By the Victorian Government’s own admission, the nightly curfew introduced in early August was not based on medical advice.
But metropolitan Melbourne residents remain confined to their homes between 9pm and 5am.
Lines have been drawn between industries and activities as the state works its way out of a second wave, and the multi-step road map has left gardeners, golf and tennis coaches and patients awaiting elective surgery among those scratching their heads.
Dean of the Swinburne University Law School, Professor Mirko Bagaric, has said there have been “profound anomalies” in the state’s coronavirus restrictions, enforced over the past six months.
“What is really problematic, and the reason why people aren’t following the law as fastidiously as they ought to be, is people have to think the law is legitimate, not arbitrary,” Prof Bagaric told news.com.au.
“If you get a lot of anomalies in the law or restrictions that can’t possibly achieve a designated purpose, people start to lose trust in the law and I think that’s where we are with the Victorian Government.”
He said the city’s “harsh, strict” and lengthy lockdown is the “most oppressive on the planet”.
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WHAT ARE SOME OF THE ANOMALIES?
Prof Bagaric said some of the differences in rules are “laughable” while others are “perverse”.
“People can’t even have someone come to mow their lawn in the front yard,” he said.
“There’s absolutely zero contact with the gardener and the person, if it’s paid online. The risk of infection there is zero.”
He echoed the sentiment of Jim’s Group chief executive Jim Penman who has written a furious letter to Victorian Premier Dan Andrews stating about 700 Victorian contractors are losing $3000 a week.
Meanwhile, Local Government maintenance on parks, gardens and public facilities is permitted in Victoria if the work is “essential for the safety and upkeep of public and recreational spaces”, which includes mowing grass, according to the state government’s coronavirus information and advice.
Last weekend, pet groomers were added to the list of services able to resume trade in metropolitan Melbourne from September 28, when the second step of the road map is expected to take hold.
Mr Andrews said: “It must be a venue, it cannot be a mobile pet grooming business. Mobile was not judged to be safe at this time by the public health experts.”
The Department of Health and Human Services states pet groomers “working out of retail facilities” can operate but mobile pet groomers have to wait until the third step to reopen.
Prof Bagaric on Tuesday noted the pause on all Category 3 and non-urgent Category 2 elective surgeries across Victoria.
Category 2 covers conditions causing some pain, dysfunction or disability but which are not likely to deteriorate quickly or become an emergency, with a desirable admission of 90 days.
Category 3 includes hip and knee replacements and cataract procedures.
The DHHS states the suspension is “to create additional capacity within the health system” including beds, equipment and staff.
“Dogs with mullets? They don’t care, it just doesn’t matter,” Prof Bagaric told news.com.au.
“I’ve got a dog, he’s got long hair, he’s happy, no one cares but we’re not allowing people to have elective surgery?
“People who need hip replacements hobbling around in excruciating pain can’t get operated on. It’s laughable.”
He said there had been a “fanatical obsession” to fix the issue of coronavirus “to the exclusion of other problems”.
On Wednesday, Mr Andrews announced a plan “to safely resume elective surgery” in Victoria.
“Under this cautious and safe reintroduction of elective surgery, we plan to have approximately 18,750 additional elective surgeries across private and public hospitals in October, and an extra 10,500 surgeries across those settings in November,” he said.
Regional Victoria will see the elective surgery percentage rise to around 75 per cent on Thursday and 85 per cent on September 28.
Metropolitan Melbourne will go to 75 per cent on that date if the long-term average of coronavirus cases is between 30 and 50, “and then progressively build from there”.
Mr Andrews said it would “deal with the backlog” and apologised to those who had to wait.
“No one will have to wait any longer than is absolutely necessary to get the care that they need,” he said.
In an opinion piece on Monday for The Australian, Prof Bagaric wrote: “Single-person real estate inspections, lawnmowing, playing golf and tennis and taking your dog for a walk after 9pm won’t spread this virus.”
“At the same time, the Government allows horse racing – with jockeys side-by-side for the entire race – and a dozen people to meander around a bottle shop. Such glaring anomalies undermine community trust in the Andrews government.”
Locked down in Melbourne himself, Prof Bagaric said people can go to the supermarket or bottle shop and be surrounded by dozens of others but funerals are capped at 10 mourners, regardless of venue size.
Both situations require social distancing to be adhered to.
“In terms of the things that are really life-defining to people, rituals such as funerals which from the emotional perspective have a huge impact on a person’s sense of wellbeing,” Prof Bagaric said.
