Vaccine Mandate Court Case: Should Australia Have a Bill of Rights?
Last week, at 4 pm on Friday, a Supreme Court Judge read out his decision on two matters regarding mandatory COVID-19 vaccinations. In this landmark case, two groups of plaintiffs had appealed against the Public Health Orders of the New South Wales (NSW) Health Minister Brad Hazzard, particularly those relating to mandatory coronavirus vaccinations.
To the disappointment of many onlookers, the judge dismissed both appeals and upheld Minister Hazzard’s Public Health Orders.
In essence, as this article will argue, the judge is affirming that NSW citizens have no rights except those that are given to us by parliament (or, even worse, by the arbitrary decision of a minister of parliament as advised by unaccountable and often incompetent bureaucrats).
Importantly, the judge’s decision was reached based on the erroneous legal doctrine of Parliamentary Sovereignty articulated about a century ago by A.V. Dicey.
This doctrine assumes, among other things, that we are not humans made in the image of God; we are ‘cattle’ to be disposed of at the whim of our leaders.
Hence, the judgement made last week is based upon a flawed non-Christian philosophy.
Do We Have Basic Human Rights in Australia?
Australia’s governmental system is often called a “Westminster democracy”, but a more correct term is a “Constitutional Monarchy”. Therefore, in considering the case at hand, it is instructive to consider the historical development of Australia’s legal system.
Some people today notice concerning decisions being made by governments and, consequently, believe that a Bill of Rights would solve this problem. They argue that our Australian Constitution is deficient because it does not include such a Bill. Nonetheless, few realise that the Constitution is an “Appendix” (literally, a small thing hanging on to a bigger thing); it is not the be-all and end-all. I will explain this at length below.
The fact that not only citizens but governments and courts are ignorant of these things does not diminish their reality and force. This would be quickly demonstrated if they were raised in the High Court.
Unfortunately, during the last fifty years, these critical facts have not been taught in law schools. Consequently, almost all lawyers and judges are ignorant of them. Instead, they follow the deficient philosophy called “legal positivism” and “the doctrine of Parliamentary sovereignty”. This philosophy teaches that the decision of any given parliament is binding as law, even if it is outrageous and contradicts our British heritage (which is based on Biblical principles and centuries of thoughtful development).
Amazingly, few people (even lawyers) know why British “common law” is called by that name. It is because the law should be common to (i.e. apply to), both the King (or Queen) and the people. This is because God’s law is above the decree of the King, contrary to what is common in Muslim countries, tribal cultures and Marxist states.
The Foundation for Law in Australia
Rev. Dr David Mitchell, a brilliant, kind and gifted man with two doctorates in law, was possibly the preeminent Australian constitutional expert. In 1960, the Queen appointed him to Botswana, Africa, to assist in handing them their independence. Mitchell died in 2018 at a very old age.
He explained to me that the basis of laws in Australia should be considered in the context of four features (the first three points are the ‘bigger thing’ that I mentioned above, to which the constitution is appended):
- The various state constitutions (as of 1900): each state was considered a self-governing colony under Queen Victoria. Victoria, in turn, swore at her coronation (as did Queen Elizabeth II) to uphold the Bible.
- All of British parliamentary law and precedent (at the time of federation in 1900): this includes the Magna Carta (1215) and the Bill of Rights (1688/1689), among other documents. Contrary to what some suppose, these do transition across from Britain and hold weight in Australia.
- All of British Common Law in 1900: this includes each decision by courts in Britain aside from the decisions made by parliament.
- What we call our Federal Constitution: it is important to remember that this is merely an Appendix — the ‘deed of arrangement’ for the self-governing colonies to amalgamate — and, therefore, it did not need to cover aspects of legislation and precedent that are already covered by the first three aspects of legal heritage.
Our parliaments enact laws. These laws should not contradict the legal heritage with which Britain has provided us. Nevertheless, Australian parliaments often make unconstitutional laws. For example, they have legislated that there is no right to self-defence in Australia.
On the contrary, the 1688/89 British Bill of Rights demonstrates that citizens do have the right to self-defence irrespective of the government’s decisions (if I had the vast legal fees necessary,, I could take this argument to the High Court and demonstrate my point).
