The Australian Government’s proposed misinformation bill may be “dead in the water” following significant pushback from opposition Senators in the upper house of the federal Parliament, according to Sky News Australia’s Political Editor, Andrew Clennell,
“It’s long odds at the moment because David Pocock, the independent Senator, I understand, has severe reservations around it, including the freedom of speech issue,” Clennell said.
“[Senator] Jacqui Lambie [of the Jacqui Lambie Network political party] was on with [Sky News Australia’s] Peter Stefanovic yesterday, also expressing real reservations about this bill.
“The Greens might support it, but even they want to change it as well, is my information. You need the Greens and a couple of independents – that doesn’t look likely, according to my information.
“I think this bill is dead in the water,” he added.
Clennell’s claim was backed up earlier this week by Liberal Senator Alex Antic. Speaking to Sky News host Rita Panahi, he cast doubt about the Government’s ability to muster enough votes to get the Bill through the Senate, where it only has 25 of the 76 seats.
“The message needs to get through to the crossbench – this will hinge on those five or six senators who sit on the crossbench,” he said, before adding: “What I would say to them is what is good for the Left of politics can also be good for the Right and vice versa. This is a bill which should be defeated for the sake of free speech in this country.”
For the avoidance of doubt, the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 really is as illiberal as its detractors claim. Indeed, it is the latest in a long line of ill-conceived, poorly worded attempts by Western governments to tackle ‘fake news’.
The aim is to force online platforms to censor ‘misinformation’ and ‘disinformation’ to the satisfaction of an unelected and opaque Government agency, the Australian Communications and Media Authority (ACMA). To that end, the Bill grants ACMA new powers to impose a compulsory code of practice on digital platforms, as well as demand information from them.
But how will the ACMA decide whether a piece of online content is ‘misinformation’ or ‘disinformation’? As the COVID-19 lab leak theory’s journey from “conspiracy theory” to “plausible hypothesis” reminds us, the difference between mis- (or dis-) information and legitimate news is often little more than the passage of time.
This was eloquently expressed by the former Supreme Court judge Lord Sumption in an article for the Spectator:
All statements of fact or opinion are provisional. They reflect the current state of knowledge and experience. But knowledge and experience are not closed or immutable categories. They are inherently liable to change. Once upon a time, the scientific consensus was that the Sun moved around the Earth and that blood did not circulate around the body. These propositions were refuted only because orthodoxy was challenged by people once thought to be dangerous heretics.
The Bill defines “misinformation” as content that is: “reasonably verifiable as false, misleading or deceptive” and “is likely to cause or contribute to serious harm”.
The same definition is used for “disinformation”, adding that there must be grounds to suspect that the content was shared with the intent to deceive others or otherwise “involves inauthentic behaviour”, whatever that means.
It’s true that the Bill makes an exception for “content that would reasonably be regarded as parody or satire” and “reasonable dissemination of content for any academic, artistic, scientific or religious purpose”, as well as “professional news content”.
But this merely raises more questions.
Who, officially, is a journalist? Is content produced by citizen journalists exempt? The answer is no, unfortunately.
When it comes to academic content, what counts as “reasonable”? Consider a case like Dr. Nathan Cofnas, the FSU member and early career research fellow at the University of Cambridge, whose college recently cut ties with him over a blog post about race and intelligence. In the world according to Australia’s draft misinformation bill, would his work receive legal protection as a “reasonable contribution” to scientific and academic discourse, or would it end up falling foul of the ACMA’s new online regulatory code?
What about Hobart city councillor Louise Elliot, who earlier this year gave a speech at a women’s rights rally in which she said transwomen were and always will remain biological men?Would it be deemed reasonable for her to share a video of that speech for academic or scientific purposes? Given that she was subsequently hauled before the Tasmanian Anti-Discrimination Commission and accused with “inciting hatred”, that seems unlikely.
