australia?
Ms Draffin: We were discussing that this morning, because we have noted, of course, that one of the key changes in the bill as it currently stands is that it's changed from news content produced by a news source to 'news content produced by a person', which, we appreciate, goes somewhat to the concerns around bots that were canvassed earlier. PIJI's [Public Interest Journalism Initiative] research has focused on mapping and indexing professional news outlets that produce public interest journalism. I really will have to restrict my comments to that, which has been the area around our inquiry. But I will note that there is currently no public register of journalists, which makes it more difficult in the sense of having a publicly available source. We also do note that the bill is still proposing to ensure that a journalist is subject to professional rules, such as those listed in the bill, and has editorial independence, which is key. But, again, I return to your earlier comment about ensuring that there are professional rules, include external complaints authorities.[53]
1.81The bill doesn't provide clear guidance as to what constitutes a journalist, this could result in genuine public interest journalism that's not covered by a masthead being captured by the bill, this was a concern of the Media, Entertainment and Arts Alliance (MEAA) who said that the government would need to clarify that they would be covered by the exemption, even though it does appear to intend to be covered:
Senator CADELL: A member of yours—and I have a strong belief if not certainty that they are—has expressed some concern that if their publication puts out a story that they have written as a big media company they have an automatic exemption on this on social media as the legislation stands, but if they were to repost the same story themselves they may not be covered in the same way. The exemption goes out for the media companies themselves but not individual members and/or journalists. Is that your understanding currently?
Ms Percy: I don't have that kind of specific depth. What I would say is that there is an important delineation in terms of how our members are operating more generally. It is different because we have so many freelancers. One of the reasons that we advocate so much for our freelancers is that they're in the same kind of boat. It's really about journalism as much as the person who's doing it. But I don't know the specifics of that in the legislation. I might defer to Matt, who might, but it is important to understand that there should be protections for journalism, not just the media organisations, and that's partly what we advocate as a matter of course.[54]
Mr Byrne: That's right. I think that, if they are producing public-interest journalism, they should be covered by the legislation. It does seem that the intent of the legislation is to be as broad as possible and to cover a journalist who does that act, as you describe, Senator. However, I think that's a question that the government would have to answer. We would be as interested as you are in obtaining an explanation on that.[55]
1.82Evidence from submissions and witnesses demonstrate strong concerns about the extent of the supposed protections for religious expression in the bill. Many religious organisations gave evidence for their concern about the ability of a social media company, the Australian Government through the ACMA, or ultimately a court to decide what is 'reasonable dissemination of content for a religious purpose.'
1.83The Explanatory Memorandum’s only example of dissemination that 'might' be considered for a religious purpose is 'a post by a religious leader, promoting or explaining religious practices or doctrine'.The Australian Jewish Association (AJA) rightly raises concerns about whether this supposed protection extends to a religious based community organisation such as theirs.
1.84Dr David Adler, on behalf of AJA, gave evidence that social media companies clearly did not have the expertise to be able to make an assessment of a 'religious purpose' in relation to Judaism. He went on to say:
There are exemptions for mainstream media, but there is no exemption for a community organisation that represents a religious community such as the Australian Jewish Association. For example, every Friday afternoon we publish a message on religious teaching in the lead up to Shabbat. Anyone that's interested can go on our Facebook page and scroll any Friday afternoon and they'll see examples of that. Often, we try to make the message related to current events. It is eminently possible—in fact, likely—that there could be people who take exception to our Shabbat message, for example, and that they make complaints. We do not think it's the role of social media companies to assess whether the AJA [Australian Jewish Association] Shabbat message is reasonable or not. We believe that it always is, and if someone disagrees they're free to say so. It affects us very directly.[56]
1.85These same concerns extend to any individual adherent to a faith who might seek to post their religious views to social media.
1.86These issues arise before it is even considered whether the sharing of a religious belief is 'reasonable dissemination' within the meaning of the bill, and the existing legal principles. Ultimately, whatever the legal principle, it will fall to social media companies in the first instance to determine what is 'reasonable dissemination'.
1.87The Combined Faith Leaders noted that 'digital providers will be assessing whether the content of a religious belief is reasonable in determining whether or not it is misinformation. This is the same as saying that providers are empowered to determine whether the teaching is reasonable in itself.' They went on to say ‘[t]his ‘reasonableness’ test is highly inappropriate to be applied to religious speech’.[57]
1.88In addition to the Combined Faith Leaders (representing 17 religious organisations), similar views were expressed by the AJA, the Australian Catholic Bishops Conference and other witnesses and submissions.
