Michelle Rowland (Greenway, Australian Labor Party, Minister for Communications) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill. I ask leave of the House to move government amendments (1) to (23) as circulated together.

Leave granted.

I move government amendments (1) to (23) as circulated together:

(1) Schedule 1, item 2, page 4 (after line 11), after the paragraph beginning "The ACMA may make" in clause 1, insert:

The ACMA may also make digital platform rules to provide for one or more data access schemes. The rules may require digital communications platform providers to give access to data to approved independent researchers in relation to the identification, assessment and mitigation of risks in relation to misinformation and disinformation on digital communications platforms provided by those providers.

(2) Schedule 1, item 2, page 4 (after line 33), after the definition of access in clause 2, insert:

approved independent researcher means a researcher who is approved by the ACMA to be given access to data under digital platform rules made for the purposes of clause 21B.

(3) Schedule 1, item 2, page 5 (after line 13), after the definition of content aggregation service in clause 2, insert:

data access scheme means a scheme prescribed by digital platform rules made for the purposes of clause 21B.

(4) Schedule 1, item 2, page 12 (after line 26), after paragraph 11(d), insert:

(da) to facilitate research on:

(i) the prevalence of misinformation and disinformation on digital communications platforms provided by digital communications platform providers; and

(ii) effective means to counter such misinformation and disinformation; and

(5) Schedule 1, item 2, page 17 (line 9), after "Code of Practice", insert ", the Community Radio Broadcasting Codes of Practice".

(6) Schedule 1, item 2, page 18 (after line 22), after paragraph 17(1)(b), insert:

(ba) the provider's current policy or policy approach, and any other information prescribed by the digital platform rules, in relation to access by researchers to data relating to the identification, assessment and mitigation of risks relating to misinformation and disinformation on the platform;

(bb) the steps the provider is taking to comply with its obligations under a data access scheme (if any);

(7) Schedule 1, item 2, page 21 (after line 10), after Subdivision B, insert:

Subdivision BA — Data access schemes

21A Objective

The objective of this Subdivision is to provide for the making of one or more data access schemes:

(a) to assist the ACMA to perform its functions and exercise its powers under this Schedule in relation to misinformation and disinformation on digital communications platforms provided by digital communications platform providers; and

(b) to assist digital communications platform providers to comply with requirements imposed on them by or under this Schedule in relation to misinformation and disinformation on digital communications platforms they provide; and

(c) to inform the development of policies to address misinformation and disinformation on digital communications platforms provided by digital communications platform providers.

21B ACMA may make digital platform rules for data access schemes

Digital platform rules may provide for one or more data access schemes

(1) The digital platform rules may provide for one or more data access schemes that require digital communications platform providers to give access to data for the purposes of independent research in relation to the identification, assessment and mitigation of risks in relation to misinformation or disinformation on digital communications platforms provided by the digital communications platform providers.

(2) Without limiting subclause (1), digital platform rules made for the purposes of that subclause may:

(a) require digital communications platform providers to give approved independent researchers access to data in relation to the incidence of misinformation or disinformation on digital communications platforms provided by the providers; and

(b) require digital communications platform providers to give approved independent researchers access to data in relation to the extent to which misinformation or disinformation may be amplified on digital communications platforms provided by the providers; and

(c) require digital communications platform providers to give approved independent researchers access to data in relation to the methods used to prevent or respond to the following on digital communications platforms provided by the providers:

(i) the incidence of misinformation or disinformation;

(ii) the amplification of the incidence of misinformation or disinformation; and

(d) provide for different means by which approved independent researchers are given access to data under the rules; and

(e) provide for procedures relating to requests for access to data by approved independent researchers under the rules including, but not limited to, time limits within which digital communications platform providers must deal with requests for such access; and

(f) make provision in relation to fees that may be charged by digital communications platform providers before access to data is given to an approved independent researcher, under the rules, which must not exceed the reasonable costs arising from providing the access; and

(g) provide for the giving of information to the ACMA by digital communications platform providers in relation to the following:

(i) requests for access to data under the rules;

(ii) actions taken in relation to such requests; and

(h) provide for approved independent researchers to give information to the ACMA on a voluntary basis, being information:

(i) that the approved independent researcher obtained under the rules; and

(ii) that the approved independent researcher considers relevant to achieving the objective of this Subdivision.

