What lies beneath: the dormant police state

Western Australia's new nanny state normal, for the time being

After 963 days in a State of Emergency (SoE), Western Australia finally returned to some semblance of normalcy on the 4th of November with the SoE finally expiring.

However, this does not mean that it’s over for good. Premier Mark McGowan and his Labor government used their majority in both the Upper and Lower Houses to force replacement legislation through parliament in October. This was in spite of vehement pushback from the opposition, the crossbench, and the public.

In what is essentially a rebranding of the Public Health Act 2016 SoE powers, the new Emergency Management Amendment (Temporary COVID-19 Provisions) Bill 2022 allows the government to renew its emergency powers on a three-monthly basis over the next two years.

McGowan has already foreshadowed its use, stating just days before the SoE expired, "If we have a spike, a new variant comes along, something occurs that we haven't foreseen, it's there as a back-up measure should it be required." And sure enough, a new wave of ‘grandchildren of Omicron’ variants is expected right on time for Christmas.

There are many problems with the legislation, and with the way in which McGowan rammed it through.

I’ll start with the bill itself, which you can read HERE. The bill amends the Emergency Management Act 2005 and the Public Health Act 2016.

The key difference between the new legislation and the former is that the Covid pandemic response been removed from the purview of qualified medical and health professionals and put into the hands of the Police Commissioner. The Amendment uses the term State Emergency Coordinator, which refers to the Police Commissioner.

This is problematic on two counts.

1. The legislation stipulates that the Police Commissioner must consult with the Chief Health Officer (CHO), that the CHO must give advice in writing, and that the advice must be considered. However, there is no requirement for the Police Commissioner to follow the advice of the CHO.¹ The Police Commissioner is therefore free to act contrary to the recommendation of the CHO.

2. The Police Commissioner is not an elected representative and is not answerable to the public or the Parliament.

In response to a letter from a concerned constituent, WA Senator Wilson Tucker replied:

”Currently under the Emergency Management Act 2005, the State Emergency Coordinator, who is also the Police Commissioner, can exercise extraordinary powers, however they can only do so if the Minister for Emergency Services declares a ‘state of emergency’. If this Bill is passed into law, the State Emergency Coordinator will be able to make their own ‘COVID-19 Declaration’, granting themself many of those same extraordinary powers. This is concerning because, unlike the minister, the State Emergency Coordinator is not an elected representative and is not answerable to the public or the Parliament.”

(emphasis mine)

Tucker’s point is key.

Under this legislation, the locus of power shifts further away from demos, the people, and into the hands of a single, unelected bureaucrat.

WA Senator Dr Brian Walker voiced similar concerns when he spoke at a protest outside Parliament House on 11 October 2022. As a medical doctor, he expressed dismay at the move to put matters of public health into the hands of the Police Commissioner:

“This bill stinks… taking [the pandemic] out of the hands of medical practitioners… putting it into the hands of a policeman. And I don’t know about you, but I do not want to live in a police state.”

Watch Walker’s rally speech HERE.

Police state is an apt description, as the powers afforded to the Police Commissioner under this legislation are extreme and threatening.

Section 77 has received the most attention for the astonishing breadth of powers afforded to the Police Commissioner and his designated ‘authorised COVID-19 officers’ who, under this legislation, can:

• Take control of private property, including your vehicle or another ‘thing’. They can do this even if your vehicle or ‘thing’ is not located within the declaration zone.

• Break and enter your home, business or vehicle without a warrant and without your consent.

• Forcibly detain in isolation anyone who may have been exposed to SARS CoV-2 (there are no parameters for how ‘exposure’ will be defined).

• Force anyone deemed to have been exposed to SARS CoV-2 to submit to “infection prevention and control procedures,” which includes forced vaccination.²

• Compel you to provide personal details, and to provide evidence of your personal particulars if the officer does not believe you.

• Prohibit movement of vehicles or persons into or out of the declaration zone, close any roads, routes or body of water leading into the area, and compel evacuation.

• Compel the closure of businesses, places of worship, entertainment venues, and other places of gathering.

