A continual source of debate as we navigate the ongoing Covid-19 pandemic has been “Do the Public Health Orders, in restricting some of our freedoms, go against the Australian Constitution?”. Fortunately, we don’t need to rely on Facebook to settle the debate as the High Court of Australia has examined the issue for us.

The COVID-19 pandemic has seen states and territories across Australia take unprecedented actions that restrict our rights and freedoms in order to maintain the health and safety of all Australians. For example, restrictions on movement and travel, tracing applications, broadened police powers and curfews are all measures Australian Governments have implemented since COVID-19 was declared a pandemic on 11 March 2020.

The High Court has been called upon to assess the validity of the legislation underpinning those sorts of restrictions in light of the Australian Constitution.

The case examples set out below arise out of the Western Australian and Victorian COVID-19 legislation, and illustrate that the Australian Constitution does not provide any basis for an implied freedom of movement that limits legislative or executive power.

While no determination has been made in NSW on this issue at this stage, the High Court has made it clear that the Public Health Orders are, at least until such time as vaccination rates increase significantly, unlikely to be considered unconstitutional.

Background: On 15 March 2020, The Minister for Emergency Services for Western Australia declared a state of emergency in all of Western Australia in respect of the COVID-19 pandemic under section 56 of the Emergency Management Act 2005 (WA) (“the Act”) with effect from 16 March 2020.

On 5 April 2020, the Commissioner of Police for Western Australia issued Directions to close the border of Western Australia to all persons with limited exemptions.

On 18 May 2020, the Plaintiff (Mr Clive Palmer) sought and was refused permission to enter Western Australia.

The Claim: One week after being refused permission, Mr Palmer commenced proceedings in the High Court claiming that the border closure under s 56 of the Act and the Directions was invalid as it infringed upon section 92 of the Constitution which provides that trade, commerce, and intercourse among the States shall be ‘absolutely free’.

Issue: Was it lawful under section 92 of the Constitution for Western Australia to close their borders during the COVID-19 pandemic?

Outcome: On 6 November 2020, the High Court unanimously upheld the validity of the Act and the Directions. The Court held that, while the legislation did impose a burden on interstate intercourse, the purpose of the provisions was such that the burden was justified and, at least in their application to the emergency constituted by the COVID-19 pandemic, they were constitutionally valid.

Accordingly, while the burden on interstate movement was severe, it was justified when taking into account the competing importance of the protection of health and life. The Court’s reasons for the orders were published on 24 February 2021 and can be found here.

Background: The Public Health and Wellbeing Act 2008 (Vic) (“PHW Act”) empowers authorised officers appointed by the Chief Health Officer to exercise ‘emergency powers’ when a ‘state of emergency’ has been declared by the Minister for Health.

Section 200(1)(b) and (d) of PHW Act include the ability 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.”

On 16 March 2020, the Minister for Health declared that a state of emergency existed in the whole of Victoria by reason of the COVID-19 pandemic and directions restricting the movement of people within Victoria (the “Lockdown Restrictions”) have been made from time to time since then.

The Plaintiff (Julian Gerner) was a restaurant owner in Melbourne whose restaurant business was generating approximately $2 million per annum in revenue from sales prior to the Lockdown Directions. It was alleged the Lockdown Directions caused the restaurant to suffer significant loss of revenue.

The Claim: The Plaintiff commenced proceedings seeking declarations that the Lockdown Directions were invalid as they infringed an implied freedom of movement in the Constitution. The Plaintiff presented three alternative arguments:

  • The freedom is “implied from the text and structure of the Constitution”;
  • It is “part of the implied freedom of political communication”; or
  • It is implied by the free trade between states under s92 of the Constitution.

Issue: Did the Victorian Lockdown Directions issued under ss 200(1)(b) and (d) of the PHW Act infringe upon the implied freedom of movement under s 92 of the Constitution?

Outcome: The High Court rejected the Plaintiff’s claim and upheld the constitutional validity of the Lockdown Restrictions. The Court found that the acceptance of an implied freedom of movement from the text and structure of the Constitution would place an unjustified limitation on legislative and executive power, and that the freedom of movement argued for by the Plaintiff was broader than the ‘freedom’ that had been intended by s 92.


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