On 15 September 2021, the Victorian Ombudsman launched an investigation into COVID-19 related interstate travel permits, exceptions and exemptions.
On 7 December 2021, the Victorian Ombudsman tabled in Parliament the final report following an investigation into decision-making under the Victorian Border Crossing Permit Directions (Ombudsman’s Report). As a result of the investigation, the Victorian Ombudsman made five recommendations with Recommendation 5 being that the Secretary to the Department of Health (department) report publicly on Recommendations 1-4 on or before 31 March 2022.
In accordance with Recommendation 5, the public reporting on steps taken in response to the recommendations made in the Ombudsman’s Report can be viewed below.
- Publicly acknowledge that the narrow exercise of discretion under the Border Directions while NSW and the ACT were ‘extreme risk zones’ resulted in unjust outcomes, and consider measures to alleviate this, such as ex gratia payments on application to help cover the financial cost of not being able to travel home.
The Victorian Government has carefully considered the Ombudsman’s Report, which profiles the difficulties and uncertainty faced by people seeking to enter Victoria after the introduction of a permit system for domestic travel and in particular, the designation of extreme risk zones between July and early October 2021. Because of the significant public health risk at that time, Victorians in extreme risk zones could not return home unless they obtained an exemption, had another valid permit (such as for specified workers) or were excepted for limited reasons.
These significant border restrictions were put in place because of the elevated risk to the public health of Victorians from interstate travellers. In particular, there were several active outbreaks in New South Wales linked to the Delta variant of COVID‑19 which presented an ongoing significant risk of incursion into Victoria.
The restrictions were also necessary given the low vaccination rates in Victoria at the time which meant there was insufficient coverage of the population to protect against outbreaks and resultant community transmission.
Victorian residents were strongly and repeatedly encouraged to return to Victoria as soon as possible, or to seriously reconsider travelling out of Victoria, for around four weeks prior to the designation of New South Wales as an ‘extreme risk zone’.
While the Victorian Government is not considering making ex gratia payments for those Victorians who were unable to travel home during this period, it does acknowledge the distress and disruption that the border restrictions generally created. It also acknowledges the frustration and challenges that people experienced when attempting to obtain an exemption in these difficult circumstances when the risks presented to the public health of Victorians by COVID-19 was constantly evolving.
To provide greater clarity, consider amending section 12 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to reflect the equivalent provision in the Human Rights Act 2004 (ACT) as follows.
12. Freedom of movement
Every person has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
The Victorian Government is considering the recommendation of the Victorian Ombudsman to amend section 12 of the Charter of Human Rights and Responsibilities Act 2006 (Charter of Human Rights).
As a matter of priority, develop and implement policy under the amended Public Health and Wellbeing Act 2008 (Vic) to:
- assure Victorians that their ability to return home safely will be a key component of future public health directions or pandemic orders that require the closure of Victoria’s interstate borders
- ensure that if, as a result of interstate border closures, a Victorian resident is unable to return home safely, appropriate financial assistance will be provided so the person is not unfairly disadvantaged
- provide guidance for the implementation of future public health directions or pandemic orders that allow people to apply to be exempt from any or all requirements, to ensure discretionary decision-makers:
- consider each applicant’s individual circumstances
- take reasonable steps to engage directly with the applicant
- prioritise factors that mitigate risk to public health
- consider whether additional conditions may be reasonably imposed on the applicant to mitigate risk to public health and allow the exemption to be granted
- provide reasons for any adverse decision
- provide details of internal and external review rights, including the Ombudsman.
The department understands that Recommendation 3 was made having regard to section 231A of the PHW Act under which the Secretary of the department may develop a compliance and enforcement policy. The department has published its COVID-19 Compliance and Enforcement Policy () in accordance with this section.
Recommendations 3(a) and 3(b)
The ability of Victorians to return home safely was an important component of the public health directions relating to the border restrictions and the reason why an exemptions process was established. As identified in the Ombudsman’s report, proper consideration was given to human rights in the decisions made by the Chief Health Officer or Acting Chief Health Officer to issue, update or revise the relevant border directions (pages 48 and 49), including rights in relation to the home, privacy, family and freedom of movement.
In the event of any future pandemic orders relating to border closures, the objective of facilitating the return home of Victorians where it can be achieved safely and without imposing excessive risk on the wider community, will continue to be a key component. The department is not able to guarantee financial assistance to any residents unable to return home as a result of any future interstate border closure, as recommended by the Victoria Ombudsman. However, the department will consider financial impacts as part of any guidance developed in this area.
Guidance for exemptions processes across the department will be prepared
The department is developing guidance for the implementation of future pandemic orders that allow people to apply to be exempt from any or all requirements. It is expected that this guidance will address, amongst other things:
- Establishing and scaling up exemption processes in the context of a pandemic, including resourcing, systems, procedures
- Communicating with the public and individual applicants about the exemptions process, including ensuring the process is accessible to vulnerable communities
- Balancing the public health risks with the applicant’s individual circumstances, including prioritising factors that mitigate the risk to public health and considering conditions that might enable the exemption to be granted
- Fairness in decision‑making, including providing reasons for adverse decisions, and internal and external review rights.
