On 6 November 2020 the High Court of Australia dismissed cases raising objections to the COVID response in WA and Victoria- see Elizabeth Byrne, ‘High Court dismisses challenge to Victoria’s coronavirus lockdown’ ABC News (Online) (6 November 2020). Although the High Court announced its decisions on 6 November, the judges did not immediately publish their reasons. When sharing the story via Facebook, I said “I will report on the judgments if they say anything relevant to the subject of my blog”.
The High Court has published its reasons in Gerner v The State of Victoria but the reasons for the decision in Palmer’s case are yet to be published.
Rather than continue to wait, I report here on the Victorian decision in Loielo v Giles and the High Court’s decision in Gerner. I will come back to the issue of constitutional guarantees and the powers of government to respond in an emergency when the High Court publishes its reasons in Palmer’s case some time in 2021.
Loielo v Giles  VSC 722 (2 November 2020)
This was the decision of the supreme court of Victoria. This was a challenge to the 9pm to 5am curfew imposed on residents of Melbourne by the Stay at Home Directions (Restricted Areas) (No 15). These directions were signed by the defendant, Associate Professor Michelle Giles, an authorised officer and senior medical adviser in the Department of Health and Human Services on 13 September 2020.
Ginnane J said (at ):
The Curfew was a major restriction of human rights and liberties of the free people of Victoria. No instance of a curfew being imposed in Victoria by the Executive exists in living memory. Curfews are normally imposed to control civil disturbances and widespread outbreaks of lawlessness.
The unique nature of the curfew meant the case was listed for an urgent hearing. On Sunday, the day before the hearing was to commence, the Premier announced that the curfew would be lifted from the next day. ‘In those circumstances, the case commenced on the Monday as a challenge to Associate Professor Giles’ decision to direct or order the continuation of the modified Curfew on 13 September even through it had been revoked’ ().
The plaintiff was a business owner whose business was affected by the curfew. She argued (at ) that (numbers to the grounds of appeal added by me for clarity):
(1)… Associate Professor Giles’ decision was made a the direction or behest of the Premier, Mr Daniel Andrews, and was not an independent decision. Ms Loielo also contends that the decision was (2) unreasonable, (3) illogical and irrational in the legal sense. Finally, (4) 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.
This was a long judgment but in paragraphs - His Honour gave a summary. The summary is reported below, but anyone wanting to see the details of the evidence and His Honour’s conclusions will need to read the entire judgement.
(1); Was it Ms Giles’ decision?
At issue was the fact that Ms Giles signed the relevant order on the evening of Sunday 13 September but the changes and their effect was announced by the Premier at a media conference before the orders were signed. At  Ginnane J said:
… In the particular circumstances of this case, that announcement could have resulted in Giles considering that she should just follow and adopt the announcement rather than making an independent decision. Under the law, Giles, as the authorised officer, had the power to make the decision and not anyone else. That is not to say that she could not discuss the decision she was to make with Department staff and medical and other relevant officers, but she had to make an independent decision, as both parties accepted.
And at :
The importance of the person with legal authority not only making the decision, but being seen to make it, is not just a point of procedure. Far more importantly, it is about the legal principle that the person who has the legal authority to exercise extraordinary statutory power in times of emergency, in this case Giles, actually exercises it. When basic human rights such as freedom of movement are being restricted, it is particularly important that legal procedure is followed…
The nature of the various declarations were drafted by the Department and circulated to relevant stakeholders ‘So the Premier, or his office, may be aware of the proposed directions before they are signed’. The government’s case was ‘Associate Professor Giles was the decision-maker and made an independent decision although she had not been part of discussions that had led to the drafting of the Directions…’ (). Regardless of the propriety of the Premier announcing the effect of the decision before it was made, the court was satisfied that Associate Professor Giles did consider the relevant materials and did make her own independent decision to make the relevant orders. At  Ginnane J said:
Ms Loielo’s first ground, that Giles acted at Mr Andrews’ direction or behest, ultimately involves a question of fact. As previously mentioned, deciding whether Giles actually made an independent decision was complicated by the fact that on 13 September, the day when she signed the Directions, Mr Andrews had already announced, in effect, that the Curfew, as modified, would continue. Ms Loielo contended that it was implausible that Giles could make an independent decision in view of Mr Andrews’ announcement that Sunday morning. But, Giles gave detailed evidence that she did make an independent decision and explained her reasoning, I accept that she did so. Her evidence is supported by emails of the Sunday afternoon in which she discussed her consideration of the Curfew, in terms similar to her evidence given to the Court. The plaintiff’s first ground therefore does not succeed.
(2) and (3); The decision was unreasonable, illogical and irrational
At  Ginnane J said:
Grounds two and three, the unreasonable, illogicality and irrationality grounds do not succeed, as Giles’ decision to continue the modified Curfew was within the range of reasonable decisions that could have been made.
