Dan’s miscarriage of justice
Of all the images of Victorians suffering through two years in lockdown, the most indelible surely is that of a heavily pregnant Zoe Buhler being arrested in front of her family by Victoria Police in Ballarat over a social media post.
Last week, one of the most shameful episodes in Victorian law enforcement history reached its rightful conclusion when police prosecutors formally applied to the Ballarat Magistrates Court to drop proceedings against Ms Buhler.
This is a welcome but long overdue outcome. Zoe Buhler should never have been arrested in the first place. It should never have been considered acceptable to arrest someone in their home for peacefully expressing an opinion about the government.
Those with long memories, and unfortunately you would need a long memory, will recall that Ms Buhler was arrested and charged in September 2020 under the Crimes Act for the offence of incitement. The charge was based on social media comments by Ms Buhler about a proposed protest of government lockdowns, a protest that ultimately never took place.
Justice delayed is justice denied, and Ms Buhler’s case has been languishing in the courts for two years. That is two long years of uncertainty for Ms Buhler and her family with a criminal charge hanging over her head. Between the intimidation and the stress, the process has been the punishment.
However, it would be a mistake to think the decision to now withdraw the charge is a clear victory for common sense. The perverse outcome of the prosecutors’ decision is that we may not have the chance to test the government’s extraordinary claims. It is highly questionable whether the police had any valid basis for even arresting Ms Buhler in the first place.
In order to make an arrest without a warrant, police officers need to reasonably believe that a person has committed an indictable offence. Yet, Victoria Police still has not established a prima facie case that the offence of incitement under Victoria’s Crimes Act had ever taken place.
The offence of incitement, which Ms Buhler was charged with, requires an inciting act and that another person was incited to commit an offence.
However, in arresting Ms Buhler, Victoria Police were acting on the assumption that inciting acts could be made to the public at large and that someone, somewhere, at some time might have been incited to commit an offence. This kind of interpretation would give police an immense scope to criminalise speech.
Quietly dropping the charge now means that these claims, and the gross overreach that resulted, cannot be tested in the courts. Beyond the specifics of the case, Ms Buhler’s challenge went to the heart of the Victorian government’s pandemic response, namely, that the public health rules existed within the realm of the criminal law.
It was always inappropriate to allow Victoria’s chief medical officer alone, without oversight or accountability of parliament, to declare aspects of everyday life not just to be discouraged, but policed as criminal behaviour.
The classic common law rule is that ‘the absolute divorce of law from morality would be of fatal consequence’, meaning it is a mistake to criminalise people for conduct which is not morally flawed. It is not morally wrong to protest government overreach or to express an opinion on social media.
But this approach characterised the pandemic response in Victoria. The criminal law was employed as a measure of first response.
A previously unknown bureaucrat was authorised to create new criminal offences and the police were weaponised to treat all Victorians as if they were criminals for engaging in ‘non-essential’ activities like sitting on a park bench, taking the kids to the local playground, or playing a round of golf.
In these circumstances, what happened to Zoe Buhler was not a mistake or unintended side effect.
It was the obvious consequence of an arbitrary and inconsistent approach which completely ignored ideas about proportionality, democratic oversight, and the rule of law.
It also should not be forgotten that the only time protests were harshly shut down by the Victorian government and its agencies was when Victorians were protesting government policy.
Anti-lockdown protesters were met by intimidating riot police and hit from behind with rubber bullets, while radical left-wing movements like Black Lives Matter were allowed to march through the Melbourne CBD. This is what it looks like when you live in a state with a two-track justice system.
Zoe Buhler was not alone; hers was just the only case to make international news, not least because her family had the foresight to record footage of her being confronted in her kitchen by black-clad and masked officers.
Others who stood up against the lockdowns were arrested on similar charges, including documentary filmmaker Topher Field and activist Monica Smit.
In reality, millions of Victorians had their lives turned upside down through the unprecedented authoritarianism under the guise of public health.
The rule of law requires all people to be subject to the same rules, which are enforced in a predictable and fair way. Victoria’s pandemic rules were unclear, unfair, and draconian. It is fundamental now that government’s and their officials answer for these fundamental failures.
All Australians deserve a full and wide-ranging royal commission into the way they were treated by their governments during the pandemic and the costs of the governments’ response, as well as a promise that this will never happen again.
In the meantime, the Victorian government should apply the new Buhler standard to all Victorians and grant an immediate amnesty to anyone who was charged or fined for exercising their basic rights and freedoms as Victorians.