CA SE NOTES - HIGH COURT
DR MICHELLE SHARPE BARRISTER – GENERAL COMMERCIAL, REAL PROPERTY, DISCIPLINARY AND REGULATORY LAW VICTORIAN BAR
(03) 9225 8722 msharpe@vicbar.com.au The full version of these judgments can be found at www.austlii.edu.au
High Court judgments CONSTITUTIONAL LAW Implied freedom of movement In Gerner & Anor v State of Victoria [2020] HCA 48 (6 November 2020) the High Court was asked by the parties to rule on the question of whether the Constitution provides for an implied freedom allowing people in Australia to move within the state where they reside without arbitrary restriction of movement. On 16 March 2020, the Minister for Health declared a state of emergency for the whole of Victoria by reason of the risk posed by COVID-19 to public health. On the declaration of a state of emergency, the Chief Health Officer (CHO) is empowered, by ss200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (Health Act), to “restrict the movement of any person or group of persons within the emergency area” and to “give any other direction” that he “considers is reasonably necessary to protect public health”. Since the declaration, the CHO has issued directions restricting the movement of people within Victoria which were in force at the time the matter came before the High Court (Lockdown Directions). The first plaintiff resided in Melbourne and was the owner of the second defendant, a restaurant busines in Melbourne. The Lockdown Directions had a devastating impact on the plaintiffs’ restaurant
business. The plaintiffs commenced proceedings in the original jurisdiction of the High Court seeking declarations that ss200(1)(b) and (d) of the Health Act and the Lockdown Directions are invald as an infringement of an implied right to freedom of movement in the Constitution. The plaintiffs argued that the freedom could be implied in three alternative ways. First, the plaintiffs argued that the freedom could be “implied from the text and structure of the Constitution and is logically and practically necessary for the preservation of the constitutional structure” (Preservation Argument). Second, the plaintiffs argued that the freedom could be “implied from the system of representative and responsible government enshrined in the Constitution and as part of the implied freedom of political communication” (Political Communication Argument). Third, the plaintiffs argued that the freedom could be “implied as an aspect of s92 of the Constitution” (which provides for free trade between Australian states) (Free Trade Argument). The High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) unanimously, and in a short, single set of reasons, determined that the freedom, contended for by the plaintiffs, did not exist. At the outset the High Court made two key observations. First, the High Court, at [10], observed that while, at common law, people could move about as they saw fit, this freedom could be limited by statute. As
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