Doubts have been raised this week about the legality of Victoria’s nighttime curfew after the Chief Health Officer, Brett Sutton, stated on radio yesterday that he did not recommend the introduction of a curfew but that it was part of the State of Disaster declaration (which is a declaration under the Emergency Management Act 1986), not a State of Emergency declaration (under the Public Health and Wellbeing Act 2013).
Under section 199 of the Public Health and Wellbeing Act 2013, the Chief Health Officer may make authorisations to exercise any public health risk powers and emergency powers if:
- a state of emergency has been declared under section 198 of the Act; and
- the Chief Health Officer believes it is necessary to grant the authorisation in order to eliminate or reduce a serious risk to public health.
Under section 200 of the Act, the emergency powers may include:
- detaining any person within the emergency area for the period reasonably necessary to reduce or eliminate the risk to public health;
- restricting the movement of any person or group within the emergency area;
- preventing any person or persons from entering the emergency area; and
- giving any other direction that the authorised officer considers is reasonably necessary to protect public health (this would include a direction to wear face masks or coverings)
Section 199 provides that the powers only apply if both of the criteria (A) and (B) are met which includes that he must consider the action necessary in order to eliminate or reduce the risk to public health. Given the admission of the Chief Health Officer on Melbourne radio that he did not recommend a curfew, it would appear he did not consider the authorisation of a curfew necessary to reduce the risk to public health.
Under s.22 of the Public Health and Wellbeing Act, the Chief Health Officer may delegate a power, duty or function under the Act. I have not seen any instrument of delegation but the current Stay at Home directive is signed by the Deputy Chief Health Commander, Dr Finn Romanes, so there was a delegation of some responsibilities but it is unclear whether that delegation extended to decision making powers. However, it would be odd for a delegate to make an authorisation that was in conflict with a view held by the Chief Health Officer.
As the Chief Health Officer did not hold a view that a curfew was necessary such that he did not recommend it, it is likely that the provisions of the Stay at Home Directions (Restricted Areas) No. 14, which places restrictions on movement between 8pm and 5am, are invalid.
However, the legislative maze does not end there. Under section 24 of the Emergency Management Act 1986, the Minister for Police and Emergency Services may direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility.
It may have been the case that the relevant Minister, Lisa Neville, directed the Chief Health Officer to make the authorisation. We have not heard from her, and the Government has not produced any documentation to show that such a direction was issued by the Minister.
However, even if a direction was issued by the Minister, it is unlikely that such a direction would have been sufficient to give the Chief Health Officer the power to make the authorisation, as the Act clearly states that, for the relevant section of the Public Health and Wellbeing Act (which empowers the Chief Health Officer) to be effective, the Chief Health Officer must consider that an authorisation is necessary (not that the Police and Emergency Services Minister considers it necessary).
Further, Chief Commissioner of Police, Shane Patton, has stated that Police weren’t consulted. It would be an abrogation of ministerial responsibility if Lisa Neville made a direction without seeking advice from the Police.
Under section 24(2)(d) of the Emergency Management Act, the Minister may control and restrict entry into, movement within and departure from the disaster area or any part of it. The Minister may also declare under s.24(2)(b) that compliance with an Act of Parliament or a subordinate instrumentby a government agency may be suspended. If either of the above has occurred, it cannot be easily located by a Google search or on government websites.
Whether the current Stay at Home directive is valid is a matter of interpretation but one thing is clear – the Premier, relevant Ministers and the CHO need to clarify the position urgently.