The applicant correctly conceded that VCAT does not have power to review any directions made under s 200.
[2]
SM Smithers made further remarks in Thompson to the effect that section 204 of the PHW Act does not provide for compensation to be payable for loss suffered as a result of the exercise of the section 200 emergency powers.[17]
I too consider that VCAT does not have jurisdiction to review the exercise by AOs of the emergency powers. The power to review given by section 204(7) of the PHW Act cannot be used in such a way that there would indirectly be a review of the exercise by AOs of the emergency powers.
Mr Bain emphasised the express power that section 199(3) gave the CHO to revoke (or vary) an authorisation, even while a state of emergency remained in place. He submitted in effect that by not revoking the authorisation after problems emerged at Stamford Plaza, the CHO was not acting consistently with the guiding principles of accountability and collaboration in the PHW Act. Developing his submissions, Mr Bain drew attention to section 20A of the PHW Act. (Section 20A relevantly provides that the CHO can be appointed by the Secretary as an AO and, if so, the CHO may exercise the emergency powers). Mr Bain suggested that the AOs to whom the CHO gave authorisations (which persons were also appointed by the Secretary) might not be as well qualified as the CHO. He submitted that the CHO had to consider the suitability of the persons he authorised and that he could not give them unlimited or 'unchecked' authorisations. Mr Bain noted the CHO's powers, but he submitted in effect that the problem was that the CHO chose not to revoke (or vary) the authorisation after problems emerged at Stamford Plaza (resulting ultimately from the exercise of the emergency powers). In this sense, there were insufficient grounds for the CHO's decision.
When I was referring to the evidence earlier, I noted that even after problems emerged at Stamford Plaza, Professor Sutton considered that the AOs should continue to have the full suite of powers available to them. Professor Sutton described how he had regard to the particular guiding principles Mr Bain mentioned - accountability and collaboration. Among other things, Professor Sutton said that there was always a process for feedback and for changes to be made to public health directions where relevant changes were appropriate. Professor Sutton emphasised the level at which he was making decisions to give authorisations and said that the considerations for him were about the control of a pandemic (throughout Victoria) where there was the prospect of tens of thousands of people dying.
On the basis of Professor Sutton's evidence, I am satisfied that there were not insufficient grounds for him not revoking the authorisation.
The CHO was clearly empowered to give authorisations that were unlimited. He explained in evidence why he formed the view that it was necessary for him to do that, and why he maintained the view that he should continue to do that after the problems at Stamford Plaza emerged. It is not correct to suggest, as Mr Bain suggested, that the powers given to AOs were 'unchecked'. The AOs' exercise of their powers was subject to the PHW Act and the Charter.
I mentioned earlier that Mr Bain made certain submissions about procedural fairness. The submissions concerned the Secretary and also VCAT.
In relation to the Secretary, Mr Bain submitted in effect that the Secretary was 'biased' because, in a previous role, he had expressed certain concerns about the hotel quarantine program. I understood Mr Bain to be suggesting that there was apprehended bias rather than actual bias. Mr Bain further submitted that the Secretary's decisions under review were 'incomplete' because they were made before the conclusion of the COVID-19 Hotel Quarantine Inquiry.[18] He therefore said that it would be appropriate for VCAT to remit the matter to 'the Department' for reconsideration.
Ms Knowles responded by saying in effect that the evidence did not support Mr Bain's assertion and that the Secretary denied that there was any actual or apprehended bias on his part. Ms Knowles submitted that in any event it was irrelevant, for the reason that VCAT now stands in the shoes of the Secretary and must decide the question in the proceedings. Ms Knowles further submitted that the decisions under review were detailed and comprehensive decisions and that now that VCAT is in a position to determine the review it would be appropriate for VCAT to do that.
As I am conducting merits review of the Secretary's decision, it would not be appropriate to consider whether there were issues of procedural fairness at the primary stage. Further, in my view, it is appropriate for me to complete the review now because I have heard the evidence and submissions on the preliminary question.
In relation to VCAT, Mr Bain had two concerns. One was that the interim injunction application was never heard and determined. (I have noted that the applicants did not proceed with the application at the hearing).
There have been delays in the proceeding which is of course unfortunate. But once the hotel quarantine program ended the injunction application became futile. The application appears to have been misconceived in any event, for VCAT's jurisdiction in the Wentworth proceedings is only the jurisdiction that I have described in these reasons.
Mr Bain's second concern was about the order in which VCAT heard and determined the various proceedings under section 204(7) of the PHW Act.
