Determining truth not the government’s role

Communications Minister Michelle Rowland. Picture: NewsWire / Martin Ollman

Back in March, when the federal government established an inquiry into civics education, it tweaked the terms of reference in a way some might consider to be just a little too clever.

Four months earlier, a wave of concern about censorship of the internet caused the first of two setbacks for Communications Minister Michelle Rowland.

There was simply too much criticism of her draft bill, which sought to rid the internet of material that the bureaucracy considered to be misinformation or disinformation. It was pulled for a rewrite.

Rowland’s bill had failed the first test of good law: its key terms were so broadly defined they left the way open for subjective or arbitrary application.

That offends one of the core principles of the rule of law: good law must be clear and certain with requirements that are capable of being known in advance, not determined by officials.

At the time, Human Rights Commissioner Lorraine Finlay summed up the problem: “The broad definitions used here risk enabling unpopular or controversial opinions to be subjectively labelled as misinformation or disinformation, and censored as a result.”

Some might consider it odd that a human rights commissioner would intervene in this debate. But vague laws are an invitation for arbitrary rule – and that is the mortal enemy of a free society.

Rowland’s bill, however, is not dead. It is being “refined” and could re-emerge this year.

The minister made that clear in April during the government’s second setback: its failed attempt to limit what Elon Musk could publish globally on his social media platform.

All this might help explain why the terms of reference for federal parliament’s inquiry into civics education extends beyond the training of teachers and the content of the national curriculum.

Elon Musk. Picture: AFP

This inquiry also covers social media misinformation, disinformation “and how governments and the community can prevent or limit inaccurate or false information influencing electoral outcomes”.

Note the wording: how governments “can” limit false information, not whether it is wise to permit governments to determine what can be presented to the community as the truth.

There can be little doubt that a great deal of material on social media that passes for public policy debate is little more than abuse, ignorant nonsense or both. But if this inquiry was intended to develop a constituency for online censorship, there is one major problem – not just with Rowland’s original bill, but with the idea that censorship has a role in defending democracy.

One of the fundamental features of Australia’s system of government is that everyone has a responsibility to make their own assessments about public policy debates.

That means accepting that part of the price of living in a free society is that flawed ideas should be free to circulate alongside those that are worthy.

Telling the difference is the role of an informed citizenry, not governments and their officials.

It is, however, the role of government to ensure that school leavers and newly arrived migrants are properly equipped to understand and adhere to the principles of our democracy.

There will always be exceptional matters that justify suppression and punishment – such as publishing bomb-making instructions or revealing the identity of Australia’s foreign intelligence officers. But those exceptions should be clearly spelled out in law – not left to the discretion of bureaucrats, which is inevitable when statutes use vague terms that invite subjective interpretation.

Before the next version of the misinformation and disinformation bill is unveiled, the parliamentary draftsman might care to take a look at the requirements of the rule of law, as outlined by the late Tom Bingham, a former lord chief justice of England and Wales.

In his 2011 book, The Rule of Law, he wrote: “No one would choose to do business, perhaps involving large sums of money, in a country where the parties’ rights and obligations were vague or undecided.”

Constitutional lawyer Anne Twomey.

The way to resist threats to this country’s system of government is not censorship but to ensure that the marketplace for ideas is properly informed about the requirements of democracy, which rest on the principles of the rule of law.

The critical importance of civic education was expressed forcefully last month by constitutional lawyer Anne Twomey when she gave evidence at this inquiry.

“The stronger the level of knowledge and understanding you have at a base level when you’re young, the more likely you are to be effectively inoculated against all sorts of misinformation,” Twomey told parliament’s joint standing committee on electoral matters.

She was asked if she had considered the responsibility of social media platforms and the role they play in our democracy.

Her response, while not excusing social media, would have provided little comfort for Rowland: “I have looked at this a bit. I have looked at it in terms of the previous version of the government’s attempt to deal with misinformation and disinformation, which I think was not done terribly well.

“That was mark one. Hopefully, mark two will be better. There are real problems with laws that try to determine what is truth and constrain social media accordingly. A lot of that is very problematic.”

Twomey’s formal submission to this inquiry was damning about the deficiencies in the teaching of civics and citizenship.

“Civics is not taught in a substantial fashion in schools as a dedicated subject. It is an ‘add-on’ in a crowded curriculum which is not treated seriously by teachers or students because it ‘doesn’t count’,” she wrote.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.