Protections for religious expression as Labor revises controversial misinformation laws

A clear exemption for religious expression will be among the substantial changes to Labor’s proposed misinformation laws as the revised legislation is delayed until next year after a chorus of free speech concerns from a range of organisations.

Communications Minister Michelle Rowland outlined likely revisions to key elements of the draft bill, including to the definitions of misinformation and disinformation and to the exemption for government material, areas that have been criticised by legal and human rights experts.

Communications Minister Michelle Rowland says a final misinformation bill will be introduced to parliament in the first half of next year.Credit: Alex Ellinghausen

She laid out a new timetable for introducing legislation to parliament in the first half of next year, pushing back Labor’s initial end-of-year deadline and saying more time was needed to consider changes suggested by various groups.

“I do want to stress that doing nothing is not an option in this area,” she said.

“As we’ve seen with the rise of generative AI, those risks posed by that technology make ensuring we have a framework around mis- and disinformation even more important than ever.

“We are taking this very seriously. We do want to acknowledge and actually act on the consultation and the work that a lot of people have put into it.”

It is unclear to what extent the drafting changes may alter the core framework proposed in the current bill, which gives the Australian Communications and Media Authority (ACMA) a range of powers to ensure social media companies combat misinformation and disinformation on their platforms, including imposing hefty penalties. Maximum fines can reach $6.88 million, or 5 per cent of a company’s global turnover – whichever is higher.

Rowland declined to detail the specific drafting revisions being contemplated but said they fell into three categories: addressing concerns about the definitions, increasing transparency and accountability of digital platforms and ACMA, and improving the “workability” of the bill to ensure it can be implemented by the industry.

However, she was adamant that new religious protections would be added to the legislation to address concerns raised with her by faith groups.

“We want to make it as explicit as possible that nothing in this bill can inhibit religious expression,” she said.

“That would be a new area that wasn’t considered at the time of the original consultation being commenced, but it clearly is important and we want to address it.”

The draft bill, unveiled by Rowland in June, was met with significant backlash, with the Australian Human Rights Commission, the Law Council, civil liberties groups and religious organisations among those to object that it could curtail free speech. The federal opposition has called for the bill to be scrapped, labelling it “a dangerous attack on freedom of expression”.

Rowland said she had since met with a range of legal experts, digital platforms, religious organisations and health groups as part of the consultation process and that many had emphasised their concern about the spread of misinformation while suggesting changes to the bill.

A major point of criticism has been the bill’s broad definitions of misinformation and disinformation, which Rowland said would be reassessed as a result of the feedback. The bill defines misinformation as material that is unintentionally “false, misleading or deceptive” and is “reasonably likely to cause serious harm”, while the definition of disinformation is similar but for material that is deliberately false.

The Law Council, for example, has said this broad scope could have a chilling effect and “that disfavoured opinions might come to be labelled and regulated as misinformation”.

Rowland said the exemption for government-authorised content would also be re-examined. She declined to detail exactly how it might be changed but indicated it would remain in some form.

“The intention there was to ensure that governments and other entities could get out emergency information at a time when there was a disaster, for example, and we want to make sure that that scope reflects the intention,” she said.

The Human Rights Commission, in a written submission to the consultation process, said the exemption could stifle political speech because it “privileges government content while failing to accord the same status to content authorised by political opponents”.

Independent ACT senator David Pocock, whose vote could be crucial in passing the laws in the upper house, has condemned the government exemption as “galling” and listed it among the reasons he would not support the bill in its current form.

Rowland ruled out scrapping the bill’s exemptions for professional news media and electoral content, despite a push by some groups. The Greens and independent MPs Zali Steggall and Zoe Daniel have raised concerns about media outlets amplifying misinformation and questioned their exclusion from the scheme.

“The rationale for the media exemption is that journalists and editors have a range of existing industry standards. I know there’s debate about the adequacy of those, but they exist,” Rowland said.

She said it would remain the intention under the final bill that ACMA would have no role in policing specific pieces of content. However, legal experts have contended that giving ACMA powers to fine platforms for failure to stop misinformation invariably makes the regulator the arbiter of what constitutes truthful versus false information.

Pressed about these concerns, Rowland signalled there could be new oversight mechanisms to ensure ACMA’s decision-making was transparent and said it was important accountability “goes both ways” and didn’t only apply to tech companies. She said options for this would be worked through as part of the re-drafting process.

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