Cotterill v Romanes

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03946

BETWEEN:
KERRY COTTERILL	Plaintiff
- and -
FINN ROMANES (in his capactity as the Deputy Public Health Commander)	First Defendant
- and -
BRETT SUTTON (in his capacity as Chief Health Officer)	Second Defendant

---

JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 July 2021 and 2 August 2021
DATE OF JUDGMENT:	17 August 2021
CASE MAY BE CITED AS:	Cotterill v Romanes
MEDIUM NEUTRAL CITATION:	[2021] VSC 498

---

JUDICIAL REVIEW AND APPEAL – Constitutional Law (Cth) – Implied freedom of communication about governmental or political matters in the Commonwealth Constitution (‘implied freedom’) – Plaintiff seeking declarations that certain directions under the Public Health and Wellbeing Act 2008 given in context of COVID-19 pandemic were ultra vires on basis they impermissibly burdened the implied freedom.

JUDICIAL REVIEW AND APPEAL – Directions require persons to stay home and not leave other than for a permitted reason – Limitations on public gatherings – Whether infringement determined by reference to authorising provisions of the legislation or the directions – Proper level of analysis – Validity of legislation in all its potential operations – Whether Public Health and Wellbeing Act burdens the implied freedom – Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance – Palmer v Western Australia [2021] HCA 5 applied.

PRACTICE AND PROCEDURE – Standing – Whether plaintiff has standing to bring claim in relation to directions after they cease to be in operation – Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 considered – Standing established – No discretionary reason to stay or dismiss proceeding.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Foley with Mr J Tito and Mr MQ Nguyen	Smith & Tapper Criminal Lawyers
For the Defendants	Mr A Pound SC with Ms F Gordon and Ms M Narayan	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

At some point in early 2020, the COVID-19 virus entered the Australian community. COVID-19 is a highly infectious disease that has the potential to result in significant illness or death in humans who are infected. It is transmitted from person to person via airborne or aerosol particles exhaled from an infected person, and inhaled or introduced through contact with contaminated surfaces by a person who is susceptible to the disease. The disease has an incubation period of a few days, but a person may be infectious before the onset of symptoms. Once it takes hold within a community, the rate of infection may increase exponentially.

There have been a variety of responses from both the State and Commonwealth governments to COVID-19. They have included encouraging and educating members of the community about the need for hygiene (eg. frequent hand washing), social distancing, and the wearing of face masks. They have also involved, at the Commonwealth level, closing or heavily restricting access across the international border, so as to reduce the risk of infected persons coming into Australia. Many, if not all, persons arriving from overseas have been required to stay a period of time in quarantine.

In Victoria, there have been, and continue to be at the time of the hearing of this proceeding, a variety of measures imposed to address the spread of COVID-19. They have included requiring people to wear face masks, to record their entry into buildings and other places by the use of a QR code, restricting the type of workplaces that may be open, capping the number of people who can be present at public gatherings and in certain premises based on floor space, and a curfew. Relevantly for this proceeding, the measures have included the making of mandatory directions under the Public Health and Wellbeing Act (the ‘PHW Act’) that restrict movement of persons within the community.

The PHW Act empowers authorised officers, appointed by the Chief Health Officer (‘CHO’), to exercise ‘emergency powers’ when a ‘state of emergency’ has been declared by the Minister for Health (‘the Minister’).[1] On 16 March 2020, the Minister declared that a state of emergency existed in the whole of Victoria by reason of the serious risk to public health posed by the COVID-19 pandemic (‘the State of Emergency Declaration’). The State of Emergency Declaration has been extended a number of times and remains in force.
[1]Public Health and Wellbeing Act 2008, ss 3(1), 198, 199, 200, 201 (‘PHW Act’).

Under sub-ss 200(1)(b) and (d) of the PHW Act respectively, the emergency powers exercisable by the CHO include the power to ‘restrict the movement of any person or group of persons within the emergency area’ and to ‘give any other direction that the authorised officer considers is reasonably necessary to protect public health’.

Pursuant to those powers, the first defendant, an authorised officer under the PHW Act made two directions: on 27 August 2020, the Stay at Home Directions (Restricted Areas) (No 14) (‘Directions No 14’) and on 28 October 2020 the Stay Safe Directions (Melbourne) (No 2) (‘the Stay Safe Directions’) (together the ‘Directions’). Directions No 14 was part of a sequence of restrictions that commenced on 8 July 2020, and which required all persons in the ‘restricted area’ to remain at home and only leave for certain specified reasons. The opportunity for public gatherings was also heavily constrained by purpose and number of participants.

On 13 September 2020, when outside of her home, the plaintiff was given an infringement notice alleging that she was in breach of Directions No 14. She says that at the time, she was both exercising (which was a permitted reason to leave the home) and demonstrating against the lockdown (which was not).[2] The plaintiff contends that the Directions are invalid because they impermissibly burden the implied freedom of political communication provided for in the Australian Constitution and are therefore not authorised by sub-ss 200(1)(b) and (d) of the PHW Act.
[2]Whether her conduct constituted a breach of Directions No 14 is a matter of controversy between the parties and depends on competing constructions of the Direction.

The implied freedom is a limitation on legislative power, that prevents the State and Commonwealth Parliaments from enacting legislation that imposes an unjustifiable burden on communication on political and governmental matters. The principle and the applicable test are well settled.[3] It has three elements that can be posed in interrogative form: do the provisions impose a burden on political communication; is the purpose compatible with the constitutionally prescribed system of representative government; and if so are the provisions appropriate and adapted to the pursuit of that purpose? It is convenient to describe it as the McCloy test.
[3]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (‘Lange’); see also McCloy v New South Wales (2015) 257 CLR 178, 200–1 [23]; [2015] HCA 34 (French CJ, Kiefel, Bell and Keane JJ) (McCloy); LibertyWorks Inc v Commonwealth [2021] HCA 18, [44] (Kiefel CJ, Keane and Gleeson JJ) (‘LibertyWorks’).

The first issue that separates the parties is whether the McCloy test is to be applied directly to the PHW Act or to the Directions. For the reasons set out below, I accept the defendants’ submission that the test is to be applied to the legislation, specifically sub-ss 200(1)(b) and (d), and not to the particular exercises of power made under it. Applying that approach, I have concluded that sub-ss 200(1)(b) and (d) are valid in all their potential operations insofar as they may impose a burden on political communication. That is, because of the legitimate purpose they serve, and the significant constitutional limitations that confine their exercise and ensure that no lawful exercise of power can be obnoxious to the constitutional freedom. There is no reason to read down or dis-apply the provisions in a particular context in order to save their validity.

The plaintiff does not contend that the Directions are ultra vires the PHW Act, other than by directly applying the McCLoy test to them. That contention proceeds from a false premise and her arguments are directed to the wrong target. There being no other ground for attack, based on conventional judicial review grounds, the challenge to the Directions must fail.

In case I am wrong about the level at which the analysis is to be applied, I have also considered the plaintiff’s submission that, applying the test to the Directions they are invalid. Even if that was the correct course to take, I would reject the plaintiff’s submissions.

The proceeding must be dismissed.

The facts
The virus

COVID-19 is a highly infectious virus that can be transmitted from person to person and which can cause a range of respiratory and other disease. Transmission can occur via droplet sized particles within saliva expelled from the airways of the infected person and transmitted to a susceptible recipient. Activities such as speaking, coughing, sneezing, singing and shouting all involve, to a greater or lesser degree, the expulsion of these particles and present a risk of transmission. These particles are larger than five microns in diameter and therefore stay suspended in the air for relatively short distances, thought to be around one metre. For that reason, maintaining a sufficient distance from an infected person reduces the risk of infection. The virus may also be present in smaller particles that can stay in the air longer and travel longer distances depending on ventilation and airflow, and infect people over a greater distance. Transmission may also occur through contact with infected surfaces. There is a higher risk of transmission indoors when compared with outdoors.

Infectiousness is measured by a factor referred to as R0, which refers to the number of people who would become infected from one person with the disease, on average, across a population who were susceptible to the disease and without disease control measures. An R0 factor of less than one means that the prevalence across a given population is decreasing, one means that it will stay constant, and a number greater than one will mean that it is spreading. The R0, is not static and can vary over time depending on various matters. In Victoria, during periods of 2020 the R0 was greater than one and the number of active cases in the community rose quickly.

Since there was, at the relevant time, no cure and no vaccine for COVID-19, preventing the spread of the epidemic depended on physical distancing and hygiene. That means keeping infected persons away from uninfected persons. Aspects of the disease makes that difficult. The disease has an average incubation period of 5.5 days, with a range of 1 to 14 days. The majority of cases will develop symptoms after exposure, with 97 percent becoming symptomatic by day 11.5 (range 8.2-15.6 days). The time at which an infected person may become infectious, and at risk of infecting other persons, often commences before the carrier is symptomatic. Some infected people remain asymptomatic throughout the course of their infection. As a result, people may be infectious even though at a particular point in time they have no symptoms and therefore have no reason to suspect they are infectious and no reason to isolate.

Given the possibility that a person may be infectious and be either pre-symptomatic or asymptomatic, identifying infected persons is incredibly challenging. Identifying and isolating infected persons after they manifest symptoms does not address the risk that transmission may have occurred at an earlier point.

One partial solution to the problem is widespread testing and then isolating infected persons who have been identified, and those persons who have been in close contact with the infected person during the infectious period. To some extent the risk can also be addressed by identifying the places that an infected person has been during their infectious period and locating the people who were in the same place at the same time and having them isolate. This contact tracing is resource intensive and, with rapidly increasing infection rates, can easily fall behind.

