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The bottom just fell out of social distancing in Victoria

What else are we to infer when we see a large-scale gathering conducted with impunity, albeit gestures towards social distancing that did little in such a congested area? On the other hand, we see rather small-scale activities, you might say easier targets, banned with the big stick of fines. Too
many people at Rye Pier. Really?

Visitors to Rye Pier before the coronavirus crisis.

Visitors to Rye Pier before the coronavirus crisis. Credit:Chris Hopkins

We will only know the true extent of the consequences of the protest over the next couple of weeks, but the damage has already been done. And that damage is to public confidence in the health and economic response.

Let’s remember that the powers of the Health Minister and Chief Health Officer under the Public
Health and Wellbeing Act 2008 to impose far-reaching restrictions on the way we live, are
enormous.

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Not only are those powers profound, but there is little anyone can do to test whether the justification for those powers exists other than to, say, initiate action in the Supreme Court of Victoria. Don’t be surprised if that scenario materialises sometime soon.

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In recent weeks and months, I have been generally supportive of the government’s health response with some misgivings. But the events of recent days left me concerned that some people were getting a leave pass and being excused from service in a common cause we have all been asked to make sacrifices to uphold.

I should say at this point that whether you agree with the protests or not is beside the point. We need to do much more to address Indigenous disadvantage and most Australians want to see more done to close the gap, reduce Indigenous incarceration rates and generally make massive improvements in life outcomes for Indigenous Australians.

But this can’t be the basis for enforcement of the state of emergency.

The government should have done at least two things last week. First, it should have tried to defend, as far as it could, the basis for the state of emergency and restrictions made under it by the Chief Health Officer and his deputies by going to the Supreme Court and seeking an injunction. True, it may not have stopped the protest itself, but it would have signalled a commitment to the justification for restrictions that all of us have been required to bear at an inestimable cost.

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The second thing it should have done was make it clear through Victoria Police that as many people
who could practicably be fined for breaching social distancing requirements would be. Again, it is
obvious that Victoria Police would not be able to fine everybody in attendance at the protest.
But the message it sent out last week that only the organisers effectively would be fined creates
enormous problems.

This does not just relate to public confidence in the way Victoria Police is exercising its discretion. It may go to whether other people, exercising their freedoms in their own way, such as by re-opening businesses, can assert that fining them is discriminatory. A broad policy that it will not fine certain forms of activities, such as mass protests, may expose it not just to criticism, but potentially legal action that it is applying its discretionary policy in a discriminatory way.

It is not inconceivable that a person could argue that Victoria Police’s policy potentially breaches its obligations under the Charter of Human Rights and Responsibilities Act 2006. Even if its policy on fines is not discriminatory, it certainly is unfair.

Remember, it’s not about whether you agree with the protests. We all have the prerogative of exercising our basic freedoms in different ways. Someone’s right to exercise that freedom in pursuit of recreational interests or work is not inferior to the right of someone else who wishes to exercise that right to protest. Both are subject to the law and should not be treated differently under social distancing. But last weekend, they were.

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As a community, we have generally submitted to momentous encumbrances on our basic rights and freedoms. We have accepted these impositions in the cause of a common effort to overcome a deadly pandemic. It’s important that the government and it senior health officers show we are all bound in the same way.

John Pesutto is a senior fellow at the School of Government at Melbourne University, and was Victoria’s shadow attorney-general from 2014 to 2018.

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