Rebekha Sharkie (Mayo, Centre Alliance) Share this | Hansard source

According to a survey on trends in Australian political opinion in 2022, 43 per cent of respondents indicated a high interest in politics in Australia. This level of interest has been consistent for the last 60 years. I mention this as it's a good baseline measure when comparing the number of emails and phone calls my office receives on a particular bill. Non-contentious bills attract low interest commensurate with the non-contentious nature of the bill. Similarly, contentious bills attract a high level of interest. The bill we have before us, the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024, created a high level of interest beyond what we would normally expect, even for contentious bills.

The response from my community is clear: they do not like what they've read about the bill, and they are concerned about the implications on their freedom to express views and for democracy itself. This, of course, reflects the broader community's view on the bill. The exposure draft received around 20,000 comments and 2,418 public submissions during the consultation period in 2023. This is well above the normal engagement on exposure drafts. Disappointingly, this bill, while amended to address some of the concerns identified in the exposure draft, was limited to a mere seven-day consultation period. For a bill that seeks to impose significant and unprecedented impositions on our freedom of speech, one would have thought a more extensive consultation period would have been prudent.

The genesis of this bill stems from the rapidly changing nature of how Australians create, obtain, engage and distribute news and information. Social media has opened immediate access to sources of information globally, 24 hours a day. However, the digital revolution that has enabled the dissemination of material on platforms accessible on watches, phones and personal computers has created opportunity for the spread of misinformation and disinformation, often facilitated by complex algorithms that target and corral users. Australians are rightly concerned about the spread of misinformation, and they are deeply worried about the potential misuse of social media platforms in elections. But is it possible to legislate a solution? I think that's what we need to be arguing today.

This bill seeks to add a new schedule 9 to the Broadcasting Services Act, the BSA. There are three broad elements. Firstly, it imposes core obligations on digital communications platform providers. Secondly, it empowers the Australian Communications and Media Authority, the ACMA. Thirdly, it defines serious harm as a consequence of misinformation and disinformation, albeit in very broad and subjective terms.

A fundamental tenet of democracy is the right to freedom of expression, acknowledging that we have existing and appropriate laws that put some constraints on this freedom to prevent individuals from invoking violence or discrimination. However, this bill puts an obligation on social media providers who are presented with a complaint to consider the falsity of the information and any serious harm that may arise. This social media provider must then make a decision to either risk civil penalties if its decision is not to remove the post and it is subsequently determined by ACMA to be misinformation and disinformation or take the easy path and simply remove the offending post. Inevitably, social media providers will choose the easy path and remove the post. The consequence is an immediate reduction in the freedom of expression.

There are inherent problems with any attempt to adjudicate what is true information. In the context of ideas, who is right and who is wrong? Many of our great advancements in scientific understanding were considered false before their acceptance. Charles Darwin's On the Origin of Species was considered heretical at the time, only to become the foundation of evolutionary biology theory. Do we want an environment where ideas that don't conform to an established orthodoxy are removed from discussion? An editorial by Michael Sexton in the Australian put this most succinctly. He said:

No doubt some of the statements made on social media stretch credulity but, as American jurist William O. Douglas said in the early 1950s: "When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents." To similar effect, another American jurist, Oliver Wendell Holmes, said in a judgment of the US Supreme Court in 1919: "The best test of truth is the power of the thought to get itself accepted in the competition of the market." It might be thought that Australians have generally had a history of scepticism for political views and that the optimism of Douglas and Holmes would be borne out in most cases.

The obligations on social media providers and the empowering of ACMA are the stage of the prevention of 'serious harm' which this bill defines as:

A reasonable person would agree that these harms are, indeed, serious. But the practical capture of these harms in the real world poses considerable problems. The Australian Human Rights Commission addressed this in their submission to the Senate Environment and Communications Legislation Committee, arguing that they are too broad, providing the following example:

… legitimate discussion of interest rates may harm any number of Australians confidence in financial markets, especially during times of economic hardship. However, this isn't information that should be captured as causing or contributing to serious harm.

The commission made one recommendation: the bill should not be passed in its current form.

No-one wants to see the spread of false or misleading information, but I don't think people want us to entertain the censorship of ideas either. When governments become the arbiter of truth, we start on a perilous path that must be avoided accordingly. I most certainly will not be supporting this bill.

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