Supreme Court of Victoria finds that lockdown measures restricting movement do not impermissibly burden the implied freedom of political communication
Cotterill v Romanes [2021] VSC 498
Summary
On 17 August 2021, the Supreme Court of Victoria dismissed a challenge to the validity of the Victorian Government’s lockdown laws. Specifically, Niall JA held that measures to restrict movement in the context of the COVID-19 pandemic under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) and associated directions did not impermissibly burden the implied freedom of political communication.
Facts
In response to the COVID-19 pandemic, the Victorian Government made mandatory directions under the PHW Act that restrict movement of persons within the community. The PHW Act empowers authorised officers, appointed by the Chief Health Officer, 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 because of the risk to public health posed by COVID-19.
Under subsections 200(1)(b) and (d) of the PHW Act respectively, the emergency powers exercisable by the Chief Health Officer include the power “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”. Pursuant to these powers, the first defendant, an authorised officer, made two directions: the Stay at Home Directions (Restricted Areas) (No 14) and the Stay Safe Directions (Melbourne) (No 2) (together, the Directions).
On 13 September 2020, the plaintiff was given an infringement notice alleging that she was in breach of the Directions. She said that she was both exercising (which was a permitted reason to leave home) and demonstrating against the lockdown (which was not a permitted reason to leave home). The plaintiff brought proceedings against the Victorian Deputy Public Health Commander and Chief Health Officer contending that the Directions were invalid because they impermissibly burden the implied freedom of political communication provided for in the Australian Constitution and are therefore not authorised by subsections 200(1)(b) and (d) of the PHW Act.
Key Findings
Standing
Niall JA rejected the defendants’ submissions that the plaintiff lacked standing to bring the proceeding. Critically, the plaintiff was seeking to vindicate a private right – the right to enter or leave her residence. She also had a special interest in the subject matter of the litigation given her intention to protest in the future. Niall JA rejected the alternative submission that her claims should not be entertained as a discretionary matter on the basis that her infringement notice had been withdrawn and the Directions were no longer in force. His Honour held that it remained a live issue given the significant implications of the Directions on individuals’ right to liberty.
Implied freedom: the principles
The implied freedom is a limitation on legislative power which prevents the State and Commonwealth Parliaments from enacting legislation that imposes an unjustifiable burden on communication on political and governmental matters. The applicable test has three elements: (1) do the provisions impose a burden on political communication?; (2) is the purpose compatible with the constitutionally prescribed system of representative government? and (3) if so, are the provisions appropriate and adapted to the pursuit of the purpose? Niall JA described this as the “McCloy test”[1].
Whether a law is appropriate and adapted to a legitimate end requires a structured proportionality analysis that examines three components:
suitability (i.e. whether the impugned provisions bear a rational connection to the purpose);
necessity (i.e. whether there is an equally practicable, or obvious and compelling, alternative that can achieve the outcome but at less of a cost to the freedom); and
balance (i.e. whether the provisions are adequate in their balance).
Implied freedom: application
Niall JA observed that a critical question in the proceeding was “in a context that involves the exercise of both legislative and executive power – at what point is the constitutional analysis to be applied?”. After having surveyed several High Court authorities (namely, Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, Wotton v Queensland (2012) 246 CLR 1, Comcare v Banerji (2019) 267 CLR 373 and Palmer v Western Australia [2021] HCA 5), His Honour concluded (at [167]):
[F]or the purpose of the implied freedom, where there is both an exercise of legislative power and administrative power, the McCloy analysis is, generally speaking, to be applied at the level of the legislative power. The specific exercise of power at the level of the executive, is relevant only to identify the power in issue, and perhaps illustrate its legal and practical effect. It will also provide the concrete setting for the application of judicial power.
Three principal reasons were given as to why it is not usually appropriate to analyse the freedom at the level of executive power (at [200]):
[First], it tends to distract from the primary focus of the immunity which is a limitation on legislative power. Second, it heightens the risk of wrongly treating the immunity as a right and not a limitation. [Third] by ‘converging’ the analysis and in effect moving straight to the exercise of power, relevant constitutional limitations contained within the statute may be ignored or not given sufficient prominence.
Niall JA therefore accepted the defendants’ submission that the McCloy test is to be applied directly to the PHW Act – specifically subsections 200(1)(b) and (d), not the Directions. Applying this approach, his Honour concluded that subsections 200(1)(b) and (d) are valid in all their potential operations insofar as they may impose a burden on political communication. That is, because of the legitimate purpose they serve (namely, “to reduce or eliminate serious public health risks in the context of an emergency that has been declared by a responsible minister and reported to the Parliament”) and the significant constitutional limitations that confine their exercise and ensure that no lawful exercise of power can be obnoxious to the constitutional freedom, they may be justified as appropriate and adapted.
Niall JA held that the relevant subsections of the PHW Act are “suitable” as they provide for a general power which is rationally connected to the legitimate purpose, and because the manner of their exercise ensures they remain faithful to that purpose. His Honour considered that the provisions were also “necessary” as there is no obvious and compelling alternative that would impose less of a burden, and that they were adequate in their balance.
Niall JA went on to note in obiter that if the plaintiff’s approach was to be accepted such that the analysis applied to the Directions, they would still be valid. His Honour considered that whilst the Directions burden the implied freedom, they were made for a compatible purpose, and were appropriate and adapted.
Commentary
Despite Niall JA’s finding that it is appropriate to analyse the freedom at the level of legislative power, the proposition that this is the “primary focus of the immunity” is arguably an overstatement and at odds with Lange v ABC (1997) 189 CLR 520, where the High Court made clear that the implied freedom constrains both legislative and executive power. Nevertheless, Niall JA acknowledged that the focus on legislative power is not a blanket rule, and that “it may be appropriate, or necessary, in some cases to apply the analysis at the level of the executive power”. Further, Niall JA’s comments in obiter indicate that the same outcome in this case would have been reached regardless of the level at which the test was applied.
This case fits within a series of decisions where courts have upheld the validity of governmental COVID-19 restrictions, including 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). As various forms of restrictions continue throughout Australia, there are likely to be further cases before the courts which challenge the proportionality of governments’ curtailment of individual rights and freedoms.
A link to the full text of the decision can be found here.
Harry Aniulis is a Solicitor at King & Wood Mallesons.
[1] McCloy v New South Wales (2015) 257 CLR 178.