Where a newly infectious person is connected to a previously identified infected person then the chain of transmission can be identified and other close contacts found and isolated. However, where a person is found to be infected but the source of that infection is unknown, then it may be that there are other unrecognised cases in the community who are not in isolation. This may lead to further outbreaks. For that reason, cases with an unknown transmission source pose particular risks in the management of the epidemic.

Once the virus is in circulation, the more people moving about the community, the more chance there is of a person coming into contact with an infected person and the greater the opportunity for the disease to spread.

The course of disease in Victoria

Dr Charles Alpren is an epidemiologist and public health expert employed by the Victorian Department of Health and Human Services. In an affidavit affirmed on 24 November 2020, he deposed to various matters including the spread of COVID-19 in Victoria during 2020. His evidence in this respect was not challenged.

The first case of COVID-19 in Victoria was diagnosed in late January 2020 in a person visiting from Wuhan, China. Case numbers increased across the world in March. In mid-March 2020, the Commonwealth government imposed restrictions on entry from overseas to reduce the importation of the virus into Australia.

In the first quarter of 2020, the virus was observed in some people in Victoria, but was largely confined to persons who had come from overseas and there was little evidence of community transmission. That position changed markedly from mid-June 2020 in what was to become known as the second wave.

Dr Alpren deposed:

(a) The average number of cases diagnosed daily in the two weeks from 1 to 14 June 2020 was 5.7.

(b) One week later, the average number of cases diagnosed in the preceding two weeks (8 to 21 June 2020) was 10.6, reflecting an increase of 86 percent.

(c) One further week later, the average number of cases diagnosed in the preceding two weeks (15 to 28 June 2020) was 22.1, more than doubling in a week.

(d) Four weeks later, the average number of cases diagnosed in the preceding two weeks (13 to 26 July 2020) had increased by a factor of more than 10 to 329.9.

The following graph shows the daily number of cases in Victoria (predominantly found in metropolitan Melbourne) from 1 June 2020 to 4 November 2020, and the dates on which various restrictions were put in place.

On 8 July 2020, ‘stage 3 restrictions’ were introduced for all of metropolitan Melbourne and the Shire of Mitchell (having been previously applied only to particular postcodes). Under those restrictions, people were required to stay home, unless leaving for specified reasons, and public outdoor gatherings were limited to two people, subject to particular exceptions. The average number of cases diagnosed each day in the 14 days prior was 82.9.

On 1 August 2020, there were 5571 active cases of COVID-19 in Victoria.

On 27 August, Directions No 14 was made and on that day:

(a) 111 cases of COVID-19 were diagnosed in Victoria, of which 15 cases were classified as being cases with unknown source of acquisition;

(b) the average number of cases diagnosed daily in the previous 14 days (14 – 27 August) was 189.5; and

(c) the total number of cases that would be classified as having an unknown source of acquisition in the previous 14 days was 453.

On 27 September, the number of people permitted to gather publicly was increased to five, and the curfew was lifted. On 27 October 2020, the ‘stage 3 restrictions’ came to an end, as the stay at home requirement was removed, however restrictions on public gatherings continued.

On 28 October 2020, the Stay Safe Directions was issued. At that stage there was still some community transmission, but there had been a steady and significant decline in case numbers during September and October 2020. Two cases were diagnosed on that day and the 14 day average was 2.4 cases per day. There were two cases with an unknown source.

On 23 November 2020, Victoria introduced a Public Events Framework, by which eligible public events could be exempted from a requirement in the Directions by the CHO or Deputy Chief Officer.

The statutory provisions

Section 4(2) of the PHW Act provides that the objective of the Act, understood in the context of s 4(1),[4] is to achieve the highest attainable standard of public health and wellbeing, including by protecting public health and preventing disease, illness, injury, disability or premature death.
[4]Relevantly, by s 4(1) of the PHW Act the Parliament recognises that the State has a significant role in promoting and protecting public health, which includes the absence of disease, illness and premature death.

Sections 5 to 11A set out guiding principles to which regard should be given in the administration of the PHW Act. They relevantly include:

(a) Decisions should be based on available evidence that is relevant and reliable;[5]
[5]PHW Act s 5.

(b) If a ‘public health risk’[6] 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;[7]
[6]Defined in PHW Act s 3.
[7]PHW Act s 6.

(c) Prevention of disease, illness or premature death is preferable to remedial measures;[8]
[8]PHW Act s 7.

(d) Those responsible for administering the PHW Act should, so far as is practicable, ensure that decisions are transparent, systematic and appropriate, and that members of the public should have access to reliable information in an appropriate form;[9]

(e) Decisions should be both proportionate to the public health risk sought to be prevented, minimised or controlled and should not be made or taken in an arbitrary manner;[10] and

(f) Public health and wellbeing can be enhanced through collaboration between all levels of government, industry, business, communities and individuals.[11]

[9]PHW Act s 8.

[10]PHW Act s 9 – headed ‘Principle of proportionality’.

[11]PHW Act s 10.

Section 11 provides for specific principles in relation to pt 8, being those set out in s 111. Part 8 is headed ‘Management and control of infectious diseases, micro-organisms and medical conditions’. Section 111 provides:

111 Principles
The following principles apply to the management and control of infectious diseases—
(a)the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person;
(b)a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease;
(c)a person who has, or suspects that they may have, an infectious disease should—
(i)ascertain whether he or she has an infectious disease and what precautions he or she should take to prevent any other person from contracting the infectious disease; and
(ii)take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease;

(d)a person who is at risk of contracting, has or suspects he or she may have, an infectious disease is entitled—

(i)to receive information about the infectious disease and any appropriate available treatment;
(ii)to have access to any appropriate available treatment.

The PHW Act confers powers and duties on various persons including the Minister, the Secretary and the CHO. The CHO, appointed by the Secretary, must be a registered medical practitioner.[12] The CHO has the powers, duties, functions and immunities conferred by the PHW Act and other Acts, including the powers conferred on an ‘authorised officer’.[13] In addition to performing the functions and powers specified under the PHW Act, the functions of the CHO include:

(a) to develop and implement strategies to promote and protect public health and wellbeing; and

(b) to provide advice to the Minister or the Secretary on matters relating to public health and wellbeing.[14]

[12]PHW Act s 20.

[13]Authorised officers are appointed by the Secretary under PHW Act s 30 or a Council under s 31.

[14]PHW Act s 21.

Although the statutory powers exercised in this case were made under pt 10 of the PHW Act, it is convenient to briefly survey pt 8 which deals with infectious diseases. An infectious disease is defined to mean:

infectious disease includes a human illness or condition due to a specific infectious agent or its toxic products that arises through transmission of that agent or its products from an infected person, animal or reservoir to a susceptible person, either directly or indirectly through an intermediate plant or animal host, vector or the inanimate environment.[15]

[15]PHW Act s 3.

The CHO may make an examination and testing order, which requires a person who the CHO believes may be infected, to undergo examination or testing.[16] The CHO may also make a public health order directed to an individual, which requires that person to participate in some forms of treatment, to refrain from certain activities, or from visiting a specified place, to reside in a specified place or submit to pharmacological treatment.[17] A failure to comply with an examination and testing order, or a public health order is an offence.[18]
[16]PHW Act ss 113 and 114
[17]PHW Act ss 117 and 118.
[18]PHW Act ss 116 and 120 respectively.

In addition to s 111, which provides guiding principles to the application of pt 8, s 112 further regulates the making of an examination order or a public health order. It provides:

If in giving effect to this Division alternative measures are available which are equally effective in minimising the risk that a person poses to public health, the measure which is the least restrictive of the rights of the person should be chosen.

Part 9 of the PHW Act provides for the powers of authorised officers including the power to request information,[19] powers of entry[20] and power to apply for search warrants.[21]
[19]PHW Act s 167.
[20]PHW Act s 168 and s 171 (procedure for entry); s 175 (powers after entry).
[21]PHW Act s 170.

Part 10 is headed ‘Protection and enforcement provisions’. Section 188 empowers the CHO to direct a person to provide information which the CHO believes to be necessary to investigate, manage or control a risk to public health. Failure to comply is an offence.[22]
[22]PHW Act sub-s 188(2).

Pursuant to s 189 of the PHW Act, if the CHO believes that it is necessary to investigate, eliminate or reduce a risk to public health, the CHO may authorise authorised officers to exercise ‘public health risk powers’. Those powers are defined in s 190 and include closing any premises for a period of time ‘reasonably necessary to investigate, eliminate or reduce the risk to public health.’[23]
[23]PHW Act sub-s 190(1)(a).

Div 3 of pt 10 provides for emergency powers.

Section 198 relevantly provides:

198 Declaration of a state of emergency
(1)The Minister may, on the advice of the Chief Health Officer and after consultation with the Minister and the Emergency Management Commissioner under the Emergency Management Act 2013, declare a state of emergency arising out of any circumstances causing a serious risk to public health.
(2)Subject to subsection (3), the Minister may at any time revoke or vary a declaration under this section.
(3)The Minister must consult with the Minister and the Emergency Management Commissioner under the Emergency Management Act 2013 before varying a declaration under this section to extend the emergency area.
(4)Immediately upon the making, revocation or variation of a declaration under this section, a state of emergency exists, ceases to exist or exists as so varied for the purposes of this Part.
(5)As soon as practicable after the making, revocation or variation of a declaration under this section, the Minister must cause notice of the making, revocation or variation of the declaration to be—
(a)broadcast from a broadcasting station in Victoria; and
(b)in the case of the making or variation of a declaration, published with a copy of the declaration in the Government Gazette; and
(c)in the case of the revocation of a declaration, published in the Government Gazette.
…

A declaration must specify the emergency area in which the state of emergency exists, and continues in force for the period, not exceeding 4 weeks, specified in the notice.[24] Up until 9 September 2020, the total period that a declaration could continue in force was 6 months. On 9 September 2020, the total period for a declaration to continue in the case of the COVID-19 pandemic was extended to 12 months. On 11 March 2021, that date was further extended to 21 months.
[24]PHW Act sub-s 198(7).

