Fire and Fury and….Fear

This is a commentary on a documentary that was released by Stuff and is part of a continuing examination of and commentary on the issue of mis/disinformation. The documentary – Fire and Fury – had the potential to be an informative and useful addition the the material swirling around current concerns about mis/disinformation. Sadly it did not fulfil that potential but rather was caught up in its own pre-determined view of the issue and those participating in it.

As I have earlier observed, I do not generally support the position advocated by those who express contrarian views. At the same time I would not wish their voices to be silenced. An exchange of ideas, although such a hope may be somewhat futile, is far preferable to the alternative which would be a form of censorship.

What follows is my view on the documentary and my reasons for suggesting that it does not fulfil its potential. It is entirely up to the reader whether or not these views find favour.

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The Stuff documentary “Fire and Fury” is an interesting example of advocacy journalism. One commentator has described it as “agitprop”[1].

Because it originates from a mainstream media source there are certain constraints on its approach. One such constraint is the need for journalistic balance. Yet the introduction to the documentary and its accompanying material on the Stuff website suggests that balance and a portrayal of contesting views, leaving the reader or viewer to come to a conclusion, is not present.

The explanation of the project goes under the heading of opinion. The bias of the piece is clear from the title “Pushing Back Against the Monsters” although one would hope for some journalistic integrity in the piece. This is what it has to say:

You’ll recall the narrative driven (and accepted by many) during the Wellington protest that it was peaceful and had one objective: to end the mandates.

Scratching not too far beneath the surface, though, it was apparent there was an entirely different — and dangerous — agenda.

At Stuff Circuit our role is to investigate matters that are in the public interest, and two things happened around the time of the occupation that got our attention.

First, we saw talk in social media about making the country “ungovernable”. It sounded like a direct threat to democracy. What did it mean? Who were the people saying it and what was their intent?

Second, we started to see extreme violent language, death threats, and the normalising of language not previously used in everyday New Zealand: people talking very publicly about killing authority figures because they didn’t agree with their policies.

We wanted to understand where that had come from and how mainstream it was going; why your auntie or neighbour was putting this stuff on their Facebook page, oblivious and unquestioning as to its origins.

So far, so good. It is clear that this an investigative effort notwithstanding that the position of the authors started to become clear in the second paragraph (not to mention the title) when the suggestion of a “dangerous agenda” is made.

The focus of the documentary becomes clear and this, as described, is perfectly legitimate and clearly in the public interest.

Our focus in Fire and Fury is not the protest itself, but rather the key figures behind it. Who are they, where had they come from, what did they believe? Why were they so keen on the protest, what did they gain from it, and crucially, what do they want to happen next? The documentary explores how they had not come haphazardly to this moment: this seemingly disparate group of key figures is strategically interconnected, stronger together.

However, in the next paragraphs the focus shifts and the conclusions and directions of the documentary become clear. With the perjorative language that is used, it is unlikely that this will be an unbiassed account

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

But having decided to investigate, the question remained whether we should report what we were seeing. Why risk amplifying inflammatory and harmful material? Why risk making these people more influential than they would otherwise be? (Side note: it’s creepy watching some of them react when they have been in the news. They love it. They get off on it. It makes them feel important. Did we want to facilitate that?)

There were other reasons not to report, not least of which was the personal harassment which would inevitably come our way — as it does to anyone who works in this field — and has been directed at us (including death threats) for previous work. Massey University research of Stuff staff shows two thirds of our colleagues report experiencing actual violence or threats of violence related to their work — a figure far higher than that reported by journalists globally. (You’ll see in Fire and Fury how people have been provoked to hate journalists. There are real world consequences for that.)

The commentary continues with a consideration of not reporting on the findings of the investigation:

And there was one final question: What was the risk of not reporting?

The more we looked at the volume and scope of their material the more it became clear that not covering these people would not make them go away.

The lesson of history suggests that if you let far-right groups have the streets to themselves, they don’t just go home because there’s no one to fight. They’ll find someone to fight, someone to beat up. Any uncontested space, they’ll take over,” is how one journalist summed it up for Data & Society’s advice on reporting on extremists, antagonists, and manipulators.

One of the extraordinary comments in the immediately preceding passage refers to the “lesson of history”. Yet, as I shall demonstrate, a consideration of some of the historical material would suggest that some of the attitudes and approaches by the contrarians was not unique.

This piece is a review of some of the aspects of the Fire and Fury documentary. It is by no means a full review nor is it a critique. Some of the material in the documentary is important and vital – material that citizens should know so that they can be properly informed. But other aspects of the documentary display an absence of balance and almost a paternalistic and patronizing approach to the ability of citizens to make up their own minds.

I shall consider the way in which some of the material is presented, some of the production values underlying the documentary, an overall impression of the documentary and then the way in which history has a best been overlooked or at worst ignored in locating the views of contrarians. I shall discuss the very obvious bias that was displayed towards the end of the documentary and close my discussion with some observations of the impact of alternative (as opposed to mainstream) media on our expectations of information. The conclusion that I reach on the documentary may be surprising and indeed counter-intuitive – I shall leave that to the reader.

The points of view expressed in the production were of two types. The contrarian position was taken from social media posts and other internet-based sources. Significantly there were no interviews with any of the contrarian figures such as Claire Deeks and Chantelle Baker and certainly no discussions with Kelvyn Alps or Damien de Ment. In some respects this is understandable. Given the attitude of the contrarians to the media it is unlikely that they should want to engage. But at the same time those who discussed and critiqued the contrarian approach such as Khylee Quince, Kate Hannah, Ed Coper and others were interviewed and expressed their views in a calm and rational manner.

The way the opposing views were portrayed was interesting. The clips that were taken of the contrarian position were shrill, at times using the language of hyperbole and at other times were emotional and extreme. By contrast those who were interviewed were calm and rational although there were times when subjective views began to creep in.

Another issue arises in the way in which the contrarian position was portrayed. Rather than taking clips from social media platforms and portraying the points of view within that context, often the contrarian position was over-dramatised by superimposing the speaker on the backdrop of a large building, as if they were expressing their views not on a social media platform, but on a large sized electronic advertising billboard. The context became one of a city street scene with the contrarian view echoing through the canyon on buildings as if this was the means by which their views were communicated.

