Baker v Department of Health and Human Services
[2021] VSC 673
•18 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S ECI 2021 03215
| OLIVIA BAKER | Plaintiff |
| v | |
| DEPARTMENT OF HEALTH AND HUMAN SERVICES | First Defendant |
| BRETT SUTTON (in his capacity as Chief Health Officer) | Second Defendant |
| N DEBORAH FRIEDMAN (in her capacity as an Acting Chief Health Officer) | Third Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 August 2021 |
DATE OF JUDGMENT: | 18 October 2021 |
CASE MAY BE CITED AS: | Baker v Department of Health and Human Services |
MEDIUM NEUTRAL CITATION: | [2021] VSC 673 |
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JUDICIAL REVIEW – COVID 19 pandemic – State of emergency – Border Crossing Permit Directions - Stay at Home Directions – Hotel quarantine – Whether less restrictive means reasonably available in the context of plaintiff’s medical condition – Public Health and Wellbeing Act 2008 ss 5, 6, 7, 8, 9, 10, 200, 200B, 200C, 200D – Cotterill v Romanes [2021] VSC 498.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Ms S Fitzgerald | Victorian Government Solicitor’s Office |
HIS HONOUR:
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, made under s 198(1) of the Public Health and Wellbeing Act 2008 (the Act), has been extended on a number of occasions, most recently on 28 July 2021 and then on 26 August 2021.
On 12 August 2021, Olivia Baker, who resides in Melbourne, travelled to Goonellabah in northern New South Wales to see her intimate partner. At that time, Melbourne was subject to the Stay at Home Directions (Metropolitan Melbourne) (No 2) (the Stay at Home Directions) which had been made under the Act by the Chief Health Officer, Brett Sutton, on 9 August 2021. The Stay at Home Directions restricted the circumstances in which people in metropolitan Melbourne could leave the premises where they ordinarily resided.[1]
[1]See further in [32] below.
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. The Border Directions prohibited the entry of certain persons into Victoria, including those who had been in an ‘extreme risk zone’.[2] When Ms Baker entered New South Wales, the entire State of New South Wales was an ‘extreme risk zone’ for the purposes of the Border Directions.
[2]Ibid.
On 14 August 2021, Ms Baker applied for an exemption to re-enter Victoria ‘on medical and legal grounds’. In the material she has filed with the Court, she states that she spoke by telephone with someone from the ‘Department of Health and Human Services’[3] and was informed that she ‘qualif[ied] to travel as an excepted person and would not require a permit’.
[3]The Department of Health and Human Services has since been replaced by the Department of Health (the Department).
Ms Baker re-entered Victoria on a flight to Tullamarine Airport from Ballina in New South Wales on 19 August 2021. She states that she was detained at Tullamarine Airport for about 7 hours, during which time she was ‘very frustrated and rude, but not aggressive and 100% compliant’. The notes and report prepared by 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. Complex care hotels are managed by Alfred Health and are for residents who are not COVID-19 positive and have complex physical, medical or mental health needs.
On 25 August 2021, 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, who was self-represented, did not comply in various respects with the requirements of the Supreme Court (General Civil Procedure) Rules 2015 for the filing of documents in Court. However, on Ms Baker’s undertaking to commence a proceeding by 4.00pm on 9 September 2021, I proceeded to hear the matter as an urgent case under rule 4.08 of the Supreme Court (General Civil Procedure) Rules 2015.
The documents provided by Ms Baker included an originating motion for judicial review which, read together with another document setting out her complaints, 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. However, in the course of the hearing before me in Practice Court on 30 August 2021, it became apparent that 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. As that was the relevant operative decision by which Ms Baker continued to be detained, on 30 August 2021 I heard and determined Ms Baker’s application for judicial review in respect of that decision.
In challenging the decision of the Acting Chief Health Officer made on 29 August 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. Underlying her complaint was her claim that she had certain disabilities which could not be adequately treated or managed while detained at the Element Hotel. She identified these disabilities in her originating motion as idiopathic hypersomnia, fibromyalgia, depression and anxiety.
At the conclusion of the hearing on 30 August 2021, I informed the parties that I had determined that Ms Baker’s application for judicial review of the decision of the Acting Chief Health Officer dated 29 August 2021 be dismissed. These are my reasons for decision for so determining.
The statutory scheme – emergency powers
Section 20 of the Act provides for the appointment of a Chief Health Officer. The powers, duties and functions of the Chief Health Officer include those conferred or imposed by the Act.
