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In 1776, Thomas Paine wrote:
Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively, by uniting our affections; the latter negatively, by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last is a punisher.
Society in every state is a blessing, but government, even in its best state, is but a necessary evil; in its worst state, an intolerable one; for when we suffer, or are exposed to the same miseries by a government which we might expect in a country without government, our calamity is heightened by reflecting that we furnish the means, by which we suffer.
Paine could have been writing today. Increasingly as a society, we are succumbing to the idea that government knows best. And governments, of all persuasions, are doing everything in their power to help us along that journey. I wonder what he would think of modern government, which not only encompasses national parliaments but also adds corporate meddling and supra-national governance through the United Nations and the World Economic Forum?
Which brings me to my point. It is government, whether monarchical or republican, which oppresses the people. It seems to me that, although it has taken a couple of centuries, we have just exchanged one tyranny for another. Instead of the divine right of kings, we now have the divine right of parliament. Or even the divine right of unelected commissioners, from whose pronouncements governments can disassociate themselves on dubious grounds of ‘independence’ while tacitly applauding bureaucratic over-reach.
I won’t dwell on Covid but that was the first outright indication that we (the West) have moved into a new governance paradigm (sorry). Vaccine mandates were the most egregious example of the trampling of individual rights, but there were many more. The one that particularly shocked me was the actions of the Trudeau government in Canada in blocking the bank accounts of vaccine mandate protestors.
A more recent development is the proposed misinformation legislation, the so-called Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023, the putative aim of which is to prevent harm. In reality, it is the most serious assault on free speech possibly ever contemplated in this country. The government’s information sheet defines misinformation and disinformation as follows:
Misinformation is online content that is false, misleading or deceptive, that is shared or created without an intent to deceive but can cause and contribute to serious harm.
Disinformation is misinformation that is intentionally disseminated with the intent to deceive or cause serious harm.
Serious harm is harm that affects a significant portion of the Australian population, economy or environment, or undermines the integrity of an Australian democratic process.
‘Orwellian’ is a term that is now being used so frequently, it risks becoming a cliché. But I’m prepared to ignore that risk in this case. It is hard to imagine terms more Orwellian than misinformation and disinformation.
But, if this legislation is essentially about preventing harm, we need to know what harm is. The draft legislation defines it as follows:
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- harm means any of the following:
(a) hatred against a group in Australian society on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(b) disruption of public order or society in Australia;
(c) harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory or local government institutions;
(d) harm to the health of Australians;
(e) harm to the Australian environment;
(f) economic or financial harm to Australians, the Australian 18 economy or a sector of the Australian economy
Spot the problem? In the proposed legislation, the definition of ‘harm’ is circular. Four of the six categories of harm are based on the word harm itself. As an example of sloppy legal draftsmanship, this is hard to beat.
The legislation fact sheet gives examples of these types of harm. Most of them are pretty much as vague as the ‘harm’ itself. ‘Harm to the integrity of Australian democratic processes or of Commonwealth, State, Territory or local government institutions’ is exemplified by ‘Misinformation undermining the impartiality of an Australian electoral management body ahead of an election or a referendum’. Plenty of room for imaginative interpretation there, as there is in ‘(b) disruption of public order or society’. Tough luck if you’re promoting online a protest against wind turbines in your neck of the woods, or an injecting room next to your local primary school or against the trampling of women’s rights to a male-free safe space.
But the example of ‘harm to public health’ is much more explicit:
Misinformation that caused people to ingest or inject bleach products to treat a viral infection.
Nothing vague or hypothetical about that example. Where the hell did it come from, you might wonder? Well, it is said to have actually happened, with US media reports claiming many Americans ingested bleach to combat Covid on the alleged advice of President Trump.
Well not quite. Trump was publicly musing on an official report that disinfectant could effectively kill the virus on a surface. He wondered, aloud, if a way could be found to safely inject or ingest a disinfectant to kill the virus internally and suggested that this prospect would or should be tested. You can read the full story here. It concludes that Trump did not tell people to inject or ingest bleach. At most he was careless in flying kites in a public forum.
The delicious irony here is that we have the drafters of this Orwellian legislation using disinformation to create an example of misinformation. There is more than a touch political ideology evident here.
