Elections are vital for a thriving democracy but we also need rights. These are detailed in The International Covenant of Civil and Political Rights to which Australia is a party. It is supposed to guarantee our rights of political participation, no detention without a fair trial, and above all the rule of law for all citizens.

A fundamental tenet of the rule of law is that laws should apply equally to all people at all times, whether they are refugees, bike club members or religious minorities and that no-one should be above the law, not the prime minister or the queen, and certainly not highly secretive security forces.

When we lose sight of the equal application of the law to all people, we enter very dangerous territory, where refugees can be concentrated into camps and detained without court processes, where particular people can’t associate with their family or friends because of a club they belong to or where secret police have the power to literally ‘disappear’ people and it is unlawful to raise the alarm. Yes, this is Australia I’m now describing.

The slippery slope from democracy to totalitarianism may (or may not) be paved with good intentions, to fight crime and terrorism, but once we let go of the basic rule of law principles we enter free fall. Once you can have secret detention, then torture becomes a real possibility whether it’s legal or not.

Image: Andrew Jewsbury, Blank Planet

Temporary departures from normal legal principles often occur during extraordinary emergencies such as a foreign invasion. Italian legal philosopher Georgio Agamben has explored this phenomena and calls it a “state of exception’. But Agamben warns us that once governments become used to such powers, they tend to start applying them with less and less justification until the state of exception ceases to be temporary.

When the normal universal principles of law are exempted in relation to particular places, people or groups we are on a dangerous path. Perhaps the most well known historic examples would be witch burning trials in the middle ages, or the Nazi atrocities against Jewish people and others during WW2. More modern examples of exceptionalism include laws against communism in the US in the 1950s, and Australia’s current immigration, anti-terror and anti-bikie laws.

Photo: Giles Price, from The Art of Dissent

Modern political campaigns such as the ‘war’ on terror and the ‘war’ on drugs have used the image (but not the reality) of war to justify exceptionalism and they have given us templates of extreme legislation that can later be seamlessly re-produced in other contexts. Anti-terror laws become recycled as anti-bikie laws, and maybe one day, anti-protest laws. It may sound far –fetched but deliberate category error is also a feature of creeping totalitarianism, and already we have seen federal politicians from both sides employ the language of ‘energy security’ and even ‘terrorism’ to describe people who peacefully protest against fossil fuel companies.  

A state of exception creates a duplicitous legal system in which the appearance of parliamentary democracy can be maintained but with ever growing exceptions. Actually it’s just plain old totalitarianism, but it’s cleverly disguised. 

We are already heading down this dangerous road in Australia, and we don’t need to. We can fight terrorism and crime with laws of general application, for terrorism is a crime of terrible violence and of course we have laws for that. Protest on the other hand is what keeps us democratic.

We should remember German pastor Martin Niemöller‘s famous and relevant quote:

First they came for the Socialists, and I did not speak out—?Because I was not a Socialist. 

Then they came for the Trade Unionists, and I did not speak out—?Because I was not a Trade Unionist. 

Then they came for the Jews, and I did not speak out—?Because I was not a Jew. 

Then they came for me—and there was no one left to speak for me. 

Agamben Georgio: A Brief History Of The State Of Exception  http://www.press.uchicago.edu/Misc/Chicago/009254.html

This article was originally published in the Northern Rivers Echo, 9th October, 2014