Division 3 of Part 10 of the Act (entitled ‘Protection and enforcement provisions’) deals with the subject matter of emergency powers. As I have noted, a state of emergency has been declared in Victoria under s 198(1) of the Act since 16 March 2020.
Pursuant to s 199(2)(a) of the Act, if a state of emergency exists and the Chief Health Officer believes that it is reasonably necessary to grant an authorisation to eliminate or reduce a serious risk to public health, the Chief Health Officer may, ‘for the purpose of eliminating or reducing the serious risk to public health, authorise … authorised officers … to exercise any of the public health risk powers and emergency powers’.
Authorised officers are appointed by the Secretary under s 30(1) of the Act. It is relevant to this proceeding to note that, pursuant to s 20(3) of the Act, the Chief Health Officer has and may exercise all the powers conferred on an authorised officer under the Act.[4]
[4]The provision made by s 20A(b) may also be noted:
The emergency powers are set out in s 200(1) of the Act 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.
As I have explained, these powers can only be exercised where the Minister, on the advice of the Chief Health Officer, has declared a state of emergency. In Cotterill v Romanes, 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.[5] His Honour continued:
Indeed, public health and safety in the face of a pandemic of the magnitude and danger involved here is a purpose of government of the first order. Its importance and the lengths that a government may go to avoid such risks is demonstrated by the fact that quarantine, and the executive detention that it may involve, is an exception to the basal principle that the power to order that a citizen be involuntarily confined in custody is part of the judicial power exercisable as punishment on conviction for a criminal offence. The importance of protecting the community from infectious disease can, in an appropriate case, justify legislation authorising the deprivation of liberty at the hands of the executive.[6]
[5]Cotterill v Romanes [2021] VSC 498, [223].
[6]Ibid [226] omitting citations.
The power of detention in subs 200(1)(a) is subject to various qualifications set out in subs 200(2), (3), (5)-(7), (9).[7] It was not alleged in this proceeding that there has been any failure to comply with these requirements.
[7]See also Ibid [48].
Section 200B(1) of the Act provides that a person who is subject to detention under s 200(1)(a) of the Act may make application to the Secretary of the Department for a review by a ‘Detention Review Officer’[8] of:
[8]Detention Review Officers are appointed by the Secretary under s 32A(1) of the Act and are required to be an Australian lawyer of at least ten years’ experience.
(a)the decision under section 200(1)(a) to make the person subject to detention including, but not limited to, in respect of the following –
(i)the reasons for the detention;
(ii)the period of the detention;
(iii)the place of the detention;
(iv)the conditions of the detention; or
(b) a decision under section 200(1)(d) that relates to the person’s detention.
The decision making process provided for by the Act in relation to an application for review made under s 200B(1) of the Act is relevantly as follows:
(a)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.[9]
(b)When deciding an application for review, a Detention Review Officer ‘must consider the information included in the application’, and ‘may make such further inquiries and seek such further information in relation to any aspect of the application as the Detention Review Officer thinks fit including, but not limited to, making inquiries to or seeking information from persons with expertise in public health’.[10]
(c)The Detention Review Officer may decide to either ‘affirm the decision under review’,[11] or refer the application to the Chief Health Officer ‘accompanied by such non-binding recommendation as the Detention Review Officer considers appropriate (if any)’.[12]
(d)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’.[13] The Chief Health Officer must use their best endeavours to decide the application and advise the applicant in writing of the decision and the reasons for it within 24 hours after the application is referred.[14]
[9]Section 200C(2).
[10]Sections 200C(3) and (4).
[11]A decision by a Detention Review Officer to affirm a decision made by an authorised officer is taken to be a decision of that authorised officer: s 200C(5).
[12]Section 200C(4).
[13]Section 200D(2).
[14]Section 200C(4)(b).
In considering Ms Baker’s challenge to the Acting Chief Health Officer’s decision of 29 August 2021, it is also relevant to note the terms of s 4(3) of the Act which records that:
It is the intention of Parliament that in the administration of this Act and in seeking to achieve the objective of this Act, regard should be given to the guiding principles set out in sections 5 to 11A.
As is presently relevant, the ‘guiding principles’ to which s 4(3) refers are: the principle of evidence based decision-making;[15] the ‘precautionary principle’;[16] the principle of ‘primary of prevention’;[17] the principle of accountability;[18] the principle of proportionality;[19] and the principle of collaboration.[20]
[15]Section 5.
