A legal challenge to Covid-19 stay-at-home orders brought by a woman who protested against Victoria’s second wave lockdown has been dismissed.
On Tuesday the Victorian supreme court rejected Kerry Cotterill’s case, finding neither the orders nor the Public Health and Wellbeing Act breached the implied freedom of political communication.
The case is the latest in a string of defeats for opponents of coronavirus public health measures, including Clive Palmer’s unsuccessful bid to overturn the Western Australian border ban in the high court and a claim that Victoria’s lockdown breached an implied freedom of movement.
In September 2020 Cotterill received an infringement notice for leaving her house for a non-permitted reason during the extended lockdown.
Cotterill was carrying a hand-drawn sign of premier Dan Andrews’ face with the message “Toot to Boot” and “Ban Dan” written on her face mask. Cotterill claimed that in addition to expressing her political views she left her house to exercise, which is permitted.
The infringement notice was withdrawn, but Cotterill pushed on with a case against Victoria’s deputy public health commander, Finn Romanes, and chief health officer, Brett Sutton.
On Tuesday Justice Richard Niall dismissed Cotterill’s case, finding the act was valid even if it impinged on the right to political communication due to the “legitimate purpose” of preventing the spread of coronavirus.
In the written judgment, Niall referred to the high court’s decision in the Palmer case, which found the border ban was justified by the threat from the pandemic.
Niall accepted that people could leave home for multiple purposes but said the health orders meant “a person may only leave their residence for a permitted purpose or permitted purposes”.
Niall suggested a person could wear a political message provided they left home for a permitted reason such as exercise, but “there is no room for a dual purpose that includes a non-permitted reason”.
Niall said Cotterill’s case had a “false premise” that the public health orders themselves had to be consistent with the implied freedom of political communication but, even if that were correct, he would still reject the challenge.
That is because stay-at-home orders were “consistent with the maintenance of constitutional government”, “rationally connected” to the public health purpose and alternatives were not equally effective, he said.
The Victorian government has sought costs against Cotterill. Niall reserved his decision on costs, adjourning until a further hearing on 15 September.
