Gerner v Victoria [2020] HCA 48

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ

JULIAN KINGSFORD GERNER & ANOR PLAINTIFFS

AND

THE STATE OF VICTORIA DEFENDANT

Gerner v Victoria [2020] HCA 48 Date of Hearing: 6 November 2020 Date of Order: 6 November 2020 Date of Publication of Reasons: 10 December 2020 M104/2020

ORDER

Demurrer allowed with costs.

Representation

B W Walker SC with M D Wyles QC, R F R Pintos-Lopez and S C B Brenker for the plaintiffs (instructed by Hamilton Locke)

K L Walker QC, Solicitor-General for the State of Victoria, with C L Lenehan SC, K A O'Gorman and T M Wood for the defendant (instructed by Victorian Government Solicitor's Office)

J A Thomson SC, Solicitor-General for the State of Western Australia, with J J E Perera for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with K E Dennis for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)

S K Kay with D R Osz for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General (Tas))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Gerner v Victoria

Constitutional law (Cth) – Implications from Constitution – Where directions made under s 200(1)(b) and (d) of Public Health and Wellbeing Act 2008 (Vic) restricted movement of persons within Victoria – Where plaintiffs sought declarations that directions and s 200(1)(b) and (d) of Public Health and Wellbeing Act were invalid as an infringement of a freedom to move wherever one wishes for whatever reason ("freedom of movement") said to be implicit in Constitution – Where defendant demurred on ground that Constitution did not imply freedom of movement – Whether freedom of movement implicit in federal structure of Constitution – Whether freedom of movement protected by implied freedom of political communication – Whether freedom of movement implicit in s 92 of Constitution.