Kiley v McMahon

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 05166

BETWEEN:

GAYLE KILEY	Appellant
-and-
SENIOR CONSTABLE TIMOTHY MCMAHON (VICTORIA POLICE) UNI-HAMILTON	Respondent

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JUDGE:	HARRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF JUDGMENT:	10 May 2024
CASE MAY BE CITED AS:	Kiley v McMahon
MEDIUM NEUTRAL CITATION:	[2024] VSC 228

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CRIMINAL LAW – Appeal from Magistrates’ Court on a question of law pursuant to Criminal Procedure Act 2009, s 272 – Whether Magistrate erred in taking into account an irrelevant consideration – Whether Magistrate erred in failing to take into account a relevant consideration – Magistrate’s application of relevant case law – challenge to validity of Public Health and Wellbeing Act 2000, s 200(1)(b) and (d) – Palmer v Western Australia (2021) 272 CLR 505; Cotterill v Romanes [2023] VSCA 7; Loielo v Giles (2020) 63 VR 1.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Self-represented
For the Respondent	Mr J O’Connor	Ms A Hogan, Solicitor for Public Prosecutions

HER HONOUR:

On 16 March 2020, a State of Emergency in relation to the COVID-19 pandemic was declared in Victoria.[1] The State of Emergency was extended on 16 August 2020.[2] On 27 August 2020, the Deputy Public Health Commander issued directions pursuant to the Public Health and Wellbeing Act 2008 (PHW Act), including the Stay at Home Directions (Non-Melbourne) (No 4).[3] The directions prohibited a person from leaving their place of residence without a specified reason and prohibited residents outside of Metropolitan Melbourne from entering Metropolitan Melbourne without a specified reason.
[1]See introduction to the Extension of the Declaration of a State of Emergency dated 16 August 2020, and published in Victoria, Victoria Government Gazette, No S 417, 17 August 2020, 1; Affidavit of Sarah Louise Goegan affirmed 31 August 2023 (Goegan Affidavit) Exhibit SLG-6, 87.
[2]Extension of the Declaration of a State of Emergency dated 16 August 2020; Goegan Affidavit Exhibit SLG-6, 87.
[3]Stay at Home Directions (Non-Melbourne) (No 4), issued by Dr Finn Romanes, the Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the PHW Act. That direction applied to persons ordinarily resident persons in the Relevant Area, being the area of Victoria outside the Restricted Area, which was defined by Area Directions (No 7) to be the municipal districts, suburbs and localities in Greater Melbourne. The Direction required persons in the Relevant Area to limit their interactions by restricting the circumstances in which they may leave the premises where they ordinarily reside and the Relevant Area: see clauses 1, 5(1), 13. The Direction also required a person who ordinarily resides in the Relevant Area not to enter the Restricted Area other than for specified reasons (clause 5(1B). These Directions were before the Magistrate and in evidence in this appeal: Goegan Affidavit, Exhibit SLG-7 and SLG-8.

On 5 September 2020, while the Stay at Home Directions were in force, Ms Kiley attended a protest at the Shrine of Remembrance in Melbourne. The protest was against the ‘lockdown’ restrictions imposed by directions issued under the PHW Act.[4] Attending a gathering or a protest was not identified in the directions as a reason for which a person may leave their place of residence. Senior Constable McMahon arrested Ms Kiley. She identified her home address as being in Echuca, Victoria, and confirmed that this was outside Metropolitan Melbourne.[5] Ms Kiley was issued with an infringement notice for breach of Directions under the PHW Act.[6] She elected to have the matter heard at Court. The Magistrates’ Court in Echuca heard the following charges laid under s 203(1) of the PHW Act:

(a) failing to comply with a direction by a person exercising power under the PHW Act in that she left her usual place of residence without a specified reason; and

(b) failing to comply with a direction by a person exercising power under the PHW Act entering a restricted area, the Melbourne Metropolitan area, without a specified reason.[7]

[4]See evidence of Senior Constable Timothy McMahon at the Magistrates Court hearing on 30 September 2022: Transcript 30/09/22, T5.6-.30.

[5]Evidence of Senior Constable Timothy McMahon: Transcript 30/09/22, T5.6-6.9.

[6]Goegan Affidavit, Exhibit SLG-3, 9, Exhibit SLG-6, 88-89.

[7]Transcript 11/11/22, T65.4-.26.

Ms Kiley did not attend the first contested hearing and applied to have the matter heard in the High Court. That application was refused. The matter was again listed for hearing on 30 September 2022, before Magistrate Bolger. Ms Kiley pleaded not guilty. She did not materially challenge the evidence for the prosecution, but cross-examined the police informant as to whether he was aware whether she was under a ‘human control order’ under the Biosecurity Act 2015 (Cth) or the PHW Act.[8] The evidence was that he was not aware of any order or notice specifying Ms Kiley.[9] She did not call evidence and sought only to make submissions. Submissions were made by Mr David Weisinger on her behalf.[10]
[8]Transcript 30/09/22, T9.2-10.11.
[9]Transcript 30/09/22, T10.5-.10.
[10]Transcript 30/09/22, T11.2-.7.

On 11 November 2022, Magistrate Bolger found that both charges were proved beyond reasonable doubt and ordered Ms Kiley to pay an aggregate fine of $1,652.00. No conviction was recorded.[11]
[11]Transcript 11/11/22, T71.31-73.25.

On 7 December 2022, Ms Kiley filed an appeal to this Court on questions of law.

The Magistrate’s reasons for decision

Magistrate Bolger gave oral reasons for her decision. She observed that Ms Kiley had appeared to accept the factual elements of the two charges and had sought rather to challenge the validity of the law that gave rise to the charges.[12] She referred to the evidence of Senior Constable McMahon, the informant, as to Ms Kiley’s presence at the gathering at the shrine and that her place of residence had been identified as Echuca.[13] Her Honour described her understanding of the legal argument as being that the State Government was endeavouring to exercise quarantine powers that it did not possess and, as a consequence, any purported exercise of quarantine powers was unlawful.[14]
[12]Transcript 11/11/22, T65.27-.29, T67.18-.23.
[13]Transcript 11/11/22, T66.3-.29.
[14]Transcript 11/11/22, T69.10-.15.

The Magistrate referred to the High Court authority of Palmer v Western Australia[15] which had been referred to in submissions made by Mr Weisinger on Ms Kiley’s behalf. Her Honour described Palmer as being an unequivocal endorsement of the State’s authority to enact and enforce a law such as the PHW Act, so that the type of argument sought to be raised by Ms Kiley was settled. Her Honour noted that she was bound by Palmer.[16] Her Honour also noted that the decision in Loielo v Giles,[17] in which Ginnane J had considered in detail the PHW Act powers to impose restrictions in the context of the pandemic. Her Honour identified that case as being of ‘direct relevance to the issues to be determined in this matter’.[18] The Magistrate observed that Loielo related to curfew restrictions imposed by directions issued under the PHW Act, but stated that if there was power to impose a curfew there was also the power to make orders requiring citizens to stay at home or orders restricting the holding of public gatherings.[19] Her Honour accepted the correctness of Ginnane J’s reasoning, noting also that she was bound by it. Her Honour concluded that the laws about which complaint was made by Ms Kiley were lawfully enacted and found that Ms Kiley had committed the offences with which she was charged.[20]
[15](2021) 272 CLR 505.
[16]Transcript 11/11/22, T70.24-.31.
[17](2020) 63 VR 1.
[18]Transcript 11/11/22, T71.13-.15.
[19]Transcript 11/11/22, T71.8-.12.
[20]Transcript 11/11/22, T71.13-.30.

The nature of the appeal

The appeal from the Magistrate’s orders is brought pursuant to s 272 of the Criminal Procedure Act 2009 (Vic). Section 272(1) provides that a party to a criminal proceeding (other than a committal proceeding) in the Magistrates’ Court may appeal to the Supreme Court ‘on a question of law’ from a final order of the Magistrates’ Court.

Section 254 of the Criminal Procedure Act provides an alternative avenue of appeal from a conviction for an offence in the Magistrates’ Court. Under s 254(1), a convicted person may appeal to the County Court on conviction and sentence or on sentence alone. By making an appeal to the Supreme Court on a question of law under s 272 a person abandons any right to appeal to the County Court in relation to the Magistrates’ Court proceeding: s 273 of the Criminal Procedure Act.

Questions of law

Ms Kiley’s Notice of Appeal identified two questions of law. Question of Law 1 was:

Did the Magistrate take into consideration an irrelevant factor, that being case law that was immaterial to my case, specifically the cases of Palmer v WA 2021 (HCA) and Loielo v Giles 2020 (VSC)?

Question of Law 2 was:

Did the Magistrate fail to take into account a relevant consideration that it was the state’s quarantine powers that were being exercised to limit my movement?

Submissions filed on behalf of Ms Kiley[21] identified two further ‘questions for adjudication’, as follows:

3. Are ss200(1)(b) and (d) of the PHW Act invalid in their terms or practical or legal effect in their authorisation of restrictions of movement that were the invalid exercise of quarantine powers (arbitrary and indiscriminate) in relation to the infectious agent Covid-19, contrary to the rule of law and the Constitution?
4.Alternatively, are ss200(1)(b) and (d) of the PHW Act invalid for authorising the Directions, the exercise of a delegated power to the Chief Health Officer, for being the unlawful exercise of quarantine powers (arbitrary and indiscriminate) in relation to the infectious agent Covid-19, contrary to the rule of law and the Constitution?[22]

[21]Ms Kiley’s submissions were contained in a written Outline of Submissions in Reply filed 19 December 2023. Affidavits filed by her also contained material in the nature of submissions. Her affidavit filed 12 April 2023 contained submissions for the appeal. She also relied an affidavit filed 28 June 2023 exhibiting an ‘Affidavit in Support’ of Ms Kiley dated 14 September 2022 which had been tendered in the Magistrates’ Court proceeding and set out arguments made by Mr Weisinger on behalf of Ms Kiley. I admitted these affidavits without objection from the respondent on the basis that they set out the submissions on which she wished to rely and should be read only on that basis.