Digital platform rules must provide for criteria for approval of researchers

(3) The digital platform rules must, if rules are made for the purposes of subclause (1), provide for criteria to be satisfied before the ACMA approves a researcher to be given access to data under those rules, in relation to one or more of the following:

(a) the research project in respect of which the researcher is to be given access to data;

(b) the qualifications and experience of the researcher;

(c) how conflicts of interest will be dealt with;

(d) the organisation (if any) on behalf of which the researcher will conduct the research project concerned;

(e) the proposed sources of funding for the research project concerned;

(f) the technical and organisational capacity to fulfil data security and confidentiality requirements of:

(i) the researcher; and

(ii) the organisation (if any) on behalf of which the researcher will conduct the research project concerned.

Certification of certain matters relating to use of data

(4) Digital platform rules made for the purposes of subclause (3) must also provide that a researcher must not be approved to be given access to data under those rules unless:

(a) the researcher certifies that data to which access is given under the rules will be used by the researcher only in conducting the research project concerned, and that the results of the research project will be made widely available; and

(b) the researcher certifies that the researcher will not use the results of the research project concerned, or data to which access is given under the rules, for the purpose of obtaining commercial benefit or advantage.

Confidentiality

(5) Digital platform rules made for the purposes of subclause (3) must also provide that a researcher must not be approved to be given access to data under those rules unless the researcher is willing to enter into a standard form confidentiality agreement (see subclause (6)) with each digital communications platform provider that will give the researcher access to data.

(6) Digital platform rules made for the purposes of subclause (3) must also prescribe a standard form confidentiality agreement, which:

(a) must be directed towards protecting the security of digital services and data; and

(b) without limiting paragraph (a), must specify that, if data to which access is provided includes information of a kind referred to in subclause 17(3), the information will not be further disclosed except:

(i) in the case of information other than personal information (within the meaning of the Privacy Act 1988)—with the consent of the digital communications platform provider that provided access to the data; or

(ii) in any case—otherwise as required or permitted by law.

21C Compliance with digital platform rules regarding data access

(1) A digital communications platform provider must not contravene digital platform rules made for the purposes of clause 21B.

(2) Subclause (1) is a civil penalty provision.

21D Remedial directions — contravention of digital platform rules regarding data access

(1) This clause applies if the ACMA is satisfied that a digital communications platform provider has contravened, or is contravening, digital platform rules made for the purposes of clause 21B.

(2) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene digital platform rules made for the purposes of clause 21B, or is unlikely to contravene those rules, in the future.

(3) A digital communications platform provider must not contravene a direction under subclause (2).

(4) Subclause (3) is a civil penalty provision.

21E Review of operation of this Subdivision

(1) As soon as possible after the first anniversary of the commencement of this Schedule, the Minister must cause to be conducted a review of the operation of this Subdivision.

(2) The review must:

(a) consider further the requirements for a scheme requiring digital communications platform providers to give approved independent researchers access to data relating to misinformation or disinformation on digital communications platforms provided by those providers; and

(b) consider whether this Subdivision should be amended.

(3) The review must be conducted in a manner that provides for public consultation.

(4) The Minister must cause to be prepared a report of a review under subclause (1).

(5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

(8) Schedule 1, item 2, page 24 (line 29), after "(mg)", insert ", (mh), (mi)".

(9) Schedule 1, item 2, page 27 (line 17), after "(mg)", insert ", (mh), (mi)".

(10) Schedule 1, item 2, page 31 (line 31), after "Subdivision", insert "BA or".

(11) Schedule 1, item 2, page 52 (line 5), omit "or (mg)", substitute ", (mg), (mh) or (mi)".

(12) Schedule 1, item 2, page 52 (line 15), omit "or (mg)", substitute ", (mg), (mh) or (mi)".

(13) Schedule 1, item 2, page 53 (lines 6 and 7), omit "a review", substitute "an independent review".

(14) Schedule 1, item 2, page 53 (line 11), omit "amended; and", substitute "amended.".

(15) Schedule 1, item 2, page 53 (lines 12 to 16), omit paragraph 70(2)(c).

