QED

First They Came for Victorians

The Victorian government has introduced a bill in Parliament that gives sweeping powers to certain “authorised officers” to arrest and detain people for an indefinite period of time. The proposed legislation effectively consolidates Victoria as a police state where informers and collaborators will assist the authorities in tracing and incarcerating their fellow citizens without warrants, on the basis of prospective conduct.

Called the COVID-19 Omnibus (Emergency Measures) Amendment Bill, this proposed legislation will operate side-by-side with the powers already in operation under the current emergency powers. Its provisions are so broadly construed that any person could be detained for almost anything.  These laws will override all other laws and confer extraordinary powers to the Secretary of the Department of Health to appoint public servants as “authorised officers” with the same powers as police. As candidly stated by Jill Hennessy, Victorian Attorney General, in her second reading speech: 

The Bill will provide further emergency powers to authorised officers to issue detention notices and detain particular high-risk persons if the authorised officer reasonably believes that a person is likely to refuse or fail to comply with a direction made by the Chief Health Officer … This amendment will enable the authorised officer to detain individuals for the purpose of ensuring compliance with the relevant direction during the COVID-19 state of emergency. [1]

In other words, these laws allow any person the Department of Health and Human Services deems appropriate to become an “authorised officer” to detain people on the belief that they are unlikely to comply with emergency directions. Anyone may be arrested for an indeterminate period of time if such an officer happens to believe the individual is likely to fail to comply with an emergency direction. As such, fundamental legal principles inherited from our common-law tradition, including due process, the presumption of innocence and recourse to the writ of habeas corpus, would be substantially undermined.

This latest development in the consolidation of an oppressive, authoritarian regime, ‘seeks to enlist the population as informers and arms of the state in rounding up others who are guilty of no offence’.[2] Under these laws “authorised officers” will be able to detain fellow citizens if ‘a direction has been given in the exercise of an emergency power’, or if they ‘reasonably believe that a person who is required to comply with the direction is a high-risk person and is likely to refuse or fail to comply with the direction’.[3] Citizens will be detained by such officers for an indefinite period and there is no reference to what sort of training is required. As political adviser Ian Hanke points out,

These extraordinary powers are arbitrary and extreme. They are a draconian attack on civil liberties the like of which Australia has never seen before. Further because all laws are overridden there would appear to be little recourse to any excesses by an authorised officer or their civilians co-opted by them. These laws are so broad and ill-defined that you could be detained for almost anything.[4]

Passed without amendment in the Labor-controlled Legislative Assembly on September 18, the bill is now being debated in the Legislative Council, Victoria’s upper house, and will be put to a vote soon.[5] Premier Andrews says he is engaged in a “negotiation” process with Council backbenchers. He argues the provisions are necessary but is unable to specify circumstances where they have previously been required.

If this bill is passed, an authoritarian regime will be finally consolidated and there will be an end to the rule of law and legal guarantees that so far have protected the population against all sorts of abuses of power by the State.

It is important to consider that we have already seen police arresting people simply because they have promoted on social media protests against draconian measures. One example of such arbitrariness occurred on September 3, when Victoria police arrested a pregnant mother in front of her young children in their Ballarat home. Zoe Buhler was arrested and charged for posting a Facebook message encouraging people to protest against lockdowns in the regional town on 5 September. She said she was totally unaware that she could be doing anything illegal and police could just have called her, to simply ask her to remove the post. She also said she did not believe COVID-19 is a hoax, and only wanted to protest about the impact of lockdown measures on employment and suicide.[6]

What is happening here is deeply tragic. The Australian Prime Minister has the moral (and legal) duty to inform the Victorian Premier of the unconstitutionality of such oppressive measures, and that his government will intervene in favour of the people of Victoria in order to prevent any further violation of fundamental rights.

It is deeply disheartening for me, not just as a constitutional law professor but as a former Senior Vice President in one of the Divisions of the Liberal Party in WA, to witness the tacit consent provided by the Morrison government to all these authoritarian measures. Above all, if this government really valued fundamental legal rights and the principles of constitutional government, there would already be enough grounds for a federal intervention in the State of Victoria.

But the sad reality is that Victorians have been miserably betrayed by their federal and state governments in many ways and on many levels. Premier Andrews is a leader of authoritarian inclinations and the Morrison government has tacitly consented to the deplorable oppression of the Victorian population. For all intents and purposes the State of Victoria has now effectively become an elected dictatorship.

Dr Augusto Zimmermann PhD, LLM, LLB, DipEd, CertArb 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). He is co-editor of the forthcoming ‘Fundamental Rights in the Age of Covid-19’, a book to be published by Connor Court with contributions from leading legal academic and policy makers in the field.

