Julian Gerner’s challenge of the lockdown conditions has been rushed to the nation’s highest court, in a bid to change coronavirus policies that could set Australian constitutional precedent.
The Melbourne publican has been seeking the matter be heard as a special case by the full court, questioning the validity and effects of measures taken in Victoria, including the former five-kilometre travel restriction, the stay-at-home order, and permits required for essential workers, all established under emergency power provisions in Victoria’s Public Health and Wellbeing Act.
Gerner’s submissions against the lockdown directions raise questions about an implied freedom of movement by people in the Commonwealth constitution to “move within the state where they reside”.
Once this point is established, the motion can question whether the emergency powers should be allowed under the Health Act, or that the directions were invalid because they “impermissibly burden the implied freedom” – in contradiction to the Constitution.
Following confirmation of Victoria’s current policies, updated early in the week, a brief directions hearing was held on Tuesday to address the first hurdle around implied freedom of movement. Solicitor-General for Victoria, Kristen Walker QC, noted the weight of the claim and indicated the state would be agreeing to certain facts presented to the Court.
“We don’t know the Constitution contains any implied freedom. It is, of course, a novel claim.”
The hearing before Justice Patrick Keane in Brisbane was conducted via video feed of the Melbourne-based lawyers, and Keane recognised the urgency around the matter and need to first resolve the issue of an implied freedom.
“This recognises its importance to the people of Victoria, who are currently enduring the curtailment of their basic freedoms and suffering greatly during this horrendous lockdown,” offered Gerner in a statement on the day.
Michael Wyles, QC, representing Gerner, opted that while the question around implied freedom is significant and broad, the scope of the overall argument is more closely defined.
The submissions note government has already accepted that movement restrictions have imposed mental health issues among citizens, seen in the $60 million for mental health services announced in August to address the mental health impacts of the restrictions.
They also detail how the restrictions have prevented businesses from trading, impacting the viability of businesses such as Gerner’s, subsequently furthering the mental health effects.
Gerner’s Sorrento venue remains closed, even takeaway said to be “not viable” in the climate. It reported 90 per cent reduction in trade during April this year compared to 2019.
The next stage of the hearing is scheduled for 6 November.
