The Authoritarian Assault on Free Speech

The Australian Government has recently announced its plan to adopt ‘misinformation’ legislation empowering the Australian Communications and Media Authority (“ACMA”) to force social media platforms to tackle any alleged ‘misinformation.’ The opposition leader, Peter Dutton, says the Coalition is willing to work with the government to strengthen eSafety laws and introduce the new misinformation laws, thus rejuvenating the government’s misinformation legislation which was shelved last year.^[1] Likewise, the deputy opposition leader, Sussan Ley, informs us that the Opposition will support Labor “in cracking down” on social media platforms.^[2]

We should not be surprised because past governmental behaviour is a good predictor of how governments might behave today. For example, the former Coalition government, under domestic terrorism response protocols, sought to censor COVID-related content that, in practice, amounted to the silencing of voices daring to question the efficacy of vaccines, lockdowns, and mandatory vaccination.^[3] The official government (mis)information about the safety of vaccines was based on flawed research conducted by pharmaceutical companies selling these experimental vaccines. The deregistration of doctors, who provided vaccine exemptions or prescribed alternative treatments, such as ivermectin,was an especially egregious practice.

The federal Communications Minister, Michelle Rowland, candidly communicates that “The Albanese government has been steadfast in its resolve to combat the scourge of mis- and disinformation online.”^[4] She contends that “Holding social media companies accountable for seriously harmful misinformation and disinformation on their platforms has never been more important.” ^[5] Her department has recently issued a document proposing amendments to the Online Safety (Basic Online Safety Expectations’ Determination – “BOSE Determination”) that would deprive Australians of free speech and the implied freedom of political communication guaranteed by the Constitution.^[6]

The e-Safety Commissioner’s ‘Online Hate Speech’ report defines “harmful content” as anything that might increase “the likelihood of discrimination.” Not surprisingly, neither “hate speech” nor “harmful” are properly defined. The concept of “harm,” peddled by the e-Safety Commissioner’s report, is basically left to be subjectively determined by an unelected governmental agency.^[7] Of course, reasonable people will have different views about what constitutes harm. For example, most reasonable people would assume that the government’s information about mRNA vaccines as being ‘safe and effective’ constitute harm and misinformation. However, the government will continue to make sure that official information is never deemed misinformation. It is indeed quite revealing that only views that are incompatible with the official narrative of the ruling classes may be considered under the proposed legislation “harmful” and “misinformation.”

Curiously, the Online Safety Act 2021 already grants an unelected bureaucrat, namely the eSafety Commissioner, extraordinary powers to enforce compliance with the Communications Minister’s directives.^[8]  — powers the present Commissioner has just used this power to order X (formerly Twitter) to remove material claimed to depict “gratuitous or offensive violence with a high degree of impact or detail”, within 24 hours or face fines.^[9] Although X complied with the request, the posts were still accessible globally and, hence, Australians with a virtual private network connections (VPN) could still access the material.[10] Fittingly,  X has accused the Australian government watchdog of global censorship. “We will robustly challenge this unlawful and dangerous approach in court,” X said. The owner of X, Elon Musk, has Tweeted that the “Australian censorship commissar is demanding global content bans!”^[11] Earlier he branded the e-Safety Commissioner the “Australian censorship commissar” while his company raises free speech and juridictional concerns over the takedown order.[12]

Not surprisingly, the Prime Minister Anthony Albanese, not particularly known for his appreciation for free speech, holds a different opinion. He claims eSafety Commissioner, Julie Imman Grant “is doing her job to protect the interests of Australians”.[13] In her address at the World Economic Forum in 2023, the Commissioner talked about the need for the Australian authorities to “think about a recalibration of a whole range of human rights that are playing out online, from freedom of speech to freedom to be free from online violence”.^[14]

It is instructive to consider the circumstances that led to these bureaucratic and legislative attempts to regulate what Australians are allowed to see on their social media platforms. The present frenetic activity to hold social platforms accountable is a direct consequence of the posting footage of bishop Mar Mari Emmanuel when he was administering a livestreamed service at the Assyrian Church in Wakeley, a suburb of Sydney. Following the attack, an undisciplined group of congregants gathered rioted, and allegedly injured police.

