COVID Restrictions Are Legal, Australian Courts Rule

by Ugur Nedim & Sonia Hickey
COVID and court

Throughout the course of this year, Covid 19 lockdowns and border closures have taken their toll on the mental health and financial security of millions of Australians.

Three of these people have taken their grievances to court, challenging the legal validity of the restrictions.

However, to their disappointment, none of these challenges have been successful.

Here’s an outline of the three legal challenges.

Clive Palmer vs State of Western Australia

Clive Palmer’s legal battle with the Western Australian Government began in May 2020, when he was refused entry to the state.

The case ended up in the High Court of Australia, with Mr Palmer’s lawyers arguing a breach of section 92 of the Australian Constitution which states “trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free.”

The High Court rejected Mr Palmer’s bid to have Western Australia’s border ban ruled invalid, upholding that the WA government’s application of the Emergency Management Act during the Covid-19 pandemic complied with the constitutional limitation of section 92. Mr Palmer will also have to pay legal costs for the government.

At the time, the judgement was seen as a major victory for state premiers, who have faced several months of backlash from their own constituents over lockdown decisions, as well as from the Prime Minister himself.

Julian Gerner vs State of Victoria

A second challenge in the High Court was brought by hotelier Julian Gerner, over the prohibition on Melburnians travelling more than 25km from their home.

Mr Garner’s legal team argued that this restriction conflicted with an implied freedom contained in the Australian Constitution that individuals are permitted to move freely.

The High Court unanimously found that no such freedom exists, or could be implied, in the Constitution. It therefore concluded there is no legal basis upon which it could overturn Victoria’s restrictions.

The decision was an emphatic statement that Australians do not have a right to freedom of movement;  so emphatic that the court did not need to hear the Victorian government’s arguments in support of its position.

Michele Loielo vs State of Victoria

A third challenge was mounted in the Supreme Court of Victoria by cafe owner Michelle Loielo who argued that Melbourne’s strict 9pm to 5am curfew breached Victoria’s Charter of Human Rights and Responsibilities Act 2006.

Ms Loielo’s legal team pointed to the guarantees of free movement, liberty and protection against arbitrary detention referred to in the legislation, arguing these had been violated by the curfew.

While Justice Tim Ginnane recognised the curfew was “a major restriction of human rights and liberties of the free people of Victoria” and that no curfew had been imposed in Victoria “in living memory”, his Honour nevertheless found that the curfew was consistent with the charter; recognising that governments can restrict individual rights in favour of community protection at a time of emergency.

His Honour also determined that the curfew imposed by the Victorian State Government was proportionate due to its stated purpose of protecting public health, taking into consideration the restriction was temporary and finding there were no other reasonable means by which the government could safeguard the community at the time.

Not surprising

The decisions do not come as a surprise from a legal standpoint, given that very few rights are explicitly protected by the Australian Constitution, that we are the only western ‘democracy’ that does not have a Bill of Rights and that our courts have a long record of deferring to government’s at times of crisis such as wars and times where terrorism is seen as an imminent threat to Australia.

In fact, there are only five rights explicitly guaranteed by the Australian Constitution, which are:

  • The right to vote (Section 41),
  • Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
  • The right to a trial by jury for criminal cases in the higher courts (Section 80),
  • Freedom of religion (Section 116), and
  • The right against discrimination on the basis of State of residency (Section 117).

In addition to these, the High Court has found an implied freedom of political communication, which is essential for the operation of our system of representative government as created by sections 7, 24, 64 and 128.

The test of whether a law which may affect this freedom is nevertheless permissible is crystallised in the case of Lange v ABC (1997):

  1. Does the law actually burden freedom of political communication? and if so:
  2. Is the law “reasonably appropriate and adapted to serve a legitimate end” that supports a system with representative government?

Almighty state politicians

In this context, and given that state governments are in control of health issues, state government health ministers are left with sweeping powers to implement Public Health Orders under their respective Public Health Acts with little or no consultation or scrutiny, especially given parliaments have been closed for a good part of COVID.

These orders do not require a parliamentary votes, and have many accusing state governments of engaging in authoritarian control.

What’s next?

The situation has many asking valid questions such as, what’s next? And how long will this last?

Prime Minister Scott Morrison said earlier this year that he wanted any vaccine to be as ‘mandatory as possible’ – words that sent shivers up the spines of many Australian.

Qantas chief Alan Joyce has echoed this sentiment in the past couple of days saying that a ‘vaccination will be required to fly’.

Such a stance poses serious questions about the rights of conscientious objectors, or in fact the rights of anyone, who wants to exercise freedom of personal choice.

There are also questions about ever-proliferating surveillance and tracking technology such as the CovidSafe App.

And with the ‘second wave’ of Covid and widespread acceptance of increased government control, its uncertain whether Australians will have all of our liberties and legal safeguards restored in the near future.

Inadvertent champion of authoritarianism

It seems that Covid has, as feared, turned out to be the inadvertent champion of the police state, and there are fears that perceptions of the threat of the virus spreading, or even another virus emerging, will be used by those in power to continue with current social controls, and even expand controls, as we move through uncertain times.

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Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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