In Hamlet, after the unquiet ghost of Hamlet’s father is seen walking the battlements of the castle, the guard Marcellus observes to Horatio, “Something is rotten in the state of Denmark.” In my home state of Victoria, in Australia, COVID-19 is the unquiet ghost which has exposed the flaws in governance at the heart of my state. I suspect we are not alone, and that flaws in governance have been exposed in different ways across the world. The unusual aspect of my state is that it locked down harshly, but this did not stem the spread of COVID-19.
Let me also get a few preliminaries out of the way first. I am a vulnerable person who has been lucky enough to be able to work from home with very little contact with anyone other than immediate family and medical professionals since March this year, when the first wave of COVID-19 hit Melbourne. I am not saying that the government was wrong to lockdown. In fact, at first, I was supportive of (and relieved by) its decision to lockdown and its tough stance. I was certainly not alone: at first, our premier was tremendously popular for his actions, and even now some of that popularity remains.
My criticism is of the way in which our government designed, implemented, and enforced its lockdown laws, and the way in which it relied upon lockdown laws to the exclusion of other measures: it talked tough, and passed tough laws, but its practical response was lacking. Despite my concerns about the broad reach of the laws, I have followed them. I want Victoria to get its COVID-19 outbreaks under control, and for numbers of infections to go down, for my own good and the good of others. Blessedly, it seems that it is finally working. But the price has been steep, and as a law professor, I fear that the harsh and sometimes illogical nature of the laws has had the perverse effect of leading to an increase in those who reject the application of the law to them altogether.
I should also be clear that I am not partisan. I have never been a member of a political party, and I would make the arguments I make here regardless of which party was in power. Unlike many in my state, I neither love nor despise our premier. What has shocked me, however, is the excuses that I’ve seen some on the progressive side of politics make for the government’s actions, particularly the incident in July this year where nine public housing towers were summarily locked down without warning. If it were a right-wing government in power, the Left would have been screaming about the trampling of civil liberties. To be fair, however (and before right-wing readers feel too smug) I suspect that if our government were right-wing, some on the Right would make excuses, and the Left would be driving the civil liberty point. For the record: I don’t care which party is in power, for present purposes. I care about the rule of law, state capacity, and competence. And my fear is that our state capacity and, ultimately, the rule of law has been undermined.
COVID-19 in Australia: government responsibilities
Australia is a federal country, not a unitary country, so it is more like the United States or Canada in this regard than the United Kingdom, which is a unitary state. It has six states and two territories, of which my home state of Victoria is one of the most populous and prosperous. The COVID-19 responses have been (by and large) run by each state and territory government. The federal government is limited by the powers conferred by constitution, and cannot easily override state management of these issues, despite its constitutional power to handle “quarantine” under s 51(ix), because the states are still responsible for health and hospitals. It is also worth noting that while Victoria has infinitely more cases than any other state or territory in Australia, it has still dealt with COVID-19 better than most states in the United States (with less cases and less deaths per million than the vast majority of states), and better than any country in the EU, leading to some confusion from my overseas friends as to why Victoria has reacted so harshly. But other states have closed the borders to Victorians until they get the spread of COVID-19 under control, and accordingly there has been an imperative to act. Victoria’s response is a reminder that Australians are descendants not only of convicts (I personally have at least six or seven convict ancestors) but also their gaolers.
Sowing the seeds of COVID-19’s ‘second wave’
It is incontrovertible at this point that the administration of our state’s hotel quarantine system failed dismally, as ascertained by the government’s recent Inquiry into the COVID-19 Hotel Quarantine Program, headed by former Family Court justice, Jennifer Coate. Although the inquiry’s final report is not due to be delivered to the governor until November 6th, 2020, it seems clear now that quarantined returned travellers infected hotel staff and security guards with COVID-19, then the security guards went home and infected their families and the community more generally, and that these outbreaks led to our “second wave” of infections across Melbourne. The ultimate disaster occurred when COVID-19 entered several nursing homes, as it seems to be particularly fatal in this context. It seems that the security guards were untrained and likely to spread the virus given their generally lower socioeconomic status. People of a lower socioeconomic status tend to have casual jobs, and they can’t easily take leave if they don’t feel well—no work means no pay—which later led both the state and federal governments to introduce payments for people to get tested and to isolate if they felt unwell.