The applicants may have preferred their cases to be heard and determined before the other cases, although the file number in Truemans (Z778/2020) indicates that the case was commenced before the Wentworth proceedings. The outcome of the Wentworth proceedings ought not to have been affected by the order in which the cases were heard. I do not see how the outcome could have been affected.
[3]
For the reasons given, I am satisfied that there were not insufficient grounds for the CHO giving the authorisation. I am satisfied that the legislative preconditions for the authorisation were met and the authorisation was consistent with the objectives and guiding principles in the PHW Act and with the Charter. I am satisfied that this situation continued at all material times such that there were not insufficient grounds for giving (in the sense of not revoking) the authorisation.
I therefore affirm the decisions made by the Secretary to refuse to pay compensation to the applicants.
[4]
Ruling on evidence given orally on 27 October 2022
[5]
The Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) requires among other things that parties be given a reasonable opportunity to call or give evidence, to cross-examine witnesses, and to make submissions.
The applicants have been given a reasonable opportunity to cross-examine the Secretary's witness, Professor Sutton, the Chief Health Officer (CHO). There have already been submissions and I expect there will be more to come.
It is important to highlight the difference between submissions (arguments) and evidence.
I need to make a ruling as to whether the applicants may call or give evidence.
There is extensive background that is well known to the parties. I will be as brief as possible.
There are various provisions in the VCAT Act and various authorities that are relevant.
VCAT is a creature of statute and has only that jurisdiction that Parliament gives it, through the VCAT Act and the relevant enabling enactment - the Public Health and Wellbeing Act 2008 (PHW Act).
VCAT has a duty to act fairly (section 97 of the VCAT Act) and is bound by the rules of natural justice (section 98).
There is no absolute right to call or give evidence.
As an aside, on the subject of fairness, I note in passing that the applicants have been on notice for a considerable time that the Secretary submits that that evidence should be confined to matters within VCAT's jurisdiction. I refer here to the Secretary's submissions dated 22 October 2021, where the reasons for the submission are set out.
In the context of this case VCAT's 'jurisdiction' must be described with precision. I will come to that.
It is section 102(1)(a) of the VCAT Act that provides that VCAT must allow a party a 'reasonable opportunity' to give evidence.
His Honour Byrne J observed in Winn v Blueprint Instant Printing [2002] VCS 295 at [9] that the obligation to give parties a reasonable opportunity to give evidence is constrained by s 102(2) (which provides that VCAT may refuse to allow a party to give evidence if it considers that there is already sufficient evidence of that matter before the Tribunal) and 'by the ordinary requirements of relevance'.
There is more I will say about 'relevance'.
It is important to bear in mind the purpose and scope of the current hearing. The Tribunal is not at the stage of determining question of compensation. The applicants' agreement regarding the nature and scope of this hearing is noted.[19]
The Tribunal's current task is to determine what has been described as the 'threshold question'. I will simply call that 'the question'. The question derives from section 204(7) of the PHW Act.
Deputy President Lambrick identified the question in 815 Truemans Cabin Hire Pty Ltd v The Secretary, Department of Health[2022] VCAT 1187 (Truemans).
In essence, Mr Bain (representing the applicants), has indicated that the evidence that the applicants propose to give concerns the impact of management of hotel quarantine had on their business and themselves personally but also their observations with regard to matters such as infection control at the hotel where their business was located. Mr Bain indicated in essence that the evidence is directed to matters with which section 200 of the PHW Act is concerned. (Section 200 sets out the emergency powers that the CHO may authorise authorised officers to exercise).
I will be discussing Truemans further, but also Thompson v The Secretary, Department of Health[2022] VCAT 504 (Thompson). Those cases are both decisions of VCAT.
I saw something now about how I should approach those cases. I refer to remarks made by Deputy President Macnamara, as he then was, in Midas v Commissioner of State Revenue[2010] VCAT 1690 at [10]:
[6]
[I]t is desirable in the interests of comity and uniformity that a Tribunal should adopt the same principles in deciding various review applications which arise under the same statute. To do otherwise would make the Tribunal's decisions a wilderness of single instances rather than what we hope they should be, a manifestation of the rule of law and a manifestation of the principle that like cases need to be treated alike.
[7]
I would depart from Truemans or Thompson only if I considered that they were clearly wrong. I do not consider them to be clearly wrong. I am really dealing at this point only with how the Tribunal in those cases described the scope of review under section 204(7) of the PHW Act. I indicate that I consider those decisions to be clearly correct. I also note that the judgment of the Supreme Court of Victoria in Loielo v Giles[2020] VSC 722 (Loielo), to the extent that the judgment bears on the matters now before me, supports what VCAT said in Truemans and Thompson about the scope of review.[20]
I come now to the question currently being considered - the jurisdiction being exercised.
