The BFD | Court Challenge to Victoria’s Police State

Days ago, a Victorian Supreme Court challenge against that state’s lockdown laws was dismissed. While that case is headed for appeal, a second challenge to the iron rule of Premier Daniel Andrews is headed for court. This time, against the shocking decision to impose yet another dusk-to-dawn curfew on Melbourne.

When Premier Dan Andrews imposed this week’s curfew on Melbourne, barrister Vanessa Plain started receiving phone calls. Within days, it was clear that this curfew, like its predecessor, was heading for court.

Plain has received preliminary instructions for a legal challenge and it is easy to see why. Along with fellow barrister Jason Harkness she was part of the team led by Marcus Clarke QC that came close to victory last year when they challenged an earlier curfew.

As with the previous case, the court action is being pursued because of the simple premise that everyone has to comply with the law. Even politicians and bureaucrats. Even during a pandemic.

That logic remains sound: the community is required to obey the law and comply with health orders that restrict liberties. So the community has every right to ensure that premiers and health officials comply with laws that limit the circumstances in which those orders can be made.

As BFD readers will remember, when Jacinda Ardern imposed lockdowns in New Zealand last year, she did so illegally. For nine days, even as Kiwis were being confined to virtual house arrest, that action was unlawful.

The same legal framework applies in Victoria. Curfews in that state cannot be imposed arbitrarily whenever politicians find it convenient. Just like New Zealand, procedures set down in law must be met. And that means Andrews, like Ardern, has no authority to order curfews.

The Victorian and New Zealand parliaments have both vested that power in an authorised health official. The decision in the Loielo case has put that beyond doubt.

While one might wonder about the desirability of vesting extraordinary power to curb citizens’ rights in an unelected bureaucrat, the fact remains that that is the law. But even faceless bureaucrats have to justify their extraordinary powers.

If the proposed challenge goes ahead, a victory for the government might depend not just on whether the curfew was ordered by Brett Sutton, the chief health officer.

It could depend on whether Sutton had reasonable grounds for his decision. And that looks dubious given the doubts about whether curfews are effective in curbing the virus.

Epidemiologist Jodie McVernon, of the Doherty Institute, told ABC radio this week: “Personally, I’m not aware of any evidence that proves that curfews per se are particularly efficacious.”

So if this curfew is to survive a legal challenge, Sutton might need to persuade a judge that he was right about the epidemiology and McVernon, who is an expert on this subject, was wrong.

Beyond even that, the more fundamental principle is: is this the sort of world we want to live in? The Chinese pandemic has seen bureaucrats and politicians suddenly wielding unprecedented and dangerous powers. Having won the public health powers, they appear determined to enjoy them.

Because Covid-19 looks like being with us forever, scrutiny by the courts is essential to ensure the inevitable erosion of liberty is based on democratic processes and not arbitrary rule.

That requires lawyers of courage – particularly in Victoria. If what happened to Plain and Harkness after the Loielo case is any guide, those who demand adherence to the law risk retribution.

The Loielo challenge exposed them to a campaign of intimidation that is outlined in a file prepared by Marcus Clarke QC that is about to be presented to the Supreme Court’s prothonotary.

The Australian

Not only was Vanessa Plain subjected to a campaign of vilification by the media and politicians, political staffers went snooping on the LinkedIn profiles of Plain and fellow barrister Jason Harkness. It is also alleged that, in breach of the Court Security Act, someone took a screenshot of the webcast of last year’s court challenge: yet Victoria and Federal Police have both declined to act.

Most alarming of all, three unknown men tried to break into Vanessa Plain’s home the day after the first directions hearing in that case.

This is where the pandemic – or, more correctly, the political response to the pandemic – has brought us: human rights swept aside in a campaign of organised fear and intimidation; a police state where people’s homes can be searched without warrant, and unprecedented political thuggery.

The pandemic will pass. Unless challenged, the erosion of democracy and basic civil rights will not.