Emergency Measures and the Rule of Law

Although we cannot predict what the Australian High Court might do if it were called upon to consider the constitutionality of vaccination orders and emergency declaration directions, it is still possible to determine what it should do. In such circumstance, the court, in assessing the constitutionality of these controversial measures, should consider that the primary purpose of a written constitution based on the principles of representative government is the establishment of a system of checks and balances capable of restricting arbitrary power and ensuring the realisation of the rule of law.

Australian governments should act within, and in conformity with, this specific legal-institutional framework, which enshrines a legal tradition of constitutionalism and the rule of law. In this context, John Locke argued that “the end of law is not to abolish or restrain, but to preserve and enlarge freedom”.[1] As such, when any law ceases to serve this basic objective, then such a law must be amended or repealed. Bearing this in mind, John Fortescue, Chancellor to King Henry VI and Chief Justice of the King’s Bench, stated:

Law is necessarily adjudged cruel if it increases servitude and diminishes freedom, for which human nature always craves. For servitude was introduced by men for vicious purposes. But freedom was instilled into human nature by God. Hence freedom taken away from men always desires to return, as is always the case when natural liberty is denied. So he who does not favour liberty is to be deemed impious and cruel.[2]

 

Government under the ‘Rule of Law’

An underlying theme in legal philosophy is the notion that the rule of law provides at least part of the solution to the problem of arbitrariness.^[3] On this view, the rule of law operates as an umbrella concept for legal-institutional mechanisms that protect us against the arbitrary power of the state. As aptly remarked by Owen Hood Phillips, who was emeritus professor of jurisprudence and public law at the University of Birmingham, “historically, the phrase rule of law was used with reference to a belief in the existence of law possessing higher authority—whether divine or natural—than that of the law promulgated by human rulers which imposed limits on their power”.^[4]

In contemporary debates the phrase is directly related to an aspirational desire of legality, or what the law ought to be. Trevor Allan, professor of public law and jurisprudence at Cambridge University, explains that the rule of law encompasses “traditional ideas about individual liberty and natural justice and, more generally, ideas about the requirements of justice and fairness in the relations between governors and governed”.^[5]

In a rule-of-law system, our fundamental rights must be protected by an independent judiciary with enough courage and authority, exercising judicial review, “to invalidate legislation if necessary”.^[6] As a result, the concept encompasses the realisation of “constitutional justice”, meaning that “the law is to constitute a bulwark between governors and governed, shielding the individual from hostile discrimination on the part of those with political power”.^[7] Professor Allan concludes:

In the mouth of a British constitutional lawyer, the term “rule of law” seems to mean primarily a corpus of basic principles and values, which, together, lend some stability and coherence to the legal order. It expresses his commitment to a scheme of ideas regarded as legally fundamental. They help to define the nature of the constitution, reflecting constitutional history and generating expectations about the conduct and character of modern government … Allegiance to the “rule of law” is not, therefore, a technical (or even “lawyerly”) commitment; it is necessarily allegiance to a political philosophy—albeit a practical philosophy grounded in existing constitutional tradition.^[8]

In this sense, the concept of the rule of law cannot be dissociated from the moral tradition of the community. Hence, as so eloquently stated by Friedrich Hayek in The Constitution of Liberty:

From the fact that the “rule of law” is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator … The “rule of law” is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy, this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestionably accepted by the majority. It is this fact that makes so very ominous the persistent attacks on the principle of the “rule of law” … But if it is represented as an impracticable and even undesirable ideal and people cease to strive for its realization, it will rapidly disappear. Such a society will quickly relapse into a state of arbitrary tyranny.[9]

Unfortunately, this understanding of the rule of law is gradually becoming obsolete and compromised by “progressive” ideas that incorporate a myriad of statist considerations which seriously disregard the liberal-democratic legal traditions upon which Australia was once founded. Consequently, the level of general confidence in this ideal of legality is demonstrably declining, although, in the long run, as noted by the late Philip Selznick, the rule of law can only be preserved by means of:

a culture of lawfulness, that is, of routine respect, self-restraint, and deference … Furthermore, the “rule of law” requires public confidence in its premises as well as in its virtues. The premises include a dim but powerful understanding that positive law is always subject to correlation by standards of truth and justice. In a rule-of-law culture, positive law does not have the last word.^[10]

Selznick’s assertion that “the ‘rule of law’ requires public confidence in its premises as well as in its virtues” is apposite to a discussion of the constitutionality of mandatory vaccination orders in Australia. But, before discussing this issue, it is necessary to review the relationship of the rule of law to the concept of constitutionalism in Australia.

 

The ‘rule of law’ in Australia: understanding ‘constitutionalism’

Like the traditional view or perception of the rule of law, the concept of constitutionalism implies a system of constitutional government that involves separation of powers and, accordingly, limitation of the state’s arbitrary power. In this sense, it would be erroneous to employ the term “constitutional government” with reference to arbitrary government, or an elected dictatorship.

