It’s been over two years since waves of ever tightening restrictions, including wholesale house arrests, began to be placed on healthy citizens who had committed no crime. One by one, the world’s democracies buckled to the herd panic about the Covid pandemic sweeping the world and their governments increasingly took on hues of totalitarian regimes in telling people when, where, how far, how long and with whom and how many they could go out or even sleep with; what businesses could operate and under what conditions; what medications doctors could and could not prescribe irrespective of their own professional judgement and knowledge of their patients; and mandatory mask and vaccine requirements for an array of social and professional interactions.
Many directives lacked scientific basis and some were downright wacky – there really is no better word for it. The apotheosis of executive overreach came in Canada with the truckers’ Freedom Convoy in Ottawa and in the Australian state of Victoria. In both, MPs betrayed the people, the country and the constitution by putting their own careers first, the party second and the country last. The unchecked growth of the administrative state and centralisation of authority, power and decision-making in prime ministers’ and premiers’ offices fused seamlessly into the rise of the biofascist state. Complicity by the media in propagating fear porn, social media censorship of alternative voices and threats of disciplinary proceedings including dismissal and deregistration by professional governing bodies ensured there’s been a stifling conformism.
The biggest surprise for me was the ease with which freeborn citizens fell into unquestioning compliance. Human rights commissions went MIA just when most needed. The ACT (Canberra: my jurisdiction until this year) Human Rights Commission, for example, resorted to vague generalities: “Restrictions on rights should only stay in place for as long as they are necessary, and they should not limit rights more severely than they need to.” It promised it was “monitoring the restrictions”. This was in December.
The biggest disappointment was the speed with which institutional bulwarks against executive tyranny – parliament, media, human rights commissions and lobby groups – buckled in the biggest onslaught on freedoms and liberties in history. The most profoundly disappointing was the abdication of the courts to keep a check on the descent into de facto if temporary tyranny, notwithstanding constitutional safeguards like the Charter of Rights in Canada. Courts mostly deferred to the executive.
Thus several legal challenges to the growing array of U.K. restrictions in the name of public health simply fizzled out. In a series of decisions in 2020-21, Australian courts upheld the validity of COVID-19 restrictions, including Palmer v Western Australia (2021), Loielo v Giles (2020), Gerner v State of Victoria (2020) and Cotterill v Romanes (2021). Victoria’s Supreme Court dismissed challenges to public health orders because the test of proportionality had to be applied to the package of measures taken as a whole, which had helped to mitigate the pandemic risk. On vaccine mandates, on November 3rd a federal judge ruled that Victoria could fire nurses who refused Covid vaccines. On December 8th, the New South Wales Supreme Court ruled against a crowd-funded legal challenge to vaccine mandates for teachers, health and age care workers and some construction workers that was first rejected in a court in October and then appealed. Most consequentially of all, in February 2021 the High Court, Australia’s top court, upheld Western Australia’s border closure. Law professor James Allan has argued that had PM Scott Morrison not chickened out of supporting mining magnate Clive Palmer’s challenge, he would likely have won.
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