Falconer v Chief Health Officer [No 2] - [2022] WASC 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FALCONER -v- CHIEF HEALTH OFFICER [No 2] [2022] WASC 29
CORAM:   ALLANSON J
HEARD:   27 JANUARY 2022
DELIVERED          :   3 FEBRUARY 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 - Discovery - Leave to adduce expert evidence - Turns on own facts

Legislation:

Emergency Management Act 2005 (WA)
Public Health Act 2016 (WA)

Result:

Leave to adduce expert evidence refused
Orders for discovery

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):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1
Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Brown v Tasmania (2017) 261 CLR 328
Clubb v Edwards (2019) 267 CLR 171
Comcare v Banerji (2019) 267 CLR 373
Independent Commission Against Corruption v Cuneen (2015) 256 CLR 1
Jones v Dunkel (1958) 101 CLR 298
McCloy v New South Wales (2015) 357 CLR 178
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285
Roe v The State of Western Australia [2013] WASC 130
Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559

ALLANSON J:

Introduction

The applicant has applied for orders for discovery in defined categories and for leave to adduce expert evidence at trial.
The respondents oppose orders for discovery and expert evidence, and used the appointment listed to hear those applications to again argue that the action should be summarily dismissed. The court had already heard and determined an application for summary termination of the action. I then held that the remaining grounds of the application should not be dismissed as having no reasonable grounds of success. This is not an occasion to reconsider whether the matter should proceed.
In considering the applications for discovery and leave to adduce expert evidence, the court must consider whether the proposed orders would promote the just and timely determination of the action.[1] The respondents submitted that the proposed trial dates in March cannot be met if the court gives leave for the newly‑filed applications, allows expert evidence and grants the discovery orders sought by the applicant. In particular, it refers to the likelihood of further applications being brought by other groups affected by orders made pursuant to emergency management powers under the Public Health Act 2016 (WA).
[1] Rules of the Supreme Court 1971 (WA), O 1 r 4B.
The court must have regard to the resources available to both parties, and to the court, in managing this litigation. But, to adapt what the Court of Appeal said in relation to sentencing for an offence under the Emergency Management Act 2005 (WA), review of administrative action in times of emergency, such as the COVID‑19 pandemic, does not involve some special category of case in which the law is to be applied differently than in other times. The rule of law remains unaffected and the fundamental principles of judicial review apply.
It would not be in the interests of justice to deny access to procedures that are designed to promote the just determination of litigation if there is a proper basis to order them. Nor, in my opinion, is it necessary to do so.
That is not to say that the existence of a state of emergency is irrelevant. The powers exercised by the Chief Health Officer which are in issue in this matter can only be exercised for emergency management purposes, which are defined as 'the purposes of emergency management during a public health state of emergency'.
The criteria that must be met for the Minister to declare a public health state of emergency under s 167(2) include that the Minister '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'.[2]
[2] Public Health Act 2016 (WA) s 167(2)(c).
A public health state of emergency declaration is of limited duration. While s 170 permits further extensions from time to time, each extension cannot exceed 14 days.[3] It is not in dispute that a public health declaration was in force when the Chief Health Officer made the Directions, and has been extended and remains in force. No one has challenged the declaration of a public health state of emergency or any extension of it.
[3] Public Health Act 2016 (WA) s 170(5).
It is settled law that legislation must be construed in its context and by reference to its purpose. In construing and applying the relevant provisions of the Public Health Act, the court must do so in the context that the Parliament has provided that extraordinary measures may be required.

