‘Missing in action’: What happened to the civil liberties movement?

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‘Missing in action’: What happened to the civil liberties movement?

By Michael Koziol

On March 19, 2020, when the Morrison government said it would shut Australia’s international borders, Treasurer Josh Frydenberg was grilled on how long the gates would stay closed. Six months or more, the Treasurer said, although he stressed it would depend on medical advice and the borders wouldn’t open “until it is safe to do so”.

On Tuesday, Frydenberg delivered a budget which assumes the border will stay more or less shut until the middle of next year, which would be 27 months. He was speaking at a time when Australia had done something almost unthinkable – stopping even its own citizens from coming home from India with the threat of jail.

Border closures have prevented most Australians leaving their own country and left thousands stranded overseas.

Border closures have prevented most Australians leaving their own country and left thousands stranded overseas.Credit: Getty Images

That policy outraged many, including Coalition MPs and commentators on the left and right alike. Sacre bleu: News Corp columnist Andrew Bolt and the libertarian Institute of Public Affairs were in sudden agreement with Labor, the Greens and a slew of human rights groups.

But the policy is hardly without precedent. There has been a year’s worth of precedents; the block on flights from China, the outward travel ban, lockdowns of non-essential services, limits on private gatherings and public protests, state border closures, mandatory mask rules, bans on singing and dancing, five-kilometre bubbles, curfews and capping outdoor exercise at an hour a day.

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Broadly speaking, Australians supported these measures because they were based on health advice and regarded as necessary to contain the pandemic, which they did. Like New Zealand, Australia dodged the wall of death that hit the US, UK and many other nations, and in many respects is the envy of the world. Governments were given a lot of slack to not just flatten the curve but eliminate COVID-19, and civil liberties were an acceptable casualty.

That’s a judgment people are entitled to make. But what of the civil libertarians and rights organisations whose job – whose raison d’etre – is to fight for individual freedoms against state power? Did they abandon the field? Or have they been fruitlessly shouting into the void?

The former, according to IPA executive director John Roskam. “The civil liberties movement by and large has been missing in action,” he says. “They have ceded to the government far too much power which is not going to be given back.”

Roskam doles out the blame liberally for this, including Coalition ministers and MPs who would complain to him privately about lockdowns and restrictions but refuse to speak out in public.

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“There was very grave concern at the highest levels of the federal government,” he says. “But to maintain the solidarity of national cabinet that was never expressed publicly. I suppose someone ringing me up to have a whinge is better than nothing.”

Roskam says the come-to-Jesus moment on India is better late than never, but only highlights why advocates for civil liberties should have been louder and more aggressive from the start. “If you do not challenge things at the beginning, it becomes very hard to challenge them at the end. This is how civil liberties are eroded.”

“Shouting into the void”: Pauline Wright spoke up as president of the Law Council but says politicians didn’t listen.

“Shouting into the void”: Pauline Wright spoke up as president of the Law Council but says politicians didn’t listen.Credit: Alex Ellinghausen

But Pauline Wright, president of the NSW Council of Civil Liberties, says rights advocates were actually very active, even if they were rarely successful in blocking the extremes of government intervention. “It was shouting into the void,” she says.

“Exit bans from a democracy is pretty extraordinary. We’ve issued a number of media releases saying, ‘hey, this is really bad’. Here we are preventing our citizens from leaving when what we should be doing is allowing them to leave but having proper quarantine facilities when they get back. It’s an absolute outrage. We’ve said all of that, but to the void.”

Wright took a year off last year to be president of the Law Council of Australia, which was also a key player in the discourse over civil rights and COVID restrictions. She accepts rights have to be balanced with public health, “but there’s a fine line”. Leaders crossed that line during COVID and they know it, but don’t care.

“Their response is civil liberties have to be sacrificed for the sake of the greater good which is keeping everybody healthy through COVID,” says Wright. “That’s the politicians’ response.”

One quandary for civil libertarians during the pandemic has been how far to stick their noses out when the restrictions are popular and opposed by anti-vaxxers, COVID conspiracy theorists and other fringe political agitators. They didn’t want to appear allied with fringe-dwellers or get crucified on Twitter and stand accused of wanting to kill the nation’s grandmothers.

Law professor Sarah Joseph said the lack of empathy for Victorians locked out of their own state was a low point.

Law professor Sarah Joseph said the lack of empathy for Victorians locked out of their own state was a low point.Credit: Jason Robins

Sarah Joseph, a professor of human rights law at Griffith University and a former director of the Castan Centre for Human Rights Law at Monash University, is stunned by the vitriol directed at people who stand up for civil rights. She points to the “lack of empathy” for Victorians whose government locked them out of their own state over Christmas and New Year – especially the ominous “you were warned” message from supporters of the Andrews government on Twitter.

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“That is quite accusatory and chilling,” she says. “It also gives the measure a free pass without consideration that many people were in rural NSW, which had no COVID, being told to return to Melbourne, which at the time had COVID.”