(4); The Charter of Human Rights
At  Ginnane J said:
Ground four raised issues under the Charter about whether Ms Loielo’s human rights to freedom of movement and to liberty had been unlawfully limited by the Curfew. The Curfew limited her rights to freedom of movement and those of about 5 million other people living in the Restricted Areas. The legality of the limitation and restriction then depends on whether Giles’ evidence established that the restrictions or limitations were reasonably proportionate to the objective of protecting public health. Ultimately, I have decided that, taking into account the purpose of the emergency powers and the temporary duration of the Curfew, that Giles’ evidence has established that the limitation of, and restrictions on, human rights caused by the Curfew were, at least in the case of the plaintiff, proportionate to the purpose of protecting public health. Giles’ evidence established that in the emergency circumstances presented by the second wave of the pandemic, that there were no other reasonably available means to achieve that purpose… I am also satisfied that Giles gave the relevant human rights real consideration in approving the Directions. Ground four is therefore not established.
In short, the court found that although the curfew did restrict the human rights of Victorians the decision was an independent decision made by Associate Professor Giles, the decision to impose a curfew was authorised by law and was a reasonable response (which does not mean it was the only reasonable response) to the threat posed by COVID-19 based on the material before Associate Professor Giles. Whilst the curfew did restrict human rights protected by the Victorian charter, ‘The Charter recognises that human rights are not absolute and may be limited, according to the standard of demonstrable justification…’ () and that ‘Associate Professor Giles’ evidence establishes that the Curfew was reasonably necessary to protect public health’ ().
Gerner v The State of Victoria  HCA 48 (10 December 2020)
This is the first case from the High Court to have the reasons for decision published. The decision is a unanimous decision of Kiefel CJ, Gageler, Keane, Gordon And Edelman JJ. This case also dealt with the curfews imposed on Victorians under the Public Health and Wellbeing Act 2008 (Vic). The plaintiff, Mr Gerner was a restaurateur in Melbourne who alleged he had suffered a significant loss of earnings as a result of the lockdown and therefore had standing to challenge the decision. Mr Gerner (at )
… commenced proceedings in the original jurisdiction of this Court seeking declarations that s 200(1)(b) and (d) of the Act and the Lockdown Directions made thereunder are invalid as an infringement of a guarantee of freedom of movement said to be implicit in the Constitution.
(That the case commenced in the court’s original jurisdiction means it began in the High Court, it did not start in a lower court and end up in the High Court as an appeal from an earlier decision).
It was agreed (at ) that to determine the matter, the High Court had to answer this question:
“Does the Constitution provide for an implied freedom for the people in and of Australia, members of the Australian body politic, to move within the State where they reside from time to time, for the purpose of pursuing personal, recreational, commercial, and political endeavour or for any reason, free from arbitrary restriction of movement?”
The court said that the answer to that question is ‘no’. A summary of the judgment, published by the High Court, says:
The High Court held that no freestanding guarantee of freedom to move wherever one wishes for whatever reason is implicit in the Constitution on any of the three grounds contended for by the plaintiffs. First, the Court held that such a limitation on the legislative and executive power of the Commonwealth and States could not be implied from the fact of federation. Rather, the legal nature and effect of the federation established by the Constitution can be known only from the terms and structure of the Constitution itself; those terms and that structure provide no support for the limitation on power for which the plaintiffs contended. Secondly, the Court held that while legislated limits on movement that burden political communication may infringe the implied freedom of political communication, a limit on movement which does not have a political character will not. Thirdly, the Court held that s 92 of the Constitution does not imply a freedom of movement of the kind for which the plaintiffs contended. Such an implication would render otiose the delineation clearly drawn by the text of s 92 between protected interstate intercourse and intrastate intercourse which it does not purport to protect. It would also attribute to the text a meaning rejected by the framers of the Constitution.
Interesting cases – I’m interested in exploring the impact a vaccine has on what is considered a reasonable response to protecting public health.
We appear to have vaccines that are effective against COVID-19 and the current limitation is the level of vaccination in the community.
At what point in the future are lockdowns no longer a reasonable response and proportionate to the objective of protecting public health?
In other words, like many other infectious diseases, while we may lock down localised hot spots of activity (through contact tracing etc) , is there a point where it becomes unreasonable to impose restrictions across a wider area?
Particularly if the front line workers and most vulnerable members of society have been vaccinated?
That’s what we would call a question of fact, not law. There is, or will be, ‘a point where it becomes unreasonable to impose restrictions across a wider area’ but when we get to that point requires not an analysis of the but the scientific basis for decisions made by authorised decision makers.
Are these decision makers obliged to consider expert guidance issued by the World Health Organisation related to health emergencies of international concern (PHEIC) as part of the scientific basis for their decisions?
Not implying this would be the only source of expert advice however WHO has issued interim guidance on ‘Considerations for implementing and adjusting public health and social measures in the context of COVID-19’.
Or can they just rely on State based evidence?
What decision makers need to consider is set out in legislation and no, it’s not that specific. But those sort of international guidelines could be relevant in any challenge to a decision to help argue that decisions are or are not reasonable and proportionate.