This portrayal misrepresented the medium of communication employed. Certainly it had dramatic effect but it was not a truthful nor realistic portrayal of how the message was communicated. In my view this was carrying creative license too far and again raised questions about the level of balance in the documentary.

The highlight of the documentary was the protest in the grounds of Parliament in March 2022. For some this must have been a disturbing experience to see, the ending was never going to be peaceful, and the violence of the ending cannot in any way be condoned. But once again the documentary used production techniques to lend a highly dramatic backdrop to the event – a backdrop that was not present at the time. Throughout the segment on the Parliamentary protest dark, sonorous, doom-laden music provides a soundtrack, no doubt to heighten the drama of the event. But this was not a drama. Although we are well used to background music in malls and other places, life does not have a musical soundtrack, and in my view to superimpose one – especially one as oppressive and dark as that used in the documentary – is taking a considerable production liberty.

I suppose that the makers of the documentary wanted to emphasise an atmosphere of Gotterdammerung but Richard Wagner’s Siegfried’s Funeral March is positively lyrical in comparison to the Parliamentary protest soundtrack.

Given the various production elements that I have discussed I viewed the piece with growing concern. This clearly was not a balanced objective “put both sides out there” piece of journalism, even although it purported to be that. In essence the writers and producers were paying lip-service (and not a lot of that) to journalistic standards.

During the Parliamentary Protest the journalists involved were on the ground filming and reporting on the event and gathering material which ended up in the documentary. They were challenged by the protesters and the indignant outrage of the journalists, who claimed that they were only doing their jobs, was clearly and unequivocally expressed. I am not sure if this arose from a journalistic attitude of entitlement or ignorance of what they were getting themselves into.

They were reporting on a group of people for whom distrust and scepticism of mainstream media is a significant article of belief. One of the problems in reporting on the contrarian position is that the mainstream media portrayal is largely unfavourable and merely cements in contrarian distrust. Indeed, there is even a point of view in mainstream media that suggests that by reporting on both sides of the protest, a platform is provided to a group that has been banned from Facebook for spreading misinformation.[2]

Another aspect of the problem faced by the media is the fact that the public interest journalism fund provides financial support for public interest journalism. So far, so good. A $55 million fund is available to support New Zealand’s media to continue to produce stories that keep New Zealanders informed and engaged, and support a healthy democracy. Again, so far so good.

The Cabinet paper supporting the fund sets out the difficulties that were faced by mainstream media organisations during the pandemic. But it is in paragraph 5 of the Cabinet paper that one of the objectives of the fund becomes clear. It states “The spread of misinformation related to COVID-19, particularly through social media channels, has sharpened public awareness of the importance of, and reliance on, a strong and independent media sector.”

As is so often the case in the current discussions on misinformation, the term is not defined but it is clear that there is a concern about the expression of contrarian views and that a viable and well-funded mainstream media may provide a counter to contrarian expression. Nothing wrong with a healthy debate, but a shadow is apparent when one considers the optics of the fund. From the contrarian position, the investment of $55 million in sustainable journalism is a means of controlling the message. The view is that of course mainstream media will report the government position favourably, if only to ensure that the cash keeps flowing. Although the presence of the funding may not lead to bias, it is the perception of bias that is the problem.

All of this is further complicated by the fact that the State sees itself as the sole source of truth. As the Prime Minister said to Parliament on 2 September 2020

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”[3]

It is little wonder that the contrarians have a perception of bias by mainstream media. The facts can give rise to that inference, and although there is a body of literature to the contrary, in the minds of many, perception is reality. Interestingly enough I understand that Fire and Fury was a beneficiary of that fund. In the minds of the contrarians, QED.

There can be little doubt that mainstream media and its position the arbiters of “truth” has been threatened by the rise of the Internet and social media. In many respects the Internet potentially provides everyone with a platform and in that respect enhances and enables a level of freedom of expression – the reception and dissemination of information – to an extent that society has not seen before. That everyone potentially has a voice is a long sought aspect of democracy.

What follows from this is cacophony and the expression of many and varying viewpoints. Many of these viewpoints are personal opinions only. They may be based on an incomplete or incorrect factual basis but they may, nevertheless, be validly held.

And if some of these views challenge established points of view or perspectives, so be it. To have our viewpoints or opinions challenged is the price we pay for being able to express our viewpoints and challenge those of others.

“Democracy is built on the right to dissent, on the right for people to hold opposing positions. Our societies need freedom of expression to protect us from the worst atrocities that governments can visit on their citizens.”[4]

There are times when a contrarian position will give offence. Salman Rushdie has made a number of comments on the freedom of expression and offence. The starting point is that no one has a right not to be offended. It doesn’t appear in any international instruments on human rights. Rushdie’s view is that

” If you are offended it is your problem, and frankly lots of things offend lots of people.”

Then he locates offence within the context of the freedom of expression

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

One of the ironies that came out of the Fire and Fury documentary were the expressions of offence on the part of some of commentators including Dean of AUT Law School Khylee Quince who expressed her offence at some of the associations that were developing within the contrarian movement. I would have thought that Ms Quince would have been a little more objective in the expression of her views. Being offended is simply not a good enough argument in my view. Perhaps she should have expressed her disagreement accompanied by reasons.

Underlying the documentary is a concern at the way that social media platforms enable the expression of contrarian positions. Facebook, Twitter, Instagram and other “big tech” platforms have taken steps to address some of the more extreme positions adopted by contrarians but there are other platforms like Telegram and Gab that appear to be quite unregulated and not susceptible to control. These platforms are seen as breeding grounds for disinformation.

Part of the problem about communications technology is the way that it can alter and change our approaches to and our expectations of information. A clear example is in the way that the printing press was an agent of change in the way in which information was communicated and the way that it enabled the expression of contrarian views. Martin Luther’s 97 theses that sparked the Reformation were circulated throughout Germany within two weeks of Luther initiating the debate by pinning his theses to the church door in Wittenberg. His views were as contrarian as they possibly could be and the printing press enabled the dissemination of contrarian points of view and still does.

