Stratton v State of New South Wales; Pandolfi v Minister for Health and Medical Research

The plaintiffs in this case, Stratton and Pandolfi, challenged the validity of public health orders made under the Public Health Act 1991 (NSW) and penalty notices issued to them for attending protests during the COVID-19 pandemic. They argued that these orders and the statute were unconstitutional because they infringed upon the implied freedom of political communication guaranteed by the Australian Constitution. The case was heard in the Supreme Court of New South Wales.

The central legal issues the court had to address were whether the constitutional analysis should be conducted at the level of the orders themselves or at the level of the statute, whether the orders and statute imposed a burden on the implied freedom of political communication, and if so, whether this burden was necessary and if the law was adequate in its balance. The court also needed to determine if the offence-making provision in the statute impermissibly infringed upon the implied freedom.

The court held that the constitutional analysis should be conducted at the level of the statute, as the orders were merely an expression of the statutory power. It was determined that the statute and orders did burden the implied freedom of political communication by restricting the plaintiffs' ability to protest against government measures. However, the burden was deemed necessary in the context of the pandemic, and the law was considered adequate in its balance as it provided a sufficient justification for the restrictions. The court also found that the offence-making provision did not impermissibly infringe upon the implied freedom as it was narrowly tailored to serve the compelling government interest of public health and safety.

The final orders of the court were that the plaintiffs' challenge to the constitutional validity of the public health orders and the Public Health Act was dismissed. The court found that the restrictions on political communication were necessary and justified in the context of the COVID-19 pandemic and that the law was adequate in its balance to protect public health and safety.