Freedom, interrupted: Will the liberties we lost to COVID be regained?

It was in the early months of the pandemic that David Barton realised, as he sat by his dying wife, that in our singular determination to protect life from the spread of a virus, we were at risk of losing something just as precious.

Anne Barton wasn’t sick with COVID-19, she was sick with cancer. An inoperable, terminal liver cancer which, after enduring for 16 months the ravages of chemotherapy and the progression of the disease, she had decided to stop fighting. Now that she was in palliative care, what mattered was being as comfortable as possible and sharing the time she had left with people she loved.

Instead, COVID restrictions imposed on the small palliative hospital where she was receiving care meant she was allowed only one visitor a day, for one hour. That included visits from her husband of 44 years. If either of their children wanted to see their mum, David couldn’t see his wife. Their grandchildren couldn’t come at all.

Dr David Barton says being unable to hold a proper funeral for Anne, his wife of 44 years, was a profound loss of a fundamental right.Credit: Eddie Jim

Barton, a GP who throughout a long career in medicine has specialised in occupational health and safety, describes the situation as farcical. “No one wanted her to get COVID,” he says bitterly.

When Anne died, Melbourne was at the start of its second-wave epidemic and funerals were restricted to a maximum of 20 mourners.

David and Anne Barton met in their final year of high school. They shared a full life together. As recently as January 2020, the pair had travelled together to Antarctica. Anne was a teacher and had a big circle of friends and of lots of family. When the day came to celebrate her life, her brother was trapped on the other side of the Queensland border and most of her friends couldn’t come. Barton describes the denial of a proper funeral for his wife as the profound loss of a fundamental right.

“I am really angry about this,” he says. “Not only did I not get to grieve properly, I have had restrictions on my support from family and friends. I’m stuck at home, alone, having never been alone for 44 years.”

The cost of lost liberties

There is no law that explicitly protects our right to grieve, just as there are no statutory provisions for taking your kids to a playground or visiting your mum for a cup of tea. As University of Sydney and former Harvard philosophy professor Peter Godfrey-Smith puts it, these are rights so basic and ordinary, no one would have ever thought they needed protection in a liberal democracy.

Yet it is these rights, along with our rights to movement, expression and association, that we have forfeited over the past two years. We are in a pandemic, and the public health imperative for doing this has been made clear by state governments and epidemiological models. But who has properly considered, much less tried to tally, the cost?

Former race discrimination commissioner Tim Soutphommasane says he is concerned about where the pandemic has taken us and whether, as NSW, Victoria and the ACT emerge from the current lockdowns, we will necessarily regain all the liberties we have lost.

“I am getting a strong sense that we have become inured to restrictions on liberty to a point where people accept them as part of a new normal,” Soutphommasane tells The Age and Sydney Morning Herald. “There is something happening to our democracy and political culture which is deeply unhealthy.

“History shows that governments of whatever ideological stripe don’t give powers back easily. There may well need to be a robust debate to wrestle back power in our society. This is a real challenge for those in the political middle. At the moment, those most exercised about liberty have been libertarians and, most notably, those on the far right of the political spectrum. I am deeply alarmed at how much indifference there seems to be from the usual friends of human rights and civil liberties.”

Tim Soutphommasane: “I am deeply alarmed at how much indifference there seems to be from the usual friends of human rights and civil liberties.”Credit: James Brickwood

Since March 2020, when Australia first went into lockdown to slow the spread of COVID-19 and give our hospitals time to prepare for what epidemiologists and infectious disease experts feared was coming, our public health response has involved the restriction of citizens, by government, on a scale never previously imagined or attempted.

In NSW, this has been done through the standing powers of the health minister to deal with risks to public health. In Victoria, it has required a state of emergency declaration which provides the chief health officer with broad coercive powers.

As of this week, Victoria’s state of emergency had been renewed 20 times and Victorian Chief Health Officer Brett Sutton or his delegates had issued more than 300 public health directions. These dictate how and when we can leave our homes, go to school, work, pray, play, eat, drink and breathe without a mask. So far Victorians have been fined more than $60 million for breaching orders.

In both states, the exercise of coercive powers by executive government has been accompanied by the suspension of parliament and an absence of transparency. Every time Premier Daniel Andrews announces a new COVID-19 measure, he refers to unpublished public health advice. His government refuses to release the advice supporting public health measures, the identity of those who provided the advice and the evidence on which the advice was based.

Even in a public health emergency, human rights matter. The Victorian CHO is required by law, whenever he or she makes a public health order, to consider the implications under the state’s Charter of Human Rights and Responsibilities. These considerations, like the public health advice, have never been made public.

