As a constitutional lawyer and legal theorist who appreciates our classical liberal tradition of constitutional government I have been against the imposition of the draconian measures to fight COVID-19 since they began. I believe they are arbitrary and ultimately a gross violation of individual rights.
Of course, there never was an emergency that could justify the use of such extreme measures. Politicians have justified the incredible harm they are causing to the Australian people by getting completely drunk on their own sense of self-righteousness. Full of themselves, they proudly warned that we face a great threat but their policies have saved us from the spread of a deadly virus. The privileged members of our political class are therefore able to block our peaceful protests because they think they know better what needs to be done, and even if we are eventually oppressed, silenced and destitute as a result.
A reasonable concern for our well-being is one thing, but the actions taken by politicians during this pandemic have gone well beyond the extreme. What is happening is unacceptable and it gives new meaning to the phrase, ‘a cure worse than the disease’. Of course, some of the worst crimes against humanity have been committed by individuals who believed they were simply doing a ‘great good’. Listening to their patronising remarks brings to mind a famous quote by Christian apologist and novelist C.S. Lewis:
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive… Those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”[1]
The political philosophy of John Locke is particularly relevant to our understanding of the matter. Locke is known as the ‘Founder of Liberalism’ due to his immense contributions to political philosophy. In the constitutional struggle of parliamentary forces against the Stuart monarchs in 17th Century England, Locke elaborated a theory in which the primary justification for civil government rests on the preservation of our fundamental rights to life, liberty and property. Locke’s main concern in his political writings was the elaboration of a legal-political philosophy to underpin the Glorious Revolution of 1688.
Locke developed a distinctly Western political tradition based on the idea that everyone is endowed by God with inalienable rights, and that no government must ever violate these basic rights of the individual. More importantly, Locke distinguished what is legitimate political power from a situation in which the exercise of power becomes despotic and/or paternalistic. As Locke himself pointed out:
“The great mistakes about government have … arisen from confounding this distinct power [political power] with another [paternal power]”.[2]
Hence, as noted by Dr Kalle Grill, “paternalism is opposed by the liberal tradition” of limited government under the law.[3]
According to emeritus professor of government Geraint Parry, one of the primary purposes in Locke’s political theory, “was to separate political power from despotic power and paternal power – in other words, to deny that there is any analogy between the political relationship and the relationships which exist between either masters and slaves or father and children.”[4] Accordingly, the paternal leader is the political ruler who does not distinguish the difference between such relationships and limits the liberty of the people with the supposed intent of promoting “their own good” regardless of their personal will. Such an attitude displays a profound disregard for the will of other individuals and it involves behaviour that reveals an attitude of superiority coupled with profound arrogance and self-righteousness.
The Australian Prime Minister is a typical paternal leader. Morrison says he is quite happy that his subjects are behaving well. He is thinking about rewarding us for our “good behaviour”. Meanwhile, he warns that there will be “many more [restrictions] in front of us before [the government] can even possibly contemplate the easing of restrictions.”[5]
“There’s got to be a reward for all of this great effort that’s going in, and there will be, but we’ve got to make sure that’s done at the right time,” the Prime Minister told Sky News.[6]
Morrison recently urged his ‘faithful subjects’ to download a phone app that allows the federal government to trace our every move. His government was initially aiming for a 40 per cent take up of control of ‘people’s movements and the people they come in contact with’.[7] While the app that the federal government developed apparently is voluntary, its introduction naturally raises concerns of such measures becoming more permanent in the future. It also raises serious privacy issues and concerns that the app will later be used for permanent surveillance. The app presently monitors people’s daily interactions using GPS. It uses Bluetooth technology to record contact with other people even if they do not know each other.[8]
Although people under 60 have an extremely small chance of dying from coronavirus, the Prime Minister strongly believes that 95 per cent of the population must take the vaccine against such a virus. His first instincts are always inherently authoritarian and he appears to have developed a visceral distrust of the Australian people. That being so, he initially wanted the vaccine to be as mandatory as possible.[9]
“I expect that it would be mandatory as you can possibly make it,” he said, adding that he is, “talking about a pandemic which has destroyed the global economy and taken the lives of … 430 Australians”.[10]
First of all, what has really destroyed our economy is the behaviour of incompetent leaders such as Morrison himself. There were far better and more efficient ways to fight this virus apart from savage bans and gross violations of fundamental rights being inflicted on the people. Second, the Prime Minister appears to ignore that Australia is a country in which the State has been conceived as deriving from the law and not the law from the State.[11] The Morrison government has no more valid powers than those explicitly granted by the Australian Constitution.[12]
Morrison’s comments about vaccination follow the signing of Australia’s first vaccine deal with drug maker AstraZeneca.[13] This vaccine has been rushed through trials and has never been successfully produced for a coronavirus: it might do more harm than good. Of course, this is the same government that told us that roughly 150,000 Australians would die from COVID-19. It is also the government that unreasonably banned therapeutics such as hydroxychloroquine/zinc, which numerous health experts say “could be our best cure” in the fight against the coronavirus. [14] Furthermore, the Morrison government has miserably failed to protect nursing homes where the highest incidence of victims of COVID-19 has occurred.
