Forthcoming Book: Fundamental Rights in the Age of Covid-19

We are proud to announce the impending publication of our special edition of the Western Australian Jurist. The Western Australian Jurist is the yearly blind peer-reviewed academic publication of the Western Australian Legal Theory Association (‘WALTA’).

The journal is now working in partnership with Connor Court to produce this forthcoming, special edition of our law journal entitled “Fundamental Rights in the Age of Covid-19”.

The Covid-19 pandemic is a turning point in history. Its impact will be felt for many years both domestically and internationally. Certain measures to fight Covid-19 have profoundly affected fundamental rights, particularly freedom of movement, expression, privacy and association, potentially for a very long time.

The Editor-in-Chief of The Western Australian Jurist is WALTA President, Dr Augusto Zimmermann. He is also Professor and Head of Law at Sheridan Institute of Higher Education.

The Academic Editor for this forthcoming book is Mr Joshua Forrester, the author of a leading book on freedom of speech and numerous academic articles on the subject of freedom of speech and the implied (constitutional) freedom of political communication.

Dr Zimmermann and Mr Forrester are proud to have gathered an impressive list of contributors to address the dramatic impact of government measures on our fundamental rights and freedoms.

The quality of this forthcoming publication is truly extraordinary. It is a book destined to become the seminal work on the subject.

Besides Dr Zimmermann and Mr Forrester, other contributors to this truly historical edition are: 

• Professor Rex Ahdar
• Professor James Allan
• Morgan Begg
• Emeritus Professor David Flint AM
• Professor Anthony Gray
• Dr Weronika Kudła
• Dr Grzegorz Jan Blicharz
• Dr Rocco Loicano
• Emeritus Professor Gabriël A. Moens AM
• Bill Muehlenberg
• Dr Monika Nagel
• Dr Johnny M. Sakr
• Professor Steven Alan Samson
• Distinguished Professor Emeritus William Wagner
• Lorraine Finlay

The publication will confirm The Western Australian Jurist as a leading publication in the field of legal theory and jurisprudential thought.

We congratulate our President, Dr Augusto Zimmermann, and Mr Joshua Forrester on this timely and exciting publication.

The list of contents, contributors and abstracts for each of the chapters are listed below.

CONTENTS

1. Introduction – Fundamental Rights in the Age of Covid-19

Augusto Zimmermann & Joshua Forrester

2. Reflecting Upon the Costs of Lockdown

Rex Ahdar

3. Politicians, The Press and “Skin in the Game”

James Allan

4. An Analysis of Victoria’s Public Health Emergency Laws

Morgan Begg

5. Only the Australian People Can Clean Up the Mess: A Call for People’s Constitutional Review

David Flint AM

6. Covid-19, Border Restrictions and Section 92 of the Australian Constitution

Anthony Gray

7. Blurred Lines Between Freedom of Religion and Protection of Public Health in Covid-19 Era – Italy and Poland in Comparative Perspective

Weronika Kudła & Grzegorz Jan Blicharz

8. The Dictatorship of the Health Bureaucracy: Governments Must Stop Telling Us What Is For Our Own Good

Rocco Loiacono

9. The Role of the State in the Protection of Public Health: The Covid-19 Pandemic

Gabriël A. Moens AM

10. Corona, Culture, Caesar and Christ

Bill Muehlenberg

11. The Age of Covid-19: Protecting Rights Matter

Monika Nagel

12.  Molinism, Covid-19 and Human Responsibility

Johnny M. Sakr

13.  Interposition: Magistrates as Shields Against Tyranny

Steven Alan Samson

14. Destroying Liberty: Government By Decree

William Wagner

15. The Virus of Governmental Oppression: How The Australian Ruling Elites are Jeopardising both Democracy and our Health

