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.
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