The Law

The Moral Obligation of the ‘Lesser Magistrate’

More than a million workers in Western Australia (WA) have now been mandated to receive their third COVID-19 vaccination. Those who refuse to comply with the executive order will have their jobs summarily terminated. They will lose their incomes and, as such, their capacity to provide for their families.[1]

If that wasn’t bad enough, now the unvaccinated are forbidden even to have a drink at a pub. “Not being [double] vaccinated means you will miss out,” communicates new WA Health Minister Amber-Jade Sanderson. As she menacingly declared:

If a patron attempts to sneak into a venue … they will face an on-the-spot fine or, possibly, imprisonment. The venue also has an obligation to take reasonable steps to ensure all patrons and staff entering the premises are double-dose vaccinated.[2]

Perhaps a few words about Ms Sanderson might be helpful, first elected at the 2013 state election. She holds no more than a BA in journalism and was a trade unionist before entering politics. After the 2021 election, Ms Sanderson was appointed to head the newly created Ministry of Climate Action. As can be seen, Ms Sanderson has no medical qualification and appears utterly unqualified for the health portfolio. As for her level of appreciation for human life, she has a troubled history of supporting abortion on demand and censoring offers of assistance to mothers in distress, according to Mr Darryl Budge, who is President of The Coalition for the Defence of Human Life. “Amber-Jade Sanderson MLA has ordered the WA Health Department to delete pregnancy assistance groups like Abortion Grief Australia from the ‘Contacts’ section in three pregnancy-related Health Department brochures, even though the group employs qualified counsellors,” Mr Budge says.

According to Mr Budge, “Ms Sanderson excused her discriminatory rejection of these three pregnancy-assistance services in Parliament on November 10, 2021, by saying they were ‘religious’ and ‘outdated’.”[3]  What is more, Ms Sanderson is a strong advocate for assisted suicide. She has “received praise” from Premier Mark McGowan for her “decisive role in delivering WA’s Voluntary Assisted Dying laws”.[4] As stated in her own official website,

Amber-Jade was crucial in delivering Western Australia’s Voluntary Assisted Dying laws. As the Chair of the Joint Select Committee on End of Life Choices she oversaw extensive community consultation, a year-long parliamentary inquiry and debate, and finally the passing of the Voluntary Assisted Dying Bill.[5]

So much for a concern for human life. Be that as it may, the COVID-19 mandates in Western Australia amount to an intolerable violation of fundamental legal rights. They are a confirmation of the remarkable shift of power from the legislative to the executive, which basically allows the WA Premier and his cabinet to arbitrarily decide on executive measures that intervene on every single aspect of our lives. Such a concentration of power in the hands of a few politicians paves the way for what has been traditionally described as tyranny. A tyrant is defined as the authority who assaults the property and freedoms of the citizen, and violates the Constitution. Of course, this is precisely what happens in “crisis” situations such as this ‘COVID emergency’, when the government has claimed an “emergency power” to control every aspect of our lives.

As we observe what has happened, and continues to happen, across Australia, it is important to consider how tyrannical regimes are so often brought into existence. There is always an ‘emergency’ that can be used to justify further concentration of powers and the violation of basic human rights. In Law, Legislation and Liberty (1981), Nobel laureate Friedrich Hayek commented that emergency powers always have their way of becoming permanent. Hayek thus 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.[6]

The State Emergency Coordinator in Western Australia is Police Commissioner Chris Dawson. He has also been appointed by the WA government as the COVID-19 Vaccine Commander. As the Vaccine Commander, he leads and drive the state’s COVID-19 measures that effectively violate the most basic rights of the individual, including bodily autonomy and the right to keep one’s job and earn a living.