1.89Both tests, for 'reasonableness' and 'religious purpose', ultimately raise the prospect of over censorship by social media companies. As Christian Schools Australia noted in their submission ‘Social media companies are incentivised to broadly interpret the definition of 'misinformation', and narrowly interpret content that is reasonably disseminated for a religious purpose.’[58]
1.90In their submission, the Australian Catholic Bishops Conference raise the disturbing prospect that it will ultimately fall to a court to decide what is 'reasonable' and for a 'religious purpose'. They wrote that the bill ‘[l]eaves open to a judicial authority to decide what is and is not 'reasonable' when it comes to expressing a religious belief, and whether the expression of a religious belief is always for a 'religious purpose'.[59]
1.91As the Australian Catholic Bishops Conference has stated in numerous submissions on other items of legislation, it is suboptimal to have courts and tribunals adjudicate on the reasonableness of religious expression.
1.92The attempts in the bill to protect expression of religious belief fail on their face. In no circumstance is it proper for a social media company, the Government through the ACMA, or ultimately a court, to decide what is being disseminated for a 'religious purpose', and whether that dissemination is 'reasonable'. It is fundamental that the religious freedoms of Australians are upheld. The evidence before the committee is that this bill presents real and immediate risks to that freedom if it were to pass.
1.93The High Court has found that there exists in the Australian Constitution an implied right to political communication. It ought to go without saying that no Act of the Australian Parliament can extinguish that right.
1.94The High Court has ruled that the freedom of communication protected by the constitution is not absolute and does not invalidate laws 'enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.'
1.95In evidence to the Committee, Professor Anne Twomey, a professor of constitutional law, identified some key problems with how the bill and the accompanying Explanatory Memorandum sought to manage the implied right in line with the High Court's rulings. In her evidence, Professor. Twomey said:
[t]here are bits in the bill where they attempt to put in a proportionality test to address [the constitutional protection for the freedom of political discussion] that. They pop up in a few places, but, curiously, they don't use the same wording that the High Court does. So it's a more minimal test. For example, ACMA can't approve a code unless it's satisfied that it's reasonably necessary et cetera. They don't use the exact words, so that's going to be a problem in itself.[60]
1.96Professor Twomey also noted that there is a difference between the text of the bill and the Explanatory Memorandum. She notes that the Explanatory Memorandum in explaining the bill's definitions of misinformation and disinformation, extends beyond dealing with facts, to dealing with opinion, commentary, claims and invective. Representatives from the Victorian Bar also expressed concern about the inclusion of 'opinions, claims, commentary and invective' in the intended scope of 'information' for the purpose of the bill.
1.97In summarising these concerns, Professor Twomey said:
The problem for me is that when I read the bill I thought, 'Oh, it's okay,' because it's referring to things that are verifiably false, and it's only dealing with it if you're mucking up the electoral processes, not the political content. But, when I read the explanatory memorandum, I'm seeing something completely different. That confusion, for me, is where potentially the constitutional problem comes in.[61]
1.98This ultimately raises the question of what problem the Government is seeking to fix in relation to political communication. The bill lists harm to the operation or integrity of elections or referendums within its meaning of serious harm and seeks to rely on the bill to ensure the rights contained in Article 25 of the International Covenant on Civil and Political Rights, to which we are a signatory.
1.99However, in their evidence before the Committee, the Australian Electoral Commission (AEC) stated:
I would point out that we are already doing pretty good work in dealing with mis- and disinformation about the Australian electoral process. We've got a reputation management system, which helps guide us. What we spoke about before with our disinformation register is part of that, as well as our work with the social media companies.[62]
1.100If the AEC is able to effectively manage the spread of misinformation and disinformation using existing mechanisms, what is the purpose of this bill? If the AEC say they are able to work with the social media companies to manage misinformation and disinformation regarding the electoral process, does this bill not simply unduly burden the implied right by placing responsibility on a social media company to determine not only what facts, but also what opinions, claims, commentary and invective are 'verifiably false' in the context of elections and campaigns.
