Sanjeev Sabhlok: Australia needs a constitutional amendment to prohibit peacetime emergencies

Abuse of power on the grounds of public health has been a chronic problem in human history. In 2009, Wendy Parmet, the Director of the Northeastern University’s Program on Health Policy & Law said, “The history of public-health responses and the abuse of civil liberties is horrifying. Abuses occur even though in every era, public-health officials always believe they’re doing the right thing and acting in good faith”.

The excesses committed in the name of public health in the past pale in comparison to the brutalities perpetrated during this pandemic. Videos of the police beating poor Indians and throwing food at those in quarantine like they would feed wild dogs, have gone viral. The West has not lagged behind. Videos from Melbourne, where I live, show that the police has behaved almost as badly as India’s police and terrorised the population – they beat up a girl because she didn’t have a face mask.

International covenants have failed to reduce such atrocities. The International Health Regulations 2005 specify that “a health measure does not include law enforcement or security measures”. An implication (at least in the spirit of the law) is that the police must not be used for public health purposes but police powers have been widely used in recent lockdowns.

Article 6 of the Universal Declaration on Bioethics and Human Rights states that “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice”.

Lockdowns are clearly a preventative intervention and require informed consent in each individual case. But this requirement has been violated all over the world except in Sweden.

What is it about public health that makes governments brutalise their own people so easily? Public health is clearly not an emergency. It can never be an emergency. Full preparation and contemplation of different scenarios in advance is entirely possible. We know this is so because Sweden has managed this pandemic without the slightest panic and without brutalising its people. The Swedes were provided relevant information and chose their actions voluntarily. No police was ever used against them during the pandemic.

Underpinning its civilised approach is Sweden’s Constitution which does not allow the imposition of emergency powers (and hence the suspension of liberties) except in the case of war. As noted by Behrang Kianzad and Timo Minssen in a 12 May 2020 article, “the Constitution protects Swedish citizens from blanket limitations of freedom of movement or general stay home orders”.

Summarising its approach, Mark Klamberg, a professor in international law at Stockholm University wrote on 9 April 2020 that “Sweden has chosen a rule-of-law approach as opposed to an approach where the Sovereign (i.e. the government) is totally unrestrained in time of crisis”. (In this regard, I note that our party considers governments to be only derivatively sovereign: only citizens are true sovereigns.)

Any restrictions on individual liberty in Sweden must be proportionate and based on laws enacted in advance of a public health crisis. Its laws specify that the courts must agree to any restraint on each specific individual on public health grounds. The CMO has to petition the courts for mandatory testing of a suspected ill individual and if someone is proven ill then the CMO must petition the courts for the isolation of the infected individuals.

It is true that Sweden amended its laws in recent months to allow the imposition of certain wider restrictions, such as on an entire business precinct, but most of these powers have not been exercised possibly because these laws would be found by the courts to violate its Constitution.

Sweden’s approach confirms that there is no basis in a free society for trade-offs between public health and liberty. It also confirms that it is possible for nations to comply with the spirit of the International Health Regulations and Universal Declaration on Bioethics and Human Rights. In free societies, the rights of the sovereigns (citizens) must remain paramount at all times.

On 9 April 2020, concerned with the way the world was going, Wendy Parmet asked for an overhaul of public health laws: “With Covid-19 in our communities, the time has come to imagine and implement public health laws that emphasize support rather than restriction”.

In a 260-page report issued on 18 August 2020 entitled, Assessing Legal Responses to COVID-19, 50 law experts (Parmet is on the editorial committee) have made recommendations to better respond to pandemics. Among the suggested actions is that “State legislatures should amend or enact new public health legislation clarifying the scope and authority of state officials to limit person-to-person interaction and impose closures, movement restrictions, gathering bans, and physical distancing requirements”.

Further, the report recommends that “every emergency declaration should include the following information: specific epidemiological data supporting the order; specific requirements for social distancing and mask wearing; an explanation of why the order is needed; and an explanation of why the order does not violate personal freedoms”.

I believe that this report doesn’t go far enough. The very use of emergency powers in peacetime is a problem. Only a constitutional remedy can work.

Australia needs a constitutional amendment to prohibit any peacetime emergency powers. We cannot let governments use public health as an excuse to brutalise citizens and destroy their right to occupation (shutting down shops and businesses) – effectively confiscating their property rights.