Much argument has ensued about who exactly made the decision to hire the security guards rather than accept help from the Australian Defence Forces: government ministers and the premier have disavowed any responsibility for the decision, as have senior public servants, and the inquiry has concluded that no one made the decision: counsel assisting the inquiry described it as a “creeping assumption” that security guards would be used. My impression is that there was more concern about the “optics” of the situation than actually doing the job properly: one civil servant said he was given an hour of compulsory diversity training before he was put in charge of hotel quarantine, but with only a brief handover of responsibility (10 minutes) and no training in how to put on personal protective equipment (PPE).
It also seems that there were failures in contact tracing, compared to other states such as New South Wales. The failure to chase up exactly who infected persons had contact with meant the virus could spread, and once it was out of control in the community, contact tracing became almost impossible to achieve. A comparison with our sister state of New South Wales shows that effective contact tracing seems to be the key to suppressing outbreaks: They also had hotel quarantine issues with infected security guards, but quickly isolated the infected guards and the outbreak stopped. It has been suggested that the inefficient structure of the Victorian Department of Health and Human Services (DHHS) may also have contributed.
The areas in which the virus spread most were inhabited by people from a lower socioeconomic group, with high migrant populations. The reasons for this are varied, and understandable. First, the Victorian government seems to have failed at the outset to communicate with migrants in their own languages, and the chief health officer for Victoria admitted in August 2020 that “engagement with culturally and linguistically diverse communities is central to how we proceed.” Secondly, data from the Australian Bureau of Statistics (ABS) indicates that it is much easier for those working in professional industries (such as IT, finance, media and the like) to be able to work from home. By contrast, the ABS data indicates (just as an example) that the rate of employees working from home in the accommodation and food services industry is very low. It follows from this that those in non-professional industries are less likely to be able to work from home, and they are also less likely to have secure ongoing employment where sick leave is readily available. The fact that the government introduced payments to encourage people to stay at home seems to indicate that the casual nature of non-professional employment and the lack of sick leave was an issue.
Eventually, as I have noted above, the disease spread to the residents of public housing towers in several suburbs, and the government instituted the draconian lockdowns, so that residents of the towers did not even have a chance to get essential groceries and items such as nappies. Public housing contains some of the most vulnerable members of society: refugees, pensioners, and disabled people.
Hypocrisy and the undermining of government authority
Arguably, the government began to lose some moral authority before the second wave of COVID-19 cases in Victoria, because of the way in which it responded to the Black Lives Matter protests on June 6th, 2020. Attendees at previously relatively small anti-lockdown protests had been treated harshly—at a May 10th, 2020 protest attended by 5G conspiracists and anti-vaxxers, 10 out of the approximately 100 protesters were arrested—but the same was not the case in relation to the Black Lives Matter protests. To be fair, the government did urge Black Lives Matter protestors not to attend, but it indicated that it would not fine protestors because of the large size of the rally. Instead it simply fined the three organisers of the protest. I take Indigenous rights very seriously (I have an Indigenous ancestor myself) and there are real issues with regard to treatment of Indigenous people by law enforcement and in custody, but this was not the time nor the place to allow a public march. By contrast in New South Wales, which was in a very similar position to Victoria at that point (pre-“second wave”), the state government sought an injunction banning equivalent Black Lives Matter protests in Sydney, indicating that it was serious about its lockdown rules. The injunction was initially granted but the New South Wales Court of Appeal later overruled it.
