“We have ways” & “the gov’t can force you…” Really?

‘When it comes to the law, our governments can take whatever measures are needed to combat the pandemic.’

A professor from the University of NSW claims governments have the right to inject you with whatever if it “serves the greater good”. Read the whole thing below the fold.

Authoritarian laws for the common wealth and health

The vaccine is not safe.

When you vote Liberal in the hope that the party would stick to conservative principles you are mistaken. When you voted Liberal hoping that the Lib’s would be the “lesser evil” you should know that “less evil” doesn’t mean not evil.

Authoritarian laws for the common wealth and health
George Williams The Australian August 2, 2021
Nations are hastening their return to normal life by mandating vaccination in employment and for community activities. In the US, the Biden administration announced on Friday that millions of federal employees and contractors must be vaccinated or face restrictions including masks, weekly testing and travel bans. The UK says vaccination will be a condition of entry to nightclubs and other crowded venues, and possibly for university students to attend lectures. Other nations are considering like measures.
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Many Australian organisations and businesses are calling for an equally forceful response. This would introduce a level of individual control not before seen in Australia for medical treatment. It can, though, be justified as a proportionate response to the emergency. Individual liberty and choice must be limited for a time to promote the wellbeing and health of the whole community.
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The prospect of mandating vaccination has provoked a loud counterreaction. Some have protested on the streets, others have taken to social media. Some again are threatening legal action in the High Court on the basis the government would overstep its powers. None of these are likely to deter our leaders from taking the steps necessary to protect us.
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When it comes to the law, our governments can take whatever measures are needed to combat the pandemic. They can make vaccination a condition of interstate travel or to avoid hotel quarantine. People can be denied entry to public places or events, or to cinemas or restaurants. Unvaccinated people can be segregated and forced out of employment in aged care, health or aviation.
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Our governments can do this and more because our parliaments armed them with sweeping and often unchecked powers. Governments have been authorised to do “whatever it takes” to protect the community from a pandemic. Parliaments did this deliberately. They recognised public health emergencies demand decisive and authoritarian leadership; measures implemented that would otherwise be unthinkable in a free democracy.
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“Governments have been authorised?” By whom? By themselves? Laughable. All powers lie with the people & the consent of the governed.
These temporary powers are some of the most remarkable on the statute book. They override fundamental principles of consent and bodily integrity. This includes the normal assumption of our legal system that every competent person is entitled to refuse medical treatment.
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At federal level, the Biosecurity Act enables the government to impose medical treatment on any person to protect the broader community. The law is explicit in saying this extends to requiring a person to receive “a specified vaccination”. Refusing to do so can attract five years in jail.
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State powers are just as extensive. In NSW, the Public Health Act contains a catch-all provision that takes effect when the government “considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health”. A minister can “take such action” and “may by order give such directions” they consider necessary. NSW uses this power almost daily to impose an array of health orders that underpin the latest lockdown.
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There are few checks and balances on powers of this kind. Indeed, parliaments have often gone out of their way to exclude the normal forms of scrutiny, such as parliamentary disallowance and review by the courts or administrative bodies. This can leave one last argument that the measures breach the Constitution. It is the only source of law with the authority to override these parliamentary enactments.
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The main hope for those seeking to defeat mandatory vaccination is a little-known clause in section 51(23A) of the Constitution. It empowers the commonwealth to make laws providing a variety of social security benefits, including “medical and dental services (but not so as to authorise any form of civil conscription)”. It has been suggested the prohibition on “civil conscription” is a constitutional barrier to mandatory vaccination. The High Court will not likely see it that way. For a start, the limitation applies only to commonwealth laws, so does not prevent a state mandating vaccination. This is consistent with other limits in the Constitution, including those protective of religious freedom, trial by jury and fair compensation for compulsory acquisitions of property. Each of these binds the commonwealth, but not the states. The framers intended that the states would have a free hand where the commonwealth would otherwise be bound.
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In any event, the clause would not prevent the commonwealth mandating vaccination. It was added to the Constitution by referendum in 1946 after WWII, after the Chifley Labor government championed the proposal. Opposition leader Robert Menzies backed it but demanded the power not be used to enlist doctors in service of the government. As the word “conscription” suggests, the aim was to prevent anything like military conscription for doctors that could see them coerced into state service.
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This demonstrates how the clause could prevent the commonwealth from compelling doctors to provide vaccinations. On the other hand, it confers no protection on members of the community. They can be subject to federal law requiring them to be vaccinated to remain in employment, receive benefits or attend events. As a result, Australian governments can pursue these initiatives. We will see over coming weeks and months whether they have the appetite to do so.
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George Williams is a Deputy Vice-Chancellor and Professor of Law at the University of NSW.
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1/ ‘When it comes to the law, our governments can take whatever measures are needed to combat the pandemic.’ Above, a voluntary queue for Covid vaccination outside the vaccination centres at Sandown Racecourse in Melbourne. Picture: NCA NewsWire / David Geraghty

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