The use of the word ‘commander’ is especially telling, suggesting the intention of the WA government has been to declare war, in effect, on its own people. After all, if we are to accept the Cambridge Dictionary’s definition, the word “commander” is “an officer who is in charge of a military operation”.[7]  By appointing the Police Commissioner as its Vaccine Commander, the WA government has effectively declared those who dare to defy its arbitrary vaccination measures are the enemy and to be dealt with as such.  The vaccine commander role in WA mirrors similar appointments around the country, including the federal government making Australian Army Lieutenant General John Frewen the coordinator of the National Vaccine Taskforce.[8]

In July last year, NSW Police Commissioner Mick Fuller requested military personnel to “boost the operational footprint” of the police and to assist with COVID-19 restriction compliance measures. “I would absolutely have the confidence in expanding the Australian Defence Force in NSW,” he said.[9]  The military contingent was called to keep citizens in ‘house orders’ [house arrest], and ensuring adherence to ‘obligatory isolation’. Calling on the army to enforce lockdown rules sets an incredibly dangerous precedent. It is certainly not constitutional to entrust military personnel with ostentatious police activities. This is a gross deviation from the military’s primary role, which is protecting the nation from external enemies, not protecting an elected government from the public.

John Locke argued that governments have 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’. If a government exceeds the limits of its legitimate power, citizens have the fundamental right to resist. As Locke famously put it:

Whenever the legislators endeavour to take away and destroy the rights of the people, 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.[10]

Locke was the author of the first systematic exposition and defence of classical liberalism. He argued in his Second Treatise (1689) that our basic rights to life, liberty and property are unalienable. They are not concessions of the State and we cannot voluntarily renounce them and become slaves. By implication, we are obligated to defend these basic rights against any threats to them. In this context, as laid out in the doctrine of the “lesser magistrate”, the option to resist falls within the important tradition of lawful resistance to arbitrary government. First detailed in the Magdeburg Confession of 1550, this doctrine teaches us that when a civil authority (i.e., a “higher magistrate”) has become an incorrigible tyrant, he has objectively abdicated his claim to legitimacy.

Consequently, the magistrates with lesser authority under him may defy and resist. For example, WA Police’s officers are lesser magistrates who have a lawful duty to protect the basic rights of every citizen, not to mindlessly follow the arbitrary commands of the State. If such an unjust order is given to these officers by their superiors, they have a fundamental obligation to refuse obedience to that order.

As for the military participation in the undermining of basic human rights by the Australian governments, the Anderson Trial of 1865 in the US made it patently clear that a subordinate military officer should not use ‘I was just following the orders of my superiors’ as a defence for carrying out an unjust command. The Nuremberg Trials of 1945-1946 made this standard patently clear to all the world.

Even when the lower magistrate disobeys the unjust commands of the State, they benefit those in superior authority because, due to their disobedience such authorities are confronted with the reality of their unlawful measures. Their disobedience gives these erratic authorities an opportunity to recover themselves, and turn from their unjust deeds. Above all, the notion that lesser magistrates must enforce orders, regardless of how abusive, unjust, or unconstitutional they are, is dangerously destructive to the rule of law. People working in the government are not to be mere machines for an all-powerful State. They are human beings and they have consciences.

St Thomas Aquinas once argued that an unjust law is not a law at all. Of course, when the lesser magistrates interpose against unjust laws, there will be a fight. Their reputations will be maligned, and they could end up imprisoned or abused in some fashion by the higher authority. Above all, civil authorities bent on tyranny never want to recognise the legitimate authority of lesser magistrates, especially when they are occupied in imposing arbitrary measures, as our governments are doing in our day.

Furthermore, it is reasonable to expect that the vast majority of lesser magistrates will compromise their moral character in order to avoid conflict, thinking mostly of their own self interest. Some may make a squabble, but will eventually conform once the courts rule against them. Others, of course, will refuse to resist tyranny because of concern for their own personal safety. In this context, the role of the people is to rally behind lesser magistrates when they take a stand. These magistrates often will not act until the people plead their case, and they are entirely assured of our unconditional support.

Be that as it may, the interposition of the lesser magistrate in the ongoing struggle for our rights and freedoms is absolutely critical for the preservation of constitutional government. The hour for them to stand is upon us the citizens of Australia.