The power to extend the duration of a state of emergency requires that the Minister make a fresh declaration, turning his or her mind to the conditions and meeting the requirements of the section.

A ‘serious risk to public health’ is defined in s 3(1) to mean:
serious risk to public health means a material risk that substantial injury or prejudice to the health of human beings has or may occur having regard to –
(a) the number of persons likely to be affected;
(b) the location, immediacy and seriousness of the threat to the health of persons;
(c)the nature, scale and effects of the harm, illness or injury that may develop;
(d) the availability and effectiveness of any precaution, safeguard, treatment or other measure to eliminate or reduce the risk to the health of human beings;
If a state of emergency exists under s 198, the CHO may grant an authorisation under s 199. To that end, s 199(2) provides:

199 Chief Health Officer may authorise exercise of certain powers
…
(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.

Section 200 provides for the four emergency powers as follows:

200 Emergency powers
(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.

Before exercising any of the emergency powers, an authorised officer must, unless it is not practicable to do so, warn the person that a refusal or failure to comply without reasonable excuse is an offence.[25] The power of detention in sub-s 200(1)(a), which was not exercised in this case, is subject to some specific qualifications.[26]
[25]PHW Act sub-s 200(4).
[26]PHW Act sub-ss 200(2), (3), (5)-(7).

Section 201 provides that an authorisation may be given orally or in writing. If given orally, it must be confirmed in writing as soon as reasonably practicable. An authorisation given under s 200 must be given in the manner set out in s 201 as follows:

201     How may an authorisation be given?
…
(3)       An authorisation must—
(a)       state that the authorisation is given under this Division;
(b)generally describe the serious risk to public health to which it relates;
(c)if the serious risk to public health has occurred, name or describe the place at which the serious risk to public health has occurred;
(d)specify the time at which the authorisation is given;
(e)specify any restrictions or limitations to which of the public health risk powers or emergency powers may be exercised under the authorisation;
(f)specify the period of time for which the authorisation continues in force.

Section 203 makes it an offence to refuse or fail to comply with a direction given to the person, or a requirement made of the person, in the exercise of a power under an authorisation given under s 199. The infringement notice served on the plaintiff alleged a contravention of s 203.

Section 204 provides that, in the event that there were insufficient grounds for the giving of an authorisation, a person may apply for, and be given, ‘just and reasonable compensation’.

The construction of the PHW Act

In their written submissions, the parties largely agreed on the meaning to be given to the provisions of the PHW Act. However, there is one matter that requires examination concerning the interaction between ss 199 and 200.

The defendants submit that s 199 and s 200 provide two separate limitations on the exercise of emergency powers. First, they submit that in order for the CHO to authorise authorised officers to exercise emergency powers, the CHO must believe that it is necessary to grant an authorisation under s 199 to eliminate or reduce a serious risk to public health. I agree.

Second, they submit the powers in s 200 must be exercised for the purpose of eliminating or reducing a serious risk to public health. That much may also be accepted. They further submit that the powers in s 200 may only be exercised if the authorised officer considers it reasonably necessary to protect health by reducing or eliminating a serious risk to public health. In the present case, Dr Romanes who made Directions No 14, recited that he believed it necessary to protect health by reducing or eliminating a serious risk to public health. The plaintiff does not dispute that he held this view. Thus, if it was required by s 200, it was satisfied in this case.

However, I do not agree that s 200 works in the way submitted by the defendants. First, only sub-s 200(1)(d) refers to the state of mind of the authorised officer. That is not surprising because the content of the direction and its connection to the purpose need not be specified by the CHO and is a matter for the authorised officer. It calls for consideration of whether the authorised officer considers it to be reasonably necessary.

Sub-sections 200(1)(a) to (c) are not so conditioned. Again, that is explicable because the CHO will have already found that those specific powers are reasonably necessary in the context of a declaration of emergency that is time limited. It must be borne in mind that the powers in sub-ss 200(1)(a) to (c) involve the implementation of the steps that the CHO considers to be necessary. Although authorised officers must be appointed and have the skills and training to perform their task,[27] there is nothing in the PHW Act that says that these skills must relate to health. They may involve what might be thought to be enforcement powers.
[27]PHW Act s 30.

I would not construe sub-s 200(1)(b) as requiring the authorised officer who restricts the movement of any person to first consider whether it is reasonably necessary to protect health by reducing or eliminating a serious risk to public health. Of course the power must be exercised for the purpose for which it is given, and reasonably, but that is different to requiring the authorised officer to replicate the decision making that the CHO will have already engaged in.

Decisions made under the PHW Act
The State of Emergency under s 198

On 16 March 2020, acting under sub-s 198(1), the Minister declared a state of emergency throughout Victoria ‘arising out of the serious risk to public health in Victoria from Novel Coronavirus 2019 (2019-nCoV).’ The declaration operated for four weeks and has been extended on multiple occasions. On each of those occasions, the conditions for the making of a declaration needed to be satisfied. The plaintiff does not contend that they were not.

Authorisation under s 199

On 11 May 2020, the CHO authorised a number of persons, including Dr Finn Romanes, to exercise any of the public health risk powers and emergency powers without restriction or limitation. The instrument of authorisation records that the CHO believes the authorisations are necessary to eliminate or reduce a serious risk to public health.

Directions under s 200

Relevantly for the present proceeding, on 27 August 2020, Dr Romanes, ‘Deputy Public Health Commander’ made Directions No 14. Its salient parts are set out below.

I, Dr Finn Romanes, Deputy Public Health Commander, consider it necessary to eliminate or reduce the risk to public health – and reasonably necessary to protect public health – to give the following directions pursuant to section 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic.) (PHW Act):
PART 1 – PRELIMINARY
1 Preamble
(1)The purpose of these directions is to address the serious public health risk posed to Victoria by Novel Coronavirus 2019 (2019-nCoV).
(2)These directions require everyone who ordinarily resides in the Restricted Area to limit their interactions with others by:
(a)restricting the circumstances in which they may leave the premises where they ordinarily reside and the Restricted Area; and
(b)placing restrictions on gatherings, including prohibiting private gatherings (no visitors to another person’s home other than in very limited circumstances).

…..
3 Revocation
The Stay at Home Directions (Restricted Areas) (No. 13) are revoked at 11:59:00 pm on 27 August 2020.

4 Stay at home period
For the purposes of these directions, the stay at home period is the period beginning at 11:59:00 pm on 27 August 2020 and ending at 11:59:00 pm on 13 September 2020.

PART 2 – STAY AT HOME
5        Direction – stay at home other than in specified circumstances
Requirement to stay at home
(1)A person who ordinarily resides in the Restricted Area during the stay at home period must not leave the premises where the person ordinarily resides, other than for one or more of the reasons specified in:
(a)       clause 6 (necessary goods or services);
(b)       clause 7 (care or other compassionate reasons);
(c)       clause 8 (work or education);
(d)      clause 9 (exercise);
(e)       clause 10 (other specified reasons).

Travel restrictions
(1A)A person may only leave their premises under subclause (1) where it does not involve unreasonable travel or travelling to a place for an unreasonable period of time.
Note: travelling to an area outside the Restricted Area for exercise is prohibited under these directions.
(1AA)A person must not travel in a vehicle with another person with whom they do not ordinarily reside unless it is not otherwise reasonably practicable for either person to leave their premises for a purpose permitted under these directions.
Example: a person who does not hold a driver’s licence may travel in a vehicle with another person with whom they do not ordinarily reside for the purposes of attending a medical appointment or doing their grocery shopping if it is not reasonably practicable for them to get there another way.
(1AB)A person who leaves their premises under either subclause (1)(a) (necessary goods or services) or (d) (exercise) must not:
(a) travel further than 5 km from their premises; or
(b) do so more than once per day.

9 Leaving premises for exercise
(1)A person who ordinarily resides in the Restricted Area may leave the premises to exercise, but must:
(a)only exercise at a facility that is not prohibited by the Restricted Activity Directions (Restricted Areas) (No. 8); and

Example: as swimming pools are not open under the Restricted Activity Directions (Restricted Areas) (No. 8), a person may not leave their premises to swim in a pool in any location.
(b)comply with the restrictions on gatherings in clause 11; and
(c)take reasonable steps to maintain a distance of 1.5 metres from all other persons.

(2)Subclause (1)(c) does not prevent a person from walking with another person or persons for the purposes of exercise.

10       Leaving premises for other reasons
(1)A person who ordinarily resides in the Restricted Area may leave the premises in the following circumstances:
(a)       for emergency purposes; or
(b)       as required or authorised by law; or
(c)for purposes relating to the administration of justice, including, but not limited to, attending:
(i)        a police station; or
(ii)a court or other premises for purposes relating to the justice or law enforcement system; or

(d)to attend a place of worship, if that place of worship is operating in accordance with the Restricted Activity Directions (Restricted Areas) (No. 8); or
(e)to attend a community facility, if that facility is operating in accordance with the Restricted Activity Directions (Restricted Areas) (No. 8); or
(f)for the purpose of driving a person with whom they ordinarily reside where it is not otherwise reasonably practicable for that person to leave their premises for a purpose permitted under, and provided they comply with, these directions; or
Examples: driving a household member who does not have a driver’s licence to or from work, to obtain educational services, or to the ordinary place of residence of a person with whom they are in an intimate personal relationship.
(g)if the premises in which the person ordinarily resides is no longer available for the person to reside in or is no longer suitable for the person to reside in; or
(h)for purposes relating to, or associated with, dealing in residential property, including attending a private inspection of a residential property organised in accordance with the Restricted Activity Directions (Restricted Areas) (No. 8) and the Restricted Activity Directions (Non-Melbourne) (No. 3); or
(i)for the purposes of moving to a new premises at which the person will ordinarily reside; or
(j)if the person ordinarily resides outside Victoria, for the purposes of leaving Victoria; or
(k)if the person is permitted to leave Australia, for the purposes of leaving Australia; or
(l)for the purposes of national security.

