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ABC must live up to the ‘model litigant’ standard

Chris Merritt                 8 October 2020

Published in the Australian Newspaper

Dan Andrews might not have heard of Gretchen Whitmer, but the Victorian premier has much in common with the authoritarian governor of the US state of Michigan.

In their zeal to defeat the pandemic, they both seem to have made the same mistake. They overlooked the fact that even in emergencies both states are governed by laws that give the executive branch of government powers that are specific and limited.

This should have been uppermost in the minds of both leaders when they decided to fight COVID-19 with plans that restricted the liberties of ordinary people and damaged businesses. Retribution is inevitable unless such extreme measures have a legal foundation that is bulletproof.

That lesson was brought home to Whitmer last week when she suffered a devastating defeat in the Michigan Supreme Court, which found there was no legal basis for her unilateral restrictions on the lives and businesses of her constituents. For Andrews, this could be a foretaste of things to come.

Because Whitmer’s actions were unlawful, the consequences will inevitably play out in the courts. She is also facing petitions that seek to remove her from office under Michigan’s “recall” law.

Which brings us to Andrews.

It is well known that hotel quarantine arrangements mandated by his government were so flawed they allowed the virus to escape and kill more than 800 people. And when he tried to fix that blunder with lockdowns and other restrictions, a legal opinion that has just been completed indicates he probably bungled that as well.

Just like Whitmer in Michigan, the opinion suggests that restrictions imposed under Victoria’s Public Health and Wellbeing Act may have been legally flawed. If a court agrees and the harm inflicted by the lockdowns is found to have had no basis in law, the Premier and his government could face a bill for compensation.

This goes beyond allegations of negligence in class actions filed over the hotel quarantine fiasco. It points to a second area of potential liability for Andrews and his government.

The apparent problem with the emergency directions issued under the Public Health and Wellbeing Act is spelled out in an opinion prepared by Stuart Wood QC and barrister Dimitri Ternovski for Shane Cocks, who owns a Jim’s Mowing franchise.

They write that the emergency directions issued under section 200 of this Act “are probably invalid”.

Legal opinion

And that means “there appears to be at least a reasonably arguable basis for seeking statutory compensation … or bringing a claim for the tort of false imprisonment. There might also be an arguable basis for bringing a claim for the tort of intimidation.”

This opinion, commissioned by the Institute of Public Affairs, could be the basis for the next stage in the wave of litigation confronting Andrews and his government. Cocks wants to sue.

“If we get the finance I want to launch. This bully of a premier needs to be taken down a peg,” Cocks says.

“The amount of damage he has actually done is horrendous. He has basically destroyed my business. I’m a 64-year-old man and I’ve lost probably 75 to 80 per cent of my business.

“I’m not prepared to walk away from this. A lot of people are talking but there are not too many who are prepared to stand up and do something about it.”

The opinion by Wood and Ternovski says that if directions issued under section 200 of the Act are valid “it would mean that section 200 gives authorised officers dictatorial powers to effectively rule the whole state by executive fiat”.

“In our view, section 200 probably does not do so and is likely to be construed as conferring much more limited powers. And the most obvious limitation to be read into section 200 is, in our view, that authorised officers can only make requirements of — and give directions to — persons in their immediate presence.

“Neither the explanatory memorandum, nor the second-reading speech, nor the statement of compatibility contain any hint of a suggestion that the Act is intended to confer powers as radical as to authorise anything like the directions.

“The executive (branch of government) is bound to observe the laws of the land, even in wartime, and even if those laws limit the ability of the executive to pursue important public policy objectives.”

There is now a risk that Andrews could eventually find himself in much the same position as Whitmer, who has been railing against the judges who ruled against her.

In the circumstances, that is a bit rich. The governor had kept issuing emergency restrictions despite the fact that Michigan’s legislature had rejected her request for an extension of her emergency powers.

The writing was on the wall during the hearing when one of the judges, David Viviano, told Whitmer’s counsel that the governor’s assertion that her restrictions were legitimate amounted to “probably the largest claim of executive power that any governor has ever made in the history of Michigan”.

The final judgment cites Montesquieu, an 18th century philosopher who wrote: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”

Some refer to Andrews as a dictator because of the way he has handled the pandemic. But that cannot be right. Dictators, on the whole, know exactly what they are doing.

The analysis by Wood and Ternovski leaves a different impression. Despite being home to some of the nation’s best legal brains, Victoria, it seems, is led by a world-class bungler.