a) In October 2022, 815 Truemans Cabin Hire Pty Ltd v The Secretary, Department of Health [2022] VCAT 1187 (Truemans).

Truemans Cabin Hire Pty Ltd, a short-term accommodation business on the Mornington Peninsula offering cabins for hire, claimed compensation for loss as a result of Professor Sutton giving authorisations.

b) In November 2022, Wentworth Hair Salon v The Secretary, Department of Health (Review and Regulation) [2022] VCAT 1298 (Wentworth).

Wentworth Hair Salon and a sub-lessee of a business premises in the foyer of the Stamford Plaza Hotel in Melbourne claimed compensation related to the time when the Hotel was in the Victorian Government's hotel quarantine program.

1. Given Truemans and Wentworth, in December 2022, VCAT asked the parties to respond concerning the future of Mr Blewett's then two applications.
2. The Secretary wrote to Mr Blewett, proposing that he withdraw his application given the refusals in the above cases. Mr Blewett declined.
3. In January 2023, the Secretary applied under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) for orders dismissing or striking out Mr Blewett's first two application on the basis that they were misconceived, vexatious, lacking in substance and/or an abuse of process.
4. The Secretary provided a supporting affidavit which provided a range of evidentiary documents.
5. In January 2023, VCAT scheduled the October 2023 hearing.
6. Mr Blewett then made his third application. The Secretary sought orders under section 75. The third section 75 application was 'added' to the October hearing.
7. On 31 October 2023, the Secretary's section 75 applications came before me for hearing. Mr Blewett represented himself. The Secretary was legally represented. With the parties' consent, I ordered that the three section 75 applications be heard and determined together.[2]
8. During the hearing, I ordered that Professor Sutton's witness statement dated 5 September 2021 (which was evidence in Truemans and Wentworth) be admitted as evidence in this proceeding. At the end of the hearing, I reserved my decision, which is most unfortunately many months delayed given competing work demands at VCAT.
9. After the hearing Mr Blewett sent VCAT and the Secretary documents asking that I take them into account in making this decision. Over the Secretary's objections, given the summary nature of deciding a section 75 application, and given the long delay in providing this decision, I advised the parties that I would review that material, not anticipating any further hearing concerning the section 75 application. I address those documents below.
10. In December 2023, VCAT published Thompson v The Secretary, Department of Health (Review and Regulation) [2023] VCAT 1386 (Thompson No. 2). Following an application by the Secretary under section 75, on substantially the same grounds as made here, the Tribunal summarily dismissed the application.
11. It was not until I was drafting these orders and reasons in May 2024, that I learnt of Thompson No. 2. I invited the parties to provide written submissions.
12. The Secretary made a submission on Thompson No. 2. Instead of making a submission on Thompson No. 2, Mr Blewett sought orders that the Secretary provide documentary evidence, which the Secretary opposed. Through the VCAT registry I advised the parties that such orders would not be made, that reasons for that decision would be provided in these reasons, and invited Mr Blewett to make final submissions, received on 17 July 2024.
13. For completeness I note that close to hearing these applications I heard another section 75 application by the Secretary related to a COVID-19 compensation application. By co-incidence, these orders and reasons and the orders and reasons in Asif v Secretary, Department of Health (Review and Regulation) [2024] VCAT 719 are published on the same day. I dismissed Mr Asif's application. The law set out in Asif is also set out here. The three decisions here are independent of Asif based on the evidence and submissions in these cases. That said, the Secretary's submissions in Asif were very similar to those made here.

1. These reasons;
   • Describe VCAT jurisdiction in context of the PHW Act, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) and section 75 of the VCAT Act;
   • Summarise Mr Blewett's three claims and the Secretary's three responses;
   • Describe Professor Sutton's evidence in Truemans, as summarised in Wentworth;
   • Set out the Secretary's, then Mr Blewett's submissions;
   • Describe why Mr Blewett's application for further documents was refused; and
   • Decides Mr Blewett's three applications (which includes returning to Professor Sutton's evidence, challenges to that evidence and VCAT's conclusions in Truemans, Wentworth and summarise Thompson No. 2).

1. The summary dismissals here, under section 75 of the VCAT Act, is final decisions. When later in these reasons I often refer to the final hearing, I am referring to the final hearing that presumably would have been held in these cases, if I had not dismissed the applications.

VCAT's task in applications to review section 204 refusals

1. As VCAT has three times[3] decided, with which I agree, if this case goes to final hearing, VCAT must answer three questions:
   1. Was there a declared state of emergency at the time Professor Sutton made the authorisation as CHO (not was that the correct decision)?
   2. Did Professor Sutton, at the time he made the Authorisation, have insufficient grounds to do so?, and, only, if yes
   3. Is compensation payable?

1. The following is mainly drawn from the Wentworth decision.
2. The difference in this case is that on 8 September 2020 the PHW Act was amended inserting 'reasonably' before 'necessary' in section 199(1)(b).[4]
3. Before 8 September 2020 section 199(1)(b) said:

(b) the Chief Health Officer believes that it is necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health

(b) the Chief Health Officer believes that it is reasonably necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health

1. Also, on 8 September 2020, section 3(4) of the PHW Act was inserted, concerning the meaning of 'serious risk' (see below).
2. Professor Sutton noted this amendment in his witness statement, in context that Truemans concerned authorisations given and operating before 8 September 2020_._ He was clarifying that in giving evidence in Truemans, he was focusing on when section 199(1)(b) said, 'necessary'.
3. Wentworth concerned 'necessary'. Thompson No. 2 spanned both versions.
4. It is convenient to note here:
   • Z911/2020 concerns authorisations made on 16 March 2020, 17 March 2020, 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020. The broader test applies to the last two authorisations;
   • Z1007/2021 concerns an authorisation made on 20 July 2021. The broader test applies; and
   • Z248/2022 concerns directions made from 17 March 2020 to 15 December 2021. Professor Sutton's authorisations in place at the times the various directions were made spans before and after 8 September 2020. Both tests apply.

1. Part 2 of the PHW Act contains the Act's objective, principles and application. Section 4 says where appropriate, the State has a role in assisting in responses to public health concerns of national and international significance. The objective of the Act is to achieve the highest attainable standard of public health and wellbeing, in particular by protecting public health and preventing disease, illness or premature death. Regard must be given to the guiding principles set out in sections 5 to 11A, relevantly evidence-based decision-making, precaution, the primacy of prevention, accountability, proportionality, and collaboration.
2. Sections 20, 20A and 21 of the PHW Act create the position of CHO and set out powers the CHO may exercise, including as authorised by the PHW Act.
3. Part 10 Division 3 of the PHW Act (from section 198) is headed 'Emergency Powers'.
4. Section 198 empowers the Minister for Health, on advice of the CHO and after relevant consultation, to declare a state of emergency arising out of any circumstances causing a 'serious risk to public health'.
5. Section 199 of the of the PHW Act says:

199 Chief Health Officer may authorise exercise of certain powers > > (1) This section applies if- > > (a) a state of emergency exists under section 198; and

(b) the Chief Health Officer believes that it is 'necessary' (until 8 September 2020) / 'reasonably necessary' (from 8 September 2020) to grant an authorisation under this section to eliminate or reduce a serious risk to public health

(2) If this section applies, the Chief Health Officer may, for the purpose of eliminating or reducing the serious risk to public health, authorise-

(a) authorised officers appointed by the Secretary to exercise any of the public health risk powers and emergency powers; and

(b) if specified in the authorisation, a specified class or classes of authorised officers appointed by a specified Council or Councils to exercise any of the public health risk powers and emergency powers.

(3) The Chief Health Officer may at any time revoke or vary an authorisation given under this section.

1. 'Serious risk to public health' is defined in section 3(1) to mean 'a material risk that substantial injury or prejudice to the health of human beings has occurred or may occur having regard to:

a) the number of persons likely to be affected; > > b) the location, immediacy and seriousness of the threat to the health of persons; > > c) the nature, scale and effects of the harm, illness or injury that may develop; and > > d) the availability and effectiveness of any precaution, safeguard, treatment or other measure to eliminate or reduce the risk to the health of human beings'.

2. Section 3(4), also inserted on 8 September 2020, says

Without limiting the definition of serious risk to public health in subsection (1), for the purposes of Division 3 of Part 10 COVID-19 may pose a material risk of substantial injury or prejudice to the health of human beings even when the rate of community transmission of COVID-19 in Victoria is low or there have been no cases of COVID-19 in Victoria for a period of time.

1. Section 199 applied if a state of emergency existed under section 198 and the CHO believed that it was reasonably necessary to grant an authorisation to eliminate or reduce a 'serious risk to public health'. For the purpose of eliminating or reducing the serious risk to public health, the CHO was empowered, among other things, to authorise 'authorised officers', appointed by the Secretary, to exercise any of the public health risk powers (set out in section 190) and emergency powers (set out in section 200). Section 199(3) gave the CHO power at any time to revoke or vary an authorisation.
2. Section 200 sets out the emergency powers. They include power to restrict the movement of people.
3. Section 204 deals with compensation. It relevantly provides:

Compensation > > (1) A person who suffers loss as a result of a decision by the Chief Health Officer to give an authorisation to an authorised officer under this Division may apply to the Secretary for compensation if the person considers that there were insufficient grounds for the giving of that authorisation. > > (2) If the Secretary decides that there were insufficient grounds for the giving of an authorisation to an authorised officer under this Division, the Secretary is to pay just and reasonable compensation to the applicant. > > ... > > (7) An applicant for the payment of compensation under this section who is dissatisfied with a decision by the Secretary as to the refusal to pay compensation or as to the amount of compensation may apply to the VCAT for a review of the decision.

