Gerner v Victoria

In *Gerner v Victoria*, the plaintiffs sought declarations that directions made under section 200(1)(b) and (d) of the *Public Health and Wellbeing Act 2008* (Vic), which restricted movement within Victoria, were invalid. The plaintiffs contended that these directions, and the impugned provisions of the Act, infringed a freedom of movement that was implied in the Australian Constitution. The defendant demurred to this claim, arguing that the Constitution does not imply such a freedom. The High Court of Australia was required to determine whether a freedom of movement, independent of political communication or interstate trade, commerce, and intercourse, is implied in the Constitution.

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.