Emergency Powers and the WHO Pandemic Treaty
Logical refutation of the legality of governance by decree
The use of ‘emergency powers’ to delegate virtually unlimited authority to health ministers to limit citizens’ freedoms became commonplace in many countries during the Covid pandemic. Over a year ago I authored a petition at the Parliament of Victoria, submitting that governance by decree is always unlawful and void. If the parliament does not possess the authority to infringe on citizens’ freedoms without first passing a law to that specific effect by a majority vote then it cannot make a law to delegate this non-existent authority under any emergency powers, pandemic law, or martial law. The purpose of this article is to elaborate on the principle underpinning my petition. While the arguments below are written in the context of the Australian Constitution, the same principle applies in every parliamentary democracy. In essence, the delegation of discretionary powers to infringe on citizen freedoms by any Act is void because it exceeds the procedural authority of the Parliament itself.
Analysis:
The principle of Ultra Vires was succinctly formulated by Justice Griffith in Sydney Municipal Council v Commonwealth, HCA 50 (26 April 1904): “... if the authority which assumes to create such a delegation does not itself possess the power, the delegation is void, since the spring cannot rise higher than its source.”
The legislative power in the State of Victoria is vested solely in the Parliament (s16, Constitution Act 1975), where the "Parliament" includes each House of the Parliament, the members of each House, the committees of each House and joint committees of both Houses (s94B.7). The only means of making legally binding restrictions on freedoms under the constitution is therefore by the majority vote of the Parliament.
Emergency or Pandemic Management powers are essentially a delegation of the constitutional authority to make legally binding restrictions on freedoms by Government decree. If the delegation were not an extension of the legislative authority of Parliament then any new restrictions on citizens’ freedoms would not have the force of law. Emergency or Pandemic Management powers, once assumed, are exercised by the decree of the Minister.
The constitutional objection is that the Parliament does not possess the authority to dispense with or bypass any element of the legislative process set out in the Constitution (including the majority vote by both houses). The Parliament cannot delegate powers it does not itself possess; to affirm otherwise would be a violation of the law of non-contradiction, therefore a priori false.
More formally, if X is a specific Parlimentary authority that is identical to the delegated authority X, then X=X, but if the the original authority does not exist, then not-X=X, therefore contradiction. Or simply, I cannot give you something that does not exist.
Any Act of Parliament that would purport to delegate powers that exceed the procedural limits of the Parliament itself is therefore Ultra Vires and Void.
International Treaties:
Any purported delegation of authority that would allow the WHO to impose legally enforceable directives on the citizens of a sovereign state, within the borders of their own state, would be legally void. The delegated authority to issue international decrees with the force of law would exceed the constitutional authority of the national parliaments themselves. National parliaments are constitutionally bound to make laws in a particular way, usually by a majority vote of its members, so for anyone to issue enforceable decrees outside of this process would always be ultra vires.
NOTE 1 : The logic of delegation of legislative authority
Premise: Parliament cannot delegate authority it does not itself possess.
Condition A: Does the parliament possess the authority to make laws by any other procedural means than majority vote of both houses?
Condition B: Does the parliament purport to delegate the authority to make laws by other procedural means than majority vote of both houses?
If condition A is not satisfied (NO) and condition B is satisfied (YES) then the Premise is contradicted.
While I understand that the authority to make laws and the authority to use certain procedural means to make laws are logically distinct, both types of authority must have their source in the respective types of authority of the parliament, otherwise the charge of equivocation (category mistake) would apply at the point of empowering legislation. If we accept this type-distinction as relevant, then each type of authority must exist ‘above’ in order to be passed to ‘below’, so the distinction does not eliminate the inconsistency.
Another way, the parliament cannot give to anyone else any kind of authority that is unavailable to the parliament itself. Doing so would allow the parliament to bypass the procedural requirements imposed on it by the Constitution and thus exceed its own constitutional authority by the proxy of controlled delegation.
