Plaintiff v Defendant

Plaintiff v Defendant - [2020] VSC 722 - VSC 2020 case summary — Zoe

[36]

1 Purpose

The purpose of this Act is to enact a new legislative scheme which promotes and protects public health and wellbeing in Victoria.

4 Objective

(3) It is the intention of Parliament that in the administration of this Act and in seeking to achieve the objective of this Act, regard should be given to the guiding principles set out in sections 5 to 11A.

5 Principle of evidence based decision-making

Decisions as to -

(a) the most effective use of resources to promote and protect public health and wellbeing; and

(b) the most effective and efficient public health and wellbeing interventions -

should be based on evidence available in the circumstances that is relevant and reliable.

6 Precautionary principle

If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.

7 Principle of primacy of prevention

(1) The prevention of disease, illness, injury, disability or premature death is preferable to remedial measures.

(2) For that purpose, capacity building and other health-promotion activities are central to reducing differences in health status and promoting the health and wellbeing of the people of Victoria.

8 Principle of accountability

(1) Persons who are engaged in the administration of this Act should as far as is practicable ensure that decisions are transparent, systematic and appropriate.

(2) Members of the public should therefore be given -

(a) access to reliable information in appropriate forms to facilitate a good understanding of public health issues; and

(b) opportunities to participate in policy and program development.

9 Principle of proportionality

Decisions made and actions taken in the administration of this Act -

(a) should be proportionate to the public health risk sought to be prevented, minimised or controlled; and

(b) should not be made or taken in an arbitrary manner.

10 Principle of collaboration

Public health and wellbeing, in Victoria and at a national and international level, can be enhanced through collaboration between all levels of Government and industry, business, communities and individuals.

11 Principles applying to Part 8

Section 111 specifies the principles that are to apply for the purposes of the application, operation and interpretation of Part 8.

111 Principles

The following principles apply to the management and control of infectious diseases -

(a) the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person;

(b) a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease;

(c) a person who has, or suspects that they may have, an infectious disease should -

(i) ascertain whether he or she has an infectious disease and what precautions he or she should take to prevent any other person from contracting the infectious disease; and

(ii) take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease;

(d) a person who is at risk of contracting, has or suspects he or she may have, an infectious disease is entitled -

(i) to receive information about the infectious disease and any appropriate available treatment;

(ii) to have access to any appropriate available treatment.

200 Emergency powers

(1) The emergency powers are -

(a) subject to this section, detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;

(b) restrict the movement of any person or group of persons within the emergency area;

(c) prevent any person or group of persons from entering the emergency area;

(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.

(2) Unless subsection (3) applies, before any person is subject to detention under subsection (1)(a), an authorised officer must briefly explain the reason why it is necessary to detain the person.

(3) If in the particular circumstances in which the power to detain the person is to be exercised, it is not practicable to briefly explain the reason why it is necessary to detain the person before the power is exercised, the authorised officer must do so as soon as is practicable.

(4) Before exercising any emergency powers under this section, an authorised officer must, unless it is not practicable to do so, warn the person that a refusal or failure to comply without a reasonable excuse, is an offence.

(5) An authorised officer must facilitate any reasonable request for communication made by a person subject to detention under subsection (1)(a).

(6) An authorised officer must at least once every 24 hours during the period that a person is subject to detention under subsection (1)(a) review whether the continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health.

(7) An authorised officer must as soon as is reasonably practicable give written notice to the Chief Health Officer -

(a) that a person has been made subject to detention under subsection (1)(a);

(b) that following a review under subsection (6) a person is to continue to be subject to detention under subsection (1)(a).

(8) A notice under subsection (7) must include -

(a) the name of the person being detained; and

(b) a brief statement as to the reason why the person is being, or continues to be, subject to detention under subsection (1)(a).

(9) The Chief Health Officer must as soon as is reasonably practicable advise the Minister of any notice received under subsection (7).

