An Appeal to Government: Govern According to Law

The coronavirus pandemic presents a novel challenge for the world. Novel, not in the sense that mankind has not encountered large scale medical or existential challenges before, but in the sense that our global community is more connected than ever, presenting a more difficult challenge for containment of the viral and economic contagion. Then of course there is the miasma of panic, itself a contagion, spreading throughout the Australian community. I pray and hope (and, at this stage, think for Australia) that this panic is simply over-cooked. This of course does not mean that Australians and Australian governments should not take the coronavirus seriously. It’s right that we are vigilant with our hygiene and exposure. It’s right that the government enacts early interventions, such as shutting our borders to travellers from foreign countries affected by the virus and limiting certain social gatherings.

Yet, government, you must not overstep your mark. In this time of economic and medical pandemic, you will be tempted to flex the full muscle of government. You will be tempted to deny Australian citizens entry to this country. You will be tempted to enact forced quarantines, to detain citizens because of a report from their neighbours, to close all private business.

So my appeal to you: govern according to law.

Montesquieu wrote that the necessary condition for a democratic society, as opposed to a dictatorial or monarchical society, is “the love of the laws and of our country”. If an Australian government were to erode the trust in and pre-eminence of the law in this country, even at the height of a crisis, it may do irreparable damage to the body politic in the time outside a crisis.

We are a country of laws, governed by law and by federal and state constitutions. The federal constitution sets out the powers of the Commonwealth. Those powers are not unlimited – there are 39 heads of powers in the Commonwealth constitution and several implied limits to legislation. The Commonwealth constitution protects certain fundamental civil rights: habeas corpus, a right for Australian citizens to enter this country, a protection against prohibiting the free exercise of religion, for example.

As the Commonwealth government, you do not have unlimited power. You cannot cause a general ban on social gatherings. You cannot cause a general shut down of private business. Only the States can do that.

You cannot prohibit trade among the states. You cannot deny Australian citizens entry to this country. You do not have a power to do ‘what is necessary’ in a crisis. We also know that when you say a measure is ‘necessary’ you usually mean it is expedient to do so.

And no Australian parliament, state or federal, as a general rule, has the power to detain its citizens without charge for a non-trivial amount of time.

And if it is even possible to take these rights away, you and your state counterparts must explicitly enact in the legislation that you intend to override fundamental human rights with clear words of necessary intendment.

John Locke wrote of a power to act “without the prescription of the law, and sometimes even against it, which is called prerogative”. While this is recognised in Australia constitutional jurisprudence, this power is envisaged for use where the very nation state itself is on the precipice of collapse. It is not available to you here.

I applaud the Morrison government and the various state governments for how they have handled this pandemic so far (as at 18 March 2020). I do not intend to be critical of them at all. But there is a stern warning as we approach the climax of the crisis: govern according to law.

“O God our help in ages past,
Our hope for years to come,
Our shelter from the stormy blast,
And our eternal home.
Under the shadow of thy throne,
Thy saints have dwelt secure;
Sufficient is thine arm alone,
And our defence is sure.”

(Isaac Watts , 1705)

George Bishop is the former President of the Sydney University Conservative Club

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