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‘People will die’ defence of lockdown is no longer enough

By Mirko Bagaric - posted Thursday, 9 September 2021


There are 193 countries in the world. All communities are being plagued by the same pathogen: Covid. Melbourne stands apart from every other destination on one crushing metric: it will soon overtake Buenos Aires as the city with the longest lockdown. Either the Victorian government is uniquely brilliant in its response to the pandemic or singularly fanatical in its pursuit of reducing Covid deaths at the expense of most other virtues.

In deciding between these options it is telling that every government on the planet could have followed the Victorian approach. Barricading citizens requires no ingenuity; no sophisticated systems; merely legislation abolishing most fundamental freedoms and a large police force. Moreover, all other governments had access to the same medical information about the impact and spread of Covid as Victorian Premier Dan Andrews.

Few people question that some restrictions are necessary to curtail the spread of Covid. However, Victoria stands apart in refusing to take a proportionate response which balances the benefits of lockdowns against their burdens. The extent to which Dan Andrews is influenced by the advice of singularly focused medical professionals is extreme. That a person would adopt such a position is not surprising: many people make errors of judgement. What is astounding, and will puzzle historians and human rights lawyers for decades, is how he managed to convince the majority of the Victorian population that his approach is desirable.

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While the human race has spent much of its energy fighting and lobbying for fundamental rights and freedoms, never in recorded history has a democracy so enthusiastically surrendered these ideals. To be clear, it is not that the Victorian government has eroded or paused what law and philosophy books call inviolable freedoms in the form of the right to liberty, freedom of association and expression and the right work and to engage in family relationships. These rights, in any meaningful form, have for many Victorians been abolished. It is coming on two years since the lockdowns started. Two years (and no end in sight) is a significant portion of any human life.

This situation is even more stunning against the backdrop of Victoria being the first jurisdiction in Australian to legislate a Bill of Rights. In 2010 the Charter of Human Rights and Responsibilities was enacted because we were told that human rights needed to be taken seriously.

Many commentators (often in these pages) have eloquently argued against the Andrews' lockdown approach on the basis that the violation of rights and economic harm caused by lockdowns is disproportionate to the health benefits they secure.

It is pointless repeating these arguments. Understanding the reasons for their failure to sway community sentiment is key to one day winding back the lockdowns.

The greatest weapon that the Victorian government has used to justify lockdowns is to repeatedly emphasise that people will die if we do not 'follow the rules'. This is a compelling message. It is true. Dan Andrews has used it with great persuasion in most of his 200 press conferences. He often says it angrily. He always says it with conviction. So far it has proven to be a conversation stopper.

The 'lives lost' message resonates powerfully because death is always tragic and it is a binary metric. The impact of the diminution of other rights is harder to measure because they come in degrees and can be reinstated. Hence, it is easy to argue that people are selfish if they risk one additional Covid death by exercising their freedom of movement by straying more than 5 km from home.

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The ability to rebut appeals to fundamental rights by invoking the imperative of saving lives stems from a doctrinal infirmity of rights and freedoms – which is always missed by human rights advocates. Apart from the right to life, no right is absolute or intrinsically important. The utility of rights is dependent upon the extent to which they facilitate individual or community flourishing.

However, approaching two years into the lockdowns something is changing. The creeping cumulative toll of crushing many Victorian's rights and freedoms is no longer an abstract inconvenience, but starting to turn into a measurable catastrophe which can be invoked to cognitively and emotionally rebut the benefit of reducing Covid deaths. This is why Dan Andrews is now conditioning Victorians to living with Covid – he has no political choice.

There is no question that Covid numbers must be suppressed to a level where our hospital system is not overrun. But it is now manifest that the direct causal effect of the lockdowns has resulted in the mental health system being overrun. Waiting times for a psychiatrists are many months and calls to Lifeline have surged by over 30%.

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This article was first published in The Australian.



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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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