The Supreme Court has dismissed a challenge against Melbourne’s curfew
The Supreme Court has ruled on a Mornington Peninsula restaurant owner’s legal challenge against the validity of Melbourne’s curfew.
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Melbourne’s controversial curfew was valid and an appropriate response to the public health issue, the Supreme Court has ruled.
The high-stakes legal challenge to the 8pm-5am ban on Victorians leaving their homes was on Monday dismissed by Justice Tim Giannane who said the strict directions were justified to help curb the coronavirus crisis.
Small business owner, and Liberal Party member, Michelle Loielo, had launched the court challenge in September arguing the curfew infringed on her rights, including the freedom of movement.
The curfew was scrapped on the eve of the Supreme Court challenge, but a trial went ahead to determine whether the restriction was lawfully introduced.
Lawyers for Ms Loielo argued that the curfew was imposed arbitrarily and without any medical basis.
The harsh measure was approved by Deputy Public Health Commander Michelle Giles, who had spent just weeks in the job at the time of agreeing to the curfew.
Justice Ginnane said Professor Giles had given the relevant human rights “real consideration” when approving the stay-at-home directions.
“Ultimately I have decided that taking into account the purpose of the emergency powers ... (Prof) Giles’ evidence has established the limitation on and restrictions of human rights caused by the curfew were.. proportionate to the purpose of protecting public health,” Justice Ginnane said.
He also accepted there were “no other reasonably available means to achieve that purpose”.
Justice Ginnane acknowledged it was important to consider the human rights of all citizens, even in “urgent or emergency situations”.
“If governments and executives can disregard them they are not rights of any real value,” he said.
Justice Ginnane also dismissed Ms Loielo’s argument Prof Giles had acted at the behest of Premier Daniel Andrews when approving the extension of the curfew.
Justice Ginnane accepted the Commander’s evidence she had acted independently and her decision was grounded in medical reasoning.
Justice Tinney has reserved his decision on costs.
APPEAL ‘NOT OFF THE TABLE’
The business owner behind the failed challenge against Victoria’s curfew says an appeal is not off the table.
The Supreme Court on Monday dismissed Michelle Loielo’s curfew challenge, finding it was valid and imposed lawfully.
Ms Loielo, who said she felt victorious in defeat because the curfew was scrapped on the eve of the trial, said she would discuss an appeal with her lawyers.
“Its very fresh on judgment and it is something that will be discussed,” she said.
Ms Loielo said she felt the issue was decided ahead of trial, with the curfew lifted five hours before the case got underway.
But she said her legal team decided to pursue the action anyway.
“I was pleased to have been heard in the court of law,” she said.
“I take what the judge said, he took everything into consideration, and I am pleased I was heard,” she said.
Ms Loielo, a Liberal Party member who has flagged an intention to run for parliament, said she had received massive community support.
While her legal team acted pro bono, Ms Loielo couldn’t say who would pay any costs that may be pursued by the government.
Opposition leader Michael O’Brien praised Ms Loielo’s “courage” in fighting the case.
“This action by Michelle led to the curfew being released a month earlier than it would have been and that is a win for all Melburnians,” he said.
“The 5 million Victorians who were locked up under a curfew, something that as the judge said today is absolutely unprecedented.
“Michelle Loielo deserves the thanks of every Melburnian who feels trampled on, who feels they haven’t been listened to.”
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