4. Concerning directions made under authorisations, section 185 of the PHW Act provides for complaints to be made to the Secretary. There is no avenue for application to VCAT concerning directions.

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to relevant human right.

1. 'Public authority' is defined in section 4. Relevant human rights include freedom of movement (section 12) and the right to liberty and security of person (section 21).
2. Section 7(2) of the Charter states:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1. Section 75 of the VCAT Act says that at any time, VCAT may make an order summarily dismissing or striking out all, or any part, of a proceeding[5] that, in its opinion is frivolous, vexatious, misconceived or lacking in substance; or is otherwise an abuse of process.
2. In Axicom Pty Ltd v Melton CC [2020] VCAT 190 at [9], VCAT said that for a proceeding to be struck out or dismissed under section 75:
   • the application must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail;

• the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be 'very clear' that the proceeding is 'absolutely hopeless';
• the power should not be invoked where all that is shown is that, on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint;
• the respondent to a proceeding bears the persuasive burden of showing, 'that the complaint is absolutely hopeless'.

Mr Blewett's claims and the Secretary's responses

1. By letter dated 16 September 2020, Mr Blewett applied for compensation under Section 204, submitting there were insufficient grounds for the CHO to give directions requiring wearing a face coverings, and to work from home. He quoted from an Australian Government Department of Health publication stating that wearing a face mask in public won't help to protect you from infection and facemasks should only be worn if you have symptoms or looking after a person who may have COVID-19. He contrasted this with a Victorian Government publication that said wearing a face mask keeps you and others safe.
2. This case concerns directions made from July 2020 to mid-September 2020 concerning the wearing of face masks and the requirement to work from home, made by Professor Sutton, Deputy Chief Health Officer Dr van Dieman, Public Health Commander Dr Romanes and Deputy Public Health Commander Dr Giles. They were variously authorised to make those directions under section 199 authorisations made on 16 March 2020, 17 March 2020, 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020.
3. Mr Blewett claimed compensation of $715.80, mainly related to the cost of buying facemasks and some home office expenses related to work from home directions, from late July to mid-September 2020.
4. By letter dated 16 October 2020, the Secretary refused his application. The Secretary set out the CHO's authorisations, why the Secretary formed the view that the authorisations were properly made, that the CHO properly addressed the guiding principles under the PHW Act and the Charter and concluded:

... I have decided that there were sufficient grounds for the Chief Health Officer to give the Authorisations to the specified authorised officers under section 199(2)(a) of the Act, and no compensation will be paid in relation to your application for compensation.

1. By letter dated 20 October 2021, Mr Blewett sought compensation primarily related to the then in force 29 September 2021 COVID-19 Mandatory Vaccination (Workers) Directions (No. 4) made by the then Acting Chief Health Officer Professor Cowie. He was authorised under a section 199 authorisation made on 20 July 2021. Mr Blewett did not specify an amount claimed.
2. In summary, Mr Blewett submitted that the decision was not evidence-based, that COVID-19 posed risk far less serious than claimed by the Government, that the vaccine was not highly protective and there was growing evidence of other options to reduce susceptibility to COVID-19 (Vitamin D and Ivermectin). Mr Blewett referred to the Premier on 19 October saying unvaccinated Victorians, 'will be 'locked out' from doing things until at least April 2022'. He described this as addressing political not public health risk with the public not consulted on policy development.
3. He described the direction as in breach of human rights under the Charter:
   • protection from torture and cruel inhuman or degrading treatment,
   • privacy and reputation,
   • freedom of thought conscience religion and belief and
   • right to liberty and security of person.
4. He cited section 109 of the Constitution, submitting that the direction was inconsistent with the Commonwealth Disability Discrimination Act 1992 and Privacy Act 1988.
5. By letter dated 15 November 2021, the Secretary refused the application.
6. The Secretary described the operation of section 204 of the PHW Act, that compensation is only available where there were insufficient grounds for the CHO to give an authorisation under section 199, that there is no compensation provision related to directions made under section 200. Giving a high-level summary, the Secretary addressed background and decision-making relating to the giving of the authorisation under which the direction was made. The Secretary decided that Professor Sutton had complied with guiding principles in the PHW Act and the Charter. The Secretary concluded:

For all of these reasons, I have decided that there were sufficient grounds for the Chief Health Officer to give the Authorisation to Professor Cowie under section 199(2)(a) of the Act, and it is this which I am required to consider in determining a section 204 application for compensation. As noted above, your application is based on the section 200 exercise of power in issuing the Direction. On this basis, no compensation will be paid in relation to your application for compensation.

If you are dissatisfied with this decision, you have a right under section 204(7) of the Act to apply to the Victorian Civil and Administrative Tribunal for a review of the decision. Such an application for review must be made within the timeframe set out in section 204(8) of the Act.

In circumstances where your application seeks to challenge the exercise of a section 200 power, rather than a section 199 power under the Act, VCAT is not the appropriate forum to hear such an application. Rather, the Supreme Court of Victoria has jurisdiction to hear such matters and any challenge to the Direction should be brought in that forum.

1. By letter dated 15 March 2023, Mr Blewett claimed compensation related to the CHO's authorisations under which 'stay-at-home' directions, their predecessor, 'prohibited gatherings directions' and/or any other applicable directions.
2. This case concerns all Stay at Home and Public Gathering directions made under authorisations made on 12 August 2020, 13 September 2020, 19 June 2021 and 30 June 2021.
3. Mr Blewett submitted the CHO had insufficient grounds for issuing the directions that, subject to exceptions provided in the directions,:
   • restricted his movement outside of his home to 5 kms;
   • restricted activities he could undertake outside in his own home;
   • required him to have a 'authorised worker permit' to be able to go to work; and
   • required him to be at home for 24 hours per day.
4. Mr Blewett wrote that once the Secretary had found that the CHO had insufficient grounds, good faith negotiations about the amount of compensation could follow.
5. Mr Blewett's application appears to relate to directions made from 17 March 2020 to 15 December 2021, and therefore to Professor Sutton's authorisations in place at the times the various directions were made.
6. By letter dated 29 March 2023, the Secretary in summary form described the background to the making of relevant authorisations and directions, why the Secretary viewed Professor Sutton as properly making the authorisations (the format of this letter is similar to the two previous letters), refused the claim and again noted that any challenge to directions made under section 200 must be made to the Supreme Court of Victoria.

Professor Sutton's witness statement in Truemans

1. In Truemans, Professor Sutton provided an extensive 5 September 2021 witness statement, which is adopted as evidence in this case and was adopted as evidence in Wentworth and Thompson. The statement is attached to the Truemans decision.
2. Professor Sutton set out his extensive qualifications in medicine, responsibilities as CHO, work during COVID-19 as a member of the Australian Health Protection Principal Committee (AHPPC) and advisory decision-making committee for national public health issues, including health emergencies, comprising all state and territory chief health officers, chaired by the Australian Chief Medical Officer. His statement described as playing a critical role in relation to federal and state responses to the pandemic.
3. He described the broad range of sources of information available to him during the pandemic to make decisions under the PHW Act, the nature of the virus, its transmissibility and its effect on humans.
4. He detailed:
   • events before the declaration of the state of emergency and two authorisations, covering 10 January to 16 March 2020;
   • the making of and the nature of the authorisations;
   • consideration of the ongoing necessity for the authorisations;
   • the issues he considered in making the authorisations, addressing each of the guiding principles in the PHW Act;
   • his consideration of the Charter;
   • that all individuals he authorised to make directions have significant expertise in public health; and that each of them worked through the evidence considering all relevant issues, individually making final decisions (their responsibility under the PHW Act) but working within the team, including consulting Professor Sutton.
5. Professor Sutton attached extensive documents including AHPPC statements, medical literature and the state of emergency and authorisation documents.

1. The following closely paraphrases the Secretary's written submissions, supplemented by oral submissions.

1. Each of Mr Blewett's applications raises the "same" threshold legal question, being whether Professor Sutton had at the time of making the directions on the information then available, insufficient grounds to authorise the exercise of the emergency powers set out in section 200 of the PHW Act, under section 199 of the PHW Act. The Secretary bears the onus of proving that sufficient grounds existed.
2. If the VCAT finds sufficient grounds existed, the Tribunal must affirm the Secretary's decision and refuse Mr Blewett's application for compensation. If it finds there were insufficient grounds for making the section 199 authorisation, VCAT may determine what is just and reasonable compensation.
3. In Truemans and Wentworth, taking the first step, VCAT found sufficient grounds existed and affirmed the Secretary's decision. Truemans and Wentworth applications for compensation failed at that first step.
4. The Secretary submitted that the issue in these cases is the same as it was in those cases, that VCAT should here admit into evidence Professor Sutton's statement of evidence in Wentworth as evidence in this case and dismiss Mr Blewett's applications.
5. The question that VCAT would first answer, if Mr Blewett's applications went full hearing, is; Did Professor Sutton have insufficient grounds for making one or more of the above authorisations?
6. This is the approach applied in Truemans and Wentworth, and, the Secretary submitted, it is desirable in the interests of comity and uniformity that VCAT should adopt the same approach in deciding Mr Blewett's applications.
7. The Secretary submitted that the evidence provided in Truemans and Wentworth was almost identical, setting out Professor Sutton's belief that the section 199 authorisations continued to be necessary throughout 2020 and 2021, that the evidence was tested and accepted in Truemans and Wentworth. If Mr Blewett's applications proceed to hearing and decision, VCAT would again accept that evidence.
8. It was submitted that because the Secretary must prove the above issue, there is little evidence that Mr Blewett could provide to the contrary, which would be likely to result in a finding of insufficient grounds for making one or more of the above authorisations.
9. The Secretary concluded submissions on this point:

There is therefore no proper basis on which [Mr Blewett's applications] could be determined differently to ... [Truemans and Wentworth]. The further prosecution of [his applications] is thus misconceived. These are matters which the [Secretary] has, on several occasions, brought to the attention of [Mr Blewett] in written communications with him ... from December 2022 to February 2023, wherein [Mr Blewett] has been invited to withdraw the Proceedings. [Mr Blewett's] pursuit of [his applications] in circumstances where it is plain that they are obviously untenable and manifestly groundless, is vexatious and amounts to an abuse of process, as set out below.