[22]Outline of Submissions in Reply filed 19 December 2023, 71.

These issues, while not identified in the Notice of Appeal, were the subject of Ms Kiley’s submissions which had been filed some time in advance of the appeal, and had been addressed by the respondent in written submissions. These additional questions broadly addressed the two central arguments that, as discussed below, Ms Kiley sought to rely on in her defence to the charges under the PHW Act. She had raised the validity of s 200(1) of the PHW Act and the Directions before the Magistrate, and had elaborated on those arguments in some detail in her written submissions on appeal. Although the questions of law had not been raised in the formally appropriate way, the issues had become tolerably clearly identified in her submissions, and addressed by the respondent. I considered the questions were framed in substance as questions of law, and that there would be no prejudice to treating those questions as having been put forward in the appeal. The respondent did not object to proceeding in that way. In these circumstances I permitted Ms Kiley to address those matters, and gave leave to amend the Notice of Appeal to include those questions as Questions of Law 3 and Question of Law 4.[23]
[23]Transcript 22/02/24, T8.18-.28.

Ms Kiley also identified in her Outline of Submissions in Reply in the appeal the following ‘Further questions for the Court’:

1.Is this matter a matter arising under the Constitution or its interpretation pursuant to s76(i) of the Constitution?
2. Is ss200(1) invalid (in part, to what extent) for impermissibly burdening s92 of the Constitution?

3. Is McCloy testing valid in constitutional law?

The respondent contended that submissions on these issues ought not be entertained given the strictures of an appeal under s 272 of the Criminal Procedure Act. I accepted this submission. I understood these ‘questions’ to have been put forward by Ms Kiley as issues that she wished the Court to consider, rather than identifying them as questions of law arising from the Magistrate’s orders. They were not clearly identified in her submissions to the Magistrate, had not been identified in the Notice of Appeal, and had not been addressed by the respondent in submissions. As these matters were not raised for consideration by the orders of the Magistrate nor by her Honour’s reasons for decision I did not give leave to treat these as questions of law for the purposes of s 272 of the Criminal Procedure Act and have not considered them as distinct questions.

Preliminary issue: Limited leave to lay advocate to make submissions

A preliminary issue which arose shortly prior to the hearing was that Ms Kiley requested the leave of the Court to have Mr Weisinger act as her ‘McKenzie friend’ and for him to make submissions on her behalf. A ‘McKenzie friend’ describes a person who is permitted to assist an unrepresented litigant at trial, named after a case in which it was accepted that a person not entitled to appear as a legal representative could assist an unrepresented litigant by prompting, taking notes and quietly giving advice.[24]
[24]McKenzie v McKenzie [1970] 3 WLR 472, 474-475 (Davies LJ); 477-478 (Sachs LJ).

She stated in an email to the Court:

I would like to note that I have contacted between 50 and 75 lawyers and barristers and none are available or willing or have an interest in representing me and my case in this trial.
I would like to request a McKenzie friend to help me during the trial. His name is David Weisinger and he has helped me with all of my submissions to date.
He is not a lawyer, but unless either the Court or other parties are not amenable, I would ask that David be permitted to be my McKenzie friend in this trial.
Furthermore, I would ask that he be able to speak on my behalf if and when needed and that the trial judge be aware of this arrangement. Although this may go beyond the traditional bounds of a McKenzie friend, I would otherwise be at a complete disadvantage in the proceeding as I am not proficient at articulating my ideas in verbal argument, and preventing me having such a McKenzie friend would violate the principles of natural justice.[25]

[25]Email dated 19 February 2024 from Ms Kiley to the Court’s Civil Trial Listings officers, and Callover Form dated 19 February 2024 stating ‘I have requested a McKenzie friend David Weisinger be allowed to advocate and speak on my behalf if and when I require him to. Many lawyers have been approached to represent me in this matter, and none have wanted to take up counsel due to the threat of costs and other reasons.’

Ms Kiley was correct in acknowledging that her request, in seeking that Mr Weisinger be able to speak on her behalf, went beyond the usual practice with respect to a McKenzie friend.

The question of whether a party should be permitted to have a ‘McKenzie friend’ present in a hearing is a matter of practice and procedure for the trial judge to determine by reference to all of the circumstances of the case.[26] The discretion extends to permitting a person who is not legally qualified to make submissions on behalf of the represented person.[27] A person who is not legally qualified will be given leave to represent an unrepresented litigant as a McKenzie friend, as an exception to the rule that only qualified legal practitioners may appear for litigants, when there are special circumstances making it necessary for the administration of justice.[28] This exceptional nature of the grant of leave arises because of the importance of legally qualified practitioners not only being trained in the law (and so best equipped to assist the court with the legal issues that arise) but also subject to professional rules and disciplinary sanctions for non-compliance with those rules.[29]
[26]Smith v R (1985) 159 CLR 532, 534 (Gibbs CJ, with whom Wilson, Brennan, Deane and Dawson JJ agreed at 535).
[27]Li v So [2021] VSCA 32, [20] (Tate, Emerton and Sifris JJA); Hubbard Association of Scientologists v Anderson [1972] VR 340, 342 (Gowans J, Smith and Little JJ agreeing); Damjanovic v Maley (2002) 55 NSWLR 149, 154-155 [33]-[34] (Stein JA, with whom Mason P and Sheller JA agreed at [1] and [2]). Giancaspro v SHRM (Aust) Pty Ltd (2005) 93 SASR 32, [12] (Bleby J, with whom Doyle CJ agreed at [2]) and [77] (Gray J).
[28]Giancaspro (2005) 93 SASR 32, [12] (Bleby J, with whom Doyle CJ agreed at [2]) and [77] (Gray J); Li v So [2021] VSCA 32, [20] (Tate, Emerton and Sifris JJA).
[29]Damjanovic (2002) 55 NSWLR 149, 162-163, [74]-[78] (Stein JA, with whom Mason P and Sheller JA agreed at [1] and [2]); Giancaspro (2005) 93 SASR 32, 35 [15] (Bleby J, with whom Doyle CJ agreed at [2]).

In complex cases in the higher courts there is a particular need for caution in assessing whether the grant of leave to an unqualified person to appear will serve the administration of justice.[30] There is a risk that an unqualified representative will not be able to address the legal issues involved in a way that assists the Court. It is undesirable to permit the development of any practice which will deprive the Court of the assistance of skilled professionals in any but the most exceptional cases.
[30]Giancaspro (2005) 93 SASR 32, [13] (Bleby J with whom Doyle CJ agreed at [2]); Damjanovic (2002) 55 NSWLR 149, 163 [82] (Stein JA with whom Mason P and Sheller JA agreed at [1] and [2]).

In this case, Ms Kiley’s statement to the Court that she had sought legal representation from numerous lawyers and barristers, none of whom were willing to appear, was not by way of evidence and was not tested. However, the respondent did not oppose Mr Weisinger appearing as McKenzie friend in the circumstances of the case, noting that Ms Kiley had been assisted by him at the Magistrates Court hearing.[31]
[31]Transcript 22/02/24, T2.4-.8.

This appeal on questions of law, brought in a superior court, involves the appellant seeking to raise issues of some legal complexity, in particular, arguments involving the Commonwealth Constitution. It would have been desirable for Ms Kiley to have legally qualified assistance in the preparation and presentation of her case and absent any exceptional circumstances I would have refused leave.

However, this issue was only raised shortly before the hearing, which had been listed since 22 February 2023.[32] The evidence was that arguments of the kind sought to be raised before me had been put in the Magistrates’ Court on Ms Kiley’s behalf by Mr Weisinger; and it was also apparent that the lengthy submissions filed and served on her behalf in this proceeding had been prepared by him, or with his assistance.[33] Taking into account that the appeal had been initiated in November 2022 and that the matter of whether Ms Kiley would again be permitted to be assisted by a McKenzie friend arose for determination only shortly before the hearing, and the uncontested statement that Ms Kiley had sought unsuccessfully to have a lawyer represent her, I considered that the administration of justice would be best served by to granting leave to Mr Weisinger to address the Court on Ms Kiley’s behalf.
[32]Orders of Irving AsJ 22 February 2023.
[33]Email of 19 February 2024 in which Ms Kiley advised that Mr Weisinger had ‘helped me with all of my submissions to date’. See also the Affidavit of Gayle Kiley filed 28 June 2023, exhibiting the ‘Affidavit in Support’ of Ms Kiley which had been before the Magistrate in the hearing below and which contained submissions on her behalf; that Affidavit stated that it was filed on behalf of Ms Kiley, identified David Weisinger as her McKenzie Friend, and stated that he wished ‘to raise a defence for Ms Kiley based upon the following reasoned arguments’.

As extensive written submissions addressing the appeal had already been filed by Ms Kiley, I limited the scope of the leave granted to Mr Weisinger to make submissions. I permitted him to address three issues which were prominently identified in the written submissions and which required clarification, and to make submissions in reply to the respondent’s oral submissions at the hearing. I informed the parties of the issues in advance of the hearing.[34]
[34]Email from chambers to the parties 21 February 2024.

The respondent did not object to Mr Weisinger making submissions within the limitations I had identified.

Mr Weisinger made submissions on the three issues. Ms Kiley made her own submissions in reply to the respondent.