(10) Despite subsection (7), if the authorised officer is the Chief Health Officer, the Chief Health Officer must, as soon as is reasonably practicable -

(a) advise the Minister in writing that a person has been made subject to detention under subsection (1)(a) or that following a review under subsection (6) a person is to continue to be subject to detention under subsection (1)(a); and

(b) include in the advice the name of the person being detained and a brief statement as to the reason why the person is being, or continues to be, subject to detention under subsection (1)(a).

[45]

23 Power of Premier to declare state of disaster

(1) If there is an emergency which the Premier of Victoria after considering the advice of the Minister and the Emergency Management Commissioner is satisfied constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria, the Premier may declare a state of disaster to exist in the whole or in any part or parts of Victoria.

(1A) The Premier must not make a declaration under this section for the purpose of taking action against any person or body of persons in the circumstances to which section 4(1) of the Essential Services Act 1958 applies.

(2) The Premier may at any time revoke or vary a declaration under this section.

(3) Immediately upon the making, revocation or variation of a declaration under this section, a state of disaster exists, ceases to exist or exists as so varied (as the case requires) for the purposes of this Part.

(4) As soon as practicable after the making, revocation or variation of a declaration under this section the Premier must cause notice of the making, revocation or variation of the declaration to be broadcast from a broadcasting station in Victoria and to be published (with, in the case of the making or variation of a declaration, a copy of the declaration) in the Government Gazette.

(5) Production of a Government Gazette purporting to contain -

(a) notice of the making, revocation or variation of a declaration under this section is evidence of that making, revocation or variation (as the case requires); and

(b) a copy of the declaration under this section is evidence of the terms of the declaration.

(6) A declaration under this section remains in force for not more than one month, but another declaration may be made before, at or after the end of that period.

(7) If a state of disaster has been declared under this section the Premier must report on the state of disaster and the powers exercised under section 24 to both Houses of Parliament as soon as practicable after the declaration if Parliament is then sitting and if Parliament is not then sitting as soon as practicable after the next meeting of Parliament.

24 Powers and duties of Minister

(1) In a state of disaster, the Minister is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.

(2) In addition to and without in any way limiting the generality of subsection (1), in a state of disaster the Minister may -

(a) direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility; and

(b) if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended; and

(c) take possession and make use of any person's property as the Minister considers necessary or desirable for responding to the disaster; and

(d) control and restrict entry into, movement within and departure from the disaster area or any part of it; and

(e) compel the evacuation of any or all persons from the disaster area or any part of it.

(3) If a direction is given to a government agency under subsection (2)(a) -

(a) the government agency must comply with the direction; and

(b) the direction prevails over anything to the contrary in any Act or law.

...

[105]

Hi everyone

As discussed, documenting the public health basis for the curfew for the final legal review for today's directions.

Please let me know if any further comments on this framing. Many thanks

Nicole

Public health rationale:

The curfew is part of a range of restrictions that go to limiting movement in Metropolitan Melbourne to contribute to reducing the spread of COVID-19. While the curfew on its own may not achieve this aim, it is part of a package of restrictions that achieves this and to remove may have unintended impacts on transmission from both a direction impact and behaviour change mechanism.

Having people at home for 8 or 9 hours out of 24 (9pm-5am) has the potential to reduce the aggregate risk of people from different households mixing. No single measure will be effective by itself, as interventions work in combination to reduce risk of transmission.

Stage 4 restrictions are in place with significant volumes of community transmission, as well as substantial numbers of cases with an unknown source. In this environment, the overall aggregate purpose of the Directions taken together are to minimise movement and reduce aggregate risk of people from different households mixing.

A curfew reduces mobility (particularly targeted at the age bracket of 20-39) - potentially reducing the geographic spread, distance travelled (eg people attending private residences at night).

It supports further community understanding of the need for behaviour change, specifically that you should not leave home unless for the 4 reasons and also reduces the reasons people would not be at home during these hours.

It also enhanced operational enforcement and compliance operations to maximise compliance with directions which increases the overall reduction of transmission risk as intended by the package of public health interventions included in the Directions.

