Cotterill v Romanes
[2023] VSCA 7
•8 February 2023
| 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 |
---
| 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) |
---
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.
---
| 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 his advice. The declaration enlivened emergency powers under the Act, which could be exercised only with his authorisation.[4]
[4]The Act, s 199.
The emergency powers relevantly included powers to make directions restricting the 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.[5]
[5]Ibid, s 200(1).
The first respondent is Dr Finn Romanes, the Deputy Public Health Commander. On 11 May 2020, the CHO authorised Dr Romanes to exercise the emergency powers.
On 27 August 2020, Dr Romanes made the Stay at Home Directions (Restricted Areas) (No 14) (‘the stay at home directions’). The stay at home directions were made as part of what were known as ‘stage four’ restrictions. Relevantly, the stay at home directions prohibited persons in Melbourne from leaving their homes except for certain permitted reasons, one of which was to exercise. They also generally prohibited public meetings and gatherings of more than two persons.
On 28 October 2020, the CHO personally exercised the emergency powers to make the Stay Safe Directions (Melbourne) (No 2) (‘the stay safe directions’). By this time, a staged easing of restrictions was underway. The stay safe directions were less restrictive than the stay at home directions. They did not prohibit persons from leaving home, but, subject to certain exceptions, prohibited public meetings and gatherings of more than nine persons, rather than two.
The applicant is Ms Kerry Cotterill. On 13 September 2020, while the stay at home directions were in effect, she left her home in Melbourne to simultaneously engage in exercise and express her political views — namely, her disapproval of the Premier’s response to the pandemic. To do so, she walked while wearing a mask and carrying a sign on which political messages appeared. She was approached by police, and later issued with an infringement notice. The notice alleged she had contravened the stay at home directions because, by conducting a protest, she was outside her home for a reason other than a permitted reason. The notice has since been withdrawn.
During the period of the stay safe directions, Ms Cotterill continued to wish to engage in public protest, but considered that the stay safe directions constrained her from doing so.
On 15 October 2020, Ms Cotterill commenced a proceeding in the Trial Division seeking declarations that parts of the two directions were invalid because the directions, or alternatively the emergency powers, impermissibly infringed the implied freedom of political communication. She specifically eschewed an argument that, even if the directions and the emergency powers were constitutionally valid, the directions were not authorised by the Act.
On 17 August 2021, a judge sitting in the Trial Division dismissed the proceeding.[6] The judge made three presently relevant findings:
(a)the question whether the implied freedom had been infringed was to be answered by reference to the authorising provisions in the 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.
[6]Cotterill v Romanes (2021) 360 FLR 341; [2021] VSC 498 (‘Reasons’).
The applicant now seeks leave to appeal, on three proposed grounds, which challenge these three findings. For the reasons that follow, leave to appeal should be granted but the appeal should be dismissed.
The Act
Statutory framework
As mentioned, the impugned directions were made pursuant to emergency powers contained in the Act. It is necessary to situate those powers in their statutory context.[7]
[7]In what follows, unless otherwise stated, the Act is described as it stood at the time of the stay safe directions. The parties’ arguments, and the judge’s reasons were primarily directed to this iteration of the Act.
The stated purpose of the Act is to provide a scheme which ‘promotes and protects public health and wellbeing in Victoria’.[8]
[8]The Act, s 1.
Part 2 of the Act is entitled ‘Objective, principles and application’. Section 4 provides that the objective of the Act is to ‘achieve the highest attainable standard of public health and wellbeing’, including by ‘protecting public health and preventing disease, illness … or premature death’.[9]
[9]Ibid, s 4(2)(a).
Sections 5 to 11A set out principles applicable to decision-making under the Act. A number of principles are generally applicable, including:
(a)the principle of ‘evidence based decision-making’, which relevantly requires that decisions as to public health interventions be based on relevant and reliable available evidence;[10]
(b)the ‘precautionary principle’, which provides that a lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control a public health risk that poses a serious threat;[11]
(c)the ‘principle of primacy of prevention’, which relevantly provides that the prevention of disease, illness and premature death is preferable to remedial measures;[12]
(d)the ‘principle of accountability’, which requires that decision-making under the Act be, as far as practicable, transparent, systematic and appropriate, and that the public be given access to reliable information in appropriate forms;[13]
(e)the ‘principle of proportionality’, which provides that decisions made and actions taken under the Act should be proportionate to the public health risk sought to be prevented, minimised or controlled, and should not be made or taken in an arbitrary manner.[14]
[10]Ibid, s 5(b).
[11]Ibid, s 6.
[12]Ibid, s 7(1).
[13]Ibid, s 8.
[14]Ibid, s 9.
Section 11 identifies additional principles applicable to pt 8 of the Act, which is directed to the management and control of infectious diseases.[15] These principles relevantly include that the spread of an infectious disease should be ‘prevented or minimised with the minimum restriction on the rights of any person’.[16]
[15]Ibid, ss 11, 111. An infectious disease includes an illness that arises through transmission of a specific infectious agent from an infected person to another person: s 3(1).
[16]Ibid, s 111(a).
Part 3 of the Act, entitled ‘Administration’, invests various officeholders with statutory powers, duties and functions under the Act.
Division 2 of pt 3 is concerned with the CHO. Section 20 provides that the CHO is to be a registered medical practitioner appointed by the Secretary of the Department of Health. The CHO is invested with powers conferred under the Act, including any power conferred on an authorised officer.[17]
[17]Ibid, s 20(1) and (3).
Division 4 of pt 3 relevantly provides for the appointment of authorised officers. Section 30 provides that the Secretary may appoint a public servant to be an authorised officer provided that the Secretary is satisfied that they are ‘suitably qualified or trained to be an authorised officer’ for the purposes of the Act.[18] Section 31 provides that a municipal council may appoint a person to be an authorised officer if similarly satisfied.[19]
[18]Ibid, s 30(1) and (2).
[19]Ibid, s 31(1) and (2).
Part 8 of the Act is entitled ‘Management and control of infectious diseases, micro-organisms and medical conditions’. Among other things, div 2 of pt 8 empowers the CHO to make certain orders in respect of a person believed to be infected with (or exposed to and likely to become infected with) an infectious disease constituting a serious risk to public health.[20] These include:
(a)an ‘examination and testing order’, which requires the person to undergo examination or testing to ascertain whether the person is infected, and, if necessary, to be detained and isolated for this purpose;[21] and
(b)a ‘public health order’, which may impose on the person movement and residence restrictions, or treatment, supervision, detention or isolation conditions.[22]
Consistently with the principles described above at [17], if alternative, equally effective measures are available, the CHO is to choose the measure that is the least restrictive of the rights of the person the subject of the order.[23] A failure to comply with either an examination or testing order, or a public health order, is an offence.[24]
[20]Ibid, s 113(1), s 117(1).
[21]Ibid, s 113.
[22]Ibid, s 117.
[23]Ibid, s 112.
[24]Ibid, ss 116, 120.
Part 10 of the Act is entitled ‘Protection and enforcement provisions’. Division 1 of pt 10 is entitled ‘Powers to investigate, eliminate or reduce public health risks’. Section 188 empowers the CHO to direct a person to provide information which the CHO believes is necessary to investigate whether there is a risk to public health, or to manage or control such a risk.
Sections 189 and 190 provide that the CHO can authorise an authorised officer to exercise ‘public health risk powers’ if the CHO believes that doing so is necessary to investigate, eliminate or reduce a risk to public health.[25] As with the emergency powers, to which we will come, once the authorisation is given, the CHO, if appointed as an authorised officer, may also personally exercise the powers.[26] Public health risk powers include the powers to: close any premises; enter without a warrant and search any premises; inspect any premises; require the cleaning or disinfection of any premises; direct persons to enter, not to enter, remain at or leave any premises; and require the provision of relevant information. They also include the power to direct the owner or occupier of any premises, or any other person, to take any action necessary to eliminate or reduce the risk to public health.
