Senator Roberts' Additional Comments

1.1I thank the witnesses for their submissions and for attending the hearings.

1.2The committee report into the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 flies in the face of the expert evidence the committee has received across three days of hearings into the bill.

1.3A committee inquiry should not perform the function of gift wrapping a decision which has already been taken. A committee inquiry should have the role of deciding if the decisions taken in the bill are correct.

1.4For three days, the committee heard from human rights advocates and stakeholders who all criticised this bill on human rights grounds, and added warnings the bill would backfire.

1.5It is extraordinary the committee would choose to ignore the recommendations of the very people who they invited to attend to advise them on this matter.

1.6The committee has made a mockery of the committee process. This is an action which will make it harder for any Senate inquiry in the future to attract the quality of witnesses this inquiry attracted.

Human rights

1.7The Australian Human Rights Commission questioned a basic foundation of the bill – the definition of ‘information’. In the Explanatory Memorandum the term ‘is intended to include opinions, claims, commentary and invective’.[1]

1.8The Australian Human Rights Commission stated ‘considerable caution should be exercised before including opinions and commentary within the scope of “information” as this significantly broadens the potential reach of this legislation and increases the risk of it being used to censor legitimate debate about matters of public importance.’[2]

1.9One Nation agrees with this concern. The bill misconstrues human rights as relative, indeed as subordinate to the need of government to suppress opinions they don’t like.

1.10The Human Rights Law Centre recommended Clause 11(e) should be amended to reflect a broader commitment to human rights in the bill’s objectives. It also recommended the Australian Human Rights Commission should be consulted on the development of codes.

1.11Several submissions related to the specific areas of misinformation. The Australian Medical Professional Society submitted:

By centralising control over what constitutes medical ‘truth’ in the hands of government regulators, we risk creating an even more Orwellian twist in a system that is already subject to manipulation by powerful interests, to further suppress inconvenient facts and legitimate debate. This would be disastrous not only for free speech and democracy, but for public health as well.[3]

1.12The report failed to address a critical failing in the debate around COVID. Namely that information presented as medical truth at the time has been proven to be wrong, and information banned as misinformation has now been proven to be true.

1.13On the issue of COVID messaging, One Nation has maintained a contrary position to the Government of the day since 2020. This followed expert testimony from multiple specialists, research doctors and whistle blowers which contradicted the official narrative.

1.14The implication is simple – what is misinformation one day is truth the next. This is the danger in the Government deciding what is and is not misinformation. The bias will always be in favour of the government’s ‘truth’.

Religious freedom

1.15The submission from the Combined Faith Leaders drew attention to possible encroachment on religious freedoms:

The Bill’s definitions of ‘misinformation’ and ‘disinformation’ are so broad, that they could easily capture legitimate, good-faith expression of religious, moral and political opinions…[4]

1.16This concern was supported by the Australian Christian Lobby, which argued the bill violates freedom of expression. The committee chose instead to rely on evidence from the AMAN Foundation, which for clarity has the object of preventing physical and psychological harm to the Australian Muslim community caused by Islamophobia and racism. Their submission stated in part:

I would say that there are boundaries to that which our law provides. Vilification is one such boundary. Incitement of hatred, severe ridicule, contempt or anything that violates section 18C of the Racial Discrimination Act are legitimate bounds on freedom of expression.[5]

1.17One Nation opposes religious debate being included in mis- and disinformation legislation. There are multiple other avenues for the offended to seek redress, including courts of law. This bill can only offer the punitive powers of a bureaucracy operated without any legal checks and balances, which should never be let near religion.

Who is the arbiter of truth?

1.18Finally, the question so many asked – who decides what is and is not misinformation? The answer which the Government has studiously avoided saying is indeed the Australian Communications Media Authority (ACMA). ACMA will be the arbiter of truth in the policing of the Code and decide if the code has been broken by way of a platform failing to remove mis-and disinformation. By definition, this requires ACMA to decide what is and is not mis- and disinformation.

1.19It is entirely unacceptable that the Government will decide if an item which may be critical of the Government is mis- and disinformation or not. This is a fundamental flaw of the bill, setting up the government to be judge, jury and executioner.

1.20The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (Cth) should not be passed in its current form.

1.21The Misinformation and Disinformation provisions should be removed from the bill.

1.22A provision should be included which requires the Minister to take advice from the Human Rights Commission before finalising a code under the bill.

1.23However, the bill does contain provisions necessary to regulate social media platforms in a way which benefits the Australian people. These provisions should be retained in a new bill. These are as follows:

Inauthentic behaviour

1.24Google’s submission stated:

… at the very least the ACMA’s code and standard making powers’ should be limited to ‘disinformation that involves inauthentic behaviours.[6]

1.25Such behaviour includes impersonation. I have had to contend with many fake accounts on social media. I am sure my experience is one shared by other Senators.

