Today’s correspondent asks:
In light of this evening’s revelation (reported by Sky https://youtu.be/I-KK-f-TVwc @7:35 and https://youtu.be/r6VozdBC89I @8:30) that the imposing of the curfew in Victoria (pursuant to s200, Public Health and Well-being Act, https://www.dhhs.vic.gov.au/sites/default/files/documents/202008/Stay%20at%20Home%20Directions%20%28Restricted%20Areas%29%20%28No%2014%29%20.pdf at [5(1AF)]) wasn’t the idea of the chief health officer I’d like to read your opinion on the legality of the directive in relation to the curfew.
The Premier seemed to confirm today the curfew was for “law enforcement” purposes. It appears to me the Government having no avenue to legally apply these curfews, chose the Chief Health Officers directive as the legal vehicle to achieve their goal, contrary to the purposes of the Act.
It follows that the curfew isn’t “necessary to eliminate or reduce the risk to public health -reasonably necessary to protect public health”, and therefore likely illegal?
As I’ve noted elsewhere this blog is about the law. The law applies to facts and I cannot test those facts. The relevance of that statement will become evident below.
The Public Health and Wellbeing Act 2008 (Vic) s 199 says:
(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 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.
The list of emergency powers is set out in s 200 and the order imposing the curfew is said to be made pursuant to s 200.
The Chief Health Officer has to be satisfied (emphasis added) ‘that it is necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health’. Further he or she has to be satisfied that ‘for the purpose of eliminating or reducing the serious risk to public health’ he or she should authorise an authorised officer to exercise relevant emergency powers. The task of the Chief Health Officer, therefore, is to ‘authorise’ authorised officers to take action under s 200; it is not the Chief Health Officer’s role to make those directions or to be personally satisfied that each power that an authorised officer chooses to exercise is necessary.
Section 200 provides that one of the emergency powers that an authorised officer may exercise is a power to ‘restrict the movement of any person or group of persons within the emergency area’ (s 200(1)(b)). That subsection does not say that the decision must be ‘reasonably necessary to eliminate or reduce a serious risk to public health’ or ‘reasonably necessary to protect public health’ (see s 200(1)(a) and (d) respectively).
The public health order referred to was not made by the Chief Health Officer, it was made by ‘Dr Finn Romanes, Deputy Public Health Commander’ who said that he considers ‘it necessary to eliminate or reduce the risk to public health – and reasonably necessary to protect public health’ to make the directions set out in that order including the imposition of the curfew. I assume Dr Romanes is an appropriately appointed ‘authorised officer’.
The first thing to note therefore is that it does not matter whether the Chief Health Officer thinks that the curfew is ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’. The issue is whether Dr Romanes holds that opinion.
The Premier said that making that order was to make it easier for police. That is not unreasonable- and is the cause of grief for many motorists. People want to argue that speed limits are simply revenue raising because police issue infringements when it is early morning, no other cars on the road, perfectly safe. But having a clear rule ‘the speed limit is 80km/h’ is something that everyone can understand, is measurable and consistent. It avoids the argument ‘but it was safe’. It may not be necessary in those terms for road safety, but it’s easy to enforce.
The Chief Health Officer and the Deputy Public Health Commander may both accept that the restrictions set out in the Stay at Home Directions (Restricted Areas) (No 14) without the curfew would meet the public health needs. But there is a whole of government response and no doubt they are, or should be, discussing these issues with their counterparts in other parts of the Victorian government and between Ministers. If the police commissioner says ‘we can devote resources to the enforcement but between 20:00 and 05:00 our resources are more limited’ then that is something the Deputy Public Health Commander could and should take into account. He or she may form the view that the various reasons that permit people to be out and about are less relevant during the curfew hours (noting that there are still many permissible reasons listed in paragraph 1AF that allow a person to be out during the curfew hours). He or she may determine that given the states resources, the curfew hours are a way to make the orders effective.
