Why Was Australia Allowed to Impose Such Draconian COVID-19 Restrictions?

Why Was Australia Allowed to Impose Such Draconian COVID-19 Restrictions?
A person crosses Bourke Street in Melbourne, Australia, on July 20, 2021. (Daniel Pockett/Getty Images)
Gabriël Moens

The view that COVID-19 lockdowns were draconian and often tyrannical is gaining strength throughout the world. For example, Human Rights Watch has accused the UK government of setting aside “human rights for the sake of political expediency” and excoriates it for its “worrying disdain for the rule of law.”

In Italy, authors Piero Stanig and Gianmarco Daniele have argued that the worst possible thing a government could do during the pandemic “when dealing with a highly infectious disease that spreads almost exclusively indoors and targets the elderly is to lock old people up inside their homes … and ban citizens from spending time in arguably the safest place of all: outdoors.”

In Australia, the authors of “Fault Lines: An independent review into Australia’s response to COVID-19,” published on Oct. 20, 2022, argued that the response failed the nation because “too many of Australia’s lockdowns and border closures were the result of policy failures in quarantine, contact tracing, testing, disease surveillance and communicating effectively the need for preventative measures like mask wearing and social distancing.”

Similarly, pondering the fact that Australian governments have failed to make a cost-benefit analysis of lockdowns, Professor Gigi Foster estimates that the cost of lockdowns has been “at least 68 times greater than the benefits they delivered.”
How could this happen in Australia, which always prided itself on protecting the rights of people?

System of Government

One plausible explanation is that because of the peculiarities of Australia’s Westminster system, it became possible for the executive to assume quasi-dictatorial powers, which a politicised police force brutally enforced.
Professor Augusto Zimmermann has argued that the concentration of unrestrained political power in the executive is the result of the imperfect implementation of the separation of powers doctrine, according to which power should be divided among the legislative, executive, and judicial branches of government.

But in Australia, the doctrine only provides for the separation of the judiciary from the executive and legislative branches of government. This is because members of the executive are recruited from the legislature, and, provided they command a majority in parliament, they wield almost unrestricted power.

A general view of a near-empty Sydney Opera House forecourt in Sydney, Australia, on Aug. 20, 2021. (Brook Mitchell/Getty Images)
A general view of a near-empty Sydney Opera House forecourt in Sydney, Australia, on Aug. 20, 2021. (Brook Mitchell/Getty Images)

This means, essentially, that the government can do as it pleases because it is backed by a parliament that fails to provide effective parliamentary oversight of executive decisions. Zimmermann fittingly calls this an “elective dictatorship.”

In addition, the parliament often delegated its legislative power to unelected health administrators who made decisions that dramatically affected the freedoms of people during the pandemic.

Although this delegation diminishes the legislative function of the parliament, the High Court has never restricted the elaboration of what is known as the delegated powers doctrine.

In fact, this doctrine is a logical concomitant of the imperfect implementation of the separation of powers doctrine under a Westminster system because it facilitates the executive to exercise power without adequate parliamentary oversight.

Another reason that partially explains the government’s profligacy is the doctrine of the sovereignty of parliament, which enables parliament to adopt any law without the threat that it might be declared null and void by the courts.

Although there is judicial review, this is typically restricted to considering the compatibility of laws with the Constitution. As Australia’s Constitution does not contain a bill of rights, it is practically impossible to attack the COVID-19 repressive measures on the ground that they violate a constitutional right.

Natural Law Above All

The theory of the sovereignty of parliament is now firmly embedded in the legal system. According to this theory, popularised by the book “Introduction to the Study of the Law of the Constitution” by Albert Venn Dicey, the rights enjoyed by people emanate from the legislature.
However, Dicey’s sovereign parliament theory overlooked the views of Chief Justice Sir Edward Coke, who said in Dr. Bonham’s case, decided in 1608, that “in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.”
N.S.W Police patrol Sydney Park in Sydney, Australia, on Sept. 18, 2021. (Brendon Thorne/Getty Images)
N.S.W Police patrol Sydney Park in Sydney, Australia, on Sept. 18, 2021. (Brendon Thorne/Getty Images)

The idea that rights emanate from the parliament is problematic because it also recognises that a subsequent Parliament can legislate to cancel these rights.

Indeed, it overlooks the fact that rights are enshrined in Australia’s natural law tradition, which suggests that rights are “inalienable,” a view the High Court, too seems to have accepted.

For example, in Re Bolton; Ex Parte Beane, Justice Brennan admitted that “Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much of the accepted constitutional framework that their terms, if not their very existence may be overlooked until a case arises which evokes their contemporary and undiminished force.”

Justice Deane agreed with this sentiment when he stated that these principles “are the fabric of the freedom under the law, which is the prima facie right of every citizen in this land. They represent a bulwark against tyranny.”

People’s natural human rights have thus a historical foundation, which has never been refuted, although it has been obscured in the passage of time.

Therefore, governments should undertake a cost-benefits analysis of the horrible lockdowns and border closures that inflicted so much misery on Australia during the pandemic.

Views expressed in this article are 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.
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