What a tragedy that the one referendum aimed at recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution has been lost by a margin of 40:60, and in all states. Since the fateful vote, it has been common for some ‘Yes’ advocates to express concern that there was too much misinformation and disinformation peddled on social media by some of the ‘No’ advocates. Even if there were no such misinformation or disinformation, I doubt that the referendum could have succeeded.
Unfortunately, the proposed constitutional change was too loosely worded and the process for seeking bipartisanship non-existent. The major challenge for the country in the future is according First Australians’ agency and self-determination while remaining true to the undoubted rules for constitutional change.
Meanwhile, there can be no doubt that people on both sides of the referendum debate invoked arguments and peddled material on social media outlets which could be classified as ‘misinformation’ or ‘disinformation’. Misinformation is usually considered to be content on a digital service which contains information that is false, misleading or deceptive and which is reasonably likely to cause or contribute to serious harm. Misinformation becomes disinformation if the person disseminating it intends that the content deceive another person.
Media platforms are largely self-regulating when it comes to dealing with this sort of material. Of course, the laws of defamation can still be used if a person is being unlawfully defamed on an internet platform, and in just the same way as if they were being defamed on the airwaves or in a newspaper. Defamation of individuals is not the only social harm caused by gross misinformation or disinformation.
Prior to the last federal election, the Morrison government had expressed concern about the increasing amount of misinformation and disinformation appearing on the internet. Trumpian politics was finding its way down under. The Morrison government pledged to do something about it if they were re-elected, conceding that it was no longer good enough simply to allow the powerful digital platforms to be self-regulating.
In June, Michelle Rowland, the Albanese government’s Minister for Communications, released an exposure draft of a bill: the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2023. Given the complexity of the matter, it is fair to presume that her department had been working on some such exposure draft prior to last year’s election.
'Some think the bill goes too far in seeking to regulate the internet; others think it has not gone far enough.'
It’s no surprise that the Dutton opposition has taken a hostile approach to the exposure draft, regardless of its merits or origins. In September, David Coleman, the Shadow Minister for Communications, told the Parliament: ‘Labor’s shocking misinformation bill is an absolute disgrace—an appalling piece of legislation which would substantially restrict free speech in this nation. Remarkably, the government has managed to bring together pretty much all sectors of Australian society in condemning this bill.’
There are indeed many critics of the bill. The ‘Sky after Dark’ brigade have labelled it a gross interference with freedom of speech. Concerns have been expressed in submissions by the Australian Human Rights Commission, the Human Rights Law Centre and the Law Council of Australia, as well as the Queensland Council of Civil Liberties and the New South Wales Council of Civil Liberties.
The UNSW Allens Hub for Technology, Law and Innovation which is ‘an independent community of scholars based at UNSW Sydney’ aiming ‘to add depth to research on the diverse interactions among technology, law, and society’ has also expressed concerns. As has the Victorian Bar and constitutional law scholar Anne Twomey.
Some think the bill goes too far in seeking to regulate the internet; others think it has not gone far enough.
When announcing the exposure draft bill, Minister Rowland outlined a new framework to empower the Australian Communications and Media Authority (ACMA) to hold digital platforms to account for harmful misinformation and disinformation online. She insisted that ACMA’s proposed new powers would bring ‘greater transparency to efforts by digital platforms to respond to misinformation and disinformation on their services, while balancing freedom of expression which is at the heart of democracy’. The government’s intention has been to maintain self-regulation by digital platforms but with an added level of supervision by ACMA. ACMA would not review particular instances of alleged misinformation or disinformation. Rather it would review a platform’s self-regulation regime ensuring compliance with their voluntarily accepted codes of behaviour, imposing fines of up to $2million for a failure to implement any voluntary code.
Being interviewed on 3AW on the Sunday morning when the exposure draft was released, Rowland said: ‘The Australian Government’s intention here is clear. This is about doing whatever we can, including introducing new laws to keep Australians safe. We want to ensure that Australians are not subjected to mis and disinformation that can harm us. And let’s be clear about the kind of harm we’re talking about here. This can be misinformation that actually results in people ignoring strong health advice. It can be misinformation that actually endangers lives by saying that a predicted pathway of a bushfire, for example, is going in another direction by publishing a fake map with emergency services branding. That is exactly the kind of behaviour that we are seeking to address with these new laws.’
Though Australia does not have a constitutional bill of rights, we do have a Constitution which ensures representative and responsible government under a Constitution which can be amended only by a supermajority of the people. These attributes have allowed the High Court of Australia to determine that ‘freedom of communication on matters of government and politics is an indispensable incident of that system of representative government’.
Within the week, News Limited’s Chris Mitchell was quick out of the blocks observing: ‘While no serious journalist supports publication of disinformation and misinformation, many are concerned both terms are being used as political weapons to shut down lines of inquiry that governments dislike. While the proposed legislation specifically exempts professional journalists, many worry such approaches could have a chilling effect on genuine inquiry. Remember, it was initially the tech platforms that censored distribution of a mainstream media story about Hunter Biden.’
Mitchell went on to speak about the misinformation mantra that was being invoked during the referendum debate: ‘We heard an example of politicised misuse of the terminology only last week when Indigenous Australians Minister Linda Burney claimed opponents of the voice referendum were using Trump-style disinformation. Never mind prominent constitutional lawyers and some of the most senior Aboriginal supporters of the voice have agreed with No campaigners that the voice will have powers to make recommendations in areas far wider than Burney has admitted.’
Though Australia does not have a constitutional bill of rights, we do have a Constitution which ensures representative and responsible government under a Constitution which can be amended only by a supermajority of the people. These attributes have allowed the High Court of Australia to determine that ‘freedom of communication on matters of government and politics is an indispensable incident of that system of representative government’. When it comes to referendums, the relevant provision of the Constitution ‘necessarily implies a limitation on legislative and executive power to deny the electors access to information that might be relevant to the vote they cast in a referendum to amend the Constitution.’
Any law aimed at restricting freedom of communication, including a law empowering ACMA to impose sanctions on the owners of digital platforms for failing to apply their own standards of self-regulation of suspect content, must satisfy two tests. The High Court has specified: ‘First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people?’
In the end, it will probably come down to determining whether any law on misinformation and disinformation is sufficiently tailored to ensure there is no overreach when determining whether or not there is a likelihood of serious harm. Presently the exposure draft defines harm as:
(a) hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(b) disruption of public order or society in Australia;
(c) harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory or local government institutions;
(d) harm to the health of Australians;
(e) harm to the Australian environment;
(f) economic or financial harm to Australians, the Australian economy or a sector of the Australian economy.
What will render the bill unpalatable to many is the list of materials which are exempt from inclusion in misinformation and disinformation. The list not only includes material which is produced for entertainment, parody or satire. It includes material produced by educational institutions. Most egregiously and with an Orwellian touch of 1984, even materials produced by government are exempt. No wonder Teal independent Zali Steggall has reservations about the bill. It will understandably face a hard time in the parliamentary committee processes. She thinks the bill could ‘have the potential to be exploited in the event of a future extremist government.’ It would be very surprising if any legislation on this topic sees the light of day in the present Parliament. Minister Rowland should still be commended for giving it a go.
Frank Brennan is the author of An Indigenous Voice to Parliament: Considering a Constitutional Bridge, Garratt Publishing, 3rd edition. Frank is the Rector of Newman College and the Australian Jesuit Province’s Bookends Project Officer for Aboriginal and Torres Strait Islander Peoples. He was a member of the Calma/Langton Committee on the Co-Design of the Voice.