Australia, How Have You Let it Come to This?

On August 2, Victorians began living under a “state of disaster” that has seen some of the world’s most severe restrictions imposed on its citizens and their fundamental freedoms. Leaving home after 8pm is banned with hefty fines imposed on those pulled over by police, who now represent the only cars on the road after dark. There are roadblocks to prevent citizens from moving interstate or, much closer to home, more than the permitted 5km from their their listed addresses.

The Victorian government has effectively become an elected dictatorship. It is August 9 as I write and the latest 19 COVID deaths have brought the state’s death toll to 247. These 19 deaths were of one man and a woman in their 50s, two men in their 70s, one man and six women in their 80s, and one man and seven women in their 90s.[1] (editor’s note: today, August 12, the daily death toll is 21, the overwhelming majority in aged-care homes.)

Approximately 99 per cent of all infections for coronavirus have been mild. Of the 515 people in hospitals across Australia with coronavirus, 496 are in Victoria. Most of those who have died were in their 80s and living in aged-care facilities.[2]

Unfortunately, none of these relevant considerations has prevented the Victorian government  imposing what is by far the greatest violation of fundamental rights in Australia’s history. Victorians have now been forced into stage 4 lockdown; almost 5 million people have been informed that the police can and will enter their homes for any reason and without a warrant. Police can also stop anyone anywhere at any time and demand to see their papers and determine  if they have a valid reason to be away of their homes.

These extraordinary rules imposed on the citizens of Melbourne will remain in force for at least the next five weeks. They include:

# The police can enter homes to carry out spot checks without permission or a warrant.

# Between the hours of 8.00 pm to 5.00 am nobody is allowed to leave their home except for work, medical care or caregiving.

# Daily exercise can only take place within a 5-kilometre distance of a person’s home.

# Apart from of maximum 1-hour of daily exercise, never in groups of more than two (even if they are members of the same household), a person is only allowed to leave home for essential supplies and food. Such shopping trips are permitted only once a day.

# In the whole of Victoria nobody is allowed to buy more than two of certain essential items, including dairy, meat, vegetables, fish and toilet paper.

# Schools, childcare and kindergarten have been closed until further notice.

# Golf courses and tennis courts have been closed; fishing is banned

# Weddings are no longer allowed, and funerals limited to only 10 mourners.

# Facemasks are mandatory for any activity outside the home. A farmer on his tractor, alone in the middle of an empty paddock, must be masked. Thius applies across the entire length and breadth of  the state.

# Nobody can receive visitors unless it is for the purpose of giving and receiving care.

The maximum fine for breaching any of these orders currently stands at $4,999. I am unaware of any state or country anywhere in the world which levies such enormous on-the-spot fines for leaving home without what the authorities regard as a legitimate reason. On just one day, August 6, Victoria Police conducted no less than 4,418 spot checks on homes, businesses and public places, bringing the total to 234,275 since March 21. Also on that very day, more than 50 people were fined for not wearing face masks, with a further 43 penalties issued for curfew breaches. One poor unfortunate, as VicPol gloated in a press release, was hit with a $1700 fine for leaving his home in the wee hours to buy “cigarettes and lollies”.[3]

Victorians in Melbourne are forced to remain in their homes for what the government sees as the ideal 23 hours a day. They are permitted out only for very specific reasons, namely a short period for exercise plus one trip a day for essentials. Police officers have been quick to tackle any locals on the streets without a ‘valid reason’, an approach reflected in the 17,682 vehicles whose drivers and occupants have been quizzed at checkpoints. “We had to smash car windows and pull people out because they wouldn’t give us details,” declared a senior Victorian policeman. “They wouldn’t tell us where they’re going!” [4]

Police issued 276 fines in a single day (August 9).  In the midst of these oppressive actions, police have fined a family with little children over a trip to the swings and slides of a local playground; five young friends were similarly penalised for listening to music in a suburban garage.[5] A 41-year-old man from outer suburban Mooroolbark and another from Chirnside Park have been charged with “incitement” and bailed to appear at Melbourne Magistrate’s Court for the alleged crime of attempting to organise a protest against the arbitrary proscriptions detailed above. Images promoting their planned August 9 rally upset the Victorian regime by inviting concerned citizens to safeguard their traditional liberties and “fight the good fight”.[6]  The Spectator Australia points out that “curfews are tools of political oppression, of martial law, of military occupation. They are not part of living in a thriving parliamentary democracy.”[7] From 8pm to 5am the streets of Melbourne and its suburbs are deserted, save for police cars.