Commenting on constitutionalism, Suri Ratnapala, emeritus professor at the University of Queensland, states: 

A Constitution in the [traditional] sense is a constitution of a particular type. It limits the powers of rulers by subordinating them to enduring rules that they themselves cannot abrogate. Such a constitution is inextricably associated with the ideal of the “rule of law”, which seeks to ensure that people are not at the mercy of the momentary will of a ruler or a ruling group, but enjoy stability of life, liberty and property.^[11]

The liberal legal tradition of constitutionalism, or “constitutional government”, laid the basis for representative democracy and the constitutional protection of citizens against arbitrary power. Under this tradition, to be under the law presupposes the existence of constitutional rules and principles serving as an effective check on government. As stated by Professor C.L. Ten:

Constitutionalism and the “rule of law” are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism usually refers to specific constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly constitutive of a liberal democratic system of government … The requirements of constitutionalism are derived from a political morality which seeks to promote individual rights and freedoms, and not directly from values that are supposed to be implicit in the very idea of [positive] law itself.^[12]

The requirements of constitutional government are directly associated with Australia’s liberal-democratic traditions of government under the law, which seek to provide effective protection to individual rights and freedoms. It is entirely reasonable to assume that any legislative command which directly violates these fundamental freedoms is not law properly so called. In Nationwide News Pty Ltd v Wills, Justice Brennan explicitly stated: “Where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of government.”^[13] In other words, once it is judicially recognised that a system of representative democracy is constitutionally prescribed, then the preservation of these fundamental rights and freedoms is “essential to sustain it as firmly entrenched in the Constitution as the system of government which the Constitution explicitly ordains”.^[14]

This is why it is self-evident that Australians are endowed with important constitutional protections which are directly derived from the notion espoused by the High Court that we are a free society governed in accordance with the principles of democratic parliamentary government. A failure to protect this essential characteristic of our constitutional framework would transform the Australian Constitution into a less reliable document when it comes to restricting arbitrary power and ensuring the operation of constitutional government. Giovanni Sartori, an Italian political scientist, would properly describe such a constitution as no more than a “façade”.^[15]

 

The Legality of Emergency Powers

When governments fail to adhere to the rule of law, power rests not on objective standards but on the will of those who are in power.^[16] Rulers who disregard the rule of law do not exercise power per leges (by law) but only sub leges (under the law).[17] In this context, “law is transformed into an instrument for repression or at least top-down direction of subjects, and nothing more”.^[18] When this occurs, “law” becomes no more than a “vehicle (and at times equally useful camouflage) for the exercise of unrestrained power”.^[19]

Since March 2020, Australians have watched their governments use a broad range of extra-constitutional powers to control almost every aspect of their lives. These governments have acquired “emergency” powers that entitle public officials to detain citizens, search their premises without a warrant, close state borders, preventing even their own citizens from returning to their homes, and force entire populations into lockdowns deemed necessary to protect the “public health”. With the financial support (and enablement) of their federal counterpart, the state premiers often express a desire to extend these powers for a further period. The desire to extend emergency powers appears to confirm the worst fears of the Austrian-British economist and philosopher Friedrich Hayek. In Law, Legislation and Liberty (1981), this Nobel laureate commented that emergency powers always seem to become more permanent:

The conditions under which such emergency powers may be granted without creating the danger that they will be retained when the absolute necessity has passed are among the most difficult and important points a constitution must decide on. “Emergencies” have always been the pretext on which the safeguards of individual liberty have been eroded—and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.^[20]

In Germany in the 1930s the Nazi government also turned temporary emergency powers into permanent measures. What the Australian political class is presently doing is, quite frankly, strikingly similar. This is evidenced by the constant renewal of emergency powers that violate the rule of law and disregard the elementary rights of the citizen.

It is particularly important in this context to be reminded of how dictatorial regimes are normally brought into existence. There is always an “emergency” which can be used to justify the violation of fundamental rights. Of course, we are not comparing the current use of emergency powers in Australia with the use that was made of similar instruments in the 1930s in Germany. However, we argue that such instruments of extraordinary power have always facilitated the suppression of fundamental rights, while dramatically increasing the power of the state.

A brief elaboration of the events in Germany in the 1930s is instructive. When a new German leader was appointed Chancellor, on January 30, 1933, the consolidation of the new regime was in no way assured. To add more legitimacy, the masses needed to be convinced of the necessity (and legality) of measures that provided justification for further concentration of powers. Initially, the new regime took a strong interest in preserving the facade of legality. When emergency powers were enacted, in March 1933, handing extraordinary powers to the government for four years, everything appeared to have been done under the appearance of perfect legality. After all, the legal profession considered these measures perfectly legal, rationalising that the use of emergency powers had been legally authorised by a two-thirds majority in the Reichstag (German Parliament) as required by Article 76 of the Constitution of the German Empire of August 17, 1919 (Weimar Constitution).

The main characteristic of German lawyers who provided legitimacy to the Nazi regime was their adherence to narrow legal positivism. They rationalised that, if government acquires its emergency powers in a legal manner, then the rule of law somehow would not be violated and whatever the government did was perfectly valid.^[21] Those lawyers basically acted as apologists for an oppressive regime that claimed to be primarily concerned with the “health of the German community”.^[22] After all, the German dictator once stated: “The health of the German nation is more important than the letter of the law.”^[23] As a consequence, the re-enactment of emergency powers in 1937, 1939 and 1943 resulted in “a schizophrenic combination of legal formalism with ruthless violence and basic contempt for the rule of law”.^[24]

Ironically, the more those lawyers made efforts to legitimise the regime, the greater the contempt the Nazi leadership displayed towards them. Under Article 48 of the Weimar Constitution, the President could rule by decree with the aid of armed force “if public safety and order” were “seriously disturbed or threatened within the German Reich” and to that effect he could “temporarily suspend in whole or in part the fundamental rights” enumerated in the Constitution.^[25] As noted by the German jurist Carl Schmitt, in his influential Political Theology (1922):

Once this state of emergency has been declared … the decision exempts the political authority from any normative restraint and renders it absolute in the true sense of the word. In a state of emergency, the constituted authority suspends the law on the basis of the right to protect its own existence. ^[26]

In February 1933, President Hindenburg appealed to “emergency” to sign a bill that suspended constitutional rights, thus granting the national cabinet authority to issue any directive it deemed necessary for the protection of the people.^[27] What followed was the suspension of constitutional rights “until further notice”.^[28] Such “further notice” did not occur until May 8, 1945, when these emergency powers were finally cancelled by the military intervention of the Allies.

