Declaring an amnesty for Victorians fined or arrested for peacefully exercising their rights during lockdowns is the only consistent way to end the confusion surrounding Victoria Police’s pursuit of charges against Black Lives Matter leaders.
This month the Age reported that Victoria Police had informed the organisers of a Black Lives Matter rally held in Melbourne’s CBD in June 2020 they would be dropping the charges against them for breaching the public health orders then restricting public gatherings to no more than 20 people.
Later the same day this decision was apparently reversed when a police spokeswoman claimed there was a ‘miscommunication by Victoria Police’ about the status of the charges.
How exactly a ‘miscommunication’ about whether criminal proceedings against a person were on foot is unclear, but it is indicative of an erratic and arbitrary Covid response that is evidently persisting even after lockdowns have ended.
Never mind that the BLM organisers had been allowed to hold their protest anyway and were only slapped with the minimum penalty of $1,652 anyway. Regardless of any ‘miscommunication’, it was a light touch from authorities that was not applied equally to Victorians.
Victorians will not soon forget the image of a pregnant Zoe Buhler being arrested in her home in Ballarat because Victoria Police took issue with a social media post about an anti-lockdown protest.
Despite being arrested back in September 2020, Zoe still faces the dubious charge of ‘incitement’, and unlike the BLM organisers there has been no indication that her charges may be dropped.
Documentary filmmaker Topher Field was also arrested for incitement in October last year, as was anti-lockdown activist Monica Smit in August.
Stunningly, a senior official from Victoria Police has apparently been forced to apologise to Rebel News Australia bureau chief Avi Yemini for multiple arrests while conducting video interviews with members of the public during lockdown protests. As the letter to Yemini notes, ‘On each occasion, Mr Yemini was wrongfully arrested and detained by members of Victoria Police whilst reporting for Rebel News’. That the letter comes from the desk of a Superintendent of the Victoria Police’s civil law division, and not the Chief Commissioner, might be a cause for disappointment, but the fact the letter exists is a higher level of accountability from police leadership than we have come to expect during the pandemic.
It is time to end the fiasco once and for all. Victoria cannot rebuild and recover from the pandemic if there is a two-class legal structure.
The Andrews treatment of protesters during the pandemic has been a disgrace. The principle that all Victorian’s would be equal before the law and held to the same standard was discarded early on when the police decided to allow the BLM rally. Victoria Police showed no such leniency when it came to policing the litany of absurd public health rules against other Victorianss. No doubt children at playgrounds make for easier targets.
When people wanted to protest against measures that were affecting their livelihoods and freedoms the police did not hesitate to shoot protesters with rubber bullets, arrest people in their hundreds, and slam the heads of unsuspecting individuals into the ground. But when people wanted to demonstrate for a cause that is already accepted by the political class they were given a wide berth.
When a Deputy Commissioner of Victoria Police says in a media release prior to the BLM march that it was, ‘a cause that is more important than ever and one that is personally close to [their] heart,’ it raises legitimate concerns of inconsistent application of the law based on a person’s political views.
Remember, the BLM rally organisers were only fined the minimum possible amount, meanwhile Zoe Buhler, who did not actually attend or organise a protest, stands accused of a separate criminal offence of incitement.
Of course, Victoria Police have not indicated whether a person was actually ‘incited’, which is a central element of the offence, but took the view that she should be arrested in her home because someone, somewhere, could decide to do something illegal because of her post.
It was an act of arbitrary and disproportionate law enforcement that Ms Buhler is courageously fighting. By the time the case is heard in the Ballarat Magistrates Court almost two years would have passed since the initial arrest. As the saying goes, justice delayed is justice denied.
The point is not that the BLM leaders should be punished. The right to peacefully express one’s beliefs is a basic value of a free society. Extinguishing this right under the guise of public health as the Andrews did should never have occurred.
The rule of law means that all people are subject to clear rules that are predictably enforced, fairly and equally.
But a issuing confusing and complex public health rules only creates confusion and complexity in how the rules are enforced. It gives licence to the authorities to pick and choose which laws they will enforce, and the manner in which they will be enforced. Opaque rules exercised without any oversight or accountability risk turning a free state into a police state – which is exactly what happened in Victoria.
It is not good enough that the Andrews stands by silent as Victorians wonder whether they will be charged with crimes simply because their views differ from those with the power to do so.
It is the duty of the Andrews to restore the rule of law by urgently and transparently reviewing how the rules were enforced and dropping charges against any Victorian who sought to peacefully exercise their basis democratic and human rights.
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Morgan Begg is the Director of Legal Rights Program at the Institute of Public Affairs
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