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The Covid-19 Directions adopted by Australia’s governments have the effect of violating the rule of law when they excessively interfere with the life, liberty, and property of the citizen. These governments are exercising emergency powers to impose extra-constitutional measures that undermine the principles of equality before the law and the right of citizens to object to any form of medical treatment, including vaccine mandates. These mandates are imposed either directly, by coercive measures, or indirectly, by extending benefits only to fully vaccinated people.
This imposition is a gross violation of the rule of law, the ultimate goal of which is to provide “an umbrella concept for a number of legal and institutional instruments to protect citizens against the power of the state”.
First coined by Plato and later refined by Aristotle, the concept of the rule of law was further elaborated by St Thomas Aquinas, who stated: “Once the government is established, the government of the kingdom must be so arranged that opportunity to tyrannize be removed. At the same time, his power should be so tempered that he cannot easily fall into tyranny”.
According to the American legal philosopher, Charles Rice, who taught at the University of Notre Dame:
Aquinas’ analysis is a prescription for limited government, providing a rational basis on which to affirm that there are limits to what the state can rightly do. His insistence that the power of the human law be limited implies a right of the person not to be subjected to an unjust law.
Trevor Allan, a professor of jurisprudence at Cambridge University, similarly comments that the rule of law is about the effective application of legal standards that “encompass traditional ideas about individual liberty and natural justice and, more generally, ideas about the requirements of justice and fairness in the relations between governors and governed”.
As also noted by Professor Allan,
The rule of law is both a political ideal and a constitutional doctrine. In English law, the rule of law expresses a general principle of constitutionalism, associated not only with procedural fairness and the impartial administration of law but also with ideas of human dignity and respect for persons.
The same understanding of the rule of law is generally accepted throughout the Western world. In continental Europe, the rule of law is traditionally associated with government that is “bound by the law in its dealings with citizens: its power is in other words limited by the individual rights of the people”.
In Germany, the equivalent of the rule of law is called Rechtsstaat (‘State under the Law’). First coined by Hanoverian jurists of the 19th century (R. von Mohl, E. Brandes, A.W. Rehberg, and F.C. Dahlmann), in the words of the late German constitutional law professor, Ernst-Wolfgang Böckenförde (1930-2019),
Rechtsstaat means primarily recognition of the fundamental rights such as civil liberty (protection of personal freedom, freedom of belief and conscience, freedom of the press, freedom of movement, freedom of contract, and freedom of occupation), equality before the law, and the guarantee of (acquired) property.
In this sense, Mortimer Sellers, an American jurist and leading exponent on the rule of law, reminds us that:
Advocates of rule by law sometimes undermine the rule of law by legitimating the enactments of tyrants. Positive laws may sometimes be an advance on otherwise unregulated tyranny. Promulgations and the other virtues of legal formalism often advance the empire of laws. But they are only secondary and contingent requirements of the rule of law, not the thing itself.
Professor Sellers also communicates that, as the imperium legis, the rule of law “requires of us that we remove the will of public officials as much as possible from the administration of justice in society”. Ultimately, writes Robin Charlow, in his contribution for a seminal book published by the then President of the American Bar Association:
The goal of the rule of law is to prevent the accretion of broad power in particular individuals or groups of rulers who might be tempted to govern according to their own autocratic policies rather than in the interests of the people generally. Rule of law is rule by pre-set standards, as contrasted with arbitrary and unpredictable rule according to the changing whims of men … Freedom and justice [is] to be secured by public, fixed, durable laws, uniformly applied.
In this context, the United Nations Universal Declaration of Human Rights openly recognises, in its preamble, the critical role of the rule of law in preserving the inalienable rights of the individual:
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
Public international law recognises that, during extraordinary circumstances, governments may enact emergency powers that suspend ordinary rule-of-law protections, with the exception however of “non-derogable rights”. The importance of preserving these rights of the individual is recognised in an extensive range of international human rights treaties.
For example, support for the inalienability of “non-derogable rights” is provided by the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (‘Siracusa Principles’). A document produced by the American Association for the International Commission of Jurists, the Siracusa Principles, explicitly stated that
No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude … the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.
The United Nations Human Rights Committee has also explicitly emphasised that this restriction “underlines the great importance of non-derogable rights” in countries such as Australia.
The fundamental importance of protecting these non-derogable rights is affirmed by international and national courts. For example, in Kokkinakis v Greece (1993), the European Court of Human Rights held that “freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ … The pluralism indissociable from a democratic society … depends on it’.”
Australian governments are now starting to impose vaccination orders as the way out of lockdowns. These governments have already communicated that the unvaccinated will be treated differently to the vaccinated. In practice, this means that unvaccinated individuals will have fewer freedoms to travel and to get together with their loved ones, or even to find a job or go to restaurants and attend football matches.