Augusto Zimmermann

16.  Book Review: Gabriël Moens, A Twisted Choice: A Covid-19 Novel (Boolarong Press, 2020)

Lorraine Finlay  

LIST OF CONTRIBUTORS

Augusto Zimmermann LLB (Hons.), LLM cum laude, PhD (Monash), DipEd, CertArb is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus.  He is also President of the Western Australian Legal Theory Association (WALTA), and formerly a Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017.Professor Zimmermann is also the Editor-in-Chief of The Western Australian Jurist law journal, an Elected Fellow at the International Academy for the Study of the Jurisprudence of the Family, and a former Vice-President of the Australasian Society of Legal Philosophy. He was also Associate Dean (Research) at Murdoch Law School from 2009 to 2013.  While working at Murdoch, Professor Zimmermann was awarded the prestigious Vice-Chancellor’s Award for Excellence in Research, in 2012, as well as 2 Law Dean’s Research Awards, in 2010 and 2011. A leading advocate for free speech and prolific writer of numerous articles and books, he is considered by the Washington-based Heritage Foundation as one of the 12 most influential policy makers in Australia. His books include, among many others, ‘Christian Foundations of the Common Law’ (3 Volumes, Connor Court, 2017), ‘No Offence Intended: Why 18c is Wrong’ (Connor Court, 2016 (with Joshua Forrester and Lorraine Finlay); ‘Global Perspectives on Subsidiarity’ (Springer, 2014) (with Michelle Evans), and ‘Western Legal Theory: History, Concepts and Perspectives’ (LexisNexis, 2013).

Joshua Forrester graduated with First Class Honours in Politics and International Studies from Murdoch University in 1999. He then graduated with First Class Honours in Law from the University of Western Australia in 2003, with his prizes including those in corporations law and criminal law.  His honours thesis explored using breach of confidence in Equity to protect corporate policy. The supervisor of his honour thesis (and an academic referee for his PhD application) was Dr James Edelman, who is now a Justice of the High Court of Australia. Joshua was awarded a Vice-Chancellor’s Commendation for Teaching at the University of Notre Dame Australia. He is the Editor of The Western Australian law journal, and author of a number of articles in law journals. Joshua lead author of No Offence Intended: Why 18C is Wrong, which is listed as one of The Spectator’s best books of 2016. He has also appeared before various parliamentary inquiries, including the Parliamentary Joint Committee on Human Rights inquiry into s 18c, and the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee inquiry into freedom of religion and belief. 

Rex Ahdar  LLB (Hons), LLM (Canterbury); PhD (Otago) is a Professor at the Faculty of Law, University of Otago, where he has taught since 1986, in subjects ranging from Competition Law and Contract Law to Law & Religion. He is also an Adjunct Professor at the School of Law, the University of Notre Dame Australia (Sydney), and in 2018 was a Visiting Professor at the Faculty of Law, The Hebrew University, Jerusalem. He is a former Fulbright Senior Research Scholar at the University of California at Berkeley (1991). His books include: Law and Religion (Ashgate 2000); Worlds Colliding: Conservative Christians and the Law (Ashgate 2001); Religious Freedom in the Liberal State (2nd ed, Oxford University Press, 2013)(with Ian Leigh); Research Handbook on Law and Religion (Edward Elgar, 2018); and The Evolution of Competition Law in New Zealand (Oxford University Press, 2020). He has published articles in journals such as the Oxford Journal of Legal Studies, Cambridge Law Journal, Modern Law Review, Stanford Journal of Civil Rights & Civil Liberties, and the Oxford Journal of Law and Religion. He is on the Editorial Board of the Journal of Church and State, the Australian Business Law Review and the New Zealand Business Law Quarterly.

James Allan is the Garrick Professor of Law at the University of Queensland. He has degrees from Queen’s University, the London School of Economics and the University of Hong Kong. Before arriving in Australia in February of 2005, he spent 11 years teaching law in New Zealand at the University of Otago and before that lectured law in Hong Kong. Professor Allan has had sabbaticals at the Cornell Law School, at the Dalhousie Law School in Canada as the Bertha Wilson Visiting Professor in Human Rights, and at the University of San Diego School of Law. His main areas of interest are legal and moral philosophy, constitutional law and bills of rights. He has published widely in these areas, including in all the top English language legal philosophy journals in the U.S., the U.K., Canada and Australia, much the same being true of constitutional law journals as well. He writes regularly for The Spectator Australia, Quadrant and The Australian

Morgan Begg is a Research Fellow with the Institute of Public Affairs (‘IPA’). He joined the IPA in 2014 to advance a major report into ‘The State of Fundamental Legal Rights in Australia’, which was referenced extensively in the Australian Law Reform Commission’s seminal ‘Freedoms Inquiry’ released in March 2016. He specialises in legal and policy issues as they relate to proposals for constitutional change, freedom of speech and religion, the rule of law and the meaning of legal conservatism in the Australian context. His published articles and submissions to parliamentary inquiries have complemented significant research papers on the GST and federalism, red tape and centralisation, the unique threat to religious liberty from anti-discrimination laws.

