This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY LYNSEY BLAYDEN

The COVID-19 pandemic has starkly revealed the importance not only of the capacity of government to respond quickly to a public health crisis, but also of citizens having enough faith in their governments to follow the directions of officials. Although there has been some resistance to lock-downs, border closures and other measures in Australia, it has not been widespread. Opinion polls have registered broad support for the steps taken by state governments, only picking up a shift in Victoria following almost two months of very restrictive measures, including a curfew, in Melbourne. This support was apparently bolstered by a pragmatic acceptance of the notion that the only path out of the economic and other pain caused by the virus is to suppress its spread.

1. Australian political culture and the pandemic response

Why have the outcomes have been so different in Australia (so far at least), compared with some other nations, such as the United States and the United Kingdom, where infection rates are accelerating once again? It would seem that despite decades of neoliberal policies, the institutions and capacities of Australian government remain in better shape than those of some other democracies. The reasons for this are complex and cannot be fully explored here. Included amongst them, however, should be the political culture of Australia itself. The political scientist Emeritus Professor Judith Brett has identified that this has ‘two deep streams’, the first being an ‘untroubled reliance on the state to organise things for us’ and the second a ‘commitment to majoritarian democracy’. Both characteristics, functioning together, help to explain why Australian citizens have been prepared, for the most part, to follow the directions of their governments.

As is well known, the Australian Constitution contains few protections for individual rights. However, sections 7 and 24 of the Constitution provide that the Senate and the House of Representatives shall be comprised of members who are ‘directly chosen by the people’. Section 64 of the Constitution requires that Ministers hold a seat in Parliament. Around the sparse language of these provisions have been woven certain ideas. One is the notion of responsible government. Through this mechanism, the executive must be accountable to Parliament and through Parliament, the people, who ‘directly choose’ their representatives. Other ideas include certain protections for the franchise, and the implied freedom of political communication, both of which have been implied from the text and structure of the Constitution by the High Court.

It is striking that while the High Court has generally been reluctant to develop doctrines that might protect individual rights, it has been prepared to develop constitutional principles that protect Australia’s system of democracy. This in itself seems to reflect the notion that Australia’s political culture has a majoritarian character, which places considerable authority and faith in the people themselves. This commitment to majoritarianism should be regarded as particularly important when considering the comparatively effective Australian response to the pandemic. As historian Professor Frank Bongiorno has observed, Australians have mostly complied with restrictions because they ‘know that they will have the opportunity to deliver a thumbs up or a thumbs down in the conventional manner’, which is of course ‘at the ballot box’.

Public trust in government and its capacity to meet the needs of the community and the policy challenges of the day is a critical element in the continued functioning of this system. If we take the two streams of Australian political culture identified by Brett, it is possible to see just how important it is that governments continue to perform their bureaucratic functions well, and in a way that maintains public trust in institutions. If the conduct of politics does not serve the Australian people, the system begins to break down. Responsible government means exactly that—and if the people cannot be sure that the governments they ‘directly choose’ are indeed responsible to them, even Australia’s independent and fair electoral system, the integrity of which is generally not called into question, might begin to seem like a charade.

2. Declining public trust

The response of Australian federal and state governments to the pandemic had, initially at least, led to a resurgence in trust in both government and institutions, but there are reasons to be apprehensive about whether this state of affairs will last, or whether it is, in fact, already over. If the latter is the case, we may see a return of the pre-pandemic status quo. Prior to 2020, public trust in Australian governments had been in decline over a period of time. The Australian National University’s study of the 2019 federal election found that satisfaction with democracy was at its lowest levels since the dismissal of the Whitlam Government in 1975. A separate study, by the Democracy 2025 project, published in 2018, found that fewer than 41 percent of people surveyed were ‘satisfied with the way democracy works in Australia’. This figure had fallen abruptly from 86 percent in 2007. Even in the midst of the pandemic, one survey has found that while levels of engagement with politics amongst Australians had increased somewhat, the overall level of disengagement remained high.

The Democracy 2025 study from 2018 found that the reasons for the fall in trust that it had registered included perceptions that ‘politicians lack integrity’ and also ‘simply don’t deliver on the issues that citizens care most about’. Amongst its findings about what Australians didn’t like about their democracy was the view that ‘politicians can’t be held to account for broken promises’. There are a number of specific accountability concerns of long standing, including in relation to the capacity of Parliament to hold the executive to account, the absence of a corruption oversight body at the national level and the lack of adequate protection for public sector whistleblowers. Other problems include disruption to chains of responsibility brought about by the rapid rise in outsourcing in the public sector (for example, see Professor Kristin Rundle’s comments on this issue in the context of Victoria’s hotel quarantine inquiry) and the inadequate regulation of political lobbying in Australia.

