In June 1998, the Howard government looked to be in serious trouble. Notwithstanding having brought the budget back to surplus in just two years, introducing serious industrial relations reform, taking on the militant Maritime Union of Australia, it looked, for all intents and purposes, as if Howard would be only the second prime minister in the history of this country to lose office after just one term—the first being Labor’s James Scullin in 1931 at the height of the Great Depression.
Many in the conservative base were still angry at gun law reform in the wake of the Port Arthur massacre. Rural Australia was still doing it tough.
The High Court’s Wik decision stating that pastoral leases didn’t necessarily extinguish native title made life even more difficult for the Howard Government. His attempts to amend the Native Title Act to overcome the decision were blocked in the Senate, and the left cried racism.
Further, the Queensland state election that year saw the Australian Labor Party (ALP) win comfortably, with many former Coalition voters going to One Nation.
But as we know, John Howard was a conviction politician, determined to make history for the right reasons. He needed something to energise conservatives.
He went to the 1998 election with a proposal to introduce the GST (Goods and Services Tax) just five years after John Hewson’s defeat in an all-out anti-GST scare campaign by Labor.
He knew there would be another massive scare campaign, but that didn’t deter him. Against the odds and the polls, the Coalition was returned, and John Howard became our second longest serving prime minister.
The Morrison government presently finds itself in a similar position, behind in the polls and losing its conservative base.
For this, Scott Morrison really only has himself to blame. He must do something to energise that base, and he can if he has the will.
He must listen to the ever-growing voices around Australia and intervene to overturn state laws on mandatory vaccination.
As argued by this correspondent and others, international treaties that Australia has ratified prohibit the removal of non-derogable rights even in situations of an alleged “emergency,” including the right to informed consent when it comes to vaccination.
This prohibition encompasses any form of compulsion subjecting individuals to mandatory medical or pharmaceutical service, including vaccination. Among these treaties is the oft-cited Nuremberg Code of 1947.
Any preventive, diagnostic, and therapeutic medical intervention is only to be carried out with the prior, free, and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.The Federal government has successfully relied upon the external affairs power under section 51 of the Constitution to support the enactment of a great number of laws over the years. The prohibition on the building of the Franklin Dam is one such instance.
Accordingly, the Morrison government could enact a law that prohibits mandatory vaccines pursuant to Australia’s ratification of several international law instruments thereby giving effect to these instruments.
Ratifying an international agreement allows the Commonwealth government to legislate domestically to incorporate anti-mandatory vaccination under the external affairs power. The legislation would have to meet the specificity and conformity requirements. However, Australia entering an international agreement is all that is necessary to meet this requirement. In the Tasmanian Dam Case and subsequent cases, the High Court has stated that “[t]he existence of international character or international concern is established by entry by Australia into the Convention or treaty.”In other words, the very fact that Australia has ratified a treaty will be sufficient to satisfy any requirement of “international character.”
Further, section 109 of the Constitution provides that federal laws must prevail over those of a state to the extent of the inconsistency. The state law is deemed invalid to the extent of such inconsistency.
In this regard, Moens and Zimmermann cite former Chief Justice of the High Court, Sir Harry Gibbs, who explained that “it appears no exaggeration to say” that together with the regular operation of s109 of the Constitution, the external affairs power has the potential to annihilate state legislative power in virtually every respect.
Thus, the Morrison government has the power to override state “health orders” that mandate vaccinations, according to the long-accepted approach of the High Court.
To be constitutionally valid, any such bill would have to rely on the external affairs power, pursuant to Australia’s entry into international treaties, thereby giving effect to them.
This reliance on international law should be evident from the preamble to the bill overturning the ability of the states to create “health orders” imposing these vaccine mandates.
John Howard once said it is better to be right than popular. Many people voted for him precisely because of this conviction, even though they didn’t agree with them on everything.
The parallels between 1998 and now are uncanny. Morrison has the tools at his disposal to win back the conservative base but the obstacle to all this is Morrison himself.
If he truly believes that vaccines should not be mandatory, then he should do something about it.
