“A very dark episode in our recent history,” is how Victorian Ombudsman Deborah Glass today described the hard lockdown imposed on public housing tenants last July. She was releasing the report of her five month inquiry into the lockdown, which has found that the state government violated human rights law.
An even more eloquent description was given to Glass by the Deputy Chief Health Officer, Annaliese van Diemen, who was a key player.
She told Glass she was “terrified” when, on 3 July, it became clear that there was a significant outbreak in the nine public housing towers in North Melbourne and Flemington. She thought “we would see within a week many hundreds of cases”, which considering the age and poor health of some of the residents would be a catastrophe.
Locking the residents down was a terrifying decision to make. Said van Diemen: “This entire outbreak and the things that we have done – I would say there have been a lot of things to which pre-COVID me would have said, ‘We would never do something like that.’ And then there comes a point where you are weighing up the potential of many hundreds or many thousands of deaths [or] taking away significant liberties. … I think I probably would’ve advocated for it to be less imposing than it was.”
But the central message of Glass’s report is that van Diemen didn’t get that chance. Van Diemen and the public health team did NOT recommend that the lockdown be immediately imposed. Nor did they recommend the heavy police presence.
They had intended to impose a lockdown starting in 32 hours – giving the public health team time to consult community leaders and prepare for the immense task of keeping safe and provisioned about 3000 people living in vertical villages serviced by tiny and ancient elevators.
Instead, on the afternoon of Sunday 4 July, Crisis Cabinet took the decision to make the lockdown immediate. Hundreds of police officers – themselves given only hours of notice - arrived on the estates even before Dan Andrews got to his feet to announce that public housing tenants would no longer be allowed to leave their homes.
Van Diemen received the documentation giving legal effect to the lockdown orders as she was on her way to the press conference. She had just a quarter of an hour to think it through.
She was asked by the Inquiry whether she felt she was in a position to “put the brakes on this thing. Would you have felt comfortable delaying signing the directions in the situation?”
She replied: “No.”
And that, the Ombudsman says, made all the difference.
I was on site at Flemington and North Melbourne each day of the lockdown, reporting for The Guardian and maintaining a news feed intended for the residents through Twitter.
It was one of the most distressing stories I have reported in four decades of journalism. And now, here it all is - laid out in an official report.
The fact that the police were everywhere, and most residents were taken completely by surprise.
The fact that for days, the Department of Health and Human Services couldn’t even get food and medication into the residents. There are plenty of case studies in the report, and awful-to-read logs of the calls taken on the DHHS hotline.
As I reported at the time, there was a gap between what was claimed to be happening, and what occurred. For example, on 8 July – four days into the lockdown – minutes of an emergency management team meeting show “Trucks were turned away last night due to a lack of people on the ground to deliver food … Still experiencing issues with scheduling relating to delivery and resource allocation.”
At this point Premier Daniel Andrews was talking about the residents having “wrap around services”.
The report is here.
Take a look at page 140 to read about Hussein, who asked for Ventolin “as soon as possible” for his asthma on the fourth day of lockdown. “DHHS records show that, while Hussein’s request was flagged as urgent, it was not allocated to a support agency until 10pm the following evening,” the report says. The inhaler was delivered two days after Hussein’s request.
I remember another resident who was having an asthma attack on the seventh floor of the Holland Court Building in Flemington. Only direct calls by two local MPs to the Premier’s office got her an inhaler in time. It was all like this – desperate actions by community members, MPs and even journalists, to try to mitigate the worst impacts of the government's implementation of its decision.
Glass hangs a great deal on the difference Cabinet made by denying the public health team that 32 hours of preparation time.
If the preparation had been done, she says, the lockdown order would have been proportional and consistent with human rights obligations. And the implementation would have been better.
Meanwhile van Diemen told Glass that a delay would not have made much difference to the effectiveness of the lockdown – although a few more infections may have occurred.
I am sure she is right, but I still think it would have been chaos.
