Last week, at 4 pm on Friday, a Supreme Court Judge read out his decision on two matters regarding mandatory COVID-19 vaccinations. In this landmark case, two groups of plaintiffs had appealed against the Public Health Orders of the New South Wales (NSW) Health Minister Brad Hazzard, particularly those relating to mandatory coronavirus vaccinations.

To the disappointment of many onlookers, the judge dismissed both appeals and upheld Minister Hazzard’s Public Health Orders.

In essence, as this article will argue, the judge is affirming that NSW citizens have no rights except those that are given to us by parliament (or, even worse, by the arbitrary decision of a minister of parliament as advised by unaccountable and often incompetent bureaucrats).

Importantly, the judge’s decision was reached based on the erroneous legal doctrine of Parliamentary Sovereignty articulated about a century ago by A.V. Dicey.

This doctrine assumes, among other things, that we are not humans made in the image of God; we are ‘cattle’ to be disposed of at the whim of our leaders.

Hence, the judgement made last week is based upon a flawed non-Christian philosophy.

Do We Have Basic Human Rights in Australia?

Australia’s governmental system is often called a “Westminster democracy”, but a more correct term is a “Constitutional Monarchy”. Therefore, in considering the case at hand, it is instructive to consider the historical development of Australia’s legal system.

Some people today notice concerning decisions being made by governments and, consequently, believe that a Bill of Rights would solve this problem. They argue that our Australian Constitution is deficient because it does not include such a Bill. Nonetheless, few realise that the Constitution is an “Appendix” (literally, a small thing hanging on to a bigger thing); it is not the be-all and end-all. I will explain this at length below.

The fact that not only citizens but governments and courts are ignorant of these things does not diminish their reality and force. This would be quickly demonstrated if they were raised in the High Court.

Unfortunately, during the last fifty years, these critical facts have not been taught in law schools. Consequently, almost all lawyers and judges are ignorant of them. Instead, they follow the deficient philosophy called “legal positivism” and “the doctrine of Parliamentary sovereignty”. This philosophy teaches that the decision of any given parliament is binding as law, even if it is outrageous and contradicts our British heritage (which is based on Biblical principles and centuries of thoughtful development).

Amazingly, few people (even lawyers) know why British “common law” is called by that name. It is because the law should be common to (i.e. apply to), both the King (or Queen) and the people. This is because God’s law is above the decree of the King, contrary to what is common in Muslim countries, tribal cultures and Marxist states.

The Foundation for Law in Australia

Rev. Dr David Mitchell, a brilliant, kind and gifted man with two doctorates in law, was possibly the preeminent Australian constitutional expert. In 1960, the Queen appointed him to Botswana, Africa, to assist in handing them their independence. Mitchell died in 2018 at a very old age.

He explained to me that the basis of laws in Australia should be considered in the context of four features (the first three points are the ‘bigger thing’ that I mentioned above, to which the constitution is appended):

  1. The various state constitutions (as of 1900): each state was considered a self-governing colony under Queen Victoria. Victoria, in turn, swore at her coronation (as did Queen Elizabeth II) to uphold the Bible.
  2. All of British parliamentary law and precedent (at the time of federation in 1900): this includes the Magna Carta (1215) and the Bill of Rights (1688/1689), among other documents. Contrary to what some suppose, these do transition across from Britain and hold weight in Australia.
  3. All of British Common Law in 1900: this includes each decision by courts in Britain aside from the decisions made by parliament.
  4. What we call our Federal Constitution: it is important to remember that this is merely an Appendix — the ‘deed of arrangement’ for the self-governing colonies to amalgamate — and, therefore, it did not need to cover aspects of legislation and precedent that are already covered by the first three aspects of legal heritage.

Our parliaments enact laws. These laws should not contradict the legal heritage with which Britain has provided us. Nevertheless, Australian parliaments often make unconstitutional laws. For example, they have legislated that there is no right to self-defence in Australia.

