Taken liberties

At this point, it is fair to say Australia’s public health response to coronavirus trailed the developed world’s and our police response exceeded it. In many instances this week, one has been mistaken for the other.

In New South Wales, a police officer is leading attempts to contain the virus. New laws give extraordinary powers to jail people for going outside or gathering in groups. The emergency bill also makes changes to the jury system and to certain kinds of evidence. Similar rules have been applied in Victoria.

The public health measures are not in question – but little evidence has been given to show that special powers of enforcement are necessary. Australia is an exceptionally law-abiding country with a national character based on the false belief we are not.

We have a tabloid media that believes a few hundred backpackers on Bondi Beach should face down the army. After the new laws were passed in Victoria, Nine News did a special package in which it filmed “dozens” of people sitting in parks. Viewers were reassured the tape had been shared with police.

If anything, it was not a lack of police powers that was impeding the public health response to coronavirus – it was confusion about messages coming from the government. That confusion is still present and is now criminal.

As ever, those punished are more likely to be disadvantaged or marginalised. Police have been offered discretion and they are using it as they always have.

In NSW we have fined a man washing windscreens in south-west Sydney and another for drinking outside a closed pub. A man in Parkes was fined at a gathering: he was not a family member.

In Camperdown, a man was locked up briefly for repeatedly breaching an isolation order. He has a history of psychosis and a mental disability.

In Victoria, police say they have conducted more than 10,000 spot checks. Only a handful of penalties have been issued: against sex workers, people drinking in public and passengers in cars without a reason for being there.

Almost 10 years ago, George Williams published his study of the first decade of Australia’s anti-terror laws. He found the laws passed in the aftermath of September 11, 2001, upset a number of legal orthodoxies. They gave governments great powers to ban organisations and allowed for warrantless searches and new powers of detention.

He said the laws were passed with the assumption they were “a reaction to a temporary, exceptional state of affairs” and that the laws would be repealed or infringements on civil liberties would be “weakened in proportion to the nature of the threat”. “However, a decade on,” he said, “this has yet to occur, and there is no apparent likelihood that it will occur at any near point in time.”

Williams made another key observation, just as pertinent to our latest emergency measures: “Australia is now the only democratic nation in the world without a national human rights law such as a human rights act or bill of rights.”

The coronavirus laws will be in place for a prescribed period of six or 12 months, but they carry with them a worrying portent. Australians have always had an apparent willingness to give away their liberties, yet rarely at such a scale and with so little consideration of what is actually necessary.

This article was first published in the print edition of The Saturday Paper on April 4, 2020 as "Taken liberties".

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