The issues for determination on the appeal

Ms Kiley did not take issue with any of the factual findings of the Magistrate.[35] The issues raised on appeal applied to the legal arguments made before the Magistrate and the conclusions on them reached by her Honour. The arguments made by Ms Kiley before the Magistrate were directed broadly to a contention that s 200(1) of the PHW Act, pursuant to which the Stay at Home Direction had been issued, was constitutionally invalid. Her submissions on the appeal also encompassed the same contention that this section was not constitutionally valid, and were expanded to an alternative submission that if s 200(1)(b) of the PHW Act was valid, the Stay at Home Directions were invalid. Questions of Law 3 and 4 directly raised the issue of the constitutional validity of s 200(1)(b) of the PHW Act. The nature of Questions of Law 1 and 2 as expressed by Ms Kiley, and in particular the terms of Question of Law 2 was that the questions could not be understood or determined without addressing the context of her broader arguments as to constitutional invalidity.[36] For that reason I address first the primary arguments put by Ms Kiley as to constitutional invalidity before then addressing Ms Kiley’s specific questions of law.
[35]Outline of Submissions in Reply, 16 December 2023, 72.
[36]This was accepted by the Respondent in the way Ms Kiley’s arguments were addressed in the Respondent’s Outline of Submissions of 4 October 2023, [12]-[26]; [28].

Relevant features of the PHW Act

Section 200(1) of the PHW provided as follows:

(1) The emergency powers are –
(a)subject to this section, detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;
(b)restrict the movement of any person or group of persons within the emergency area;
(c)prevent any person or group of persons from entering the emergency area;
(d)give any other direction that the authorised officer considers is reasonably necessary to protect public health.

The emergency powers are available to be exercised only where a state of emergency has been declared. Section 198(1) of the PHW Act provided that:

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.

A declaration of a state of emergency, pursuant to s 198(7):

(a)must specify the emergency area in which the state of emergency exists being throughout Victoria or in specified areas of Victoria;
(b)continues in force for the period not exceeding 4 weeks specified in the declaration;
(c)may be extended by another declaration for further periods not exceeding 4 weeks but the total period that the declaration continues in force cannot exceed 6 months.[37]

[37]Section 198(7) was amended on 8 September 2020 with effect from 9 September 2020 by the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020, No. 24/2020. The amendments are not material for present purposes.

Pursuant to s 199, if a state of emergency exists, and the Chief Health Officer believes that it is necessary to grant an authorisation to eliminate a serious risk to public health, the Chief Health Officer:

… may, for the purpose of eliminating or reducing the serious risk to public health, authorise-
(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 203 of the PHW Act provides the requirement to comply with directions given by an authorised officer under s 200. It provides:

(1)A person must not 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 section 199.
Penalty: In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.

(2)A person is not guilty of an offence against subsection (1) if the person had a reasonable excuse for refusing or failing to comply with the direction or requirement.

Ms Kiley’s arguments as to invalidity

Ms Kiley’s case focussed primarily on two fundamental propositions,[38] which corresponded broadly to Questions of Law 3 and 4 as well as forming the context for Questions of Law 1 and 2:

(a) Section 200(1)(b) of the PHW Act (being the emergency power pursuant to which the Stay at Home Directions was issued) is constitutionally invalid as it is an arbitrary or unconstrained power.[39]

(b) Alternatively, if s 200(1)(b) is constitutionally valid after it is read down to be consistent with the Constitution, it did not authorise the making of the Directions because the Directions were arbitrary and indiscriminate.[40]

[38]Transcript 22/02/24 T18.7-.30.

[39]Transcript 22/02/24 T16.20-.28; T17.7-.10.

[40]Transcript 22/02/24 T17.28-T18.3.

A feature of the first argument was that Ms Kiley, in submissions before the Magistrate and on appeal, contended that Palmer did not establish principles that resolved the issue of the validity of s 200(1)(b) of the PHW Act, notwithstanding that it was acknowledged that the effect of s 200(1)(b) was the same as the powers in s 56 and s 67 of the Emergency Management Act 2005 (WA) considered in Palmer.[41] It was submitted before the Magistrate for Ms Kiley that the plaintiff in Palmer had lost the case ‘because he … failed to bring a constitutional argument’ and that relevant issues had not been addressed by the High Court.[42] It was also later submitted for Ms Kiley that ‘Palmer’s case was not argued correctly’.[43]
[41]Transcript T22/02/24 T25.13-.24.
[42]Transcript 30/09/22 T23.1-16; T22.26-.31.
[43]Transcript 11/11/22 T73.13-.14.

It was also submitted that the decision in Loielo v Giles as to the validity of Directions made under the PHW Act was not relevant, because that case dealt only with a Direction to impose a curfew, and there had been no challenge to the Stay at Home Directions.

Ms Kiley’s written submissions made a range of more specific contentions, which I understood to be ultimately directed to these two primary arguments. Most prominently, Ms Kiley made the following submissions.[44]
[44]Which reflected the focus of submissions made to the Magistrate: Transcript 30/09/22 T13.30-T14.31; T16.7-23.

First, that the State had limited ‘police powers’:

The State has 3 police powers to prohibit or restrict a person’s movement:
1. If a person has or is suspect of committing a crime
2.If a person is suffering a mental illness which makes them a danger to the public
3.If a person is labouring under, or someone who has been in contact with someone who has a listed infectious disease.[45]

[45]Outline of Submissions in Reply of 16 December 2023 at [23]. This argument was in the submissions provided to the Magistrate: Affidavit of Gayle Kiley 27 June 2023, exhibiting the ‘Affidavit in Support’ of Gayle Kiley made 14 September 2022, and filed in the Magistrates Court, which contained submissions on behalf of Ms Kiley, at page 1 [1]. This Affidavit which incorporates material introduced by a paragraph which states ‘I, David Weisinger on behalf of the defendant Ms Kiley make oath and say’ making it unclear who the affidavit is sworn by. However as all of the content of the affidavit falls under the opening affidavit of Ms Kiley it is referred to in these submissions as the ‘Affidavit in Support’ of Ms Kiley.

This argument was repeated in similar terms in other parts of Ms Kiley’s Affidavit material.

I invited Ms Kiley to clarify whether she contended that powers that may be exercised by police were limited to these three powers and whether there was any source relied on for that proposition.[46] Mr Weisinger, in submissions on Ms Kiley’s behalf, contended that it was the State which was required to identify authority to exercise any power. He referred to an observation of Chief Justice Marshall of the United States Supreme Court quoted in The Annotated Constitution by Quick and Garran that ‘Every power alleged to be vested in the national government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power’.[47]
[46]Email from chambers to the parties on 21 February 2024.
[47]Transcript 22/02/24 T19.24- T20.16.

Second, discretionary powers of the State cannot be exercised arbitrarily, and statutory discretion, however broad, is constrained by law, including by the Constitution.[48]
[48]Affidavit of Gayle Kiley 27 June 2023, exhibiting the ‘Affidavit in Support’ of Gayle Kiley made 14 September 2022, 2 [5]; 6-8.

Ms Kiley’s written submissions on appeal had raised s 92 of the Constitution, although without precision as to exactly the nature of the argument being put. It was not identified in the questions of law or otherwise as an alleged source of invalidity of the PHW Act. In submissions for Ms Kiley at the hearing before the Magistrate, the primary relevance of s 92 appeared to be in the context of a submission that use of proportionality as a tool of constitutional analysis, including by members of the High Court in Palmer, is misconceived.[49] On appeal it was submitted that the High Court’s use of a proportionality analysis in Palmer ‘made a bad law good’; and was unlawful as there is no basis for proportionality analysis in Australian law.[50] Ms Kiley’s submissions also referred to the effect of s 92 in limiting the quarantine power, noting that use of the power cannot prohibit and restrict commerce and travel arbitrarily.[51]
[49]Transcript 30/09/22 T52.23-T53.2.
[50]Outline of Submissions in Reply [96]; Transcript 22/02/24 T22.21-T23.1; T23.5-.30; T26.12-.16.
[51]Transcript 30/09/22 T21.23-T22.4.

Ms Kiley also relied on the High Court authority of Minister for Immigration and Citizenship v Li to the effect that statutory discretion is constrained by law.[52] She appeared to rely on this as authority for the invalidity of s 200(1) of the PHW Act,[53] on the basis that it was not the form of the legislation that was relevant to her argument as to invalidity of the legislation, but its practical operation in making the Directions, citing Ha v New South Wales.[54] It was also put that it was the PHW Act itself which was the practical operation of the State’s quarantine powers;[55] but also that the Chief Health Officer was exercising a discretionary power which could not, pursuant to the principles in Li, be exercised arbitrarily.[56] The argument as to arbitrariness appeared to be put at both the level of whether the PHW Act was constitutionally invalid, and whether the Stay at Home Directions were not authorised by the PHW Act.
[52]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 348 at [23] (French CJ). Referred to in the ‘Affidavit in Support’ of Gayle Kiley made 14 September 2022 at [11]; also see Transcript 30/09/22 T18.7-T19.28. On appeal Ms Kiley again relied on Li in this way: the Affidavit of Gayle Kiley of 12 April 2023 at [3]-[4]; [10]; Outline of Submissions in Reply 16 December 2023 at [14].
[53]Notice of Appeal, 7 December 2022, [6]-7]; Outline of Submissions in Reply 16 December 2023 at [14], [18], [55].
[54](1997) 189 CLR 465, Referred to in the Affidavit of Gayle Kiley of 12 April 2023, [5]-[6].
[55]Before the Magistrate this was put in the submissions contained in the ‘Affidavit in Support’ of Gayle Kiley made 14 September 2022, 8-9 [13]-[14]. On appeal, see Affidavit of Gayle Kiley of 12 April 2023, [5].
[56]Affidavit of Gayle Kiley of 12 April 2023, [15]-[16].

I also invited Ms Kiley to elaborate on any specific provisions of the Constitution, or authorities, that she relied on for the submission as to s 200(1)(b) and (d) of the PHW Act being invalid on the basis that it is arbitrary and indiscriminate.[57] Mr Weisinger responded on her behalf by noting principles with respect to restraints on police powers, including the principle in George v Rockett[58] that where a statute requires reasonable grounds for a state of mind, it requires the existence of a state of facts sufficient to induce that state of mind in a reasonable person.[59] He also submitted that there were no sufficient constraints on the powers in s 200(1), as the requirements in the PHW Act applicable to any exercise of power were not real constraints.
[57]Email from chambers to the parties on 21 February 2024.
[58](1990) 170 CLR 104.
[59]Transcript 22/02/24, T15.5-25.