Epidemiology

99 cases with an unknown source in the previous 14 days - indicating substantial transmission is still occurring in Metropolitan Melbourne outside the controls of the test, trace and isolate regime.

The effective reproduction rate is currently at 0.77. Maintaining this level (rather than see it increase to close to 1) is critical to reduce case load and transmission fast enough to ensure that significant restrictions are not required for a longer duration and that rights and freedoms can be restored as soon as possible.

[185]

In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), the High Court observed that the special interest test was flexible and that its content in a given case will be dictated by the nature and subject matter of the litigation. That observation was further explained by Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd who said:

This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject-matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law.[41]

...

Although the statutory context is important, it does not control standing. A plaintiff may have standing to challenge the exercise of power because of its practical or legal effect even though the interests of the plaintiff do not coincide with the purpose of the statutory scheme. For example, a person whose business or economic interests are threatened may challenge a decision that is made entirely for public health, safety or environmental reasons. As Doyle J observed in a statutory standing context:

In determining the nature of a plaintiff's interest in the relevant subject matter and decision, and the impact or effect of the decision upon the plaintiff, it will often be necessary to have regard to the legislation under which the impugned decision is made, and the legal effect and operation of the decision, in order to determine how the interests of the applicant for review may be affected or aggrieved. On the other hand, a majority of the High Court in Argos Pty Ltd v Corbell cautioned against going further and attempting to divine the breadth of interest that will suffice to establish standing from the purpose or objects of the relevant legislation. In other words, while the relevant legislation will inform, if not determine, the nature of the plaintiff's interest, it does not determine whether that interest is sufficient to establish standing. For example, in Argos Pty Ltd v Corbell, it was held that while the applicant supermarket operators' private interests in the relevant subject matter were not a matter that the legislation required (or permitted) to be taken into account in making the relevant decision, this did not mean that those persons were not sufficiently affected by the operation of the decision to give them standing to challenge the lawfulness of the decision on grounds that were relevant to its validity.[42]

[308]

The evening curfew has been demonstrated to significantly reduce the movement of people in the Restricted Area. Traffic modelling has demonstrated a dramatic reduction in the number of people moving around the Restricted Area. In this way, the curfew significantly contributes to the reduction in the spread of 2019-nCoV. There are also limited exceptions to the evening curfew, such as for the provision of care and support, including child-minding; for health or medical purposes; to escape the risk of harm; and for emergency purposes, so that people can still leave their premises during curfew hours for legitimate reasons.

The Department notes that the evening curfew was first introduced on 2 August 2020 in directions signed by Dr Finn Romanes. Dr Romanes signed those directions on the basis of his view of the package of directions, and advice, that the curfew, as part of a package of measures, was reasonably necessary to protect public health; and on balance, that the limits on the relevant rights were reasonably justifiable on the basis of persuasive medical evidence, as well as current data and trends concerning the rates of infection and community transmission.

The Department has been provided with advice that the continuation of the evening curfew remains reasonably necessary on public health grounds. This is primarily because it reduces movement, which in turn reduces the risk of community transmission. Further, it is one part of a suite of measures that have proven to be highly effective in reducing community transmission. There is a risk that removing the curfew component from this suite may undermine the effectiveness of the measures taken together; this risk is considered to be unacceptably high.

The Department notes the comments by the Chief Health Officer, Professor Brett Sutton, in a media interview on 8 September 2020, where he said that while the curfew is not inconsistent with public health advice, it was not the subject of his advice prior to its implementation. Professor Sutton also stated in that interview that had he 'put [his] mind to it' that the evening curfew would 'probably' have been a measure he would have recommended.

The Department also notes that Premier Daniel Andrews stated in a press conference on 12 September 2020 that the evening curfew is 'not a matter of public health advice. It's a law enforcement issue'. He said '[i]t's about giving police the easiest set of rules to enforce and not have to waste their precious time dealing with things that shouldn't be happening and can easily be prevented by putting a curfew in'.

Despite these comments, it is the Department's view that there is a public health basis for the curfew.

At a glance

Court

Decision date

Before

Source

Judgment (421 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (29)