Human rights and pandemic lockdowns

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Ballarat resident Zoe Buhler does not see herself as a zealot who urged Victorians to protest the coronavirus lockdown rules last week. ‘Here in Ballarat we can be a voice for those in Stage 4 lockdowns [in metropolitan Melbourne],’ she put in a Facebook post. ‘We can be seen and heard and hopefully make a difference.’

Close up of police vest (Scott Barbour/Getty Images)

Victoria Police duly made their way to her home in Miners Rest. Their intention: to arrest and charge Buhler under the incitement provisions of section 321G of the Victorian Crimes Act 1958. One officer explained the reason for being in her home. ‘It’s in relation to a Facebook post, in relation to a lockdown protest you put on just that day.’ A shocked Buhler expressed confusion and promised to cooperate. She would take down the post, not realising that she had done anything wrong and not knowing the meaning of ‘incitement’. Buhler noted the presence of her children as she was cuffed. She also claimed to have an ultrasound appointment in an hour.

The Buhler arrest stirred a range of responses from across the political divide, many troubled. ‘You can accept lockdown and support saving lives,’ wrote associate editor of The Australian Caroline Overington, ‘but you should still oppose cuffing anyone — much less a pregnant woman.’ Janet Albrechtsen of the same paper suggested a turn to fascism in the state, with thirteen senior medical specialists warning Premier Daniel Andrews that the ‘stage 4 lockdown policy has caused unprecedented negative economic and social outcomes in people’. Health bureaucrats, she warned, had turned into ‘health dictators’.

Legal representatives and human rights advocates were similarly disturbed by what they regarded as a lack of proportion and restraint in police action. Rosalind Croucher, president of the Australian Human Rights Commission, expressed dismay, arguing that a crisis such as the current pandemic made it all the more urgent to respect rights. Temporary limitations on rights and freedoms in controlling infections might have been necessary but ‘must always be proportionate to the risk — and managed appropriately.’

Similar sentiments were echoed by Elaine Pearson of Human Rights Watch, who went further in seeing dark parallels. ‘Arresting people pre-emptively for the act of organising peaceful protests or for social media posts is something that happens all too often under authoritarian regimes, and it should not be happening in a democracy like Australia.’

President of the Victorian Bar, Wendy Harris QC, reiterated the position that ‘enforcement of those laws needs to be proportionate and consistent.’ In a September 3 statement, the Victorian Bar suggested that the police had been neither in their conduct. Buhler had been arrested and handcuffed before her partner and children, despite Victorian case law holding that ‘that a police officer is not entitled to use handcuffs on a person merely because an arrest is made.’ The measure was also inconsistent with previous ‘reported and more measured responses by authorities to organisers and protesters of similar protests planned or carried out in contravention of public health directives.’ Nothing less than the rule of law had been risked as a result.

The Assistant Police Commissioner Luke Cornelius was moved to admit that the arrest had been poor for ‘optics’ were ‘never going to look good’ but claimed his officers had been well behaved and ‘polite’. They had even offered Buhler assistance in rescheduling her ultrasound appointment. For all that, he was unrepentant, ‘outraged’ that ‘there are still people in our community who think it’s a good idea at the time of this deadly pandemic to leave home and protest.’

 

'The general citizenry also require protection from the potential abuse that over-zealous policing entails.'

 

As Greg Barns, National Criminal Justice spokesman of the Australian Lawyers Alliance, pointed out in The Age, Buhler ‘should not have arrested her in the first place.’ The police could have taken her up on her offer to remove the Facebook post with immediate effect, explain the nature of any breaches of the law, and leave. Ruth Barson, Legal Director of the Human Rights Law Centre, concurred. ‘Handcuffing a pregnant, remorseful woman who poses no threat, in her home in front of her kids, is plainly wrong.’

Instead, Buhler has found herself an unintended victor in the PR campaign which was bound to garner, as Barns put it, ‘greater sympathy for those who are wanting to launch protests against the Premier and his government’s draconian laws.’ As a case in point, Gideon Rozner, director of policy at the conservative Institute of Public Affairs is now in the processof gathering a group of legal representatives who, ‘by hook or by crook’ are intent on making sure Buhler does not face prison.

The Buhler incident is a pressing reminder that COVID-19 is not just medical, a matter of test results, data crunching and health directives. People are not only perishing because of a virus, or require protection from it. They are ailing in atomised isolation, many having lost gainful employment. Their mental health is suffering, with depression exacerbated and instances of domestic violence on the rise. As a Lifeline counsellor told the ABC last week, ‘an elevated sense of stress and anxiety’ around ‘social distancing, quarantining … isolation, disconnection from family, friends, community’ had been noted across calls.

The general citizenry also require protection from the potential abuse that over-zealous policing entails. Victoria Police have been accused by advocates such as Ariel Couchman of Youthlaw of issuing fines against people ‘when they are not breaching public health directions.’ Fines handed out for breaching coronavirus regulations have also imposed hardships.