And the irony as Melbourne is transformed into Tumbleweed Town is that lockdowns don’t work. Evidence suggests the economic destruction they bring is worse than the virus, with large numbers destined to die because of the lockdowns and as a consequence of restrictions and enforced closures that are gutting the state’s economy.  Victoria’s mental health minister, Martin Foley, has actually confessed to a 9.5 per cent increase in reports of self-harm in his state compared with the same time last year..^[8]

Victoria is in this mess because of the staggering incompetence of its government.  Businesses have been closed and jobs are being destroyed. Many shops and eateries will never open again. Many people who have lost their jobs will never work again. All this is happening while the government refuses to explain its actions to Parliament, which has been effectively been shut down since March.

We keep hearing that we are all in this together. But no public servant has lost his or her job and politicians continue to receive their six-figure salaries. Those who have no understanding of the productive economy are receiving pay rises. Research by the Institute of Public Affairs suggest that stage 4 lockdown will rob mainstream Victorians of almost $3.2 billion dollars every week in lost income, prosperity and diminished standards of living. We can expect as many as 300,000 jobs to vanish. Is this cruel and undemocratic lockdown proportionate to the risk? Will the poverty and mental health crisis be worth it?

One would suspect that, given these stringent measures, the streets of Victoria must be paved with COVID’s lifeless victims. In reality, Victoria has seen just 162 deaths attributed to coronavirus (the figure as I write). What is more, 137 of 162 those who died were in aged-care homes. There was much made last week about a man who died in his 30s, but Premier Daniel Andrews refused to say if he had any other medical conditions. Incredibly, having announced the death, the Premier insisted that releasing any further details would violate privacy considerations. His silence on this point is understandable. With the average age of those who have died standing at 82, the Andrews regime is frantic to both justify its Stasi-like approach to public health and obscure its inept hotel quarantine program by broadcasting the word that anyone can contract COVID and die, not just the elderly.

Step back, survey the actual death numbers and the only conclusion is that they are pathetically low. There were more deaths in Australia last year from flu, even with a vaccine, than from coronavirus this year without a vaccine. According to Health Department figures, 2019 saw 1,257 deaths from influenza, with more than 3,000 presenting at hospitals for treatment. Strangely enough, the most recent data reveals no flu-related deaths in Victoria so far this year during the so-called coronavirus pandemic.[9] This has prompted a Victorian joke: “Thank God for coronavirus. No one is dying from cancer, heart disease or anything else.”

Victoria has become a police state, but there is no legal basis for what it is being done. Under the so-called Disaster Act, any law in Victoria can be suspended with the stroke of a pen. Of course, such legislation is invalid as it contradicts basic principles of constitutional government. Indeed, the Victorian government has neither constitutional validity nor democratic mandate to introduce such draconian legal measures. Those responsible for them should be held legally accountable. It is they, not families in park playgrounds, who should be facing the full force of the law.

The Chief Health Officer Brett Sutton, whose former crusade was to avert the “climate crisis”, recommended against parliament sitting because the government did not define it as an “essential function”. As noted by The Australian‘s Greg Sheridan, “his insistence that parliament should not sit is unambiguously a disgrace”.[10] Of course, if you can allow people to shoot up heroin, surely you can allow the state parliament. As reported by the Herald Sun, the government-operated supervised injection room located in North Richmond not only disrespect social distancing rules, but has been allowed to remain open well past the 8pm curfew.[11] 

Premier Andrews has avoided any reasonable scrutiny and accountability by effectively abolishing democracy in his state.[12]  According to Sheridan,

there has never been a more arrogant episode of disdain for normal democracy than the Victorian Health Minister’s decision not to answer any questions on the virus … in the Legislative Council, sitting only because the Coalition and crossbenches insisted.[13] 

Health minister Jenny Mikakos has refused to give a verbal answer to questions in question time. She made reference to a retired judge’s board of inquiry into the failed hotel quarantine system, although Jenny Coate, the woman in charge, explicitly stated that her inquiry is not a court, so “there is no general restriction or prohibition which would prevent a person from commenting publicly or answering questions to which they know the answers”.[14]