1. In 2023, the Secretary submitted that VCAT should dismiss Mr Blewett's applications because their pursuit is now misconceived and an abuse of process, because:

The Tribunal has now heard legal argument in [Wentworth and Truemans and] [two decisions] and determined the scope of the review in s 204(7) proceedings and found ... that over 2020, the CHO had sufficient grounds to authorise the use of emergency powers, pursuant to s 199 of the PHW Act. The evidence on that question will not change in any relevant way as it is evidence of a belief the CHO held at the time the decision was made, assessed objectively. ... In Truemans, [found] that the task on review in the s 204(7) proceeding is not a full merits review, but an objective determination of whether reasonable grounds exist for the Secretary's decision under s 204(2) of the PHW Act (that the CHO did not have insufficient grounds to make the s 199 authorisations). If the Tribunal finds any one ground or combination of grounds, for the Secretary's decision, was sufficient, the Tribunal should affirm the decision. In Truemans, the Tribunal found in favour of the Secretary on every ground relied upon. Thus to be successful in this proceeding, [Mr Blewett] would need to displace that finding in relation to all of those grounds or a relevant combination of the grounds, to establish that there were insufficient grounds for the making of the s 199 authorisations ...

Where the Tribunal has already found that the CHO had sufficient grounds to form the views he did on all of the component parts of the tests, for the Tribunal to reach a different decision in [concerning Mr Blewett's applications] would involve an almost complete rejection of that same evidence by this Tribunal and the making to comprehensively different findings of fact to those made by the Tribunal, twice, on evidence given by the same witness. That outcome is even more unlikely due to the nature of the Tribunal's jurisdiction being to review the [Secretary's] decision, which, the Tribunal held in Truemans, does not determine whether the CHO's decision was correct or preferable, nor does it involve a full merits review of the CHO's decision (at [64]).

If [Mr Blewett's applications] proceed to final hearing, [Secretary] will submit that the Tribunal is compelled to similarly find in the [Secretary's] favour, as it did in Truemans and Wentworth.

1. Concerning Thompson No. 2, in 2024 the Secretary submitted that the decision comprehensively supports that VCAT should summarily dismiss Mr Blewett's applications under section 75(1) of the VCAT Act because:

Hence, when standing in the Secretary's shoes in conducting the review, the Tribunal is required to determine: were there sufficient grounds for the CHO to form the belief, required by s 199(1)(b) of the PHW Act, to make the authorisations?

...

Consistent with the findings made in [Wentworth and Truemans], where the Tribunal was satisfied that there were not insufficient grounds for the CHO to make the relevant authorisations under s 199 of the PHW Act, I am satisfied that there is no realistic prospect of a different determination being made in the Proceeding if it proceeded to a full hearing.

...

It follows that for the Tribunal to reach a different decision in this Proceeding would involve an almost complete rejection of the evidence accepted by the Tribunal in [Truemans and Wentworth], and the making of comprehensively different findings of facts on the same evidence. In my view there has not been any credible basis advanced by the Applicant which would support different findings.

b) Mr Blewett's evidence in these cases is put in the same way as the evidence put in Truemans, Wentworth and Thompson. Therefore, VCAT here faces the same consideration as that addressed in Thompson No. 2. To reach a different conclusion in this proceeding would, following hearing evidence and submissions at a final hearing, require an almost complete rejection of the evidence and analysis which has been accepted in Truemans, Wentworth and now Thompson No. 2, and the making of comprehensively different findings of facts on the same evidence.

c) Thompson No. 2 agreed that VCAT does not have jurisdiction to review directions:

As the Tribunal has found in this Proceeding and in Wentworth, it has no jurisdiction to review the making of those directions, including no jurisdiction to order compensation in respect of any losses that may have flowed from those directions. Accordingly, these grounds are misconceived and lacking in substance.

1. Mr Blewett opposed the section 75 application. I summarise his written and oral submissions, in the order that he raised them at hearing.[6]
2. He referred to Mr Greg Hunt, the former Australian Government Minister for Health in the media in April 2021 when talking about vaccine and longevity protection say 'The world doesn't know that answer. The world is engaged in the largest clinical trial, the largest global vaccination trial ever'. He described this as six months before the mandatory vaccination direction. Therefore, he submitted, that direction breached section 10(c) of the Charter.
3. Mr Blewett submitted that if his applications went to hearing the result would not be the same as in Truemans and Wentworth, because those cases were from the perspective of a third party impacted by the Stay At Home directions. He described his applications as relating to the Work From Home, Face Covering and Mandatory Vaccination Directions from the perspective of an individual (himself) impacted by them.
4. Mr Blewett referred an article from 2003 in the Sydney Morning Herald qutoing Professor Yvonne Cossart of the Department of Infectious Diseases, University of Sydney. He described her saying that it could take as little as 15 or 20 minutes for a face mask to become saturated with moisture and stop doing its job, and pass on the droplets. He submitted that at the time that the Face Covering direction was made, the Australian Government opposed the wearing of them in a general setting, with certain exceptions.
5. Mr Blewett referred to a Twitter concerning Professor Sutton on a Zoom video call saying that in responding to the pandemic there had been mistakes including mistakes by him as he made hundreds of decisions a day, working 16 hour days. Mr Blewett submitted that there is a very high chance that Professor Sutton was either moderately or extremely fatigued when making these decisions and would not have made the same decisions if not fatigued.
6. Mr Blewett referred to Premier Andrews in press conferences saying words to the effect of that he was not scared to make the tough decisions to keep Victorians safe. Mr Blewett submitted it is reasonable to form the view that it was the Premier, not the Chief Health Officer, making decisions. The CHO simply responding to the Premier's statements would not have sufficient grounds for the issuing of the authorisations.
7. Mr Blewett referred to a March 2023 interview on SkyNews, where the former Prime Minister Morrison said that the AHPPC did not recommend sweeping vaccine mandates. He asked why did Professor Cowie and Professor Sutton go against the advice of the AHPPC and issue the Vaccine Mandate? Were there sufficient grounds to do so?

1. Mr Blewett also sought to rely on documents, provided after the section 75 hearing. With the Secretary objecting, I advised the parties that I would read the material and advise the parties if in my view it was necessary to seek the Secretary's response. It is not necessary.
2. Mr Blewett submitted that the Victorian public is only now, and slowly becoming aware of the influence that the former Premier had over the government. He provided;
   • a 2024 Herald Sun article titled 'Dan's power play revealed new documents'. Mr Blewett described the article as stating:

Former health minister Jenny Mikakos told a corruption probe that the former Premier's office had ultimate control over the work of Government and interfered with ministerial discretion.

'The current Victorian government is a very centralised government where the PPO has its tentacles everywhere,' she told the investigation.

'There is constant tension between ministers' offices and the (PPO).'

He submitted that if the former Premier's office interfered with ministerial discretion, surely it is possible that it interfered with the decisions of public servants.

While it was long past the section 75 hearing VCAT should use its discretion as the Victorian public is only now slowly becoming aware of the influence that the former Premier had over the Government.

• An 8 April 2024 Herald's article titled, 'Rise in compo claims from people including Victorian workers mandatory jabs for work'. The article reported that WorkCover claims related to Covid-19 vaccines 'continues to skyrocket in Victoria' and that WorkSafe had confirmed it had accepted 130 COVID-19 vaccine related claims from workers. The article concluded:

'Those affected include Victorian workers who had mandatory jabs for work such as teachers, nurses, firefighters and paramedics'.

• A 9 May 2024 article from The Australian, 'Premiers blasted by Greg Hunt for COVID overreach without medical advice'. Former health minister Greg Hunt was reported to have, 'hit out at states and territories over health decisions during the pandemic by premiers that was not the subject of Commonwealth advice nor the advice of the chief medical officers'.
• An 23 April 2024 submission (14 pages) to the Commonwealth Government COVID-19 response enquiry from Professor Hunt. Professor Hunt praises Australia's performance:

All countries in the world, including Australia, were impacted by the Covid-19 pandemic, which began in January 2020, with immense suffering and human loss. However, few countries responded and achieved the twin objectives of limiting loss of life and maintaining livelihoods, more effectively than Australia. Perhaps the clearest measure of Australia's Health outcomes was that during 2020 and 2021, when global life expectancy dropped by 1.6 years on average, in Australia it rose by 0.2 years, a difference from the global mean of 1.8 years in average life expectancy.

Professor Hunt mainly focuses on the Australian Government, rather than state government responses. He does say:

Given the strong presumption of individual freedom and liberty that underpins our nation and the risks to educational attainment and mental health, my strong forward recommendation is that all States and Territories adopt a uniform national code for pandemic management which mandates medical advice be published for any restrictive measures. Although this was not a legal requirement under the Biosecurity Act, it was nevertheless a practice that we adopted and which I would also recommend be included in amendments to the Commonwealth Biosecurity Act.

