Emergency Powers, Covid-19 Restrictions and Mandatory Vaccination: A Rule of Law Perspective

The main argument of this book is that vaccine mandates facilitate the creation of a fundamentally unfair and unequal society where vaccinated people are privileged and the unvaccinated become second-class citizens who are excluded from most activities of normal life and are regarded as lepers in their own country. In this context, this book discusses the concept of legality known as the ‘rule of law’, and the use of emergency powers in Australia. It also focuses on the unconstitutionality of mandatory vaccination, and it examines the possible use of the external affairs power in the Constitution to combat mandatory vaccination. Also discussed in this book is the role that civil disobedience can play when protesting the imposition of vaccine mandates and other draconian measures. Finally, the reader is invited to ponder how the use of emergency powers is historically used as a means of suppressing fundamental rights and dramatically increasing the power of the State. Augusto Zimmermann is professor and head of Law at the Sheridan Institute of Higher Education, and 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 (and coordinating) constitutional law and legal theory at Murdoch University, he 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 also the author/co-author/editor/co-editor of numerous academic articles and books, including Fundamental Rights in the Age of Covid-19 (Connor Court Publishing, 2020). Gabriël Moens AM is emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean of the School of Law at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels A Twisted Choice (Boolarong Press, 2020) and The Coincidence (Connor Court Publishing, 2021). Quotes from the book: “The health orders issued by Australia’s governments have the effect of violating the concept of legality known as ‘the rule of law’. These governments have adopted extra-constitutional measures that undermine the doctrine of 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”. “Mandatory vaccination, which is now steadily underway in Australia to combat the spread of COVID-19, sits uncomfortably with the jurisprudence of the High Court and our traditions of constitutional government. One would expect the Court to acknowledge these basic traditions, and that discrimination on the grounds of vaccination amounts to a violation of the spirit of the Australian Constitution”. “The rise to dominance of the authoritarian leader in Australia is a confirmation of the massive shift of power away from parliament, or the legislative arm of government, to the executive or cabinet. This process not only effectively allows the Premier and his cabinet to arbitrarily decide on legislative measures but also to intervene on every single aspect of our lives”. “The deep unease and fear that saturate Australia’s society have created a population disposed to government whose insatiable thirst for power and control leads to authoritarian measures. To avoid the growing concern of human rights violations and outright suppression of the constitutional order, the political establishment has learned about the importance of manipulating public perceptions to win support of what normally would be rejected as oppressive and undemocratic measures”. “The experience of contemporary Australia vividly exemplifies a disguised form of authoritarianism under the façade of temporary measures to combat an alleged health crisis. Rather than openly violating the constitutional order, governmental accountability is dangerously weakened by insulating the political ruler from scrutiny and a functional system of checks and balances”. “In theory, the use of emergency powers by the ruling elites should be a temporary departure from constitutional rule, in which a political leader might need to rule by decree until the emergency ceases to exist. The Australian political establishment, however, may never intend these measures to be temporary, thus seeking to conveniently maintain its extraordinary powers indefinitely. As such, convincing the population of a perpetual state of emergency gives the ruling elite broad discretionary authority to govern at the margin of the democratic process, unconstrained by legal-institutional accountability”. “The use of emergency powers in Australia certainly results in the abuse of power by arbitrary measures that profoundly undermine the rule of law; this can become more permanent in time. Presently, Australian authorities are enacting measures that consolidate statism and allow informers to assist authorities in tracing and incarcerating citizens without warrants on the grounds of prospective conduct. Any person in this country can now be arrested when the authority assumes that they have failed to comply with these directions. As such, basic legal principles inherited from the common law and our tradition of constitutional government (including due process and recourse to the writ of habeas corpus) are seriously undermined”.

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