Has it come to the point where it is imperative that we have a Bill of Rights as a bulwark against creeping arbitrary executive power and oppression as such protections as might exist are being steadily and stealthily eroded away supposedly for the public good?
The body of our assumed human rights and freedoms is being infected by a cancerous growth – an excrescence of statute law, delegated regulation, and arbitrary executive action. Much of this is enacted without due process or heeding adverse personal consequences. We succumb it is said for the larger good. But how is that measured? Has this decline crept upon us without our looking?
There is little doubt that the Covid pandemic has accelerated the process with public acquiescence. But like the frog in the slow boiling pot we won’t see the tipping point. We hear much about the rule of law. This does not mean due process. Even that is being sacrificed. It means in effect the rule of statute law which can mean anything a government would like it to mean. Think of Alice in Wonderland.
Decades ago Prime Minister Menzies assured Australians that they should not fear for their rights and freedoms. These, he said, were protected by the Common Law, a system of British justice evolved over the centuries embodying principle and doctrine imbued with the wisdom of jurists for the common good. This includes the principle of ‘natural justice’, the right to be heard in open court without bias. Secure in this belief Menzies opposed the adoption of a national Bill of Rights built into the Constitution from where it could not be displaced. The fact is that the present Constitution does not embody individual rights other that financial compensation for property expropriation and Section 92 on freedom of interstate movement – the latter widely ignored during fortress Covid-19. And in that regard there has been no coherent national approach to the closure of state borders or concern as to their personal and business consequences. The general prohibition on Australians leaving the country to pursue their interests abroad has the markings of a police state.
In so far as Common Law principles and doctrines might be superficially secured by statute they can be easily displaced as the statutes of one government can be overridden by another. Common law principles on the other hand are rarely overthrown in the moment. A consensus of judges to depart from established principles takes years to emerge in response to social change. A Parliament in the grip of dogmatic factions however faces no time restraints apart the fear of non-re-election. But if the public is not alert to a step by step erosion in its legal safeguards, matters may go too far for their reversal. Apathy and complacency due to executive deceit and falsehood are the enemies of democracy.
Has it come to the point where it is imperative that we have a Bill of Rights as a bulwark against arbitrary power and oppression? There have been enough personal stories to illustrate the risks from this trend which in themselves build pressure for a Bill, but if over time the media is blocked from revealing executive abuse that pressure will also abate.
Prime Minister Menzies lived at a time when there was wide consensus about values and standards in public life. Inexorably we live in increasingly authoritarian times.