• A 7 May 2024 article reporting that AstraZeneca had been withdrawn globally due to it causing side effects where its use was discontinued in Australia in April 2023;
• A 10 May 2024 Victorian Government COVID-19 surveillance report published by the Victorian Department of Health. It showed:
  • current trends indicating a high levels of COVID-19 activity in Victoria in May;
  • COVID-19 hospitalisations since November 2021, showing a spike in May 2024;
  • hospitalisations by age from September 2021;
  • weekly COVID-19 deaths by number and age since October 2021; and
  • data as to case numbers, hospitalisations and deaths since January 2020.

1. Concerning Thompson No. 2, Mr Blewett submitted there were sufficient differences between the issues to be decided in his application and those decided in Thompson No. 2, Wentworth and Truemans, such that VCAT should not summarily dismiss his applications.
2. He referred to Croft J's words in Bendigo and Adelaide Bank Ltd v Redmond [2018] VSC 458:

It follows, in my view, that the application of this principle should not lead a defendant, and the Defendant in this case, to regard the decisions in Freer, Lonergan, Laszczuk and Haque as preclusive of issues and arguments which any such defendant may wish to raise, as the argument is still open that these decisions are clearly wrong.

1. He noted that Thompson No. 2 relates to the authorisation of F Romanes and M Giles as authorised officers, where his applications relate to the authorisation of additional authorised officers.
2. He submitted that:
   • While VCAT has accepted Professor Sutton's 5 September 2021 statement, in the statement, Professor Sutton said his evidence focused on January to December 2020 and should not necessarily be interpreted as evidence of his opinion on matters after December 2020.[7] Mr Blewett described his applications making reference to authorisations made after December 2020;
   • While referencing material/sources that he relied upon to inform his opinion, Professor Sutton had not clearly stated whether he believed the origins of COVID-19 to be naturally occurring, z_oonotic_ or a lab leak nor stated why he believed the virus would behave differently to other respiratory viruses that weaken though become more infectious as they mutate, and therefore pose a risk to public health;
   • Professor Sutton's answers to the above questions would have a bearing on whether there was a genuine public health emergency, despite the State of Emergency declaration authorising the exercise of the powers;
   • Professor Sutton has shown a pattern of behaviour where he says or does things without seeking advice on his ability to do what he intended, citing This is evident in I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654 where McDonald, J found that Professor Sutton, 'did not receive advice that he was subject to any obligation to observe the requirements of procedural fairness prior to making the Order';
   • Professor Sutton did something similar when he announced the vaccine mandate at a press conference. Initially, he said it would apply to everyone. Then later he backtracked on this and said it wouldn't apply to the judiciary, religious leaders, etc. When pressed on this, he said something along the lines of it being a Constitutional matter, and that he wasn't able to make a direction for that group of people;
   • Professor Sutton has acknowledged he made mistakes during this period. It is worthwhile to ask Professor Sutton, where he thinks those mistakes were made, and what he would do differently.
   • That VCAT has been too heavily swayed by the Secretary's interpretation of the Act in Thompson No. 2, Wentworth and Truemans:

On one hand the Respondent's position is that a sufficient ground for the issuing of an authorisation means that the authorisation is therefore [not] insufficient, then on the other [hand] they say that the authorisations were sufficient with regards to the Principles of the Act (such as s9 Proportionality).

To accept the first part of that argument, the Tribunal is affording a disproportionate weight to the sufficient ground item, and disregarding the rest, which puts it in conflict with Principles 8 and 9 (Accountability and Proportionality).

Prof Sutton has said in p145 of his statement that "Authorisations did not give the AOs unconstrained power to exercise the public health risk and emergency powers", which contradicts his statement in p77 where he says "All of the Authorisations I made were unlimited" this is further clarified when he says in the same paragraph, "formed the view that it was necessary for Authorised Officers to have the capacity to use the full suite of the public health risk or emergency powers and the agility to use any of those powers quickly".

Is it within the Principles of the Act, in particular, proportionality, to authorise what is believed to be 150 authorised officers?

• That Professor Sutton, in his statement saying, "I never provided draft directions to AOs or directed or required that draft directions be made" does not necessarily mean that other people did not do that;
• How Professor Sutton decided to authorise the relevant authorised officers, and whether there was any external influence in the making of such authorisations, needs to be explored. For example, Former health minister Jenny Mikakos told a corruption probe that the former Premier's office had ultimate control over the work of government and interfered with ministerial discretion. If this is the case, it is entirely possible that the former Premier's office had some input in the making of authorisations by the CHO;
• Our parliamentary system is set up with checks and balances, and that by dismissing these applications, that process will be denied; and
• Dismissing Mr Blewett's applications would set a dangerous precedent. In a future crisis where another emergency declaration is made, so long as a few boxes are ticked, that the authorisations can go unchallened. Section 204 would be a token clause as no one will ever be able to get compensation.

1. On 3 June 2024, VCAT received a email from Mr Blewett requesting orders that the Secretary provide documents (see below) which in his view should have been provided in the Secretary's section 49 statement.[8]
2. The Secretary opposed the application, describing Mr Blewett seeking documents and an extension of time to accommodate lodgement and review, which he states is necessary to prepare the limited submission VCAT sought concerning Thompson No. 2.
3. The Secretary submitted that they have already complied with section 49, the further documents sought are not relevant to Mr Blewett's application nor do they have bearing on the submissions concerning Thompson No. 2.
4. Through the VCAT registry, the parties were advised that I would not direct the Secretary to provide such documents and that my decision would be formalised in these orders and reasons.

1. The section 75 applications in these cases are made on the basis that given the material now available to VCAT and other material likely to be provided in the future if the cases continue, Mr Blewett's applications are doomed to fail.
2. I had reserved my decision. In the normal course, VCAT will, once a decision is reserved, refuse to consider anything further from the parties until the Tribunal provides orders and reasons. Exceptions are made where it is reasonable to, given VCAT must act fairly according to the substantial merits of the case (section 97), is bound by the rules of natural justice and may inform itself of any matter as it sees fit, in an efficient manner (s 97).
3. At Mr Blewett's request, opposed by the Secretary, I have agreed to have considered documents he provided after the hearing, particularly given the long delay in providing these orders and reasons. On becoming aware of Thompson No. 2, I invited submissions.
4. Mr Blewett's next request for documents is a step too far, given what is reasonable and necessary to fairly decide section 75 applications, particularly where Mr Blewett's applications are doomed to fail.
5. For completeness, I respond to the actual requests (in italics):
   • Unredacted Instrument of Authorisation for N Deborah Friedman - the documents in this case and the authorisations provided by Professor Sutton in Truemans do not appear to include authorisation concerning this person. If I have missed that document, comments below concerning redaction apply;
   • Unredacted Instrument of Authorisation dated 13 April 2020 - the redacted text, clearly names of people, presumably not related to this proceeding are presumably redacted for privacy reasons. In any case, this case concerns Professor Sutton's decision-making, principally as to the making of the authorisations, not to the people on which he conferred power;
   • Unredacted Instrument of Authorisation dated 11 May 2020 - see above;
   • Any document(s) revoking the authorisation for M Giles, A van Diemen, F. Romanes, B. Cowie, N.D. Friedman - Professor Sutton gave (accepted) evidence on the other proceedings that he did not revoke any authorisations in the relevant period;
   • Legal advice given to CHO advising him that he can put two expiry dates on the Instrument of Authorisation - whatever and whether legal advice was provided, the placing of two dates on instrument of authorisation will not be material to the issues before VCAT in this proceeding
   • Information that the CHO used to form the opinion that the individuals listed in the above Instrument of Authorisation were sufficiently experienced to be able to adequately exercise the unrestricted powers given to them_. - This is a speculative fishing expedition, where it is highly improbable that Professor Sutton authorised officers with insufficient qualifications and experience, in context that in Thompson No. 2 [at 66], VCAT rejected the premise that documents could be properly sought to interrogate Professor Sutton as to why chose to authorise one individual over another;_
   • Copies of any internal briefings that the CHO had with, or the Department gave to the individuals named in the Instrument of Authorisation listed above advising them of how the unrestricted powers related to the PHW Act, Charter of Human Rights and Responsibilities, Commonwealth's Immunisation Handbook, and other documents/legislation in force at the time_. - Another impermissible speculative fishing expedition;_
   • Any document revoking the authorisation given to any of the redacted individuals listed in the redacted Instrument of Authorisation dated 13 Apr 2020, and 11 May 2020 Professor Sutton gave (accepted) evidence on the other proceedings that he did not revoke any authorisations in the relevant period;
   • A document listing the position/role/title of the individuals who where appointed as authorised officers by the CHO - the relevant individuals are named in the evidence and in the documents;
   • Any document that might explain why the CHO decided to appoint the number of authorised officers he did - the number cannot be relevant;
   • Documents which explain why the CHO authorised Michelle Giles for two days, when others had ongoing authorisations. - Again a fishing expedition;
   • Documents relating to the understanding that the authorised officers had with regards to vaccines used in the mandatory vaccination directions and their impact on SARS-CoV-2 and all age groups. - This relates to Mr Blewett's attempt to have VCAT review directions by the authorised officers, where VCAT has no jurisdiction, therefore such documents are not relevant to this proceeding;
   • Documents relating to communication between the CHO and the authorised officers who issued the directions, before and after the directions were issued. - Again related to the directions, again VCAT has no jurisdiction, again the documents cannot be relevant;
   • Documents which explain why the CHO didn't revoke any of the directions that weren't issued by him - Again related to the directions, again VCAT has no jurisdiction, again the documents cannot be relevant;
   • Documents that explain why SARS-CoV-2 would pose a serious threat to human health across all age groups and demographics - Professor Sutton's evidence in the earlier proceedings was the core relevant evidence in those proceedings and would be core relevant evidence in this proceeding if it continued to final hearing, likely adopting much of his earlier evidence. This is another fishing expedition.
   • Any documents that advised the authorised officers of any limitations of their powers - Professor Sutton has given evidence in the earlier proceedings that there were no limitations imposed;
   • Any documents that decided or agreed beforehand, what the limitations of those powers would be. - Professor Sutton has given evidence in the earlier proceedings that there were no limitations imposed; and
   • Any documents that explain the reasoning why when the CHO publicly announced a planned direction, that he didn't author it. - Professor Sutton has given evidence about authorising number of authorised officers. Who announced directions, will not be material.
6. For completeness, I note that in Grujic v The Secretary Department of Health (Review and Regulation) [2022] VCAT 1189, another COVID-19 compensation application, VCAT ordered the Secretary provided a range of documents to VCAT and Mr Grujic. The Secretary provided the documents. In January 2023, Mr Grujic withdrew his application, presumably given the decisions in Truemans and Wentworth. This was discussed in Thompson No. 2 as in Thompson No. 2 VCAT refused to make such orders.