In Truemans, DP Lambrick said:
[8]
58 The Secretary contends, the Tribunal's role in this case is similarly strictly limited to determining whether there were insufficient grounds for giving the authorisation.
[9]
59 Further section 204 of the PHW Act does not, the Secretary submits, require that every ground relied upon by the CHO when giving the authorisations was sufficient. Rather, if there was any ground, or combination of grounds, upon which the giving of an authorisation was sufficient, the Tribunal should affirm the deemed decision of the Secretary to refuse to pay compensation.
[10]
61 I agree with the Secretary that the language of section 204 of the PHW Act is very clear.
[11]
62 On a plain reading of the provision, the review jurisdiction of the Tribunal is restricted in this way. The only basis for a payment of compensation under section 204 of the PHW Act, is if the Secretary, (or this Tribunal standing in the shoes of the Secretary), decides that there were insufficient grounds for the giving of an authorisation to an authorised officer under Division 3 of the PHW Act. If the Secretary, (or this Tribunal standing in the shoes of the Secretary), so decides, the Secretary is to pay just and reasonable compensation.
[12]
63 The relevant statutory test then is an objective one - were there insufficient grounds for the giving of the authorisation? The only basis upon which the Secretary is liable to pay compensation is if the Secretary decides there were insufficient grounds for the giving of an authorisation to an authorised officer.
[13]
64 This is what the Tribunal, standing in the shoes of the Secretary must determine. It is not for this Tribunal to determine whether the correct and preferable decision was for the CHO to give the authorisations. It is not for the Tribunal to conduct a full merits review of the decision of the CHO to give the authorisation. Rather the Tribunal must only determine whether there were insufficient grounds for the giving of the authorisation.
[14]
The parties jointly submitted and I agree with their submissions that insufficient grounds may be established in the context of section 204 of the PHW Act if it could be shown that the authorisations:
[15]
did not satisfy the legislative preconditions for the granting/giving of the authorisations found in sections 199 and 201 of the PHW Act, and/or
were inconsistent with the objectives and/or guiding principles in the PHW Act, and/or
were inconsistent with the Charter_._
[16]
In my view, as matter of statutory interpretation, the present review does not and cannot involve any review of the exercise by authorised officers of emergency powers in section 200 of the PHW Act.
But I refer now to Thompson. In that case, Senior Member Smithers noted that there is a hierarchy of provisions in the PHW Act. The Minister has power to declare a State of Emergency; the CHO has power to give authorisation; the power that authorised officers have to exercise emergency powers under section 200.
It is important to bear in mind the level at which these persons exercise power. As submitted by Ms Knowles on behalf of the Secretary, that matter affects the way in which the guiding principles in the PHW Act are to be understood. For instance, there is a reference in section 10 (the principle of collaboration) to 'individuals'. I accept Ms Knowles' submission that at what she called 'the section 199 level, the CHO was not required to account for the minutiae, or for 'on the ground' decision-making by authorised officers or others. I also accept Ms Knowles' submission that one cannot interpret section 10 to mean that the CHO would have to meet with everyone (all individuals) in Victoria who would or might be affected by the exercise of section 200 powers.
At this point I note that Mr Bain cross-examined Professor Sutton in this hearing.
It is most relevant to note that the CHO was aware that he could revoke an authorisation.[21] That appears in his witness statement and the evidence he gave in Truemans.[22] During cross-examination, Professor Sutton acknowledged the difficult circumstances for persons at Stamford Plaza but confirmed that he said that at no stage did he form the view that the authorisation was no longer necessary. His considerations related to the need to control the pandemic.
I now refer specifically to statements in Truemans and Thompson that relate to section 200. In Truemans, DP Lambrick said[23] -
Although the decisions and directions made/given by the authorised officers in their exercise (of) the emergency powers were touched on by the parties, it was not suggested by either party that I should or could examine those directions for their validity or that I had jurisdiction to review the appropriateness of the directions themselves in this proceeding. I agree that I cannot.
[17]
115 The directions nevertheless remain of relevance for the purpose of contextualising the effect of the authorisations. I was therefore made aware of the directions relevant to 815 [(the applicant)], which would arguably increase in relevance if the matter proceeded to further hearing in relation to any compensation payable.
The applicant correctly conceded that VCAT does not have power to review any directions made under s 200.
[20]
Later in the decision he made remarks to the effect that section 204 does not provide for compensation to be payable for loss suffered as a result of the exercise of the section 200 emergency powers.[25]
The Secretary has previously made a written submission to the effect that in giving an authorisation under section 199, the CHO is not authorising a specific or contemplated use of the powers but, rather, is authorising an authorised officer to make a separate, subsequent decision. I agree.
