covid19-law.com.au
10. Government
A. Obligations
COVID-19 may be relevant to matters of public law in a variety of ways, including in respect of governments’ obligations to protect individuals from serious injury or death, with respect to personal and health information, and with respect to human rights.
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
The plaintiff in Rowson v Department of Justice and Community Safety [2020] VSC 236, Mark Rowson, alleged that the State of Victoria, and two of its officers holding statutory positions, threatened to breach its duty of care to him, as a prisoner in its custody, by failing to take reasonable steps to ensure that he did not suffer serious injury or death from COVID-19 (at [65]). He further alleged that the failure to exercise a statutory power to release him from prison constituted unlawful conduct contrary to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). He was 52, male, suffered from heart disease, including chronic atrial fibrillation, angina, asthma, poor blood pressure and decreased renal function, and had been prone to lung infections and pneumonia throughout his life. These characteristics all placed him at greater risk of serious injury or death should he contract COVID-19.
Mr Rowson applied for an interlocutory injunction to, in effect, require his release from prison, so that his life could be preserved pending the hearing and determination of his proceeding. The Court heard expert evidence about COVID-19, both in general, and as a threat to human beings, prisoners specifically, and Mr Rowson more specifically. Although the Court was not required to make final findings of fact, the Court set out the evidence in some detail.
The State’s argument was that the risk of contracting COVID-19 in the general community was (by the time of the hearing on 29 April 2020) declining rapidly, with the risk of infection in the general community (on the expert evidence led by the State) being only 0.006%. This risk was, the State contended, further reduced by measures designed to prevent COVID-19 entering prisons.
The Court held that it had power, in the exercise of its inherent jurisdiction to preserve the subject matter of litigation, to order (in an extreme case) that a prisoner be released from prison (at [93]). However, in circumstances where no person in an Australian prison had been diagnosed with COVID-19, and the risk of contraction was (on the expert evidence) very low, the Court refused to order that Mr Rowson be released ([94]).
However, the Court did grant interlocutory relief to ensure that, as far as possible, Mr Rowson’s health was preserved, ordering the State to conduct a risk assessment and to direct the private prison operator to implement its recommendations. In so doing, the Court held that Mr Rowson’s evidence provided “a sufficient basis, when taken with the absence of a risk assessment, to establish a prima facie case that the defendants have breached its duty of care to him, which exposes him to risk of significant injury” (at [98]).
A. Obligations
COVID-19 may be relevant to matters of public law in a variety of ways, including in respect of governments’ obligations to protect individuals from serious injury or death, with respect to personal and health information, and with respect to human rights.
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
The plaintiff in Rowson v Department of Justice and Community Safety [2020] VSC 236, Mark Rowson, alleged that the State of Victoria, and two of its officers holding statutory positions, threatened to breach its duty of care to him, as a prisoner in its custody, by failing to take reasonable steps to ensure that he did not suffer serious injury or death from COVID-19 (at [65]). He further alleged that the failure to exercise a statutory power to release him from prison constituted unlawful conduct contrary to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). He was 52, male, suffered from heart disease, including chronic atrial fibrillation, angina, asthma, poor blood pressure and decreased renal function, and had been prone to lung infections and pneumonia throughout his life. These characteristics all placed him at greater risk of serious injury or death should he contract COVID-19.
Mr Rowson applied for an interlocutory injunction to, in effect, require his release from prison, so that his life could be preserved pending the hearing and determination of his proceeding. The Court heard expert evidence about COVID-19, both in general, and as a threat to human beings, prisoners specifically, and Mr Rowson more specifically. Although the Court was not required to make final findings of fact, the Court set out the evidence in some detail.
The State’s argument was that the risk of contracting COVID-19 in the general community was (by the time of the hearing on 29 April 2020) declining rapidly, with the risk of infection in the general community (on the expert evidence led by the State) being only 0.006%. This risk was, the State contended, further reduced by measures designed to prevent COVID-19 entering prisons.
The Court held that it had power, in the exercise of its inherent jurisdiction to preserve the subject matter of litigation, to order (in an extreme case) that a prisoner be released from prison (at [93]). However, in circumstances where no person in an Australian prison had been diagnosed with COVID-19, and the risk of contraction was (on the expert evidence) very low, the Court refused to order that Mr Rowson be released ([94]).
However, the Court did grant interlocutory relief to ensure that, as far as possible, Mr Rowson’s health was preserved, ordering the State to conduct a risk assessment and to direct the private prison operator to implement its recommendations. In so doing, the Court held that Mr Rowson’s evidence provided “a sufficient basis, when taken with the absence of a risk assessment, to establish a prima facie case that the defendants have breached its duty of care to him, which exposes him to risk of significant injury” (at [98]).
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