By Michael Koziol
It’s a particularly Australian version of hell: being turfed off the beach or kicked out of the park by police. The very thought was unimaginable just a month ago. But that is the harsh reality of life under the restrictions taken to contain the spread of the coronavirus.
Places of social gathering have been progressively shut down and various other liberties gradually eroded. For weeks, Australians have been told to stay home unless they must go out. But then on Tuesday, state governments began to enforce that policy using the full brunt of the law.
In NSW, you can be fined up to $11,000 – or sent to prison for six months – for leaving the house without one of 16 prescribed “reasonable excuses”. That is the possible outcome if a case goes to court; most people would probably rather cop the $1000 on-the-spot infringement notice.
Victoria’s “stay at home directions” set out similar restrictions, with fines of up to $20,000 (but no jail time). And in Victoria, the order reaches into the private home, explicitly banning people from admitting anyone who doesn’t ordinarily live at their residence (with some specific exceptions).
The issue has proved vexing. Everybody wants to stop the virus; most people agree on the need for some form of social and economic shutdown to bring that about. Many wanted stricter lockdowns. But the sight of these policies being enforced with state power has been sobering, especially given the size of the penalties. This has led to inevitable accusations that we are now in a “police state”.
State and territory governments have gone further than the national cabinet led by Prime Minister Scott Morrison suggested. The cabinet resolved to ban gatherings of more than two people, which has happened. It issued “strong advice” that people stay at home unless for an essential purpose, but it did not explicitly resolve that this should be legally enforced. States have elected to do so.
Furthermore, there has been confusion. The rules differ between states, and authorities have been unable to issue clear and consistent answers to common, reasonable questions about what people are allowed to do. In thousands of comments on social media and newspaper articles, people ask why they can still shop at a crowded Bunnings or get a haircut, but can’t sit alone in the park.
“You’d be forgiven … over the past couple of weeks for saying that you didn’t understand the laws because they have not been drafted in the usual way, they’ve been made on the run,” says barrister Greg Barns, who is also the spokesman for the Australian Lawyers’ Alliance. “It’s important that as a matter of fairness the laws are set out clearly and that they are not simply left to discretionary interpretation on the part of police and public health officials.”
At the same time, Fuller declared himself disappointed with some officers’ actions on day one of the new rules, after Sky News captured footage of police driving through Rushcutters Bay Park with their windows down, telling people to stop sun-bathing.
“Could they have got out of the car and achieved the same thing in a less aggressive way? Yes they could,” he said. “Is that the sort of policing practices we want to see in NSW? No it’s not.”
Fuller acknowledged there would be days when people felt “aggrieved” by the way these laws were enforced. At the same time, they have to be enforceable. “If it can’t be policed, then it’s not good legislation,” he said.
Meanwhile in NSW, government advisers were telling journalists that visiting your partner was not technically allowed under the public health law but was unlikely to be policed in any serious way. Then at a press conference on Wednesday, Fuller said it was “absolutely” fine to visit your partner, because it involved giving care to another person and was part of preserving good mental health. Behind him, Premier Gladys Berejiklian nodded furiously and said “yeah” several times.
Berejiklian has tried to strike a reassuring tone. She spoke of the need to “absorb” the new rules and “adjust” to them, and innovate in the way people live their lives. She also sought to clear up some of the uncertainties around what people can do outside. Essentially: you can exercise, but not linger. If you do so, you risk a fine.
“The advice is that you should be walking through, you shouldn’t be stationary at those locations,” Berejiklian said. “Because if a number of people decide to be stationary, that’s an unsafe place. So we’re saying to people; exercise, but walk through, don’t stop and stay at a location.
One reason people may find these new rules onerous is that they have been introduced at exactly the same time as the number of new coronavirus cases appears to be stabilising. Medical experts have cautioned against cracking open the champagne straight way. But the positive signs seem at odds with ever-escalating infringements on civil liberties.
