The Victorian Government tried “covering up” key legal advice by releasing a version that redacted embarrassing paragraphs, a court has heard.
The Supreme Court of Victoria this week ordered the Government to release legal advice it received on the state’s former 9pm-5am curfew.
The order came as part of an ongoing trial challenging whether or not the curfew breached human rights.
On Friday, barrister Marcus Clarke QC, who is acting for the woman who brought the lawsuit, said the unredacted version of the legal advice revealed the Government had “cherry-picked” what it wanted to public to know.
The lawsuit names then-deputy public health commander Michelle Giles, who was filling in for a man on leave when she signed the order authorising an extension to the state’s curfew from September 14.
Mr Clarke said it was “significant” and “troubling” that the state “fought to conceal” Prof Giles was advised in three separate paragraphs, by the Government’s own lawyers, that the curfew directions may not be compatible with the human rights charter.
The Government redacted those paragraphs – written by the Department of Health’s director of legal services Sean Morrison – until it was ordered to release them by the Supreme Court, he said.
“What they wanted to do was put forward this advice with redactions … concealing or covering up the significant qualifications in three instances specifically relating to the evening curfew,” he said.
Both sides presented their closing submissions to judge Timothy Ginnane on Friday.
Mr Clarke, who is acting for Liberal Party member and Mornington Peninsula cafe owner Michelle Loielo, said his client’s “detention” because of the curfew deprived her of her liberty and her uninterrupted enjoyment of life, and was disproportionate and arbitrary.
But Prof Giles’ legal team said the curfew restriction did not have the “intensity” to be considered a removal of liberty or detention.
Mr Clarke said the evidence showed Prof Giles was acting at the behest of the Premier and not using her own mind when she authorised the curfew, and she admitted there was no evidence to directly support a curfew as a measure to fight COVID-19.
But Justice Ginnane pressed him on those claims.
“Is there any evidence there was any data?” he said.
“If there was a library of data to be considered that would be one thing. But as people keep saying, we are in unprecedented times, Mr Clarke.
“I understand all the points you’re making, but another perspective is that Associate Professor Giles, to use her words, considered this one of the most important decisions she’d made in her professional life.
“She came across, on one view, as someone who takes her job extremely seriously.”
Prof Giles said on Thursday she thought the curfew was an effective measure because when it was introduced on August 2, as part of a package of restrictions, case numbers started falling after their alarming rise at the peak of the second wave.
She had only joined the government team on August 3 to assist the fight against COVID-19 and took on the deputy public health commander role on September 9 — before signing the curfew order on September 13.
“We are very fortunate to have someone with Prof Giles’ experience and competence and diligence step into a public service role and make an important decision of this kind,” one of her lawyers, Emrys Nekvapil, said.
Justice Ginnane reserved his decision.