Ultimately, the rise of totalitarianism in the 1930s in Europe cannot be considered an isolated fact, as some sort of accident. In those days, Germans were quite willing, even anxious, to be protected by a powerful government. They willingly renounced their freedoms and preferred to be ruled by a government that was powerful enough to “protect” them from any real or imaginary threat. They paid an extremely heavy price for that willingness. Their trusted political rulers led the nation to a disastrous military conflict at the cost of 75 million deaths. Germany alone sustained 8 million losses, including 3 million civilians who died through massacres, executions, mass-bombings, disease and starvation.^[29]

Obviously, it would be preposterous to assert that Australia is facing a similar fate. However, it can be stated confidently that the use of emergency powers certainly facilitates the abuse of power and arbitrary measures that can profoundly undermine the rule of law and become more permanent over time.

Australian governments are enacting measures that consolidate statism and allow informers to assist authorities in tracing and incarcerating people without warrants on the grounds of prospective conduct. Anyone in this country now can be arrested when the public authority assumes that they have failed to comply with health orders. As such, basic legal principles inherited from the common law and our tradition of constitutional government (including due process and recourse to the writ of habeas corpus) have been undermined. 

Australians have watched their elected representatives use a broad range of extra-constitutional measures. These politicians appeal to “emergency” to impose draconian rules that deeply affect the enjoyment of fundamental rights. Under this context, governments can detain citizens who refuse or fail to comply with their orders.^[30] They will be detained by the authorities and no legal remedy will be made available. As Ian Hanke pointed out:

These extraordinary powers are arbitrary and extreme. They are a draconian attack on civil liberties the like of which Australia has never seen before. Further, because all laws are overridden there would appear to be little recourse to any excesses by an authorised officer or their civilians co-opted by them. These laws are so broad and ill-defined that you could be detained for almost anything.^[31]

In an article published in Quadrant Online on August 20, 2021, Jeremy Bray describes these unfortunate developments:

We are now at the point in the process where the Army has been brought in to conduct surveillance and enforce compliance. The police are shooting at demonstrators with tear-gas, pepper spray and non-lethal but very painful plastic bullets, and government voices have approved discrimination on the basis of vaccination-status—nothing less than a system of medical apartheid. What started as “two weeks to stop the spread” has morphed into a violently repressive and discriminatory police state, with no end in sight.

And it is disheartening to observe so many Australians happily patronising and speaking down to their fellow citizens. As noted by Chris Kenny, “some of the worst aspects of our society have come to the fore through panic buying, hysterical reporting dependency and, from some, a masochistic desire to take orders”.^[32] This reminds us of Benjamin Franklin, a leading figure of early American history, who once said: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”^[33] He was urging his compatriots to not give up of their basic rights in exchange for a false sense of security. After all, as Gerald Ford famously stated: “A government big enough to give you everything you want, is strong enough to take everything you have.”

 

Mandatory vaccination orders: a constitutional exploration

The Australian Constitution must be interpreted in a manner that promotes its purposes, values and principles, advancing the rule of law and the fundamental rights of the citizen. To implement the rule of law and constitutionalism, the Australian Constitution expressly limits the exercise of governmental powers. In drafting the Constitution, the framers deliberately sought to design an instrument of government intended to distribute and limit the powers of the state.

This distribution and limitation of governmental powers was intentionally chosen because of the proper understanding that unrestrained power is always inimical to the achievement of human freedom and happiness. Murray Gleeson, a former Chief Justice of the High Court, describes the Constitution’s feature of express limitation on governmental powers as follows:

 … no one is above the law. Thus government officials must exercise their powers according to law. If they do not then, in the last resort, the High Court may order them to do so. The Constitution … itself declares that the government must obey the law, and gives the High Court the jurisdiction to compel such obedience. That jurisdiction cannot be removed or modified except by constitutional amendment. Parliament, if acting within the limits of the powers assigned to it by the Constitution, may change the law. But the executive government must obey the law.[34]

Accordingly, the Constitution allocates the areas of legislative power to the Commonwealth primarily in sections 51 and 52, with these powers being variously exclusive or concurrent with the states. The Constitution was amended in a referendum in 1946 to include section 51(xxiiiA). This provision determines that the Commonwealth parliament can make laws with respect to: “The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.”

This provision allows for the granting of various services by the federal government but not to the extent of authorising any form of civil conscription.^[35] The concept of “civil conscription” was first considered by the High Court in 1949 in British Medical Association v Commonwealth.^[36] Legislation which required that medical practitioners use a particular Commonwealth prescription form as part of a scheme to provide pharmaceutical benefits was declared invalid as a form of civil conscription. In the opinion of Chief Justice Latham, civil conscription included not only legal compulsion to engage in specific conduct, but also the imposition of a duty to perform work in a particular way. Justice Williams, in his judgment, stated that “the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical service” (emphasis added).^[37]

The idea that constitutional provisions protect fundamental legal rights plays a prominent role in the understanding of these express limitations and, indeed, of the implied constitutional limitations derived from them. Accordingly, the “no conscription” requirement to be found in s. 51(xxiiA) amounts to an express limitation on mandating the provision of medical services, for example compulsory vaccination, which remains governed by the contractual relationship between patients and doctors. Hence, as s. 51(xxiiA) expressly “invalidates all legislation which compels medical practitioners … to provide any form of medical service”, this constitutional provision could thus also be regarded as an implied constitutional right of individual patients to refuse vaccinations. Subject to the validity of this conclusion, which is based on the existence of an implied constitutional limitation in s. 51(xxiiA), even state legislatures could not mandate the vaccination of their citizens against Covid without violating the Constitution.