Peter Collignon, an infectious diseases physician and microbiologist at Canberra Hospital and a professor at the Australian National University, has made the same point, accusing authorities of overcooking the response for no genuine public health benefit. “You are safer outside than inside. I do not see how anyone’s going to get this virus if they keep two metres away from someone and I don’t see how anyone’s going to get it if they sit on a park bench,” Collignon told The Canberra Times. “I think this is not sustainable for six months. We have to do everything we can to minimise the spread to others, but not do things that don’t even make biological sense. My real worry is if we overdo it now we will have people particularly in their 30s and 40s who will say ‘stuff this’.”
Conservative commentator Andrew Bolt makes a similar argument. He has demanded Morrison outline an “exit strategy”, insisting the restrictions cannot go on for six months because they will cripple the economy and the country. On Friday he pointed to the flattening curve as justification for ending the current “home imprisonment”.
The premiers and chief medical offers have an answer to this. They say the decline in new cases we’re currently seeing is largely because fewer people are returning from overseas with the virus. The problem is spread in our communities, hence the need for more restrictions. “That is the real threat for us in NSW and they’re the numbers that keep going up and that’s what concerns me mostly,” Berejiklian said on Friday. “That is where we need to turn our focus.”
Fuller had also honed a fair response to why people can’t lie in the park. “At the end of the day the challenge I have is that if one person’s allowed to sit in the park, everyone’s gonna want to sit in the park,” he said. “I know it’s not a great look, but if one person’s allowed to go to Bondi on a hot day to swim, 10,000 people are gonna go.”
So how are police officers using this discretion on the ground? The force has displayed significant transparency in NSW by releasing a list of infringement notices issued for breaches of the Public Health Act. Some people have been fined only after ignoring multiple warnings, such as a 21-year-old man in Newcastle fined $1000 after being found outside three times in one day (the final straw was eating a kebab on a bench).
But others were fined straight away. In Muswellbrook, a man and woman were fined after police spotted them sitting in their car and they failed to provide a reasonable excuse for being out of home. In Artarmon, two young men were seen loitering on the Pacific Highway; one tried to run, and they were both fined for being outside without an excuse. In total, NSW police issued 13 infringements on Wednesday.
That same day, Victorian police also issued 13 on-the-spot fines, of $1652, including one for a person who was found visiting someone else’s home. Chief Commissioner Graham Ashton said his force had stepped up its patrols of the sex industry, which has been deemed non-essential and isn’t allowed to operate. A Frankston massage parlour was fined and shut down on Tuesday, followed by a Geelong brothel the next day.
We are handling compliance differently to our friends in New Zealand, who are in the second week of an intense month-long lockdown. Police in that country do have the ability to fine people about $NZ2000 for failing to comply with various laws, including under the Health Act. But the NZ Police said its focus has been on “prevention through education and encouragement”.
“There have been some isolated incidents where there were reports of people congregating,” said a spokesperson. “In these situations the people were spoken to and provided with advice on what the restrictions mean. We don’t want to get to a place where have to enforce these restrictions … but we will if required.”
At this stage, it seems clear Australia’s state police commissioners are mindful of the need to keep the remnants of the economy going as much as possible, and are aware that their discretion in exercising these new powers will come under the microscope. So far they have not issued massive numbers of fines, but just enough to have the intended chilling effect on behaviour.
Perhaps the bigger picture is the way these laws have played into the broader culture war over liberty, which may have been briefly suspended for the pandemic but has come roaring back. The loudest voices condemning the restrictions are conservatives such as Bolt, 2GB’s Alan Jones (who blasted the laws as “completely over the top” and rushed to the kebab eater’s defence) and John Roskam, the head of the libertarian Institute of Public Affairs think tank.
“In the space of just a few weeks, Victoria became a police state,” Roskam says. “I never thought in my lifetime I would see the Australian army patrolling our streets telling people to stay in their house. There’s a bunch of us saying: have we lost all sense of proportion?”
At the more centrist Grattan Institute, chief executive John Daley has no such qualms about the restrictions. “These are measures that are being taken for the health of us all,” he says. “This is a classic [tragedy of the] commons problem. The problem is there’s no point in me doing it if I don’t know that everybody else is going to do it. I think it’s entirely appropriate in that situation to use the force of the law to ensure that a few selfish people don’t ruin it.
“If we think this is worth doing then unfortunately we have to enforce it, preferably with not too heavy a hand, so that we all get the benefit of what most people are doing without any form of police compulsion.”