1. Under section 75, I have dismissed Mr Blewett's three applications for compensation.
2. As each decision is made in context of Professor Sutton's evidence, cross-examination of him and VCAT's conclusions about his evidence in Truemans and Wentworth. I first describe that material.
3. I refer to the Wentworth decision's accurate summary of, most of, Professor Sutton's evidence in Truemans:

Paragraphs 1 to 16 [of the witness statement] set out Professor Sutton's qualifications and responsibilities within the Department of Health and as CHO. His membership of the Australian Health Protection Principal Committee, ('the AHPPC') and its role in providing advice at a State and Federal level on public health matters such as Covid-19 is described. Professor Sutton whilst noting the confidential nature of much of the material referred to in his evidence, produced the public statements and advice made by the AHPPC. These documents contained, amongst other things, the familiar recommendations as to aged care facilities and indoor gatherings.

Paragraphs 17 to 33 summarise the key sources of information identified by Professor Sutton as having been relied upon by him in making the authorisations under the PHW Act. Professor Sutton describes monitoring the evolving epidemiology of Covid-19 and his interactions with Victorian, National and international epidemiologists, public health officers, physicians and health organisations. He describes reviewing voluminous amounts of information including academic papers and literature reviews.

Paragraphs 34 to 42 detail Professor Sutton's understanding of Covid 19 and its characteristics and transmission. He describes the reproduction number, (R) which reflects the infectiousness of an infectious disease (with an Ro greater than one meaning the disease is spreading and the number of cases is increasing) and incubation periods, (being the period from exposure to becoming symptomatic averaging 5.5 days with a range of 1-14 days).

Paragraphs 43 to 59 set out the international and local events leading to the 16 March Declaration [of the state of emergency]. Professor Sutton describes the early Victorian 'containment phase' which preceded the realisation as described by him that the growing threat of local transmission required more targeted action.

Paragraphs 60 to 84 deal with the authorisations given by Professor Sutton under section 199 of the PHW Act and Professor Sutton's ongoing belief in their continued necessity ...

[In paragraph 85 Professor Sutton said:

[85] In making the authorisations, I understood that I needed to form the view that the authorisation to use emergency or public health risk powers was necessary to eliminate or reduce a serious risk to public health. In my view, it was and continued to be necessary to use emergency powers to mitigate and reduce the threat to public health in Victoria posed by COVID-19. In making this decision, I also understood the statutory definition of serious risk to public health in the Act and that my decision needed to have regard to the objectives of the Act, the principles of the Act and be consistent with the Charter of Human Rights and Responsibilities Act 2006 (the Charter)].

Paragraphs 86 to 142 deal with the regard had by Professor Sutton when granting the authorisations to the guiding principles set out in sections 5 to [11A] of the PHW Act.

Paragraphs 143 to 146 deal with Professor Sutton's consideration of [the Charter] in determining to make the authorisations.

Paragraphs 147 to 156 discuss the power to give directions once an [AO] is empowered to make a direction.

1. It is instructive to turn to the Tribunal's conclusions about Professor Sutton's evidence in Truemans. The following long extract sets out VCAT's conclusions.

A. Did the granting/giving of the authorisations satisfy the legislative preconditions found in sections 199 and 201 of the PHW Act?

Section 199(1)(a) - Did a state of emergency exist at the time the CHO made the authorisations?

[151] I am satisfied in accordance with section 199(1)(a) of the PHW Act that at the time the CHO made the authorisations a state of emergency existed and that Professor Sutton had no reason to question or look behind this.

Section 199(1)(b) - Did the CHO believe that it was necessary to grant an authorisation under section 199(2) to eliminate or reduce a serious risk to public health?

[186] I am satisfied that Professor Sutton not only believed but had a sound basis for his belief that the number of persons likely to be significantly adversely affected by Covid-19 was considerable for the reasons given by him. Whilst he could not of course be certain that those numbers would unfold, I am satisfied that he had sound reason to believe that the number of persons likely to be affected without measures being taken was very significant.

[204] I accept the evidence of Professor Sutton that because it was unknown where the pathogen was, or may appear, that it was not possible to identify its precise location at any given time ... that Covid-19 was potentially anywhere and everywhere at any given time and that there was an immediacy and serious threat to potentially all humans.

[215] I accept that Professor Sutton appropriately took into account the early modelling which suggested that in the absence of stringent control measures, over 10,000 people would potentially die from Covid-19 in Victoria. I accept that it was open to him on the available evidence to consider that significant harm would be posed by Covid-19 to the Victorian population.

[216] I accept that Professor Sutton appropriately took into account the number of people likely to be affected and the exponential rise in cases seen elsewhere; the fact that Covid-19 could be transmitted before a person had symptoms; that the early case fatality and infection rates were alarming and not in the measure of routine respiratory illnesses. I accept that Professor Sutton had sound reason to consider the entire Victorian population to be vulnerable. I further accept that he had good reason to consider that any differential risk identified in due course could be more appropriately made at the directions level.

[221] I accepted the evidence of Professor Sutton as to why he was concerned that discrete/individualised action or directions under the PHW Act would be insufficient to mitigate against the serious risk posed by Covid-19.

[222] I accept that Professor Sutton believed for good reason that the risk to public health quality and wait lists would potentially be pushed to absolute limits based on the modelling available to him.

[223] I accepted Professor Sutton's evidence as to the lack of availability and effectiveness of any precaution, safeguard, treatment or other measure to eliminate or reduce the risk of the health of humans before the various vaccines or widely used countermeasures were developed/available.

Ruling under s. 199(1)(b) of the PHW Act

[224] I am satisfied that Professor Sutton believed that it was necessary to grant an authorisation under section 199(2) of the PHW Act to eliminate or reduce the serious risk to public health posed by Covid- 19.

[225] There is no doubt in my mind that the CHO did believe that it was necessary to grant an authorisation to eliminate or reduce a serious risk to public health for the reasons set out above. I accepted the extensive evidence contained both within his statement and oral evidence that he not only formed the belief stated by him but had sufficient justification for so doing.

[228] I accept that Professor Sutton not only believed that the threat posed by Covid-19 was real, but that he had sound reason for believing this to be the case.

[229] I consider it was open to and appropriate for Professor Sutton to rely on the local and international sources available to him about the emergence of the Covid-19 pathogen and its potential serious risk to public health in Victoria.

[230] I consider it was open to and appropriate for Professor Sutton to place faith in the reference laboratory's identification of Covid-19 cases in Victoria. There was no evidence put before me of any determinative basis for him to doubt the reliability of their testing and recording processes when he made the authorisations.

[231] I consider it was open to and appropriate for Professor Sutton to rely on the available PCR test results.

[234 - 239] I accept that Professor Sutton believed that utilisation of the emergency powers was necessary to quickly reduce and prevent the transmission of Covid-19 and that Professor Sutton had a proper basis for forming this view.

I accept that there was sufficient basis for Professor Sutton to consider that the grant of the authorisations was necessary to eliminate or reduce the serious risk posed by Covid-19.

As he pointed out in his statement, the history of Covid 19 as it has evolved has been 'a clarion call for why broad powers were required to respond to the changing nature of the risk over time.'

I further accept, for the reasons already given and those which follow, that the making of the authorisation(s) was consistent with the objectives of the PHW Act including the promotion and protection of public health and well-being through reducing and preventing Covid transmission. I accept that Victoria's role in addressing the risk posed by Covid-19 was of national significance and the authorisations were properly and appropriately granted by Professor Sutton as a legitimate and significant way in which public health and well-being could be protected.

I accept that the authorisations then enabled the making of appropriate and timely Directions by the authorised officers.

I am further satisfied for the reasons that follow that Professor Sutton had proper regard to the guiding principles set out in the PHW Act and the Charter in granting the authorisations.

B. Did the CHO have proper regard to the relevant guiding principles set out in the PHW Act in giving the authorisations?

5 Principle of evidence based decision-making

[247 - 250] ... I accept that Professor Sutton appropriately and consistently with this principle relied on the considerable expert public health academic material, evidence and data from domestic and international sources referenced by him in his statement. I accept that the material readily established, during early 2020, significant and growing concern about the threat posed by Covid-19 transmission published by local and international public health experts and institutions. I accept that Professor Sutton had regard to this material.

I accept that Professor Sutton had appropriate regard to international academic peer-reviewed material including the projections of the German case-study. He could not of course, given the rapidity of the unfolding situation, identify and read every known relevant article or study. He could not provide proof, absolute certainty and crystalized results. He was not however required to do so under the PHW Act.

Professor Sutton gave evidence that at the time of making the authorisations he had no basis upon which to question the reliability of the PCR testing. He said that whilst he knew that such testing may miss some positives or give false positives, that this did not materially affect his assessment that there was a serious risk to public health through the anticipated trajectory with even a few cases. He reiterated his advice from the sources outlined in his statement and above that, infections were likely to increase exponentially.

