“Unjust”: Victorian Ombudsman findings on Department of Health border exemption scheme

The Victorian Ombudsman has found the narrow exercise of discretion under the border exemption scheme resulted in unjust outcomes, and recommended the Government publicly acknowledge the distress caused to affected people.

The investigation revealed that of the 33,252 exemption applications the Department of Health received between 9 July and 14 September 2021, when the investigation commenced, only eight per cent were granted.

People complained to the Ombudsman after being refused exemptions to travel to Victoria to farewell loved ones at funerals, attend vital medical appointments, care for sick family members, return home to care for animals, or to start jobs. Some found themselves facing effective homelessness because they lived in Victoria and couldn’t return.

Ombudsman Deborah Glass did not criticise the decision to close the border. The decision referred to public health advice, considered the human rights implications, and allowed for the exercise of discretion. But while discretion to approve exemptions was available, it was exercised narrowly, and most applications did not even reach a decision-maker.

“People’s anguish when they spoke to us was palpable,” Ms Glass said.

“I recognise that the Department of Health’s intentions were to protect people in Victoria from a dangerous virus that had already seeded through cross border incursion, and that the Department was under enormous pressure dealing with the exigencies of the public health emergency.

“While we did not review all decisions and I do not suggest that all were unfair, the overwhelming majority of applications did not get to a decision-maker at all, and the guidance did not change even as case numbers in Victoria grew and the risks evolved. The consequences of that were vast, and unfair, for many thousands of people stuck across the border.

“The result was some of the most questionable decisions I have seen in my over seven years as Ombudsman.

“There is no doubt the government provided explicit warnings to Victorian residents interstate. But people still reasonably relied on a traffic light system which previously would have seen them come home under strict conditions. Even in a global health emergency, some people need to cross state borders, and too many found themselves bereft.

“The effect of a complex and constrained bureaucracy meant some outcomes were downright unjust, even inhumane.

“People felt caught up in a bureaucratic nightmare.

“It appeared to me that the Department put significant resources into keeping people out rather than helping them find safe ways to get home.”

The team responsible for border exemptions was scaled up from 20 staff in early July to 285 by early September. Those responsible for categorising and prioritising applications were expected to complete 50 per hour – an average of almost one every 30 seconds.

The evidence required to be granted an exemption was extensive, ranging from statutory declarations, proof of residence or ownership of animals, letters from doctors, and statements of relationship to people who were dying.

Victoria had operated a traffic light system from January this year, where every person wishing to enter the State required a permit or an exemption. But changes to the traffic light model were made in July, and when the Victorian and New South Wales border shut, thousands of people were suddenly left stranded and found themselves unable to get an exemption.

The Ombudsman’s investigation received 315 complaints, including from people who said they were paying double rent with no job, caravanning pensioners with no internet access asked for documents they did not have, a farmer who was afraid of having to destroy her animals when she couldn’t get home, and a woman who cared for her intellectually disabled sister asked why she could not put her sister in an aged care home. Others told the investigation of the impact of the Border Directions on their mental health and wellbeing.

The Ombudsman has also recommended the State Government improve policy and guidance for such schemes and consider ex gratia payments on application to help cover the financial cost of not being able to travel home.

The Ombudsman’s Investigation into decisions made under the Victorian Border Crossing Permit Directions was tabled in Parliament today.

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