Grzegorz Jan Blicharz PhD (Law), MA (Law, Philosophy), Assistant Professor at the Chair of Roman Law, Faculty of Law and Administration, Jagiellonian University in Kraków, recipient of the NCN Scientific Grant – Sonata 14 (2019) and the Scholarship of the Polish Ministry of Science and Higher Education for outstanding young scholars 2018–2021, Academic Visitor at University of Oxford (2020). He completed post-graduate studies in Roman law at the University of Rome La Sapienza and Program for Development of Soft Skills and Entrepreneurship at Alberta School of Business in Edmonton. Executive Manager of Utriusque Iuris Foundation and co-editor of Forum Prawnicze. He also teaches at the Faculty of Law at Lazarski University in Warsaw and Copernicus College.

Lorraine Finlay B.A (UWA), LL.B (UWA), LL.M (NUS), LL.M (NYU) is a lecturer in the School of Law at Murdoch University. She is also an adjunct senior law lecturer in the Sydney School of Law at the University of Dame Australia. Her research interests include criminal law, constitutional law, international criminal law and public international law. Lorraine is also a Research Scholar with the Centre for Public, International & Comparative Law (University of Queensland) and a Fellow with the Murdoch Learning Excellence Academy (LEAD). Before moving to academia in 2010, Lorraine worked as a State Prosecutor at the Office of the Director of Public Prosecutions (WA). She has also previously worked at the High Court of Australia, initially as the Legal Research Officer and then as an Associate to The Hon. Justice Dyson Heydon. In 2009 she was selected as a Singapore Scholar with the NYU@NUS program. As part of this program she was awarded a dual LL.M in Law and the Global Economy (with a concentration in Justice and Human Rights) from New York University and in International & Comparative Law from the National University of Singapore.

David Edward Flint AM is Emeritus Professor at UTS and read law and economics at the Universities of Sydney, London and the Sorbonne, Paris. He has been Chairman of the Australian Press Council, Broadcasting Authority and Law Deans, and World Association of Press Councils. He is National Convenor of Australians for Constitutional Monarchy, which prevailed in all states in the republic referendum. Named World Outstanding Legal Scholar by the World Jurist Association at Barcelona, he is a Member of the Order of Australia and Grand Officer of the Order of the Star of Honor of Ethiopia. He comments in the media ( especially Spectator Australia, Epoch Times, 2GB/4BC and in Take Back Your Country on goodsauce.news), has published  widely on topics including  the media, international economic and constitutional law, including explaining what would be the likely results in the UK referendum, and the 2016  American and 2019 Australian elections.  

Anthony Gray is a Professor of Law and Associate Head – Research at the School of Law and Justice at the University of Southern Queensland.  He has published more than 130 sole-authored refereed articles, and has authored numerous research monographs, including ‘Evolution from Strict Liability to Fault in Law of Torts’ (forthcoming, Hart, 2021), ‘Freedom of Speech in Practice: Controversial Applications of Law and Theory’ (Lexington, 2019), and ‘Freedom of Speech in the West: Comparison and Critique’ (Lexington, 2019). He specialises in constitutional law and human rights, including freedom of speech.  He is a former Director at the Queensland Law Society, and former consultant with Engineering Education Australia.

Weronika Kudła – PhD (Law) and MA (Law, Italian Studies) at Jagiellonian University in Kraków (Poland). She is also a participant of the Erasmus Program Studies at Tor Vergata University of Rome (Italy) and the VIII Edition of Academy of Young Diplomats in Warsaw (Poland). She is the author of an academic book called ‘Hostility to Religion: Warnings from the Supreme Court of the United States’. Her research interests are freedom of religion and freedom of artistic expression. 

