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The Andrews government cannot identify any legislation it needed to override, but experts say that is the point. By Rick Morton.

What led to Victoria’s extraordinary shutdown

Victoria’s chief health officer, Brett Sutton.
Credit: AAP Image / Daniel Pockett

When Daniel Andrews signed a declaration for a state of disaster in Victoria at 1.43pm on Sunday, it was a part of a final salvo in a battle to control a resurgent and invisible enemy.

Less than an hour later, the Victorian premier walked to the podium he has fronted for almost a month and announced the declaration alongside a curfew and a stage four lockdown covering five million people.

The decision, which took effect at 6pm on Sunday, would cede almost total control over the state’s public service to Police and Emergency Services Minister Lisa Neville and former deputy police commissioner Andrew Crisp, now in charge of Emergency Management Victoria.

Crisp, as a delegate of the minister, would have the power to “direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility” and suspend any law or “subordinate instrument” that might ordinarily bind public servants. Essentially, all of the state’s laws are overridden by this decree. The law allows Crisp to make decisions without the premier. Something of this scale has never before happened in the country.

“We’re not thinking about a stage five, we are thinking about a successful stage four,” the state’s chief health officer, Professor Brett Sutton, told reporters last week. “We know it can work but it does require everyone’s co-operation. The alternative is inconceivable. We need everyone to do what is required now, in order to get where we want to be.”

Part of what ultimately spooked the government into adopting more extreme measures were the then 760 “mystery cases” where the government cannot trace the source of the Covid-19 infection.

“If you’ve got that many cases, and they are not just in metropolitan Melbourne, they are in regional Victoria as well,” Premier Andrews said on Sunday, “if you’ve got that many cases of community transmission, then you must assume you have even more, and on that basis you can no longer be confident that you have a precise understanding of how much virus is there.

“After a lot of hard work, a lot of detailed analysis, our public health experts… they provided advice to me that said that if we pursue this strategy with a view to driving down numbers to a very low level, a containable level where we could reopen, it would likely be the end of the year before we could reopen.

“That is a six-month strategy that is simply not going to work. Therefore, we have got to do more and we have got to do more right now.”

Andrews said the state of disaster will “make sure that we get the job done, and there is no question about the enforceability and the way in which new rules will operate”.

Days before the major announcement, officials knew stage three lockdowns across the city and Mitchell Shire had saved the state as many as 37,000 infections in the month of July. But this was still not enough to flatten overall growth.

The data, in a study published in the Medical Journal of Australia on August 4, had been handed over to the Victorian and federal governments “a few days earlier” so that they could see for themselves what needed to be done.

“Another challenge for Victoria is community fatigue and reduced adherence to this second round of government control measures compared to the first,” authors Allan Saul and others say in the MJA paper.

“To date, most of the initial measures to control Covid-19 – restrictions on personal, business and community activities, mass media campaigns and translated resources in selected minority languages – have been top-down control responses.

“Whilst successful in the short term, this approach is unlikely to be sustainable for the length of the epidemic; community cooperation is essential. To gain and sustain community cooperation, rapid research and community engagement approaches are needed to both identify and address specific needs and information gaps, and to empower civil society groups to lead in selected elements of the response themselves.”

On Wednesday, Victoria recorded its worst day in the pandemic with a further 725 infections and 15 deaths. Later, at midnight, the rest of regional Victoria moved to stage three.

 

In the lead-up to Victoria’s state of disaster being declared, authorities noticed an “alarming” trend of people claiming “sovereign citizenship” status to avoid wearing masks or being fined. Sovereign citizens are a small but growing fringe group who believe they exist outside the laws of the country in which they reside. In the United States, they have been labelled “domestic terrorists” by the FBI.

In late July, a woman named Kerry Nash became the most high-profile Australian example after she went on a week-long tour of Melbourne recording herself refusing to wear a face mask and clashing with retailers, police and an Australia Post employee. Nash claimed it was a breach of the 1948 Universal Declaration of Human Rights.

The chief commissioner of Victoria Police, Shane Patton, told reporters on Tuesday there had been “an emergence” in the week prior of “groups of people – small groups, but nonetheless concerning groups – who classify themselves as sovereign citizens, whatever that might mean”.

“We’ve seen them at checkpoints baiting police, not providing a name and address. On at least four occasions in the last week, we’ve had to smash the windows of cars and pull people out to provide details because they weren’t adhering to the chief health officer coronavirus guidelines, they weren’t providing their name and address.

“We don’t want to be doing that, but people have to absolutely understand there are consequences for your actions and, if you’re not doing the right thing, we will not hesitate to issue infringements, to arrest you, to detain you where it’s appropriate.”

Melbourne woman Eve Black, a social media “influencer”, was one of those people whose car window was broken during an arrest following her refusal to give police her name or reason for travel.

On July 31, at least three anti-mask protesters carrying Australian red ensign flags were arrested at Melbourne’s Shrine of Remembrance. These red ensign designs were commonly used by private citizens on land following the adoption of the official Australian flag at Federation. It has since been used as a sign of defiance.

