Monday, 11 September 2023
Private Members' Business
Freedom of Speech
We have lots of motions come into this place, and some are more important than others. This is about as important as it gets because it refers to a fundamental right, which is freedom of speech. Without freedom of speech, we don't have any of the other rights. That is the right from which the others flow. If it is compromised, all of the others are, including democracy.
We also see, in a lot of these motions and the response to them, a political syllogism where we identify a problem that we can all agree on and we say: 'Well, someone must do something.' Then a bill is presented: 'Well, this is something, therefore we must do that. And if you don't support that, then you're not with us on agreeing to do something about it.' The problem is that when a bad bill is presented, you either amend it or you throw it out. And this one is so bad it must be binned. There's no reworking this one, as many other members have said. It is fundamentally, in its structures and its definitions, flawed.
We saw the member for Warringah refer to the practice in the courts for 'misleading and deceptive conduct.' I've conducted trials with that section. It's section 18 of the Australian Consumer Law. It is one of the most litigated sections in Australian law. I've been in trials that have gone for over 100 hearing days. They've been before the courts for years, with multiple millions of dollars spent interpreting those words, 'misleading and deceptive.' They sound simple but in practice they're not. With a bill like this, the hard reality of trying to solve a problem that sounds simple is that we must recognise that the solution can be worse than the problem that you think you're trying to fix.
When we look at the various groups that have put submissions into this draft exposure bill, none of them have been published. We had an excellent submission by the Victorian Bar. The Victorian Bar didn't do a submission on the draft Voice position, but the government was quite happy to claim that a vote by its members was great. They've put pen to paper on this particular bill. You can't pick and choose when you're going to listen to an organisation. It's the same with the Law Council. They've given a very concerning submission, where they've said that the prospect that digital platform providers and ACMA will be required to sift information from opinion or claims is, in itself, likely to have a chilling effect on freedom of expression. Again, you can't pick and choose when you listen to groups like the Law Council, because this bill is deeply flawed. Even the media union, the MEAA, have criticised it, and they have thousands of members who work in this sector. Will Labor listen to one of its own unions which actually works in this area?
This will, in its current draft, create a lawyer's picnic. One of the questions that anyone will ask is: what is excluded content? There are enormous carve-outs within this provision. We've heard many members, including the member for Goldstein, talk about the rise of Donald Trump, saying that they saw it firsthand and that we could have our own 6 January moment. Guess what: in this bill, if President Trump held office here, he'd be excluded. He's not covered. He gets a free pass, but no-one mentions that. That's the problem with this: it creates a status of opinion. So an Australian President Trump is fine, but a man, woman, boy or girl on the street is not fine. That's totally unacceptable, but that's the way this has been put.
Then there is the way it links even the slightest bit of misinformation. It says that it's 'reasonably likely to cause or contribute to harm'. So, if there's a paper or post that's been written and there's one sentence or one line could cause or contribute to harm, that would mean that it could be censored. Again, we've heard from the government that ACMA, won't be doing that; they'll just be creating a regime for the tech companies to do it. They are in the business of making money and they're going to be extra cautious. They don't have the time or the staff to sift through these, so you're going to purchase off-the-shelf an AI program that will sift through as much information as possible so it doesn't bring you before the wrath of ACMA.
Then, in all of the other carve-outs, what does 'news content' mean? What does 'academia' mean? And why should politicians, journalists and professors get a free pass? We should all be subject to the same free-speech laws.