We are both longstanding sceptics about the desirability of bills of rights. We have long argued that when you buy a bill of rights all you buy is less democratic decision-making together with the policy druthers of unelected judges and the lawyerly caste. As Alexander Hamilton, Jeremy Bentham and many others have noted, living in a society with plenty of individual freedom and wide-ranging civil liberties ultimately depends on the voters and their representatives. If the citizens are happy to give up their freedoms, they’ll soon be gone regardless of seven unelected ex-lawyer top judges interpreting some bill of rights. And if the citizens aren’t prepared to lose their civil liberties they don’t need the judges. Meanwhile on all sorts of border line cases you’ll find the judges at odds with the legislators and the bill of rights weighting things in favour of the former.
With all due respect to the usual human rights brigade in this country’s law schools and lawyerly organisations, all our views about the undesirability of bills of rights are being proven correct as we watch the response to this corona virus outbreak. First off, the two most heavy-handed states in terms of infringing on civil liberties and citizens’ freedoms are the only two in this country with bills of rights – Victoria and Queensland. Victorians are experiencing the longest and harshest pandemic lock down of any country on earth. Most so-called fundamental rights has now been effectively stripped from them. Their right to liberty were removed as a result of the 23 hour home detention; their freedom of assembly is non-existent (they can walk with only one other person); the right to education has been violated by the six month school closure; 1.5 million people on JobKeeper trashes the right to work, and compulsory face masks violate the freedom of expression.
If all of the above isn’t bad enough, the incredibly heavy-handed Premier of Victoria has just introduced a COVID-19 Omnibus (Emergency Measures) Amendment Bill into their Parliament that comes close to being tyrannical, conferring extraordinary power on the Secretary of the Dept. of Health and ‘authorised officers’.
Meantime, the Victorian Charter of Rights, the judges who oversaw the George Pell fiasco, plus the usual suspects who jump up and down whenever a Coalition government tries to keep the borders secure, have been next to silent. Put bluntly, this human rights industry, which over a decade ago burdened Victoria with the first human rights charter in Australia and recently rammed one through in Queensland, has meekly surrendered on the freedom of expression front. Their ruthless, hypocritical silence is deafening. For years they have squealed at the most minor expansions of police powers to defeat the terrorist threat. When government proposes enhanced powers to arrest terrorists and scope to place them under watch by means of control orders and short-term detention without trial, the human rights brigade has exaggeratedly labelled these as threats to our democracy.
But now that six million innocent Victorians have been totally stripped of their physical and psychological dominion all of the human rights warriors have suddenly imposed gag orders on themselves. If a Liberal government did this, human rights lawyers would have been urging for a government coup.
It gets worse. There is now significant evidence that lockdowns and the iron-heel response is the wrong approach – and we mean wrong according to world’s best practice based on the accumulated evidence. This, at any rate, is the view of Swedish epidemiologist Anders Tegnell, Professor Michael Levitt at Stanford, Professor Sunetra Gupta at Oxford and many others who are far more credentialed (if that is the game Mr. Andrews wishes to play) than our Chief Medical Officer types.
Take Sweden. It has about double the population of Victoria. It is dealing with the same viral problem. Yet its citizens have enjoyed the full measure of freedom throughout the crisis. The Swedes have not panicked, nor have they locked down. Instead, they made evidenced-based decisions. Their schools never closed. After a spike in deaths (half of which were in nursing homes) in the first half of the year, the Swedes have been experiencing fewer daily deaths than in Victoria. Oh, and with no inroads at all into civil liberties and individual freedoms and no trail of ruined businesses in the private sector, 99.998 percent of Swedes under 60 did not die of COVID-19 (and 99.95 percent of all Swedes). So that’s the control outcome — what would happen without the police brutality, the lockdowns, the heavy-handedness of Premier Andrews’ gross incompetence.
The most depressing aspect of the Victorian lockdown is how readily Victorians have given away their rights. There has effectively been zero counter-voices making the argument that the lockdowns are an undue infringement of civil liberties. The few Victorians who dare express such views are disparaged and shamed; labelled “tinfoil hat-wearers” and “batshit crazy” by police. Those more unkind than we might surmise that a fanatical belief in human rights has weakened the cognitive abilities of the community to coherently assess whether limitations on our freedoms are appropriate, sincerely adopted to achieve their objective. We are both shocked that a recent poll indicated more than three-quarters of Victorians are content with the Andrews’ government restrictions. Many Victorians appear to be quite content to continue to live in the world’s worst lockdown with fewer civil liberties than just about anywhere.
When Victoria entered its state of emergency it had 59 active COVID-19 cases. Today, six months on and with liberty despoiled and talk of imprisonment without charge or trial about to go before the state’s upper house, almost 800 lives have been lost. Yet six months of abysmal governmental failure to accomplish anything positive other than fuelling the COVID-19 curve has not in the slightest reduced the inclination of many Victorians cheerfully to surrender their precious rights without a whimper.
Sure, a genuine catastrophic threat — such as a world war, which could only be defeated by supressing most individual choices and freedoms — is one thing, but COVID-19 is far from that. There were far fewer inroads on liberties during last century’s two great conflicts.
Know what? Worldwide, basically zero cases of COVID-19 have been contracted through non-contact outdoor sport; through people walking outdoors in suburban streets or at non-congested outdoor work activities. Yet nearly 100 per cent of these activities have been outlawed in Victoria. This is sheep-like behaviour, nothing less.
Freedom is always to be preferred to non-freedom unless there is a sound reason for its limitation. It is beyond regrettable that Dan Andrews’ rationality curve has become so suppressed that he is the only leader in the developed world exercising his misguided right to needlessly carpet bomb a whole economy and the basic freedoms of all citizens.
James Allan, Garrick Professor of Law at the University of Queensland, is the author of Democracy in Decline. Mirko Bagaric is the Dean of Victoria’s Swinburne University Law School