Is a backlash setting in to the decision of our clutch of dud first ministers to impose a giant CCTV-led surveillance scheme on the entire urban population of Australia?

Perhaps it was the speed with which the Prime Minister and premiers embraced this trashing of basic rights; perhaps it was the apparent pride with which premiers dismissed civil liberties as irrelevant, with scandal-plagued Victorian Labor premier Daniel Andrews calling civil liberties “luxuries”. But compared to the deathly silence that accompanied the government’s introduction of mass surveillance of our phone and internet use, there’s a welcome stirring of media and community opposition.

The problem, however, is that the only means of halting such attacks on basic rights is via parliament, and parliament is rendered pointless if a supine opposition refuses to do its job, which has long been the case with Labor on national security.

Australia has a number of civil liberties and digital rights institutions. But they are poorly funded compared to well-resourced bodies like the American Civil Liberties Union and the Electronic Frontier Foundation, which have the firepower to bring legal cases against the US government and state governments there in order to repel intrusions on civil liberties. More importantly, they also have a framework they can use to mount such cases — the Bill of Rights. Europeans have the EU Charter of Fundamental Rights, which has been used to reverse the imposition of mass surveillance schemes like data retention.

Here, at the federal level we have nothing beyond an implied right to political communication, which the High Court only conveniently found when it was needed to protect the financial interests of commercial television networks.

For a long time I thought a bill of rights was fundamentally anti-democratic: it should not be for the courts to sit in judgment on the outcomes of parliamentary democracy. If people wanted their rights protected, they could elect politicians who would do it. Nor does it help that our court system routinely displays contempt for the basic rights of women and children, which are a distant second to the rights of the men who rape, assault and murder them.

But when there’s a bipartisan conspiracy of silence on our basic rights, when the opposition fails to do its job because of political calculation, when the major parties decide that certain issues are simply off-limits to public debate — as happened with the Snowden revelations about our involvement in 5 Eyes mass surveillance, and the activities of the Australian Signals Directorate and other cowboy intelligence agencies — then the democratic argument against a bill of rights breaks down.

Indeed, according to the government itself, there are some issues that are too important to be left to politicians to decide, such as marriage equality. The principle that we can’t rely on politicians to properly determine policy, and require some other means to do so, is already a feature of our system. A bill of rights would codify it, and give Australia’s weak civil society sector the means to start challenging politicians. And the days of political hacks dismissing our basic rights as “luxuries” might be numbered.