The Victorian government should have responded in the same way that it did to other protests: by saying attendees would be fined. I understand that a protest of approximately 10,000 people is different to a protest of approximately 100 people, and that it is difficult to fine such a large number of people, but perhaps the government should have followed the lead of New South Wales and sought an injunction to restrain the protests to indicate that all protests would be treated equally. The rule of law means that like cases should be treated alike. I suspect the government’s attitude undermined peoples’ willingness to comply with restrictions because it was perceived as being prepared to take a more lax view of enforcement when protests involved a cause to which it was sympathetic, in contrast to how strictly it had been enforcing lockdown in the first wave (and how strictly it later enforced lockdown in the second wave). The Victorian government could perhaps also have responded by outlining more clearly what it was doing to ensure Indigenous and minority groups are not mistreated in this state. Ironically, and tragically, the evidence discloses that Sudanese immigrants and Indigenous people (along with young people, men, and people with prior criminal records) have been overrepresented in fines handed out in Victoria during the first lockdown. Black Lives Matter, indeed.
A personal encounter with police overreach
Once COVID-19 was out of control in the community in the second wave of infections, brutal “Stage 4” lockdowns were imposed. We had an 8pm curfew, a rule that we were not allowed to go more than five kilometres from our home, masks were suddenly compulsory (after the government had previously said they were not necessary), and there were severe restrictions on gatherings and businesses. At the height of Stage 4, I could only see one person outside my household, during my one-hour period of allowed exercise per day. Although the Stage 4 lockdown seems to have been effective (cases have fallen) it has been difficult to endure. Moreover, neither the chief health officer nor the police suggested the 5pm curfew. The epidemiological case for the five kilometre rule has also been challenged by non-government experts.
Stage 4 restrictions have been accompanied by strict enforcement, to the extent that Human Rights Watch has expressed concern, and argued against an extension of Victorian law which would allow nominated public servants to detain people. I have cause to know of the ramifications of strict enforcement, and indeed, an incident involving me is mentioned in the linked Human Rights Watch article. The point to take from this incident is not what happened to me (I am fine) but what might have happened to another more vulnerable person who was not legally trained.
I have suffered from cerebral palsy since birth, which means I have difficulties walking. I have had to use a walking stick for several years, but since the beginning of this year, I have been able to walk without a walking stick as a result of intensive therapy and Botox injections. On September 8th, I received my injections of Botox into my calf muscles. On September 9th, I went for a walk with my mother, because I have been medically advised that it is necessary to exercise after the injections. We wore surgical masks and were socially distanced. We walked a little over one kilometre down the hill, and at the bottom, we stopped to get a takeaway coffee, in the town square (all interaction was outdoors). I like to buy a coffee from the local café because I want to support local businesses, and it is my little treat for the week. Initially I sat to drink my coffee (again, socially distanced) but as three police officers approached, my mother advised me to stand, as she had heard of incidents of people being fined for sitting. Two masked police officers told us that we were not allowed to stand and drink coffee but that the “directives” mandated that we had to keep walking while drinking, back towards our homes. I considered arguing and explaining my medical situation—in fact, initially I thought the policeman was joking—but I was afraid that my mother might be fined if I argued. The fines are considerable (A$1,652). We were genuinely scared when the police came up the hill after us as I stopped off at the supermarket, and more joined them. It turned out that they were just checking people outside the supermarket were socially distanced, but I have never felt that way in my home suburb before. Part of me feels ashamed that I did not argue with the policeman; I suspect I would have done had my mother not been there.
There was nothing in the Stay at Home Directions (Restricted Areas) in force at that time (No. 14) to explicitly say that a person may not pause when taking exercise (there was nothing to explicitly say that it was permitted either). In any case, both my mother and I would be able to claim a “reasonable excuse” as stipulated for in the offence provision for failing or refusing to comply with directions. I also checked the DHHS guidelines on Stage 4 restrictions at that time, and there was nothing said there about pausing while taking exercise, as long as one is socially distanced (which my mother and I were: we only briefly took down our masks, as allowed by the directives, in order to drink coffee).
