QED

State Power, Control and COVID-19

Apparently this coronavirus is so deadly that the fatality rate of those infected is less than 0.1 per cent.[1] The overwhelming majority who contract it do not have any significant risk of dying, says Dr Scott W. Atlas, a former chief of neurology at Stanford Medical Center, [2] who points out that the very old and those with underlying health conditions are more likely to succumb. However, based on data coming from New York City (the US hotbed of the pandemic), he informs us that only 1.7 per cent of those in their 70s who contracted the virus and acquired symptoms bad enough to seek medical care had to be hospitalised.[3] For those under 18, hospitalisation from the virus was only 0.01. For those aged 18 to 44 it stood at 0.1 per cent.

Of course, every life matters. But sometimes I ask myself how can any rational person not see that the Wuhan virushas been ingeniously used to scare, brainwash and control entire populations, even to the point of what amounts to virtual house arrest.

Based on fundamental biology and the evidence in hand, the appropriate policy to fight the coronavirus should be focused on protecting only the most vulnerable – those who are very old or suffering from any chronic illness.   As for the vast majority of us, says Dr Atlas, ‘essential socialising’ is essential to ‘generate immunity’ and ‘limiting the enormous harms compounded by continued total isolation’. [4]

Whether you agree or not with this leading medical doctor and academic, informed debate is what we need to make wise decisions. Whatever your view of the pandemic, some of the points raised by Dr Atlas are important. We should all be able to question government policy. Unfortunately, informed debate is precisely what we are not being allowed to have. Suddenly, our media are no longer questioning power, but colluding with power that takes away our fundamental rights and freedoms. There is very little critical coverage of the massive expansion of state surveillance currently in progress. The reality is that since March this year our government is ruling by executive decree and this country has effectively become a police state. Of course, a police state does not mean a totalitarian state — I am still able to write this article without being immediately arrested.

However, we are already living with all key hallmarks of a police state. According to Dennis Prager, the primary elements of a police state are: (1) draconian laws depriving citizens of elementary rights; (2) a mass media supportive of the state’s messaging and deprivation of fundamental rights; (3) excessive use of power by the police; (4) people being encouraged by the State to inform on their fellow citizens.[5]  We are currently experiencing every single one of these elements. Furthermore, many Australians apparently believe that no government action can ever be used for utterly oppressive purposes. Many even support a tracing app which their leader has painted as a service to the nation, saying it will be made compulsory if not enough people voluntarily download the application to help coronavirus case tracing.[6]  This is truly frightening, echoing as it does with reminders of Soviet and Nazi subjugation of rights and institutions, again for the alleged betterment and security of the State.

Talking about the Nazis, in the 1930s many Germans were deeply anxious for more security and government protection in the face of perceived social threats. They did not mind if the government also curtailed their freedoms. After all, they trusted the government and considered any such measures as important for their protection. When the first emergency Act was passed by the German Parliament, in March 1933, the power to legislate was handed over to a National Cabinet. This was done via Section 48 of the Constitution, which endowed the Executive with authority to rule by decree in times of national emergency. What followed were executive decrees that gradually suspended individual rights and freedoms. These measures expanded state control over the individual, as well as labour, businesses, and the economy as a whole. Constitutional rights were suspended “until further notice”. Germany’s emergency powers were supposed to be only temporary, yet they were re-enacted by the German government in 1937, 1939 and 1943, a sign and symptom of the regime’s schizophrenic combination of legality with a visceral contempt for fundamental rights and freedoms. Of course, “until further notice” did not occur until May 8, 1945, when these executive decrees were finally cancelled by the military government of the Allies.

Curiously, German lawyers argued that those measures were perfectly valid from a narrow legal perspective. Because they had been apparently authorised by the law, they simply assumed that the rule of law had therefore been preserved, and the executive was authorised to issue such decrees under those emergency powers. In other words, whatever the executive decided to do in the use of emergency powers was immediately assumed to be legally valid.[7] Curiously, all the statutes enacted prior to the Emergency Act remained unchanged. The application of these laws, however, became at odds with the overarching intention of the drafter. As noted by Carl Schmitt (1888–1985), who was the nation’s leading legal academic, the suspension of constitutional rights was perfectly valid and justifiable in order to “protect” the community. Between 1933 and 1936, Schmitt authored numerous articles and books providing full justification for these emergency powers, as a ‘necessary’ measure and concentration of powers for the benefit of the community.[8] As Schmitt himself pointed out:

Once this state of emergency has been declared … the decision exempts that authority from every 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 society’s own existence.[9]

There was something rather appealing to many about Hitler. Many believed that he had been sent by God to save the country from communism. Some also believed that he was serving God in all matters political and that he really cared for the people.[10] In his speeches the German leader often referred to a ‘path assigned to him by God’.[11]  On one occasion, he boldly proclaimed: “Just like Christ, I have a duty to my own people”.  On another occasion he recited the Lord’s Prayer after explaining how God had assigned him with the task of conducting the affairs of the German people.[12] With the advantage of hindsight, it is quite obvious that his association with religion was entirely cynical. Pretending to be a religious person in a majority-Christian nation served his ultimate purpose of obtaining further popular support for his dictatorial regime.

