Misinformation bill will be the death of free speech, due process legal experts warn

Australians accused of spreading misinformation online will have fewer protections against self-incrimination then suspected murderers, arsonists, and other serious criminals

Australians accused of spreading misinformation online will have fewer protections against self-incrimination then suspected murderers, arsonists, and other serious criminals if a proposed bill to regulate the internet passes into law, legal experts have warned.

Under the terms of draft legislation expected to be put to the parliament as soon as this year, government media regulators will have the power to compel anyone it suspects of having knowledge about the spread of “misinformation or disinformation” to testify at a time and place of the agency’s choosing or face fines of more than $9,390 a day.

However legal experts as well as the opposition have slammed the plan, saying it goes against the “right to silence” that Australians enjoy if they are suspected of a crime.

“The rule of law provides that alleged criminals have a right to silence no matter what they are suspected of, and are only forced to go somewhere if a charge is laid and a court lists the matter,” said former prosecutor turned barrister Margaret Cunneen, SC.

“If people suspected of much less serious matters like promulgating information the state does not want promulgated are treated this way, it would blow up freedom of speech in one fell swoop.”

Margaret Cunneen SC has slammed the proposed legislation. Picture: NCA Newswire / Gaye Gerard.

According to the bill, material that could trigger the law not only includes hate speech but also information that could harm the “health of Australians”, “the Australian economy”, or “Australian democratic processes”.

Sydney criminal lawyer Sam Macedone said that unlike the terms of the misinformation bill, in the criminal system “everyone’s entitled to the right to silence, and if the police believe you may have been involved in a crime they can ask questions but they cannot force you to answer”.

Top legal bodies have also raised the alarm about the bill, which provides heavy penalties for social media platforms and private individuals but notably exempts journalists, academics, and government agencies from being accused of spreading “misinformation.”

In a submission to the government critical of the proposed powers, the Law Council of Australia said that the proposed legislation was written in such a way that “suspected authors or disseminators of alleged ‘misinformation’ could be subject to the use of the proposed information-gathering powers”.

The government wants to go after anyone spreading ‘misinformation’ online. (Photo by DENIS CHARLET / AFP)

The Law Council added that because the bill does not provide rights against self-incrimination, it “could lead to a position where a person is compelled to produce documents that later expose them to significant civil penalties”.

John Storey, Director of the Legal Rights Program at the Institute of Public Affairs, said it is “one of the greatest attacks on free speech Australia has ever seen”.

“The new laws will silence mainstream Australians from having their say under the threat of punishment.”

Shadow communications minister David Coleman, who has promised to oppose the bill, said “these extraordinary coercive powers should concern every Australian”.

“Police don’t have those powers when investigating crime, but bureaucrats will when investigating misinformation.

“It’s yet another staggering feature of this appalling Bill.”

However Communications Minister Michelle Rowland denied that individuals would be targeted for social media posts.

“The powers to compel an individual to provide information are intended to apply only to owners and operators of digital platforms to ensure the regulator can carry out its information gathering work,” she said.

“This is not about individual posts by online users on their social media accounts.

“The consultation on the exposure draft has been constructive in bringing forward views from stakeholders and the public, including peak bodies such the Law Council, and we welcome the time they took to provide their views.

“We are now carefully working through the feedback before bringing forward a bill to the Parliament.”