Hence, if the medical profession were directed by the federal government to mandatorily vaccinate people, such direction would constitute an unconstitutional civil conscription. Such direction would interfere with the relationship between the doctor and the patient—a relationship based on contract and trust. Justice Webb explicitly mentioned:

When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription.” ^[38]

Justice Webb’s statement indicates that no citizen shall be in any way coerced into any medical treatment whatsoever, including vaccination. A medical treatment which is imposed upon a person without his or her informed consent is a trespass upon that person. In Bowater v Rowley Regis Corp, Lord Justice Scott explains what is required for consent to have been given:

… a man cannot be said to be truly “willing” unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but in the absence from his mind of any feeling of restraint so that nothing shall interfere with the freedom of his will.[39]

In 2009, in Wong v Commonwealth; Selim v Professional Services Review Committee,^[40] Chief Justice French and Justice Gummow held that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services”.^[41] Justice Kirby opined that the purpose of prohibiting such conscription was to ensure that the relationship between medical practitioner and patient was governed by contract where that is the intention of the parties. For him the test whether civil conscription has been imposed is “whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of medical and dental services and the individual recipients of such services”.^[42]

This view is supported by the Nuremberg Code—an ethics code—relied upon during the Nazi doctors’ trials in Nuremberg in 1947. This code has as its first principle the willingness and informed consent by the individual to receive medical treatment or to participate in an experiment. This principle, in its relevant part, reads as follows:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

Recently it has been argued in an AAP FactCheck that an attempt “to apply the code to COVID-19 vaccines is incorrect and misleading”.[43] It notes that the Nuremberg Code only addresses human medical experimentation and does not apply to “approved vaccines”. However, the FastCheck analysis turns on the fact that Covid vaccines do not involve human experimentation, but instead have been approved—in Australia by the Therapeutic Goods Administration—for emergency use. It is precisely the experimental nature of the vaccines and the widespread disagreement about the capacity of vaccines to provide protection against the virus that is responsible for the lack of confidence in their effectiveness. Indeed, in a climate of uncertainty, characterised by a demonstrable lack of confidence, as is amply demonstrated by the vaccine hesitancy in Australia, a program of mandatory vaccination cannot be regarded as consensual. The unvaccinated, in relying on health implications for the purpose of refusing the vaccine, may thus ironically invoke the same argument used by proponents of vaccinations, who also rely on health grounds to promote the vaccine.

Hence, people’s refusal to be vaccinated may be based on the ground that the Covid vaccines are still experimental and their long-term effects and safety on its recipients are largely unknown. Indeed, the rule of law would be undermined if vaccination were mandated in circumstances where constant government changes undermined the confidence of people in the efficient administration of the vaccine roll-out and the effectiveness of the vaccines. In this context, Dr Rocco Loiacono states:

For any government either by itself or via corporate proxy to attempt to mandate vaccines in circumstances where there has not been adequate testing and analysis of risks as well as benefits would constitute not only a violation of the principle of informed consent … but a violation of Australia’s obligations under international law with respect to medical experimentation.[44]

Nevertheless, Australian chief medical officers and their political handlers have embarked on a campaign to cajole people to vaccinate and attempted to rehabilitate the AstraZeneca vaccine as a suitable Covid jab. The debate on the suitability of the AstraZeneca vaccine provides a good explanation for the demonstrable lack of confidence in the effectiveness of Covid vaccines in Australia.

The AstraZeneca vaccine, unlike Pfizer and Moderna, is a Genetically Modified Organism (GMO) and is a chimpanzee adenovirus. However, this fact does not appear to be mentioned on the Vaccination Fact Sheet produced by the Department of Health. The AstraZeneca vaccine lost much of its reputational shine when the media disclosed that several deaths from blood clots had occurred after the deceased had received this vaccine. This blood clotting involves a thrombosis with thrombocytopenia syndrome. The campaigners point out that the risk of blood clotting is only one out of 250,000 AstraZeneca jabs, whereas it is one out of 1000 for women of child-bearing age who take the contraceptive pill. Thus, the rate of blood clotting from AstraZeneca compares favourably with the rate of blood clotting from the contraceptive pill. Professor Adam Taylor concludes that:

While there is a small risk of clotting in some individuals who take the AstraZeneca vaccine, this clotting risk is much less than with many other things, including contraceptive pills—and significantly less than the risk of clotting after a COVID-19 infection.[45]

The question should be asked why people distrust AstraZeneca but not the contraceptive pill. An answer may be that many people, especially seniors, have come to believe that there is a more suitable, and possibly better vaccine available, namely Pfizer and Moderna. Although these vaccines, like any other vaccines, also have possible side effects, they do not seem to engender the blood clotting problems of the AstraZeneca vaccine.

