Hidden Tyranny And The Bill Of Rights
There Are Some Ideological Issues That The Legal System Should Keep Their Noses Out Of.
Australia has spent most of its life as a political backwater, insulated from the historic civil conflicts that birthed its legal system. You’re much more likely to fall foul to a deadly snail shell or come off second best with a crocodile than run into anything so dangerous as a politician with actual power.
Or so we thought.
MPs aren’t known for being the most moral of individuals, but whatever code of ethics they picked up from the wider Australian culture they’ve managed to keep their hands off the implied liberties and rights of the people. The problem here being ‘implied’. Our American cousins spilled a lot of blood securing their freedoms. Once within their grasp, they went to the trouble of protecting them with ironclad law.
The Bill of Rights is remarkably succinct for a legal document. This was done on purpose to prevent it falling victim to the vulturous antics of lawyers, judges and the corrosive forces of popular politics. Australia’s law derives from English law, which is a construct of convention and assumption. In previous centuries, the deliberate ambiguity kept it safe from the unrest of the world’s social upheavals. While strict legal systems were burned to the ground in anger, England and her laws gave a few nods and winks, evolving quietly instead of violently.
Stability is nothing to be scoffed at. The essential premise is that anything not expressly forbidden is permissible. This works well in coalition with a small government methodology where the courts primarily resolve serious conflict, but stay away from the unsolvable squabbles of humanity. As many sensible High Court judges have observed, there are some ideological issues that the legal system should keep their noses out of.
This exceptional balancing act fell apart under the pressure of meddling international bureaucracies. Sovereign nations were quickly suffocated by micro-managing laws created by these foreign systems. The UK recognised this problem, and has taken steps to extract itself from the European Union and its associated legal monstrosity.
Australia has a similar problem with its indulgence in feel-good treaties. The whims of the United Nations are dangerous, but they are far from the fatal blow.
Having a good legal system is like being in a stable orbit around a heavy object – in this case, tyranny. Like the sun, you need it – you want it, but you must keep your distance. If you get too close to absolute power, you risk being dragged in and destroyed. Alternatively, without the framework of powerful law, you are cast adrift into the cold.
Our leaders have proved that they cannot be trusted to show moderation or proportionHidden laws are like black holes. They lurk out of sight waiting to violate everything we thought we knew about law. These are pieces of legislation that we rarely use, but grant the government extraordinary powers that violate civil, human and constitutional rights.
While the vandalism of liberty is new, these laws are old. All it takes is for a self-declared ‘emergency’ by the Governor General to unfold and suddenly the Australian Dream is up for negotiation.
The Quarantine Act of 1908 is the formalisation of one such ‘hidden’ law. It was replaced by the Biosecurity Act of 2015, but the original Act survives with a series of extensions to its scope.
The Act deals with the quarantining of goods and livestock, as that was its original purpose. However, 50 amendments over the course of its long life saw its powers increased after the Spanish Flu of 1918.
Ironically, the very quarantine measures that it doubles down on were proved ultimately pointless when dealing with a flu-like virus with a global reach. It gave politicians and any health expert appointed by the state nearly unlimited licence to stop the spread of a pandemic. This includes the destruction of private property, killing of animals, separating children from their parents, forced medical treatments, mandatory isolation, banning of political protests, closure of businesses, and any other arbitrary measure cleared by lawyers.
The scary parts of this Act were only intended to be used in the case of a pandemic that threatened the survival of the colony – not to keep every Australian safe from a bad flu. This nightmarish legal scenario was meant to be applied to something that spreads like the flu and kills like Ebola.
The idea that a premier or prime minister would take the Biosecurity Act out of the box and test its limitations on an un-quarantinable wild virus with a slightly higher death rate than the flu would be unimaginable to those who wrote it.
Our leaders have proved that they cannot be trusted to show moderation or proportion.
There is only one person who can be appealed to in order to end this mess and that is the person who declared the emergency, the Governor General. If there is no emergency, then politicians have to lick their wounds and sulk off back to obscurity.