‘People will die’ defence of lockdown is no longer enough

Victorian Premier Daniel Andrews. Picture: Daniel Pockett

There are 193 countries in the world. All communities are being plagued by the same pathogen: Covid. Melbourne stands apart from every other destination on one crushing metric: it soon will overtake Buenos Aires as the city with the longest lockdown.

Either the Victorian government is uniquely brilliant in responding to the pandemic or singularly fanatical in its pursuit of reducing Covid-19 deaths at the expense of other virtues.

In deciding between these options it is telling that every government on earth could have followed the Victorian approach. Barricading citizens requires no ingenuity, no sophisticated systems; merely legislation abolishing fundamental freedoms and a large police force.

Few people question that some restrictions are necessary to curtail the spread of Covid-19. However, Victoria steadfastly has refused to take a proportionate response that balances the benefits of lockdowns against their burdens.

The extent to which Victorian Premier Daniel Andrews is influenced by the advice of singularly focused medical professionals is extreme. That a leader would adopt such a position is not surprising: many people make errors of judgment. What is astounding and will intrigue human rights scholars for decades is how he managed to convince most of the Victorian population that his approach was desirable.

While the human race has spent much of its energy fighting and lobbying for fundamental rights and freedoms, never in recorded history has a democracy so meekly surrendered these ­ideals. To be clear, it is not that the Victorian government has paused so-called inviolable rights such as freedom of association, the right to work and the right to engage in family relationships. These rights, in any meaningful form, have been abolished for many Victorians. It is coming on two years since the lockdowns started. Two years (and no end in sight) is a significant portion of any human life.

Many commentators have argued eloquently against extended lockdowns on the basis that the violation of rights and economic harm they cause are disproportionate to the health benefits they secure. It is futile repeating these arguments. Understanding the reasons for their failure to sway community sentiment is key to winding back the lockdowns one day.

The greatest weapon the Victorian government has used to justify lockdowns is to emphasise repeatedly that people will die if we do not “follow the rules”. This is a compelling message. It is true. So far it has proven to be a conversation stopper.

The “lives lost” message resonates powerfully because death is tragic and it is a binary metric. The impact of the diminution of other rights is harder to measure because they come in degrees and can be reinstated. Hence, it is easy to argue people are selfish if they risk one additional Covid death by visiting a friend.

The ability to rebut appeals to fundamental rights by invoking the imperative of saving lives stems from a doctrinal infirmity of rights and freedoms, which is missed by human rights advocates. Apart from the right to life, no right is absolute or intrinsically important. The utility of rights is dependent on the extent to which they facilitate individual or community flourishing.

However, approaching two years into the lockdowns, something is changing. The creeping cumulative toll of crushing many Victorians’ rights and freedoms is no longer an abstract inconvenience. It is turning into a measurable catastrophe that can be invoked to rebut cognitively and emotionally the benefit of reducing Covid deaths. This is why Andrews now is conditioning Victorians to living with Covid – he has no political choice.

While there is no question that Covid numbers must be suppressed to a level where our hospital system is not overrun, it is manifest that the lockdowns have resulted in the mental health system being overrun. Waiting times for a psychiatrists are many months and calls to Lifeline have surged by more than 30 per cent.

While there was no increase in the suicide rate to January 31 this year, the coroner found “one in 10 of the 634 deaths was linked to Covid-19 stress”. Many of these are young people. By contrast, more than 90 per cent of the Covid deaths in Australia are in people aged 70 and older.

Further, Cancer Council Victoria estimates that 2530 cancers may have gone undiagnosed in the state in over just 6½ months during the pandemic last year. Experts fear this will result in a future cancer mortality spike.

Statistical deaths resulting from extended lockdowns soon will crystallise into high numbers of personal tragedies. Thus, on the deficit side of the lockdown scoreboard, clarity is starting to emerge regarding the lives lost because of the response to Covid.

Added to this is the emerging brutal economic toll that lockdowns will inflict on many people; last month alone 72 Victorian businesses went into liquidation.

That said, lockdowns will continue (even once the vaccination target is reached) and enjoy majority support unless opponents shift their criticisms from the impact the lockdowns have on abstract rights to detailing precisely the exact concrete interests that have been destroyed by lockdowns.

Mirko Bagaric is dean of law at Swinburne University and author of Australian Human Rights Law.