Augusto Zimmermann LLB, LLM cum laude, PhD, CIArb, DipEd, is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA. He is also Adjunct Professor of Law at the University of Notre Dame Australia, Sydney campus. From 2012 to 2017, he served as a Law Reform Commissioner in Western Australia. While teaching legal theory and constitutional law at Murdoch University, Professor Zimmermann was awarded the 2012 Vice Chancellor’s Award for Excellence in Research, as well as two Law School Dean’s Research Awards, in 2010 and 2011. He is the author of numerous academic articles on the Rule of Law, contributing, inter alia, for a book edited by the President of the American Bar Association entitled The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat), Springer, 2014. Professor Zimmermann is also the co-editor of Fundamental Rights in the Age of Covid-19 (Connor Court Publishing, 2021)

[1] Daniel Khmelev, ‘Western Australia First State to Mandate Vaccine Boosters’, December 22, 2021, at https://www.theepochtimes.com/western-australia-first-state-to-mandate-vaccine-boosters_4171823.html

[2] Cason Ho, ‘What You Can and Can’t do if You’re not Vaccinated Against COVID-19 in Perth’, ABC, 4 January 2022, at https://www.abc.net.au/news/2022-01-04/western-australia-proof-of-covid-19-vaccination-rules-explained/100736774

[3] ‘Hundreds Gather to Oppose Anti-Freedom Zones’, FamilyVoice Australia, 15 June 2021, at https://familyvoice.org.au/news/hundreds-gather-to-oppose-anti-freedom-zones

[4] Rhiannon Shine, ‘WA Cabinet Reshuffle: Amber-Jade Sanderson Replaces Roger Cook as Health Minister, ABC News, 17 December 2021, at https://www.abc.net.au/news/2021-12-17/roger-cook-replaced-by-amber-jade-sanderson-as-health-minister/100708888

[5] ‘Hon Amber-Jade Sanderson BA MLA’, Minister for Health, at https://www.wa.gov.au/government/premier-and-cabinet-ministers/amber-jade-sanderson

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

[7] https://dictionary.cambridge.org/dictionary/english/commander

[8] Peter de Kruijff, ‘WA Appoints Vaccine Commander to Lift dismal COVID-19 Jab Rates’, WAToday, 24 August 2021, at https://www.watoday.com.au/national/western-australia/wa-appoints-vaccine-commander-to-lift-dismal-covid-19-jab-rates-20210824-p58lgd.html

[9] ‘NSW Police Request ADF Help to Crack Down on COVID-19 Compliance in Sydney’, ABC News, 29 July 2021, at https://www.abc.net.au/news/2021-07-29/nsw-police-covid-19-crackdown-and-request-adf-help/100334878

[10] John Locke, Second Treatise on Civil Government [1690] Ch 19, Sec 222.

26 comments
  • call it out

    I shuddered at the description of Ms Sanderson. Her and her ilk are enemies of our liberal democratic society.

  • Adam J

    Government and law in Australia is no longer democratic but autocratic.
    This is not about agreeing or disagreeing with a particular policy or action, it’s about the way that our political and legal systems operate. Politicians and bureaucrats are dictating the law and when questioned they claim it is based on scientific advice that no-one can see or question. This is not democracy.

  • Adam J

    And I will add to my comment that the next election will be the most important federal election for a long time. Possibly the most important since the conscription arguments of World War 1. Your vote matters and must be made to matter.

  • DougD

    Adam J – who can one vote for? Our PM has refused to fight any battle over cultural values eg he said that reforming section 18C of the racial discrimination law “doesn’t create one job, doesn’t open one business, doesn’t give anyone an extra hour. It doesn’t make housing more affordable or energy more affordable”. We are seeing the left and progressive activists taking over education in the schools and universities, the government effectively ignoring the destruction of free enquiry eg in the Peter Ridd case in which a university used its taxpayer funds to crush a professor who went against the corporate line. The government just keeps pumping money into the ABC which now functions as the left’s propaganda arm & etc, etc
    .

  • DougD

    Adam J – who can one vote for? Our PM has refused to fight any battle over cultural values eg he said that reforming section 18C of the racial discrimination law “doesn’t create one job, doesn’t open one business, doesn’t give anyone an extra hour. It doesn’t make housing more affordable or energy more affordable”. We are seeing the left and progressive activists taking over education in the schools and universities, the government effectively ignoring the destruction of free enquiry eg in the Peter Ridd case in which a university used its taxpayer funds to crush a professor who went against the corporate line. The government just keeps pumping money into the ABC which now functions as the left’s propaganda arm. The “Liberal” government has now joined Labor in supporting the carbon emissions reduction scam.
    .

  • Ian MacKenzie

    “the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country“ Hermann Goring, Nuremberg, 1946.

