The Misinformation Bill’s Sly Tyranny

The Misinformation Bill is upon us. This is about making the powerful the arbiter of truth: after all, misinformation is largely in the eye of the beholder. The Labor Government knows its bad. That’s why they are trying to sneak it through parliament at the last minute without anyone noticing — an effort which is so far failing. They hope no-one will understand its contents, or even how it works. They are attempting to deflect criticism by providing Potemkin safeguards, such as generalised references to freedom of speech.

The Bill creates a range of powers that are gifted to the Australian Communications and Media Authority (ACMA). The first is to make ‘codes’ that regulate a range of online platforms, including social media platforms. At the same time, ACMA will also gain a suite of powers to obtain information from tech companies, as and when they see fit.

If online platforms don’t comply with ACMA’s diktats met, it has the power to issue enormous fines to the tech companies. Worse still, there is a power to fine individuals who advise others how to get around the codes. For example, if this bill passes, then individuals could be fined simply for suggesting the use of a Virtual Private Network (VPN) that makes the user appear to be accessing the internet from outside of Australia.

This Orwellian attack on companies and individuals come straight from the playbook of the Brazilian ‘jurist’ Alexandre de Moraes, who recently imposed fines on Elon Musk’s X Corp (aka Twitter). In response, Musk dubbed de Moraes the “the Darth Vader of Brazil”.

Much of the criticism of the legislation has focussed on its definition of misinformation but that’s a sideshow. The real threat comes because ACMA’s new powers work coercively, rather than directly. ACMA can design codes to favour providers that do its bidding. They can also selectively prosecute breaches of their codes, wherein their true power lies. For example, they can reward social media companies who censor more than is required in line with the dominant ideological emphasis, an issue that has already arisen with respect to the European Union. They can do what the eSafety Commissioner has already done and issue abusive requests for information, followed up with fines when the requests are rejected. The true model is one of collateral censorship, via a quid pro quo model, since any attempt to regulate ‘misinformation’, no matter how narrowly defined, will result in a wide form of censorship.

If you don’t believe this, look at how the eSafety Commissioner — Julie Inman Grant — already operates. Under Statute, the eSafety Commissioner actually has very limited formal powers to take down content. She is required to comply with the ‘implied freedom of political community’. Her powers are officially used rarely, maybe a few dozen each year, according to her own annual reports. Most of the time she instead issues ‘informal notices’ which, according to her, cannot be appealed, even if one is fortunate to find out about them. This approach subverts the rule of law, but also illustrates the risk of creating any body on this topic.

After all, why wouldn’t ACMA do what Ms Inman Grant already does.

As it happens, we have a test case about this in the Administrative Appeals Tribunal, namely that of Baumgarten v eSafety Commissioner, where this issue will be determined after a November hearing.

The reality is that companies (other than X), comply with her ‘informal’ requests all the time. This even includes GoDaddy, a web hosting platform that sells domains and takes down websites at her request. So the existing practice already circumvents all the extensive statutory safeguards. The Mis/Dis/Info Bill has the potential to make this even worse. Remember that the eSafety Commissioner is a part of ACMA and all her staff are on its payroll.

But wait, there are some other nasties.

Labor has also launched two other bills that have attracted less attention. The first concerns ‘Doxxing’, but goes well beyond this legitimate concern. If the Bill passes, saying that ‘Roxanne Tickle is a biological man who was originally called Jason’ could potentially land you in prison for up to seven years. The same would go for telling people where Dan Andrews plays golf. Such lengthy custodial sentences would be grossly disproportionate and the effect would be to bring any form of trans rights into disrepute, injuring those the legislation was apparently designed to protect. It is the opposite of progressive.

Then there is the Hate Speech Bill, which will make it even easier to imprison someone for incitement. This works by making modifications to existing offences, lowering the threshold for conviction, and expanding the coverage to a wider range of groups. This is another hidden nasty that it risks being used to imprison people for social media posts, in a similarly draconian manner to what is happening in the UK. Of course, these bills are given no prominence by the government because they don’t want you to know what they are up to.

We’ve got a fight on our hands! The Free Speech Union will be hard at work challenging these Bills. We’ve made a tool that helps you very quickly write a submission to the Senate in a matter of minutes. But please do hurry, you’ve only got until the September 30 to lodge a submission! To make it easier, here’s the link:

freespeechunion.au/misinfo

It is time to write! While we still can.

Dr Reuben Kirkham is a founder of the Free Speech Union of Australia.