Falconer v Chief Health Officer - [2022] WASC 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FALCONER -v- CHIEF HEALTH OFFICER [2022] WASC 3
CORAM:   ALLANSON J
HEARD:   23 DECEMBER 2021
DELIVERED          :   12 JANUARY 2022
PUBLISHED           :   12 JANUARY 2022
FILE NO/S:   CIV 2286 of 2021
BETWEEN:   BEN FALCONER
Applicant
AND
CHIEF HEALTH OFFICER
First Respondent
THE STATE OF WESTERN AUSTRALIA
Other Party

Catchwords:

Judicial review - Practice and procedure - Where first respondent made Directions that unvaccinated workers must not enter or remain at a WA Police facility - Where applicant unvaccinated - Whether Directions outside the powers conferred on the first respondent under the Public Health Act 2016 (WA)

Practice and procedure - Where respondents applied for summary determination of application in whole or in part - Whether applicant has no reasonable prospects of success on all or part of application - Turns on own facts

Legislation:

Public Health Act 2016 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 5(2)(j)

Result:

Grounds 1a, 1b, 1c, 1h, 4 and 5 dismissed
Applicant to provide full particulars of the basis on which he alleges the Directions are legally irrational
Respondents' application otherwise dismissed

Category: B

Representation:

Counsel:

Applicant	:	S Prince SC & B Tomasi
First Respondent	:	K Pettit SC & B Nelson
Other Party	:	K Pettit SC & B Nelson

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Other Party	:	State Solicitor's Office

Case(s) referred to in decision(s):

Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318
Falconer v Commissioner of Police [2021] WASC 481
Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350
Kassam v Hazzard [2021] NSWCA 299
Kassam v Hazzard [2021] NSWSC 1320
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285
Public Service Board (NSW) v Osmond [1987] HCA 7
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480

ALLANSON J:

Introduction

The applicant, Ben William Falconer, has brought an application for judicial review in which he challenges the validity of Directions issued on 12 November 2021 by Dr Andrew Robertson, the Chief Health Officer, pursuant to the Public Health Act 2016 (WA).
The State of Western Australia is named as the second respondent.
By chamber summons filed 17 December 2021, the respondents applied under O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA) for summary determination of the application and a related application[1] to which the Commissioner of Police is the respondent. Under that rule, proceedings for judicial review may be dismissed wholly or in part on the ground that they have no reasonable prospect of succeeding.
[1] CIV 2308 of 2021.
In these reasons, references to legislation are to the Public Health Act, unless otherwise stated.

The evidence

In support of the applications for summary determination, the respondents relied on the evidence filed in an application for interlocutory relief in the related proceedings. The evidence before me on this application comprised an affidavit of the applicant, sworn 15 December 2021, and affidavits of Luke Francis George Swanson, legal practitioner, sworn 21 and 23 December 2021, together with the following affidavits read by the respondents:
(1) Colin John Blanch, Assistant Commissioner, sworn 16 December 2021;
(2) Kylie Maree Whiteley, Assistant Commissioner, sworn 16 December 2021;
(3) Emily Jane O'Keefe, legal practitioner, affirmed 15 December and 22 December 2021.
I summarised the background facts in my earlier decision on the application for an interlocutory injunction and I will not repeat them here.[2]
[2] Falconer v Commissioner of Police [2021] WASC 481 [12] - [29].
The respondents' application was brought on quickly, in circumstances where evidence and argument were limited. While there is a body of evidence before the court, the applicant has foreshadowed further evidence, possibly expert evidence, as a well as a request for discovery.