Why am I referring to this? Am I saying that our Prime Minister in Australia is an aspiring dictator? Certainly not! Surely no responsible person, least of all me, would suggest such a thing. But due caution is always important nonetheless. As my good friend Bill Muehlenberg correctly points out,

Those who seem to think that the state is always benign clearly have no understanding of history.  We know how often dictators and tyrants came to power by dealing with – or promising to deal with – various emergencies and crises. It could be a breakdown in law and order, real or perceived external threats, or economic crises, but the masses tended to support these leaders in their rise to power in the face of such threats.[13]

The same concern was once expressed by Friedrich Hayek. An Austrian-British economist and philosopher who won the Nobel Prize in Economics in 1974, in volume 3 of his seminal ‘Law, Legislation and Liberty’ (1981), Hayek reminds us that “temporary” measures and policies seem to have a way of becoming permanent after the emergency 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.[14]

But perhaps we should not be so concerned. Our Prime Minister is a ‘Christian’ and he is even promising to reward us for our good behaviour in the future by allowing the pubs to re-open, for example, if we all dutifully downlaod the COVIDsafe tracing app. Meanwhile, however, he is kindly letting us know in advance that his government will ‘have many more [restrictions] in front of us before it can even possibly contemplate the easing of restrictions’.[15] ‘There’s got to be a reward for all of this great effort that’s going in, and there will be, but we’ve got to make sure that’s done at the right time’, the Prime Minister told Sky News.[16]

This generosity is really very nice of him. His help will be most welcome when all these ongoing government restrictions provoke widespread job losses, bankruptcy, marriage breakdowns, and inadequate supplies of food and other essentials.

Of course, when this is over, almost none of us will know anyone who lost their lives to the Wuhan virus. We will all know, however, countless people who have lost their jobs, their businesses, their families, and even their very lives as a result of the arbitrary shutting down of the entire nation. As can be seen, this present crisis is not just about science and public health. It is also about power and about a supposed “pandemic” usefullness in dramatically increasing the power of the State.

 

Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertIntArb is Professor and Head of Law at Sheridan College in Perth/WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017 (appointed by then state Attorney General Christian Porter). Dr Zimmermann was chair and professor of constitutional law at Murdoch University from 2007 to 2017.

 

 

[1] E Bendavid et.al., ‘COVID-19 Antibody Seroprevalence in Santa Clara country, California’, Stanford University, April 11, 2020, at https://www.medrxiv.org/content/10.1101/2020.04.14.20062463v1.full.pdf

[2] S W Atlas, ‘The Data is in – Stop the Panic and End the Total Isolation’, The Hill, April 22, 2020, at https://thehill.com/opinion/healthcare/494034-the-data-are-in-stop-the-panic-and-end-the-total-isolation

[3] Ibid.

[4] Ibid.

[5] D Prager, ‘Our Dress Rehearsal for a Police State’, Townhall, April 28, 2020, at https://townhall.com/columnists/dennisprager/2020/04/28/our-dress-rehearsal-for-a-police-state-n2567744

[6] ‘Coronavirus: Mobile tracking app could be compulsory, Morrison says’, 9 News, April 17, 2020, at https://www.9news.com.au/national/coronavirus-government-mobile-tracking-app-could-be-compulsory-scott-morrison/c52d3c23-dc65-4942-b878-269f59e7d8dd

[7] R C van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge/UK: Cambridge University Press, 1995). p 283.

[8] C Schmitt, Politische Theologie (2nd ed, 1934), p 20

[9] Ibid, pp 181–2.

[10] L Rees, The Dark Charisma of Adolf Hitler: Leading Millions into the Abyss (Croydon/UK: Ebury Press, 2013), p.132-3.

[11] Domarus, vol.II, p.790. Quoted from Laurence Rees, The Dark Charisma of Adolf Hitler: Leading Millions into the Abyss (Croydon/UK: Ebury Press, 2013), p.136.

[12] E W Lutzer, Hitler’s Cross: How the Cross was Used to Promote the Nazi Agenda (Chicago/IL: Moody Publishers, 2012), 64. See also:  R G Waite, Adolf Hitler: The Psychopatic God (New York: Basic Books, 1977), p.27.

