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.”