this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Update on access to LIV member facilities.

For details, see our 

COVID-19 Hub
Select from any of the filters or enter a search term
Calendar
Calendar

Human rights and administrative law: Imposing a COVID-19 curfew

Human rights and administrative law: Imposing a COVID-19 curfew

By Vanessa Twigg

COVID-19 Human Rights 

0 Comments


Even during a pandemic, an administrative decision maker must exercise powers according to law and take human rights into account. The case of Loielo v Giles provides guidance.

Snapshot
  • Administrative decision making by state and local government generally affects the lives and livelihoods of some Victorians.
  • Administrative decisions made under the PHW Act by the Chief Health Officer and delegates during the COVID-19 pandemic affected the lives and livelihoods of all Victorians directly and immediately.
  • The decision by the Supreme Court on 2 November 2020 in Loielo v Giles in relation to the curfew enables us to identify the key elements of effective administrative decision making.

Administrative decision makers make decisions every day that affect people’s lives. Often these decisions only affect the lives of a few. During 2020, a series of Directions made under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act), had, and still has, a direct and immediate impact on the daily lives and livelihoods of all of the citizens of Victoria.

The imposition of a curfew from 8pm to 5am on all people living in “greater Melbourne” to combat a second wave of the COVID-19 pandemic was one such decision. On 13 September 2020, Associate Professor Michelle Giles (Giles), an authorised officer and senior medical adviser in the then Department of Health and Human Services (Department), signed Stay at Home Directions (Restricted Areas) (No 15) (relevant Directions) that contained a modified curfew from 9pm to 5am.

Michelle Loielo, one of the affected residents of greater Melbourne, sought a judicial declaration that the modified Curfew Direction was unlawful and invalid on judicial review grounds – “a step too far”.1

Loielo v Giles [2020] VSC 722 (Loielo v Giles) shines a spotlight on administrative decision making and the issues that confront an administrative decision maker.

The decision in Loielo v Giles

Ms Loielo challenged Giles’ decision on several grounds:

  • her decision had been made at the direction or behest of the Premier, and was not an independent decision
  • the decision was unreasonable, illogical and irrational in the legal sense
  • the decision unlawfully limited her human rights under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter), particularly her rights of freedom of movement and to liberty.2

Ginnane J held that Giles had made an independent decision and that this decision was not unreasonable, illogical or irrational as her decision to continue the curfew “was within the range of reasonable decisions that could have been made”. With respect to the Charter issues, he found 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”.3

He was also very much aware that he was judicially reviewing a decision during a declared state of emergency, but held that “[e]ven in an emergency, Victoria is a society of laws and any executive decrees must be made in accordance with the law”.4 That is the lens through which he considered Giles’ decision.

What do you need to be an effective administrative decision maker?

An effective administrative decision maker needs:

  • the power to make the decision
  • to have been properly appointed, delegated or authorised and be appropriately qualified and skilled
  • to have carried out all the required steps.

The power

You must have first and foremost the power to make the decision and know what it is.

You must identify:

  • the source of that power
  • any preconditions for its operation 
  • its scope and limitations.

Source of power

In the case of Loielo v Giles, the relevant source of power was in the emergency powers under s200 of the PHW Act.

Preconditions for operation of the power

These emergency powers are enlivened by the declaration of a state of emergency by the Minister for Health under s198(1) of the PHW Act. The Minister can only make the declaration:

  • if a state of emergency has arisen out of any circumstances causing a serious risk to public health
  • if acting on the advice of the Chief Health Officer
  • after consulting the Emergency Management Commissioner under the Emergency Management Act 2013 (Vic).

To make the declaration effective, the Minister had to comply with the requirements of ss198(5)-(8A) of the PHW Act.

The Minister made the initial declaration on 16 March 2020 acting on advice from the Chief Health Officer, Adjunct Clinical Professor Brett Sutton (Sutton). The declaration covered an “emergency area” that encompassed the whole state of Victoria. The declaration was subsequently extended in accordance with s198(7)(c) requirements so it was still in force when Giles made the relevant Directions.