Of course, it is possible that the rioters had received tainted information regarding the events and the alleged attacker, but the question remains as to why this material, even if tainted, may not be accessed by Australians while viewers in foreign urisdictions remain able to view the knife attack and riot at will. In removing such material, Australia’s collective memory will soon forget that this unfortunate event ever happened, thereby removing knowledge of a painful part of our history. In this context, it is helpful to speculate as to what could have happened after the Second World War if the horror images of the extermination camps, or the more recent beheadings of innocents by ISIS, or the hanging of Saddam Hussein, had not been readily available for viewing. The availability of such material on social media is a reminder to the world of the innate evil of which people are capable when they have total control over others.

In Australia, the government and now, sadly, also the Coalition are arrogating to themselves a patronising sense of entitlement to a guiding role over the lives, thoughts and speech of its citizens by banning videos and images that are part of the Australian historical landscape. These are Nanny State abuses of personal freedom that are “authoritarian and paternalistic … imposing on people what is good for them, for nanny knows best’”.[15]

In contrast, a libertarian philosophy provides a socially healthy alternative to the implantation of the principle of paternalism. It is not the role of the State to hold the hands of adults as they make their own decisions as to what they want to view on social media. Every time the government seeks to mould individual economic and social choices, personal freedom is diminished, so much stronger justifications should be demonstrated for such interventions. Also, the argument that children could access the information is neither persuasive nor conclusive because there are diagnostic devices that can prevent impressionable children accessing such information. In any event, the responsible supervision of children is first of all the duty of parents, not the State.

It is imperative to be reminded that every authoritarian regime eventually undermines free speech as a matter of course. Indeed, rulers with authoritarian inclination always had a vested interest in preserving the status quo by suppressing any speech that might threaten their prevailing orthodoxies. For example, in 1621, when the House of Commons announced their right to freely speak, King James I tore out the page of the journal which contained this statement and arbitrarily dissolved the Parliament. He also imprisoned several MPs who were deemed ‘disloyal’ to him for daring to proclaim such a right , including Sir Edward Coke.

History repeats itself and now the Australian Communications Minister has been galvanising support around the globe, talking to Canada, Spain, EU, and the UK, to form a global consortium to bully X and Meta into compliance with the government’s censorship requirements. The first step was to sign, on February 20, 2024, a pact with  with Michelle Donelan MP, the UK Secretary for Science Innovation and Technology, entitled Memorandum of Understanding Between the Government of the United Kingdom and the Government of Australia Concerning Online Safety and Security. This agreement commits both governments to suppress online information under the false pretence of countering so-called “misinformation” and “disinformation” – that is, any information not accepted by the government. For this agreement between these two governments explicitly states:

Countering misinformation and disinformation. Both Participants will share best practice and deepen collaboration on countering misinformation and disinformation – a threat to our democracies and social cohesion. Both Participants will seek to pursue a programme of targeted joint capacity building and strategic engagement with technology platforms and strengthen the impact of relevant international fora on misinformation and disinformation.[16]

This is an Orwellian use of language. Free speech is not a threat to democracy but a core principle of every authentically democratic society. Anyone who has studied a skerrick of history knows that protecting free speech is about giving voice to the powerless against the established interests.^[17] Consequently, free speech should be regarded, not only as a democratic requirement, but also as a mechanism against the concentration of power. Furthermore, in a real democracy anyone would have the right to choose words that best reflect their feelings, and “strong words may better convey to listeners the intensity of feeling than more conventional language.”[18] This point has also been made by Salman Rushdie, the British novelist, who was put under an Islamic death sentence because he insulted some religious sensibilities. He stated:

The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. A fundamental decision needs to be made: Do we want to live in a free society or not? Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s positions. ^[19]  

