News

6 November 2024

The scourge of misinformation and disinformation on the internet presents one of the most pervasive and complex challenges of our time. The issue threatens public safety, social cohesion and even our democracy, by enabling mass manipulation and undermining public trust in outcomes. The scale of the problem is staggering and it is scary, because we know a democracy is only as strong as the information available. The fact is you have a situation where misinformation and disinformation is currently in an unchecked environment. It's simply not right.

The World Economic Forum has classified misinformation and disinformation as one of the top global risks for the next two years. That really is an incredibly sobering warning. We only need to look at what's happening daily on social media platforms and, unfortunately, all too often in our legacy media, where misinformation and disinformation is platformed on traditional media—and I will get to that and the issue that this Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 does not address in a moment.

Unfortunately, you only have to see the outcome today of the US election, where the amount of false facts—misinformation—that has been part of that debate is staggering and incredibly scary for what that means and how it influences outcomes. With a federal election looming in Australia by March or May next year, I am incredibly concerned that Australia is woefully unprepared to counter AI-generated and pushed content that is misinformation and disinformation.

There's ample evidence that misinformation and disinformation is a critical issue facing Australians. In 2022, a Roy Morgan survey showed that over two-thirds of Australian adults have encountered deceptive news misinformation. In a speech to the National Press Club this year, the Australian Federal Police Commissioner—I hope all members of this place can at least take into account the warning from the Australian Federal Police Commissioner—stated that social media companies are 'pouring accelerant' on the flames of misinformation and extremism. If that isn't a sobering warning, I don't know what would get you to pay attention.

You only have to look at some of the practical examples. During the Bondi stabbing attacks and another stabbing incident in Sydney, the spread of graphic and false information and posts, and the speed at which that inflamed the community, was really concerning and demonstrated the impact of misinformation on safety and community cohesion. That's why it's so urgent that we do address this issue.

The government's bill builds on the draft released last year, and there has been a fair amount of consultation. I've been critical of the timing and the ability to provide submissions. I was able to provide a submission to the exposure draft early, and I'll address some of the concerns that I had.

In that submission, I expressed concern about the extensive powers that were being granted to the Australian Communications and Media Authority and concern that there is not sufficient oversight over that body. I'm disappointed that this still has not really been addressed. ACMA's capacity to handle these new responsibilities is still unproven, yet it is a crucial role in how we are going to fight misinformation and disinformation.

There's no independent external review mechanism to ensure accountability of ACMA. I've expressed my concerns that ACMA ultimately reports to the minister and therefore the government. I know that is the area that the opposition has taken to criticise this bill in relation to concerns over how this can be manipulated for political gain. I don't disagree. If there is a change of government, I'm assuming that the advantage of these loopholes and this fault in this legislation would be taken by all sides of government, and that is a huge concern. We need that independent external review of ACMA, and we need to have it at arm's length from the minister and the government. That is an area I'll continue to discuss with the minister. We know that there has been some movement since the exposure draft. Under it, the powers afforded to the minister were capable of being misused, should the political and social environment enable this to happen, and could be used in a way to threaten freedom of speech and democracy.

The bill does provide an impact assessment on freedom of expression, yet this is only set to occur three years after commencement. The review provisions are that there's going to be an assessment after three years of the impact on freedom of speech and the operation of ACMA. My concern is that three years is a long time and that more regular review should be required. I feel the review should be taking place annually, certainly in the early years of operation of this bill, to ensure that it is meeting the purpose intended and that it is doing so in the most effective way. We need to ensure transparency and responsiveness to any unintended consequences. That's why an overly burdensome and earlier review process can be that overprotective, extra layer of certainty. I note from briefings with the minister that there are provisions that ACMA will publish a yearly account of its engagement and action and use of the powers. Whilst that provides some accountability, I still would urge the government to consider a more frequent review than the three years provided at the moment.

The definitions of 'misinformation' and 'disinformation' in the original draft were broad and untested, and that posed a huge risk of misuse. The bill now contains more refined definitions. There's been much discussion between the crossbench and a number of members with the minister. Those changes have been welcome. The Australian Human Rights Commission has called it largely positive but is concerned about significant issues remaining that could impact freedom of expression. I will come back to that in a moment.