More importantly, a comparison between the blood clotting side effects of AstraZeneca and the contraceptive pill involves the making of a logical error. The error lies in comparing two treatments which are not comparable: one is a vaccine, the other is a pill, used for entirely different purposes. But in the case of vaccines, since they are used for the same purpose of inoculating people against the Covid virus, it is possible to compare the three available vaccines. Surely, the lack of confidence would not exist if the AstraZeneca vaccine were the only available vaccine.

Hence, many people regard Pfizer (or other mRNA vaccines) as the gold standard in the Covid jungle. Nevertheless, Rocco Loiacono reports: “Data from the Israeli Minister of Health released on July 22 declared that the effectiveness of the Pfizer … vaccine at preventing COVID-19 has plummeted from 90 percent to only 39 percent, coinciding with the spread of the Delta variant in the country.”[46]

One of the most frustrating things surrounding the contentious vaccine debate is the existence of many different and inconsistent opinions and advice. A person may be told by one specialist doctor that AstraZeneca is a potentially unsafe vaccine, compared with the Pfizer or Moderna vaccines. Other professionals may point to the negligible risk of taking the AstraZeneca jab compared with its huge potential benefits. If the medical advice is not consistently conveyed by the medical fraternity, it is no wonder that people lose confidence in the effectiveness of these vaccines and exhibit vaccine hesitancy. Also, it does not help that the shambolic rollout of the vaccines in Australia is a textbook example of how it should not be done. The damage to the rule of law caused by this lack of confidence is palpable and results in it losing its characteristic of stability.

This lack of confidence is exacerbated when one considers the standards that vaccines should exhibit but fail to meet. There are at least five medical requirements that need to be met: (i) the vaccine must result in a measurable reduction in the number of sick people afflicted with the Covid virus, (ii) the vaccine must be capable of protecting recipients for a significant time, thereby possibly avoiding booster shots, (iii) the vaccine should have few negative side effects, (iv) the vaccine must be effective against newer variants of the virus, and (v) the vaccine must substantially reduce transmission rates. Then there are four logistical requirements: (i) the vaccine can be produced at low cost, (ii) it can be produced quickly on the required scale, (iii) it can be efficiently distributed, and (iv) it is easy to administer. Perhaps the most important, and final, requirement is that the public, medical professionals and politicians trust the vaccine.

Obviously, the vaccines on offer do not meet this final requirement of trust. Although trust is often based on a misperception, a rational discussion just might save the reputation of the vaccination campaign. But right now, even members of the medical fraternity are bewildered and do not know what to think; they disagree with regards to the advice they give their patients. Of course, it is possible, perhaps even likely, that non-government organisations and private companies might require their employees to be vaccinated. Qantas even has gone to the extreme of offering inducements to frequent flyers who are fully vaccinated, offering discount vouchers and an opportunity to win valuable prizes.

The governmental response to the spread of the virus certainly struck a blow at democracy by undermining the rule of law and confidence that people have in the vaccination process. It has also fatally compromised the rights and freedoms of people and devastated the economies of the free world. In such an environment, it is no wonder that people have come to distrust the proposed remedy to the problem of Covid infection, the origins of which are still totally obscured.

Nevertheless, the undermining of the “rule of law”, resulting in egregious violations of the civil rights of citizens, sits uncomfortably with the jurisprudence of the High Court. This jurisprudence indicates that the prohibition of civil conscription must be construed widely to invalidate any law which, directly or indirectly, mandates compulsory vaccinations. Above all, if governments cannot constitutionally force everyone to be vaccinated, they certainly cannot indirectly create a situation whereby everybody would be forced to take the vaccine. This point is also addressed in a comment of Justice Webb in British Medical Association v Commonwealth:

If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance. [emphasis added]^[47]

Furthermore, compulsory vaccination adversely affects the democratic principle of equality before the law. If unvaccinated Australians were to face serious restrictions of rights and freedoms—as suggested by medical officers, the Prime Minister and state Premiers—these restrictions would violate the democratic principle of equality before the law. Accordingly, in Leeth v Commonwealth,^[48] Justice Deane and Justice Toohey referred to the Preamble to the Constitution to support their view that the principle of equality is implicitly embedded in the Constitution. They argued that “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government”.^[49]

The deliberate exclusion of unvaccinated Australian citizens from participation in certain activities discriminates against them on the ground of vaccine status. Of course, vaccine status is not one of the accepted grounds in any anti-discrimination legislation and, therefore, it would be possible for governments to defeat a claim that compulsory vaccination violates the anti-discrimination principle. However, reliance on vaccine status would still create an apartheid-type situation since benefits would be conferred and burdens imposed on this ground. But, more importantly, the making of coercive statements to force people to get vaccinated would effectively amount to an indirect form of mandatory vaccination, the constitutionality of which is doubtful at best. Indeed, from a constitutional point of view, the jurisprudence of the High Court indicates that what cannot be done directly, cannot be achieved indirectly without violating s. 51 of the Constitution.