Rushdie goes on to remind us:

People have the fundamental right to take an argument to the point where somebody is offended by what they say. It is no trick to support the free speech of somebody you agree with or to whose opinion you are indifferent. The defense of free speech begins at the point where people say something you can’t stand. If you can’t defend their right to say it, then you don’t believe in free speech. You only believe in free speech as long as it doesn’t get up your nose.[20]

The extent to which political speech in Australia can be offensive was considered in Roberts v Bass (2002).[21] This case dealt with defamatory allegations made against a member of the South Australian Parliament. Justice Kirby argued for the majority of the High Court that “political communication in Australia is often robust, exaggerated, angry, mixing fact and comment and commonly appealing to prejudice, fear and self-interest”.[22] This argument was further expanded in Coleman v Power (2004)[23] where Kirby also reminds us that Australia’s politics often involves “insult and emotion, calumny and invective”’, and that the (constitutionally) implied freedom of political communication must allow for all this.[24]

But the reason why the federal Communications Minister may be approaching so many international actors (and signing that agreement of understqanding with her UK counterpart) is to trigger the ‘external affairs power’ provision found in section 51(xxix) of the Australian Constitution. As the range of topics regulated under the external affairs power has been endlessly expanded, the scope of this head of power presently encompasses any relationship with, or between, foreign states, international organisations or other entities regardless of whether they be the subject matter of international treaties or less formal dealings or agreements. ^[25] In Pape v Federal Commissioner of Taxation, Justice Dyson Heydon observed that “the treaty or commitment need not have the precision necessary to establish a legally enforceable agreement at common law, but it must avoid excessive generality” [emphasis ours].^[26] As such, implementing any international “commitment” would provide the basis on which the federal government could defend the constitutional validity of legislation were this to be challenged in the Court. This reliance on a “commitment” would only have to be evident from the preamble to the proposed legislation.

It is not difficult to understand why so many politicians across the Western world would want to join our politicians in reducing any threat to their own official (mis)information. The horrendous violations of people’s fundamental legal rights over the last years have revealed the existence in Western democracies” of an invidious trend to authoritarianism. A perfect example, of course, is the ongoing discussion in our nation about the supposed need of “misinformation/disinformation legislation. Free speech is therefore under serious threat in Australia, and it behoves all those who truly value democracy to oppose this spectacular power grab by those who aspire to have more arbitrary power and control over society.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. 

Moens and Zimmermann are the authors of ‘The Unlucky Country’ (Locke Press, 2024). To order your copy, click here

[1] Tory Shepherd, ‘Peter Dutton backs laws to crack down on ‘above the law’ social media companies over misinformation’, The Guardian, 21 April 2024, at https://www.theguardian.com/australia-news/2024/apr/21/peter-dutton-now-backs-laws-to-crack-down-on-above-the-law-social-media-companies-over-misinformation#:~:text=The%20opposition%20leader%2C%20Peter%20Dutton,was%20shelved%20late%20last%20year.

[2] Ibid.

[3] Rod Lampard, ‘Australian Government Ruled COVID Wrong-Think ‘Domestic Terrorism’’, Caldron Pool, 22 May 2023, at https://caldronpool.com/australian-government-ruled-covid-wrong-think-domestic-terrorism/#google_vignette.

[4] Tory Shepherd, ‘Peter Dutton backs laws to crack down on ‘above the law’ social media companies over misinformation’, The Guardian, 21 April 2024.

[5] Ibid.

[6] Amending the Online Safety (Basic Online Safety Expectations) Determination 2022 (BOSE Determination), Australian Government, Department of Infrastructure, Transport, Regional Development, Communications and the Arts, 22 November 2023, at https://www.infrastructure.gov.au/department/media/publications/amending-online-safety-basic-online-safety-expectations-determination-2022-bose-determination.