PART 4 – GATHERINGS
11 Restrictions on gatherings
Public gatherings
(3)During the stay at home period, a person in the Restricted Area must not arrange to meet, or organise or intentionally attend a gathering of, more than one other person for a common purpose at a public place, except:
Note: subclause 11(3) does not prevent a person attending a public place (for example, a shopping centre) for a purpose (for example, shopping), where other people are also likely to be attending that public place for a similar purpose. It prevents people from attending a public place intending to gather with other people for a common purpose (for example, meeting family or friends at the shopping centre).

(a)where it is necessary for the person to provide, or the person requires, care and support due to:
(ii)age, infirmity, disability, illness or a chronic health condition; or
(iii)matters relating to the other person’s health (including mental health or pregnancy); or

(b)if the person is a parent or guardian of a child, and the person cannot access any child-minding assistance (whether on a paid or voluntary basis) so that the parent or guardian can leave the premises without the child, then the child may accompany the person when gathering with one other person; or
(c)for the purpose of attending a wedding in a Restricted Area that complies with the requirements in subclause (4); or

Note: a person who ordinarily resides in the Restricted Area must not attend a wedding outside the Restricted Area, except as a celebrant who may leave the Restricted Area under clause 5(1B)(c).
(d)for the purpose of attending a funeral that complies with the requirements in subclause (5); or
(e)it is necessary to arrange a meeting or organise a gathering for one or more of the purposes specified in clauses 7 (care or other compassionate reasons), 8 (work or education) or 10 (other specified reasons); or
(f)where it is for one or more of the purposes specified in clause 6 (necessary goods or services) and the exceptions in clause 5(1AD) apply.

The effect of Directions No 14 is colloquially called a ‘lockdown’.

The Stay Safe Directions

The Stay Safe Directions was given on 28 October 2020. It eased the restrictions in place at the time. Relevantly, the Stay Safe Directions:

(a) Removed the stay at home rule, allowing persons to leave their home for any reason, but retained a 25 kilometre travel limit; and

(b) Retained the limit of 10 people for general outdoor gatherings, with special provision made for certain kinds of gatherings, such as, weddings and religious gatherings.

The plaintiff focuses on the fact that there is no exception to allow for public gatherings for the purpose of engaging in political communication.

The Stay Safe Directions was revoked on 8 November 2020 by the Stay Safe Directions (Victoria) when restrictions were further eased. Since then, there have been a series of measures of varying degrees of severity. They have included a number of periods of lockdown in which the restrictions were very similar to those imposed under Directions No 14.

The meaning and legal and practical effect of the Directions

The first point of note is that Directions No 14 was made by an authorised officer who recites that he considers it necessary to eliminate or reduce the risk to public health, and to that end, reasonably necessary to give the direction pursuant to sub-ss 200(1)(b) and (d).

In the preamble, Dr Romanes records that the Directions No 14 requires persons who ordinarily reside in the ‘restricted area’ to ‘limit their interactions with others’. In pursuit of that goal, the direction:

(a) restricts the circumstances in which they may leave their ordinary place of residence; and

(b) places restrictions on gatherings.

Directions No 14 was in force for 17 days.[28]
[28]Directions No 14 Cl 4. The directions began at 11.59pm on 27 August 2020 and ended at 11.59pm on 13 September 2020.

The requirement to ‘stay at home’ is provided for in pt 2. Clause 5 provides that persons must not leave their premises ‘other than for one or more of the reasons’ specified in clauses 6 to 10. Clauses 6 to 10 then set out the circumstances in which a person may leave based on five reasons: obtaining or providing necessary goods or services; care or other compassionate reasons; work or education; exercise; and other specified reasons.

The balance of clause 5 deals with some issues of detail, including, by defining the principal and ordinary place of residence;[29] imposing travel restrictions which mean that a person may not travel for goods or services or exercise further than 5 kilometres from their premises once a day;[30] and prohibiting leaving home unless the person wears a face covering at all times.[31]
[29]Directions No 14 Cl 5(1D) and Cl 5(2).
[30]Directions No 14 Cl 5(1B) and 5(1C).
[31]Directions No 14 Cl 5(6).

Part 3 fills in the details surrounding the permitted reasons for leaving home including by defining necessary goods and services;[32] explaining what constitutes care and other compassionate reasons;[33] allowing a person to leave home for work if the person is a ‘permitted worker’ or for education purposes;[34] exercise;[35] and other specified reasons.[36] The freedom to exercise outside of home is further constrained by the limitations on gatherings (which has the effect that a person may exercise with no more than one other person), social distancing, the 5 kilometre limit and a time limit of one hour.[37]
[32]Directions No 14 Cl 6(1).
[33]Directions No 14 Cl 7(1).
[34]Directions No 14 Cl 8(1).
[35]Directions No 14 Cl 9(1).
[36]Directions No 14 Cl 10(1).
[37]Direction No 14 Cl 5(1AE).

Part 4 imposes limitations on gatherings, both public and private. It covers gatherings within premises (by tying attendance back to a permitted reason) and in public places. Except in limited circumstances, a person must not arrange to meet, organise or intentionally attend a ‘gathering of, more than one other person for a common purpose at a public place.’[38]
[38]Direction No 14 Cl 11(3).

It can be seen from that brief survey that Directions No 14 limits or restricts interactions between people in the restricted area by:

(a) Restricting the circumstances in which people may leave home (the stay at home rule);

(b) In the case of exercise, limiting the length of time at which they were permitted to leave their home and the distance they may travel (the time rule and the distance rule);

(c) Requiring the wearing of face coverings outside of the home (the face mask rule) and maintaining social distance; and

(d) Prohibiting gatherings of more than two people (the public gathering rule).

It is not in contest that, apart from the potential operation of the implied freedom, the restrictions are authorised by sub-ss 200(1)(b) and (d). It seems plain that the stay at home rule, the time rule, and the distance rule, restrict the movement of persons and thus fall within sub-s 200(1)(b). It is arguable that the public gathering rule is also authorised by sub-s 200(1)(b). In any event, the public gathering rule, the face mask rule, and the requirement for social distance fall within sub-s 200(1)(d). There is no question that in fact the authorised officer considers them to be reasonably necessary to protect public health from a serious risk to public health.

There is one relatively minor area of disagreement on the construction of Directions No 14. The issue concerns whether a person can engage in political communication provided they are out of their home for a permitted purpose, and also complying with any express obligations. The defendants submit that, subject to compliance with the express rules, Directions No 14 does not prohibit a person engaging in political communication outside of their residence, provided they leave for a permitted reason. They give the example of a political slogan on clothes worn by a person exercising away from their residence.

The plaintiff submits that Directions No 14 does not allow a person to leave their premises for the reason of engaging in political communication, if that person is also leaving for a purpose otherwise permitted by Directions No 14. She says a person leaving their home to exercise within their 5 kilometre zone, but also wishing to protest while exercising (eg. while wearing a political t-shirt or carrying a placard) would contravene the stay at home rule.

She says that Directions No 14 does not expressly state that a person may leave for a “non-permitted” purpose if also leaving for a “permitted purpose”. Moreover, the language of cl 5(1) (‘must not leave the premises … other than for one or more of the [specified] reasons’) makes clear that multiple purposes for leaving are permitted, but only if all of those purposes are permitted purposes.

As will appear, the constructional question only assumes importance if the McCloy test is to be applied directly to Directions No 14, and only then to identify a less burdensome alternative as part of the necessity analysis. Given my ultimate conclusion, the issue does not arise.

However, it is convenient to express my conclusion on the topic. It is clear from the express terms of cl 5 that a person may leave their home for more than one reason. That also reflects human experience that a person’s purpose for engaging in conduct will often have more than one dimension.[39] However, the text of cl 5(1) of Directions No 14 is clear: a person may only leave their residence for a permitted purpose or permitted purposes.
[39]Perpetual Trustee Company Ltd v Papantoniou [2014] NSWSC 685, [71] (Campbell J): ‘Human motivation is complex. A person's purpose for engaging in conduct may be mixed, and subject to conflicting, even contradictory, motives’.

In this respect, it is plain from its context and purpose that the prohibition on leaving other than for a permitted reason means that, in order to be allowed to leave, the person must leave for a permitted reason and only remain outside of the home while they retain that purpose. The constraint is not only on the physical act of leaving the residence, but also conditions the time outside of the home.

The purpose of the provision is to restrict people from leaving their residence and to make them return once the purpose for which they leave has been achieved or is no longer operative. It does so by reducing the reasons for which they may leave. The reasons are narrowly crafted and balance the risk of interaction against what, on their face, are common and understandable reasons to leave. It would undermine the protective purpose of the stay at home rule if a person could leave their residence for any reason provided it was combined with a permitted reason. Such additional (and unconfined) reasons would provide a ‘pull factor’ that might encourage people to leave their residence when they would otherwise stay home. It would dilute the force of the Directions and also complicate enforcement. As it is, the reason a person leaves is a question of fact, but the menu of permitted reasons limited. Introducing the concept of non-proscribed (but not permitted) reasons would make enforcement harder and may encourage avoidance. It is not supported by the text.

The ability to avoid the requirement to stay home turns on the reason a person leaves. It is not inconsistent with a lawful reason for leaving that, when the person is outside of the home they express themselves in a way that might have some political content. Wearing an item of clothing that is emblazoned with a political message might involve political expression, but in itself might say nothing about why the person leaves home. For that reason, the examples proffered by both parties of the politically charged t - shirt is a distraction. Once the focus is properly directed to the reason for leaving a person’s residence, there is no room for a dual purpose that includes a non-permitted reason.

