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How Politicians Get To Hide Behind “The Health Advice” – Legally.

Written by James Stevens

Founder and CEO of the GTC Legal Group.

The Public Health and Wellbeing Act (Vic) 2008 is dangerously flawed – as is all similar State and Federal legislation around the country giving frightening and draconian bio-medical legal powers to out-of-their depth Chief Health Officers and their Health Commanders, and allowing politicians to avoid responsibility for economic and social decisions that profoundly affect us all.

On 16 August 2021, Brett Sutton, the Chief Health Officer of Victoria, declared that, in addition to various “Level 4” lockdown restrictions already in place, a curfew would be imposed upon all of metropolitan Melbourne until at least 2 September 2021. The curfew was ordered by Dr Sutton pursuant to his wide-ranging powers under the Public Health and Wellbeing Act, introduced by the (then) Victorian Health Minister, and current Victorian Premier, Dan Andrews in 2008. These powers are only enlivened if Victoria is declared to be in a State of Emergency, which was declared by Dr Sutton under the same legislation on 16 March 2020. The State of Emergency has been extended at least 18 times since.

This was not the first time Dr Sutton had ordered a curfew upon the good people of Melbourne, having done the same thing in August 2020. His legal right to take such drastic action (by authorising his Deputy Public Health Commander) was confirmed in September 2020 by the Supreme Court of Victoria after an unsuccessful challenge by a Melbourne restaurant owner, Michelle Loielo. In deciding that the Government (via Dr Sutton) had not exceeded their powers, Justice Ginnane did, however, describe the curfew as:

“…a major restriction of human rights and liberties of the free people of Victoria. No instance of a curfew being imposed in Victoria by the Executive exists in living memory. Curfews are normally imposed to control civil disturbances and widespread outbreaks of lawlessness.”

Justice Ginnane also questioned whether Dr Sutton’s Health Commander, Associate Professor Michelle Giles (a doctor specialising in infectious diseases in pregnant women, and the defendant in this case), was an appropriate person to be making what were, in essence, political decisions. His Honour observed (perhaps wryly) that:

There is a question at issue of whether a health expert, such as the defendant, is able to properly balance the social and economic consequences of a decision primarily based on health considerations However, Parliament has given the discretion to an authorised officer.

(emphasis added).

His Honour was saying, in effect, that it’s questionable whether a doctor, relying solely on health considerations, should be making these kinds of critical, far-reaching political decisions that have wide-ranging and serious consequences far beyond any health implications…but, that’s what the legislation actually gives them the power to do, so there is no legal basis to challenge it.

This legislation needs to change.

Brett Sutton, himself a Professor and a doctor since 1993 specialising in tropical diseases and palliative care, is, presumably, no more qualified to make decisions involving massive and profound “social and economic consequences” than Dr Giles is. The fact that the black-letter law (now confirmed and upheld by the Victorian Supreme Court) not only gives him the right to make these decisions on behalf of millions of Australians but – critically – gives him the power to do so based solely on “health considerations”, highlights in a disturbingly spectacular way that the Public Health and Wellbeing Act is dangerously flawed – as is all similar State and Federal legislation around the country giving frightening and draconian legal powers to out-of-their depth Chief Health Officers and their Health Commanders.

It seems obvious to point out that we elect politicians, not employ doctors, to make decisions on our behalf that have a far-reaching social and economic impact. And, consequently, to take full responsibility for those decisions. But those same, elected politicians are now able to lock down entire states, impose border restrictions, close businesses, prevent us from leaving our own country, and even our own homes, without taking any responsibility for these decisions whatsoever. And, indeed, that is exactly what they are doing, right now. How many times have we heard State Premiers at indulgently lengthy press conferences say “we have acted on the health advice”, or “we must follow the health advice”? The problem is that it is not “health advice” they are receiving at all – the legal power to make these incredibly important, often life-changing and society-defining decisions, rests solely with medical experts who are utterly unqualified to make them, and completely out of their depth. Thus, our elected representatives can defer all responsibility and blame to their CHO’s when the decisions are unpopular, whilst reaping all the political credit when it’s expedient to do so.

Even more disturbingly, of course, the decisions themselves are not properly balanced by proper (or perhaps, any) consideration of the social and economic consequences which they inevitably entail. Why? Because this kind of consideration is entirely outside the skill set of the doctors making these decisions.

Whether or not you agree with Justice Ginnane’s ultimate verdict that curfews are legal, it seems he was right about one thing – critical, far-reaching political decisions that have wide-ranging and serious consequences far beyond any health implications should not be made by health experts, taking only health considerations into account.

The law needs to change, to put this responsibility solely back on the elected representatives themselves, making “health advice” just that – advice.

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