The Directions

The Directions are titled WA Police Force Worker (Restrictions on Access) Directions and provide, relevantly:
The World Health Organization declared COVID-19 a pandemic on 11 March 2020.
On 23 March 2020, the Minister for Health declared a public health state of emergency with effect from 1.30 pm on 23 March 2020 in respect of COVID-19 pursuant to section 167 of the Public Health Act 2016 (WA) (Act). On 22 September 2021, the Minister for Health declared a further public health state of emergency with effect from 4.25 pm on 22 September 2021 in respect of COVID-19 pursuant to section 167 of the Act. The public health state of emergency applies to the State of Western Australia.
I, Dr Andrew Robertson, the Chief Health Officer, authorised as an emergency officer under section 4 of the Act to exercise any of the emergency powers while the public health state of emergency declaration in respect of COVID-19 is in force, consider it reasonably necessary to give the following directions to all persons in Western Australia to prevent, control or abate the serious public health risk presented by COVID-19 pursuant to sections 157(1)(e), 157(1)(k), 180 and 190(1)(p) of the Act.
PREAMBLE
1. The purpose of these directions is to put in place some measures to address the unique risks posed by COVID-19 from the WA Police workforce for the purpose of preventing the spread of COVID-19 to vulnerable groups and the general community in Western Australia and to ensure that the WA Police Force can continue to provide critical services to the community.
CITATION
2.These directions may be referred to as the WA Police Force Worker (Restrictions on Access) Directions.
COMMENCEMENT
3. These directions come into effect upon signing.
DIRECTIONS
Access Restrictions Applying to WA Police Force Workers
4. Subject to paragraphs 5 and 6:
(a) on and from 12:01am on 1 December 2021, a person who is a WA Police Force worker[3] must not enter, or remain at, a WA Police facility[4] if the WA Police Force worker has not been partially vaccinated against COVID-19; and
[3] WA Police Force worker is defined, relevantly, to include a police officer appointed under the Police Act 1892 (WA) to be a member of the Police Force of Western Australia.
[4] WA Police facility is defined to mean 'any premise owned, leased or operated by the WA Police Force where a police or police-related service is delivered…including but not limited to a vehicle, vessel or aircraft'.
(b)on and from 12:01am on 1 January 2022, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been fully vaccinated against COVID-19, unless the person is present at the WA Police facility solely in a capacity other than as a WA Police Force worker.
General Vaccination Requirements
5. Where only part of premises are being used as a WA Police facility, nothing in these directions prevents a WA Police Force worker who does not meet the requirements of paragraph 4 from entering that part of the premises which is not being used as a WA Police facility.
6. Nothing in these directions prevents a person who is not vaccinated against COVID-19 from entering any part of a WA Police facility for the purposes of:
(a) performing a statutory duty arising under a law of the Commonwealth that cannot reasonably be performed other than by entering the WA Police facility;
or
(b) performing any function or duty or exercising any right or power under a Fair Work entry permit issued by the Fair Work Commission under the Fair Work Act 2009 (Cth) or a Work Health and Safety entry permit issued by the Fair Work Commission under the Work Health and Safety Act 2011 (Cth) or a right of entry permit issued by the Registrar of the Department of the Registrar, Western Australian Industrial Relations Commission under the Industrial Relations Act 1979 (WA);
(c) responding to an emergency where the emergency response is required to be provided immediately and a fully vaccinated or partially vaccinated person is not available to provide the response; and
to the extent that a WA Police Force worker enters a WA Police facility for any of the purposes in paragraphs (a) to (c) then the WA Police Force Worker is an exempt person at any time and for so long as they enter or remain at WA Police facility for that purpose.
7. A WA Police Force worker must provide evidence in the form approved by the Chief Health Officer of their vaccination status for inspection, recording and retention of a copy if:
(a) directed to do so by an emergency officer or a nominated officer; or
(b) required to do so by their employer or by the WA Police.
8. The employer or the WA Police must:
(a) take all reasonable and lawful steps to:
i. collect and maintain a record of the vaccination status of each WA Police Force worker; and
ii. only roster on, or otherwise permit to work in a WA Police facility, a WA Police worker who is vaccinated or is an exempt person in accordance with these directions;
(b) on request, provide any record of the kind referred to in paragraph 8(a)i, that the employer or the WA Police has collected and maintained to an emergency officer or nominated officer as soon as practicable after the request is made; and
(c) not use or disclose any record of the kind referred to in paragraph 8(a)i. except:
i. as provided for in this paragraph 8; or
ii. as permitted or required by law, including any law of the Commonwealth; or
iii. for the purpose of ascertaining compliance with any employer or WA Police direction restricting entry to a WA Police facility; or
iv. to the extent that the person expressly provided the person's vaccination status for a purpose other than for the purposes of these directions; and
(d) take reasonable steps to protect any record it holds of the kind referred to in paragraph 8(a)i from:
i. misuse and loss; and
ii. unauthorised access, modification or disclosure.
9. A person who is required to provide evidence of their vaccination status under paragraph 7 or a record of the kind referred to in paragraph 8(a)i under paragraph 8(b) must only provide that evidence or a record that is true and accurate.
INTERPRETATION
10. Unless specified otherwise, any reference in these directions to any other direction made by the Chief Health Officer is deemed to be a reference to that direction as amended or replaced from time to time.

The Directions include definitions and a table of exemptions.

The Chief Health Officer's advice to the Premier

Administrative decision‑makers are under no general law obligation to give reasons, absent a statutory requirement or some exceptional circumstance.[5] The applicant points to nothing in the Public Health Act which would impose an obligation on an emergency officer to give reasons for making a direction.
[5] Public Service Board (NSW) v Osmond [1987] HCA 7; (1986) 159 CLR 656; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [43].
The absence of detailed reasons does not prevent review but does make it harder to establish an evidential foundation for any inference that there was a failure to have regard to a particular consideration.
In the present case, the applicant must rely on the terms of the Directions except to the extent that inferences may be drawn, from other admissible material, such as contemporaneous documents that may be admitted as part of the res gestae, or admissions by the Chief Health Officer as to his reasons.
For the purposes of this application, the parties proceeded on the basis that the Chief Health Officer's letter of advice to the Premier, dated 19 October 2021, can be regarded as setting out considerations that guided his decision. The letter is, however, not a statement of reasons. As advice by a senior advisor to the Premier of the State, which counsel for the applicant described accurately as 'at a very high level of abstraction',[6] it cannot be scrutinised as though it were a statement of reasons.
[6] Transcript 23.12.21, 44.
In that letter, the Chief Health Officer discussed the position of various occupational groups, including border control and air transport workers, aged care and community care workers, and the WA Police Force.
In this context, the Chief Health Officer made statements which include those to which the applicant refers in his grounds:
[D]ue to the WA Police Force comprising a very large workforce, their close interaction with the community, the unpredictable nature of the work they do, their interaction with vulnerable communities and the broader public health impact of that work, there is a strong public health benefit to mandating COVID-19 vaccination for the entire workforce. The public health benefits of vaccination in this group are two-fold. The WA Police Force, through the nature of their work, are at a high risk of exposure and/or transmission of COVID-19 between their workers and member of the community, some of which are extremely vulnerable. The protective measure of PPE and physical distancing cannot always be adequately applied in situation that are uncontrolled and unpredictable, such as that which can occur in the line of police duty, including responses to accidents, protests and other incidents. As with on non-health workforces who are unaccustomed to wearing PPE, the risks of PPE failure in this workforce, particularly with prolonged use, is increased. Vaccination of the remaining WA Police Force staff will reduce the risk of this workforce from becoming infected, developing serious illness as the result of COVID-19 and further spreading the disease to vulnerable groups and the general community. Secondly, the WA Police Force represents a workforce that is critical to the functioning of our society, particularly at a time when there is a global pandemic and WA remains in a prolonged State of Emergency.[7] (emphasis added)
[7] Affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40, p 106.
Those comments are part only of a longer and more detailed document. In 10 pages of advice, the Chief Health Officer identified the following as good public health grounds for mandating COVID-19 vaccination in those workforces:
(a)the serious public health risk, referring to global figures on infections and deaths, compared to Australia which had been 'relatively protected due to effective public health measures';
(b)the outbreaks in the preceding four months in other Australian states;
(c)the evidence of long term consequences in those who survive even mild disease and the possible grave future public health problem;
(d)the current position in Western Australia where the main source was persons arriving from other states or international arrivals, and the need to prioritise workers, including those at borders;
(e) the Delta strain which had proved significantly more contagious and with more severe outcomes, with those not fully vaccinated at most risk;
(f)the evidence of the effectiveness of the three vaccines;
(g)the safety and effectiveness of the vaccines; and
(h)whether the mandating of vaccine was proportionate, referring to the minimisation of restrictions on individuals and the expected advantages of the 'more coercive policy'.
He continued:
Although voluntary compliance by these workers would be preferable to mandates, the inconsistent uptake of the vaccines leaves me… with limited options. Unvaccinated workers in settings in which exposure is likely, and/or the propensity for outbreaks is high, and/or where vulnerable people may be inadvertently exposed to COVID-19, can cause tremendous harm.[8]
[8] Affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40, p 109.
The Chief Health Officer then referred to whether a mandate would be lawful, and reasonable by reference to the nature of the workplace (for example, the extent of public contact), the extent of community transmission in the relevant location, and the likely close contact with vulnerable populations.
Further considerations included the identification of 'critical workforces where consideration would be given to allowing them to continue work in a lockdown or period of restrictions, but only if all staff working are fully vaccinated …[to] decrease transmission risks and prevent impact on delivery of critical services'.[9]
[9] Affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40, p 110.
The approach taken to mandatory vaccination was stated in these terms:
In developing Directions under the Public Health Act 2016, the preferred option is that unvaccinated workers not be allowed to enter or work in their workplaces where, in their roles, they may encounter exposed members of the public or work in roles that requires direct contact with the public in situations in which other preventive measures cannot easily be taken. The still allows choice by the individual not to take the vaccine, but may require them to seek other employment. This approach to mandating the vaccine is proportionate to the risk, the efforts made to encourage the voluntary uptake of the vaccine and the benefits achieved.[10]
[10] Affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40, p 110.

