For those who count themselves, as I do, among the #DictatorDan crowd, whether full-throated or privately enthusiastic, the decision in the curfew case lodged by Mornington Penninsula cafe owner Michelle Loielo handed down by Victorian Supreme Court Justice Tim Ginnane last week will be like a wafer-thin mint for Mr Creosote.
After months of listening to Mr Andrews’s daily cult-of-personality press conferences where he has had the opportunity to star on television as much as he likes, Victorians have been told that even the courts back him in on the most fanciful part of his lockdown. It’s a sliver to most people right now, but it’s enough to make me burst.
Justice Ginnane’s decision in Loielo v Giles will provide encouragement to those who stand with Dan. His Honour found that the 9 pm-5 am curfew imposed on Victorians on September 13 was done solely at the behest of Deputy Public Health Commander Michelle Giles, notwithstanding the fact that the Premier had announced it at a press conference 12 hours before she formally made that decision. His Honour found that Giles had proper regard to the provision in the Public Health and Wellbeing Act which stated that any measures taken to curb the spread of infectious disease should be done “with the minimum restrictions on the rights of anyone.” It was also held that, although Giles could provide no evidence that the curfew would reduce cases of COVID-19, in the circumstances there were no other reasonably available means to achieve the purpose of reducing infections.
There is plenty more in the judgment, freely available online. A warning: it is 88 pages and although judgments are dry documents often difficult to read, this one will take longer as every few minutes you’ll find yourself taking a moment to appreciate the reasoning applied.
I want to focus on the first point, though, that the Court found that Giles independently turned her mind to making the decision. It is against the law for somebody given a decision-making power by an act of Parliament to act under the dictation of a Minister. In my opinion, it could well be argued you could hardly ask for a better set of facts conducive to find dictation: Andrews released the roadmap with the 9-5 curfew on 6 September; he announced the easing of the curfew on the morning of 13 September and said it was his decision (“one of the reasons why this is such a wicked enemy is that decisions I make today, I won’t see the full impacts of that for 10 to 14 days.”); he is on record on 8 and 10 September taking credit for the earlier curfew decision, and emails show Giles waiting in the office until almost midnight on 13 September while the Premier’s office edits her Stay At Home Directions before she can sign them into law.
To me, at least, this could be argued to show that Giles was just used for her signature to implement the Premier’s policy. There is plenty more in the actual judgment, but I should think the above sufficient to argue forcefully in conversation that the Premier is dictating the law sans parliamentary scrutiny.
Our intellectual betters have been telling us benighted Dan-haters that the fact that we have been freely able to criticise him is proof enough that he cannot possibly be a dictator. Last week’s judgment will do little to dissuade them of that opinion. That conclusion, however, seems to me to be based on a misguided idea of what constitutes a dictator.
The Western mind is accustomed to think in terms of living memory when it comes to history, so shallowly has it been taught, for the most part, in schools. To many people, calling someone a ‘dictator’ summons the ghosts of Hitler, Mussolini and Stalin. In short, oppressive rule coloured with evil.
That misunderstands the function of a dictator, however, nor is it, for argument’s sake, correct to say that the logical endpoint in so labelling a leader is that he must take his place with the worst political monsters of the 20th century. A dictator, as implied by the word, is one who dictates the law.
We get the term ‘dictator’ from the Roman Republican institution of a magistrate who dealt with an emergency, usually military. The Roman senate recognised that such situations were best handled by a single man and so, from time to time, decided to suspend the normal power structure of two consuls at head of the republic until the emergency was over or six months had passed.
The dictator was not given free rein: his power was limited to deal with the emergency in question. This did not prevent some men from snatching power beyond their ambit, see Gaius Julius Caesar declaring himself ‘dictator for life’. But the behaviour of any one dictator could fall anywhere on a wide spectrum. Personifying benevolent duty, one might find Lucius Quinctius Cincinnatus, after whom the city in Ohio is named, a farmer who was twice named dictator and each time briskly relinquished power as soon as his task was done in order to go back to his fields.
At the other end lies Lucius Cornelius Sulla, who revived the dormant office of dictator, dispensed with the time limit, and proceeded to write lists of his enemies who were then summarily murdered and whose property he then stole, among other outrages.
It might reasonably be said that Andrews’s actions over the last few months fall somewhere between these two poles.
Clearly, a head of government does not need to act like Sulla to be called a dictator. The common factor is that one person decides the law and avoids the normal process of scrutiny. In fact, the current circumstances are quite similar to those of antiquity: an emergency is declared and the legal apparatus concentrates an extraordinary amount of power in one set of hands.
I do not accept the point that this argument disingenuously revives an archaic definition of the term, much in the way I would be doing by using the word ‘tyrant’, originally a benign word for a lone head of state. It should be common ground that anybody may be called a ‘dictator’ who dictates laws that infringe basic human rights, such as freedom of movement, whilst bypassing normal checks and balances.
The Victorian Supreme Court might think the Premier deluded – perhaps the Court treats his statements with a significant degree of caution – but he certainly seems to believe that he’s been making all of the decisions to create all the laws to get to “COVIDnormal”. I agree with him. There is a chance that an appellate court, whether in Victoria or Canberra, might agree, too, if given the chance. Loielo may yet exercise her right of appeal. Time will tell.
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