Now we return to my original statement that neither I, nor Sky, can test the relevant facts. A grab from a media conference or interview with the person who did not make the direction, does not give the context. A person could elect to challenge the direction on the basis that it was ultra vires if the Deputy Public Health Commander did not, or does not, consider that the restrictions set out in the Stay at Home Directions (Restricted Areas) (No 14) including the curfew in 5(1AF) are ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’. To do that one would need to get evidence and media grabs are not evidence; if they were, judges would just watch the TV instead of listening to witnesses. In an application for a declaration that the order was ultra vires one would need to cross examine Dr Romanes as to his state of belief and how he formed that belief. One would need to look over the minutes of meetings of the officials involved and the advice received from across the whole of government. Because of that, and because I can see that it might be the case that Dr Romanes may have considered that whilst a curfew as such was not necessary, it was necessary to make the directions effective given all the circumstances including the states enforcement resources, it is impossible to reach a conclusion that the curfew is or is not ultra vires (ie beyond power). That depends on facts, that I cannot test.
In any event I would expect that the courts would give a great deal of latitude to the executive government in circumstances like this. If Dr Romanes gave evidence to the effect that he did genuinely believe that the directions were ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’ even if that belief was based in part on advice that it would be easier to enforce, and therefore more effective, with an 20:00-05:00 curfew, then a court would be unlikely to find that the directions, or part of them was ultra vires.
I think Ramones order is an epic failure for the following reasons
1. Secondary measure and remoteness. The argument seems to be that Ramones might believe the order is necessary to assist with another order that he believes is necessary. That is, the order itself is not needed. But it helps police another order. This chain of impacts is a bridge too far. Ramones needs evidence for each measure. Then he would need evidence for evidence of the value of enhancing enforcement of the first one. It is too remote.
2. The blind acceptance of policing as a measure and assistance to them as being necessary. What if police said it would help to have access to telephone tapping and webcams? He becomes simply too easily a lever of a police state. He should resist this.
3. Ramones orders must be based on evidence (s5) and proportionality (s8)
CHO has been a science-free zone. He has produced and published nothing out of this episode. Of course he could and must. The onus is on him to have evidence. As things progress knowledge should grow. For example, CHO has 18000 odd traced cases. A factor analysis on these would reveal common risk factors. Among them would be pointers toward what is risky and worth intervention and what is not. For example, is there are time of day concentration of transmission that it is owed a control (s5 evidence). My view is that there is virtually no prospect that such a thing would be true
4. We could move on to general rule making as a control measure. The principle is that following rules deceases risk and breaking them increases risk. True? As in swimming inside the flags involves few or no drownings but swimming outside them involves many. Something like 10,000 fines have been issued. None of them are tested. But let’s call the finees “rule breakers”. We know who they are. We know who has coronavirus. If the rule theory is sound then rule breakers would have a higher infection rate than the population. CHO could do this and must. I suspect it would show that the general principle of the utility – and hence legality – of the rules as health measures would fail.
5. I was wondering today if Dr Ramones was authorized to make this order and sent the question to the CHO. No response yet.
I don’t really understand this comment. I cannot make any sense out of point (1). With respect to point (2) who knows how the good Dr responds to police. We don’t actually know anything about the advice that led to this direction. As for point (3) section 8 doesn’t mention proportionality. There is no reason why the Chief Health Officer ‘must’ publish out of this event, but certainly having people doing research on the outbreak will be useful. I suspect on point (4) that following these rules is meant to reduce the population risk. The evidence in support would be if the number of infections generally is falling, but I’m not a scientist or an epidemiologist so I can make no useful comment. As I’ve said this blog is about the law, not the science. As for (5) I have no idea why people think if they write to the premier or chief health officer they’ll get an answer. I would imagine you need to make an application under the Freedom of Information Act 1982 (Vic).
(1) It is the problem with Ramones determining that a rule about a rule is necessary for health. The idea seems to be that the curfew would not be necessary for health. But would be an aid to a rule about health. It creates a problem being a rule about a rule in terms of it being robustly necessary
(2) The doctor, I see no sign that he is good, should not primarily respond to police – that is the point. For one – police have no skills or experience to judge a health measure and also zero authority to even implement enforcement of the PHWA.
(3) A typo – section 9.