  • Ian MacDougall

    “People working in the government are not to be mere machines for an all-powerful State. They are human beings and they have consciences….
    “St Thomas Aquinas once argued that an unjust law is not a law at all. Of course, when the lesser magistrates interpose against unjust laws, there will be a fight.”
    A dog whistle if ever there was one, and an antivaxxer call to arms.
    Thus the Ostrich School of Climatology, so well represented at this site, is backed up here by a spokesman for the Ostrich School of Epidemiology. The subtext is ‘nothing must stand in the way of business-as-usual; not a killer epidemic, not the laws of physics and chemistry, and certainly not whatever the next big natural and/or human environmental issue is.’
    Just as members of the Masonic Guild recognise each other by the signal handshake, so members of the various Ostrich Schools have an even more distinctive dress available to them all: a thick black bag, worn at all times when out and about. It would definitely sort out the sheep and the goats; though which would be which I leave to the reader to judge.
    Posted into the QO ‘awaiting approval’ limbo at 7:35 PM, 7/01/2022.

  • Lawrie Ayres

    Doug D. There are still some decent representatives who deserve to be returned and one must keep in mind the alternative to the Coalition. My solution is to use the Senate to represent us and to act as our surrogates. A Senate that consists of right of centre individuals can make governments work in our favour. I do not like Jacqui Lambie but she has clout. A few more One Nation or Liberal Democrats could be a force to be reckoned with. They have the power to bargain.

  • Brentyn Graham

    I absolutely agree with you both Adam J and DougD. Leaders of both major parties seem to be both ineffectual in their roles. You’re right in that this election is crucial but we need hope for a leader of strength, (Dutton perhaps). We are in danger as well of a plethora of self centred Independents having a real chance of a seat.and that would do nobody any good
    To the matter of voting, in my case, I think I will stick with the devil I know and hope for the best

  • Doubting Thomas

    As a retired RAAF officer, I shudder when I see State Governments, the mainstream media, and ignorant fools in the general population demanding that Service personnel be used to augment police forces to enforce the laws. My gorge rises when I see the Prime Minister caving in to these demands.
    I can tolerate the use of the Services’ logistical resources to augment other emergency organisations in genuine emergencies, but they should never be used in any other roles. Firefighting is a job for professional firefighters, not conscripted amateurs. Military personnel have neither the authority nor the training to fill any policing role, and should never be used in such roles except in the direst of emergencies when police forces are overwhelmed by criminal elements. State governments have been tending to bludge on the Commonwealth and avoiding their responsibilities to recruit, train and maintain adequate emergency services.

  • melb

    In 1999 Irma Palasics and her husband Gregor were bound, gagged and viciously bashed when two men broke in and ransacked their home on Grover Crescent in McKellar, A.C.T. Irma Palasics later died of her injuries. Mr Palasics, severely injured, traumatised and grief-stricken, died within a year. (http://www.abc.net.au/news/2014-11-03/father-son-dna-link-irma-palasic-bashing-death-and-break-in/5861888)
    .
    In 2013 Maureen Horstman, 67, and her daughter Tamara, 26, were bashed to death with a hammer at their Warwick W.A. home. (http://www.abc.net.au/news/2015-04-14/lesley-cameron-sentenced-to-32-years-jail-over-warwick-murders/6391422)
    .
    In 2014 Robert Adamson, 64, and his wife, Cheryl, 60 of Murrumbeena, Victoria were stabbed to death in a “thrill” killing. Mrs Adamson tried to defend against the killer with a broom, the only weapon she had, before she too was killed. (http://www.theage.com.au/victoria/man-who-killed-much-loved-murrumbeena-couple-jailed-for-32-years-20141024-11bbmw.html)
    .
    In 2016 Valeria Fermendjin, aged 70 of Melville a suburb of Perth, WA, was killed during a burglary. Police said, she was a “frail lady” who “suffered injuries that were not pleasant”. (http://www.abc.net.au/news/2016-01-12/elderly-perth-woman-killed-during-botched-burglary/7083804)
    .
    In 2020 Maurice and Zoe Antill both aged in mid 80s were found in the southern Brisbane suburb of Parkinson. Police said the bodies had suffered significant injuries. Raghe Mohamed Abdi, 22 their killer, was fatally shot by police, after allegedly threatening officers with a knife. (https://www.abc.net.au/news/2020-12-18/man-shot-qld-police-logan-motorway-elderly-couple-double-murder/12996508)
    .
    These are just a few examples of the elderly victims of murder in Australia who were denied the most basic fundamental right of owning arms for self defence as a result of our gun laws. More examples are here. https://gunfactsaustralia.weebly.com/gun-control-victims.html
    .
    It should be noted that in a number of cases both husband and wife were killed. The significance of that is that whilst one person was being attacked the other, if allowed to be armed, could have repelled the attack.
    .
    In Australia, the home invaders and thrill killers know that we are defenceless. This is particularly true for the elderly.
    .
    I substantially agree with most of what Augusto Zimmermann writes about fundamental rights albeit with many reservations in the case of measures which our governments have taken to protect us from Covid19. However, I have never noted him defending our most basic right to life and the means to protect that right.
    .
    “Today, in the Czech Republic, the ability to be legally armed is considered a symbol of liberty in the country, alongside freedom of speech and free elections.” https://en.wikipedia.org/wiki/Gun_law_in_the_Czech_Republic Yet their homicide rate is lower than that of Australia. https://www.macrotrends.net/countries/ranking/murder-homicide-rate This gives the lie to those anti-gun zealots who sacrifice innocent lives for their failed policy.
    .
    I would like to see Augusto write about this most basic of rights. He could start by reviewing the judgement of the Supreme Court of the United States in Heller which found that the right to own arms for self-defence was an existing right prior to the founding of the U.S. https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
    .
    The implication of that finding by SCOTUS is that it also existed prior to the Australian constitutions and was a fundamental right never conceded by us.

