As exposed by The BFD, leaked Crown Law advice to New Zealand Police was that they had no legal basis on which to enforce the Ardern government’s panicked, draconian lockdown edicts.
Which leads me, on this side of the Tasman, to wonder whether any Australian government or police force has sought similar advice?
Firstly, it must be borne in mind that Australia, unlike New Zealand, is a federation. Don’t worry, most Australians don’t seem to be able to get their heads around that, either, as we saw from the chorus of ninnies screeching at the Prime Minister during the bushfires for “not doing enough” of what were in fact the responsibilities of state premiers.
Similarly, the raft of pandemic lockdowns are the doing of state governments – and the legality of their actions is still far from clear.
Which hasn’t stopped a chorus of politicians, “experts” (including far-left nutters) solemnly telling us, every night, to just trust them.
One of the authors of our Constitution spoke about trusting the government: “If you think we should trust the government, there is no point in having a written Constitution”.
[…]Well, I know it’s very American, but we have a written Constitution. It gives our Federal government ‘limited and enumerated’ powers over our international borders; but it leaves the regulation of our domestic lives to the limited police powers of the state governments. But these constitutional limits are never mentioned.
So what are the Constitutional limits of state power?
According to the High Court, two sections of the Constitution, ss. 92 and 117, limit the States’ powers. While the essence of section 92 states that trade, commerce and intercourse among the States shall be absolutely free; s. 117 states:
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject in such other State.
In November 1911, Mr Smithers, a convicted Victorian criminal, was convicted in New South Wales for entering that state in breach of a law which was intended to keep out convicted criminals from other States. (Given NSW history, perhaps the law was designed to reduce competition).
The King v Smithers; ex parte Benson came before the High Court in April 1912 and the NSW law was held to be in breach of the Constitution and invalid. The Court gave a couple of different reasons for that decision, the more interesting of which were by Barton J and Isaacs J.
Barton ruled that the NSW Act exceeded the states’ police powers to protect public order, safety or morals. Isaacs, on the other hand, referred to s.92:
Its reference to ‘intercourse’ was a reference to a personal right to travel throughout Australia ‘irrespective of any State border’. In s. 92, that right would be absolute.
Whichever argument is correct, the case makes clear that the states’ power to prevent all people from crossing borders is either absolutely invalid, or subject to strict limitations.
However, if interstate travel cannot be prevented, then neither can intrastate travel to reach the border. Restrictions on any travel to visit federal institutions would also seem to be unconstitutional. Must you then explain why and where you are travelling? Not unless the right to silence has been abolished.
What’s been noticeable in all this pandemic panic is the deafening silence of the normally-vocal chorus of grey-bearded activists and human rights lawyers, let alone constitutional scholars or civil libertarians.
Maybe all of those groups are now living their socialist dream? Everyone (except me) paid to stay home; and just as it was in the good old USSR, the shortages are temporary, comrade and civil liberties were never worth dying for.
The same mob who enable endless, vexatious legal challenges on behalf of grifting illegal immigrants, at enormous expense to the Australian taxpayer, are conspicuously silent while the rights of Australian citizens are being trampled.
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