Supreme Court of Victoria dismisses challenge to Melbourne curfew

Loielo v Giles [2020] VSC 722

Summary

On 2 November 2020, the Supreme Court of Victoria dismissed the first substantive legal challenge to the validity of greater Melbourne’s lockdown laws.  Justice Ginnane held that the curfew imposed between 9pm and 5am in greater Melbourne from 13 to 28 September 2020 (Curfew) was a lawful and proportionate measure in response to mounting cases of COVID-19 in Victoria.

Background

The proceeding was commenced by Michelle Loielo, the owner of a restaurant in Rosebud West on the Mornington Peninsula.  Ms Loielo was financially impacted by reduced patronage to her business during the lockdown. Justice Ginnane accepted that Ms Loielo had a special interest and therefore had standing to bring her claims.

Ms Loielo commenced the proceeding against Associate Professor Michelle Giles, a Deputy Public Health Commander at the time of the relevant events, seeking a declaration that the curfew was unlawful and invalid. 

The Chief Health Officer is empowered under section 199(2)(a) of the Public Health and Wellbeing Act 2008 (Vic) (Public Health Act) to authorise officers to exercise emergency powers if a state of emergency exists and the Chief Health Officer considers the authorisation necessary to eliminate or reduce a serious risk to public health. 

On 15 March 2020, the Health Minister declared a state of emergency under section 198(1) of the Public Health Act on the advice of the Chief Health Officer in relation to the whole of Victoria.  On 9 September 2020, Ms Giles was appointed as a Deputy Public Health Commander.  On 11 September 2020, the Chief Health Officer authorised Ms Giles to exercise emergency powers.  The relevant emergency powers include detaining persons, restricting movement within Victoria, preventing persons from entering Victoria and giving any other direction reasonably necessary to protect public health. 

On 13 September 2020, Ms Giles signed the Stay at Home Directions (Restricted Areas) (No 15) (Directions) in her capacity as an authorised officer exercising emergency powers.  The Directions continued and modified a more restrictive curfew imposed by the Stay at Home Directions (Restricted Areas) (No 8) which had applied between 8pm and 5am from 5 August 2020.

The Directions contained other restrictions in addition to the curfew, including the four reasons to leave home and the “ring of steel” between greater Melbourne and the rest of Victoria, but Ms Loielo only challenged the curfew (Curfew Direction).

Decision

Ms Loielo contended the Curfew Direction:

(a)   was made at the direction or behest of the Premier;

(b)   was unreasonable, illogical or irrational; and

(c)   unlawfully limited Ms Loielo's human rights recognised under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter), in particular the rights to freedom of movement and liberty.

Justice Ginnane dismissed the proceeding on each of the pleaded grounds.

Curfew Direction made independently of the Premier

In contending that Ms Giles did not independently make the Curfew Direction, Ms Loielo pointed to the fact that the Premier announced the continuation and modification of the curfew at a media conference in the morning on 13 September 2020, several hours before Ms Giles signed the Curfew Direction at around 11pm that evening.  Further, Ms Giles was not involved in the drafting of the Directions and had insufficient time to consider the voluminous briefing materials provided the day she signed. 

Ms Giles gave evidence she was not influenced by the Premier’s announcement and had not made any decision prior to receiving the proposed directions.  Ms Giles said she weighed the competing public health factors and human rights considerations in deciding whether to make the Directions and agreed with the restrictions contained in the Directions from a public health perspective.  Ms Giles’ decision was largely based on the clear and direct correlation she had observed between previous similar restrictions and the reduction in COVID-19 cases in greater Melbourne.

Justice Ginnane emphasised that the person having legal authority to exercise extraordinary statutory powers in times of emergency must independently exercise those powers.  His Honour ultimately accepted that Ms Giles independently decided to make the Curfew Direction based principally on public health considerations.  It did not matter that Ms Giles had not been involved in the preparation of the proposed directions.

Curfew Direction not unreasonable, illogical or irrational

Ms Loielo contended that Ms Giles acted unreasonably in making the Curfew Direction.  This submission was made on the basis that the Curfew Direction was not reasonably proportionate to the public health objectives it sought to achieve, was arbitrary in that it had no scientific basis, and was inconsistent with the requirements in the Public Health Act for decisions to be proportionate and involve the minimum restrictions necessary. 

Ms Loielo separately contended that the Curfew Direction was illogical or irrational because it was not based on relevant and reliable evidence as required by the provisions of the Public Health Act.

