2021-07-24 15:38:12
Constitutional Professor Augusto Zimmermann 100% agrees neither State or Federal governments can mandate vaccines, or any medical service for that matter. Bring on the judicial challenges, and lock up the politicians for coercion.
THE UNCONSTITUTIONALITY OF MANDATORY VACCINATION
- OR ANY GOVERNMENT-MANDATED MEDICAL TREATMENT
One of the main characteristics of the Australian Constitution is its express limitation on governmental powers. In drafting the Constitution, the framers sought to design an instrument of government intended to distribute and limit the powers of the State.
The Constitution was slightly amended in 1946 by a referendum in order to include section 51 (xxiiiA). This provision determines that the Parliament, inter alia, can make laws with respect to:
“The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription)…”
The prohibition of such conscription is directed particularly to the provision of medical services.
The idea that constitutional prohibitions to government protect individual rights plays a fundamental role in our understanding of these express limitations and, indeed, our understanding of the implied constitutional limitations derived from them.
In this context, the “no conscription” requirement to be found in that provision amounts to an explicit constitutional limitation. It is an implied constitutional right of the individual so that such prohibition is not directed only to the federal government but it must also be extended to the exercise of legislative power by the Australian states.
In other words, no Australian government, either federal or state, or those acting on its behalf, is constitutionally authorised to force any individual to take medicament against his or her own will, or force them or their children to be, among other things, compulsorily vaccinated.
The concept of ‘civil conscription’ was first considered by the High Court in British Medical Association v Commonwealth (1949). That case involved legislation which required medical practitioners to comply with a particular federal medical determination as part of a scheme to provide pharmaceutical benefits.
That important decision confirmed the fundamental right of Australian citizens to determine by their own will whether they should take any medical or pharmaceutical benefit provided.
Accordingly, any legislation that requires medical practitioners to prescribe government-mandated medical services constitutes a form of civil conscription that is constitutionally invalid.
Importantly, the High Court also indicated that the prohibition of civil conscription must be construed widely. As such, no government, either federal or state, can impose compulsory vaccination or prevent medical practitioners from remaining entirely free to choose whether or not to provide certain medical services, including vaccination.
Simply put, section 51 (xxiiiA) maintains the prohibition of mandatory vaccination through any form of government-run health service, indicating that vaccination should only be through voluntary means in accordance with the free communications between medical doctor and patient, which is essential to achieve a high-quality healthcare.
Read more: https://quadrant.org.au/opinion/the-law/2021/07/constitutionally-inoculated-to-resist-coercion/
Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. Dr Zimmermann was chair and professor of constitutional law at Murdoch University from 2007 to 2017. He is also a former Law Reform Commissioner in WA (2012-2017) and President of the Western Australian Legal Theory Association (WALTA).
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