Discovery and expert evidence in judicial review proceedings

There is no question that the court has the power to make the orders sought, pursuant to O 4A, O 56 r 5(2)(d) and (f) of the Rules of the Supreme Court 1971 (WA). The question is whether, in the exercise of discretion, having regard to case management principles, such orders should be made.
In all proceedings in this court, the extent of the obligation to give discovery and the entitlement to discovery 'will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court and in particular the principles enunciated in O 1 r 4A and r 4B'.[4] The ultimate test is whether the discovery sought is 'essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial'.[5]
[4] Roe v The State of Western Australia [2013] WASC 130 [10].
[5] O 1 r 4A.
Relevance is not the only factor the court must consider in the exercise of its discretion, but it remains a necessary descriptive criterion of what documents should be discovered. To determine whether a class of documents may be relevant, the court would normally consider the pleadings, together with the conduct and admissions of the parties. In an action such as this, there are no issues joined by pleadings. The court must have regard to the grounds of the application for review, including particulars, and, to the extent they can be discerned from the conduct of the parties, the matters of fact that will be in contention.
By O 56 r 6, the rules for discovery in O 26 do not apply in proceedings for judicial review 'unless and to the extent the court, under rule 5(2) or Order 4A gives leave and orders otherwise'. In considering whether an order should be made, the court will have regard to the nature of applications for judicial review, which are concerned with legality of decision‑making and the conduct of decision‑makers rather than the inherent merits of the decisions. But it is not, in my opinion, necessary for the applicant to demonstrate compelling circumstances. The threshold test for discovery in judicial review proceedings - subject to any countervailing discretionary factors - is whether the applicant has a good case, or at least an arguable case, proof of which would be aided by discovery.[6]
[6] Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 [21].
By O 56 r (5)(d), the court may give the applicant leave to file and rely on an affidavit. There is nothing in the rules to limit that power to affidavits that contain non‑expert evidence. The court may give leave to file and rely on an affidavit that contains expert opinion where that opinion is a relevant fact. In relation to an order for leave to adduce expert evidence, having regard to O 1 r 4A and r 4B, the first question is whether that evidence is as to facts that are material to the application.
For both orders sought by the applicant, the court must also ask whether the order is 'essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial'.[7]
[7] O 1 r 4A.
The applicant initially filed a single list of proposed categories of discovery for both this matter and his related action against the Commissioner of Police.[8] He later filed specific minutes for each action. The relevant minute is set out as sch 1 to these reasons.
[8] CIV 2308 of 2021.

The applicant also applied for leave to adduce expert evidence, common to both actions. Before determining whether to grant leave, I required the applicant to provide further information regarding the proposed expert evidence, including the specific questions to be posed for expert opinion. The applicant filed a minute regarding evidence proposed to be led from Professor Daniel Salmon of the Johns Hopkins University. The nature of the proposed evidence, the specific questions to be posed to the expert, and the assumptions which he will be asked to make are set out in sch 2 to these reasons.
Before considering the relevance of the proposed categories of discovery and questions for expert opinion, it is necessary to put them in the context of judicial review. As Brennan J explained in Attorney‑General (NSW) v Quin,[9] the court's function is to adjudicate on the legality of administrative action, not the merits of that action. To the extent that the merits of an administrative act can be distinguished from its legality, they are 'for the repository of the relevant power and, subject to political control, for the repository alone'.[10]
[9] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35 ‑ 41.
[10] Attorney-General (NSW) v Quin, 36.
The scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. That is not to say that the protection of individual interests or rights is irrelevant. For example, in the construction of a statute conferring power, the court will, in an appropriate case, have regard to the principle of legality.[11]
[11] As explained in Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1, 30 ‑ 31 [42]. See also Independent Commission Against Corruption v Cuneen (2015) 256 CLR 1, 27 ‑ 28 [54].
The general position at common law is that the person asserting a fact bears the onus of proof. Subject to any modifying statutory provision, that position applies in judicial review proceedings.[12] The applicant bears the onus of proof in establishing the facts necessary to make out the errors he alleges.[13] It is not for the parties seeking to affirm the decision or the validity of an administrative act to demonstrate, by way of evidence or inference that the decision was regularly reached or the act validly done.[14]
[12] 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].
[13] 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].
[14] See Minister for Immigration and Citizenship v SZGUR [67] ‑ [68].
Where facts are in issue in judicial review proceedings, the civil standard applies. Where the applicant relies on inferences from proved facts, those facts 'must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied'.[15]
[15] Jones v Dunkel (1958) 101 CLR 298, 305.
I accordingly approach the question of discovery from the perspective that the applicant will be required to establish the facts which form the basis of his challenge to the Directions, sufficient to found any inferences on which he relies. As I noted in an earlier decision in this matter, the Chief Health Officer did not, and was not required to, give reasons for making the Directions. The absence of reasons does not prevent review but may make it harder to establish an evidential foundation for the inferences the applicant would have the court draw. 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.