Even worse, state premiers have been pursuing unconstitutional measures, such as lockdowns, during COVID-19. These contravene the Magna Carta and other documents on many grounds. For example, they deprive a healthy person of the ability to earn a living or to travel unimpeded on the ‘King’s highways’.
Our British heritage is described well in the great 35-page booklet “The Case for Fundamental Rights” written in 1988 by barrister Terry Shulze. Shulze also wrote a summary 14-page article in 2018 — I have access to both.
As an aside, if Australia becomes a Republic we would be cut off from our well-evolved British legal heritage, rendering us vulnerable to outrageous decisions.
The issue with governments legislating for human rights (for example, anti-discrimination, freedom of religion, etc.) is that, if one parliament can legislate to give me a right, a subsequent parliament can just as easily legislate to remove that right!
My human rights are, as is so eloquently expressed in the United States Declaration of Independence, “inalienable”, “endowed by our Creator … God”.
Few People — Even Judges — Recognise This Heritage
I was with Terry Shulze in the NSW Supreme Court of Appeal in 1988. Shulze was appealing against the Egg Board’s eviction of a ‘rebel’ egg farmer, Paul Galea, from his farm. During the appeal, I observed how Shulze educated the three panel judges on the same points I have outlined above.
I saw the realisation as the three judges understood what he was saying! They began to realise that the NSW Parliament is not sovereign. Instead, it is subject to both our Australian Constitution and British legal principles which were transferred across from Britain into Australia in 1900 or 1901 at the time of the federation.
At a subsequent hearing, they would likely have made a decision and declared the Egg Board law to be unconstitutional.
Because the NSW government has acted under a law that is null and void, this would have meant that the 3,000 egg farmers who had been put out of business by the harsh Egg Board law could have sued the government for damages.
So what did the legal profession and the government do?
Within days, the NSW government rapidly repealed the Egg Board law, instantly sacking three hundred Egg Board bureaucrats.
Consequently, when we re-appeared in the NSW Supreme Court of Appeal, the judges said that they did not need to make any decision. The law no longer applied!
How This Applies to Last Week’s COVID-19 Decision
The judge, in last week’s decision, claimed that Australia has no Bill of Rights and, therefore, we have no right of bodily integrity. In effect, we have no rights except those bestowed upon us by parliament.
Once again, the serious problem with that is that if one parliament can give citizens a right, then a subsequent parliament can take it away just as easily.
This judge did not recognise (either out of ignorance or willful disregard) that Australia does effectively have a Bill of Rights: that the Magna Carta still applies to us today.
After the death of King Charles II, his relatives, Prince William and his wife Mary (of the quaintly named Dutch province of Orange), were invited to become king and queen provided they signed the 1688/89 Bill of Rights.
This was a precondition of William becoming King of England. In essence, it is a covenant limiting the power of the monarch and the power of parliament and placing their authority under that of God.
The English Bill of Rights is an act that the Parliament of England passed in 1689 (although signed by William in 1688). The Bill establishes a separation of powers, limits the powers of the monarchs, enhances the democratic election and bolsters freedom of speech.
Furthermore, the NSW judge also erred in saying today that commonwealth laws and the Australian Constitution do not apply to the making of laws by the NSW Parliament or orders of regulations made by a Minister of the NSW Parliament.
My response is simple: Lockdowns contradict the Magna Carta (as shown above). Consequently, at what point will this behaviour end? Once the government ignores one section of the Magna Carta by allowing lockdowns, what stops them from ignoring all aspects of the Carta?
Will we even eventually see governments ignoring the presumption of “innocent until proven guilty“?
___
Image by Kgbo on Wikimedia Commons.
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So very important that justice for all be held in high esteem and those who seek to undermine it be held accountable
So where do we go from here? What’s the solution for the ” little person” threatened to lose their job if not bowing down to the government tyranny?
Is there a place/website/shop where I can acquire Terry Schultz’s booklet “The Case for Fundamental Rights”? I read his article at Gumshoe News and liked it a lot. Earlier this year I read American J Budziszewski’s Natural Law for Lawyers. Terry’s article at Gumshoe News gives an partial Australian history.
