This was originally published on 4th August, 2020, and republished here on 4th January, 2022.
One would never have thought that The Age would become a government mouthpiece against human liberty, but following the Victorian Government’s announcement of a ‘State of Disaster’, that is what they have become. No questioning of orders can be found in this ‘explainer’, but instead just a mild surprise, as though being ordered to stay at home with the expectation of having the military knock of your door is a pleasant thing, like being given a box of chocolates. A report on the Minister for Health refusing to answer questions in Parliament — the most basic expectation we have of our governments, ensuring that they are held to account — was treated with the kind of bland detachment normally reserved for tax reform.
It’s not limited to The Age, of course. The media, as they have been throughout the coronacrisis, have been mostly servile and unquestioning of governments that may be going too far (but less so if they aren’t going far enough). But their reaction to the latest actions of the Victorian government are little more than a reflection of the general ignorance and apathy that many people have towards abstract ideas of freedom, liberty and justice. While everyone will (probably) say that they like those things, most are unlikely to be able to explain where they come from, why they matter, and (above all) how the concrete actions of their government may affect them, not just in the here and now, but for decades to come.
Back in April, I warned that governments in Australia now had given themselves enormous powers which they could potentially take full advantage of, and that there was every chance that if they did, we would never get back some of the freedoms that we had lost. Four months later, we now see that the Victorian government has been the first in Australian history to implement a large-scale, city-wide curfew on its people.
Most Victorians are therefore under house arrest, only allowed out of their homes under special circumstances. The police, with assistance from the Australian Defence Force (!), will regularly door-knock to check whether people are home. Anyone who is driving may be stopped by authorities at any time, and expected to hand over their identification, along with an explanation as to why they are out of their home. You must have a signed work permit.
Anyone without a mask in public can be fined. You cannot leave home after 8pm unless working, or in need of urgent medical care. You can only exercise for an hour a day outside. You cannot go further than 5km from your house. You can only be in public with one other person at a time. You cannot be married in public. You cannot physically send your children to school. Police are entitled to break into your property if they believe any of these rules are being breached.
Read that list back to yourself, and consider what kind of country those ‘rules for living’ would be made in. Would Australia, an heir to the British system of liberal democracy, be near the top of your list? I doubt it. The military as a police force? No freedom of association? The police as the enforcement arm of government orders? Limits on privacy? Ignoring private property? Limits on movement? None of these things exist in free countries. And yet, they now exist in this country that is allegedly one of the most free in the world, in a system that is meant to prevent such things from taking place.
Most disconcerting of all is the clause which allows government orders during a ‘State of Disaster’ to trump and abrogate existing legislation.
The Age’s ‘explainer’ notes that the clause, which it claims is merely ‘handy’ rather than a nuclear bomb to responsible government, is called the ‘Henry VIII’ clause, as though that is a cute nickname. The clause is so-named because because Henry VIII was the most absolute ruler England ever had following the creation of the English Parliament. His reign, and the subsequent attempts of his successors to ignore parliament as he had, led to a Civil War, and then to the overthrow of the reigning monarch in favour of one who recognised the absolute sovereignty of the English (now British) Parliament. This principle is the same one we allegedly have today in Australia, as we share the same monarch and the same political and legal tradition.
No government should be able to rule without parliamentary oversight, yet that is exactly what the Victorian Government has done without seemingly caring for the implications. Without being responsible to parliament, a government is responsible to no-one — elections only take place every so often, and Victoria’s is not until 2022 — and unless there is a High Court challenge to the constitutionality of the curfew, nothing can be done to stop it.
The only thing that will stop a government in a democratic system from vacuuming up all the power it can is if they believe it will damage them at the next election, but with most people unaware of what is happening beyond what it means for them today, what are the chances that people will protest en masse at the obliteration of their ancient liberties?
Anne Twomey, the current go-to expert on constitutional law in Australia, points out that there are limits on this power, for she says: “The minister can only exercise it if they believe compliance by a government agency with the provisions of an Act or instrument that prescribes the agency’s duties or responsibilities, would inhibit its response to the disaster.” But from observing the actions of the Victorian Government so far, I do not see how that is reassuring. Much like the Federal Biosecurity Act, it places the power to decide which legislation may ‘inhibit the response to the disaster’ in the hands of the minister responsible. We may expect that they will act prudently, but the legislation places no actual limits on them.
The legislation states that the power is stated to last for one month, but it can be extended at any point for another month. And once that month is finished, it can still be extended again, and so on. This is completely unacceptable, regardless of what you make of the danger of the virus. No legislation should ever enable a government to ignore the parliament (who represent the people), to which it owes its position and to whom it is meant to responsible. Unless an Act of Parliament is repealed, it should remain in place, without exception. Yet this clause gives a government to covertly trample over liberties in the name of ‘safety’, in a way that they would clearly never attempt in the open, because the people would throw them out at the next election.
It doesn’t even matter why the government wants to do this. Perhaps they have some secret data that no-one else in the world has, which shows that the virus is significantly deadlier than studies are showing it to be and that it can be eradicated; perhaps it’s part of a wider plot to end liberty for good in Australia and make us like some of the nations of the European continent, allegedly free but always under the thumb of the state; or perhaps, as I suspect it is, they are desperately running away from reality and trying to do whatever they can to stave off the political implications of backtracking from saying that strict measures were necessary in the first place. Whatever the case is, it should not be allowed to happen. It is the state that is answerable to us, not us to the state.
The Age ‘explainer’ ends with a quote from the Premier: “After all, he says, it’s hard to imagine how strict a “stage five” lockdown would have to be.” It’s not actually hard to imagine at all. There are plenty of countries around the world that do not have the freedoms that we have enjoyed for so long. But who is Daniel Andrews to threaten us with removing those freedoms?