Rocco Loiacono is a Senior Lecturer in the Curtin University Law School, where he teaches in the areas of property law and advanced legal research. In his capacity as a NAATI (National Accreditation Authority for Interpreters and Translators) Certified Translator (Italian>English), he is also a lecturer in the Masters of Translation Studies at the University of Western Australia. After graduating with a combined Law and Languages (First Class Honours) degree, he practised as a lawyer for ten years, most of that time at Clayton Utz, one of Australia’s largest law firms. Dr Loiacono received the award of his PhD from the University of Western Australia in 2014. His particular research interest is the translation difficulties arising from the differences that exist between continental legal systems and the English common law, and he has published widely on this research in peer-reviewed journals of translation, linguistics and law. He has written for Quadrant and The Spectator Australia

Gabriël A. Moens AM is Emeritus Professor of Law, The University of Queensland, and Adjunct Professor of Law at Curtin University, and at The University of Notre Dame Australia, Sydney. Professor Moens received the Australian Award for University Teaching in Law and Legal Studies in 1999. In 2003, the Prime Minister of Australia awarded him the Australian Centenary Medal for services to education. He was named the ‘International Alumnus of the Year’ by the Pritzker Law School of Northwestern University in 2019. In June 2019 he was appointed a Member of the Order of Australia (AM) for services to the law and higher education. Professor Moens is a Membre Titulaire, International Academy of Comparative Law, Paris, a Fellow of the Australian Institute of Management (WA), a Fellow of the College of Law, and a Fellow of the Australian Academy of Law. He is co-author/co-editor of numerous books, including The Himalaya Clause (Connor Court Publishing, 2020); Law of International Business in Australasia (2^nd ed, The Federation Press, 2019); The Constitution of the Commonwealth of Australia Annotated (9^th ed, LexisNexis Butterworths, 2016); and Jurisprudence of Liberty (2^nd ed, LexisNexis, 2011).

Bill Muehlenberg BA (Hon., Chicago), MA (Highest Hon., Boston) has worked in social policy research for various organisations, including the Institute of Public Affairs and the Australian Family Association. He has authored a number of books including ‘Modern Conservative Thought’ and ‘The Challenge of Euthanasia’.He has also written thousands of articles – many hundreds published – on a wide range of topics, including politics, economics, theology, ethics and social issues. He has lectured part-time in theology, philosophy and ethics, and runs the website ‘CultureWatch’.

Monika Nagel Cert. Ed. (Vienna), B. Psych. (Murdoch), PhD (Org. Psych.) is the author of the book Fatal Cocktails, a provocative and compelling exposition on the reasons of the ills in our world with a call for change. She is passionate about reminding societies that rights can only be upheld with correlating responsibility.  She has engaged in public speaking. Her PhD research was about the impact of organisational culture on an organisation’s performance. Her doctoral thesis also investigated how well students are prepared for work. Before undertaking her doctoral research, Monika was a successful educator in Austria and Australia, teaching mathematics, science and arts, and working at a school for children with learning disabilities. Her qualification in psychology has prompted her special interest and research in human behaviour at work, addiction, and human rights.       

Steven Alan Samson is a retired Professor of Government and former Department Chairman with the Helms School of Government at Liberty University. His research and writing focus on the European and American intellectual, cultural, and constitutional traditions, giving particular attention to their ideological challengers. Dr Samson holds the B.A. and M.A. degrees in political science from the University of Colorado and the Ph.D. from the University of Oregon. A resident of Washington State, he occasionally gives guest lectures and writes for such publications as The Market for Ideas, Townhall Finance, and Review of Social and Economic Issues.  

Johnny M Sakr is admitted as a lawyer of the Supreme Court of New South Wales. He is also an Adjunct Lecturer for the School of Law at the University of Notre Dame, Sydney. Johnny has completed a Bachelor of Laws, Graduate Diploma in Legal Practise, Master of Laws (Commercial Transactions) and a Master of Philosophy (Law). Johnny is currently undertaking his PhD (Law) research at the University of Southern Queensland and has written a number of academic articles on a variety of topics, including freedom of religion, philosophy and theology. 

William Wagner currently serves as President and Chairman of Salt & Light Global.  In academia, he holds the academic rank of Distinguished Professor Emeritus at Western Michigan University. Professor Wagner is an internationally recognized expert in constitutional law and good governance. As lead amicus counsel in many matters before the U.S. Supreme Court, he has authored briefs on behalf of various Christian organizations. He has also authored written testimony, evidence, and briefs in such forums as the Swedish Supreme Court, the U.S. Congress, and the U.K. Parliament. He has further addressed many executive, legislative, parliamentary, and judicial audiences throughout the world, and presented at various diplomatic forums including the U.N. Human Rights Council in Geneva. Professor Wagner’s public service includes serving as a Federal judge in the United States Courts, legal counsel in the U.S. Senate, senior assistant United States attorney in the Department of Justice, and as an American diplomat. His writing is published in numerous journals, books, and other publications.

