Plaintiff Seeks Home Instead of Hotel Quarantine
Baker v Department of Health and Human Services [2021] VSC 673 (18 October 2021)
Ms Baker who was re-entering Victoria on a flight to Tullamarine Airport from Ballina in New South Wales was detained at Tullamarine Airport. She was made to undergo the hotel quarantine system. However, she sought to be quarantined at her home in Melbourne instead due to her medical conditions. The Court determines whether less restrictive means were reasonably available.
Facts:
On 16 March 2020 the Minister for Health declared a state of emergency throughout Victoria as a result of the serious risk to public health posed by the COVID-19 pandemic. The declaration has been extended on a number of occasions, most recently on 28 July 2021 and then on 26 August 2021. On 12 August 2021, when Melbourne was still subject to the Stay at Home Directions (Metropolitan Melbourne) (No 2) (the Stay at Home Directions), Olivia Baker, who resides in Melbourne, travelled to Goonellabah in northern New South Wales to see her intimate partner. On the same day that Ms Baker travelled to New South Wales, the Victorian Border Crossing Permit Directions (No. 28) (the Border Directions) were issued under the Act, prohibiting the entry of certain persons into Victoria, including those who had been in an ‘extreme risk zone’.
When Ms Baker entered New South Wales, the entire State of New South Wales was an ‘extreme risk zone’. On 14 August 2021, Ms Baker applied for an exemption to re-enter Victoria ‘on medical and legal grounds’. She states that she spoke by telephone with someone from the ‘Department of Health and Human Services and was informed that she was qualified to travel as an excepted person and would not require a permit’. Upon re-entering Victoria on a flight to Tullamarine Airport from Ballina in New South Wales on 19 August 2021, she was detained at Tullamarine Airport for about 7 hours.
Officers of the Department located at Tullamarine Airport record that Ms Baker refused to enter hotel quarantine and threatened self-harm. Ms Baker was then taken to the Royal Melbourne Hospital where she was detained until about 12.35pm on 20 August 2021. Ms Baker was then transferred to and detained at the Element Hotel in Richmond, a location which is classified as a ‘complex care hotel’ within the hotel quarantine system. While detained at the Element Hotel, Ms Baker provided various documents to the Court and sought an urgent hearing in relation to her continuing detention.
The documents provided by Ms Baker recorded that she was contesting notices of detention issued to her dated 19 August and 20 August 2021, and an ‘affirmation of detention notice’ dated 21 August 2021. Ms Baker was then purportedly being detained pursuant to a decision of the Acting Chief Health Officer made on 29 August 2021 and that her detention would continue until 11.59pm on 2 September 2021. Ms Baker sought to be released from detention in hotel quarantine and proposed that she complete her required period of quarantine at her home in Melbourne because she had certain disabilities (idiopathic hypersomnia, fibromyalgia, depression and anxiety) which could not be adequately treated or managed while detained at the Element Hotel.
Issue:
Whether or not less restrictive means are reasonably available in the context of the plaintiff’s medical condition.
Applicable law:
Public Health and Wellbeing Act 2008 s 10 - deals with the subject matter of emergency powers.
Public Health and Wellbeing Act 2008 s 200 - set out the emergency powers of the Chief Health Officer as follows:
(1) The emergency powers are—
(a) subject to this section, 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;
(b) restrict the movement of any person or group of persons within the emergency area;
(c) prevent any person or group of persons from entering the emergency area;
(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.
Public Health and Wellbeing Act 2008 s 200B - provides that a person who is subject to detention under s 200(1)(a) of the Act may make an application to the Secretary of the Department for a review by a ‘Detention Review Officer’.
Public Health and Wellbeing Act 2008 s 200C - provides that detention Review Officers are required to decide any application referred to them by the Secretary and must use their best endeavours to do so within 24 hours of the time that the application was received by the Secretary.
Public Health and Wellbeing Act 2008 s 200D – provides that upon referral from a Detention Review Officer, the Chief Health Officer may affirm the decision under review, vary it or ‘set aside the decision under review and make a new decision in substitution for it’.
Cotterill v Romanes [2021] VSC 498- Niall JA referred to the purpose of s 200 as being to reduce or eliminate serious public health risks in the context of an emergency which has been declared by a responsible Minister and reported to the Parliament.
Analysis:
While the Acting Chief Health Officer had particular regard to the current hardship quarantine is placing on Ms Baker given her medical history, he formed the view that her detention remains reasonably necessary to reduce or eliminate [sic] a serious risk to public health, and that there is no less restrictive means by which that risk can be reduced or eliminated.
Ms Baker asserted that permitting her to quarantine at home, supported and assisted by her housemate, was an available less restrictive means to manage these risks and that such an approach was supported by the Charter. Ms Baker submitted that she had already informed the Department on several occasions the means by which she proposed to mitigate the public health risks to her housemate and that the Department had failed to contact her housemate to make enquiries with him about that matter despite Ms Baker providing her housemate’s contact details.
Ms Baker’s assertion that home quarantine was an available less restrictive means to manage public health risks and her challenge to the conclusion that there were no medical grounds to vary her detention are bare attacks on the merits of the conclusion reached by the Acting Chief Health Officer and reveals no arguable case of unlawfulness in the Acting Chief Health Officer’s decision necessary to support a case for judicial review. Neither legal principle nor the statutory regime obliged the Acting Chief Health Officer to make enquiries or investigations of Ms Bakers medical specialists or her housemate. There is no basis to Ms Baker’s claim that Dr Melvin, the Deputy Director of Emergency Medicine with Alfred Health, was not qualified to give an opinion about idiopathic hypersomnia.
Conclusion:
Ms Baker’s application for judicial review of the Acting Chief Health Officer’s decision made on 29 August 2021 was dismissed.