The amended application for judicial review

Following my earlier ruling on the State's application for summary dismissal, the applicant filed an amended application in which he relies on the following grounds:
1.The Public Health Act 2016 (WA) on its proper construction does not authorise the making of the Direction in that:
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.
2.Further and/or in the alternative, the Direction is ultra vires the Public Health Act 2016 (WA) in that it is legally irrational.
Particulars
The Direction is ultra vires the Public Health Act 2016 (WA) in that it is legally irrational on the basis that:
(a)preventing unvaccinated police officers from accessing any police premises is untethered from any risk identified in the Direction;
(b)there was no rational basis for extending the prohibition on the presence of unvaccinated police workers at premises beyond the mission critical areas as prescribed by the WA Police Mission Critical Areas (Restrictions on Access) Directions No 3 when there had been no change to the level of risk to public health to which that Direction had been directed;
(c)there is no rational basis for differentiating between the treatment of access to police premises by unvaccinated police workers with a medical exemption and those unvaccinated police workers who consciously object to consenting to vaccination;
(d)preventing unvaccinated police officers from accessing any and all police premises in the circumstances prescribed is disproportionate to the risk they pose in circumstances where their access to police premises will not materially alter the risk of Covid-19 transmission;
(e)preventing unvaccinated police officers from accessing police premises will not limit the spread of Covid-19 in Western Australia;
(f)a policy which has the effect of linking vaccination status to employment runs counter the goal of achieving maximum possible vaccine penetration in the community; and
(g)it is irrational for the Direction to remain in force in circumstances where there is no ongoing, periodic public health risk assessment which takes into account vaccination rates in the community and the effectiveness of the vaccines against mutations of Covid-19.
3.In making the Direction, the Chief Health Officer took into account irrelevant considerations for the purposes of ss 157(1)(e), 157(1)(k), 180, and 190 of the Public Health Act 2016 (WA), namely:
(a)'the strong public health benefit to mandating COVID-19 vaccination for the entire workforce'; and
(b)the function of workplaces 'themselves critical to the functioning of our society',
in circumstances where providing a strong public health benefit for a particular workforce; nor the control and management of workplaces, is not a relevant consideration for decisions made under the Act.

The categories of discovery

The applicant has related the proposed discovery categories to its grounds of application in this way:
·Category 1 is directed to the matters which the Chief Health Officer took into account in making the Directions, including his consideration of the statutory requirements set out in the Public Health Act 2016 (WA) and relates to Ground 1;
·Category 2 goes to the extent to which the Chief Health Officer considered making the Directions in pursuit of an employee management goal, rather than public health goal, and relates to Ground 3. This clearly arises out of the letter sent by the CHO to the Premier on 19 October 2021;
·Category 3 plainly relates to Ground 3;
·Category 4 goes to Ground 5, and is particularly concerned with the express purpose of the Directions as recorded in their preamble;
·Categories 5 and 6 relate to the rationality of making the Directions when the earlier Mission Critical Directions remained in force, and whether a rational Chief Health Officer would have changed the parameters in the manner the Chief Health Officer did;
·Category 7 simply asks for the express reasons for the making of the Direction, if any exist; and
·Category 8 (relating to ongoing health risk assessment) is said to go to all grounds.
There is no ground 5. The documents in category 4 are apparently related to ground 2, particulars d and e.