Scope and limitations of the power

Giles’ power to impose a curfew is under sub-s200(1)(b) of the PHW Act and enabled her to issue directions to restrict the movement of any person or group of persons within the emergency area. Giles’ direction was limited to those people within part of the emergency area, greater Melbourne.

Ginnane J held that the emergency power under s200(1) covering a “‘person or group of persons within the emergency area” . . . 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”.

He considered that the PHW Act contemplated the need to act quickly to combat public health emergencies and that an interpretation of the words “group of persons” must be adopted that enables that purpose to be achieved. Rapid spread of the virus at the time when the Directions were being made potentially affected all of greater Melbourne and so its population was a relevant group to whom the emergency powers could be applied.

The decision maker

To be the “right person” to exercise a particular power, you need to be:

  • qualified
  • properly appointed 
  • properly authorised to exercise the particular power.

To exercise the s200(1)(b) emergency power, Giles needed to be an “authorised officer” within the meaning of s2(1) of the PHW Act and properly authorised.

Qualified

You may not need to have specific qualifications or experience to hold a position or exercise particular powers. However, Giles was required to have certain qualifications and experience to be an authorised officer and exercise emergency powers.

Under s30 of the PHW Act, only the Secretary of the Department or their delegate can appoint an authorised officer. The appointer must be satisfied that a person “is suitably qualified or trained to be an authorised officer” (s30(2)).

Giles is an infectious diseases physician with extensive practical experience in public health and infectious diseases. She had joined the Department as a senior medical adviser and worked in the Case, Contact and Outbreak Management Team as an outbreak manager. Her role required her to understand and summarise detailed daily data about COVID-19 cases, contacts and outbreaks. She was, therefore, qualified to be appointed as an authorised officer.

Appointed and authorised

Generally, you will need to be employed or engaged by the relevant government department or agency. If this is not done properly, then you will not be able to exercise any powers, as occurred with Murray Wilcox QC in R v Ashby [2010] VSC 14 whose engagement as a delegate of the Director of Police Integrity was found to be invalid, because his delegation had been signed before he was sworn in by the Director.

Giles had to be employed under Part 3 of the Public Administration Act 2004 (Vic), as well as having the requisite qualifications or training to be appointed as an “authorised officer” under s30 of the PHW Act. Ginnane J accepted that she was employed by the Department under Part 3.

She was subsequently appointed as an authorised officer by Sutton, delegate of the Secretary,8 on 11 September 2020, two days before she made the relevant Directions.9

In order to exercise the emergency powers, Sutton also authorised Giles on the same date under s199(2)(a) of the PHW Act.10 He only has the power to do this if there is (a) a state of emergency and “(b) the Chief Health Officer believes that it is reasonably necessary to grant an authorisation under this section to eliminate or reduce a serious risk to health” (s199(1)(b)).

The right person?

If you are properly appointed and authorised to exercise a power or make a decision, then you can exercise that power. However, it is a good idea for your organisation to have policies and procedures that identify who should be authorised and why.

Although Ginnane J found that Giles was properly appointed and authorised to make the relevant Directions, he had reservations as to whether she was the “right person” to make decisions in an emergency “to restrict or remove basic liberties”, rather than the Chief Health Officer himself.11 

He also expressed concerns that it was unclear why the Chief Health Officer did not make the relevant Directions and that no document could be produced to explain the Department’s organisational structure concerned with exercising emergency powers.12 

Making the decision

Now you are ready to make your decision and exercise a power. You need to:

  • identify the particular decision making power
  • confirm that it can be made or used for your purpose
  • identify preconditions for exercising the power
  • identify what information you need and from where you are going to get it.

You also have to be prepared to make an independent decision even under pressure of time and from your managers.

Is the particular decision-making power fit for purpose?

Under s200(1)(b) of the PHW Act, Giles exercised an emergency power to restrict the movement of any person or group of persons within the emergency area. The Court confirmed that it was fit for the purpose of imposing a curfew to restrict the movement of people within the greater Melbourne area.13

Preconditions for exercising the power

Before exercising this power, Giles also needed to be satisfied that the making of relevant Directions was necessary to eliminate or reduce the risk to public health and reasonably necessary to protect public health. She also had to ensure that she gave regard to the guiding principles in Part 2 of the PHW Act and applied s38 of the Charter.