The application for review

The application contains five numbered grounds, although with multiple sub-grounds and alternatives:
1. The Public Health Act on its proper construction does not authorise the making of the Direction in that:
(a)The Direction is not made for emergency management purposes within the meaning of s 180 and/or s 190 of the Act; and/or
(b) The Direction has not been exercised in circumstances where there is a serious public health risk to which the authorisation relates for the purposes of s 156 (2) of the Act; and/or
(c)The Direction is not a direction within the meaning of sections 157(1)(e), 157(1)(k), 180 and 190(1)(p) of the Act; and/or
(d)The making of the Direction failed to take into account a mandatory relevant consideration, namely, the precautionary principle; and/or
(e)The making of the Direction failed to take into account a mandatory relevant consideration, namely, the principle of proportionality; and/or
(f)The Direction is disproportionate to the stated purpose of the decision maker in making the Direction; and/or
(g)The making of the Direction involved an irrelevant consideration, namely the rights and liabilities of the Second Defendant as an employer of WA Police Force Workers; and/or
(h)The Chief Health Officer is not an authorised officer or an emergency officer within the meaning of the Act for the purposes of sections 157(1)(e), 157(1)(k), 180 and 190(1)(p) of the Act.
2. Further and in the alternative, the Direction is ultra vires the Act in that it is legally irrational.
3. Further and in the alternative, in making the Direction, the Chief Health Officer took into account irrelevant considerations and/or misconstrued the stated test for the purposes of s 152(1) and s 180 of the Act as set out in his letter to the Premier dated 19 October 2021 namely 'the strong public health benefit to mandating COVID-19 vaccination for the entire workforce' of the WA Police; and/or the function of workplaces 'themselves critical to the functioning of our society'.
4. Further and in the alternative, the Chief Health Officer failed to take into account a relevant consideration(s) for the purposes of s 152(1), s 157(1)(e) and (k), s 180 and/or s 190 (1)(p) of the Act, as set out in his letter to the Premier dated 19 October 2021 namely whether the Direction was for:
(a)The 'purposes of preventing, controlling or abating a serious public health risk' within the meaning of s 152(1); and/or
(b)a person to take action that he considered reasonably necessary to 'prevent, control or abate the serious risk to public health'; and/or
(c)'Emergency management purposes' within the meaning of ss 177, 180 and 190 of the Act; and/or
(d)a proportionate measure having regard to whether the vaccination mandate would only be relevant to a small number of employees who would not voluntarily be vaccinated and/or were conscientious objectors to vaccination and/or vaccination mandates.
5. Further and in the alternative, the Direction is not authorised by the Act in that it has the effect of making a direction which may only be made under s 157(1)(j) and given effect in accordance with s 158 of the Public Health Act 2016 (WA).

The substantive relief sought by the applicant includes:
1.a declaration that the Direction is invalid;
2.a permanent injunction restraining the State of Western Australia, from taking any steps under the Direction.

