Plaintiff Asserts COVID-19 Restrictions Burden Political Freedom
Cotterill v Romanes [2021] VSC 498 (17 August 2021)
A state of emergency was declared in the whole of Victoria due to the COVID-19 pandemic. Pursuant to the Public Health and Wellbeing Act (the ‘PHW Act’), restrictions were made for all persons to remain at home and only leave for specific reasons. The plaintiff was issued an infringement notice by the first defendant allegedly due to her breach of the restrictions and pursuant to the power granted to the first defendant by the PHW Act.
Facts:
On 16 March 2020, the Minister declared that a state of emergency in the whole of Victoria because the COVID-19 pandemic (‘the State of Emergency Declaration’). On 8 July 2020, ‘stage 3 restrictions’ were introduced for all of metropolitan Melbourne and the Shire of Mitchell. Under those restrictions, people were required to stay home, unless leaving for specific reasons, and public outdoor gatherings were limited to two people, subject to particular exceptions. On 27 August, pursuant to the powers granted by the ‘PHW Act’, the first defendant issued directions which required all persons in the ‘restricted area’ to remain at home and only leave for certain specified reasons.
The opportunity for public gatherings was also heavily constrained by purpose and number of participants. On 13 September 2020, the plaintiff was given an infringement notice alleging that she was in breach of Directions No 14. She alleges that she was both exercising (which was a permitted reason to leave the home) and demonstrating against the lockdown. The plaintiff contends that the Directions are invalid because they impermissibly burden the implied freedom of political communication.
The Stay Safe Directions was given on 28 October 2020 removing the stay at home rule, allowing persons to leave their home for any reason, but retained a 25 kilometre travel limit and retaining the limit of 10 people for general outdoor gatherings, with special provision made for certain kinds of gatherings, such as, weddings and religious gatherings. The plaintiff focuses on the fact that there is no exception to allow for public gatherings for the purpose of engaging in political communication. The Stay Safe Directions was revoked on 8 November 2020 by the Stay Safe Directions (Victoria) when restrictions were further eased. The defendants submit that the plaintiff lacks standing to bring the proceeding, or, her claims should not be entertained as a discretionary matter on the basis that her infringement notice has been withdrawn and the Directions are no longer in force.
Issues:
- Whether or not the Public Health and Wellbeing Act burdens the implied freedom.
- Whether or not the plaintiff has standing to bring a claim in relation to directions after they cease to be in operation.
Applicable law:
Public Health and Wellbeing Act (the ‘PHW Act’) - empowers authorised officers, appointed by the Chief Health Officer (‘CHO’), to exercise ‘emergency powers’ when a ‘state of emergency’ has been declared by the Minister for Health (‘the Minister’).
Public Health and Wellbeing Act (the ‘PHW Act’) ss 200(1)(b) and (d) - provides that the emergency powers exercisable by the CHO include the power to ‘restrict the movement of any person or group of persons within the emergency area’ and to ‘give any other direction that the authorised officer considers is reasonably necessary to protect public health’.
Palmer v Western Australia [2021] HCA 5 - held that an exercise of power that complies with the statutory constraints will always be in compliance with the freedom.
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 - where the Court noted that the plaintiff must establish a special interest in the subject matter of the proceeding over and above other members of the public in order to have standing to bring a proceeding.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 - provided that the implied freedom is a limitation on legislative power, that prevents the State and Commonwealth Parliaments from enacting legislation that imposes an unjustifiable burden on communication on political and governmental matters.
Analysis:
The prohibition on leaving other than for a permitted reason means that the person must leave for a permitted reason and only remain outside of the home while they retain that purpose. The constraint is on the physical act of leaving the residence, and on conditions the time outside of the home. The implied freedom is a limitation on legislative power that prevents the State and Commonwealth Parliaments from enacting legislation that imposes an unjustifiable burden on communication on political and governmental matters. Dr Romanes who made Directions No 14, provided that he believed it necessary to protect health by reducing or eliminating a serious risk to public health.
The powers in sub-ss 200(1)(a) to (c) involve the implementation of the steps that the CHO considers to be necessary. Although authorised officers must be appointed and have the skills and training to perform their task, contrary to the plaintiff's assertion, there is nothing in the PHW Act that says that these skills must relate to health. The importance of protecting the community from infectious disease can, in an appropriate case, justify legislation authorising the deprivation of liberty at the hands of the executive.
Conclusion:
The Court concluded that sub-ss 200(1)(b) and (d) are valid in all their potential operations insofar as they may impose a burden on political communication because of the legitimate purpose they serve, and the significant constitutional limitations that confine their exercise and ensure that no lawful exercise of power can be obnoxious to the constitutional freedom. Although the restrictions imposed fell short of a complete deprivation of liberty as might be authorised under sub-s 200(1)(a), they represent a significant limitation on rights of a kind and extent that have rarely, if ever, been seen in Victoria. The Court declared that the plaintiff has standing to challenge the validity of the Directions and is entitled to seek vindication of her conduct. The Court ordered to dismiss the proceeding.
