Since March 2020 Australia’s governments, both federal and state, are using their powers to excessively coerce, obstruct or otherwise unreasonably interfere with the life, liberty and property of the citizen. The Australian parliaments have all been sidelined. The federal and state governments are effectively ruling by executive decree. This has brought much less legal-institutional mechanisms to provide accountability to our governments.
The Morrison government and all State governments in Australia are taking measures which are essentially incompatible with a democratic government under the law. In fact, what these governments are doing is profoundly arbitrary and unconstitutional. They are using their emergency powers to undermine basic principles of constitutional government – including equality before the law and the right of citizens to be protected from unpredictable and arbitrary interference with their vital interests.
In this COVID-19 crisis we are witnessing an illiberal ruling class that claims absolute control over our private associations, our work or business, our schools and churches, our families, and over individuals. This includes powers to use surveillance like drone technology, vehicle license plate recognition and electronic tracking devices.
In Western Australia (WA), for example, the police have provided 200 electronic ankle bracelets with GPS tracking to be strapped on any member of the public, for monitoring purposes of non-compliance with police directions. ‘We are in a state of emergency … A non-compliant [person] in quarantine will have one of these devices fitted [to them]’, Labor Premier Mark McGowan stated.
Enacted by the Western Australian Parliament, the Iron Ore Processing Agreement Amendment Act provides the State Premier and his Attorney General exemption from the criminal law and civil liabilities. The Act bans any matter being taken to court so that, in theory, it would ban even actions in the Australian High Court. It explicitly terminates legal proceedings in relation to coronavirus measures which were currently underway in the Supreme Court of Western Australia, the Supreme Court of Queensland, the Supreme Court of New South Wales and the Federal Court of Australia.
In addition, the WA Act prohibits freedom of information by preventing citizens from obtaining the proper information about what the State Government is doing to hold it accountable. Finally, the Act gives the Premier the arbitrary power to impose legislation without reference to Parliament. In essence, this an unconstitutional exercise of power that completely violates the most basic elements of the rule of law and democratic government, including separation of powers, natural justice and due process of law
The Western Australian Parliament has also passed the Emergency Management Amendment (COVID-19 Response) Bill. Under this Act the authorities are allowed to issue directions to a class or group of people, rather than an individual; and to impose penalties of $12,000 fines and 12 months of imprisonment for non-compliance. While these expanded security powers can only be used during a state of emergency, only one such amendment to the Act carries a “sunset clause” which guarantees its expiry with the end of the alleged “emergency”. In sum, the legislation does not include a sunset clause but it allows for expanded security powers during an unlimited period of time.
This effectively means that the Western Australian government will be using for an indefinite period of time invasive technology to analyse, control and determine everyone’s actions according to a plan carefully designed by the political elite. These extraordinary measures may last much longer than that of the duration of the health crisis. This, of course, is not really about the people’s health but about political power and control over the people. For nothing can produce a police state more rapidly than such draconian measures that violate the most basic principles of constitutional government and the rule of law.
De Facto Martial Law In Victoria
Imposed under the pretence of protecting the health of the people, the state of disaster came into effect in Victoria on August 2. Under the Emergency Management Act, a state of disaster can be declared if the Premier is satisfied an emergency “constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria”.
But Victoria is also under a state of emergency, which came into effect on March 16. The declaration was made under the Public Health and Wellbeing Act 2008, which allows health officials to detain people, search premises without a warrant, and force people or areas into lockdown if it is deemed necessary to protect public health.
Under the so called Disaster Act, any law in Victoria can be suspended with the stroke of a pen. Of course, such legislation is constitutionally invalid as it contradicts basic principles of constitutional government. Victorians are currently living under a “state of disaster” that has seen one of the world’s severest restrictions of fundamental freedoms imposed on its citizens and their fundamental freedoms.
The Victorian government has effectively become an elected dictatorship. The Victorian government is currently sending the police into family homes to arrest anyone posting Facebook messages encouraging others to protest against lockdowns. Due to the impact of these measures on fundamental rights, clearly the Andrews’ regime is imposing what is by far the greatest violation of fundamental rights in Australia’s history.
Of course, the arrest of citizens for merely speaking out directly violates the State’s Charter of Human Rights and Responsibilities, which explicitly guarantees to every person their fundamental legal rights to privacy and peaceful assembly as well as freedom of association, movement, thought, conscience, and expression.
This is leaving aside the gross violation of the Australian Constitution. Under this Constitution sovereignty ultimately resides with the Australian people. It follows that, as sovereign, ‘the Australian people must also be free to communicate about government and political matters fully and freely’. As noted by Justice Brennan of the Australian High Court, in 1992, representative and responsible government ‘are constitutional imperatives intended … to make the legislature and executive branches of [government] ultimately answerable to the Australian people’.
The Victorian Premier exhibits no intention to uphold or defend the Australian Constitution. He has shown an undisputable belief that the executive branch holds all power, and that the other branches of government exist solely for the benefit and enjoyment of the leader. For all intents and purposes Victoria has now effectively become an elected dictatorship. Those responsible for this should be held criminally accountable.
Unfortunately, these unconstitutional measures imposed by the Andrews’s regime have been considerably matched by several Liberal state governments across the nation. The Liberal governments in New South Wales, South Australia, and Tasmania are also far too willing to rule by decree and impose restrictions on home and public gatherings. In New South Wales, for example, Premier Berejiklian has notoriously stated that ‘tough social-distancing laws will stay until a vaccine is found’. Although acknowledging ‘how devastating this is for families’, she stated that such restrictions would not be eased but rather would become ‘the new way of life’.
Perhaps even more disturbing is the Prime Minister’s refusal to criticise the arbitrary behaviour of these Premiers, in keeping with his strong belief in “national leadership unity”. ‘Daniel Andrews has my full support … I will give him every support he needs’, Scott Morrison said. Offering support to the oppressive measures of the Victorian government is, according to him, ‘the only thing that matters’ to the federal government.
In this context we should be reminded of the political philosophy of John Locke, that great founder of liberal democracy whose writings underpin the 1688 Glorious Revolution and the U.S. Declaration of Independence. 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 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.
This is our classical liberal tradition, which firmly communicates that our most fundamental legal rights are inalienable and so they cannot be taken away from the citizen. My fellow Australians would do well to be reminded of this important legal tradition. Because it also communicates that the people have a fundamental right to lawful resistance against political tyranny, they should demand the full restoration of their fundamental rights and freedoms from their uncompassionate and undemocratic ruling classes.
Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertArb is Professor and Head of Law at Sheridan Institute of Higher Education in Perth/WA, and Adjunct Law Professor at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017.