As most of Australia remains in strict lockdown over the spread of the Covid-19 Delta Strain, interesting developments have been brewing in Canberra where the High Court of Australia sits. The High Court, Australia’s highest authority for jurisprudence has ruled that the strict lockdown which gripped Victoria for weeks on end was not unconstitutional. The challenge, which was brought by hotelier Julian Gerner in support of the implied freedom of movement was rejected together with Clive Palmers challenge to the Western Australia border ban. The details of the decisions will be discussed separately below.

VICTORIA’S LOCKDOWN

According to Victoria’s Public Health and Welbeing Act 2008 (Vic), the Victorian State Government is empowered to exercise emergency powers in the event of a bio-hazard determined by the Minister for Health. It goes without saying that the current pandemic has been the basis for mass and snap lockdowns all around Australia since early 2020. This has given the Victorian State Government the power to declare a public health rise posed by the COVID-19 pandemic to warrant the exercise of emergency powers. As such, subsequent directions restricting the movement of people within the State of Victoria has been repeatedly exercised under section 200(1)(b) and (d) of the Public Health and Welbeing Act 2008 (Vic).

Mr. Julian Garer, the plaintiff in the case, sought the High Court to declare that the aforementioned sections were an invalid imposition on the guarantee of freedom of movement which is implied in the Constitution of Australia. The defendant, in this case the State of Victoria, argued that the so-called “freedom of movement” is a constitutional myth and is not implied in the Constitution which binds the State and Federal governments of Australia.

The High Court ultimately ruled that the defendant’s interpretation of the Constitution was correct. That is, unlike the United States, Australia does not have an implied freedom of movement.  The Court held that there is no limitation on the executive and legislature branch of the State and Federal government to impose laws which limit the freedom of movement. In addition, the Court held that although it could be argued that the lockdowns may burden the established implied freedom of political communication, the current lockdowns do not possess the capacity of eroding it completely. Certainly, in a day and age of social media and universal access to the internet, the argument that the lockdowns have deprived people of making political states is not supported by fact or logic.

CLIVE PALMERS CHALLENGE TO BORDER CLOSURES

In a similar fashion to Mr. Julian Garer’s challenge, Mr. Clive Palmer’s legal battle ended without success as the famous mining billionaire failed to convince the High Court that the State border closures infringed on section 92 of the Australian Constitution which states:

Trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free.

The decision has been seen to reaffirm the legal notion that although trade and travel between States is not subject to any payable duty, travel between States may be restricted in the event of a national disaster.

WHAT IS THE TAKEAWAY IN ALL THIS LEGAL TALK?

As disappointing as it might sound to Australians now enduring endless weeks of lockdowns, the decision of the High Court in both these cases do not come as a shock from a legal standpoint. Unlike our counterparts in the United States, Australia’s Constitution does not offer the same protections notionally held to apply to all Western democratic nations. The reason for this being is that Australia does not posses a Bill of Rights. The only guaranteed rights Australians enjoy are known to be:

1. The right to vote in democratic elections
2. The right to have protection over unjust acquisition of property;
3. The right to a trial by jury in criminal trials in Courts other than the Local Court;
4. To right to enjoy freedom of religion
5. The right against discrimination on the basis of residence in the States.

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