“And to put in place tighter restrictions on funerals than bottle shops is perverse.
“I think if the Government wants to go through and restrict people’s fundamental freedoms, it should do so but it needs to do so in a careful, detailed, intelligent manner so the laws are adapted and proportionate to the objective they achieve.
“If there’s significant Government overreach, they lose trust and they’re less likely to comply with the law.”
Last week, Mr Andrews reversed DHHS advice to faith leaders administering last rites to the dying in-person after clarification was sought from Melbourne Archbishop Peter A Comensoli.
The advice had been: “Last rites and religious ceremonies can be provided using video or livestreaming.”
An apologetic Premier said there had been “a little bit of confusion”.
“Under the care and compassion grounds it is completely permissible for you to have a minister, priest, rabbi, whoever it might be to come and administer those end of life sacraments,” Mr Andrews said.
“There will always be some finer details in the way individual hospitals have got their own rules in place. Those rules are there to protect staff and protect patients, but in the broadest of terms last rites and similar sacraments are allowed and I apologise if there has been any confusion on that matter.”
Prof Bagaric said “other anomalies” include a ban on non-contact sports such as tennis and golf – the latter involving “hectares” of space around a participant.
“I know that might sound whimsical but it is a fundamental freedom … to engage in conduct that involves no risk to any other person,” he said.
The restrictions on exercise in metropolitan Melbourne were this week increased from one hour to two hours per day which can be split across two sessions but residents must still stay within 5km of their home.
“Under current restrictions, golf is not a permitted reason to leave home,” the DHHS states.
Residents can exercise with their household members “or one person you don’t live with”.
Prof Bagaric said limits should be imposed on activities involving close human-to-human contact as opposed to limits on movement.
“A person can run 50km through their suburban streets and have zero risk of coronavirus,” he said.
“We have to get smarter.
“That’s why you get the law largely illegitimate because people think this is crazy. Why can’t a gardener drive to my house and mow the lawn?
“I just see the carnage that is happening and I just think it’s sad that we have been reduced to this as a community, in terms of the really life-damaging impacts.”
NOWHERE ELSE ‘ANYTHING LIKE IT’
Prof Bagaric said Victoria has had no “single period of respite” in six consecutive months “where life has returned to anything like normality”.
“No developed country in the world, none, not a single one has anything like that,” he said, noting it has been harsher than China and North Korea’s communist government approaches.
“The only country that has come similar to that is Chile (but) they don’t have the same resources that we do.
“Victoria stands alone in terms of the way it’s approaching that problem and the way it’s approaching that problem is to effectively shut down most of human movement.
“Either we are uniquely brilliant or breathtakingly wrong in terms of our solution. It’s got to be one of those two; it can’t be both.”
Prof Bagaric said the state’s legal framework has been “distorted” for the past 15 years, since the Charter of Human Rights and Responsibilities Act was first enacted in Victoria in 2006.
“We’ve had the misfortune, from a legalistic perspective, in terms of the way that we as a community weight and prioritise certain interests,” he told news.com.au.
“We’re really poor at assessing which rights are more important than others and sometimes vacuous rights, ones that actually don’t exist, take priority over others.”
‘SENSIBLE AND ADAPTIVE LAWS’
Prof Bagaric said limitations to public transport congestion, prescriptive social distancing and being prevented from going into an indoor workplace other than out of a matter of necessity were all “sensible and adaptive laws”.
His alternative suggestions include bolstered contact tracing and frequent spot checks or electronic surveillance on people who test positive for COVID-19 to discourage them from “mingling” in the community.
He also suggested making coronavirus testing mandatory for people suspected of being exposed to the infectious disease.
“If people didn’t want to take the test, that’s fine, then you put them for two weeks in isolation,” he said.
“Yes, that would have inhibited some people’s rights to freedom in terms of two weeks of isolation but it’s a nuanced, measured, proportionate response to this particular disease rather than this brutal, generalised response where everyone suffers engaging in this process of collective punishment because the Government can’t go think through a more nuanced and subtle solution.”
He said the privacy concerns, such as those raised over the COVIDSafe mobile app, were “low order priorities”.
“Our regard for these rights now means that our concrete rights, our right to liberty, move around our community, freedom of assembly, our right to family not to be forcibly separated, our right for our children to be educated, they’ve all been stripped from us,” he said.
“Why? People like the notion of the right to privacy, for example.
“It’s absurd. Victorians are in this muddle where we’re enjoying our right to privacy while at the same time, being imprisoned inside our houses.”