All public health laws will need to be entirely re-written once a constitutional restriction is imposed on peacetime emergencies. Australia’s future laws on pandemics must ensure the immediate and ongoing publication of all “confidential” documents – and a cost-benefit test at a minimum – on the basis of which any society-wide restrictions on individual freedom are proposed to be imposed. We must ensure at all times that actions by the executive are reasonable, proportionate and otherwise justified. Else we will end up with tyranny.

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26 Responses to Sanjeev Sabhlok: Australia needs a constitutional amendment to prohibit peacetime emergencies

  1. mc says:

    While a constitutional change would be good, the existing constitutional limitations seem to have been easily ignored

  2. Wallace says:

    We won’t get tyranny, we already have it in Danistan.

  3. Jock says:

    A change to the commonwealth constitution is useless as the emergency powers come under state constitutions. Unless there was a limb of power that could be used but i doubt it.

  4. HT says:

    mc
    #3566935, posted on August 31, 2020 at 7:39 pm
    While a constitutional change would be good, the existing constitutional limitations seem to have been easily ignored

    Good point, well made by the VicStasi and others.

  5. Tel says:

    Why don’t we just elect good, competent people who have some idea what they are doing and a sense of loyalty to their community?

    Can’t be that hard.

  6. entropy says:

    Yeah not a federal issue.

    Also is it the Health Acts under which these disaster activations to allow additional powers for police, or the various state Disaster Management Acts? Which of course provide for disaster activations for other events such as natural disasters, terrorism etc. Make sure in your desire to kill the wasp you don’t kill the butterflies.

  7. Chris M says:

    We won’t get tyranny, we already have it in Danistan.

    Yep, you can vote Marxist Dan in but voting Marxists out is not a thing, it just doesn’t work in that direction.

    VikStasi and (VikGovenor for that matter) have no interest in the Constitution besides a source of mirth. It’s suspended now so you can waste your time tinkering with it as much as you like, quite besides the issue of who pays the legal industries bills and all that. Probably better to spend your hours plotting an escape from Dystopian Melbourne and Fasistoria.

  8. luke says:

    “What is it about public health that makes governments brutalise their own people so easily?”

    You are missing the real problem Sinc. Public health is the right justification, it invokes the right combination of fear and morality to stymie sufficient resistance and make those doing the horrible things feel they are good people, doing a good thing.

    What I can tell you about the personalities of a lot of public servants, academics and politicians is that you are only ever one good justification away from authoritarianism.

    It’s not just what has been done in Australia in the name of public health but that in every jurisdiction it was done via bureaucratic rules. Pre and post – COVID Acts of Parliaments have given power to an unelected, unaccountable public servants to strip the rights of law abiding citizens. In most jurisdictions these rules (notices, directions, orders etc.) are not even subject to Parliamentary oversight that is typical for legislative instruments that are not Acts of Parliament. For example, they are not subject to a disallowance motion in the relevant Parliament.

    I’m glad you are all shocked, but actually I have been watching this slow creep for quite some time and it’s very rare that I find someone who isn’t supportive on exactly these types of rules for some policy or another. The man made climate change crowd have been making no secrets of the type of power they have wanted for quite some time. The biggest difference being that the destruction of the economy is what they intend, rather than simply being a consequence of achieving some other goal.

    It’s not just the ever growing restrictions imposed by laws, it’s the powers given to government officials – sometimes even to private operators acting on behalf of government. There is also the growing number of evidence laws that make mere statements of fact from particular officials evidence of what they claim – sometimes unchallengeable evidence. There are the increasing reversal of onus of proof provisions. The regular doing away with warrants for particular searches and the seizure of things by all manner of public servants.

    There are growing volumes on privacy but yet no matter how restrictive each new law sounds, at the end of day there is simply yet one more database that the government uses to keep track on it’s citizens and share their information. It’s like the ever increasing right to not be discriminated against is in direct inverse proportion to the actual discrimination that government agencies and government funded entities engage in.

    Oh, and did I mention that our public service and politicians will now be our wealthiest class in the new Australian economy by a significant margin.

  9. notafan says:

    Next time im voting in Victoria for whichever party promised to abolish SOE laws.

    They could and should have advised vunerable to self isolate, encouraged extra hand washing, social distancing etc and maybe, maybe passed specific laws for accessing nursing homes and hospitals.

    Everyone in my family is now a criminal, even the ones that are cheer leaders for Dan.

    Victoria the police state.