• Disclose your personal information to an emergency management agency (I could not find further detail on exactly which agencies this term includes or excludes) or request them to disclose your personal information to the Police Commissioner or officers. This section overrides all existing State laws relating to secrecy and confidentiality. Such information can include: your personal details; your whereabouts; your health records; travel information; information about your close contacts; and any other information as “prescribed by the regulations.” ³

• Compel another person to tell the officer your whereabouts, and any other details about you that they may wish to know.

Just about the only thing that the Police Commissioner cannot do under these provisions is to close the state border.

Almost three years into the pandemic, WA has a world-record vaccination rate (84% of the 16+ population is recorded as having received three doses), and some say that it’s time to move on from the heavy-handed measures and restrictions.

Liberal leader, Dr David Honey, said of the legislation,

“We’re heading towards the end of the COVID crisis, I cannot comprehend that any parliament would allow these powers to be given to a public servant with no parliamentary oversight at all.”

McGowan’s official statement,

"This new framework is a sensible approach to keep Western Australians safe and while we hope that we've passed the worst of COVID-19, our measures have proved to work and should they need to be reintroduced in future if the situation were to escalate then we'll do so on health advice."

Ah, the phantom health advice.

To those outside WA, there’s a running joke in WA about the mysterious ‘health advice’ that McGowan repeatedly refers to as justification for all sorts of outrageous claims and backflips. To date, his government has successfully kept the ‘health advice’ a secret, refusing to release it to journalists or the public. You can read more about how McGowan’s government has turned their election promise of gold standard transparency into a punchline, HERE.

This pattern of secrecy and evasion of accountability, which belies a lack of respect for democratic promises and processes, brings us to what I think is the more significant aspect of the new legislation, which is the way in which it was pushed through the parliamentary review process and into law.

To be clear, this bill was steamrolled into legislation against the will of the people.

Every member of the opposition and crossbench opposed it. Thousands of people turned up to protests held outside Parliament House. MPs and Senators were inundated with correspondence from the public expressing concern and dismay.

McGowan’s government withheld the details of the bill until 6pm the night before it was to be debated in the Lower House, denying the opposition and crossbench any reasonable amount of time to review the bill, seek advice, formulate questions and arrive at a considered position.

Opposition leader Mia Davies said of the move, "It is an absolute contemptuous and arrogant government that brings legislation of such significance to Parliament and expects it can be dealt with in a day."

The debate that was had was arbitrary anyway. McGowan had already announced the new laws to the media with cocksuredness, and the Labor majority fell in line.

The Upper House debate was similarly arbitrary, with statements from the opposition and crossbench serving only to go on the record as conscientious objection to a bill that Senator Sophia Moermond described as heralding, “a lack of accountability and an escalation of authoritarianism.”⁴

There is a widespread understanding that Labor MPs and Senators were not to cross the floor on this bill, lest there be consequences, and that this is indicative of the kind of leadership that they under, though no one will say this on the record.

There also appears to be some degree of collusion between the Labor government and the press. There was a paltry offering of coverage on the bill from mainstream media, but hardly the ruckus one would expect from a functioning Fourth Estate. No mainstream news outlets covered the protests at Parliament House, despite thousands of protestors turning out, and speeches being given by sitting members of parliament.

McGowan’s volley to any of these complaints is to routinely congratulate himself on how the past two and a half years have played out⁵, and to justify his actions in the pursuit of his utopian ideal, a Safe New World.

The nub of the issue with McGowan is that, though he operates within a democratic system, he behaves like a dictator.

A pluralistic democracy should strive to balance multiple categories of people and viewpoints, maximising freedoms to the possible limit (the limit being harm)⁶, operating with full transparency to create and safeguard the conditions for a flourishing society.

McGowan, though, displays a different sensibility.

He is intolerant of people and viewpoints that he does not understand, 'othering’ them with language⁷ and laws that serve to push these groups further to the margins of our society. His government and associated departments are famously cagey, mounting obstacle after obstacle in the path of anyone seeking access to information that they don’t want to give out.⁸ His segregation measures were some of the strictest in the world (based on ‘health advice’, which apparently differed so drastically from many other nations and regions in the world as to make WA a standout for our extreme measures).