I’m trying to purchase erry Schultz’s booklet “The Case for Fundamental Rights” also but can not find it anywhere.
Thankyou Lex
Please send me the material you refer to.
Appreciate this, AFL solicitors.
The decision of the court on that day must be respected, but as I have stated from
The beginning.
“We win or we Learn”
We learnt allot as a nation and freedom loving citizens.
“They are, and will remain inalienable rights!”
#HoldTheLine for nothing was achieved by giving up.
Bless you
Our health is our decision not the government or anybody else’s and the bottom line they dont care anyway bigger agenda behind this one
So the people who make the laws are above the laws and the people who enforce the laws don’t care about the laws. The only only law seems to be retribution and that is what the people need to serve out to the government, judges and the police force
Every one needs to start studying common law and know our rights for a start. Then claim your sovereign person that is the highest form of law above government and judicial law
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (No. 65 of 2003)
Part 8 — Amendments about the Crown
Can anyone please tell me how they removed the Crown without a referendum. Is this legal? And does it by default make other states complicit in treason?
Can anybody get onto todays case in the Supreme court pls..it says not started hmmm
What are absolute rights?
International human rights law recognises that few rights are absolute and reasonable limits may be placed on most rights and freedoms. Absolute rights, however, are distinguishable from non-absolute rights: see list in the box above.
Absolute rights cannot be limited for any reason. No circumstance justifies a qualification or limitation of absolute rights. Absolute rights cannot be suspended or restricted, even during a declared state of emergency.
What are non-derogable rights?
Rights may also be characterised as derogable or non-derogable. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides for a derogation power, which allows governments to temporarily suspend the application of some rights in the exceptional circumstance of a ‘state of emergency’ and subject to certain conditions, including official notification. Recourse to the derogations regime is rare. To date, Australia has not exercised its derogation power under Article 4 of the ICCPR.
Certain rights, however, are non-derogable, that is, they cannot be suspended even in a state of emergency. Article 4(2) of the ICCPR provides that no derogation is permitted for:
right to life (art 6)
freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent (art 7)
freedom from slavery and servitude (arts 8(1) and (2))
freedom from imprisonment for inability to fulfil a contractual obligation (art 11)
prohibition against the retrospective operation of criminal laws (art 15)
right to recognition before the law (art 16)
freedom of thought, conscience and religion (art 18).
Hello to everyone.
People cannot understand what is going on because people do not know what happened.
Look into the work of David John Walter.
Gough Whitlam in 1973 in essence put a corporate veneer over the Australian Land and removed us from being governed under Common Law. Our whole system of governance is a sham and in fact we have not had a legitimate PM since 1972.
We do not have Constitutional Law (Common Law – the Law of the Land) anymore because we are not being governed under it.
We are being governed under Admiralty Law (Corporate Law – the Law of the Sea – the Law of Contracts) which does not recognise the Constitution.
It is not as if they don not know about the Constitution and Common Law, it is in fact a fact that it does not exist in their world of Admiralty Law and simply cannot judge on it. This is the world of the Corporation, the world of dead entities. The judges themselves cannot adjudicate on Common Law matters as they are what is referred to as “Coram’s”, that is, they have no jurisdiction and are just ruling on Corporate Law.
The only way to stop this tyranny and return “we the people” as the highest law of the land, is to reinstate the offices of Common Law, the Common Law Judiciary and convene Common Law Courts, put the treasonous perpetrators on trial by a jury of their peers.
If we re-instate the Constitution under Common Law (as previously said, does not exist in our system today) we can enforce the inalienable rights we have as living breathing human beings. We cannot do this under the current Corporate Law system, as again, it is not recognised here as goes to explaining how they can just disregard it.
Hello, It’s been a long time coming that Australian’s realize the extent of the fraud that is the Commonwealth of Australia and the deception behind it. There are so many levels of deception and half stories, it’s a sure way to keep ‘the people’ separated, and divided by confusion, lack of facts and fraud. The reality is, our Commonwealth courts have been usurped by Roman corporate circuses and our governments are currently in administration of the fascist pharma. There is only 1 remedy to this whole mess and it sets a safe clear line of who to trust, until our courts and rule by the people for the people of the people is restored. http://article61pld.com and the evidenced based Practical Lawful Dissent – PLDInternationalAustralia Facebook movement. Article 61 as our shield and our pens as our sword, holds individuals accountable, and is the tried and tested remedy for treason and to defend our countries against tyrannical regimes.
