More surprising in the 1988 case was the fact that it was religious leaders – clergy and bishops – who spoke out against including this limited bill of rights in the constitution on the grounds that it was a fiendish, if somewhat obscure, plot to deprive us of freedom of religion. At that point, sensible reformers were ready to give up. Jamie Gardner, a member of the executive of the Victorian Council for Civil Liberties (called Liberty Victoria these days), said to the committee (apropos the Howard government’s bizarre anti-terrorism laws): ‘How do we get around Howard’s great discovery that “no one cares” about human rights? How do we get people to care?’

James Waghorne, whose PhD is on the Australian Council for Civil Liberties, and Stuart Macintyre, professor of history at the University of Melbourne, have looked into the archives of civil liberties defenders, mainly in Victoria, and have produced a dismal answer to Gardner’s question. Civil liberties is generally regarded as an esoteric, arcane preoccupation of malcontent lefties. There have been a few civil liberties activists from the conservative parties over the years, but it seems that their participation hasn’t fooled anyone.

In December 1935 a group of businessmen, lawyers, writers, and artists met in Melbourne, with a shared ‘anxiety’ about governments’ tendency to suppress the expression of hostile opinions. They formed the Australian Council for Civil Liberties (ACCL) to give a voice ‘to those people from all parties who believe that social progress may be achieved only in the atmosphere of liberty’.

In the absence of any constitutional guarantees to free speech, assembly, or association, it was inevitable that the active program of the ACCL and its offshoots in other states would be ad hoc – always focused on injustice in particular cases, righting wrongs one at a time, rather than on the defence of a constitutional bill of rights, as the American Civil Liberties Union could do.

Voluntary organisations rely on the energy and commitment of their most passionate members to keep them together and active. For the first decades of the ACCL, that person was labour historian and writer Brian Fitzpatrick. Reliance on one driven individual means that things get done that would not otherwise get done, but it also means there is a danger that the individual will overreach his authority, speaking as the representative of the organisation to its embarrassment. The dominance of one individual also means that, when his energies or interest flag, the organisation becomes moribund. Fitzpatrick fitted the type, and the ACCL was always in danger of becoming a one-man show.

After the war, when Labor was in government, the Council was at its low point, content to allow what seemed to be a friendly administration to govern by regulation, free of criticism. Cold War anti-communist hysteria gave civil libertarians a few cases in which to get involved, but by the 1960s it was obvious that something new was needed. Under the leadership of lawyer John Bennett and Beatrice Faust, the Victorian Council for Civil Liberties (VCCL) was formed.

The problem of the energetic but presumptuous secretary re-emerged when Bennett, representing himself as the secretary of the VCCL and appearing to speak on its behalf, began to ally himself with Holocaust deniers. For civil libertarians, this caused some conflict, which seems to have been resolved along the lines that Bennett could be free to say what he liked, but not on VCCL stationery. Then began a battle for the assets and membership list of the VCCL between Bennett and a group of reformers.

Bennett made one valuable contribution to the discussion of civil liberties. He published a booklet Police Powers and Citizens’ Rights (later to be published as Your Rights). Bennett assumed that most people, confronted with police or bureaucratic intimidation, have no idea what their, admittedly limited, rights are. It was, in effect, a guide to standing up to the bullies. The booklet, in various editions, has had wide circulation, but recent editions have included contentious material relating to Bennett’s Holocaust-denying enthusiasms.

Eventually, control of the VCCL was wrested from Bennett, and a reformed organisation with a succession of highly esteemed presidents, mostly lawyers, has made an important contribution to discussion about and protection of civil liberties in Victoria. However, the organisation’s program is still, inevitably, ad hoc, arguing against injustice on a case-by-case basis. Sometimes it is not at all clear on which side civil libertarians should place themselves.

The VCCL members agonised over the case of Garry David. David was a mentally ill prisoner who had served his term for armed assault and was due for release. The government proposed new legislation to prevent his release on the grounds that he was still a threat to public safety. The legal principle was clear – punishment should only be imposed after an offence has occurred. To incarcerate a person indefinitely for crimes not yet committed but that he might commit in the future has a whiff of totalitarianism about it. On the other hand, when all considered opinion is that the man is a menace, is it responsible to set him free?

In the end, the Council took the position that institutionalised persons should be helped to adjust to the world outside rather than punishing them for what they might do in the future. In other words, keep them locked up, for everyone’s good, but don’t call it punishment. Hair-splitting perhaps, but this case would tax Solomon.

Civil liberties are under threat on so many fronts that defence seems futile. Autocratic politicians, police forces that run massive ‘communications’ departments to influence public opinion and members of parliament, public indifference to abuse and suspicion of reformers, and, more recently, the privatisation of what were once public utilities and services means that those who presume to authoritarian rule have little to fear from groups of volunteer advocates and critics.

Past optimism that the common law provided defences against abuse of executive authority has given way to widespread pessimism, particularly in the face of the savage attacks on civil rights by the Kennett government. ‘Commercial in confidence’ became the catch-all justification for denying citizens the right to know what was going on at the privatised grand prix, freeways, prisons, water works, and utilities. The Brumby government enthusiastically extended the powers of corporations against citizens, even conceding to companies powers previously reserved to the police. And it was all done with barely a peep from the public. Jamie Gardner was right: how do you defend civil liberties when no one cares?

Read Liberty: A History of Civil Liberties in Australia if you don’t mind a touch of alarm and despondency.