Order 56 r 5(2)(j) and the power to summarily dismiss

Order 56 r 5(2) sets out things that the court may do on an application for judicial review. The 12 paragraphs of r 5(2) include interlocutory matters as well as the power to grant or refuse the application including by granting a remedy other than the remedy applied for.
Paragraph (j) gives the court power to refuse the whole or part of the application 'if it has no reasonable prospect of succeeding'.
The principles to be applied where a respondent applies for an order that that the court refuse an application under O 56 r 5(j) were discussed by Quinlan CJ in Goldrange Pty Ltd v Western Australian Planning Commission[11] and Prichard J in Coast Ward Ratepayers Association (Inc) v Town of Cambridge.[12]
[11] Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 [6] - [9].
[12] Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 [66] - [70].
In particular, Quinlan CJ referred to the observations of Hayne, Crennan, Keifel, and Bell JJ in Spencer v The Commonwealth[13] on the power in s 31A of the Federal Court of Australia Act 1976 (Cth). Pursuant to that section, the court may give judgment if satisfied that a party has no reasonable prospect of successfully defending or prosecuting a proceeding or part of a proceeding. Their Honours said:
… full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is 'no reasonable prospect' of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to 'no reasonable prospect' can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase 'just and equitable' when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[14]
[13] Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.
[14] Spencer v Commonwealth [60].
While there are issues which are not readily amenable to summary determination, there are significant issues in this case which turn on the construction of the Public Health Act. Even disputed issues of construction can be determined in this application if the court is satisfied that the applicant advances a construction that cannot be accepted, and grounds dependent on that construction accordingly have no reasonable prospect of success.
I should, however, exercise caution in relation to grounds which have, or may have, a significant factual component. The applicant has not filed all of his evidence and the urgency with which this matter was brought on did not permit all evidence to be adduced.

The legislative context

The Directions[15] are made under the Public Health Act, and their validity is to be determined by reference to the terms of that Act.
[15] The applicant referred to 'the Direction' (in the singular). I have used the plural, consistently with the title of the Directions issued by the Chief Health Officer.
The Act is, by its long title, 'to protect, promote and improve the health and wellbeing of the public of Western Australia and to reduce the incidence of preventable illness, and for related purposes'.
Section 3(1) sets out the objects of the Act, including:
(a) to promote and improve public health and wellbeing and to prevent disease, injury, disability and premature death; and
(b) to protect individuals and communities from diseases and other public health risks and to provide, to the extent reasonably practicable, a healthy environment for all Western Australians; and
(c) to promote the provision of information to individuals and communities about public health risks; and
…
(e) to provide for the prevention or early detection of diseases and other public health risks, and certain other conditions of health; and
(f) to support programmes and campaigns intended to improve public health…
Section 3(2) requires that, in pursuit of those objects, regard must be had to five principles and gives content to each of those principles. Relevantly, it sets out the following principles:
1. Sustainability principle
(1) Sound public health practices and procedures should be adopted as a basis for sustainability for the benefit of all people and the community today, while consideration is given to the public health, social, economic and environmental needs of future generations.
(2) Public health, social, economic and environmental factors should be considered in decision-making, with the objective of improving community wellbeing and the benefit to future generations.
(3) Public health practices and procedures should be cost effective and in proportion to the significance of the public health risks and consequences being addressed.
2. Precautionary principle
(1) If there is a public health risk, lack of scientific certainty should not be used as a reason for postponing measures to prevent, control or abate that risk.
(2) In the application of the precautionary principle, decision-making should be guided by —
(a) a careful evaluation to avoid, where practicable, harm to public health; and
(b) an assessment of the risk-weighted consequences of the options.
3. Principle of proportionality
(1) Decisions made and actions taken in the administration of this Act to prevent, control or abate a public health risk should be proportionate to the public health risk sought to be prevented, controlled or abated.
(2) In the application of the principle of proportionality, decision-making and action should be guided by the aim that, where measures that adversely impact on an individual’s or business’s activities or a community’s functioning are necessary, measures that have the least adverse impact are taken before measures with a greater adverse impact.

The Chief Health Officer

By s 11, the Minister must designate a person as Chief Health Officer. That person must be a departmental officer and a medical practitioner. The Minister must be satisfied that the person has appropriate qualifications and experience in public health.
The functions of the Chief Health Officer are set out in s 6, and include to provide advice or recommendations to the Minister or any other person or body on matters relevant to public health, and to perform the functions conferred on the Chief Health Officer under the Act.
The Act provides for the performance of specified functions by an emergency officer or an authorised officer. Both terms are defined.
By s 4, the term 'emergency officer' is defined to mean the Chief Health Officer or an authorised officer or other person who is authorised by the Chief Health Officer under s 174(2).
By s 4(2):
A reference in a provision of this Act to an authorised officer —
(a)is a reference to a person who is an authorised officer by virtue of a designation under section 24, but (except in a provision listed in the Table) only if that designation has effect for the purposes of the provision in which that reference occurs; and
(ab) includes a reference to the Chief Health Officer; and
(b) includes a reference to an authorised officer exercising powers as an emergency officer.