ARTICLES

REFLECTING UPON THE COSTS OF LOCKDOWN

REX AHDAR

Abstract

This article endeavours to show that the indirect, downstream and long-term costs of a mandated lockdown in response to severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) producing coronavirus disease 2019 (Covid-19) are too often ignored. The New Zealand Government did not much talk about them at the time it implemented a strict lockdown based upon its elimination strategy. Yet these costs need to be taken into account and weighed against the benefits of the strict lockdown approach that New Zealand adopted. Furthermore, the costs and benefits of a milder mitigation strategy (of the kind Sweden adopted) also need to be estimated and compared to the strict lockdown approach. I argue the mitigation strategy was and is a preferable one once the indirect and long-term costs and benefits are taken into account.

POLITICIANS, THE PRESS AND ‘SKIN IN THE GAME’

JAMES ALLAN

Abstract

In this article the author argues that the Australian government (and indeed most other democratic governments) has badly mishandled its response to the corona virus.  It has significantly infringed on civil liberties; mistrusted the public to act sensibly; noticeably expanded debt and deficits, and hence Big Government, with no palatable route out of that situation; failed to follow the better Swedish model; and is in danger of being seen, not too far in the future, as having indulged in one of the worst public policy fiascos of the century.

AN ANALYSIS OF VICTORIA’S PUBLIC HEALTH EMERGENCY LAWS: 1865-2020

MORGAN BEGG

Abstract

In response to the COVID-19 pandemic, the state government of Victoria in Australia has under the Public Health and Wellbeing Act 2008 declared a prolonged State of Emergency and given to the Chief Health Officer emergency powers to impose a draconian social and economic lockdown. While times of emergency will necessitate greater government action, there has been little scepticism to the assumption that the measures adopted are a normal exercise of government emergency powers, and the claim that the response has been proportionate to the threat has been in many cases been accepted at face value. The purpose of this article is to explore the history of public health emergency laws in Victoria since the Public Health Statute of 1865, to highlight how the modern emergency powers are ahistorical and atypical, while the costs of the policy response indicates that Victoria’s modern public health legislation gives too much scope to ministers and the Chief Health Officer to exercise its powers without oversight and accountability. COVID-19 has exposed serious structural flaws in the legislation that require genuine reform and a reassessment of whether historical public health legislation achieved a more desirable balance of protecting public health and protecting the freedoms of Victorians.

ONLY THE AUSTRALIAN PEOPLE CAN CLEAN UP THE MESS: CALL FOR PEOPLE’S CONSTITUTIONAL REVIEW

DAVID FLINT AM

Abstract

The Australian government’s response to COVID-19 virus should involve the exercise of sound and mature judgement, based on the best available evidence and ensuring there would be most minimal restrictions on the exercise by the people of their fundamental rights. Sadly, that response has been well below standard and indeed, it has been a disaster. This has been at the enormous cost, not only financial and economic, to millions of Australians and those yet to be born. Most of this has been unnecessary and it is clear then that there is need for an urgent and in-depth review by the people of the constitutional arrangements of Australia. This could best be achieved under a new version of the path along which we successfully come together as a nation, that is, a Second Corowa Plan. 

COVID-19 BORDER RESTRICTION AND SECTION 92 OF THE AUSTRALIAN CONSTITUTION

ANTHONY GRAY

Abstract

This article considers whether the current Western Australian border restrictions implemented in response to the COVID-19 pandemic are consistent with section 92 of the Australian Constitution, and its promise that trade, commerce and intercourse among the states will be absolutely free.  After charting developments in the jurisprudence of s 92, in particular the intercourse aspect, it concludes that there is a strong chance that the Western Australian laws will be declared invalid, because they are arguably not proportionate to their legitimate objective, and arguably cannot be shown to be reasonably necessary, at least in relation to intercourse with all jurisdictions other than Victoria.  The article also suggests that the current factual scenario might cause the High Court to revisit its approach to s 92 questions.  The current approach, where different tests are applied to the ‘trade and commerce’ and the ‘intercourse’ aspects of the section, is not desirable.  This article suggests a new streamlined approach that applies consistent principles to both limbs of the section, focussed on discrimination and proportionality.

