Cotterill v Romanes [2023] VSCA 7 

Summary 

On 8 February 2023, the Victorian Court of Appeal dismissed an appeal from Cotterill v Romanes [2013] VSC 498 (a link to the case summary of the decision can be found here).

The Court of Appeal held that directions made in the context of the COVID-19 pandemic under the emergency powers in the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) did not impermissibly burden the freedom of political communication implied in the Commonwealth Constitution. 

Facts 

The PHW Act empowers authorised officers to exercise emergency powers when a state of emergency has been declared by the Minister for Health. On 16 March 2020, a state of emergency was declared for the whole of Victoria. The emergency powers relevantly included powers to make direction restricting movement of any person or group, and to give any other direction considered by the officer exercising the emergency powers to be reasonably necessary to protect public health.

On 27 August 2020, Dr Finn Romanes (an authorised officer) made the Stay at Home Directions (Restricted Areas) (No 14) (Stay At Home Directions). Relevantly, the Stay At Home Directions prohibited persons in Melbourne from leaving their homes except for certain permitted reasons. The permitted reasons relevantly included engaging in exercise but did not include engaging in protest or any other form of political communication. 

On 28 October 2020, Victoria’s Chief Health Officer made the Stay Safe Directions (Melbourne) (No 2) (Stay Safe Directions). The Stay Safe Directions were less restrictive than the Stay At Home Directions. They did not prohibit persons from leaving home, but did prohibit, subject to certain exceptions, public meetings and gatherings of more than nine persons. Again, there was no exception for engaging in protest or any other form of political communication. 

On 13 September 2020, the applicant left her home while the Stay At Home Directions were in effect to simultaneously engage in exercise and express her political views – namely, disapproval of the Premier’s response to the pandemic (by walking whilst carrying a sign that depicted political messages). The applicant was issued with an infringement notice alleging that she had contravened the Stay At Home Directions because, by conducting a protest, she was outside of her home without a permitted reason. The notice has since been withdrawn. 

On 15 October 2020, the applicant commenced a proceeding in the Trial Division of the Supreme Court of Victoria seeking declarations that parts of the Stay at Home Directions and Stay Safe Directions were invalid because the directions, or alternatively the emergency powers, impermissibly infringed the implied freedom of political communication. 

On 17 August 2021, Niall JA dismissed the proceeding in Cotterill v Romanes [2013] VSC 498, making three relevant findings:

(a) the question whether the implied freedom had been infringed was to be answered by reference to the authorising provisions in the PHW Act — those conferring the emergency powers — rather than the directions;

(b) the authorising provisions did not impermissibly infringe the implied freedom; and

(c) even if the question was to be answered by reference to the directions, the directions also did not impermissibly infringe the implied freedom. 

The applicant sought leave to appeal on three grounds, challenging these three findings. 

Court of Appeal Decision

Ground 1: What is the appropriate level of constitutional analysis? 
Ground 1 of the appeal was that the trial judge erred in concluding that the appropriate level of constitutional analysis is whether the authorising provisions in the PHW Act impermissibly infringed the implied freedom of political communication, rather than whether the directions infringed the freedom. 

The Court of Appeal agreed with Niall JA’s view that compatibility with the implied freedom of political communication is to be judged at the level of the statute, not at the level of the exercise of power (i.e., the directions), because the implied freedom of political communication operates to restrict the scope of legislative power. 

Accordingly, if the authorising provisions of a statue fall within the legislative power (as restricted by the constitutional limitation of the implied freedom) without needing to read it down to preserve its validity, then the constitutional requirement is met, which means that is the end of the constitutional analysis. The validity of the application of the statute will then only depend on whether it falls within the scope of the authorising provisions. 

The Court of Appeal held that the PHW Act is a law hedged with limits such that it does not need to be read down to accord with the constitutional principle. This is so for four reasons: 

1. The emergency powers are only available where a state of emergency has been declared by the Minister for Health in response to a serious risk to public health. 

2. The powers can only be exercised, even in the context of a declared emergency, if the Chief Health Officer considers it reasonably necessary in order to eliminate or reduce that serious risk to public health. 

3. The emergency powers themselves are circumscribed to “restrict the movement of any person or group of persons” only within the “emergency area”. 