More broadly, as noted above, the department has published its Compliance and Enforcement Policy to support authorised persons promoting compliance with, and enforcement of, the PHW Act and specified sections of the PHW Act, in relation to the COVID-19 pandemic.
Many features of the Compliance and Enforcement Policy address matters raised by the Ombudsman’s Report, including in Recommendation 3(c), in an authorised persons context. The Compliance and Enforcement Policy introduces four new key pillars that should underpin the approach taken by authorised persons to ensure compliance with, and enforcement of, pandemic orders in relation to the COVID-19 pandemic. These pillars are designed to minimise punitive approaches to non-compliance and instead focus on maximising public health outcomes in the community.
The four key pillars are:
- Pillar 1: Public health driven – ensuring the best public health outcomes are at the forefront of any enforcement and compliance activity.
- Pillar 2: Risk-based decision-making – judgements are made in line with public health risks and other prevalent risks at any given time.
- Pillar 3: Graduated responses – supporting a broadly consistent decision-making and escalation approach, ensuring that punitive options such as issuing infringements and criminal proceedings are a last resort and for the most severe breaches.
- Pillar 4: Mindful of individual and community circumstances – ensuring all Victorians understand their shared rights and obligations in relation to pandemic management and reducing the unintended consequences and disproportionate impacts of compliance and enforcement decisions on vulnerable people and communities.
Implemented and ongoing improvements to software platform managing border exemptions
The Border Directions System (BDS), which was the department’s internal platform for managing exemption applications under the relevant border directions, is being reviewed and updated. The purpose of this review is to ensure that, if BDS needs to be reinstated in response to any future changed border conditions in Victoria, its functionality already reflects areas for improvement identified by the department and the Victorian Ombudsman.
Two key new features are now implemented into BDS following this review, including having regard to Recommendation 3(c).
First, BDS requires decision‑makers to provide reasons for each application where they do not grant an exemption. The reasons can be selected from a drop‑down box or populated as free text by the decision‑maker. These reasons are automatically included in the notification sent to individuals advising them of the outcome of their application.
Second, BDS now includes functionality for an internal review process. Where an applicant requests that a decision not to grant an exemption be reviewed internally by the department, BDS has a new workflow that accommodates this separate process. On application for review, the original exemption application is locked and the new review workflow can only be accessed by independent users for the purpose of completing a review.
- Noting the Department could not provide certainty to people on their status as an ‘excepted person’ under the Border Directions, invite those who received an infringement for entering or attempting to enter Victoria as an 'excepted person' to have their infringement reviewed and withdrawn where they believed on reasonable grounds they were an ‘excepted person’.
Between March 2021 and November 2021, the department issued 26 infringement notices to individuals attempting to enter Victoria as an ‘excepted person’ under the Victorian Border Crossing Directions. Of those, 15 individuals requested a form of review for which, as at 31 March 2022:
- 3 have an ongoing internal review;
- 3 have been withdrawn following an internal review with an official warning issued;
- 7 have been withdrawn following an internal review with no further action taken;
- 1 infringement notice has been confirmed following an internal review; and
- 1 request has been made for determination in a Magistrates’ Court.
Each infringement notice included details on how individuals could have the infringement notice internally reviewed where they believed the decision to issue the notice was:
- contrary to law;
- involved a mistake of identity;
- that special circumstances apply (as defined in the Infringements Act 2006 (Vic); or
- the conduct for which the infringement notice was served should be excused having regard to exceptional circumstances.
The infringement notices also included an option for individuals to have the matter dealt with directly in a Magistrates’ Court.
Contact details for Fines Victoria was included on each notice for individuals to obtain further information relating to eligibility for payment plans and applying for internal review.
Since the tabling of the Ombudsman’s Report, the permit system to manage domestic interstate travel permits, exceptions and exemptions has been revoked entirely.
Further, the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 introduced new objectives to Part 8A of the Public Health and Wellbeing Act 2008 (PHW Act) which focuses on protecting the public health and wellbeing of Victorians.
Section 165A(1) provides that the objective of Part 8A is to establish a regulatory framework for:
- preventing and managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential;
- supporting proactive and responsive decision-making for the purposes of preventing and managing the outbreak or spread of pandemics and diseases of pandemic potential;
- ensuring that decisions made, and actions taken under this Part are informed by public health advice and other relevant information including, but not limited to, advice given by the Chief Health Officer;
- promoting transparency and accountability in relation to decisions made and actions taken under this Part; and
- safeguarding contact tracing information that is collected when a pandemic declaration is in force.
In addition to these objectives, section 165A(2) of the PHW Act provides that the Parliament of Victoria recognises the importance of protecting human rights in managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential.
Reviewed 26 May 2022