Historical Background – the ‘Freedom cases”
1. Kassam v Hazzard (NSWSC 20211/249601) (“”the Kassam proceedings”’);
2. Athavlle v State of New South Wales (FCA NSD894/2021)
3. Smit v Commonwealth (FCA VID579/2021)
4. Palmer v WA (2021) HCA
5. Cotterill v Romanes
6. Loielo v Giles
7. Gerner v Victoria
Most if not all of these cases failed for a combination of factors. The case of Palmer v WA may go down in infamy for the trickery played by Palmer’s lawyer, QC Dunning. The High Court was exercising its “original jurisdiction” when it accepted Palmer’s matter under s75(iv) (when a resident of one state attacks laws of another state) and 76(i) (a matter arising under the Constitution) of the Constitution. His Constitutional matter stalled (seemingly deliberately) when Dunning was asked several times whether he was challenging the validity of the Emergency Management Act 2005 (WA) on the grounds that it effectively stopped freedom of movement, and therefore breached s92 of the Constitution. Dunning said “no”, he was only challenging the ‘directions’ below the act. That is, he was only challenging the ‘fairness’ of the directions. The High Court essentially lost jurisdiction when this happened. His matter was then effectively dismissed. The tactic used here by Dunning was to make it appear as if he was challenging the legislation, but then undermine his own legal arguments by changing course.
This tactic was then used in Cotterill v Romanes, and again it did the trick. The Supreme Court of Victoria siding with the State, with Niall J saying that the action was doomed from the beginning. And why was that? Because Smith and Tapper lawyers re-used Dunning’s defence (having had an adjournment waiting for the landmark decision to be decided), where Constitutional arguments were raised, but then arguing that the ‘directions below the act were unfair’. This is not how Constitutional arguments work. From Wotton v Queensland (2012) HCA):
French CJ, Gummow, Hayne, Crennan And Bell JJ.
24. Accordingly, this litigation turns upon the restraint imposed by the Constitution upon the legislative power of the Queensland legislature
In Ha v New South Wales (1997) (Also cited in Wong v Cth at p253):
Brennan CJ, McHugh, Gummow and Kirby JJ said at 498 :
“When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates – its practical operation – must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices.”
Here it is made clear. Constitutional protections like s92 operate as a restraint on legislative power (that is, a restriction on the parliament’s ability to pass any law it wants). Constitutional protections do not operate on executive action (that is, on decisions made in the exercise of power like those of the CHO or Qeensland Health to impose mandates).
In Loielo v Giles, which will live in infamy for Leiolo’s lawyer submitting that the Victorian Government’s lockdown measures were all good, but the curfew that directly effected her business, was ‘a bridge too far’. In Loielo, she challenged the curfew made under the Stay at Home directions on the following grounds:
5. Ms Loielo’s challenge to the Curfew Direction commences with the argument that Associate Professor Giles’ decision was made at the direction or behest of the Premier, Mr Daniel Andrews, and was not an independent decision. Ms Loielo also contends that the decision was unreasonable, illogical and irrational in the legal sense. Finally, she contends that the decision unlawfully limited her human rights which are recognized by the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), especially her rights of freedom of movement and to liberty.
These arguments might suffice in regular times when charters of human rights are being adhered to. Having said that, the Court is loathe to rule on such cases and that might be explained again by how Constitutional guarantees operate – that is, as a restraint on legislative power. It says nothing that an individual right might have been violated by an act, and that is how the Courts have ruled.
It is also the reason when Human Rights arguments will not be used. Furthermore, in Victoria at least, all of the lockdown legislation was passed through scrutiny with regards to human rights. Each and every single measure was approved on the basis that since the legislation was appropriate, well adapted and was fit for purpose and proportionate, any human rights violations were deemed acceptable and unfortunately necessary for the good governance of the State.
The other high profile case that addressed lockdowns was in NSW, that of Kassam. Having reviewed this case and others like it including Smit, these cases were argued improperly and the understanding of how Constitutional guarantees operate as ruled again in Palmer, was not heeded. Arguments pertaining to s51(xxiiiA) and s109 (discrepancy of laws) were not fully fleshed out and were easily defeated by the State.
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