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The high court has unanimously rejected the constitutional challenge against Victoria’s lockdown.
The case, brought by the hotelier Julian Gerner, unsuccessfully sought to argue that the Australian constitution contains an implied freedom of movement for any reason.
Together with the court’s decision to reject Clive Palmer’s challenge of the Western Australian border ban earlier on Friday, the judgment gives state and territory governments considerable latitude to restrict movement within and between jurisdictions to fight the coronavirus.
After taking oral submissions from the plaintiff’s counsel, Bret Walker, on Friday morning, the justices returned from a short adjournment to announce the result.
The chief justice, Susan Kiefel, told the solicitor general for Victoria, Kristen Walker, there was no need for oral submissions in support of the state’s case, which rejected the existence of the implied freedom of movement.
Kiefel said the justices had unanimously upheld Victoria’s demurrer, an objection that even if the court accepts the facts as stated by the plaintiffs, the legal arguments made on the basis of those facts do not hold.
Earlier, Walker had argued that the court should find the constitution contains an implied freedom of movement in the same way the high court had found an implied freedom of political communication in 1992.
Walker argued that the nature of the Australian nation as a “community of people” required not just political communication but also “physical transport” of its people.
Although no reasons have been published for the decision, justices cast doubt on the proposition throughout the hearing.
Justice Stephen Gageler queried whether authorities provided support for the existence of the freedom or the plaintiffs had merely “cobbled together” statements that were consistent with it.
Justice Patrick Keane noted that although the constitution grants a degree of freedom of intercourse between the states, the constitutional conventions had rejected calls for freedom to move “throughout the commonwealth”.
Justice Michelle Gordon suggested the case had fallen into the trap of construing what is “required by federation” as something that is also “implied by the text and structure of the constitution”.
Walker agreed that the “vibe” of Australia’s unity as a federation was not enough, but said evidence of the freedom was found in the text and structure of the constitution.
Walker argued without the freedom, a government could confine Australians to cells with electronic communication only in a bid to prevent the spread of infectious diseases.
“Nobody would say it would suffice to allow the people at the next election to get rid of a government that did that,” he said.
Rather, citizens needed to “learn about society and those who govern it” by participating in and moving around – to “see how things are” in places such as Ballarat and Mornington.
The Victorian government’s restriction of movement to 5km “goes too far or rather prevents people going far enough”, Walker argued.
In October, the Victorian government relaxed the lockdown after successfully reducing Covid-19 transmissions. Nevertheless, the decision will bolster states’ legal defences in the event that further restrictions might be required.
In its written submissions, Victoria noted the plaintiffs were a Mornington Peninsula resident and a restaurant that had suffered a hit to earnings due to restrictions.
It argued the case required the plaintiffs to prove a “general implied freedom of movement for any reason” because they had not pleaded facts demonstrating the lockdown amounted to a limit on political communication.
Victoria noted that the constitution contains powers for quarantine, defence and aliens – all of which allow limitations on freedom of movement.
“There are tensions (if not outright inconsistency) between the implication for which the plaintiffs contend and the constitutional scheme,” Victoria submitted.
Source: The Guardian
Keyword: High court rejects legal challenge against Victoria’s Covid lockdown | Law (Australia)