“These restrictions, on top of all the other restrictions, is one step too far,” Mr Clarke said.
Mr Clarke reiterated that Ms Loielo “cherishes her freedoms,” and that her freedom of movement, liberty and security, and to not be arbitrarily detained, was infringed by the curfew policy.
“Her contention is that the curfew has violated all of those rights … and that the government has acted excessively in seeking to curtail them.”
Mr Clarke said Associate Professor Michelle Giles, being sued in her capacity as the state’s deputy public health commander, was acting under dictation of Premier Daniel Andrews when she extended the curfew, that the imposition of the measure was unreasonable, irrational and illogical.
Victoria’s Solicitor-General, Kristen Walker QC, rejected the notion that the decision was invalid, admitting that Victorian’s rights were impacted, but in the context of the pandemic were justified.
“The risk associated with COVID-19 is death, for certain people in the population,” Ms Walker said.
“The evidence will demonstrate that the defendant absolutely did not act at the direction or the behest of the Premier.”
Government briefings tabled in court on Monday also revealed more detail about the warning lawyers gave health officials that the curfew measure carried a real risk of unlawfully violating the Victorian Charter of Human Rights and Responsibilities.
The advice, provided to Associate Professor Giles, said that the directions were, on balance, likely to be compatible with human rights under the charter but made specific mention of the risks posed by the curfew.
“It is the Department’s view that these Directions are, on balance, likely to be compatible with human rights under the charter,” the advice reads, “in light of the exceptional circumstances in which they are being issued and the public health advice they are based on.”
“However, we note that this assessment is not without doubt; in particular, there is some risk of incompatibility with respect to the evening curfew.”
On Sunday, the Andrews government ended the curfew a month ahead of schedule.
Put in place to slow the spread of COVID-19, the curfew was initially in force between 8pm and 5am but was moved back to 9pm on September 14.
The government’s decision to impose the curfew came into focus after Chief Health Officer Brett Sutton and Victoria Police Chief Commissioner Shane Patton both said it was not their idea.
Lawyers for Ms Loielo have sought to cross examine Associate Professor Giles about what information she used to come to the conclusion that extending the curfew was necessary, and whether she acted under the dictation of Premier Daniel Andrews when she extended it.
The matter has been adjourned to Wednesday. In the interim parties are to make submissions about the impact of the ending of curfew to their case.