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This new book by Augusto Zimmermann and Gabriel Moens is urgently needed. It provides a detailed examination of the legality of our governments’ actions during the pandemic.

We are still reeling from the effects of not just Covid-19, but of government responses to it. Indeed, numerous people, including myself, have argued over the past two years that in many ways the cures have been far worse than the disease. I and others have warned that in using an emergency or a crisis as an excuse, governments can massively increase power and control, while wresting away basic human rights and civil liberties from the populace.

That is exactly what has happened in Australia and most of the Western world. Indeed, I addressed this very matter in a chapter in another crucial volume that Professor Zimmermann has edited: Fundamental Rights in the Age of COVID-19 (Connor Court, 2020).

Violating the Rule of Law

In this brief (130 pages) but very important book, two expert law professors look at Australian and international law, arguing that the use of emergency powers has directly impinged upon standard Western legal practice. Say the authors:

Since March 2020, Australia’s governments have been using their powers to excessively coerce, obstruct or otherwise unreasonably interfere with the life, liberty, movement, and property of the citizen. These governments are exercising emergency powers to impose measures that profoundly undermine basic principles of the rule of law. …

These governments have adopted extra-constitutional measures that undermine the doctrine of the separation of powers and the principle of equality before the law, as well as the basic right of citizens to object to any form of medical treatment, including mandatory vaccinations, which are now increasingly imposed by the government.

They go on to point out some basic truths about our legal system: “One of the primary goals of the judicial function is to protect citizens against any adverse impact of their enjoyment of fundamental legal rights.” We certainly have seen a massive erosion of these rights over the past 24 months.

The authors discuss how the concept of the rule of law has developed over time, and then say this:

“Unfortunately, the classical understanding of the ‘rule of law’ is gradually becoming obsolete and overturned by ‘progressive’ ideas that incorporate a myriad of statist considerations which seriously disregard the liberal-democratic legal traditions upon which Australia was once founded.”

Eroding Democracy

The issue of the separation of powers is also addressed, and they also look at how governments have used emergency powers in reckless and draconian fashion.

As basic civil liberties have been stripped away from the people, a nation like Australia can no longer refer to itself as a true democracy. That and the continued use of fear-mongering and panic-porn to keep the people in perpetual terror makes for the perfect storm: despotic rule which will eagerly be embraced.

While many have defended the federal government, claiming its hands are tied while the states can make these sort of alarming decisions and policies, the authors remind us of how the Australian Constitution works, including sections 51 and 52 which speak to these matters. And section 109 “provides that federal laws must prevail over those of a State to the extent of an inconsistency.”

Medical Treatment

They also cite various court cases and legal experts who have invoked these sections. Those include things like the provision of medical services. For example, the 2009 Wong v Commonwealth, Selim v Professional Services Review Committee dealt with such issues. It said, in part,

“the ‘no conscription’ requirement to be found in that constitutional provision amounts to an explicit limitation on mandating the provision of medical services, for example, compulsory vaccination…”

In other words, state the authors, “no citizen shall be in any way coerced into any medical treatment whatsoever, including vaccination. A medical treatment which is imposed upon a person without his or her informed consent is a trespass upon that person.”

Resistance

Because of the seriousness of all this, the authors feature an entire chapter on the matter of civil disobedience. They cite the Preamble to the Universal Declaration of Human Rights which says,

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

They examine the long-standing tradition in western legal-political history of the right to disobey the state when basic human rights and liberties are violated:

“Since the primary purpose of representative democracy is the preservation of fundamental rights and freedoms, one must conclude that citizens have a lawful right to resist measures that grossly violate the enjoyment of these basic rights and freedoms.”

They discuss in some detail four features of such rational civil disobedience: effectiveness, striking a healthy balance, willingness to accept the penalty, and proportionality.

Legal Positivism

Lessons from history are also discussed. They see Germany in the 1930s as a primary example of what we need to learn from. They note that most lawyers then supported Hitler. They refer to one German lawyer who argued that “the government can make any law it pleases so long as it is consistent in enforcing it.” They say he lived long enough to regret having offered this viewpoint. Would that Australian rulers today had such a change of heart.

This chapter is one of the longest and most detailed in the book — and perhaps the most important. Say the authors:

“There is no doubt that Australia, now that it has embarked on rule by health decree, would be able to learn from this dreadful epsilon in German history.”

Abuse of Power

In their concluding chapter, we read this:

The use of emergency powers in Australia certainly results in the abuse of power by arbitrary measures that profoundly undermine the rule of law. …

Australians have passively watched their governments use a broad range of extra-constitutional powers to control almost every single aspect of their lives. The governments have acquired emergency powers that entitle public officials to detain citizens, search their premises without a warrant, and even force entire populations into lockdowns once this might be deemed necessary to protect public health.

Their final words must be heeded:

What is happening in Australia is profoundly tragic. John Locke famously 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.”

The Australian people have a lawful right to resist and to demand the full restoration of their basic rights and freedoms. We can only hope that the High Court will be willing to assist the people in the process.

Thank you Professors Zimmermann and Moens for this very important and urgently necessary book — one that is well-written and well-documented.

Available in Australia from Connor Court.

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Originally published at CultureWatch.