Guest Post: Augusto Zimmermann – The Unconstitutionality of Western Australia’s vaccine passport restrictions

In Western Australia, any resident who now leaves the State for New South Wales and is seeking to return “can apply to do so on compassionate grounds, subject to the following conditions … Have received at least one dose of a COVID-19 vaccine…”, an August 19th Facebook post from Premier Mark McGowan reads.

Section 51(xxiiiA) of the Australian Constitution states that no medical or pharmaceutical treatment can be imposed on anyone without his or her informed consent. This view is supported by the Nuremberg Code – an ethics code relied upon during the Nazi doctors’ trials in Nuremberg in 1947. This Code has as its first principle the understanding that “the voluntary consent of the human subject is absolutely essential”.

Vaccination passports also directly violate section 92 of the Constitution.  Section 92 is written in relatively simple language to describe a basic concept that any trade, commerce and intercourse among the States shall be “absolutely free”.

Of course, when it comes to a purposive interpretation of section 92, surely there is no better source than John Quick and Robert Garran’s The Annotated Constitution of the Australian Commonwealth (1901). In this seminal work, Quick and Garran authoritatively stated:

[A]bsolute freedom of trade, commerce, and intercourse may be defined as the right to introduce goods, wares, and merchandise from one State into another, the right to sell the same, and the right [of citizens] to travel unburdened by State restrictions, regulations, or obstructions.

It goes without saying that vaccination passports undeniably violate the democratic principle of equality before the law.  In Leeth v Commonwealth (1992), the High Court held that this principle is embedded impliedly in the Australian Constitution. To conclude: vaccination passports are constitutionally invalid. They grossly violate the democratic principle of equality before the law as well as the free movement of Australian citizens within their own country.

Professor Augusto Zimmermann was a Law Reform Commissioner in WA from 2012 to 2017.

31 thoughts on “Guest Post: Augusto Zimmermann – The Unconstitutionality of Western Australia’s vaccine passport restrictions”

  1. Unfortunately, DB, those who now rule over us (rather than doing their duty and honestly and honourably representing us) do not give a fig about the Constitution or the intent thereof towards the free movement of Australian citizens between the states of the one country they are supposed to form – i.e. Australia.

    Nor do they give a fig about the right of individuals to choose whether or not to accept a medical procedure, let alone an experimental one.

    How we remedy this disgusting situation, I really do not know. It seems there is nobody in the legal or (apart from a notable few) political spheres who is even interested in trying.


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  2. Good post DB. Thanks. So where are the Attorney Generals on this issue? The rule of law is in a very important way designed to prevent overreach by government.


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  3. Most of us haven’t the resources or knowledge or brains to take this to court, it seems that the usual civil liberties types have gone missing, as usual when the threat is from the left, so how can it be challenged? Can some expert constitutional law type make a case on the above and the ‘no medical conscription’ clauses? I’d be happy to chip in to a group funded challenge.


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  4. Within the states Gladys (and doubtless Dan and the Palacechook) either do not dare, or realise they lack the power, to legislate vaccine apartheid so they are trying to enlist private citizens and businesses to do it for them.

    In the former case they are shirking responsibility for it by pointing at other people, in the latter case they are trying to get around the constraints on them to pursue an end that was deliberately denied them.

    And in both cases they should be given exemplary punishment to remind future politicians that the bounds of their authority are there to keep them in, not keep the sovereign people out.


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  5. https://www.theepochtimes.com/lockdowns-in-western-australia-are-about-control_3790893.html?welcomeuser=1

    Enacted by a Labor-controlled Parliament, the Iron Ore Processing Agreement Amendment Act provides the WA Premier exemptions from criminal and civil liabilities.

    This legislation bans certain matters from being taken to court and in theory, can cut out any appeal to the High Court of Australia.

    Moreover, the Act also terminates any future legal proceedings in relation to COVID-19 containment measures. Proceedings that are currently being heard in courtrooms in Western Australia, Queensland, New South Wales, and the Federal Court of Australia.