NOTE 2 : Conditional consent
The crucial factor in the functioning of delegated authority is whether it is relatively benign in case it were temporarily abused and whether it is sufficiently controlled by the delegating authority, or whether it is too dangerous to be delegated under any circumstance. I put parking restrictions at the local government level in the first category, and loosely defined emergency powers to impose lockdowns, partial hospital shutdowns, ban on travel and imposition of medical procedures as ‘off the scale’ too dangerous, potentially totalitarian, a threat to national security, even if partially controlled, especially because the parliamentary oversight is procedurally delayed, and during the time of delay people can die and the capture of power by foreign interests can occur. Apart from this, there are genuine logical inconsistencies in the chain of authority, which can be tolerated for reasons of efficiency under a benevolent and trustworthy government, but the government should be aware that this voluntary concession made by the public is not to be taken for granted.
NOTE 3 : Manner and form
Does Parliament possess the authority, unconstrained by the procedural requirements applicable to Parliament, to make laws by indirect means: via a person legislating under delegated powers? Construed in this way, the act of delegation would be a law not “respecting the constitution, powers or procedure of the Parliament” (as per s6 of the Australia Act 1986) for impliedly repealing the procedural requirements binding the Parliament: “the manner and form (…) required by a law [ordinarily] made by that Parliament”. Delegated legislative powers are exercised without parliamentary debate or the majority vote of the Legislature and have included the kind of interventions that override fundamental rights. Does s6 of the Australia Act ‘therefore’ invalidate the delegation of Emergency Powers under s200 of Public Health and Wellbeing Act 2008 VIC, or any legislation of equivalent effect, if the delegate remains under informal control of the Parliament; or is the delegation invalid because it amounts to renunciation of the Legislature’s power to legislate, if the delegate is not fully under Parliament’s control? (According to JEFFREY D. GOLDSWORTHY, in MANNER AND FORM IN THE AUSTRALIAN STATES, “the retention by Parliament only of a power of veto is not consistent with the requirement that the legislature retain full constituent power.”)
NOTE 4 : Limits of delegation
The only way to retain the logical consistency (and therefore legitimacy) of any delegated authority is for the enabling act to define the absolute limits of this delegated authority, in a way that precludes ‘inventing’ unintended requirements but merely choosing the legal requirements from a list of possibilities defined in the act, with a pre-defined range of application. Anything beyond these criteria is essentially a loophole for bypassing the “maner and form” binding the parliament, or even for abdication, and provably violating either the law of identity (different species of authority above and below and therefore not a delegation of a species of authority) or the law of contradiction (the delegated authority is lacking at the source and is therefore not delegated). For example, if the government acting under emergency powers can invent new policies (universal face masking, mandatory vaccines, state wide lockdowns, home detention, mandatory testing, etc) that were unspecified in the act and without pre-defined limits on the ‘authorised range’ of their application, it is on these grounds acting beyond legitimate authority (be it an issue of ‘manner and form’ or ‘abdication’). In essence, any delegated legislative authority must not allow original action but only selection from pre-determined actions, with statutorily defined limits.
Unspecified or Unlimited action is Uncontrolled action.
NOTE 5 : Disclaimer
The argument presented above appeals to logical consistency only; it is ‘legal’ only by implication.
EXAMPLE of how delegation of legislative authority could be abused. A party with a parliamentary majority wants to do something grossly unethical, something that could not be openly debated in Parliament, aiming perhaps to covertly eliminate the minority opposition or some racial demographic, so it grants a delegation of vaguely defined emergency powers to manage a flu pandemic to the health minister, whom the said party controls. Once the bad deed is done, perhaps under the guise of a mandated medical intervention, the health minister is to be used as a scapegoat, denounced and publicly rejected by the party as incompetent, perhaps even prosecuted, and thus the reputation of the controlling party would not be tarnished, plausible deniability would be preserved, and the criminal objective covertly accomplished.
Well thought out, explained and completely logical, but if governments were run logically there would be no function for politicians.
Can we demand a restoration of logic to our bloated behemoths? I certainly hope so, but I will also be prepared for the inevitable collapse.