Hayden Flinn’s case against the state of Victoria , due to start in the Supreme Court on Monday, is both infuriating and achingly sad.
The idea of a grieving father flying home through the night after learning of his 13-year-old daughter’s death, only to be locked in a hotel for two weeks and barred from seeing her body, will offend anyone with an ounce of humanity
It is a harrowing reminder, five years after Melbourne’s last lockdown lifted, that as effective as our pandemic response was in stopping the spread of a deadly virus, it damaged people in ways that are still deeply and widely felt.
This civil trial is also about more than one family’s tragic circumstance.
Just two weeks before a state election, Flinn v the State of Victoria is a serious challenge against the legality of the hotel quarantine regime established and enforced by the Andrews government.
If Flinn can convince Justice Andrew Keogh he was unlawfully detained, such a verdict would call into question whether the state breached its laws when it locked up a further 46,000 returned travellers throughout the COVID crisis.
The case turns on a section of the Public Health and Wellbeing Act, which, at the time that departmental officials and infectious disease experts were setting up Victoria’s hotel quarantine arrangements, troubled one of the state’s finest legal minds.
Rowena Orr, a senior counsel turned judge who in September was appointed president of the Court of Appeal, is one of three barristers called in on a frantic weekend in March 2020 to provide advice to the Department of Health to ensure its plan for hotel quarantine was consistent with Victoria’s public health laws.
Orr’s advice, which was tendered as an exhibit in the hotel quarantine inquiry chaired by Jennifer Coate later that year, zeroed in on a statutory requirement to review any detention order issued to protect public health at least every 24 hours.
Detention orders were made under the authority of Victoria’s then-chief health officer Brett Sutton but issued, signed and reviewed by authorised officers – delegated representatives of the chief health officer – stationed inside quarantine hotels.
Orr advised the department that to properly review a detention order, an authorised officer needed to approach the task in an “active intellectual” way and ask themselves a crucial question: whether continued detention was reasonably necessary to reduce a serious risk to public health.
Flinn argues that this was not done in his case.
He flew into Melbourne on May 3, 2021, more than a year after hotel quarantine was established. He was fully vaccinated with two doses of Pfizer, had returned negative tests for COVID and returned to Melbourne from Hong Kong, a jurisdiction where at that time the virus was not circulating in the community.
He was travelling with his 15-year-old son, who was grieving for his sister and desperate to see his mum.
Although there are public records indicating a daily review of Flinn’s detention, the Victorian government’s formal response to his statement of claim suggests this was an administrative tick and flick rather than a considered review.
“When undertaking 24-hourly reviews of the plaintiff’s detention in May 2021, the authorised officers ... were not themselves considering whether continued detention for the total period of 14 days remained reasonably necessary,” the government argues in its response filed with the court.
According to Orr’s advice, which was backed by other senior lawyers advising the government, this is precisely what authorised officers were supposed to do.
The timing of this case is wretched for Premier Ben Carroll and his beleaguered Labor government, which after 12 years in power are seeking re-election in the midst of an economic downturn and a royal commission into the Building Bad scandal .
The witness list includes Sutton, his former deputy Allen Cheng, two of the former authorised officers who managed Flinn’s quarantine and Catherine Bennett, an epidemiologist who co-authored the federal government’s COVID-19 Response Inquiry report.
The report tracked the way initially strong public support for uniform health measures was replaced by mistrust, anger and disengagement, as state-led pandemic responses became punitive and overbearing.
It concluded that our pandemic experience had left many people resentful and less trusting of government. “There is a need to repair and rebuild these elements of the social fabric,” it warned.
Carroll has publicly reflected that the state government failed to do this.
“I think if we could have our time again, we would be more financially responsible and really wrap our arms around the Victorian community after the pandemic,” he told The Age last week . “I feel like that lingers.”
Kos Samaras, a former Victorian Labor assistant secretary turned pollster for the Redbridge Group, believes that unresolved anger from Melbourne’s pandemic experience is bubbling beneath anti-Labor sentiment in working-class communities in Melbourne’s west, where the social impact of lockdowns was disproportionately felt.
Hayden Flinn v the State of Victoria is not a story of bloodless bureaucrats. Within a day of Flinn’s arrival into Melbourne, his heartbreaking situation was communicated from people working in hotel quarantine to the state’s most senior health officials.
Two department secretaries, Euan Wallace in health and Rebecca Falkingham in justice, petitioned for his release. The matter was raised directly with Sutton, a compassionate public health doctor.
Yet they kept him detained, in a Richmond hotel room, for the full 14 days.
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