When public health becomes punitive, rather than supporting communities

Introduction by Croakey: Aboriginal people are fighting a battle on two fronts – against the novel coronavirus and against punitive government interventions, according to Peta MacGillivray, a Kalkadoon and South Sea Islander lawyer who is currently the Project Manager for the Yuwaya Ngarra-li Partnership between UNSW and the Dharriwaa Elders Group.

The state-sanctioned use of police to deliver a public health message through punishment – hefty fines and imprisonment – risks long-lasting and disastrous impacts, she warns.

Instead, governments should be resourcing Aboriginal Community Controlled Organisations (ACCOs) and recognising their essential role in the pandemic response.

As this article outlines, ACCOs have some specific suggestions for how to support Aboriginal people to maintain physical distancing and prevent the spread of infection – none of which involve policing.

Peta MacGillivray writes:

We’ve seen Aboriginal and Torres Strait Islander organisations and communities step up to the COVID-19 challenge all across the country in the past weeks.

The Australian Government has also released its official plan for responding to potential coronavirus outbreak Aboriginal and Torres Strait Islander communities.

Meanwhile in NSW, some Aboriginal community-controlled organisations are mobilising to get in front of punitive efforts to enforce physical distancing, which have the potential to further entrench inequality across every measure.

Public Health Order

On the 30th March at 10:20pm the NSW Minister for Health and Medical Research Brad Hazzard signed into law the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020.

The intention of the order is clear in the explanatory note:

The object of this Order is to give certain Ministerial directions to deal with the public health risk of COVID-19 and its possible consequences.

In particular, this Order directs that a person must not, without reasonable excuse, leave the person’s place of residence.”

The Order goes on to detail what is a ‘reasonable excuse’:

(a) obtaining food or other goods and services, or

(b) travelling for the purposes of work or education if the person cannot do it at home, or

( c) exercise, or

(d) medical or caring reasons.

Importantly, non-compliance with these directions brings serious penalties, with a maximum penalty of imprisonment for six months or a fine of up to $11,000 (or both), plus a further $5,500 fine for each day the ‘offending’ continues.

On the morning after the COVID-19 Restrictions on Gathering and Movement Order (the Order) was signed, there was swift condemnation, as the outcome is effectively the criminalising of individuals for their ‘failure’ to follow the physical distancing recommendations without a ‘reasonable excuse’.

The deep irony of this punitive response for Aboriginal and Torres Strait Islander people was expressed across social media; the alarm went up across Black Twitter and in community that mobilising in the wake of such measures was now urgent.

The Order demonstrates, once again, that in NSW Aboriginal people and communities need to fight a battle on two-fronts – mitigating the harm of law-making which gives no consideration to the impact on the most vulnerable communities, while also fighting for the right to lead public health responses locally to keep communities safe in a meaningful and effective way.

Restrictions on Gathering and Movement – punishment trumps support 

The Order provided the NSW Government, using NSW Police, with a way to send a clear message to the public that social distancing would be enforced, and harshly.

From an enforcement point of view, immediate questions emerged about who would be, and who would not be, subject to the extra scrutiny.

In Sydney, outrage was sparked by images of police moving people along from public areas such as inner-city Maroubra beach (a community with a high-density of public housing and a long history of over-policing).

Yet, other popular beaches were left alone.

From an holistic and community-centred point of view, it also highlighted the very different approaches to supporting individuals, families and communities to put physical distancing measures in place to keep Aboriginal communities safe.

Moreover, interpretations of physical and social distancing has been very narrow in the absence of clear, consistent and comprehensive messages from government.

It has been especially hard for Aboriginal people to define and implement physical distancing measures that make sense and are achievable for families and communities when literally overnight a punitive approach became the default in New South Wales.

Meanwhile, in Aboriginal communities across the state of NSW, it has been business as usual with a heavy police presence in regional and remote areas, with an already normalised reliance on the use of police to respond to at risk young people, people experiencing homelessness, those with alcohol and other drug-dependencies, mental health needs, and intellectual disability – all in the absence of well-resourced and appropriate social services.

Of grave concern under the Order is the state-sanctioned use of police to deliver what is a public health message through punishment (hefty fines and imprisonment), which risks long-lasting and disastrous impacts.

Community advocacy in Walgett

In the community of Walgett in north west NSW, the Dharriwaa Elders Group (DEG) is working hard to mitigate the risk of potential harm caused by coercive compliance, through advocating for an alternative approach which is community-led and community-focussed.

DEG knows that in communities like Walgett, Aboriginal Community-Controlled organisations (ACCOs) are the best placed – being the most consistent, trusted, and knowledgeable – to be delivering the essential information to families and households about what it’s going to take to keep mob safe during the time of COVID-19.

But this requires government and police to recognise this expertise, and be advised accordingly.

While we have seen resources made available to enforcement and police, we have not yet seen the same support for ACCOs to do what they do best.