[25]Ibid, s 189.
[26]Ibid, ss 20(3), 20A.
Division 3 of pt 10 contains the powers upon which the respondents relied to make the impugned directions. It is entitled ‘Emergency powers’. Section 198 is entitled ‘Declaration of a state of emergency’. Sub-section (1) provides:
The [Minister for Health] may, on the advice of the Chief Health Officer and after consultation with the Minister and the Emergency Management Commissioner under the Emergency Management Act 2013, declare a state of emergency arising out of any circumstances causing a serious risk to public health.
A ‘serious risk to public health’ is defined to mean:[27]
a material risk that substantial injury or prejudice to the health of human beings has or may occur having regard to—
(a) the number of persons likely to be affected;
(b) the location, immediacy and seriousness of the threat to the health of persons;
(c) the nature, scale and effects of the harm, illness or injury that may develop;
(d)the availability and effectiveness of any precaution, safeguard, treatment or other measure to eliminate or reduce the risk to the health of human beings …
[27]Ibid, s 3(1). By the time of the stay safe directions, s 3(4) also provided that COVID-19 may pose a material risk of substantial injury or prejudice to the health of human beings even when the rate of community transmission is low and there have been no cases for a period of time.
The declaration must specify the ‘emergency area’ in which the state of emergency exists, and the period of the declaration, which must not be more than four weeks.[28] A state of emergency comes into existence once the declaration is made.[29] The period of the declaration may be extended by the Minister making further declarations of not more than four weeks each.
[28]Ibid, s 198(7)(a) and (b).
[29]Ibid, s 198(4).
As soon as practicable after a declaration is made, the Minister must cause notice of the declaration to be given, including by publishing a copy of it in the Government Gazette.[30] The Minister is also required to report to Parliament on the state of emergency, and the public health risk powers and emergency powers exercised, as soon as practicable after the declaration is made.[31]
[30]Ibid, s 198(5).
[31]Ibid, s 198(8). If Parliament is not sitting at the time the declaration is made, the Minister is obliged to report to Parliament as soon as practicable after Parliament next meets.
When the stay at home directions were made, the Act provided that the total period of successive states of emergency could not exceed six months. By the time of the stay safe directions, the maximum period had been extended to 12 months, in the case of a declaration in respect of the coronavirus pandemic.[32] If that further power of extension was exercised, the Minister was required to report to Parliament on the reasons for the extension and include in that report a copy of the advice of the CHO in respect of the extension.[33]
[32]Ibid, s 198(7)(c).
[33]Ibid, s 198(8A).
The declaration of a state of emergency enlivens four emergency powers set out in s 200(1). They are the powers to:
(a)subject to [certain restrictions], detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;
(b)restrict the movement of any person or group of persons within the emergency area;
(c)prevent any person or group of persons from entering the emergency area;
(d)give any other direction that the authorised officer considers is reasonably necessary to protect public health.
Both the impugned directions were purportedly made pursuant to the emergency powers in s 200(1)(b) and (d).
Section 199 provides that the CHO may authorise authorised officers to exercise any of these emergency powers if the CHO believes that authorising the exercise of the powers is ‘reasonably necessary’ to ‘eliminate or reduce a serious risk to public health’.[34] The authorisation must be given or confirmed in writing, and identify the relevant serious risk to public health, as well as the extent and length of the authorisation.[35] The CHO, if appointed as an authorised officer, may personally exercise any of the emergency powers he or she has authorised others to exercise.[36]
[34]Ibid, s 199(1). At the time of the stay at home directions, a higher threshold applied. The CHO needed to form the belief that authorisation was ‘necessary’ to eliminate or reduce a serious risk to public health. Nothing turns on the lowering of the threshold for present purposes. It is convenient to approach the matter, in favour of the applicant, on the basis that the CHO was only required to believe that authorisation was ‘reasonably necessary’.
[35]Ibid, s 201.
[36]Ibid, ss 20(3), 20A.
Section 203 of the Act provides that it is an offence to refuse or fail to comply with a direction given in exercise of an emergency power, without a reasonable excuse. Before exercising any emergency powers in respect of a person, the relevant officer must, unless not practicable to do so, warn the person that a refusal or failure to comply without a reasonable excuse is an offence.[37]
[37]Ibid, s 200(4).
Observations
Several relevant matters emerge from this survey of the Act.
First, the emergency powers are enlivened only once a state of emergency is declared by the Minister for Health.[38] A declaration may not be made unless certain preconditions are met. One precondition is the existence of a particular jurisdictional fact.[39] There must an emergency and it must arise from circumstances causing a serious risk to public health. For there to be a serious risk to public health, there must be a ‘material risk’ of ‘substantial injury or prejudice to the health of human beings’.[40] Whether a risk will meet this threshold depends on the immediacy and seriousness of the threat posed to human health, including the nature, scale and effects of any illness that may develop. Significantly, it also depends on the availability and effectiveness of any other measure to eliminate or reduce the risk.
[38]This requirement sets the emergency powers apart from other powers in the Act which do not depend on an emergency having been declared, such as the power to make public health orders, or the public health risk powers.
[39]This was common ground.
[40]The Act, s 3(1).
This necessarily builds an element of proportionality into the primary assessment of risk.[41] In particular, it requires consideration of (among other things) whether other less sweeping powers available under the Act are adequate to address a particular risk. These alternative powers will always include the other powers in pt 10, including the public health risk powers.[42] In the case of a risk posed by an infectious disease, they will also include the powers contained in div 2 of pt 8, to make examination and testing orders or public health orders.[43] If those alternative powers would be effective in eliminating or sufficiently reducing the relevant risk, it is unlikely that there could be said to be a material risk that substantial injury or prejudice to the health of human beings will occur, so there would not be a ‘serious risk to public health’ as defined, and the power to declare a state of emergency would not be enlivened.[44]
[41]The principle of proportionality provided for in s 9 of the Act also informs the exercise of the power to declare a state of emergency.
[42]See [23] above.
[43]See [21] above.
[44]See also Reasons, 389 [238].
There are other preconditions. The Minister must have received the advice of the CHO, a registered medical practitioner tasked with advising the Minister on matters relating to public health, and developing and implementing strategies to protect public health.[45] The Minister must also have consulted with the Emergency Management Commissioner and the responsible Minister under a related state emergency law, the Emergency Management Act 2013.[46]
[45]The Act, ss 20(1), 21(a) and (b).
[46]The declaration must comply with certain conditions. It must be limited in its geographic scope to a specified emergency area. It must also be limited in time. Unless extended, the declaration cannot persist for more than four weeks. Further, at least at the time of the directions, the declaration, even if extended, could not exceed an applicable maximum period.[47] The determination of the extent of the state of emergency must itself be informed by the risk evaluation exercise described above.
[47]See [28] above.
Whether these preconditions are satisfied and these conditions are complied with may be the subject of judicial review.[48]
[48]See Palmer v Western Australia (2021) 272 CLR 505, 557 [157] (Gageler J) (‘Palmer’).
Further, the power to make a declaration is imposed on a Minister, who is constitutionally responsible to Parliament.[49] The Act requires that the Minister report to Parliament as soon as practicable after the declaration is made, and give notice of the declaration, including by publishing it in the Government Gazette.[50]
[49]See ibid, 555 [155] (Gageler J).
[50]The Act, ss 198(5) and 198(8).