I also welcome the adjustments the minister and the department have made in relation to excluded content provisions, now renamed as excluded dissemination, which clarify that these powers don't apply to professional news content. This is a step in the right direction, but further discussion is needed to fully understand and manage the implications of these changes. I should note that, whilst it's essential to have exceptions for news content and we do so under defamation law, the Privacy Act and so many other areas of legislation, those exceptions for news content come with a responsibility to act with ethical diligence in accordance with the codes, and ACMA, which is there as the body to oversee how media and news actually operate, must be an effective cop on the beat.

It must be an effective check against, for example, news and media platforms, including legacy platforms, using those exceptions to be the very conveyors of misinformation and disinformation. We know that's a risk because we saw it in the practical example—unfortunately, the real-life situation—of the Bondi stabbing, where a legacy media company named the wrong person. Nothing in this act would prevent that from happening. Of course, defamation proceedings kicked in and that was resolved, but there is great concern. The hope is that this legislation will stop the misnaming of the person from getting traction and growth and will stop it spreading in online content. That, hopefully, would stop legacy media from jumping onto the misinformation and conveying it further, but it does raise the question: does nothing in this bill address misinformation and disinformation as published and pushed by legacy media companies? That is a step that still needs much work.

Another key amendment that's been introduced concerns access rights for independent researchers to review platform data. This is essential and I do welcome the government moving on this issue. I know many on the crossbench and many other groups have pushed for these amendments. It's incredibly important that online platforms be compelled to produce their data so it can be analysed and used for research and we can actually assess the risks of what is happening online. From eating disorders to online bullying and mental health, there are so many areas where legitimate, independent researchers need to have access rights for platform data. We know the platforms hold that data very closely. They do not share it willingly. Again, this will be managed by ACMA, with an initial review after a year to see how it's going. This is a lot of responsibility to be putting on ACMA, which again raises concern that we need a review of the operations of ACMA to make sure that they are robust, diligent and fit for purpose. This change in relation to independent researchers helps to address the opacity of social media platforms and to promote better research into the very impact of misinformation.

One of the fundamental considerations of this bill is the balance between free speech and public safety. The Human Rights Commission has raised concern that this bill could infringe on free speech rights. But, at the same time, we have to acknowledge that freedom of speech—and I should say that the High Court has acknowledged this—is not the right to spread misinformation and disinformation. There are two very different things in that. The human right to free speech does not override human rights in relation to racial vilification, discrimination and all the other aspects of human rights.

I find it interesting that so many in the opposition are here rallying to the call for human rights, yet no-one is prepared to stand up for a human rights act. Other than the crossbench putting it forward, there has been objection to codifying human rights here and having a specific law to address that. It is always really difficult to find a balance between different rights—the right to be safe, the right to not be racially vilified, the right to not be vilified for sexual orientation. Free speech is not an unlimited right, and that is the balance that has to be struck. I'd say, in the context of the campaign around this legislation, that there have been a lot of conspiracy theories, and we certainly have received a lot of information both ways, but, overwhelmingly, we have to take into account the widespread damage caused by misinformation and disinformation. Ultimately, whilst I have some concerns, for me it highlights the need to implement this legislation.

The bill may not address every aspect of this complex issue. Nevertheless, its immediate implementation could provide a solid foundation to begin tackling these challenges, with improvements to be made through ongoing review. Essentially, I see this as the start of putting up some guardrails against misinformation and disinformation, but I think that much work is going to need to be done and we are going to need to be incredibly diligent to make sure that those guardrails are working effectively.

We can't talk about misinformation and disinformation without talking about something that I have been trying for four years to get all members in this place to sign up to, and that is a standard in political advertising similar to that in consumer advertising. It is absolutely unacceptable that we have yet to legislate against misleading and deceptive political advertising. I have put forward the Commonwealth Electoral Amendment (Stop the Lies) Bill 2022. I have put forward voter protections. Despite the government saying it will act on this, we have not yet seen it, and we are running out of time again, with another election coming. What I say to people is: 'The only way you are protected is you have to inoculate yourself against misinformation and misleading and deceptive content. If it doesn't sound right, if it seems a little bit like an odd claim, it probably is. Check your sources. Make sure you know where to go for fact-checked information.'

The role and authority of ACMA will require careful monitoring in this situation. Historically, ACMA has been partly funded by the media sector it oversees and it has not demonstrated robust accountability. We know that. We've seen that in too many examples.

I've had many a discussion with the minister, who has indicated that a clear statement of ministerial expectation will be made that will set the bar high for ACMA to act. The minister said there will be care taken to make sure that the expanded role meets public expectations of integrity and transparency. So while I have concerns, I commend the bill to the House as an important guardrail against misinformation and disinformation.