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The depths of the Australian neurosis that has erupted from its latent peacetime has truly reached staggering levels. The state governments are quarrelling siblings, Scott Morrison appears or doesn't appear as a father but thankfully Josh Frydenburg’s Jobkeeper is the family breadwinner, keeping us afloat (especially billionares). Firstly let us consider the context of how this fiasco has arisen. Being a Victorian I write in particular to the experience I had in the Victorian lockdown and now being left for dead in New South Wales.
The Australian system of government is a hybrid between American states with a federal government and a UK inspired representative model without a rights based constitution. The Commonwealth of Australia Constitution Act (The Australian Constitution) spells out the jurisdictional powers of the states and federal government. For better or worse there is no Bill of Rights. On the whole the constitution provides structure for effective government. While this structure is paramount this means that rights are secondary. The philosophy of protection of rights is that if you are unhappy with that governments decisions then your power is to make that heard in the next election. A result of this is the shame of many Australians that the government is not bound to protect human rights. This plays out with refugees or unlawful migrants who are placed in indefinite lawful detention when trying to enter Australia. Famously, the High Court of Australia in Al-Kateb v Godwin as well as the Tampa Case had no problem in affirming the Commonwealth has the power to indefinitely detain unlawful migrants.
This is mirrored on state level. Victoria (Vic) has a reputation for being one of the strongest advocates of rights, alas, this reputation is a result of grace not out of legislative necessity. In the past year the response to the pandemic in Victoria has included constant renewals of the state of emergency. This has encouraged careless abuse of human rights. In Victoria there is a Charter of Human Rights and Responsibilities (The Charter). However the state government merely has to consider rights in policy making; it is not bound by those rights (s 28, 29 and 31 of the Charter).
For these reasons, one asks why it is necessary for the extra powers conferred by a state of emergency. The only answer seems to me to be the faster exercise of power to the executive. The constant rollover of the state of emergency grants more power to the executive fast tracking decision making. This has lead to hasty decision making by the Premier Daniel Andrews and there has been a blatant disregard for s 111 of the Public Health and Wellbeing Act, which reads:
The following principles apply to the management and control of infectious diseases—
the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person.
Arguably, lawmaking such as the above would serve to protect rights and freedoms in a crisis such as the one we are currently experiencing. Additionally, if there are provisions like this, then perhaps the lack of a rights based constitution is not an issue in Australia. However as I explained with reference to The Charter, the Vic government in peacetime, with or without a state of emergency, is empowered to ignore whatever rights they choose; they just have to show they are thinking about it. Although the declaration of a state of emergency mobilises, stirs and motivates the people, in Victoria, it is not a necessary tool.
Alas, the numerous rollovers in Victoria of the state of emergency have run amok of the flimsy protection in the Public Health and Wellbeing Act. To be precise, s 200 of the Public Health and Wellbeing Act, empowers the public health officer, Brett Sutton, to pretty much do whatever he likes in a state of emergency. Victorians seemingly do not mind this constant roll over of the state of emergency. However, the very same act provides in s 198 (7)(c), that a state of emergency cannot be rolled over for longer than 6 months. Since the original declaration of the state of emergency was on the 16 of March 2020 and it is now the beginning of January 2021 we have almost hit a year of State of Emergency. The justification is of course to save lives and anyone would agree with that in principle. However it is increasingly difficult to understand decision making. Indeed what we get is constant and vague referrals to 'Health advice' with a capital H. The lack of scrutiny could become a source of further discontent
Now, there are numerous instances where s 111 of the Public Health and Wellbeing Act has been totally ignored in the past year. For instance the immediate shutdown of public housing for a covid cluster has been ruled unlawful by the ombudsman (fancy word for appointed official to investigate something). In keeping with the general undercurrent of our capitalist country the poorest seem to have the least rights. Of course the rhetoric that comes out from the Premier is that he makes no apologies for saving lives. No doubt lives do come first. Yet rational decision making let alone decision making in line with of the Public Health and Wellbeing Act, in particular s 111, should be promoted here. The State of Emergency encourages this hasty behaviour from the executive. Which, as the ombudsman Deborah Glass has found, was unlawful and a breach of human rights. The Victorian government has enough power without an indefinite state of emergency. The only thing the state of emergency has allowed is arbitrary abuse without due consideration. This is because restrictions can be put in place rationally without violating human rights by placing whole buildings on lockdown in the space of a few hours.
One of the powers of s 200 of the Public Health and Wellbeing Act is to restrict movement and I myself have been directly caught in the crossfire here. On the 13th of December I visited the Southern tip of the Northern beaches area doing a popular walk from the Spit to Manly in Sydney. A week later the Victorian government introduced a permit system for travel back into the state. However, you could not get a permit if you had visited the Northern Beaches. Wanting to do the right thing and with unfounded trust a provision would eventually be made for people like us we did not rush back home. Even so we never really had any time. The border permit system was announced at 3 pm for that night at 11:59.
