The view that COVID-19 lockdowns were draconian and often tyrannical is gaining strength throughout the world. For example, Human Rights Watch has accused the UK government of setting aside “human rights for the sake of political expediency” and excoriates it for its “worrying disdain for the rule of law.”
In Italy, authors Piero Stanig and Gianmarco Daniele have argued that the worst possible thing a government could do during the pandemic “when dealing with a highly infectious disease that spreads almost exclusively indoors and targets the elderly is to lock old people up inside their homes … and ban citizens from spending time in arguably the safest place of all: outdoors.”
In Australia, the authors of “Fault Lines: An independent review into Australia’s response to COVID-19,” published on Oct. 20, 2022, argued that the response failed the nation because “too many of Australia’s lockdowns and border closures were the result of policy failures in quarantine, contact tracing, testing, disease surveillance and communicating effectively the need for preventative measures like mask wearing and social distancing.”
System of Government
One plausible explanation is that because of the peculiarities of Australia’s Westminster system, it became possible for the executive to assume quasi-dictatorial powers, which a politicised police force brutally enforced.But in Australia, the doctrine only provides for the separation of the judiciary from the executive and legislative branches of government. This is because members of the executive are recruited from the legislature, and, provided they command a majority in parliament, they wield almost unrestricted power.
This means, essentially, that the government can do as it pleases because it is backed by a parliament that fails to provide effective parliamentary oversight of executive decisions. Zimmermann fittingly calls this an “elective dictatorship.”
In addition, the parliament often delegated its legislative power to unelected health administrators who made decisions that dramatically affected the freedoms of people during the pandemic.
Although this delegation diminishes the legislative function of the parliament, the High Court has never restricted the elaboration of what is known as the delegated powers doctrine.
In fact, this doctrine is a logical concomitant of the imperfect implementation of the separation of powers doctrine under a Westminster system because it facilitates the executive to exercise power without adequate parliamentary oversight.
Another reason that partially explains the government’s profligacy is the doctrine of the sovereignty of parliament, which enables parliament to adopt any law without the threat that it might be declared null and void by the courts.
Natural Law Above All
The theory of the sovereignty of parliament is now firmly embedded in the legal system. According to this theory, popularised by the book “Introduction to the Study of the Law of the Constitution” by Albert Venn Dicey, the rights enjoyed by people emanate from the legislature.The idea that rights emanate from the parliament is problematic because it also recognises that a subsequent Parliament can legislate to cancel these rights.
Indeed, it overlooks the fact that rights are enshrined in Australia’s natural law tradition, which suggests that rights are “inalienable,” a view the High Court, too seems to have accepted.
Justice Deane agreed with this sentiment when he stated that these principles “are the fabric of the freedom under the law, which is the prima facie right of every citizen in this land. They represent a bulwark against tyranny.”
People’s natural human rights have thus a historical foundation, which has never been refuted, although it has been obscured in the passage of time.
Therefore, governments should undertake a cost-benefits analysis of the horrible lockdowns and border closures that inflicted so much misery on Australia during the pandemic.