1.101Digital Industry Group Inc. (DIGI) further highlighted this problem by noting the disparity in how social media companies would be obliged to treat so called 'misinformation' in electoral and campaign material under this bill's regime, versus how traditional media treats the same and similar material. In their evidence, DIGI said:
… [a]t the moment, the way that the bill is crafted does put sole responsibility on [social media] platforms for making judgements about the accuracy of those materials, whereas traditional media is able to distribute materials that are false and misleading and political parties are free to create those sorts of materials. I feel that there's an asymmetry there that is not going to be helpful in combating threats to electoral processes.[63]
1.102It is entirely reasonable for Australians, many who made contributions to the inquiry (most as yet unpublished), to be concerned about how their legitimate online political communication in the form of facts, opinions, claims, commentary and invective might be captured by the Government's misinformation and disinformation regime. It is equally concerning that social media companies are being deputised by the Government to make judgements about whether an Australian's political communication, protected by the Constitution, is in fact 'misinformation' or 'disinformation'.
1.103Serious community concerns that this bill would result in government censorship in ideas were raised throughout the inquiry.
1.104Ms Alick from Nine Entertainment stated:
I can't speak for all the broadcasters, but I certainly understand that our primary position is that this bill should not be passed. Our primary position is that this bill is censorship.
1.105While defenders of the bill say that all it is doing is setting up a standard and code for social media, witnesses stated that it was the government offloading the censorship responsibilities off to the social media companies with Mr McComish stating:
However, one of our concerns is precisely that, because the power of censorship does indeed lie in the hands of platform operators, it's entirely possible for them wrongly to label, perhaps for an ideological reason, content as being misinformation and disinformation, therefore de-incentivising it all the like. Therefore it occurred to us that, insofar as the bill, quite rightly, aims to increase transparency in things of that sort, one thing it doesn't do is provide any obvious redress for people whose content is wrongly labelled as being misinformation.
1.106Professor Twomey echoed these same sentiments:
I don't trust the platforms either in relation to this, for obvious reasons. One of the points of this legislation is to try and get codes so that we've got some kind of a basis, some guidelines and rules, around what they do. From that point of view, the bill is actually supposed to be improving the current process. If it can improve transparency and if it can put sensible codes and guidelines around what they do, then that's better than what happens at the moment. But the reality is that these are their platforms. They're outside Australia, they run these things and they can choose what they put on and what they don't. We have pretty limited powers in relation to that, so we're pressing up against the edges of them. If we can improve that, that's a good thing, but, as a general principle, outsourcing censorship to foreign corporations is not a good idea.[64]
1.107The risk of over-compliance is acknowledged by the government, but somehow is not seen as a threat to the freedom of expression of Australians by the government.
Given the fines that they're threatened with, they will no doubt overcensor. This is a serious threat to the Australian democracy and one that politicians should seek to protect against.[65]
1.108The Institute of Public Affairs (IPA) drew attention to the Impact Analysis notes outlining that ‘Over-Compliance is therefore an entirely foreseeable and, as acknowledged by the federal government, non-concerning feature of the bill.’ The IPA reiterated this at the hearing stating:
It will have a big censorship effect. As you rightly say, there's a big fine—I think it's five per cent of global revenue—that the social media companies will be subject to if they fail to comply with the ACMA's directions or definition of 'misinformation' and what is false. Clearly there's going to be a 'censor first, ask questions later' approach that could be taken.[66]
1.109Over-compliance would result in unnecessary censorship of content posted by Australians, and with the deterrence of such large fines should be the expected outcome if this bill were to pass, and a risk to our successful democracy.
1.110DIGI, a group that has the companies that will primarily be impacted by the legislation as its members, raised concerns in their submission about penalties applying to 5 per cent of global revenue could incentivise overcompliance to ensure that they're not in breach:
This approach to penalties risks incentivising over-enforcement and removal of content, with the possible unintended adverse impacts to free expression and open communication.[67]
1.111The Institute of Public Interest Journalism concurred that in its current form the bill incentivises over censorship to ensure compliance:
Again, not to duplicate what has been said previously, the incentive on the platforms under this bill would be to take down more speech than they otherwise would when subject to legal liability.[68]
1.112Despite claims from other witnesses that they have an incentive to under comply, with such substantial penalties that are associated with breaches of the code, the revenue risk from under compliance is higher than that of over compliance, this provides a serious risk to Australians freedom of expression.
1.113Freedom of speech and expression are a cornerstone of western civilisation and open democracies. While Australia doesn't have legislated freedom of speech, the High Court has held that an implied freedom of political communication exists through our constitution as part of participation in a parliament elected by the people. As a signatory to the ICCPR, Australia is obligated to protect the right to freedom of expression. This includes ‘[the] freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through an other media of his choice.’