Mr Bain submits that this case is different to Truemans and others currently before VCAT under the same provisions and that there is more the applicants in the present proceedings can say about the exercise of emergency powers under section 200. Mr Bain essentially seeks to tie that to the giving (or not revoking) of the authorisation -in the light of the applicants' experience at Stamford Plaza - under section 199. In essence, he says that is because applicants were not affected simply by reason of lockdowns. Their business premises were located in a hotel that was used for hotel quarantine and they experienced impacts on their business and on them personally by reason of the way the hotel quarantine program was managed and what information they were (or were not) provided as it was in place. It is apparent from the material before the Tribunal and the submissions that applicants' concerns go beyond that and are wide-ranging.
I am not aware of the circumstances of all these other cases that - on the face of it - have been brought to VCAT under same provisions of PHW Act. The facts in the present proceedings are different to the facts in Truemans. They may be different to the other cases as well. That does not mean that the cases are different in a relevant legal sense.
In my view it would be wrong to use the power to review given by section 204(7) for an indirect review of the exercise of the emergency powers. VCAT does not have jurisdiction to do that. Parliament could have given VCAT the power to review the exercise of section 200 powers by did not.
At this point I indicate that there are other relevant provisions of VCAT Act to mention. There is, mainly, section 98. Section 98(1)(d) provides that VCAT must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
'Proper consideration' of the matters before me entails proper consideration of the question that I identified earlier.
I repeat for emphasis that I am talking about evidence as opposed to submissions. The evidence that Mr Bain indicated it was proposed the applicants would give cannot bear on the question currently before VCAT. It cannot bear on the question whether there were sufficient grounds for the CHO giving the authorisation (including 'giving' in sense of maintaining and not revoking the authorisation), given the level at which the CHO was making his decision - the 'section 199 level'. As I have said, the CHO was cross-examined and he responded in effect that (notwithstanding the acknowledged hotel quarantine concerns) at his level of decision making he continued to believe that the relevant authorisation was necessary to eliminate or reduce a 'serious risk to public health' as that expression is defined in the PHW Act. The proposed evidence really concerns the exercise of powers by authorised officers; or acts or omissions by other officers at lower levels; or matters that go to what compensation would be just and reasonable in the event that VCAT - standing in the shoes of the Secretary - decided that there were insufficient grounds for the giving of the authorisation.
I understand the personal need the applicants might have to tell their story in this forum.
In summary, as a matter of statutory interpretation, and because I agree with the decisions in Truemans and Thompson (and have regard to the judgment in Loielo), I cannot engage in what in effect would be a review of the exercise of section 200 powers in determining whether CHO had sufficient grounds to give the authorisation under section 199.
The proposed evidence is not relevant to the question currently before me.
For the reasons I have given, I will not receive that evidence. If Mr Bain has further submissions, I will hear them and then I will hear from Ms Knowles in reply.
[2] 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).
[23]
[3] For convenience, I generally refer to 'the authorisation' (singular) while noting that the CHO gave numerous authorisations over time.
[24]
[4] As it was expressed in the application for review, the injunction application was 'to place a temporary hold on the actions of the Respondent (Department of Health and the Chief Health Officer - Professor Brett Sutton) from his actions in continuing to authorise (with powers given him under s199, 200, 201 of the PHW Act 2008) the Coronavirus Quarantine Victoria (CQV) program at the Stamford Plaza Hotel - Melbourne which is subjecting the Applicants to a health risk and financial loss'. The Secretary opposed the application on grounds including that VCAT did not have jurisdiction and that there was no longer relevant action to restrain. Although the applicants did not proceed with the application, they made submissions with regard to procedural fairness in the context of the injunction application.
[25]
[9] An important difference in the witness statement filed in the Wentworth proceedings is that
[26]
Professor Sutton said this at [64]: 'I understand that the Applicants operates a hair dressing salon. Dr van Diemen [the relevant AO] made directions which were relevant to the use and operation of hair dressing salons, and in particular the Applicants' business which is located in the foyer of a hotel quarantine facility ...'
[27]
[10] '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; (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'.
[28]
[11] The PHW Act has been amended since March 2020 when the CHO gave the relevant authorisation to insert the word 'reasonably' before 'necessary' in section 199(1)(b). I consider the question on the basis of the legislation as it was at the time the CHO gave the authorisation.
[29]
[12] Section 201(3) requires that the authorisation state that it is given under Part 10 Division 3; that it generally describe the serious risk to public health to which it relates; that it identify the relevant place at which the risk has occurred; that it specify the time at which the authorisation is given; that it specify any restrictions or limitations on the exercise of public health risk powers or emergency powers; and that it specify the period of time for which the authorisation continues in force.
