The federal government has left the enforcement of coronavirus laws to the states, creating great confusion and uncertainty. One federal MP is even advising constituents on how to get around them. By Mike Seccombe.

Covid-19 lockdown and police powers

Every drama needs a villain, and Australia’s coronavirus crisis now has produced a number of them.

The arch villains are the wealthy couple from Melbourne who, after a skiing trip during which they partied with friends in Aspen, Colorado, brought Covid-19 back to Australia. In defiance of an instruction that they self-quarantine at their beach place in Portsea, on the Mornington Peninsula, they heedlessly continued to venture out.

Other members of the Aspen crowd, too, have apparently been spreading coronavirus. There are several dozen cases on the peninsula now, and more seeded in that other getaway spot for the rich, Queensland’s Noosa.

Greg Hunt, the federal Health minister, whose electorate covers the Mornington Peninsula, has been harsh, notwithstanding the fact that the Aspen group has serious Liberal Party connections. He claims not to know who they are, but this week he was strong in his judgement of their behaviour.

“In my view, that’s a disgrace,” he told the Nine newspapers. “The police should feel free to throw the book at them.”

Attempts by The Saturday Paper to find out whether the book had been thrown were unsuccessful. No answers were provided by the relevant minister’s office, Hunt’s office or Victoria Police, although other media reports state police have confirmed they are investigating the couple’s alleged breaches.

Indeed, it’s not even clear what book could be thrown, for the book seems to be in a constant state of redrafting, as the Aspen case illustrates. The couple reportedly arrived back in the country on March 6 and were warned four days later they were at high risk of infection because of a Covid-19 outbreak in the ski resort town.

But it was not until March 16 – about the same time the couple tested positive – that Victoria made it mandatory for returned travellers to self-isolate, on pain of being fined almost $20,000.

Which is to say that while the couple’s behaviour remains selfish and reckless, it also appears legally ambiguous.

Nonetheless their attitude – and that of others who Hunt says “think that the laws and … notion of socially responsible behaviour does not apply to them” – has certainly had its effect. On Friday last week, Prime Minister Scott Morrison announced that from midnight the next day, “all travellers arriving in Australia will be required to undertake their mandatory 14-day self-isolation at designated facilities (for example, a hotel)”.

And so, we saw images of weary travellers being shepherded onto buses by police and soldiers, and taken to five-star “jails” to serve out their 14 days of quarantine.

Morrison left it to individual states and territories to determine where the thousands of returning travellers would be put up. It was also up to the states to determine how the new arrangements would be enforced. The result is multiple different regimes, imposing varying penalties, including potential jail time in some states.

The shadow minister for Immigration and Home Affairs, Kristina Keneally, sees the decision to give the lead role to the states – albeit in co-operation with federal Border Force officers – as an abrogation of responsibility.

She accuses the federal government of having “dragged its feet” on crucial border protection measures, including temperature checks at airports and mandatory quarantine for cruise ship arrivals.

“The wider Australian community is now seeing the calamitous results of their decision to allow the Ruby Princess to dock in Sydney,” she says, “a moment we have quickly realised was a tipping point in the spread of coronavirus in Australia.”

To date, some 440 Covid-19 infections and five deaths, have been attributed to the release of Ruby Princess passengers, untested, into the community.

“The federal government tried to blame the New South Wales Liberal government for these border protection failures despite the fact that they have responsibility for our borders,” Keneally says. “Now that the government has finally introduced mandatory quarantine measures at our border they have, quite extraordinarily … handed over operation of these matters to states and territories.”

In fairness, the federal government has a lot else on its plate, such as trying to prevent the Australian economy from falling into depression. But the fact remains that Australia’s federalist system has produced confusingly different responses to the Covid-19 crisis in different states and territories, despite efforts to achieve consistency through the mechanism of a “national cabinet” that includes all state and territory leaders.

This confusion is even more apparent when it comes to domestic social distancing measures than it is in relation to international arrivals. Those jurisdictions with the greatest number of infections – NSW, Victoria and Queensland, which respectively had 2298, 1036 and 835 confirmed cases as of Thursday – have been much tougher in limiting people’s movement.

At time of writing, those three states had a strictly enforced two-person rule for public gatherings. The Northern Territory, which had only 20 cases, allowed gatherings of up to 10, and was taking a much more relaxed approach to enforcement. Other states and territories fell somewhere between those extremes.

Further complicating matters, each jurisdiction has a different, wide range of exemptions to the rules. This, says NSW Greens MLC David Shoebridge, is a recipe for inconsistent application. His state serves as a good example.

There have been four iterations of public health restrictions since mid-March, growing progressively tighter, he says, “and it’s been pretty clear from the start that some police had a very poor understanding of what the restrictions were”.

As of Monday, he says, “we’ve now had a massive expansion in the restrictions and there’s no evidence that the police have been trained adequately, or at all, on the details in the public health order.