Joseph identifies a structural problem with how Australia deals with laws and civil liberties.

“We don’t have much of a human rights culture, unlike, for example, Canada and America and Europe,” she says. “In one respect that might mean we are much more amenable to restrictions on rights which are genuinely altruistic and good for the community such as major lockdowns and border closures, which have in the past served us well.

“But what worries me is I think we have lapsed into a certain complacency where measures which I believe to be disproportionate are just sort of accepted without much question. We’ve grown very attached to these short sharp lockdowns which so far have not uncovered a single case of COVID that was not already in isolation.

“That’s a difficult environment for human rights arguments to flourish. I think the general lack of human rights literacy in Australia can make it very hard for people to be receptive to human rights arguments in this sort of situation.”

There were certainly measures on which advocates pushed back – and sometimes won. Hugh de Kretser, executive director of the Human Rights Law Centre, points to events in Melbourne related to that city’s extraordinarily harsh lockdown last winter resulting from systemic failures in the state’s hotel quarantine system.

Plans to give “authorised officers” the power to pre-emptively detain people who might breach a public health order were dumped. The law centre also strongly condemned the Andrews government for its hard lockdown of 3000 public housing residents – later found by the Victorian ombudsman to be a breach of human rights – and was critical of excessive and discriminatory policing in Victoria. The state issued about 40,000 COVID-related fines compared to 2000 in NSW.

“We’re not afraid to raise issues that need to be fixed simply because they might be unpopular,” de Kretser says. “There have been clear examples where governments have gone too far.”

Hugh de Kretser says Melbourne’s public housing tower lockdown was one of the darkest moments of the pandemic.

Hugh de Kretser says Melbourne’s public housing tower lockdown was one of the darkest moments of the pandemic.Credit: Getty

Greens councillor Rohan Leppert, whose electorate includes the North Melbourne towers, says Daniel Andrews got away with those infringements on rights because he is nominally left-wing.

“In Victoria with a nominally left of centre government our civil liberties are being eroded in a way that the electorate at large is being very permissive of,” he says. “That worries me. Historically these are always the conditions under which civil liberties are eroded.”

De Kretser also pointed to “serious problems” with the Morrison government’s exit ban and the flight caps into Australia that make it so difficult and expensive for residents to return home. He is closely watching a challenge that has been brought before the UN Human Rights Committee. But we are somewhat hamstrung by our lack of a charter of rights.

“Australians have fewer protections around their rights as a citizen to leave and return than people in equivalent democracies,” de Kretser says. “That means that there are fewer options for people to challenge governments when they overreach.”

Another problem for civil libertarians is that the loudest voices are not always the most sensible, nuanced or organised. It is only now that a legal challenge is being brought in the Federal Court against the outward travel ban by small right-wing think tank LibertyWorks, whose chairman is Liberal Party identity Warren Mundine.

IPA policy director Gideon Rozner appeared in a controversial video in early April 2020 calling for lockdowns to end.

IPA policy director Gideon Rozner appeared in a controversial video in early April 2020 calling for lockdowns to end.Credit: YouTube

The IPA was out of the blocks very early against restrictions with a widely-condemned video released on April 4, 2020, less than two weeks after non-essential services such as restaurants and pubs were shuttered, demanding: “We must begin to end this lockdown now.”

Roskam says it was the most successful video the IPA has ever produced. But he admits it may have been too much too soon – a “boy who cried wolf” mistake that blunted their firepower later on.

“I think that’s a very perceptive and fair comment,” he says. “I would regard all of our comments as appropriate and legitimate when we made them at the time. But I know exactly what you mean and I don’t disagree because that’s how we were perceived. Related to that was the perception that anyone who opposed the more draconian restrictions were ‘let it rip’ herd immunity-type people, which was absolutely not the case.”

Asked to name people who did stand up and fight, Roskam comes up with a handful: Melbourne-based barrister Greg Barns, writer Christos Tsiolkas, business leader Tony Shepherd and CSL chairman and former chief executive Brian McNamee. “But not many others,” he says. “Maybe [international human rights lawyer] Geoffrey Robertson said something, but I didn’t see it.”

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In fact, Robertson told the Herald in November the caps on flights into Australia were a “total failure of government” and could breach international law.

“Civil liberties may be necessarily curtailed, but what is important is that they are curtailed fairly where you don’t have a privileged class and they are curtailed for as little time as possible so that the powers of government are permanent and not temporary,” Robertson said.

That’s something with which Wright absolutely concurs and believes will crystallise as more and more Australians get vaccinated and grow frustrated with their inability to leave the country.

“I feel people are more conscious of how precious their civil liberties are but at the same time they are willing to have those restricted in a proportionate way while there’s a crisis on,” she says.

“At the moment I think most Australians are reasonably satisfied, except if they’re that 30 per cent of Australians who’ve got relatives overseas. As soon as it seems that the crisis is over, I think that balance will shift and they’ll say, ‘nup, nup’. If the travel bans outlast the crisis, people will be up in arms.”

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