What would Thomas Paine make of our government?

Peter O'Brien I 8 October 2024 I Spectator Australia

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.

He 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.

And 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 on top?

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 overreach.

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 protesters.

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.

If this legislation is essentially about preventing harm, we need to know what harm is. The draft legislation defines it as follows:

7. 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 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 this example. It is very specific. Where the hell did that come from, you might wonder? Well, it did actually happen. Many people in the US ingested bleach to combat Covid on the advice of President Donald J 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 which concludes that Trump did not tell people to inject or ingest bleach at all. At most he was careless in flying kites in a public forum.

But the delicious irony of this, is that here we have the drafters of this Orwellian legislation using disinformation to create an example of misinformation. There is more than a touch of political ideology evident here.

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.

Here is the ultimate irony. If, God forbid, this bill gets up, how, I wonder, will it treat the claim that Israel is a genocidal and apartheid state? Given that this government is hell bent on stamping out misinformation, why is it that the best it can say in support of Israel is that it ‘has a right to defend itself but …’? Do Labor ministers need legislation in order to call out this widely spread, and undeniable, misinformation? For example, as far as I can tell, the best Foreign Minister Wong has been able to come up with is a statement that Australia ‘does not accept the premise’ of South Africa’s IJC genocide case against Israel. Not exactly a ringing rejection of this most damaging misinformation – damaging not only to Israel and Jews but to the fabric of this nation. Why could she not say, ‘We are not a party to this action because Israel is not committing genocide’? Why are not all the Albanese ministers saying this regularly? Do they need ACMA to give them their opinion?

Author: Peter O'Brien