Lecture presented by professor Augusto Zimmermann, WALTA President and renowned expert in Australian Constitutional Law. Prof. Zimmermann outlines the truth found in the Australian Constitution for us as citizens to resist the unlawful imposition of any vaccine mandate. This lecture was given at All Nations Presbyterian Church, Beaufort Street, Perth on August 14th 2021. Convenor: Dr John G Hartnett
This lecture was sponsored by Bible Science Forum and Reignite Democracy Australia
See also https://spectator.com.au/2021/08/mandatory-jabs-and-bans-on-the-unvaccinated-try-getting-that-past-the-high-court/
Watch it here from Bitchute.com if you can’t see the YouTube version.
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CONVENOR: Dr John Gideon Hartnett
Here is a Facebook hosted video of the event. https://www.facebook.com/truthjournalism/videos/4189151824531722/?redirect=false
ABOUT THE SPEAKER:
Augusto Zimmermann LLB, LLM, PhD, DipEd, CIArb, is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, Western Australia. He is also the Founder and President of the Western Australian Legal Theory Association, the Founder and Editor-in-Chief of The Western Australian Jurist, an Elected Fellow at the International Academy for the Study of the Jurisprudence of the Family, and a former Vice-President of the Australasian Society of Legal Philosophy. From 2012 to 2017 Professor Zimmermann served as a Law Reform Commissioner with the Law Reform Commission of Western Australia.
Professor Zimmermann was also the Murdoch University Law School’s Associate Dean for Research (2009-2012). While working at that university, he was awarded the 2012 Vice Chancellor’s Award for Excellence in Research, and two Law School Dean’s Research Awards, in 2010 and 2011. He served on numerous academic bodies at Murdoch, including: the Research Degree and Scholarships Committee; the Vice Chancellor’s Awards and Citations Committee; the Academic Council’s Freedom of Speech in Policies and Procedures Advisory Group; and the Academic Staff Promotions Advisory Committee.
In January 2015, Professor Zimmermann was invited by the Tasmanian Chief Justice to address the ‘Opening of the Legal Year’ in that state. His address was attended by the Governor of Tasmania, the State Premier, the Leader of the Opposition, the State Attorney-General, and Tasmanian judges, and lawyers.
He is generally recognised as a fierce advocate for free speech and the Rule of Law, Professor Zimmermann is the author of numerous articles on these topics, contributing, inter alia, for a seminal book about the Rule of Law edited by the President of the American Bar Association. He is the author/co-author/editor/co-editor of numerous academic articles and books, including Fundamental Rights in the Age of Covid-19, Connor Court Publishing, 2021; No Offence Intended: Why 18c is Wrong, Connor Court Publishing, 2016; Christian Foundations of the Common Law, 3 Volumes, Connor Court Publishing, 2018; and Global Perspectives on Subsidiarity, Springer, 2014; and Western Legal Theory: History, Concepts and Perspectives, LexisNexis, 2013.
COMPULSORY VACCINATION IN THE CONTEXT AUSTRALIA’S CONSTITUTIONAL PRINCIPLES, STANDARDS AND TRADITIONS
By Prof Augusto Zimmermann LLB, LLM, PhD
Australian authorities are presently trying to achieve the goal of full vaccination. The Prime Minister, speaking to the press on 7 August 2021, foreshadowed that people who are unvaccinated “will face more restrictions”. This potentially means that the unvaccinated may no longer have unrestricted access to travel, or may not be allowed to attend football matches, concerts, and festivals.
Although it is not possible to predict what the High Court might do, it is not necessarily the same as to what it should do if it were called upon to consider the constitutionality of vaccination mandates.
First of all, any assessment of the constitutionality of vaccination mandates should consider the ultimate purpose of the Australian Constitution. And the ultimate purpose of our constitution is to provide for a system of representative government that is respectful of our fundamental rights and leading to the realisation of the rule of law.
But, after all, what does the rule of law actually mean?
Owen Hood Phillips, who was emeritus professor of law in England, explained that, historically, “the phrase has been used with reference to a belief in the existence of law possessing higher authority — whether divine or natural — than that of the law promulgated by human rulers which imposed limits on their power”. By forcing these rulers to comply with laws possessing a higher authority, “government can act only through law and law checks the power of government”.
Of course, contemporary discussions about the rule of law often invoke the views exposed by Albert Venn Dicey (1835–1922). This 19th-century English constitutional lawyer contended that the concept encompasses three basic requirements, namely: (1) supremacy of the ordinary law as opposed to the exercise of arbitrary power; (2) equality of all before the ordinary law that must be administered by ordinary courts; and (3) judicial protection of individual rights that must be guaranteed in practice rather than on paper.