Justice Ginnane held that the decision to make the Curfew Direction was within the range of reasonable decisions that could be made and was therefore not outside the scope of the emergency powers.  Further, his Honour held that the Curfew Direction was proportionate to the public health purpose sought to be achieved and could not be characterised as arbitrary.  His Honour concluded that the Curfew Direction was reasonably necessary to protect public health, and the decision of Ms Giles to make the Curfew Direction could have also been reached by a logical or rational person on the same available material and was therefore not irrational or illogical.

Curfew Direction compatible with Charter rights

Ms Loielo contended the curfew was incompatible with her right to freedom of movement and right to liberty and security of person, recognised in sections 12 and 21 of the Victorian Charter. Justice Ginnane accepted that the right to freedom of movement was significantly limited by the Curfew Direction.  However, his Honour did not consider that the right to liberty and security was engaged. In this regard, his Honour referred to the statement of Bell J in Kracke v The Mental Health Review Board (2009) 29 VAR 1 that “the difference between a deprivation of liberty and a restriction on freedom of movement is one of degree or intensity, not one of nature and substance”.  His Honour considered that the right of a person to come and go from their home was better characterised as the right to freedom of movement.

Ms Loielo relied on section 38(1) of the Victorian Charter, which makes it unlawful for a public authority to act in a way that is incompatible with the human rights contained in the Victorian Charter (“substantive limb”), or to fail to properly consider those rights in making decisions (“procedural limb”). 

Justice Ginnane gave separate consideration to the alternative limbs of section 38(1).  His Honour explained that:

Section 38(1) results in the Charter affecting the procedure leading to a decision and then provides a standard of compatibility against which the lawfulness of actions are taken to be assessed, both any decision made and its implementation.

In relation to the substantive limb, his Honour observed that whether the Curfew Direction was lawful depended upon whether it was reasonably proportionate to the legitimate public health objectives it sought to achieve. His Honour referred to section 7(2) of the Victorian Charter, which permits the human rights contained in the Victorian Charter to be subject to reasonable limitations, which must be demonstrably justified having regard to several factors including the purpose, nature and extent of the limitation and any less restrictive means reasonably available.  His Honour observed that the Curfew Direction represented a major restriction of the “human rights and liberties of the free people of Victoria”.  However, the Curfew Direction was reasonably necessary to protect public health and there were no less restrictive means available to reduce infection rates. His Honour concluded that the Curfew Direction was a proportionate response to the urgent circumstances created by the pandemic.  

In relation to the procedural limb, Ginnane J held that this limb requires a decision maker to have “seriously turned their mind” to the possible impacts of the decision on human rights and to identify and consider countervailing interests.  His Honour held that Ms Giles had referred to human rights advices provided in the briefing materials accompanying the proposed directions and considered the effect of the Curfew Direction on the human rights of people in Victoria, such that the procedural limb was also satisfied.

Commentary

The proceeding brought by Ms Loielo was the first challenge to the legality of the greater Melbourne lockdown, which has been described as one of the longest and harshest in the world.  A second proceeding, commenced by another Victorian restaurant owner challenging the legality of various directions made under the Public Health and Wellbeing Act 2006 (Vic), is currently before the High Court of Australia. This challenge is based on an implied freedom of interstate movement under the Constitution.  Some aspects of the decision in Loielo relating to the proportionality of the Directions will likely be relevant in this proceeding, albeit in the context of different legal arguments.

The decision in Loielo illustrates that the government has extensive powers in a state of emergency.  However, as Justice Ginnane confirmed, those powers must be exercised in accordance with law and consistently with human rights. Justice Ginnane emphasised that human rights are still vitally important even in urgent and emergency situations and, in fact, assume particular significance in such situations.  In particular, his Honour held that “when basic human rights such as freedom of movement are being restricted, it is particularly important that legal procedure is followed”. 

A secondary issue raised in this case was a lack of transparency in decision-making.  Justice Ginnane observed that the person who had decided to introduce the first curfew in August could not be precisely identified, despite the requirement in the Public Health Act for those engaged in its administration to as far as practicable ensure decisions are “transparent, systematic and appropriate”.  Similar issues have been raised in the Hotel Quarantine Inquiry where there has been uncertainty as to who in Government made the decision to use private security in enforcement.  Decisional uncertainty presents difficulties for the protection and enforcement of human rights, including under the Victorian Charter, where the lawfulness of decisions is evaluated in the context of the decision making process.  Further, if the decision maker cannot be identified, it will be difficult for the government to discharge the burden of demonstrating that a particular limitation is justified and that the relevant decision involved a proper consideration of human rights.

The full text of the decision can be found here.

Julia Nikolic is a Solicitor at King & Wood Mallesons.