The underlying properties of internet-based communications technology enable, as I have said, everyone to have a platform and to express a point of view. As I have observed, this is cacophonous but it does mean that people are far more willing to express themselves, often quite pungently, knowing that there may be little consequence visited upon them. The communications technology has enabled this shift in behaviour. The technology enables it.

One of the commentators on Fire and Fury expressed the somewhat interesting point of view that people can be radicalized by over-exposure to extreme ideas. This is an extraordinarily patronizing perspective as well as being a very wide and all-consuming generalization. There can be little support for the view that a whole community is going to become radicalized if they watch Counterspin media too frequently. This does a disservice to the intelligence and common sense of the greater majority of the community.

There are some who have adopted extremist views. Some in the Fire and Fury documentary use extreme language, calling for extreme and violent consequences. How much these people were playing to the camera would need to be assessed and in some cases such expression may be fuelled by highly charged emotions and anger. Although the protest at Parliament ended violently if there had been a true undercurrent of revolutionary violence it would have happened.

We may decry the over-exuberant expression that we see on Internet platforms. Our concerns must be measured against a recognition of the importance of freedom of expression. But regrettably I do not see a return to polite conversation. Communications platforms have been with us for too long and our behaviours have become too ingrained for there to be any likelihood of change. Although this may be seen as a form of technological determinism, it must also be recognized as a reality.

The final point that I would like to make is about the lessons of history, referred to in the opening introduction to the documentary. Was the protest at Parliament that unusual in the overall scheme of things. Was the language of the protesters so extreme. In 1787 in (to our ears) an erudite letter from Thomas Jefferson to William Stephens Smith, Jefferson said

“And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

This language is probably as extreme as some that was used in March 2022 and yet it is over 200 years old and written at a time when the American Revolution had been successfully achieved.

History is full of similar examples – the French Revolution, the 1830 Revolution in France, the European Revolutions of 1848, the anarchists, Socialists and Bolsheviks of the period leading up to the 1917 Revolution and the student protests in Europe on 1968.

More recently one only has to look at some of the messaging from Al-Quaeda and Islamic State to see that the rhetoric continues. In 2012 protesters erected a mock guillotine to “decapitate” leading politicians as a demonstration against the sale of state assets. In 2014 a musician sang about wanting to kill then then PM and violate his daughter.

In New Zealand certainly in my time some of the so-called radical movements such as the Progressive Youth Movement, Halt All Racist Tours and associated organisations in the mid-sixties, spurred on by perceived societal injustices and taking their lead from similar organisations in other countries, protested and occupied public facilities, but often the radical language of the time was offset by the trending peace, love and flowers of the hippies.

The violence that accompanied the Springbok Tour of 1981 was as bad in its way as the violence at the end of the Parliament Protest, and was just as frightening. But all of this seems to have been forgotten and overlooked by the authors and producers of Fire and Fury. The point I am trying to make is that this is not new.

Interestingly enough, one of the leading lights of the 1960’s protest movement went into politics and was elected Mayor of Waitakere and latterly Invercargill. It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

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[1] Graham Adams “Fire and Fury is often funny – unintentionally” The Platform 18 August 2022 https://theplatform.kiwi/opinions/fire-and-fury-is-often-funny-unintentionally (Last accessed 19 August 2022)

[2] Madelaine Chapman “Giving a Voice to Voices for Freedom” The Spinoiff 2 March 2022 https://thespinoff.co.nz/politics/02-03-2022/giving-a-voice-to-voices-for-freedom

[3] Hansard Debates 2 September 2020  Oral Questions – Questions to Ministers – Question 1 https://www.parliament.nz/en/pb/hansard-debates/rhr/document/HansS_20200902_050580000/1-question-no-1-prime-minister

[4] Ben Okri “Authors on the Salman Rushdie attack: ‘A society cannot survive without free speech’” The Guardian 14 August 2022 https://www.theguardian.com/books/2022/aug/14/authors-on-the-salman-rushie-attack-a-society-cannot-survive-without-free-speech

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Fear Itself?

­­­­­­­­­­­­Introduction

This is another piece about misinformation and disinformation. I have already written about these issues here and here. In this piece I discuss a paper recently released by the Disinformation Project. I consider the definitions that are used and offer a slightly more nuanced approach to the meaning of the terms “misinformation” and “disinformation”. I then go on to discuss some of the available remedies for problems arising from the dissemination of disinformation and close with a discussion of the way in which fear seems to be weaponised to achieve the goal of “social cohesion”. I close with an observation about vested interests and the campaign against disinformation.

Definitional Issues

The working paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest” from the Disinformation Project[1] captured media attention and is itself an interesting study.

I have previously been rather critical of the way in which the terms “misinformation” and “disinformation” have been bandied about and the authors of the working paper have defined their terms.

Misinformation is false information that was not created with the intent to harm people.

Disinformation is false information that was created with the intent to harm a person, community, or organisation.

The material that is available from the Disinformation Project website does not offer any discussion of how these definitions were settled although it is fair to say that similar definitions have appeared in other publications.

Regrettably, the definitions both suffer from a lack of nuance. The nature of the information is not clarified. The definitions do not state whether or not the information conveyed is a statement of fact or opinion. Furthermore the definitions fail to recognise that often a fact may be determined by a process of inference or conclusion based on other existing facts. It may well be that upon further analysis an inferential conclusion may be erroneous. Whether or not it should be described as false gives rise to another issue. The use of the word “false” suggests a fraudulent, dishonest or morally questionable motive. Yet an inferential conclusion may be reached honestly and in good faith.

The definition of “misinformation” goes on to suggest that the information (which may be incorrect) was created and in that sense the suggestion is that it derived from imagination rather than from a number of other pieces of evidence or sources. In my view rather than use the word “created” the word “communicated” should be used and more properly crystallises the nature of the problem.

A person may develop some information either from imagination or from other evidential sources but may do nothing with it. In that respect the information, irrespective of its correctness, is passive. Only when it is communicated and comprehended by an audience does the information become active.

