Rights and Freedoms

Abuse Of Power Is Appalling

Written by
23 August 2021
Originally appeared in Herald Sun

The closure of state parliament last week and the reintroduction of a nightly curfew across Melbourne are stunning reminders of the lawlessness that has characterised Victoria’s government under the guise of protecting public health.

Keen observers in Victoria might have noticed a subtle change to the parliamentary calendar last week. Where it once showed both parliamentary chambers sitting from Tuesday to Thursday, the calendar was edited to remove any sitting days on Wednesday and Thursday.

The cause for this change is extraordinary.

On Monday the acting director of the Covid-19 Response Division sent a letter to the speaker of the Legislative Assembly and the president of the Legislative Council directing them to cease conducting parliamentary business in person.

Almost no Victorian would know who this functionary is, or what the Covid-19 response team is, or where their powers come from. It doesn’t matter – what matters is that they are pretending to exercise a power they simply do not and cannot possess.

In a parliamentary democracy the presiding officers of the legislative chambers schedule the sitting days. Whether the bureaucrat issued the direction alone, or at the direction of another government figure, it is indicative of the arbitrary use of public health powers that has been emblematic of the Victorian response.

The other event last Monday was the imposition of a curfew from 9pm to 5am across Melbourne. Victorians will remember that this is not the first curfew – similar restrictions were enforced in August last year. The curfew was needed, it was argued, to aid enforcement of the stay at home orders issued under the public health legislation.

We were told then that the reason the curfew was scrapped had nothing to do with the fact the emergency powers in the Public Health and Wellbeing Act can only be used for purposes that are reasonably necessary to protect public health – not to make rules relating to enforcement.

Whatever concerns the government had about the legitimacy of curfews in August 2020 seem to have been replaced with total indifference.

Last week Premier Daniel Andrews said he doesn’t have to prove the curfews “work”. What “work” means in this context wasn’t explained.

But it doesn’t matter. In the one-party state of Victoria, Daniel Andrews is the law.

These are not isolated events when it comes to sidestepping the rule of law in Victoria.

Before the most recent lockdown the government was misusing the public health laws to require businesses to appoint a worker as a “Covid check-in marshal” to ensure any person entering a place of business is registering their visit to a government database.

In effect staff were conscripted into the public service – but the wages were being paid by the businesses.

Any well-heeled member of Victoria’s corporate class would have high prospects of invalidating this intrusion in the likely event they are introduced.

The public health legislation confers onto “authorised officers” the power to make and enforce emergency directions.

As the staff have not been appointed as authorised officers, it is unlawful to require them to enforce the directions.

The enforcement of the rules too has been a cause for concern. A prominent – but not isolated – example was the use of criminal incitement laws to arrest and punish Ballarat women Zoe Buhler almost a year ago for posting on Facebook about an anti-lockdown protest.

Never mind that the police seemingly didn’t raise a prima facie case that such an offence took place: the police have not indicated any person was incited to breach a criminal law.

Due to court backlogs caused by the lockdown measures, Buhler is still months away from challenging this policing overreach in court. Justice delayed is justice denied. One can only wonder whether that’s exactly the point.

While anti-lockdown speech and protests are harshly prohibited, other more divisive forms of protest have been allowed.

As legal advice obtained by the Institute of Public Affairs in July 2020 revealed, the decision by Victoria Police to refuse to issue fines, detain, or disperse Black Lives Matters protesters in June last year was potentially an unlawful use of discretion they did not have.

Lawless government doesn’t happen all of a sudden. It can only happen when the foundations of constitutional government have been weakened and more minor infringements are not checked.

The failure to enforce laws against Labor pamphleteers illegally wearing public service uniforms at voting booths can be seen as an early warning about what was to come.

If there is no accountability this time, and if no one champions the rule of law and resurrects our democratic norms, then whatever rights and freedoms we get back will inevitably be temporary.

The new normal will be one in which Victorians are never a free people again.

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Morgan Begg

Morgan Begg is the Director, Legal Rights Program at the Institute of Public Affairs

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