In these contemporary debates there is also a general perception that the rule of law is essentially about essential conditions of freedom under the law. That so being, this is basically a doctrine concerning what the law ought to be in order to limit the potentially arbitrary power of government. Hence, as noted by Friedrich A. Hayek:
The rule of law … constitutes a limitation on the powers of all government, including the powers of the legislature … This is particularly important because today the conception of the rule of law is sometimes confused with the requirement of mere legality in all government action. The rule of law, of course, presupposes complete legality, but this is not enough: if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law. The rule of law, therefore,… requires that all laws conform to certain principles.
Hayek then goes on to explain that “the rule of law is a limitation upon all legislation”, meaning that this is not a rule by law, but “a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal”. On the other hand, Hayek makes it quite clear that this ideal of legality depends primarily on a firm element of public opinion. Accordingly, Hayek makes this important observation:
If [the rule of law] is represented as an impracticable and even undesirable ideal and people cease to strive for its realization, it will rapidly disappear. Such a society will quickly relapse into a state of arbitrary tyranny.
This, inter alia, effectively means that the concept stands in opposition to extemporary decisions expressing the momentary will of political rulers. Yet, when authorities ignore these legal principles, “law is transformed into an instrument for repression or at least top-down direction of subjects, and nothing more”. When this occurs “law” becomes no more than the vehicle (and at times equally useful camouflage) for the exercise of unrestrained power.
This traditional definition of the rule of law that I have just introduced has laid the basis for the classical understanding of constitutional government. Accordingly, one of the most remarkable features of constitutionalism is its explicit delimitation of governmental powers. As noted by C.L. Ten,
Constitutionalism and the Rule of Law are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism usually refers to specific constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly constitutive of a liberal democratic system of government … The requirements of constitutionalism are derived from a political morality which seeks to promote individual rights and freedoms, and not directly from values that are supposed to be implicit in the very idea of [positive] law itself.
Trevor Allan teaches constitutional law at Cambridge University. As he points out, the rule of law encompasses “traditional ideas about individual liberty and natural justice and, more generally, ideas about the requirements of justice and fairness in the relations between governors and governed”. Under a rule-of-law system, Professor Allan adds, “the law is to constitute a bulwark between governors and governed, shielding the individual from hostile discrimination on the part of those with political power”. He then goes on to remind us that, in the mouth of a British constitutional lawyer, the phrase means, primarily, “a corpus of basic principles and values, which, together lend some stability and coherence to the legal order”. These basic principles and values, according to him.
help to define the nature of the constitution, reflecting constitutional history and generating expectations about the conduct and character of modern government … Allegiance to the rule of law is not, therefore, a technical (or even ‘lawyerly’) commitment; it is necessarily allegiance to a political philosophy — albeit a practical philosophy grounded in existing constitutional tradition.
In drafting the Australian Constitution, the framers had all these traditional standards and aspirations in mind. As such, they sought to carefully distribute (and limit) the powers of government. This distribution of, and limitation upon, governmental powers was chosen because of the intelligent perception that unrestrained power is always inimical to personal freedom and happiness.
In this sense, the idea that constitutional provisions must protect fundamental legal rights plays a prominent role in an understanding of these express limitations and, indeed, of the implied constitutional limitations derived from them. Accordingly, the Australian Constitution allocates the areas of legislative power to the federal government primarily in sections 51 and 52, with these powers being variously exclusive or concurrent with the Australian States. In this context, the Constitution was amended in a referendum in 1946 to include section 51(xxiiiA). This provision determines that the federal parliament, among others, can make laws with respect to:
The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.
This provision allows for the granting of various services by the government but not to the extent of authorising any form of civil conscription. The concept of “civil conscription” was first considered by the High Court in 1949 in British Medical Association v Commonwealth. Legislation which required that medical practitioners use a particular Commonwealth prescription form as part of a scheme to provide pharmaceutical benefits was declared invalid as a form of civil conscription. In the opinion of Chief Justice Latham, civil conscription included not only legal compulsion to engage in particular conduct, but also the imposition of a duty to perform work in a particular way. Justice Williams, in his judgment, stated that
the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical service” (emphasis added).
Hence, if the medical profession were directed by government to mandatorily vaccinate people, such direction would constitute an unconstitutional civil conscription. Such direction would interfere with the relationship between the doctor and the patient – a relationship which is based on contract and trust. Of course, a doctor who freely performs his or her medical service does not create conscription. However, as Justice Webb explicitly mentioned:
When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription.”
In 2009, in Wong v Commonwealth; Selim v Professional Services Review Committee, Chief Justice French and Justice Gummow held that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services”. Justice Kirby opined that the purpose of prohibiting such conscription was to ensure that the relationship between medical practitioner and patient was governed by contract where that is the intention of the parties. For him the test whether civil conscription has been imposed is “whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of medical and dental services and the individual recipients of such services.”