[7] Elisabeth Taylor, ‘A misinformation/disinformation bill by stealth?’, Canberra Daily, 21 February 2024, at https://canberradaily.com.au/a-misinformation-disinformation-bill-by-stealth./

[8] Ibid. /

[9]. Josh Taylor and Josh Butler, ‘Australian court orders Elon Musk’s X to hide Sydney church stabbing posts from users globally’, The Guardian, .22 April 2024, at https://www.theguardian.com/australia-news/2024/apr/22/elon-musk-x-twitter-stephen-jones-content-removal-order-sydney-stabbings.

[10]Ibid.

[11] Tory Shepherd, ‘Peter Dutton backs laws to crack down on ‘above the law’ social media companies over misinformation’, The Guardian, 21 April 2024, at https://www.theguardian.com/australia-news/2024/apr/21/peter-dutton-now-backs-laws-to-crack-down-on-above-the-law-social-media-companies-over-misinformation#:~:text=The%20opposition%20leader%2C%20Peter%20Dutton,was%20shelved%20late%20last%20year.

[12] Martin Farrer, ‘Elon Musk hits back at Australia court order against X images of stabbing,’ The Guardian, 23 April 2024, at https://www.theguardian.com/technology/2024/apr/22/elon-musk-hits-back-at-australian-court-order-against-x-images-of-stabbing

[13] Ibid.

[14] ‘WEF 2022 (Davos) Australian eSafety Commissioner: “To recalibrate human rights and free speech”’, at https://www.youtube.com/watch?v=AFdv5-j-rw4.

[15] Richard H Thaler and Cass R Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness, New Haven, Conn: Yale University Press, 2008, 5-6.

[16] ‘Memorandum of Understanding Between the Government of the United Kingdom and the Government of Australia Concerning Online Safety and Security,’ 20 February 2024, at https://www.infrastructure.gov.au/sites/default/files/documents/20240220_signed-mou_online-safety-and-security.pdf

[17] Tim Wilson, ‘Insidious Threats to Free Speech,’ The Weekend Australian, April 5-6, 2014, at 17.

[18] Ibid.

[19] Salman Rushdie, ‘Defend the right to be offended,’ OpenDemocracy, February 7, 2005. Accessed at: http://www.opendemocracy.net/faith-europe_islam/article_2331.jsp.

[20] Ibid.

[21] Roberts v Bass (2002) 212 CLR 1.

[22] Ibid. 63 [171] (Kirby J).

[23] Coleman v Power (2004) 220 CLR 1

[24] Ibid [91] (Kirby J).

[25] “The first thing to be stressed about s 51(xxix) of the Constitution for the purposes of the present case is that its reference to “External affairs” is unqualified. The paragraph does not refer to “Australia’s external affairs.” Nor does it limit the subject matter of the grant of power to external affairs which have some special connection with Australia. The word “external” means “outside.” As a matter of language, it carries no implication beyond that of location. The word “affairs” has a wide and indefinite meaning. It is appropriate to refer to relations, matters or things. Used without qualification or limitation, the phrase “external affairs” is appropriate, in a constitutional grant of legislative power, to encompass both relationships and things: relationships with or between foreign States and foreign or international organizations or other entities; matters or things which are territorially external to Australia regardless of whether they have some identified connection with Australia or whether they be the subject matter of international treaties, dealings, rights or obligations. Such a construction of the phrase “External affairs” in s 51(xxix) is supported by the settled principle of constitutional construction which requires that, subject to any express or implied general constitutional limitations and any overriding restrictions flowing from express or implied constitutional guarantees, the grants of legislative power contained in s 51 be construed with all the generality which the words used admit and be given their full force and effect”. – Polyukhovich v The Commonwealth (the War Crimes case) (1991) 172 CLR 501 [599] (Deane J). For a general overview of the external affairs power, see Gabriël A Moens and John Trone, The Constitution of the Commonwealth of Australia Annotated, 9^th edl, LexisNexis Butterworths, Australia, 2016, 185-193.,

[26] [2009] HCA 23; (2009) 238 CLR 1, 162 (Heydon J) (‘Pape’).                                                                        1             1