  • melb

    I substantially agree with most of what Augusto Zimmermann writes about fundamental rights albeit with many reservations in the case of measures which our governments have taken to protect us from Covid19. However, I have never noted him defending our most basic right to own firearms as a means to protecting the most fundamental of all rights.
    .
    Today, in the Czech Republic, the ability to be legally armed is considered a symbol of liberty in the country, alongside freedom of speech and free elections. Yet their homicide rate is lower than that of Australia. This gives the lie to those anti-gun zealots who sacrifice innocent lives for their failed policy.
    .
    I would like to see Augusto write about this most basic of rights. He could start by reviewing the judgement of the Supreme Court of the United States in Heller which found that the right to own arms for self-defence was an existing right prior to the founding of the U.S.
    .
    The implication of that finding by SCOTUS is that this fundamental right also existed prior to the Australian constitutions and was never conceded by us.
    .
    (This is a very truncated version of what I have earlier written and which was held pending approval, probably because it contained too many links.)

  • Doubting Thomas

    I grew up in the bush where farming families and many others owned numerous rifles and guns of various types and calibres, sometimes the accumulation of several generations. With rare exceptions, where some very few individuals were able to satisfy the stringent licensing requirements to obtain and carry pistols while carrying large amounts of cash, I’m absolutely certain that not a single one of those guns and rifles was purchased or retained for self-defence. The Virginia Morse outrage (Google for those too young to remember) was actually facilitated by her husband’s possession of a weapon, and Martin Bryant used stolen weapons to commit the Port Arthur massacre. Despite wishful thinking often expressed in the US, is highly unlikely that anyone carrying a practical weapon for self-defence could have saved a single life in that case.
    While I personally disliked what I believed to be a stupid decision by John Howard to ban semi-automatic weapons that was driven by a typically hysterical media overreaction, vanishingly few of the weapons handed in for destruction would have been possessed for, or even suitable for, self-protection. One can hardly carry a long weapon around in a civilian environment in anticipation of a need for self-defence, and I’m not aware that there has ever been any express or implied constitutional right to own unlicensed pistols. Similarly, one would not rationally carry a pistol in expectation of being threatened or assaulted every time a stranger rang one’s front door bell. (It beggars belief that anyone could take seriously the decision of a highly politicised US Supreme Court – especially one capable of the Roe v Wade outrage – as a precedent on matters irrelevant to Australia’s gun laws.)
    As a matter of sheer practicality, if a defensive gun is safely and legally stored, it will not be readily or quickly enough available if a need for self-defence arises, but it will be just as readily available to an aggressor. Again, see the Virginia Morse case. Guns are not an inherently defensive weapons.