Ground 1 and category 1

Ground 1d and 1e allege failure to take into account statutory mandatory considerations, and ground 1g alleges the taking into account of an irrelevant consideration. These grounds clearly have a factual component.
The proposed category of discovery, however, goes beyond documents relevant to the grounds. In part, that is because of the way in which category 1 has been expressed. For documents to be relevant, they must relate to the decision of the Chief Health Officer and his consideration of any relevant or irrelevant considerations. But the fact that a document refers or relates to the Chief Health Officer's consideration is not, in my opinion, sufficient. Bearing in mind evidence will be on affidavit, discovery should be confined to documents from which relevant inferences may be drawn and not extend to documents which, under the traditional test for discovery, might give rise to a line of enquiry.
I will order discovery, but in an amended form (amendments underlined):
All documents, including internal and inter-department correspondence, sent or received by the Chief Health Officer referring or relating to:
1.1.The Chief Health Officer's consideration of:
1.1.1.the precautionary principle as detailed at 2 of the Table to s 3 of the Public Health Act 2016 (WA) (PH Act); and
1.1.2.the principle of proportionality as detailed at 3 of the Table to s 3 of the PH Act,
prior to the Chief Health Officer issuing the WA Police Force Worker (Restrictions on Access) Directions (the Police Directions) on 12 November 2021 and in relation to the issuing of those directions.

The last of the amendments is to make clear that the documents do not include consideration of the relevant principles in other contexts (for example, the issue of other directions).
In ground 1f, the applicant alleges disproportion to the stated purpose of the Chief Health Officer in making the directions. The applicant does not submit that any category of discovery is specifically related to this ground.
I remain unsure of the scope of ground 1f. In response to the respondents' application to summarily dismiss the application, after referring to disproportion as an element or indicator of irrationality, the applicant referred to McCloy v New South Wales(2015) 357 CLR 178, Brown v Tasmania (2017) 261 CLR 328 and Clubb v Edwards (2019) 267 CLR 171 as 'having developed proportionality to the point where there may be scope for its application in the context of executive decision-making'. In the cited cases, and subsequent decisions of the High Court, proportionality has been invoked in determining the validity of legislation which imposes a burden on constitutionally protected freedoms.[16] Proportionality in this sense is concerned not with whether an administrative action is authorised by the statute, but whether the authority conferred by the statute is within the competence of the Parliament. That is not an issue in these proceedings.
[16] See also Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229; Comcare v Banerji (2019) 267 CLR 373.
It is sufficient, for present purposes, that the ground of proportionality cannot be construed as opening the Directions to some form of merit review.
Categories 1.2 and 1.3 are, on their face, directed to the merits of the decision to make the Directions. Further, category 1.2 is directed to consideration of vaccination rates in the community and is not apparently related to any of the paragraphs in ground 1.
I am not satisfied that discovery of documents in categories 1.2 and 1.3 is essential to the fair and just determination of the issues in contention between the parties and the preparation of the case for trial. I am not satisfied that it would be a sound exercise of my discretion to order discovery of either category.

