Free Speech

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.

23 comments
  • rod.stuart

    A week ago the FDA in the USA issued a statement withdrawing the EUA for the RT-PCR test; but effective the end of the year.
    In the statement, the FDA revealks teh reason for this. The test is completely meaningless.
    In this video, Mike Adams discusses the reson that it is meaningess.
    https://www.brighteon.com/b91f0a0a-3906-4061-a782-9207c76dc3c4
    Since no one has successfully been able to isolate the virus, the reference for the test is nothing but the common cold. In addition, the test is incapable of quantifying what it finds, as its inventor Kerry Mullis said.
    This entire plandemic is the biggest hoax ever perpetrated on a gullivble public.

  • Stuart J. Burrows

    Thank you, Augusto Zimmermann. I have been having similar thoughts myself, right down to John Locke, but lack the legal expertise to locate constitutional principles, laws, and rulings which give effect to our inviolable natural rights. Your contribution is much needed, as are legal practitioners who can prosecute these arguments in our courts and, hopefully, relegate these tyrannical fiats to the dustbin where they belong.
    The “emergency” is now in its 17th month in which the natural rights of movement and association have been severely curtailed, and the socio-economic trauma is horrendous and counting, with no convincing end in sight. Does that qualify as “a manifest, long-standing tyranny which would do great damage to fundamental rights and dangerous harm to the common good of the nation”? I believe it does.

  • Stuart J. Burrows

    The freedom of speech is also being abridged, on a topic on which dissent and debate is most urgently needed: treatments for the Wuhan virus. The Therapeutic Goods Administration has opened an investigation into Professor Thomas Borody for “promoting” ivermectin as a treatment, and ordered David Leyonhjelm to delete a Tweet that “advertised” ivermectin.
    It was concluded in this comprehensive assessment appearing in the American Journal of Therapeutics in April that, in ivermectin, “an oral agent effective in all phases of COVID-19 has been identified”:
    https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8088823

  • DougD

    If “Punishment for protesting is one of the hallmarks of every undemocratic regime”, as Prof Zimmermann says, where does that leave the Victorian Government and its police force? Compare the restrained response of Victoria Police to the many thousands in the unlawful BLM protests in June last year [with uniformed police photographed respectfully taking the knee to the protesters in Ballarat] with the brutal police response to the unlawful but much smaller illegal anti-lockdown protest at Victoria Markets. Compare the courteous warning police gave to the celebrity, Sam Newman, who used social media to call for hundreds of thousands to protest against the lockdowns with their heavy-handed action in handcuffing and charging the Ballarat woman who urged people there to also protest. Such differential policing seems to involve a denial by police of the Victorian Charter of Rights promise that every person is equal before the law and is entitled to the equal protection of the law without discrimination? This promise, like the other rights granted by the Charter is just empty wind. The Government has shown no interest in requiring its police force to respect its human rights legislation. I’m not aware of the Human Rights Commission having taken any interest in this either. And Liberty Victoria too, seems to have reacted with silence. The Victorian Charter of Rights is as useful a protector of human rights as was the Soviet Union Constitution which also guaranteed equality before the law and rights of free speech, assembly and protest.

  • Davidovich

    An article such as this needs to be more widely disseminated. Unfortunately, even august publications such as The Australian are fully behind the censorship of any comment which goes against the government line regarding the Wuhan virus and so it is unlikely to be seen by the wider population. Any mention of ivermectin is rejected and criticism of government suppression of protests is likewise not publishable. Truly, Australia is suffering greatly under the emergency powers governments have created for themselves.

  • Daffy

    1. The police are being shown up badly as perpetrators of tyranny. They clearly supported BLM (boorish, loutish morons) in their marches, but, under same conditions of law, are going to pursue every protestor! So, cops, how about doing the same now for the BLM protestors, including the cops seen pathetically on one knee!
    2. The published figures for fatalities show that for under 60s, the CFR is 0.0008! About as close as you can get to zero and still get a figure to print! The hubristic madness of the NSW reaction and its panicked shrieks over tiny numbers of cases is shameful. The destruction they are bringing to those mentioned by the the writer is more than shameful. It is callously thoughtless, inhumane and contemptuous of the conduct a democratic government should be expected to exhibit.

