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.