1.26Inauthentic behaviour also extends to bot armies used to influence opinion, conduct mass reporting of political opponents, influence the outcome of paid advertisements and many other behaviours which reduce the enjoyment and utility of social media.

1.27CyberCX emphasised the increasing sophistication of AI-enabled disinformation campaigns, using thousands of fake or hijacked accounts.[7]

1.28The provisions relating to inauthentic behaviour remain in the bill

Media literacy

1.29The Media Literacy provisions of the bill require platforms to ‘publish a current media literacy plan for their platform setting out the measures the platform will take to enable end-users to better identify mis- and disinformation and identify the source of content disseminated on the platforms’.

1.30While this provision has been written for the mis- and disinformation aspects of the bill, the same is true of any post. Thinking for oneself is a critical skill that has been noticeably absent on social media, with scams and obviously false statements being treated as real.

1.31One Nation would support retaining these provisions, expressed in a wider sense of assisting social media users with the skills to better determine truth, or more accurately, teaching people how to think for themselves again.

1.32X’s Community Notes should be a part of this conversation. Community Notes acts as a crowd-sourced mis- and disinformation detector.

1.33Media Literacy remain in the bill and used to assist in educating users on how to examine the veracity of a post. Platforms should be required to have either a function like Community Notes or a Media Literacy program.

Complaints handling

1.34The bill includes a requirement on platforms to provide a complaint handling system. Currently if a user is banned or perhaps an advertising budget is used up and no benefit has accrued to the advertiser, there is no recourse. One Nation believes platforms should have a complaints mechanism which would allow mistakes to be corrected and explanations issued. In turn this improves understanding of the system on the part of users, which will hopefully reduce the complaints over time.

1.35This should also relate to reported posts that remain up.

1.36A complaint handling system should remain in the bill

Data access

1.37The House of Representatives added additional provisions around data access by third parties. One Nation supports those amendments. Further provisions should be added to ensure the material is used for bona fide research and does not find its way into the hands of social media marketing or data trading entities.

1.38Data access provisions should be retained with added protections around their use.

Inclusion of search engines

1.39Google suggested search engines should be excluded from the bill. One Nation agrees with this position. Search engines have a vested interest in ensuring the content they send customers satisfies their search intent. Included in that process is the material being authentic. Google spends significant resources to verify the legitimacy of the material they index, often doing this by site rather than at an article level.

1.40Including search engines in the bill will have unintended consequences. Most likely search engines will favour large establishment media outlets and websites, reducing search reach for small, independent researchers and emerging news sites.

1.41This will create or more accurately entrench an establishment monopoly on news and current affairs.

1.42Should mis- or disinformation be present in a search result, that would surely be an issue for the website hosting the content, not the search engine that has indexed it.

1.43Search engines should be excluded from the bill.

Transparency, information gathering and reporting

1.44The bill would ‘impose core transparency obligations on digital platforms requiring them to be upfront about what they are doing on their services to combat mis- and disinformation’.[8]

1.45This statement is not strictly speaking true. The reporting, information gathering and transparency measures go the whole Code, not just the mis- and disinformation aspects of it. In fact even with the mis- and disinformation provisions removed the bill is largely intact.

1.46One Nation supports the transparency, data gathering and reporting provisions in the bill as they would cover inauthentic behaviour, media literacy, complaints handling and data access.

1.47The transparency, data gathering and reporting provisions of the bill should be retained.

Time limits

1.48There are no time limits on mis- and disinformation. There have been cases of persons posting something which was acceptable or considered true at the time, but years later the person has been banned for ‘disinformation’. There must be a time limit to how far back a platform can be held to account. While One Nation opposes mis- and disinformation provisions, it would still be wise to make the bill forward looking not retrospective.

1.49Material older than 12 months should not be included in the scope of the bill.

Senator Malcolm Roberts

Participating Member

Footnotes

[1]Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024, Explanatory Memorandum, p. 44.

[2]Australian Human Rights Commission, Submission 66, [p. 6].

[3]Australian Medical Professional Society, Submission 58, [p. 3].

[4]Combined Faith Leaders, Submission 70, p. 2.

[5]Ms Rita Jabri Markwell, Legal Adviser, Australian Muslim Advocacy Network, Proof Committee Hansard, 11 November 2024, p. 26.

[6]Google, Submission 86, p. 9.

[7]CyberCX, Submission 80, pp. 4–6.

[8]The Hon Michelle Rowland, Minister for Communications, House of Representatives Hansard, 12 September 2024, p. 8.