  • Phillip

    The biomedical science and professional medical advice behind this plannedemic government scare campaign is as solid as the same stupidity as the fact that state regulations say “when you drive the same car at 60km/hr in one state that will be different to driving the same car in another state at 60km/hr….therefore you need to earn and pay for another licence to drive per the same rules in each individual state”.

    Hence the apparent disease of covid is different in each state and therefore “medicated” differently. Another looney to grace our political landscape is the NT Mr Michael Gunnerreoha, with his science of medicinal applications by enforcement of locking the unvaccinated in the own house for 5 days !?! Oh and they can’t drive their car more than 30km. Now that is science !

    But wait, not to be out done by a full house of scientific playing cards by her territorial neighbour, princess palashook has royal flushed him by bigger science playing cards and postponed the opening of QLD statewide primary schools because “her sister has children who don’t want to go to school until all children get vaccinated “….

    I get a thrill of inspiration when our uneducated incompetent political leaders are there at the forefront of science and medical recovery resplendent with our best interests only at the lead up to an election.

    On another point, does a chief minister of a territory under the administration of the federal government have the authority to mandate lockdowns on Australian citizens? The population of NT is not much greater than the City of Brisbane yet I doubt the Lord Mayor of Brisbane can imprison the rate payers…?

  • melb

    Doubting Thomas

    Elderly victims of murder in Australia have been denied the most basic fundamental right of owning arms for self-defence as a result of our gun laws. Some examples those killed in their own homes are here. https://gunfactsaustralia.weebly.com/gun-control-victims.html
    .
    It should be noted that in a number of cases both husband and wife were killed. The significance of that is that whilst one person was being attacked the other, if allowed to be armed, could have repelled the attack. The case of the Adamsons of Murrumbeena in Victoria is poignant. Mrs Adamson could only reach for a broom to defend herself and her husband before they were both murdered by a thrill killer.
    .
    In Australia, the home invaders and thrill killers know that we are defenceless. This is particularly true for the elderly. The thugs can therefore attack knowing we cannot resist.
    .
    When speaking of the Port Arthur massacre you said; “is highly unlikely that anyone carrying a practical weapon for self-defence could have saved a single life in that case”. To the contrary, that outrage would certainly have been much curtailed if that had been the case. You are saying that if persons with the right to carry concealed guns (as is now the case in the Czech Republic) were present, they somehow would not have used them to stop Bryant. I find that hard to believe. Instead, the point of your argument seems to be that somehow it is better to allow the thugs of our society to kill innocents instead of allowing the innocents to protect themselves. I disagree.
    .
    As to your criticisms of the Supreme Court of the U.S.; maybe you have never heard of the late Antonin Scalia. You should read the judgement.

  • melb

    Doubting Thomas: you said about the Virginia Morse outrage: “was actually facilitated by her husband’s possession of a weapon”. This is not how it is described on Wikipedia https://en.wikipedia.org/wiki/Allan_Baker_and_Kevin_Crump.
    .
    In that account (if it is accurate) the murderers already had the rifle and they abducted Mrs Morse when the husband and three children had left the property.

  • Rebekah Meredith

    Does anyone know how to send a message of support and encouragement to Novak Djokovic? Whatever ends up happening with him, and whatever his motives are, he is fighting for all of us. I would like to let him know that we appreciate it.

  • Macspee

    Carl Schmitt was on the ball. The sovereign is he who can call out and hold on to power through a state of emergency. The premier has seized the controlling heights vis his state of emergency and is unlikely to ever stand down.
    Why he should care about those who are not vaccinated is a mystery.
    Oh, I forgot, the vaccines don’t work.

  • Doubting Thomas

    melb, I may be wrong about the Morse case, but my memory of the circumstances is that one of the two rogues had worked for the Morses, and knew that the weapon was there. It’s not important enough to go into detailed research of contemporary media, but as has often been demonstrated in here, Wikipedia is not an unimpeachable authority.
    My point remains, guns are not a practical defensive weapon in the civilian context. I grew up with guns and spent most of my working life in the military handling rifles from single shot .22s, through WW2 .303s, 7.62 SLRs, 9 mm semi-automatic pistols to sub-machine guns. I don’t believe that I would be capable in my early 80s of finding, loading, aiming and accurately firing any of those weapons in the heat of an attack. Nor would my wife, also familiar with small calibre rifles.
    No sane person keeps loaded guns at the ready in a normal household. If you do have the time to do all of the above, the threat couldn’t have been all that urgent, so you’ll have some serious questions to answer if you actually fire a shot.

