A lot of my friends have posted in favour of the demonstrations held across Australia yesterday on the issue of aboriginal deaths in custody.
But I think the demonstrations were irresponsible.
Hopefully, we are not “in the middle of a pandemic” as some commentators have stated. With no new cases over the last few days, it appears at least possible that we are at the tail end of it, or at least of the first wave.
Nevertheless, the Victorian Government is taking a cautious approach to lifting restrictions. It is gradually and carefully lifting them.
A key part of its strategy is to limit numbers at gatherings. This is so that, if another cluster occurs, there can be tracing and isolation of those who have come into close contact with a person who has tested positive.
At my tennis club, for example, players are expected to record their name, phone number, the court played on, and time of arrival and departure. If someone tests positive there is a record of who they were playing with and their contact details. This is one example of thousands of precautionary requirements we want people to follow in order that tracing can occur if a cluster breaks out. Limits and booking requirements on customers at cafes, restaurants, gyms, etc are other examples.
The medical advice was clear that this tracing strategy becomes a practical impossibility with rallies that have tens of thousands of participants. Both federal and state medical officers were against people attending.
So many of us have emphasized the importance government has placed on science in responding to this pandemic. Indeed the left wants to argue the same approach should be adopted towards another critical health risk- climate change. Yet when it comes to another cause that we believe in, combatting Aboriginal deaths in custody, we say to the broader community that we know better. For this cause, we can act contrary to medical advice, though presumably, the broader community should still adhere to the restrictions that remain in place.
The right to protest is an important human right. Victoria’s Charter of Human Rights and Responsibilities includes the right to freedom of peaceful assembly and freedom of association. But it also includes a right to life. This includes a duty on the government to take appropriate steps to protect the right to life. The Charter also provides for the right to movement. This provides for the right to move around freely within Victoria.
All rights carry responsibilities. This includes the responsibility to recognize the rights of others. Human rights law recognizes that different rights can sometimes come into conflict. When this occurs, a balancing act is required.
The Charter provides that, in making laws, the government must take into account the rights set out in the charter. Statements of compatibility with the Charter are required to be considered by cabinet and tabled with amending Bills. A human right may only be subject to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality, and freedom. Social distancing laws modify the right to movement and freedom of peaceful assembly. But in the context of a pandemic, this is a necessary and reasonable limitation.
There is no way around it. Whether intended or not, those who attended the 6 June demonstrations effectively demeaned the collective efforts made to date by the rest of the community. They said to the rest of the community our right to protest this issue is more important than social distancing laws that effectively limit the general community’s right of movement or assembly.
The cause of the demonstrators is just. More can surely be done to prevent aboriginal deaths in custody. Not all of the recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) have been implemented.
A review by Delloite in 2018 found that across all the recommendations, 64% have been implemented in full, 14% have been mostly implemented, 16% have been partially implemented and 6% have not been implemented.
The most action has been taken to respond to recommendations that relate to the justice system, prison safety, and reconciliation, land needs, and international obligations. The least action has been taken to respond to recommendations that relate to non-custodial approaches and self-determination.
Non-custodial approaches are important in light of the Royal Commission finding that Aboriginal people do not die in custody at a higher rate than non-Aboriginal people. The higher number of Aboriginal deaths in custody is due to their higher rate of incarceration.
The lack of progress on recommendations that relate to non-custodial approaches is hardly surprising. The report includes failure to tackle alternative approaches to bail and home-detention as an alternative to custody as areas where lack of progress has been made.
Lack of progress in these areas likely impacts more heavily on aboriginal people than on non-Aboriginal people. But the failure to implement changes to bail regimes and non-custodial options is unlikely to be motivated by any racist intent. Perhaps that’s the thing about structural racism. It does not require intent. Rather, the failure to implement these changes likely reflects the longstanding tendency for state governments and oppositions to try and outbid each on being ‘tough on crime’ in the lead up to state elections. The political parties respond to community sentiment, or at least what they perceive it to be. Much of the community sentiment around crime is, of course, media-driven.
There has not been much media focus on the actual measures required to address the problem of Aboriginal deaths in custody arising from the demonstrations. At least not that I have seen. I suspect that, in a policy sense, addressing the question of Aboriginal deaths in custody is probably not very severable from addressing the issue of Aboriginal disadvantage more generally. I have no idea about the extent to which march organizers attempted to articulate solutions as opposed to simply trying to raise consciousness about the fact that we have a serious problem that remains unresolved.
People go to the footy to let off steam, to have fun with friends, and because it makes them feel better. There is nothing wrong with going to a demonstration for the same reasons. But unlike the footy, a demonstration has another goal- a political goal. This goal is to sway public opinion in favour of the demonstrators’ cause.
I think one of two political results is most likely to result from the demonstrations. And both are bad.
The first is that the demonstrations result directly in a second wave of infection with little to no ability to do follow up tracing. We may have to reimpose restrictions. The demonstrators are held to blame. Rational or not, concern for their cause does not improve, or may even diminish. The government is criticized for not having taken tougher measures to prevent the demonstration.
The second is that no new infections can be directly attributed to the demonstration. The government will then face unfair criticism for unnecessarily having damaged the economy- for having been overly cautious in its response to the virus and too slow in lifting restrictions. This will be accompanied by allegations of unfairness and hypocrisy- why was it okay to demonstrate but not to go to the footy or to the pub, etc? This may result in more widespread non-observance of the relaxed restrictions, again increasing the risk of a second wave.
On the other hand, what is done is done. And there was no effective way the government could have stopped the demonstrations. Threats to fine every marcher are unlikely to have prevented the march. Forcefully breaking up the march (if there was a power to do so) would have led to even greater health risks.
Hopefully, I am wrong. Maybe the demonstrations will aid the issue of Aboriginal deaths in custody getting a higher priority on the political agenda. Or maybe they will result in COVID restrictions being lifted earlier than would have occurred had the demonstrations not taken place and with no significant increase in infections. Time will tell.
By the way, I am not arguing that people in the USA should not protest police violence against blacks or the death of George Floyd. But the situation in the USA is different to Australia.
The US government’s response to the pandemic has been pathetic- both in containing the virus and in the response to resulting economic crisis.
The US is not on the verge of containing the virus or anywhere near it.
The economic response has been to pump money into the top. Again. Assistance to the top has gone even beyond 2008. For the first time in its history, the Federal Reserve is buying up private corporate debt. Investors know where the bulk of assistance is going. So the stock market booms while tens of millions lose their jobs. From the very beginning, Trump’s main priority has been to insulate stock market prices. This is what lay behind his initial denials of the danger posed by the virus.
Plus there have already been mass demonstrations protesting freedom of movement restrictions by unmasked right-wing demonstrators, some bearing arms.
Blacks and Latinos are already at higher risk occupying the most dangerous frontline occupations. Some have been subject to executive orders by Trump to return to work in meatworks which have been the centre of clusters for the virus. Others are, or will, from July, be forced to return to work because inadequate government assistance means they cannot afford to stay at home.