Ground 2 and categories 5 and 6

Ground 2 alleges the exercise of power by the Chief Health Office was outside the power conferred by the Public Health Act because the Directions are legally irrational or unreasonable. The applicant gives seven particulars.
The conditioning of a power with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is a presumption of law that the Parliament intended the exercise of the power to be reasonable.[17]
[17] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [29] (French CJ), [63] (Hayne, Kiefel & Bell JJ), [88] (Gageler J). The power in s 157(1)(k) is expressly limited to taking or directing another person to take an action that the Chief Health Office considers it is reasonably necessary to prevent, control or abate the serious public health risk.
The power of the court to review for unreasonableness has been expanded from Wednesbury unreasonableness.[18] But it is still important to bear in mind the doctrinal basis for review by the court, referred to by Brennan J in Attorney-General (NSW) v Quin:[19]
[The] court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.
[18] From Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.
[19] Attorney-General (NSW) v Quin, 37.
The ground of unreasonableness or irrationality may be alleged in different ways. Many early authorities on judicial review concerned legislative regimes in which there was no obligation to give reasons. Justice Dixon described a process of judicial reasoning in Avon Downs Pty Ltd v Federal Commissioner of Taxation, where the court may infer that a decision maker has failed in the discharge of their functions according to law if '[t]he conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception.'[20]
[20] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360.
That is not the way in which the applicant puts its allegation of irrationality in the particulars to ground 2. The applicant's case, as set out in his submissions, is that the facts, both at the time the decisions (that is, the Directions) were made and thereafter, will demonstrate that at the time decisions were made, they were beyond the bounds of decisional freedom afforded to the decision maker. In his submissions in relation to the proposed expert evidence, the applicant submits that the expert evidence will demonstrate that the decisions were not ones about which reasonable minds might differ, but were decisions which 'having regard to the facts as they actually were and remain', can bear no description other than irrational.[21]
[21] Applicant's submissions filed 26 January 2022 [17].
The applicant referred in his submissions to observations in the reasons of Allsop CJ in Minister for Immigration v Stretton:[22]
[A]ny attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the over‑categorisation of more general concepts and overemphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.
[22] Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 [2].
In Minister for Immigration v Stretton, the Federal Court was concerned with an exercise of power by the Minister under s 501 of the Migration Act 1958 (Cth) to remove the respondent from the Australian community, as a result of his sexual offending. The primary judge had ruled that the Minister's exercise of discretion 'was, in the circumstances, in excess of what, on any view, was necessary for the purposes it served'.[23]
[23] Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 [60].
Critically, in his reasons for setting aside that decision, Allsop CJ said:[24]
It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision‑maker's conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision‑maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision‑maker ought to approach the matter. … Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.
The task of the Court was to assess whether the decision of the Minister should be characterised as one which was not a reasonable and rational exercise of a power made in furtherance of the protection of the Australian community.
[24] Minister for Immigration v Stretton [21] ‑ [22].
A critical issue in this case is the nature of the power being exercised by the Chief Health Officer. By s 190, the power of the Chief Health Officer is qualified by the requirement that it be exercised for the purposes of emergency management during a public health state of emergency. The question is whether the Chief Health Officer could reasonably come to the conclusion that the Directions should be made for those purposes. The court will not substitute its view of what is reasonable for the view of the officer designated by the Act to make that assessment.
The question of rationality is not assessed in a factual vacuum. To the extent that there were documents before the Chief Health Officer relating to the state of emergency and the measures available for the purposes of emergency management, they are sufficiently relevant. Category 5 picks up any documents on which the Chief Health Officer relied. It is, in my opinion, a discoverable category.
The applicant also contends that category 6, relating to the earlier direction confined to mission critical areas, is relevant. The documents in that category can only be relevant if the court is to conduct a comparison for the purpose of deciding whether it believes the Directions were necessary and thus a reasonable further step. That would be to enter into a question that the Act has given to the Chief Health Officer.
I should, at this point, address category 4. The only grounds to which it appears to relate (there being no ground 5) are the particulars in ground 2d and e which assert that the Directions - in preventing unvaccinated police officers from accessing police premises - 'will not materially alter the risk of COVID-19 transmission' and 'will not limit the spread of COVID-19 in Western Australia'.
First, whether the Directions are reasonable for the purposes of emergency management will not be determined by reference only to the risk of transmission of COVID-19. The preamble to the Directions expressly states their purpose to include 'to ensure that the WA Police Force can continue to provide critical services to the community'. That is, the purposes include management of the risk of infection, not only transmission.
Second, the court will not be deciding those questions of fact which go only to the merits of the Directions. Discovery of the documents in category 5 will enable consideration of whether the action taken by the Chief Health Officer was legally reasonable. I am not satisfied that discovery of documents in 4 and 6, to the extent that it would include documents not relied upon in making the Directions, is essential to the fair and just determination of the issues in contention between the parties and the preparation of the case for trial. I am not satisfied that it would be a sound exercise of my discretion to order discovery of either category.