It wasn’t until Wednesday evening – the fourth day - that I could see residents were getting enough food, most were able to get medication and individual needs were beginning to be met.
Before that, desperate community members were getting urgent text messages from families and friends running out of food. They tried to respond – and found themselves tangling with DHHS officers who refused to allow them to deliver groceries.
The government couldn’t feed the people it had locked up – but was effectively denying the community the power to help its own.
On the second day of the lockdown, I watched a DHHS officer behaving appallingly to young African Australians at the foot of one of the towers. She was telling them they couldn’t deliver food for their families because they didn’t have safe food handling certificates.
You could feel the anger rising. I was shaking with fury myself, and it wasn’t my family suffering. Then I saw the DHHS officer turn away. She caught my eye. In her face, I saw terror. She spoke to me later. She was 25 years old and had never before set foot on a public housing estate. Plunged into this situation, without warning support or guidance, she responded as so many of us do under stress – by becoming awful.
How much worse, then, for those who were locked up.
The police, on this occasion at least, were trying to de-escalate, but DHHS kept telling them “we are the control agency”. In a submission to Glass’s inquiry, the Police Association of Victoria wrote: ‘Our members were forced to use their initiative in order to fulfil a welfare role for which it appeared that DHHS had no immediate plan or capacity to undertake.’
But there were also instances of over-policing, meaning some community-minded young people were charged, effectively for the crime of trying to help their community, and getting angry and frustrated while doing so.
I wrote at the time that I was not sure which was the more terrifying: that the premier thought he had sufficient evidence to justify the lockdown, or that he did not and had done it anyway.
Glass’s report gives us some of the answer to this question. The lockdown was justified - and it worked. The potential for a catastrophic outbreak of Covid was real. After the lockdown, cases in the public housing towers escalated at a slower rate than for the rest of Victoria – which was soon to enter Stage Four lockdown.
But Glass says that Cabinet, by bringing the lockdown forward by 32 hours and denying the DHHS time to prepare – breached the law and human rights obligations, because this decision was not based on health advice.
There were other problems with implementation, including a failure to review the orders for 33 Alfred Street North Melbourne – the tower subjected to the longest lockdown.
Other human rights breaches happened in the implementation, including the lack of food, the deprivation of fresh air and exercise, and the notorious fence used to make an exercise area. Residents saw it as a cage. DHHS says the fence was an error, due to a communications breakdown. It was meant to have been put up elsewhere. Glass says it was “clearly degrading and incompatible with the right to humane treatment when deprived of liberty”.
Further back, the DHHS was also the mega-department responsible for public housing. As landlord, it had failed to prepare any plans for a Covid outbreak in the towers – although the experiences in Europe should surely have alerted it to the fact they were high-risk.
Glass recommends that the residents of the public housing estates get an apology from the government.
As the government has already made clear, that won’t happen.
Other recommendations are for better review and complaints processes for people subject to public health orders.
Glass also recommends the government improve its relations with its tenants. As became clear during the lockdown, DHHS had long since outsourced the work of taking care of these estates to private contractors, and in the process lost touch with the communities. When lockdown came, the Department found it didn’t really know who was living in the flats. Phone numbers were out of date. Registered tenants weren’t there. Many people were there who were not registered.
Meanwhile, the residents had long since experienced DHHS as indifferent to their concerns – including requests from community leaders for more support in preventing Covid.
And so, on 4 July, they were suddenly made entirely dependent on a bureaucracy that had already proved itself unresponsive to their needs.
Two other inquiries – the parliamentary inquiry into contact tracing and the judicial inquiry into Hotel Quarantine – have identified problems with the culture of the DHHS. Counsel assisting the hotel quarantine inquiry described the department as dysfunctional.
We now know that the public health team was sidelined from key decision making. Glass’s report shows that happened with the public housing lockdown as well.
Meanwhile the parliamentary inquiry was told that DHHS was defensive and unwilling to admit error.