She told the Court that her professional experience had made her realise the difficulty in “weighing the impacts of public health measure [sic] on specific individuals, business and communities against the impacts on the broader community of individuals if the measure is not taken”.14 

The most relevant guiding principles in this case were:

  • section 5 – the principle of evidence-based decision making (most effective public health and wellbeing interventions should be based on available, relevant and reliable evidence)
  • section 6 – precautionary principle (lack of full scientific certainty should not be a reason for postponing measures to control a public health risk that poses a serious threat)
  • section 7 – principle of primacy of prevention (prevention of disease is preferable to remedial measures)
  • section 9 – principle of proportionality (decisions should be proportionate to the public health risk).

Giles also knew that she had to give proper consideration to relevant human rights in deciding to issue the Directions and act in a way that was compatible with human rights prior to issuing the Directions.

What information did she collect and from whom?

Giles relied on specific data and experience gathered in her Departmental role and her prior knowledge and experience in her career in infectious diseases and public health. She specifically relied on a COVID-19 intelligence briefing by the Department’s Public Health Intelligence Team.15 She also had Departmental legal advice on her s38 Charter obligations16 and “took a precautionary, or careful and considered approach” to determining whether the restrictions were proportionate to the risk of COVID-19.17

She also sought Sutton’s views on the public health rationale of the curfew,18 as well as having discussions with the Department’s Policy Team and its lawyers.19 

Independent decision made under pressure

“When a power or discretion is given by statute to a particular officer, that discretion must be exercised by that person and must be their own decision. The officer cannot act at the direction or behest of another”.20

However, Giles was entitled to inform herself and discuss her proposed decision with other Departmental staff, medical and other officers. 

Ms Loeilo’s submission was that Giles was just acting under the direction or behest of the Premier who had announced the extension and modification of the curfew at a media conference on the morning of 13 September before Giles had made the relevant Directions. 21

Giles responded:

“Put simply, the decision to make the Directions was mine and mine alone. No one forced me to make that decision. No one directed me to make that decision. I always felt completely free to make what I regarded to be the right decision from a public health perspective and that is what I did”.22 

The Court was satisfied on the basis of her evidence that she had made the decision herself.23

There was also concern that Giles had only had two days to make her decision. Her evidence was that “most of [her] waking hours on 12 and 13 September were spent considering information relevant to the making of the Directions and weighing up competing considerations after receiving the documents about the previous directions”. 24

However, the Court found that her decision was in part based on data she had received over the previous six weeks and she had been thinking about her decision since the previous week when she was asked to stand in for Dr Finn Romanes.25


Vanessa Twigg is the principal legal adviser at the Victorian Ombudsman practising primarily in administrative law and the law associated with coercive powers investigations. She is a member of the LIV’s Government Lawyers Section Executive and Administrative Review and Constitutional Law Committees.

  1. Ginnane J, Loielo v Giles [2020] VSC 722, at [1].
  2. Note 1 above, at [5].
  3. Note 1 above, at [19]-[21].
  4. Note 1 above, at [15].
  5. Note 1 above, at [125].
  6. Note 1 above, at [127].
  7. [2010] VSC 14. 
  8. The Secretary can delegate their powers, duties or functions under the PHW Act (s19(1)).
  9. Note 1 above, at [50]-[51], [131].
  10. Note 1 above, at [52].
  11. Note 1 above, at [130]-[131].
  12. Note 1 above, at [131].
  13. Clause 5(1AF) of the Stay at Home Directions (Restricted Areas) (No. 15).
  14. Note 1 above, at [76].
  15. Note 1 above, at [70].
  16. Note 1 above, at [226].
  17. Note 1 above, at [98].
  18. Note 1 above, at [71], [165].
  19. Note 1 above, at [165].
  20. Note 1 above, at [148].
  21. Note 1 above, at [157].
  22. Note 1 above, at [164].
  23. Note 1 above, at [171].
  24. Note 1 above, at [63].
  25. Note 1 above, at [259].

Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment