Former UK Supreme Court judge Jonathan Sumption argued from near the start of the Covid pandemic that what democratic governments were doing to their citizens in the way of lockdowns, mandates, closing businesses, restricting travel and visiting sick relatives, weaponising the police – the list goes on and on – constituted the greatest infringements on civil liberties in the West in the last 300 years. I mention that because from March 2020 I was on the record in this newspaper, in The Spectator Australia and in outlets around the world, arguing precisely the same thing. Now readers can agree or disagree. Likewise, readers might think the costs were worth it for the benefits (though I think not, not with the data out now, including Sweden having the OECD’s lowest cumulative excess deaths from the start of the pandemic to now while we in Australia are currently running at 15-17 per cent excess deaths).

But one thing that is beyond debate is that the self-styled human rights lobby said not a peep about this government heavy-handedness. Nada. Nothing. Zero. Not the usual lawyerly caste that finds rights-infringements everywhere, many of microscopic proportions. Nor any of the eight members of the Australian Human Rights Commission (AHRC) who made not a single condemnatory comment about Dan Andrews’ authoritarianism, about former Prime Minister Morrison’s preventing citizens from leaving their own country, about any of the myriad intrusions into our civil liberties over two years. And for what it’s worth all eight, the President and the seven Commissioners, were appointed by the Coalition – even the so-called Freedom Commissioner. All of them.

I start this article with that background because the AHRC has recently decided to wade yet again into the bill of rights debate in this country. (Did I mention that all eight were appointed by a political party that claims to be overtly against a bill of rights?) Actually, ask around and you learn that the seven Commissioners and President are not unanimous on this initiative. It is mostly being pushed by President Rosalind Coucher. It recycles all the tired and wrong-headed old arguments in favour of handing power via a bill of rights to unelected judges over our elected Parliamentarians; all of them churned out back when Labor was last in power under Rudd-Gillard-Rudd. They were wrong then and they are wrong now. Buy a bill of rights, statutory as well as constitutionalised, and all you are buying is the druthers and policy-preferences of the lawyerly caste from which the judges are chosen. This model even moots social and economic rights. The proposal is as bad as you’d expect under Rudd and Gillard, though possibly your expectations of what AHRC Commissioners appointed by a Liberal/Coalition government might desire would be different from this. (Remember Douglas Murray’s criticism of all anglosphere conservative political parties, that they are congenitally unable to appoint anyone who shares the views of their core voters to anything.)

But here is where it gets galling to the point of rank hypocrisy. In the position paper announcing this initiative and its launch at the law firm Gilbert and Tobin (where else I muse?) the Commission (or perhaps just the President of the AHRC) had the gall to suggest a bill of rights might have helped protect civil liberties during the pandemic. Are you kidding me? First off, look at all anglosphere countries with potent and even constitutionalised bills of rights – so Canada, America, and Britain (with a strong statutory model). There is not one single example anywhere of a bill of rights being used by the judges to lessen or eliminate any of the myriad governmental pandemic inroads on civil liberties. Not one example anywhere! To suggest that a bill of rights would have helped flies directly in the face of what is known in the philosophy of science as ‘the facts’. (There are a few examples in the US of state courts using old-fashioned administrative law principles to say that some executive actions taken during the pandemic were ultra vires or beyond the power of the conferring statute.) That line of attack has a chance because it leaves the elected Parliament with the option of passing a new, more delegatory statute. But in times of panic (especially when the judges are panicking at least as much as anyone else) it is folly to think a bill of rights will help. I repeatedly doled out that advice throughout the pandemic to those against lockdowns who thought a trip to court would be a magic bullet and help. It didn’t in any jurisdiction with a bill of rights.

So this suggestion by the AHRC is as audacious as it is wrong on the facts – ‘during the Covid pandemic, there was a lack of clarity about rights of Australians and how to balance them with public safety measures. A Human Rights Act would have helped navigate those challenges’. No, it would not have helped. What would have helped was an AHRC President who could summon up the courage to speak up about the many inroads on our civil liberties in the way Lord Sumption did in Britain. But instead of the slightest criticism of the police thuggery in Victoria, of the idiocy and heartlessness of many of the pandemic rules, of anything or anyone, we get this after-the-fact attempt at redemption. The problem is that a bill of rights would not have helped (again, see every democratic country on Earth) and meantime it brings it with a massive empowerment of the judiciary and of the lawyerly caste.

This is hypocrisy on steroids I’m afraid. And it’s combined with the tired old prescription of a bill of rights so beloved by the lawyerly left of the Labor Party.