1.114This inquiry heard many witnesses concerned that this bill would impact Australians' right to freedom of expression, and risks stifling debate and views rather than encouraging free and open discourse that Australia has prided itself on.
1.115The Australian Christian Lobby holds these concerns as one of the main reasons that they cannot support the bill, even if it meant that they were exempted from the terms of the bill:
Part of our democracy is the freedom to be able to speak our opinions even when they are unpopular. This is an attack on freedom of expression. It shouldn't just be religious people who have the right to say what they want to say through a carve-out; all people deserve this right.[69]
1.116Witnesses held concerns around how this will impact public discourse, especially if somebody says something that is true, but at the time is thought false. They would risk being accused of spreading misinformation, even if what they are saying is true. The IPA spoke about this in their evidence to the inquiry:
You may say something that at the time you believe to be true, which is objectively true, but most people think is false. That could be called misinformation because you're misleading— because the current understanding is that it's wrong—and a year later you may be proved right. So not even the truth is a defence under these laws.[70]
1.117Freedom of expression also provides for different cultural practices to be preserved. The evidence the committee heard from the First Nations Peoples Aboriginal Corporation held concerns that a lack of cultural understanding could lead to inappropriate censorship of First Nations views: ‘We're worried about the lack of cultural understanding—that it might be either dismissed or misinterpreted because there's a western lens on empirical evidence and the accuracy of things like that, which could lead to inappropriate censorship.’[71]
1.118Due to this lack of cultural understanding the committee heard that this could risk Aboriginal remedies that have existed for thousands of years as being flagged for misinformation.
Senator SHARMA: So they may be even further removed than the public servants from Indigenous culture and knowledge. Let's take one example, of traditional medicine or therapeutic remedies or healing. That is something that I imagine you might be concerned about.
Mr Willis: Yes.
Senator SHARMA: If you were to put something up online which was contraindicated in western medical advice, for instance, it could be taken down, as something that wouldn't meet the test of misinformation: 'verifiably false or could cause risk to public health'. Is that something you would be concerned about?
Mr Willis: I have to tell you, Senator Sharma, you must be reading my diary![72]
1.119These concerns could easily see First Nations culture and heritage suppressed to make sure that compliance with the bill is met. Decisions being made on what could be deemed misinformation would need to be able to understand the nuances of cultural differences. Without that there is a real risk that to avoid traditional practices of First Nations people could be deemed misinformation and removed from platforms.
1.120Concerns around censorship of views and impacts on the freedom of expression, whether it was through government, or through social media companies, was a continued concern if the bill did pass with many witnesses citing it as a concern.
1.121The IPA stated ‘This is about censoring the opinion of mainstream Australians. That will be the consequence of the bill.’[73] Channel Nine were clear in their position: ‘Our primary position is that this bill is censorship.’[74]
1.122The Australian Human Rights Commissioner while supportive of the intent of the bill gave evidence that they don't think that the bill strikes the right balance to protect freedom of expression and couldn't support the bill:
[i]t's that we accept there is a need to combat misinformation and disinformation. They can cause serious harm. We don't feel the bill in its current form strikes that right balance in terms of the protections that it provides, particularly for freedom of expression, due to both the breadth of the definitions and the vagueness of the definitions but also the need for greater transparency, accountability and scrutiny mechanisms.[75]
1.123The Institute for Public Interest Journalism held concerns that the bill could have a chilling effect on speech:
Of course. There is obviously an inherent risk to freedom of expression in any sort of regulation of speech such as this. At the moment the information-gathering powers that ACMA have are quite broad, and there is potentially a risk—in some respects, a second-order risk—of some sort of chilling effect on speech or, more specifically perhaps, on the platforms' response to speech, if we haven't narrowly focused ACMA's powers in these situations.[76]
1.124The Victorian Bar held serious concerns around the impact to freedom of expression, not just in constitutional terms but in human rights terms:
What astonished us was then, when the Explanatory Memorandum came out, seeing that our point—namely, that there was a grave danger to freedom of expression—had been flipped on its head explicitly in the Explanatory Memorandum to encompass the very thing that we feared: that views, opinions, claims, invective and all the kinds of things that one sees on the internet that are not factual claims which are capable of verification are, according to the government's explanatory memorandum, encompassed in this bill. As Professor Twomey says, that's getting towards the heartland of constitutional freedom. As the Victorian Bar's submission makes clear, yes, we have a capital-C constitutional concern about the bill, but we also have a much broader concern about freedom of expression, whether expressed in human rights terms or not. That inclusion of 'opinions' and 'claims' within the definition of misinformation—not according to the text of the bill, mind you, but according to the explanatory memorandum—is what gives us grave concern. That's where the language came from. Our concern about the overreach of the bill has taken on a new life, in a very disturbing way, in our view.