The definition of misinformation also contains the element of motive. A person may analyse a number of facts and arrive at a conclusion. That conclusion may be communicated. The conclusion may be incorrect or  misleading. But the communication of the information was in good faith as to the correctness of the conclusion or its veracity. In such circumstances, the motive for the communication of the information does not matter.

If one is looking for a more nuanced definition of “misinformation” that incorporates the above matters it could read “misinformation is information that is communicated and that is erroneous.”

That definition avoids the issue of motive and the use of the rather loaded word “false”.

“Disinformation” as defined creates some issues. A simple word to describe disinformation is that it is a lie. However, in the definition the word false is used which, in the context of a lie, is a correct term. I have some difficulty with the issue of intention. The intention must be to harm a person, community, or organisation.

A Matter of Harm

I wonder if harm is the correct term. In the context of the Harmful Digital Communications Act, harm is defined as “serious emotional distress” which would be a satisfactory, albeit limited, definition for a person or a community. However, it would not be applicable to an organisation.

Harm could also mean some form of adverse consequence which causes loss or damage. In this respect the communication of false information with the intention of causing loss or damage resembles a crime involving dishonesty. In this respect it could be argued that section 240(1)(d) of the Crimes Act 1961 is applicable. This reads:

“Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right….. causes loss to any other person.”

Deception is defined as follows:

•  a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
•  knows that it is false in a material particular; or
•  is reckless as to whether it is false in a material particular; or
•  an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
•  a fraudulent device, trick, or stratagem used with intent to deceive any person.

Thus it would seem that the communication of false information would fall within the ambit of deception. It is accompanied by the necessary intention and if it causes loss/harm then the offence would be available.

However, as I understand it from the material that is available on the Disinformation Project website and the various commentaries on the “Mumuration” paper the harm that is contemplated is more inchoate and nebulous.

The paper states:

“Disinformation highlights differences and divisions that can be used to target and scapegoat, normalise prejudices, harden us-versus-them mentalities, and justify violence.

Disinformation and its focus on social division are at risk of cementing increasingly angry, anxious and antagonistic ways around how we interact with one another, eroding social cohesion and cooperation.

This has dangerous implications for our individual and collective safety”

Thus, the harm that is perceived is that of divisiveness, antagonism, prejudice and possible physical danger resulting from the use of language that is inciteful. There is concern at the erosion of social cohesion and co-operation.

This theme is picked up by David Fisher in his analysis of the paper. Fisher suggests that the trafficking of false and misleading information should be elevated to the level of national security. With respect I consider such a statement to be unnecessarily shrill and the proposal to be unwarranted. The underlying theme of Fisher’s analysis is that the dissemination of disinformation, some of which originates from overseas sources, poses a threat to established institutions and processes. He cites local body elections and the general election next year which could see a rise in disinformation.

Fisher states:

When it comes to next year’s general election – which attracts much higher public engagement – expect to experience friction as a growing faction with a discordant perception of reality bangs into those who retain faith in the way we live.

The concerns that are voiced by the Disinformation Project and by Fisher express a fear that society is under threat from the spread of disinformation primarily from a cluster of 12 groups of Facebook or social media platforms.

These concerns carry an implicit message that “something must be done”. For some of the disinformation concerns there are already remedies. I categorise these remedies available under existing law as “communications offences”. I have discussed them in an earlier post entitled “Dangerous Speech” but I shall summarise these remedies here.

Existing Remedies

Threats of violence or of harm are covered by section 306 – 307A of the Crimes Act.

Section 307A would seem to be a possible answer to the consequences of disinformation although the language of the section is difficult.

The relevant portions of the section read as follows:

Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she:…..

communicates information—

•  that purports to be about an act likely to have 1 or more of the results described in subsection (3); and
•  that he or she believes to be false.

Subsection (2) which deals with the effects that are sought to be achieved reads as follows:

The effect is causing a significant disruption of 1 or more of the following things:

•  the activities of the civilian population of New Zealand:
•  something that is or forms part of an infrastructure facility in New Zealand:
•  civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of schools):
•  commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

The results that are likely to occur are set out in subsection (3) which reads as follows:

The results are—

•  creating a risk to the health of 1 or more people:
•  causing major property damage:
•  causing major economic loss to 1 or more persons:
•  causing major damage to the national economy of New Zealand.

However, subsection (4) creates an exception and exempts certain activities from the effect of s. 307A. It reads:

“To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).” (The emphasis is mine)

There has been one case, to my knowledge, that specifically deals with section 307A – that of Police v Joseph [2013] DCR 482.

Other examples of communications offences may be found in the following statutes:

a) the Human Rights Act 1993;

b) the Summary Offences Act 1981;

c) the Harmful Digital Communications Act 2015;

d) the Broadcasting Act 1984; and

e) the Films, Videos, and Publications Classification Act 1993.

f) the Crimes Act 1961.

It should be conceded that not all of the offences created by these statutes deal with the problem of disinformation and I do not propose to discuss all of them and refer the reader to my earlier post on “Dangerous Speech”.

Indeed, the law has been ambivalent towards what could be called communications offences . In 2019 the crime of blasphemous libel was removed from the statute book. Sedition and offences similar to it were removed in 2008. Criminal libel was removed as long ago as 1993.

At the same time the law has recognized that it must turn its face against those who would threaten to commit offences. Thus section 306 criminalises the actions of threatening to kill or do grievous bodily harm to any person or sends or causes to be received a letter or writing threatening to kill of cause grievous bodily harm. The offence requires knowledge of the contents of the communication.

The offence prescribed in section 308 of the Crimes Act involves communication as well as active behavior. It criminalises the breaking or damaging or the threatening to break or damage any dwelling with a specific intention – to intimidate or to annoy. Annoyance is a relatively low level reaction to the behavior. A specific behavior – the discharging of firearms that alarms or intends to alarm a person in a dwelling house – again with the intention to intimidate or annoy – is provided for in section 308(2).

The Summary Offences Act contains the offence of intimidation in section 21. Intimidation may be by words or behavior. The “communication” aspect of intimidation is provided in section 21(1) which states:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

(a)     threatens to injure that other person or any member of his or her family, or to damage any of that person’s property;

Thus, there must be a specific intention – to frighten or intimidate – together with a communicative element – the threat to injure the target or a member of his or her family, or damage property.