[16]Section 6 which states that ‘If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.’
[17]Section 7.
[18]Section 8.
[19]Section 9.
[20]Section 10.
Ms Baker’s detention
It is appropriate to set out the history of Ms Baker’s detention from when she returned to Melbourne on 19 August 2021 until the decision of the Acting Chief Health Officer made on 29 August 2021 that her detention continue until 11.59pm on 2 September 2021.
(a)As I have noted, after her arrival at Tullamarine Airport in the morning of 19 August 2021, it would appear that Ms Baker threatened self-harm after being informed that she would need to enter hotel quarantine. She also tore up a detention notice which was handed to her.
(b)Ms Baker was served with a further detention notice at 9.47am on 19 August 2021. The notice was signed by Jose Chevez, an authorised officer under the Act. The notice specified that Ms Baker would be detained at the Royal Melbourne Hospital until 11.59pm on 2 September 2021 and that she was to proceed immediately by ambulance to the hospital. Ms Baker was then transported to the Royal Melbourne Hospital.
(c)At 11.44am on 20 August 2021, Darcie Mignot, an authorised officer under the Act, issued a notice to Ms Baker stating that she was detained at the Royal Melbourne Hospital Emergency Department until 11.59pm on 3 September 2021.
(d)Soon afterwards at 12.35pm on 20 August 2021, another authorised officer under the Act, Ainsworth Dillon, issued Ms Baker with a notice stating that she was to be detained in room 215 at the Element Hotel, Richmond until 11.59pm on 2 September 2021. It would appear that, shortly thereafter, Ms Baker was transported to the Element Hotel where she was detained until and including when she appeared before the Court by audio visual link on 30 August 2021.
At 9.07am on 21 August 2021, Ms Baker applied under s 200B(1) of the Act for a review of her detention under the Act (the first review application). The application was referred to a Detention Review Officer the same day. After the provision of further information by Ms Baker, at 11.34pm on 21 August 2021, the Detention Review Officer affirmed the decision under review in accordance with s 200C(4) of the Act. Ms Baker was notified of this decision the following day.
Ms Baker then raised further complaints about her detention and the decision of the Detention Review Officer. On 22 August 2021, she made a further application under s 200B(3) of the Act for a review of her detention by a Detention Review Officer (the second review application). She was informed that her application could only be accepted if new and materially different circumstances had arisen since the first review application.[21] Whether that condition had been satisfied was the subject of email correspondence between Ms Baker and the Department in the period between 22 and 26 August 2021.
[21]Section 200B(3) of the Act provides that a person may make a further application for a review by a Detention Review Officer if ‘the most recent application made by the person has been determined’ and there are ‘new and materially different circumstances’ that have arisen ‘that affect the person in respect of the detention’.
On 26 August 2021, Ms Baker was informed that her second review application had been accepted and that it had been referred to another Detention Review Officer (the second Detention Review Officer). Further information relating to the second review application was subsequently provided to the second Detention Review Officer, including emails from Ms Baker and responses to requests made by the second Detention Review Officer.
On 29 August 2021, the second Detention Review Officer decided to refer the decision under review to the Chief Health Officer. Later that day the Acting Chief Health Officer,[22] Associate Professor N. Deborah Friedman, ‘decided to affirm the decision of the Authorised Officer under section 200D(2)(a)’ of the Act, with the consequence that Ms Baker ‘must complete the period of detention in accordance with the requirements and conditions of that Authorised Officer’s Detention Notice and the requirements’ of the Act. The Acting Chief Health Officer issued reasons for her decision (the reasons) which may relevantly be summarised as follows:
[22]I was informed by counsel for the defendants that, due to the need for the Chief Health Officer to undertake their statutory role seven days a week in the context of the pandemic, the Third Defendant (who also holds the position of Deputy Chief Health Officer) is appointed as Acting Chief Health Officer one day each week.
(a) Early in the reasons, the Acting Chief Health Officer set out her decision as follows:
After considering your circumstances and the requirements under the PHW Act and the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I have determined to affirm the Authorised Officer’s decision to detain you under section 200(1)(a) of the PHW Act, having particular regard to:
a. the information in your application to the Secretary;
b. the detention notice relating to the Decision under Review;
c.your Compliance and Welfare Management System records maintained by COVID-19 Quarantine Victoria;
d.the expert public health and epidemiological advice relevant to the application;
e. relevant human rights under the Charter; and
f. the principles and provisions of the PHW Act.[23]
[23]Reasons, [2].
