Case 99: Transparency and accountability around the introduction of a curfew
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Michelle Loielo owned a restaurant in the Mornington Peninsula, part of Greater Melbourne. She was financially impacted by reduced patronage to her business during Melbourne’s lockdown response to the COVID-19 pandemic in 2020. The lockdown response included, at times, an overnight curfew. She used Victoria’s Charter to challenge the validity of the curfew. The Court had to consider whether Associate Professor Michelle Giles, who was the Deputy Public Health Commander who made the decision to introduce the curfew, properly considered people’s human rights under the Charter when making the decision. It also had to consider whether the curfew decision was compatible with human rights protected by the Charter. This involved considering whether the limitation on rights imposed by the curfew was a reasonable limit as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. It involved looking at the purpose, nature and extent of the curfew and any less restrictive means reasonably available to protect public health. The Court heard evidence from Associate Professor Giles who was cross-examined by Ms Loielo’s lawyers. The Court decided that she had seriously considered the impacts of the decision on human rights and identified and considered countervailing interests. The Court accepted that the curfew was a major restriction of the “human rights and liberties of the free people of Victoria” but decided, after hearing the evidence, that it was reasonably necessary to protect public health and there were no less restrictive means reasonably available to reduce infection rates. The Court concluded that the curfew was a proportionate response to the urgent circumstances created by the pandemic. Accordingly, while the court case did not succeed, the Charter provided an important means for people affected by the curfew to challenge its justification and provided important transparency and accountability around that justification.
Source: Loielo v Giles [2020] VSC 722. See also our case summary here: https://www.hrlc.org.au/humanrights-case-summaries/2020/11/2/supreme-court-of-victoria-dismisses-challenge-to-melbourne-curfew