Before leaving the terms of Directions No 14, there is one further point that requires mention. The plaintiff has raised the question whether Directions No 14 are decisions of an administrative or legislative character. Having raised it, the plaintiff then submits that the distinction does not matter in this case because the principles to be applied are the same. That being so, I do not propose to enter into the debate.

Having set out the statutory provisions and the detail of the Directions, it is convenient at this point to refer to the expert evidence adduced by both parties. The plaintiff called Professor Bennett and the defendants called Dr Alpren and Professor McLaws.

The expert evidence
Professor Bennett

Professor Bennett has held the inaugural Chair in Epidemiology at Deakin University since 2009. She holds a PhD in biological anthropology and population genetics, and a Masters in Applied Epidemiology specialising in communicable disease epidemiology with the Australian National University. Her expertise to express the opinions she gave was not disputed. In cross examination the defendants sought to establish that Professor Bennett had little practical experience, however, given the nature of the discipline, with its focus on data and modelling, and her involvement in reviewing and researching practical measures to prevent the spread of disease, nothing turns on this.

Her report, dated 30 November 2020, answers a number of questions posed in a letter of instruction from the plaintiff’s solicitor. Her report covers three main topics: the ‘drivers’ of the risk of transmission of COVID-19; the relationship between movement of persons and the risk of transmission; and transmission risk in outdoor settings.

Professor Bennett commenced her report by observing that the most common mode of community transmission in a community setting is respiratory droplet transmission. Given droplets rarely travel more than 1.5 to 2 metres from the infected person, the greatest risk of infection lies with close contacts, who in Victoria are defined to mean people who have been within 1.5 metres of a confirmed case for 15 minutes or more, or within the same closed area for more than two hours.

Professor Bennett said that movement of persons per se does not necessarily modify the risk of transmission and that movement can occur without any change to the underlying or contextual risk of transmission. She gave as two examples of movement that may increase risk the use of public transport and having increased exposure to non-household members. She said risks could be reduced by staying outdoors, compliance with basic precautions such as wearing a fitted mask, practicing hand hygiene and coughing etiquette, avoiding direct contact with other people, and avoiding crowded areas that limit the ability to maintain a physical distance of 1.5 metres or more.

In relation to public gatherings Professor Bennett was asked: ‘given the rate of infection in Victoria during the ‘second wave’, what is the relative risk of outdoor public gatherings compared to other permitted activities (such as buying coffee or alcohol onsite)?’ To that very broad question, Professor Bennett answered that the likelihood of being in proximity to members of households other than one’s own in these scenarios is a key determinant of the risk of viral transmission. Infection depends on coming into contact with an infected person in a context that permits transmission. She said:

If I assume that the scenarios provided occur in the same local environment with a given COVID-19 incidence, that attendees are all local (ie. there is no additional risk from transiting to the activity location, and they are from one area with a given incidence of COVID-19) and that public health directions regarding distancing and mask wearing are complied with equally, then transmission risk will arguably be the same under any such outdoor scenarios. However there are potential contributing behavioural factors that might alter risk that need to be considered

Based on those assumptions Professor Bennett concluded:

it is my opinion that transmission risk in a given outdoor location is materially the same for any activities where individuals do not come into contact with shared surfaces, are complying to the same degree with the Public Health directions regarding distancing, hygiene, and mask wearing, and where those present are equally likely to comply with orders regarding isolation/non-attendance if they are laboratory-confirmed cases or are symptomatic (whether they have been tested or not). Under these conditions, I would estimate the relative risk to equal one.

In coming to that conclusion, Professor Bennett said that depending on the nature of an activity, people may be less likely to comply with mask wearing or physical distancing, or may be more likely to attend even if they are a confirmed case and potentially infectious or, if not tested, to attend with symptoms.

In cross examination, Professor Bennett explained that transmission risk depends on the nature of the interaction between people, and that not all interactions carried the same risk. She made the point that risk depends on the level of infectiousness and the context in which the interaction occurs, with large differences in risk in different settings, such as indoor when compared with outdoor interactions. Professor Bennett noted that her opinion as to the relative risk between outdoor gatherings and activities permitted under Directions No 14 required her to assume that all other things were equal, including: the same local environment; compliance with directions and self-isolation requirements; duration of the activity; number of people involved; density; turnover of participants; behaviour; and mode of travel, for example, whether public transport is used.

Professor Bennett accepted that the number of attendees at a public gathering may influence the risk of transmission in a number of ways, including by increasing the likelihood of an infectious person being present and/or by modifying the public’s behaviour, especially the ability for individuals to physically distance if crowd density increases. She extrapolated from data on 7 August 2020 on the number of known infectious persons in Victoria (6,769 persons), that at that time, there were 5,057 infectious persons not in isolation and, based on a population of 6.359 million, assessed the risk of an infectious individual not being in isolation was less than one per thousand people, and that therefore the risk of having an infectious person at an event in Victoria, at the peak of Victoria’s actives cases, was still very low.

Professor Bennett said that the risk of infection might change depending on the nature of the behaviours exhibited, including increased vocalisation (such as singing, cheering or shouting), greater physical contact with others (shaking hands or other forms of greeting), or more or less compliance with usual precautions because of peer pressure or group behaviour. She said these needed to be assessed on a case by case basis.

She said that the risks associated with public gatherings could be mitigated by a COVID-19 Safe Plan that took into account things such as background infection rates, crowd size, density, ventilation, and whether the attendees are seated or standing.

Professor Bennett was asked whether there was any ‘epidemiological reason’ that Victoria could not have had an outdoor protest scheme similar to New South Wales. In her report, Professor Bennett referred to the NSW model as allowing gatherings of up to 500 people. I note that the NSW restrictions allowed public gatherings of up to 20 people until 23 October 2020 and on that day the restriction was relaxed to 500 persons.

She said that, as at 18 October 2020, given the low risk of any individual being infectious at that time, and the very low risk of transmission outdoors, especially in the presence of mitigating measures required under a COVID-19 Safe plan, the risk of transmission occurring at even the largest of events permitted in NSW would have been extremely low. For that reason, she said that there was no epidemiological argument against the introduction of a NSW-style COVID-19 Safe strategy in Victoria with a COVID-19 case profile as it was on 18 October 2020, assuming attendance caps were reviewed against community transmission risk.

In cross examination, Professor Bennett accepted that some infected individuals may be responsible for infecting a large number of people, a phenomenon she described as ‘over dispersion’ and which has been described as a ‘super spreader’. She said that 10 to 20 percent of people are responsible for the majority of the infections and that 80 percent are believed not to pass on the virus, or pass it on to a small number of people in their own household. These matters are influenced by the infected person’s viral load (which will vary during the period of infection), and their behaviour. In that context, she accepted that theoretically it takes one person in the right conditions to seed an outbreak.

Professor Bennett accepted that stay at home directions, together with measures such as a requirement to wear masks and maintain social distance, can be an effective tool to control an outbreak of an infectious disease such as COVID-19. She said that based on prior experience, these measures work but that the role played by each element to the success of the measures was yet to be evaluated.

Professor Bennett said that resort might be had to lockdowns in extreme circumstances. In that context, she identified a number of considerations, including the agent and the risk it poses, and also how people will respond to that risk. She said these things come together ‘with a rapid response when you are trying to manage a pandemic in the early stages’ and that one of the difficult areas was public health communication and understanding compliance, and ‘those things we were learning on the fly in the roll out of the response to this pandemic’.

Various scenarios were put to Professor Bennett in order for her to express her opinion on the nature of the various risk levels involved. The examples included a group of persons singing outside a supermarket, or travelling by public transport. Professor Bennett said that these potentially increase the risk, but the risk of infection is dependent on many other variables, including the probability of an infected person being present, and compliance with rules such as mask wearing and social distancing. For outdoor gatherings of ‘about 10 people’ meeting to sing and chant, Professor Bennett thought the risk would be low.

Professor Bennett considered that in 2020 the risk of outdoor transmission was very low, that some data showed just four percent of outbreaks had occurred in outdoor settings, and this was consistent with observations in Australia, including in Victoria, about the ratio of indoor to outdoor transmission.

Professor Bennett accepted that her opinions as to risk were confined to transmission risk and did not factor into account the severity of the consequences of infection.

Dr Alpren

Dr Alpren is an epidemiologist employed in the Department of Health and Human Services. He is a medical practitioner. Since 2014 he has worked in public health, both in Australia and overseas including with the World Health Organisation and the Centers for Disease Control and Prevention (‘CDC’). He has a Masters of Public health from James Cook University. He is presently the Director of Investigation and Analysis in the Data, Intelligence, Modelling and Epidemiology Branch, COVID-19 Division (‘DIME’). His affidavit was largely concerned with the nature and extent of the COVID-19 outbreak in Victoria during July to November 2020.

In cross examination, Dr Alpren was asked a number of questions and various scenarios were put to him with a view to establishing that allowing persons to leave their home for either a concurrent reason of engaging in political communication,[40] or for that reason alone, would not alter the risk of infection because it was the conduct of the person when out of their home, and not the reason for leaving, that was material.
[40]That is, together with a permitted reason.

Dr Alpren agreed that in relation to a person who left home for exercise and who complied with the public health requirements of wearing a mask and social distancing but who also wore a t-shirt with a political slogan, there was no ‘scientific basis’ for saying that person should not be permitted to leave home because of what they were wearing. He agreed that as long as a person leaves for a permitted reason, and they are otherwise complying with the rules, there is no scientific reason to treat that person differently because they also want to engage in political communication at the same time.