Of course, as also noted by Sheridan, there is no need for a “sham inquiry” to tell us that “every case of COVID in Victoria today stems from this government’s utter failure to design and implement an effective quarantine program”.[15] Under Andrews, “all the mechanisms of democratic accountability have virtually disappeared … [and] Victoria has become a dysfunctional one-party state with a mostly compliant local media,” Sheridan wrote.[16]  He list other failures, including a catastrophic ineptitude in managing the infamous quarantine hotels, and not fining those who attended the Black Lives Matter demonstration, thus “tacitly endorsing a huge event that broke social distancing restrictions and undermined the message”.[17] 

The fact of the matter is that it appears most of Victoria’s second wave of the coronavirus apparently came from the breaches of hotel quarantine processes in Melbourne, not least the employment of security guards who were neither properly equipped nor trained.[18] The hotel quarantine program was designed to shield the state from the virus by placing returned travellers in 14-day isolation in hotels patrolled by private security companies.[19] Instead it encouraged its explosion.

Victoria is indeed a state of disaster due to the absolute incompetence of a Premier who behaves far more like a ruthless dictator than the leader of an authentic parliamentary democracy. Alarmingly, the Public Health and Wellbeing Act, the appalling piece of unconstitutional legislation conferring arbitrary powers on the Victorian Premier was passed by the state parliament in 2008 entirely unopposed by the Liberal opposition, ‘despite Labor then, as now, not having an upper house majority’.[20]  It is therefore no virtue for the opposition to complain about these authoritarian measures when Liberal state MPs allowed the enactment of legislation that provides for ruling by executive decree without democratic accountability.

Perhaps even more disturbing is Prime Minister Scott Morrison refuseal to criticise Premier Andrews, in keeping with his strong belief in “national leadership unity”.[21] This is despite Victoria’s bungled quarantine system, believed to be responsible for the outbreak of community transmission. As stated by Janet Albrechtsen in her column in the The Australian, the imposition of stage-four restrictions on Victorians, particularly those living in Melbourne, may lead to far ‘more people dying’, and also to ‘untold economic harm to millions of Victorians and damaging the economy, a dangerous spike in mental health illnesses especially among young Victorians, and negative educational outcomes’.[22]

However, the Prime Minister has publicly backed the Victorian Premier, including his imposition of de facto martial law across the state. Indeed, Mr Morrison not only has refused to criticise the Victorian Premier for being unable to stop the spread of the virus, he has further encouraged political arbitrariness and oppression in Victoria by, in his own words, “encouraging the Victorian government to ensure that there are appropriate penalties for those who do break public health notices.”[23]  Surely we should expect the leader of a Liberal government to be interested in protecting personal freedoms, not suppressing them. Yet we get this spineless guff instead: “Daniel Andrews has my full support … I will give him every support he needs”.  Offering such enthusiastic support to the authoritarian measures of the Victorian government is actually “the only thing that matters”.[24]

The Prime Minister is also on the record as stating that he is totally unconcerned about ongoing attacks on freedom of speech, because “free speech does not create a single job”. Well, Mr Morrison’ support for a premier’s oppressive measures that can only destroy the economy is certainly not going to create a single job either — at least not in the productive sector. To the contrary, federal connivance can only lead to more human rights violations as well as inevitable economic disaster and massive unemployment.

Granted, the Liberal governments in New South Wales, South Australia and Tasmania have also been far too willing to rule by decree and impose their own arbitrary measures on citizens. But the fact that the federal government constantly endorses violations of our fundamental rights should not come as a surprise for those who have read the most recent Legal Rights Audit 2019. The main author of this important report, Morgan Begg, first explains that ‘fundamental legal rights are necessary to achieve justice within a legal system and act as a vital constraint on the coercive power of the state’.[25] However, he claims these legal rights have been explicitly breached by 381 separate provisions in Acts of Australia’s Federal Parliament. As Begg points out, the Morrison government is directly responsible. “The Coalition is trashing fundamental legal rights of all Australians, creating unprecedented challenge to individual freedom and human dignity,” writes Begg, a research fellow with the Institute of Public Affairs.[26]