In Walgett, key long-standing ACCOs such as the DEG and Walgett Aboriginal Medical Service (WAMS) are using their already stretched resources to mobilise and coordinate their COVID-19 response within the limits of government led-processes, such as local emergency response committees, which in Walgett are led by NSW Police.

However, it is the ACCOs that have the essential information needed to keep communities safe, and the deep links into community to provide the information, education and the public health messages that will save lives.

Serious questions need to be answered about how effective the police-led, coercive measures will actually be in the far-west of the state.

In the case of Walgett, the Central North Police District covers from Bourke to Brewarrina, Cobar, Goodooga, Carinda to Engonia, Lightning Ridge to Cumborah, and everywhere in between.

The Walgett police command has only two Aboriginal Community Liaison Officers (ACLOs) for five communities separated by hundreds of kilometres.

The role of ACLOs has been identified by the Walgett community as critical in getting information out about the new penalties for not following the physical distancing measures, but on the ground their effectiveness is limited by their capacity to be everywhere at once.

Understanding Aboriginal community needs – listen to ACCOs

Putting aside the intention of the penalties and their deterrent effect, locally in Walgett there are two main concerns with a punitive and coercive approach.

The first is that the Order does not assist at all with what is being identified as acute needs in Walgett, that is, resources to support the community to give effect to physical distancing measures.

Even before COVID-19, the Walgett community are dealing with the challenges of inadequate community transport options, minimal private car availability, food shortages (even before panic buying in cities disrupted supply), household financial stress, limited access to mental health services and drug and alcohol services, and lack of access to internet services.

Suitable housing to implement physical distancing is one of the critical challenges. As Dr Mark Wenitong explained to Fran Kelly on Radio National on Tuesday morning:

…a lot of this [ability to effect physical distancing] is about a lack of infrastructure.

You can say ‘use the spare bedroom with ensuite for someone that needs to be isolated’, but that’s not going to happen.

And we’ve got data from previous outbreaks from things like mumps that shows that there is almost never any bedrooms that have less than two people in them in any of our houses, so these are the kinds of issues and infrastructure issues we have to translate in ways that people can actually do it in remote communities.”

Christine Corby OAM, CEO of Walgett Aboriginal Medical Service, told ABC Radio National on Tuesday that housing shortages causing over-crowding in her remote community makes physical distancing measures incredible difficult.

When positive cases of COVID-19 in Walgett appear, she says there will be no choice but to rely on the local hospital and the public health unit to support patients and families to self-isolate to prevent spread. 

As part of coordinating its response to COVID-19, Walgett ACCOs have identified what would make a difference to enable physical distancing and stop the spread of the virus:

• Community transport to help people get to essential services such as medical appointments or the hospital
• Community transport options for people to go food shopping, especially if it requires travelling out of town
• Food delivery and other essential items delivery services for people who are staying home and can’t leave (Elders, carers and parents with young children, people with disabilities and other health conditions)
• Infrastructure and equipment to ensure equitable internet access, given so many other critical services are now only available online, for instance Centrelink and banking. As physical distancing becomes even more critical, online service provision will only become more essential
• Community health education campaigns for different age cohorts that are culturally appropriate and focussed
• Equipment, books, stationary and textbooks for young people to do school work from home, including internet access. Also, teachers who are available to have regular contact with students, and access to quiet places to study that may not be the home or where young people are living
• Trialled, innovative methods for maintaining social support, social connectivity including exercise and links to services when isolating and physically distancing
• Emergency or short-term accommodation and food and supplies for people who are quarantined having returned to the community.

Another concern is the impact of these penalties on a community that is already under the strain of financial hardship and inadequate social supports, which is only going to intensify over the coming months.

This epidemic has the potential to significantly entrench and widen the inequality and social disadvantage experienced in the community.

The burden of fine debt and widening of the criminal justice net

‘Fine debt’ in NSW has long been identified as causing acute economic hardship and financial stress on those that have accumulated fines. It can have serious implications for individuals and families who are already experiencing serious economic disadvantage, and can keep people in cycles of poverty for years while leading to more criminal justice contact, limit people’s ability to obtain their licence and also gain employment.

While Revenue NSW (formerly State Debt Recovery) has established schemes to assist people deal with their fine debt, such as the Work and Development Order Scheme, access to these schemes can be limited without the services to help administer and support clients to get their benefit in remote areas such as Walgett.

In this context, the penalties imposed under the COVID-19 Restrictions on Gathering and Movement Order are alarming and cause for grave concern. They are some of the most punitive penalties we’ve seen, and allow for both the issuing of an $11,000 fine and imprisonment for six months.

However, there is still time to shift gears.

Advocating and supporting community-led and locally-driven approaches to responding to COVID-19 is paramount, with a focus on measuring the effectiveness of reducing the spread through the support of community, not punishment.

• Peta MacGillivray, pictured below, is a Kalkadoon and South Sea Islander lawyer who is currently the Project Manager for the Yuwaya Ngarra-li Partnership between UNSW and the Dharriwaa Elders Group.