Michelle Rowland unrelenting in assault on free speech

Communications Minister Michelle Rowland. Picture: NewsWire / Martin Ollman

Support might be waning for the latest version of Michelle Rowland’s plan to censor social media. But it seems the Communications Minister is not for turning.

If the latest version of her Misinformation and Disinformation Bill dies in the senate, the Communications Minister is already working on another scheme that could prove just as dangerous for freedom of communication as the Bill known as MAD.

Rowland revealed the barest details of her new approach last week at the Sydney Institute’s annual dinner.

But it was enough to cause concern that the government would use a different tactic to achieve much the same goal as its MAD plan: online censorship.

Brief details revealed at the Sydney Institute suggest this scheme, like the MAD Bill, rejects the principle that we are free to disseminate all information except that which is specifically outlawed.

Within those boundaries we enjoy freedom of speech – which is the hallmark of a democratic society.

This makes it possible for Australians to have a true marketplace for ideas in which flawed doctrines circulate alongside those that are worthy.

Telling the difference is the responsibility of citizens, not government.

Rowland’s latest scheme, just like the MAD Bill, would obliterate these principles.

As well as targeting the dissemination of unlawful material – which is, of course, a legitimate function of the bureaucracy – it would target information that, while legal, is deemed “harmful” by public servants.

Compare this to the MAD Bill which would make the Australian Communications and Media Authority the online arbiter of truth.

One way or another it looks like Rowland is trying to give effect to the “recalibration” of free speech that was flagged more than two years ago by Julie Inman Grant, the e-safety commissioner.

“I think we are going to have to think about a recalibration of a whole range of human rights that are playing out online, you know, from freedom of speech to the freedom to be, you know, free from online violence,” Inman Grant said at the World Economic Forum in Davos.

That recalibration will inevitably come into conflict with the implied constitutional guarantee of political free speech.

But there are other problems.

The latest scheme looks like having extraterritorial reach – just like the system that led to Inman Grant’s failed attempt to regulate the global content of Elon Musk’s social media platform, X.

It’s also hard to see how the latest scheme can be reconciled with the principles of the rule of law that prevent arbitrary rule.

Those principles require statutes and regulations to be clear, specific and capable of being known in advance.

Yet how can we comply with our obligations if they are defined in vague terms that rely on bureaucratic discretion? Instead of enacting a law telling online entities exactly what they cannot do, the latest scheme would impose a statutory duty to take reasonable care “to keep users safe and prevent online harms”.

Just consider the lack of precision in those terms. “Safe” from what? From everything?

Legislating to punish online “harms” could cover almost anything – which is what happens if you legislate in platitudes instead of specifics.

Such a system would create vague and therefore unknowable limits on public discourse prompting an over-reaction by online entities that would bowdlerise the flow of information.

As well as an overarching digital duty of care, Rowland also plans to impose “enduring categories of harm” that are just as vague and subjective.

According to the Communications Minister, those enduring categories “could” include “harms” to young people, “harms” to mental wellbeing and instruction and promotion of “harmful” practices.

Just consider that. Why should public servants get to decide which practices are harmful and should therefore be banned online?

Where would that leave big-wave surfing? Or eating meat? Or drinking beer?

By relying on vague terms, the plan outlined last week is a grab for arbitrary power. Without big changes it deserves to fail.

Freedom of speech is so fundamental that restrictions, when needed, should be specific, limited and imposed prospectively by parliament. Bureaucrats should never be equipped with vague laws that would permit them to decide what the rest of us are allowed to know.

Right to a fair trial

Here’s a suggestion for NSW police: it is not a good idea to refer to complainants in unresolved criminal proceedings as “victims”.

Until a court rules on the indecent assault charges that have been laid against broadcaster Alan Jones he is entitled to a presumption of innocence.

Yet the police who conducted media briefings on this affair seem oblivious to how easily that critically important aspect of the justice system can be imperilled.

Telling the media that those who have lodged complaints against Jones are “victims” or, even worse, “courageous victims”, implies guilt has already been established and the court process is a mere formality.

The courts alone have the authority to determine if crimes have been committed, not the police. Until a court rules otherwise, there are no victims, only complainants whose testimony is yet to be tested in court.

This loose language, when used by senior police officers to an audience of journalists, encourages prejudicial pre-trial publicity.

And that risks tainting the pool of potential jurors who will be called upon to decide this case.

In the past, judges in certain high-profile cases have been forced to delay proceedings in the hope that the prejudicial impact on jurors of adverse pre-trial publicity would dissipate.

Jones has a right to a fair trial. It’s in nobody’s interest for that trial to be delayed.

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