(16) Schedule 1, item 2, page 54 (after line 17), after paragraph 72(e), insert:

(ea) subclause 21C(1) (compliance with digital platform rules regarding data access);

(eb) subclause 21D(3) (remedial directions—data access);

(17) Schedule 1, item 2, page 55 (after line 3), after paragraph 73(c), insert:

(ca) subclause 21C(1) (compliance with digital platform rules regarding data access);

(18) Schedule 1, item 2, page 55 (after line 23), after paragraph 74(1)(c), insert:

(ca) subclause 21C(1) (compliance with digital platform rules regarding data access);

(19) Schedule 1, item 2, page 56 (after line 10), after paragraph 75(1)(b), insert:

(ba) subclause 21D(2) (remedial directions—data access);

(20) Schedule 2, item 2, page 60 (after line 27), after paragraph 10(1)(mg), insert:

(mh) to facilitate research on the operations of digital communications platforms;

(mi) to support the development of an evidence base in relation to:

(i) the prevalence of misinformation and disinformation on digital communications platforms provided by digital communications platform providers; and

(ii) effective means to counter such misinformation and disinformation;

(21) Schedule 2, item 14, page 63 (table item dealing with giving a remedial direction in subsection 204(1), column 2), after "21(2),", insert "21D(2),".

(22) Schedule 2, item 14, page 63 (table item dealing with variation of a remedial direction in subsection 204(1), column 2), after "21(2),", insert "21D(2),".

(23) Schedule 2, item 14, page 63 (table item dealing with refusal to revoke a remedial direction in subsection 204(1), column 2), after "21(2),", insert "21D(2),".

I acknowledge the constructive engagement of the crossbench in informing the government amendments that are now before the House. The government's amendments will further enhance transparency of the actions of digital communication platforms in relation to misinformation and disinformation; improve oversight over the operation of the provisions in the bill; and provide additional clarity on the definition of 'professional news content'.

The government amendments include new provisions which would enable the ACMA to make digital platform rules to establish one or more data access schemes that would require digital communication platform providers to give independent researchers access to data for the purposes of research. Such a scheme would be focused on data relating to the identification, assessment and mitigation of misinformation and disinformation risks on the relevant platforms. The proposed data access scheme would support the development of an evidence base regarding the efficacy and performance of digital communication platform providers' measures to combat misinformation and disinformation. The digital platform rules would be enforceable in the same manner as the digital platform rules relating to complaints and dispute-handling processes, already in division 2 of part 2 of the bill. These will be legislative instruments subject to parliamentary scrutiny and disallowance.

The amendments would also provide new obligations for digital platform providers to publish their policies or policy approach to sharing their data for research purposes. When a data access scheme is enforced, the provider will also have to publish the steps they are taking to comply with the requirements under the schemes.

The bill would also be amended to require the minister to cause a review of data access arrangements for the purposes of misinformation and disinformation research, as soon as possible after the first anniversary of the commencement of schedule 9 of the bill. The bill currently provides for triennial statutory reviews of the bill but does not mandate or exclude that this be an independent review. The bill would be amended to mandate that the reviews be conducted as independent reviews, and I acknowledge the member for North Sydney for her constructive contribution to this amendment.

The bill exempts professional news content from being considered misinformation or disinformation. The definition of 'professional news content' includes news content that is subject to the rules of the Commercial Television Industry Code of Practice, the Commercial Radio Code of Practice or the Subscription Broadcast Television Code of Practice, and rules or internal editorial standards that are analogous to these rules. On 16 October 2024, the ACMA registered new community radio broadcasting codes of practice, which include provisions relating to mis- and disinformation. The government amendment to the bill would include explicit reference to rules covering community radio broadcasting in the professional news content exemption. This is in recognition that this sector also has industry standards relating to the accuracy of broadcast content.

Through these amendments, the government will further enhance the transparency and accountability of how platforms treat misinformation and disinformation online. It would also enhance oversight of the operation of provisions in the bill through an independent review. Doing nothing to protect Australians from seriously harmful misinformation and disinformation online is simply not an option.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I just wanted to rise to speak on the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 at this point in time, and I want to start by thanking both the minister and her team, and the government more broadly, for their genuine engagement on this, because I do think that it is very clear that the government has genuinely listened to the criticism it received from its first draft in 2023.

