5 cases that locked the nation: COVID edition

From lockdowns to night curfews, travel bans, vaccine mandates and density limits, the COVID-19 years presented our courts with an unprecedented variety of legal oddities.

In perennial southern hotspot Danistan, Niall JA of the Victorian Supreme Court took the boot to a “business owner’s” freedom of political communication gripe against Premier Dan Andrews. Meanwhile, Thawley J of the Fed tackled legislative restrictions on the common law right of re-entry to Australia arising out of the Commonwealth’s India travel ban. Elsewhere, the HCA put down Clive Palmer’s toddling attempt to cross the West Australian demilitarised zone.

So stuff a cotton bud up your nose – or get one stuffed down your throat (no judgement) – put your pyjamas back on, and tuck into a pangolin; hark back to the collective trauma of the COVID years with this retrospective into some of the weirdest cases that locked the nation.

“Stay close, go nowhere”: Gerner v State of Victoria [2020] HCA 48

The combatants in our first oddity presented to the High Court in its original jurisdiction in November 2020, bearing with them the question of whether the Constitution contained an implied freedom of movement internally in an individual’s state of residence. In sum? Yeah, nah… to the tune of 5:0.

Our plaintiff, restaurateur and sommelier one Gerner, may have bitten off more than he could chew bringing this particular question to the HC. Gerner asked the Court to invalidate certain Victorian COVID-19 directions which restricted the movement of people within Australia’s penultimate great state.

In throwing the sink at the issue, Gerner asked the Court to consider whether such a freedom was: i) implied by the text and structure of the Constitution and necessary for preserving its operation; ii) implied as part of the implied freedom of political communication, and iii) implied as aspect of free interstate trade.

The HC gently informed our erstwhile wino that he shouldn’t drink and drive – swiftly pointing out that Gerner’s statement of claim did not allege or particularise facts supporting a conflict between the impugned Victorian directions and political communication or interstate trade. Whoops.

But even on the issue that did receive judicial airtime, the Court was not convinced. The majority found no basis in the text and structure of the Constitution which could restrict legislative power to circumscribe freedom of movement.

Back to the living room, Vic!

Across this new divide: Palmer v Western Australia [2021] HCA 5

With the tactical brilliance of a Russian special operation, Clive Palmer fumbled his way into COVID-19 legal folklaw with his blitzkrieg attempt to cross the West Australian demarcation line.

Throw your mind back to 2020; born-again statist, WA Premier, COVID-phobe, and New South Welshman Mark McGowan took inspiration from the breakup of Pangea and all but separated the Lone Star State from the rest of the continent, denying entry to almost all but the most West Australian among us.

More particularly, on 5 April 2020, the Quarantine (Closing the Border) Directions (WA) (Directions) slammed into full effect – with the result that the WA border was closed to everyone except those with an exemption. Well-known man-of-the-people Queensland magnate Clive Palmer, sought and was denied an exemption to travel into WA, and took umbrage at being denied access to the western front of his fiefdom.

Thus was the decision in [2021] HCA 5 born, as the spurned industrial titan sought to bend the Breakaway State to his will. Properly before the Court was the question of whether the state of emergency powers in ss 56 and 67 of the Emergency Management Act 2005 (WA) (authorising the Directions) were an impermissible impingement on interstate intercourse under s 92 of the Constitution.

The HCA fell on the conclusion that “the differential burden capable of being imposed by ss 56 and 67 of the Act is reasonably necessary where an emergency is constituted by a hazard in the nature of an epidemic” (per Gordon J at [209]; see also Kiefel CJ & Keane J at [77]). Meaning Palmer’s denial of entry to WA was, at that time, entirely permissible.

Keep huffing that ivermectin, Clive.

Prison island – LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90

LibertyWorks – whose emblematic eponym foreshadows their position and politics in respect of the closure of Australia’s international borders – challenged the validity of the equally ridiculously named Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) (Travel Ban Determination).

The Travel Ban Determination, if it wasn’t already part of your COVID-19 trauma, closed the border for all outbound Aussies except those in possession of an exemption from the Australian Border Force (ABF) – giving new meaning to the party of (cough) “personal responsibility”.

In order to get an exemption, those of us among the plebeian masses were required to demonstrate some kind of exceptional circumstance – which amounted to demonstrating a “compelling reason” to leave to the ABF. In November 2020, a LibertyWorks employee applied to travel from prison island to London to assess conference venues for a political chinwag. Result: not compelling enough; application denied.

Standing thus engaged, LibertyWorks challenged the Travel Ban Determination on the ground it lacked authority or was inconsistent with the Biosecurity Act 2015 (Cth).

In dismissing the challenge, the Court took particular umbrage with LibertyWorks’ proposed construction of s 477(6) of the Biosecurity Act, approving the Commonwealth’s submission that LibertyWorks’ interpretation would “eviscerate” the Minister’s power, stating “[i]t would at least emasculate it. And it would frustrate Parliament’s clear intention in enacting the emergency powers”.

Homeward Bound; or not – Newman v Minister for Health and Aged Care [2021] FCA 517

From can’t get out to don’t come in… the subject matter of Newman infected waves of Australians with despair.

In issue was the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) (Re-entry Determination), which criminalised entering Australia if you had been in India in the last 14 days.

Mr Newman, a dual UK-AUS citizen at that time residing on a visa in India, wished to return home to Australia, and was thwarted by the Re-entry Determination. The relevant prayers for relief answered in this decision were that there were procedural failures in the making of the determination, and that there was a fundamental common law right of re-entry to a country of citizenship. Spicy.

So about that common law right? Yeah, it exists, but like other rights it can be abrogated by legislation. That is, abrogated by a positive law expressly restricting access to Australia (at [76]).

In the view of Justice Thawley, it was a necessary incident of the scheme contained in Ch 8 of the Biosecurity Act 2015 (Cth) (containing the provisions authority the Re-entry Determination) that an Australian could be prevented from entering the country (at [82]).

Hit the road Jack (boots) – Cotterill v Romanes [2021] VSC 498

Returning once again and finally to Australia’s penultimate great state; Danistan. Given the pattern of judicial decisions in this article no prizes for guessing the outcome of this lockdown challenge.

Victoria suffered an inordinate amount of pressure to contain the spread of COVID-19 within its borders for the health of the rest of Australia, and it’s no surprise that many of Australia’s agent provocateur class kicked up a fuss over the state’s restrictions. Ms Cotterill was no exception.

On 13 September 2020, while out exercising during a lockdown, she carried a sign which read “toot to boot” Commissar Dan Andrews. She was given an infringement notice. Exercising, permitted. Protesting… not so much. She contended before the court that the relevant health directions were an impermissible infringement on the implied freedom of political communication found in the Constitution.

The VSC gave the boot to the arguments advanced by Ms Cotterill. Despite being a “significant obstacle” to political activity, quoting the HCA’s Palmer, the Court noted that the importance of the protection of health and life justified the severity of the measures.

The COVID-19 years challenged the public and vexed the bench with a wild and woolly start to the 2020s. Cross your fingers, touch wood, get vaxxed, and strap in – money’s on the legal oddities are bound to continue throughout the decade.

The Hearsay: Soapbox is an add-on to Hearsay: The Legal Podcast, a CPD resource for Australian lawyers. Hearsay allows solicitors and barristers to obtain their CPD points when convenient to them.

By: Alexander Ross Davis, Producer, Hearsay: The Legal Podcast