Finally, it is worth approaching the matter from the perspective of the dignity and privacy of individuals. Governments should avoid relying on the parens patriae doctrine according to which government will decide what is good for people: it would be a textbook example of the operation of the Nanny State that removes any sense of individual responsibility (and human dignity). In fact, such a governmental approach violates international human rights law; it certainly contradicts the United Nations Universal Declaration of Human Rights. When she summed up the attitude of the framers, Eleanor Roosevelt explained that this historic piece of international legislation was based on the expectation that everyone must have freedom in which to individually develop their “full stature and through common effort to raise the level of human dignity”.[50]

There is a danger of excessive state paternalism when citizens are not allowed to make personal decisions about their own medical treatment, including the decision of whether to take a Covid vaccine. This was highlighted in Airdale National Health Service Trust v Bland, when Lord Justice Mustill expounded on this danger with the following clarity:

If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue.[51]

 

The “Rule of Law’ and Civil Disobedience

It is important to consider that the requirements of democratic government are directly derived from our liberal-democratic traditions of government under the law, which seek to promote the protection of individual rights and freedoms. As stated by Justice Gaudron in Australian Capital Television Ltd v Commonwealth (1992), “the notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and … freedom of speech generally”.[52]

When a legitimate form of representative parliamentary government is constitutionally established, such government “hath no other end but the preservation of these rights, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects”.^[53] Accordingly, the establishment of democratic government is an artefact conceived for a purpose. John Locke was patently clear: our most fundamental rights are independent of, and antecedent to, the formation of government. If we let ourselves to be excessively controlled by government, then we are essentially sacrificing our own sense of dignity and basically become enslaved. As noted by Locke in his chapter titled “On Slavery”:

This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his preservation and life together: for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another.^[54]

Since the primary purpose of representative democracy is the preservation of fundamental rights and freedoms, one must conclude that citizens have a lawful right to resist measures that grossly violate the enjoyment of these basic rights and freedoms. Accordingly, it is entirely reasonable to assume that any command by the state which directly violates these rights and freedoms is not law properly so called and certainly is not valid law from this constitutional perspective. In Nationwide News Pty Ltd v Wills (1992), Justice Brennan said: “where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of government”.[55] In other words, once it is judicially recognised that a representative democracy is constitutionally prescribed, then the preservation of fundamental rights and freedoms is “essential to sustain it as firmly entrenched in the Constitution as the system of government which the Constitution explicitly ordains”.[56]

It is also important to consider that, to defeat a virus which is potentially deadly to those who are very old or very sick, politicians have acquired far-reaching powers to impose draconian measures that have caused millions of Australians to endure stressful and traumatic situations, including home confinement, job losses, financial ruin and a host of mental and physical illnesses and challenges. These measures are oppressive, having an enormously deleterious effect on the rule of law and the enjoyment of fundamental freedoms, including freedom of association, movement, expression and privacy.

Indeed, the right to disobey government directives that violate these fundamental freedoms constitutes an old tradition in Western legal-political philosophy. A sound doctrine of resistance to arbitrary government was developed in the seventeenth century by Samuel Rutherford. In Lex Rex he explained that a political power whenever used to oppress is not a lawful power but, instead, “a licentious deviation of a lawful power”.^[57] These views were shared by St Thomas Aquinas, whose analysis amounts to “a prescription for limited government, providing a rational basis on which to affirm that there are limits to what the state can rightly do”. Aquinas’s insistence that the power of the human law be limited implies a “right” of the person not to be subjected to an unjust law.^[58] According to Aquinas, “man is bound to obey secular rulers in so far as this is required by the order of justice”. Therefore if the political ruler “commands what is unjust, his subjects are not bound to obey him, except perhaps accidentally in order to avoid scandal or danger”.^[59] Ultimately, Aquinas commented:

If it is a people’s right to provide itself with a political ruler, and if that ruler tyrannically abuses the power, there is no injustice if the community deposes or checks him whom they have raised to the government nor can it be charged with a breach of faith for abandoning a tyrant, even if the people had previously bound themselves to him; because, by not faithfully conducting himself in government as the public office demands, he has brought it on himself if his subjects renounce their bargain with him.^[60]

John Locke, who played a fundamental role in the development of constitutionalism, established that no government has legitimacy to undermine inalienable rights to life, liberty and property. As Locke put it:

Whenever the legislators endeavour to take away and destroy the property of the people [that is, their basic rights to life, liberty, and property], or to reduce them to slavery under arbitrary power, they put themselves into a state or war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.^[61]

The American Founders relied on Locke’s phraseology to draft their 1776 Declaration of Independence, which evokes a “long train of abuses” and the “consent of the governed” as the primary basis for resistance against arbitrary government. Drawing heavily from Locke’s philosophy, the Declaration assumes the pre-eminence of the “Law of Nature” which prohibits government from violating our inalienable rights. That same Declaration concludes that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government”.

The practice of civil disobedience can be described as the violation of unjust legislation promulgated by the recognised governmental authority. The International Covenant on Civil and Political Rights does not mention civil disobedience as a potential right to resist governmental oppression, although it could be reasonably argued that some acts of disobedience are effectively protected by Articles 18 and 19 of that international legal instrument. Under its Article 19, “everyone shall have the right to freedom of expression”. And as stated by Article 18, “everyone shall have the right to freedom of thought, conscience and religion”.

In an essay on civil disobedience, Professor Gabriël Moens argues that civil disobedience becomes an option:

when the normal channels of social change do not function properly anymore or whenever serious grievances are not heard … a system does not function adequately anymore when some groups have entrenched power positions in society and use their power to impose their will on weaker or vulnerable classes of people.[62]

It is possible, therefore, to argue that citizens are morally justified to disobey legislative commands that are incompatible with well-known principles of the rule of law which are also derived from our traditions of constitutional government. Assume, for example, that the people find themselves in the uncomfortable situation of having to break a law to preserve their fundamental legal rights. In such a situation, the need of government to respect our freedoms of association, movement, speech and thought implies a natural right to breach rules which are inconsistent with the ordinary exercise of these freedoms.