You might argue ‘how can the government be expected to define such a wide-ranging term as harm, other than by giving examples of it?’ To which I would reply, exactly! That is why it should not be the central term in legislation.
Legislation, like any legal contract, must attempt to be as unambiguous as possible. It cannot be watertight, and practicality dictates that we might have to call on the courts to resolve unforeseen ambiguities. That should be a last resort. I would have thought that the aim of the legal draftsman should be that his legislation never appears in court other than to consider breaches of it. The professional legal draftsman should take pride in the fact that the court very seldom needs to interpret what the legislation intends. The legislation outlined above falls a long way short of this, not lofty, but essential aim.
That’s in a perfect world of course. In practice, the parliamentary draftsman is going to be guided primarily by what the minister demands as an outcome. He is, after all, their client. But surely there must be some quality control. Not about whether the draft legislation can pass the constitutionality test. But about whether it represents best practice in terms of the implied good faith contract between the government and the governed. The Australian public is the government’s client. Its interests and ours should coincide. So, ideally, government legislation, certainly one as draconian as this, should accurately and rigorously reflect policy agreed by the people at an election.
And to top it all off, we have a supposedly independent – but non-judicial body – ACMA, overseeing this MiniTru regime and dispensing summary justice in the form of massive fines.
But what is even more disturbing is that this legislation had its genesis under a Coalition government, as was the appointment by Malcolm Turnbull of eSafety Commissioner Julie Inman-Grant. Given Peter Dutton’s ill-advised and instant endorsement of Ms Grant’s demand that X deep-six clips of a Muslim teen stabbing a Sydney priest at the altar, he should make a note to spurn knee-jerk reactions, regard bureaucrats as servants not masters, and defend key conservatives principles — especially free speech.
Inman-Grant should be sacked and sent back to the Clown Show USA where she came from.
We have an ample supply of home grown clowns without importing more.
There would be a good case for burying ACMA in the graveyard reserved for useless and harmful bureaucracies. There are plenty of plots available but few of them have been used – yet.
Dear Julie – I note you have ordered the removal of the attack on the Sydney Priest from X on the grounds of its violence
I would like to draw your attention to the fact that it has nothing on the violence portrayed in the film Napoleon.
The movie starts with a very graphic guillotining of Marie-Antoinette including images of the severed neck and head with blood spurting everywhere, and had countless hundreds of stabbings and mutilations in equally graphic detail throughout.
For consistency I invite you to demand the removal of this film from the various places including Qantas flight where it can be viewed. I think it’s particularly alarming that it’s shown on Qantas flights. If someone became crazed from watching it, an airliner might be brought down!!
But, but, but if Julia were to demand that Qaintarse might ban her from the Chairman’s (man?) Lounge and she wouldn’t be able to catch up with the excellent business advisor Young Nathe and all the vermine in ermine who are her advisory peer group.
“(f) economic or financial harm to Australians, the Australian 18(?) economy or a sector of the Australian economy.
The only relevant harm is harm to an individual Australian ie a reduction in his or her wellbeing. This reduction could be financial and/or non-financial ie economic.
Economic harm to the Australian economy or a sector of the Australian economy???? Gobbledygook.
Peter got to the nitty gritty in his last sentence – lets go back to anyone being on the taxpayer’s payroll a public servant.
Perhaps a new Quadrant policy?
The attack on free speech actually began years ago with the creation of the wicked “”family courts”” aka involuntary divorce mills. Behind that wonderful judicial innovation, the “”restraining order””, communication of any type was made illegal for certain parties, under the guise of “safety””. No evidence of wrongdoing being required for launching of same.
This is a wonderful legal tool, as it makes any attempts at reconciliation between parties illegal, forcing them into courts bereft of juries. And it doesn’t take Einstein to work out who benefits financially from billable hours in court.
Orwellian indeed. This bill explicitly exempts any government communication, of any level of government, from being considered misinformation or disinformation.
As for that appalling eKaren, she’s on an authoritarian jaunt and loving it. They walk amongst us.
I used to think that a bad law was one where everything was prohibited except a small window of permission. I was wrong. A really bad law is where the government gives itself the power to decide that anything it decides can be outlawed on a whim.
