Australia is no longer under the rule of law; the nation is now under the rule of the law breakers, our political leaders.
Australians never agreed to appointing a cabal of dictators. Their law-breaking excesses will inevitably lead to the award of untold millions in damages.
The dictators abuse the powers they have through ‘delegated’ or ‘subordinate legislation’. Made under an act of a parliament, a bewildering nomenclature is used to describe them, such as ‘regulations’ ,’ordinances’, ‘orders’ etc.
When we were a real Westminster democracy anything important went to the Executive Council where the case for the Governor approving it would be presented properly, thus demonstrating the central constitutional principle that the Crown is important not for the power it wields, but the power it denies others.
The proposed measure would be supported by legal advice that the Governor has the power to do what is proposed. In the case of the Wuhan virus (or as Beijing instructs, COVID-19) there should also be available medical advice supporting the measure, and an argument why this particular measure is needed despite the burdens it will create.
The people having in 1999 denied them their politicians’ republic, have the political class decided to neutralise the institution?
In addition, a measure of the importance that most are supporting a lockdown would be tabled immediately in both Houses of Parliament, except Queensland where, scandalously, there is only one.
It would be open for either House to call for the documents supporting the measure. That would be refreshing. The dictators like to treat medical advice a state secret, instead of the property of the people who paid for it.
Under this traditional system, either House could have voted to disallow the measure. But such is the abuse of the system by our politicians, they have undermined parliamentary democracy by stripping especially Upper Houses of much of their crucial and traditional power of disallowance. NSW Health Minister Hazzard would not have treated the recent upper house hearing with the contempt he demonstrated, if that weapon were still hanging over his head.
With these crucial checks and balances gone, power has gone to the heads of the dictators, an extremely dangerous situation.
It is a brutal truth, but none of them is exceptionally competent. Just look at the absolute disasters over which they preside, including but not only defence, debt, power, water and education.
Just a few examples will demonstrate how misfeasance has been committed, the ban on overseas travel, the closing down of the construction business in NSW without health advice, the imposition of grossly arbitrary fines, the cruel refusal to allow relatives to see dying parents, the use of curfews. Double quarantine for South Australian Olympians, the businesses which have gone to the wall and the ending of careers.
All these exercises potentially constitute the civil wrong of misfeasance in public office, as the 2011 live cattle ban demonstrates. That began with an ABC broadcast on inhumane treatment of Australian cattle exported to Indonesia. Gillard government Minister Ludwig issued an order that cattle could not be exported to twelve suspect Indonesian abattoirs. But under pressure, he then issued a total ban.
Federal Court Justice Rares found that Ludwig had been recklessly indifferent both as to the availability of his power to make an order, and to the injury which would be suffered by those affected. The judge held that the exercise of such a power must be reasonable. proportional and rational in all of the circumstances. It clearly was not.
These principles apply to the slew of decrees made so arrogantly in relation to the Wuhan virus.
The mountain of legal actions which will flow from the Wuhan crisis will result in many awards of substantial damages. Unless the government settles this, it will take years. But it will be for the taxpayers to pay any damages.
Two changes should be made. First, where a finding of misfeasance is made, a court should be able to order a substantial personal contribution from those ministers responsible to the victims of their acts.
Second, there should also be a crime of serious misfeasance in public office.
This affair confirms the need for Australians to be able, like the Swiss, to introduce such laws themselves by petition and referendum, as well as a power to petition for recall elections.
But common-sense suggested that in the privacy of the polling booth a number of ‘aspirational’ voters and their extended families who normally vote directly or preferentially for Labor, would be put off by Labor’s policy to take away negative gearing , increase capital gains tax and confiscate self-funded retirees’ tax refunds on franked dividends.
Using statistical indicators it was possible to estimate how many likely Labor voters would be adversely affected by a Shorten government. I published those to explain my conclusion that the pollsters were wrong to predict a Labor victory and that this was not just a ‘gut‘ feeling.
In addition, Malcolm Turnbull had gone and Scott Morrison was a far more vigorous campaigner. To most he probably looked like a ‘good bloke’, not the sort of man who would, for example, go on holidays in Hawaii in the middle of a bushfire crisis or campaign to overthrow his own prime minister, neither tendency known at the time .
Anthony Albanese has now cancelled all of these policies. But now with inner-city elites demanding he close coal mining and then gas, blue-collar workers in mining electorates fear he will betray them. The fact the Coalition would do much the same does not matter. So Albanese is right to be worried. He made a secret visit to a Queensland coal mine recently, but failed to announce a return to real Labor policy. If he did, he fears he will lose city electorates to the Greens. If Joel FitzGibbon were leader, he would be less likely to worry; Greens preferences are not going to the Coalition nor is it likely that Greens MPs would ever bring down a Labor government.
The fact is we are not well served by the system of representative democracy, we are being offered essentially similar policies. Americans were only able to preselect Donald Trump because the primaries are in the hands of the people, especially in the Republican party. (The Democrats worked out a way to rig their primaries in time for the 2016 election.)
One solution favoured in some countries is for a good dose of direct democracy, especially allowing recall elections. The Coalition dangled this tantalisingly before voters in NSW in the 2009 election. But when an eminent panel recommended its introduction, their report was pigeonholed .
Another remedy is to allow voters to initiate binding referendums. A proposal from SA Premier Charles Kingston for this was discussed informally around the 1891 federation convention, but Alfred Deakin successfully canned that on the basis that the Westminster system gave adequate control over governments. That was before the two-party stranglehold on the Parliament. Labor for long supported citizen-initiated referendums, but eventually abandoned this.
Just as we borrowed the referendum from Switzerland, we should now borrow all the controls the Swiss people have over their politicians.
That is the only way we can rise from the disaster which the political class are imposing on Australia.
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Professor David Flint AM is an emeritus professor of law and was chairman of the Australian Broadcasting Authority and the Australian Press Council, president of the National Federation of the English Speaking Union, Associate Commissioner with the Australian Competition and Consumer Commission and convenor of the Committee of Australian Law Deans. He has been National Convenor of Australians for Constitutional Monarchy since the 1999 referendum campaign. He has authored books on topics such as the media, international economic law and on the Constitution. At Barcelona in 1991 he received a World Jurist Association award as World Outstanding Legal Scholar. He was made a Member of the Order of Australia in 1995. His Good Sauce show,Take Back Your Country, discusses the problems and solutions to the decay of federalism and democracy.
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