On Civil Disobedience and COVID Measures

February 15, 2021 Updated: February 15, 2021

Commentary

Gabriël A. Moens A.M. is emeritus professor of law at the University of Queensland. As he was confined to his home office, he discovered time to look at his previous works which go back about four decades.

To our great benefit he has collected fifteen of these papers and now published them as a book entitled “Enduring Ideas: Contributions to Australian Debates.”

The papers consolidated in this book deal with issues and themes which remain more relevant than ever.

For example, one of the debates that took place in Australia from the 1960s to the 1980s involved the right of people to disobey laws.

Prof. Moens reminds us in Chapter Two (‘On Civil Disobedience,’ 1980) that there are instances of arbitrary policy which can be remedied only through civil disobedience.

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People take part in a “reopen” Pennsylvania demonstration in Harrisburg, Penn., on April 20, 2020. (Nicholas Kamm/AFP via Getty Images)

He starts this important essay by describing civil disobedience as a formal requirement of the legal system.

He then communicates that certain acts of civil disobedience are actually protected by Articles 18 and 19 of the International Covenant on Civil and Political Rights, the rights to thought, conscience, religion, opinion, and expression.

These articles imply a natural right for citizens to breach any law inconsistent with these freedoms.

Moens goes on to demonstrate that the efficacy of civil disobedience is dependent on its rationality.

He explains that rationality is demonstrated when the justification for civil disobedience is balanced against regular obedience to validly enacted laws.

This, according to him, is particularly important because human beings are naturally inclined to disobey rules with which they personally disagree.

Moens also contends in his collection that a system does not function adequately “when some groups have entrenched power positions in society, and use their power to impose their will on weaker and vulnerable classes of people.”

He says that when opportunities for change via the legal system are insufficient, then civil disobedience is often an “effective and expeditious way to challenge the law.”

In other words, civil disobedience can be justified only when the normal channels of social and legal change no longer function, or when serious grievances are not addressed properly by the state, and the voice of the people cannot be heard.

At the time Moens was preparing this excellent book, Australia was already in the midst of the COVID-19 pandemic.

Amid this backdrop, Chapter 14 considers the role of the state in the protection of public health.

He characterises certain measures enacted by governments to combat COVID-19 as deeply paternalistic in nature, and having an enormous and deleterious effect on the basic rights of the people.

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Police tackle protesters in Melbourne on Sept. 5, 2020 during an anti-lockdown rally protesting the state’s strict lockdown laws as a preventive measure against the COVID-19 coronavirus. (William West/AFP via Getty Images)

The legality of these measures is critically assessed, particularly in light of important constitutional rights and principles. He also identifies instances where civil disobedience can be justified.

Be that as it may, Moens remains realistic however and believes that today, many Australians “take freedom for granted” and do not realise that the price of freedom is “eternal vigilance.”

What we are seeing play out currently today supports this assumption, and I can hardly overemphasise the importance of Moens’ “Enduring Ideas: Contributions to Australian Debates.”

It lends us a better understanding of the enormous challenges we currently face as a nation, and potentially for a very long time.

The book referred in this article is “Enduring Ideas: Contributions to Australian Debates,” by Gabriël A. Moens A.M. (Connor Court, 2020), 210 pp.

Dr. Augusto Zimmermann PhD, LLM cum laude, LLB (Hons.) is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, and Professor of Law (Adjunct) at the University of Notre Dame in Sydney, Australia. He is also President of the Western Australian Legal Theory Association, Editor-in-Chief of the Western Australian Jurist law journal, and a former Law Reform Commissioner in Western Australia.

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