Flat White

Daniel Andrews is breaking the boundaries

5 September 2020

5:30 PM

5 September 2020

5:30 PM

Victoria police arrested a pregnant mother in front of her little children in her Ballarat home. Zoe Buhler was arrested and charged under section 321 of the Victorian Crimes Act 1958, which makes it an offence for a person to ‘pursue a course of conduct which will involve the commission of an offence’. Her crime: posting a Facebook post encouraging people to protest against lockdowns in the regional town on this weekend.   

Buhler said she was totally unaware that she could be doing anything illegal. Police could just have given her a phone call, to simply ask her post be removed. She also said she did not believe Covid-19 as a hoax, but just wanted to protest about the impact of draconian measures on employment, suicide and domestic violence. She had lost her job due to these measures and thought Ballarat’s lighter restrictions in comparison to Melbourne’s stage 4 lockdown would permit these peaceful protests for human rights, ‘if people wore masks and socially distanced. 

There are serious questions whether Ms Buhler committed any offence under that specific Act, given the lack of intentionality required by the criminal law. There was no element of intentionality in the behaviour, since she was unaware of any illegality and her Facebook post did not incite people to protest in a manner that is inconsistent with the city’s stage 3 lockdown.  

Of course, that is leaving aside the irrefutable violation by Victoria Police not only of the State’s Charter of Human Rights and Responsibilities but also the constitutional right to freedom of political communication. The Victoria Charter explicitly guarantees to every person their fundamental legal rights to privacy and peaceful assembly as well as freedom of association, movement, thought, conscience, and expression.  

As for the constitutional right to freedom of political communication, under the Australian Constitution sovereignty ultimately resides in the Australian people. It is Australian electors who elect representatives to legislative on their behalf. As noted by Justice Brennan of the Australian High Court, in 1992, representative and responsible government ‘are constitutional imperatives intended … to make the legislature and executive branches of [government] ultimately answerable to the Australian people’. It follows that, as sovereign, ‘the Australian people must also be free to communicate about government and political matters fully and freely’. 

How does the democratic nature of our Constitution can be reconciled with police going into homes without a warrant and arresting a pregnant woman in front of her children because of a Facebook message? This does not look like a democratic government but the actions of a deeply authoritarian regime. It certainly shouldn’t happen in a true democracy. 

However, Victoria’s police commissioner Luke Cornelius has justified that arrest and handcuffing of Buhler, saying he was completely “satisfied” that officers had acted “properly” and “reasonably”. He also warned that hundreds of police would be deployed to make other similar arrests, and attacked citizens protesting against the government as “selfish” and deserving full punishment: ‘We are very concerned, and in fact, outraged is probably a fair word, to say there are still people in our community who think it’s a good idea … to leave home and protest on our streets … Take the selfish option and leave home to protest, we’ll be there for you’. 

The arrest of people for speaking out against their government is a mark of every dictatorial regime. However, Premier Daniel Andrews has described the appalling arrest of a pregnant woman merely as an ‘operational matter for Victoria Police’. When asked whether the left-wing organisers of the Black Lives Matter protest in Melbourne’s CBD, on 6 June 2000, should have been charged with incitement as the Ballarat woman, he refused to give a proper answer and said he would have to defer this matter to Victoria Police.  

Above all, the Victorian Premier exhibits no intention to uphold or defend the Australian Constitution. He has systematically and purposively guided his state toward dictatorial rule during the past seven months. As such, the Premier does not abide by norms and rules but he interferes with all attempts at oversight and accountability.  

Daniel Andrews has demonstrated an indisputable belief that the executive branch holds all power, and that the other branches of government exist solely for the benefit and enjoyment of the leader.  This certainly explains his strong support for the Chinese communist regime, amid growing criticism from both the Commonwealth and United States governments. 

The Victorian government appears to be sending the police into family homes in order to demonstrate the leader’s power and strength. In fact, a case could be made that Premier Andrews might be developing a strategy of targeting peaceful protesters so that he can exert more control and fear over the population. With the joblessness and suicide numbers growing every day, this is a leader who appears to demonstrate no empathy for others, being incapable of understanding human pain and suffering at a massive scale 

Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, Perth. He is also adjunct law professor at The University of Notre Dame Australia (Sydney campus) and President of the Western Australian Legal Theory Association (WALTA) and former Law Reform Commissioner with the Law Reform Commission of Western Australia. A fully footnoted version of this piece is available by contacting Dr Zimmerman directly.

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