On the contrary, the 1688/89 British Bill of Rights demonstrates that citizens do have the right to self-defence irrespective of the government’s decisions (if I had the vast legal fees necessary,, I could take this argument to the High Court and demonstrate my point).

Even worse, state premiers have been pursuing unconstitutional measures, such as lockdowns, during COVID-19. These contravene the Magna Carta and other documents on many grounds. For example, they deprive a healthy person of the ability to earn a living or to travel unimpeded on the ‘King’s highways’.

Our British heritage is described well in the great 35-page booklet “The Case for Fundamental Rights” written in 1988 by barrister Terry Shulze. Shulze also wrote a summary 14-page article in 2018 — I have access to both.

As an aside, if Australia becomes a Republic we would be cut off from our well-evolved British legal heritage, rendering us vulnerable to outrageous decisions.

The issue with governments legislating for human rights (for example, anti-discrimination, freedom of religion, etc.) is that, if one parliament can legislate to give me a right, a subsequent parliament can just as easily legislate to remove that right!

My human rights are, as is so eloquently expressed in the United States Declaration of Independence, “inalienable”, “endowed by our Creator … God”.

Few People — Even Judges — Recognise This Heritage

I was with Terry Shulze in the NSW Supreme Court of Appeal in 1988. Shulze was appealing against the Egg Board’s eviction of a ‘rebel’ egg farmer, Paul Galea, from his farm. During the appeal, I observed how Shulze educated the three panel judges on the same points I have outlined above.

I saw the realisation as the three judges understood what he was saying! They began to realise that the NSW Parliament is not sovereign. Instead, it is subject to both our Australian Constitution and British legal principles which were transferred across from Britain into Australia in 1900 or 1901 at the time of the federation.

At a subsequent hearing, they would likely have made a decision and declared the Egg Board law to be unconstitutional.

Because the NSW government has acted under a law that is null and void, this would have meant that the 3,000 egg farmers who had been put out of business by the harsh Egg Board law could have sued the government for damages.

So what did the legal profession and the government do?

Within days, the NSW government rapidly repealed the Egg Board law, instantly sacking three hundred Egg Board bureaucrats.

Consequently, when we re-appeared in the NSW Supreme Court of Appeal, the judges said that they did not need to make any decision. The law no longer applied!

How This Applies to Last Week’s COVID-19 Decision

The judge, in last week’s decision, claimed that Australia has no Bill of Rights and, therefore, we have no right of bodily integrity. In effect, we have no rights except those bestowed upon us by parliament.

Once again, the serious problem with that is that if one parliament can give citizens a right, then a subsequent parliament can take it away just as easily.

This judge did not recognise (either out of ignorance or willful disregard) that Australia does effectively have a Bill of Rights: that the Magna Carta still applies to us today.

After the death of King Charles II, his relatives, Prince William and his wife Mary (of the quaintly named Dutch province of Orange), were invited to become king and queen provided they signed the 1688/89 Bill of Rights.

This was a precondition of William becoming King of England. In essence, it is a covenant limiting the power of the monarch and the power of parliament and placing their authority under that of God.

The English Bill of Rights is an act that the Parliament of England passed in 1689 (although signed by William in 1688). The Bill establishes a separation of powers, limits the powers of the monarchs, enhances the democratic election and bolsters freedom of speech.

Furthermore, the NSW judge also erred in saying today that commonwealth laws and the Australian Constitution do not apply to the making of laws by the NSW Parliament or orders of regulations made by a Minister of the NSW Parliament.

My response is simple: Lockdowns contradict the Magna Carta (as shown above). Consequently, at what point will this behaviour end? Once the government ignores one section of the Magna Carta by allowing lockdowns, what stops them from ignoring all aspects of the Carta?

Will we even eventually see governments ignoring the presumption of “innocent until proven guilty“?

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Image by Kgbo on Wikimedia Commons.