(Nov. 13, 2020) On November 2, 2020, the Supreme Court of Victoria, Australia, issued a decision in the case of Loielo v Giles  VSC 722 (Decision), in which the plaintiff claimed that the state’s then-deputy public health commander had acted unlawfully in issuing a direction for a curfew to be imposed in “greater Melbourne” as part of measures to control the spread of COVID-19.
Melbourne’s Second Lockdown and Curfew
On June 30, 2020, the premier of Victoria, Daniel Andrews, announced that certain postcodes in the Melbourne area linked to new outbreaks of COVID-19 would go into “local lockdown,” returning to “Stage 3 Stay at Home restrictions” until at least July 29. The restrictions were extended to particular public housing estates on July 8. Under the restrictions, “[p]eople living in greater Melbourne and Mitchell Shire [were required to] follow the Stay at Home directions and [could] only leave home for four reasons”: shopping for food and supplies; care and caregiving; exercise (outdoors, with one other person from their household); and work and education (if it was not possible to do so from home).
On August 2, Andrews announced that Melbourne would move to Stage 4 restrictions that evening, “with stronger rules to limit the movement of people.” This included a curfew, from 8 p.m. to 5 a.m., during which time “[t]he only reasons to leave home . . . will be work, medical care and caregiving.” On that date, the premier also declared a state of disaster under section 23 of the Emergency Management Act 1986 (Vic). (Decision paras. 35–36.) On September 5, Andrews announced that some restrictions would be eased from September 13, including moving the curfew so that it would start from 9 p.m. On September 26, he announced that the curfew would no longer be in place after that night, on the basis of the advice of the chief health officer.
On September 6, Andrews announced a roadmap for easing the restrictions. On October 27, Melbourne entered step 3 of the roadmap, moving from the “Stay at Home” restrictions to “Stay Safe” rules. The state government stated that remaining restrictions would be lifted from November 8. As of November 2, the average daily cases for the previous 14 days was 1.9 for Melbourne and zero for other parts of Victoria. Previously, Victoria had reached a peak of 6,797 active cases on August 7. (Decision para. 34.)
Directions Made by Health Officials
The restrictions imposed in Melbourne over the course of the lockdown included various directions made by state health officials under section 200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act), which sets out the emergency powers that may be exercised by an authorized officer when a state of emergency has been declared under section 198. Such a state of emergency was declared on March 16, 2020. The directions included “Stay at Home directions,” as well as “Restricted Activity directions,” “Stay Safe directions,” and “Workplace directions,” among others. The original curfew was contained in subclause 5(1AG) of the Stay at Home Directions (Restricted Areas) (No 7), issued by the Public Health Commander on August 2, 2020. The modified curfew was contained in subclause 5(1AF) of the Stay at Home Directions (Restricted Areas) (No 16), issued by the deputy public health commander, Associate Professor Michelle Guiles, on September 13, 2020.
Legal Challenge to the Curfew
The plaintiff in Loielo v Giles, Michelle Loielo, owns a restaurant in an area covered by the restrictions. She argued that
Associate Professor Giles’ decision [regarding the extension and modification of the curfew] was made at the direction or behest of the Premier, Mr Daniel Andrews, and was not an independent decision. Ms Loielo also contends that the decision was unreasonable, illogical and irrational in the legal sense. Finally, she contends that the decision unlawfully limited her human rights which are recognised by the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), especially her rights of freedom of movement and to liberty. (Decision para. 5.)
The Supreme Court judge considered the evidence concerning how the decision to continue the curfew in the September 13 directions had been made, as well as the legal authority for making such a decision. He considered that
Parliament’s intention in choosing the words ‘person or group of persons within the emergency area’ in s 200 of the PHW Act was to permit the implementation of emergency powers over a large group of people, including a group as large as the population of greater Melbourne. It included the power to impose a curfew if the authorised officer considered it reasonably necessary for the protection of public health. The ordering of a curfew could only occur while the state of emergency existed. (Para. 125.)