In some respects section 21 represents a conflation of elements of section 307 and 308 of the Crimes Act together with a lesser harm threatened – that of injury – than appears in section 306 of that Act.

However, there is an additional offence which cannot be overlooked in this discussion and it is that of offensive behavior or language provided in section 4 of the Summary Offences Act.

The language of the section is as follows:

(1)     Every person is liable to a fine not exceeding $1,000 who,—

(a)     in or within view of any public place, behaves in an offensive or disorderly manner; or

(b)     in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or

(c)     in or within hearing of a public place,—

(i)  uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) addresses any indecent or obscene words to any person.

(2)     Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.

(3)     In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.

(4)     It is a defence in a prosecution under subsection (2) if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

In some respects the consequences of the speech suffered by the auditor (for the essence of the offence relies upon oral communication) resemble those provided in section 61 of the Human Rights Act.

Section 4 was considered by the Supreme Court in the case of Morse v Police [2011] NZSC 45.

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behaviour has the greatest implications for freedom of expression or expressive behaviour, in that the test incorporates a subjective one in the part of the observer. But it also carries the lightest penalty, and as a summary offence can be seen to be the least serious on the spectrum. The section could be applied in the case of oral or behavioural expression against individuals or groups based on colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as long as the tests in Morse are met.

At the other end of the spectrum is section 307 dealing with threats to kill or cause grievous bodily harm which carries with it a maximum sentence of 7 years imprisonment. This section is applicable to all persons irrespective of colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as are sections 307, 308, section 21 of the Summary Offences Act and section 22 of the Harmful Digital Communications Act which could all occupy intermediate points on the spectrum based on the elements of the offence and the consequences that may attend upon a conviction.

There are some common themes to sections 306, 307, 308 of the Crimes Act and section 21 of the Summary Offences Act.

First, there is the element of fear that may be caused by the behavior. Even although the issue of intimidation is not specifically an element of the offences under sections 306 and 307, there is a fear that the threat may be carried out.

Secondly there is a specific consequence prescribed – grievous bodily harm or damage to or destruction of property.

Thirdly there is the element of communication or communicative behavior that has the effect of “sending a message”.

These themes assist in the formulation of a speech-based offence that is a justifiable limitation on free speech, that recognizes that there should be some objectively measurable and identifiable harm that flows from the speech, but that does not stifle robust debate in a free and democratic society.

Democracy vs Cohesion

The concerns about the effects of disinformation other than those effects which may cause harm relate more to issues of what are described as social cohesiveness. This is a phrase that seems to have been gaining in traction since the Royal Commission Report on the March 15 Christchurch tragedy. It is emphasised in both the “Mumuration” paper and in Fisher’s analysis. The problem with social cohesiveness is that, taken to its ultimate result, we have a society based on silent conformity without any room for dissent, opposition or contrary or contentious opinions.

These elements are essential to a functioning democracy which is cacophonous by nature and which often involves strongly held and differing opinions. Much of the debate surrounding differing opinions can get quite heated and result in what the Disinformation Project claims are angry, anxious and antagonistic arguments. These have been with us for centuries. One need only look at the arguments that have taken place withing the Christian faith over the centuries to understand the passion with which people often approach matters of belief. And, indeed, conflicting opinions within that context would, at the very least be termed “misinformation” or, at worst “disinformation”.

Although the printing press was responsible for the wide dissemination of the contentious arguments surrounding the Reformation and, later in England, the constitutional debates that led to the English Civil War, the dissemination of information afforded by social media platforms is exponentially greater. It is perhaps the delivery of the message, rather than the message itself, that seems to be the root of the problem.

Weaponising Fear

Coupled with this is the fact that the perceived disinformation problem is accompanied by a sense of threat to established institutions which in turn generates a sense of fear and foreboding if the problem is allowed to continue or at least to go unrecognised.

Fear seems to be a widely distributed currency these days. Perhaps older generations have had more experience of the reality of fear having lived through events like various outbreaks of war – Korean, Viet-Nam, Gulf 1 and 2, Afghanistan as a few examples – along with the continuing threat of nuclear conflict which seemed to dissipate in the 1990’s but has now once again loomed and the spectre of terrorism which preceded 9/11 – which was its most egregious example – and which has also been exemplified not only by jihadis but by extremists such as Timothy McVeigh, Anders Breivik and Brenton Tarrant.

But fear is used to market other products. The response to the Covid Pandemic in New Zealand was underpinned by fear, with concerns about potentially high numbers of deaths from the disease if strong measures were not taken. That fear of death and of the consequences of the pandemic underpinned most of the steps taken by the Government and was probably responsible for the complacent response by the populace at least in the first year or 18 months of the pandemic.

Fear can be a strong motivator and often drives extreme responses. Senator Joseph McCarthy played on the fear of a Communist conspiracy in post-World War II USA the reverberations of which were still present in the early 1960’s. The end of the Cold War meant that the fear of the Communist threat was ephemeral but it was shortly replaced by fear of terrorism in the US.

What concerns me is that the fears that are being expressed around misinformation and disinformation suggest that the phenomenon is a new one.  It isn’t but has been exacerbated by the exponential dissemination quality of online platforms.

It is also suggested that there are no remedies to deal with particularly disinformation.

There are and in certain cases the provisions of s. 307A of the Crimes Act 1961 could be deployed along with other remedies discussed if they fit the circumstances.

There are some remedies along with critical analysis of posts that may contain disinformation. To engender a climate of fear is unhelpful, especially when there are existing tools to deal with the issues.

The problem can be summed up by the remark by Franklin D. Roosevelt at his 1933 inauguration –  “the only thing we have to fear is…fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

Misinformation occupies a different space and in my view poses no threat. The views expressed may be contentious or contrarian perspectives. Often the information contained in these views will be opinions based on certain facts which may or may not be valid. Statements of opinion appear regularly in mainstream media and are labelled as such. Often they are the subject of debate and discussion in online comments sections or in letters to the editor. This is part and parcel of life in a liberal democracy that places a high value upon the right to impart and receive information – no matter how wrongheaded it might be.