I accept that the CHO had to act on the basis of what he saw as the credible material before him. I accept he had sufficient basis for relying on the evidence available to him as described by him. The task before him was of extraordinary complexity.

6 Precautionary principle

[258 - 262] I accept that Professor Sutton had proper regard to the precautionary principle.

There was considerable uncertainty in March 2020 as to the modelling, how Covid-19 would affect different individuals and how it would be transmitted. I accept that this uncertainty was not a basis to take no action.

[260] I accept in accordance with the precautionary principle that the lack of full scientific certainty about the threat, particularly in the early stages of 2020, was not in and of itself a reason to delay taking measures to control Covid-19.

I accept that there was during this period a great deal of discussion and debate around the world - amongst ordinary citizens, politicians, scientists and experts from all fields. It would have been impossible for Professor Sutton to analyse, digest and form a conclusive and definitive opinion with respect to all of that material. He had to do the best he could given the potentially severe outcome of postponing measure to prevent or control the identified public health risk.

When considering public health, is not always possible or appropriate to wait for something serious to eventuate.

7 Principle of primacy of prevention

[268 - 269] I accept for the reasons already given that Professor Sutton took into account when making the authorisations the prevention of disease, illness, disability and/or premature death.

I accept that the authorisations did not occur in isolation but ran alongside the other health promotion activities taking place during this time.

8 Principle of accountability

[276] I am satisfied that the CHO had proper regard to this principle. There would be no doubt in the minds of anyone who has lived through the pandemic in Victoria that Professor Sutton made himself seen. He publicly answered a multitude of questions through press conferences.

[277] I am satisfied that the decision of Professor Sutton with respect to the grant of the authorisations was transparent, systematic and appropriate and kept the public informed as to why the making of the authorisation(s) was in his mind necessary.

9 Principle of proportionality

[285] I am satisfied based on all of the factors previously discussed including the risk posed by Covid-19; the prevailing global uncertainties and the evidence existing at the time he granted the authorisations that Professor Sutton knew, understood and had appropriate regard to the requirement of the principle of proportionality.

10 Principle of collaboration

[290] Professor Sutton gave evidence that the capacity to use emergency powers in section 200 of the PHW Act was consistent with efforts taken nationally and internationally to respond to or mitigate against the risk posed by Covid-19 particularly during the second wave in Victoria. I accept that this was the case.

Conclusion

[291 - 293] It is only when considering the applicable principles that one gains a true understanding of the decision-making context in which the CHO and the Secretary standing in his shoes and then this Tribunal standing in the shoes of the Secretary must decide the matter.

I am satisfied for the reasons outlined above that in granting the authorisations, Professor Sutton had proper regard to the guiding principles set out in the PHW Act.

Although of course this in and of itself does not establish that the authorisations were made on sufficient grounds, nevertheless, had I found that Professor Sutton did not have proper regard to the guiding principles, this could have led to the conclusion that there were insufficient grounds for the giving of that authorisation. I turn finally then to the Charter.

C. Did the CHO give proper consideration to any relevant human rights under the Charter and act in a way that was compatible with those human rights in giving the authorisations?

[308 - 310] I observe that the authorisations did not give the relevant authorised officers an unfettered right to exercise the public health risk emergency powers. Those powers remained subject to the relevant requirements under the PHW Act.

The relevant authorised officers were required when giving directions to give proper consideration to the relevant human rights under the Charter when making decisions and to act compatibly with those rights. The directions given by the authorised officers were not of course the subject of review in these proceedings.

Whilst the broad range of human rights identified by 815 were arguably engaged by the making of the authorisations and were most certainly engaged through the various directions, I am satisfied, based on the evidence given by Professor Sutton, that any limitation was reasonable and justified for the reasons articulated by him. I accept that in the serious circumstances of the evolving health situation as articulated by Professor Sutton, that there was no less restrictive means to meet the response to the threat caused by Covid-19. I accept that Professor Sutton was placed in the unenviable position of making the decision to grant unprecedented authorisations in the context of an unprecedented threat to public health. I accept, for the reasons already set out, that having regard to the potential health threat to the Victorian population, there was no less restrictive means reasonably available to him.

Decision

[311 - 320] This is not a case where the Tribunal is asked to determine whether the CHO made the correct or preferable decision to grant the authorisations or whether he could have granted different authorisations. The question to be determined is whether there were insufficient grounds for the giving of the authorisations.

I accept that Professor Sutton formed the belief that it was only through the utilisation of the diverse and extensive public health risk and emergency powers, that the serious risk posed by Covid-19 would be reduced.

I am not satisfied that there were insufficient grounds for the giving by the CHO of an authorisation to an authorised officer under Division 3 of part 10 of the PHW Act.

I am satisfied that a state of emergency existed under section 198 of the PHW Act and that the CHO had a basis for his belief that it was necessary to grant an authorisation under section 199(1)(b) to eliminate or reduce a serious risk to public health.

I am satisfied that the CHO authorised the authorised officers, for the purpose of eliminating or reducing the serious risk to public health from Covid-19, to exercise the public health risk powers and emergency powers.

I accept that Professor Sutton weighed up the implications of making the authorisations in the manner described by him.

I accept, for the reasons set out above, that Professor Sutton had proper regard to the relevant guiding principles.

I accept, for the reasons set out above, that Professor Sutton gave proper consideration to the Charter.

There is then no basis for an order for the payment of compensation such that I will refuse the application made by 815.

I will refuse the application for compensation made by the applicant under section 204 of the Public Health and Wellbeing Act 2008.

1. The above conclusions, vividly illustrate VCAT's acceptance in Truemans of all of Professor Sutton's thoroughly tested evidence, which was in part further tested in Wentworth.
2. In Truemans, VCAT accepted Professor Sutton's responses refuting propositions put to him and/or put to VCAT by Truemans in submissions[9] that:
   • There was no serious risk to public health, no reliable evidence, at the time of the authorisations, that Covid-19 exists, that Professor Sutton relied on unsubstantiated reports from undisclosed sources and/or it was significantly different from the annual flu and no real imminent threat like any significant number of people [see 152 - 155];
   • It had been established that only the elderly and those with comorbidities were at risk and so the authorisations were disproportionate, based on speculative computer model and reliance on international agencies [from 167];
   • Professor Sutton had no basis when he made the authorisations to conclude that Covid-19 had entered Victoria and had a negative effect on any Victorian let alone posed a risk to all Victorians, failed to identify a precise location where the virus was located in order to identify emergency areas, again challenging computer modelling [from 185];
   • COVID-19 posed a less severe risk than the seasonal influenza, lack of any basis for the allocation of vast sums of money for the impossible and unwarranted task of eradicating the virus, but alleged infection reports were fabrications and alleged debts disgracefully deceptive, people had not died from COVID-19 medical practitioners stood to gain wrongly attributing debts to the virus [from 206];
   • Professor Sutton failed to wrongly consider alternatives such as encouraging self-isolation, social distancing, readily available medications and treatments (e.g. oxygen and ventilators) when there was no vaccine when there was not a serious risk to healthy people [at 217];
   • There was insufficient evidence that the virus was causing a serious risk in that it was uncontained, uncontrolled untreatable and rampant throughout Victoria [243];
   • The making of the authorisations squandered huge sums of money on people who are not infected let alone affected [244];
   • There was an interior motive, to siphon money to hospitals to reward them for cancelling elective surgeries [246];
   • Professor Sutton wrongly relied on the precautionary principle rather than applying proportionality with a lack of consideration given to the negative impact on the community of the restrictions based on speculative modelling, and hypothetical scenarios that did not in any event constitute an actual emergency [256 ff];
   • Indiscriminate mass testing was implemented without just cause and without appropriate justification [264];
   • The decision to make the authorisations was disproportionate when weighed against disruption to the economy and social and mental well-being of the community generally, where high risk groups could have been targeted where Professor Sutton failed in his obligation to ensure that interventions improve well-being, reduced inequalities and promoted healthy conditions where the 'cure cannot be worse than the disease' [280ff];
   • Professor Sutton failed to consult with businesses, communities and individuals who would be affected paying only lip service to the principle of collaboration and arbitrarily appointed offices in order to pursue his agenda [287]; and
   • Professor Sutton breached a variety of human rights set out in the Charter[10] failing to give proper consideration to relevant human rights and failed to act compatibly with those rights where making the authorisations was arbitrary, overreaching and without authority, the biggest attack on human rights in the history of Victoria/Australia where Professor Sutton must have known the measures would have a catastrophic and irreversible effect on the economy and thus adversely affect the health and well-being of all Victorians [300].
3. In Wentworth, Professor Sutton returned to give more evidence. VCAT said:

[23 - 24] In cross-examination ... Mr Bain asked Professor Sutton in particular whether he considered revoking certain authorisations after he became aware of problems when there was an outbreak of COVID-19 at Stamford Plaza. Professor Sutton confirmed that he was aware of the power he had to revoke authorisations but he considered that the full suite of powers should remain available to AOs. In questioning Professor Sutton, Mr Bain focussed on the guiding principles of accountability and collaboration. Professor Sutton essentially reiterated evidence he gave previously about the regard he had to those principles, noting that he had regard to them in the context of the level at which he made decisions about authorisations: see further below. Professor Sutton added that there was always a process for feedback and for changes to be made to public health directions where relevant changes were appropriate. He confirmed that he was available to speak to the AOs every day. Professor Sutton considered that the directions that the AOs made continued to be required.

