Are Demonstrations a Viable Way to Oppose COVID-19 Health Orders?

November 8, 2021 Updated: November 8, 2021

Commentary

Demonstrations against COVID-19 restrictions, mandatory vaccination, lockdowns, and border restrictions have occurred in most capital cities of Australia.

In Melbourne, demonstrations turned violent when construction workers marched against the prolonged lockdown.

Thousands of protesters assembled on Nov. 6, 2021, to protest the vaccine mandates of the Victorian government and its controversial Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021, which would give the Premier unprecedented power to rule by decree.

In a thoughtful article, Civil Disobedience in Times of Pandemic: Clarifying Rights and Duties, authors Yoann Della Croce and Ophelia Nicole-Berva argue that demonstrations do not qualify as “civil disobedience” because the present COVID-19 restrictions are “limited in time,” and people will eventually recover their civil rights.

These authors may well be correct, but not for the reasons given in their article.

This is because the protests have failed to change the state’s management of the COVID-19 pandemic, and, as such, they are demonstrably ineffective. It could be argued that ineffective protests do not qualify as “civil disobedience.”

Epoch Times Photo
Members of the Victoria Police patrol through Chadstone Shopping Centre in Melbourne, Australia, on Sept. 20, 2020. (Darrian Traynor/Getty Images)

“Civil disobedience” is a deliberate breach of a valid law, regulation, or order on the ground that it violates a “higher” principle, for example, a moral or religious principle.

Even disregarding the claim that COVID-19 health orders lack parliamentary oversight and involve rulemaking by the executive, they are validly enacted orders.

However, in the context of the pandemic, protesters may claim that these orders abrogate higher principles, including human and civil rights, which exist independently of the legal system and are non-derogable.

A non-derogable right is one whose infringement is not justified under any circumstances. It is generally considered that right to life and freedom from torture, inhuman, or degrading treatment fall into this category.

In contrast, the authors of the article argue that, over time, people will recover these rights, imply that the state confers these rights on people and that the state can also suspend or repeal these rights to protect public health.

On this line of argument, these rights do not exist prior to the establishment of civil society, and they do not constitute “natural” rights.

Professor Carl Cohen makes a distinction between direct and indirect forms of civil disobedience.

In a COVID-19 context, direct disobedience involves a breach of the valid health order, which protestors deem to be incompatible with “higher principles.” Indirect disobedience consists of the violation of a law or regulation that is not (or is only indirectly or remotely) related to the object of the protest.

The Melbourne COVID-19 protests fall into either category because a vaccination refusal involves a direct violation of the vaccination mandate, whereas the desecration of the Shrine of Remembrance may be an example of an indirect form of disobedience.

Australia Melbourne
Police arrest construction workers and demonstrators with tear gas on the steps of the Shrine of Remembrance during a protest against Covid-19 regulations in Melbourne, Australia, on Sept. 22, 2021. (William West/AFP via Getty Images)

It is problematic to characterise the Melbourne protests as examples of “civil disobedience.” This is because these protests are ineffective and their impact on society is negligible, and they do not result in desired change.

Behaviour that directly targets the object of protest—for example, a vaccination mandate—is likely to be more effective than that which is only indirectly, or even remotely, connected to the impugned health order.

The demonstrators’ willingness to accept the penalty imposed for breaching a valid health order may also affect the effectiveness of a protest.

In accepting the penalties for their behaviour, demonstrators show their support for the state’s existing legal system, and, at the same time, they express their disagreement with the management of the COVID-19 pandemic.

The effectiveness of protests and their concomitant characterisation as “civil disobedience” also depends on the extent to which they are proportionate to the achievement of the demonstrators’ objective of changing the state’s COVID-19 narrative.

The violence surrounding the Melbourne protests raises the question of whether the behaviour of demonstrators should be non-violent to qualify as an act of “civil disobedience.”

Although, in most cases, protests should be non-violent in nature, there may well be instances of societal injustice that only violent protests could remedy.

To evaluate the effectiveness of a demonstration, it may also be necessary to consider the ability of demonstrators to analyse the nature and consequences of states’s COVID-19 strategy.

Epoch Times Photo
Protesters hold a sign that reads ‘You cannot comply your way out of tyranny’ during demonstrations against mandatory COVID-19 vaccines and restrictions in Melbourne, Australia, on Sept. 21, 2021. (Darrian Traynor/Getty Images)

In 2008, journalist George Roberts commented on a disturbing ABC report according to which half Australia’s population cannot read or write properly.

Thirteen years later, there is anecdotal evidence that this percentage could well be higher because “reading” and “writing” are flexible concepts, and our education system, which is highly politicised and regulated, now promotes political correctness rather than the three “Rs”—reading, writing, and arithmetic.

According to journalist Adam Carey in The Age, four out of five teachers considered leaving the teaching profession during the COVID-19 pandemic.

This is relevant because people who cannot read and write properly may find it challenging to evaluate the purpose and consequences of their behaviour and, hence, may either obediently and slavishly accept the state’s health orders or participate in the rebellious activity, which is only an ineffective answer to a real problem.

The Melbourne demonstrations are ineffective in stemming and reversing the tide of bureaucratic health decision-making and, therefore, they may not constitute instances of civil disobedience.

Nevertheless, the germs of rebellious behaviour are sown when the normal channels of social change do not function properly, or when serious grievances are not heard.

A system does not function optimally when preferred groups have entrenched power positions in society and use their power to impose their will on weaker or vulnerable classes of people.

The COVID-19 pandemic has contributed to the development of a two-tier Australian society where a powerful health bureaucracy has been able to impose its will on weaker and less powerful sections of the society.

Even when the COVID-19 pandemic is over—and this may take a long time—Australia will have changed irretrievably.

The civil rights of Australians will from now on always depend on the largesse of a magnanimous government bureaucracy that could easily take them away at the slightest provocation, especially in the field of health.

Hence, a confident assertion that health orders are only time-constrained nuisances and that people will recover their civil rights may be an optimistic expectation or an injudicious interpretation of the nature of the COVID-19 health orders.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean 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).