If you believe you’ve got rights, you’re wrong

Rights, in the senses of rules that everyone else is legally bound to respect, come from constitutional instruments such as the American Bill of Rights, or the European Convention on Human Rights, or the Canadian Charter of Rights and Freedoms. Australia doesn’t have anything like that.

People have tried. Back in 1944 Labor under Prime Minister John Curtin put a proposal for freedom of speech to referendum; the Liberals under Robert Menzies opposed it furiously, and it went down 45% to 55%. Gough Whitlam and Attorney-General Lionel Murphy brought in a Human Rights Bill in 1973, but it didn’t get through before Malcolm Fraser brought Whitlam down. Another Labor attempt in 1985 was squashed in a hostile Senate.

In 1988 the Constitutional Convention brought out another list of basic freedoms, which in the teeth of Liberal panic-mongering was skunked in a referendum by the unprecedented margin of 30% to 70%.

We in Australia don’t have positive rights – all we have is permission, most of the time, to do anything the law hasn’t yet got around to prohibiting. Liberty in this country is a purely negative space, and it’s entirely at the mercy of squatters who may want to move the boundary markers when nobody’s looking – using, for example, the 94 national security laws the government has brought in since 9/11.

The trouble with all those attempts at reform is that most of the time most Australians think they have rights already, and the better-informed people who know this isn’t true want to keep it that way.

The problem with unwritten rights, though, is that unless your rights are written down there’s no way to get any general agreement as to exactly what they are, which is why we have fractious protests against COVID measures in Melbourne and Sydney. They’re not particularly large (a couple of thousand people, where the anti-Iraq War protests of 2003 brought out a million), and they’re peculiarly unconvincing, bringing together as they do an unholy mixture of unrelated and incompatible conspiracy theorists. But they do demonstrate that many people now regard the word ‘rights’ as a Harry Potter spell to overcome all forms of opposition.

That’s not how it works.

There’s room for argument, certainly, about which COVID restrictions are worth the pain and which aren’t, or about where the line should be drawn between not enough and too much. But this isn’t what the anti-vaxers are doing. They’re casting the fight in terms of absolute rights – and, let’s face it, calls for rights sound best when they’re least selfish. There is a reason why neither the Bill of Rights nor the Charter of Rights and Freedoms – nor Plato, nor Thomas Jefferson, nor John Stuart Mill, nor Menzies – say anything about the right not to mask up, and the reason is that it’s the stupidest demand in the history of protest.

It’s terrible that people are losing their jobs (and the remedy for that is to demand that the government renew and extend JobKeeper – without the rorts). It’s terrible that children are losing their school socialisation time (everything else can be caught up later). It’s terrible that we can’t hug our friends. It’s terrible that we’re missing out on art and drama and coffee. But.

One American in 500 is dead from covid. If we’d had the freedom from constraint that most Americans or British enjoy we’d have had the responsibilities that go with them, such as living with something like 50,000 Australian deaths. That’s two and a half Port Arthur massacres every day for 18 months. Your rights have to be fitted in around my oxygen cylinder.

In Australia, you can’t claim that our rights are given to us by God – partly because we don’t have any rights, and partly because there isn’t a God. There is such a thing as the community, though, and here the basic question is ‘Who is my neighbour?’ Whose needs ought to constrain my desires?

Real rights, legal constructs, are thrashed out across a community, shifting as understandings develop and expectations change, and if we’re going to establish a legal foundation for them – as we should – we’ll have to agree to ignore protesters whose slogans bear as much relation to a philosophy as dandruff does to deep thought.

We need to take rights seriously. The demonstrators risk making the entire concept laughable.

Denis Moriarty is group managing director of OurCommunity.com.au, a social enterprise helping Australia's 600,000 not-for-profits.