CRISPIN HULL / Crimes of the Pandemic

Breaking quarantine, social-distancing or mask-wearing laws are crimes in a class on their own.

They are so different from other crimes. The criminal act itself – just travelling around the place – in other times would be unpunishable normal conduct.

The consequences of the crime are profoundly consequential – death of innocent people, widespread suffering and significant economic damage which itself can inflict death and ill-health.

The importance of compliance is hard to overstate. In other cases, if 95 per cent or more of the people obey the law 95 per cent or more of the time, society will function reasonably well. The traffic system and tax system, while not perfect, function reasonably well on the 95-95 rule.

But with quarantine compliance by 95 or even 99.5 percent of people for 95 per cent or even 99.5 per cent of the time is not enough. It only takes one infringement for the wrecking ball to smash though.

And when it does, it inflicts massive damage, In the US and Europe deaths and economic damage from Covid far out-strip the damage from failure to comply with all the other criminal laws combined.

Even very serious crimes like grievous bodily harm, armed robbery, rape and even murder inflict less damage than Covid. Australia has 400 homicides a year, compared to 900 Covid deaths in less than a year. Probably more than 24 million of Australia’s 25.5 million people have suffered financial damage, compared to 12,000 robbery victims.

Nearly all other crimes have one or a few victims. And even the big financial swindles with many victims are limited to money, not death and suffering from disease.

The on-the-spot fine system from breach of quarantine does not include victim-impact statements. If it did, those statement would be very long indeed.

The unique nature of quarantine offences poses a test for legislatures, the criminal-justice system and criminologists.

Australian legislatures have been fairly circumspect with quarantine penalties, most did nothing for months. They relied on existing public-health penalties.

In July, South Australia announced a two-year penalty and Queensland six months. Western Australia has a one-year penalty and NSW has six months. All states and territories have fines up to $50,000.

WA leads on enforcement with several six-month jail sentencing for people breaching hotel quarantine or border control so they could be with partners.

Still, they are pretty light-weight penalties considering the damage the crimes can do.

Perhaps they are so light because the act they punish would in non-pandemic times be harmless and politicians might be a bit wary of being seen to be draconian.

Further, it was initially thought that it would be hard to prove which of several breaches of quarantine caused the damage, though that is changing. Technology and contact tracing can now sheet home the blame.

That being the case the ordinary principles of criminal law should be applied – the higher the damage the higher the penalty. 

The classic example is the pub-brawl punch. There are plenty of pub brawls in Australia, including outbursts of violence that are not self-defence. Usually, the brawlers are split up and no charges are laid, or someone might get a bond for drunk and disorderly conduct. But if a brawler hits someone for some imagined slight (such as spilling a drink) and that person falls to the ground, hitting their head and dying as a result, everything changes.

The criminal law does not look at the violent intent on its own, applying the same penalty for every brawler who lashes out. It also looks at the consequences of the intent. If it is death, the charge could be murder or manslaughter with jail up to life. If it is not death, the penalty is much lower, perhaps a bond or fine, for the same criminal intent.

In imposing penalties, courts look at complex matrix of matters, such as the need to punish and deter and for retribution by society, and also remorse, the likelihood of re-offending, character and past record.

Of course, the criminal law is just part of society’s armoury in its quest to reduce or eliminate anti-social behaviour. Shaming, education, leadership example and positive reinforcement help – as smoking campaigns show. But the trouble is those things are not going to give us the 100 per cent compliance we need with quarantine if we are to protect ourselves from the massive damage this virus can do.

Indeed, in the next year until vaccines come to our rescue, the consequences of breaching the rules will perhaps be more severe than at any time since the pandemic struck. This is because all of the economic suffering to date will have been for nothing.

The vaccine rescue is not a long way off. We should do more to protect all the effort made so far to contain this pandemic. There is not a great deal of time for shaming, education and leadership example to take root, especially in an environment where some idiots make it a political statement not to wear a mask in hotspots and to downplay the danger. 

That being the case, perhaps we should ramp up the deterrence to help us get to post-vaccine safety.

Besides 14-day quarantine and social distancing are not hugely onerous. They are not even as onerous as the word “quarantine” suggests. It is Venetian for 40 days, the isolation time for people and ships in the time of the plague.

Yes, the pandemic will end with vaccinations. But in the meantime we cannot become complacent.

The Christmas-New Year period is also a time for old movies. What a joy those 1950s movies are. You can hear every word David Niven or James Stewart says. There is none of this modern realism in which “real” background noises compete with the mumbled slang to defeat the very purpose of the movie – to communicate the story. Message to modern movie makers: turn off the background noises and stop actors mumbling. And while you are at it, get rid of those darkened scenes where viewers can’t see what is going on.

This article first appeared in The Canberra Times and other Australian media on 26 December 2020.


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