It is impossible to understate the malaise that has engulfed Australia in 2023. Indeed, it has been a tumultuous year because, economically, Australians have suffered from spiralling inflation, deteriorating living standards, and elevated levels of unsustained immigration with its concomitant housing problems. In addition, governments (federal, state, and local) have sought – unsuccessfully – to divide the population along racial lines by entrenching The Voice in the Constitution, and by adopting social engineering legislation that is inimical with human nature and plain common sense. Such legislation includes, but is not limited to, the prohibition of gender-affirming conversion practices; the adoption of gender identification laws that facilitate transitioning to a gender, different from a person’s biological gender; inability or unwillingness of politicians to define a ‘woman’; unrelenting pressure to ban religion from the public forum; the adoption of free speech unfriendly legislation such as the proposed law to compel internet providers to police speech on their platforms; and, of course, the unrelenting zero emissions pursuit and the silencing of those who are climate sceptics. Really, the list of legislative abominations is unending.

Although these developments appear to be disparate projects, they do have one thing in common: they are all based on the assumption that humans possess the power to change ‘human nature’ developed over millennia. However, this assumption fails to recognise that the arrogation by social engineers and left-wing ideologues of God-like powers is futile. For example, how feasible is it for humans to transition to another gender? How could humanity hope to control the temperature on Planet Earth? And yet, Australia’s illiberal elites push their social engineering reform agenda without ever considering the natural limitations dictated by human nature.

The transgressions of Australia’s illiberal elite, to the extent they are incompatible with human nature, have resulted in a discernible deterioration of the nation’s fabric. This deterioration is visible in the fracturing of society into those who still believe in the proper role of humans, and those who usurp God-like powers. Although proponents of these transgressions may have been well-intentioned, the sustained and ongoing attacks on the integrity and cohesiveness of Australian society have blighted the nation and transformed Australia into ‘the unlucky country’ – which is also the title of our forthcoming book about Australia’s transformation from a ‘lucky country’ into an ‘unlucky country’.

The cumulative effect of the promotion and imposition of illiberal societal developments that disregards ‘human nature’ has been the growing disrespect for, and even repudiation of, the continuing importance of ‘natural law’ for a mature legal system. It is simply impossible to deny or underestimate the enduring relevance of natural law in the development of our legal system. This idea of natural law, which can be traced to the classical philosophy of the ancient Hebrew, Greeks, and Romans, through several Christian medieval writers, is enshrined, inter alia, in the English Magna Carta (1215), the UK Bill of Rights (1689), and the American Declaration of Independence (1776). People’s natural human rights, which derive from human nature, have thus a historical foundation, which has never been refuted, although it has been obscured in the passage of time.

Unfortunately, the principles underlying natural law, have been seriously undermined by the arbitrary actions of governments. During the last four years – but culminating in a turbulent 2023 – Australian governments have exerted powers over its citizens on a scale never previously attempted. Sometimes, especially during the Covid pandemic, governments oppressively controlled every single aspect of people’s lives: where they could go, whom they could meet, what they could do, even within their own homes. These intrusive measures created angst and discomfort among a compliant population, and it has done irreparable damage to Australia’s fabric.

Hence, the question is: what could be done to fight, or even to reverse, this inexorable slide into a Marxism-inspired leftist abyss that disregards ‘human nature’ and ‘common sense’?

The fundamental error of Marxist-inspired ideas is anthropological in nature. Personal freedom which detaches itself from objective standards, and consequently the moral duty to respect the basic rights of others, becomes narcissistic behaviour that is now carried to its illogical extreme; an autonomous form of ‘license’ that leads to unbridled self-affirmation and refuses to be limited by any requirement of the natural moral law.

There is no point looking to the legislative branch of government to seek relief from the oppressive and inexorable trend towards the defenestration of ‘human nature’. Instead, we need to rely on ‘common sense’ to protect humankind against the barbaric assault on our Western Civilisation. Some scholars argue that this fight-back requires a return to ‘natural law’ theory. However, it is challenging to rely on ‘natural law’ because our legal landscape is dominated by positivism as the prevailing legal philosophy. Although the rejuvenation of ‘natural law’ still offers the best prospect to successfully fight the present legislative abominations, it would certainly raise intractable questions regarding the origin of its basic legal principles (God-given or historically developed?). But, at least, it would make people reflect on ‘human nature’ and acknowledge its obvious limitations.

While the idea of natural law implies that the validity of law depends on its moral status, positivists claim that the main factor in determining the validity of law is whether the proper authority enacts such law. Positivists do not regard the immorality of a law as essentially relevant to its validity. According to the ‘Father of English Positivism’, John Austin, ‘The existence of law is one thing, its merit or demerit another.’

The revival of ‘natural law’ has been inspired by the views of Chief Justice Sir Edward Coke, who in Dr. Bonham’s case, decided in 1608, said that, if legislation is ‘against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void’.

Coke’s statement implies that it is problematic to consider legislation, regardless of whether it offends ‘common right and reason’, as the final arbiter of what people are allowed to do. This is because legislation that violates Australia’s natural law tradition often offends against rights that are deemed to be ‘inalienable.’ This view seems to have been accepted by some members of the High Court. For example, in Re Bolton; Ex Parte Beane, Justice Brennan admitted, ‘Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much of the accepted constitutional framework that their terms, if not their very existence may be overlooked until a case arises which evokes their contemporary and undiminished force.’ Justice Deane agreed with Brennan’s sentiment when he stated that these principles ‘are the fabric of the freedom under the law, which is the prima facie right of every citizen in this land. They represent a bulwark against tyranny’.

Often, social engineering legislation excessively interferes with the life, liberty, and property of the citizen. For example, emergency powers – eagerly adopted by Australian politicians during the Covid pandemic – imposed extra-constitutional measures that undermined the principles of equality before the law and the right of citizens to object to any form of medical treatment, including vaccine mandates. This imposition constituted a gross violation of the natural law, the ultimate goal of which is to protect citizens against the power of the State.

As noted by Joseph F. Johnston, Jr. in an article entitled Natural Law and the Rule of Law, ‘Many if not all of the basic principles that we usually include under the rubric ‘rule of law’ can be derived directly or indirectly from natural law sources.’ He bemoans the fact that ‘the connection between natural law and the rule of law, which formerly was so close as to amount to virtual identity, is largely neglected by the law schools and the legal profession’. First coined by Plato and later refined by Aristotle, the concept of the ‘rule of law’ was further elaborated by St Thomas Aquinas, who stated: ‘Once the government is established, the government of the kingdom must be so arranged that opportunity to tyrannize be removed. At the same time, his power should be so tempered that he cannot easily fall into tyranny.’ According to the late American legal philosopher Charles Rice, who taught at the University of Notre Dame, ‘Aquinas’ analysis is a prescription for limited government, providing a rational basis on which to affirm that there are limits to what the state can rightly do.’ His insistence that the power of the human law be limited implies a right of the person not to be subjected to an unjust law.

It is difficult therefore to estimate the extent to which our legal and political systems developed as a result of the use of such concepts as ‘natural law’, ‘natural rights’, and ‘the rule of law’. These concepts are inextricably connected to a particular way of thinking about law that, according to Justice Clarence Thomas of the US Supreme Court, is ‘far from being a license for unlimited government and a roving judiciary. Rather, natural rights and higher law arguments are the best defense of liberty and of limited government’. To ignore this fact results in a diminished understanding of the rule of law and principles that underpin it. Australians continue to do so entirely at their peril.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. 

Moens and Zimmermann are the authors of the forthcoming ‘The Unlucky Country’ (Locke Press, 2024)