Thread by @jeremy_gans

Curfew decision now up: classic.austlii.edu.au/au/cases/vic/V….

"The Curfew was a major restriction of human rights and liberties of the free people of Victoria. No instance of a curfew being imposed by the Executive exists in living memory. Curfews are normally imposed to control civil disturbances and widespread outbreaks of lawlessness."

"There can be legitimate debate about whether a public servant in Giles’ position, who is not the Minister, the Department Secretary or the Chief Health Officer, should be exercising an emergency executive power that may close down much of the State. "

"Neither the Victorian Equal Opportunity and Human Rights Commission or the Victorian Attorney-General chose to exercise their statutory rights of intervention in given by the Charter."

"The term ‘direction’ in s 200 can include an order or command, whether written or oral. Similarly, directions under s 200 can be detailed and complex and run to many pages as is likely to be required in a large community like Victoria."

"Parliament may wish to reconsider who should exercise these emergency powers and whether their exercise should be required to take into account matters such as the social and economic consequences of their exercise."

"Having seen Giles give evidence and having considered the documents she was provided with and the Department discussions that she held, I am satisfied that she made the decision herself based principally on public health considerations."

"There was nothing out of the ordinary in legal privilege being claimed for the Charter advice, although I later decided that inconsistent behaviour had occurred removing the privilege under s 122 of the Evidence Act 2008."

"Nor do I see anything out of the ordinary in the Directions being pre-prepared for Giles’ consideration. That is common public sector practice and recognises that the decision-maker will not have time to draw up detailed documents."

"I do not consider that the announcement of the Roadmap is a critical consideration, as that document appears to have been a plan or a proposal rather than a decision which might have removed Giles’ independence as the decision-maker."

"it might also be considered as not much of a choice for an officer of six weeks tenure. However, again I am persuaded that Giles took the need to make an independent decision seriously and did in fact make such a decision."

"While the Curfew had apparently proved controversial, Loielo’s case is more difficult to accept because it contends that Giles failed to form an independent decision in respect of only one of the many parts of the Directions. That is logically a difficult submission to accept."

"Giles formed her opinion that the Curfew was reasonably necessary to protect public health based on her specialised knowledge, the detailed information that she had seen and other evidence. Giles did take into account the social and psychological wellbeing of the community."

"The defendant accepted that she was a ‘public authority’ when she made the Stay at Home Directions and that the decision under s 200 to make those Directions with the Curfew was a decision that was subject to s 38(1)."

"I referred the parties to the decision in Kerrison v Melbourne City Council but they did not make any submissions about its relevance to this case, but proceeded on the basis that s 38 of the Charter applied to the exercise of the emergency powers contained in the PHW Act." !

"I consider that the human right of freedom of movement in s 12 was engaged by the Curfew Direction... I do not consider that the human right of liberty recognised in s 21 was directly engaged"

"In my opinion, both limbs of s 38(1) were engaged by the defendant’s decision to make the Directions, the substantive limb and the procedural limb."

"the existence of other options does not mean that they were ‘less restrictive means reasonably available to achieve the purpose’ of protecting health... it was appropriate to consider what means had been tried, what had followed, the urgency of the situation and the risks"

"Whether Giles should have considered that the restrictions imposed by a Curfew were no longer proportionate to their purpose was a matter of judgment, open to different assessments. A cautious or precautionary approach was to leave the Curfew as modified in place."

"In the circumstances I have described and, keeping in mind that Victoria was in a state of emergency, I do not consider that there were other reasonably available means within the meaning of s 7(2)(e) to achieve the purpose of reducing infections. "

"There is a question issue of whether a health expert, such as the defendant, is able to properly balance the social and economic consequences of a decision primarily based on health considerations However, Parliament has given the discretion to an authorised officer."

"The evidence discloses that the decision-maker, Giles, gave primary consideration to health issues. But, I accept her evidence she did refer to the human rights advices under the Charter and considered them."

"She said, and I accept, that she considered the documents that she received and had been thinking about her decision since the previous Wednesday when she was asked to stand in for Romanes. She said that it was the most important task that she had ever been asked to undertake."

"Giles’ four steps were to understand the rights of the person affected by the decision, to turn her mind to the impact of the decision on human rights, to identify countervailing interests and balance private and public rights. These steps include some of the s 7(2) factors."

"Her approach was that the sooner that the spread of the virus was substantially reduced, the sooner people would be able to resume their normal lives and attend to important activities such as visiting doctors and hospitals to receive health care that they had postponed"

"In the context of the purpose of the power and discretion that Giles was required to exercise, I consider that she did give proper consideration to relevant human rights as required by the second limb of s 38(1)."

"If I had found a breach of her Charter rights, I would have granted her an appropriately worded declaration to reflect that finding even though the Curfew has been revoked. I would not readily regard such a declaration as having no foreseeable consequence."

All up:
- lots of interesting comments about how inapt Victoria's public health directions system is, particularly giving such powers to a recently hired public servant
- lots of generosity to Giles given that predicament and especially public health's precautionary principle.