Senator Sharma's Additional Comments

1.1The Committee's inquiry into Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 (the bill) has revealed it to be a dangerous, rushed and ill-advised piece of legislation.

1.2It would have chilling and wide-ranging implications for fundamental human rights, the free exchange of ideas, and the ability of citizens to express viewpoints that challenge conventional wisdom or majority opinion.

1.3The bill is without friends. The committee's report makes a valiant attempt to construct support for the legislation, but the truth is that almost no witnesses who appeared before the committee were prepared to speak in support of it. That is why the committee’s report predominantly cites the Explanatory Memorandum and the Department as support for its positions.

1.4Even where witnesses acknowledged that misinformation and disinformation posed a risk to society, they could not agree with the remedy proposed by the bill. It might cure the disease (that of misinformation and disinformation), but at the expense of killing the patient: a free and liberal society.

1.5The process for conducting the inquiry left much to be desired, given the very truncated timeframes involved. Some 28,000 submissions were received, an overwhelming amount. Only a small fraction could be published in the time available. Only a small number of hearings were conducted. Many witnesses and experts were not heard.

1.6The bill, if passed, would impose obligations on digital communications platforms to manage and remove misinformation and disinformation on their platforms. If they are assessed (by government) to be failing in this obligation, the regulator, the Australian Communications and Media Authority (ACMA), is able to step in and impose its own standards, and impose heavy fines.

1.7Under the terms of the bill, and as detailed in the Explanatory Memorandum, the definition of misinformation includes ‘opinions, claims, commentary and invective’, that is ‘reasonably verifiable as false, misleading or deceptive’, by reference to ‘expert opinion’ and ‘fact-checkers’, and that may lead to ‘serious harm’. The bill provides for some narrow exceptions.

1.8These terms are exceptionally broad and ill-defined. This means that the scope of what may be characterised by digital communications platforms as misinformation and removed accordingly is even more so, given the very high fines they face (up to five per cent of global turnover, so running into several billion dollars) if they get this judgement wrong.

1.9To avoid the risk of such fines, these platforms will err on the side of caution, and take down any information that can potentially fall within the broadest interpretation of misinformation. Whatever incentive may exist to protect freedom of expression is more than outweighed by spectre of such heavy penalties.

1.10The result, in practice, is that a modern-day Copernicus or Galileo would face a modern-day Inquisition. Someone who seeks to challenge received wisdom or orthodoxy, as Copernicus and Galileo did in their day, and publishes their views on a digital communications platform, would almost certainly find themselves being 'cancelled' by this platform.

1.11The concerns expressed about the deleterious impact of this bill on the right to freedom of expression by, amongst others, the Australian Human Rights Commission, the Victorian Bar Association, the Parliamentary Joint Committee on Human Rights, the Senate Standing Committee for the Scrutiny of Bills, and Professor Anne Twomey, are too serious to ignore.

1.12Of equal concern is the stifling effect this bill would have on the ability of our nation to advance.

1.13Free and liberal societies such as ours have, since the Enlightenment, made progress through the open contest of ideas and opinions. Scientific breakthroughs can only come about because received wisdom can be challenged and contested openly. Society advances in its values by permitting challenges to the prevailing orthodoxy. Whether it is the rights afforded to minorities or the status of women, the social progress Australia has made would not have been possible without free and open debate and exchange of viewpoints. Given the ubiquity of digital communications platforms in the modern-day marketplace of ideas, this bill would suppress such a debate.

1.14I note the committee’s recommendation that the bill be withdrawn and discharged from the notice paper. This is welcome, but this Bill should never have been introduced, and no bill like it should be introduced again.

Senator Dave Sharma

Member