Serious public health risks

Part 3 of the Act imposes a general duty on a person to take all reasonable and practicable steps to prevent or minimise any harm to public health that might foreseeably result from anything done or omitted to be done by the person. Failure to comply does not of itself give rise to any right or remedy or constitute an offence, but may constitute grounds for action to be taken under the Act.
Part 4 deals with serious public health risks and material public health risks. A serious public health risk, under s 4(1):
(a) means a public health risk involving potential harm to public health that is irreversible, of a high impact or on a wide scale; and
(b) includes a public health risk declared by the regulations to be a serious public health risk; but
(c) does not include a public health risk declared by the regulations not to be a serious public health risk.
'Risk' is not defined. The use of the term in the definition of 'serious public health risk', in combination with the term 'potential harm', indicates that the legislature was concerned with the chance of harm occurring. That is also consistent with the object, in s 3, of 'prevention or early detection of diseases and other public health risks', and the precautionary principle and the principle of proportionality which refer to prevention and avoidance of harm.
Part 11 provides for serious public health risk incident powers. Section 152 provides that the Chief Health Officer may, 'for the purposes of preventing, controlling or abating a serious public health risk, authorise an authorised officer to exercise any of the serious public health risk incident powers'. Those powers are in addition to and do not limit the powers conferred on an authorised officer under pt 16.
By s 156, a person may exercise a power conferred on an authorised officer under pt 11, div 2, if authorised by the Chief Health Officer to exercise the power under s 152(1) and if the serious public health risk has arisen and while it continues.
The serious health risk incident powers are set out in s 157(1) and include the power to direct any person to enter, not to enter, or to leave any premises; [16] to direct any person to undergo medical observation medical examination or medical treatment or to be vaccinated, as specified by the officer;[17] and, by s 157(1)(k):
… take, or direct another person to take, any action that the authorised officer considers is reasonably necessary to prevent, control or abate the serious public health risk.
[16] Section 157(1)(b).
[17] Section 157(1)(j).
A direction under s 157(1)(b), (j) or (k) may be given to a class of person or in respect of a class of premises.[18] It need not be given directly to the person to whom it applies but must be published in the manner the Minister considers suitable in the circumstances of the serious health incident.
[18] Section 157(4).
A direction under s 157(1)(j) may be enforced under s 158. The Directions do not, however, require enforcement under s 158 as they do not direct any person or class of persons to be vaccinated. The directions operate by prohibiting certain conduct by WA Police Force workers who are not vaccinated.
By s 161, an authorised officer exercising serious public health incident powers may be assisted, including by a police officer.[19] That is one of many references to the police in the Act. Significantly, the Police Force of Western Australia is a public authority,[20] and by s 166 may be given a role or responsibilities under a public health emergency management plan.

Public Health Emergencies

[19] Police officers are also conferred powers exercisable during a public health state of emergency: s 195.

[20] As defined in s 4(1).

Part 12 provides for a public health state of emergency.
By s 167, the Minister may, in writing, declare that a public health state of emergency exists in the whole of the State or in any area or areas of the State. The declaration may only be made if the Minister has considered the advice of the Chief Health Officer, is satisfied that a public health emergency has occurred, and is satisfied that 'extraordinary measures are required to prevent or minimise loss of life or prejudice to the safety, or harm to the health of, persons'.[21]
[21] Section 167(2).
A public health state of emergency remains in force until the end of the sixth day after the day on which it first has effect,[22] but may be extended and further extended for periods of up to 14 days.[23] It was not in dispute that the Minister declared a public health state of emergency on 22 September 2021, in respect of the whole State, and that declaration was extended for periods of 14 days on each of 28 September, 11 October, 25 October, 8 November, 19 November, and 3 December 2021. No challenge has been made by the applicant to the declaration of a state of emergency.
[22] Section 168(b).
[23] Section 170.
For the purposes of emergency management during a public health state of emergency,[24] the Chief Health Officer may authorise persons specified in s 174(2) to exercise emergency powers while the public health state of emergency declaration is in force. A person so authorised is an emergency officer as defined in s 4(1).
[24] See s 177.
By s 175(4):
The emergency powers conferred on an authorised officer by an authorisation under subsection (2) are in addition to, and do not limit —
(a) the powers conferred on the person as an authorised officer under Part 16; or
(b) the powers the person may have under another written law or other law.
Section 174(5) requires an enforcement agency to prepare and maintain a list of those persons who are emergency officers 'as a result of being authorised under subsection (2)'.
By s 175, an authorisation under s 174(2) must state certain matters, including 'the powers that may be exercised under the authorisation'.[25]
[25] Section 175(e).
The applicant argued that the Chief Health Officer is not an emergency officer for the purposes of the Directions. The argument was based in s 178, which provides:
A person may exercise a power conferred on an emergency officer under this Division if the person is authorised by the Chief Health Officer to exercise the power under section 174(2).
The applicant submitted that because s 178 provides that a person may exercise a power conferred on an emergency officer under pt 12 div 5 'if the person is authorised by the Chief Health Officer to exercise the power under s 174(2)', the Chief Health Officer may only exercise such a power if he has authorised himself to do so. That is, for the purposes pt 12 div 5, s 178 'narrows the meaning of "emergency officer" to mean an emergency officer as specifically authorised by the [Chief Health Officer]'.
The argument is without merit. It reads s 178, which is clearly a facilitative provision with respect to the powers that may be exercised by those persons who are authorised by the Chief Health Officer under s 174, as limiting or denying to the Chief Health Officer his statutory role as an emergency officer unless he authorises and specifically confers power on himself. The reading advanced by the applicant would construe s 178 without regard to the context of pt 12, and the Act as a whole.[26]
[26] The applicant advanced a similar argument with regard to whether the Chief Health Officer is an authorised officer for the purposes of s 157. It is not necessary to consider it as the present matter turns on the powers exercised by the Chief Health Officer as an emergency officer pursuant to pt 12. The argument appears, however, to be subject to similar flaws.
In construing those sections of div 5 which authorise an emergency officer to exercise specified powers, each section should be read as referring to the Chief Health Officer, or a person authorised by him under s 174(2) who may exercise those powers conferred on him by the Chief Health Officer.
The applicant also advanced a limited scope for 'emergency management' and 'emergency management purposes'.
Section 4(1) defines 'emergency management':
emergency management means the management of the adverse effects of a public health emergency, including -
(a) prevention - the mitigation or prevention of the probability of the occurrence of a public health emergency, and of the potential adverse effects of a public health emergency; and
(b) preparedness - the preparation for the response to a public health emergency; and
(c) response - the combating of the effects of a public health emergency, provision of emergency assistance for casualties, reduction of further damage and help to speed recovery; and
(d) recovery- the support of communities affected by a public health emergency in the reconstruction and restoration of physical infrastructure, the environment and community, psychosocial and economic wellbeing;
'Emergency management purposes' is also a defined term - 'the purposes of emergency management during a public health state of emergency'.[27]
[27] Section 177.
Reading s 190, by reference to the various defined terms, it provides that for the purposes of management of the adverse effects of a public health emergency (including prevention, preparedness, response and recovery) during a public health state of emergency declared under s 167, the Chief Health Officer or a person authorised by the Chief Health Officer under s 174(2), may do any of the things set out in s 190 including exercise any power provided for in s 157(1). The powers in s 157(1) include the power to direct another person to take any action that the Chief Health Officer considers is reasonably necessary to prevent, control or abate the serious public health risk.

