Covid and the Constitution – Beware a Gain of Function

Augusto Zimmermann & Gabriël Moens: If the Will Were There to End Vaccine Mandates

THE frustration of these eminent lawyers is justified but when enlightenment is premised on an if so colossal, hope doesn’t spring eternal. Because there is no will in Scott Morrison’s government to override the states and territories and protect the rights of those who are not vaccinated. Say what you like about Labor’s activist Attorneys-General – Murphy, Evans, Lavarch, Roxon – they weren’t shy of giving their ideas a red hot crack. You may not have approved of the ‘reforms’ they sought to canonise but they couldn’t be accused of lacking will. The polite Liberal delusion of constitutional preservationism has become an impediment to good governance and freedom under several heads of power. On the other hand, while the precedents for a section 51 federalisation of laws governing vaccine mandates seem compelling – as they always do when the external affairs power is eyed off by the irked – a winning tilt is no doddle and may even do more harm than good.

Remember, this is a government that couldn’t draft a religious discrimination bill in three years. So much for political acumen. On the jurisprudence, there is no predictable ratio decidendi regarding foreign treaties – not where subject matter meets scope, anyway. There is still ample vibe room for a sceptical bench. Citing a treaty power to bring mandating states to heel is not as straightforward as presenting the High Court with an order form and a rubber stamp. The court might ‘discover’ in the Constitution (or in some other ratified international agreement) an implied jurisdictional right that favours the states; for example, to medical subsidiarity in relation to disease management. As a longer term strategy, moreover, is an era of ‘climate change’ mania really the best time to remind Labor of section 51? If it ended in climate lockdowns, ‘oops’ wouldn’t begin to expiate an own goal for the annals. It is too late for Mr Morrison to take moral control. As Franky Five Angels explains to man of reason Michael in The Godfather, “this is a street thing.”

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9 Responses to Covid and the Constitution – Beware a Gain of Function

  1. FlyingPigs says:

    The Covid Crap and the looming Net Zero has exposed Australia as a mere plaything.

    What a joke the notion of a Commonwealth when the wealth of the commons is denied to us by imposed red letter law.

    Just shutup and take your jab if you know what’s good for you and you might survive.

  2. Entropy says:

    I am actually opposed to the endless expansion of federal powers, what you advocate is just another example.
    With great power comes great responsibility. And federal public servants aren’t too good at the responsibility bit. Everywhere is a long way from utopian Canberra.
    I know you don’t like mandates. Who does? But remember this: one day soon a less benign government will be in power in Canberra (yeah, hard to believe, but bear with me) and what you have called for will give them, already in place, the power to do what you oppose nationally.

  3. C.L. says:

    Did you read the post, Entropy?

  4. Entropy says:

    Feds should not create precedents.

  5. Entropy says:

    But yes missed an “as”

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  7. C.L. says:

    I think we’re in agreement, E.

    If you had really bright and motivated Liberals and a first-class A-G, however, there might be a few wins that could be prudently eked out of the High Court re mandates, speech and other worthwhile things.

    We don’t have any Liberals of that calibre in Parliament, however. Therefore, better to leave well enough alone.

    Morrison could have used his office as a bully pulpit but he was done over by the Premiers a year ago and no longer has any authority re covid.

  8. Tel says:

    I am actually opposed to the endless expansion of federal powers, what you advocate is just another example.

    How about this for a plan?

    The Commonwealth can declare long and loud that they are out of the medical business now and forever … since they have no constitutional power to have ever been in that business to begin with … at the same time they destroy the Australian Vaccine Register for exactly the same reason. That would help put an end to endless expansion of federal powers, and at least make “vaccine passports” more difficult.

    Heck, they could also pass some kind of Privacy Act containing genuine principles protecting the rights of individuals, as applied to government (unlike the incredibly watered down pretend privacy they have offered so far). That might also reduce all government powers. If that’s not achievable, they could at very least use their corporations power to insist than no corporate sells out private customer data to anyone (including any government, federal, state or local) which would not be such a stretch.

  9. jupes says:

    How about this for a plan?

    Won’t work. Too sensible and principled, neither of which have appealed to the government for quite some time now.

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