Civil disobedience may therefore manifest itself as a valid means to lawfully disobey arbitrary directives that constitute an intolerable violation of our fundamental rights. Although such acts of civil disobedience should be non-violent, we must never ignore the fact that oppressive measures that result in gross violation of fundamental rights are themselves subtle forms of violence. And since people are more naturally inclined to disobey rules with which they personally disagree, any recourse to civil disobedience should always be balanced against the important principle of regular obedience to validly enacted laws.

It goes without saying that a political system does not function adequately when some privileged groups become an entrenched oligarchy that imposes arbitrary or voluntaristic measures on the more vulnerable members of society. Whenever the normal channels of societal change have ceased to function properly, and serious grievances by the people are not satisfied by the entrenched ruling class, civil disobedience then often becomes a morally valid and more effective way to alter the undesired status quo. As a strong medicine to render the political establishment more responsive to popular grievances, reliance on civil disobedience requires a long sequence of human rights abuses and should be followed by popular mobilisation and widespread community support.

 

Final Considerations

The Australian Constitution must always be interpreted in a manner that promotes its purposes, values and principles, advancing the rule of law and the fundamental rights and freedoms of the citizen. That being the case, because one of its provisions explicitly prohibits any form of compulsion subjecting citizens to medical or pharmaceutical services, including mandatory vaccination, any legislation that requires compulsory vaccination, either directly or indirectly, constitutes a form of civil conscription that is constitutionally invalid.

Similarly, indirectly forcing vaccination under threat of losing rights is not voluntary consent. When a citizen’s enjoyment of rights become limited as a punishment for refusal, the consent is made under duress and is in effect a form of constitutionally invalid coercion. If governments cannot force something that is unconstitutional, such as forcing everyone to be vaccinated, they “cannot lawfully do it indirectly by creating a situation … in which the individual is left no real choice but compliance”.^[63]

More fundamentally, it is entirely self-evident to us that Australians are endowed with some important constitutional protections as derived from the notion exposed by the High Court of “a free society governed in accordance with the principles of representative parliamentary democracy [that] entail freedom of movement, freedom of association and freedom of speech”.[64] If this is so, then the people of this country have a right to struggle for the preservation of the legal-institutional framework by lawfully resisting governmental measures that fundamentally violate their individual rights and freedoms, including lockdowns.

An Irish politician, lawyer and judge, John Philpot Curran, the greatest “people’s advocate” of the eighteenth century, once stated: “The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt”.[65]

Unless we finally start to be more vigilant and develop a better sense of self-respect and dignity, our country is just about to descend irreversibly into a less open or more disguised form of elected dictatorship.

 Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is the author of numerous articles on the rule of law, and the co-editor of Fundamental Rights in the Age of Covid-19, a book with contributions from leading legal academics and policymakers in the field.

Gabriël A. Moens AM is emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean of law at Murdoch University. He has published a novel about the origins of COVID-19, A Twisted Choice (Boolarong Press, 2020).

[1] John Locke, Second Treatise on Civil Government, Chapter VI, Sec. 57.

[2] John Fortescue, De Laudibus Legum Anglie (1949), 105.

[3] Suri Ratnapala, Welfare State or Constitutional State? (Sydney: Centre for Independent Studies, 1990), 19.

[4] O. H. Phillips and P. Johnson, O Hood Phillips’ Constitutional and Administrative Law (Sweet & Maxwell, 1987), 37.

[5] T. R. S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Clarendon Press, 1993), 21.

[6] T. R. S. Allan, Constitutional Justice: A Liberal Theory of the ‘rule of law’ (Oxford University Press, Oxford, 2001), 2.

[7] Allan, above n 5, 44.

[8] Ibid., 21-2.

[9] Friedrich A. Hayek, The Constitution of Liberty (The University of Chicago Press, 1960), 205.

[10] Philip Selznick, ‘Legal Cultures and the ‘rule of law’’ in M Krygier and A Czarnota (eds), The ‘rule of law’ after Communism, Ashgate, Dartmouth, 1999, 37. Selznick was professor of sociology and law at the University of California, Berkeley.

[11] Suri Ratnapala, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 2002), 7.

[12] C.L. Ten, ‘Constitutionalism and The ‘rule of law’’, R.E. Goodwin and P. Pettit (eds.), A Companion to Contemporary Political Philosophy (Cambridge/MA: Blackwell: 1993). Chin Liew Ten is Emeritus Professor of Philosophy and former Head of the Philosophy Department at the National University of Singapore. 

[13] (1992) 177 CLR 1, at 48 (Brennan J.)

[14] Ibid.

[15] Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 American Political Science Review 853., 861.

[16] Max Weber, Theory of Social and Economic Organization, (New York: MacMillan, 1948), 215.

[17] For a complete understanding of principles and elements leading to the realisation of the ‘rule of law’, see: Augusto Zimmermann, Murdoch University Journal of Law ‘‘The ‘rule of law’ as a Culture of Legality: Legal and Extra-Legal Elements for the Realisation of the ‘rule of law’’ (2007) 14(1) Murdoch University Journal of Law 10, 17-23.

[18] Martin Krygier, ‘The Grammar of Colonial Legality: Subjects, Objects, and the Australian Rule of Law’, in G Brennan and F G Castles (eds), Australia Reshaped: 200 Years of Institutional Transformation (Cambridge University Press, Cambridge, 2002), 225.

[19] Ibid.

[20] Friedrich A. Hayek, Law, Legislation and Liberty, Vol. 3 (University of Chicago Press, 1981), Ch. 17.

[21] R C Van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge University Press, 1995), 283.

[22] A. Kolnai, The War Against the West (Viking Press, 1938), 300.