Secondly, before the emergency powers can be exercised (including by the CHO) the CHO must authorise their exercise. That authorisation is subject to a further precondition: the existence of another jurisdictional fact. The CHO must have formed the belief that authorisation is ‘reasonably necessary to eliminate or reduce a serious risk to public health’.[51] The satisfaction of that precondition may also be the subject of judicial review.[52] Again, the definition of ‘serious risk to public health’ incorporates consideration of the availability and effectiveness of alternative powers to eliminate or reduce the risk. If such powers would eliminate or sufficiently reduce the risk, then it is hard to envisage circumstances in which the CHO could consider it reasonably necessary to authorise the use of the emergency powers.
[51]At the time of the stay at home directions, a higher standard of ‘necessity’ applied: see n 34 above.
[52]The parties accepted the availability of judicial review, although disagreed as to its extent.
Thirdly, even once authorisation is given, the exercise of the emergency powers is subject to other relevant limitations. The powers can only be exercised for the purpose for which authorisation is given — that is, eliminating or reducing the relevant serious risk to public health. By ordinary administrative law principles, they must also be exercised within the bounds of reasonableness, logic and rationality, and in the absence of some extraneous purpose. Further, one of the emergency powers presently in issue is subject to an additional requirement of reasonable necessity: s 200(1)(d) only permits giving a direction the authorised officer considers ‘reasonably necessary to protect public health’. As a result, at least in the case of that power, a standard of reasonable necessity must be satisfied twice before the power is exercised: before the CHO authorises the exercise of the power and before the authorised officer exercises it.
The impugned directions
Against that background, it is now convenient to turn to the impugned directions.
The stay at home directions
On 27 August 2020, Dr Romanes made the stay at home directions, purportedly in exercise of the emergency powers in s 200(1)(b) and (d) of the Act. The stay at home directions are lengthy and it is unnecessary, for present purposes, to set them out in any detail.[53] In broad terms, they contained two relevant restrictions.
[53]Relevant extracts are set out at Annexure A.
First, cl 5 imposed what may be conveniently described as a ‘stay at home rule’. It prohibited persons ordinarily resident in the greater Melbourne area from leaving home except for one of a number of permitted reasons. The permitted reasons relevantly included engaging in exercise but did not include engaging in protest, or any other form of political communication.
Secondly, cl 11 restricted public gatherings. It provided that, even if a person was entitled to leave home for a permitted reason, they could not then meet, or organise or intentionally attend a gathering of, more than one other person at a public place, unless an exception in cl 11(3) was engaged. Engaging in protest or any other form of political communication was not an exception.
The stay safe directions
The CHO made the stay safe directions on 28 October 2020. Like the stay at home directions, they were purportedly made in exercise of the emergency powers in s 200(1)(b) and (d) of the Act.[54] It is sufficient for present purposes to record that the stay safe directions did not contain a stay at home rule but continued to restrict public gatherings. They provided that a person could not arrange to meet, organise or intentionally attend a gathering of, more than nine other persons for a common purpose at a public place unless an exception applied. Again, there was no exception for engaging in protest, or any other form of political communication.
[54]It is similarly unnecessary to set out the stay safe directions in any detail. Relevant extracts are in Annexure B.
Judge’s reasons
Ms Cotterill challenged the validity of the stay at home rule in the stay at home directions and the public gathering restrictions in both directions. The judge dismissed Ms Cotterill’s challenge. Three of his conclusions are presently relevant.
Appropriate level of analysis
The judge held that the question whether the implied freedom of political communication had been impermissibly infringed was to be answered at the level of the authorising provisions in the Act — those conferring the emergency powers — not at the level of the directions.[55]
[55]Reasons, 384 [211].
He held that this was the level at which the question of compliance with constitutional guarantees, including the implied freedom, was usually to be addressed. The judge accepted that in an unusual case — concerning a ‘very broad general power without express limits informed by constitutional considerations’ — it might be appropriate to depart from the usual approach and answer the question at the level of the exercise of power instead. However, he did not consider that this was such a case.[56]
[56]Ibid, 381 [197]–[198].
The judge considered that the emergency powers in issue were not ‘broad and general’ in the requisite sense. To the contrary, he characterised them as ‘tightly prescribed’.[57] This was because, viewed in context, they were subject to a series of express and implied constraints, including those described above at [34] to [41]. These constraints, the judge considered, ensured that the powers could not be exercised in a way ‘obnoxious to the implied freedom’.[58] This eliminated any question of reading down or partially disapplying the emergency powers to keep them within the bounds of the implied freedom.[59]
[57]Ibid, 384 [207].
[58]Ibid, 391 [253].
[59]Ibid, 391 [252], [254].
In this respect, the judge characterised the emergency powers as akin to the powers in issue in Palmer v Western Australia (‘Palmer’).[60] In Palmer, the High Court considered that emergency powers under the Emergency Management Act 2005 (WA) (‘the WA Act’) were insufficiently broad and general to warrant departing from the usual practice of assessing constitutional compliance at the level of the authorising law. The emergency powers under the Act, the judge reasoned, were not sufficiently different to those under the WA Act to compel a different approach.
Whether the emergency powers impermissibly infringed the implied freedom
[60](2021) 272 CLR 505.
Next, the judge held that the authorising provisions did not impermissibly infringe the implied freedom.
First, the judge accepted that the emergency powers burdened political communication by authorising the restriction of movement and gatherings for the purposes of political communication.[61]
[61]Reasons, 386 [220]–[222].
Secondly, he nonetheless considered that they were directed at a legitimate purpose, being the reduction or elimination of serious public health risks in the context of a declared emergency. He characterised ensuring public health and safety in the context of a pandemic as a ‘purpose of government of the first order’.[62]
[62]Ibid, 386 [226], 387 [226].
Thirdly, he also considered the emergency powers to be appropriate and adapted to that purpose. He approached that issue in terms of ‘structured proportionality’ as explained in the joint reasons of French CJ, Kiefel, Bell and Keane JJ in McCloy v New South Wales.[63]
[63](2015) 257 CLR 178, 217 [79], cited in Reasons, 373 [160].
The powers were suitable, in the sense of being rationally connected with their purpose, because restricting the movement of persons is an effective means of suppressing the transmission of certain kinds of infection, and therefore reducing or eliminating the associated serious health risks.[64] The suitability of the powers to this purpose was, the judge considered, enhanced by the statutory restraints on their exercise.[65] In particular, the judge considered it significant that the powers:
(a)were only enlivened by a Ministerial declaration of an emergency arising from circumstances posing a serious risk to public health;
(b)operated only within the limited temporal and geographic bounds of the declaration;
(c)were exercisable only once the CHO had authorised their exercise, having formed the view that it was reasonably necessary to do so to fulfil the purpose of the powers; and
(d)were exercisable only subject to the further limitations described at [41] above.
[64]Reasons, 388 [234].
[65]Ibid, 388–90 [237]–[244].
The judge also considered that the authorising provisions were necessary, in that there were no obvious and compelling alternatives that would impose a substantially lesser burden on the implied freedom. The judge did not accept that any limitation proposed by Ms Cotterill constituted such an alternative.
The judge described Ms Cotterill as proposing ‘express carve outs’ from s 200(1)(b) and (d) to accommodate political communication. He rejected these ‘carve outs’ as real alternatives. In general, he considered that any such ‘carve out’ would be unworkably uncertain, given the inherent difficulty in locating the boundaries of political communication. Further, if what was proposed was an absolute ‘carve out’ — meaning that the emergency powers ‘could only be exercised in a way that allowed for the expression of political opinion’ — then that would be excessively broad.[66] It would exceed the protection of the implied freedom, which is not absolute but subject to justifiable limitations.[67] It would also frustrate the public health purpose of the power, because it would not be ‘practicable to allow people to conduct political speeches and distribute political material without restriction, and at the same time attempt to minimise or avoid interactions with other people’.[68] On the other hand, if what was proposed was a qualified ‘carve out’, prohibiting only unjustified limitations of political communication, this would only produce further uncertainty.[69]
[66]Ibid, 390 [248].
