Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Last week I spoke about a very disturbing piece of proposed legislation which has been released in exposure draft, namely the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023. I made a number of comments in relation to that legislation which I'd like to expand upon in this adjournment speech.

The first point I want to make is that senators who come and visit me in my office, and all senators here are welcome to come and visit me in my office, will walk between, on your left, a photograph of John Stuart Mill who wrote the magisterial essay 'On Liberty' in 1859 and, on your right, a wax bust of another one of my heroes, Voltaire. I read Voltaire's magnum opus, his most famous work, Candide, when I was in grade 8. My French teacher gave it to me to read. It was one of those books that I carried with me always. Voltaire was someone who practiced freedom of speech with the most ferocious intensity, the most eviscerating wit and he spent time in jail in 1717 because of his satirical verses, which were considered an affront to those in power in France at the time. The value of freedom of speech is at the core of everything I believe in. It is a fundamental freedom and, for as long as I'm in this place, I will ferociously seek to protect it against any assault.

The more I look at this legislation, Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill, the more concerned I am. And I recommend that all senators in this place of all parties—senators sitting on the crossbench, senators sitting in government, senators sitting in opposition—should read this bill in detail because it is very concerning. It could well be that those who prepared this legislation had the best of intentions but, as we all know, the best of intentions does not necessarily lead to the best of outcomes, and that is my concern. To put it bluntly: this bill gives too much power to those in government and in particular to those in the bureaucracy.

There were three concerns I raised in my two-minute statement last week. The first was the power this bill gives to government officials to determine what is false or misleading. If you turn to section 7 of the bill, it provides that the definition of misinformation is:

the content contains information that is false, misleading or deceptive …

My concern with that drafting is how many times have we sat in this place and heard accusations across the chamber that one senator or another has said something that is either false or misleading? Who makes that judgement? It should not be people in government making that judgement. It should be people following a debate, making up their own minds, as all Australians are able to do, based on the content and the substance of the arguments before them.

The second point of that definition which causes me grave concern is there's an exclusion. So this bill doesn't concern combatting all misinformation and disinformation—of course not! There are exclusions. There is some information which is not captured by this legislation, and to go to that you need to have a look at the definition of 'excluded content for misinformation purposes'. There are a number of interesting inclusions in that regard. The first is that it includes 'professional news content'. So-called professional news content is excluded from the remit of this legislation, but all other news content is not excluded.

Then you go to the definition of content 'produced by or for an educational institution accredited by the Commonwealth'. So a comment that a university prepares is excluded from the operation of this bill, but content which someone may put up on the web criticising something a university does falls within the remit of this bill—entirely inappropriate in my view. The piece de resistance, the cherry on top, is the content that is authorised by government—be it Commonwealth government, state government, whatever government—is excluded entirely. So this bill—combatting misinformation, disinformation—does not apply to government publications; it only applies to those who may be criticising government policy inaction. That is a major, major issue at the core of this legislation, that it provides protection for those in power, who have the megaphone, who have the resources and it seeks to police those who do not, and that is a fundamental failing in this legislation.

The second point I made in my two-minute statement was the chilling effect this could have on social media platforms. The argument has been made by some that this doesn't provide that ACMA, the communication authority, can go in and force a social media company to delete something or police what is put up on its website. The fact of the matter is that the way the legislation works is that ACMA could potentially use the threat of fines to actually indirectly cause social media platforms to self-censor. This would have a chilling effect on freedom of speech. Table 3 in the guidance note of June 2023 provides that if a digital media platform is in non-compliance with a registered code or standard, the maximum penalty is $2.75 million or two per cent of global turnover. So with that penalty or fine hanging over their heads like the sword of Damocles, one can well understand the chilling effect it could have on digital platforms. Why take the risk if ACMA write you a letter to say that this post or this information is really misinformation or misleading or false and should be removed in accordance with your code of conduct? why take the risk of resistance? Just take it down. That is the second concern I have with this legislation.

The third concern I have is around the powers in this bill to coerce ordinary Australians to have to appear before ACMA or provide information to ACMA. Again, I turn to the guidance note, section 5.3, which provides extraordinary information-gathering powers. A digital platform provider or other person who has relevant information, documents or evidence must comply with requests for information from ACMA. ACMA may issue a formal warning to the digital platform provider or person if it is satisfied the person has not complied with the requirements, and these are everyday Australians who could be met with an enforcement order or a notice from ACMA. If they do not comply, they are liable to fines of up to $8,250—again, totally inappropriate.

So for those three reasons: firstly, the power it gives to government officials to determine what is false or misleading; secondly, the point that it excludes government from the operation of the bill, so they get a free pass; nobody is watching them; the government is excluded from the bill—the impact the potential fines of millions of dollars would have on digital platforms to actually take down posts and information including, potentially, by members in this place; and lastly, the Draconian powers which ACMA would have under this legislation to coerce everyday Australians to provide information is simply unacceptable. The government should reconsider this legislation and this bill should be put in the bin.