Sir Robert Menzies would be appalled to see what has become of the party he founded. Menzies sincerely believed that the progress of our nation depended not so much upon the security provided by the State, but upon personal freedom. In a keynote speech delivered on January 21, 1943, ironically about the founding principles of Liberal Party, Menzies compared free and democratic societies such as Australia, to dictatorships such as Nazi Germany. Why then, asked Menzies rhetorically, would the Allies eventually defeat them at war? His answer was patently clear:

We shall defeat them by proving once more that a free individual living in a free community with a free tomorrow in front of him (or her) is worth a nation of slaves.[27] 

Perhaps most disturbing thing of all is to observe how the Australian people, and Victorians in particular, appear to have developed a servile mindset and blind faith in government. In a free society, argued Menzies, there is instead an innate sense of distrust of government and a healthy appreciation of our basic rights and responsibilities which confer upon every citizen a certain measure of human dignity by making them effective contributors to the life of the nation. Hence, in his well-known Melbourne address to his fellow Victorians, on September 7, 1947, Menzies famously declared: 

If we fought for freedom, and as we fought for it, did we secure it? Are we pursuing paths along which we will eventually end up by finding ourselves bond, or free? Why was it that in 1939 we said that the Germans were not free?… It consisted in that the German people, in return for that mess of pottage, had handed over to a few men their birthright and said to a few men: “You rule us, you govern us, you order us.[28]    

What Menzies was asking of his Victorian audience back then is precisely what we should be asking now. “When we have the all-powerful state,” Menzies argued, “the people will then be the servants of that state and the minds of those people will be servile minds, because there will only be only one master – the state inhuman but all-powerful!“[29]

This is precisely the challenge Victorians now face under their deeply oppressive Labor government. Australians at large face a similar challenge under a federal government dominated by a party that has become “liberal” in name only.

Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertIntArb is Professor and Head of Law at Sheridan Institute of Higher Education in Perth/WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017 (appointed by then state Attorney General Christian Porter). Dr Zimmermann was chair and professor of constitutional law at Murdoch University from 2007 to 2017.

[1] Rachel Baxendale, ‘Victoria Deaths Include Man in 50s’, The Australian, August 10, 2020.

[2] Rachel Baxendale, ‘Promising Trend for Victoria’s Active Cases’, The Australian, August 10, 2020.

[3] Remy Varga, ‘Arrested Made Over Planned ‘Freedom March’ in Melbourne’, The Australian, August 7, 2020.

[4] James Delingpole, ‘Australian State Goes Full Coronafascist’, Breitbart, August 7, 2020.

[5] Remy Varga, ‘Melbourne Family Fined Over Trip to Playground’, The Australian, August 10, 2020.

[6] Remy Varga, ‘Arrested Made Over Planned ‘Freedom March’ in Melbourne’, The Australian, August 7, 2020.

[7] Editorial, ‘State of Disastrous Decision-Making’, The Spectator Australia, August 8, 2020.

[8] Jon Lockett, ‘Australia Records Highest Coronavirus Daily Death Toll as Victoria Sees 17 Fatalities While Cops Twart Anti Mask Rally’, The Sun, August 9, 2020, at  https://www.thesun.co.uk/news/12353559/australia-records-highest-coronavirus-daily-death-toll-as-victoria-sees-17-fatalities-while-cops-thwart-anti-mask-rally/

[9] ‘Coronavirus: Victoria Records Zero Flu-Related Deaths This Year’, The Sydney Morning Herald, June 9, 2020.

[10] Greg Sheridan, ‘Daniel Andrew’s Leadership is Superficial and a Failure’, The Australian, August 6, 2020, at https://www.theaustralian.com.au/commentary/daniel-andrews-cleverly-leads-in-a-vacuum-of-democracy/news-story/075dce1f0b2dda2c693077e92e3ac467

[11] ‘Richard Safe Injeting Room Remains Open’, The Herald Sun, August 8, 2020.

[12] Greg Sheridan, ‘Daniel Andrew’s Leadership is Superficial and a Failure’, The Australian, August 6, 2020, at https://www.theaustralian.com.au/commentary/daniel-andrews-cleverly-leads-in-a-vacuum-of-democracy/news-story/075dce1f0b2dda2c693077e92e3ac467

[13] Ibid.