Consideration

Ground 1

Ground 1 contends that the Directions were not authorised, setting out eight paragraphs which allege legal error.

Ground 1a

Paragraph 1a asserts that the Directions were not made for emergency management purposes. The applicant submits that whether the Directions were made for emergency management purposes is a prerequisite to the exercise of the power in s 190 of the Act. The applicant submits that the conclusion that the Directions were made for some other purpose is apparent from the terms of the direction and the fact that, at the time they were made, there was then no COVID-19 in Western Australia.
The submissions on ground 1a are without merit.
First, emergency management purposes are the purposes of emergency management during a public health state of emergency. By the definitions of public health emergency and emergency management - including prevention and preparedness - the legislature clearly intended to authorise measures to prevent or prepare for events or circumstances that may cause or contribute to serious adverse effects on public health.
Second, a public health state of emergency had been declared and that declaration was in force at the time the Chief Health Officer exercised the relevant powers. That declaration has not been challenged.
Third, in making the Directions as an emergency officer, the Chief Health Officer could exercise any serious public health incident power, including the power under s 157(1)(b).[28] In exercising that power, the Chief Health Officer acted under s 190 and during a declared public health state of emergency.
[28] Section 190(1)(p).
Fourth, the power was expressly exercised 'to put in place some measures … for the purpose of preventing the spread of COVID-19 to vulnerable groups and the general community in Western Australia and to ensure that the WA Police Force can continue to provide critical services to the community'. The terms of the direction, in ensuring that only persons who are vaccinated or exempt, will enter or remain on police premises, is patently adapted to that purpose. The purpose of ensuring the WA Police Force can continue to provide critical services to the community is, on its face, a measure intended to prepare for circumstances where there is community transmission.

Ground 1a has no reasonable prospect of succeeding and should be dismissed.

Ground 1b

The applicant submits that ground 1b is necessary if the power under s 190 was not available. The applicant submits that the ground will involve contested factual matters and should not be dismissed without those matters being fully ventilated.
Even though the applicant says this ground relies on factual matters, because there is no reasonable prospect that the court would find the power in s 190 was not available, the alternative in this ground does not arise. Ground 1b should be dismissed.

Ground 1c

The terms of ground 1c do not obviously correlate with the submissions advanced in support of it. The ground asserts that the Directions are not a direction within the meaning of s 157(1)(e), s 157(1)(k), s 180 and s 190(1)(p). In submissions, the applicant contends that by not identifying s 157(1)(b)[29] as a source of power, the Chief Health Officer did not authorise the exercise of that power.
[29] The power of an authorised officer to direct any person to enter, not to enter, or to leave any premises.
The respondents submit that s 190 is the source of power, and the reference to s 190(1)(p) is sufficient as that section authorises the exercise of any of the powers in s 157, including that in s 157(1)(b). As a matter of construction, the respondents' submission is clearly correct. In the circumstances of a declared public health state of emergency, the Chief Health Officer (as emergency officer) could exercise any serious public health incident power.
Further, the respondents relied on the principle that, if the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.[30] Where the Chief Health Officer acted under s 190, by which he could exercise the powers under s 157, the failure to specify a particular paragraph in s 157 cannot be determinative of the validity of the Directions.
[30] Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 [124]; Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276.
I am satisfied that ground 1c has no reasonable prospect of success and should be dismissed.

Grounds 1d, 1e, and 1f

Grounds 1d and 1e allege failure to take into account, as mandatory relevant considerations, the principle of proportionality and the precautionary principle set out in s 3. The failure to take them into account is apparently to be inferred from the contention that, had regard been had to them, the Directions would not have been made.
The applicant submits that there are two limbs to these grounds. The first is that a requirement that unvaccinated police officers not attend their workplaces cannot have taken these principles into account in circumstances where there is no COVID-19 circulating in Western Australia and other control measures have prevented its spread.
The applicant submits that the second limb will require expert evidence to be adduced to the effect that, if maximum population level vaccine penetration is the goal, a requirement that people be vaccinated in order to keep their employment runs counter to that goal.
The first limb of the applicant's submission depends on the court finding that, notwithstanding the declared public health state of emergency, the Chief Health Officer, if he had regard to the principles in s 3, could not have imposed measures that are not directed to managing or controlling a presently existing spread of the virus in the community, or which go beyond or adopt alternative measures to those that have been effective to date. This submission appears to disregard the purposes of prevention and preparedness in emergency management which the legislation specifically includes.
The second limb is, however, more difficult to address on a summary basis if, as the applicant contends, it is evidence based. The way in which the applicant has expressed his submissions on this application suggest that the evidence may be directed to the merits of the directions, rather than the lawfulness of the conduct in making them. But without seeing the evidence, or even knowing with some precision what questions will be addressed, and the qualification of the proposed expert, I am not satisfied that summary disposal is the proper exercise of the court's discretion on these grounds.
Ground 1f addresses proportionality more directly, contending that the Directions are (or were at the time they were made) disproportionate to their stated aims. The applicant submits, in effect, that the Directions are not rationally connected to the protection of public health because of the effectiveness of border arrangements at the time they were made.
The applicant further submits that the effect of the Directions is to require a relatively small number of people to be vaccinated which will have no effect on the overall vaccination rates. That reading of the Directions appears to assume that they only have effect on those who are not vaccinated. This reading was apparent in the criticism of the letter of advice for setting out 'no analysis of what actual risk these officers pose, what steps could be taken to ameliorate that risk of these particular officers…'[31]
[31] Transcript 23.12.21, 46.
The respondent submits that ground 1f does not fall within any available head of judicial review but accepted that it may be part of the accepted ground of irrationality in ground 2.
The questions of proportionality, and its relationship to legal rationality, and the content of the precautionary principle set out in s 3, have a factual component that make them unsuitable for summary determination when the application was brought on urgently, and not all of the evidence has been put forward. These grounds should be determined after trial.

