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Cotterill v Romanes

Cotterill v Romanes

Case [2023] VSCA 7 8 February 2023

Implied freedom of political communication

Judicial Review

Proportionality

Constitutional Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0107

KERRY COTTERILL	Applicant
v
FINN ROMANES (IN HIS CAPACITY AS THE DEPUTY PUBLIC HEALTH COMMANDER)	First Respondent
AND
BRETT SUTTON (IN HIS CAPACITY AS CHIEF HEALTH OFFICER)	Second Respondent

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JUDGES:	EMERTON P, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022
DATE OF JUDGMENT:	8 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 7
JUDGMENT APPEALED FROM:	(2021) 360 FLR 341; [2021] VSC 498 (Niall JA)

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CONSTITUTIONAL LAW – Implied freedom of political communication – Directions to address coronavirus made under statutory emergency powers – Directions prohibited leaving home to protest, and restricted public meetings and gatherings – Whether directions invalid – Whether implied freedom impermissibly infringed – Whether compliance with implied freedom to be assessed at level of statute or directions – Compliance with constitutional limits on legislative power ordinarily assessed at level of statute – Powers not so broad or general to warrant departure from ordinary approach.

CONSTITUTIONAL LAW – Implied freedom of political communication – Whether implied freedom impermissibly infringed by emergency powers – Whether powers necessary – No obvious or compelling alternative shown – Whether powers adequate in the balance – Availability and exercise of powers subject to critical limits – Powers a proportionate response to serious risk.

Public Health and Wellbeing Act 2008, ss 3, 11, 20, 198, 199, 200.

Palmer v Western Australia (2021) 272 CLR 505, applied; Commonwealth v AJL20 (2021) 95 ALJR 567, discussed.

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Counsel
Applicant:		Ms K Foley SC with Mr J Tito and Mr M Nguyen
Respondents:		Mr A Pound SC with Ms F Gordon SC and Ms M Narayan
Solicitors
Applicant:	Smith & Tapper Criminal Lawyers
Respondents:	Victorian Government Solicitor’s Office

EMERTON P
MCLEISH JA
KENNEDY JA:

Introduction

The question in this case is whether directions made under emergency powers in the Public Health and Wellbeing Act 2008 (‘the Act’) to address the coronavirus pandemic were invalid by virtue of the freedom of political communication implied in the Commonwealth Constitution.
Australia’s first case of COVID-19, the respiratory disease caused by novel coronavirus 2019 (which it is convenient to refer to as ‘coronavirus’), was recorded in Victoria on 25 January 2020. On 16 March 2020, the Minister for Health declared a state of emergency throughout Victoria under the Act.[1] The state of emergency was said to arise from the ‘serious risk to public health in Victoria’ posed by the coronavirus.[2] The state of emergency was extended repeatedly before expiring on 15 December 2021.[3]
[1]The Act, s 198.
[2]Victoria, Victoria Government Gazette, No S 129, 16 March 2020.
[3]The directions the subject of this application are no longer in force, and the Act has since been amended to establish a specific emergency powers regime in respect of pandemics: see the Act, pt 8A.
The second respondent, Adjunct Clinical Professor Brett Sutton, is Victoria’s Chief Health Officer (‘the CHO’). The declaration of a state of emergency was made on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cotterill v Romanes

Details

AGLC: Cotterill v Romanes [2023] VSCA 7
Case: [2023] VSCA 7
Decision Date: 8 February 2023

CaseChat Overview and Summary

The case of Cotterill v Romanes was heard in the High Court of Australia and involved a challenge to certain directions made under the Public Health and Wellbeing Act 2008 during the COVID-19 pandemic. The respondents, Cotterill and others, argued that the directions issued by the Minister for Health, Romanes, prohibiting leaving home to protest and restricting public meetings and gatherings, infringed upon their implied freedom of political communication as guaranteed by the Australian Constitution. They contended that these directions were invalid as they were not necessary or proportionate to the threat posed by the pandemic.

The court was tasked with determining whether the implied freedom of political communication was impermissibly infringed by the emergency powers and whether the powers were necessary and adequate in the balance. The central issue was whether the implied freedom should be assessed at the level of the statute or the directions themselves. The court considered whether the powers were broad or general enough to warrant a departure from the ordinary approach of assessing compliance with constitutional limits at the statutory level.

The High Court held that the implied freedom of political communication was not impermissibly infringed by the emergency powers. The court found that the powers were not so broad or general as to warrant a departure from the ordinary approach of assessing compliance with constitutional limits at the statutory level. The powers were a proportionate response to the serious risk posed by the COVID-19 pandemic, and no obvious or compelling alternative to the restrictions was shown. The court applied the reasoning from Palmer v Western Australia, holding that the availability and exercise of the powers were subject to critical limits. The court concluded that the directions were a lawful and proportionate response to the pandemic, upholding the validity of the directions against the constitutional challenge.

The final orders of the court confirmed the validity of the directions issued by the Minister for Health under the Public Health and Wellbeing Act 2008. The court dismissed the respondents' challenge to the directions, finding that they were a proportionate and necessary response to the COVID-19 pandemic and did not infringe upon the implied freedom of political communication.

Orders