Glass’s report will add to that picture.
The DHHS response is included as an appendix. It denies most of her key findings. But if you were looking for any expression of regret, acknowledgement of pain, reflections on what could have been done better, then you have to dig pretty deep.
Such reflections and regrets are present in the evidence given to Glass by individual DHHS officers, but the official response reads as though it was written by the Tin Man. It has no heart.
It is couched in terms of “jurisprudence” (basically, legal precedent on the meaning of human rights legislation) and uses this to deny that the government behaved illegally.
It looks like the government has already begun to construct its defence to the almost inevitable legal actions from public housing residents.
Meanwhile, the government has already announced that DHHS – the huge department created by Daniel Andrews shortly after he came to power – will be split. We will have a dedicated Department of Health.
Meanwhile, Secretary Kym Peake and Minister Jenny Mikakos have both resigned. And the Housing Minister, Richard Wynne, refused to say how and why Cabinet made the decision to make the lockdown immediate.
Now Victoria has defeated its second wave, it is a time to take stock.
Daniel Andrews’ maintenance of public support while depriving Victorians of their liberty is an extraordinary political and social story. Given that most of the media don’t seem interested in telling it, we will have to wait for the historians and the biographers. It was an exceptional display of leadership.
But, against this, we have to ask how the DHHS was allowed to get into such a mess. We now know that successive ministers had asked for more funding for public health, without success.
And more broadly, the dogs are barking all over town. The problems with the Victorian public service are not confined to the DHHS.
Senior levels have been politicised, leading to a risk averse culture of upward management. The mega departments Andrews created have proved impossible to govern. Meanwhile, the Premier’s Department has been interventionist and controlling.
And this continues.
Have you noticed that we haven’t heard from the Chief Health Officer, Brett Sutton, in recent weeks? Numerous journalists around town have approached him for an interview. He has been refused permission to speak.
Recent accounts of Victoria’s response to the second save have emphasised how Daniel Andrews and his top public servant, Chris Eccles, swung in to take over when it was clear things were getting out of control. Eccles emerges from these accounts as an heroic figure.
But he was the head of the public service. If DHHS was a mess, then he was surely partly responsible. If it had been less of a mess, perhaps he wouldn’t have needed to be so heroic.
It was also Eccles who, in April, introduced a new public service structure to respond to Covid that simultaneously centralised control while also muddying lines of responsibility.
This is one of the reasons that Mikakos and Peake have been able to claim that DHHS was not responsible, or not solely responsible, for some of the problems in hotel quarantine. Peake was answering directly to the Premier in one role, under Eccles structure, and to Minister Mikakos in another.
Some of the problems in the Victorian public service are the legacy of the Kennett years – and his swingeing “reforms”, privatisation and deep cuts.
But Labor has surely been in power long enough to be held to account
We may have had a second wave even if our public health team had been properly resourced and our contact tracing better. We will never know.
Probably, the public housing tenants would still have been locked down – but with better support and preparation, if the public health team had been better listened to.
Victoria’s combatting of the second wave is a success story. Nobody watching what is happening in Europe and the USA can deny it. Andrews deserves his share of the credit for that – as do all the Australian leaders who believed and acted on expert medical advice.
The question for Andrews now is what he has learned about the problems with the public service, and what he is going to do about them.
Will public health be properly funded and empowered? Will the Chief Health Officer be allowed to speak?
Public service stories are hard for the media to report. They are about systems, not personalities – about breakdowns rather than individual blame.
But in moments of crisis we get a reminder of why the public service matters, and why we should all care about its capacity, honesty and health.
Margaret Simons is an award-winning freelance journalist and the author of many books and numerous articles and essays. She is also a journalism academic and Honorary Principal Fellow at the Centre for Advancing Journalism, University of Melbourne. She has won the Walkley Award for Social Equity Journalism, a Foreign Press Association Award and a number of Quill Awards, including for her reporting from the Philippines with photojournalist Dave Tacon.
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