Victorian Health Department Ordered to Release Official Advice Behind COVID Restrictions

A sign reading “Go straight home and Isolate” at the exit of a drive-thru COVID-19 testing site at Highpoint shopping center in Melbourne, Australia, on July 4, 2020. Asanka Ratnayake/Getty Images

A court has ruled that Victoria’s Health Department must process Freedom of Information (FOI) requests related to public health orders implemented during the pandemic.

The documents (briefs) underpinned decisions related to policies like curfews on Victorian citizens, and closing children’s playgrounds during the state’s lockdown periods.

Liberal Member of the Legislative Council (MLC) David Davis took on the government in the case, Davis v Department of Health.

Mr. David had put in four FOI requests for information, but the Victorian Information Commissioner refused all of these.

Ultimately, the Victorian Civil and Administrative Tribunal considered whether this decision to deny the FOI requests was justified.

The health department argued that the combined FOI requests would unreasonably and substantially divert resources from other operations.

FOI Manager Blamed Lack of Resources

FOI and Legal Compliance Manager Michael Cain said they were dealing with an estimated 115 briefs at the time, ranging from 13 to 380 pages, with an average page length of 40 to 60.

Mr. Cain estimated that it would take an experienced FOI officer 305 to 370 work days to fully process the FOI requests.

However, Vice President Judge Caitlin English formed the view this timeframe was unrealistic, but acknowledged the amount of dedicated time was still “substantial.”

Yet the judge also ruled the requests were manageable given the large size of the health department, despite the reduced manpower of the FOI unit within the department.

Releasing Documents in the Public Interest: Judge

Further, the judge noted there was a “high degree of public interest” in releasing factual material related to public health orders.

The judge was not convinced that the department made a “persuasive ballpark assessment” on the resources required for the FOI requests.

“The Department has not discharged its onus on the balance of probabilities that it has reasonably estimated the resources required to process the requests. I consider the above factors as well as the strong public interest and the purposes of the FOI Act,” Judge English said.

“Whilst the resources required to process the request are still substantial, despite the size, it is manageable for the Department and its FOI unit. I am not satisfied processing the request would substantially and unreasonably divert the resources of the agency from its other operations.”

Ultimately, the judge directed the agency to process Mr. Davis’s requests in accordance with the FOI Act

“The Department, bearing the onus, has not satisfied me on the evidence that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations,” the judge said.

Looking Back at Victoria’s Lockdowns

Melbourne, Victoria endured six lockdowns during the COVID-19 pandemic, adding up to 262 days across the years 2020 and 2021.

The city was placed under lockdown twice in 2020, from March 26 to May 12, and again between July 8 and Oct. 27. In 2021, these lockdowns lasted from Feb. 12 to Feb 17, May 27 to June 10, July 15 to 27, and Aug. 5 to Oct. 21.

Former Victorian Premier Daniel Andrews also implemented two curfews in 2020 and 2021, restricting movement to a five kilometre (3.1 miles) radius from home.

Yet in a submission to the Federal COVID-19 inquiry, former federal Health Minister Greg Hunt revealed that the radius and curfew went against medical advice.

He recommended that the states be transparent, and publish their medical advice in case there are future pandemics.

Mr. Hunt, who served as federal health minister during the pandemic, took aim at the unilateral decision of some states in his submission to the COVID-19 inquiry.

He argued social distancing was largely brought in via the coordination of the national cabinet and then via the unilateral decisions of some states.

The former minister said to his knowledge curfews and restrictions on movement were not subject to federal advice, or to the best of his knowledge, medical advice.

“National Cabinet developed a series of step-up and step-down distancing measures as part of the Covid Roadmap. This included nationally agreed restrictions on gatherings following medical advice,” Mr. Hunt said (pdf).

“Subsequent unilateral decisions of some States outside of the National Cabinet framework, such as Victoria’s curfews or 5 km movement restrictions were not the subject of Commonwealth advice, and nor to the best of my knowledge has the medical advice for such restrictions been either released or affirmed at State level.”

The first curfew took place in 2020, and was applied for a period of time over the hours 8 p.m. to 5 a.m. The second curfew, in 2021, applied from 9 p.m. to 5 a.m.

“The strengthened settings will see a curfew imposed from 9 p.m. to 5 a.m. every night. There will be increased police presence across metropolitan Melbourne to ensure public health measures are enforced,” the former Victorian premier said in August 2021.

“There will be no removal of masks to consume alcohol outdoors, you will no longer be able to remove your mask to drink a cocktail at a pop-up beer garden on a footpath as part of a pub crawl,” Mr. Andrews said.