There are currently few indications that Australian governments feel compelled to properly address public concerns about integrity in politics. In fact, much of the available evidence seems to be to the contrary, given the number of state and federal agencies, Ministers, and even Premiers, who have had various aspects of their integrity called into question recently. Standards of governance are a key element of the public trust, and action on strengthening integrity bodies and reducing the influence of political donors is clearly needed. The release this week by Commonwealth Attorney-General of draft legislation for the establishment a Commonwealth Integrity Commission is a welcome first step. However, the remaining part of this post focuses on another side of the problem, which is that the way that information is exchanged in the contemporary media and social media environment may also potentially erode the public’s trust in government.

3. The role of the media

Many contemporary problems in accountability have been starkly revealed by the outbreak of community transmission of COVID-19 in Victoria, sometimes referred to as a ‘second wave’. Beyond highlighting some of the many issues with outsourcing, it gave rise to a stand-off between the Victorian and Commonwealth governments over which was the most responsible for the numbers of deaths that occurred in aged care. There have been suggestions that media advisers have not been straightforward in answering important questions regarding the outbreak and how it occurred, raising the wider issue of the role of ministerial advisers, who exist somewhat outside traditional lines of accountability.  Also, the conduct of the media itself during the daily press briefings given by the Victorian Premier, and the acrimony of the exchanges between various participants on social media platforms, has become part of the story.

In a recent speech, former High Court Justice Kenneth Hayne outlined what he saw as the particular threat of the apparent inability to conduct ‘reasoned debate’ in contemporary public forums. This is something that he attributed, in part at least, to the heavy reliance on slogans and ‘culture wars’ in contemporary politics, in lieu of any appetite for confronting hard policy truths, and also to the 24-hour news cycle and social media. Former Prime Minister Tony Abbott once described the media atmosphere as ‘febrile’, and it would seem that it has only become more so in the five years since he made this statement.

The Democracy 2025 study found that fewer people were concerned with the power of the media in 2018 than had been in 2014. Nevertheless, in the period since the 2019 Federal Election, there does appear to be growing disquiet in some quarters over media power in Australia and how it is used. This is underscored by the petition that former Prime Minister Kevin Rudd submitted to the House of Representatives, calling upon the Australian Parliament to establish a Royal Commission into ‘the strength and diversity of Australian news media’. Within three days of opening on October 10, this petition had attracted over 200,000 signatures. By 3 November, it had been signed by over 460,000 people.

A survey published in March 2020 by the Centre for Behavioural Economics, Society & Technology at the Queensland University of Technology found that while levels of trust in established media such as the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS) remain high, mistrust of the media was growing. The survey picked up concerns about bias, and the capacity of such concerns to undermine overall trust. Assertions of perceived bias in the media are a part of the discussion of Australian politics that has been occurring in recent weeks on social media. For instance, the hashtag ‘thisisnotjournalism’ can be observed trending from time to time on Twitter. It is hard to make claims about what this in itself signifies, given that what trends on Twitter is something that is apparently open to manipulation.

Some reflection on what this atmosphere might mean for public trust in government is required. If citizens no longer trust the media, or, owing to perceptions that it is biased, only believe what it reports when it confirms their pre-existing views, this denotes a significant accountability problem. Why, for example, should Ministers resign if, owing to polarisation and politicisation of standards, only those who support the opposition party think they ought to? If sections of the media appear to lack any proportion in the way policy is reported on, how can the public know whether that policy is a success or failure? Given the pace at which things seem to happen and the complexity of present-day life, it is difficult for even well-informed people to gain a grasp of relevant detail, and even the most critical of thinkers can be guilty of falling into certain kinds of groupthink.

4. The challenge presented by social media

Social media presents other complex challenges. In some ways, the fact that information is no longer filtered through established media outlets can be a positive thing, as it allows for the diversification of voices and the presentation of multiple perspectives. However, in others it gives rise to an array of attendant problems such as the growth in the reach of conspiracy theories and what has been termed ‘information disorder’. This expression encompasses the sharing of false information, either by participants on social media who do not know it is false, or by those who do know it is false, and are intending to cause some kind of harm through its spread. There is evidence to suggest that information disorder was a presence on Australian social medial during the bushfire crisis of last summer, and again during the pandemic. Given that polls such as this one by Roy Morgan are reporting that a large proportion of Australians are getting their news from social media, there is an acute need for attention to the way this is functioning and any impact it might be having on public trust.

