Victorian Political Dystopia is a spin-off article series based on our Victorian Crime Dystopia article series. In this new series, we explore how throughout 2020 Andrews Government’s coronavirus response and strict lockdowns have created a dystopian political environment in the state and endangered democracy.
Below is the first in the series and focuses on the fact that the use of discretion and inconsistency in the application of the enforcement of Victoria’s lockdown measures has seen the trashing of the legal principle of equality before the law. Plus it also explores how the true culprits of Victoria’s second wave are still yet to face justice.
The Arbitrary Roadmap out of Lockdown
Victoria’s coronavirus new daily coronavirus case numbers are now stable in the teens and today only 5 new cases were confirmed. Active cases throughout Victoria continue to tumble and are now under 400, cases from an unknown source are also declining. Melbourne’s 14-day case average is now below 25 which is well below the 30-50 daily case average than Dan’s initial supercomputer modeling said was necessary for Melbourne to take its second minor step out of lockdown that came into effect today.
The state’s second wave finally appears until control with the new daily case numbers now at levels which New South Wales managing over the past few months. Health authorities in that state have been able to manage and contain outbreaks without locking down the state.
Dan Andrews announced a modification of his roadmap out of lockdown one day before the due date for the second minor step. The only modifications to the second step which he first announced on September 5th are the fast-tracking of primary school students going back to face-to-face learning, gardeners, and landscapers can resume working and the nightly curfew currently at 9 pm will be lifted.
The third step out of lockdown (which Regional Victoria is currently at) that would see stay-at-home orders lifted has been moved forward from October 26 to October 19. This would see hospitality, golf, and personal care services (including hairdressers) able to reopen but masks still mandatory.
Many people couldn’t help but notice that Dan suddenly lifted the curfew the day before the challenge to the legality of the curfew by Mornington Peninsula Cafe owner Michelle Loielo in the Supreme Court of Victoria. The court ordered the State Government to provide advice they relied upon to impose the curfew from the deputy public health commander Michelle Giles. The government documents revealed their own lawyers though the curfew would breach the state’s human rights charter. Despite the curfew being lifted the court challenge proceeded as scheduled today.
Gardeners and landscapers being permitted workers again mean Jim’s Mowing franchisers can resume operating. This could have something to do with Jim’s Mowing founder Jim Penman preparing a class-action lawsuit against the stage 4 industry restrictions on behalf of his franchisers. Jim Penman has also been vocal in the media against the lockdowns and is a supporter of a rising new activist group Reignite Democracy Australia
Covid Emergency Powers Extension
The continuing of the 5km travel radius bans on visits to the home and the face-covering mandate now becoming a mask mandate means the Victorian Police State which has alarmed more residents will continue.
Andrews got his 6-month State of Emergency extension passing the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 through the Parliament on September 4 allowing him through the Chief Health Officer to enforce varying degrees of coronavirus restrictions until March 2021.
Now before the Victorian Parliament is a six-month extension of the Andrews Government’s COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 which would allow them to appoint any person an authorized officer with the power to enforce the measures in this bill.
The most concerning is the power to indefinitely detain anyone they believe to be a high risk of spreading coronavirus or not likely comply with self-isolation or other health directives. Such powers could be used to detain conspiracy theorists who refuse to quarantine or severely drug-affected or mentally impaired people.
Apart from the arbitrary detention powers the other highly concerning aspect of these powers, and has been a defining feature of all law enforcement of the state of emergency provisions is the discretionary power it grants authorized officers. Many distinguished legal organizations and figures have expressed grave concerns over the scope of these powers.
Problems with Discretionary Powers
When it comes to enforcing the lockdown provisions and issuing fines we have been constantly told police and other enforcement bodies can exercise discretion. This is not a positive thing because the law is no longer objective and this discretionary power given to authorized officers allows them to be both judge and jury, has been demonstrated to have been applied overzealously and incorrectly and also been used to intimidate members of the public.
A heavily pregnant woman was told by a Victoria Police officer she couldn’t sit on a park bench to rest during exercise, that was his interpretation of what the provisions meant allowing one hour of exercise. A law professor who has cerebral palsy was told by Victoria Police to keep walking when she paused to take a sip of a take away coffee. Both these women by stopping for a moment in the open air were not at risk of spreading the virus and were socially distanced.
The broader legal implications of law enforcement officers having discretionary when applying these emergency powers are that each officer has their own objective interpretation, the consequences are we don’t have the law being applied equally in all circumstances.
