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Common(wealth) Knowledge #37: The right to protest versus public health

Updated: Apr 7, 2023

What a new judgment from a Victorian court means.

On February 8th, the Victorian Court of Appeal issued a unanimous judgment upholding the constitutional validity of public health restrictions on the rights of Victorians to gather and protest against the emergency powers of the Victorian government during the Covid-19 pandemic. This decision has reaffirmed that while the right to protest is protected by the implied freedom of political communication, this freedom is not absolute; reasonable restrictions can be made during an emergency.

Since the 1990s, the High Court of Australia has accepted that there is an implied freedom of political communication in the Australian Constitution. This freedom of speech and expression, while not expressly stated in any particular provision of the Constitution, has nonetheless been implied into it. Because Australia, at all levels of government, is a democratic constitutional monarchy, with governments expected to be held accountable by the voters, the implied freedom has been considered to be a right that is fundamental to the operation of the Australian democratic system.

Kerry Cotterill brought a case against the Victorian government in 2020 over the Covid-19 restrictions. In particular, she sought to challenge directions made by Deputy Public Health Commander Finn Romanes and Chief Health Officer Brett Sutton under the Public Health and Wellbeing Act 2008 (Vic) that prevented individuals from leaving their houses unless carrying out one of the few permitted activities, like exercise. Similarly, individuals were restricted from gathering in groups of any number. These directions were issued under Section 200(1)(b) and (d) of the Act.

Kerry Cotterill was served an infringement notice for leaving her house to walk while holding protest signs. This infringement notice was later withdrawn, as she alleged that she was merely engaging in the permitted activity of exercising. In addition to challenging that direction, she challenged the restrictions on gathering, claiming that she could not participate in political discussions and protests. Both were alleged to be violations of the implied freedom of political communication.

The Victorian Supreme Court ruled against her in 2021, which was upheld on appeal in Cotterill v Romanes [2023]. In a relatively short judgment, the three judges outlined their reasons for supporting the trial judge’s decision and rejecting the grounds of appeal.

The court noted the conditions necessary for a state of emergency to be declared. Under Section 3(1), this means there must be a “material risk” to “substantial injury or prejudice to the health of human beings.” Proportionality is built into the Act, meaning that the more dangerous or severe the emergency, the greater the measures that can be taken in response. This is effectively a risk evaluation assessment. In addition, the government had to receive medical advice from the Chief Health Officer, and various conditions were imposed on the orders, like geographic boundaries. The orders had to be reassessed and reissued every four weeks.

The first ground of appeal was that the court ought to examine the particular directions made by the Victorian government. The Court of Appeal agreed with the Supreme Court that this was not the case. Whenever a case involving implied freedom comes up, it is almost guaranteed that the courts will examine the legislation itself. As the Court of Appeal pointed out in paragraph [63], “the implied freedom operates to restrict the scope of legislative power,” and it is Parliament’s job to authorise the executive government to issue the directions, subject to any limitations imposed by Parliament. The restrictions in the Act on when and how the directions can be ordered mean it is not necessary to examine each direction.

The second ground of appeal was whether the legislative provisions “impermissibly infringed the implied freedom.” The test is the one laid down in McCloy v New South Wales (2015). That was explored at length in Common(wealth) Knowledge #26. But, in brief, the first two steps are whether there is a burden, and if so is the purpose of the law legitimate. The Court of Appeal answered both questions in the affirmative. The third step is the ‘structured proportionality’ test, with three parts. This is why the Court of Appeal emphasised earlier the need for proportionality to be built into the legislation.

The first part is whether the law is ‘suitable,’ meaning that it achieves its purpose and has a ‘rational connection to it.’ Kerry Cotterill conceded that the Act had a “legitimate purpose of reducing or eliminating serious public health risks,” and that the measures taken did achieve that purpose.

Cotterill contended, however, that, the provisions were not ‘necessary,’ as there were other ‘obvious or compelling alternatives’ which were reasonably applicable and would achieve the same purpose without imposing as much of a burden. The Court of Appeal pointed out, at [109], that if Cotterill had used the Charter of Human Rights and Responsibilities Act 2006 (Vic), she may have had a better argument on this subject. However, without being directed to consider it by any party, the Court of Appeal could not answer this definitively.

The first alternative put forward were amending the Act to recognise and include consideration of the implied freedom, but at [113] the court didn’t see how this would be successful at achieving the purpose of the restrictions. Likewise, the court rejected the second alternative of adopting stricter limitations on what restrictions can be enacted, because at [114]-[115] they explained how the current model was already stringent. Cotterill suggested adopting some of the requirements found in Western Australia’s equivalent legislation, but the court was of the opinion that Victoria’s was more stringent. For example, Section 198(1) of the Act required a ‘serious risk to public health,’ but the word ‘serious’ was absent from the WA model.

The final part is that the legislation must be ‘adequate in its balance,’ with the need for public health and safety not being outweighed by the burden on the implied freedom. Based on the discussion above, at [117] the court rejected Cotterill’s claim that this requirement was not met. The court affirmed that the implied freedom cannot be limited unless there is a ‘serious risk,’ and even then the limitation was subject to a requirement of proportionality, demonstrating that a need for balance was already met.

Therefore, the court rejected the challenge to the necessity and balance requirements. This meant that the court also rejected the third ground of appeal, that there was an infringement. But how does this stack up against other Covid-19 cases?

A case cited throughout Cotterill v Romanes is the High Court decision in Palmer v Western Australia (2021). In one of many recent cases between Clive Palmer and Western Australia, Palmer challenged the validity of WA’s border closure during Covid-19 for violating Section 92 of the Constitution, which deals with trade and commerce across state borders. He alleged that it violated an implied freedom of movement. The court found that there was no such implied freedom, and even if there was, the Covid-19 measures wouldn’t have violated it. Commenting on the need for some breadth and flexibility in those measures, Edelman J, at [287], said “it might be expected that the loss of that flexibility by provisions involving a lesser burden would prevent Parliament’s purpose being achieved in the same degree.” This followed a High Court ruling the previous year, in Gerner v Victoria [2020], which reached the same conclusion.

However, this does not mean that the right to protest, as part of the implied freedom of political communication, is forfeited entirely during a state of emergency. For example, some Black Lives Matter protests of 2020 have been upheld. When these protests have been carried out by protesters who are masked and complying with social distancing requirements, they have been allowed. This is especially true when the daily case count was lower than it was when Cotterill received her infringement notice in September 2020. This was the case in Commissioner of Police v Gray [2020]. However, when Covid-safe measures were created by protest organisers, but then not enforced, BLM protests have not been treated so kindly, as was the case in Bassi v Commissioner of Police [2020].

The end result of this case is that it’s confirmed that the implied freedom of political communication is not limitless. However, any limitations to it must be proportionate. So it’s no surprise that the infringement notice given to Cotterill for exercising alone outside while wearing a mask and holding political signs, thus complying with the restrictions at the time, was withdrawn.

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Cotterill v Romanes [2023] VSCA 7.

Gerner v Victoria (2020) 270 CLR 412; [2020] HCA 48.

McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34.

Palmer v Western Australia (2021) 272 CLR 505; [2021] HCA 5.


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