When Albanese said out of one corner of his mouth that the Voice would have advisory powers only, that in the event of a disagreement between the Voice and the government, the government would prevail.
Then, out of the other corner of his mouth came comment that it would be a brave government that didn’t listen to the Voice.
Further, your excellent article, “Thank You Marcia Langdon for Your Candour” showed that Albanese’s obfuscation had been used for obvious reasons.
Marcia Langdon, recognised in the voice is cited in responding to a suggestion that “If a government decision is made without listening to the Voice it could be challenged in the High Court and potentially stopped from being implemented until the Voice had been heard.
Langdon’s reply was “That is a possibility and why would we not want that to be the case?”
Candour was still slightly lacking in this reply. After such enormous power had been obtained, its use to the full was not a possibility, it was a certainty.
Another possibility not discussed was the opposite situation where, if the government refused to implement legislation wanted by the “powerless Voice” there still existed the possibility that the High Court could intervene, overrule the democratically elected government, giving the Voice what it wanted.
Worst of all, it would seem that while the Voice could use the High Court to possibly destroy unwanted legislation; or obtain something wanted, unlike its predecessor, ATSIC, dismissed with agreement from both parties, “The Voice” would have been immune from any control by the Government because of Constitutional protection.
If the proposed, obnoxious, “misinformation” legislation arrives, the protection for the worst offenders, the government, should not exist.
The new law should apply to everybody, or nobody.
I wonder if the “Voices” now being made legal in State legislation can be litigated by the activists in the High Court and achieve what was rejected in the recent Commonwealth referendum. It looks like that could be plan B.
State legislation is covered for appeals to the various State Supreme Courts, not the High Court.
Thanks GrantB for that reassuring clarification. Appreciated.
Work your way through this, from the Parliament of Australia web-site and you’ll have your answer:
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Chapter III. The Judicature
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73. Appellate jurisdiction of High Court
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The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:
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of any Justice or Justices exercising the original jurisdiction of the High Court;
of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;
of the Inter-State Commission, but as to questions of law only;
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and the judgment of the High Court in all such cases shall be final and conclusive.
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But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
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Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.
Interesting reference lbloveday. In delving further into this question I must admit that “I hae ma doots” about GrantB’s point. At first look it seems that decisions following appeals to a Supreme Court of a State can go to the High Court “with such exceptions and subject to such regulations as the Parliament prescribes”. Without knowing if Parliament has prescribed such exceptions and regulations it is hard to understand if appeals against State “Voices” to a State Supreme Court can or cannot be appealed in the High Court. It is clear that decisions made in the States’ Supreme Courts before the High Court was set up cannot be appealed in the High Court – “Held that the High Court had no jurisdiction to entertain an appeal from a decision of the Supreme Court of a State pronounced before the establishment of the Commonwealth: ex parte Matthews (1904) 2 C.L.R.93.” In other judgements relating to s.73 it seems that the High Court does have some capacity to hear such appeals – e.g. “Held (1) that the words ‘the Supreme Court of any State’ in this section are used to designate that Court which at the time of the establishment of the Commonwealth was in any particular State known by the name of ‘the Supreme Court’ of that State: and (2) that, therefore subject to the conditions mentioned in this section, an appeal lies to the High Court from every judgement , etc., of the Supreme Court of that State : Parkin vs James (1905) 2 C.L.R. 315.
You now know why I did not proffer my opinion on what the answer is!
Exactly. But watch this space. I am sure the university Law faculties and their undergraduates will soon drag themselves away from Hamas and focus on overturning the will of the people in the recent referendum.
Georges Danton, Paris, 3 April 1794, in response to the Public Safety Committee’s charge of being “dangerous enemy of The People”:
“The People have only one dangerous enemy – the government.”
Sebastian – tell me, did the eSafety Commissar – Oops – sorry, I meant the Committee for Public Safety – send Danton to the guillotine in the end ?
Of course the legislation will get up – perhaps slightly watered down but with its’ point intact. The Senate Greens and Libs will see to that. And the ambiguity is central.
There is no point in yelling at Grant – she will not engage (the effectiveness of that tactic has been well observed with the AGW activist scientists refusing to “debate” in public forums). The WEF approves of that so Grant is now securely in that club.