1.125These are just a small selection of the examples of worries and concerns around the impacts that this bill could have on Australians' freedom of expression amongst the thousands of Australians that made submissions to the inquiry. Without stronger protections for freedom of expression many witnesses and submitters could not recommend passing the bill.
1.126The safeguarding of freedom expression being the biggest concern around this bill and drew significant commentary and attention. The government hasn't done enough to allay fears that freedom of expression could be stifled, and has failed to properly address these concerns.
1.127Freedom of expression is incredibly important to our nation's culture, and to our democracy. This bill does not do enough to safeguard freedom of expression, and risks resulting in the suppression of particular rules.
1.128The extra-territorial clause in the bill places an expectation that the Australia will be able to police the content of overseas content providers, and apply to content that was posted outside of Australia.
1.129Professor Twomey raised concerns with how these laws could be applied to businesses that are operated in other countries:
There could be issues about extraterritoriality and the extent to which our laws can apply to databases and stuff outside Australia. I guess that would be the thing that might be more problematic. I'm not so sure it's necessarily a constitutional problem. But if you've got more details about what they think the constitutional problem is—I've just never encountered this issue before.
Senator DAVID POCOCK: They won't give us the Solicitor-General's advice, but we may put something on notice to you, if that's alright.
Prof. Twomey: Well, I may not be able to tell you any more in two days than what I can now, I'm afraid, without an indication of what the problem is that they actually think is there. The only thing that springs to mind for me are issues about extraterritoriality. There's a reality issue about how our laws can apply to computers and businesses that operate in other countries that aren't here, and there are probably going to be all sorts of confidentiality aspects et cetera as well. Once you start interfering in laws in other countries there are real issues, but it's more a conflict of law sort of issue, I think.
1.130While the intent of these laws is that they apply no matter where the platform operates from, it may not be possible to apply it to businesses that operate overseas. This will in effect encourage businesses to pull operations out of Australia so that these laws don't apply to them while still being able to provide the content into Australia. Brian Marlow from CitizenGo outlined that this would be the first step that these companies would make:
If I ran one of the major social media giants—Facebook, Google or even X—I would merely shut down my Australian operations, operate out of America, where I have free speech amendment protections, and completely ignore whatever your legislation says. I know you're not going to shut me down, so I would just continue to operate.
1.131The committee heard evidence that the election of President-Elect Donald Trump that the bill could impact our relationship with the United States. This was based on comments made prior to the election by Vice-President Elect JD Vance that they would penalise nations who didn't protect free speech.
1.132Mr Marlow from CitizenGo expressed that the bill would be ineffective with no way to enforce the codes:
Senator ROBERTS: Thank you to CitizenGO for attending and also for your submission. President Trump, who's just been swept to power, promises to dismantle the censorship regime globally. The vice-president-elect, JD Vance, has in the last few days indicated that the United States would penalise nations for adopting the exact measures contained in this bill. What effect will this have on the operability of this bill? Is this bill likely to undermine AUKUS?
Mr Marlow: Yes, it is, and the outcome of what President-elect Trump has said effectively makes this bill null and void and dead in the water.
1.133The Department of Infrastructure, Transport, Regional Development, Communications and the Arts (DITRDCA) did not provide a direct response when asked if they had sought advice from the Department of Foreign Affairs and Trade about whether this bill would have an impact on our relationship with the USA, with particular reference to Vice-President Elect JD Vance's comments that they would stop supporting a military alliance if it [Australia] isn't going to be pro free speech. A failure to provide evidence that they had sought advice on this issue means that Senators are unable to determine if there would be an impact, and would have to take the comments from the incoming Vice-President at face value. As a result, this could negatively impact our relationship with the USA.
1.134When asked if the bill would impact on American Citizens' First Amendment rights, the department stated that they had not assessed this issue, and didn't clarify whether they had specifically consulted with the Department of Foreign Affairs and Trade. With our alliance with the USA being pivotal to Australia's national defence interests, these concerns should be first canvassed before considering legislation that could damage our relations so Senators can give due consideration to the issues at play and the wider ramifications of a bill of this nature.