    Clause 12 (2) of the Act also states that decisions and actions in relation to the government cannot be appealed stating that “the rules of natural justice (including any duty of procedural fairness) do not apply to; or in relation to, any conduct of the State that is, or is connected with, a disputed matter.”

    The law also seeks to make “documents connected to a ‘disputed matter’ exempt from freedom of information association laws and grants criminal immunity to the State and its agents.”

    Finally, this Act confers power to the state premier to make laws without reference to Parliament. In essence, the legislation effectively establishes an elected dictatorship in WA.


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  6. You don’t have to like Clive, but the legislation passed (solely for the State to protect itself from what was a negative High Court decision in 2018) is wholly undemocratic!


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  7. Muddy
    as far as I recall, if there is an inconsistency between a State and Federal law, the latter shall prevail.

    Other than that, the High Court would probably also be a determiner of these things.


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  8. Lysander, they are just bluffing with that legislation. They know perfectly well that it will be torpedoed in any court not inhabited by their carefully chosen appointees.

    But meanwhile it serves their purpose.


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  9. A very detailed analysis of Delegated legislation which is how the State Public Health Acts, in this case QLD’s, have been amended many times during the chunk virus and their potential conflict with constitutional and other checks on emergency laws is here. This article was written in August of 2020 and this should be noted:

    There are two limited safeguards in the COVID-19 Act. The first is that the Act itself and all instruments made under it expire on 31 December 2020 (s 25). The second is that no regulations made under the COVID-19 Act can be exercised to amend or override the Human Rights Act 2019 (Qld) (s 4(2)).

    Governments make laws and regulations all the time which are subject to Ultra Vires appeals. But here’s the rub: something may be manifestly Ultra Vires but will remain in force until if and when it is tested in court. Someone should get Clive Palmer’s opinion about that.


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  10. Unfortunately the compulsory vaccination issue not as straightforward as the article suggests.
    Section 51(xxiiiA) grants the Commonwealth powers to legislate with respect to various social services (including medical services) and contains a restriction preventing that power from being used for civil conscription.
    It was stated in the BMA case (1949) 79 CLR 201 that, because of the “civil conscription” restriction, the s.51(xxiiiA) power can’t be used to compel medical treatment. There was a recent case the name of which escapes me where a lower court seemed to try to suggest that the s.51(xxiiiA) power could be used to impose compulsory vaccination, but didn’t really address the issue properly.
    But in any case, the prohibition against civil conscription applies only to the Commonwealth using the s.51(xxiiiA) power. It doesn’t say anything about what a state can or can’t do. And there’s no inconsistency in the Constitutional sense between saying that the Commonwealth can’t do something and that the states can do it.
    However the s.92 argument looks much more promising.


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  11. It isn’t unconstitutional on any mere technical matter, but at a fundamental level, written expressly to stop precisely this kind of overreach.

    This makes all colluding politicians and their acolytes in society guilty of blatant defiance of the constitution. Until recently, this would have been considered traitorous, and arguably still should. Consequences should be appropriate to the crime.


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  12. Coronavirus: A terrible absence of morality in anti-vaxxers’ miserable hobby cult

    Jack the Insider

    Welcome to the first in a series where The Australian will expose anti-vaxxer lies. We’ll keep it rolling over the next few months, during what is a critical time for the nation.

    Logic, rationality, scientific method, all are a deep and abiding mystery to anti-vaxxers. So too is history.

    Just like their cousins in the QAnon cult, anti-vaxxers fetishise the Nuremberg Trials. History is not their strong suit. If it was, well, then they’d have to explain the roll out of the Smallpox vaccine (1796), Yellow Fever (1935), Typhus (1938), Polio (1952), Hepatitis A (1986), hepatitis B (1996), et cetera etc.

    But the cultists maintain the Nuremberg Trials were akin to revenge lust massacres when the exact opposite was the truth. Of the 24 senior Nazi officials who stood trial in the International Military Tribunal trial only 12 were sentenced to death by hanging. Herman Goering famously cheated the hangman by committing suicide in his cell on the day before his execution and Martin Bormann was sentenced to death in absentia. He was later found to have died in or around April 1945 while attempting to flee Berlin.