Some observers say the new state of disaster is in part to circumvent possible legal challenges from these groups, who are resisting public health orders intended to contain the virus.

 

Allan Saul is an honorary fellow at the Burnet Institute and lead author of the MJA paper that analysed infections in Victoria. A public health and vaccine researcher, he tells The Saturday Paper that time is of the essence with containment measures.

“Without a fast reduction in numbers, there is a big risk that existing controls will not be sustainable and existing control measures, for example diagnosis and contact tracing with quarantining, will become increasingly complicated,” he says.

“The measures introduced with stage three for parts of Melbourne were impressively successful. Without them, if the growth rate prior to these restrictions had continued, we would be facing thousands of cases per day, not hundreds.

“However, as impressive as the reduction was, it was not sufficient to reduce the R0 [basic reproduction number] below 1.”

Saul, who was previously the director of the GSK Vaccines Institute for Global Health, noted a particular concern in regional Victoria. “Cases in non-metropolitan [areas] are currently increasing at a rate similar to Melbourne before stage three [and] now look similar to Melbourne about five weeks ago,” he said.

Daniel Andrews knew about these warnings before the declaration of the state of disaster, the first time the extraordinary powers have been used across the entire state of Victoria.

The state government has not been able to articulate what extra powers it needed to justify the declaration, although emergency services experts say that is precisely the point of such an act.

“No plan survives contact with the enemy,” Michael Eburn, an honorary associate professor and emergency law researcher at the Australian National University, tells The Saturday Paper. “That is what makes it a disaster.”

Eburn supports the legislation but warns that police are better at enforcement than managing emergency situations. “People think the police are good at managing emergencies and they’re not,” he said. “Whoever gets that delegated power should be the most qualified person for that disaster.”

A key to the state of disaster, Eburn says, is that it reaches across the whole of government. “There will be arcane rules out there that we don’t even know about but that the public service are bound to follow,” he says.

“Now ordinarily, if they are directed to do something, the poor public servant has to follow these regulations and statutes but it might be an arbitrary point, or some law from 1906 that prevents them responding the way you or I might expect in an emergency.”

Eburn says the government doesn’t necessarily know what it needs until it is already in the thick of a response. The blueprint for the pandemic so far has been a catalogue of “business as usual” approaches being thrown out the window.

Independent sources said the declaration was a “logical” next step after the invocation of a state of emergency – it is a two-step process in Victoria – to put the last-ditch suppression effort “beyond doubt”.

A spokesperson for the premier said the declaration gave powers “to direct government agencies, suspend the application of legislation, restrict movement, compel evacuation and take possession of property – all potentially necessary measures as we work to stop this deadly virus”.

Another argument for the arrangement says declaring a state of disaster may have significant symbolic power and sharpen the urgency of responses.

After the 2009 Black Saturday bushfires, the royal commission criticised the state government for not declaring a state of disaster even though it met the criteria.

“Although the Commission concludes that the minister for Police and Emergency Services acted properly before and during the bushfires it considers that he should have raised the option of declaring a state of disaster with the Premier,” its final report summary says.

“The circumstances clearly met the criteria for such consideration. Even if practical cross-agency and community cooperation was already in evidence and no additional coercive powers were needed, such a declaration would have recognised the gravity of the situation and might have sharpened emergency agencies’ focus on community safety and warnings.”

The Commonwealth does not have an express constitutional power to declare a national state of emergency or disaster, but the current Royal Commission into National Natural Disaster Arrangements is considering that option.

Crucially, it notes: “In all states and territories, certain emergency services officers cannot be held civilly or criminally liable for anything they do in the honest or good faith exercise of their emergency powers.”

 

The leadership in Victoria is now walking a delicate balance between tough control measures and hoping that compliance fatigue, or even exasperation, doesn’t continue to take hold in the community.

Allan Saul says the next few weeks are critical to bring down numbers, because efforts that slip beyond that may threaten the whole program.

“In my view, a limited time period is critical for achieving the goals and for the sustainability of the control program,” he says.

On Thursday, Professor Allen Cheng – newly seconded from Monash University to Victoria’s Department of Health and Human Services – said the best evidence the state has is that the reproduction number of the SARS-CoV-2 virus has come close to 1.

That is the magic barrier. A value below that figure means an infectious person with Covid-19 transmits the virus to fewer than one person on average. That means, over time, the numbers would come down. But that so-called R0 number responds to the slightest gap in the measures. Any slip and it goes right back up again.

“The only thing I can predict is that the virus will not stop,” Andrews said on Thursday.

“Trying to predict where this wildly infectious virus will be in a day, let alone in six weeks, is really tough.

“But if people don’t all accept that we are in this together, whether we like that fact or not, we will not drive these numbers down.”

This article was first published in the print edition of The Saturday Paper on Aug 8, 2020 as "What led to Victoria’s extraordinary shutdown".

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Rick Morton is The Saturday Paper’s senior reporter.