1.135In addition the Explanatory Memorandum takes the unusual step of commenting on both Germany and Italy's political situation, including accusations of the governing parties of spreading fake news.
1.136When asked if they had consulted with the Department of Foreign Affairs and Trade about the bill, DITRDCA confirmed they had consulted with the Department of Foreign Affairs on the bill. In response to questions taken on notice from the hearing held on 11 November 2024, DITRDCA stated that they consulted with the Department of Foreign Affairs and Trade on the bill, but did not answer the question whether they consulted with DFAT about the commentary on the German and Italian political situation.
1.137The failure to answer this question, or provide an adequate explanation as to why there is commentary of a foreign partner's political situation raises concerns with how this bill could impact our relationships with other countries. While we need to govern in our own interests, providing commentary on the government of another nation within an Explanatory Memorandum without clear advice from Department of Foreign Affairs and Trade, sets a worrying precedent for our relationships with other nations.
1.138Witnesses raised concerns this bill, if implemented, would stifle innovative and new methods social media companies might explore to respond to the threat of disinformation in particular, but also misinformation on their platforms.
1.139DIGI, the industry association that advocates for digital industry in Australia, and counts social media companies amongst its members, said in evidence:
We want to have sufficient flexibility so that companies are actually able to innovate in the way that they respond to the most serious threats, in particular the threat of disinformation. One of the advantages of the self-regulatory tool is it does allow that flexibility…Once you go into a co-regulatory or a very strict regulatory situation, where the regulator lays down standards, then the potential to change those rules is more limited and you potentially focus platforms on compliance rather than on innovating their responses…the way that actors are propagating disinformation is constantly changing and the tactics they use change.
1.140It is not in the interests of Australians, rightly concerned about the spread of genuine misinformation and disinformation, for the social media companies to be restricted in their ability to respond, either because the ACMA may not consider their new and innovative responses to be sufficient to meet requirements, or because the mandatory codes restrict the flexibility of companies to deploy new methods for detecting and responding to disinformation.
1.141The restrictions and likely censorship proposed in this bill would ultimately have the effect of stifling speech, and therefore restrict the free flow of ideas in the Australian community. The Victorian Bar in evidence before the committee stepped through this effect in reference to a thought experiment proposed by Senator Sharma.
1.142When asked how this measure might apply to the ideas of Copernicus or Galileo, – ideas that did not accord with conventional wisdom of the day – could they be said to be misinformation or disinformation, Mr McComish on behalf of the Victorian Bar said:
'There is a grave risk that that is so and that is in part because of the very wide definition of 'harm'. We have ticked the box. It is information because it is a claim, says the explanatory memorandum. It is reasonably verifiable as false because most people say it is false. We then ask: does it not cause but contribute to harm? I don't think it would be too difficult—remembering the first decision-maker is the platform; the next decision-maker is ACMA—for them to say, 'Well, look, that undermines confidence in the Medici Bank or whatever it is; therefore, there is a harm to the economy.' Or 'It dissuades people from doing exercise because they have joined a convent or something like that; therefore, there is a harm to public health because of the social disorder caused by this pernicious view.
1.143It follows that an Australian offering new ideas in a social media setting, ideas that do not accord with today's conventional wisdom, are unpopular, and might untimely prove true or not, would be required to be censored by social media companies because the claim is 'verifiably false' (because most people say it is), and contributes to one or more 'serious harms' contained in the bill, whether or not the harm in question does actually ever arise.
1.144Australians must be able to think freely, and to say what they think, and to share it online. If Australians have bold new ideas, they should be free to explore them with their community whether online or offline, without undue interference from their government as would happen if this bill were to pass.
1.145Many witnesses and submissions raised concerns the proposed bill contained an overreach of ministerial power which granted the Minister for Communications the authority to personally initiate misinformation investigations and misinformation hearings. This discretionary power, coupled with provisions that could lead to imprisonment, undermines fundamental democratic principles and opens the door to censorship and stifling free speech.
1.146The Department of Infrastructure confirmed the Ministers power to instruct ACMA to direct and instruct ACMA to investigate and hold hearings:
Senator SHARMA: But, to be clear, ACMA has the power to conduct investigations. The minister has the power to direct ACMA to investigate.
