It is sorely tempting to accept Professor Mirko Bagaric’s thesis that Australians would not benefit from a Bill of Rights Your Right Not To Have A Bill of Rights 

 

The good Professor’s smooth but superficial arguments in support of his thesis range from the simplistic contention that we are already the happiest people in the world (whatever that is supposed to signify), through to an argument that our politicians can’t be trusted with the task anyway. 

 

But his capstone argument appears to be that there is no point in us having a Bill of Rights, as our politicians as ‘lawmakers’ would simply find ways to subvert those rights!!!  

 

How come we don’t apply this kind of wrong-headed logic to all of society’s laws & regulations? 

 

We have laws against murder, rape, speeding, stealing & now even sedition. The fact remains that people break those laws every day but we don’t abolish the laws when it happens. Quite to the contrary, our society is founded on the principle of the rule of law: it is a central organising principle of our democracy. 

 

It would seem that we are being asked to ‘exempt’ our politicians from this principle, simply because they can’t be trusted to respect it. This seems to me to be a fairly strong argument for institutionalising protection of the freedoms we allegedly enjoy & are fast losing? 

 

In essence, Professor Bagaric is arguing that we should just ‘trust’ our political masters to make all the necessary decisions required to secure & protect our democratic freedoms & keep us safe: it’s called totalitarianism.  

 

Such an argument ignores the fact that our government is not necessarily concerned with protecting our interests. Indeed, quite to the contrary, as Murray N. Rothbard argues in his paper The Anatomy of the State, the interests of government & the people are most often opposed & unless the people ensure that government is kept in check, the people will wind-up being oppressed by the government, as it seeks to serve its real constituency: the sectional interests that it serves. 

 

Indeed, given the recent propensity of the federal & state governments to restrict our democratic freedoms, there would seem to be an urgent need to have our fundamental rights enshrined in law.  

 

We have moved from a society where the rights of the individual to freedom & liberty could only be interfered with if there was prima facie evidence that an offence had been committed, to a society where a ‘suspicion’ that the law is being broken is enough to permit secret search, seizure & imprisonment without charge or legal representation & where it is likely to be illegal to reveal that detention, even if it was wrongful. 

 

We have introduced laws that do away with our right not to self-incriminate - laws that will sanction our detention without charge & the use of hearsay evidence - indeed, even the right to know what it is we are suspected of having done, the right to face our accusers & even the right to a presumption of innocence. 

 

We have weakened the rule of law by strengthening the powers of the Police & Intelligence Services to act independently of the judiciary & to act arbitrarily & in secret. We were a society where no-one, not even the Prime Minister or the Attorney-General were above the rule of law. We are becoming a society where the rule of law is being undermined or rendered irrelevant. 

 

Professor Bagaric argues that the arbitrary erosion of these rights is justified because the majority approve. But surely rights are most critical to the protection of minorities & rights denied to any individual are rights ultimately denied to us all.  

 

Sixty years ago, the German people were content to accept the rise of totalitarianism, believing as they did that oppression was ‘selective’. But after the Communists went, so to did the Jews, the Gypsies, the intellectuals & the rest: fear & oppression consumed the entire nation. 

 

Right now in the US (the self-appointed protector of freedom & democracy in the world), the only thing that stands between the demise of democracy & the emergence of totalitarianism is the US Constitution, the Bill of Rights & the preparedness of the American people to protect those institutions & stand-up for their freedoms. I wonder what the people of the US would make of Professor Bagaric’s claim that rights documents are ‘anti-democratic’? 

 

Professor Bagaric argues that those who worry about the ‘slippery slope’ worry needlessly: that we can trust our politicians to do what is right.  

 

He is probably too young to remember the infamous era of the Special Branch units of the State Police Forces & their so-called “intelligence” activities that acted to corrupt & undermine our democratic institutions. He may not know about the secret ‘targeting’ of minorities by these units, including homosexuals & even the murder of one of his fellow intellectuals in Tasmania? 

 

Should we trust John Howard, Phillip Ruddock, Kim Beazley, Morris Iemma or Steve Bracks to protect our democratic rights?  

 

Not this little black duck. 

 

And even if we did, what of those who might come later?