In all states, respect for liberty is supposed to be a fundamental tenet of public health decision- making. The National Health and Medical Research Council reaffirmed this in April this year when it published an ethical framework for public health decisions. The framework requires decision makers to affirm “the exercise of self-determination and individual choice, including the right to privacy” and lists transparency and accountability as key principles of public health decision-making.

At the start of the pandemic, the Scientific Advisory Group for Emergencies, the panel of scientists informing the British government’s COVID response, stressed the importance of encouraging individual agency in the public health response. “Greater transparency will help people understand personal risk and enable personal agency, send useful signals about risk in general and build public trust,” its minutes from March 2020 read. “Citizens should be treated as rational actors, capable of taking decisions for themselves and managing personal risk.”

Barton says this has been missing in Victoria. “We were never treated like adults,” he says. “We were never taken on this journey and respected for our integrity.”

Striking a balance

Euzebiusz Jamrozik is an infectious disease ethicist who holds research positions with the Monash Bioethics Centre and the University of Oxford. He says public health should always try to strike a balance between health and wellbeing, fairness and freedom. At the heart of public health ethics is the notion of proportionality.

“For a given level of public health benefit, the amount of liberty restriction or harm a policy involves needs to be proportionate to that benefit,” Jamrozik explains. “Public health frameworks are about making sure public health powers don’t overreach; that the amount of power we use is appropriate or proportionate to the risk and benefits.” The guiding principle here is that, if there are two remedies available to achieve a similar outcome, public health authorities should employ the one that carries the fewest restrictions on liberty.

While Jamrozik makes no criticism of the Victorian approach, his observations raise an obvious question. Why are the current lockdown measures in Melbourne today nearly identical to what they were a year ago, at the height of the second wave, when there was no vaccine and the outbreak was killing hundreds of aged care residents? By this week, nearly 80 per cent of people over the age of 70 had been vaccinated. Rates of infections are higher than they were and there are mounting pressures on Victorian hospitals but so far, there have been dramatically fewer deaths. The government says that at just 50 per cent fully vaccinated, the restrictions are necessary to prevent hospital overload until more like 70 or 80 per cent have had two doses.

Godfrey-Smith has written a thought-provoking essay in which he considers the implications of our loss of liberties from a centre-left political perspective. One of his reasons for writing the essay was his concern at the polarisation of pandemic politics in Australia and the need to bring an important debate back to the middle ground.

University of Sydney Professor of Philosophy Peter Godfrey-Smith is concerned at the long-term impacts of our loss of liberties during the pandemic.Credit: James Brickwood

He accepts that liberties are not absolute. However he warns that public health powers which curb liberties must be wielded with restraint. This means COVID-19 rules should not be more restrictive than they need to be and should be kept in force for the minimum time required.

Godfrey-Smith says a precautionary approach, although successful in limiting deaths from COVID, considers the worst-case scenario for health outcomes from the virus but doesn’t apply the same considerations to the harms of lockdown, including the loss of liberties. “An abundance of caution pulls against the environment of restraint; that you don’t go further than you need to,” Godfrey-Smith explains. “It is not good to have precautionary or worst-case scenario thinking just on one side and not the other.”

In his essay, he warns that a long-term cost of our loss of liberties during the pandemic could be an “entrenching of coercive habits” in governments, noting that “powers gained tend not to be willingly relinquished”. He also reflects on the damage that could be done by police having to enforce such a bureaucratic tangle of public health orders. In Victoria, 32,561 infringement notices were issued last financial year. “It is bad to have a situation where the police are routinely spending a lot of their time harassing people for trivial things - gathering, meeting friends at home, going on walks together and so on. We don’t want a lot of police action directed at these non-crimes.”

Godfrey-Smith will get no argument from Victoria Police command. It takes on average 1800 police officers a day to enforce Victoria’s border and COVID restrictions. Last week’s rolling protests in Melbourne, when construction workers and anti-vaccination activists took to the streets, were an additional drain on police resources. In eight days of consecutive protests between September 18 and September 26, police made 942 arrests and issued more than 800 public health infringements. Victoria Police, although committed to enforcing the current public health orders, are frustrated that within the government’s road map out of lockdown there is no commitment to restore the right to assembly and peaceful protest.

Police respond to protests at Melbourne’s Shrine of Remembrance on September 22.Credit: Wayne Taylor

“Victoria Police respects people’s right to protest and has a long history facilitating hundreds of protests each year,” Chief Commissioner Shane Patton tells The Age and Sydney Morning Herald. “The community can be assured that when large gatherings are once again permitted, we will happily work with organisers to facilitate peaceful protests.”

In Victoria, the only state with a charter of human rights, Premier Daniel Andrews has dismissed concerns about the loss of liberty. “This is not about human rights, it’s about human life,” he said during last year’s second wave. Professor Peter Singer, a renowned, Melbourne-born bioethicist who recently returned to his teaching and research duties at Princeton University, says it is about both.