Third, it was contended the principle that the powers of the State cannot be exercised arbitrarily was violated in circumstances where ‘[t]he State’s Quarantine power pursuant to s 51(ix) of the Commonwealth Constitution exercised through the delegation of a discretionary power to the Chief Health Officer authorised the Stay at Home Directions (Restricted Areas) (No 12) on an entire class of individuals indiscriminately’, which was an arbitrary exercise of power and done ‘without an individual human control order’.[60] I also invited Ms Kiley to clarify what was intended by the reference to the State’s quarantine power.
[60]Affidavit of Gayle Kiley 27 June 2023, exhibiting the ‘Affidavit in Support’ of Gayle Kiley made 14 September 2022, at pages, 1-2. This argument was repeated in similar terms in other parts of Ms Kiley’s Affidavit material.

It was submitted that the ‘quarantine power’ was a concurrent power with the Commonwealth quarantine power.[61] It appeared to be an element of the submissions that s 51(ix) controlled the exercise of the State’s power in relation to any matter relating to quarantine.[62] The substance of the controls was not elaborated.
[61]Affidavit of Gayle Kiley 12 April 2023 (Submissions) at [4], [8], [12].
[62]Before the Magistrate, see Transcript 30/09/22 T20.22-.31. On appeal, see Transcript 22/02/24 T13.20-.25; T43.28-.T44.12.

Before the Magistrate it was contended that the Biosecurity Act was a valid exercise of quarantine power relating to restricting freedom of movement, in that it involved ‘an individual human control order based on demonstrable signs and symptoms of a listed infectious agent’, here, COVID-19.[63] Ms Kiley emphasised both before the Magistrate and on appeal that she did not make an argument that the PHW Act was invalid pursuant to s 109 of the Constitution by reason of inconsistency with the Biosecurity Act.[64] It was, however, contended that the Biosecurity Act ‘correctly describes the proper exercise of the quarantine power’,[65] in that it manages risks through imposing a control order on a specific individual who may have a listed disease,[66] rather than on a broader population. The relevance of that Act was, as I understood Ms Kiley’s argument, as an example of what was a properly constrained use of a power in response to infectious disease.[67]
[63]‘Affidavit in Support’ of Gayle Kiley made 14 September 2022, 2 [5]; Transcript 30/09/2022 T14.29-T15.14.
[64]‘Affidavit in Support’ of Gayle Kiley made 14 September 2022, 10 [21]; Affidavit of Gayle Kiley 12 April 2023 (Submissions) [12] and [15].
[65]Affidavit of Gayle Kiley 12 April 2023 (Submissions) at [15].
[66]Weisinger Affidavit, 10-11 [24]-[25].
[67]Weisinger Affidavit, 15 [41].

The arguments as to constitutional invalidity of the PHW Act

The argument made by Ms Kiley that s 200(1)(b) and (d) of the PHW Act are invalid on the basis that they are arbitrary and thus in some way constitutionally invalid is unsustainable.

The decision of the High Court in Palmer and the Court’s consideration of why the relevant powers under the Emergency Management Act 2005 (WA) complied with the limitation of s 92 of the Constitution does not support any conclusion that s 200(1)(b) and (d) of the PHW Act are invalid by reason of s 92. The effect of Palmer was to the contrary effect, for reasons set out further below. Decisions of this Court in response to challenges to the PHW Act, in particular Cotterill v Romanes,[68] also support the conclusion that s 200(1)(b) and (d) of the PHW Act are not constitutionally invalid. It is not open to refer to the Stay at Home Directions made under the emergency powers in the PHW Act, as urged by Ms Kiley in her submissions, to demonstrate any invalidity in the PHW Act itself, and the constitutional issue she raises does not require analysis by reference to the Directions.
[68](2021) 68 VR 433 (Niall JA).

There is no other basis identified by Ms Kiley on which ss 200(1) (b) and (d) of the PHW Act are invalid. Notwithstanding the reliance by Ms Kiley in submissions on the Biosecurity Act, there was no challenge to the legislation on the basis of s 109 of the Constitution. Further, nothing identified in submissions suggested that such an argument was open.

There is also no basis on which the more general principles as to the exercise of discretion identified in Li, and as to arbitrariness or unreasonableness, result in the invalidity of the PHW Act itself. Li and the related body of case law as to legal unreasonableness and irrationality relates to limits on the exercise of statutory power by decision makers, rather than to any basis on which statutes may be invalid.[69] The arguments that the analysis should be conducted by reference to the manner in which the s 200(1)(b) power was exercised in issuing the Directions are not open, having regard to the authorities discussed below, and cannot make Li relevant to the question of the validity of the PHW Act.

The decision in Palmer and its relevance to the PHW Act

[69]Minister for Immigration v Li (2013) 249 CLR 332, 348-351 [23]-[30] (French CJ); 362-366 [63]-[72] (Hayne, Kiefel and Bell JJ).

In Palmer, the plaintiffs sought declarations from the High Court that the Emergency Management Act 2005 (WA) and / or directions made under it were invalid in whole or in part by reason of s 92 of the Constitution. Relevantly, the Emergency Management Act provides a power in s 56(1) for the relevant Minister to, in writing ‘declare that a state of emergency exists in the whole or in any area or areas of the State’. Pursuant to s 56(2), the Minister must not make such a declaration unless the Minister has considered the advice of the State Emergency Coordinator; is satisfied that an emergency has occurred, is occurring or is imminent; and is satisfied that extraordinary measures are required to prevent or minimise, relevantly ‘loss of life, prejudice to the safety, or harm to the health, of persons or animals’.

The High Court unanimously held that ss 56 and 67 of the Emergency Management Act which authorised the making of a declaration of a state of emergency, and of directions for emergency management in the context of a state of emergency, were valid in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or pandemic. The Court also held that the making under those provisions of the Quarantine (Closing the Border) Directions, the effect of which was to close the border of Western Australia to persons from any place unless they were the subject of an exemption, did not otherwise raise a constitutional question.

The first plaintiff in Palmer was a Queensland resident who was chairman and managing director of the second plaintiff, a company with interests in mining projects in Western Australia. The first plaintiff had sought entry to Western Australia for purposes connected with the company’s business, which was refused pursuant to the Quarantine Directions and the second plaintiff contended that its business interests had been harmed or inhibited. The plaintiffs sought declarations that either the Quarantine Directions or the authorising Emergency Management Act were invalid by reason of s 92 of the Constitution. Section 92 provides, relevantly:

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

The plaintiffs contended that the Quarantine Directions contravened s 92 because they imposed an effective burden on the freedom of intercourse among Australian people by prohibiting cross-border movement; alternatively that those directions imposed a discriminatory burden with protectionist effect on trade and commerce between the States.[70]
[70]Palmer (2021) 272 CLR 505, 515, [13] (Kiefel CJ and Keane J).

The High Court considered the following question stated for its opinion:

Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?[71]

[71]Palmer (2021) 272 CLR 505, 608.

The High Court answered the question as follows:

On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.
The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions) (WA) does not raise a constitutional question.
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court. [72]

[72]Palmer (2021) 272 CLR 505, 608.

The judgments of the Court all addressed the scope and effect of s 92, as well as the appropriate level of analysis for the constitutional question, whether at the level of the statute or whether it should involve taking into account the manner of its exercise. Relevantly to the arguments put by Ms Kiley, the observations of the Court were as follows.

Chief Justice Kiefel and Keane J in their joint judgment held that the question reserved for the Court could and should be answered by reference to the authorising provisions of the Emergency Management Act, rather than by reference to any particular exercise of those statutory powers, namely the Quarantine Directions.[73] Their Honours noted that:

In some cases, difficult questions may arise because the power or discretion given by the statute is broad and general. No such question arises in this matter. …. [T]he power to prohibit or restrict entry into a declared emergency area, which may be the whole of Western Australia, is largely controlled by the EM Act itself and is proportionate to its purposes.[74]

[73]Palmer (2021) 272 CLR 505, 530, [63].

[74]Palmer (2021) 272 CLR 505, 531, [68].

Chief Justice Kiefel and Keane J referred to the controls in the Emergency Management Act applicable to the making of an emergency direction, including that pursuant to s 56(2), there must be an ‘emergency’, or one must be imminent, and that extraordinary measures are necessary to protect the life and health of persons.[75] An epidemic is one such emergency.[76] Emergency declarations are in effect for a limited period.[77] Emergency measures may be taken for the purpose of prevention of a plague or epidemic, including pursuant to s 67, through the prohibition of movement of persons into a declared emergency area.[78]
[75]Palmer (2021) 272 CLR 505, [69].
[76]Palmer (2021) 272 CLR 505, [69].
[77]Palmer (2021) 272 CLR 505, 531-2 [70].
[78]Palmer (2021) 272 CLR 505, 531-2 [70].

Their Honours observed that the Quarantine Directions were not directed at restricting movement between States but were directed to the protection of the health of residents of Western Australia.[79] A law restricting the movement of persons into a State was suitable for the purpose of preventing persons infected with COVID-19 from bringing the disease into the community, and the controls on making an emergency declaration ‘suggest that these measures are a considered, proportionate response to an emergency such as an epidemic’.[80]
[79]Palmer (2021) 272 CLR 505, 533, [74].
[80]Palmer (2021) 272 CLR 505, 533, [77].

Justice Gageler considered the nature of the s 92 limitation and the appropriate level of constitutional analysis in some detail. Justice Gageler held that a differential burden on interstate trade or commerce or on interstate intercourse must be ‘reasonably necessary’ to be justified as a constitutionally permissible means of pursuing a constitutionally permissible non-discriminatory legislative end.[81]
[81]Palmer (2021) 272 CLR 505, 537, [94].