Laws Being Applied Unequally
One of the worst examples we’ve had in Victoria during the coronavirus lockdowns of the emergency laws not being applied equally is political protests. In early June when public gatherings were limited to 20 people Victoria Police basically gave the green light to Black Lives Matter protesters and expressed their own sympathy with the cause.
The rally attracted over 10,000 people who didn’t practice social distancing It was only after public outrage that the three organizers of the protests were issued with $1652 fines for breaching the Chief Health Officer’s directives. But none of the attendees received a fine.
But when it has come to the recent anti-lockdown demonstrations in Melbourne they have fined all of the attendees they’ve caught on the day of these protests. They’ve also charged the various organisers with incitement, a serious indictable criminal offence.
Victoria Police and Dan Andrews have called anti-lockdown protestors ‘selfish’ and stupid’. Starting with the protests on September 5 at the Shrine of Remembrance Victoria Police took preventative measures to prevent people from attending through new checkpoints on the way into the CBD.
At the Shrine police in full riot gear arrested and fined all attendees they could capture. Victoria repeated this operational approach at the Queen Victoria Market on September 13.
On September 14 the first step out off Melbourne’s stage 4 restrictions came into effect. Melbournains were allowed out for two hours of exercise or social interaction with one other person within their 5km radius.
By this time anti-lockdown protests, organisers had enacted a strategy of releasing the location of the protest 30 minutes before it was scheduled to commence and instruct their followers to flash mob protest to the location.
On Saturday September 19 they chose Elwood Beach in Melbourne’s inner-south. Victoria Police chased them on horseback and with public order response vehicles. Given it was a beautiful spring day in Melbourne many groups of two were out in the beachside area.
But police were only interested in policing the activities of those who appeared to be engaged in political activism. As the below meme from Reignite Democracy Australia demonstrates the police operation in the area looks like it is one aimed at crushing public dissent against Dan Andrews.
On Sunday the flash mob of anti-lockdown protesters went to Chadstone Shopping Centre in Melbourne’s inner east and sang John Farnham’s iconic song ‘You’re the Voice’. The Victoria Police public order response team followed them there to fine and arrest them.
But Victoria Police were not interested in monitoring whether the shoppers at Chadstone were there for lawful reasons, only those engaged in political activism against Dan Andrews.
Anti-lockdown protest organisers decided this past weekend to make their protests as lawful as possible releasing a dozen different locations that people could attend within their 5km radius from home and only protest with one other person. Amazing unlike the previous three weekends Victoria Police took a hands off approach and simply observed at these locations.
The Casey Cluster
During Victoria’s second wave most of the coronavirus case clusters have occurred in essential/permitted workplace. The only outbreak via private gatherings which are banned under Melbourne’s stage 4 lockdown were 5 Afghan households in City of Casey in Melbourne’s South East.
Victoria Police have fined hundreds of Victorians for illegal gatherings in the private home during the various incarnations of the stay at home orders. During the stage 4 lockdown they have also fined Melbournians for traveling outside their 5km radius from their homes.
It was also revealed that that these Afghan households had traveled outside their local 5km radius to visit each other. But despite the clear breaches of the stage 4 lockdown these households engaged and the cluster grew to a total of 44 cases Deputy Secretary of the Department of Health & Human Services Jeroen Weimar and Premier Dan Andrews told the media they would not be fined.
Mr Weimar told Radio 3AW “We can only stop this virus spreading if we know who else they’ve been in contact with. That is far more important than a fine”. Police Commissioner Shane Patton said this decision not to fine had nothing to do with Victoria Police, even though they are the enforcement agencies issuing the penalty infringement notices.
Dan Andrews told the media at his daily press conference ‘I’m happy to concede that might seem a counter-intuitive point. Perhaps we would all feel a bit better if they got slapped with a fine, but the value of the information that allows you to take one test result and then find the 33 other people who’ve got it, is much more than $1652,’
This is an inadvertent admission from Dan that his big stick enforcement approach to the lockdown deters people coming forward with important contact tracing information if they’re constantly threatened by $1652 fines. But he will still continue with this approach for every other Victorian.
Chief Health Officer Brett Sutton even apologized for “inadvertently called out Afghanistan” stating it was inappropriate. His apology conformed that the Casey Cluster was among Afghan households.
Because this cluster was caused by illegal private gatherings and rose to 44 this is probably way Dan Andrews announced today another fine increase to $4957 to those who hold either indoor and outdoor illegal gatherings. Suddenly after the non-fining of the Afghan families, the big stick is back and extended further.
