Freedom of Movement & COVID-19: Border Closures

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Freedom of Movement & COVID-19: Lockdowns

The case of Gerner & Anor v State of Victoria as the name suggests centres around the lockdowns in Victoria. The question for the High Court was whether the state government had arbitrarily restricted a supposed right of implied freedom of movement.

Freedom of Movement: Does the right exist?

The Court found that it does not. The Court frames the question in terms of the state and federal dynamic. The Constitution if it were to provide for an implied right of freedom, would then restrict the power of the states to make laws. The implication is that the Constitution would then prohibit states from making laws allowing for lockdowns under the state-based Public Health and Wellbeing Act 2008 (Vic).

The High Court argued that the states restrict movement on a daily basis. The Court demonstrated the necessity of this by referring to common state provisions such as incarceration, town planning, traffic regulations, private property and so forth.

Political Communication

The High Court referred to the previous precedent to support their judgment. The precedent reiterated that the implied freedom of communication is limited to political communication. It is not a broad freedom.  The Court has also stated in the past that the implied right can be further restricted. Therefore, the plaintiff who had lost revenue could not, nor did they plead that the lockdown restricted political communication. An example would be a political protest which is an implied right of political communication with has the side effect or ancillary of movement associated with it. Whether that would succeed is still a different matter

Purpose of s 92 of the Constitution

To counter the plaintiff’s argument the High Court relied upon the material from the 1897 Sydney Convention. This material explained that the original purpose of s 92 was to prevent restrictions on trade at the border. In other words, it dealt with duties. Furthermore, the same provision back in 1897 was not viewed as allowing complete freedom. Rather, the provision would still allow for states to intervene. Examples of when they could intervene included issues such as contagious diseases affecting persons and animals.

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