Ground 3

Ground 3 (as amended in accordance with the applicant's submissions) alleges that the Chief Health Officer took into account two considerations which are irrelevant:
(a)'the strong public health benefit to mandating COVID-19 vaccination for the entire workforce'; and
(b)the function of workplaces 'themselves critical to the functioning of our society',
For the purposes of proving those allegations, the applicant must prove that the Chief Health Officer took those considerations into account. Whether those considerations are legally irrelevant, in the sense that taking them into account vitiates the exercise of power, is to be determined having regard to the Act: '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'.[25]
[25] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 ‑ 40.
The applicant submits that categories 2 and 3 relate to this ground. They patently go far beyond documents relevant to establishing whether the Chief Health Officer did have regard to those matters. To the extent the applicant seeks documents relevant to whether, for example, the Chief Health Officer was correct in believing there is a public health benefit in mandating vaccination, those documents are irrelevant to ground 3.
Having regard to the discovery that will be given, I am not satisfied that discovery of documents in categories 2 and 3 is necessary, and that it would be a sound exercise of my discretion to order discovery of either category.

Category 7

In the absence of reasons for decision, the applicant faces an evidentiary hurdle. Documents which record, or contain a statement of the Chief Health Officer's reasons, if any, are relevant. All documents 'referring to' the Chief Health Officer's reasons is, however, clearly too wide. Documents which might refer to the author's understanding of his reasons, but which the Chief Health Officer has not accepted as being an accurate statement, would be inadmissible. While discovery is not generally limited to admissible documents, this application is in the context of judicial review, where evidence will be adduced on affidavit. I am not satisfied that it would be a sound exercise of discretion to include all documents within the general terms of this category.
I will order discovery of any documents which record or contain a statement of the Chief Health Officer's reasons, if the statement of reasons in that document was made or adopted by the Chief Health Officer.

Category 8

This category seeks documents relating to the Chief Health Officer's ongoing public health risk assessment of the Police Directions.
The justification for this category appears to be that, if the impugned Directions, which have an ongoing application, are no longer rational, then they should not be allowed to stand simply because they were rational when made. The applicant does not, however, contend in the grounds of review that circumstances have changed, so that the Directions are no longer rational. Ground 1(g) simply asserts that the original decision is irrational where there is no ongoing, periodic public health risk assessment.
I am not satisfied that the proposed category is relevant to the application as framed.

Conclusion on discovery

I would, accordingly, order discovery in relation to category 5, and to category 1.1 and category 7 as amended in these reasons. The application for discovery is otherwise dismissed.