[67]Ibid, 390 [249].
[68]Ibid, 390 [248].
[69]Ibid, 390 [249].
The judge also considered that the provisions were adequate in their balance. He considered that the powers:
read in their context, and with all of the limitations that are attached, are plainly a justified pair of provisions well calibrated to meeting the challenges that might arise in dealing with a serious threat to public health that gives rise to an emergency, and which calls for the exercise of emergency powers.[70]
[70]Ibid, 391 [251].
In the above analysis, the judge again drew extensively on the High Court’s reasoning in Palmer, which he considered to be of direct application and not relevantly distinguishable.[71]
Whether the directions impermissibly infringed the implied freedom
[71]Ibid, 386 [219].
Lastly, the judge held that, even if the question whether the implied freedom had been impermissibly infringed was to be answered at the level of the directions, the directions did not impermissibly infringe the implied freedom.[72] As will be seen, it is unnecessary to describe the judge’s reasons in this respect.
[72]Ibid, 399 [303].
Proposed ground one — the appropriate level of constitutional analysis
Applicable principles
It was not in dispute that, at least as a starting point, where the exercise of a power conferred by statute is said to burden political communication, the question whether the implied freedom has been contravened is ordinarily to be asked at the level of the authorising provisions of the relevant statute, not at the level of the particular exercise of power.
This is because the implied freedom operates to restrict the scope of legislative power.[73] In particular, it operates as a limitation on the power to enact legislation which purports to give executive action legal force or effect.[74] While the implied freedom therefore also has the effect of restricting the scope of executive power conferred by statute, it does so indirectly, by narrowing the scope of legislative power.[75]
[73]Comcare v Banerji (2019) 267 CLR 373, 395 [20] (Kiefel CJ, Bell, Keane and Nettle JJ) (‘Banerji’).
[74]Palmer (2021) 272 CLR 505, 546 [118] (Gageler J).
[75]A v Independent Commission Against Corruption (2014) 88 NSWLR 240, 256 [56] (Basten JA, Bathurst CJ relevantly agreeing at 244 [1], Ward JA relevantly agreeing at 273 [149]). See also Banerji (2019) 267 CLR 373, 408 [51]–[52] (Gageler J); Palmer (2021) 272 CLR 505, 546 [118] (Gageler J).
Accordingly, the validity of an exercise of executive power conferred by statute, which burdens political communication, will ordinarily depend on whether two distinct questions can be answered affirmatively: [76]
(a)The first question is a constitutional question. It is whether the authorising provisions fall within the scope of legislative power (as restricted by the implied freedom) without any need to read them down or partially disapply them to preserve their validity. If the answer to that question is ‘yes’, no further constitutional issue arises, and the validity of the exercise of power depends solely on the answer to the second question.[77]
(b)The second question is a statutory question. It is whether the exercise of power is authorised by the statute; or, put another way, whether it falls within the scope of the authorising provisions. This question is resolved by reference to the provisions as a matter of administrative, rather than constitutional, law.[78]
[76]Commonwealth v AJL20 (2021) 95 ALJR 567, 580 [43] (Kiefel CJ, Gageler, Keane and Steward JJ); [2021] HCA 21 (‘AJL20’); Palmer (2021) 272 CLR 505, 546 [119]–[121] (Gageler J), 580 [224]–[225] (Edelman J).
[77]See AJL20 (2021) 95 ALJR 567, 580 [43] (Kiefel CJ, Gageler, Keane and Steward JJ); ); Banerji (2019) 267 CLR 373, 421–2 [96] (Gageler J); Wotton v Queensland (2012) 246 CLR 1, 14 [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ) (‘Wotton’).
[78]AJL20 (2021) 95 ALJR 567, 580 [43] (Kiefel CJ, Gageler, Keane and Steward JJ).
As explained later in these reasons, if the answer to the first question is ‘no’, so that it is necessary to read down or partially disapply the statutory provisions so as to preserve their validity, the answer to the constitutional question informs the construction of the statute. In that circumstance, the second question, while still a statutory question, will require examination of the constitutional issue at the level of the particular exercise of power. The two levels of analysis effectively ‘converge’, and a ‘compendious’ or ‘composite’ approach needs to be taken. By this mode of analysis, the constitutional and statutory questions merge into a single question: whether the exercise of power would have been valid if enacted as legislation.[79]
[79]Palmer (2021) 272 CLR 505, 547 [124] (Gageler J); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 373 [104] (Gummow J) (‘APLA’); O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565, 594 (Fullagar J, Dixon CJ agreeing at 576, Kitto J agreeing at 598) (‘Noarlunga’).
The parties agreed that this mode of analysis would only be appropriate where a statutory power is so ‘broad and general’ as to require that it be read down or partially disapplied to permit only those exercises of power that are within constitutional limits.[80] Conversely, it was agreed that this approach would be inappropriate if the power in question is limited by critical constraints built into the authorising Act, which a composite mode of analysis would necessarily overlook.[81] As will appear, these propositions may be expressed too absolutely.
Parties’ submissions
[80]Palmer (2021) 272 CLR 505, 531 [68] (Kiefel CJ and Keane J), 547 [124] (Gageler J).
[81]Ibid, 548 [126] (Gageler J).
The parties joined issue on whether the judge erred in his application of the above principles — specifically, whether he failed to recognise that the emergency powers were so broad, general and unconfined as to require employing the composite mode of analysis.
For the purpose of this proposed ground, the critical question, therefore, is whether the emergency powers are broad, general, and unconfined in the relevant sense.
However, to a considerable extent, the parties’ submissions sought to answer this question by addressing a slightly different question: whether the emergency powers presently in issue are broader, more general and less confined than the powers under the WA Act in issue in Palmer.
To approach the matter in that way does not necessarily supply an answer to the critical question. On no view did Palmer mark out the powers under the WA Act as a dividing line, on one side of which composite analysis must always be applied. Palmer established that those powers did not reach the threshold of breadth and generality required to call for composite analysis. However, it did not exclude the possibility that different, even broader, provisions in another Act may similarly fall short of that threshold.
As a result, analysis directed at identifying features of the emergency powers under the Act that are somewhat broader than the powers under the WA Act, or seeking to identify the absence in the Act of certain statutory constraints present in the WA Act, may tend to distract from the critical question.
In broad terms, the applicants submitted that the emergency powers met the requisite threshold of breadth and generality for two reasons.
First, the terms of the powers were said to be very broad. Section 200(1)(b) permits — without definition or qualification — the restriction of movement of any kind, in respect of any person or group. Section 200(1)(d) was said to be a broad ‘catch-all power’ only controlled by the requirement that the officer believes a direction made in exercise of the power be reasonably necessary to protect public health. The lone criterion of a subjective belief of reasonable necessity was said to be weak to the point of insignificance. This is because what was believed by one person to be reasonably necessary might not be objectively so.
Secondly, the Act was said not to significantly constrain the powers, so as to take away from the breadth and generality of their terms. The applicant accepted that the Act imposes some constraints on the emergency powers, including those described above at [34] to [41]. However, it was suggested that these constraints are weak — in particular, weaker than those in the WA Act. For example, the WA Act was said to (a) contain additional preconditions on the power to declare an emergency, (b) more narrowly define what constitutes an ‘emergency’, and (c) limit each declaration of emergency to shorter time periods than under the Act. At the same time, the applicant suggested that additional constraints in the Act but not present in the WA Act — for example, the reasonable necessity requirements applicable to the CHO’s authorisation, and an officer’s exercise of the s 200(1)(d) powers — were insignificant and could be disregarded in the analysis.[82]
[82]Again, this was said to be because they were subjective requirements, and allowed for a gap between what was subjectively thought reasonably necessary and what was objectively so. Further additional constraints under the Act dismissed as insignificant included the additional requirement under the Act that the Minister receive advice from the CHO, in addition to consulting with the Emergency Management Commissioner and Minister for Police, and the total maximum period applicable to declarations of emergency in place at the time of the directions.