[13] Bill Muehlenberg, ‘Liberty is Too Important for Bureaucratic Bungling’, The Spectator Australia, April 19, 2020, at https://www.spectator.com.au/2020/04/liberty-is-too-important-for-bureaucratic-bungling/

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

[15] Malcolm Farr and Daniel Hurst, ‘Australian Government Plains to Bringing in Mobile Phone App to Track People With Coronavirus’, The Guardian, April 14, 2020, at https://www.theguardian.com/australia-news/2020/apr/14/australian-government-plans-to-bring-in-mobile-phone-app-to-track-people-with-coronavirus

[16] Malcolm Farr and Daniel Hurst, ‘Australian Government Plains to Bringing in Mobile Phone App to Track People With Coronavirus’, The Guardian, April 14, 2020, at https://www.theguardian.com/australia-news/2020/apr/14/australian-government-plans-to-bring-in-mobile-phone-app-to-track-people-with-coronavirus

 

 

14 comments
  • Stephen Due

    AZ. I think your reference [1] may not be a good choice as it is pre-print only. The paper reports research that seems to support the view held by some epidemiologists, early on, that the Infection Fatality Rate (IFR) of the new virus would be no worse than that of pandemic influenza. However the IFR seems to have varied from place to place. A typical value might be nearer 1%, which is now being quoted in some sources. The latest antibody prevalence study from New York State indicates 12% of the population of 20 million have been effected, and deaths to date are about 19,000, so the IFR for New York would be not far under 1% (i.e. 19,000 / 2,400,000) or about 10 times that of influenza. Of course it increases dramatically within the population as the age of those infected goes up.

  • Stephen Due

    Sorry, effected = infected

  • Michael Fry

    Stephen Due
    Reference [1] is one of a number of early, convenience studies trying to get a handle via antibody testing on the number of people who have already been infected, ie to better understand the denominator. Unsurprisingly at this early stage, these studies vary widely in their estimates of percent of population already infected, eg from 3% up to 35%. The WHO are currently estimating 2-3% of world population. 2% of our population is about half a million. With currently 93 deaths this puts our IFR way, way below an average flu season. I haven’t done the numbers for all countries, but I suspect in the end the numbers will be no worse than a bad flu season for most countries, with New York being a worst case.

  • Stephen Due

    MF. Yes I agree with you that various scenarios can be debated re the IFR, and certainly better data will come in. I think the apparent lack of IFR data for Australia is really shocking, considering the situation. This is urgent, basic research. Importantly too, the distinguished epidemiologists who early on, when there was little hard data for this virus, argued for using influenza data as a yardstick, knew what they were doing. The models that sought to predict the future of this virus based on grossly inadequate data for the virus itself were very wrong. Yet theirs was the deeply flawed ‘science’ that Australian governments chose to follow.
    My other point would be that I think the police state analogy is important – well done Augusto – because it refers the debate about the lock-downs beyond the standard utilitarian arguments and pushes it in the direction of basic political rights or liberties. These liberties might be considered either in the constitutional context or as natural or human rights.

  • Michael Fry

    Couldn’t agree more Stephen, on all your points. I am willing to commit to a small wager that the 2020 Covid-19 IFR will be no worse on average than a bad flu season.

  • Stoneboat

    I became sceptical of The Prime Minister’s Christian bonafides when I listened to his election victory speech. IIRC he spoke of his wife and daughters as being “blessings’ but never told us from where those blessings came. On that victory night with the eyes of the nation upon him, a Christian Prime Minister would have jumped at the chance to rightly give all the praise and honour and glory for the electoral victory and his many “blessings” to the Lord. This was an ideal opportunity to spend two minutes in the media spot light sowing the Gospel of The Kingdom of God into this nation and setting the scene for how his government was to be run – and it would have pointed to a Prime Minister who would rally Australia to respond to future crises with Faith, not fear; with an appeal first to God, not to man.
    .
    But the Prime Minister did none of this.
    .
    In his victory speech, Scott Morrison didn’t even ‘name drop’ the Son of God.
    .
    The response to Scott Morrison’s election in Christian media was interesting – a lot of talkback comment along the lines that he used the word blessings, so that makes him a Christian. And he goes to church too, so that proves it.
    .
    I never heard anyone mention Scott Morrison’s obvious reluctance to be seen putting Christ as his head, and as the head of his government..
    .
    The PM’s trampling on the freedoms of all Australians is bad fruit and God is a fruit inspector. Ditto for the enablers and slavers. You will give an account to God.
    .
    For the rest of us who are suffering, whether Christian or not, Australia would do well to remember God’s promise in Proverbs,
    .
    Righteousness exalteth a nation:
    but sin is a reproach to any people.
    Proverbs 14:34

  • ianl

    Morrison commenced the advent of this mobile phone application by: 1) stating it would not be compulsory; 2) promising its’ full programme code would be publicly released for forensic analysis by disinterested 3rd parties.