This view is also supported in international human-rights legislation particularly via the Nuremberg Code – an ethics code relied upon during the Nazi doctors’ trials in Nuremberg. This Code has as its first principle the willingness and informed consent by the individual to receive medical treatment or to participate in an experiment. Arguably, people’s refusal to be vaccinated may be based on the ground that the coronavirus vaccines are still experimental and their long-term effects and safety on its recipients are largely unknown.
Of course, it goes without saying that compulsory vaccination adversely affects the democratic principle of equality. In Leeth v Commonwealth, Justice Deane and Justice Toohey referred to the Preamble to the Australian Constitution to support their view that the principle of equality is embedded impliedly in the document. They said that “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.”
The deliberate exclusion of those who reject the experimental vaccination from participation in certain activities discriminates against them on the ground of vaccine status. This apartheid-type situation effectively amounts to a violation of a basic right of the individual, the constitutionality of which is extremely doubtful given the jurisprudence of the High Court already indicating that what cannot be done directly, cannot be achieved indirectly without violating s. 51 of the Constitution. This point was addressed in a comment of Justice Webb in British Medical Association v Commonwealth:
If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance” (emphasis added).
As can be seen, if governments cannot force everyone to be vaccinated, they certainly cannot indirectly create a situation in which everybody would be forced to take the vaccine. In other words, the jurisprudence of the High Court indicates that no legislation can impose limitations on the rights of citizens that directly or indirectly amount to a form of civil conscription. On this view, unvaccinated Australians still remain equal members of society and they cannot be treated as lower class citizens.
To resume, the “no conscription” requirement to be found in s 51 amounts to an explicit limitation on the provision of medical or pharmaceutical services, for example compulsory vaccination, which remains governed by the contractual relationship between patients and doctors. Section 51(xxiiA) must therefore be regarded as an implied constitutional right of individual patients to refuse vaccinations.
Accordingly, any legislation that requires medical practitioners to prescribe government-mandated medical services, such as vaccinations, constitutes a form of involuntary conscription that is constitutionally unauthorised. To this effect Justice Webb’s statement in British Medical Association also indicates that, even if the medical doctor were compelled to provide a vaccination service, the patient would have the constitutional right to waive that service. In other words, no government in this country is constitutionally authorised to force or compel any person or group of persons to take vaccination or a medical procedure against their own will.
And now another equally important observation.
I am afraid Australians have passively watched their elected representatives use a broad range of extra-constitutional powers to remove numerous of their fundamental legal rights; to acquire absolute control over almost every single aspect of their lives and the lives of their children. These politicians have appealed to an “emergency” in order to impose draconian measures that deeply affect the enjoyment of these fundamental rights. And now such political rulers openly express their desire to extend these emergency powers, thus confirming the worst fears of Hayek that such powers seem to have a natural way of becoming more permanent after the alleged emergency is over. He offered this sobering reflection:
The conditions under which such emergency powers may be granted without creating the danger that they will be retained when the absolute necessity has been passed are among the most difficult and important points a constitution must decide on. ‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded – and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.
Emergency powers result in the dramatic growth of arbitrary power and control over the citizen. As stated by German jurist Carl Schmitt, in his Political Theology (1922), “Once a state of emergency has been declared … the decision exempts the political authority from any normative restraint and renders it absolute in the true sense of the word.” This certainly appears to be the case. However, it is quite disheartening to see so many Australians happily patronising others and speaking down to their own fellow citizens. As noted by Chris Kenny, “some of the worst aspects of our society have come to the fore through panic buying, hysterical reporting dependency and, from some, a masochistic desire to take orders”.
It is hard to disagree. Indeed, the response to this alleged health crisis has prompted far too many Australians to effectively treat their fellow citizens as their “deadly enemies” – dangerous carriers of a potentially lethal disease. As Henry Ergas points out, “being surrounded by people wearing masks coats daily life with a deep glaze of oddness, casting ourselves and everyone around us as simultaneously risky and at risk, contaminable and contaminable”.
This reminds me of a leading figure of early American history, Benjamin Franklin, who once said: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”. His remarks were especially directed at those who couldn’t see that any further compromise was actually impossible. Franklin was urging his compatriots to not give up of their fundamental rights in exchange for a false sense of security. After all, as Thomas Jefferson once famously stated: “A government big enough to give you everything you want, is strong enough to take everything you have”.