Then there’s the question of what counts as a sincerely held religious belief? Earlier this year, the Australian Christian Lobby warned that the legislation as drafted would inevitably “cancel Christian posts online” and prevent churches from “expressing an alternate view to the prevailing woke culture on gender and sexuality”. The Australian Catholic Bishops Conference also spoke out against the Bill in a joint letter to the Government, noting that “there are people who will sometimes incorrectly claim that the teachings of the Catholic Church are “hateful” or “harmful”.
Arguably, the most troubling aspect to the Bill’s understanding of “misinformation” is that it defines any information authorised by the Government as “excluded content”. In other words, Government information cannot, by definition, be “misinformation” or “disinformation” under the law. But content critical of the Government produced by political opponents might be. In its recent submission to the Law Council of Australia regarding the Bill, the Victorian Bar warned that this exemption creates a “double standard” that “disadvantages critics of the Government in comparison with Government’s supporters”.
Then there’s the issue of the Bill’s definition of “serious harm”. All that’s required for online content to be categorised as “misinformation” or “disinformation” is that it is “reasonably likely to cause or contribute to serious harm”. The categories of serious harm included in the bill are extremely broad, including:
- “harm to public health in Australia, including to the efficacy of preventative health measures 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”;
- and “imminent harm to the Australian economy, including harm to public confidence in the banking system or financial markets”.
As Australia’s Media, Entertainment and Arts Alliance recently reminded the Government, “There is a long history of important social movements being considered ‘disruptive’ by governments and powerful interests” and this concept of ‘harm’ is therefore “dangerous and open to misuse and exploitation”.
If this Bill really is, asAndrew Clennell claims, “dead in the water”, that marks an important staging post in the fight for free speech in the country – and it’s thanks in no small part to the Free Speech Union’s sister group, the Free Speech Union of Australia.
Since the first iteration of this legislation was introduced in June 2023, tens of thousands of Australians have used the FSU of Australia’s online campaigning tool to write to Parliament and express concern about the serious risk it poses to democracy. To date, over 25,000 people have used the tool to send an email.
The good news is that grassroots campaigning really can make a difference. But as recent events in Ireland remind us, this is no time for complacency.
Ireland’s Minister for Justice, Helen McEntee, recently announced she was dropping the hate speech provisions from the Irish Government’s new hate crime bill, which would have made “communication” of material deemed capable of inciting “hatred” punishable by up to five years in prison, and mere “possession” of such material punishable by up to two years.
And yet, little more than a week after making the concession, Ms. McEntee has already begun talking up the possibility of the Government “moving forward” with the discarded provisions – possibly via a separate bill, or more likely via amendments to existing Acts of the Oireachtas – after the next election.
So however encouraging developments in Australia’s Senate over the next few days and weeks may appear to be, free speech advocates Down Under shouldn’t count their chickens. The cost of liberty is eternal vigilance.
Dr. Frederick Attenborough is the Free Speech Union’s Senior Communications Officer. You can find him on Substack here.
Stop Press: The Free Speech Union of Australia has pointed out that many indigenous organisations are strongly opposed to the misinformation bill. That’s particularly embarrassing for the Albanese Government, given it’s tendency to sacralise indigenous groups.
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The suspicious element, of course, is the coordination across the West of these efforts at censorship and narrative control. It’s very puzzling; so, so puzzling. Is it the zeitgeist? Or could it be a coordinated and directed conspiracy to embed organised lying at the heart of information control? And is it possible that these campaigns of organised lying are designed to deceive the general public?
Even the North Korean Government might think this is a but excessive. But here we are all over the “Free World” silencing all dissent and classing it as “misinformation” and only seeking to allow government approved information.
They pushed it too hard and too fast it is a fault of their system that towards the end they inevitable over-accelerate. Inflate or die as the bankers say even though they know that it will burst at some point. Free speech is noting without free and powerful thought otherwise it is just a lot of people talking a lot of crap sitting in a cell with crap all over the walls with the mind-forged manacles shut tight and they think they are covered in fancy jewellery and perfume. You have to start with a move back towards the written word and the dismissal of spectacle.