Can Canberra be held accountable internationally for human rights abuses from state lockdown laws?



The Western Australia Premier has recently ordered 75 per cent of WA’s workforce to get vaccinated or face job losses or a possible $20,000 fine. Mark McGowan has also decided that he won’t be opening the state borders to unvaccinated people.  

A major objective seems to be the preparation of the citizen for a docile surrender of all their fundamental rights, always in the name of an overly protective, benevolent state. In the name of the “health” of the people, politicians can now happily implement the most unthinkable and atrocious perversities. 

In the midst of such human-rights violations, there is the tacit support of the Prime Minister. Not only has Scott Morrison been tacitly supporting these arbitrary measures, but also objectively misleading the population by claiming that the Federal Government has no ability to ‘override’ any State laws and Executive orders that mandate vaccines and violate other fundamental rights of the citizen.  

The rise and growth of international law has increased the size and significance of Australia’s external affairs. The principle that the external affairs power now extends to allow the federal government to regulate any matters related to the protection of fundamental rights is commonly accepted by the courts.  

The Australian Constitution, in its Section 51 (xxix), says:  

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… (xxix) external affairs

The phrase ‘external affairs’ refers to persons, places, matters, or things geographically external to Australia. It enables the federal Parliament to pass any law concerning topics related to the protection of human rights, including the prohibition of compulsory vaccination.  

The federal Executive can enter into international agreements as part of its general executive power under s 61. To become part of domestic law, treaties must be enacted by Parliament under s51 (xxix).  

The rise and growth of international law has dramatically increased the significance of the external affairs power. As the range of topics regulated under s 51(xxix) has been gradually expanded, federal legislation has more often come into conflict with State legislation.   

Accordingly, a federal law will be valid even on the basis of formal dealings of the federal Executive, which then could legislate on fundamental rights and protections for the Australian citizen.  

As the range of topics that can be regulated under s 51(xxix) has expanded, the federal government has come into conflict with the States, who have at times expressed a discontentment with the supremacy of the Commonwealth legislative powers at the expense of their own powers. According to Bed Harris:

Although the Commonwealth is able to incorporate international law such as treaties into domestic law by using s 51(xxix), should it find it expedient to do so, it is important to note that there is no rule of law obliging the Commonwealth to adhere to rules of international law when it exercises its legislative powers. In other words, if the Commonwealth chooses to disregard, or even legislate in contravention of, rules of international law, there is no restraint on its doing so. The cynic may, therefore, say that the principles of international law can only be of benefit to the Commonwealth – they can be used as a platform for domestic legislation, but no domestic legislative will be invalid for inconsistency with international law.  

Sir Harry Gibbs, in a well-known academic article, explains that together with the regular operation of s. 109 (inconsistency) of the Constitution, the external affairs power has the potential to ‘annihilate State legislative power in virtually every respect’. Gibbs concluded:  

It appears no exaggeration to say that the combined effect of s 51(xxix) and s 109 is that the Commonwealth can annihilate State legislative power in virtually every respect.  

Section 109 of the Constitution provides that federal laws must prevail over those of a State to the extent of any inconsistency. The State law is then deemed invalid to the extent of the inconsistency. Situations of conflict between a State law and a federal law arise, for example, when:  

  1. a) theState law cannot be obeyed at the same time as the federal law (Mabo v Queensland (1988) 166 CLR 186);  
  1. b) when the federal law permits a certain activity prohibited by a State law (Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151); 
  1. c) when a federal law confers a right which a State law seeks to remove (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466).  

The Australian government has entered into thousands of treaties on a wide range of matters. In R v Burgess; Ex parte Henry (1936), the Court ruled that the external affairs power is not restricted to the Commonwealth’s power to make laws with respect to the external aspects of the subjects mentioned in s. 51.  

This approach, according to Stewart and Williams, has:

[A]llowed the specific Commonwealth powers to be applied in areas never contemplated by the framers. Seemingly innocuous powers like that over ‘external affairs’ have become major weapons in the Commonwealth armoury. Since the Tasmanian Dam case (1983) the High Court has accepted that this power can be used to pass laws that implement obligations that have been assumed by the federal government under international instruments like treaties and conventions… Given that Australia, as at December 2005, had entered into 2544 international instruments, the possible uses of the external affairs power remain enormous. The fact that it can be used to legislate in areas formerly under State control is, according to the long accepted approach of the High Court, irrelevant. 