  • melb

    Doubting Thomas; you said: “My point remains, guns are not a practical defensive weapon in the civilian context”
    .
    But the Supreme Court of the United States in Heller found: “It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessen­tial self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
    .
    I note that you have conceded that you may be wrong in what you said about the Virginia Morse case. I suggest that the judgement in Heller shows that you are also wrong in your assumption about guns as a practical defensive weapon in the civilian context.
    .
    This case in Western Australia where an elderly man protected himself and his wife is further proof that you are wrong about defensive use. https://www.abc.net.au/news/2009-02-23/elderly-man-who-shot-home-intruder-will-not-be/305300
    .
    I think in this debate we should try to rely only on facts because we are considering a fundamental matter of the right of the individual to preserve his or her life.

  • Doubting Thomas

    We don’t have American rights, no matter the similarities of our constitution, and I think that in this instance the simple fact that there is no provision equivalent to their Second Amendment in our Constitution proves that our Founding Fathers deliberately chose to leave it out. Diff’rent strokes for diff’rent folks.

    As for the Perth case, he was lucky. He had time to barricade himself in a bedroom, and they ignored his warnings. It could easily have gone the other way.

  • melb

    Doubting Thomas: You say; “the simple fact that there is no provision equivalent to their Second Amendment in our Constitution proves that our Founding Fathers deliberately chose to leave it out”. I think that you are wrong if you think this means our founding fathers chose to deny us a fundamental right which as I have shown by the judgement in Heller, existed at that time.
    .
    This is the law as I believe it on fundamental rights: 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 the High Court has endorsed that statement in Bropho v. Western Australia [1990].
    .
    I also 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. And the same logic can be applied to the fundamental right to bear arms for self-defence. Our founding fathers understood the law and deemed it unnecessary to specify what they understood was already protected
    .
    D.T.; you said of the Perth case which I mentioned to illustrate that you were wrong “that it could easily have gone the other way”. Well the fact is that he and his wife survived for the one and only reason that he had a gun and he used it. I must note that you really did not answer the evidence I provided for guns as defensive tools. Again I ask, let us rely only on facts.

  • Phillip

    Augusto, thank you for the enlightening essay. A major flaw & weakness within the management of the Australian constitution and its system of government has been drawn out by the failure of the Prime Minister & Federal Government to manage the Covid19 saga on a national level of ownership.
    Covid19 is a bio-warfare missile created by a coalition of USA socialist citizens and the CCP. The nation of Australia is under attack by this coalition in warfare of unknown biological tools.
    Now if in a traditional warfare sense and Australia was under attack by a foreign geo-political entity then I understand the Prime Minister of Australia would take charge and lead the Australian defense of the nation (a la John Curtin WW2).
    The three tiered system of government in Australia, is not only a huge waste of expenditure but the individual states now think like lesser magistrates they have the authority to overrule the Prime Minister and the penalize the citizens of Australia (I have an Australian Passport…I am a citizen of Australian not a citizen of an individual state) with border closures and household detention etc etc.
    Our current Prime Minister has a lot to answer for in his disregard for the sovereignty of the Australian citizens. The Covid19 is an attack on the whole nation, yet he believes it is the responsibility of a looney Premier and unelected bureaucrats looking for publicity to lead the national defense forces.
    The flaw in our constitution is we are over-governed. The sooner the states are abolished, the sooner Australia can move forward with building a resilient profitable economy.

    Rebekah M: I would like everyone to send a message to Mr Morrison to tell him he lied to international visitors by omitting to inform them that secondary to the Visa that Mr Morrison granted to enter he failed to inform them that they also need to be injected twice with poison before entering. If a lessor magistrate like Victoria issues invites & clearance to enter then how or why does the federal authority overrule?….because we have a duplicity of government, a waste of expenditure and a penny poor and confused taxpayer gullible enough to allow this stupidity to continue.
    Maybe those guns as detailed above by fellow subscribers should be re-loaded for some civil revolutionary correction to this costly system Australians cannot support.