As to the appropriate level of analysis, his Honour observed that in a case where executive action taken pursuant to statute is challenged as infringing a constitutional guarantee, two questions arise: the statutory question of whether the action is authorised by the statute, and the constitutional question of ‘whether the statute complies with the constitutional guarantee, if, and insofar as, the statute authorises the executive action’.[82] The questions could converge if the statutory provision empowering executive action ‘is so broadly expressed as to require it to be read down as a matter of statutory construction to permit only those exercises of discretion that are within constitutional limits’.[83] His Honour observed that it was problematic to conflate the two questions in Palmer because doing so would fail to acknowledge the ‘constitutional significance of critical constraints built into the scheme of the Act which sustained the Directions’.[84]
[82]Palmer (2021) 272 CLR 505, 546, [119].
[83]Palmer (2021) 272 CLR 505, 547, [122].
[84]Palmer (2021) 272 CLR 505, 548 [126].

Justice Gageler concluded that the ‘provisions of the Act which authorised the making of [the] directions … comply with both limbs of s 92 in all their potential applications’, with the consequence that ‘the validity of the impugned directions raised no constitutional question’.[85] The legislatively identified end of the Emergency Management Act, identified from the definitions of ‘emergency’, ‘hazard’ and ‘emergency management’, was ‘that of managing the adverse effects of a plague or epidemic of a nature that requires a significant and coordinated response.’[86] The power of the Minister to make a state of emergency declaration is subject to two significant limitations, the first being consideration of the advice of the State Emergency Coordinator and being satisfied that an emergency has occurred, is occurring or is imminent, and that extraordinary measures are required to prevent or minimise loss of life or harm to the health of persons. The second is the temporal limitation on the legal effect of a declaration of a state of emergency.[87] Further, the discretion to make directions was subject to the standard implied condition that it must be exercised reasonably.[88]
[85]Palmer (2021) 272 CLR 505, 537, [90].
[86]Palmer (2021) 272 CLR 505, 537, 556-557, [153].
[87]Palmer (2021) 272 CLR 505, 557-558 [156]-[159].
[88]Palmer (2021) 272 CLR 505, [164].

Justice Gageler concluded that the Emergency Management Act provisions complied with s 92 without any need to read down the Act. His Honour held:

…whilst the discretionary power of direction can extend to authorise the giving of a direction which on its face or in its practical effect imposes a differential burden on interstate intercourse (which might or might not be in trade or commerce), the power can only ever be exercised reasonably for the sole purpose of managing a designated emergency in a designated emergency area for so long as there is in force a state of emergency declaration, of the continuing need for which the minister must periodically be stringently satisfied.
My conclusion was, and remains, that the cumulation of those statutory constraints means that a differential burden on interstate intercourse that might result from an exercise of the power of direction is justified according to the requisite standard of reasonable necessity across the range of potential exercises of the power. Being justified, such a differential burden is not discriminatory. Much less is it protectionist.[89]

[89]Palmer (2021) 272 CLR 505, 559-560 [165]-[166].

Justice Gordon observed that the Directions could not be made unless statutory conditions were met, including the declaration of the state of emergency, the making of which was itself subject to specific requirements. Her Honour noted that the plaintiffs had not alleged that the statutory conditions had not been met but that the relevant parts of the Quarantine Directions infringed s 92 of the Constitution. Her Honour concluded that on their proper construction, the provisions of the Emergency Management Act authorising the Directions complied with the constitutional limitation in s 92.[90]
[90]Palmer (2021) 272 CLR 505, 560, [168]-[169].

Her Honour, after reviewing the provisions of the Emergency Management Act and addressing the analytical framework for a s 92 based challenge, concluded that ss 56 and 67 of the Act complied with the constitutional limitation in s 92, without any need to read the Act down to save its validity in its application to the case before the Court.[91]
[91]Palmer (2021) 272 CLR 505, 574, [202].

Justice Edelman’s reasons for joining in the Court’s answer to the question approached the analysis differently. He identified two premises on which the answer was founded, the first being that constitutional validity should be determined at the level of the empowering statute, with questions of the valid of action taken under the statute being resolved by reference to whether the statute empowers that action. The second premise was that it was not, in his view, appropriate to affirm the validity of ss 56 and 67 of the Emergency Management Act ‘in all of their applications’.[92] The answer in the present case determined whether ss 56 and 57 of the Act were justified in their relevant application.[93]

The decision as to the validity of s 200(1)(b) of the PHW Act in Cotterill v Romanes

[92]Palmer (2021) 272 CLR 505, 580-581 [224]-[227].

[93]Palmer (2021) 272 CLR 505, 585, [234].

Some months after the decision in Palmer, this Court considered the specific question of the constitutional validity of ss 200(1)(b) and (d) of the PHW Act in Cotterill.[94] The plaintiff in that case was challenging the constitutional validity of the Stay at Home Directions (Restricted Areas) (No 14) issued pursuant to ss 200(1)(b) and (d) of the PHW Act which, like the Directions in this case, imposed restrictions on leaving a place of residence. The plaintiff had, while Directions No 14 were in force, left her home to exercise (a permitted reason to leave home) and also to demonstrate against the lockdown response. She was given an infringement notice alleging breach of Directions No 14. The plaintiff contended that Directions No 14 and other related directions[95] were invalid by reason that they impermissibly burdened the implied freedom of political communication in the Constitution.[96] The proceeding raised questions of constitutional law, including the appropriate level of analysis at which the specific test of invalidity applicable to the implied freedom should be applied – whether at the level of the statute, or directly to the directions. The plaintiff did not contend that the Directions No 14 were not authorised by the PHW Act, but contended that the constitutional validity test should be directly applied to the Directions with the result that they were constitutionally invalid. The defendants contended that the test must be applied to the PHW Act itself.
[94]Cotterill v Romanes(in his capacity as the Deputy Public Health Commander) (2021) 68 VR 433.
[95]The Stay Safe Directions (Melbourne) (No 2).
[96]Cotterill (2021) 68 VR 433, 440, [7]-[8].

The trial judge, Niall JA, concluded that the test is to be applied to the legislation, and specifically to ss 200(1)(b) and (d), not to the particular exercises of power under the Act. He noted specifically that Palmer supported that conclusion.[97] His Honour also concluded, relevantly for present purposes, that:

(a) The terms of s 200(1)(b) of the PHW Act were very close to s 67 of the Emergency Management Act, and although it has potential for a wide ranging operation, given the criteria for its exercise, and the context in which the power arises, the manner of its exercise is tightly prescribed.[98]

(b) Sections 200(1)(b) and (d), and the context in which they may be exercised ‘closely resemble those considered by the High Court in Palmer’, and Niall JA regarded ‘both the reasoning in Palmer and the outcome in that case as of direct relevance to the issues in [Cotterill]. In short, at the level of the respective statutes I am unable to distinguish Palmer’.[99]

[97]Cotterill (2021) 68 VR 433, 441, [10]; 484, [205], 485 [211].

[98]Cotterill (2021) 68 VR 433, 485, [207].

[99]Cotterill (2021) 68 VR 433, 487, [219].

Justice Niall also considered the outcome if he was wrong in his conclusion as to the level of analysis, and determined that even applying the test to the Directions, they were not invalid.[100] His judgment at first instance was given on 17 August 2021 and was referred to by the Magistrate in Ms Kiley‘s hearing in the course of argument.[101]
[100]Cotterill (2021) 68 VR 433, 441, [11].
[101]Transcript 30/9/22 T51.21-.23. Mr Weisinger, making submissions for Ms Kiley, acknowledged that he was aware of the decision in Cotterill: T51.27-.28. Ms Kiley also referred to the decision in her submissions on appeal: Outline of Submissions in Reply [5] and [163].

The plaintiff in Cotterill appealed and the Court of Appeal dismissed the appeal in February 2023.[102]
[102] Cotterill v Romanes (in his capacity as the Deputy Public Health Commander)[2023] VSCA 7; (2023) 413 ALR 360 (Cotterill Court of Appeal).

Several of the Court of Appeal’s conclusions in Cotterill are relevant to the arguments put by Ms Kiley. This remains so even though the case was not the subject of substantive argument before the Magistrate, because it is relevant to whether any question of law of the kinds put by Ms Kiley as Questions 3 and 4 could succeed.

(a) The obvious starting point for constitutional analysis is the statute and in particular whether the authorising provisions conferring executive power fall within the legislative power of the Parliament. In most cases to proceed directly to the impugned exercise of the power will conflate issues of law and fact or obscure the true scope of the power including legislative constraints on the power.[103]
[103]Cotterill Court of Appeal (2023) 413 ALR 360, 376 [79] (Emerton P, McLeish and Kennedy JJA), applying the observations of Gageler J in Palmer at [126].

(b) If the statute complies with relevant constitutional limitations on legislative competence, without any need to read it down to preserve its validity, then the constitutional question is answered and the law is relevantly valid irrespective of its application.[104]
[104]Cotterill Court of Appeal (2023) 413 ALR 360, 377 [81] (Emerton P, McLeish and Kennedy JJA).

(c) The emergency powers in the PHW Act do not need to be read down as they are subject to several constraints:[105]
[105]Cotterill Court of Appeal (2023) 413 ALR 360, 378-379 [89]-[92] (Emerton P, McLeish and Kennedy JJA).

(i) The emergency powers are only available where a state of emergency has been declared by the Minister in response to a serious risk to public health. The state of emergency is limited in duration and geographical extent.

(ii) The powers can only be exercised at all if the Chief Health Officer considers it reasonable necessary to do so in order to eliminate or reduce a serious risk to public health.

(iii) The emergency powers themselves are circumscribed, with the power in s 200(1)(b), while capable of wide operation, being limited expressly to use to ‘restrict the movement of any person or group of persons’ only within the ‘emergency area’. That power can only be exercised for the purpose for which it is conferred, namely to eliminate or reduce a serious risk to public health.

