(Image: Private Media)

According to polling published in the Guardian Australia, 76% of Australians want Prime Minister Scott Morrison to tell Craig Kelly to shut up.

His refusal to do so is a defining failure of leadership and morality. That’s obvious. My question is whether it may also have legal consequences: could his government become liable for the resulting public harm?

Kelly, a backbencher who holds his seat only because Morrison and Malcolm Turnbull before him pre-empted the preselection processes that would have removed him as the Liberal Party candidate two elections ago, is politically powerful and a dangerous idiot.

Starting out as just an irritatingly stupid climate change denier — your run of the mill Coalition backbench fathead — Kelly has morphed regressively into a Pete Evans-level conspiracy theorist. On COVID-19, he is a public menace, spouting deeply dangerous rubbish about vaccines and miracle cures.

Asked squarely to publicly repudiate Kelly’s crap, Morrison plays the “free speech” card which the Coalition uses casually to excuse racism, misogyny, homophobia and George Christensen’s existence.

It is legally and ethically specious, as Morrison knows, but the charge of hypocrisy worries him not a bit. His ministers have fallen into the same line, making it clear that Kelly will remain free to sell snake oil to the gullible on Facebook.

By contrast, Turnbull has come out strongly, insisting that Morrison and his ministers “should be saying, at the very least, that Craig Kelly is wrong and that it is reckless and irresponsible to be misleading the Australian public on matters of public health”.

That’s interesting, partly as an example of the limitless courage of Turnbull’s convictions since his release from captivity, but also because Turnbull always chooses his words with care. There is some legal weight in his terminology, I think.

Here’s my theory: as a basic proposition, governments owe their citizens a duty of care. Whatever its outer boundaries, it certainly includes the duty to not wilfully, recklessly or negligently cause them harm. If Morrison’s RAAF jet crash-landed in your backyard because he was pretending to fly it for a photo op, the government would be liable.

While Morrison has successfully avoided responsibility for almost everything to do with COVID-19, including (spectacularly) quarantine, which the constitution explicitly says is his problem, he was never going to be able to shift the vaccination issue on to the states. Nor can his government escape exposure to liability if it spreads harmful misinformation about the treatment of the disease.

The first thing the lawyers would say is that Kelly is not part of the federal government. The executive government, legally speaking, comprises the governor-general, the ministers he appoints and the public service. Backbench MPs of the ruling party are free agents with no executive power or accountability. Therefore it doesn’t matter what Kelly says in the exercise of his freedom to be publicly insane.

That, so far as it goes, is true. However, negligence can be just as easily perpetrated by omission as it can by action. Failure to act — to repair a road, enforce a law, listen to the science — can amount to a breach of the government’s duty of care, leaving it open to suit for the consequences.

If you think about Kelly as a force of nature, like a large mountain of cretaceous sludge that is threatening to topple on to an unsuspecting village in the valley below, then the legal leap is not high.

He is out there now, a known and present danger to public health. The populace is not to be concerned with fine constitutional distinctions of whether he speaks officially or just as an itinerant clown; he is a member of parliament with the accompanying platform.

In its refusal to silence or even contradict Kelly’s claims, the government can fairly be accused of endorsing them or, at the very least, clothing them with the imprimatur of arguable validity. By not saying that he is full of shit, it is saying that he may have a point.

Placed in the context of a pandemic, the apotheosis of a public health crisis in which the government has invoked all of its extreme powers under the Biosecurity Act, it is not just staggering from an ethical perspective that Morrison should be allowing our country’s survival of COVID-19 to be literally imperilled by the rantings of a backbench lunatic.

Kelly’s handiwork is going to do real harm, measurable in deaths, illnesses and economic loss. Because of its negligent failure to prevent that harm, the government could be on the hook for the lot.

Peter Fray

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Peter Fray
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