The respondents contended that the judge correctly recognised that the emergency powers did not reach the requisite threshold of breadth and generality. They submitted that the constraints described at [34] to [41] sufficiently closely resembled the constraints in the WA Act. If those constraints foreclosed composite analysis, so must those in the Act. In any event, the respondents contended that, even leaving aside comparison with the WA Act, the cumulative effect of the several constraints described at [34] to [41] was that the powers could not be characterised as broad, general or unconstrained at all, let alone so broad, general and unconstrained as to require composite analysis.
Analysis
The first proposed ground of appeal asserts that the judge erred in concluding that the constitutional analysis ‘must be applied at the level of the Act and not at the level’ of the directions.
As already indicated, although argument on this ground proceeded largely by reference to a comparison between the statutory regime in Palmer with that in the Act, it is preferable to address the ground according to first principles, with reference to Palmer as necessary to illuminate their application.
It has been pointed out in several recent cases that, when executive power conferred by statute is exercised, the constitutional question is whether the statutory conferral of power is within the competence of Parliament. The statutory question is whether the exercise of executive power is authorised by the statute.[83]
[83]Wotton (2012) 246 CLR 1, 14 [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ); AJL20 (2021) 95 ALJR 567, 580 [43] (Kiefel CJ, Gageler, Keane and Steward JJ); Banerji (2019) 267 CLR 373, 408 [51] (Gageler J); Palmer (2021) 272 CLR 505, 530–1 [64]–[65] (Kiefel CJ and Keane J), 546 [119] (Gageler J), 573–4 [201]–[202] (Gordon J).
As such, the obvious starting point for constitutional analysis is the statute, and in particular, whether the authorising provisions conferring executive power fall within the legislative power of the Parliament. In most cases, to proceed directly to the impugned exercise of executive power will conflate issues of law and fact or obscure the true scope of that power.[84] As Gageler J said in Palmer in relation to whether the constitutional question should be answered by reference to the directions in that case:
The problem with conflating the statutory and constitutional questions in that manner, however, was that treating the Directions as if they had been enacted as Western Australian legislation failed to acknowledge the constitutional significance of critical constraints built into the scheme of the Act which sustained the Directions. The hypothetical analysis simplified the constitutional question to the point of obscuring the manner of its answer.[85]
[84]Palmer (2021) 272 CLR 505, 548 [126] (Gageler J).
[85]Ibid.
AJL20 was also an example of such a case, because it could be seen from enforceable statutory constraints that the executive power in issue was not punitive in character so as to intrude impermissibly into the judicial power of the Commonwealth.[86] Approaching the constitutional issue at the level of the particular executive action in question would have obscured that understanding of the relevant power.
[86]AJL20 (2021) 95 ALJR 567, 580–1 [44]–[46] (Kiefel CJ, Gageler, Keane and Steward JJ).
Accordingly, if the statute can be seen to comply with the relevant constitutional limitation on legislative competence, without any need to read it down or partially disapply it to preserve its validity, then the constitutional question is answered and the law is relevantly valid irrespective of its application in the particular case.[87] There is then no need to descend to the level of the particular application of the statute.[88]
[87]Ibid, 580 [43] (Kiefel CJ, Gageler, Keane and Steward JJ); Wotton (2012) 246 CLR 1, 9–10 [10] (French CJ, Gummow, Hayne, Crennan and Bell JJ); Banerji (2019) 267 CLR 373, 421–2 [96] (Gageler J); Palmer (2021) 272 CLR 505, 531 [65] (Kiefel CJ and Keane J), 573–4 [201]–[202] (Gordon J).
[88]Palmer (2021) 272 CLR 505, 581 [226] (Edelman J).
However, if the answer to the first point of inquiry is that the statute cannot be seen to comply with the relevant constitutional limit, then the statute will need to be read down, or partially disapplied, if possible, in order to preserve its validity.[89] At that point, it may be necessary to apply the principle that wide and general words conferring executive powers are to be read as being subject to constitutional limitations.[90] In that event, attention will focus on the particular exercise of executive power that is in issue. In such a case, the constitutional and statutory questions may converge.[91]
[89]AJL20 (2021) 95 ALJR 567, 580 [43] (Kiefel CJ, Gageler, Keane and Steward JJ); Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180 (Isaacs J); Acts Interpretation Act 1901 (Cth), s 15A; Banerji (2019) 267 CLR 373, 405 [44] (Kiefel CJ, Bell, Keane and Nettle JJ); Palmer (2021) 272 CLR 505, 547 [122] (Gageler J), 581–2 [227] (Edelman J).
[90]Wotton (2012) 246 CLR 1, 9–10 [10] (French CJ, Gummow, Hayne, Crennan and Bell JJ), citing Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, 613–4 (Brennan J) (‘Miller’).
[91]Palmer (2021) 272 CLR 505, 547 [122] (Gageler J), 581 [226] (Edelman J); Noarlunga (1954) 92 CLR 565, 594 (Fullagar J, Dixon CJ agreeing at 576, Kitto J agreeing at 598); APLA (2005) 224 CLR 322, 373 [104] (Gummow J).
If it is clear that the statute will need to be read down (and that it can be read down), it may be preferable to adopt the compendious or composite approach without first seeking to answer the question at the level of the statute.[92] As Gageler J put it in Palmer, this course might be recommended by ‘prudential considerations’, depending on all the circumstances.[93]
[92]Palmer (2021) 272 CLR 505, 547 [123] (Gageler J).
[93]Ibid.
In the present case, the applicant contended that the compendious approach should be taken because the powers that were exercised were ‘broad and general’ in the sense in which that phrase was used by Kiefel CJ and Keane J in Palmer.[94] As has been noted, the argument rested on a comparison between the emergency powers under the Act and the powers in issue in Palmer.
[94]Ibid, 531 [68].
In our opinion, the submission is misconceived. The reason why ‘broad and general’ powers do not lend themselves to analysis at the level of the statute is that the very breadth and generality of the powers require that the statute be read down so as to conform to constitutional limits, as explained by the joint judgment in Wotton with reference to the judgment of Brennan J in Miller.[95] In other words, the statutory conferral of power is so wide on its face that, without being read down on that basis, the statute would purport to authorise the executive government to act in a manner obnoxious to the Constitution.[96] Inevitably, in such a case, the constitutional question cannot be answered simply at the level of the statute.[97]
[95]Wotton (2012) 246 CLR 1, 9–10 [10] (French CJ, Gummow, Hayne, Crennan and Bell JJ), citing Miller (1986) 161 CLR 556, 613–4.
[96]Miller (1986) 161 CLR 556, 607, 611 (Brennan J); Palmer (2021) 272 CLR 505, 574 [202] (Gordon J).
[97]In Palmer, Edelman J made a similar point about ‘open-textured’ legislative provisions: at 578 [219], 581 [227]. However, he took a more restricted view than other members of the Court as to the appropriateness of starting constitutional analysis at the level of the statute: at 578 [219], 582 [228], 584–5 [233]–[234].
In this way, the utility of constitutional analysis at the level of the statute may depend on whether the statute needs to be read down in order to preserve its validity. Because ‘broad and general’ powers need to be read down for that purpose, constitutional analysis at the level of the statute produces no useful answer in such a case. But if the statute contains relevant limits on the power, those limits will ordinarily bear on the constitutional issues, indicating that analysis should start with the statute.