    He has unsurprisingly broken both those commitments with a few weeks. Compounding this, the application is specifically designed for only two mobile phone operating systems – either the Apple Iphony or Google’s Droidy. If one owns a phone with a different o/s (as I do), this application will not install. I have no use for In Your Face, or Tweetie Pie, nor any of the Apple or Google approved applications that one may be permitted to use.
    With good evidence, I regard both these suppliers (Apple and Google) plus Lucky Zucky as intrinisically untrustworthy with personal data, let alone their childish approved programmes and cut-down o/s. Yet Morrison is edging towards forcing people into this on pain of prosecution or loss of much reduced freedom.
    What a horrible country this is becoming.

  • Peter Marriott

    Very good article in my mind. I find it a little disturbing to listen to my friends, acquaintances and relatives and how they never seem to question this whole lock down and seem to slip easily into endorsing the fear associated with it, and in particular the use of our own police to enforce it. I think it was T.S. Eliot who wrote that wisdom consisted largely of scepticism and uncynical disillusion which no doubt needs a little reading and checking on the part of the individual and the media seem to have replaced the individual checking and reading with their constant opinionated ‘news’. On the severity comparison, if the severity is about the same as influenza, then on a real level playing field comparison this would make influenza worse, simply because there is a vaccine for the flu while there in not for covid-19.

  • Guido Negraszus

    Alarming indeed. Right now we don’t have a parliament, no opposition, and a media which 100% surrendered to the government. Well, except for Andrew Bolt as usual. I can’t make out another media figure who takes on the government on this lockdown. Even Chris Kenny, usually on the money, has no questions whatsoever.

  • ianl

    Now we have text SMS being sent from AusGOV to one’s mobile urging download, if that has not been done.

    So, AusGOV is monitoring by mobile number (and therefore identity) exactly who has and more importantly who hasn’t, downloaded and installed this programme. Exacyly what Morrison et al are still insisting (ie. personal ID) is not to happen. Liars, liars.

  • Homer Sapien

    The mystery of the Wuhan virus got an extensive airing on those pages, looked at from all different angles, except Leviticus : 11. I wonder why, as there are quite a few Christians among us, I assume?

  • lloveday

    The Book of Leviticus is the third book of the Torah and of the Old Testament, written centuries before Christ.
    .
    Mark 7-18, written just a few decades after Christ’s death says: “whatsoever thing from without entereth into the man, it cannot defile him”.
    .
    I’ll follow the Gospel.

  • john.singer

    As an octogenarian I am aware that I am threatened with even greater restrictions on my movements as the Government eases restrictions on younger Australians. My question is : Can I free myself from this incarceration using a writ of Habeas Corpus? If not can I make The Prime Minister (in National Cabinet) do his job equally for all Australians with a writ of Mandamus?

  • lloveday

    john.singer
    I do not purport to give a definitive answer as to remedy(s) you may have, nor have I read the Act in full, but this general overview by prepared by Corrs Chambers Westgarth seems to me to be a get-out-of-jail-free card, in particular points 3, 4, 7 & 8.
    *******.
    The Age Discrimination Act 2004 (Cth) prohibits both direct and indirect discrimination on the ground of age. Age is defined as including age group. Accordingly, an act of discrimination does not have to be linked to an exact age but can be related to the age group of a person.
    .
    Direct discrimination occurs when someone treats, or proposes to treat, the aggrieved person less favourably than it treats, or would treat, a person of a different age under circumstances that are the same or materially the same, if the discriminator does so because of the aggrieved person’s age or a characteristic that appertains or is generally imputed to a person of that age.
    .
    Indirect discrimination occurs when someone discriminates against the aggrieved person on the group of their age by:
    .
    Imposing or proposing to impose a condition, requirement or practice;
    .
    The condition, requirement or practice is not reasonable; and
    .
    The condition, requirement or practice has or is likely to have the effect of disadvantaging persons of that age.
    ^
    ^
    The Age Discrimination Act 2004 (Cth) makes it unlawful to discriminate against a person on the ground of age in the following areas of public life:
    .
    1 All aspects of employment including recruitment practices, termination, conditions of employment, access to promotion and training opportunities;
    2 Education;
    3 Access to premises;
    4 Provision of goods, services and facilities;
    5 Provision of accommodation;
    6 Disposal of land;
    7 Administration of Commonwealth laws and programs; and
    8 Requests for information on which age discrimination may be based.

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