In fact the way to deal with misinformation was referred to in the NZ Herald for 18 May 2020 entitled “’Tectonic shift’: How Parliament protest supercharged NZ’s misinfodemic” which contained commentary on the “Mumuration” paper. The Prime Minister’s Chief Science adviser Dame Juliette Gerrard is quotes as saying:

“New Zealand needs to play its part in the global effort to foster social cohesion and to empower our children to learn skills which make the next generation strong critical thinkers who are as resilient as possible to an increasingly polluted online environment.”

Whilst I would take issue with the “social cohesion” comment I strongly endorse the suggestion that we need to engage in critical analysis and evaluation of the information that we receive. This is something that needs to be done not only by our children but by ourselves.

Social cohesion is a vague and ephemeral concept for defining acceptable behaviour in society. As I have said in an earlier post:

Without the Rule of Law what is being proposed is some form of “understood” code of behaviour based on the concept of a resilient society that has its foundation in social cohesiveness. I would have thought that a clearly communicated and understood Rule system would establish the metes and bounds of acceptable behaviour.

In my view although a peaceable society is an objective that is the goal of the Rule of Law which allows for a variety of behaviours but provides consequences for unacceptable behaviours – either by civil remedies or criminal sanctions. It is far better to have a clearly defined approach rather than a vague and ephemeral one.

Conclusion – Vested Interests.

Finally it is of interest to observe how vexed the mainstream news media get with the issue of mis/disinformation. Because the warnings emanating from the Disinformation Project, the Chief Censor’s Office and the University of Auckland Centre for Informed Futures, the news media are quick to fan the flames of fear and perhaps overdramatise the significance of the message. But perhaps there is an unstated interest that the news media might have in campaigning against mis/disinformation. In the past they have been the organs of reliable information and their editing and checking systems ensure this.

The Disinformation Project study indicates that on 10 February 2022 misinformation (as they define it) overtook NZ Media for the first time. Perhaps mainstream media has some territory to protect in the contest for the information audience and in fact what they are doing is campaigning strongly against the purveyors of mis/disinformation not to alert the public or perform some altruistic public interest goal but to do whatever they can to protect their own turf, their position as the purveyors of “truth” (despite significant column inches dedicated to “opinion”) and, not least, their advertising revenues and income streams.

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[1] It is important to note that the Disinformation Project referred to is based at Victoria University, Wellington and is separate and distinct from the Disinformation Project – a American organization based in Fairfax, Virginia. The website of the NZ organization is https://thedisinfoproject.org. That of the American group is https://thedisinformationproject.org

Limiting RATs

This post is a form of companion piece to an earlier post “Jacinda’s Labyrinth” which examined some of the legal underpinnings to the management of the COVID pandemic in New Zealand. In this piece I consider the way in which the law has been deployed to manage (or prevent) the use of rapid antigen (RAT) tests

In February 2022 some 30,000 JusChek Rapid Antigen Tests (RAT) were seized by Customs. They had been ordered by Auckland Grammar School and were proposed for school use. It appears that the school was being pro-active in attempting to monitor occurrences of COVID-19 within the school itself. It seems like it was a responsible approach[1].

So why were the tests seized? This was not part of the Government’s “consolidation” (read “sequestration”) of ordered tests. The reason for the seizure was that the tests were banned.

In this post I examine the processes that lie behind the banning of RATs and suggest that the process demonstrates the way in which the Government and the Ministry of Health are determined to maintain strict control of the pandemic and the tools available to counter it.

The starting point must be the COVID-19 Public Health Response Act 2020. There are two important sections – section 9 and section 11. Section 11 gives the Minister the power to make certain Orders. Section 9 sets out the requirements for making such Orders.

Those requirements are:

(a) The Minister must have had regard to advice from the Director-General about—

(i)  the risks of the outbreak or spread of COVID-19; and

(ii)  the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks; and

(b)  the Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors); and

(ba)  the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990; and

(c)  the Minister—

(i)  must have consulted the Prime Minister, the Minister of Justice, and the Minister of Health; and

(ii)  may have consulted any other Minister that the Minister (as defined in this Act) thinks fit; and

(d)  before making the order, the Minister must be satisfied that the order is appropriate to achieve the purpose of this Act.

Once there has been compliance with those requirements the Order may be made under section 11. There is nothing in section 11 that provides for a power to make an Order prohibiting the import of certain testing kits. The closest that I can find – and it would require a rather generous interpretation – would be in section 11(1)(a) which provides that the Minister may make an order for the following purpose

•  to require persons to refrain from taking any specified actions or to take any specified actions, or comply with any specified measures, so as to contribute or be likely to contribute to either or both of the following:
•  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
•  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

The examples contained in section 11(1)(b) do not include importing prohibited items nor providing for an import prohibition. A broad interpretation may be that the Order prevents a specified action (the importation of prohibited items) to avoid actual or potential adverse public health effects of the COVID-19 outbreak.

One further basis for making the Order may be found in section 11(1)(d)

…to require specified actions to be taken, require compliance with any specified measures, or impose specified prohibitions, so as to contribute or be likely to contribute to either or both of the following:

•  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
•  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

Once again a generous interpretation is required.

Clearly it is envisaged that there can be restrictions on the importation of goods. Section 11(4) provides

“All goods prohibited from import under a COVID-19 order are deemed to be included among goods prohibited from import under section 96 of the Customs and Excise Act 2018, and the provisions of that Act apply to those goods accordingly.”

The COVID-19 Public Health Response (Point-of-Care Tests) Order 2021 came into force on 22 April 2021. The order prohibits a person from importing, manufacturing, supplying, selling, packing, or using a point-of-care test for SARS-CoV-2 or COVID-19 unless the Director-General of Health has:

• authorised the person’s activity; or
• exempted the point-of-care test from the prohibition.

The Order replaces a Notice issued pursuant to section 37 of the Medicines Act 1981. Section 37 gives the Minister the power to prohibit the import of medicines.

The section in full states:

•  The Minister may from time to time, by notice, prohibit the import, manufacture, packing, sale, possession, supply, administration, or other use of medicines of any specified description or medical devices of any specified kind, either absolutely or subject to such conditions as he thinks fit, for any specified period not exceeding 1 year; but he shall not exercise this power more than once in respect of medicines or medical devices so specified.