The premier’s response to questions of police overreach was to say that he supported the police and the police were out there doing the best job that they possibly could. I wrote to my local MP to express concerns about this, and she advised me to complain to the police ethics department. The problem was not the individual policeman. He was polite but stern (albeit slightly scary because he was wearing a mask and supported by two other masked policemen). I presume he was doing what he had been told to do. The broad texture of the law gave him the discretion to treat people in this way. It’s a fundamental principle of the rule of law that the law must be transparent and capable of being known. If I (as a law professor) cannot work out what the law is (and seemingly, neither can the police) then we have a problem. I am a woman of considerable education and resilience, with the ability to defend myself in court if push comes to shove, and with enough savings to pay the fine if I had to. Fines are intrinsically regressive, because they impact upon people with low incomes disproportionately, are easy to impose, and difficult for those without legal knowledge to challenge. They are also quite expensive to enforce: about a third of those who received COVID fines had not paid by August 2020, which means that the matter proceeds to court. Economist Saul Eslake has noted that Victorian police imposed 4.5 times the value of COVID lockdown fines than any other state and are generally more willing to hand out fines than those in other states. I dare not think how another person might have fared in my situation.
Interestingly, possibly in response to my own incident, or more probably in response to other incidents where people had been told to move after sitting on benches in the park, on September 13th, 2020, the Stay at Home Directions (Restricted Areas) (No. 15) were amended to say that subject to compliance with social distancing requirements, “exercise outdoors may include sitting in an outdoor space.” (see the Note 2 to s 9(2)). Not much fanfare has been made about these changes, and I have received accounts from other people on social media nonetheless being told to move on after pausing.
Harsh enforcement of the law undermines trust in government, police, and the law
Overly harsh enforcement of the law can paradoxically act to undermine it. Harsh enforcement is of course the exception, not the rule, but you don’t need that many exceptions before people give up on the purpose of the law, particularly those who are not as well educated and may see this as something more than what it is. I think it is no coincidence that conspiracy theories and notions of sovereign citizenship which seek to reject the overarching law or governance have flourished at this time, and I fear that the more harshly we crack down against these people, the more they will buck against it. Incidents like the one I experienced can only lead to a decrease in respect for the government, respect for the law, and respect for the police. Despite the pandemic, we have to take care with how we treat people and apply the law. One of the things I’m proud of about Australia is its high state capacity: The government (of whichever stripe) is generally competent and therefore trusted. If we undermine the application of the law, then we undermine our state capacity and the rule of law: things that are very precious. Moreover, I am particularly worried about the impact of fines upon vulnerable, poor, or disadvantaged communities.
As a lawyer, I see the tendency to treat the law as a magic wand as both fascinating and dismaying. On the one hand, the sovereign citizens also seem to regard the law as a sort of evil magic which they can dispel with ritual phrases (none of which bear any relation to any legal reality or fact). On the other hand, others seem to regard it as a magic spell for good, as if passing a law against something will make everyone behave and fix everything. You cannot just fix everything by passing a law. Moreover, a well-intentioned law can sometimes produce perverse incentives.
As of the beginning of October, the Victorian public no longer support the harsh lockdown rules, an important tipping point, I would suggest.
Careful consideration must be given to how a law is enforced, what discretion is conferred by it, and whether other practical measures should be taken to ensure that the outcome is met (such as, in the case of my state, effective quarantine measures and contact tracing). I understand that these laws and measures were undertaken in the face of an unprecedented emergency. Nonetheless, with regard to hotel quarantine, it still seems to me that some errors were inexcusable and show deep failures of governance: There were processes over which no one had command, and thus no one had responsibility when those processes failed. My only hope is that the government, the public service, and the police will learn from this experience and ensure that such mistakes are avoided in the future. State capacity and the rule of law are precious and must be repaired in the wake of the events which have occurred.
This article represents the author’s views and not the views of her employer.
Dr. Katy Barnett is a professor of private law at Melbourne Law School, University of Melbourne. Follow her on Twitter @drkatybarnett.
Feature image: Police surround an anti-lockdown protester as they detain her on Elwood Beach in Melbourne on September 19th, 2020. (Photo by William WEST / AFP)