Police officers inform beachgoers that Brighton Beach is closed (Image: AAP/Scott Barbour)

The reflexive “common sense” response to the complaints of civil rights advocates about repressive criminal laws is basically this: what’s the big deal? If you’re not doing the wrong thing, you’ve got nothing to worry about.  

In the COVID-19 world, that logic has ramped up with the extra ingredient of necessary expediency: sure, we’re putting up with unprecedented restrictions, but a bit of greyness around the edges of these new laws is to be expected. It’ll be fine, relax.

Sure, until you’re the one standing on a street corner in the middle of the day trying to explain to the armed police officers encircling you why your trip across the road to get a takeway coffee constituted a reasonable excuse to have left your home. On my reading of the NSW law, it may not be.  That’ll be $1000 and an experience that only Indigenous Australians usually get to enjoy.

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As Easter approaches, this isn’t an abstract concern. Young people in particular are feeling the pinch of domestic confinement and, entirely understandably, keen to test the limits of what is responsibly doable. As matters stand, that is not the same as what is lawful, and that is the problem.

Case study: a man was fined $1000 under the public health order by NSW Police for sitting on a bench on his own, eating a kebab. Sounds unreasonable? The police commissioner was forced to explain subsequently that the kebab guy had already been asked to move on from two other public spots. OK, not that unreasonable. But not until we heard the full context.

Back to the coffee run: one of the reasonable excuses for being outdoors is “obtaining food or other goods or services for the personal needs of the household”. Is takeaway coffee a personal need, or rather an indulgent want? What if you added a bacon and egg roll, but you don’t have a hangover?

As for the exercise exception, it is clear that the police are happy if you’re running, or taking a breath from running. Walking is fine, but what if you’re taking a breath from walking? Sunbaking and reading are not exercise, because the police are not interpreting exercise to include the maintenance of mental health, only the physical variety. Which leaves yoga in a tenuous position, and meditation… well, I don’t know.

Now that’s funny, but not so much for the 17-year-old in Victoria who (as reported by 3AW) got fined $1652 on the weekend for engaging in non-essential travel. She was taking a driving lesson with her mum in the family car.

There is a gaping divide here between the law and its purpose. It is axiomatic that that 17-year-old and her mum presented absolutely no public health risk, to themselves or anyone else. Just as it is obvious that no such risk exists when a person sits under a tree in the park with a book, or goes for a solo surf at a closed beach.

The supposed reason these things are illegal is that the law has been created for the ostensible purpose of forcing us all to stay home and stop the spread of COVID-19. That is an entirely legitimate, justifiable and fair legislative purpose right now. 

However, that purpose is disconnected from what the law does. It allows me to go to the shops 25 times a day if I choose. It places no restriction on “exercise”, as that term is interpreted by police. It allows booty calls (in Victoria, explicitly; in NSW, by police commissioner’s discretion).

All those things are arguably reasonable departures from the lockdown principle, but they are not essential and they clearly carry a public health risk. As the law stands, we can happily go out and do numerous unnecessary things, but not a whole pile of other things that are arguably more valuable and less risky.

The only way, with this present mish-mash of laws, to obtain public clarity is for the police commissioner to hold a lengthy press conference every day going through each infringement that’s been issued in the past 24 hours and providing the public with the full context for the police officers’ decision in that situation.

Otherwise, we’re left to guess what is or isn’t okay today, depending on which state we live in and what the attitude of the local coppers may be.

To illustrate the stupidity, the NSW Greens are, as I write, seeking an urgent interpretation from the government as to whether taking a driving lesson would qualify in NSW for the reasonable excuse of “education”. Maybe it will be okay in Albury, but not Wodonga.

It didn’t need to be this way. If the idea is to keep us at home, then keep us at home. Close the coffee shops and non-essential retailers; tell us only one household member can go out once a day for essentials; no visits to family, no visitors, nothing. Lockdown.

Or — if that is deemed too much — get rid of the list of excuses, give us the power to decide what behaving with social responsibility looks like, and remove the police from the equation. They are the last group on earth who should have the power to decide what is or isn’t anti-social behaviour; hasn’t 250+ years of policing history taught us at least that?

Let’s face it: it’s one or the other. This middle road is a debacle.

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Peter Fray
Peter Fray
Editor-in-chief
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