  • melb

    Professor Zimmerman has referred to High Court judgements in the matters which concerned the protected freedom of communication in our representative parliamentary democracy. Just how far the reasoning in those judgements can go to protect a “lawful right to resist any government measure that fundamentally violates our individual rights and freedoms, including lockdowns” remains to be seen. Given the recent High Court judgement on Section 92, https://quadrant.org.au/opinion/qed/2021/03/how-the-high-court-redefined-absolutely/, I won’t be holding my breath.

    In this article Prof. Zimmerman quoted Justice Gaudron in Australian Capital Television Ltd v Commonwealth (1992). However, Justice Gaudron in Kruger v The Commonwealth (1997) appeared to find that even genocide could be lawfully legislated under our Constitution when she held as follows:

    “The notion of genocide embodied in the definition in Art II of the Genocide Convention is so fundamentally repugnant to basic human rights acknowledged by the common law that, by reason of well settled principles of statutory interpretation, an intention to authorise acts falling within that definition needs to be clear beyond doubt before a legislative provision can be construed as having that effect. Ordinarily, however, different considerations apply to the interpretation of constitutional documents.”
    “It is settled doctrine that a constitutional grant of power is to be “construed with all the generality which the words used admit.” Moreover because of the democratic principles enshrined in the Constitution, constitutional powers are not to be read down to prevent the possibility of abuse.”

    Justice Gaudron later made an exception for legislation enacted under s 122 of the Constitution, because of the limitation of the representative rights of Territorians, when she stated;

    “Were it necessary to decide the matter, I would hold that, whatever the position with respect to other heads of legislative power, s 122 does not confer power to pass laws authorising acts of genocide as defined in Art II of the Genocide Convention.”

    So, there you have it, at least one judge of the High Court had been prepared to infer that even genocide is within the power of the Australian parliament.

    However, notwithstanding the views of Gaudron J. and others that constitutional powers are not to be read down I stand on my metaphorical hind legs to say that does not extend to fundamental rights. I note that our constitutions both Federal and State are statutes and must be interpreted in accordance with statute law which is as stated in Potter v. Minahan [1908]:

    “’in the last degree (it is) improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”
    I take comfort from noting that even Gaudron J., with others, has endorsed that statement in Bropho v. Western Australia [1990].

    I take comfort in the words of Toohey J. in a speech delivered in Darwin in October 1992, which expanded on this reasoning: J Toohey, ‘A Government of Laws, and Not of Men’ (1993) 4 PLR 158, 170 (Public Law Review) by saying:
    “Where the people of Australia, in adopting a constitution, conferred power [on the] Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common law liberties – a presumption only rebuttable by express authorisation in the constitutional document.”

    The proceedings of the Australasian Federation Conference Tuesday, 8th. February, 1898 starting at page 688 support the view of Toohey J. At that conference it was debated whether to include in the Constitution a protection against laws that would “deprive citizens of life, liberty, or property without due process of law”. Mr. Kingston and Sir John Forrest spoke against the proposition on the basis that it was unnecessary. The amendment was not carried, Sir John Forrest had suggested in the debate that even if such a bill was passed by Parliament that Royal Assent would be refused.

    I also note that the House of Lords in Oppenheimer v Cattermole [1976] AC 249 found with respect to an abominable Nazi law that; “…… a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all”. Thus determining, contrary to the insinuations of Gaudron J. in contemplating the possibility of a valid law authorising genocide, that some laws are such an infringement of human rights that they cannot possibly be within the power of a parliament to make.

    The only question is whether the maligned laws, in the circumstance of covid19, are a violation of fundamental freedoms. If they are, then they are invalid.

  • RB

    Crying foul won’t help when Dan’s brown shirts have you in cuffs.

  • Daffy

    Editor: typo “also skills children.” kills? In para 3

    • Roger Franklin

      Thanks, Daf. Fixed.

  • pgang

    The ’emergency powers’ state governors and the police so glibly awarded to themselves during recent bushfires and floods were worrying enough at the time. I recall being the prophet of doom amongst my peers for pointing this out. It didn’t take much – in fact it took nothing at all – for those powers to explode in a frenzy of totalitarianism.

