Victorians have watched their state government use a broad range of extraordinary powers to remove fundamental freedoms and control almost every single aspect of their personal lives. It did so by both declaring a state of emergency and a state of disaster, thus imposing draconian lock down measures after a surge in coronavirus infections.
Imposed under the pretense of protecting the health of the people, the state of disaster came into effect in Victoria on August 2. Under the Emergency Management Act a state of disaster can be declared if the Premier is satisfied an emergency “constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria”.[1]
But Victoria is also under a state of emergency, which came into effect on March 16. The declaration was made under the Public Health and Wellbeing Act 2008, which allows health officials to detain people, search premises without a warrant, and force people or areas into lock down if it is deemed necessary to protect public health.
And now the Victorian Premier expresses his desire to extend the state of emergency for an indefinite period. He is effectively repeating history by revealing his intention to extend his emergency powers indefinitely. The Premier is currently working with the State’s Solicitor General to enact another provision to extend the state of emergency for an indefinite period of time.[2] He claims this is necessary because of ‘the authority and the effectiveness of all the measures that we’ve put in place’.[3]
This appears to confirm the worst fears of Friedrich Hayek, an Austrian-British economist and philosopher who won the Nobel Prize in Economics in 1974. In his seminal ‘Law, Legislation and Liberty’ (1981), he contended that “temporary” measures seem to have a way of becoming permanent after the emergency is over. Hayek offered this sobering reflection:
“The conditions under which such emergency powers may be granted without creating the danger that they will be retained when the absolute necessity has passed are among the most difficult and important points a constitution must decide on. ‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded – and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.”[4]
This is not so dissimilar to what happened to a certain European country in the 1930s. There, a certain German Chancellor also turned his own state of emergency into a more permanent one. The correlation between the instrument used by that particular government to continue exercising its emergency and the intention of the Victorian government to turn its emergency power into a permanent one is irrefutable. It can be manifested, among several other things, in the disregard for fundamental rights coupled by the passive behaviour of the population and a considerable silence of the legal profession in upholding the rule of law.
It might be important to remind ourselves how dictatorial regimes are brought into existence. There is always a state of emergency used to justify the suspension of constitutional rights and I wish to be absolutely clear about this. However, I do not wish my words to be misconstrued and my opinions mischaracterised. As such, I wish to make myself absolutely clear that I am not comparing the use of emergency powers by the Victorian Premier and the use of similar instruments by a particular German dictator in the 1930s.
This is therefore not about how emergency powers can be used by the respective governments, but the instrument by which such powers can be used to justify arbitrary power and governmental control over the life, liberty and property of the people. After making this proviso I can now explain how emergency powers that appeal to the “health” of the community have served as an instrument of perpetuation of power and oppression of the people. The history of Germany in the 1930s provides a good case point.
Learning from history
When Adolf Hitler was appointed German Chancellor, on 30 January 1933, the consolidation of the National Socialist regime was in no way assured. To add validity to the new regime, the public needed to be convinced of the necessity, and legality, of the measures justifying the violations of constitutional rights by the government.
Initially, that German government took a strong interest in preserving the impression of legal “normality”. When the Enabling Act was passed in March 1933, handing over legislative power to the executive for four years, everything was done under the appearance of absolute legality. That act was passed via an amendment approved by two-thirds of the Reichstag (German Parliament), as strictly required by Article 76 of the Weimar Constitution. According to R C Caenegem, emeritus professor of legal history at Ghent University, the re-enactment of those enabling powers in 1937, 1939 and 1943 provided “an interesting indication of the regime’s schizophrenic combination of legal formalism with ruthless violence and basic contempt for the rule of law”.[5]
The principal characteristic of lawyers who gave the German regime its legal legitimacy was narrow legal positivism, coupled with a blatant disregard for individual rights and freedoms.[6] Those lawyers rationalised that if government had acquired those powers in a strictly legal manner, then the rule of law had also been respected and whatever the government was doing was entirely valid from such a narrow perspective.[7]
By not questioning the renewal of the state of emergency powers in any tangible way, the German legal community failed to protect the rule of law and the fundamental rights of the people. Those lawyers merely acted as “yes-men” to a brutal regime which opposed anything that could jeopardise the “health of the German community”, as perceived by the regime’s leadership.[8] Curiously, the more those lawyers made efforts to legitimise the regime, the greater the contempt displayed towards them by the Nazi leadership. As the German dictator once declared, to the delight of so many people:
“The health of the German nation is more important than the letter of the law”.[9]
Under Article 48 of the Weimar Constitution, the German President was authorised to govern by decree during such times of emergency.[10] In February 1933, President Hindenburg relied on that particular provision to sign an executive decree which suspended constitutional rights and granted the National Cabinet authority to enact any decree to be deemed necessary for the protection of the people.[11]
What followed was a total suspension of individual rights ‘until further notice’.[12] Of course, that ‘further notice’ did not occur until May 8th, 1945, when the decree was finally cancelled by the military government of the Allies. As noted by German jurist Carl Schmitt, in his influential Political Theology (1922):
“Once this state of emergency has been declared… the decision exempts the political authority from any normative restraint and renders it absolute in the true sense of the word. In a state of emergency, the constituted authority suspends the law on the basis of the right to protect its own existence.” [13]
Ultimately, the advent of National Socialism cannot be isolated, like some sort of accident, from the prevailing sentiments of the people. In those days the Germans were quite willing, even anxious, to receive their ultimate protection from government. They rejected the idea of liberal democracy and preferred instead to be ruled by a government that could “protect” the community from real or imaginary threat.