“It is hard to imagine prior to the pandemic that people might not be able to have a visitor from their home, not travel more than five kilometres from their home, not go out without one of a specified, limited range of reasons for going out; they are huge infringements of liberty,” Singer says. “The question is simply are they justified, as temporary restrictions of liberty, in order to deal with an unprecedented situation? I think it is arguable they are.”

Singer says he would be shocked if the Victorian government, or any Australian government, sought to continue to restrict some basic freedoms after the pandemic was over. “I would see that as a great betrayal of the trust the public has placed in them.” It remains unclear, however, when state governments will declare this pandemic over. Andrews has indicated that even once 80 per cent of the population is vaccinated, there will still be a need for public health restrictions. The Victorian road map currently offers a blank canvas on what this might look like, other than a promise that we can have 30 people over for Christmas lunch.

Watching the guardians

Liberty Victoria president Julia Kretzenbacher says the pandemic has exposed the weakness of Australia’s human rights protections and the toothless nature of Victoria’s 15-year-old human rights charter, which doesn’t enable individuals to sue for damages when their human rights are unlawfully breached.

Kretzenbacher says a central problem with the Victorian government’s public health response is the lack of transparency surrounding its decisions and their compatibility with human rights. She says it is difficult to draw a line between public health orders which are reasonable and those which are not because of the lack of information made publicly available about them.

Kretzenbacher rejects the notion that Liberty Victoria and other traditional champions of human rights have been missing in action during the pandemic. She points out that her organisation argued against curfews, last year’s lockdown of housing commission towers, the locking-out of Victorians stuck in NSW and the failure to repatriate Australians stuck overseas. More broadly, she is worried about the rise in executive decision making in Australian governments, including the Victorian government, at the expense of parliamentary processes and the militarisation of Victoria Police and heavy-handed tactics employed throughout the COVID crisis. The NSW Council of Civil Liberties has also warned about the overreach and disproportionality of stay-at-home orders imposed on some of Sydney’s most ethnically diverse suburbs.

The difficulty is that, against the fractious, hyper-partisan backdrop of the pandemic, such concerns can be difficult to hear. “On Twitter there are very loud voices and very polarising opinions who get a lot of attention and there is very little balance,” Kretzenbacher says. “We can’t divide things like this into binaries. There is a middle, there is nuance.”

Andrew Dawson, a professor of anthropology at the University of Melbourne, says some blame for this rests with what he calls “selfish libertarianism”; the angry demand for rights without giving thought to the impact this will have on others. He cites the Melbourne protests as a full-throated example. Dawson describes as “completely paranoid” the notion that Australian governments would deliberately extend their powers beyond what is necessary to deal with the virus. Nonetheless, he says there is a risk of what he calls “rule creep”.

“If you ask many Australians what they are about they will say they are a country of larrikin people, a little bit anti-establishment,” he says. “The reality is that it is really quite shocking to confront just how rule-bound and bureaucratised Australia is. Whilst I believe the states are acting in good faith to protect people, I can see how a rule creep might live on. Indeed, I can see there might be a demand for that kind of rule creep from ordinary people because Australians really get comfort from rules.”

An uneasy beginning

Barton’s experience shows that strict COVID-19 rules are no comfort at the end of a life. Nor do they make things any easier at the start.

Brooke Bennett, a young mother living in Canberra, counts herself lucky that when her son Banjo was born seven months ago, there wasn’t much COVID-19 about. For his first precious months, she could join a mothers’ group, catch up with friends and temper the feeling of isolation that can come from having so much time at home with so little sleep.

Brooke Bennett, pictured with her husband Tim and their son Banjo, says the ACT lockdown has made her dwell on the difficult things about being a new parent. Credit: Alex Ellinghausen

Now that she is in lockdown, she is cut off from her parents in northern NSW and her sisters. The parents of her husband Tim live on a nearby farm but are limited to waving at their grandson through a window when they drop off fresh eggs and produce. She realises how important those little freedoms were.

“It’s a liberty we normally just have and you don’t even think about, but not being able to just go out and get on with the day, I feel like sometimes it has made me dwell on some of the difficult things,” she says.

Bennett’s parents met Banjo before lockdown but her sisters still haven’t. One of them lives in Moree and another in Queensland, which as things stand may as well be on the other side of the world. She is grateful that Tim can work from home and spend extra time with their son but her WhatsApp mothers’ group chats and Zoom catch-ups with family just aren’t the same. “The biggest thing is losing that sense of your family and friends knowing where your baby is at and where you are at,” she says.

How do you measure the cost of a grandparent not being able to welcome a child into the world or a child not being able to say goodbye to their Nan? Some would argue that we don’t need to, that all that matters is COVID cases, hospitalisations and deaths. Are we ready for a bigger conversation?