(b) The Acting Chief Health Officer stated that:
In determining the application, I have freely exercised my independent judgment and discretion, taking all relevant considerations into account, and taking into account no irrelevant considerations.[24]
[24]Reasons, [3].
(c) The Acting Chief Health Officer set out the grounds relied upon by Ms Baker in support of her request to undertake the remainder of her detention at home on compassionate grounds, including that her chronic medical conditions had not been suitably managed in hotel quarantine.
(d) The Acting Chief Health Officer then identified the following ‘other pertinent matters’ which related to Ms Baker’s application:
At 11.59pm on 23 July 2021, NSW was declared an extreme risk zone with retrospective application from 9 July 2021. You travelled to NSW from Victoria after this declaration was enacted, without due consideration to the challenges this would pose on your return to Victoria.
Clause 15 (31) of the Victoria Border Crossing Permit Directions (No 28) states that a “prohibited person” is a person who, at the time that they enter Victoria, has been in an extreme risk zone in the previous 14 days subject to a number of exceptions that do not apply here.
If released from hotel quarantine, you propose to self-isolate at your home. I note that you share this home with a housemate.[25]
[25]Reasons, [6]-[8].
(e) After referring to the legislative requirements in the Act and the Charter of Human Rights and Responsibilities Act 2006 (the Charter), the Acting Chief Health Officer set out her reasons for decision by the reference to the following matters:
(i) The provisions of the Act, in relation to which she stated:
A person can only be detained under the PHW Act for the period reasonably necessary to eliminate or reduce a serious risk to public health. A person should not be detained if there is any less restrictive means reasonably available by which to achieve that purpose.
In making my decision, I am required to balance the public health risks against your rights, the rights of others, and the circumstances in which you are detained. In seeking to achieve the objectives of the PHW Act (which are set out in s4), I should also have regard to the guiding principles in the PHW Act:
…[26]
[26]Reasons, [15]-[16].
(ii) That she had had regard to public health advice from the Department of Health which she summarised at length and in relation to which she concluded:
The consequences of community transmission are profound and represent a serious public health risk, requiring extensive public health interventions when transmission is advancing including physical distancing, extensive contact tracing and outbreak management and restrictions on population movement and function. We have seen this in Victoria with strict lockdown measures being imposed throughout 2020, and in February 2021. The socioeconomic and health consequences of transmission and of the measures required to prevent transmission, are so significant that profound [sic], that significant actions are required to reduce the risk, including the detention of individuals at highest risk of infection for the duration of the recommended quarantine period.
The Communicable Diseases Network of Australia (CDNA) and the Australian Health Protection Principal Committee (AHPPC) have repeatedly tested the scientific rationale and merit of alternative means of quarantine and confirmed that the safest and most likely effective means to prevent incursion and community transmission remains facility-based quarantine, also known as hotel quarantine.[27]
[27]Reasons, [27]-[28].
(iii) ‘Public health considerations’ in relation to which she stated:
At 11.59pm on 23 July 2021, NSW was declared an extreme risk zone with retrospective application from 9 July 2021. This has required hotel quarantine for individuals wishing to enter Victoria from NSW without a valid permit, exemption or exception.
I also note your proposal to complete your detention in your home where you live with a housemate. Completing your detention in such a situation would carry public health risks for your housemate.[28]
[28]Reasons, [29]-[30].
(iv) ‘Charter considerations’ in relation to which she stated:
While I understand that you have concerns with the management of your chronic medical conditions in hotel quarantine, I do not find the medical complaints grounds for varying your detention.[29]
[29]Reasons, [31].
(v) A final section entitled ‘Balancing your rights and circumstances’ under which she stated:
As stated above, a person can only be detained under the PHW Act for the period reasonably necessary to eliminate or reduce a serious risk to public health. A person should not be detained if there is any less restrictive means reasonably available by which to achieve that purpose.
In considering my decision, I have had particular regard to the current hardship quarantine is placing on you, given your medical history. While I accept that this may raise a particular hardship for you, I have formed the view that your detention remains reasonably necessary to reduce or eliminated [sic] a serious risk to public health, and that there is no less restrictive means by which that risk can be reduced or eliminated.