Lloyd Murphy of Inner Melbourne Community Legal had also added his voice to such unnecessary heavy-handedness, noting instances of people being fined for not being at their family residence when complying with quarantine guidelines in hotels. Those in community housing seeking to better isolate in hotel accommodation and protect their families have also been given infringement notices. Ditto instances where the Department of Health and Human Services had put individuals up in hotels to prevent transmission in community towers.

Time to, suggests Barns, return to the basics: clear pandemic laws that do not grant vast discretionary powers to the police and an emphasis on education over penalisation and stress. For Barson, it is also time for institutional reform: the creation of a ‘properly resourced and independent watchdog to hold police to account when they do wrong, both now and beyond the pandemic.’

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: Close up of police vest (Scott Barbour/Getty Images)

Topic tags: Binoy Kampmark, COVID-19, Victoria Police, policing

 

 

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Existing comments

Could you get a more tediously neoliberal response than the Assistant Police Commissioner asserting that a pathetic overreaching paranoid arrest was done politely?
Sue Stevenson | 08 September 2020


I'd have thought Janet Albrechtsen would be quite delighted about a turn to fascism.
ErikH | 08 September 2020


"Incite" is a word that keyboard warriors should consider carefully before they tippy-tap something to urge others to something potentially illegal. With the greatest respect for those who want to risk the ire of the law in the name of their convictions I don't have much sympathy for those who would deliberately seek to cause affray or confrontation when the event has previously been declared illegal by authorities. Much like the preparedness of a previous, recent Melbourne demonstration organizer who was arrested and had the advice of "Run away" for those who attended...I don't think they thought through the risks for themselves, let alone those incited. Yep, that keyboard can get you into a lot of trouble; to suggest Buhler won any PR competition is pleading the case of a pregnant woman handcuffed in front of children...but perhaps the message to the public is more clearly highlighted by a minor PR gaffe?
ray | 08 September 2020


The Coronavirus has caused a great deal of emotional stress for everyone and financial loss for many. It is infuriating that there are some people who want to march in the streets and keep us all in this lockdown for longer. Some people will not survive the uptick in infections that mass protests cause and others will have lasting illness. I felt a bit sorry about Ms. Buhler too, but I feel even worse for those who have died and for those who risk their own lives to care for the ill. 7,000 health workers have died from Covid the world over. Just stay home as we are being asked to do!
BPLF | 09 September 2020


Leave it to the experts who have spent 7 years studying as undergraduates and 7-8 years postgraduate study ending in extensive examinations with high failure rates before being registerable as specialist epidemiologists or infectious disease physicians. Think of others rather than self. Personal opinions do not negate scientific facts. Letting the lunatics run the asylum is dangerous.
john frawley | 09 September 2020


While the Police Action in relation to Ms Buhler seems an extreme over reaction to her "incitement" post , protesters reacting to the "Lock down" as a breach of their rights are refusing to accept the need for such action for the common good of society . The COVID - 19 Virus is a very dangerous beast, particularly for the elderly and impaired health members of the community. these people should realize that their their freedom only extends as far as the freedom of others. I am sick of winging "nellys" complaining about the impact of the restrictions on their lives, their businesses and their profits and something called "the Economy". Are they happy to consign their elders to a lonely and horrible death so they can continue to live life as "normal" again? How dare they!
Gavin O'Brien | 09 September 2020


The police are hopeless at managing such delicate situations. The unnecessary stress, caused by the presence and interrogation resulting in adverse chemical reactions, not only for the mother, but for her unborn also, was the sad and harmful reaction to their complete tactlessness. Female social workers should have been sent to her door instead.
AO | 09 September 2020


The chief health officer, Brett Sutton, said he did not recommend the Melbourne curfew, “but it wasn’t something I was against from a public health perspective.” Premier Daniel Andrews admitted, “I’ve made that decision” and he said “it makes the job of police much easier.” After charging George Pell 26 times for child sex abuse and failing every single time, and the Lawyer X scandal, Victorian police have now tasted success—in arresting a non-violent, pyjama-clad pregnant woman.
Ross Howard | 10 September 2020


The police are just doing their job. Stop going those who are trying to protect us all. They place themselves in great danger. Stop villifying your fellow Australians. Bless the police! Bless the medicos! The woman wasn't beaten and tortured. Get some perspective .
John | 11 September 2020


Come off it Ross. As John says, get some perspective. If you are worried about policing in Australia, can I suggest that you focus on the activities of the AFP, ABF, and the rest of Dutton's enforcement agencies, including secret trials and secret imprisonment.
Ginger Meggs | 13 September 2020


Come off it, ErikH. Janet Albrechtsen is far from being a fascist. She was most underwhelmed by the way Zoe Buhler was treated. She's a great one for Civil Liberties, Janet.
Edward Fido | 14 September 2020


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