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

such, a constitutional guarantee of freedom of movement is properly understood as a limitation on legislative or executive power (rendering legislation that encroaches on this guarantee invalid) rather than a “personal right”. Second, the High Court, foreshadowing its dismissal of the appeal, observed, at [12], that the orthodox view is that freedom, of communication or movement, is protected by the Constitution only “as an aspect or corollary of the protection of freedom of political communication”. The High Court then went on to swiftly dispatch each of the arguments advanced by the appellant in support of a broad idea of freedom.

In respect of the plaintiffs’ Preservation Argument, the High Court pointed out that this argument was not supported by any High Court authority. Indeed, the idea that the Constitution might imply a broad freedom of communication had been expressly rejected (Miller v TCN Channel Nine Pty Ltd (1986) 161 CLT 556). And, on the matter of what the Constitution implies, the High Court reasoned, at [14], that this was to be determined by the terms and structure of the Constitution given that “federation is not a ‘one size fits all’” proposition. Put another way, the kind of federation created depends on the text and structure of the very constitution that created it. Here, the High Court remarked, at [15], that in light of the fact that the legislative powers of the states was expressly preserved in the Constitution (s106), it would be “surprising, to say the least” if state laws had to conform to the limitation proposed by the plaintiffs. The High Court appeared to be unimpressed by the plaintiffs’ argument that, in the absence of an implied freedom to the contrary, states might abuse their legislative power and create “enclaves” that divided people of the Commonwelath and prevented them from knowing each other. The High Court, at [18], reasoned that to “point to the possibility that legislative power may be misused is distinctly not to demonstrate a sufficient reason to deny its existence”.

As to the plaintiffs’ Political Communication Argument, the High Court observed that the implied freedom of communication (recognised in Lange v Australian Broadcadting Corporation (1997) 189 CLR 520) is limited to political communication only. And, the plaintiffs did not plead that the Health Act or the Lockdown Directions restricted political communications.

Finally, in respect of the plaintiffs’ Free Trade Argument, the High Court noted that s92 of the Constitution expressly provides that interstate, and not intrastate, freedom is to be absolutely free. It follows that the implication, contended for by the plaintiffs, is contrary to the explicit text of the Constitution. The High Court also noted that the framers of the Constitution were concerned with preventing states from charging importation duty on goods coming into its territory and not with regulating internal trade, unconnected with interstate trade.

CRIMINAL LAW

Provocation

In Peniamina v R [2020] HCA 47 (9 December 2020) the High Court was required to consider the partial defence of provocation as it operates under s304(1) of the Criminal Code (Qld) (the Code).

Section 304(1) of the Code provides that a partial defence of provocation is available where the accused “does the act which causes the death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool”. The Code then provides for two exceptions to the partial defence. First, under s304(2) of the Code, the partial defence is not available (“other than in circumstances of a most extreme and exceptional character”), if the “sudden provocation” is “based on words alone”. Second, under s304(3) of the Code, the partial defence is not available (“other than in circumstances of a most extreme and exceptional character”) if the accused has killed someone with whom he or she was in a domestic relationship and the “sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done” to either end or change nature of the relationship.

Here the appellant and the deceased were married and had four young children. The deceased went on a long holiday to New Zealand with the children and, on her return, the appellant began to suspect that she had been having an affair during her holiday. The appellant searched through the deceased’s mobile phone and discussed his suspicions with relatives. On the day that the deceased was killed, the appellant snatched the deceased’s mobile phone and, among other things, telephoned the man who had been messaging the deceased who said “horrible things” to him. The appellant subsequently stayed at a relative’s house for two to three hours and began preparing for the possibility that the deceased would leave him by creating his own email address and Facebook account. When the appellant returned home he tried to talk to the deceased. The appellant said that the deceased looked like she didn’t care and told him to “stop talking shit”. The appellant then struck the deceased causing her to bleed from her mouth. The deceased went into the bathroom before going into the kitchen. The appellant heard the deceased open a kitchen drawer. When the appellant walked into the kitchen he found the deceased holding a knife. The appellant attempted to grab the knife but the deceased pulled back the knife causing a deep cut to the appellant’s right palm. The appellant then managed to grab the knife and it was at this point that the appellant said that he thought he wanted to kill the deceased. The appellant killed the deceased as she tried to get away by stabbing her numerous times and striking her twice with a concrete bollard, retrieved from the garden, when the deceased managed to get through the front door of their home and hide behind a car in the driveway. It was a ferocious attack witnessed by at least one of the couple’s young children. When the police arrived the appellant telephoned his mother. He told his mother, among other things, “she cheat on me too many time, mum”. And when first asked what had happened, that same evening, the appellant responded in part “she cheated on me”.

