Our civic duty to all Australians is more than just hand washing
We call on everyday Australians, regardless of their political persuasion, to do their civic duty to protect Australia from the damaging impacts of COVID-19. This is more than just social distancing, hand washing and masks but actively engaging in politics and assessing any new laws put forward. Everyday Australians, even school students, can easily critique new legislation that gives additional powers by answering the below six questions.
This is not something we should leave to the legal profession, journalists or MPs but is something that all of us can do to uphold and protect the peace and prosperity we have in Australia.
1. Does this legislation create a group of people or organisation that can operate outside of the law?
To protect citizens from the really “BAD PEOPLE” – like terrorists, corrupt MPs and bikies, governments often try and introduce legislation that creates a parallel system of justice. This may include “special law enforcers” or “special prosecutors” that have vast powers to catch and heavily punish the bad people who break the law. The problem is that people are fallible. Experience tell us that when you give a person or an organisation unbridled power, that power can be abused. All people need to be bound by the rule of law, constrained by checks and balances to limit their arbitrary use of power.
The Victorian government recently tried to introduce a Bill that created a class of “authorised officers” who had greater powers than the police. These additional powers were aimed at protecting citizens from the really “bad people’ ie those who are wilfully ignoring public health measures. Supposedly, Victorians needed a special class of enforcers with more power (and less accountability) to deal with beach–goers and people sitting on park benches!
2. Does this legislation remove the presumption of innocence?
In the eyes of the law, every person is considered honest and innocent unless proven legally to the contrary– this is the presumption of innocence. We should be wary of legislation that relies upon those “special law enforcers” or “special prosecutors” to find breaches or to be the adjudicators who decide if someone is likely to offend. When presumption of innocence is reversed, the “special law enforcers” often become so focused on seeking out anyone who might be found guilty they ignore all legal processes and protections.
3. Does it include punishments that are disproportionate to the offence?
Governments often want to be seen to be tough on crime, but it is important that the punishment “fits the crime” and any new legislation does not include overly harsh punishments. Severe punishments and draconian fines are not acceptable responses to political and government pressure. Watch out for harsh fixed sentences rather than allowing the judiciary to give a proportionate sentence considering all relevant circumstances.
4. Is there a mechanism to monitor the use of power?
In Australia, we have checks and balances that limit the arbitrary exercise of power by those that govern us. The Legislature, Executive and Judiciary must operate according to the law and are held accountable by the other arms of Government. When governments attempt to remove or separate themselves from close scrutiny or review, alarm bells must ring. New legislation must include clear ways to review the exercise of powers and to test the merits of others’ actions.
It is comical that the recent the Victorian COVID-19 Omnibus Amendments were needed to ensure critical government and legal operations occur in Victoria, but that no steps were taken to prioritise public debate or parliamentary scrutiny. Politicians need to ensure emergency laws are balanced, transparent, and accountable. If they do not, they might suffer the fate that occurred in Michigan where the Supreme Court struck down the Governor’s emergency powers and stated
“almost certainly, no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of inconvenience of having to act in accord with other accountable branches of government.”
Emergency powers must always be limited in time. The intention of emergency powers is to provide swift and efficient measures in a moment of crisis. They are not meant to become the norm for an extended period of time or to be continuously redeclared.
5. Does the legislation protect and promote human rights?
Victoria has a Charter of Human Rights and Responsibilities. It is not enforceable at law but puts the onus on MPs who introduce legislation to ensure the new provisions protect and promote human rights. Before introducing any further legislation, they must fervently seek out less restrictive measures rather than jumping to harsh lockdowns that erode human rights.
When it comes to new legislation, the following mantra should always be applied: Sunlight is the best disinfectant. This means transparency and openness are critical to reveal any unethical behaviour. Freedom of speech and public available information from trusted sources must never be compromised. We should never be in fear that the police will knock on our door if we disagree or question..
6. Are there so many updates and additional regulations that the legislation is unclear?
Laws need to be written down and capable of being known so that everyone can comply. Daily announcements and reactionary media statements are very difficult to be made widely known and followed. Harry Potter fans will appreciate this sentiment when they remember Professor Umbridge’s implementation of 136 educational decrees that gave her complete power at Hogwarts. .
The protection of our human rights and democracy relies upon everyday Australians to be aware and to actively participate. We need to do everything we can to protect our citizens and nation from the damaging effects of COVID-19.
Sally Layson General Manager
“Individual Freedom is not all about individuals” Poster.
Click here for a link to the poster or email info@ruleoflaw.org.au for a free copy sent to you