However, he also stated that “Parliament may wish to reconsider who should exercise these emergency powers and whether their exercise should be required to take into account matters such as the social and economic consequences of their exercise.” (Para. 132.)
In terms of whether there had been a real exercise of discretion, the judge stated that,
[h]aving seen Giles give evidence and having considered the documents she was provided with and the Department discussions that she held, I am satisfied that she made the decision herself based principally on public health considerations. She explained her reasoning process clearly in her evidence. (Para. 171.)
The judge also found that Giles’ decision was reasonable (paras. 184–189), and that “[h]er conclusion that the restrictions, including the Curfew, were reasonably necessary to protect public health was not irrational or illogical or reveal any material misconception by her and could not be said to be an erroneous finding of jurisdictional fact” (para. 202.).
In terms of the human rights considerations, the relevant provisions of the Charter included section 38(1) (requiring that public authorities not act in a way that is incompatible with human rights and that they give consideration to human rights), section 7(2) (providing that rights may be subject under law only to “such reasonable limits as can be demonstrably justified in a free and democratic society”), section 12 (freedom of movement), and section 21 (right to liberty and security of person). (Paras. 209–210.) However, the judge did not consider that “the human right of liberty recognised in s 21 was directly engaged, at least so far as the plaintiff is concerned.” (Para. 217.)
Regarding the proportionality test in section 7(2) of the Charter, the judge stated that
[i]n the circumstances I have described and, keeping in mind that Victoria was in a state of emergency, I do not consider that there were other reasonably available means within the meaning of s 7(2)(e) to achieve the purpose of reducing infections. I consider that Associate Professor Giles’ evidence establishes that the Curfew was reasonably necessary to protect public health. (Para. 253.)
In terms of the second limb of section 38(1), the judge found that Giles had
adopted a public health perspective using a precautionary approach – it would have been surprising if she had done otherwise. I accept that she did consider the effect of the Curfew on human rights and the effects of it on people in Victoria – she had experienced the effects of Stage 4 restrictions, herself. Her approach was that the sooner that the spread of the virus was substantially reduced, the sooner people would be able to resume their normal lives and attend to important activities such as visiting doctors and hospitals to receive health care that they had postponed because of fear of being infected. In the context of the purpose of the power and discretion that Giles was required to exercise, I consider that she did give proper consideration to relevant human rights as required by the second limb of s 38(1). (Para. 260.)
The case was therefore dismissed. The state government has indicated that intends to seek a costs order against the plaintiff. A spokesperson for the health department said that “the department stood by the directions put in place and would continue to make decisions based on how to best protect Victorians from coronavirus.”
An associate professor at the Monash University law faculty, Luke Beck, said that
[t]his judgment confirms that the government has extraordinarily broad powers under the [Public Health and Wellbeing Act] that are subject to a test of proportionality, but that test will not be applied pedantically to second-guess expert public health advice.
More broadly, this case confirms that even in times of emergency the rule of law still applies and that governments must act in accordance with the law. The courts are still there to keep governments in line.
Additional Court Challenges to the Lockdown Restrictions
On October 14, 2020, The Age newspaper reported that a case lodged by two plaintiffs in the Supreme Court of Victoria against state public health officials was the eleventh court challenge related to the pandemic restrictions imposed in Victoria. In that case, the plaintiffs argue that “the Chief Health Officer’s stay-at-home orders burdens individuals’ freedom of political communication implied in Australia’s constitution.”
In a different case, lodged in the High Court of Australia on October 12, a “prominent Melbourne hotelier,” Julian Gerner, argued that “the restrictions on people’s movements beyond five kilometres from their homes, as well as the need to have a permit to travel to work, are a disproportionate response to the coronavirus threat and violate the implied freedom of movement in the Constitution to undertake personal, family, recreational and commercial endeavours.” Following a hearing on November 6, the Court dismissed the case, having accepted the Victorian government’s argument that no such implied right exists in the Constitution.