A summary of this case is as follows:
From time to time since 16 March 2020, “Lockdown Directions” have been made under ss 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Those Directions imposed various restrictions on the freedom of movement of people within Victoria.
Mr Gerner operates a restaurant business on the Mornington Peninsula. In the High Court, Mr Gerner and his business claimed that the Constitution implicitly guarantees “freedom of movement”, being a freedom “for the people in and of Australia, members of the Australian body politic, to move within the State where they reside from time to time, for the purpose of pursuing personal, recreational, commercial, and political endeavour or for any reason, free from arbitrary restriction of movement”.
The plaintiffs contended that freedom of movement of that kind was: (a) to be implied from the text and structure of the Constitution and to be logically and practically necessary for the preservation of the constitutional structure; (b) to be implied from the system of representative and responsible government enshrined in the Constitution and as part of the implied freedom of political communication; or (c) to be implied as an aspect of s 92 of the Constitution.
The plaintiffs claimed that ss 200(1)(b) and (d) of the PHW Act and the Lockdown Directions were invalid for infringing the alleged freedom of movement. The State of Victoria demurred to the plaintiffs’ claim on the ground the Constitution does not imply the freedom of movement for which the plaintiffs contended.
The Court unanimously rejected each of the three arguments advanced by plaintiffs in support of the existence of that freedom. It therefore allowed the State’s demurrer.
The plaintiffs did not plead that the PHW Act or the Lockdown Directions imposed any burden on political communication, or any burden on interstate trade, commerce or intercourse. Accordingly, the Court did not consider whether the PHW Act or the Lockdown Directions infringed the implied freedom of political communication, or s 92 of the Constitution.