Ground 1g

It is settled law that 'where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard'.[32]
[32] See Minister for Aboriginal Affairs v Peko-Wallsend Limited(1986) 162 CLR 24, 39 - 40.
Ground 1g alleges that the making of the Directions 'involved an irrelevant consideration'. The applicant submitted that the powers under the Public Health Act must be exercised with regard to the principles in s 3(2). He submitted that taking into account the rights and liabilities of the State as an employer is to act by reference to an irrelevant consideration and is 'antithetical to public health and safety'.
The terms of the direction do not demonstrate any reliance on the rights and liabilities of the State (or any other employer). The factual basis for the applicant's contention (at least as it appeared to the respondents) may be in the statement by the Chief Health Officer, in his advice to the Premier of 19 October 2021,[33] that the Fair Work Ombudsman had advised that employers may be able to require employees to get vaccinated where it is required by law, permitted by an industrial instrument, and lawful and reasonable.[34]
[33] Affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40.
[34] Affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40, p 109.
The applicant's argument on this ground is not clear. If he is contending that it is irrelevant to an exercise of power under s 190 whether the acts directed to be taken would be otherwise lawful and reasonable, the ground could not be upheld.
I do not, however, consider it appropriate to summarily dismiss this ground without trial when it is necessary to speculate about the factual basis for it.

Ground 1h

I have already set out my conclusion on the proper construction of the Act as it affects the contentions in this ground. The ground is based on a flawed reading of the Act in asserting that the Chief Health Officer is not an emergency officer. It has no reasonable prospects of success.

Ground 2

The applicant contends in this ground that the Directions are beyond power in that they are irrational. The applicant submitted that there is a real legal question that should be determined after full argument and that questions of irrationality are 'nuanced'.
This is, apparently, one of the grounds on which the applicant proposes to lead further evidence. It is not possible to assess whether the ground might be upheld unless it is fully particularised.
Ground 2 should not proceed in its present form, and the applicant should give full particulars of the basis upon which he says the Directions are legally irrational. It should not, however, be summarily dismissed.

Ground 3

Ground 3 has two aspects to it: the allegation that the Chief Health Officer took into account irrelevant considerations; and/or the allegation that he misconstrued the stated test for the purposes of s 152(1) and s 180. On this occasion, the applicant gives particulars, referring to two comments in the Chief Health Officer's letter of advice to the Premier of 19 October 2021: 'the strong public health benefit to mandating COVID-19 vaccination for the entire workforce' of the WA Police; and the function of workplaces 'themselves critical to the functioning of our society'.
The letter is evidence that both factors were taken into account, at least in the advice to Premier. The identified comments cannot be taken out of context. First, they were in a letter of advice. Second, the Chief Health Officer did not direct vaccination of all WA Police Force workers but directed the alternative (which he described as the preferred option) that unvaccinated workers 'not be allowed to enter or work in their workplaces where, in their roles, they may encounter exposed members of the public or work in roles that requires direct contact with the public in situations in which other preventive measures cannot easily be taken'. Third, the reference to 'critical workforces' must be understood in light of the advice that certain workforces (including but not confined to the police) had been identified as critical in the sense that consideration would be given to allowing them to continue to work in a lockdown or period of restrictions.
To succeed on the first limb of ground 3, the applicant must demonstrate that those matters are irrelevant, in the sense that reference to them in the advice to the Premier, or reference to them when deciding whether to make the Directions (should that be established), would vitiate the exercise of power.
The applicant submitted little by way of argument to support this ground, submitting, in effect, that the letter of advice to the Premier shows that the matters were taken into account and that they are irrelevant. I am not satisfied that I should dispose of the argument summarily when the applicant's case has not been adequately stated.
The reference to the 'stated test' for the purposes of s 152 and s 180 is obscure. Neither section states a test. Section 152 is directed to the authorisation of persons for the purpose of exercising serious public health incident powers. The challenged Directions do not purport to exercise any power under that section.
The ground may contain an error - intending to refer to s 157 which, with s 180 and 190, was cited in the Directions as the powers to be exercised. I will proceed on the basis that s 157 was intended.
Section 180 sets out powers relating to movement and evacuation of persons, animals and vehicles in the emergency area, and closure of roads, access routes or areas of water. It is not clear that the power was exercised in the making of the Directions. Section 157 was 'picked up' by the exercise of the power under s 190. Both powers may be exercised for emergency management purposes, as defined in s 4(1) and s 177.
Again, there was no sufficient argument on this ground. The applicant did not identify the 'test' to which the ground refers or how it was misconstrued. That, however, may be the result of this matter being brought on and argued, together with the related matter, on an urgent basis.
Ground 3 should be determined following trial.