[30]
[13] See Professor Sutton's witness statement at paragraph [85] quoted earlier.
[31]
[14] Section 201 concerns primarily concerns the form and content of authorisations.
[32]
[17] At [121]. See also Loielo v Giles[2020] VSC 722 (Loielo) which may be seen to give some support to what VCAT said in Truemans and Thompson.
[33]
[18] The Board of Inquiry delivered its final report on 21 December 2020.
[34]
[19] At Tribunal Book p 536 there minutes of proposed order that, in particular, indicate that VCAT would determine whether the CHO had sufficient grounds for giving the relevant authorisation.
[35]
[20] See especially at [148], [151], [168], [171] and [177].
[22] A virtually identical witness statement by the CHO is attached to the Truemans decision and VCAT's record of his oral evidence in that case has, without any objection, been received in evidence in the present proceedings.
Parties
Applicant/Plaintiff:
Wentworth Hair Salon
Respondent/Defendant:
The Secretary, Department of Health
Legislation Cited (3)
Health and Wellbeing Act 2008
Civil and Administrative Tribunal Act 1998
PHW Act 2008
Cases Cited (3)
Wentworth Hair Salon v The Secretary, Department of Health (Review and Regulation) [2022] VCAT 1298 (10 November 2022)
These two proceedings (the Wentworth proceedings) are among several that involve applications made to VCAT under section 204(7) of the Public Health and Wellbeing Act 2008 (PHW Act) for review of decisions by the Secretary (Secretary) for the Department of Health (Department) under section 204 to of the PHW Act refuse to pay compensation.
VCAT has ordered that the Wentworth proceedings remain separate but be heard and determined together.[1]
The background to the proceedings is the Victorian Government's response to the COVID-19 pandemic. Following the declaration of a state of emergency by the Minister for Health (Minister) on 16 March 2020, the Chief Health Officer (CHO) gave authorisations to authorised officers (AOs) that enabled them to exercise emergency powers under the PHW Act.[2]
The CHO (Professor Brett Sutton) gave numerous authorisations over time. The material authorisation is the one that he gave on 17 March 2020.[3] Later in March 2020, the relevant AO made directions that included a Detention and Direction Notice and Stay at Home Direction.
Section 204 of the PHW Act allows a person who suffers loss as a result of a decision by the CHO to give an authorisation to an AO under Part 10 Division 3 to apply to the Secretary for compensation if the person considers that there were insufficient grounds for the giving of the authorisation. If the Secretary decides that there were insufficient grounds for the giving of the authorisation, the Secretary is to pay just and reasonable compensation. Section 204(7) provides that an applicant for compensation 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 VCAT for a review of the decision.
The applicants in the Wentworth proceedings are the operator of a hairdressing business and a hairdresser. The first applicant is the proprietor of Wentworth Hair Salon. The second applicant is a sub-lessee of the business premises. The premises are located in the foyer of the Stamford Plaza Hotel (Stamford Plaza) in Melbourne. At material times Stamford Plaza was in the Victorian Government's hotel quarantine program.
The applicants were represented in the proceedings by their friend, Mr Bain. The Secretary was represented by Ms Knowles of counsel.
The applicants applied for review of decisions by the Secretary made in December 2020 and April 2021 to refuse to pay compensation. The applicants also applied for an interim injunction.[4] The application for an injunction was never heard and determined. The applicants did not proceed with the application at the hearing: see further below.
Decisions have been made by VCAT in other, similar, proceedings, most notably by Deputy President Lambrick, as she then was, in 815 Truemans Cabin Hire Pty Ltd v The Secretary, Department of Health[2022] VCAT 1187 (Truemans).
In Truemans, VCAT affirmed the decision of the Secretary. At the heart of the matter, the question answered in Truemans is the same question to be answered in the Wentworth proceedings, and the evidence is virtually the same.
The applicants submit that their cases are materially different to Truemans. Put briefly, the key difference between the Wentworth proceedings and Truemans is that whereas the applicant in Truemans claimed business losses resulting from the lockdown rules, the applicants in the Wentworth proceedings claim business and other losses resulting from the widely reported problems there were in the management of hotel quarantine at Stamford Plaza.
That said, to a substantial degree the applicants accept the way in which VCAT identified the question in Truemans and the evidence put forward on behalf of the Secretary. Specifically, the applicants did not challenge these findings that the Tribunal made in Truemans:
And in an earlier decision, Thompson v The Secretary, Department of Health[2022] VCAT 504 (Thompson), Senior Member Smithers said[16] -