Of course, to commence the inquiry at the level of the statute does not mean that it will necessarily end there. If, on analysis, the statute is so hedged with limits on the powers in question that it can be seen not to infringe the relevant constitutional limit under any circumstance, then that will be the end of the matter.[98] But if that conclusion is not reached, analysis will then proceed by the compendious approach, to decide whether the exercise of power in question fell outside the permissible scope of legislative power. As already noted, that is a statutory question, informed by the constitutional principle that the statute itself is to be read so as not to exceed legislative power, with the result that it may need to be read down or disapplied in respect of the particular exercise of power that has been impugned.
[98]AJL20 (2021) 95 ALJR 567, 580 [44] (Kiefel CJ, Gageler, Keane and Steward JJ); Palmer (2021) 272 CLR 505, 573–4 [201]–[202] (Gordon J).
In the present case, irrespective of any evaluation of the similarities and differences between the powers in Palmer and those that were exercised in making the impugned directions, it cannot be said that the emergency powers in the Act need to be read down in this way. Several features of the Act illustrate the point.
First, the emergency powers are available only where a state of emergency has been declared by the Minister for Health in response to a serious risk to public health. As explained, that entails that the more limited of the gradated powers available under the Act will not be effective to eliminate or reduce the identified risk to the health of human beings. One aspect of the declaration, to be determined by reference to the same evaluative criteria, is that the state of emergency is limited in duration and geographical extent.
Secondly, the powers can only be exercised at all, even in the context of a declared emergency, if the CHO considers it reasonably necessary to do so in order to eliminate or reduce a serious risk to public health.
Thirdly, the emergency powers themselves are circumscribed. The power in s 200(1)(b), while capable of a wide operation, is in its terms narrowly defined to ‘restrict the movement of any person or group of persons’ only within the ‘emergency area’. The power in s 200(1)(d) enables the authorised officer only to give directions that he or she considers reasonably necessary to protect public health. And as already observed, neither power can be exercised for a purpose other than that for which it is conferred, namely to eliminate or reduce a serious risk to public health.
Fourthly, all administrative action under the Act is susceptible of judicial review, including on the basis of proper purpose, reasonableness, rationality and logicality. In that context, the principle of proportionality in s 9 is also relevant.
In such circumstances, it would be perverse to approach the constitutional question by seeking to read down the emergency powers so as to ensure that they comply with constitutional limits, and then to determine whether the specific directions made under those powers would, if enacted as legislation, comply with those limits. To do so would obscure the fact that the powers are subject to statutory limits which bear on the question whether reading down is required at all.[99] Here, it is plain that constitutional analysis of the statute must first take place in order to answer that question. The case is the obverse of that where the powers are ‘broad and general’ or ‘open-textured’.
[99]Palmer (2021) 272 CLR 505, 548 [126] (Gageler J).
In the result, the judge was correct to start his analysis at the level of the Act. The first proposed ground of appeal must be rejected.
Proposed ground two — whether the authorising provisions impermissibly infringed the implied freedom
Applicable principles
The parties accepted that whether a law is invalid because it impermissibly infringes the implied freedom is answered by the following staged inquiry:[100]
(a)Does the law effectively burden the implied freedom in its terms, operation or effect?
(b)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?
(c)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?
[100]See McCloy v New South Wales (2015) 257 CLR 178, 193–5 [2] (French CJ, Kiefel, Bell and Keane JJ) (‘McCloy’); Brown v Tasmania (2017) 261 CLR 328, 363–4 [104] (Kiefel CJ, Bell and Keane JJ), 416 [277]–[278] (Nettle J) (‘Brown’); Banerji (2019) 267 CLR 373, 398–9 [29] (Kiefel CJ, Bell, Keane and Nettle JJ); Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655, 666–7 [29] (Kiefel CJ and Keane J); [2022] HCA 23 (‘Farm Transparency’).
The third question, if it is reached, is to be answered by applying a so-called ‘structured proportionality’ analysis.[101] This involves a further staged inquiry, which asks whether the law is (a) suitable, (b) necessary, and (c) adequate in its balance.
[101]Clubb v Edwards (2019) 267 CLR 171, 186 [5]–[6] (Kiefel CJ, Bell and Keane JJ), 264–5 [266] (Nettle J), 330–1 [462]–[463] (Edelman J) (‘Clubb’).
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.[102] 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’.[103] 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.[104]
Parties’ submissions
[102]Banerji (2019) 267 CLR 373, 400 [33] (Kiefel CJ, Bell, Keane and Nettle JJ).
[103]Ibid, 401 [35] (Kiefel CJ, Bell, Keane and Nettle JJ); Brown (2017) 261 CLR 328, 418 [282], 422 [289] (Nettle J); McCloy (2015) 257 CLR 178, 196 [5] (French CJ, Kiefel J, Bell and Keane JJ).
[104]Banerji (2019) 267 CLR 373, 402–3 [38] (Kiefel CJ, Bell, Keane and Nettle JJ); Clubb (2019) 267 CLR 171, 201–2 [70] (Kiefel CJ, Bell and Keane JJ); Farm Transparency (2022) 96 ALJR 655, 671 [55] (Kiefel CJ and Keane J).
It was accepted that the judge was correct to answer the first two questions affirmatively. That is, it was 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 is also not in dispute that the judge was correct to characterise the provisions as ‘suitable’ for that purpose.
What remained in dispute were the second and third elements of the ‘structured proportionality’ analysis: necessity and adequacy in the balance.
As to necessity, the applicant submitted that the judge overlooked two obvious, compelling and reasonable practicable alternatives that she had identified.
The first alternative was the imposition of a requirement that any exercise of the emergency powers be ‘limited to what is reasonably necessary having regard to the need to preserve freedom of political communication’. The second alternative was the adoption of further constraints contained in the WA Act, such as: the imposition of additional conditions on the power to declare an emergency, defining what constitutes an ‘emergency’, and limiting each declaration of emergency to shorter maximum periods.
The applicant submitted that the judge misunderstood the first alternative as a ‘carve out’ or exemption for political communication. Instead, it was a condition that an exercise of power be reasonably necessary having regard to the importance of preserving the freedom of political communication. The applicant submitted that the judge failed to address the second alternative at all.
The respondents contended that the judge dealt with, but correctly rejected, each of the alternatives advanced by the applicant. It was said that his rejection of the first alternative was apparent from his (admittedly brief) reference to the unworkability of a qualified exception to the emergency powers, prohibiting only unjustified limitations to political communication.[105] He did not expressly address the second alternative, but his rejection of it was said to be apparent from statements elsewhere in the judgment that Palmer was not relevantly distinguishable, and that the provisions in issue in that case substantially resembled those in the Act. The respondents said that it was implicit in that reasoning that the judge considered that the adoption in the Act of features of the WA Act would not significantly lessen the burden on the implied freedom.
[105]See [58] above.
The respondents also contended that even if the Act was somehow less prescriptive or tailored than the WA Act, this would not result in the former failing the necessity test. They argued that the Victorian provisions were well within the margin of reasonable legislative responses and that the implied freedom accommodates latitude for parliamentary choice.[106]
[106]Citing Palmer (2021) 272 CLR 505, 605 [287] (Edelman J); McCloy (2015) 257 CLR 178, 292–3 [359] (Gordon J); Farm Transparency (2022) 96 ALJR 655, 692 [182] (Gordon J).
As to adequacy in the balance, the applicant submitted that the judge’s treatment of the issue was terse, conclusory and unsupported by reasoning. She contended that the question required some weighing of the benefit sought to be achieved against conceivable operations of the emergency powers which would especially burden the implied freedom. If the judge had engaged in that exercise, it was said, he was bound to have recognised that there were circumstances in which the benefit to be achieved would manifestly be outweighed by the effect on the implied freedom. For example, it was suggested that the powers might be used to make directions for a public health purpose which imposed a blanket restriction on movement involving political communication even where the health benefit was slight. In such a case, the health benefit would be wholly outweighed by the ‘very severe’ impact on the freedom.
