Reposted from an article published September 9, 2021 in the Epoch Times
by Augusto Zimmermann and Gabriël Moens
Although it is not feasible to predict what the High Court of Australia—the nation’s apex legal body—would do if it were called upon to consider the constitutionality of vaccine mandates and emergency declaration orders, it is still possible to argue what it should do.
The Australian Constitution must be interpreted in a manner that promotes its purposes, values, and principles, while advancing the “rule of law” and the fundamental rights of the citizen.
The idea of mandatory vaccination—which is now steadily underway in Australia to combat the spread of COVID-19—sits uncomfortably with this jurisprudence.
The Constitution expressly limits the exercise of government power to protect the rule of law. This limitation reduces the incidence of unrestrained power, which is closely connected to achieving human freedom and happiness.
Accordingly, the Constitution allocates legislative power over certain health services to the federal government (or Commonwealth), with these powers being exclusive or concurrent to those wielded by the Australian states.
However, Section 51 (xxiiiA) of the Australian Constitution, which was added following a referendum in 1946, provides that the Commonwealth Parliament 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.”