BLURRED LINES BETWEEN FREEDOM OF RELIGION
AND PROTECTION OF PUBLIC HEALTH IN THE COVID-19 ERA – ITALY AND POLAND IN A COMPARATIVE PERSPECTIVE

WERONIKA KUDŁA AND GRZEGORZ JAN BLICHARZ

Abstract

The COVID-19 pandemic caused a dramatic split between the right to protect one’s health, which in current situation is effective by practicing ‘social distancing’ or even a complete isolation, and the liberty to participate in social life, which is essential for our mental health. While medicine and science grapple with coronavirus, trying to find an effective cure for the novel disease, government leaders aim to curb its spread by adopting preventive measures which often collide with many constitutional rights. The chapter analyses the impact of safety measures and limitations introduced by civil authorities of Italy and Poland on religious liberty, especially the right to religious gatherings in situations of health emergency caused by the outbreak of coronavirus pandemic. In both countries the relations between Church and State are based upon the cooperation, not separation, between both spheres. Thus, religion isn’t confined to the private life of citizens, but constitutes a vital part of social life with Catholic Church as the majority religion. Taking into account temporary restrictions adopted into legal frameworks of these countries from the beginning of COVID-19 pandemic, it’s interesting to observe their impact on in-person collective worship. Although Italy’s and Poland’s legal systems have many points in common, the experience of pandemic in these countries is quite different with Italy being the first most affected European country by coronavirus crisis. For that reason, the assessment of restrictions imposed on religious worship in these countries can offer an instructive lesson with regards to adequacy and proportionality of measures aimed in first place to fight with the virus, and subsequently to co-exist with it

THE DICTATORSHIOP OF THE HEALTH BUREAUCRACY: GOVERNMENTS MUST STOP TELLING US WHAT IS FOR OUR OWN GOOD

ROCCO LOIACONO

Abstract

Much has been written over the last few months about how unelected bureaucrats, with the unquestioning acquiescence of our politicians, have acquired incredible and unparalleled power over the everyday lives of Australians. This had led to such bureaucrats, revelling in their new-found power, seemingly making policy on the run and treating us like fools who need to be told on a daily basis what is good for us (or else!). It is a dangerous time for our democracy, where the ‘dictatorship of the health bureaucracy’ has emerged, whereby a virus, labelled as a pandemic, is being used to take away fundamental rights and freedoms, handed down to us by our great Westminster tradition, with the stroke of a pen. Recent events have demonstrated the potential for health officials to enact policies that will exert even more control over our lives, which could have serious implications for the principle of informed consent – fundamental in the administration of any medical treatment.

THE ROLE OF THE STATE IN THE PROTECTION OF PUBLIC HEALTH: THE COVID-19 PANDEMIC

GABRIËL A. MOENS

Abstract

This chapter deals with the disrupting effect of the Covid-19 virus in Australia. It briefly describes the restrictions which were imposed on people by the Australian authorities to combat the virus. The chapter characterises these restrictions as an extreme version of “Nanny State” measures which are paternalistic in nature and have an enormous and deleterious effect on the rights of people, and even have unintended consequences for the protection of their health. The author considers the constitutional foundations of the Covid-19 laws and regulations and highlights the perceived weaknesses of the Government’s actions. It is suggested that it is too early to make an accurate assessment of the lasting impact of the pandemic on the fabric of Australian society.

CORONA, CULTURE, CAESAR AND CHRIST

BILL MUHELENBERG

Abstract

The coronavirus crisis has raised numerous questions, ranging from the medical and scientific to the social and political. I will argue in this piece that for the most part far too many governments have overreacted to this crisis, with the result that we have had too many infringements on individual liberties, and far too much unnecessary expansion of government. In particular I will examine the following six matters: how crises can lead to increasing powers of the state; how the nature of risk needs to be responsibly dealt with by individuals and states; how some government policies and programs entail a notion of the perfectibility of human nature; how far things like security and safety can be mandated and enforced by the state; how concerns about religious freedom interact with concerns about public health and safety; and how feasible or desirable something like just revolution might be if statist overreach becomes too onerous.

