High Court of Australia rejects challenge of COVID-19 lockdown restrictions

Gerner v Victoria [2020] HCA 48

Summary

The High Court rejected a Melbourne business owner's claim that Victoria's Lockdown Directions infringed an implied freedom of movement from the Constitution. The Court's decision upheld the settled approach to constitutional interpretation, confirming the Constitution provides no basis for an implication of freedom of movement that limits legislative or executive power.

Facts

The Public Health and Wellbeing Act 2008 (Vic) (the Act) empowers the Victorian Government to exercise "emergency powers" when a "state of emergency" has been declared. The "emergency powers" under s200(1)(b) and (d) of the Act include the ability to "restrict the movement of any person or group of persons within the emergency area" and to "give any other direction that the authorised officer considers is reasonably necessary to protect public health". Since the declaration of "state of emergency" due to COVID-19 on 16 March 2020, the Victorian Government has invoked the powers under the Act to issue and extend Lockdown Directions from time to time, which restricted the movement of people within the state.

Julian Gerner, is a restaurant owner in Melbourne whose restaurant business was generating approximately $2 million dollars of sales revenue per annum prior to the Lockdown Directions. It was alleged the restrictions on movement imposed by the Lockdown Directions caused the restaurant to suffer significant loss of revenue.

The plaintiffs commenced proceedings in the High Court seeking declarations that the Lockdown Directions issued were invalid as they infringed an implied freedom of movement in the Constitution. The plaintiff presented three alternative arguments: the freedom is "implied from the text and structure of the Constitution"; it is "part of the implied freedom of political communication"; or it is implied by the free trade between states under s92 of the Constitution.

Decision

The Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) unanimously rejected plaintiff's claim and clarified the Constitution does not provide any basis for an implied freedom of movement.

In response to the contention that freedom of movement is implied by the text of the Constitution, the Court noted that although at common law, individuals are generally free to move about as they saw fit, it is not a freedom that stood above the 'laws of the land'. The Court found that there was no basis to imply a freedom of movement from the text and structure of the Constitution and to accept otherwise would place an unjustified limitation on legislative and executive power. The Court rejected the plaintiff's argument stating that given the Constitution expressly preserved the States' powers by s106 of the Constitution it would be 'surprising' if States had to conform to the limitation as suggested by the plaintiff.   

The plaintiff, relying on the judgment of Murphy J in McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, contended that the constitutional freedom of political communication, including physical movement, descends from "the nature of Australian society". The Court rejected the suggestion that a freedom of communication or movement is a freestanding implication of the Constitution. The Court did not support a "blanket" application of implied freedom, as it would be contrary to the long settled approach on constitutional implications. Turning to the more 'orthodox view' of constitutional interpretation, the Court considered the contention that 'freedom of movement or communication enjoys constitutional protection of freedom of political communication.' Although the Court accepted the assertion that a limitation on movement that would impede the right to political communication may be invalid, the facts presented in this case were not sufficient to prove the lockdown restrictions limited political communication.

Lastly, the Court rejected the plaintiff's contention for an implied freedom of intrastate movement based on s92 of the Constitution. This argument directly contradicts the decision in Miller v TCN Channel Nice Pty Ltd (1986) 161 CLR 556, which held that s92 does not imply a freedom of communication (including freedom of movement). The freedom of movement argued by the plaintiff is broader than the "freedom" intended by the framers in s92. The Court stated that the inclusion of s92 was to ensure the free flow of goods across State borders and was not concerned with intrastate movement or trade. Therefore accepting such an assertion would be implying a restriction that is "wider in its operation than the express terms of s92".

Commentary

Governments have to protect our rights to life and health in a pandemic but these emergency powers should be narrowly confined to what expert advice says is necessary and tested against human rights laws. The pandemic has seen governments across Australia have to take unprecedented steps that infringe our rights and freedoms. For example, restrictions on movement, curfews, tracing applications and broadened police powers. These must be balanced against other rights like freedom of movement, privacy and the right to equality.

Courts assess the proportionality of these measures by reference to the legislation which empowers the restriction and, in this case, the Constitution. Victorian, Queensland and ACT Courts are guided by their respective human rights charters. In this regard, a federal Charter of Human Rights would no doubt help guide these decisions on a national level.

This case affirms the accepted approach to constitutional interpretation, and clarifies that freedom of movement is not a right that could be drawn from the Constitution. .

The Court is careful in not providing support to a wide reading of implied freedom as it may place disproportionate burden on legitimate exercise of legislative powers. As quoted in the judgement, Finn J stated in Higgins v The Commonwealth (1998) 79 FCR 528 at 534 535:

"It is inconceivable… that the Constitution implicitly puts at risk (subject to considerations of proportionality, etc) a significant range of routine Commonwealth and State laws merely because in particular ways, they limit either freedom of movement or else the making of choices within that freedom."

However, this decision is not a complete rejection of all reasonable challenges on legislative powers. Ultimately, the success of similar constitutional challenges will depend on the merit of arguments made, and whether the subject matter in fact places concerning and unnecessary restrictions on implied freedom drawn within scope of the Constitution.

This case can be read in full here.