Misinformation laws must be withdrawn

On Friday 18 October QCCL President Michael Cope appeared before the Senate Standing Committee on Environment and Communications in support of the Council’s submission in opposition to the Government’s Misinformation and Disinformation Bill

“Speech is fundamental to human activity especially that organised democratically. It is the right upon which all the other rights depend. It is ironic indeed that it is the same significance which warrants protection for speech which gives it the power to harm.  But the fact that it could cause harm is not sufficient justification for doing so because of its immense value,” says Mr Cope.

In a society in which there are irreconcilable conceptions of the good life and how to achieve it, the only basis upon which we can proceed is the one which could not be reasonably vetoed which is that everybody should be entitled to an equal right to freedom of speech.

Governmental officials should not have the power to restrict speech on political topics on grounds of its falsity, because their understandable partiality and defensiveness against criticism of their policies, makes their judgments unreliable.

In addition, most, if not all, propositions in politics are not straightforward assertions of fact. They involve normative judgements. They always rest on judgments, often controversial, about the relative importance of various interests. Again, government officials cannot be neutral in these disputes.

These laws are expressed in very vague terms which will give Australian Communications and Media Authority (“ACMA”) a vast amount of power over political utterances in this country. Some examples of the over breadth of the laws include:

1.     “Information” is intended to include opinions claims, commentary and invective not just assertions of fact.

2.     The legislation covers “misleading” statements. That term has a well-established meaning in law. It includes a straightforwardly false statement of fact but extends to the provision of partial or incomplete information and information that is later rendered inaccurate by subsequent events and the author fails to correct the initial impression.

3.     It covers harm to the integrity of the Australian democratic process.

4.     It extends to harm to the Australian environment despite the complexities of the issues that arise in that area of public debate.

5.     What is meant by “economical or financial harm to Australians”? This might be caused by someone criticising the conduct of a company such as BHP which has an adverse impact upon the stock market cascading to individual super accounts.

“The effect of this legislation is to make ACMA the ultimate arbiter of what is information and what is not.”

Some say this can be fixed by creating a right of review to a Court in relation to a decision by ACMA. Whilst in theory this is a good suggestion, it has a number of fundamental problems:

1.     Any review is likely to take a long time.

2.     The existence of the laws will have a significant chilling effect on free speech even if there is a right of review.

3.     But most critically, many of the issues in political debate are not susceptible to review by Courts as they involve issues of moral and political judgment which cannot be reduced to questions of fact. Making Courts decide such issues is likely to raise separation of powers issues and threaten to drag the Courts into the heart of political controversies in a way which may threaten their legitimacy.

Mr Cope said, “We have no objection to appropriately drawn legislation which restricts speech including in political areas.”

Such legislation would include legislation which prohibits the incitement of violence. That type of legislation already exists. Also, laws which prohibit the making of threats, again such legislation exists. Furthermore, there are laws which exist to protect the integrity of the electoral process and we have no difficulty with laws which prohibit people from making false statements about how you vote when you vote et cetera. They already exist. Finally, it is entirely appropriate to have specialist bodies administering laws in relation to the advertising and dispensing of drugs and the giving of medical advice.

For further information contact Michael Cope President QCCL on 07 3223 5939 during office hours and at all times on 0432 847 154

 22 October 2024