Taking into account your individual circumstances, and weighing them against the public health advice, the provisions and guiding principles in the PHW Act and the Charter, I have decided that it is necessary to affirm the Decision under Review and to detain you in order to eliminate or reduce a serious risk to public health.[30]
[30]Reasons, [32]-[34].
Judicial review of the Acting Chief Health Officer’s decision of 29 August 2021
Ms Baker relied on four grounds in challenging the Acting Chief Health Officer’s decision of 29 August 2021.
First, Ms Baker took issue with [15] and [33] of the Acting Chief Health Officer’s reasons which stated:
[15]A person can only be detained under the [Act] for the period reasonably necessary to eliminate or reduce a serious risk to public health. A person should not be detained if there is any less restrictive means reasonably available by which to achieve that purpose.
…
[33]In considering my decision, I have had particular regard to the current hardship quarantine is placing on you, given your medical history. While I accept that this may raise a particular hardship for you, I have formed the view that your detention remains reasonably necessary to reduce or [eliminate] 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 contested the Acting Chief Health Officer’s conclusion that there were no less restrictive means other than detention by which the serious risk to public health could 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.
Secondly, Ms Baker took issue with [30] of the reasons in which the Acting Chief Health Officer stated:
I also note your proposal to complete your detention in your home where you live with a housemate. Completing your detention in such a situation would carry public health risks for your housemate.
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.
Thirdly, Ms Baker challenged the Acting Chief Health Officer’s conclusion in [31] of the reasons that, notwithstanding her concerns about the management of her chronic medical conditions in hotel quarantine, there were no medical grounds to vary Ms Baker’s detention so as to permit her to quarantine at home. Ms Baker submitted that this conclusion appeared to be based on an opinion obtained in the course of the second review application from Dr Rob Melvin, the Deputy Director of Emergency Medicine with Alfred Health. On the basis of a review of Ms Baker’s clinical and medical records, but without examining her, Dr Melvin’s medical assessment of Ms Baker was that ‘she is suitable to complete her quarantine at Element, with ongoing support from Mental Health services – which is being provided’. He also responded to the following specific questions:
·How severe are the current symptoms of the applicant’s fibromyalgia? Is there a way of treating it in hotel quarantine (through medication or by other means) that will not interfere with her treatment for depression or idiopathic hypersomania?
Olivia reports pain to be 8/10. It is chronic disease with no cure. Olivia has been offered simple analgesia, tennis ball for self-massage – both declined. Hot pack also provided. Gentle movement therapy prescribed and resources provided.
·Can the applicant’s depression/anxiety be treated in hotel detention? Is there a way of treating it that will not interfere with her other conditions?
Reviewed by Psychiatry consultant on 25/8/21 – not at risk . On regular antidepressants. Refused further Mental health review. Advice provided for follow up with Mental Health services after quarantine.
·The applicant said on Monday that she was about ready to throw herself out the window of hotel quarantine. Do you consider her to be suicidal?
Reviewed by Psychiatry Consultant on 25/8/21 – denies suicidality, clearly forward planning. Voiced this likely as felt was being 'unheard'.
·How severe are the current symptoms of her idiopathic hypersomnia? Is there a way of treating it that will not interfere with her other conditions?
Reports not to have good sleep overnight, which points away from hypersomnia. Refused any medical intervention.
Ms Baker asserted that Dr Melvin’s responses to the first and fourth questions referred to above were in error. As to the first question, she asserted that all the therapies that had been offered to her and which she had refused were not therapies which would assist her fibromyalgia and those things which would assist, had not been provided to her in the course of her detention in hotel quarantine. As to the fourth question, Ms Baker asserted that Dr Melvin’s response indicated that he had ‘no idea’ about the nature of idiopathic hypersomnia and as such was unqualified to give that assessment and that he had failed to contact her treating specialist.
Fourthly, Ms Baker submitted that under the Stay at Home Directions and the Border Directions (collectively, ‘the Directions’), she had lawful reason to leave her home and to then return to it after her visit to New South Wales and thereby qualified to undertake home quarantine rather than hotel quarantine upon her return to Victoria.
(a) As to her departure from Victoria, the Stay at Home Directions imposed a requirement on persons ordinarily resident in metropolitan Melbourne not to leave the premises where they ordinarily resided, other than for certain prescribed reasons, one of which was ‘care or other compassionate reasons’.[31] Those reasons included ‘to visit a person with whom they are in an intimate personal relationship’,[32] being the reason Ms Baker travelled to northern New South Wales.