    There were 12 subsequent Nuremberg Trials, (none of which occurred in 1946) where acquittals were more common than death sentences. But anti-vaxxers never let historical fact get in the way of stoking fear, anxiety, and terrorising vulnerable people.

    What’s in it for anti-vaxxers? Why is there no limit to their chicanery? Why is there a terrible absence of morality to their miserable hobby cult? We’ll explore that as we go in this series, but the short answer is, ego and money.

    Why do they seek to perpetuate ugly lies? That’s the easy part. It’s second nature to them because anti-vaxxers lie. All. The. Time.

    Next week: The Australian busts open how anti-vaxxers laughably tried to derail powerful footage taken in ICU wards in Sydney where Covid-19 patients urged people to get vaccinated.

    The Comments have a lot against his viewpoint


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  13. The people they call ‘anti-vaxxers’ (revealing already their dishonesty portraying people reluctant to take these vaccine as cranks scared of all vaccines – many of which they will have already without demur had) are no more threat to the vaccinated than the vaccinated are to them.

    When they refer to themselves as vaccinated what do they think it means? Do they think it some kind of biological gestalt? Or a seance circle where all must hold hands and if just one person lets go then the connection is lost to everyone.

    Do they not actually think of what the words mean? Or is the magic woven merely for saying them?

    Who is in a cult?


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  14. Unlike the US Constitution which was written in the spilled blood of men who wanted shake off the yoke of Empire, the Australian Constitution is a weak document with respect to our country and its people. It protects nothing and that the ‘leaders’ have simply done whatever they like bears this out.

    Australia no longer exists, it has been rent by political charlatans.

    We need a new constitution along the lines of the US constitution and the law that took arms from the people repealed. I am so disgusted with what has become of our nation, snobs, snivellers and snitchers run the show.

    What can be done? I know many immigrants who have experienced the totalitarian way and they will not subject themselves to tyranny.


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  15. Jack the Insider, unlike the Mocker, has always been a ridiculous, virtue signalling, neurotic leftist who would not recognises a fact if it bit him in his nether regions.

    I spit on his anti-vaxxer balderdash. It’s a crime against writing that he actually get paid for the absolute rubbish he churns out.
    moderated

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  16. It was stated in the BMA case (1949) 79 CLR 201 that, because of the “civil conscription” restriction, the s.51(xxiiiA) power can’t be used to compel medical treatment.

    Have you got a direct quote from the judgment for that? From memory, the case was about whether doctors could be compelled by the Commonwealth to do whatever, not whether medical treatment could be compelled on patients. All the case law on the “civil conscription” wording that I’ve seen deals with the former, not the latter: the cases are brought by doctors, not patients.

    So I think the guest poster’s thesis is even weaker than you allow, Tim, and I’m very sceptical that he is correct. I wish he were, I wish the Constitution forbade compulsory medical treatment, but I don’t think it does on any plain reading or on the case law.

    Note also that Australia imposed compulsory chest X-rays in and around the sixties without legal impediment, when our legal institutions and the rule of law were (arguably) in better shape than they are now.


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  17. I’m 3 Ed for funding some nuisance court cases to kick back a little against this blatant illegality.

    And anyone seeking to dismiss the medical ethics of informed consent has reamsof case law, not just Neuremberg to contend with.

    I have less than 1% chance of carking it from the coof.
    My being Vader apparently makes no difference to my chance of passing it on if infected.

    There is a 0% chance my being unvaxed will impact another.

    What is the rationale for forcing me to be vaccinated multiple times against my will?

    As it stands WA health have directed I “ must” be vaccinated to work in the health field.
    By what right?


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  18. Vlad

    You need to read Latham’s judgment. There was two questions and where he did not dissent he is instructive.

    *This legislation bans certain matters from being taken to court and in theory, can cut out any appeal to the High Court of Australia.*

    Um, bullshit. That’s just not legal.