•  Where the Minister gives a notice under subsection (1), he shall, on the written request of any person, state his reasons for doing so.

•  Every person commits an offence against this Act who contravenes any notice given under subsection (1).

•  A notice under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

By Notice dated 22 April 2020 the Minister of Health prohibited the importation, manufacture, packing, sale, supply or use of any kits and/or other test materials intended for use as point of care testing for COVID-19 infection or for post-infection confirmation using an antigen or antibody detection system unless the particular test kit and/or test materials.

The only exceptions were kits approved by Medsafe and to be used for testing by a specified category of health care professionals.

The Notice expired on 22 April 2020.

It was on that date that the COVID-19 Public Health Response (Point-of-care Tests) Order 2021 came into force. That order provided for a prohibition on the importation, manufacture, supply, sale or use of a point of care test unless the person activity was authorized under clause 8 of the Order or the test was exempt from the prohibition under clause 9.

Clause 9 gives the Director-General of Health the power to exempt any point-of-care tests from the prohibitions contained in the Order. The criteria for exemption are that the Director-General must be satisfied that:

•  the point-of-care test or class of point-of-care tests is sufficiently accurate and reliable so as not to pose a material risk to the public health response to COVID-19; and
•  the exemption is not inconsistent with the purpose of the Act; and
•  the exemption is no broader than is reasonably necessary to address the matters giving rise to it.

The exemptions that have been granted are contained in the New Zealand Gazette and the most recent one is dated 24 February 2022[2]. This exempts a total of 11 Rapid Antigen Tests from the prohibition.

The Notice dated 24 February 2022 replaces another notice published on 4 February 2022 and dated 3 February 2022. In turn that notice approved for exemption 11 RATS.

There is something of a history of Notices under the Point of Care Order. These preceding Orders are dated 28 January 2022, 25 January 2022 and 21 January 2022. These earlier orders related to the authorization of persons who may import RATS or expanding the import and supply of RATs.

If the RATs referred to in the opening of this piece were seized in the first 8 weeks of the year a review of the Orders reveals that the JusChek brand of RATs was not approved for import. However, the JusChek RATs had been approved in Australia by the Therapeutic Goods Administration. It seems curious that RATs that were approved in one jurisdiction are deemed unfit for purpose in another.

There are a number of issues that arise from this unusual situation.

The first is the blanket prohibition on the importation of RATs unless they have been approved. This is not unusual in and of itself but in the context of the COVID pandemic is another example of this Government’s approach to the law which is that everything is prohibited unless it is permitted.

The normal approach is that everything is permitted unless it is prohibited. Once again the Government has turned legal theory on its head.

The second issue lies in the approach of the Government to the use of RATs. Throughout the pandemic the Government and the Health Mandarins have consistently turned their faces from advice that would prove beneficial to the New Zealand public and in the management of the pandemic.

This includes apparently ignoring the report of Sir Brian Roche and Heather Simpson which was made available in September of 2020 but for some inexplicable reason was not released until mid-December 2020. It is claimed that some of the recommendations were implemented or underway but these were difficult to discern.

Then there were the various efforts by Sir Ian Taylor directed to a more nimble and nuanced approach to managing the pandemic. His suggestions were directed towards issues around self-isolation, the use of RATs, alternatives to MIQ and other alternatives. It is clear that his approach does not coincide with Government policy nor indeed the Government narrative to the point that Taylor claimed that he had been asked by the Associate Health Minister to stop writing “bad faith” columns. It seems that anything that is slightly critical of Government policy or that departs from the “party line” is “bad faith”.

The resistance to any form of testing other than the slow and unpleasant PCB test was continuous until the onset of the Omicron variant when it became abundantly clear that the systems in place surrounding PCB testing were quite inadequate to meet the increased demand as a result of the highly infectious new variant. The Director-General of Health had to fall on his sword and apologise for the delays that were being occasioned in the return of PCB test results. Clearly the Government wasn’t responsible, for if it was it would be yet another example of failure to deliver a solution.

Once it became apparent that RAT tests were going to be necessary to keep a track of cases and to (more importantly) allow citizens to find out promptly whether or not they had the disease, things began to move. One only has to look at the flurry of activity as the Director-General started to grant exemptions to the RAT import and use prohibitions which I have detailed above.

The justification for the tardy response has been two-fold. PCB testing is a very accurate way of detecting COVID infections. That is the first justification for staying with the present system. The second reason for the tardy – almost reluctant – response is that RAT tests are not as accurate as the PCB tests.

There might seem to be another reason. PCB testing takes place at testing stations. Those being tested have to check in and provide their details including their health number. The test results can therefore be traced to an individual who may or may not have the disease. And, of course, the tests – managed by the Health Department – provide data that the Department claims is necessary to advise Government as to policy surrounding the pandemic.

RAT testing presents a different scenario and one where the Health Mandarins have no control at all. RAT tests are available over the counter. They can be conducted in the privacy of the home rather than under the surveillance of a PEP clad functionary. And more significantly it is left to the individual as to whether the results are communicated to the authorities. There are a number of reports of people who are NOT reporting a positive test and I imagine that there are a number of reasons.

If I may digress for a moment for the recording of the results of RAT tests may be accomplished through use of the My Covid Record application. Indeed most of the advice about ascertaining information or communicating outcomes specifies an online response.

This requirement is based on a number of assumptions. One is that everyone – and I mean everyone because no one is immune from COVID – has access to an online provider and has the necessary hardware be it a smart phone, laptop or desk top computer by which this access can be accomplished. This is an appalling bourgeois assumption which seems to underpin many aspects of modern communications and seems to be based on the assumption on the part of officials that, because they have access to online systems everyone else may have similar access. Although uptake of the Internet in New Zealand is high that attitude fails to recognize that there is a digital divide in this country where a proportion of the populace do not have access to online systems or are not adept in their use. The provision of an 0800 number assumes that a telephone system will work efficiently but it does not. The system is overburdened and waiting times for pickup are reportedly very long. Yet another piece of bad planning on the part of the Government and its agencies.