[31]Clause 5(1)(b) of the Stay at Home Directions.
[32]Clause 7(1)(j) of the Stay at Home Directions (the intimate partner exception).
(b) In relation to her return to Victoria, Ms Baker submitted that she was an ‘excepted person’ within the meaning of cl 13(1)(b) of the Border Directions which provides as follows:
A restricted person or prohibited person[33] may enter Victoria from any other State or Territory in Australia or, after entering Australia, from a Green Zone Country, without a permit:
[33]It was uncontroversial that Ms Baker was a ‘prohibited person’ with the meaning of the Border Directions.
…
(b)to receive or accompany a dependant who is to receive, emergency or essential medical care or other urgent care; or
…
The note to cl 13(1)(b) of the Border Directions relevantly includes the following two examples:
Example 2: essential medical care includes medical care requiring continuity of treatment, such as chemotherapy or dialysis treatment.
Example 3: other urgent care may include essential care for a person with a disability or a dependant of a person, if there are no alternate care arrangements available, but does not include ordinary child-minding services.
In addition to these four grounds, Ms Baker identified a number of errors in [5] of the reasons in which the Acting Chief Health Officer described the grounds relied upon by Ms Baker in the second review application as follows:
You have sought to undertake the remainder of your detention at your home on compassionate grounds related to the following:
a.You are a Victorian resident.
b.You were in Ballina, New South Wales for the period of 12-19 August 2021.
c.On 19 August 2021 you re-entered Victoria from New South Wales.
d.On arrival in Victoria an Authorised Officer provided you with a detention notice requiring you to undertake managed quarantine until 11.59pm 2 September 2021.
e.You have applied for a detention review previously, where the DRO affirmed the decision to detain you.
f.In this second application for detention review, you state that your chronic medical conditions are not being suitably managed in hotel quarantine.
It was not in dispute that, contrary to what is recorded in this paragraph:
(a) Ms Baker was in Goonellabah, not Ballina, in New South Wales for the period 12–19 August 2021 as distinct from 12-20 August 2021 (though it was uncontroversial that she departed from Ballina airport);
(b) Ms Baker returned to Victoria on 19 August 2021, not 20 August 2021; and
(c) the detention notice issued to Ms Baker on her return to Victoria required her to undertake managed quarantine until 11.59pm 2 September 2021, not 3 September 2021.
These errors may safely be disregarded in considering Ms Baker’s judicial review application. It is apparent from the reasons that none of them had any bearing on the Acting Chief Health Officer’s decision; they were not material to the decision the subject of judicial review.
The four grounds relied upon by Ms Baker may be disposed of in short terms.
The first ground directed at [15] and [33] of the reasons is an attack on the Acting Chief Health Officer’s conclusion that, despite Ms Baker’s medical history and the hardship occasioned by hotel quarantine, detention remained reasonably necessary to reduce or eliminate a serious risk to public health, and that there was no less restrictive means by which the risk can be reduced or eliminated. Ms Baker’s assertion that home quarantine was an available less restrictive means to manage public health risks is a bare attack 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.
Ms Baker’s third ground in which she challenges the Acting Chief Health Officer’s conclusion in [31] of the reasons - that there were no medical grounds to vary her detention so as to permit her to quarantine at home - is of the same impermissible character, being in the nature of merits review. Neither is there any basis to Ms Baker’s claim that Dr Melvin was not qualified to give an opinion about idiopathic hypersomnia.
Ms Baker’s third ground also suffers from the misconception that, in preparing his medical assessment, Dr Melvin was required to contact or consult Ms Baker’s treating medical specialists.
The same defect is evident in relation to Ms Baker’s second ground of review in which she criticises the Department for failing to contact her housemate to make enquiries with him about mitigating the public health risks to her housemate associated with home-quarantine. Although it was open to Ms Baker to submit to the Acting Chief Health Officer information from, for example, her treating medical specialists or from her housemate, neither legal principle nor the statutory regime obliged the Acting Chief Health Officer to make enquiries or investigations of those persons. Further, the second ground is otherwise in the nature of merits review.
