One of Melbourne’s top silks believes the validity of the curfew imposed on the city’s residents is in doubt because it appears to have been imposed for a purpose that was never authorised under state law.
Michael Wyles QC identified a possible flaw in the legal basis for curfew after the state Opposition asked him to consider the implications of public statements by Premier Dan Andrews and chief health officer Brett Sutton.
Public health legislation permits orders to be made by health officials to protect public health. But after Sutton revealed he had not sought a curfew, Andrews said the measure had been “about enforcement”.
When asked if the curfew had been requested by police, Andrews said this week that decisions were made on advice from a range of authorities. “Some of that’s public health advice, some of its law enforcement advice,” he said.
The Wyles opinion on the curfew, which is still being settled, is understood to point out that assisting law enforcement is not a permissible basis for emergency health orders.
“There is no legal basis for the curfew. It is invalid and everyone can ignore it because the direction is not, according to what Sutton said yesterday, for the purpose of eliminating or reducing the risk of COVID,” Wyles told The Australian.
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