These government communications have fuelled the media’s doomsday predictions that point to the development of a two-tier Australian society. In this context, the Premier of New South Wales has warned that, “Unvaccinated people in New South Wales could be barred from locations and denied movement freedoms even after the state achieves 80% double dose vaccination” and that, “vaccine-hesitant residents … will not be able to “let everybody else do the hard work and then turn up” for equal freedoms.”
In the same vein, the Deputy Premier of NSW boldly declared that businesses that accept unvaccinated people will be subject to exceptionally heavy fines. Private employers are encouraged to require their workforce to be vaccinated. For example, Qantas has announced that all people who want to fly internationally, including its workforce, will need to be vaccinated. These are draconian edicts, which will result in a two-tier Australia where some people will be more privileged than others, involving the distribution of burdens and benefits simply on the ground of peoples’ vaccine status.
This governmental approach is unsupported by the Nuremberg Code – an ethics code – relied upon during the Nazi doctors’ trials in Nuremberg in 1947. This Code has as its first principle the willingness and informed consent by the individual to receive medical treatment or to participate in an experiment.
Recently, it has been argued in an AAP FactCheck that an attempt “to apply the code to COVID-19 vaccines is incorrect and misleading.” It notes that the Nuremberg Code only addresses human medical experimentation and does not apply to “approved vaccines”. However, it is precisely the experimental nature of the vaccines and the widespread disagreement about the capacity of vaccines to provide protection against the virus that is responsible for the lack of confidence in their effectiveness.
Indeed, in a climate of uncertainty, characterised by a demonstrable lack of confidence, as is amply demonstrated by the vaccine hesitancy in Australia, a programme of mandatory vaccination cannot be regarded as consensual. The unvaccinated, in relying on health implications for the purpose of refusing the vaccine, may thus ironically invoke the same argument used by proponents of vaccinations, who also rely on health grounds to promote the vaccine. Hence, people’s refusal to be vaccinated may be based on the ground that the Covid vaccines are still experimental and their long-term effects on, and safety for, its recipients are largely unknown.
Indeed, the ‘rule of law’ would be undermined if vaccination were mandated in circumstances where constant government changes undermine the confidence of people in the efficient administration of the vaccine roll-out and the effectiveness of the vaccines.
Importantly, the jurisprudence of the Australian High Court indicates that the prohibition of civil conscription must be construed widely to invalidate any law requiring such conscription expressly or by practical implication. From a constitutional point of view, as we have explained elsewhere, the jurisprudence of the High Court indicates that what cannot be done directly, cannot be achieved indirectly without violating section 51 of the Constitution. This point is addressed in a comment of Justice Webb in British Medical Association v Commonwealth:
If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance.
Informed consent can be defined as the voluntary agreement by an individual to a proposed medical or pharmaceutical treatment, given after sufficient and appropriate information about potential risks and benefits, including possible adverse effects, how common they are, and what they should do about them. From the perspective of international law, the right to informed consent is the bedrock principle of ethical standards in medicine. According to Article 6(1) of UNESCO’s Universal Declaration on Bioethics and Human Rights (2005):
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.
In this context, Dr Rocco Loiacono, in an article published in these pages last month, comments:
For any government either by itself or via corporate proxy to attempt to mandate vaccines in circumstances were there has not been adequate testing and analysis of risks as well as benefits would constitute not only a violation of the principle of informed consent … but a violation of Australia’s obligations under international law with respect to medical experimentation.
As can be seen, it is rather uncontroversial that Australia’s political establishment has violated an important legal-international understanding of the rule of law. Indeed, international human rights legislation explicitly prohibits the removal of non-derogable rights even in situations of an alleged “emergency”. This prohibition encompasses any form of compulsion subjecting individuals to mandatory medical or pharmaceutical service, including vaccination.
In summary, any Australian law that requires vaccine mandates either directly or indirectly, is not only constitutionally invalid, but it also constitutes a violation of Australia’s obligations under public international law.
Gabriël A. Moens AM is emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean of law at Murdoch University. He is the co-author ofThe Constitution of the Commonwealth of Australia Annotated (9thEd., LexisNexis, 2016).
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also professor of law (adjunct) at the University of Notre Dame Australia, president of the Western Australian Legal Theory Association, editor-in-chief of the Western Australian Jurist law journal, and a former law reform commissioner in Western Australia. He is the co-editor of Fundamental Rights in the Age of Covid-19, a book with contributions from leading legal academics and policymakers in the field.
A fully footnoted version of the paper is available from the authors by request.