RESTAURANT OWNER QUESTIONS THE VALIDITY OF A STAY AT HOME DIRECTION IMPOSING A 9-5 CURFEW

Loielo v Giles [2020] VSC 722 (2 November 2020)

This case involves the plaintiff questioning the validity of the Stay at Home direction imposing a curfew within Melbourne.

Facts:

This proceeding concerns the legality of a 9:00pm to 5:00am curfew, binding all people living in ‘greater Melbourne’, imposed by a Direction made to combat the COVID-19 pandemic. It was contained in the 'Stay at Home Directions' which was one of eleven Directions, signed by the defendant, Associate Professor Michelle Giles, an authorised officer and senior medical adviser in the Department of Health and Human Services. It was made under statutory powers exercisable only when a State of Emergency is in effect in Victoria. The effect of the Curfew was that residents of the Restricted Areas could not leave their home between those hours, except for specified purposes under penalty of a significant fine.

The plaintiff, Ms Michelle Loielo, owns a restaurant in Rosebud West and says that her business income was drastically reduced following the Stay at Home Directions and since the introduction of the Curfew. Ms Loielo’s challenge to the Curfew Direction commences with the argument that Associate Professor Giles’ decision 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 especially her rights of freedom of movement and to liberty.

The defendant’s defence to Ms Loielo’s case was that 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. Giles gave evidence that she had been told that if she did not approve the Directions they would be ‘escalated’ to a more senior person in the Department for their decision. Giles gave detailed evidence that she did make an independent decision and explained her reasoning.

Issue: Is the Stay at Home direction of imposing a curfew valid?

Law:

• Public Health and Wellbeing Act 2008 ss4, 5, 6, 7, 8, 9, 10, 11, 111, 197, 198, 199, 200.
• Charter of Human Rights and Responsibilities Act  ss 7(2),  12,  21,  38,  39

Analysis:

Ms Loielo’s first ground, that Giles acted at Mr Andrews’ direction or behest, ultimately involves a question of fact. 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.

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.

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 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, the court 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. She was the only witness called and therefore there was no countervailing or conflicting medical evidence. The court is also satisfied that Giles gave the relevant human rights real consideration in approving the Directions. Ground four is therefore not established.

Conclusion: The Stay at Home direction is valid. Ms Loielo’s proceeding therefore does not succeed and must be dismissed.

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