ALECOMM

An unemployed man fined $1,000 for sitting in his car.

An L-plater on a practice drive fined $1,652, before having the fine withdrawn due to "confusion within the community".

A woman followed by police while driving to visit her son's grave.

A funeral interrupted by uniformed police officers with firearms who strode into the church to count the number of attendees, while the deceased was being carried out.

This list of fines handed out by the states would have been unthinkable weeks ago.

But when Prime Minister Scott Morrison announced new social distancing rules to address coronavirus, many states hastily slapped together enforcement measures — becoming law at midnight, subject to revisions as confusion emerged and, most notably, reinforced by heavy fines and jail time.

We were told a full lockdown was not needed because, as the Chief Medical Officer argued, "we are not Italy". But we are facing sanctions for flouting the rules that are heavier than those in Italy.

In NSW, for example, you can receive a fine of up to $11,000 or six months in jail for violating social distancing restrictions.

Compare this with Italy, with harsher lockdown laws, where the fine started at €200 ($346) when introduced and increased to €400 to €3000 ($700-$5,310) in late March.

How did we accept this?

Our imaginations are so stymied by the Government's reliance on law enforcement that we think the only way to achieve compliance is with police. It isn't.

We equate a lockdown as inherently linked to enforcement, but fear of social exclusion is a powerful motivator. It is what drives adherence to cultural norms. The feeling that we will be socially punished can have the same effect as a fine.

It's the reason most people eat cereal only at breakfast or wear a seat belt even without enforcement.

But setting a norm requires clear communication, leadership, and laws supporting its implementation.

Police have been told to target "blatant" breaches of physical-distancing directives.(ABC News: Andrew Altree-Williams)

Problems emerge when, as the Morrison Government has demonstrated, messaging is not clear, leaders are not coherent to their message, measures are half-hearted, or some are perceived to get special treatment.

When this is coupled with tough enforcement, public discourse then becomes consumed by whether people can do certain things, as opposed to whether they should be doing those things.

Confusion also leads to people interpreting the rules differently, or not following them due to not grasping how their actions impact the effectiveness of the measures.

In normal times, it is easy enough to "live and let live". But this logic is not as simple to follow during a pandemic: when public gatherings risk infecting an entire neighbourhood, fearful people feel they have no alternative but to report violators to police.

The lack of clarity and alternatives reinforces state reliance on police.

A lack of safeguards leads to abuse

But state reliance on police is concerning when discretion is conferred so widely. This leads to powers being exercised in ways that seem arbitrary and negatively impact rights.

In speaking to the exercise of that discretion, Victorian Deputy Police Commissioner Shane Patton said:

We deal with people every day who tell us the truth, who don't tell us the truth … police officers are very good at determining whether someone is legitimately going to one of those areas where they legitimately are allowed to.

A cop's gut instinct is not a safeguard. Implicit bias can see members of communities who are typically overpoliced accused of wrongdoing at higher rates than the general population.

This is exactly what the data has played out.

For example, Coonamble (where around a third of the population is Indigenous), saw 10 per cent of NSW's infringement notices, despite having just 0.04 per cent of the state's population and no confirmed COVID-19 cases.

Almost a third of fines have been issued in Western Sydney, which has the largest Indigenous and migrant populations in Australia.

Earlier this month, only two of the 151 fines for flouting lockdown rules issued in NSW were in Waverley, in the Eastern suburbs, despite having the state's highest number of confirmed cases.

Where to from here?

Murmurs about the extensiveness of police powers were quickly swatted away with justifications that the quarantine measures were necessary to protect public health.

This seemed to be broadly accepted at the time, but the logic is wrong, and has been from the start.

It also demonstrates how linked quarantine measures and their enforcement have become in the public imagination.

But the question of whether quarantine measures are necessary and proportionate (to which the answer seems quite obviously yes) is a separate question to whether the measures to enforce them are necessary and proportionate.

The latter question has not been thoroughly considered.

Had Parliament not been suspended, crucial questions examining whether the measures are compatible with rights may have been asked.

Are the coronavirus measures precise enough that people understand the legal consequences of their actions? Are the circumstances in which they may be fined or subject to jail time clear?

Is there an evidenced-based explanation as to how heavy fines and possible jail time are likely to be effective in keeping people at home?

Are there less restrictive ways to achieve the same objective? Are there safeguards? Are any affected groups particularly vulnerable?

Do the measures provide sufficient flexibility to treat different cases differently?

Slippage towards 'martial law'

Referring back to the examples at the beginning of this article, it's difficult to see how the answer to any of those questions could be a resounding 'yes'.

This is problematic beyond the current moment as police powers ushered in during an emergency cast a long shadow.

The bar on what constitutes a "national security threat" to activate powers introduced to protect Australia after September 11 shifts lower and lower.

Similarly, the need to combat terrorism has been used to justify the introduction of powers which can be used beyond situations posing a national security threat.

It is possible to say both that, for the sake of public health, people should not be out, and that police should not have such tough enforcement powers.

A lockdown which loses sight of public health and the evidence base for enforcement becomes little more than glorified martial law.

Kristen Zornada is a human rights lawyer. She previously worked for the Parliamentary Joint Committee on Human Rights scrutinising legislation including police powers for human rights concerns. She is currently in lockdown in Italy.