“There’s the basic premise that you can’t leave home without a reasonable excuse, but then there are 16 enumerated examples of reasonable excuses.”

And these are quite broad. In NSW, people can go out to get food “or other goods and services”. They can travel for work or education if they can’t do those things from home. They can go out to exercise, or for “medical or caring reasons”.

And the two-person limit doesn’t apply to families or members of other groups who live together. Not surprisingly, there are many questions.

Liberal MP Craig Kelly says he has advised callers to his office on ways to get around the rules. He shares the story of a constituent who rang to ask if he could go fishing, alone, in his boat.

Kelly says he told the man that if he were approached by police, he should either “stand up and do some callisthenics, because exercise is permissible, or argue he was out to acquire food”.

“Surely a bloke can take his tinnie out on Botany Bay or the Georges River – he’s not talking to anybody or touching anybody,” Kelly says.

It’s a small example that makes a broader point: that discretion is required in enforcement.

As the president of the Law Council of Australia, Pauline Wright, told ABC Radio this week: “If they’re going to continue to have community support for these measures, it’s incumbent on police to be reasonable … But if they come across as being heavy-handed, it’s going to fall apart.”

And there have been many examples of such overkill: this week, to cite just one, a video showed a convoy of police cars, lights flashing, in Sydney’s Rushcutters Bay Park, attempting to disperse people – mothers and babies among them – who were observing safe social distancing but not actively exercising.

Shoebridge has many more examples, predating the latest rules, of “police enforcing their views about social distancing, without having any reference to the actual legal restrictions or the public health orders – issuing people with fines if they had more than one person in the car, if they weren’t standing far enough apart in shopping centres, and so on”.

The people who have actually been issued fines are not the Portsea or Rushcutters Bay set. Sex workers and brothels were among the first to be fined, while the first case to go before a court in NSW over a breach of Covid-19 restrictions was no silvertail either. The man, who was issued a fine for breaching a self-isolation order, and then breached it a second time, had a long history of mental health and substance abuse issues. The magistrate, mercifully, did not throw the book at him, but imposed a $600 fine and a 12-month community correction order, rather than jail time.

There has also been concern on social media about a nascent police state or, worse, martial law, given the increasing prominence of soldiers on the streets.

In reality, the military has no enforcement powers. And it appears the police have belatedly realised the need for a softer approach. In NSW, the police commissioner, Mick Fuller, has promised to personally review all $1000 on-the-spot fines issued for alleged breaches. As state emergency operations controller, he has been placed in charge of the overall Covid-19 response in NSW. In a nod to concerns about creeping authoritarianism, Fuller also stressed the onerous social distancing regime might be wound back after 90 days.

Some states, including NSW, also include the prospect of jail time among possible penalties. And the worst thing that could be done, in the view of experts, is to put more people in jail. We should instead be getting them out, for prisons pose one of the greatest risks for spreading coronavirus.

Julia Kretzenbacher, vice-president of Liberty Victoria, points to the example of New York City’s Rikers Island jail complex, which now has the highest infection rates in the United States: 10 times those of the city and 75 times those of the US as a whole.

Kretzenbacher is one of some 150 lawyers, criminologists and other experts who have signed an open letter to governments, urging the early release of selected, low-risk prisoners, both to ease overcrowding in jails and reduce the risk of coronavirus spreading there, and also to reduce the risk of it spreading into the broader community. Such steps have been taken in other countries.

In particular, they want the release of people remanded in custody, not yet proved guilty of anything, many of whom are there on quite trivial matters.

“All across Australia, remand populations are just huge,” says Eileen Baldry, professor of criminology at the University of NSW. “And they are perhaps the biggest problem in some respects, because they go in and out, and on the whole, they are held in somewhat worse conditions.”

According to Godfrey Moase, an executive director with the United Workers Union, which covers many prison staff: “It is not a matter of if an outbreak happens, but when. And Covid-19 will go off like a bomb.”

NSW, at least, has passed legislation giving the corrective services commissioner quite broad powers to act, says Shoebridge, “but we haven’t yet seen any evidence of the power being exercised”.

As well as letting some people out, he says, it is important to stop putting new people in.

There is some evidence of the courts being more lenient with bail conditions, but on the more substantive issue – getting the corrections system to reduce numbers – nothing has been done.

Thalia Anthony, professor in law at the University of Technology Sydney, who specialises in criminal justice and Indigenous legal issues, says apart from the infection issue there is the growing prospect of disturbances in jails, prompted by fear and discontent among inmates. In many jurisdictions, visits have been stopped and rumours of outbreak are spreading. We have jail riots in other countries: 24 people died in one in Italy, she notes.

Yet, she says, the relevant authorities “appear to be waiting for an outbreak before they do anything, which seems to be the wrong way around”.

It seems an issue rather more pressing for our leaders to address than mums sunning themselves in parks.

This article was first published in the print edition of The Saturday Paper on April 4, 2020 as "Covid-19 lockdown and police powers".

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