The Simple, Sacred and Inviolate Right to Protest

When New South Wales’ lockdown was extended by four weeks, chief health officer Dr Kerry Chant claimed the state had to “hold its course” to curb the latest COVID outbreak. “We know lockdowns work,” Dr Chant repeated for what might well have been the 10,00th time[1].  It is the mantra of chief health officers in favour of locking down normal life, sometimes at a moment’s notice.

The truth is that Dr Chant has her ‘facts’ hopelessly mangled. According to Dr Mark Woolhouse, the eminent epidemiology professor at Edinburgh University and health adviser to the UK government, any attempt to control the spread of the virus through lockdowns constitutes a “monumental mistake”.[2]  that inflicts harm on the  education of the young, health care access and the economy far greater than the virus itself, “the cure being much worse than the disease”.[3]

David L. Katz undoubtedly agrees. This eminent founder and former director of Yale University’s Yale-Griffin Prevention Research Center (1998-2019) holds three doctorate degrees and has received many academic awards for his “significant contributions to public health”.[4] As Dr Katz points out, “the normal flu hits the elderly and chronically ill hard too, but it also skills children. Trying to create herd immunity among those most likely to recover from infection while also isolating the young and the old is daunting to say the least”.[5] 

Dr Katz also informs us that by imposing lockdowns, rather than implementing a “surgical” approach focused on safeguarding the most vulnerable, governments pave the path to “monumental collateral damage”. He is particularly concerned that

the social, economic and public health consequences of a near total meltdown of normal life – schools and business closed, gatherings banned – will be long-lasting and calamitous, possibly even graver than the direct toll of the virus itself[6] … many businesses never will [bounce back] … the unemployment, impoverishment and despair likely to result will be public health scourges of the first order.[7]

This is why more than 500 US physicians have signed a declaration deploring lockdowns and demanding a change of approach.[8]  They state

It’s impossible to overstate the short, medium, and long-term harm to people’s health with a continued shutdown. Losing a job is one of life’s most stressful events, and the effect on a person’s health is not lessened because it also has happened to 30 million other people. Keeping schools and universities closed is incalculably detrimental for children, teenagers, and young adults for decades to come. The millions of casualties of a continued shutdown will be hiding in plain sight, but they will be called alcoholism, homelessness, suicide, heart attack, stroke, or kidney addiction, unplanned pregnancies, poverty, and abuse.[9]

As can be seen, the Australian governments have created problems that are infinitely more threatening than COVID-19. Of all the most pressing problems created by lockdowns, suicide rates are forecast to rise up to 50 per cent, particularly among young Australians aged 15-25 years.[10]  According to Professor Ian Hickie, former NSW Mental Health Commissioner and head of Sydney University’s Brain and Mind Centre, the annual rate of suicide to be caused by lockdown measures could see a 50 per cent rise, from 3000 to up to 4500, with youth suicides making up almost half of the expected deaths.[11] “What happens in recessions is that suicide rates go up dramatically … and they hurt the young the most”, he says.[12]

Of course, as noted by Janet Albrechtsen, ‘no politician is going to be held responsible for the suicide of an unemployed young man who has lost hope’.[13] However, it will be important to make sure that the Prime Minister and the state and territory leaders are ultimately held accountable for the unmitigated disaster they have wrought. These politicians initially accepted the alarmist and absolutely inaccurate World Health Organisation (WHO) prediction of 3.4 per cent mortality, and then brought about these ongoing disruptions that have cost millions of jobs and the closing down of numerous small businesses. Naturally, none of the privileged members of the ruling classes have been affected. On the contrary, for them this “pandemic” represents the increase of their power and control over society. 

A sobering analysis by the Institute of Public Affairs estimates that over 230,000 small businesses will be expected to close as a result of government edicts. The disproportionate destruction of such businesses by lockdown measures is demonstrated by their heavy reliance on government support for survival.[14] As noted by IPA’s research fellow Kurt Wallace, “the legacy of the lockdown restrictions will be an economy dominated by large conglomerates with local communities being stripped of the small businesses that are integral to their character”.[15]

The only discernible benefit of this current crisis has been to expose the authoritarian behaviour of certain politicians. They have never had such an enervating time as this, bring to mind C.S. Lewis’s observation that

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive… Those who torment us for our own good will torment us without end for hey do so with the approval of their own conscience.[16] 

AS I WRITE almost every government in this country is enforcing arbitrary rules under threat of hefty fines and/or imprisonment. Interestingly, NSW Premier Gladys Berejiklian fully recognises “how devastating this is for families”. Yet, she candidly informs us that such measures are now “the new way of life” in Australia.[17] In Western Australia, the new way of life means police can strap electronic ankle bracelets to citizens lest they fail to comply with directions.[18]

Beyond the slogans, government ad campaigns, social media censorship this is not about health concerns but the State’s power and control. Nothing can produce a police state more rapidly than such measures. In his seminal Law, Legislation and Liberty (1981), the Austrian-British economist and philosopher Friedrich A. Hayek comments that emergency powers have a natural tendency to remain permanent after their justification is over. He offered this sobering reflection:

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.^[19]

Australians would be wise to pay attention to Thomas Jefferson: “A government big enough to give you everything you want is strong enough to take everything you have”. The Germany in the 1930s makes the case. In those days Germans were anxiously willing to receive every form of “protection” from the State. They desired to be ruled by a paternal leader who could “protect” them from any real or imaginary threat. Thus, under Article 48 of the Weimar Constitution, the German President was authorised to rule by executive decree during such times of alleged “emergency”. As noted by 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. ^[20]

As a consequence, in February 1933, the German president signed an executive order which suspended all constitutional rights on the grounds of protecting the people.^[21] What followed was the “legal” suppression of these rights “until further notice”.^[22] Of course, that “further notice” did not occur until May 8, 1945, when that decree was finally repealed by the military government of the Allies.

I do not claim my fellow Australians are facing the same threats. Absolutely not! I would never make such ridiculous comparisons. Yet history can certainly repeat itself to a lesser degree, the use of emergency powers in the implementation of authoritarian regimes violating the same fundamental principle that abhors rule by coercion.  Punishment for protesting is one of the hallmarks of every undemocratic regime.[23] In this country we have seen police arresting citizens peacefully protested against government lockdowns — in Victoria, even the handcuffing of a pyjama-clad pregnant mother in her own kitchen. What attracted the authorities to her home was the simple act of posting notice on Facebook that a protest would be held the coming weekend in Ballarat.

Defence Minister Peter Dutton on Thursday night confirmed that up to 300 ADF personnel will be working with NSW Police in the locked down city from August 2.[24] [25]  Calling on Australian troops to enforce lockdown rules sets an incredibly dangerous precedent. It is certainly not constitutional to entrust the military with ostentatious policing activities and constitutes a gross deviation of the ADF’s primary role of protecting the nation against external enemies, not an elected government from its people.

However, all across Australia our politicians are using their powers to excessively coerce, obstruct or otherwise arbitrarily interfere with the life, liberty and property of the citizens.  In this context we should more carefully consider the words of John Locke, one of the most influential of all political theorists and the oft-hailed Father of Liberalism. In his Second Treatise on Civil Government (1689), Locke explains that our most basic rights are independent of, and antecedent to, the State. To be legitimate, he argued, governments ‘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.’[26]

Accordingly, the political establishment inevitably puts itself into a ‘state of war’ against the people whenever it attempts to undermine our inalienable rights. Being inalienable, even if some individual seeks to bargain these rights away, they cannot succeed because these rights are simply not a commodity to be bargained, bartered or sold.  These rights set limits on political authority and provide lawful justification for civil resistance should they be violated. To the extent that a political ruler or group does not more properly recognise and protect these inalienable rights, they cease to be legitimate and we the people can dismiss them for the breach of trust. As Locke famously put it:

Whenever the legislators endeavour to take away and destroy the property of the people [that is, their rights to life, liberty and property], or to reduce them to slavery under arbitrary power, they put themselves into a state of 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.^[27]

WE SHOULD not be too hasty in dismissing these philosophical teachings. They constitute our liberal legal tradition of constitutionalism and the rule of law. Constitutionalism implies the realisation of a system of government which involves separation of powers and, accordingly, limitation of the state’s arbitrary power. In this sense it would be inappropriate to employ the term “constitutional government” with reference to a totalitarian political system or even to an elected dictatorship. As Suri Ratnapala, emeritus professor of constitutional law at the University of Queensland, correctly points out,  

A Constitution in the [proper] 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.[28]

Perhaps it might be necessary therefore to remind the reader that any lawful resistance to arbitrary power can only be justified under extraordinary circumstances, where there is a manifest, long-standing tyranny which would do great damage to fundamental rights and dangerous harm to the common good of the nation. Otherwise, such recourse to popular resistance as a means to right the wrongs of government itself risks producing new and unintended forms of injustice. Accordingly, a real evil should not be fought against the cost of greater misery so that any such resistance can only be carried out as the last remedy against long-standing forms of oppression and tyranny.

Finally, it is particularly important to consider that the requirements of constitutional government are directly derived from our liberal-democratic traditions under the law, which seeks to promote the protection of individual rights and freedoms[29] As famously 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”. [30]

Accordingly, it is entirely reasonable to assume that any command by the State which directly violates these fundamental freedoms is not law properly so called and certainly it is not a valid law from this constitutional perspective. Indeed, 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”.[31]  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”.[32]

To conclude, it is entirely self-evident to me as a constitutional law professor that Australians have been endowed with some important constitutional protections as derived from that notion espoused by the High Court of “a free society governed in accordance with the principles of democratic parliamentary government”. If this is so, then we the people have a lawful right to resist any government measure that fundamentally violates our individual rights and freedoms, including lockdowns.

Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus.  Dr Zimmermann was professor of constitutional law at Murdoch University from 2007 to 2017. He is also a former Law Reform Commissioner in WA (2012-2017), President of the Western Australian Legal Theory Association (WALTA), and co-editor of “Fundamental Rights in the Age of Covid-19” (Connor Court / The Western Australian Jurist, 2020). 

[1] ‘‘We Know Lockdowns Work’: Dr Kerry Chant’, News.Com.Au. <https://www.news.com.au/national/we-know-lockdowns-work-dr-kerry-chant/video/075baf235281806864c06c6310fcda58>

[2] Lucy Johnston, ‘UK Lockdown Was A “Monumental Mistake” And Must Not Happen Again – Boris Scientist Says’, Sunday Express, 24 August 2020 <https://www.express.co.uk/life-style/health/1320428/Coronavirus-news-lockdown-mistake-second-wave-Boris-Johnson>.

[3] Ibid.

[4] David L. Katz, ‘Is Our Fight Against Coronavirus Worse Than the Disease?’, The New York Times, 20 March 2020 <https://www.nytimes.com/2020/03/20/opinion/coronavirus-pandemic-social-distancing.html>.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Alex Swoyer, ‘500 Doctors Tell Trump to End the Coronavirus Shutdown, Say it Will Cause More Deaths’, The Washington Times, 21 May 2020 <https://www.washingtontimes.com/news/2020/may/21/500-doctors-tell-donald-trump-end-coronavirus-shut/>.

[9] Simone Gold MD & >500 physicians, ‘A letter signed by hundreds of doctors warning of adverse health consequences stemming from the coronavirus shutdowns’, 19 May 2020 <https://www.scribd.com/document/462319362/A-Doctor-a-Day-Letter-Signed>.

[10] Simon Benson, ‘Coronavirus Australia: Suicide’s Toll Far Higher Than the Virus’, The Australian, 7 May 2020 <https://www.theaustralian.com.au/nation/suicides-toll-far-higher-than-coronavirus/news-story/25a686904b67bdedbdcd544b1cab7f96>.

[11] Ibid.

[12] Ibid.

[13] Janet Albretchtsen, ‘Coronavirus: Charting a Way Out of this Crippling Pollyanna World’, The Australian, 7 May 2020 <https://www.theaustralian.com.au/inquirer/coronavirus-charting-a-way-out-of-this-crippling-pollyanna-world/news-story/cfd6913dfc2c5c7e082b7e8d398d0075>.

[14] Kurt Wallace, ‘Small Business And Jobs Smashed By COVID-19 Lockdowns’, IPA Today, 10 August 2020 <https://ipa.org.au/publications-ipa/small-business-and-jobs-smashed-by-covid-19-lockdowns>.

[15] Ibid.

[16] C. S. Lewis, God in the Dock: Essays on Theology and Ethics (William B. Eerdmans, 1948), 74.

[17] Paige Cockburn, ‘NSW Coronavirus Social-Distancing to Stay Until Vaccine is found, Premier Gladys Berejiklian says’, ABC News, 7 April 2020 <https://www.abc.net.au/news/2020-04-07/nsw-coronavirus-social-distancing-to-stay-until-vaccine-found/12126802>.

[18] Aaron Fernandes, ‘Electronic Tracking Devices Among New Coronavirus Powers for WA Security Agencies’, SBS News, 12 April 2020 <https://www.sbs.com.au/news/electronic-tracking-devices-among-new-coronavirus-powers-for-wa-security-agencies>.

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

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

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

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

[23] Tessa Akerman and Rachel Baxendalle, ‘Arrested Anti-Lockdown Mum: Police Admit ‘We Stuffed Optics’’, The Australian, September 3, 2020 < https://www.theaustralian.com.au/nation/absolute-overkill-jacqui-lambie-slams-arrest-of-pregnant-lockdown-protester/news-story/8951edcf08e3cc5e18006cad8b033354>.

[24] Erin Lyons and Catie McLeod, ‘Hundreds of Defence Troops to Descend on Sydney as Covid Crisis Escalates’, News.Com.Au, July 30, 2021, at https://www.news.com.au/national/nsw-act/news/nsw-police-request-adf-support-in-enforcing-sydneys-lockdown/news-story/e5413c51d7930b145486ed2b2d709a17

[25] ‘ADF Troops to be deployed to enforce rules and National Cabinet discussing pat out of lockdowns’, NewsChant, July 30, 2021 <https://au.newschant.com/national/nsw/latest-case-numbers-july-30-as-nsw-vaccine-hubs-open-for-walk-ins-adf-troops-to-be-deployed-to-enforce-rules-and-national-cabinet-discussing-path-out-of-lockdowns/>

[26] John Locke, Second Treatise on Civil Government (1690), Chapter XI – ‘Of the Extent of the Legislative Power’, sec 135.

[27] Ibid, ‘Of the Dissolution of Government’, Chapter XIX, sec 222.

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

[29] “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”. – 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).

[30] (1992) 177 CLR 106, at 212 (Gaudron J.)

[31] (1992) 177 CLR 1, at 48 (Brennan J.)

[32] Ibid., at 49.