HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJJULIAN KINGSFORD GERNER & ANOR PLAINTIFFS
AND
THE STATE OF VICTORIA DEFENDANT
Gerner v Victoria
[2020] HCA 48
Date of Hearing: 6 November 2020
Date of Order: 6 November 2020
Date of Publication of Reasons: 10 December 2020M104/2020
ORDER
Demurrer allowed with costs.
Representation
B W Walker SC with M D Wyles QC, R F R Pintos-Lopez and S C B Brenker for the plaintiffs (instructed by Hamilton Locke)
K L Walker QC, Solicitor-General for the State of Victoria, with C L Lenehan SC, K A O'Gorman and T M Wood for the defendant (instructed by Victorian Government Solicitor's Office)
J A Thomson SC, Solicitor-General for the State of Western Australia, with J J E Perera for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
M J Wait SC, Solicitor-General for the State of South Australia, with K E Dennis for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
S K Kay with D R Osz for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General (Tas))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gerner v Victoria
Constitutional law (Cth) – Implications from Constitution – Where directions made under s 200(1)(b) and (d) of Public Health and Wellbeing Act 2008 (Vic) restricted movement of persons within Victoria – Where plaintiffs sought declarations that directions and s 200(1)(b) and (d) of Public Health and Wellbeing Act were invalid as an infringement of a freedom to move wherever one wishes for whatever reason ("freedom of movement") said to be implicit in Constitution – Where defendant demurred on ground that Constitution did not imply freedom of movement – Whether freedom of movement implicit in federal structure of Constitution – Whether freedom of movement protected by implied freedom of political communication – Whether freedom of movement implicit in s 92 of Constitution.
Words and phrases – "constitutional implication", "constitutional interpretation", "COVID-19", "federal structure", "federation", "freedom of movement", "implied freedom of movement", "implied freedom of political communication", "interstate intercourse", "intrastate intercourse", "political communication", "quarantine", "terms and structure", "text and structure".
Constitution, ss 51(ix), 92.
Public Health and Wellbeing Act 2008 (Vic), ss 200(1)(b), 200(1)(d).
KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ. The Public Health and Wellbeing Act2008 (Vic) ("the 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 ("the Minister")[1]. On 16 March 2020, the Minister declared that a…
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- AGLC
- Gerner v Victoria [2020] HCA 48
- Case
- [2020] HCA 48
- Decision Date
CaseChat Overview and Summary
The Court reasoned that while at common law individuals possess a freedom of locomotion subject to the laws of the land, the assertion of a constitutionally guaranteed freedom of movement requires demonstrating a conflict between the Constitution and a statute. Such an implied freedom operates as a limitation on legislative or executive power, rather than a personal right. The plaintiffs' argument that federation produced "one people, one nation" from which a freedom to move wherever one wishes for whatever reason followed was rejected. The Court found no basis in the text and structure of the Constitution for implying such a freestanding freedom of movement.
The Court noted that the notion of a freestanding implied freedom of movement, separate from the implied freedom of political communication, is contrary to settled authority. The orthodox view is that any constitutional protection for freedom of movement or communication arises as an aspect or corollary of the protection afforded to the freedom of political communication. The Court concluded that it would be an unsound approach to constitutional interpretation to attribute a meaning to the constitutional text that the framers evidently rejected. Accordingly, the plaintiffs' contention was rejected, and the defendant's demurrer was allowed.
Orders
Orders of the court
Demurrer allowed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ
The position was different in relation to the plaintiffs' contention that the provisions of the Act and the Lockdown Directions conflicted with an implied freedom of movement that stands independently of political communication and independently of interstate trade, commerce and intercourse. This contention was at least supported by the allegations of fact in the plaintiffs' pleaded case. The plaintiffs' contention in this respect failed, however, on the ground that there is no basis in the text and structure of the Constitution for the implication which the plaintiffs assert.An implication from federation? At common law individuals may move about as they see fit. But that freedom is subject to the laws of the land. In Blackstone's Commentaries on the Laws of England it is said that the personal liberties of the subjects of the common law, including "locomotion", may only be abrogated or regulated by "due course of law"[3]. Because freedom of movement may be limited by statute, to speak of a constitutionally guaranteed freedom of movement is to assert the invalidity of a statute by reason of a conflict between the Constitution and the statute. It must be understood that to speak of an implied freedom is to speak of a limitation on legislative or executive power rather than a personal right[4]. Accordingly, to assert that a freedom of movement is implicit in the Constitution is to assert that the Constitution impliedly denies to the Commonwealth and the States power to make laws the object of which is to restrict freedom of movement.[3]Blackstone, Commentaries on the Laws of England (1765), bk 1, ch 1 at 130-131.[4]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566. The plaintiffs argued that the restriction on the legislative power of the Commonwealth and the States for which they contend springs from the fact that federation produced "one people, one nation, where there had been several peoples and several colonies". Freedom to move wherever one wishes for whatever reason was said to follow, it being the essence of being a community or society or nation that the people can know each other. It must be said at the outset of a discussion of this contention that the notion that a freedom of communication or movement is a freestanding implication of the Constitution, cognate with but standing separately from the implied freedom of political communication recognised in Lange v Australian Broadcasting Corporation[5], is contrary to the settled course of authority in this Court. The orthodox view, the basis for which will be discussed under the next heading, is that freedom of movement or communication enjoys constitutional protection as an aspect or corollary of the protection of freedom of political communication[6]. [5](1997) 189 CLR 520.[6]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 234 [148], 297 [334]‑[335], 306 [364]; Wainohu v New South Wales (2011) 243 CLR 181 at 230 [112]; Tajjour v New South Wales (2014) 254 CLR 508 at 566‑567 [95], 576‑578 [136]‑[143], 605‑606 [242]‑[245].