Commentary
As Anzac Day Dawn Services were held across the nation, another lockdown in Perth and the Peel region after two cases of locally acquired COVID-19 forced their cancellation in Western Australia (WA), with the people instead asked to commemorate the day at home.
These lockdown measures compromise at least two of our most cherished and important freedoms: freedom of assembly and freedom of movement. Even more significantly, such measures come from politicians who consider themselves “progressives.”
These leaders are motivated by a supposed desire “to make our world better.” But, as U.S. Justice Louis Brandeis correctly warned, “The greatest dangers to liberty lurk in insidious encroachment by men [and women] of zeal, well-meaning but without understanding.”
The reasons for this present lockdown in WA are illegitimate.
Like Stalinism, the government is deploying its coercive power with threats of criminal sanction and other forms of arbitrary action upon the individual, which I will explore below.
There are indeed numerous similarities between the zealots in the WA government and the Stalinists of the 1930s. Both believe that there is only one correct way to view things. As such, anyone who dares to disagree with their views is deemed morally wrong or politically incorrect.
Stalin, of course, had the full power of the state to not only impose lockdowns but also to murder. Some people were arrested, tried, and executed for activities prohibited by the state. Others were simply erased for expressing “politically incorrect” views.
In the name of “health safety,” the WA government meanwhile has deliberately eschewed the need for respect of our fundamental rights and freedoms.
In this present COVID-19 crisis, we are witnessing the rise of a political class that claims absolute control over our private association, our work or business, our schools and churches, our families, and over individuals.
Enacted by a Labor-controlled Parliament, the Iron Ore Processing Agreement Amendment Act provides the WA Premier exemptions from criminal and civil liabilities.
This legislation bans certain matters from being taken to court and in theory, can cut out any appeal to the High Court of Australia.
Moreover, the Act also terminates any future legal proceedings in relation to COVID-19 containment measures. Proceedings that are currently being heard in courtrooms in Western Australia, Queensland, New South Wales, and the Federal Court of Australia.
Clause 12 (2) of the Act also states that decisions and actions in relation to the government cannot be appealed stating that “the rules of natural justice (including any duty of procedural fairness) do not apply to; or in relation to, any conduct of the State that is, or is connected with, a disputed matter.”
The law also seeks to make “documents connected to a ‘disputed matter’ exempt from freedom of information association laws and grants criminal immunity to the State and its agents.”
Finally, this Act confers power to the state premier to make laws without reference to Parliament. In essence, the legislation effectively establishes an elected dictatorship in WA.
This violates the basic principles of democratic government, including separation of powers, natural justice, and due process.
It attacks some basic elements of the rule of law, including that laws cannot be applied retrospectively, that court proceedings be fair, and that government decisions be subject to review or appeal.
In addition to this, the McGowan government has also enacted the Emergency Management Amendment (COVID-19 Response) Bill (pdf).
Under this law, authorities can issue directions to a “class” or group of people, rather than an individual, and impose penalties including $12,000 fines or 12 month’s imprisonment for non-compliance.
While these expanded security powers can only be used during a state of emergency, only one of the amendments to the Act carries a “sunset clause,” guaranteeing its expiration at the end of an emergency.
In other words, the aforementioned Act allows for expanded security powers for an unlimited period of time and that is what is worrying for these measures may last much longer than that of the duration of the pandemic. Under these laws, the WA government is already using invasive technology to analyse, control, and determine everyone’s actions according to a designed plan.
For example, the WA police have been provided with 200 electronic ankle bracelets with GPS tracking to be strapped on anyone 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],” McGowan says.
This, of course, is no longer about the health of WA citizens but has laid the foundation for the creation of a police state, where the rights of individuals can be easily abrogated.
It has often been said that eternal vigilance is the price of liberty. As the great U.S. Judge Learned Hand pointed out, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
The best example of liberty living and dying in the hearts of people, occurred in a nation that boasted one of the most comprehensive set of legal protections for freedom of speech and due process.
The election of Adolf Hitler in Weimar Germany in 1932 tragically revealed that German voters, or at least a substantial number of them, were prepared to support the prospect of tyranny in exchange for the promise of government benefits.
When liberty died in the hearts of the German people, the law could not “resurrect or rescue it,” according to Alan Dershowitz, who taught at Harvard Law School from 1964 through 2013, where he was appointed as the Felix Frankfurter Professor of Law in 1993.
Dershowitz also reminds us that our liberty includes not only freedom of action, freedom to own and use property, freedom to practice one’s religion and the freedom to educate one’s children, but also, in the words of U.S. Justice Brandeis, the right to be “left alone by the state.”
But the McGowan led Labor government thinks the people of WA are willing to exchange their freedoms for the mere appearance of safety. He claims to have the support of the people to command another lockdown because of his recent win.
One issue conveniently put aside is the lack of a credible opposition during that election. The Liberal Party of Western Australia acted very much like “Labor Light” and its controversial leader offered no alternative to Labor’s left-wing agenda.
Be that as it may, McGowan says it is not clear yet what could happen this coming Tuesday when the lockdown is set to be lifted. But he did say it was likely there would be “an extension in some form, of controls.”
The word used by the WA Premier is deeply revealing: controls. Not “health measures,” not protections, but “controls.”
This is therefore not about health, but our control. After all, the premier has just confessed this. We must commend him on his honesty!
Of course, the impact of such “controlling measures” on fundamental rights and freedoms is impossible to gauge, but clearly, it will incentivise the WA government to overreact and act even more oppressively.
This is not what the Anzacs fought for.
They fought for individual rights and liberty against the threat of governmental oppression.
As correctly noted by Rocco Loiacono of Curtin Law School, “one can only imagine what those brave men and women, who gave their lives to preserve our freedom, are thinking upon seeing those freedoms being crushed by a hubristic government, which has learnt nothing and thus looks for the easy way out, blaming others for its own failings.”
In the end, we should never forget all those young Australian men who died so long ago to keep us free and to preserve our freedom.
That is why this was a special weekend with numerous celebrations across our great nation. In WA, however, the premier decided that it would be better to have a major lockdown that not only violates our fundamental freedoms but most certainly the Anzac spirit.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education, and professor of law (adjunct) at the University of Notre Dame Australia, Sydney. He is also a former law reform commissioner in Western Australia (2012-2017), president of the Western Australian Legal Theory Association (WALTA), and co-editor of “Fundamental Rights in the Age of Covid-19” (Connor Court / The Western Australian Jurist, 2020).
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