(4) There is a demand on the CHO to produce science. Evidence is a key element. Given the gravity of the orders it is beholden on him to produce evidence.
Law v science – law is only an articulation of useful things in reality. The two must have a large overlap.
(5) I have been ordered by someone to do something. I want to know if he has the authority. If he does not, I have no need to follow the order. How else would I know if not by asking?
We’re just guessing here. My thesis was perhaps he thought they needed the restrictions without the curfew but were told that a curfew would help the agency charged with enforcing it so that the curfew became necessary for public health. Of course I don’t know if that is what happened so I just don’t understand your ‘rule about a rule’ comment. Who knows if he ‘primarily responded’ to police. Sure law and science overlap, there has to be science to justify the actions. As I’ve said before:
With respect to the current COVID pandemic this blog is not the place to debate the science. It is a law blog not a blog on epidemiology or virology. I accept that there are such things as viruses; there is a virus called Severe acute respiratory syndrome coronavirus 2 or SARS-CoV-2; this virus causes a disease called COVID-19 and that COVID-19 is more than the ‘flu. I accept that the governments are acting on informed health advice and the Prime Minister, Premiers and Chief Health Officers believe in the need for the various control measures that are being imposed. If those assumptions are wrong, then of course the legal consequences will be different but there is no value writing to me to dispute those factual issues. The factual issues are out of scope for this blog.
And if you get prosecuted you can put the Crown to their proof; but I still cannot see why you would expect that the CHO would reply to your letter. How else would you know? Make an FOI application.
” I still cannot see why you would expect that the CHO would reply to your letter.”
Just because I asked. And a lot people do things because people ask. Let’s see.
Further, the copy of my letter went to an assumption in your article:
“I assume Dr Romanes is an appropriately appointed ‘authorised officer’.”
So I thought you might have been interested.
Firstly, great resource, thanks for the useful information and enabling the discussion.
Just to try and pick up from John’s ‘rule for a rule’ comment.
Section 200(1)(d) PHWE allows the authorised officer (AO) to ‘give any other direction that the authorised officer considers is reasonably necessary to protect public health.’.
I think the point trying to be made was this; It could create domino effect of directions where the initial direction may be lawful and ‘reasonably necessary’ under the Act but a latter one is only so because of the preceding direction(s), as opposed to if it was viewed in isolation under the Act. I guess they can be colloquially titled ‘derivative directions’.
The questions are, firstly, can a direction be deemed ‘reasonably necessary’ where it relies on the existence of another direction to become ‘reasonably necessary’? and secondly, if the answer to the first question is yes, what is the limitation, if any, which exist?
If there is no limitation it is effectively a form of absolute power.
Hi – re changes to the Public Health and Wellbeing Act (VIC) – I have been trying to find out a) what changes were asked for in the original bill, b) what changes (if any) have actually been made and c) what this means in practical application/sense for the government currently in power, policing and enforcement and individual people?
The above question has been prompted by some commentary (below) that I read, however, do not understand what it means for me, the government and the police.
“On Monday, September 1, amendments to the Public Health and Wellbeing Act 2008, debated as the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Bill 2020 was eventually passed in the Upper House without amendments.
The Bill allows for an extension of the Victorian State of Emergency for an additional six months — but only in relation to a COVID-19 emergency and has lowered the threshold in which the CHO can authorise enforcement of directions, changing the trigger from “necessary” to “reasonably necessary”.
This should make it simpler for CHO Directives to be enforced more quickly during any future COVID-19 outbreaks.”
In addition, your commentary and the contributions being made through individual comments/feedback/observations are informative and easy to understand. Thank you
You can read both the Bill as introduced to the Parliament, and the Bill as passed on the website of the Victorian Parliament – see legislation.vic.gov.au/bills/public-health-and-wellbeing-amendment-state-emergency-extension-and-other-matters-bill-2020. Both the Bill-as-introduced and the Bill-as-passed allows for an extension of the state of Emergency from 6 months to 12 months. I do understand that the government originally wanted longer but that must have been negotiated before the Bill was introduced, not as it went through the Parliament.
