Emergencies Have Always Been the Pretext on Which the Safeguards of Individual Liberty Have Been Eroded

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.

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.

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 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.

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.

There was something rather appealing to many about that German leader. 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.

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.

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), Friedrich 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: “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”.

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 download the COVIDsafe tracing app.

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, this present crisis is not just about science and public health. It is also about power and about a supposed “pandemic” usefulness in dramatically increasing the power of the State.

Prof Augusto Zimmermann LLB, LLM, PhD, DipEd, CertIntArb

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