The respondents contended that it was not unusual for adequacy in the balance — the final question in a lengthy and cumulative inquiry — to be addressed in succinct and summary terms. That was the approach taken, for example, by the judges in Palmer who addressed that question. Further, the respondents contended that the hypothetical example posited by the applicant was foreclosed by the preconditions to the exercise of the powers, considerations of proportionality built into the Act, and administrative law requirements of reasonableness, logic and rationality.
Analysis
Before turning to the constitutional issues, it would be usual to start by identifying and resolving any pertinent questions of statutory construction.[107] The parties did not join issue before us on any such question.
[107]Banerji (2019) 267 CLR 373, 451 [188] (Edelman J), citing Brown (2017) 261 CLR 328, 479–80 [485] (Edelman J); Clubb (2019) 267 CLR 171, 312 [411] (Edelman J). See also North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, 581 [11] (French CJ, Kiefel and Bell JJ), 625–6 [149] (Keane J).
The parties were however content to adopt a conclusion of the trial judge on one question of construction. The judge rejected a submission that the requirement in s 200(1)(d) of the Act that a measure be considered reasonably necessary to protect public health governed not only para (d) but each of the preceding paragraphs. This meant, in particular, that the power in s 200(1)(b) to restrict the movement of persons was not subject to a requirement that the authorised officer considered the restriction in question to be reasonably necessary to protect public health.[108]
[108]Reasons, 353–4 [55]–[57].
The parties also eschewed reliance on the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). Although the Charter was referred to in submissions made to the trial judge, little significance appears to have been attached to it and the judge was not called upon to apply it to the relevant provisions of the Act.[109]
[109]Ibid, 371–2 [151]–[154].
At face value, it might have been thought that the Charter could have had a significant role to play in this case. Section 15(2) provides that every person has the right to freedom of expression. Section 15(3) provides that this right ‘may be subject to lawful restrictions reasonably necessary’, among other things for the protection of public health. By s 32(1), so far as possible consistently with their purpose, statutory provisions must be interpreted in a way that is compatible with human rights. Section 7(2) sets out criteria to be applied in determining that question of compatibility. Those criteria comprise, in effect, a proportionality test, including an evaluation of the importance of the purpose for which a human right is limited, the relationship between the limitation and the purpose, and whether the purpose could be achieved by less restrictive means that are reasonably available.
On one view, these provisions require the provisions of the Act to be interpreted as incorporating an overarching requirement of proportionality, by reference to the rights of persons to freedom of expression and what might be reasonably necessary to protect public health. If so, the argument that the emergency powers could be exercised in a manner obnoxious to the implied constitutional freedom would seem correspondingly more difficult to advance.[110] However, since the parties did not seek to engage with these issues, and the judge did not address them, they should be left to one side.
[110]The right of peaceful assembly in s 16 might also have been relevant on this approach.
The first issue then is necessity. The question is whether there is an obvious or compelling alternative, which is equally practicable and available and would result in a significantly reduced burden on political communication.
The applicant’s first ‘alternative’ measure involves limiting the exercise of the emergency powers to what is reasonably necessary having regard to the need to preserve freedom of political communication. This is not so much an alternative measure as an incorporation of the implied freedom into the statute itself. Such a blanket measure is not an obvious or compelling alternative means of achieving the legislative purpose of eliminating or reducing serious risks to public health. It is unconnected to that purpose and effectively modifies or sublimates it. For that reason, the first alternative measure does not engage with the necessity question. The test of necessity accepts the identified legislative purpose. It does not envisage, or require, melding that purpose with the purpose of protecting freedom of political communication.
The second alternative involves adopting some of the specific measures found in the WA Act. Reference was made to a narrower designation of what constitutes an emergency and a more restricted period during which an emergency can subsist. But while there is inevitably scope for adopting measures that would more narrowly confine the opportunity for use of the emergency powers, it is not apparent why these measures, in particular, would significantly reduce the burden on political communication. That is because, as already explained, the gradation of powers in the Act necessarily means that the emergency powers will be available only when all other available powers are inadequate to eliminate or reduce the risk to public health, and the CHO considers it reasonably necessary to authorise the use of the emergency powers in that context. The proportionality principle in s 9 requires that actions taken under the Act be proportionate to the public health risk in question, and should not be made or taken in an arbitrary manner.[111] Moreover, the power in s 200(1)(d) is specifically conditioned on the authorised officer considering the exercise of power to be reasonably necessary to protect public health. Finally, the exercise of the powers is, as also already mentioned, subject to administrative law requirements of reasonableness, logic and rationality.
[111]The applicant submitted that this principle was counterbalanced by others in the Act. It is unclear how this is so. The principles do not appear to be in any relevant tension. For example, the ‘precautionary principle’ in s 6, that lack of full scientific certainty is not a reason to postpone measures to prevent or control a public health risk that poses a serious threat, is itself an application of proportionality.
As Edelman J pointed out in Palmer, the purpose underlying provisions responding to emergencies requires a great deal of flexibility, and ‘it might be expected that the loss of that flexibility by provisions involving a lesser burden would prevent Parliament’s purpose being achieved in the same degree’.[112] Put differently, there is a ‘margin of reasonable legislative responses’ that minimise the burden on the implied freedom.[113] It is relevant in that context that the powers in the WA Act were in other respects broader than the emergency powers in the Act. Among other things,[114] they could be engaged where the Minister was satisfied that there was an emergency (being simply a hazard requiring a significant and coordinated response) and that extraordinary measures were needed to prevent or minimise loss of life, prejudice to the safety or harm to the health of persons or animals.[115] In contrast, s 198(1) of the Act allows a state of emergency to be declared arising out of a serious risk to public — that is, human — health, which has been seen to be a test of some stringency.
[112]Palmer (2021) 272 CLR 505, 605 [287].
[113]See also ibid, 559 [163] (Gageler J), 575–6 [208] (Gordon J).
[114]See also n 82 above.
[115]The WA Act, ss 3 (definition of ‘emergency’), 56(2).
In the end, the various limitations on the availability and exercise of the emergency powers confirm that they are a proportionate response to a narrowly defined but critically important legislative purpose. It has not been shown that there was any obvious or compelling alternative way of achieving that purpose which would significantly reduce the burden on the implied freedom.
Finally, the question of adequacy in the balance must be answered similarly. It has not been shown that the benefit sought to be achieved, namely the elimination or reduction of serious risks to public health, is manifestly outweighed by the adverse effect on the implied freedom. The fact that it is possible to conceive of egregious burdens on political communication being imposed using the emergency powers does not advance the analysis. By reason of the matters already noted, no burden could be imposed unless there was a state of emergency in which the CHO, acting reasonably and according to the principle of proportionality, considered it reasonably necessary to authorise the use of emergency powers; and unless that use was reasonable, rational and logical and also, in so far as the power in s 200(1)(d) was deployed, reasonably necessary to protect public health. These are the hallmarks of a proportionate response to a serious risk. The benefit in responding to such a risk in those circumstances cannot be said to be significantly outweighed by the burden on political communication that might be entailed.
For these reasons, the emergency powers in s 200(1)(b) and (d) are valid in all their applications to the implied freedom. In other words, by reason of the manner in which they operate according to the terms of the Act, augmented by principles of administrative law, they cannot be exercised obnoxiously to that freedom. It follows that the second proposed ground must fail.
Proposed ground three — whether the directions impermissibly infringed the implied freedom
Given our conclusion on proposed grounds one and two, this proposed ground does not arise.
Conclusion
Leave to appeal should be granted but the appeal must be dismissed.
---
ANNEXURE A
I, Dr Finn Romanes, Deputy Public Health Commander, consider it necessary to eliminate or reduce the risk to public health – and reasonably necessary to protect public health – to give the following directions pursuant to section 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act):
PART 1—PRELIMINARY
1 Preamble
(1)The purpose of these directions is to address the serious public health risk posed to Victoria by Novel Coronavirus 2019 (2019-nCoV).