I think my query is whether there is a Constitution/Common Law connection back to the Crown and UK considering the false premise this continent, Terra Australis was taken for the Crown? That premise, in my understanding, was a term called terra nullius or a land that was legally deemed to be unoccupied or uninhabited. This expression,terra nullius was a Latin expression coming from Roman Law also meaning a land belonging to no one. There is a legal understanding of “first in time first in right” under property laws and maybe other areas of law as well so in moving forward with integrity we seriously need to consider the claims that the Original Sovereigns have maintained for 233 years over this land. They did not see land as something to own or possess, they saw their purpose as stewards of the land, to care for it and to look after it. I think it goes deeper again too, to there being a spiritual connection to this land.
Hello, this is a refreshing article and comments. It’s been a long time coming that Australian’s realize the extent of the fraud that is the Commonwealth of Australia and the deception behind it. There are so many levels of deception and half stories, it’s a sure way to keep ‘the people’ separated and divided by lack of facts and a huge fraud. The reality is, our Commonwealth courts have been usurped by Roman corporate circuses, judges are bankers, not working for the crown, and our governments are currently in administration of the fascist pharma. There is only 1 remedy to this whole mess and it sets a safe clear line of who to trust, until our courts and the rule of law is restored by the people for the people of the people. Article 61 of Magna Carta 1215 is our safety shield and our pens are our sword, holding individuals accountable, for treason and providing lawful excuse to take back what is ours. This security clause is currently in place and is the tried and tested remedy for treason in the Commonwealth and is proven to defend our countries against tyrants and tyrannical regimes.
if people want Terry Shulze’s booklet “The Case for Fundamental Rights in Australia” then send me an email to stewart.lex@gmail.com and I can email it back to you as a pdf document.
Australia definitely needs US style inalienable rights. The doctrine of parliamentary sovereignty is a disaster.
Very interesting article.
I hope the information below is additionally helpful; as it relates to a legal decision (2010), laws and “rights”, to potentially assist anyone with these ‘no jab no job’ mandates. It’s also a “heads up” to any relevant judges, barristers, lawyers, politicians, government/ health officials/ bureaucrats, medical practitioners, pharmacists, nurses, paramedics and those working in the police and defence forces and in industry sectors, such as aged-care, healthcare, education, hospitality, retail, trades/ construction, manufacturing and aviation etc.; and especially for anyone being faced with or has lost employment over forced COVID-19 “jab” mandates, across Australia.
Here are 2 areas for any legal appeal and to challenge employers and state/ territory governments with laws/ rights i.e.
1. Breach of civil liberties (common law) and
2. Breach of informed consent to medical treatment (law of trespass and as stated under Australian Immunisation Handbook website and the Australian Charter of Healthcare Rights)
The first area concerns a 2010 High Court decision in South Australia, where the judgment was ruled against the SA Government, in favour of bikie gang members. The judge’s decision involved a law made in the South Australian Parliament (Serious and Organised Crime and Control Act), a breach of civil liberties and a statement that court decisions should be independent of executive government. This judicial ruling could (should) be used as a precedent legal case to help anyone who has been coerced with these unlawful ‘no jab no job’ mandates.
In a 2019 post on Gumshoe News – https://gumshoenews.com/2019/06/26/recover-the-law-part-2-the-breadth-of-due-process/ (scroll down to heading ‘The Bikies in South Australia’), it refers to a ‘breaking news’ article on news.com.au in 2010:
“Finks bikie gang say High Court ruling is vindication The South Australian Government must go back to the drawing board with its anti-bikie law after the High Court’s ruling it is unconstitutional. The High Court today declared as unconstitutional sections of SA’s controversial laws banning gang members from associating.
The majority judgment throws into doubt a key aspect of South Australia’s Serious and Organised Crime Control Act, which allows restrictions to be placed on gang members without a court having the power to review the evidence. The High Court has sided with the Finks Motorcycle Club, upholding a ruling by the SA Supreme Court in 2009. Following today’s judgment, the South Australian government has been ordered to pay costs to Finks motorcycle gang members Sandro Totani and Donald Hudson.