(iv) All administrative action under the Act is susceptible to judicial review, including on the basis of proper purpose, reasonableness, rationality and logicality.

(d) The various limitations on the availability and exercise of the emergency powers confirm that they are a proportionate response to a narrowly defined but critically important legislative purpose.[106]

(e) The emergency powers in ss 200(1)(b) and (d) were valid in all their applications to the implied freedom of expression.[107]

The effect of Palmer and Cotterill on Ms Kiley’s arguments as to constitutional invalidity of ss 200(1)(b) and (d)

[106]Cotterill Court of Appeal (2023) 413 ALR 360, 383 [116] (Emerton P, McLeish and Kennedy JJA).

[107]Cotterill Court of Appeal (2023) 413 ALR 360, 384 [118] (Emerton P, McLeish and Kennedy JJA).

Applying the reasoning and outcome in Palmer and Cotterill, Ms Kiley cannot succeed in her contention that ss 200(1)(b) and (d) were constitutionally invalid.

The Court of Appeal in Cotterill accepted that the emergency powers, including ss 200(1)(b) and (d), are a proportionate response to an important (and constitutionally legitimate) legislative purpose.[108] Having regard to the manner in which they operate, which is subject to limitations in the PHW Act, as well as by the principles of administrative law, they are valid in all their applications to the implied freedom.
[108]Cotterill Court of Appeal (2023) 413 ALR 360, 380 [98] (noting that the parties had accepted Niall JA’s conclusion that the purpose of reducing or eliminating serious public health risks in the context of a declared emergency was legitimate); and at 383 [116] (Emerton P, McLeish and Kennedy JJA).

Applying these conclusions, as well as those in Palmer, the emergency powers in s 200(1) are valid in their application in making the Stay at Home Directions. Given the conclusion of the Court of Appeal that the appropriate level of analysis of the validity of s 200(1) is at the level of the statute, is not open to contend, as Ms Kiley does, that the validity of s 200(1)(b) of the PHW Act must be assessed by reference to its ‘practical operation’ in the making of the Directions.[109]
[109]Cf Notice of Appeal 7 December 2022 at [3], [6].

The fact that the judgments in Cotterill related to a challenge on the basis that ss 200(1)(b) and (d) burdened the implied guarantee of freedom of political communication, rather than because they contravene s 92 of the Constitution (the only apparent foundation for the arguments put by Ms Kiley) does not detract from the relevance of Cotterill to this case. As Niall JA noted at first instance in Cotterill, noted, the reasoning and outcome in Palmer, which did involve s 92, was of direct relevance to the challenge to ss 200(1)(b) and (d).[110] The findings of a constitutionally compatible legislative purpose of reducing or eliminating serious public health risks in the context of a declared emergency and that the provisions, as limited in their statutory context, were appropriate and adapted to the purpose, effectively address the considerations arising with respect to s 92. That is, they demonstrate a valid purpose not directed to restricting intercourse between states, and show that they are provisions which are a proportionate or reasonably necessary response to that purpose.
[110]Cotterill (2021) 68 VR 433, 487, [219].

Although the Stay at Home Directions applicable in Ms Kiley’s case were different to Directions No 14 considered by the Court of Appeal, the observations as to s 200(1)(b) of the PHW Act are directly relevant to this case. The conditions in which the directions could be made and the statutory limitations on making them were the same as those identified as relevant by the Court of Appeal in Cotterill, namely:

(a) The requirement, before exercising the s 200 emergency power of making a declaration that the Minister must under s 198 have made a declaration of a state of emergency arising from circumstances causing a serious risk to public health. The making of such a declaration must be on the advice of the Chief Health Officer, and can only be made after consultation with the Minister and Emergency Management Commissioner under the Emergency Management Act 2013.

(b) The temporal limitation on the declaration of emergency and the consultation requirements applicable to any extension of the declaration.[111]

(c) The requirement that for emergency powers to be exercised, the Chief Health Officer must authorise an authorised officer to exercise them, which can only be for the purpose of ‘eliminating or reducing the serious risk to public health’.[112]

(d) The limits that generally govern administrative decisions, including reasonableness, logic and rationality and absence of extraneous purpose.[113]

[111]PHW Act, s198(7). The temporal limitations on the powers in the Emergency Management Act were regarded as significant by Keifel CJ and Keane J in Palmer at [70].

[112]PHW Act, s 199(2). Cotterill, [241].

[113]Cotterill, [245].

Applying the decisions in Palmer and Cotterill, an argument that ss 200(1)(b) of the PHW Act was invalid on the basis that it was arbitrary or inconsistent with s 92 was bound to fail. As discussed below, this also has the consequence that the Questions of Law identified by Ms Kiley do not disclose any error on the part of the Magistrate or raise any question on appeal.

The Directions were not invalid on the basis that they were arbitrary

During the appeal, Ms Kiley made an alternative argument, that if it was found that ss 200(1) (b) and (d) were valid by reason of the PHW Act being read down, the Stay at Home Direction was invalid. This argument was not elaborated in any detail. It appeared to replicate the arguments made with respect to the PHW Act, that is, that the Directions were arbitrary, particularly in that they extended beyond applying to ‘a particular individual labouring under a specific infectious agent for a specified period of time limiting that person’s movement’[114] to limiting the movement of an entire section of the population. This argument was related to the contention that the State was exercising the ‘quarantine power’, which was contended to be ‘only applicable to those who are showing signs or symptoms or have been in contact with such a person’.[115]
[114]Notice of Appeal, 7 December 2022, [5]-[6].
[115]Affidavit in support of Gayle Kiley 14 September 2022, 6 [10].

An argument that the Directions were unlawful was made before the Magistrate, although in terms that make it difficult to identify whether it was an argument as to the directions being ultra vires, or an argument that the level of constitutional analysis should be at the level of the exercise of the power.[116] Similarly, on appeal it was not entirely clear whether the argument went further than simply saying s 200(1)(b) of the PHW Act was invalid because of the scope of the Directions made under it.[117] However an argument that the Stay at Home Directions were beyond the power conferred by s 200(1)(b) was not encompassed by the Notice of Appeal, nor by Ms Kiley’s submissions filed and served before trial.
[116]Affidavit in support of Gayle Kiley 14 September 2022, 2 [5], 3 [11]; Transcript 30/09/22, T58.18-.31:
[117]See Affidavit in support of Gayle Kiley 14 September 2022, 2 [5].

In any event, even if I was to entertain this as a further question of law, it would be doomed to fail. The argument that the Directions were invalid would fail, in my view, by reason of the decision in Loielo, in which Ginnane J found that directions imposing a curfew restricting movement between particular hours (involving similar controls on movement as the Stay at Home Directions) were authorised by the PHW Act.

The decision in Loielo v Giles

In Loielo the plaintiff sought judicial review of a direction made under s 200(1) of the PHW Act in the context of the COVID-19 pandemic state of emergency. The challenge was not brought on the basis of constitutional invalidity, but on the basis that the making of the direction was affected by jurisdictional error, including that it was legally unreasonable and irrational; and that it unlawfully limited rights to freedom of movement and of liberty recognised by the Charter of Human Rights and Responsibilities Act 2006 (Vic). The direction in that case included the imposition of a curfew, prohibiting residents of greater Melbourne leaving home during specified hours other than for specified purposes.

Justice Ginnane concluded, relevantly, that s 200(1) of the PHW Act authorised the directing of the curfew,[118] because:
[118]Loielo (2020) 63 VR 1, 36 [112].

(a) the nature of the powers to respond to infectious diseases was such that emergency powers may need to be exercised in a part of, or throughout all of, Victoria;[119]

(b) Parliament’s intention in choosing the words ‘person or group of persons in the emergency area’ in s 200 of the PHW Act was to permit the implementation of emergency powers over a large group of people, including a group as large as the population of greater Melbourne;[120]

(c) that Parliamentary intention is evident also from the purpose and objective of the Act which relate to ‘public health and wellbeing in Victoria’ and to the need to protect ‘persons in Victoria’, as well as the fact that a state of emergency can be declared to exist throughout the whole of Victoria, as occurred in this instance.[121]

[119]Loielo (2020) 63 VR 1, 39 [125].

[120]Loielo (2020) 63 VR 1, 39 [126].

[121]Loielo (2020) 63 VR 1, 39 [127], 40 [128], [130].

The same considerations lead to the conclusion in this case that the powers in s 200(1) are not limited to making directions applicable only to specific individuals identified as being infected with infectious disease. The directions made in the exercise of emergency powers identified in s 200(1) may extend to large groups of people. The Stay at Home Direction, limiting the movement of persons outside their homes and into the Restricted Area, were not ultra vires by reason of extending to persons and groups of persons in the emergency area.

Questions of Law

Against the background of that consideration of the primary arguments that Ms Kiley seeks to make, I consider the specific questions of law.

Principles relating to relevant and irrelevant considerations

Question of Law 1 and Question of Law 2 refer to a failure to take into account a relevant or mandatory consideration, and taking into account irrelevant considerations.

A failure to take into account relevant considerations is made out as a ground of review only if the decision maker was bound to take the considerations into account, the decision maker failed to consider them, and the failure was material to the outcome.[122] The question of whether a decision maker was bound to take matters into account is to be determined by reference to the terms of the legislation conferring the decision-making power, and any implications arising from its subject matter, scope and purpose.[123]
[122]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J); Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129, 253 [384]-[386].
[123]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 (Mason J).

It is also well established that it is an error of law for a decision maker to take into account a consideration which is irrelevant, in the sense that the statute that confers the decision making power, taking into account its subject matter, scope and purpose does not permit the decision maker to have regard to the matter.[124]
[124](1986) 162 CLR 24, 40 (Mason J).

I understand Ms Kiley to rely on the argument that particular authorities were irrelevant considerations in a different sense. Ms Kiley’s contention is more to the effect that the Magistrate should not have regarded the decisions as containing legal principles relevant to the arguments put in her defence, and as being determinative of the issues before her.