At trial it was the appellant’s case that he killed the deceased after having been provoked by her threatening him with a knife and cutting him with it. It was the prosecution’s case that the appellant knew that the deceased’s conduct with the knife was done in the context of her trying to change the nature of the relationship and as such, pursuant to s304(3) of the Code, the partial defence of provocation was not available to the appellant. In his directions, the trial judge directed the jury to consider, among other things, whether the appellant had proven that s304(3) of the Code did not apply. In particular, the trial judge directed the jury to consider whether something preceding the stabbing or the stabbing itself was an act done to change the nature of the relationship between the appellant and deceased.

The jury returned a verdict that the appellant was guilty of murder. The appellant unsuccessfully appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland on the ground that the trial judge erred in directing the jury of the necessity to consider s304(3) of the Code in circumstances where it was the appellant’s case that his loss of self-control was not “based on” anything done (or believed to have been done) by the deceased to change the nature of their relationship. Unsurprisingly, the focus of the argument before the Court of Appeal (and later in the High Court) was on the meaning of the phrase “based on” in s304(3). Morrison JA and Applegarth J, in separate reasons, construed the phrase widely. Their Honours held that the words “based on” in s304(3), in contrast to the words “caused by” in s304(1), invite consideration of whether the sudden provocation was, in fact, founded on something done by the deceased to change the nature of the relationship. Put another way, s304(3) is not (on a wide construction) limited to the provocative conduct the appellant relied on at trial as being causative of his loss of control. McMurdo JA, in dissent, held otherwise. McMurdo JA advocated, instead, for a narrower construction of s304(3). McMurdo JA noted that the term “sudden provocation”, employed throughout s304, is a term of art concerned with, and related to, the accused’s temporary loss of self-control. McMurdo JA considered that the term, “sudden provocation”, must have a uniform meaning throughout s304. From this, McMurdo JA reasoned that the words “based on” must be understood to refer to a causal relationship between the sudden provocation

and the deceased’s conduct to change the nature of the relationship.

In the High Court, McMurdo JA’s reasons were closely examined. The majority, (Bell, Gageler and Gordon JJ) favoured McMurdo JA’s reasoning and allowed the appeal. Conversely, the minority (Keane and Edelman JJ), dissenting, explicitly rejected McMurdo JA’s reasoning and dismissed the appeal.

The majority conceded, at [14], that the words “based on” are capable of conveying a broader connection than one of simple causation but considered that there were good reasons for resisting a wider construction of s304(3). Here, the majority referred to the context of s304(3), and, in particular, the legislative history of the section and associated extrinsic materials. The majority noted that ss304(2) and 304(3) were inserted into the Code on the recommendations of the Queensland Law Reform Commission. The majority observed that the evident intention of s304(2) was to give statutory force to the common law principle that the defence does not apply where the accused’s loss of control was excited by words alone. Plainly, the majority noted, the connection referred to in s304(2) is causal only (in the sense that it was the deceased’s words that induced the accused’s loss of control not that they were immediate). The majority considered, at [15], that construing the term “based on” as meaning “caused or induced by” would give a “workable and coherent operation” of s304(3). By contrast, the majority considered, at [16], the wider construction, preferred by Morrison JA and Applegarth J in the Court of Appeal, would give an uncertain operation to s304(3). This wider construction would necesitate an inquiry into the nature and extent of the connection required to invoke the section.

But the minority thought, at [87], that “(t)he deliberate contrast in the language used by the legislation points strongly against reading ‘based on’ as ‘caused by’”. The minority noted that “(t)he expression ‘based on’ clearly casts a wider net of connections than ‘caused by’”. And the minority considered, at [93] that, properly understood, s304(3) refers to “the potency of acts of the deceased as a basis or foundation of the accused’s loss of self-control that excludes the application of s304(1)”. The minority held, at [97], that s304(1) is informed by a policy choice by the legislature that a loss of self-control founded on a change, or the possibility of a change, in a domestic relationship is an unacceptable excuse for killing a domestic partner.