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  19. *But in any case, the prohibition against civil conscription applies only to the Commonwealth using the s.51(xxiiiA) power. It doesn’t say anything about what a state can or can’t do. And there’s no inconsistency in the Constitutional sense between saying that the Commonwealth can’t do something and that the states can do it.*

    Normal people would think only the Federal government can conscript people at all – and civil conscription is banned.

    There is plenty of evidence that pet apellate judicial officers are not normal.


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  20. sfw says:
    September 3, 2021 at 12:48 pm
    Most of us haven’t the resources or knowledge or brains to take this to court, it seems that the usual civil liberties types have gone missing, as usual when the threat is from the left, so how can it be challenged? Can some expert constitutional law type make a case on the above and the ‘no medical conscription’ clauses? I’d be happy to chip in to a group funded challenge.

    Here is an opportunity for Clive Palmer for the federal election. No need to waste time with a High Court challenge again, take it to the people. Choose the vulnerable electorates and campaign heavily there and also make a lot of noise nationally. The more stunts the better. Thousands of voters are preparing metaphorical baseball bats for ScoMo and the gang.


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  21. Here is a transcript of Augusto Zimmerman at the CIS, from a website I never expected to visit:

    https://biblescienceforum.com/2021/08/15/video-the-constitutional-invalidity-of-vaccination-mandates-and-the-lawful-right-to-protest/

    The deliberate exclusion of those who reject the experimental vaccination from participation in certain activities discriminates against them on the ground of vaccine status. This apartheid-type situation effectively amounts to a violation of a basic right of the individual, the constitutionality of which is extremely doubtful given the jurisprudence of the High Court already indicating that what cannot be done directly, cannot be achieved indirectly without violating s. 51 of the Constitution. This point was addressed in a comment of Justice Webb in British Medical Association v Commonwealth*:

    If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance” (emphasis added).

    *(1949) 79 CLR 201, at 293 (Webb J).


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  22. I have read Latham’s judgment now in BMA; I’d only skimmed it earlier.

    The trouble with these arguments (from the guest-poster) is – to repeat myself – that the cases are all about doctors and what *they* can and/or can’t be compelled to do. So even if you can pull out (ie out of context) a quote that sounds sexy and on point, it’s absolute obiter here and the poster is treating all this stuff instead as though it’s absolutely definitive knockdown legal argument.


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  23. Dover, what happened to threaded comments? Maybe it’s my faulty memory, but I thought that it was possible to reply directly to a comment in an earlier iteration.

    Please bring them back, so that I can, for example, reply directly to…

    vlad redux

    You may have read Latham’s judgment, but have you read Augusto’s speech?


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  24. Vlad,
    You’re probably right that it’s obiter so far as patients are concerned, given the context of the case, but for what it’s worth, Latham CJ said:
    “The object of conferring power upon the Commonwealth Parliament to make laws for the provision of pharmaceutical benefits was to enable the Parliament to make laws with respect to (inter alia) the provision of pharmaceutical benefits by the Commonwealth under a scheme which should involve no compulsion of service by an person, which would leave every person, according to his own will, and not by reason of the exercise of the will of Parliament or of any other person, at liberty to take part in the execution of the scheme or to stand outside the scheme altogether, whether as doctor, as chemist or as patient.”
    The last three words are the money quote for us, as Dot alluded to earlier.
    And even though it may be obiter I’d have thought that an inferior Court should at least explain why it thinks that the statement isn’t correct.


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  25. I highlighted that very passage in my reading of the judgment last night, Tim, and it pulled me up a little. But I still feel it’s clutching at a straw.

    Besides that, that isn’t how the guest poster here argued; and I would have more time for his post if it had been.

    But to say “Section 51(xxiiiA) of the Australian Constitution states that no medical or pharmaceutical treatment can be imposed on anyone without his or her informed consent” – is preposterous. The section might – eventually, by a court, after long and careful reasoning – be held to imply that; it does not state it.


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