(Image: AAP//Mick Tsikas)

Last Friday in Hornsby Local Court a 29-year-old man was sentenced to eight months in prison with a minimum non-parole period of three months for being involved in organising an unauthorised anti-lockdown protest and multiple breaches of COVID-related public health orders. 

Essentially, it was condign punishment for the crime of being persistently antisocial.

That, objectively, is a big serve. By way of random comparison, I was reading the same day about a Sydney solicitor who was convicted of perverting the course of justice by counselling his clients to lie to police about a series of incidents of female genital mutilation in their community. His sentence was 400 hours of community service.

Of course, trying to make sense of sentencing practice is a ticket to despair, but on any basis three months in prison is harsh punishment for crimes involving no violence or violation of another’s rights.

The obvious answer to qualms about this heavy-handedness is “it’s a pandemic, stupid”, not an invalid point. Not just the governmental response to COVID but COVID itself commands that we act uniformly in compliance with “the rules”, otherwise we lose and people die. Pleas of “but my human rights” fall on deaf ears outside freedom warrior chat rooms.

The guy, Anthony Khallouf, was unquestionably recalcitrant and not apparently likely to cease his threats to public safety unless physically restrained. He is the founder of an anti-lockdown group with 12,000 followers on Telegram. He was also charged in 2020 with inciting protests in Melbourne.

Khallouf was instrumental in organising the illegal “Freedom Rally” in July, and pleaded guilty to four breaches of public health orders, including travelling from Queensland to Sydney.

There are always outliers. The single member of Congress who voted against the United States entering World War II. The billionaire who is anti-lockdown, anti-vaccination, pro-quack COVID cures. Pete Evans on anything scientific. Matt Canavan or Craig Kelly, just generally.

At some point free speech becomes a public health risk; in a pandemic, that line is necessarily a lot closer to home.

Everyone’s heard of Typhoid Mary. She was a domestic cook in New York and an asymptomatic carrier of typhoid. As she made her way between various Manhattan households at the turn of the 20th century, Mary infected dozens of people and at least several died. The link was eventually made, and against her will she was forcibly quarantined as a public health threat.

After a few years Mary was released on condition that she cease working as a cook and take precautions to not infect others. However, she liked cooking and five years later, after infecting many more, she was back in quarantine on an island in the East River where she remained until her death (not from typhoid) 23 years later.

Mary never believed that she carried the disease or presented a danger to anyone. Since she never had symptoms, that’s somewhat understandable. However, she was as lethal as a rattlesnake, and her lack of freedom was the price for her refusal to accept the generally acknowledged truth.

For Mary, the consequence wasn’t technically punishment, although the practical distinction between imprisonment and detention is often hard to see (ask an asylum seeker). It was protective — not of her but everyone else.

Under our modern public health laws, state and federal, authorities are equipped with every power conceivable to prevent or restrict the spread of a pandemic disease. They can forcibly quarantine individuals or whole populations, close borders, impose vaccinations and medical procedures without consent. All these powers are justified by a single public policy imperative: public safety.

It is accepted in legal principle that sometimes an existential reality trumps everything else, including all our human rights real or imagined. Habeas corpus can lawfully be suspended and aliens detained in wartime; we can be locked in our homes or quarantine facilities in a pandemic. It is pure pragmatism, the bottom of the hierarchy of needs: survival.

Punishment, however, is qualitatively different from protection and requires a completely different justification. This is where we need to be vigilant, because the balance between personal rights and society’s needs can most easily be pushed too far in the latter direction during a crisis.

The policing instinct which all our governments have on bold display, supported reflexively by the media and most of the population, is understandable. We get angry when we see flagrant disregard for what we’re all trying to achieve through sacrifice, and the trigger desire for punishment is only natural.

However, we would be wise to ask ourselves on what principle we should be dealing with Khallouf and his kind? A principled approach would contemplate both an element of punishment as a proportionate response to deliberate or reckless wrongdoing, and a larger element of protection of public health and safety. 

To the latter extent, Khallouf is not a miscreant but a practical threat: he’s an idiot, obviously; it’s just that in normal times that wouldn’t matter, but at the moment, for purely pragmatic reasons, it does.

The difference between imprisonment and quarantine detention may be thought by some to be semantics, but I assure you it’s not. Its consequences will outlast COVID by a long way.

Does the punishment fit the crime? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name if you would like to be considered for publication in Crikey’s Your Say column. We reserve the right to edit for length and clarity.