Ms Baker’s fourth ground of review suffers from various difficulties and must also be rejected. Her reliance on the intimate partner exception in the Stay at Home Directions is misplaced. That provision establishes a specific exception to the prohibition on residents of the Melbourne metropolitan area from leaving their homes. As a provision contained in directions made by the Chief Health Officer under legislation enacted by the Parliament of Victoria, is to be construed as permitting intimate partner visits within the State of Victoria; it cannot be said to authorise residents of Melbourne to enter other States for that purpose.
In any event, even if Ms Baker did have a lawful basis to leave her home in Melbourne to travel to New South Wales, she was not thereby excused from complying with the Border Directions on her return. The only basis asserted by Ms Baker upon which she could lawfully return to her home from New South Wales was that she was within the exception in cl 13(1)(b) of the Border Directions.[34] Relevantly, that provision would have permitted Ms Baker to enter Victoria without a permit ‘to receive … emergency or essential medical care or other urgent care’.
[34]See [32] above.
All that relevantly emerges from the material filed by Ms Baker is that she applied for an exemption to re-enter Victoria ‘on medical and legal grounds’ and that she has the following medical conditions which she describes as disabilities: idiopathic hypersomnia, fibromyalgia, depression and anxiety. In the face of these very general claims and in particular the absence of any basis upon which it might be concluded that Ms Baker’s medical condition at the relevant time required urgent care or attention, no error is revealed by the failure of the Acting Chief Health Officer to make any finding that the circumstances of Ms Baker’s return to Melbourne was within the exception in cl 13(1)(b) of the Border Directions. Although one of the examples provided in relation to cl 13(1)(b) indicates that care requiring continuity of treatment constitutes ‘essential medical care’, there is nothing in the material before me which indicates that Ms Baker returned to Victoria in order to receive medical care of a type which requires a continuing course of treatment.
More fundamentally however, the legal validity of the Acting Chief Health Officer’s decision of 29 August 2021 was not in any event dependent or conditional upon the terms of the Directions. As submitted by counsel for the defendants, a consideration of the reasons and the powers of the Chief Health Officer under the Act make clear that, in making that decision, the Acting Chief Health Officer independently exercised the power of detention in s 200(1)(a) of the Act.
As to the Acting Chief Health Officer’s power to detain, it is essential to note that, although the emergency powers in s 200(1) of the Act may be exercised by authorised officers, [35] s 20(3) provides that the Chief Health Officer has and may exercise all the powers conferred on authorised officers under the Act. The power in s 200(1)(a) of the Act to detain persons was accordingly a power vested in and able to be exercised by the Acting Chief Health Officer.
[35]See s 199(2)(a) referred to [13] above.
Although the Acting Chief Health Officer stated in her reasons that she had ‘determined to affirm the Authorised Officer’s decision to detain’ Ms Baker, she did so having ‘freely exercised my independent judgment and discretion’.[36] That the Acting Chief Health Officer did in fact exercise her own independent judgment and discretion is evident from her chain of reasoning summarised in [25(e)] above. It is apparent from those paragraphs that the Acting Chief Health Officer directed herself to whether, as at 29 August 2021, in the then prevailing circumstances relating to Ms Baker, it was necessary for Ms Baker to be detained in order to eliminate or reduce a serious risk to public health. This is encapsulated in her conclusion at the end of the reasons:
Taking into account your individual circumstances, and weighing them against the public health advice, the provisions and guiding principles in the PHW Act and the Charter, I have decided that it is necessary to affirm the Decision under Review and to detain you in order to eliminate or reduce a serious risk to public health.[37]
[36]See [25(b)] above.
[37]Reasons, [34].
In directing herself in this way, the Acting Chief Health Officer acted in accordance with the express constraint on the power to detain in s 200(1)(a): that it be ‘for the period reasonably necessary to eliminate or reduce a serious risk to public health’. The scope and purpose of the power in s 200(1)(a) is not framed by reference to the terms of any directions made under the Act. Although the Directions formed an important part of the context in which the Acting Chief Health Officer made her decision on 29 August 2021, the power she exercised was not dependent or conditional upon the terms of those instruments.
For the above reasons, Ms Baker’s application for judicial review of the Acting Chief Health Officer’s decision made on 29 August 2021 was dismissed.
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‘To avoid doubt, if the Chief Health Officer authorises authorised officers to exercise –
…
(b) any of the public health risk powers and emergency powers under section 199(2)(a) –
the Chief Health Officer may, if the Chief Health Officer has been appointed as an authorised officer under section 30, personally exercise any of those powers in accordance with the authorisation’.
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