People who don’t know anymore their own values and traditions are more easily conquerable. I have already explained what the rule of law means in accordance to our legal-institutional values and traditions. That so being, I would like to conclude this presentation with a quote from William Pitt, the 1st Earl of Chatham (1708 – 1778). He served as Prime Minister of Great Britain in the middle of the 18th century. Historians also call him William Pitt the Elder, to distinguish him from his son, William Pitt the Younger. Pitt the Elder was also known as the ‘Great Commoner’ because of his identification with the common people, and long-standing refusal to accept a title of nobility until 1766. In a famous speech to the House of Lords, on 9 January 1770, he boldly declared:
There is one ambition at least which I ever will acknowledge, which I will not renounce but with my life – it is the ambition of delivering to my posterity those rights and freedoms which I have received from my ancestors. I am not pleading the cause of an individual, but of every freeholder in England… Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my Lords, that where the law ends, there tyranny begins.
It was an Irish politician, lawyer and judge, John Philpot Curran (1750-1817), the greatest “people’s advocate” of the eighteenth century, who once said: “The condition upon which God hath given liberty to man is eternal vigilance; which condition if he breaks, servitude is at once the consequence of his crime, and the punishment of their guilty”. Unless Australians finally wake up and start to develop a better sense of self-respect and dignity, thus appreciating the rights and freedoms they have inherited from their ancestors, I am afraid we are just about to initiate the darkest period in Australia’s history, where the nation will cease to have government under the law to rather be governed by a less open, or more disguised form, of elected dictatorship.
-  Yeni Safak, ‘Unvaccinated People in Australia to Face Harsher Restrictions’, July 29, 2021, at https://www.yenisafak.com/en/world/unvaccinated-people-in-australia-to-face-harsher-restrictions-3577427.
-  O. H. Phillips and P Johnson, O Hood Phillips’ Constitutional and Administrative Law, (Sweet & Maxwell, 1987), 37.
-  Miguel Schor, ‘The Rule of Law’ inD Clark (ed), Encyclopedia of Law and Society: American and Global Perspectives (Sage Publications, 2005), 231.
-  A.V. Dicey, Introduction to the Study of the Law of the Constitution  (Liberty Fund, 1982), 120-21.
-  Friederich A. Hayek, The Constitution of Liberty (The University of Chicago Press, 1960), 205.
-  Ibid., 206.
-  Ibid.
-  Martin Krygier, ‘The Grammar of Colonial Legality: Subjects, Objects, and the Australian Rule of Law’, in G. Brennan and F. G. Castles (eds.), Australia Reshaped: 200 Years of Institutional Transformation (Cambridge University Press, Cambridge, 2002), 234.
-  Krygier, above n.8, 225.
-  Ibid.
-  C.L. Ten, ‘Constitutionalism and The Rule of Law’, R.E. Goodwin and P. Pettit (eds.), A Companion to Contemporary Political Philosophy(Cambridge/MA: Blackwell: 1993). Chin Liew Ten is Emeritus Professor of Philosophy and former Head of the Philosophy Department at the National University of Singapore.
-  T. R. S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism, (Clarendon Press, 1993), 21.
-  Ibid., 44.
-  Ibid., 21-2.
-  See: Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, at 279; 69 ALR 631; Halliday v Commonwealth (2000) 45 ATR 458;  FCA 950 at .
-  (1949) 79 CLR 201;  HCA 44.
-  (1949) 79 CLR 201, at 287 (Williams J).
-  (1949) 79 CLR 201, at 295 (Webb J).
-  (2009) 236 CLR 573
-  Ibid at .
-  Ibid at .
-  (1992) 174 CLR 455.
-  Ibid at .
-  (1949) 79 CLR 201, at 293 (Webb J).
-  Friedrich A. Hayek, Law, Legislation and Liberty (Vol.3, University of Chicago Press, 1981), Ch 17.
-  Carl Schmitt, Politische Theologie (2nd ed, 1934), 20
-  Chris Kenny, ‘If Politicians Know Best, Why So Many Mistakes?’, The Australian, 15 August 2020 <https://www.theaustralian.com.au/commentary/if-politicians-know-best-why-so-many-mistakes/news-story/61184b5377a4638fbd70b9ef53253f40>.
-  Henry Ergas, ‘Our Face Work Diminished, We Cannot Mask the Cost’, The Australian, 7 August 2020 <https://www.theaustralian.com.au/commentary/our-face-work-diminished-we-cannot-mask-the-cost/news-story/ed3fed8d5e8bc4f8903bf42915e302ba>.
-  ‘Benjamin Franklin on trade off between essential liberty and temporary safety (1775)’, Liberty Fund, at https://oll.libertyfund.org/quote/benjamin-franklin-on-the-trade-off-between-essential-liberty-and-temporary-safety-1775 (last visit 13 August 2021).
-  William Pitt, 1st Earl of Chatham (Speech to the House of Lords, 9 January 1770)
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