[14] Rachel Baxendale, ‘Andrews to Give Updated at 11 pm’, The Australian, August 10, 2020, at https://www.theaustralian.com.au/nation/coronavirus-australia-live-news-victoria-ranks-alongside-african-nations-for-virus-increase/news-story/b5559007e7b700a3fd18f360b783cd92

[15] Greg Sheridan, ‘Daniel Andrew’s Leadership is Superficial and a Failure’, The Australian, August 6, 2020, at https://www.theaustralian.com.au/commentary/daniel-andrews-cleverly-leads-in-a-vacuum-of-democracy/news-story/075dce1f0b2dda2c693077e92e3ac467

[16] Ibid.

[17] Ibid..

[18] Dennis Shanaham, ‘Morrison Keeps Danbursters At Bay Over Second Coronavirus’, The Australian, August 8, 2020. See also: Gerard Handerson, ‘How Did Victoria Get So Much So Wrong’, The Australian, August 8, 2020.

[19] Rachael Dexer and Marissa Calligeros, ‘Hotel Quarantine Problems? ‘I Found Out In The Media’, Says Sutton’, The Age, August 7, 2020, at https://www.theage.com.au/national/victoria/hotel-quarantine-problems-i-found-out-in-the-media-says-sutton-20200807-p55jls.html

[20] Editorial, ‘State of Disastrous Decision-Making’, The Spectator Australia, August 8, 2020, at https://www.spectator.com.au/2020/08/state-of-disastrous-decision-making/

[21] Dennis Shanaham, ‘Morrison Keeps Danbursters At Bay Over Second Coronavirus’, The Australian, August 8, 2020, at https://www.theaustralian.com.au/inquirer/morrison-keeps-danbusters-at-bay-over-second-coronavirus-wave/news-story/f6ab808ca813beb58856810891a06354

[22] Janet Albrechtsen, ‘She Won’t Talk, She Tweets – Pericles Would Wince’, The Australian, August 11, 2020, at https://www.theaustralian.com.au/commentary/she-wont-talk-she-tweets-pericles-would-wince/news-story/44919481b8d7da08c923b96bb8b027e0

[23] Heath Parkes-Hupton, ‘Scott Morrison Urges Australians to Support Victoria Through Critical New Lockdown Measures, The Australian, August 3, 2020, at https://www.theaustralian.com.au/breaking-news/scott-morrison-urges-australians-to-support-victoria-through-critical-new-lockdown-measures/news-story/a7a62eab55ef290185ed06d72a4d9720

[24] Natalie Oliveri, ‘PM Says Victoria’s Premier Has His Full Support to Tackle State’s Coronavirus Crisis’, Today Channel 9, at https://9now.nine.com.au/today/coronavirus-australia-scott-morrison-says-daniel-andrews-has-full-support-victoria/fd460c9a-db46-408f-82d2-a6e82ef3b865

[25] Morgan Begg and Kristen Pereira, ‘Legal Rights Audit 2019’, Institute of Public Affairs, February 2020, p 1. As Mr Begg points out in his excellent Legal Rights Audit, the federal Liberal governments have been directly responsible for at least 279 fundamental legal rights breaches since 1976, compared with only 102 breaches under Labor. This is the equivalent to 11 breaches for each year of Liberal government compared with 5 breaches each year on average under Labor. – See also: Morgan Begg, ‘Coalition Government Trashes Legal Rights’, IPA Today, February 7, 2020, at https://ipa.org.au/publications-ipa/media-releases/coalition-government-trashes-legal-rights See also: Nicola Berkovic, ‘Coalition Worse than ALP on Human Rights’, The Australian, February 6, 2020, at https://www.theaustralian.com.au/business/legal-affairs/coalition-worse-than-alp-on-human-rights/news-story/0bc3d71cd4daf8ab425f3bd5d8edba11

[26] Morgan Begg and Kristen Pereira, ‘Legal Rights Audit 2019’, Institute of Public Affairs, February 2020, p 1.

[27] Sir Robert Menzies, ‘The Individual in the New Order, City Hall, Brisbane (21 January 1943), in David Furse-Roberts (ed.), Menzies: The Forgotten Speeches (Japarit Press, 2017), p 52.

[28] Sir Robert Menzies, ‘Pleasant Sunday Afternoon Address, Wesley Church, Melbourne (7 September 1947), in David Furse-Roberts (ed.), Menzies: The Forgotten Speeches (Japarit Press, 2017), p 58

[29] Ibid., p 58.