Coronavirus: Victoria can’t blame bad luck for coronavirus failures

Victorian Premier Daniel Andrews. Picture: AAP

Illegitimate criminal laws are an ineffective means of achieving social control. That is why it is no surprise that Victoria — which issued almost three times the number of COVID-19 fines as any other state and had the strictest lockdown laws in the country — finds itself reimposing restrictions following a dramatic spike in coronavirus cases.

The pandemic is principally a community health problem, not a criminal justice issue. The failure of the Victorian government to realise this and its overzealous insistence on arbitrary restrictions including prohibiting fishing and golf (even solo) resulted in people questioning many of the lockdown laws, even those that were appropriate.

Criminological research has demonstrated that if we see laws as lacking credibility we are less likely to comply with them. This was noted by microbiologist Peter Collignon when discussing the Victorian coronavirus outbreak. He said that “Victoria went too far” and “if you overdo it, you find people rebelling”.

The Victorian government sought to justify its actions by sermonising rather than appealing to people with logic.

The Victorian government has uniquely failed to implement effective COVID restrictions. And it’s not just bad luck. When national restrictions were imposed three months ago, Queensland and NSW had many more cases per capita. Both states have crushed their curves, while other parts of the country have eliminated the virus.

Demonstrators attend a Black Lives Matter protest in Melbourne. Picture: AFP

Not only are the Victorian rules not proportionate nor adapted to stopping the spread of the virus, they have been applied inconsistently. Since the lockdown began the institutions that had links to COVID cases were named by the government, including schools, medical clinics and restaurants. The only exception to this was the outbreak at Cedar Meats, which saw the state’s biggest virus cluster. This was named only after the government’s hand was forced by reports the owner of Cedar Meats had been a significant donor to the ALP.

All Australians see inconsistency as the badge of unfairness. Victorians were fined for playing tennis (which authorities seemed not to accept is a non-contact sport played on 200sq m of land with a physical barrier between opponents) and yet they could queue endlessly for a morning coffee. And no one missed the message when protesters gathered for a Black Lives Matter rally in Melbourne. “I’m not going to the protest,” Andrews said. “I would suggest to other people they shouldn’t go to the protest either.” Many thousands did. None was fined. The protesters were well-intentioned but the wider community is not always good at distinguishing between important social causes and behaviour that is driven by less pressing community and individual needs and interests.

To be effective, laws must be proportionate and adapted to achieve their objective, and enforced consistently and transparently. Criminalising conduct alone will not change our behaviour or attitudes.

The Victorian government remains stubbornly determined. Two weeks ago, it became the first jurisdiction in the country to pass wage “theft” laws, and they carry a maximum penalty of 10 years’ imprisonment — rapists and pedophiles rarely receive such sentences. Criminalising wage “theft” — mostly an administrative oversight of which even the ABC has been found guilty — is a bad idea and undermines the distinction between civil breaches and criminal conduct.

A fortnight back, in the face of the most serious branch-stacking scandal in Victoria’s history, Andrews sought federal intervention to take over the preselection of state and federal candidates. The Victorian branch of the ALP lacks the credibility and capacity to fairly fulfil its most basic functions.

For the sake of all Victorians, it should from now on transparently and consistently implement pandemic lockdown measures delegating the design of these to the national cabinet.

Professor Mirko Bagaric is dean of Swinburne Law School.