We hoped we could wait two weeks from being in those areas and then return. However, by the weekend the Vic government extended this policy to all of Sydney. So now we could not wait to get a permit having been first in the Northern beaches and then in Sydney. When I called the Department of Health and Human Services (DHHS) hotline on Sunday the 20th of December asking them what I could do, they said I should wait for a call back while they spoke to superiors. The border closed on Monday the 21st to Sydney. DHHS called me back on Wednesday the 23rd and told me I cannot come into Victoria. Thank you for the timely 'advice'. Other people who called DHHS had been advised to spend 2 weeks in regional NSW and then qualify for a permit to cross the border. Of course not everyone can afford that. Just like not everyone can afford $3,000 for hotel quarantine that returning Victorians now face. It then became redundant since a hard border had been introduced. We remain stuck in Sydney now on the 12th of January as we have waited 6 days so far for our exemption application to be processed so we can go home. With the above in mind, when Mr Weimer criticises stranded Victorians it is incredibly patronising. We did not ignore advice and travel to NSW. We have been here trying to follow the rules and now have no way back home.
Alas, what has became clear is that none of the states are working together adequately. The Vic Government on its favourite website coronavirus.vic.gov.au, asked anyone who had been to the Northern beaches to get tested and self isolate for 2 weeks. However, the NSW advice was much more precise, they contact traced and let all close contacts know what to do. Otherwise they did not require further action besides to monitor for symptoms. In this crises the states have begun to behave like seperate countries and I feel as though I am stuck abroad. I would not be surprised if it was easier to get to Melbourne from overseas than from Sydney.
Linked to this is the absence of leadership from the Commonwealth government on this issue. No one can doubt the financial support they have provided. The amount of financial stimulus spent this year puts Kevin Rudd’s labour government to shame. Whilst at the time there was concern over how much Rudd had spent on a stimulus. In contrast, on the issue of the borders Scomo says that he must respect the jurisdiction of the states. The poisoned chalice that is action of covid seems to have made the Federal government hesitant to do anything.
Although the times we live in are exceptional surely a rational solution can be found? In my own case, a Victorian in Sydney, my need to return to where I live is restricted. It is worth noting that all the states are guilty of knee jerk panic attacks, border closures and not allowing for business or individual to plan accordingly. So what might be a resolution to this impasse? I argue respite can be achieved with a return to ordinary structures of government. MPs need to take responsibility for the executive and end emergency powers. If there is debate in state parliaments that we can comprehend then responsible caution can manifest. Let the talking cure resume. As Slavoj Zizek says, the situation is far too serious to panic.This will promote clear decision making which for the first time in almost a year might be transparent to the people. The parliament is designed to have this power not the executive. Indeed Scomo is right that there is little appetite for a commonwealth backed border solution. No doubt, a suggestion of such might just hasten a ‘WAexit’ from Mcgowen. As such a return to normal debate with clear rational discussion is all I am asking for.
Bibliography
LAWS
The Commonwealth of Australian Constitution 1901 (Cth)
The Charter of Human Rights and Responsibilities Act 2006 (Vic)
The Public Health and Wellbeing Act 2008 (Vic)
CASES
Al-Kateb v Godwin (2004) 219 CLR 562
Ruddock v Vadarlis (2001) 110 FCR 491
ARTICLES & ANNOUNCEMENTS
Brett Sutton, State Of Emergency Declared In Victoria Over COVID-19, https://www.premier.vic.gov.au/state-emergency-declared-victoria-over-covid-19
Chanel Zagon, ‘Victorian Government refuses to apologise for 'unlawful' lockdown in the wake of explosive Ombudsman report’ 9 News (Online, 17 December 2020). https://www.9news.com.au/national/victorian-ombudsman-finds-hard-lockdown-melbourne-public-housing-residents-unlawful/f4c6f1ca-de50-4b3a-8759-1efe946e65e2
Ashleigh McMillan, Paul Sakkal and Simone Fox Koob, ‘Victoria urged to move quickly to bring back residents stranded north of border’ The Age (Online, 3 January 2021) <https://www.theage.com.au/national/victoria/this-can-t-go-on-forever-permit-hotline-struggles-after-exemption-warning-20210103-p56rfo.html>
9 News Staff, ‘Baby dies after pregnant northern NSW woman flown to Sydney instead of Queensland’ 9Newsa (online, 29 August 2020) <https://www.9news.com.au/national/coronavirus-border-closures-baby-dies-after-pregnant-northern-nsw-flown-to-sydney-instead-of-queensland/13ec6ec3-1a17-4436-9c07-e9f9aad144c4>
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