This case concerned whether directions given under emergency powers in the Public Health and Wellbeing Act 2008 (Vic) (PHW Act), to address the threat posed by COVID-19, were compatible with the implied freedom of political communication protected by the Commonwealth Constitution.

The plaintiff had left her home in Melbourne and walked while carrying a sign protesting against the government, at a time where directions limited the purposes for which a Melburnian could leave home, which purposes did not include protest. The plaintiff was issued with an infringement notice on the basis that she had not left home for a permitted purpose, though that notice was later withdrawn (giving rise to a question about standing, resolved in the plaintiff’s favour). The plaintiff also wished to engage in future public protests, which were restricted by the rules in the directions restricting gatherings, including outdoor gatherings.

A significant constitutional issue was the level at which compatibility with the implied freedom was to be assessed: should the Court ask whether the relevant provisions of the PHW Act were reasonably appropriate and adapted to advance a legitimate objective, or should the court ask that question with respect to the directions themselves?

The Court of Appeal agreed with the Primary Judge’s view that, consistently with High Court Authority (most recently, Palmer v Western Australia (2021) 272 CLR 505), compatibility with the implied freedom was to be judged at the level of the statute – that is, if the statute had enough checks and balances to render the emergency powers compatible with the implied freedom, then that was the end of the constitutional enquiry. The Court of Appeal also agreed with the primary judge that the relevant powers in the PHW Act were sufficiently calibrated: the emergency powers were available only where a state of emergency had been declared by the Minister for Health in response to a serious risk to public health; the powers could only be exercised at all, even in the context of a declared emergency, if the Chief Health Officer considered it reasonably necessary to do so in order to eliminate or reduce a serious risk to public health; the emergency powers were themselves circumscribed; and administrative action under the Act was susceptible of judicial review, including on the basis of proper purpose, reasonableness, rationality and logicality.

The primary judge had also gone on to consider the compatibility of the directions themselves and found that they were compatible with the implied freedom. The Court of Appeal did not consider it necessary to address that question.