TODAY ~ The trial in the matter of Kerry Cotterill v Finn Romanes (in his capacity as the Deputy Public Health Commander) and Brett Sutton (in his capacity as Chief Health Officer)
The trial will be heard before the Honourable Justice Richard Niall of the Supreme Court of Victoria from Thursday, July 29 and is estimated to run for three days. The plaintiff (Ms Cotterill) was issued with an infringement under the Stay at Home Directions (Restricted Areas) (No 14). This matter concerns an application by Ms Cotterill that the Stay at Home Directions (Restricted Areas) (No 14) were outside the powers granted under the Public Health and Wellbeing Act 2008 (Vic) on the basis they infringe the implied freedom of political communication in the Australian Constitution.
Constitutional freedom of political communication
- The Constitution protects communication about government or political matters through the implied freedom of political communication. Legislation will offend against this freedom, and therefore be unconstitutional and invalid, if it imposes a disproportionate burden on the freedom of communication about government or political matters in its terms, operation or effect (see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520).
- The concept of ‘government or political matters’ is broad and includes ‘discussion of matters at State, Territory or local level’ as well as social and economic features of Australian society generally, as long as they may affect people’s choices in federal elections or in voting to amend the Constitution (Hogan v Hinch (2011) 243 CLR 506;  HCA 4  (French CJ), citing Lange v Australian Broadcasting Corporation (1997) 189 CLR 520).
- The High Court has developed a two-stage test for assessing the validity of a law which burdens the implied freedom of political communication. First, the court must examine whether the purpose of the law is compatible with the Australian system of representative government. Second, the court must examine whether the burden is proportionate, in the sense that it is suitable, necessary and adequate in the balance (McCloy v New South Wales (2015) 325 ALR 15;  HCA 34 (French CJ, Kiefel, Bell and Keane JJ); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520;  HCA 25).
- The proportionality test which applies in relation to the constitutional freedom does not necessarily operate in the same way as the internal limitations clause in s 15(3) and the general limitations clause in s 7(2) of the Human Rights Charter. Each test operates according to its own factors, and within a different context.
- The Charter right to freedom of expression in s 15(2) overlaps to some extent with the implied freedom of political communication under the Constitution, although it cannot be used as a ground on which to invalidate legislation.
- However, the right to freedom of expression has a broader scope than the implied freedom of political communication. The Charter right is an individual right, which protects against any kind of interference with the expression of ideas and information. The implied freedom of political communication is not an individual right, but is a constitutional restriction on legislative power (see, eg, McCloy v New South Wales (2015) 325 ALR 15; HCA 34  (French CJ, Kiefel, Bell and Keane JJ)).
- Additionally, section 15(2) of the Human Rights Charter protects the expression of ideas and information of all kinds; it is not limited to political communication.
In 1992 in Australian Capital Television Pty Ltd v Commonwealth the High Court struck down the Political Broadcasts and Political Disclosures Act 1991 (Cth) which restricted political advertising on the electronic media during Federal, State, Territory and local elections. In doing so, it recognised that the Australian Constitution contains an implied freedom to discuss political matters. This freedom was primarily derived from sections 7 and 24 of the Constitution, which respectively provide that the members of the Senate and the House of Representatives 'shall be ... directly chosen by the people'. As federal laws passed under section 51 of the Constitution are passed 'subject to this Constitution', such laws are invalid if they infringe the implied freedom.
The matter is being streamed live from the Supreme Court website for 3 days.