He said that the scientific basis for the Directions was physical distancing and hygiene. He was asked to consider a person who leaves home for the permitted reason of obtaining a takeaway coffee, and a person who leaves for the sole purpose of walking out their front door to the kerb of their street to erect a protest sign. When asked whether the former was riskier than the latter, he answered that the restrictions were designed to permit society to run whilst maximising the physical distance and minimising the harm that could be brought to the whole of the public during extreme times. He accepted that there was nothing ‘necessarily risky’ about a person leaving home to engage in political communication. He accepted that a person who left their home to purchase takeaway coffee from a local café would be more likely to interact with others than a person leaving their house solely to place a protest sign on the edge of their street.

Dr Alpren accepted that the risk of transmission is not determined by the reason a person leaves but what they do when they leave and how many other people are outside at the same time. In that context, he said that adding to the reasons to leave might increase the number of people who are out at the one time. He said that based on data and modelling that was performed in 2020 he considered that the more reasons you have, the more people are outside and the more interactions there will be.

Dr Alpren said that in his discussions at the time the Directions were formulated, there was an awareness of the consequences of the restrictions and that there was behavioural research on the likely effect of different restrictions. When asked whether it would have been safer from a risk perspective to close cafés, given that coffee was not essential, Dr Alpren explained that different people have different lifestyles and some people depend on having food prepared for them, and it is important that the essential things: food, drink, and medical care, were available so that as far as possible people did not come to harm from the restrictions.

In response to that evidence, Dr Alpren was asked whether the restrictions could be changed so as to allow a person to leave to engage in political communication without increasing the total amount of time they are permitted to be away from their home. Dr Alpren accepted that this would be possible.

In relation to public gatherings, Dr Alpren accepted that it would have been possible to create an exception for outdoor gatherings for the purpose of political communication, with appropriate conditions, without materially adding to the public health risk. That evidence was later qualified when, in the context of the Stay Safe Directions, Dr Alpren disagreed with the proposition that those directions could have included an exception of public gatherings for the purpose of political communication without increasing the transmission risk. He added that the more reasons and the more exceptions there are, the more risk there is, and that the risk increases with every reason. He said that at the time of the Stay Safe Directions, there was still a risk of transmission and there was evidence of community transmission.

Dr Alpren said he was not aware of any evidence specifically directed to risks associated with outdoor protests.

Professor Mary-Louise McLaws

Professor McLaws is a Professor of Epidemiology, Healthcare Infection and Infectious Diseases Control at the University of New South Wales.

Professor McLaws explained that assessing an outbreak of an infectious disease takes into account variables that include pathogenicity and virulence (that is, the ability to cause disease and death), contagiousness (to cause infection), mode of transmission (how it spreads), and environmental factors (indoor, crowds etc.) that facilitate transmission. From an epidemiological perspective, outbreak management is about reducing the risk and incidence of infection as much as possible. However, she said that control or mitigation involves a number of disciplines including infection prevention and control experts, virologists, clinicians, public health officers, law, community cultural/religious liaison officers, health educators, and health and government authorities.

For that reason, consequences such as economic cost, impacts on education, and risks of increased crime including domestic violence, while undoubtedly of great significance, do not present as epidemiological concerns. That is, an epidemiologist outbreak manager is concerned with reducing the risk of infection by achieving the lowest rate of transmission.

In her report, Professor McLaws said there are a number of ways to track the incidence and predict the likely course of an outbreak. This will be influenced by the rate of infection (measured by an R0 value), the source of infection and whether it its linked, and the context in which infection occurs. The R0 value, the rolling 14 day average daily case numbers (representing two incubation periods), the case fatality rate, and traceability, inform the impact of not introducing restrictions rapidly. Any approach to restrictions should be informed by the precautionary principle, which includes the requirement that uncertainty about potentially serious hazards does not justify ignoring them.

Professor McLaws aggregated a number of variables in order to assess whether at a particular point of time it would have been safe to relax the stay at home directions that had been imposed in Victoria on 9 July 2020 (and continued by Directions No 14). She described this aggregation, depicted graphically, as a traffic light system that provided an early warning of increasing transmission. She concluded that Directions No 14: prevented further avoidable infections and deaths; reduced the strain on health services such as hospitalisations, testing clinics and pathology services; increased the number of public health officers and contact tracers; and increased the number of law enforcement checks on those under isolation.

In cross examination, Professor McLaws was asked a number of questions about her traffic light system. Professor McLaws said that the mathematics had been verified but the model had not been peer reviewed.

Professor McLaws was not aware of any evidence that any of the protests that occurred in Australia during lockdowns were ‘super-spreading events’ and that there was no additional transmission as a result of the Black Lives Matter protests that had taken place in June 2020. She was not aware of any evidence that outdoor public gatherings of any kind had caused outbreaks in Victoria, and she accepted that the risk associated with outdoor gatherings was much less than the risk associated with indoor gatherings.

Professor McLaws said that often, but not always, the purpose of a gathering might indicate what conduct might be expected to occur. She accepted that attending a funeral, which subject to restrictions was permitted, might involve close physical contact including participants crying, blowing their noses, speaking to one another, and singing. She also accepted that political expression might include a solitary silent vigil. She accepted that an outdoor political gathering of 10 people – if necessary precautions were taken – would carry less risk than the risk associated with an indoor funeral of the same size.

The grounds

By her Further Amended Originating Motion dated 29 March 2021, the plaintiff seeks a number of declarations directed to the validity of parts of Directions No 14 and the Stay Safe Directions. She seeks declarations to the effect that:

(a) Clauses 5(1) and/or 10 of Directions No 14 are each ultra vires the PHW Act by failing to provide a lawful means for a person to leave their premises to engage in political communication,[41] or alternatively to engage in political communication if the person is also leaving for a permitted reason and otherwise complying with the direction;[42]
[41]Declaration 3 Further Amended Originating Motion dated 29 March 2021 (‘FAOM’).
[42]Declaration 4 FAOM.

(b) Clause 11(3) of Directions No 14 is ultra vires the PHW Act by failing to provide any lawful means for a person to arrange to meet or organise or intentionally attend a gathering with any other person at a public place for the purpose of engaging in political communication;[43]

(c) Clause 5(1) of the Stay Safe Direction is ultra vires the PHW Act to the extent that subclauses (2), (2A) and (2B) restrict a person leaving premises to engage in political communication;[44] and

(d) Clause 11(5) of the Stay Safe Directions is ultra vires the PHW Act by failing to provide any lawful means for a person to arrange to meet or organise or intentionally attend a gathering with more than nine other persons at a public place for the purpose of engaging in political communication.[45]

[43]Declaration 5 FAOM.

[44]Declaration 6 FAOM.

[45]Declaration 7 FAOM.

The grounds in support of the declarations are somewhat discursively expressed and are reflected in the submissions made by the plaintiff. It is not necessary to refer to them at this point.

Notably, the plaintiff does not contend:

(a) That the PHW Act is invalid; or

(b) That the Directions are invalid on any public law grounds, other than by reason of the implied freedom. That is to say that, the implied freedom apart, the plaintiff does not contend that the Directions were not authorised by the PHW Act. It follows that is there is no separate statutory question that arises for determination.[46]

[46]Palmer v Western Australia [2021] HCA 5, [5] (Kiefel CJ and Keane J), [128] (Gageler J) and [200] (Gordon J) (‘Palmer’).

The plaintiff: standing and utility

By way of a preliminary point, the defendants submit that the plaintiff lacks standing to bring the proceeding, or, her claims should not be entertained as a discretionary matter on the basis that her infringement notice has been withdrawn and the Directions are no longer in force

In her affidavit, the plaintiff says that on 13 August 2020[47] [scil September], she decided to leave her house to exercise. She said that she also wanted to express her political views while she was exercising. She took with her a sign that said ‘Toot to boot’ which had a hand drawn image of the Premier of Victoria. She said she was also wearing a face mask with the words ‘Ban Dan’ handwritten on it.
[47]In her affidavit the plaintiff refers to this as having occurred on 13 August. This is plainly a mistake and the parties accept that the incident occurred on 13 September, the date of the infringement notice.

The plaintiff deposes that she was otherwise following Directions No 14, in that, she was wearing a mask, was within five kilometres of her home, and had not yet left the house that day for exercise. Whilst exercising, she also wanted to express her views regarding the Premier’s response to COVID-19. The plaintiff received an infringement notice for breaching Directions No 14, for being out of the house for a non-permitted reason.

Following receipt of the infringement notice, the plaintiff says she was deterred from both attending other protests and organising a local protest. The plaintiff says further that she feared she would be issued with another infringement or arrested and charged if she were to attend or plan a protest.

The plaintiff was not cross examined.

The defendants submit that the plaintiff lacks standing to bring the proceeding. They submit that given the Directions No 14 under which the infringement notice was issued have been repealed and replaced with other directions, and the infringement notice has been withdrawn, the plaintiff no longer has standing to bring the proceeding.

The defendants submit that the plaintiff must establish a special interest in the subject matter of the proceeding over and above other members of the public.[48]
[48]Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530–1 (Gibbs J) and 547 (Mason J); [1980] HCA 53 (‘ACF’); Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 256 [21] (Gaudron, Gummow and Kirby JJ), Hayne J agreeing at 284 [107];[1998] HCA 49; Maguire v Parks Victoria [2020] VSCA 172, [63] (Ferguson CJ, Kyrou and Niall JJA).

The defendants submit that the plaintiff has no ongoing liability under the Directions, and because they have expired they do not operate as an ongoing constraint on the plaintiff’s conduct. They submit that this is not a case like Croome v Tasmania[49] or Brown v Tasmania[50] where the plaintiffs had a special interest by reason of the continued existence of the law on the statute books, and the fact that (as in Croome) their past conduct rendered them liable to prosecution, or (as in Brown) that they intended to engage in the future in conduct which the law proscribed. In this proceeding, both sets of impugned directions have been revoked (Directions No 14 on 13 September 2020 and the Stay Safe Directions on 8 November 2020) and have no ongoing legal effect. They further submit that any further conduct by the plaintiff would take place in a different context, under different directions, and that any determination would have little practical utility.
[49](1997) 191 CLR 119, 127; [1997] HCA 5 (Brennan CJ, Dawson and Toohey JJ) (‘Croome’).
[50](2017) 261 CLR 328, 343 [17]; [2017] HCA 43 (Kiefel, Bell and Keane JJ) (‘Brown’).

