Community dismay is turning to fury at people who test positive for COVID-19 but refuse to self-isolate. It is believed more than a quarter of the 6000 Victorians infected with the virus continue to mingle in the community. The Victorian authorities have been helpless and hopeless in containing them – the only government in Australia to fail at influencing community behaviour by legitimising its pandemic response.
But all governments have serious legal weapons with which they can threaten those putting others’ lives in danger. Spreading the virus could constitute manslaughter by criminal negligence.
The test for negligent manslaughter stems from the seminal case of Nydam in 1977. It has two parts. The first is whether the “act involves such a great falling short of the standard of care required of a reasonable man in the circumstances, and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed – that is to say, such a falling short and such a risk as to warrant punishment under the criminal law”.
The person’s actual intentions and state of mind are irrelevant. They could not protest that they were unaware there was a pandemic that harmed and often killed its victims.
It must simply be established that a reasonable person would have appreciated that it is dangerous for someone who is infected to come into contact with others – and that this carried a high risk of serious bodily harm, and perhaps even death.
Every reasonable person is aware that COVID-19 can be deadly and is highly contagious.
The other element of negligent manslaughter is more problematic. It must be established that an infected person caused the victim to become infected, which can be difficult in the case of an airborne virus. However, this is not an insurmountable requirement in situations where a person who has the virus attends a confined space with a number of people who become infected and who have had no other contacts with people who are positive. Contact tracers are adept at establishing the cause of a coronavirus infection.
So governments and police throughout Australia already have a solid legal pathway to ensure that people who infect others by breaching stay-at-home orders are punished appropriately for their thoughtless conduct.
But the biggest failing of Victoria’s response isn’t irresponsible people refusing to quarantine; it is the Andrews government, which has failed to put in place a mechanism to deter sufferers from leaving home. It was quite foreseeable that many infected people would not observe stay-at-home orders.
There are effective options open to the government, including multiple daily checks plus phone monitoring, placing cameras in people’s driveways and even using electronic bracelets, as has just been announced by the government in Singapore.
This pandemic is the greatest threat to Australians in living memory, and that the Victorian government has chosen none of these strategies is remarkable given the deaths and economic devastation of failing to limit the spread of the virus.
Daniel Andrews has spent hours lecturing Victorians on how to behave in this pandemic, but he has missed the one essential ingredient to an effective strategy: implementation. Lockdowns will not suppress the virus if the infected continue to roam with effective impunity. Clearly, the threat of fines hasn’t worked so far. The larger fines just announced for people who breach the isolation rules for a second time will probably be similarly ineffective.
The best method for ensuring compliance with the law is to make people believe that if they breach the law, they will be detected – this is even more important than the severity of the sanction.
For serious crimes, harsh sanctions are needed to ensure the punishment fits them. But if you want to make sure most people comply with the law, effective monitoring is the key. It is why speed cameras work and why people rarely commit a crime when they see a uniformed police officer. The opposite is also true, and was demonstrated by the mass attendance at the Black Lives Matter rally in Melbourne after it was made clear that fines would not be issued to demonstrators who breached social-distancing laws.
The Victorian government needs people to understand the serious legal consequences of ignoring the pandemic rules. And it should immediately establish a systematic process for monitoring every positive COVID-19 case.
We can learn from Singapore.