Without going through the Bill chapter and verse, it means that the Covid state of emergency doesn’t have to come to an end today, 13 September, but can extend for a further 6 months to March 2021. For an explanation of what it means for you, see https://www.abc.net.au/news/2020-09-02/victorias-state-of-emergency-extension-passing-upper-house/12618442
Hi. The police are quoting that they have been given authority by the Minister for Police and Emergency Services under Section 24 (2)(a) of the Emergency Management Act 1986 to be given authority to act as Authorised Officers under the Health and Wellbeing Act 2008. This State of Disaster Declaration 2nd August 2020 is blank however in the govenment gazette. I have two questions 1. Do the Minister’s directions and any laws she is suspending under Section 24 of the Emergency Management Act have to be put in as an official direction in the gazette? 2. Is Victoria still declared a State of Disaster at this point or has it expired? Thank you
The Emergency Management Act 1986 (Vic) s 23(4) says
‘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.
The declaration of a state of disaster is available via the Government Gazette: see
• http://www.gazette.vic.gov.au/gazette/Gazettes2020/GG2020S383.pdf#page=1 (the original declaration of 2 August)
• http://www.gazette.vic.gov.au/gazette/Gazettes2020/GG2020S445.pdf (extending the state of disaster until 13 September 2020); and
• http://www.gazette.vic.gov.au/gazette/Gazettes2020/GG2020S461.pdf (extending the state of disaster until 11 October 2020).
The answer to the second question is, therefore that Victoria is still subject to a declared State of Disaster.
With respect to the first question, when it comes to giving directions or taking other action under s 24 there is no statutory requirement to publish those directions nor is there any prescribed for the directions are required to take. I have noted elsewhere (see Covid restrictions under a state of disaster (August 29, 2020) ) that we can see all the various orders made under the Public Health and Wellbeing Act on the DHHS website but finding orders made under the State of Disaster are less easy to find.
Helpfully, casuscalamitis wrote a comment on that earlier post. He said
The good news is that the Victorian legislation requires a report to be tabled in parliament on what powers are exercised under both the State of Emergency and State of Disaster, which provide further detail. As far as I’m aware this is a unique requirement in Victoria, not found in any other jurisdiction’s legislation.
He provided a link to the report on the State of Disaster but that link is now out-of-date, The report can now be found here: https://www.parliament.vic.gov.au/file_uploads/Finalised_-_Parliamentary_Report_on_State_of_Disaster_-_for_lodgement_t7NC0GDv.pdf. That report contains a summary of actions taken and the various Declarations made by the Minister. It stands to reason however that a report such as this is only available after the event. It would certainly be helpful if those declarations were published in an accessible form as soon as they are made and as far as I can determine, that has not been the practice during the current disaster.
Isn’t the second extension of the State of Disaster declaration illegal?
The Act says there can be “another”
I don’t think it envisages a chain
Plainly it is a level above state of emergency in impact (although not part of the same arrangements)
By comparison the state of emergency was limited to five extensions (now 11)
The more impactful, more democracy-denying possibility of the state of disaster would logically have a greater restriction
I think the fair reading is that the Act never contemplated a never- ending chain of “states of disaster”
Such a reading invites permanent executive rule by the Premier
I doubt it’s illegal. It would be imprudent to believe a disaster is necessarily limited to 2 months. Further s 23(6) doesn’t talk about an ‘extension’ but about another declaration. One is made, before it ends, ‘another’ (but new) one is made. Before it ends ‘another’ is made. I don’t see how you can read s 23(6) as being limited to only one ‘new’ declaration.
Thank you for that information. That helps make more sense of everything.
“The first thing to note therefore is that it does not matter whether the Chief Health Officer thinks that the curfew is ‘necessary to eliminate or reduce the risk to public health’ or ‘reasonably necessary to protect public health’. The issue is whether Dr Romanes holds that opinion.”
I disagree. Only s 200(1)(d) requires the authorised officer to hold that opinion. The curfew clearly comes under s 200(1)(b) as a restriction on movement and for that reason could not be imposed under s 200(1)(d).