During this coronavirus crisis, our politicians seem to be driven less by a reasoned, evidence-fueled strategy of limiting the spread of the disease and the disorganisation of economic life, than by an urge to be seen to be taking action. As a result, countless people are losing their jobs, particularly in the entertainment industry. Inevitably, job losses will lead to far more homelessness, with financial pressures leading to more marriage breakdowns and a dramatic growth in crime, which always increases in times of economic crisis.
What is happening here is nothing short of deeply tragic because, in many ways and on many levels, Australians have been miserably betrayed by their own federal and state politicians. Remarkably, Locke famously argued that governments have no other end, “but the preservation of these rights, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects”. If a government exceeds the limits of its legitimate power, citizens have the fundamental right to resist.
As Locke famously put it:
“Whenever the legislators endeavour to take away and destroy the rights of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.”[15]
We should not be too hasty in dismissing Locke’s advocacy for fundamental rights and the traditional concept of lawful resistance against political tyranny. This is our classical liberal tradition and it firmly communicates that there cannot be one rule for some and another for the rest of us. Federal, state, and territory leaders in this country have been exposed for their authoritarian behaviour as there was never an emergency that could possibly justify the exercise of such arbitrary powers.
The Australian people have a lawful right to resist such acts of tyranny and demand from their ruling political class the lifting of arbitrary restrictions and full restoration of our fundamental rights and freedoms.
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Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertIntArb is a well-known expert in Brazilian law, and the author of numerous books and articles on Brazilian Constitutional Law, including Direito Constitucional Brasileiro – Tomes I & II (Rio de Janeiro/RJ: Lumen Juris, 2014), and Curso de Direito Constitucional (4th ed., Rio de Janeiro: Lumen Juris, 2006). He is also co-author of the book Deconstructing Scomo. He is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017. Dr Zimmermann was chair and professor of Constitutional Law at Murdoch University from 2007 to 2017.
[1] C. S. Lewis, God in the Dock: Essays on Theology and Ethics (William B. Eerdmans, 1948), 74.
[2] John Locke, The Second Treatise, (Cambridge University Press, 1960), para. 169,
[3] Kate Grill, ‘Paternalism’, in R. Chadwick (ed.) Encyclopedia of Applied Ethics (2nd ed., Elsevier, 2011). <http://kallegrill.se/texts/Paternalism%20preprint.pdf>
[4] Geraint Parry, ‘Individuality, Politics and the Critique of Paternalism in John Locke’, (1964) 2 Political Studies 1, 1.
[5] Malcolm Farr and Daniel Hurst, ‘Australian Government Plains to Bringing in Mobile Phone App to Track People With Coronavirus’, The Guardian, 14 April 2020. <https://www.theguardian.com/australia-news/2020/apr/14/australian-government-plans-to-bring-in-mobile-phone-app-to-track-people-with-coronavirus>
[6] Ibid.
[7] Ibid.
[8] Andrew Probyn, ‘Coronavirus Lockdowns Could End In Months If Australians Are Willing To Have Their Movements Monitored’. ABC News, 14 April 2020. <https://www.abc.net.au/news/2020-04-14/coronavirus-app-government-wants-australians-to-download/12148210>
[9] Richard Furgason, ‘Future Vaccine Should Be Mandatory, Says PM’, The Australian, August 19, 2020. <https://www.australian.com.au/nation/coronavirus-australia-live-news-fears-grow-of-sydney-hotel-breach-outbreack/news-story/cf35fb9ae2901600276fa78ee89a2dc5>
[10] Jade Gailberger, ‘Coronavirus Vaccine Should Be Mandatory: PM’, PerthNow, 19 August 2020, <https://www.perthnow.com.au/lifestyle/fitness/coronavirus-vaccine-should-be-mandatory-pm-ng-fc7dc9cd495bcc7332487c07731b4c98>
[11] W A Wynes, Legislative, Executive and Judicial Powers in Australia (Sydney: The Law Book Co, 1955), vii.
[12] For instance, whereas Section 51 (xxiiiA) of the Australian Constitution allows for the granting of various services by the federal government, this should not be to the extent of authorising any form of civil conscription. This means that no government in this country, or those acting on its behalf, is constitutionally authorised to make the Australian people take any medicament against their best will, or force children to be vaccinated in order to maintain benefit payments.
[13] Jade Gailberger, ‘Coronavirus Vaccine Should Be Mandatory: PM’, PerthNow, 19 August 2020. <https://www.perthnow.com.au/lifestyle/fitness/coronavirus-vaccine-should-be-mandatory-pm-ng-fc7dc9cd495bcc7332487c07731b4c98>
[14] Andrew Bolt; ‘I must call Prime Minister Scott Morrison to Account’, Sky News, 10 August 2020. <https://www.skynews.com.au/details/_6179768424001>
[15] John Locke, Second Treatise on Civil Government [1690] Ch 19, Sec 222.