[23] M Broszat, The Hitler State: The Foundation and Development of the Internal Structure of the Third Reich (New York/NY: Longman, 1981), 293.

[24] Van Caenegem, above n 21, 277.

[25] These special powers remained in effect for four years, after which they could be renewed if the state of emergency was still in place. Whether or not the fire was really set by the communists, the fact is that that section served the purposes of the declaration of a state of emergency.

[26] Carl Schmitt, Politische Theologie (2nd ed, 1934), 20

[27] R J Evans, The Third Reich in Power: 1933–1939 (Penguin Books, 2006), 6.

[28] Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (Harvard University Press, 1991), 37.

[29] ‘Research Starters: Worldwide Deaths in World War II’, The National WWII Museum of New Orleans <https://www.nationalww2museum.org/students-teachers/student-resources/research-starters/research-starters-worldwide-deaths-world-war>.

[30] COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, Victorian Legislation https://www.legislation.vic.gov.au/bills/covid-19-omnibus-emergency-measures-and-other-acts-amendment-bill-2020.

[31] Ian Hanke, ‘Daniel Andrews’ Plan For Indefinite Detention – And More’, The Spectator Australia, 18 September 2020 <https://www.spectator.com.au/2020/09/daniel-andrews-plan-for-indefinite-detention-and-more/>.

[32] Chris Kenny, ‘If Politicians Know Best, Why So Many Mistakes?’, The Australian, 15 August 2020 <https://www.theaustralian.com.au/commentary/if-politicians-know-best-why-so-many-mistakes/news-story/61184b5377a4638fbd70b9ef53253f40>.

[33] ‘Benjamin Franklin on trade off between essential liberty and temporary safety (1775)’, Liberty Fund, at https://oll.libertyfund.org/quote/benjamin-franklin-on-the-trade-off-between-essential-liberty-and-temporary-safety-1775 (last visit 13 August 2021).

[34] Murray Gleeson, The Rule of Law and he Constitution (ABC Books, Sydney, 2000), 67-68.

[35] See: Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, at 279; 69 ALR 631; Halliday v Commonwealth (2000) 45 ATR 458; [2000] FCA 950 at [11].

[36] (1949) 79 CLR 201; [1949] HCA 44.

[37] (1949) 79 CLR 201, at 287 (Williams J).

[38] (1949) 79 CLR 201, at 295 (Webb J).

[39] Bowater v Rowley Regis Corp [1944] KB 476, at 479 (Scott LJ).

[40] (2009) 236 CLR 573

[41] Ibid at [62].

[42] Ibid at [151].

[43] AAP FactCheck, ‘The Nuremberg Code doesn’t apply to COVID-19 vaccinations’, June 9, 2021.

[44] Rocco Loiacono, ‘Most Covid patients at Israeli hospital fully vaccinated? What does this mean for Australia?’ August 12, 2021, at https://www.spectator.com.au/2021/08/most-covid-patients-at-israeli-hospital-fully-vaccinated-what-does-this-mean-for-australia/.

[45] Adam Taylor, ‘Blood clot risks: Comparing AstraZeneca vaccine and the contraceptive pill’, The Conversation, April 10, 2021, at https://theconversation.com/blood-clot-risks-comparing-the-astrazeneca-vaccine-and-the-contraceptive-pill-158652.

[46] Rocco Loiacono, ‘Most Covid patients at Israeli hospital fully vaccinated? What does this mean for Australia?’ August 12, 2021, at https://www.spectator.com.au/2021/08/most-covid-patients-at-israeli-hospital-fully-vaccinated-what-does-this-mean-for-australia/

[47] (1949) 79 CLR 201, at 293 (Webb J).

[48] (1992) 174 CLR 455.

[49] Ibid at [8].

[50] ‘Statement by Mrs Franklin D Roosevelt’, Department of State Bulletin (December 1948) 751. Quoted in Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing: Oxford, 2009), 103.

[51] Airdale National Health Service Trust v Bland [1993] AC 789, at 889. (Mustill LJ). Similarly, in that same case Lord Judge Goff remarked at 866:   

[I]t is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so: To this extent, the principle of sanctity of human life must yield to the principle of self-determination.

[52] (1992) 177 CLR 106, at 212 (Gaudron J.)

[53] Locke, above n1, Chapter XI (Of the Extent of the Legislative Power), Sec. 134.

[54] Ibid., Chapter IV (On Slavery), Sec. 23.

[55] (1992) 177 CLR 1, at 48 (Brennan J.)

[56] Ibid., at 49.

[57] Samuel Rutherford, ‘Lex Rex’, or The Law and the Prince – Vol. 3, 34, in: The Presbyterian Armoury, 1846.

[58] Charles E. Rice, 50 Questions on the Natural Law: What It Is and Why We Need It (San Francisco/CA: Ignatius Press, 1999), 85.

[59] Thomas Aquinas, Summa Theologica, 72, II, II, Q 104, art 6.

[60] Ibid., 89, Bk 1, Ch 6.

[61] Locke, above n.1, Section 222.

[62] Gabriël A Moens AM, Enduring Ideas: Contributions to Australian Debates, Connor Court Publishing, 2020, 29.

[63] (1949) 79 CLR 201, at 293 (Webb J).

[64] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, at 212 (Gaudron J.)

[65] John Philpot Curran, ”Election of Lord Mayor of Dublin,” speech before the Privy Council, July 10, 1790.—The Speeches of the Right Honorable John Philpot Curran, ed. Thomas Davis (1847), 94–95.