Court finds 'controversial' curfew was legal, dismisses case against Andrews government - The Age

A Supreme Court judge has ruled the controversial curfew policy that restricted Victorians to their homes from 9pm to 5am during the state's hard lockdown was legal, dismissing the case against the Andrews government.

Michelle Loielo, an aspiring Liberal Party MP, filed a lawsuit on September 14 against former deputy public health commander Michelle Giles, claiming the curfew was unreasonable, disproportionate and violated the human rights of millions of Victorians.

Restaurant owner Michelle Loielo with Liberal MP Edward O'Donohue.

Supreme Court judge Tim Ginnane said that Ms Loielo's claim failed on all three grounds – that Ms Giles acted at the behest of Premier Daniel Andrews when she extended the curfew, that it was unreasonable or disproportionate and that her human rights were unlawfully restricted by the policy.

The government indicated their intention to seek a costs order against the applicant.

Justice Ginnane said that even though the curfew was a "major restriction of the rights and liberties of the people of Victoria," it was ultimately a proportionate response and did not violate the human rights of Victorians in the process.

"[Ms] Giles received legal advice that there was a risk that the curfew was not compatible with the [Victorian Charter of Human Rights], although on balance, no such incompatibility existed. I accept her evidence that she did consider the effects of the curfew on human rights applying her four step analysis," Justice Ginnane found.

"I'm also convinced that Ms Giles gave human rights real consideration."

Justice Ginnane also found that Ms Giles was not acting at the behest of Mr Andrews, a claim that, if proven true, would have rendered her decision invalid.

"I am persuaded that [Ms] Giles took the need to make an independent decision seriously and did in fact make such a decision," Justice Ginnane found.

"While the curfew had apparently proved controversial, Ms Loielo’s case is more difficult to accept because it contends that [Ms] Giles failed to form an independent decision in respect of only one of the many parts of the Directions. That is logically a difficult submission to accept."

The challenge, the first of its kind, brought Ms Giles into court to be cross examined on internal decision making processes inside the Department of Health and provided transparency to the normally opaque process of developing and implementing the stay-at-home directions.

Ms Giles previously contradicted Premier Daniel Andrews' publicly stated reasons for implementing the restriction.

She told the court the curfew was brought in for health reasons, not enforcement of pandemic restrictions, as the Premier claimed.

The overnight curfew, introduced on August 2 to slow the spread of COVID-19, was extended on September 13 by Ms Giles but was then suspended on September 27, a month ahead of schedule.

It meant the curfew policy ceased to be in effect just hours before the trial was due to begin in the Supreme Court.

In affidavits filed in court during the trial, Ms Loielo spoke of her fears about restrictions being reimposed, saying she was afraid of being pulled over by police even though she carries a permit to travel.

She has previously said the revenue of her business, Unica Cucina E Caffe in Capel Sound on the Mornington Peninsula, had fallen by about 99 per cent, which she said might result in her losing her home.

The other restrictions were not the subject of the lawsuit.

The government's decision to impose the curfew came into focus after Chief Health Officer Brett Sutton and Victoria Police Chief Commissioner Shane Patton said it was not their idea.

More to come.

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https://news.google.com/__i/rss/rd/articles/CBMihwFodHRwczovL3d3dy50aGVhZ2UuY29tLmF1L25hdGlvbmFsL3ZpY3RvcmlhL2NvdXJ0LWZpbmRzLWN1cmZldy13YXMtbGVnYWwtZGlzbWlzc2VzLWNhc2UtYWdhaW5zdC1hbmRyZXdzLWdvdmVybm1lbnQtMjAyMDExMDItcDU2YW9uLmh0bWzSAYcBaHR0cHM6Ly9hbXAudGhlYWdlLmNvbS5hdS9uYXRpb25hbC92aWN0b3JpYS9jb3VydC1maW5kcy1jdXJmZXctd2FzLWxlZ2FsLWRpc21pc3Nlcy1jYXNlLWFnYWluc3QtYW5kcmV3cy1nb3Zlcm5tZW50LTIwMjAxMTAyLXA1NmFvbi5odG1s?oc=5

2020-11-02 01:23:00Z
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