4. All administrative action under the PHW Act is susceptible to judicial review. 

The Court of Appeal held that, in such circumstances, it would be perverse to read down the emergency powers to comply with constitutional limits, and then determine whether the directions would, if enacted as legislation, comply with those limits. Accordingly, Ground 1 of the appeal was rejected.

Ground 2: Whether the authorising provisions impermissibly infringed the implied freedom? 

Ground 2 of the appeal was that the trial judge erred in concluding that the authorising provisions in the PHW Act did not impermissible infringe the implied freedom.

The Court of Appeal reiterated that whether a law is invalid because it impermissibly infringes upon the implied freedom of political communication is to be answered through a staged inquiry: 

1. Does the law effectively burden the implied freedom in its terms, operation or effect? 

2. If so, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 

3. If so, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 

The first two limbs of the inquiry were not in dispute. The parties accepted that the emergency powers burdened the implied freedom, but did so for the legitimate purpose of reducing or eliminating serious public health risks in the context of a declared emergency. It was also not disputed that the trial judge was correct to characterise the provisions as ‘suitable’ for that purpose. 

The dispute concerned the third limb of the inquiry, which involves a “structured proportionality” analysis as to whether the law is suitable, necessary, and adequate in its balance. The law will be ‘suitable’ if the impugned provisions bear a rational connection to the purpose of the law, in the sense that the means provided by the law are capable of realising the law’s purpose. It will be ‘necessary’ if there is not an ‘obvious or compelling alternative’ which is ‘equally practicable and available’ and ‘would result in a significantly lesser burden on the implied freedom’. It will be ‘adequate in its balance’ provided that the benefit sought to be achieved is not manifestly outweighed by the adverse effect on the implied freedom.

The applicant argued that the authorising provisions did not satisfy the “structured proportionality” analysis as they were not necessary. The Court of Appeal therefore considered whether there was an obvious or compelling alternative to the directions, which was equally practicable and available, and which would have resulted in a significantly reduced burden on political communication. 

The applicant proposed two alternative measures, both of which were rejected by the Court of Appeal: 

1. The applicant argued that a limitation should apply to the authorising provisions, such that the emergency powers are limited to what is reasonably necessary, having regard to the need to preserve the freedom of political communication. The Court of Appeal held that such a blanket measure was not an obvious or compelling alternative means of achieving the legislative purpose of eliminating or reducing serious risks to public health. 

2. The applicant argued, in the alternative, that specific measures should apply to restrict what constitutes an emergency and provide for a more restricted period during which an emergency can subsist. The Court of Appeal held that it was not apparent why such measures would significantly reduce the burden on political communication in circumstances where the emergency powers are already hedged within strict limits. 

The Court of Appeal also rejected the applicant’s argument that the authorising provisions were not adequate in their balance, finding that the emergency powers exhibited the hallmarks of a proportionate response to a serious risk. The Court concluded that the applicant had not demonstrated that the benefit sought to be achieved was manifestly outweighed by the adverse effect on the implied freedom of political communication. 

The Court of Appeal concluded that the emergency powers were valid in all their applications to the implied freedom. Ground 2 of the appeal therefore failed.

Ground 3: Whether the directions impermissibly infringed the implied freedom?

Ground 3 of the appeal was that the trial judge erred in concluding that the directions did not impermissibly infringe the implied freedom. Ground 3 did not arise for consideration by the Court of Appeal, in light of the Court’s conclusions on Grounds 1 and 2. 

Commentary 

In Cotterill v Romanes [2023] VSCA 7, the Court of Appeal confirmed that ordinarily it is appropriate to analyse the implied freedom of political communication at the level of legislative power, rather than at the level of a particular exercise of power. This position is only varied if the authorising statute is so ‘broad and general’ as to require that it be read down or partially disapplied to preserve its validity/compliance with the constitutional limit, in which case the constitution analysis is conducted at both the authorising statute level and the exercise of power level. 

This case fits within a series of decisions where courts have upheld the validity of governmental COVID-19 restrictions, including LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90 (summarised here) Palmer v Western Australia (2021) 95 ALJR 229, Loielo v Giles [2020] VSC 722 (summarised here), and Gerner v State of Victoria [2020] HCA 48 (summarised here). 

A link to the full text of the decision can be found here.  

Authored by Eli Barrand, Solicitor, King & Wood Mallesons.