  • Doubting Thomas

    This is a futile argument, melb. We are arguing past each other. I agree, and always have done, that people should have the right to own guns. However, I also believe that the government has the right to specify the types of guns people may own. Basically, that is the situation we have always had since at least Federation, and it persists to this day notwithstanding Howard’s gun laws.
    I also agree that people have the right to use the minimum reasonable force for self-protection. As I understand the law, that is the position that has always existed.
    Where I disagree with you is the idea that possession of guns is necessary for self-defence, or that they are inherently appropriate for that purpose. There’s no doubt that someone armed with a gun and forewarned of an attack will be in a good position to defend themselves against a violent attack, as with the Perth case you mentioned. But, as I said, it could just as easily gone the other way. Without the forewarning, and without the gun being loaded and immediately to hand, the couple may never have survived. (Which raises the question as to why was the gun so easily and readily available? Was it kept in a securely locked gun safe? If not, why not?)
    Is Perth such a notoriously wild western frontier that elderly people are so frequently attacked in their own homes that they need ready access to a gun for self-defence? It makes me wonder how I managed to reach my 80s without ever encountering such a threat, not even in years of living in the wilds of PNG. Nor have I ever known anyone who has faced such a situation. Statistically, such attacks must be so vanishingly rare as to make gun ownership for self-defence almost literally a waste of money.
    I don’t believe that the American gun laws are all that different from our own. In practical terms, where we differ is in not being able to carry guns openly in public, or to have access to everything from a peashooter to a machine gun.

  • melb

    Doubting Thomas: Thank you for your most recent comment where you say you believe people should have the right to own guns. But you then say you disagree with me that possession of guns is necessary for self-defence, or that they are inherently appropriate for that purpose. Because of the evidence I have given above, I think I am correct in that and you are not. Let us just agree to disagree on that. (By the way, my original post that was held pending approval is now up with all the links.)
    .
    However, I think that misstates the basic question I endeavoured to raise as to fundamental rights. I may have contributed to that in some way when I showed how elderly Australians have been murdered by strangers in their own homes and how if they had the right to own a gun for self-defence that may have been avoided. I also showed how in the Czech Republic that right is allowed (it is subject to compliance with appropriate requirements) and yet they have a lower homicide rate that ours (see the links above).
    .
    In this article by Augusto Zimmermann he argued in favour of fundamental rights. He quoted Locke to say “that our basic rights to life, liberty and property are unalienable”. That is why I mentioned the judgement in Heller by SCOTUS to show that the right to own arms for self-defence is a fundamental right and I suggested that Augusto should address that. The whole thing about fundamental rights is that the citizen should not have to show they are needed. It is incumbent on those who would abrogate them to show by evidence that the infringement is necessary. That has not been done in Australia.
    .
    Now whilst I recognise you as a person of goodwill and I can agree to disagree with you, I would ask you to reconsider. You could look at the first example of elderly Australians killed by strangers in their own homes that is on this website. https://gunfactsaustralia.weebly.com/gun-control-victims.html
    It is about Frank Percy Daynes, an elderly man of 91 who lived alone in Joondanna, W.A. He had his doors and windows securely locked but two thugs climbed on his roof, ripped off sheets of roofing iron and came down into his house and killed him. He had previously asked the police for help. Daynes was helpless without a gun and died a shocking death. I hope that neither of us ever are in that plight because we too, like the examples on that website, would be helpless to resist.

  • Peter Marriott

    Good piece Augusto, thank you. I grew up in the bush and guns have always been a recognised deterrent, going back to my Grandfather’s days in the outback in the 1890’s, when of course they were not licenced. They would be still be a deterrent in my view and the licencing now, if properly managed restict the licence. Concerning PNG I have done plenty of business up there, all over, from the 70’s to the 90’s and as the years went on and the white police officers left I knew of plenty of expats who had arms on hand if needed, at least they said they did. The raskals were becoming more and more bold and themselves had supplemented machetes with semi-automatic pistols, and experience taught the expats that barbed wire could not always be relied upon to keep the betel chewing robbers out. Of course the whites had to be careful because regardless of the life threatening nature, any retaliation against a local and the law would initially take the locals side. That has been my experience anyway.

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