  • Daffy

    ‘Absolutely’. One would think that the HC would be aware that this is the most popular qualifier in English. We all know what it means. I’ll bet the writers of the constitution knew too. It was the only word available to definitively communicate something like ‘without let or hinderance’. But that phrase might be argued. In their minds, ‘absolutely free’ required no definition, and admitted no argument.
    So, I turn my mind to the couple that returned to WA from Qld (talk about travelling between fascist states). Adopting the mind of the constitution, their travel was an element of trade. I’m sure they did trade-like things in their trip. Indeed travel itself is the basis of trade. If you can limit travel you limit trade and its precursors. So, all bets off. You can travel freely. But the WA government, along with a bizarre bit of law, decided that they couldn’t and required them to have a test famous for unimpressive outcomes. So many asymptomatic? Is the accuracy or specificity of the test really that bad? ‘No thanks’ is a not unreasonable response. Perhaps if the cops had asked nicely, or asked that they isolate or wear a clean mask when out and about for a fortnight, in respect of the concerns of others, things would have been different. But no. The uniformed arm of the ALP in WA has threatened a basic human freedom and a basic (misinterpreted) constitutional provision with jail time! And for a disease with, in their age group, a CFR of 0.0008!

  • pgang

    DougD we should be well aware by now that written law is meaningless without general consensus. The police get away with their actions because the people don’t care. The rulers note that the people don’t care, so they ignore the law also. The Biblical narrative is all about this concept – no matter how perfect the law and what extraordinary benefits it might bring, it only lasts as long as the flesh is willing to honour it. Law is a living thing, it’s not a legal document or an on-the-spot fine. There is no surer sign of the end of modernist culture than that we have lost our connection with law.

  • lbloveday

    Disturbing (to me) opinion from George Williams of UNSW on how section 51(23A) of the Constitution
    .
    ” could prevent the commonwealth from compelling doctors to provide vaccinations (good – LBL). On the other hand, it confers no protection on members of the community. They can be subject to federal law requiring them to be vaccinated to remain in employment, receive benefits or attend events (very bad – LBL).

  • Hot2Trot

    This is the most astute article I have read on our circumstances. An essential read for those concerned for Australia’s future.

  • Stephen Due

    I believe we must take the right to protest seriously. This is especially important considering its basis in the individual rights to freedom of speech, freedom of movement, and freedom of assembly.
    I note in parenthesis that the AHRC and related state bodies are missing in action on these matters during the pandemic, being totally captured by the Woke progressives, who have an agenda that is not actually the protection of rights but the implementation of social engineering.
    The US constitution provides a useful distinction between those rights that are granted by government, and those exist independently of government. The latter are those which are ‘unalienable’, being endowed by the Creator. The government is obliged to protect those rights, cannot alter them and certainly may not transgress them.
    The right to protest, and the more fundamental rights associated with it, should be defended as ‘unalienable’ rights that the Australian government is obliged to respect and protect. This provides the ethical basis and clarity of conscience for the protest movement.
    When, as we have seen with recent attempts to object to the Covid regulations, the government mobilises extreme force to crush protests, urgent action is needed in response. There should at least be a Covid Protest Protection Fund established and a legal team gathered to advise on planning of protests and to support those arrested or abused by the police at protests.
    The excellent work of the protest organisation Reignite Democracy Australia should be encouraged. For further information see their website.

  • Rebekah Meredith

    Saturday 31 July, 2021, may be Australia’s most shameful day since homosexual marriage was legalised. The Stalinist reaction to any attempt for the people to speak was the action of a state government; but it was backed by the federal government. I fear it was also backed by a majority of the population, but I pray that this “evil” (to quote Dictator Dan) behaviour will cause more people to finally wake up.

  • Greg Williams

    While I am not one to get out to public protests too often, when I am told that I have to be vaccinated to continue teaching (and it is looking pretty inevitable with the lunatics running governments at this point in time) I am going to lodge my protest by resigning from my much-loved career as a maths teacher. I have been teaching secondary students around Australia for the past 51 years. I have been a very successful teacher, and still love the job. However, I am not going to subject myself to an experimental vaccination protocol that supposedly protects me from a virus that has almost no impact on a person with strong immune system. I have taken responsibility for my health from a very early point in my life. Although getting on a bit now (1948 vintage), I eat well, restricting myself to mainly raw food and mainly plant based; I don’t consume any drugs, such as nicotine/alcohol, although I do enjoy a cup of green tea; I have exercised daily and vigorously for most of my life and as a consequence don’t carry any weight. So far, i.e. since 1948, I have never had the “flu, and I have never had the ‘flu jab. It is only very recently that my reluctance to have the ‘flu vaccination has impacted negatively in my life, as the Federal government, in its wisdom, suddenly denied me the right to visit my 101 year old mother in her retirement residence. For the few years prior to last year, whether or not I had taken the ‘flu vaccination was never an issue, and despite my pleas to the residence managers, they fall back on the so-called “rules” imposed from on high. Having taken pretty good care of my immune system for most of my life, I would back it (i.e. my immune system) to take on COVID and deal with it. I resent that people, who through either bad luck or bad choices have compromised immune systems, are telling me that I have to undergo the same medical treatment as them. The vaccination doesn’t stop people from catching COVID and being spreaders of COVID. I heard on the news this morning that “double-jabbed” Shane Warne, the cricketer, is in isolation because he has tested positive. I guess what I am saying is that I would back my immune system to deal with COVID at least as well as a vaccination, and then I wouldn’t have to be concerned about the assault on my mRNA/DNA that these experimental vaccines carry out.