Professor Sutton acknowledged to Mr Bain the difficult circumstances for businesses and individuals while the public health directions were in force, but he said that his considerations in giving (and not revoking) authorisations were about the control of the pandemic where there was the prospect of tens of thousands of people dying.

1. In Wentworth, VCAT agreed with and applied the statutory interpretation of the PHW Act and the scope of VCAT's jurisdiction decided in Truemans.
2. VCAT accepted Professor Sutton's evidence in Truemans and the further evidence in Wentworth.
3. The Tribunal was satisfied that there were not insufficient grounds for giving of the authorisation with legislative preconditions satisfied, accepting Professor Sutton's evidence that he believed it was necessary to grant the authorisation describing the risk to public health as serious and potentially catastrophic, regarded his actions as consistent with the PHW Act and the Charter.

[52 - 61] Professor Sutton's evidence was substantially directed to explaining how, by giving the authorisation, he sought to promote a key objective of the PHW Act, to protect public health and prevent disease, illness or premature death.

With regard to the principle of evidence based decision-making (section 5), Professor Sutton's evidence set out at length, and in considerable detail, the evidence and information he had regard to in deciding to give the authorisation.

With regard to the precautionary principle (section 6), the principle of primacy of prevention (section 7), and the principle of proportionality (section 9), Professor Sutton referred among other things to there being (at the start of the pandemic and even since) much that is unknown about COVID-19. He explained how he weighed prevention and proportionality as (international scientific and other) evidence emerged over time about matters such as the 'burden' of COVID-19, transmission rates, and the resulting pressures on the health system. He said it became clearer and clearer to him that 'robust' measures that allowed for prevention had 'very positive impacts'. In this context he noted that for most of 2020 vaccines and treatment were not available. He considered the health and wellbeing of the population and 'relevant economic and civil liberties impacts'. He described how he evaluated the proportionality of his decision to give the authorisation.

With regard to the principle of accountability (section 8), Professor Sutton said in particular that the reasons for relevant public health decisions were being 'transparently and systematically provided' through press conferences and the Department's frequently asked questions page, among other things. He said that he understood the authorisations would be gazetted and publicly known and that he had to be accountable for them.

With regard to the principle of collaboration (section 10), Professor Sutton said that the authorisation supported compliance with Commonwealth measures to limit the spread of COVID-19 throughout Australia, consistent with the principle of collaboration. He understood the principle to mean that he should take into account 'the specific challenges, reflections, inputs and evidence from various members of other states, including via the AHPPC and the Victorian community, through stakeholder groups, umbrella organisations, union representatives'.

Now with regard to the Charter, Professor Sutton stated how he was aware people's human rights could be and were affected. He said that the considered the Charter. He understood that the authorisations he gave empowered AOs to make decisions that could engage and even limit 'Charter rights'. He understood that AOs were obliged to act compatibly with the Charter (and the PHW Act) in determining whether and how to make directions and exercise their powers, among other things by considering whether their decisions were justified having regard to factors including their purpose, proportionality and whether there were any less restrictive means reasonably available to meet the specific aim of the restriction.

Especially when discussing the availability of other measures to eliminate or reduce the risk to the health of human beings, Professor Sutton explained why he considered that the emergency powers (enabling isolation of confirmed cases and quarantining of close contacts, social distancing and the closure of premises, among other measures) rather than 'non-emergency powers' in the PHW Act were necessary.

Discussing the making of directions by AOs, Professor Sutton said that once an AO was empowered to make a direction, the AO became the relevant decision-maker. He referred to the discussions that members of the team had and explained his role as 'another voice; a peer, who also brought the national conversation to the discussion from [his] involvement on the AHPPC, to the extent it was relevant'. He said that he understood and believed that the AOs understood that they were 'the final decision-makers'.

In summary, I am satisfied that there were not insufficient grounds for the CHO giving the authorisation. I am satisfied that the legislative preconditions were met and the authorisation was consistent with the objectives and guiding principles in the PHW Act and with the Charter.

To be clear, I am satisfied that all of the grounds on which the CHO gave the authorisation were sufficient.

1. In Wentworth, VCAT recorded that in answer to a question in cross-examination Professor Sutton gave evidence that during the period the authorisations were in force he was aware of his power to revoke them, considered that they needed to remain on foot and he did not. When questioned about the guiding principles that Professor Sutton essentially reiterated evidence given in Truemans. He added that there was also a process for feedback for changes to be made to public health directions, where he was available to speak to the authorised officers every day [23].
2. Also in Wentworth, VCAT considered and rejected (VCAT being satisfied that all of the grounds on which Professor Sutton gave the authorisations were sufficient) submissions on behalf of the applicant that:
   • Professor Sutton's failure concerning the authorisations was not to revoke them when problems emerged at Stamford Plaza that adversely affected Wentworth [42 and 68 to 71];
   • VCAT should address the applicant's submissions as to lack of procedural fairness on the part of the Secretary, and the matters then before VCAT should be remitted back to the Secretary for reconsideration [73 to 77]; and
   • that VCAT had not provided procedural fairness, not deciding an application for an interim injunction and hearing in deciding Wentworth after Truemans (see [76 to 79]).
3. Therefore, the Wentworth applications failed.
4. In Thompson No. 2, VCAT:

a) Accepted Professor Sutton's 5 September 2021 statement as evidence; > > b) Found that the question raised for determination by VCAT in Thompson was the same as the question determined in Truemans and Wentworth: and > > c) Reached the same conclusions as to VCAT's jurisdiction and the correct statutory interpretation of the PHW Act as in Truemans, Wentworth and Thompson No. 1.

5. VCAT noted that the Tribunal would only depart from relevant previous decisions on the question of law, including the scope of review in cases such as this if the Tribunal considered that those approaches were clearly wrong. Rather than consider the approaches clearly wrong, the Tribunal endorsed them.
6. VCAT noted the Secretary's submissions as to the evidence:

a) Section 199(1)(a), was satisfied: a state of emergency existed at the time each of the Authorisations were made; > > b) Section 199(1)(b) was also satisfied: > > 1. Professor Sutton's evidence was that over March 2020 he became increasingly concerned about the threat to public health posed by COVID-19 and formed the view on and from 15 March 2020 that COVID-19 posed a serious risk to public health as defined in the Act; > 2. on this basis, he also formed the view that powers in the Act, other than the emergency powers, would be insufficient to adequately respond to and mitigate that threat. For this reason, he formed the view that it was necessary to grant an authorisation under s 199 to authorised officers so that they could exercise emergency powers in s 200, to eliminate or reduce the serious risk to public health posed by COVID-19;

1. In making the Authorisations, Professor Sutton also had proper regard to the relevant guiding principles; and

d) The evidence also sets out how Professor Sutton had proper regard to the Charter.

7. VCAT dismissed the section 75 application because the threshold question raised has already been considered and determined in Truemans and Wentworth and there was no reasonable prospect of a different outcome in Thompson because:

a) The question was; Did Professor Sutton have insufficient grounds for making authorisations under s 199 of the PHW Act on 17 March 2020, 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020? > > b) On the same evidence as in Thompson, which had already been tested in Truemans and Wentworth, VCAT decided the answer was no and dismissed the application having considered the entire substance.

1. While findings in another VCAT hearing do not automatically apply or bind the Tribunal in this hearing, there is a well acknowledged public interest in the proper administration of justice that like cases be consistently determined;

d) In any case, in Thompson VCAT agreed with the analysis and findings and decisions in Truemans and Wentworth;

e) It was up to the Secretary to prove that the CHO did not have insufficient grounds and it was the Secretary who would hold the evidence. The possibility that Mr Thompson would be able to produce relevant evidence on the question was extremely low;

f) As found in Truemans and Wentworth, VCAT has no jurisdiction to provide compensation with respect to directions, as opposed to the authorisation issue and no jurisdiction to review the process by which the Secretary considered and refused Mr Thompson's application for compensation; and

g) Mr Thompson pursuing the application where it was obviously untenable and manifestly groundless and vexatious amounted to an abuse of process; and

h) Mr Thompson pursuing the application to a final hearing was misconceived and would be a waste of the case and the parties' resources.

The Three Applications - common reasons for dismissal

1. Referring to the 'Axicom criteria' set out above, Mr Blewett's three applications are obviously unsustainable in fact and in law, can on no reasonable view justify relief and are bound to fail.
2. Concerning each of the three applications:

a) Section 204 of the PHW Act provides a limited scope for the provision of compensation arising from decisions made when a state of emergency is in place. It is not a matter if the chief health officer made the correct decision/s. If a decision is made on sufficient grounds, compensation is not payable, even if it is at the time evident, or later becomes evident, that a better decision could have been made;

The above statement is not to be taken as in any way criticising Professor Sutton's authorisations for assessing his performance during the pandemic. Beyond considering sufficiency/insufficiency of grounds, VCAT has no such jurisdiction/role;

b) If they went to final hearing, VCAT would find that the authorisation/s meet formal requirements set out at section 201 of the PHW Act. As found in Truemans [from 119] and Wentworth [at 49], and relevant here because all the authorisations are in the same format, the authorisations relevant to these cases comply with section 201. Mr Blewett and the Secretary did not focus on this, presumably because that compliance is obvious;

c) Compensation can only be sought concerning the authorisations, not directions. Therefore, Mr Blewett's applications for compensation based on direction/s must fail;

d) The success or failure of Mr Blewett's application primarily depends on the Secretary's evidence, which in large part at hearing would again be evidence from Professor Sutton about his reasoning when he gave the authorisations. The Secretary's evidence would, almost certainly, be the same as in the previous proceedings. Relevant cross-examination[11] of Professor Sutton would almost certainly not change that reality;

e) This is in the context that to succeed in his applications Mr Blewett would have to persuade VCAT that none of the grounds concerning which Professor Sutton gave evidence were in fact made out. If he succeeded in 'defeating' some of the grounds, that would not be enough for Mr Blewett to succeed;

f) That Mr Blewett makes his applications from the perspective of the person impacted by the directions, will make no difference to the outcome. The focus of VCAT in such a proceeding is the basis for the authorisations, not the effect of individual directions on individuals;

g) To the extent that Mr Blewett intended to challenge the interpretation of the PHW Act, as decided and applied in the three previous cases, the law is that VCAT should follow earlier decisions unless it takes the view that the earlier decisions are clearly wrong. Those interpretations are not clearly wrong; VCAT would follow them.