Question of Law 1: Were the authorities of Palmer and Loielo irrelevant considerations for the Magistrate?

As noted above, the Magistrate, in the course of considering the legal submissions made for Ms Kiley, referred to the High Court’s decision in Palmer and the Supreme Court decision in Loielo. Both of these decisions had been referred to in submissions prior to the hearing — Palmer was referred to in an affidavit filed on behalf of Ms Kiley which contained submissions,[125] and the written Prosecution Submission to the Magistrate referred to Loielo.[126] At the hearing, Mr Weisinger who was making submissions on behalf of Ms Kiley discussed Palmer.[127]
[125]Affidavit of David Weisinger sworn 14 September 2022, [15]-[18], exhibited to Affidavit of Gayle Kiley filed 28 June 2023.
[126]Prosecution Submission dated 16 September 2022, [2], exhibited to Affidavit of Gayle Kiley filed 28 June 2023.
[127]Transcript 30/09/22, T21.16-24.05.

On a straightforward view of this question of law, in circumstances where the cases were raised in the course of argument, it was entirely rational and relevant for the Magistrate to have referred to them in her reasons for decision. They were not irrelevant considerations. There was no error on her Honour’s part in referring to them.

Taking the arguments as more broadly put by Ms Kiley she appears to contend that Palmer and Loielo should not have been regarded as determinative of the matters she raised in her defence.[128]
[128]See for example Notice of Appeal filed 7 December 2022, [3]-[6].

On any view of the scope of the ‘irrelevant considerations’ argument that Ms Kiley seeks to put in support of Question of Law 1, it must fail. The decision in Palmer was squarely relevant to the arguments put by Ms Kiley about the validity of ss 200(1)(b) and (d). The authority was plainly relevant for her Honour, not least because it had been referred to frequently in argument, but also because it was highly relevant to and determinative of the issues before her. As observed by Niall JA in Cotterill, the legislation in Palmer closely resembled the relevant PHW Act provisions, and as a result it was not possible to distinguish Palmer when it came to considering the validity of ss 200(1)(b) and (d).[129] Mr Weisinger in submissions for Ms Kiley acknowledged the substantive similarity of the Emergency Management Act provisions considered in Palmer to s 200(1)(b) the PHW Act.[130]
[129]Cotterill (2021) 68 VR 433, 487, [219].
[130]Transcript 22/02/24 T25.13-.24.

Loielo was referred to in argument before the Magistrate by the police prosecutor in response to Ms Kiley’s argument that the issuing of the Directions was an arbitrary exercise of power.[131] The prosecutor acknowledged that Loielo did not refer to the same Directions, but submitted that the case considered the extensive research and consideration taken by the Chief Health Officer before concluding that it was within his power to issue the Direction.[132]
[131]Transcript 30/09/22, T32.16-.20.
[132]Transcript 30/09/22, T32.16-.27.

Ms Kiley states that she has not raised arguments based on the Charter, nor on the basis that the Directions were made under dictation, nor that they were unreasonable, illogical and irrational, and the decision in Loielo, which raised those arguments, is therefore irrelevant.[133] She stated specifically that she did not challenge the independence of directions made by the CHO, nor the reasonableness, logic or rationale of the decisions.[134] She states that Loeilo, like Palmer, did not address ‘the true nature of the power being exercised, that being laws with regards to quarantine pursuant to s 51(ix) of the Constitution, concurrent powers to make laws with regards to an infectious agent, in this case Covid-19.’[135]
[133]Notice of Appeal filed 7 December 2022, [4]-[5].
[134]Notice of Appeal filed 7 December 2022, [5].
[135]Notice of Appeal filed 7 December 2022, [1].

Ultimately, it seems that the objective of Ms Kiley was to say that Palmer was wrongly decided, or that different arguments should have been put to the Court in that case which would have resulted in a different outcome. In her Notice of Appeal she observed that in Palmer the plaintiff ‘failed to understand it was the quarantine power being exercised upon him that was the basis to restrict his movement, and not s 92 … Unlike Palmer I am challenging the Stay at Home Directions, the practical operation of the PHW Act, and therefore the ruling in Palmer is irrelevant’.[136] It was submitted on her behalf that in circumstances where the Magistrate relied on the decisions in Palmer and Loielo, if this Court was to rely on those decisions ‘it would seem fair that we’d be able to challenge … the basis of those decisions …’[137] Plainly, as a single judge of this Court, I am bound by Palmer and would only depart from the principles identified in Loielo if persuaded that the decision is clearly wrong.[138] I respectfully consider Loeilo correctly decided and would not depart from it.
[136]Notice of Appeal filed 7 December 2022, [3]-[4].
[137]Transcript 22/02/2024, T11.5-.11.
[138]As I advised Ms Kiley during the hearing: Transcript 22/02/2024, T11.12-.31.

Question of Law 1 is answered ‘No’, and it fails as a basis for the appeal.

Question of Law 2: Was it a relevant consideration for the Magistrate, in the sense of being a mandatory consideration that ‘it was the state’s quarantine powers that were being exercised’ to limit Ms Kiley’s movement?

Ms Kiley contended before the Magistrate that the power being exercised in making the Directions was the ‘quarantine power’ of the State. It was accepted in submissions that the State has concurrent power to make laws with respect to quarantine.[139] However it was put that the PHW Act ‘is an arbitrary exercise of discretionary power with regards to its current quarantine powers, pursuant to s 51(9) of the Commonwealth Constitution as the state authorised stay at … home directions on an … entire class of individuals’.[140] The submissions were to the effect that according to the Constitution, legislation touching on quarantine must target a specific individual who has a disease,[141] be limited temporally to ‘a matter of months’ and it must ‘weigh up trade and commerce’;[142] and that none of these things were done when the Directions were made.[143]
[139]Transcript 30/09/22, T60.3-.05; See also Notice of Appeal 7 filed December 2022, [1], [9]; Affidavit of Gayle Kiley filed 12 April 2023, [4].
[140]Transcript 30/09/22, T20.26-.31.
[141]‘Affidavit in Support’ of Gayle Kiley sworn 14 September 2022, [24]-[26], exhibited to Affidavit of Gayle Kiley filed 28 June 2023.
[142]Transcript 30/09/22, T60.18-.19; ‘Affidavit in Support’ of Gayle Kiley sworn 14 September 2022, [16]-[17], exhibited to Affidavit of Gayle Kiley filed 28 June 2023.
[143]Transcript 30/09/22, T60.19-.20.

It can be accepted, broadly, that a submission clearly put to a Magistrate in support of a defence to charges will be a relevant consideration that a Magistrate must take into account. There is a real issue in this case as to whether the submission was sufficiently clear or comprehensible to make it a relevant consideration of that kind. However that does not need to be determined because it is plain that the Magistrate did consider submissions made with respect to the State exercising ‘quarantine power’. In her reasons given for her decision, the Magistrate referred to the argument that ‘the State was endeavouring to exercise quarantine powers’, and found it ‘does not have any factual basis on which reliance can be placed, nor … does it have any legal merit’.[144] She did not fail to consider the arguments put to her; she simply did not accept them. This is a sufficient basis on which Question of Law 2 does not arise and must fail.
[144]Transcript 11/11/22, T71.25-.30.

To the extent that Question of Law 2 instead seeks to contend that the Magistrate erred in law in not accepting the arguments put as to the State exercising ‘quarantine power’, it must also fail.

As submitted by the respondent, the true source of the power to make the Stay at Home Direction derived from ss 198, 199 and 200 of the PHW Act,[145] so that a contention that the power was in some way derived directly from s 51(ix) of the Constitution was misconceived. For the reasons above, it is also clear from the decisions in Palmer and Cotterill that the powers to make emergency directions in s 200 are not constitutionally invalid.
[145]Respondent’s Outline of Submissions 4 October 2023, [13].

The submission that ‘quarantine powers’ may only be exercised with respect to individual persons who were infected with an infectious agent or had been in contact with such a person was not supported by any authority or argument other than a general comparison to the power to detain individuals in the Biosecurity Act. In the absence of any inconsistency raising the application of s 109 of the Constitution, which was not alleged here, the State’s concurrent legislative powers are not limited by the way the Commonwealth Parliament has exercised its powers. It follows from the decisions in Palmer and Cotterill that it was open to the Victorian Parliament to enact s 200(1) of the PHW Act which enabled the exercise of powers over groups of people including if necessary all persons in the area the subject of the state of emergency.

The arguments as to the limited police powers of the state did not advance the argument any further. No basis was put for the proposition that there were three limited police powers, nor was there any explanation of what was meant by the reference to ‘police powers’. There was no basis identified on which it could be said that the issue of an infringement notice by a police officer for breaches of directions was unauthorised.

Question of Law 2 also does not give rise to any proper ground of appeal. The unclear nature of the question makes it inappropriate and unnecessary to answer.

Question of Law 3: Was the enactment of s 200(1)(b) and (d) of the PHW Act an invalid exercise of the Victorian parliament’s legislative power, by reason of it being arbitrary and indiscriminate and contrary to the rule of law and the Constitution?

The effect of the authorities discussed at paragraphs [51] to [78] above is that ss 200(1)(b) and (d) are not constitutionally invalid by reference to either s 92 of the Constitution or by reference to the implied freedom of political communication. No other basis of possible constitutional invalidity has been identified by Ms Kiley. Having regard to the decisions in Palmer and Cotterill and the approach to the constitutional validity of the powers in each case, it is not possible to identify any basis on which ss 200(1)(b) and (d) are contrary to the Constitution. The nature of the limitations on the exercise of the emergency powers in ss 200(1)(b) and (d) referred to in Cotterill and noted at [72] above[146] are such that the sections do not confer arbitrary or indiscriminate power.
[146]Cotterill Court of Appeal (2023) 413 ALR 360, 378-379 [89]-[92], 383 [116] (Emerton P, McLeish and Kennedy JJA).

