As a result of several conversations that I have had and multiple things that I have seen on social media, this is a two part blog post with regards to the vaccine rollout and the relationships between an individual, the state, and the rest of society.
Before I say anything further, I must lay out that I am in favour of vaccination, for the obvious reason that they work.
The reason for this is that your adaptive immune system basically doesn't do anything when you are born because it records and adapts responses to antigens that it has seen before and if it has never seen something before, it's practically useless. Your adaptive immune system needs to see diseases before it can fight them and it can either do that by you actually getting a disease or it can happen artificially, particularly through vaccination.
Most vaccines are made of a dead or extremely weakened pathogen, and they work on the premise that a secondary immune response is more intense than a primary response. If you deliberately introduce a pathogen into your body, you are in fact triggering you Memory-T cells to signal to your Natural Killer and Professional Killer cells to be ready to show up and fight hard and fast should that antigen show up again.
We have experience that the antigens from diseases like Mumps, Measles etc. don't change their protein coats much but influenza constantly changes its protein coat; which is why last year's vaccine won't be that effective against this year's flu. When it comes to SARS Cov-2, aka Covid-19, because it is a novel virus, we simply don't know yet.
That doesn't mean though that getting vaccinated isn't a jolly good idea.
Nevertheless, despite the overwhelming evidence that vaccination undoubtedly works, there are people who for various reasons, simply do not want to be vaccinated against a disease which has the potential to kill them and the people that they come in contact with.
Setting that aside, I'm going to look at the legal powers that government has, and the responsibility therein.
"Government's first duty is to protect the people, not run their lives."
- Ronald Reagan
"It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens."
- A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
"A government’s first duty is to protect its citizens against imminent danger; and protection at times of present and future peril necessitates policy based upon facts and logic"
- David Harper
Time and time again, there is a common clarion call which consistently plays this one note. Whatever system of government that you can devise, from dictatorship to diffuse collective perfect democracy, the first duty of government is to protect the lives of the citizens or subjects, from imminent death and danger.
I think that it is difficult to argue at this point that the 8th worst pandemic in history, which has killed 4.42 million people, does not constitute imminent death and danger. If government's first duty is to protect its citizens, then to do that job, it is justly empowered with the tools to do so.
Section 51 of the Australian Constitution, broadly defines the powers of the Australian Federal Parliament. The general charge that the parliament is given is:
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
Legislative powers of the Parliament
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:
- Section 51, Australian Constitution Act 1900
Admittedly nobody has ever sued the government of the day or the parliament over the specific definition of what "peace, order, and good government" actually is but it is a good start.
If we then travel down through the list of things which that power is in respect to, then we find:
The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.
- s.51xxiiiA, Australian Constitution Act 1900
The important thing of note here is that since 1906, there have been 42 Constitution Alteration Bills which have been submitted to a referendum but the Australian people has only approved eight of these. Specifically, Paragraph (xxiiiA) of Section 51 (which gives the Federal Parliament the power, subject to the Constitution, to make laws with respect to a bunch of stuff), was inserted into the Commonwealth Constitution following the successful referendum of 1946; under the Chifley Government.
In theory, that should have meant that Australia was on track to have a kind Medicare system in place by the end of 1946 but the newly formed Liberal Party blocked it until they were no longer able to and it was only passed in 1984.
If you read through the arguments in Hansard, you will find that the then Opposition Leader Robert Menzies, wanted the clause "but not so as to authorize any form of civil conscription" inserted because if:
"industrial workers are entitled to be protected against conscription, the members of the medical and dental profession should be entitled to similar protection."
- Robert Menzies, 9th Apr 1946.
The usual objection which is put up by people at this point is that compulsory vaccination constitutes conscription. It does not. Conscription is the compulsory enlistment of people to provide labour to the state; merely being forced to comply with the law because of civic duty is not. We have other compulsory duties at law such as doing tax returns, voting, jury duty if called upon, and even following the law itself is compulsory but few would call that conscription.
At any rate, just because people want to declare that getting compulsorily vaccinated is conscription, does not make it so. If I declare that an Alsatian is a cat, then that does not make it so either.
As it stands, people are pretty much compulsorily vaccinated against diseases like Rubella, Measles, Mumps, and Polio. However the actual person which does this is not the Crown as expressed in the Federal Commonwealth but a different person of the Crown as expected in the State.
Legally speaking, Australia's States which federated into a Commonwealth, still retained responsible government and still retained their own separate persons who are the Crown; which are all different from each other. The states themselves have their own constitutions and in the state of New South Wales where I live, the powers that the New South Wales Parliament has as defined by the Constitution are not quite unlimi and practically unqualified.
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca1902188/s5.html
The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever--
Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.
- Section 5, Constitution Act 1902 (NSW)
Again we see the phrase "peace, welfare, and good government" but unlike the Federal Constitution which spells out what the powers assigned to the parliament are in respect to, the New South Wales Parliament has the power to make laws in New South Wales "in all cases whatsoever". I take it that in all cases whatsoever, means in all cases whatsoever.
That means to say that if the New South Wales Parliament could pass laws to make vaccination compulsory, then there is no legal problem with that whatsoever.
In addition to this, the New South Wales Parliament has passed a law which assigns specific powers to the Health Minister.
http://classic.austlii.edu.au/au/legis/nsw/consol_act/pha2010126/s7.html
Power to deal with public health risks generally
(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.
(2) In those circumstances, the Minister--
(a) may take such action, and
(b) may by order give such directions,
as the Minister considers necessary to deal with the risk and its possible consequences.
(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary--
(a) to reduce or remove any risk to public health in the area, and
(b) to segregate or isolate inhabitants of the area, and
(c) to prevent, or conditionally permit, access to the area.
- Section 7, Public Health Act 2010 (NSW)
That means to say that the Health Minister ordering compulsory vaccination is legal and is constitutional. The Health Minister ordering that some local government areas be segregated and isolated to reduce or remove any risk to public health in the area is legal and is constitutional.
Insofar as much as the law is stupid, obnoxious, daft, inconvenient or even downright evil, not only is general, ignorance or mistake about the existence or application of legislation creating an offence no excuse, but no right exists at law not to follow the law. You might have conscience objections to it but that doesn't change the fact that there is no right not to follow the law.
Neither am I impressed with the so-called Sovereign Citizen movement because not even the Queen is above the law; the Monarch is still subject to the law and can be charged, indicted and punished. The Sovereign Citizen movement as far as I can tell is nothing more than an attempt to use one's own personal liberty as a cloak for vice.
We probably won't actually get to the point where vaccination is compulsory but even if it was, it would neither be illegal or unconstitutional for the New South Wales Parliament to pass legislation, nor for the New South Wales Health Minister to make a Public Health Order under the Act which would make it compulsory.
No comments:
Post a Comment