I want to reassure Australians that this piece of legislation includes a number of safeguards and improvements. It includes a comprehensive impact analysis that has been undertaken. The exemptions for government content have been removed. The enforceable misinformation codes and standards will be disallowable by this parliament. Digital platforms will continue to be responsible for the content they host and promote. What's really important to call out in a campaign of disinformation around this legislation is that neither the government nor ACMA will be able to engage directly with a content producer nor demand that content be removed. The government has amended the bill to also stipulate that the review would be undertaken by an independent third party, and I thank the minister for her engagement on this.

I want to specifically talk about the human rights implications of this piece of legislation as somebody who has fought incredibly hard for human rights protections in this country since I came to parliament. While there have been valid concerns about potential implications for freedom of expression, I believe that, to the extent that there is a restriction on that freedom of expression, it's justifiable and proportionate. In fact, this legislation actually protects a number of human rights, including the right to participate in public affairs, the right to vote and be elected, the right to security of person and the right to protect against vilification and discrimination.

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! The member shall resume her seat. The Manager of Opposition Business on a point of order.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

On a point of order: the member does need to be speaking to the specific amendments before the House, if she could tailor her remarks to the specific amendments the minister has moved.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I was listening carefully. The member was talking about section 3, the digital platform rules, providing for the criteria and did mention ACMA in her remarks, so she is being directly relevant. But I will make sure that all members are reminded that consideration in detail is not an opportunity for a second bite at the cherry or a second reading contribution. So far the member is being directly relevant, but just remember we're dealing with the amendments, not a general debate. I thank the Manager of Opposition Business.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

The point I'm making is that the elements that have been introduced through the amendments to this legislation have made it infinitely stronger by ensuring that there is independent oversight in terms of how this legislation will be enacted and by ensuring that access is actually granted to researchers. In relation to that, I want to particularly thank the member for Goldstein for the amount of work that she has done in advocating for that exemption.

But what I will say is that, as we've discussed this piece of legislation in this House, the opposition have argued consistently for the potential breach of freedom of expression and I think that's a bit rich, given that, just a number of months ago, as the Parliamentary Joint Committee on Human Rights recommended we introduce a human rights act, the opposition dissented vociferously on the basis that Australians' human rights are already adequately protected—

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member will resume her seat. Further to the point of order of the Manager of Opposition Business, the opposition isn't mentioned in the amendments. That is not able to be used in debate about positions; it is strictly about the amendments that are before me. Members do get some latitude, but to simply bring new argument into the debate is not possible under the standing orders.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

Ultimately, the challenge before this parliament right now is to assess whether the bill strikes an appropriate balance between safeguarding against misinformation and protecting freedom of speech. I do believe this bill has struck that balance. It's not perfect, but it's a start. The risk that seriously harmful mis- and disinformation poses to this country is too great to do nothing.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

I will speak briefly to the government's amendments, in part because of the deep interaction that my office has had with the minister and her staff in recent weeks in trying to resolve some pretty substantive issues of concern in the original bill. The government's amendments go, in part, to several of those concerns, particularly around transparency and data rights access for researchers. Having taken substantial expert advice in recent months—indeed, since last year when the exposure draft of the bill was originally given to the parliament to assess and attracted tens of thousands of submissions—I've been working with experts to try to get to the core of enabling researchers to look under the hood of these platforms.

I understand the reservations that have been raised by many in the opposition and within the Australian community around this bill. But I think that, on balance, at the moment we have zero guardrails around the behaviour of these platforms as it relates to misinformation and disinformation, and, currently, the misinformation and disinformation that is being somewhat managed by the platforms is being done so under the rules of Elon Musk and Mark Zuckerberg. In this instance, this parliament, on behalf of the Australian community, is trying to take some level of control back in order to be clear on exactly what risk mitigation measures the platforms have in place so that we can see that, in areas of risk, the platforms are taking the appropriate action.

I note that experts say that the addition of these amendments does add robustness and is consistent with international best practice on data rights access, and it's likely to be a more powerful mechanism for countering misinformation and disinformation than just ACMA alone.

I also note the concerns that have been raised by the Human Rights Commissioner around this bill, and I will reassure members of my community that others have different views. The Human Rights Law Centre, for example, believes that, with the changes that have been made, this bill should be passed in its current form.

I thank the minister for the interaction and, indeed, the minister's staff, who have done an enormous amount of work with my office on this.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question now is that the bill, as amended, be agreed to.