The answer to Question of Law 3 is ‘No’ and it fails as a ground of appeal.

Question of Law 4: Was the enactment of s 200(1)(b) and (d) of the PHW Act an invalid exercise of the Victorian parliament’s legislative power, having regard to the exercise of the powers to make the Directions

As discussed above, the Court of Appeal held in Cotterill that the appropriate level of analysis of the constitutional validity of the PHW Act, and in particular ss 200(1)(b) and (d), was at the level of the terms of the statute itself.[147] This was also the effect of Palmer. It is, therefore, not open to contend that ss 200(1)(b) and (d) were invalid by reference to the exercise of the powers they confer, including in the making of the Stay at Home Directions.
[147]Cotterill Court of Appeal (2023) 413 ALR 360, 377 [81], 378 [88], 379 [93]-[94] (Emerton P, McLeish and Kennedy JJA).

The answer to Question of Law 4 is no, and it also fails as a ground of appeal.

Observations on the absence of section 78B notices in this case

The hearing of the appeal proceeded without notices under s 78B of the Judiciary Act 1903 (Cth) having been served. For completeness I set out here my reasons for hearing the appeal without service of s 78B notices.

Section 78B(1) of the Judiciary Act provides:

Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

Having regard to the discussion of constitutional issues in the submissions of Ms Kiley, my chambers raised with the parties in the week of the hearing whether s 78B notices had been served.

The parties advised that notices had not been served, and Ms Kiley informed my chambers that she opposed any adjournment:

… I object to any adjournment on the grounds already stated, notwithstanding the violation of the maxim of law that 'justice delayed is justice denied' given that the Court saw fit to schedule a hearing not less than precisely 12 months from the initial Directions hearing, which is now almost 4 years since the initial charge in 2020[148]

[148]Email from Ms Kiley dated 21 February 2024.

Section 78B states that where the section applies, it is the duty of the Court not to proceed unless and until the notices are given. However authority on s 78B makes clear that a proceeding does not ‘involve’ a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does.[149] The section:

…does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be.[150]

[149]Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73, 74 (Toohey J); cited with approval by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation (2003) 77 ALJR 1195, [14].

[150]Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292, [14] (French J), cited with approval by Gageler J (as his Honour the Chief Justice then was) in Re Culleton (2017) 340 ALR 302, [29].

I reviewed the submissions prior to the hearing and formed the view that the issues raised with respect to the Constitution by Ms Kiley were determined and ‘concluded’ by recent and relevant authority of the High Court and the Court of Appeal. As discussed above, the cases either resolved the issues as to the validity of ss 200(1)(b) and (d) of the PHW Act directly, or established principles relevant to the issues raised in this case in such a way as to bind me to reject the arguments put forward. Ms Kiley made clear in submissions that she relied on the Biosecurity Act, the argument was not one as to any inconsistency of the PHW Act with that Act so as to require attention to any new issue engaging s 109 of the Constitution.[151] There was also nothing in submissions to suggest that any s 109 argument could succeed.
[151]Transcript 30/09/22, T14.29-.31, T24.16-.22, T41.10-.18; See also Affidavit of Gayle Kiley sworn 11 April 2023, [11]-[14]; ‘Affidavit in Support’ of Gayle Kiley 14 September 2022, 10 [21]; Transcript 22/02/24, T18.16-.29, T31.10-.16.

Ms Kiley also made contentions to the effect that Palmer was ‘invalid’ or had not properly determined the issues in the case, and had not been properly argued.[152] Plainly these were not arguments that I could entertain, particularly as a single judge of this Court.
[152]Appellant’s submissions dated 16 December 2023, [59]. Similar submissions were made before the Magistrate at first instance: Transcript 30/09/22 T23.1-16; T22.26-.31, Transcript 11/11/22 T73.13-.14; and again in the appeal: Transcript 22/02/24 T10.1-4; T23.9-14.

On the basis of the written submissions, I therefore regarded the issues raised with respect to the Constitution as being ‘concluded’ in such a way as to make them unarguable, or in the case of the specific arguments relating to the ’quarantine power of the state’ as not demonstrating any sufficient basis to constitute a real and substantive issue. Bearing in mind the ability to commence a case and adjourn if the need for s 78B notices became apparent in the course of the hearing,[153] I proceeded to hear the matter.
[153]Judiciary Act s 78B(2).

In submissions in reply to the respondent’s submissions at the hearing, Ms Kiley submitted that I should, in the alternative to upholding her appeal, adjourn the matter pending service of s 78B notices. This submission appeared to be on the basis that service of such notices were required ‘given the authority of this court is not invested with the federal jurisdiction’.[154] I advised Ms Kiley that service of s 78B notices would not alter the Court’s jurisdiction nor create any power to depart from the relevant decisions of the High Court and Court of Appeal. I also advised the parties that nothing in the course of submissions had altered my view that there was no constitutional argument raised that was not already concluded or otherwise unarguable.[155]
[154]Transcript 22/02/24, T45.26-46.2; See also T50.18-.23.
[155]Transcript 22/02/24, T48.12-.29, T53.19-54.06.

Conclusion on questions of law and appeal

There was no error of law made by the Magistrate and the appeal against the orders of the Magistrate must be dismissed.

Costs

At the hearing, the respondent made an application that if the appeal was to be dismissed, costs be awarded under s 408 of the Criminal Procedure Act, on the basis that costs of the appeal should follow the event.[156] The respondent relied on the decision of T Forrest J in Kartawidjaja v Rowe[157] in which his Honour observed that the discretion to award costs under s 408 was similar to the Court’s broad, unfettered discretion in the awarding of costs in civil proceedings, pursuant to s 24 of the Supreme Court Act 1986.[158] I gave Ms Kiley an opportunity to consider that judgment over an extended adjournment so that she was in a position to respond.[159]
[156]Transcript 22/02/24, T41.14-T42.14.
[157][2016] VSC 234.
[158][2016] VSC 234, [6].
[159]Transcript 22/02/24, T42.15-27.

Ms Kiley opposed any order for costs against her in the event that the appeal was dismissed. She submitted first that it was inappropriate that the application was made for the first time at the hearing, and secondly that costs should not be awarded as she was bringing the appeal to defend the Constitution, and her ability to seek justice should not be limited by the spectre of costs.[160]
[160]Transcript 22/02/24, T45.13-22.

Section 408 of the Criminal Procedure Act provides that the costs of, and incidental to, an appeal under s 272 are in the discretion of the Supreme Court, and the Supreme Court has full power to determine by whom and to what extent costs are paid. The Court has significant flexibility in determining questions of costs, with the objective of doing substantial justice between the parties.[161] The general rule in civil proceedings that costs follow the event remains a guide with respect to costs awarded under s 408.[162]
[161]Kartawidjaja [2016] VSC 234, [7] (T Forrest J); CoINVEST Ltd v Citywide Service Solutions Pty Ltd (Costs) [2020] VSC 261, [8]-[10] (Niall JA).
[162]Kartawidjaja [2016] VSC 234, [7] (T Forrest J); CoINVEST [2020] VSC 261, [8] (Niall JA).

In the present case, there is no feature of the appeal that would displace the usual rule that the costs of the appeal should follow the event. I accept that Ms Kiley believed that she was raising issues of public importance. However, there was also a public interest being served by the respondent in enforcing the criminal law.[163] Further, the arguments on appeal raised essentially the same issues as had been raised before the Magistrate, had been the subject of a comprehensive hearing, and dealt with by her Honour by reference to superior court authority without error. Issues of public importance arising from emergency directions made during the COVID-19 pandemic had been the subject of comprehensive consideration in authority of the High Court, Court of Appeal and first instance judges of the Supreme Court of Victoria. The issues in this case were the subject of the principles considered and determined in those cases, and neither Ms Kiley’s intentions in raising what she understood to be important constitutional points, nor any feature of this appeal warranted departure from the general rule.[164]
[163]Oshlack v Richmond River Council (1998) 193 CLR 72, 75 [2] (Brennan CJ).
[164]Cf Oshlack v Richmond River Council (1998) 193 CLR 72, 75 [2] (Brennan CJ); 91 [49] (Gaudron and Gummow JJ); 108 [96] (McHugh J); 123-124 [136] (Kirby J); Cumming v Minister for Planning (No 2)[2020] VSCA 231, [10]-[11] (Tate, McLeish and Osborn JJA).

There was also no conduct on the part of the respondent that should disentitle him from an award of costs. The respondent made relevant submissions that assisted the Court, and generally conducted the appeal in an appropriate manner, making appropriate accommodations for Ms Kiley as a self-represented litigant. Although it may have been desirable to put Ms Kiley on notice that costs would be sought in the event that the appeal was dismissed in the respondent’s written submissions, I am satisfied that that Ms Kiley had an adequate opportunity to consider and respond to the application for costs on the day of the hearing.

The respondent did not specifically seek costs of the Magistrates’ Court hearing in the application for costs. In the absence of any specific application for such costs or submissions supporting costs in Magistrates’ Court as well as on appeal, I understand the application to be limited to the costs in this Court.[165]
[165]See Kartawidjaja [2016] VSC 234, [8] (T Forrest J).

I will make an order that Ms Kiley pay the respondent’s costs of the appeal to the Supreme Court, to be taxed on the standard basis, in default of agreement.

---

Her Honour:      It’s valid?
Mr Weisinger:    Yes, so we’ll say without the directions, sure.
Her Honour:      So it’s the directions, you say, that are unlawful.
Her Honour:      All right, and they’re unlawful because of what?

Mr Weisinger: If you want to detain people in their homes – I mean, I’ve looked through various laws to find how it is, under what power, you would do that. All right? It’s not through the arrest power or police powers.

Her Honour: But if the law itself is lawful, the effect of it that follows must be lawful.

Mr Weisinger: But what’s the law? Where is the law saying that you can lock people in their homes? The directions were the thing saying that.

[2024] VSC 228

10 May 2024