  10. H B Bear says:

    What Covid has exposed is the weakness of Parliament in constraining the excessesof the Executive in the face of a media driven scare comparing.

  11. H B Bear says:

    * media driven scare campaign.

  12. H B Bear says:

    Does anybody think we would be in this position if the preferred leader ratings were in the 30s?

  13. duncanm says:

    “What is it about public health that makes governments brutalise their own people so easily?”

    they’re doing good for you, because you’re too stupid to do it yourself.

    CS Lewis said it better

    “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

  14. ExIronCurtain says:

    Excellent summation:

    What Covid has exposed is the weakness of Parliament in constraining the excesses of the Executive in the face of a media-driven scare.

    They would do it for Global Warming, too, if they could’ve scared as many people as this time.
    No need to change the Constitution, just find some pollies with a spine and abolish fixed-term governments.
    The current Uni-Party will not get my vote.

  15. NoFixedAddress says:

    remove all ‘powers’ to tax

  16. Terry says:

    luke
    #3567033, posted on August 31, 2020 at 9:06 pm
    +1 Well said

  17. Roger says:

    The proposal is a good one, but the only way it could work would be to abolish state sovereignty, of which there is next to zero chance.

  18. Terry says:

    ‘only way it could work would be to abolish state sovereignty’

    No, but the constitution of each State needs to be re-written from the ground up; including enshrining the unalienable rights of:
    * Freedom of Speech;
    * Freedom of Self-protection (mostly from government);
    * Freedom of Association; and
    * The sanctity of the individual and their private property.

  19. notafan says:

    Victoria has a human rights charter.

    It’s working really well.

    End state of emergency powers state by state.

    Only way.

  20. cuckoo says:

    Meanwhile:

    CEO of the National Mental Health Commission Christine Morgan wants a permanent chief psychiatrist or chief mental health officer.

    Unlikely to happen, but if it ever does, look forward to being institutionalised and sedated for wrongthink. Paging Nurse Ratched…

  21. Tom Atkinson says:

    Why don’t we just elect good, competent people who have some idea what they are doing and a sense of loyalty to their community?

    Can’t be that hard.

    Only the hardest thing of all, Tel.

  22. Baa Humbug says:

    Tel
    #3567009, posted on August 31, 2020 at 8:50 pm

    Why don’t we just elect good, competent people who have some idea what they are doing and a sense of loyalty to their community?

    Can’t be that hard.

    I’ll paraphrase Milton Friedman who said something like “waiting for good people to come to power doesn’t work. We need to establish a situation where even bad people are forced to do the right thing”.

    He was saying that in America, even the good politicians have only the first 6 months to do good. After that election cycles kick in and self preservation takes over.

  23. Helen says:

    OK my understanding of the constitution from uni 30 years ago is that a law may exist but not to the extent of being in conflict with the constitution. Thus if the state constitutions or laws were inconsistent with something the constitution says, then the law is invalid.

    The Federal Constitution has precedence over the states and their constitutions. That being the case, if the constitution said no lock downs then the states lock downs are illegal.

    I see Dan has got another six months of lock down with the help of the Greens. I see riots happening – there is so much unrest and disquiet, he is just chucking more fuel on the fire, which just needs a spark.

    Victoria is going to blow.

  24. Terry says:

    ‘Victoria is going to blow.’

    You might see a few get out and do their civic duty. But apparently, the majority is right behind Dan (really?).

    So, they will be made an example of. If Dan can organise a few M1’s from the Feds’ arsenal, I am sure he’d have no qualms rolling over more than a few protesters in Federation Square (only the Black Shirts of BLM/Antifa/ER are allowed in Danistan)

    Any liberty lovers left in Victoria had best be planning their escape (not kidding) – freedom is not in the ascendancy in Viktoriastan. The rest of us had best be careful to not allow the authoritarians to get to 50.1% in our respective states (and it is not necessarily looking good). Australia is on the precipice.

  25. rickw says:

    While a constitutional change would be good, the existing constitutional limitations seem to have been easily ignored

    All constitutional changes and improvements are pointless without A2A (Australian 2nd Amendment).

    Government doesn’t give a shit what The People think or want unless they pose a credible threat.

  26. I think this is a good idea but the High Court is such a fanciful domain of Dadaism that we can almost be assured this would be ignored – as plain language provisions like a 92 have been ignored, literally to the exact opposite meaning of the words written in said section.

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