Mr Kursar: Correct.
Senator SHARMA: ACMA has the power to hold hearings and the minister has the power to instruct ACMA to hold hearings. Correct?
1.147Mr Blanks of NSW Council for Civil Liberties also stated:
The concern is that there are not clear and adequate remedies where this can be debated. You don't want to give government or a government agency the final dictatorial power. Yes, they should be able to exercise a power but the power ought to be challengeable, and it ought to be challengeable in the courts.
1.148Nationals Senators support the withdrawal of the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 from the Notice Paper.
Senator Ross Cadell
Member
Senator the Hon Matthew Canavan
Participating Member
Footnotes
[1]Ms Larina Alick, Executive Counsel, Nine Entertainment, Committee Hansard, 11 October 2024, p. 8.
[2]Australian Human Rights Commission, Opening Statement (Tabled 17 October 2024), p. 2.
[3]See the committee's website at: Senate Environment and Communications Legislation Committee, Submissions – Parliament of Australia.
[4]David Coleman, 'Labor's misinformation bill is a betrayal of democracy and has no place in Australia', Australian Financial Review, 8 October 2024 (accessed 22 November 2024).
[5]Mr Brian Marlow, Campaigner, CitizenGO, Committee Hansard, 11 November 2024, p. 23.
[6]Commonwealth of Australia, Odger's Australian Senate Practice, 14th edition, 2016, p. 547.
[7]Mr David Mejia-Canales, Human Rights Law Centre, Committee Hansard, 11 November 2024, p. 5.
[8]Mr Daniel Wild, Deputy Executive Director, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 23.
[9]Mr Daniel Wild, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 23.
[10]Mr Daniel Wild, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 26.
[11]Dr Jennifer Duxbury, Director, Policy, Regulatory Affairs and Research, DIGI, Committee Hansard, 17 October 2024, p. 9.
[12]Mrs Lorraine Finlay, Human Rights Commissioner, Australian Human Rights Commission, Committee Hansard, 17 October 2024, p. 35.
[13]Mrs Lorraine Finlay, Human Rights Commissioner, Australian Human Rights Commission, Committee Hansard, 17 October 2024, p. 39.
[14]Explanatory Memorandum, p. 25.
[15]Explanatory Memorandum, p. 25.
[16]Professor Anne Twomey AO, Private capacity, Committee Hansard, 11 November 2024, p. 4.
[17]See, for example: Mr James McComish, Member, Communications Legislation Amendment Working Group, Victorian Bar Inc, Committee Hansard, 11 November 2024, pp. 4–5; Mr David Mejia-Canales, Human Rights Law Centre, Committee Hansard, 11 November 2024, p. 5.
[18]Explanatory Memorandum, p. 26.
[19]Google, Submission 86, p. 18.
[20]Digital Industry Group Inc., Submission 79, p. 2.
[21]The Victorian Bar Inc., Submission 62, p. 4.
[22]Explanatory Memorandum, p. 25.
[23]Professor Anne Twomey, Private capacity, Committee Hansard, 11 November 2024, pp. 6–7.
[24]ANU Law Reform and Social Justice Research Hub, Submission 38, p. 4.
[25]Dr Nicholas Coatsworth, Submission 13, [p. 2].
[26]Professor Anne Twomey, Private capacity, Committee Hansard, 11 November 2024, p. 9.
[27]See, for example: Google, Submission 86, p. 19.
[28]Explanatory Memorandum, p. 6.
[29]Mr Daniel Wild, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 23.
[30]See, for example: Mr Daniel Wild, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 24; Mr James McComish, Victorian Bar Inc, Committee Hansard, 11 November 2024, p. 8; Australian Human Rights Commission, Submission 66, p. 5; Mr Matthew Byrne, Politics Lead, Media, Entertainment and Arts Alliance, Committee Hansard, 11 October 2024, p. 45.
[31]See, for example: ANU Law Reform and Social Justice Research Hub, Submission 38, p. 4.
[32]DIGI, Submission 79, p. 7.
[33]Mrs Michelle Pearse, Chief Executive Officer, Australian Christian Lobby, Committee Hansard, 17 October 2024, p. 20.
[34]ANU Law Reform and Social Justice Research, Submission 38, p. 9.
[35]Victorian Bar, Submission 62, p. 9.
[36]Mr James McComish, Member, Communications Legislation Amendment Working Group, Victorian Bar Inc, Committee Hansard, 11 November 2024, p. 6.