Expert evidence

Legal reasonableness requires a careful evaluation of the evidence and the application of legal principle to the particular factual circumstances of the case.[26] A decision may be unreasonable, in the relevant sense, where it falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.[27]
[26] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [84].
[27] Minister for Immigration and Citizenship v Li [105].
Where the subject matter of the judicial review proceedings is a decision which was made following a hearing, or an application (for example, a licence application) in which the decision maker was called on to act on information presented by one or more parties, it is easier to identify the factual circumstances by reference to what evidence could or should have been taken into account. Irrationality can be assessed against the facts then known to the decision maker or which could have been ascertained on the material before them.
Here the decision does not arise out of the cases presented by one or more parties. The questions proposed for the expert are not framed in terms of the facts which should be found having regard to the material then before the Chief Health Officer or on which he relied. The applicant did not confine his submission to facts which the Chief Health Officer knew, or to facts which he should have known, or could with reasonable inquiry have ascertained. Specifically, the applicant submitted that in considering irrationality the court is not limited to material which was before the decision maker. The applicant submitted that 'if some fact existed which bears on the rationality of the decision, it may be set aside … the point is that if the fact had been before the decision maker, she or he simply could not have reached the decision she or he did'.[28]
[28] Applicant's submissions filed 26 January 2022 [14].
The applicant did not restrict his case to facts existing when the Directions were made, and the proposed questions are not so limited. For example, the last proposed question relates to Omicron now being the dominant strain of COVID-19 in the community. The expert has been asked to assume that the Delta variant was the dominant variant when the Directions were made. It is sufficiently notorious for the court to take notice of those facts.
The applicant stated that his case is not about the safety of the vaccines, nor about their efficacy with respect to preventing serious illness and death. He submitted, in effect, that there is a factual issue whether the vaccines are effective at preventing transmission of COVID-19, and whether vaccine mandates are effective at increasing rates of vaccination.[29] This, the applicant submitted, is where the questions posed to the expert are principally directed. The applicant submitted that the proposed expert opinion will allow him to fully articulate his case that the making of the Directions was irrational.
[29] It is not clear whether the applicant referred to rates of vaccination in a particular class of employees who are subject to a mandate, or rates in the community generally.
Specifically, the applicant submitted, '[if] there is evidence that the vaccines do not in fact prevent that transmission, it is arguable that a requirement that a person receive the vaccine is not rational'.[30] Even if the risk of transmission was the sole reason for the vaccination requirement, the applicant's submission would have the court substitute its opinion on the evidence for that of the Chief Health Officer.
[30] Applicant's submissions filed 26 January 2022 [32].
I accept that the applicant, properly, is not attempting to frame its questions in terms of the question for the court, whether the acts of the Chief Health Officer were unlawful because an unreasonable exercise of the powers conferred by pt 12 of the Act. But the opinion of the expert on questions posed would not be a relevant fact in making the factual findings necessary to determine the question of irrationality. The opinion of the expert would be relevant if it related to the information then known to or relied on by the Chief Health Officer at the time he made the Directions. It is arguable that the opinion could be probative if it related to a body of relevant expert opinion which the Chief Health Officer should have been aware of and had regard to. That is not the way in which the questions have been framed, or the application supported.

I will not grant leave to adduce expert evidence in the terms proposed.

SCHEDULE 1

1.All documents, including internal and inter-department correspondence, referring or relating to:
1.1.The CHO's consideration of:
1.1.1.the precautionary principle as detailed at 2 of the Table to s 3 of the Public Health Act 2016 (WA) (PH Act); and
1.1.2.the principle of proportionality as detailed at 3 of the Table to s 3 of the PH Act,

prior to issuing the WA Police Force Worker (Restrictions on Access) Directions (the Police Directions).
1.2.The CHO's consideration of how and why the making of the Police Directions, which restrict access to WA Police facilities by unvaccinated WA Police Force workers, will increase the overall vaccination rate in the community.
1.3.The CHO's consideration of how and why the making of the Police Directions will ensure that the WA Police Force can continue to provide critical services to the community.

2.All documents, including internal and inter-department, concerning employee management, including management of the Western Australian Police Force, COVID-19 and vaccinations.[31]
[31] The applicant amended this category at the hearing to restrict it to employee management related to COVID-19 and vaccination.
3.All documents, including internal and inter-department correspondence, referring or relating to the strong public health benefit that will be achieved by mandating COVID-19 vaccination for the entire WA Police workforce, including advice the CHO received and/or considered relating to medical ethical concerns.
4.All documents, including internal and inter-department correspondence, and medical opinions or scientific advice and data received and/or relied on concerning how restricting access to WA Police facilities from unvaccinated WA Police Force workers pursuant to the Police Directions will decrease the risk of COVID-19 transmission in the community.
5.All documents upon which the CHO relied to make the Police Directions, including all medical opinions, statistical analyses, internal reports, minutes of meetings, or advice from the Department of Health.
6.All documents upon which the CHO relied to make the WA Police Mission Critical Areas (Restrictions on Access) Directions (No 3), including all medical opinions, statistical analyses, internal reports, minutes of meetings, or advice from the Department of Health.
7.All documents recording or referring to the CHO's reasons for making the Police Directions.
8.All documents, including correspondence and advice received and considered, relating to the CHO's ongoing public health risk assessment of the Police Directions.

