The federal misinformation bill faces fierce Senate scrutiny.

The Albanese Government’s Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024 has cleared the House of Representatives but faces substantial opposition. 

Designed to crack down on harmful misinformation and disinformation online, the Bill grants the Australian Communications and Media Authority (ACMA) regulatory powers to oversee digital platforms, enforce industry standards, and ensure transparency. 

However, serious questions remain about its implications for freedom of speech and its reliance on digital platforms for enforcement.

Minister for Communications Michelle Rowland is pushing the legislation, describing misinformation as a “serious threat to the safety and wellbeing of Australians, as well as to our democracy, society and economy”. 

“Doing nothing and allowing this problem to fester is not an option,” she says.  

The Bill includes some protections for freedom of expression and does not allow ACMA to take down individual posts or user accounts, leaving content management to the platforms.

The government also notes that public concern over misinformation is high, with a 2024 survey by the Australian Media Literacy Alliance finding that 80 per cent of Australians believe it is a pressing issue. 

It says high-profile examples, such as conspiracy theories linking 5G towers to COVID-19 and misleading claims about election rigging, show the real-world harm of unchecked falsehoods. 

ACMA’s powers would focus on systemic issues, including inauthentic behaviours such as bot-driven campaigns and troll farms.

But the Bill has drawn criticism for what some see as vague definitions and potentially unconstitutional provisions. 

Legal expert Professor Anne Twomey has expressed concern over the explanatory memorandum (EM) accompanying the Bill, which she argues could inadvertently capture legitimate political communication. 

While the Bill’s text is “completely different” from the EM, Twomey notes; “You can’t prove that someone’s opinion is false”.

Concerns also extend to how the Bill assigns responsibility. Fact-checkers, relied upon for verification, are seen as a weak link. Twomey criticised the reliance on non-experts, saying; “These are most frequently young kids out of university… making decisions about what is true and what is false”. 

The process, she argued, is prone to error and influenced by the political leanings or expertise of chosen fact-checkers.

David Mejia-Canales of the Human Rights Law Centre has called for stronger measures, criticising the reliance on tech platforms to self-regulate. 

“Big tech platforms have a history of dodging responsibility and no incentive to regulate themselves when they reap enormous profits from misinformation,” he said. 

While six platforms have signed the voluntary Australian Code of Practice on Disinformation and Misinformation, an independent review revealed inconsistent efforts and stalled progress on transparency.

Independent senators and legal experts have raised concerns about the Bill’s potential to curtail freedom of expression, including Senator David Pocock, who criticises the lack of safeguards.

“In Australia, we don’t have an overarching human rights act that entrenches these rights,” he said. 

Further controversy surrounds the Bill’s definition of “serious harm”. 

Critics argue that the EM’s examples, such as misinformation influencing electoral outcomes, risk overreach. 

Twomey warns that this could lead to “over-censorship” as platforms err on the side of caution to avoid penalties. 

Political claims and contestable opinions, particularly during elections, could be wrongly classified as misinformation, she argued.

The government faces a tough road ahead in securing the Bill’s passage. 

The Coalition and key crossbench senators, including Tammy Tyrrell and former Labor Senator Fatima Payman, have signalled opposition. 

With the Greens yet to decide their stance, Ms Rowland has reiterated the Government’s commitment to refining the Bill, citing extensive public consultation that garnered over 24,000 responses. 

Despite the criticism, Rowland defends the measures as balanced.

“Revisions have been made that carefully balance the public interest in combatting seriously harmful misinformation and disinformation with the freedom of expression that is so fundamental to our democracy,” she said.  

The Bill explicitly excludes professional news, parody, satire, and reasonable dissemination for academic, artistic, scientific, or religious purposes.

The Bill’s progress is part of a crowded legislative agenda, with more than 30 bills under Senate consideration in the final two sitting weeks of the year. 

Critics also argue that the government risks rushing the legislation, potentially leading to unintended consequences.

Adding to the complexity, global factors may influence the Bill’s effectiveness. 

Observers have highlighted the potential impact of future US legislation limiting platform regulation, as proposed by Donald Trump. Elon Musk has called the Australian government ‘fascists’ over its move to regulate online misinformation. 

The Senate inquiry into the Bill is set to report by 25 November. 

With mounting opposition, the Albanese Government must secure crossbench support or risk the Bill stalling in the Senate. 

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