While the precedent value of VCAT decisions is not determined by the seniority of the VCAT member making the decision, seniority gives additional weight to precedent. Truemans was decided by Deputy President Lambrick, Wentworth by Senior Member Billings, Thompson No. 1 by Senior Member Smithers and Thompson No. 2 by Vice President Jenkins;

h) While Mr Blewett intended the bring a variety of evidence to final hearing concerning views on management of responses to Covid-19, there is no prospect that knowledge gained since the authorisations were made will cause VCAT to find that the CHO, at the times of making the authorisation did not have, on the information then available, sufficient grounds to believe it was reasonably necessary to grant the authorisations;

1. To the extent that he seeks to put evidence as to the views of others on COVID-19 and appropriate responses at the time Professor Sutton made the authorisations, those issues were explored in Truemans. Professor Sutton's evidence as to being aware of other views as he made authorisations and later chose not to revoke them, will well outweigh the existence of other views;

j) While I have no reason to doubt the accuracy of Mr Blewett's submission that the CHO acknowledges that mistakes were made during the pandemic, to take that frank observation and then submit Professor Sutton may have been fatigued and so the authorisations were not given a reasonable basis, is fanciful;

k) Concerning the I Cook Foods decision, it involves a different situation, in 2019 unrelated to the pandemic. The Court decided that Professor Sutton's order that the company ceased production of food and destroy all food manufactured since 13 January 2019 was invalid because the Department of Health and Human Services failed to observe requirements of procedural fairness when Professor made the order. The Court rejected submissions that Professor Sutton was recklessly indifferent as to the orders invalidity and/or that he committed the tort of misfeasance in public office.

There is no realistic possibility that the judgement there will justify some form of inference about the Professor Sutton's sufficiency of grounds here;

1. There is no prospect that evidence would establish that Professor Sutton made authorisations simply responding to the Premier Andrews statements in press conferences; and

m) Concerning the three applications, these dismissals are primarily based on the evidence before VCAT and the Tribunal's decisions in Truemans and Wentworth. They are not based on the VCAT's section 75 dismissal in Thompson No. 2. If Thompson No. 2 had not existed, I would have made the same decision here. That said, Thompson No. 2 provides some precedent for the decisions here.

1. I now turn to issues unique to each application

1. There is nothing different in this application that could bring VCAT to make orders in favour of Mr Blewett, producing a different result from the results in Truemans, Wentworth and Thompson No. 2.[12]
2. There is no 'time difference' between the earlier VCAT decisions and this application. The substance of the application in terms of authorisations made relevantly completely overlap the earlier decided applications.
3. Mr Blewett seeks compensation concerning authorisations made on 16 March 2020, 17 March 2020, 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020.
4. Professor Sutton's evidence focuses on January to December 2020.
5. Truemans concerned authorisations made on 17 March 2020, 20 March 2020, 13 April 2020 11 May 2020.
6. Wentworth concerned an authorisation made on 17 March 2020.
7. Thompson concerned authorisations made on 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 13 September 2020.
8. Second, as discussed above, when Truemans and Wentworth were decided, section 199(1)(b) said 'necessary' and 'serious risk' had not been further defined by section 3(4) of the PHW Act. Thompson concerned three authorisations where the section said 'necessary' and two where it had been changed to 'reasonably necessary' and the definition of serious risk and been further defined.
9. The first three authorisations in this case were made when it said 'necessary'. The last two were made when it said 'reasonably necessary' and section 3(4) was in place. The words 'reasonably necessary' and the further definition of serious risk provided Professor Sutton with broader discretion than is provided by 'necessary'.
10. That said, the success of the section 75 application, here and in the other cases, has not depended on this subtle difference.

1. There is nothing different in this application that could bring VCAT to make orders in favour of Mr Blewett, producing a different result_._
2. Mr Blewett correctly submits that Truemans, Wentworth and Thompson concern authorisations made in 2020 (see above) and the authorisation to which this application relates was made on 20 July 2021.
3. However, there is no prospect that this difference will cause a different result with Mr Blewett succeeding. I accept the Secretary's submissions that Professor Sutton's 5 September 2021 witness statement in substance spans the whole period over which he made authorisations. Particularly, his evidence is that over that whole period he regularly reviewed the ongoing need for his authorisations, with reference to the requirements of the PHW Act concerning the ongoing authorisations and his ability to revoke them and concluded that need continued and authorisations must stay in place.
4. At paragraph 59 of his statement, Professor Sutton said, 'I am informed that the application relates to the period up to around August 2020. My evidence focuses on the period from January 2020 2 December 2020'.
5. There is a footnote to that paragraph (13), 'My statement should not necessarily be interpreted as evidence of my opinion on matters after December 2020'.
6. However, his evidence as a whole is not constrained by this. I take it that he is saying that his statement is focused on events in 2020 (see also footnote 17). His evidence concerning not revoking authorisations clearly spans to when he made his statement in September 2021.
7. Second, as discussed above, when Truemans and Wentworth were decided, section 199(1)(b) said 'necessary' and 'serious risk' had not been further defined by section 3(4). Thompson concerned three authorisations where the section said 'necessary' and two where it had been changed to 'reasonably necessary' and the definition of serious risk had been further defined.
8. The authorisation in this case was made relatively long after the section was changed to say, 'reasonably necessary' and the change definition inserted. The words 'reasonably necessary' and the further definition of serious risk provided Professor Sutton with broader discretion than is provided by 'necessary'.

1. There is nothing different in this application that could bring VCAT to make orders in favour of Mr Blewett, producing a different result_._
2. First, Mr Blewett correctly submits that Truemans, Wentworth and Thompson concern authorisations made in 2020 (see above). Mr Blewett's application appears to relate to directions made from 17 March 2020 to 15 December 2021, and therefore to Professor Sutton's authorisations in place at the times the various directions were made.
3. In my view there is no reasonable prospect that this difference will cause a different result with Mr Blewett succeeding. I accept the Secretary's submissions that Professor Sutton's 5 September 2021 witness statement in substance spans the whole period over which he made authorisations. Particularly, his evidence is that over that whole period he regularly reviewed the ongoing need for his authorisations, with reference to the requirements of the PHW Act concerning the ongoing authorisations and his ability to revoke them and concluded that need continued and authorisations must stay in place.
4. At paragraph 59 of his statement, Professor Sutton says "I am informed that the application relates to the period up to around August 2020. My evidence focuses on the period from January 2020 2 December 2020'.
5. There is a footnote to that paragraph (13), 'My statement should not necessarily be interpreted as evidence of my opinion on matters after December 2020'.
6. However, his evidence as a whole is not constrained by this. I take it that he is saying that his statement is focused on events in 2020 (see also footnote 17). His evidence concerning not revoking authorisations clearly spans to when he made his statement in September 2021. The span of directions and authorisations over a further three months, October to December 2021 will make no difference.
7. As discussed above, when Truemans and Wentworth were decided, section 199(1)(b) said 'necessary' and 'serious risk' had not been further defined by section 3(4). Thompson concerned three authorisations where the section said 'necessary' and two where it had been changed to 'reasonably necessary' and the definition of serious risk and been further defined.
8. The authorisations in this case were made before and after the changes. The words 'reasonably necessary' and the further definition of serious risk provided Professor Sutton with broader discretion than is provided by 'necessary'.

[1] The state of emergency declared on 16 March 2022 was expressed to be a 'state of

emergency throughout the State of Victoria arising out of the serious risk to public health in Victoria from Novel Coronavirus 2019 (2019-nCoV).' The Tribunal Book contains a copy of the state of emergency (and subsequent extensions).

[2] Only the first two applications had been formally listed for hearing.

[4] Date of royal assent of Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 (Vic).

[5] For clarity, these reasons mostly use 'case' instead of 'proceeding'.

1. [6] At hearing Mr Blewett withdrew written submissions that the section 75 application be dismissed because of the time the Secretary took to bring it. His submission about the VCAT case that produced the VCAT decision Grujic v The Secretary Department of Health (Review and Regulation) [2022] VCAT 1189 fell away as Mr Grujic had in January 2023 withdrawn his application.

[7] Professor Sutton's witness statement, page 59 and footnote 13.

[8] Section 49 of the VCAT Act requires the maker of a decision which is under review and VCAT to provide reasons for the decision and all relevant documents to that decision.

[9] See the Tribunal's responses throughout Truemans and in summary at [224 to 239] concerning section 199(1)(b) of the PHW Act, [291- 293] concerning the guiding principles set out in the PHW Act and [308 to 310] concerning application of the Charter.

[10] Section 12 -freedom of movement; section 13 - privacy and reputation; section 14 - religion and belief; section 15 - freedom of expression; section 16 - peaceful assembly and freedom of association; section 17 - protection of families and children; section 19 - cultural rights; section 20 - property rights and section 21 - liberty and security of person.

[11] It is highly likely that questions in cross examination as to later events and views as to Covid- 19 would be ruled inadmissible as the issue relates to Professor Sutton's reasoning at the time of making the authorisations.

[12] Noting Thompson No. 2 dismissed the application under section 75.