Australia is still in the ‘early stages of responding to fake news and disinformation’. Some steps have been taken (for example the ‘Stop and Consider’ campaign led by the Australian Electoral Commission (AEC)), but they do not address the full extent of the issues. Owing to the speed with which social media has gained influence, and the way the character of this influence has changed over a relatively short time, it is difficult to delineate the nature and scope of the problems it presents from a regulatory perspective.

For instance, the communication of ‘electoral matter’ on social media is already subject to regulation by various pieces of Commonwealth legislation overseen by the AEC. Broadly, this regulation applies to the authorisation of communication, so voters can identify its source. The AEC has no power to ensure that advertising is truthful, except insofar as it may mislead a person as to the actual method of casting their vote. There was an attempt to regulate truth in advertising for federal elections in the 1980s, but it was short-lived. In August, the Legislative Assembly of the Australian Capital Territory passed the Electoral Amendment Act 2020 (ACT). The Act inserts provisions in the Electoral Act 1992 (ACT) which will make it an offence to disseminate or authorise the dissemination of misleading electoral advertisements.

There are some doubts as to how these new laws will function. Even leaving difficult questions – such as who is qualified to assess whether claims in political advertising are ‘true’ – to one side, such regulation does not fully contend with the way in which messages that are inherently political are also disseminated on widely used platforms. Communications on social media that could potentially have political impact do not always appear in ways that we might expect. As this post by Dr Timothy Graham outlines, unknown entities can use fake social media accounts to negatively distort public debate on important policy matters in influential ways. In another recent example, reported by the ABC’s Media Watch program, online polling on the question of whether citizens were satisfied with the Victorian Government’s response to COVID-19 outbreaks was manipulated by fake votes, which had seemingly been paid for.

While it is possible to infer that this kind of interference might influence the way some people regard a government, and perhaps even swing their vote, it does not take the form of what would be considered to be political advertising. Neither does the sharing of disinformation or ‘fake news’ by individual accounts, real or otherwise, on social media. Regulation of political advertising generally does not cover communication that has a ‘dominant purpose’ of raising awareness about an issue or encouraging public debate (see, for example, s 4AA of the Commonwealth Electoral Act 1918 (Cth) and this Electoral Backgrounder published by the AEC). There are important reasons as to why this kind of regulation is carefully balanced. While it is possible to accept that steps must be taken to address information disorder so as to safeguard public trust in institutions and ensure we do not entirely lose the capacity to have reasoned public debate, this in turn raises some difficult questions as to how communication itself can or should be regulated.

Until relatively recently, it has largely been left to companies like Facebook to set standards for the use of their platforms, but governments around the world are now turning attention to the problem of information disorder. As part of an inquiry on disinformation conducted by the Digital, Culture, Media and Sport Committee of the House of Commons of the Parliament of the United Kingdom in 2018, an International Grand Committee on Disinformation and ‘Fake News’ (IGC) was established, following recognition of the common interests of many nations in addressing the challenges posed by information disorder. Members of the Australian Parliament’s Joint Standing Committee on Electoral Matters (JSCEM)  attended the third meeting of the ICG in Dublin in November 2019, as this Interim Report of the JSCEM outlines. Owing to the global reach of social media and internet companies, these issues require cooperation amongst the international community. However, given the potential risks posed by information disorder, Australia should be prepared to innovate if necessary so as to ensure the problem does not remain unchecked.

5. Conclusion

That our representatives are to be ‘directly chosen’ by the people, who they are responsible to, should be regarded as a key tenet of the Australian Constitution. While the states have their own Constitutions, it is for the most part, difficult to separate the political culture of the states and territories from the overarching national one. As the now Justice Stephen Gageler once wrote, albeit in another context, ‘it is the same people and the same Crown who constitute the Commonwealth and the States’. In a system where so much faith has been placed in majoritarian democracy, it is crucial that the Australian people continue to believe that their governments are accountable to them. As the pandemic has shown, public trust in government and its institutions is a key component of an effective crisis response. Existing perceptions that governments are lacking in integrity are likely to be exacerbated in an atmosphere where people are losing trust in the media and also unable to believe what they see on social media, or on the other hand, being misled or manipulated by it. Consequently, these problems are part of the overarching challenge of maintaining the legitimacy of the Australian system of government. If this primary challenge is not met, the next large scale crisis might be much harder to manage.

Thank you to Elisabeth Perham and Zsofia Korosy for their very helpful comments and other editorial assistance on this post.

Lynsey Blayden has lectured in Administrative and Federal Constitutional Law at UNSW, where she completed a PhD in 2020.

Suggested citation: Lynsey Blayden, ‘The Pandemic and the Public Trust’ on AUSPUBLAW (04 November 2020) <https://auspublaw.org/2020/11/the-pandemic-and-the-public-trust>