By Paul Gregoire and Ugur Nedim
The highest court in the land ruled that lockdown restrictions do not contravene the Australian constitution.
Then Victorian health minister Jenny Mikakos declared a state of emergency on 16 March 2020, in relation to the outbreak of the COVID-19 virus.
This measure works to invoke emergency powers to be exercised by authorised officers, who are appointed by the state’s Chief Health Officer.
Made under the provisions of the Public Health and Wellbeing Act 2008 (Vic) (the Act), the declaration has been repeatedly reinstated, so the state of emergency continues to this day, with its current end date being this Thursday, 29 July 2021.
Section 200 of the Act contains the emergency powers exercisable by the Chief Health Officer during a state of emergency, which includes the ability to “restrict the movement of any person or group of persons within the emergency area”.
Under the powers, the state government imposed a lockdown, which meant citizens were confined to their homes and could only leave for certain reasons. There was a 5 kilometre restriction on movement, only those deemed essential could go to work, and many businesses had to close.
Mornington Peninsula restaurant owner Julian Gerner took the Andrews government to the High Court last November to challenge the lockdown directions, as he claimed his business, Morgan’s Sorrento Restaurant and Bar, suffered unduly under restrictions that were unconstitutional.
Implied freedom of movement
On 6 November last year, five justices of the High Court deliberated upon Gerner’s claim that the Andrew government’s lockdown directions were unconstitutional because they infringed upon the implied right to freedom of movement contained within the Australian Constitution.
The plaintiff’s argument was that freedom of movement is implied within the text and the structure of the Constitution and is “practically necessary for the preservation” of that structure.
Failing that, a freedom of movement is implied by the system of representative and responsible government that’s enshrined in the Constitution, along with being a part of the freedom of political communication that’s implied within the founding document.
Alternatively, Gerner asserted that freedom of movement is an aspect of the provisions of section 92 of the Constitution, which guarantee free trade between all states within the Commonwealth.
An implication of federation
A five justice bench presided over the matter. It comprised of Chief Justices Susan Kiefel, Justice Stephen Gageler, Justice Patrick Keane, Justice Michelle Gordon, and Justice James Edelman.
In the 10 December 2020 published reasons, their Honours set out that “at common law individuals may move about as they see fit”, however “that freedom is subject to the laws of the land”.
So, as freedom of movement can be “limited by statute”, to consider such an implied freedom within the Constitution is to establish a conflict between the founding document and statute law, which would imply federal and state governments don’t have the power to restrict movement.
The plaintiff asserted that this limit on federal and state government legislative power is a result of the fact that federation produced “one people, one nation, where there had been several peoples and several colonies”, and it would follow that these people are free to move and know each other.
The court outlined that the legislative powers of the state are preserved by section 106 of the Constitution, and there is nothing within the text and structure of the document that indicates that this is limited when it comes to freedom of movement.
The plaintiff emphasised that if states had unrestrained legislative powers, this could lead to the establishment of enclaves. However, their Honours countered that “the possibility that legislative power may be misused is distinctly not to demonstrate a sufficient reason to deny its existence”.
In terms of the provision for free trade between the states under section 92, their Honours found that precedents had been set in earlier High Court cases, which found that laws restricting movement between states are unconstitutional, but this did not extend to intrastate movement.
Representative and responsible government
Gerner further argued that “movement for any purpose amounts to political communication”, so this should therefore be protected under the Constitution’s implied freedom of political communication, which the High Court established existed in two separate 1992 cases.
And this movement is vital in maintaining the “constitutional system of representative and responsible government”, the plaintiff added.
The High Court has found that the implied freedom of political communication does necessitate some limit on legislative powers in order to “establish the political sovereignty of the people” so as to allow them to “exercise a free and informed choice to vote”.
This implied freedom is necessary to maintain a “representative and responsible government”.
However, their Honours found that while legislative limits on movement that serve to stymie political expression, such as anti-protest laws, may be unconstitutional, those that limit communication or movement that’s not political in nature are not.
Free trade within federation
The plaintiff then put forth that restriction on intrastate movement isn’t permitted as it serves to limit the section 92 guarantee on freedom of trade between states.
But their Honours contended this argument doesn’t follow, as it fails to explain why a “freestanding freedom of movement” is being used to challenge intrastate movements restrictions, when, in this instance, the requirements of section 92 could directly be used to challenge them.
Further, the High Court justices found that the implied freedom that Gerner was arguing would “swallow” the freedom guaranteed in section 92, as it would render the delineation of state borders pointless.
In concluding that the section 92 limitations on legislative power to preserve interstate trade does not extend to intrastate conditions, the justices were recognising that those powers bestowed in the Constitution are not to be confined by implications that would then undermine them.
The section 92 powers were enacted to restrict states from drafting laws that would impede interstate trade, not to interfere with the internal management of the states, the High Court found.
Within its limits
Their Honours further noted that at the 1897 Sydney Federation Convention, constitutional committee member Richard O’Connor stated that section 92 powers would not remove state policing powers or the power to prohibit infected persons or animals entering state territory.
“For these reasons,” the High Court Justices ruled last December, “the plaintiffs’ contention was rejected and the defendant’s demurrer allowed.”