History tells us that those Germans paid a very heavy price for their trust in government. Such a government led them to a disastrous military conflict that eventually resulted in 75 million causalities. Germany alone sustained 8 million losses, 3 million of them civilians who died because of deliberate massacres, mass-bombings, disease and starvation.[14]
Democracy is indispensable
Of course, I am not stating here that Victorians are facing the same challenges. Absolutely not and nobody would be so irresponsible to make such comparison.
However, as stated above, history repeats itself in the sense that emergency powers have been used once again to justify the implementation of draconian measures that profoundly violate the most fundamental rights of the individual.
If the ongoing events taking place in Victoria are not disturbing enough by themselves, the tacit support of the Australian Prime Minister and the passivity of the Victorian Liberal opposition certainly are. In a letter to the Victorian Government, Shadow Attorney-General Edward O’Donohue contemplates the acceptance of these extraordinary powers being extended. After reminding the Premier that they “represent a significant erosion of individual freedom and recognising this”, he goes on to tacitly accept their continuation by meekly requesting the Premier that “any further extension must be accompanied by enhanced scrutiny and safe guards enshrined in the legislation”.[15]
Due to the impact of these measures on fundamental rights, clearly this is not nearly good enough. Of course, history teaches us that once emergency powers are declared, the normal operation of parliamentary democracy may never be re-established again. The lessons of history are quite compelling and Victorians are now more vulnerable than ever to all sorts of political oppression and arbitrary behaviour. They are more vulnerable than ever to ongoing violations of fundamental rights, and simply because the legal-institutional mechanisms that have traditionally prevented concentration of power are no longer available.
For all intents and purposes, it is perfectly possible to sustain that Victoria has now effectively become an elected dictatorship with the tacit endorsement of a complacent State Opposition and Australian Prime Minister.
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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] Rachel Clayton, ‘Why Victoria Needs Both State of Emergency and State of Disaster Powers to Fight Coronavirus’, ABC News, at https://www.abc.net.au/news/2020-08-16/victoria-state-of-emergency-disaster-explained-coronavirus/12563680
[2] ‘Vic Premier Moves to Extend State of Emergency Capabilities Indefinitely’, News.com.au, August 17, 2020, at https://www.news.com.au/national/vic-premier-moves-to-extend-state-of-emergency-capabilities-indefinitely/video/33c6bc50e2176e504d3e738c9309b696
[3] Clayton, above n.1.
[4] Friedrich A. Hayek, Law, Legislation and Liberty, Vol. 3 (University of Chicago Press, 1981), Ch. 17.
[5] R C Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge: Cambridge University Press, 1995), p 277.
[6] Paul Johnson, Modern Times: The World from the Twenties to the Ninetieths (New York/NY: HarperPerennial, 2001), p 111.
[7] Caenegem, above n.2, p 283.
[8] A. Kolnai, The War Against the West (New York/NY: Viking Press, 1938) p 300.
[9] M Broszat, The Hitler State: The Foundation and Development of the Internal Structure of the Third Reich (New York/NY: Longman, 1981), p 293.
[10] These special powers remained in effect for four years, after which they could be renewed if the state of emergency was still in place. Whether or not the fire was really set by the communists, the fact is that that section served the purposes of the declaration of a state of emergency.
[11] R J Evans, The Third Reich in Power: 1933–1939 (London: Penguin Books, 2006), p 6.
[12] Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (Cambridge/MA: Harvard University Press, 1991), p 37.
[13] Carl Schmitt, Politische Theologie, (2nd ed, 1934), p 20
[14] ‘Research Starters: Worldwide Deaths in World War II’, The National WWII Museum of New Orleans, at https://www.nationalww2museum.org/students-teachers/student-resources/research-starters/research-starters-worldwide-deaths-world-war
[15] Hon Edward O’Donoghe MLC, Shadow Attorney General, ‘Letter to the Hon Daniel Andrews MP, Premier of Victoria – Re Proposal to Extend State of Emergency for Indefinite Period’, Melbourne, Vic, 17 August 2020.