Ground 4

The Chief Health Officer was exercising a statutory power in making the directions. Every statutory power, however widely expressed, is confined by the subject matter, scope and purpose of the statute.[35]
[35] See, for example, North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 [34] and the cases there cited.
In judicial review, a relevant consideration is one which an administrative decision‑maker is expressly required to take into account in the course of reaching the decision or exercising the power under review, or where the obligation to take it into account arises by implication from the subject matter, scope and purpose of the legislation.[36] The ground of failure to take into account a relevant consideration can only be made out where the person making a decision or performing the relevant act is required to have regard to that consideration.
[36] Minister for Aboriginal Affairs v Peko-Wallsend Ltd 39.
The general position at common law, that the person asserting an issue bears the onus of proof, applies in judicial review proceedings.[37] The applicant must establish a basis for drawing the inferences necessary to make out the alleged error. It is not for the party seeking to affirm a decision to demonstrate, by way of evidence or inference that the decision was regularly reached.[38]
[37] Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 [39]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 [67].
[38] See Minister for Immigration and Citizenship v SZGUR [67] - [68].
The placing of the burden of proof on the applicant may be particularly significant where, as in this ground, it is alleged the decision maker did not have regard to particular matters.
In ground 4, the applicant contends that the Chief Health Officer failed to take into account relevant considerations 'for the purposes of s 152(1), s 157(1)(e) and (k), s 180 and/or s 190 (1)(p)', as set out in his letter to the Premier dated 19 October 2021. Four relevant considerations are specified:
(a)The 'purposes of preventing, controlling or abating a serious public health risk' within the meaning of s 152(1); and/or
(b)a person to take action that he considered reasonably necessary to 'prevent, control or abate the serious risk to public health'; and/or
(c)'Emergency management purposes' within the meaning of ss 177, 180 and 190 of the Act; and/or
(d)a proportionate measure having regard to whether the vaccination mandate would only be relevant to a small number of employees who would not voluntarily be vaccinated and/or were conscientious objectors to vaccination and/or vaccination mandates.
The first matter on which the applicant relies in paragraph 4a arises out of s 152(1). Even if the 'purposes of preventing, controlling or abating a serious public health risk' are arguably considerations to which the Chief Health Officer must have regard in authorising an authorised officer to exercise particular powers, they are not mandatory considerations in the exercise by the Chief Health Officer of his powers as an emergency officer under s 190. Those powers are to be exercised for emergency management purposes.
The consideration in paragraph 4b arises out of the terms of s 157(1)(k), conferring a general power which supplements the specific powers in the preceding paragraphs. It does not, either expressly or by implication, condition the exercise of the powers under s 190 by the Chief Health Officer by specifying a consideration to which regard must be had in any exercise of those powers.
It is not reasonably arguable, having regard to the terms of the Directions and the letter of 19 October 2921, both of which are set out in some detail above, that in making the Directions the Chief Health Officer did not have regard to emergency management purposes. An application for judicial review is not the occasion for a review of whether, having regard to those purposes, the Chief Health Officer took the correct action. Ground 4c is without merit.
The last contention, in ground 4d, conflates two matters: the principle of proportionality and whether (as the applicant contends) the small number of employees who would not voluntarily be vaccinated is a relevant fact.
The principle of proportionality is a matter which conditions the exercise of powers under the Act, in that regard must be had to the principles set out in s 3(2).
The number of employees who would not voluntarily be vaccinated may be a factual matter to which the Chief Health Officer may have regard. And it appears that it will be part of the case the applicant will present on irrationality. But the ground of irrationality and proportionality will be dealt with separately. The factual matter to which ground 4d refers it is not itself something which, by reference to the subject matter, scope and purpose of the Act, conditions the exercise of emergency management powers. To hold otherwise would be to review the merits and not the lawfulness of the Directions.
None of the paragraphs of ground 4, as a separate ground rather than subsumed in the ground of irrationality, has reasonable prospects of success and ground 4 should be summarily dismissed.

Ground 5

Ground 5 asserts that the Directions have the effect of making a direction which may only be made under s 157(1)(j) and given effect in accordance with s 158.
The ground is based on a mistaken premise. A direction under s 157(1)(j) provides lawful justification for acts in its enforcement which would otherwise violate bodily integrity and amount to an assault. The Directions operate by restricting the attendance at WA Police premises of a class of persons who are not vaccinated, and by restricting the WA Police in rostering persons who are not vaccinated.
Restrictions imposed in this manner do not require any act which could amount to an assault. A person in the workforce subject to the direction or restriction may still withhold their consent to vaccination. The use of restrictions on movement, including attendance at place of work, have been found not to infringe the right of bodily integrity or any other recognised common law right.[39] While there are differences in the legislation under which the New South Wales decisions were made, the underlying principle applies despite those differences.
[39] See Kassam v Hazzard [2021] NSWSC 1320; Kassam v Hazzard[2021] NSWCA 299 [95] - [97].
Ground 5 has no reasonable prospects of succeeding and should be summarily dismissed.

Conclusion

The questions of legal irrationality (including arguments based on proportionality of the Directions as a response to COVID-19) have a factual component which makes it inappropriate to dispose of them without trial. Ground 1d, 1e, and 1f and ground 2 should proceed to trial.
Grounds 1g and 3 should also be determined at trial when the arguments in support of them might be more fully stated.
The balance of the application for summary determination will be upheld and grounds 1a, 1b, 1c, 1h, 4 and 5 will be dismissed.
The applicant's case with regard to legal irrationality needs to be better particularised. The applicant will be required to provide full particulars of the basis on which he asserts, in ground 2, that the Directions were beyond power because legally irrational.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
12 JANUARY 2022