Alternatively, the defendants submit that in the exercise of the Court’s discretion the proceeding should be dismissed because it lacks utility. Further, to proceed would be inconsistent with the general principle that the courts should not decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case, and to determine the rights of the parties.[51]
[51]Lambert v Weichelt (1954) 28 ALJ 282, 283 (Dixon CJ, McTiernan, Webb, Fuulager, Kitto JJ and Taylor Acting Chief Commissioner); Knight v Victoria (2017) 261 CLR 306, 324 [32]; [2017] HCA 29 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)); Clubb v Edwards (2019) 267 CLR 171, 192–3 [35]-[36]; [2019] HCA 11 (Kiefel CJ, Bell and Keane JJ); Zhang v Commissioner of Police [2021] HCA 16, [21]-[22] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).

Decision on Standing

In my view, the plaintiff has standing. The plaintiff was subject to a direction given to her in the exercise of emergency powers under sub-ss 200(1)(b) and (d) of the PHW Act, that required her to remain in her residence and only leave for a permitted reason. She received an infringement notice alleging that by failing to comply with Directions No 14 she had contravened s 203 of the PHW Act, which is a criminal offence. Even without the infringement, the plaintiff was required to remain at home. The restriction operated on her before there was any infringement. The operation of the Directions does not depend on an infringement having first occurred.[52]
[52]Kuczborski v Queensland (2014) 254 CLR 51, 101 [152]–[153]; [2014] HCA 46 (Crennan, Kiefel, Gageler and Keane JJ).

There can be little doubt that, at the time she commenced the proceeding, she had standing to challenge the validity of the Directions. Notwithstanding that the infringement has been withdrawn, she has standing, and in my view the plaintiff is entitled to seek vindication of her conduct.

The issue is similar to that considered by the High Court in Brown.[53] In that case, the plaintiffs had been charged with an offence against a law that prohibited protesting of forestry land where logging operations were being conducted. The charges were withdrawn before a hearing in the High Court to challenge the validity of the relevant law. In answer to an argument (eventually conceded) that the plaintiffs ceased to have standing on the withdrawal of the charges, Kiefel CJ, Bell and Keane JJ said:

Standing is not lost because charges are withdrawn after the exercise of powers under a statute. As Dixon CJ observed in Wragg v State of New South Wales, what has been done may be repeated. Furthermore, the plaintiffs have a "real interest" in the question of the validity of the Protesters Act because, unless constrained by it, the plaintiffs intend to engage in conduct which it proscribes. They are therefore interested to know whether they are required to observe the law.[54]

The fact that persons are allowed to leave for one or more specified reasons does not increase or ameliorate the burden, although obviously they make the requirement to stay at home less onerous and more practicable, a matter to which I shall return.

Further, the restrictions on public gatherings in both Directions No 14 and the Stay Safe Directions, which do not permit a gathering for the purpose of engaging in political communication also burdens the freedom.

The defendants submit that although there is a burden, it is significantly qualified.

First, it is limited as to time. The Directions can only remain in force for the duration of a declaration of emergency which is limited to four weeks. Although that period can be extended, it remains finite, it was no more than a total of six months as at the date Directions No 14 was made, but this has subsequently been extended to 21 months.

Second, they say any burden is indirect. The Directions do not target speech and any burden is merely a corollary or consequence of a general ban on leaving home.

Third, they say that the Directions No 14 does not limit the many ways of engaging in political communication from home, a matter significantly advanced by social media.

Fourth, as already addressed above, they submit that Cl 5 of Directions No 14 does not prohibit engaging in political communication at the same time as one of the permitted reasons. That is, they submit that the dual purpose model is already allowed for under the Directions.

In my opinion, Directions No 14 and, to a lesser extent, the Stay Safe Directions burden political communication in a significant way even though they do not do so directly and suppression of political expression is not a purpose or objective of the Directions. Although the burden is temporally limited, nevertheless it erects a significant obstacle to engaging in political activity. They condition the time, place and, to an extent, the manner of political communication.

Purpose

The defendants submit that the Directions are made for a compatible purpose. The plaintiff does not contest that proposition. I am satisfied that the Directions were made for the purpose of combating, by eliminating or reducing, a serious public health risk constituted by the COVID-19 pandemic and that this purpose is compatible with the Constitution, and the effective functioning of the system of representative and responsible government manifested in the structure and text of the Constitution.[163]
[163]Banerji (2019) 267 CLR 373, 441–2 [164]; [2019] HCA 23 (Edeleman J).

The Directions conform to the purpose of the statutory provisions and are compatible on the same basis.

Suitability

The plaintiff submits that insofar as Directions No 14 prevents a person leaving the home for the purpose of engaging in political opinion, whether in combination with a permitted purpose or on its own, Directions No 14 lacks a rational connection with its purpose of reducing the risk of transmission. That is because, she submits, the evidence showed:

(a) that it is not the reason people leave but what they do once they are outside of the home that informs risk;

(b) leaving to engage in political opinion is no riskier, in terms of transmission risk, than any of the permitted reasons, and therefore it is irrational to allow exercise or buying takeaway food but not allow solitary political communication; and

(c) any risk could be managed to an acceptable level by the imposition of conditions of the kind imposed on existing permitted reasons.

The defendants submit that the Directions are capable of achieving their purpose by limiting the extent to which persons come into close contact with each other and therefore reduce the risk of exposure and transmission.

In my opinion, the Directions bear a rational connection to the achievement of their purpose. First, they restrict the reasons for leaving home and therefore the occasions on which people might leave their home and interact with other persons. In the context of a very infectious disease, airborne and aerosol transmission, and pre-symptomatic and asymptomatic transmission, it is rational to require everyone to stay at home so as to minimise interactions. The existence of some exceptions to the general requirement to stay home does not render the failure to include one touching on political communication irrational, or sever the connection that the ban has to the attainment of the purpose.

Equally, it is rational to limit the circumstances in which people may gather both in private and in public. Public gatherings provide a clear opportunity for transmission, including in the case of outdoor gatherings. The evidence showed that, in 2020, outdoor gatherings presented a significantly lower risk than indoor gatherings, but they were not without risk. I note the risk has changed with the Delta variant.

It is also to be recalled that the plaintiff does not contend that the Directions are not authorised by the PHW Act in its terms. She does not contend that the Directions are legally unreasonable, made for an improper purpose or otherwise invalid. Although these matters are not precise analogues for the constitutional question of suitability in the context of the implied freedom, given that the PHW Act has a relevant single purpose of addressing a serious risk to public health and safety in the context of an emergency, it is impossible to see how a ban on leaving home (which is the relevant burden here) is not suitable.

As Edelman J explained in LibertyWorks:

considerations of overreach are irrelevant to this stage of the structured proportionality analysis. Considerations that might suggest overreach are part of the assessment of whether the means adopted were reasonably necessary. They are not part of the assessment of suitability. Even provisions which apply their purpose in an overreaching manner are, almost by definition, rationally connected with their purpose.[164]

[164]LibertyWorks [2021] HCA 18, [239] (citations omitted).

The Directions are suitable in the relevant sense.

Necessity

In my opinion, the hypothetical alternatives of either expressly allowing a dual purpose or adding engaging in political communication to the existing Directions, does not create an obvious and compelling alternative that is equally as effective as the Directions.

Dealing with her first two options which would allow a person to leave their residence for the purpose of engaging in solitary expression of political opinion, the logic underpinning her argument was that Directions No 14 allows persons to leave their home for a variety of reasons that balance meeting the needs of persons and the risk of spreading infection. The factual premise to the argument is that the risk of allowing people to leave for a specified reason would not change if people were allowed to leave for dual reasons, or the additional reason of engaging in political communication, or the risk could be managed.

In overview at the factual level, she submits that:

(a) there is no evidence that leaving home for the reason of engaging in political communication, of itself creates a higher risk of contracting or transmitting COVID-19 than any other reason permitted by Directions No 14 and the Stay Safe Directions;

(b) the evidence establishes that the purpose of a particular activity does not affect its underlying risk profile save to the extent it might provide information about conduct. What matters when it comes to risk, is the person’s conduct/behaviour (including whether it is possible to engage in the activity while socially distanced and wearing a mask), the duration of the activity, and the physical environment in which the activity is conducted;

(c) the evidence demonstrates no rational or scientific basis for prohibiting a person who seeks to leave their home for a permitted reason from doing so if that person also seeks to leave for the reason of engaging in political communication;

(d) the evidence demonstrates that there is no scientific basis for prohibiting political communication while allowing other exceptions to the Directions, such as leaving the home to purchase takeaway coffee; and

(e) the evidence does not establish that, simply by adding any additional reason to leave home or exception to the public gathering restrictions, the risk of transmission would necessarily be greater.

The plaintiff relies on the evidence of Dr Alpren to establish that engaging in political communication per se does not increase the risk of transmission, and that in respect of a person who is otherwise complying with the applicable rules, there is ‘no scientific basis’ for concluding that the person ought to be treated differently on the basis that they also intend to wear a t-shirt or hold a sign containing a political message.