In the Preamble of the World Health Organisation’s Constitution, the word “health” is conceptualised as a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. However, to allegedly defeat an apparently deadly virus, draconian measures have caused millions of people to endure highly stressful and traumatic situations, including home confinement, job losses, financial ruin, and a whole host of mental illnesses and challenges. These measures are unlawful not only in accordance with our system of democratic parliamentary government but also under international law. They unlawfully affect the enjoyment of our fundamental rights and freedoms, including freedom of speech, association, movement, expression, and privacy. 

“Seriously, one more comment about human rights … it’s about human life “, complained Daniel Andrews, the Victorian Premier, about journalists who dare to question the impact on human rights of lockdown measures.  For Mr Andrews, “health” not only trumps human rights but shows that the right thing is doing what might be advantageous to the preservation of public health. 

International law recognises that, during extraordinary circumstances, the States may enact emergency powers that suspend ordinary rule-of-law protections, with the exception however of “non-derogable rights”. The inalienability of certain rights has been acknowledged 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, declares 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. 

Australian governments are now starting to impose vaccination mandates as a way out of lockdowns. These governments communicate that the unvaccinated will be treated differently from the vaccinated, some even losing their jobs if they do not comply with the vaccination requirement. In practice, this means that unvaccinated individuals will have fewer freedoms to get a job, to travel and to get together with their loved ones, and to go to coffee shops and restaurants. 

This governmental approach creates a two-tier society that 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.  

Informed consent can be described 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.

As can be seen, international instruments 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. In this context, Rocco Loiacono 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.

While the International Covenant on Economic, Social and Cultural Rights (‘ICESCR), contains no definition of health, the United Nations’ Committee on Economic Social and Cultural Rights communicates that the right to health contains both fundamental freedoms and entitlements. These freedoms include ‘the right to control one’s health and body’, and ‘the right to be free from interference non-consensual medical treatment and experimentation’.

Under article 2(1) of ICESCR, Australia is legally obliged to take steps ‘to the maximum of its available resources, with a view to achieving progressively the full realisation’ of the fundamental rights recognised in the Convention.  

Article 2(1) of the ICESCR states: 

  1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

The United Nations’ Committee on Economic Social and Cultural Rights has determined that Article 2 (1) ‘must be read in the light of the overall objective of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question’.  

This provision, ‘thus imposes an obligation to move as expeditiously and effectively as possible towards that goal’. Furthermore, in its Article 4, the ICESCR declares:  

The States Parties to the present Covenant recognize that, in the enjoyment of those right provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.  

The United Nations’ Committee on Economic Social and Cultural Rights emphasises that the Covenant’s limitation clause to be found in Article 4, ‘is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States’. As also noted by the Committee, ‘issues of public health are sometimes used by States as grounds for limiting the exercise of other fundamental rights’.  

As a consequence, any State, which, for example, restricts the movement of, or incarcerates, persons with transmissible diseases, refuses to allow doctors to treat persons believed to be opposed to a government, is acting in a manner that is ‘incompatible with the nature of the rights protected by the ICESCR’. 

In addition, Article 12.2. of the ICESCR acknowledges that the right to health embraces a wide range of fundamental rights which allows people to have a healthy life, such as employment rights and freedoms to movement and association.  

Yet, these fundamental freedoms are being profoundly undermined in Australia.  The Australian government is directly in conflict with these freedoms.  

In George Orwell’s dystopian novel, 1984, the Thought Police were able to control the ideas that determined the political and cultural values of society. The withdrawal of personal freedoms was sold in Australia as a positive thing. Slavery to the State was presented as the gateway to freedom and prosperity.   

Some crimes are committed by commission and others by omission. The Morrison government is surely guilty of the latter. It had the ability to override State laws which violate fundamental rights and freedoms.  However, the Prime Minister says there is nothing his government can do. This is certainly not so and one does not need to be a prophet to predict that dark days will descend upon Australia.  

Augusto Zimmermann LLB, LLM, PhD, CIArb, DipEd, is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA. From 2012 to 2017, he served as a Law Reform Commissioner in Western Australia. Professor Zimmermann is also President of the Western Australian Legal Theory Association (WALTA) and a  former tenured legal academic and Research Dean at Murdoch University, School of Law, in Perth, WA. 


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