A majority of the High Court bench considered that South Australia’s organised crime act was incompatible with the political independence of magistrates courts. Chief Justice Robert French said courts and judges needed to decide cases independently of the executive government. “That is part of Australia’s common law heritage, which is antecedent to the constitution,” he wrote in his judgment.
The court had misgivings about obliging magistrates to impose serious restrictions on a person’s liberty “whether or not that person had committed or was ever likely to commit a criminal offence”. [Emphasis added].”
Thus, there was a civil liberty breach at common law and a judicial statement for court decisions to be made independent of executive government. Hmm.
Now with regards the second area of concern (informed consent), please refer to the Australian Government website (Australian Law Reform Commission – ALRC), where there is a webpage entitled “Informed consent to medical treatment” under link https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-dp-81/10-review-of-state-and-territory-legislation/informed-consent-to-medical-treatment/
In the first paragraph 10.47 (second sentence) it states: “Under the law of trespass, patients have a right not be subjected to an invasive procedure without consent or other lawful justification, such as an emergency or necessity.” Emergency (as in medical emergency) could be, for example, when a person is badly injured or unconscious, and cannot provide informed consent, in order to be given life-saving medical treatment. Emergency is also used for “public safety”.
In the Supreme Court of NSW Hassam vs Hazzard (mentioned in this article by Lex Stewart), Barrister, Peter King (for the plaintiff), cross-examined (livestreamed on Fri. 1/10/2021) a witness, Ms. Kathryn Boyd (NSW Govt. employee – Premier/ Cabinet). Peter King asked Ms. Boyd, if there was ever a declaration of emergency for COVID-19 in 2020 issued by the NSW State Government / Health Minister, under the Public Health Act. The reply given by Ms. Boyd was “No”.
With regards ‘no jab no job’ mandates, the law of trespass applies, as a person has a “right” not to be subjected to an invasive procedure, without informed consent or other lawful justification.
But what is informed consent?
Many will know of valid legal consent, as shown on the Federal Government website “Immunisation Handbook” https://immunisationhandbook.health.gov.au/vaccination-procedures/preparing-for-vaccination#accordion-para-11276-189034 – under heading “Valid Consent” – specifically point 2 which states: “It must be given voluntarily in the absence of undue pressure, coercion or manipulation.” Thus, if someone has to get the COVID-19 jab or lose their job, this is against informed legal valid consent, because it is coercion.
Also, there is a fact sheet for clinicians called “Informed consent in health care” – issued by the Australian Commission on Safety and Quality in Health Care in 2020
https://www.safetyandquality.gov.au/sites/default/files/2020-09/sq20-030_-_fact_sheet_-_informed_consent_-_nsqhs-8.9a.pdf – it states:
It states “…. Informed consent is integral to the right to information in the Australian Charter of Healthcare Rights, and recognised in Professional Codes of Conduct. Additionally, the National Safety and Quality Health Service Standards require all hospitals and day procedures services to have informed consent processes that comply with legislation, lawful requirements and best practice.”.
Key words in above paragraph are “right” and “Rights”.
Summarised Comments:
1. Court case decisions need to be independent of executive government, especially when it comes to civil liberties (rights), constitution and common law i.e. ‘no jab no job’ mandates are a breach of civil liberties and the 2010 SA High Court judgment decision, sets this as a precedent.
2. Law of trespass (a person’s right not to be subjected to an invasive procedure without valid legal informed consent), definition of valid consent as per Australian Immunisation Handbook website and a patient’s right (Australian Charter of Healthcare Rights), all need to apply where there is coercion and manipulation e.g. loss of employment, unless COVID-19 jabbed.
Importantly, “absolute rights” apply to individuals and families; as secure employment with income, freedom of movement, freedom to buy and sell products/ services and attend gatherings and for social (safe) interaction etc., all help with our general, spiritual and mental health well-being and livelihoods.
We need righteous laws, proper governance and common-sense to prevail, as human rights matter.
Wow! Thank you for your input. I enjoyed reading your comment as much as I did reading the article. I am educating myself and found this very helpful.