The criminal law was the main instrument employed by the Victorian government to force Victorians to comply with the strictest covid-19 lockdown in the world. More than 50,000 normally law-abiding Victorians were subjected to criminal sanctions for breaches of covid-19 restrictions.
The criminal law is society’s harshest form of condemnation and strongest instrument of coercion. It must only be used as a last resort for serious wrongdoing. Imposing criminal sanctions on Victorians for engaging in banal, everyday activities which are permitted in even the most dictatorial of societies, such as sitting in public places; being out after dark, playing sport and congregating with more than two people is the greatest overuse of the criminal law in a democracy in recent history.
The criminalisation of everyday life was reflexive, unintelligent and damaging. It was ruthless. It traumatised everyday citizens, pitted police against the community and violated key rule of law virtues, including that laws must be knowable and transparent. The response was pragmatically unworkable – most fines remain unpaid. It was jurisprudentially flawed. Incredibly, in the midst of the lockdown, the human rights industry refused to criticise the criminal law overreach. This report demonstrates why the criminal law should never again be used as a blunt instrument of oppression to achieve health objectives
Victoria’s response to regulating the conduct of people during the first two years of the pandemic was reflexive and poorly constructed. It resulted in tens of thousands of Victorians coming into contact with the police for the first time in their lives; pitted police against ordinary Victorians and subjected thousands of Victorians to sanctions which were grossly disproportionate to their level of wrongdoing.
The alternative approach to reducing the incidence of a contagious disease is to adopt community education campaigns and persuade people by appealing to their sense of community and self-interest to follow public health recommendations. There is little question that this approach is far more desirable. It is precisely the setting where Victoria has pivoted to two and a half years into the pandemic despite recording many thousands of covid-19 infections daily.
One of the key lessons from covid-19 is that societies cannot criminalise their way to greatness and prosperity. This basic principle was violated by Victoria’s response to covid-19. The only appropriate response is for all fines to cancelled and for paid fines to be reimbursed. In addition, it is necessary to repeal or amend Public Health and Wellbeing Act 2008 (Vic) (Part 10, Div 3) in order that the Chief Health Officer can no longer unilaterally regulate most human activity under threat of criminal sanction in an attempt to achieve a health outcome. Any extreme response to a health crisis needs to have full parliamentary oversight. Most importantly, the criminal law should never again be used as a blunt instrument of oppression to achieve health.