At the beginning of Melbourne’s second wave of COVID-19, a significant number of cases were discovered in a group of public housing towers. An investigation by the Victorian Ombudsman into the subsequent ‘hard lockdown’ of the buildings was recently released to the public.
The findings of the investigation are concerning. Not only for the organisational shortcomings of the tower operation, but also the callousness of the Victorian government’s response to the evidence presented.
With multiple clustered identified during Melbourne’s second wave, why were public housing tenants the only ones subjected to such a strict lockdown?
A state of emergency was declared by the Victorian government on 16 March 2020. Under the relevant legislation, this designation granted new powers to the government, such as the power to restrict movements of the public, and the ability to detain persons within an emergency area.
When the cluster of tower cases was identified on 4 July, directions were hastily issued by the Deputy Chief Health Officer (DCHO) to instigate a ‘hard lock down’ of the area. The order was enforced by hundreds of uniformed police officers shortly after a press conference announced the operation.
The towers house a total of 3000 people, many from lower socio-economic and non-English speaking backgrounds. After five days and an initial testing blitz, the order was wound back for eight of the towers. However, one remained under hard lockdown for a total of two weeks. During the operation, residents could not leave their homes to attend work, go to the supermarket, or in many cases access fresh air or exercise.
How are human rights protected in Victoria?
Under the Charter of Human Rights and Responsibilities Act, it is unlawful for public authorities and government departments to not give adequate consideration to a relevant human right when making a decision.
The relevant human right that was of importance in the tower operation was the right to humane treatment when deprived of liberty.
“In a just society, human rights are not a convention to be ignored during a crisis, but a framework for how we will treat and be treated as the crisis unfolds.” — Victorian Ombudsman
Findings of the investigation
Although the Ombudsman conceded that Victoria’s charter recognises that human rights may be subject to reasonable limitations, findings showed the Victorian Government fell short of the required standards in many areas.
Specific shortcomings included:
- The notification process of the lockdown to residents was lacking, with some not notified until three days after the operation was under way. Materials were only initially circulated in English, with translated copies becoming available on the fifth and sixth days.
- Specific processes for residents to access fresh air and exercise during the first phase of the lockdown were absent. When exercise was allowed, it was contained to an area enclosed by temporary fencing. This was likened to a cage or prison, as they were also surrounded by police.
- The large numbers of police utilised to enforce the lockdown was described as being unnecessary and insensitive by both residents and health workers.
- Significant problems were identified with the provision of medical supplies to residents during the lockdown, including a dedicated hotline for medical supply requests being overwhelmed within the first few days of operation.
- Qualified interpreters were not available during the initial enforcement of the lockdown.
- Reasons for implementing the lockdown on the same day the directions were given were not clear. An immediate lockdown was not recommended by the DCHO, who anticipated that the operation would commence after further preparation.
- The DCHO had less than 15 minutes to consider the human rights implications of the lockdown order before the operation was to be announced. The 15 page assessment provided to her did not include any alternatives, or any explanation why it was considered necessary to detain residents immediately without warning. Evidence suggested that the decision to impose the lockdown was taken by the Cabinet two hours earlier, without any input from the DCHO.
All of these shortcomings in combination were found to constitute an incompatibility with the right to humane treatment when deprived of liberty. The Ombudsman also concluded that proper consideration was not given to the human rights of persons affected by the tower operation.
The response of the Victorian Government
Although the Ombudsman has the investigative powers of a royal commission, it can only provide the government with recommendations, which it can either accept or reject.
The Victorian government refused to accept the first of these recommendations, that an apology to the residents of the towers should be given. The housing minister went as far as to say that they “will not apologise for saving lives”, and denied that the lockdown was illegal. However, they did acknowledge that mistakes were made.
“I saw a journalist taking some pictures and I asked him why, and he told me the towers would be in lockdown in half an hour” — Tower resident
Did it save lives?
The report states that the Department of Health and Human Services considered the hard lockdown to be extremely effective at containing the tower outbreak of COVID-19. They also commented that the active case data showed a rising trajectory of infections throughout other hotspots in Victoria that would have likely been replicated if the intervention in the towers did not occur. This is reflected in the graph below.
Source: Victorian Ombudsman report p 162
Although these findings imply that the lockdown was effective, an intervention to this scale has not been repeated in Victoria since, with the government reverting to more measured stay at home orders and mask mandates throughout the rest of the second wave.
- Residents of the towers were not afforded the right to humane treatment while being deprived of their liberty during the hard lockdown.
- The government failed to give proper consideration to the human rights of tower residents affected by the hard lockdown.
- The government did not accept the first recommendation of the Ombudsman’s report, being that residents of the towers should receive an apology.