Victorian police Commissioner Shane Patton today fronted the media to welcome the new increased penalty for illegal gatherings vowing police would increase patrols and surveillance around populated areas and keep a close watch outside houses for how many cars were parked. Patton did not mention nor was asked about if political gatherings outside will be targeted in the same way if they contain more than five people from more than two different households.
Hotel Quarantine Inquiry
The Board of Inquiry into Victoria’s failed Hotel Quarantine which unleashed the state’s second wave wrapped up today with Dan Andrews being the final witness to testify. The final week saw senior bureaucrats testify including former Police Commissioner Graham Ashton and members of the Andrews Cabinet: Jobs Minister Martin Pakula, Police Minister Lisa Neville and Health Minister Jenny Mikakos.
After the conclusion of all the witnesses’ testimonies and statements, the Board of Inquiry is no closer to concluding who made the fateful decision to hire private security guards and reject assistance from the Australian Defence Force and Victoria Police. Almost all of the coronavirus cases from Victoria’s second wave can be genomically traced to quarantine breaches from Melbourne’s Rydges Hotel. All witnesses have said they do not know who hired the security guards.
The Board of Inquiry is costing Victorian taxpayers $3 million. It is worth noting that this board has never had the power to compel witnesses to testify or subpoena documents, and there are no consequences for lying to this inquiry. Justice Jennifer Coate, the head of the inquiry is due to hand down her finding on Friday, November 6.
Dan Andrews gave over two hours of testimony under questioning from Counsel assisting the inquiry Rachel Ellyard. Dan said how the quarantine program was to be implemented was not something he decided but “was an operational matter”. In his associated written statement to the inquiry, Dan claimed he regarded Health minister Jenny Mikakos as “accountable for the [hotel quarentine] program”.
This statement was widely seen as throwing Jenny Mikakos under the political bus. On Saturday morning Jenny Mikakos on Twitter posted a statement of resignation from her portfolio and parliament accusing Dan Andrews of undermining her integrity and therefore cannot continue to serve in his Cabinet.
Jenny Mikakos becomes the first Victorian Government Minister to fall on her sword and resign. She said she was “deeply sorry for the situation Victorians find themselves in”. But her voluntary resignation is still cold comfort for all the Victorians who have involuntary lost their jobs and had their businesses closed due to her Government’s continued lockdown. Mikakos will also leave parliament on a parliamentary pension, the others who’ve lost their jobs because of her government’s actions only have access to JobKeeper or JobSeeker.
Dan Andrews took until 3pm on Saturday to front his daily coronavirus press briefing. He unveiled his new Health Minister Martin Foley commenting on Mikakos’ resignation “the appropriate course of action for her to take” despite earlier in the week expressing his confidence in her as a Minister
Andrews also rebuffed renewed calls for he himself to resign stating he does not “run from problems and challenges”. Mikakos is the first Minister in Dan Andrews Crisis Council of Cabinet or the gang of eight as they are known to resign.
Many have pondered the question could Victorian Government Ministers and bureaucrats including the Premier be held criminally liable for the 768 deaths attributed to the state’s second wave because of the hotel quarantine failures?
Today in her closing submission to the inquiry counsel assisting Rachel Ellyard said just this. The failure of Victoria’s “hastily assembled” hotel quarantine program to contain the coronavirus was responsible for the deaths of 768 people and the infection of 18,000 others (and by extension, it can be argued responsible for the second lockdown and economic and mental devastation it has caused).
Robert Gottliebsen has argued in the Australian today that Victorian politicians and public servants have not suffered amnesia during their testimony but rather have a genuine fear that any admission of liability will cause them to be prosecuted under Victorian law. If found guilty they could face a potential jail sentence of up to 25 years and/or a fine of $16.5m.
But as we have seen in the case of the Western Australian Government’s anti-Clive Palmer bill the Victorian Government could just pass a law to exempt themselves from their own laws and legal obligations.
Victorians will suffer under stay at home orders and a police state with increased fines for at least another three weeks. Dan Andrews continues with his daily press conferences hectoring and threatening Victorians if they don’t do what he says then we he may not let us out of this lockdown.
But will the people who unleashed this second wave through negligence and cover-ups be ever held to account? Or will ordinary Victorians continue to bear the full brunt of the aftermath of the second wave? The answers to these questions will determine if Victoria remains a political dystopia where the rule of law, equality before the law, and natural justice continue to have any meaning.