In his language, processes and policies, he displays a contempt for democratic engagement and process, and even for the people that he governs.

Jean-Jaques Rousseau wrote, in The Social Contract,

”Usurpers always bring about or select troublous times to get passed, under cover of public terror, destructive laws, which the people would never adopt in cold blood. The moment chosen is one of the surest means of distinguishing the work of the legislator from that of the tyrant.”

Indeed, McGowan certainly knows how to make the most of a crisis.

Whatsmore, McGowan is insisting that the public trust that future measures taken will be proportionate, reasonable, fair.

Yet this is the same Premier who thought it appropriate to send police to Topolinis’s Caffe to arrest the unvaccinated owner and forcibly pack her into a paddy wagon; who oversaw police raids on numerous other small businesses, including chiropractors, to ensure that mandates were being enforced; who enforced travel vaccination mandates on children as young as 12 well into 2022, when it was known that the injections did not prevent transmission, and were of questionable necessity and safety to young people; whose quarantine rules were enforced under threat of prison, resulting in one man serving 30 days in prison for attending an AFL game during his quarantine period, and another two men serving three months each in prison for related rule breaches.

This is not the track record of a proportionate, reasonable and fair government. This is an extremist, police state style of governance, whereby the ruling class (with complicit media in pocket) barely bothers to persuade, opting rather to rule by threat and punishment.

For the time being, the police state lies dormant. The SoE has expired, and we have returned to some kind of nanny state normal.

However, the police state infrastructure is in place, and can be engaged at any time should the Premier and his Police Commissioner think it reasonable and necessary. Whatever that means.

1. Emergency Management Amendment (Temporary COVID-19 Provisions) Act 2022, Section 77G.(5) states that, “A failure to comply with this section does not affect the validity of the declaration.”

2. Emergency Management Amendment (Temporary COVID-19 Provisions) Act 2022, Section 77N.
This section sparked howls of terror and outrage, but in fact the legal allowance for forced vaccination was already passed in the Public Health Act 2016 under Section 158. The creep against fundamental civil rights such as bodily autonomy has been in motion for longer than West Australians may realise.

3. Emergency Management Amendment (Temporary COVID-19 Provisions) Act 2022, Section 77P.

4. In a speech at the Kill The Bill protest outside Parliament House on 11 October 2022, Moermond voiced her opposition to the bill, warning,
”What I’m seeing in this legislation particularly is a lack of accountability and an escalation of authoritarianism, both of which can be precursors to increased violence.”
Watch Moremond’s full speech HERE.

5. Never mind the carnage created by lockdowns, social division, family isolation and separation, destruction of small businesses, creation of an underclass due to medical discrimination, delay of Covid waves by two years only to succumb to them when the borders finally opened, and excess deaths. The only benefit I would concede to McGowan’s handling of the pandemic thus far is that in delaying the border openings, we skipped Wuhan and Delta strains, and went straight to the milder Omicron.

6. See: The Harm Principle

7. See: Language is Important: part 1

Language is important: part 1

8. I have experienced this first hand. For the past 11 months I have been trying to find out whether the people in the Perth Mess Hall outbreak (December 2021) were vaccinated or not (or if both, the proportional split). McGowan used this outbreak as his basis for implementing the first round of segregation restrictions in January 2022. I wanted to test his claim, but in order to do so, I would need to know if the cases at Perth Mess Hall were vaccinated or not. WA Health refused to share the information, citing privacy of the individuals involved as reason for their refusal. I countered that they had shared the status of the (unvaccinated) backpacker who was at the source of the cluster, so clearly, they had no problem sharing the private medical information of a person related to the outbreak if it suited them to do so. They filibustered, ignored my communications, filibustered again, and eventually just flat refused to share the information, all the while citing privacy concerns and failing to address the double standard in breaching their own privacy protocols.

Emergency Management Amendment (temporary Covid 19 Provisions) Act 2022

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