By Danielle Kutchel
A Monash University associate professor has dismissed claims by anti-lockdown protestors that Victoria’s lockdown is constitutionally invalid.
A frequent claim by protestors is that Victoria’s stay-at-home rules are inconsistent with s109 of the Australian Constitution.
Protestors – including those who held a stand-off against police in Narre Warren on Sunday 30 May – cite a ‘clash’ between the State and Federal legislation, which they say means the Constitution overrides Victoria’s public health laws.
But Dr Luke Beck, associate professor at Monash University’s Faculty of Law, said that’s not the case.
“The Federal Constitution does have a s109 which deals with cases where there’s an inconsistency or a clash between Federal and State laws – but before that section has any operation, there first has to be some clash between Federal and State laws, and there is no clash or inconsistency between Federal and State laws,” he explained.
“We have a State law at the moment that says we’re in lockdown, but there’s no Federal law that says you can’t be in lockdown or must not be in lockdown, so there’s no clash.
“There’s no constitutional issue here at all.”
He said the Victorian Chief Health Officer (CHO) has broad powers under the State’s Public Health and Wellbeing Act to impose restrictions that are “necessary and proportionate to protect public health in a pandemic” which is “perfectly valid” under the Constitution.
“That doesn’t mean the CHO’s powers are unlimited,” he added, citing last year’s case against the Victorian curfew which saw a café owner and Liberal party member challenge the curfew in the Supreme Court.
That case was dismissed.
Dr Beck said the key to any case would be to prove that the restrictions were disproportionate and/or illegitimate.
In general though, he said sweeping claims of the invalidity of Victoria’s lockdown were “nonsense”.
“There are questions about whether precise restrictions have gone too far, sure, but the anti-vaxxer/anti-mask brigade people saying the whole thing is invalid, that’s just complete and utter nonsense.
“These sorts of general claims that the state has no power over health and they can’t do lockdowns ever, that’s just utter nonsense.”
