Covid Totalitarianism

The actions of Victoria Police in the egregious arrest of Ballarat mother Zoe Buhler for posting about an anti-lockdown protest on social media is a graphic representation of Victoria's slide into totalitarianism during the era of COVID-19.

In scenes that have gone global earlier this month, three police officers — intimidatingly clad in face masks and black "uniforms" — served a search warrant on Buhler, seized her mobile devices and accused the visibly pregnant mother of the offence of incitement.  This was in relation to a Facebook post made and shared by Buhler proposing to protest Victoria's severe public health orders, an act she later admitted she thought was legal in the marginally less restricted Ballarat.

Fortunately, Buhler had the foresight to record what the Police were doing.  As the footage shows, Buhler and her husband offer to delete the post, but in a stunning display of brutishness, the officers put Buhler in handcuffs and took her into custody.  At least one of the officers bothered enough to cancel an ultrasound appointment Buhler had booked that day.

Assistant Commissioner Luke Cornelius defended the police action, only going so far as to say that the "optics of arresting someone who is pregnant is terrible".  The overzealous behaviour of Victoria Police is not just bad "optics", it is feeding a growing perception that the emergency orders has given licence to the authorities to exercise their powers in a disproportionate and borderline-abusive way.

Potentially even worse is that this may be entirely without justification or valid legal basis.  In order to make an arrest without a warrant, the Victorian Crimes Act requires a police officer to reasonably believe that a person has committed an indictable offence.  But Victoria Police has seemingly not even raised a prima facie case that an incitement offence has even taken place.

An incitement offence has two elements:  the first is that a person must have done an inciting act.  Secondly, another person must have been incited by the first person to do something in line with the first person's intention.  There appears to be no suggestion that any person was incited to breach the directions.  An incitement cannot merely be made to the public at large.  Incitement is a serious criminal offence and a recorded conviction is a permanent stain on a person's reputation.  The threshold for establishing that an incitement offence occurred must go beyond whether the Police consider that someone, somewhere might have been incited to do something.

A second issue goes towards whether the government has successfully made protests a crime.  A person can only be guilty of incitement if another person is incited to commit a crime — but the enabling legislation is ambiguous on whether a breach of the Chief Health Officer's Stay at Home Directions is a criminal offence.

Laws that prevent or punish public harms are usually administrative in nature and incur civil penalties, whereas direct harms to another person or specified people are more likely categorised as crimes.  The emergency orders are fundamentally administrative in nature and should only incur civil penalties, rather than criminal penalties.  A compelling reason for this is that a bureaucrat acting alone should not have the power to create new crimes, especially when this can leave consequences that last long after the emergency period has expired in the form of a permanent entry in a person's criminal record.

The above questions may be resolved in either Buhler or Victoria Police's favour, but unresolved will be the shameful reality of the disproportionate and arbitrary enforcement of the directions.  In June Victoria Police refused to enforce the directions against a protest which actually took place in the Melbourne CBD.  Legal advice I obtained in August argued that the decision from Victoria Police to refuse to enforce the directions against any of the 10,000 Black Lives Matters protesters was a potentially unlawful exercise of police discretion.

But having made that decision, it should have then enforced the Directions with consistency and dealt liberally with prospective protesters.  Instead, it completely changed course:  where it once gave free rein to organised left-wing activist protesters to march through Melbourne under Stage 3 restrictions, it now charges into the homes of Victorians living under Stage 3 restrictions in country Victoria who express an objection to the severe social and economic restrictions.

Extraordinarily, the Police Chief Commissioner Shane Patton told ABC Radio on Thursday morning that Victoria Police made the decision not to enforce the directions against BLM protesters on the basis that it was likely to become violent.  "We had around the world cities that were burning, we had protests that were violent, we had people being injured, we had property being damaged, places being looted, and absolute mayhem in many societies around the world … We had significant concerns that we would have that type of mayhem in Melbourne."

It seems in Victoria only one kind of protest is allowed.  We had a taste of this in 2018, when the event organisers of Milo Yiannopoulos' speaking tour were charged by Victoria Police for the costs of policing the violence-marred protests that were carried out by Milo's radical left opponents.  And when it comes to the Black Lives Matter protests exploding into social unrest all over the world, Victoria Police not only let it happen but gave it their support.  Assistant Commissioner Russell Barrett declared in a media release on 11 June ― a week after the Black Lives Matter protest took place ― that it was "a cause that is more important than ever and one that is personally close to my heart".

The dishonest, inconsistent, and disproportionate style of police and political leadership in Victoria is an issue that goes beyond the temporary enforcement of COVID-19 rules.  Policing is a fundamental pillar of free societies.  Law and social order need to be enforced, but this is not a blank cheque to throw proportionality out the window, trump up criminal charges, or choose who the law applies to.  These are the characteristics of an unfree society that has rejected the rule of law, and sadly, now describe Australia's second-largest state.