Another feature of the individual management of the pandemic – for it is clear that the Government can no longer control the direction of the disease – is the refusal of the Health Mandarins to consider not only a wider variety of RAT tests – such as were sought by the Auckland Grammar School – but also any other form of testing such as saliva testing. I understand that there has been very limited use of saliva testing for COVID – for border workers, health care workers and those in MIQ when it was still required. But saliva testing is not more widely available. Furthermore saliva can be used as a sample for rapid antigen testing. It seems curious that this form of detection is not available.

The slow response to allowing RATs seems to echo the slow response to the introduction of vaccines. It has long been my view that the harshness to the vaccine mandate programme could well have been mitigated by having the unvaccinated undergo a RAT before entering, say, a workplace, and if they test negative all is well. Of course the Health Mandarins say that RATs are inaccurate and that the odd case may slip though but the reality is that RATs are the prime source of detection. Did they suddenly become more accurate? I do not think so. I can understand the reaction of the principal of Auckland Grammar School. In good faith he, no doubt under advice, took steps to ensure health and safety of those for whom he was responsible. The school wanted to be proactive about offering students and staff another layer of protection. His bona fide efforts were thwarted by a punctilious bureaucracy that will admit of no other way than that which it decrees. It seems that it is the Government’s way or the highway when it comes to dealing with COVID. It is yet another example of the failure by the authorities to act reasonably and nimbly in the face of this pandemi

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[1] Covid 19 Omicron outbreak: 30,000 rapid antigen tests seized at borders, high school says situation ‘nonsensical’ NZ Herald 6 March 2022 https://www.nzherald.co.nz/nz/politics/covid-19-omicron-outbreak-30000-rapid-antigen-tests-seized-at-borders-high-school-says-situation-nonsensical/CMAIV2FSHCVEIL44MWU3UENMG4/ (Last accessed 7 March 2022)

[2] https://gazette.govt.nz/notice/id/2022-go587 (Last accessed 7 March 2023)

The Consent of the Governed

This post continues the theme developed in “Social Cohesion or Social Conformity” of the importance of the Rule of Law as the most important element of social cohesion and how the Rule of Law can be undermined by the loss of respect for and apparent powerlessness of our established institutions.

As I write this a protest camp is present outside Parliament. It has been there for 12 days and is likely to remain. It seems to be well supported in terms of those attending and in terms of the infrastructure that has developed. There are cooking facilities, recreational facilities and educational facilities for the young who are present.

It isn’t difficult to ascertain what the protest is about. It has been characterized as an anti-vax protest but the message that is coming through is that it is a protest against the effects of mandatory requirements for vaccines. Those who are in the catchment for those mandatory requirements are teachers and health workers so it is no surprise that a number from these professions are present.

Of course the protesters have been demonized. Although comfortable words are spoken about the right to protest, there is condemnation for this one because it has gone too far and in some respects it may well have done. But the anti-protest rhetoric, aligning the protesters with the “far right” has become clear from such “progressives” as Simon Wilson in this piece headlined ”Pandemic, protest, nurses and nutters” and an awesome piece of rolling inferential reasoning from Thomas Coughlan in a piece entitled “Parliament occupation inevitable, but end should also be” where he says

“Given the anti-mandate crowd are only anti-mandate because they’re anti-vaccine, and they’re only anti-vaccine because of conspiracy theories about its provenance and efficacy, there’s also an air of inevitability about the involvement of neo-Nazis and associated far-right conspiracy theorists and cranks with the protest.”

That sort of dismissive commentary overlooks the seriousness with which many of the protesters view the situation. This attitude of dismissiveness has continued from no less a source than the advocate for kindliness – the Prime Minister – and is reflected in many of the statements from other politicians.

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions. Initially the Police seemed ready to take action but then pulled back. In essence this has given the protesters carte blanche to continue to develop the site and increase the semi-permanence of their presence. The theory of “policing by consent” – and it can only be a theory – isn’t going to gain any traction with the protesters.

The steps taken by Mr Speaker last weekend in turning on the sprinklers and playing awful music over loudspeakers was infantile to say the least and served only to diminish any respect for his office or for the institution of Parliament.

The public looks on and what do they see. Certainly no positive steps from our politicians who will not engage unless the protesters move on. This is reminiscent of the approach taken to hostage negotiations or a “lay down your arms before we talk about a ceasefire” approach. The Prime Minister dismisses the protest as anti-vax (when clearly it is not only that) and was conspicuous by her absence last weekend when Mr Speaker was playing his part.

Other politicians (apart from David Seymour) seem unwilling to engage and the reasons are opaque. Once again leadership seems to be lacking and our governing institutions suffer from powerlessness, toothlessness and an apparent unwillingness to do anything.

What is extraordinary is that the politicians and those in government are not our masters but our servants. We look to the Government especially to maintain the Rule of Law – another institution that seems to be in difficulty – since it seems that the Rule of Law is engaged on two fronts – the question of how the law deals with a protest that has aspects of unlawfulness and how the Courts may continue to function when the protesters by their actions make the administration of justice almost impossible. No less a person than the Chief Justice has commented on the fact that a jury trial in the High Court at Wellington had to be cancelled.

In addition to the issue of the powerlessness of our institutions or their apparent unwillingness to act is an aspect of constitutional theory expressed by Thomas Jefferson in the Declaration of Independence

Governments are instituted among Men, deriving their just powers from the consent of the governed.

As things stand I wonder if the consent of the governed is as willing as it once was. Do people consent to being governed by institutions that seem powerless or unwilling to maintain the Rule of Law?  Certainly the protesters, anarchic as they may appear, are in fact quite well organized. It seems that the consent consensus that they have is a little more resilient than that of the government. But I don’t think that the majority of New Zealanders would consent to that form of regime.

Or are we headed into something else. William Butler Yeats, the Irish mystic poet writing after the horrors of World War I and the Spanish Flu pandemic wrote in “Second Coming”

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere  

The ceremony of innocence is drowned;

The best lack all conviction, while the worst  

Are full of passionate intensity.

It seems that his words may aptly describe our present situation.