(2)These directions require everyone who ordinarily resides in the Restricted Area[116] to limit their interactions with others by:
[116]The restricted area was defined in separate direction, the Area Directions [No 9]. It was defined to mean the aggregate areas consisting of the municipal districts, suburbs, localities and addresses within greater Melbourne.
(a) restricting the circumstances in which they may leave the premises where they ordinarily reside and the Restricted Area; and
(b)placing restrictions on gatherings, including prohibiting private gatherings (no visitors to another person’s home other than in very limited circumstances).
…
4 Stay at home period
For the purposes of these directions, the stay at home period is the period beginning at 11:59:00 pm on 27 August 2020 and ending at 11:59:00 pm on 13 September 2020.
PART 2— STAY AT HOME
5 Direction – stay at home other than in specified circumstances
Requirement to stay at home
(1)A person who ordinarily resides in the Restricted Area during the stay at home period must not leave the premises where the person ordinarily resides, other than for one or more of the reasons specified in:
(a) clause 6 (necessary goods or services);
(b) clause 7 (care or other compassionate reasons);
(c) clause 8 (work or education);
(d) clause 9 (exercise);
(e) clause 10 (other specified reasons).
…
Travel restrictions
…
(1AB)A person who leaves their premises under either subclause (1)(a) (necessary goods or services) or (d) (exercise) must not:
(a) travel further than 5 km from their premises; or
(b) do so more than once per day.
…
Face covering requirement
(6)A person may only leave the premises under subclause (1) … if they:
(a)wear a face covering at all times …
…
10 Leaving premises for other reasons
(1)A person who ordinarily resides in the Restricted Area may leave the premises in the following circumstances:
(a) for emergency purposes; or
(b) as required or authorised by law; or
(c)for purposes relating to the administration of justice, including, but not limited to, attending:
(i) a police station; or
(ii)a court or other premises for purposes relating to the justice or law enforcement system; or
(d) to attend a place of worship, if that place of worship is operating in accordance with the Restricted Activity Directions (Restricted Areas) (No. 8); or
(e)to attend a community facility, if that facility is operating in accordance with the Restricted Activity Directions (Restricted Areas) (No. 8); or
(f)for the purpose of driving a person with whom they ordinarily reside where it is not otherwise reasonably practicable for that person to leave their premises for a purpose permitted under, and provided they comply with, these directions; or
…
(g)if the premises in which the person ordinarily resides is no longer available for the person to reside in or is no longer suitable for the person to reside in; or
(h) for purposes relating to, or associated with, dealing in residential property, including attending a private inspection of a residential property organised in accordance with the Restricted Activity Directions (Restricted Areas) (No. 8) and the Restricted Activity Directions (Non-Melbourne) (No. 3); or
(i)for the purposes of moving to a new premises at which the person will ordinarily reside; or
(j)if the person ordinarily resides outside Victoria, for the purposes of leaving Victoria; or
(k)if the person is permitted to leave Australia, for the purposes of leaving Australia; or
(l) for the purposes of national security.
PART 4 – GATHERINGS
11 Restrictions on gatherings
…
Public gatherings
(3)During the stay at home period, a person in the Restricted Area must not arrange to meet, or organise or intentionally attend a gathering of, more than one other person for a common purpose at a public place, except:
…
(a)where it is necessary for the person to provide, or the person requires, care and support due to:
(ii)age, infirmity, disability, illness or a chronic health condition; or
(iii)matters relating to the other person’s health (including mental health or pregnancy); or
(b) if the person is a parent or guardian of a child, and the person cannot access any child-minding assistance (whether on a paid or voluntary basis) so that the parent or guardian can leave the premises without the child, then the child may accompany the person when gathering with one other person; or
(c)for the purpose of attending a wedding in a Restricted Area that complies with the requirements in subclause (4); or
…
(d)for the purpose of attending a funeral that complies with the requirements in subclause (5); or
(e)it is necessary to arrange a meeting or organise a gathering for one or more of the purposes specified in clauses 7 (care or other compassionate reasons), 8 (work or education) or 10 (other specified reasons); or
(f)where it is for one or more of the purposes specified in clause 6 (necessary goods or services) and the exceptions in clause 5(1AD) apply.
ANNEXURE B
I, Adjunct Clinical Professor Brett Sutton, Chief Health Officer, consider it reasonably necessary to eliminate or reduce the risk to public health—and reasonably necessary to protect public health—to give the following directions pursuant to section 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act):
PART 1 — PRELIMINARY
1 Preamble
(1)The purpose of these directions is to address the serious public health risk posed to Victoria by Novel Coronavirus 2019 (2019-nCoV).
(2)These directions require everyone who ordinarily resides in the Restricted Area to:
(a)restrict the circumstances in which they may leave the Restricted Area;
and
(b) wear face coverings; and
(c) limit interactions with others by restricting gatherings.
(3)These directions must be read together with the Directions currently in force.
(4) These directions replace the Stay Safe Directions (Melbourne) to clarify the limits on the services and facilities a person leaving the Restricted Area can access in the Relevant Area.
…
4 Stay safe period
For the purposes of these directions, the stay safe period is the period beginning at 11:59:00 pm on 28 October 2020 and ending at 11:59:00 pm on 8 November 2020.
PART 2— STAY SAFE
5 Direction – staying safe while leaving the home
Leaving the home
(1)A person who ordinarily resides in the Restricted Area during the stay at home period may leave the premises where the person ordinarily resides for any reason subject to subclauses (2) and (2A):
(2)When leaving their premises, a person:
(a)must not travel to the Relevant Area other than in accordance with subclauses (2B) to (3); and
(b)must comply with the face covering requirements in subclauses (9) and (10); and
(c)if leaving the premises where they ordinarily reside for work or education, must only do so if in accordance with clause 8 (work or education); and
(d)must comply with the restrictions on gatherings in clause 11 (gatherings); and
(e)must comply with the Directions currently in force, including (without limitation) by:
(i)not engaging in an activity that is prohibited under the Restricted Activity Directions (Melbourne); and
(ii) only engaging in an activity permitted under the Restricted Activity Directions (Melbourne) in accordance with any requirements set out in those directions.
…
Travel restrictions
(2A)A person must not travel further than 25km from:
(a)their premises if they leave for a purpose under clause 6 (necessary goods or services), 9(2) or (3) (exercise or social interaction outdoors), 10(1)(e) (place of worship) or 11(2)(i) (social gathering); or
(b)their workplace if they leave that workplace for a purpose under clause 9(2) (exercise outdoors),
unless:
(c)the person leaves the premises to obtain goods and services for health or medical purposes; or
(d) as a consequence of this requirement, it is not reasonably practicable for the person to obtain necessary goods and services.
…
Requirement to stay in the Restricted Area
(2B)Subject to subclauses (2C) an (3), a person who ordinarily resides in the Restricted Area during the stay safe period must not leave the Restricted Area other than for one or more of the purposes specified in:
(a)clause 6 (necessary goods or services);
(b) clause 7 (care of compassionate reasons);
(c)clause 8 (work or education);
(d)clause 10 (other specified reason).
….
PART 4 – GATHERINGS
11 Restrictions on gatherings
…
Public gatherings
(5)During the stay safe period a person in the Restricted Area must not arrange to meet, or organise or intentionally attend a gather of, more than nine other persons (with any infant under one year of age not counting toward this limit) for a common purpose at a public place except …
The responsible Minister is the Minister for Police and Emergency Services. A ‘state of disaster’ was also declared under that law on 2 August 2020: Victoria, Victoria Government Gazette, No S 383,
2 August 2020.
4
19
1