 

[1] Hansard, Parliament of Victoria, 17 September 2020. <https://www.parliament.vic.gov.au/images/stories/daily-hansard/Assembly_2020/Legislative_Assembly_2020-09-17.pdf>

[2] Editorial, ‘Bill To Create Police State Has No Place In This Nation’, The Australian, 23 September 2020. <https://www.theaustralian.com.au/commentary/editorials/bill-to-create-police-state-has-no-place-in-this-nation/news-story/0820634e3c835cc8c6733bf6a45bb793>

[3] COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, Victorian Legislation. <https://www.legislation.vic.gov.au/bills/covid-19-omnibus-emergency-measures-and-other-acts-amendment-bill-2020>

[4] Ian Hanke, ‘Daniel Andrews’ Plan For Indefinite Detention – And More’, The Spectator Australia, 18 September 2020. <https://www.spectator.com.au/2020/09/daniel-andrews-plan-for-indefinite-detention-and-more/>

[5] COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, Victorian Legislation. <https://www.legislation.vic.gov.au/bills/covid-19-omnibus-emergency-measures-and-other-acts-amendment-bill-2020>

[6] Tessa Akerman and Rachel Baxendalle, ‘Arrested Anti-Lockdown Mum: Police Admit ‘We Stuffed Optics’’, The Australian, 3 September 2020. <https://www.theaustralian.com.au/nation/absolute-overkill-jacqui-lambie-slams-arrest-of-pregnant-lockdown-protester/news-story/8951edcf08e3cc5e18006cad8b033354>

14 comments
  • Salome

    I’m not sure that one was never allowed to sit while taking a break during ‘exercise’. The police have been making these rules up as they go along. Someone should have told them to stop, and to exercise any discretion in grey areas in favour of liberty and, dare I say it, commonsense.

  • Stephen Due

    Could there be a Royal Commission into the Victorian government’s handling of the COVID-19 crisis? Justice demands that the failures of the Andrews regime are systematically exposed, penalties exacted and compensation for damages awarded if applicable.
    In addition, a disciplined inquiry that has the power and scope to investigate what went wrong across the board as regards the organisation and management of the response to the crisis would be useful. There must be lessons to learn that would avoid another debacle if a new pandemic occurs. It is pretty obvious, for example, that the powers invested in the Chief Health Officer imply a commensurate level of expertise and wisdom in their application that are not guaranteed to be available in the person occupying that post under ordinary circumstances.

  • ianl

    Well written, explicit points. Thank you, Augusto Zimmerman.

    If this bill is passed through the Victorian Upper House, as expected, it seems to me that Australia is no longer even The Lucky Country. That luck has all been spent, for some decades.

    >”These laws are so broad and ill-defined that you could be detained for almost anything” [Ian Hanke].
    When combined with the anonymous dobber phone line, this is terrifying. Victoria would be a country too far, de facto divorced from the Federation as no-one would wish to enter it.

  • Elizabeth Beare

    If this Bill passes I want to get off the Omnibus. Even the idea of putting it up says all that we need to know about the Victorian Labor Party members who passed it in the Lower House.

    Dan seems to have told his VicStasi to get to work on anything familial – two pregnant women and one elderly woman have been monstered while a young woman was throttled and thrown to the ground. VicStasi have been captured on video happily doing all of this. How many others, not video’d, have also been attacked? Beating up women by word and deed seems to be the mode du jour.

    And they claim to be against violence against women? Fine example they set.

  • Elizabeth Beare

    The elderly woman aged 69 was a mother of four and a grandmother of six, and was left in a dreadful state by the attack. They did not care a whit. The footage of that is disgusting, as the woman was taken by surprise, became hysterical, was handcuffed and frogmarched along, having lost the lead of her dog and having had her phone (her lifeline) confiscated. It all became too much for her in the end and as she rolled in a foetal position on the ground whimpering like a kicked hound a kindly woman broke Covid rules to reach out to pat and comfort her. Other stood around, not wanting to be arrested no doubt, and the Stasi went on their merrry way having removed the steel handcuffs from those frail old hands that had served Victoria so well so far, with never a police intervention needed for this lady ever before, good citizen that she had been, as she kept on telling them.

  • Elizabeth Beare

    Incidentally, the elderly lady was also wearing a Christian cross around her neck.

    How provocative can you get? No wonder the VicStasi saw red.

  • lbloveday

    I don’t know why the dog did not attack the thugs. Guess they’d have shot it, but it was not to know anything other than its mistress was being violated; “must” have been a bitch as males I have had would have been at the thugs in an instance.