[37]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 11.
[38]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 4.
[39]Mr James McComish, Member, Communications Legislation Amendment Working Group, Victorian Bar Inc, Committee Hansard, 11 November 2024, p. 5.
[40]Mr James McComish, Member, Communications Legislation Amendment Working Group, Victorian Bar Inc, Committee Hansard, 11 November 2024, p. 5.
[41]Mr James McComish, Member, Communications Legislation Amendment Working Group, Victorian Bar Inc, Committee Hansard, 11 November 2024, p. 5.
[42]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 4.
[43]Mr David Mejia-Canales, Senior Lawyer, Human Rights Law Centre, Committee Hansard, 11 November 2024, p. 5.
[44]The Hon. David Coleman MP, Shadow Minister for Communications, Interview with Luke Grant, 2GB, 24 November 2024.
[45]Mr Daniel Wild, Deputy Executive Director, Institute of Public Affairs, Committee Hansard, 11October 2024, p. 24.
[46]Mr Daniel Wild, Deputy Executive Director, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 24.
[47]See, for example, Committee Hansard, 17 October 2024, p. 24.
[48]Mrs Elisabeth Taylor, Independent Researcher, Australian Christian Lobby, Committee Hansard, 1 7October 2024, p. 25.
[49]Miss Alice Dawkins, Executive Director, Reset Tech Australia, Committee Hansard, 11 October 2024, p. 17.
[50]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 1.
[51]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 1.
[52]Senate Select Committee on Foreign Interference through Social Media, Select Committee on Foreign Interference through Social Media,August 2023, pp. xv−xviii.
[53]Ms Anna Draffin, Chief Executive Officer, Public Interest Journalism Initiative, Committee Hansard, 17 October 2024, p. 66.
[54]Ms Karen Percy, Media Section President, Media Entertainment and Arts Alliance (MEAA), Committee Hansard, 11 October 2024, p. 42.
[55]Mr Matthew Byrne, Politics Lead, MEAA, Committee Hansard, 11 October 2024, p. 42.
[56]Dr David Adler, President, Australian Jewish Association, Committee Hansard, 11 November 2024, p. 11.
[57]Combined Faith Leaders, Submission 70, p. 6.
[58]Christian Schools Australia, Submission 89, p. 3.
[59]Australian Catholic Bishops Conference, Submission 40, p. 4.
[60]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 4.
[61]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 4.
[62]Mr Tom Rogers, Electoral Commissioner, Australian Electoral Commission, Committee Hansard, 17 October 2024, p. 28.
[63]Dr Jennifer Duxbury, Director, Policy, Regulatory Affairs and Research, DIGI, Committee Hansard, 17 October 2024, p. 11.
[64]Professor Anne Twomey, Private Capacity, Committee Hansard, 11 November 2024, p. 6.
[65]Mrs Michelle Pearse, Chief Executive Officer, Australian Christian Lobby, Committee Hansard, 17 October 2024, p. 20.
[66]Mr Daniel Wild, Deputy Executive Director, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 22.
[67]DIGI, Submission 79, p. 39.
[68]Mr Simon Harari, Head of Strategy and Policy, Public Interest Journalism Initiative, Committee Hansard, 17 October 2024, p. 66.
[69]Mrs Michelle Pearse, Chief Executive Officer, Australian Christian Lobby, Committee Hansard, 17 October 2024, p. 20.
[70]Mr Daniel Wild, Deputy Executive Director, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 23.
[71]Mr Daniel Willis, Chief Executive Officer and Specialist Board Member, First Nations Peoples Aboriginal Corporation, Committee Hansard, 11 October 2024, p. 50.
[72]Mr Daniel Willis, Chief Executive Officer and Specialist Board Member, First Nations Peoples Aboriginal Corporation, Committee Hansard, 11 October 2024, p. 51.
[73]Mr Daniel Wild, Deputy Executive Director, Institute of Public Affairs, Committee Hansard, 11 October 2024, p. 29.
[74]Ms Larina Alick, Executive Counsel, Nine Entertainment, Committee Hansard, 11 October 2024, p. 8.
[75]Mrs Lorraine Finlay, Human Rights Commissioner, Australian Human Rights Commission, Committee Hansard, 17 October 2024, p. 27.
[76]Mr Simon Harari, Head of Strategy and Policy, Public Interest Journalism Initiative, Committee Hansard, 17 October 2024, p. 66.
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