Hearing by teleconference under s. 71(2) of the Victorian Civil and Administrative Tribunal Act 1998

Helmer v The Secretary to the Department of Health and Human Services (Review and Regulation) [2020] VCAT 1309

1. Under s. 71(5)(a) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal confirms the principal registrar's rejection of the application.

1. Due to various COVID-19 restrictions, the applicants, who are a married couple have been unwillingly separated for many months. Mr Helmer is in Victoria and Ms Turitsyna is currently in Russia and unable to return home.
2. On 9 September 2020 the applicants brought an application to this Tribunal under the Public Health and Wellbeing Act 2008 ("the PHWA"). They sought the following orders:

The declaration of this Tribunal that the Melbourne Airport ban on the return from abroad of Ms Turitsyna, pursuant to the PHWA, is unlawful.

1. Under s. 124 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), the Tribunal may make a declaration concerning any matter in a proceeding. However, the power to make a declaration under s. 124 of the VCAT Act can only be exercised concerning any matter in a proceeding. It is not in and of itself a separate proceeding. In other words, there needs to be a valid proceeding in the from which the power to make a declaration then emerges.
2. Following written exchanges between (a delegate of) the principal registrar and the applicant, in which clarification was sought as to the statutory basis for the application, (a delegate of) the principal registrar rejected the application under s. 71(1)(a) of the VCAT Act on 29 September 2020. Thereafter the applicants required the principal registrar to refer the application to the Tribunal for review of the rejection under s. 71(2) of the VCAT Act.
3. Under s. 71(5) of the VCAT Act, on a review of a referral under subsection (2), the Tribunal must review the rejection and may:

(b) order the principal registrar to accept the application.

1. Unless and until the application is accepted by the Tribunal, there is no proceeding on foot and therefore no respondent to the proceeding and of course no power to make a declaration.
2. The applicants were critical of the reasoning behind the rejection of their application by (the delegate of) the principal registrar. The Tribunal is not, when reviewing the rejection, tied to the reasoning of (the delegate of) the principal registrar. It needs to examine for itself whether there is any utility in accepting the application.
3. Whether or not the Tribunal does have any jurisdiction is most certainly a threshold decision as emphasised by Mr Helmer. The Tribunal will not reject an application unless it is absolutely clear that its power/ability to hear an application does not exist. It is this question which I need to determine when considering a referral under s. 71(2) of the VCAT Act.
4. In urging the Tribunal to accept the application, the applicants raise constitutional arguments with respect to an Australian citizen's right to re-enter the country; and the lawfulness of public health orders generally, as well as issues under the Charter of Human Rights and Responsibilities Act 2006. I do not propose to address those questions in this threshold decision.
5. This Tribunal is a "creature of statute". It does not have unfettered jurisdiction. It does not have inherent powers. It can only exercise the powers conferred on it under the VCAT Act (including the Rules and Regulations) or under an enabling enactment.
6. There are potentially two sections under the PHWA that Mr Helmer has identified as enlivening VCAT's jurisdiction. Those are set out in ss. 122 and/or 207 of the PHWA. Both sections do provide a review jurisdiction to the Tribunal.
7. Under s. 48 of the VCAT Act, the review jurisdiction of VCAT is (relevantly) invoked by a person who is entitled to do so by or under an enabling enactment - in this case, that is the PHWA.
8. Section 51 of the VCAT Act sets out the functions of the Tribunal on review once a valid application is before the Tribunal.
9. It is necessary then to look to the provisions of the PHWA to determine whether each or either or both of the applicants can invoke the Tribunal's jurisdiction.
10. Section 122 is contained in Division 2 of Part 8 of the PHWA_._ It reads:

A person subject to a public health order may at any time while the order is in force apply to VCAT for a review of the decision to make the order.

1. In s. 3 of the PHWA, a public health order is defined as an order made under s. 117 of the PHWA.
2. Section 117 allows the Chief Health Officer to make a public health order in the circumstances set out in s. 117(1) of the PHWA (where for example a person has or may have been exposed to an infectious disease and it is necessary to make the public health order to eliminate or reduce the risk of the person causing a serious risk to public health).
3. There are legislated requirements around the making of a public health order under s. 117 of the PHWA. Importantly, s. 117(3) of the PHWA reads as follows:

(d) specify the infectious disease which the Chief Health Officer believes the person has or has been exposed to;

(e) explain why the Chief Health Officer believes that the person is infected with the infectious disease or has been exposed to the infectious disease in circumstances where a person is likely to contract the infectious disease;

(f) subject to subsection (4), specify the period for which the public health order continues to have effect;

(g) explain the person's rights and entitlements under this Act and the process for making an application for review to VCAT;

(h) contain a statement that the person should seek legal advice;

(i) explain that if the person does not comply with the order, the person commits an offence and is liable to a penalty not exceeding 120 penalty units.

(4) The period for which a public health order continues to have effect must -

(a) not exceed 6 months from the day on which the order is made;

(b) be proportionate with the risk that the person poses to public health.

1. Importantly, under s. 118 (1) of the PHWA, a public health order only has effect from the time that it is served on the person to whom it applies.
2. It is clear from the words of s. 122 of the PHWA that the jurisdiction of the Tribunal is only enlivened under this section if the applicant is a person who is subject to a public health order as defined. It is that person(s) who may at any time while the order is in force, apply to the Tribunal for a review of the decision to make the order. It is not the community at large who may apply to the Tribunal about acts which may or may not have been taken by a broad range of decision-makers.
3. Before I made any decision in this matter, I gave the applicants the opportunity to demonstrate that either or both was a person subject to a public health order made under s. 117 of the PHWA.
4. Neither applicant has produced a public health order to which he/she/they is/are subject despite the matter having been adjourned to enable the applicants to do so. It is the only basis of the Tribunal's review jurisdiction under s. 122 of the PHWA. I cannot just infer that either have been made the subject of a public health order as defined in s. 117 of the PHWA such that the jurisdiction of the Tribunal is invoked. Apparently, following a comprehensive search made by and on behalf of the applicants, for the applicants no public health orders relevant to the question at hand can be found to exist under the PHWA.
5. The Tribunal's jurisdiction has therefore not been shown to have been enlivened under s. 122 of the PHWA.
6. I turn then to a consideration of s. 204 of the PHWA which is contained within Division 3 of Part 10 of the PHWA.
7. Section 204(1) reads:

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.

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.

1. A precursor to any application made under s. 204 of the PHWA is that the applicant is dissatisfied with a decision of the Secretary to refuse to pay compensation.
2. Whilst the first applicant concedes that he has not made an application to the Secretary for compensation, he submits that he has made his application in accordance with s. 204 of the PHWA which he submits is a complementary section to s. 117 of the PHWA.
3. I disagree.
4. On no reading can s. 204 be construed as incorporating s. 117.
5. It deals with different issues. It appears in a different division of the PHWA entirely.
6. The precursor condition to an application to the Tribunal, namely the requirement that an application for compensation be made to the Secretary cannot simply be ignored.
7. Neither Mr Helmer nor his wife have made an application for nor been refused a payment of compensation in accordance with this section.
8. There being no other basis upon which it could be said that the Tribunal has the power to deal with the application, under the PHWA, I am satisfied that the rejection of the application by the principal registrar should be affirmed.