While the authorised officer can exercise the power under s 200(1)(b), the lack of any state of mind requirement (bearing in mind the various principles contained in Part 2 of the Act) as a precondition for the exercise of this specific power leads me to conclude that the CHO must authorise the exercise of the powers set out in s 200(1)(a) – (c) under s 199(1)(b) (and to form the necessary belief) in a given instance and not in some wholesale manner.
Given an authorised officer need not be a medical practitioner (unlike the CHO) and considering some of the enforcement-type powers given to authorised officers under the Act (see, for example, the powers set out in Part 9), the distinction I have drawn between s 200(1)(a)-(c) (being reserved to specific CHO authorisation) and s 200(1)(d) (being a power to likely designed for more minor incidental enforcement-related directions and more appropriate to an authorised officer) makes sense.
A fair comment, I was being a bit lazy. I quoted the state of mind required under s 200(1)(a) and 200(1)(d) and did not get into the debate about the state of mind required for 200(1)(c). To clarify therefore, the list of emergency powers include a power to (emphasis added) ‘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 (s 200(1)(a)) and a power to ‘give any other direction that the authorised officer considers is reasonably necessary to protect public health (s 200(1)(d). The list also includes a power to ‘restrict the movement of any person or group of persons within the emergency area’ (s 200(1)(b)).
The Chief Health Officer has to believe ‘that it is necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health’ (s 199(1)(b)). Having granted the authorisation it is up to the authorised officer to determine which of the emergency powers listed in s 200 to exercise. If he or she is going to exercise a power under s 200(1)(a) or s 200(1)(d) then he or she must hold the necessary belief (ie that it is ‘reasonably necessary to eliminate or reduce a serious risk to public health’ or that it is ‘reasonably necessary to protect public health’ respectively. There is no specific state of mind or state of belief set out for s 200(1)(b).
I don’t see however how that leads to the conclusion that ‘as a precondition for the exercise of this specific power … the CHO must authorise the exercise of the powers set out in s 200(1)(a) – (c) under s 199(1)(b) (and to form the necessary belief) in a given instance and not in some wholesale manner.’
It is the authorised officer that is authorised to exercise the emergency powers. Subject to any limitation in his or her authorisation the discretion is theirs. Section 200(1)(b) cannot be read as being completely arbitrary, given the purposes of the Act there would have to be some belief that the action was related to public health so one could infer that the state of mind would have to be akin to that set out in s 200(1)(a) or (d) or s 199(1)(b) ie that the orders made are related to an necessary for the elimination of or reduction of a serious risk to public health and in particular the risk encompassed in the declaration of a public health emergency. But it still the case that it is the state of mind of the authorised officer and the evidence before him or her that is the relevant test.
Thank you Michael, this is very helpful.
It may surprise you to learn that your above comments are the quickest and easiest place to locate (via Google) the gazetted extensions to the state of disaster. Unlike the CHO’s directions (which are posted to the DHHS website shortly after coming into effect) the declarations of a state of disaster require a laborious search into the gazettes themselves. Which you have saved me time and effort in locating. So my thanks are genuinely heartfelt.
According to media reports, the Chief Health Officer has publicly disclosed that the curfew decision was not based on his advice, nor that of health officials. It has also been reported in the media that the Premier has said the curfew decision is “a decision that I’ve made” and that his government is “free to go beyond” advice it receives.
This begs the question of whether the statutory decision maker unlawfully acted under dictation in making the curfew decision. If so, there is also the question of whether she did in fact undertake the required assessment of whether the curfew restrictions are reasonably necessary to protect public health.
Governance is perverted. The Premier boldly admits that it is perverted. He says he is the puppet master, the ghost writer for @victoriancho. He is the CHO basically.
There isn’t a lot of case law on this, is there. I find Troughton v DCT which has “On the state of the evidence, I could not find that Mr Trewin was so overborne by the strength of the expressed opinions of others, or so preoccupied with doing the bidding of the Assistant Commissioner, to render the decision one which was not effectively made by him individually.”  FCA 18, . Seems like a high threshold to prove in cross-examination that this was a non-decision.