  • Stephen Due

    lbloveday. Another good reason why the police should not carry firearms on this sort of duty.

  • Gardenjan

    Thankyou Professor Zimmerman for your clear explanation of what profound implications the proposed COVID-19 Omnibus Bill could have on the future freedoms of the Victorian people, and indeed on Australia’s future.
    Sadly , because so few people have a knowledge and understanding of history and its lessons, most particularly the younger generations, there will be no real appreciation of the slippery slope of an ever more constricting socialist dictatorship on our society. And it is seriously alarming that the Liberal Party and its leaders in this country appear to be acquiescing to what is happening in Victoria.
    I am reminded of the “1932 Enabling Act in Germany” ( called “The Law to Remedy the Distress of People and Reich” ) where the then Chancellor of Germany , obtained plenary powers after having earlier already abolished most civil liberties and transferred state powers to the Reich Government through the Reichstag Fire Decree.
    The combined effect of the two laws was to transform that Chancellors government into a legal dictatorship – and we all know where that dictatorship eventually led.
    One of the great tragedies associated with the introduction of the Enabling Act was that it came into being with the support of the Centre and Conservative parties of the time who were too blind to see the possible outcomes for the future. And these significant changes to the German peoples liberties all came into being over a short period of a few months.

  • Stephen Due

    This is a classic example of what happens when ‘science’ is seconded by socialists. The entire ‘war’ against what is essentially (on a population level) a fairly harmless virus has been driven from the start by the view that strong government action under emergency powers, guided by ‘science’, is the right way to go.
    The advocates of climate change ‘action’ have already tried the same approach, as seen in the spate of socialist city councils declaring a ‘climate emergency’. Fortunately in that case they have not (yet) been able to obtain emergency powers to assist them in their Neanderthal crusade.
    Somehow, Australians who can see the dangers of socialism must rouse themselves and start driving it out of government, out of the schools, out of the universities. Globally, we have seen the immunology and epidemiology of SARS-Cov-2 weaponised to drive a vast totalitarian political program. Scientists and scientific publications have divided into opposing ideological camps. Anthony Fauci, a distinguished scientist and powerful intellect, can scarcely bring himself to utter the words “herd immunity” – even though those two words describe a fundamental law of epidemiology that unquestionably applies to this virus as to all others. Why? Because he supports a political agenda based on suppression of the virus, regardless of the economic and social cost, until there is a vaccine. On the other side, John P. A. Ioannidis, one of the most-cited scientists in the history of scientific literature, is never referenced on this issue by socialist scientists publishing in prestigious journals like the Lancet and the New England Journal, because he opposes their agenda on scientific grounds. Increasingly concerned about the co-option of science and scientists in support of destructive and tyrannical government interventions, Ioannidis has recently said: “Lockdown is a nuclear weapon that destroys everything”. Ditto socialism.

  • john.singer

    Directions from the Chief Health Officer could include compulsory vaccination, blood donation (perhaps even organ) all frightening possibilities.

    The Commonwealth has the obligation to defend any citizen held in custody without due process anywhere in the world. This means they will have to establish Consulates throughout Victoria.

    The failure of the Commonwealth to have acted under Sec 51 (ix) of the Constitution shall forever be a stain on the Government’s record.

  • Lo

    I have a mask exemption from my GP. I am afraid to use it. He was afraid to write it. Now I understand why.

  • Robyn

    I, too, have a mask exemption from my GP who did not hesitate to give it to me. If I’ve had to go out for anything but exercise, I’ve worn a face shield which is now forbidden. I’m intending to go out massless from now on and hold my head up whilst doing so. Woe betide anyone who comments. I’m providing no further information to anyone unless it’s (shudder) a policeman.

  • elandeco24

    This is what I dashed off last week after reading this piece by random search – leading to an immediate subscription to Quadrant:

    They say people turn to media which reinforces views already held. Well hooray! I’ve just found the place, courtesy of an aside remark by (the hard working but getting a bit irritating) Dr Norman Swan. Thanks Augusto for taking all my poorly formed (Victorian lockdown induced) rants and fashioning them into a well argued and well researched piece. Even the comments are all good! (Well … perhaps except one, Mr Sherrington). Goodonya Australians! There you stand … resourceful, clever tough fit bronzed Anzacs – good men & women. Quiet, strong types with just an endearing touch of larrikinism….( so why when I look closer do I just see so many fat lazy dumb conformist sheep, lapping up everything the lowest common denominator regulation- obsessed poorly educated politicians and public servants dish out !?). The Nanny State now wants to be a Police State. Pathetic and infuriating.

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