THE AGE OF COVID-19: PROTECTING RIGHTS MATTERS

MONIKA NAGEL

Abstract

Covid-19 (‘C-19’) has created uncertainty around the world; human rights (‘HRs’) as stated in the Universal Declaration of Human Rights (‘UDHR’), regulations and morals got dismantled. Established HRs have been curbed in the interest of saving lives. Activities people were accustomed to, and took for granted, have been greatly restricted by worldwide lockdowns and social distancing regulations. What motivated the writing of this chapter is our global economic, social and political environment at the 21^st century, and today’s role of HRs. Why has globalisation, a process of integration and interaction among individuals, companies, and governments, worked extremely well for economic and political gains since the early 1980s, yet failed in its capacity for responding to a global health crisis? Furthermore, this chapter brings to light our decline of values, the rising propaganda for identity and people’s strong opinions about their rights, and why the thinking of today’s societies and global and social changes must be considered for protecting FRs. Previous cartas were created out of circumstances at the time. And that is not less true for protecting FRs in the age of C-19. Subsequently, this paper moves away from using HRs as stipulated in the UDHR as the key construct for protecting FRs. FRs are defined here as human intrinsic needs essential for a person’s development ranging from basic needs to self-actualization. Not surprisingly, some of these needs overlap with the definition of rights contained in the UDHR. This chapter revisits human rights in changing societies to ensure that they continue to protect all people equally in these unprecedented, unexpected, and vulnerable times. The argument is presented that it is difficult to protect FRs, both in the age of Covid-19 and in the future, when the rights defined by the UDHR can lead to the pursuit of personal benefits which are not in the public interest. Furthermore, it brings to light the importance of responsibility and respect when leaders make tough decisions and people have to feel bounded to new norms.

MOLINISM, COVID-19 AND HUMAN RESPONSIBILITY

Johnny M Sakr

Abstract

Coined after Roman Catholic Jesuit Luis de Molina, Molinism is a philosophical tool that attempts to explain how a provident God can exercise sovereign control over his world while honouring the genuine freedom He has bestowed upon His creatures. While Molinism holds that all things that happen in the actual world are part of God’s decree, it does not remove human responsibility. This chapter will show how the Christian-Molinist perspective promotes human efforts to prevent epidemics, cope with them, and change the way of life to lower their impact.

INTERPOSITION: MAGISTRATES AS SHIELDS AGAINST TYRANNY

STEVEN ALAN SAMSON

Abstract

The conduct of politics proper, through the arts of persuasion, may be contrasted with despotism, which relies upon coercion.  Historically, regimes that secure the rule of law, constitutional limitations, civil liberty, and self-government are a remarkable but often short-lived achievement.  A crucial part of this history has been played by a form of resistance, or civil disobedience, known as interposition.  Indeed, politics and freedom emerge from the often-brutal conflict of powerful stakeholders.  Historical sketches, including precedents for interposition by lawful magistrates, lead into an essay on trends that enhance or threaten the well-being of communities as well as the institutions that enable human flourishing.

DESTROYING LIBERTY: GOVERNANCE BY DECREE

WILLIAM WAGNER

Abstract

Constitutional structures and limits on the exercise of government power protect and preserve liberty, even during a pandemic. Many State Governors see Covid-19 as an opportunity to ignore such constraints, autocratically issuing despotic edicts. If left unaddressed, the rising tyranny threatens to destroy deeply rooted foundations of good governance under the Rule of Law.

The blessings of liberty and prosperity come with responsibility. Each generation inherits a special trust to ensure the preservation of liberty and the moral administration of justice. As state governing regimes increasingly use fear to act without constitutional authority, and infringe upon constitutionally protected liberty, we the people must fearlessly fight to preserve the Rule of Law. If State Governors go further and tyrannically mandate vaccines without consent of the governed, the Federal government should exercise its power under the Commerce Clause to enact pre-emptive Federal legislation.

THE VIRUS OF GOVERNMENTAL OPPRESSION: HOW THE AUSTRALIAN GOVERNMENT IS JEOPARDISING DEMOCRACY AND OUR HEALTH

AUGUSTO ZIMMERMANN

Abstract

This article discusses the legal and moral consequences of draconian measures adopted by our political elites under the pretence that they were necessary to fight the coronavirus. Shutting down the entire country for many months, in a desperate attempt to save everyone and everywhere from a virus whose mortality rate is relatively low, has done far more damage to the people than the virus itself. Although it is important to recognise that the coronavirus appears to pose some health risks to the population, the key word here is proportionality and the arbitrary measures imposed by the ruling elites not only violate the Australian Constitution, but also unleash unprecedented socio-economic consequences, which threaten our very way of life and what it means to live in a free and open society.