Australia Is the Canary in the Coal Mine of Eroding Liberty

Without a Bill of Rights, the land down under quickly goes where America may eventually follow.

Over the weekend, Australians protested against a new round of lockdowns imposed to curtail the spread of the latest COVID-19 variant. Police arrested dozens of participants, vowed to hunt down more, and threatened mass arrests in the event of future acts of dissent. It was a chilling reminder of how far a nominally free country can fall when the public panics and officials see opportunity to expand power.

"Anger is growing in Australia as 13 million people – about half the population – endure fresh lockdowns to quash Covid outbreaks," the BBC reported last week. "A third state went into lockdown on Tuesday. Stay-at-home orders are now in place in South Australia, Victoria and parts of New South Wales."

"You must stay home," the government of New South Wales, where Sydney is located, starkly commands residents of the city. "Only leave your home if you have a reasonable excuse."

Unsurprisingly, those exhausted by a year-and-a half of restrictions on travel, commerce, and other forms of human activity took to the streets. Thousands of protesters flooded into Sydney to express their dissatisfaction with restrictive government policies. They were met with a heavy police presence and dozens of arrests—and threats to round up anybody who returns.

"There is some information on the internet at the moment about a potential protest this Saturday," huffed Michael Fuller, the Police Commissioner of New South Wales. "You will be arrested and prosecuted. The community has spoken about that behavior. The Premier has spoken about that behavior and it won't be tolerated again."

While the protest featured some violence (as did similar demonstrations elsewhere in the world) officials made clear that the behavior they won't tolerate is public dissent. Civil liberties may have a place, the powers-that-be suggest, but they must give way to more important concerns.

"Covid-19 has given rise to extraordinary emergency powers that would previously have been unacceptable to Australians," Lydia Shelley and John Coyne of the Australian Strategic Policy Institute warned earlier this month about the need to better balance civil liberties with security priorities. "Australia is already conducting secret trials behind closed doors and allowing law enforcement raids on journalists' homes and on our national broadcaster," they added about developments predating COVID.

"A good 18 months into the pandemic, the nation is still trapped in April 2020," agrees James Morrow, federal political editor for Sydney's Daily Telegraph. "Australians need permission from the federal government to leave the country—applications succeed about half the time—and Australia's states throw up their borders against one another at the slightest hint of trouble."

What's remarkable is how quickly Australia has fallen. Just months ago, as reports from The Economist, Freedom House, and the University of Gothenburg's V-Dem Institute tracked the eroding health of liberal democracies in recent years, accelerated by authoritarian pandemic policies, Australia seemed to be holding on more effectively than countries including France and the United States. Admittedly, it wasn't so much swimming upstream as losing ground more slowly, but that was something.

Recently, though, Australia's decline has accelerated with remarkably little opposition. The Sydney Morning Herald even ran a piece headlined: "'Missing in action': What happened to the civil liberties movement?" about the tepid pushback against pandemic restrictions.

"We don't have much of a human rights culture, unlike, for example, Canada and America and Europe," Sarah Joseph, a professor of human rights law at Griffith University, told the newspaper in explanation.

"Australia also has no tradition of liberty in a sense Americans might understand, and appeals to freedom are looked at suspiciously," confirms Morrow.

One problem is that Australia has no Bill of Rights to which a liberty-concerned minority can turn when politicians push restrictions on freedom that enjoy at least temporary popular support, as they have in the United States as well as Australia. Some Australians even boast about that absence.

"The essence of my objection to a Bill of Rights is that, contrary to its very description, it reduces the rights of citizens to determine matters over which they should continue to exercise control," former Prime Minister John Howard told an audience in 2009. "I also reject a Bill of Rights framework because it elevates rights to the detriment of responsibilities."

True, constitutional protections for rights shield individuals from majority preferences—which is their whole purpose. In the U.S. during the pandemic, that has meant courts invalidate lockdowns, eviction moratoriums, and restrictions on private schools, even when a panicked public latches on to promises of safety. That's important partially because authoritarian dictates make trade-offs that many people wouldn't choose for themselves, and also because such impositions often prove to be ineffective. 

Nor is this the first time protections for liberty have taken a turn for the worse in the land down under. As mentioned by Shelly and Coyne, Australian Federal Police raided media offices in 2019 after a series of embarrassing stories about military misconduct and domestic surveillance. The government also holds some trials in secret under the cloak of national security.

 In 2018, the country's government gained the power to force access to encrypted communications and even to compel private companies to build in back doors. Anybody planning a new anti-lockdown protest via email or text messages should keep in mind that Big Brother might be watching.

"The truth is that, without constitutional guarantees, the measure of our freedom of expression has become that which remains after all the laws that restrict the right have been taken into account," Gillian Triggs, president of the Australian Human Rights Commission, noted during a 2014 Free Speech Symposium.

None of this should be taken as grounds for complacency on the part of Americans who want to pretend that liberty is more secure here. The United States might have stronger constitutional protections for liberty, but that only slows the decline if the culture embraces authoritarianism—it's not an absolute barrier. Pandemic restrictions are popular with much of the public here, too. The surveillance state is alive and well in America. And the health of liberal democracy in our country has eroded in recent years as Americans turn against each other.

Australia is suffering a surge of authoritarianism, in part because of its lack of constitutional protections for liberty. But developments down under may be showing where America is going.