The plaintiff submits that the risk of transmission is addressed by physical distancing, and by reducing the opportunity for persons to be in proximity with other persons. She says that there is no epidemiological reason to distinguish between leaving home for political communication (which was not permitted) and at least some of the other reasons for which those in the restricted area were permitted to leave. In that respect, she says that Dr Alpren accepted that a person who left their home to purchase takeaway coffee from a local café would be more likely to interact with others than a person leaving their house solely to place a protest sign on the edge of their street.

She says that providing for an additional reason to leave would not ‘necessarily’ have diluted the effectiveness of the Directions. In that respect, she refers to Professor Bennett’s evidence that movement of itself does not increase the risk of transmission.

I reject the submission. As Dr Alpren observed, adding to the reasons that a person may leave their home may result in people leaving home more frequently and give rise to an increased risk of transmission. In this context, it is to be recalled that the disease was known to be highly infectious and there was significant community transmission at the time Directions No 14 was made. A single infected person can cause an outbreak. The ability to leave to engage in political communication adds a ‘pull factor’ that is not found in the Directions. To allow a person to leave for the avowed purpose of engaging in political communication may add an incentive to leave the home on one or more occasions than they would otherwise have left.

To the extent that the argument is premised on the reason a person leaves and their conduct being independent variables, I reject it. As Professor McLaws said, the purpose for which a person engages in conduct may tell you something about what the conduct might be. I accept that evidence. It is not to the point that it is possible to conceive of expressions of political opinion that are solitary and are less risky than some forms of exercise. It is equally possible that an individual protester may engage in yelling or chanting or, even if silent, serve as a focal point for interactions with other members of the community who may agree or disagree, perhaps strongly, with the message being propagated.

Testing the risk of transmission by comparing particular scenarios such as buying coffee at a café and erecting a protest sign close to a person’s home is of little value when assessing how a population might react. To calibrate risk by comparing a few anodyne examples that might fall within a particular category, would, in the context of a pandemic, border on folly. A precautionary approach would be to measure the risk by reference to the full range of conduct that might occur under the cover of a particular reason to leave. In the context of political expression, it is impossible to ignore that political debate is often raucous, divisive and lacking in civility.[165] In the context of the current pandemic, topics of public debate have included the need for any restrictions, vaccination, and the genuineness of the threat posed by the virus. It would not advance the freedom very far to say that expressions of political opinion should be permitted but its content should be constrained.
[165]Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

Professor Bennett’s opinion as to the relative risk of public gatherings for a permitted reason and for engaging in political communication, was based on the assumption that all other things were equal. The assumptions Professor Bennett adopted included those as to behaviour, mode of transport, and compliance with restrictions. Given the enormous range of activities that might come under the umbrella of engaging in political communication, the assumptions were not and could not be established in fact. That is sufficient to place little or no weight on the evidence.

Even if I was satisfied on the evidence adduced in this Court that the risk of transmission involved in a person leaving home to engage in political opinion is the same as leaving for a permitted purpose such as to go to collect takeaway food, that would not take the plaintiff very far at all.

The argument ignores the context in which the powers fell to be exercised. Sub-sections 200(1)(b) and (d) are powers available to be deployed to meet a serious public health risk in the context of a declared emergency. They will inevitably involve matters of judgment. As they were in this case, they will often be exercised in times of crises and uncertainty. Assessments of risk and ascertaining the consequences of one course of action over another will rarely yield precise answers. Given what was known about COVID-19, any prediction as to risk was inherently uncertain and any decision responding to risk needed to take into account the appetite for risk in the context of a declared emergency.

As Gordon J observed in Palmer

the search for some alternative legislative means for dealing with the epidemic is futile, given the tightly constrained statutory indicia, and in circumstances where the disease was highly contagious and potentially deadly, the vector was human and the disease could be transmitted to others, sometimes many others, by a person who was asymptomatic.[166]

[166][2021] HCA 5, [208] (citations omitted).

In that context, it was certainly open to the authorised officer who crafted Directions No 14 to conclude that adding a reason might increase risk of transmission, and an alternative formulation that changed the menu of permitted reasons would not be neutral. In approaching any assessment of risk and in working out what would be a permitted reason to leave, it was also open to the decision maker to apply the precautionary principle. So much was provided by s 6 of the PHW Act, and it accords with the nature of the pandemic in which information was evolving. In the context of uncertainty it is not possible to conclude that, from the perspective of risk, even the smallest changes would leave an equally effective and workable alternative.

In any event, the Directions do not simply address the risk of transmission. Although the purpose of the Directions is to reduce or eliminate viral transmission, they allow for a range of activities, subject to conditions, and therefore cannot be seen to eliminate all risk of ongoing interaction and ongoing risk of transmission. They represent a package of measures, informed by an assessment that: requiring people to stay home will reduce risk of transmission, activities outside of the home may carry different risks, and risks may be minimised by conditions. Equally, issues of compliance and the satisfaction of basic needs must have loomed large. In turn, compliance is affected by the extent that the Directions can easily be understood and accepted. Allowing people to exercise, to leave for essential work or for certain activities assists in making the requirement to stay home more tolerable and therefore might reasonably be seen to aid compliance. They involve matters of judgment and degree which are properly reposed in the executive.

Although given in a different constitutional setting, the following observations of Roberts CJ on which the defendants rely, are apt:

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” ... When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” ... Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.[167]

[167]South Bay United Pentecostal Church v Newsom 140 S Ct 1613, 1613-1614 (2020) (citations omitted). See also Geller v De Blasio, 2020 WL 2520711 (S.D.N.Y. May 18, 2020), *3; Dolan & Ors v Secretary of State for Health and Social Care & Anor [2020] EWHC 1786, [7].

To adopt those observations here is not to introduce notions of deference or underplay the role of this Court in applying the Constitutional test, and to that end, make findings on constitutional facts. The adjudication on the validity of the legislation and executive action purportedly taken under it, is the sole province of the judiciary which cannot be squeamish about its task. However, any search for alternatives that are obvious, compelling, equally effective and practicable must take into account the actual context in which decisions are made and the respective roles played by the three branches of government. Even the assessment of risk, and the appetite for it, are matters of judgment on which there is no single correct answer. The evidence in this Court showed that expert opinion depends a great deal on the assumptions that are adopted. Inviting comparisons in the risk profile of various permitted activities and various means of political communication, as was undertaken in both the cross examination and argument, could be a never ending and ultimately barren exercise. The process did not support the contention that the Directions were irrational or that an alternative could easily be created or must have been apparent to the authors of the Directions.

The formulation proposed by the plaintiff of allowing a person ‘to engage in political communication’ would also introduce a high level of uncertainty that would be counterproductive to the effectiveness of the measures as a whole. It is obviously essential that any directions requiring people to stay at home, but allowing them to leave in certain limited circumstances, be clear, capable of being understood and accepted across the community. Allowing people to leave to ‘engage in political communication’ does not provide a clear or easily understood option. The concept of political communication in the context of the implied freedom is both broad and vague. Equally, how people may express communication covers a very wide range of potential conduct.

The plaintiff’s submissions on her proposed alternatives were formulated at a general level, and she frankly accepted in argument that matters of ‘fine detail’ would need to be worked through. In that context, it is significant that the plaintiff was unable to articulate the precise conditions that ought be imposed. It will be recalled that the conditions that were imposed in relation to leaving for work were different to those relating to exercise. The plaintiff did not identify which should be applied to political communication. It is not unimportant to observe that each of the permitted activities had their own express provisions that had an eye to ready comprehension. Inserting another reason to leave or to gather, without these items of detail, would be inconsistent with the structure and purpose of the Directions.

The point is even clearer in relation to the revisions the plaintiff propounds in relation to public gatherings. Simply put, changing Directions No 14 to allow public gatherings for political communication is not an obvious or compelling alternative. Indeed, in many respects it would run counter to the purpose and structure of the Directions No 14. The same, insurmountable, problems as those found in relation to her first two options persist. They include the uncertainty of the carve out, the increased risk associated with greater reasons to gather and the failure to articulate the relevant restrictions that would apply.

The plaintiff sought comfort in the form of directions imposed in New South Wales which, at some point in time, expressly allowed for public demonstrations. However, they provide no support to the plaintiff’s case. They were imposed at a different time and in a different context, where the extent of community transmission in New South Wales was low or absent. Those circumstances cannot be compared to those that existed in Victoria between August and November 2020. In identifying possible alternatives, the problem confronting the plaintiff is not merely one of drafting complexity, although that is significant enough to reject them, but the Directions are a package of measures that respond to risk and reflect an assessment of how the community would respond. I am not satisfied that the formulations advanced by the plaintiff are as equally effective and practicable.

Even at the time of the Stay Safe Directions, there was evidence of community transmission. The position in New South Wales was sufficiently different as to render the restrictions imposed in another State an unsafe comparator. Again, to allow for political protests in the Stay Safe Directions would not be an obvious and compelling alternative.

Adequacy of balance

It must be a rare case in which a court finds that an exercise of power is rationally connected to a legitimate purpose, and for which there are no obvious and compelling alternatives, is nevertheless invalid because the law is manifestly outweighed by the adverse effect on the implied freedom.[168] In assessing the equation, the fact that the impugned exercise of power has a ‘powerful public, protective purpose assumes a special importance’.[169] The present is not such a case.
[168]Banerji (2019) 267 CLR 373, 402–3 [38]; [2019] HCA 23 (Kiefel CJ, Bell, Keane and Nettle JJ).
[169]LibertyWorks [2021] HCA 18, [85] (Kiefel CJ, Keane and Gleeson JJ).

As was the case in Palmer, ‘it cannot be denied that the importance of the protection of health and life amply justifies the severity of the measures’ whether those measures are assessed at the level of the statute or the Directions.[170]
[170]Palmer [2021] HCA 5, [81] (Kiefel CJ and Keane J).

Conclusion

The plaintiff has failed to make out her challenge to the validity of the Directions. The proceeding must be dismissed.

---

[2021] VSC 498

17 August 2021