Government lawyers warned the bureaucrat who signed off on Victoria’s curfew it could be in breach of human rights, a court has heard.
Then-deputy public health commander Michelle Giles is being sued by Liberal Party member and cafe owner Michelle Loielo over extending Victoria’s curfew from September 14.
Ms Loielo’s lawyer Vanessa Plain told the Supreme Court of Victoria on Friday “the state fought tooth and nail to conceal” legal advice showing the Government knew the curfew could be illegal.
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The email was from Department of Health and Human Services director of legal services Sean Morrison, she said.
The court heard the advice was, “The department’s view is that these directions are, on balance, likely to be compatible with human rights under the charter.
“However, we note that this assessment is not without doubt.
“In particular there is some risk with compatibility with respect to the evening curfew.”
The charter referred to is the Victorian Charter of Human Rights and Responsibilities.
Ms Loielo’s legal team is arguing the curfew is in breach of Victorians’ human rights and will argue that Prof Giles was acting irrationally and unreasonable when she signed off on the curfew order.
They argue Victorians were subject to “arbitrary detention” by being ordered inside their homes from 8pm to 5am each night, loosened to 9pm to 5am on September 14.
The bombshell legal advice was revealed in a pre-trial directions hearing for the case before the trial begins on Monday.
Meanwhile, Judge Timothy Ginnane will decide if key data Prof Giles said she used to come to her decision to extend the curfew will be released.
Her lawyer Jason Pizer QC said the documents – a daily outbreak summary and daily COVID-19 intelligence report accumulated over weeks totalling hundreds of pages – contain private health data of individuals.
He said the documents included personal information about COVID-positive Victorians and their close contacts, and their confidentiality should be maintained.
“We take very seriously the need to ensure people’s privacy is protected and the Government’s response to the pandemic is not undermined or affected in any way,” he said.
He said if people thought their private information could end up released in court “they would not co-operate with the Government … and that would put everyone at serious risk”.
The Government is arguing it would be too “oppressive” to de-identify the reports by Monday – and says even if it wasn’t, the reports should be covered by public interest immunity.
Ms Plain said “it would not be overly cumbersome for the Government, with the resources that stand behind it” to produce the documents.
Ms Giles is expected to be cross-examined on Monday.
The hearing continues.