SCHEDULE 2

NATURE OF PROPOSED EVIDENCE
2.Vaccinology and epidemiology, specifically behavioural epidemiology.

SPECIFIC QUESTIONS TO BE POSED TO EXPERT
3.The questions which the expert will be asked to give his opinion on are:
(a)What impact does the introduction of vaccine mandate have to the overall vaccination rate in a community?
(b)To what extent does making it a condition of employment that a person be vaccinated against COVID-19 increase overall rates of vaccination?
(c)To what extent does partial or full vaccination against COVID-19 reduce the transmission of the virus to:
(i)other vaccinated people; and
(ii)unvaccinated people?

(d)To what extent does partial or full vaccination against COVID-19 reduce the severity of the illness transmitted to:
(i)Other vaccinated people; and
(ii)Unvaccinated people?

(e)To what extent would preventing unvaccinated people from entering their workplace from 20 October 2021 limit the spread of COVID-19 in Western Australia?
(f)What is the marginal change in risk of COVID-19 within a workplace caused by moving from a workforce which is 95% vaccinated to a workforce which is close to 100% vaccinated less medical exemptions? Would the answer differ at different vaccination rates (for example, moving from 50% vaccinated to 60% vaccinated, or 80% vaccinated to 90% vaccinated).
(g)In a Western Australian country town with two (2) police officers, is there a heightened risk to the vaccinated officer in the presence of an unvaccinated officer?
(h)As at 24 November 2021, should an epidemiologist reasonably have foreseen that one likely development, which would pose a threat to vaccinated individuals, would be the further mutation of the COVID-19 virus into a more infectious and less severe virus, which mutation resulted in a reduction of the effectiveness of vaccines in preventing transmissibility of the virus?
(i)At what level of community vaccination is herd immunity reached? Is there any applicable scale of reducing marginal benefit?
(j)Does the answer to any of the foregoing questions differ if the dominant strain of COVID-19 in the community is the Omicron variant of the virus rather than the Delta variant?

ASSUMPTIONS
4.The assumptions are:
(a)The globally dominant strain of COVID-19 on both of 20 October 2021 and 12 November 2021 was the Delta variant of the virus;
(b)Vaccination refers to vaccination against the COVID‑19 using any of the Pfizer, Moderna, or Astra‑Zeneca vaccines (the approved vaccines);
(c)Partial vaccination refers to a person having received one dose of an approved vaccine;
(d)Full vaccination refers to a person having received two doses of an approved vaccine;
(e)On 12 November 2021, the Chief Health Officer made an order that would restrict access to police premises (including police buildings and vehicles):
(i)from 1 December 2021, to partially vaccinated police employees; and
(ii)from 1 January 2022, to fully vaccinated police employees;

(f)On 24 November 2021, the Commissioner for Police directed that all police employees be:
(i)By 1 December 2021, partially vaccinated; and
(ii)By 1 January 2022, fully vaccinated;

(g)Population level vaccine coverage in Western Australia at the relevant times were:
(i)On 20 October 2021, 75% of the aged 12 and above population was partially vaccinated, and 57% of the aged 12 and above population was fully vaccinated;
(ii)On 12 November 2021, 83% of the aged 12 and above population was partially vaccinated, and 69% of the aged 12 and above population was fully vaccinated;

(h)On 12 November 2021, 93.5% of police employees were at least partially vaccinated;
(i)On 24 November 2021, 95% of police employees were at least partially vaccinated;
(j)Western Australia has had minimal community transmission of COVID-19 since the pandemic was declared in March 2020; and
(k)Western Australia has a controlled internal and international border which limits inbound travel, and those controls will not be lifted until 90% of the State's population is fully vaccinated.

CONTENTIOUS FACTS
5.It is not anticipated that any contentious facts will be relevant to the opinion of the expert.

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
3 FEBRUARY 2022