  • norsaint

    Reading this article one can only conclude that the dangerous “restraining orders” – used as a revenue guarantee tool by the Divorce Industrial Complex (kidnapping by any other name) – are unconstitutional and therefore void.
    Not that those who’ve found themselves on the receipt of one ever doubted it, but what is one to do? Finance a petition to the High Court and put one’s trust in a gaggle of black robed terrorists?

  • lbloveday

    Greg Williams wrote:
    .
    “I guess what I am saying is that I would back my immune system to deal with COVID at least as well as a vaccination, and then I wouldn’t have to be concerned about the assault on my mRNA/DNA that these experimental vaccines carry out”.
    .
    Me too (and similarly never had the flu that I know of, not even a cold, not had a sick day off work since Glandular Fever 50 years ago), and I increasingly read that COVID infection provides a future immunization as least as strong and long-lasting as “vaccines”. If I had the choice I would prefer to be infected than “jabbed”. I may even have been infected as I felt 90% for a few days recently but that’s no worry – my concern is a heart attack or stroke.
    .
    I’ve bought a treadmill and Vitamin D tablets to replace my daily long walks in the sunlight.

  • ralphlhpain

    What a wonderful article!

    But, how best do we engage others who have not yet seen what we are dealing with? I feel we need to be presenting, constructively, an alternative strategy to dealing with the virus. We need to remember we are not JUST complaining about the constitution, or about the harm from lockdowns, or about the harm from the vaccines. We are also bringing the good news that there is a better way.

    “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”. ”

    As Dr Katz says, we are presenting a strategy for health in which we protect the vulnerable. So an alternative ‘health’ strategy is: 1. to protect the vulnerable, 2. to use the array of preventive and curative remedies that are available, and 3. to allow the less vulnerable to build natural immunity.

    I believe that following this health strategy would end the health emergency in just months.
    Instead we are following a ‘vaccine’ strategy (to promote vaccines). But this will fail in the end and we will ultimately follow the health strategy I just mentioned. Unfortunately, following the vaccine strategy is forcing us to take a circuitous and damaging route that is taking years.

    Also, in our discussions with others I feel we should reframe the term ’emergency’ as a health emergency rather than as a constitutional state of emergency. This is because it’s more socially acceptable to voice alternative responses to a health emergency.

    By the way, I was set back in a discussion with a young person recently, whom I know well. She is intelligent, educated, law abiding, socially engaged. She asked me if I was suggesting that the government she elected and trusted, and doctors whom she trusted with her life, are lying to her and are trying to harm her. She said if she found she couldn’t trust them she would be so depressed she would kill herself.

    This is what we are up against. We are not countering evil people, we are alerting the naïve. And we must sometimes be sensitive in this task.

  • pgang

    I’ve come up with a new name for this ex-nation that grabs me, now that the Lower Hunter and Upper Hunter have been locked down over 2 positive tests (and some viral fragments in people’s poo – ooh, so scary).
    I think Stupidalia about sums it up nicely. Or maybe take it from the Lego movie – Cloud Cuckoo Land.

  • pgang

    ralphlhpain – 4th August 2021.
    Sure, but there is thing called ‘de-platforming’, and it’s the reason Australians are mutely cowing before the worst restrictions imaginable in the name of so-called ‘public health’. If you present an alternative way, you are de-platformed.
    Did you point out to that young woman that there is no reason to ever trust a government? What an extraordinary reaction. To be honest it reads like she was just trying to emotionally blackmail you. I suspect in her own way she was de-platforming you. The socialist mindset has set deep into the Australian psyche.

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