Falconer v Chief Health Officer [No 3] - [2022] WASC 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FALCONER -v- CHIEF HEALTH OFFICER [No 3] [2022] WASC 270
CORAM:   ALLANSON J
HEARD:   13 JULY 2021
DELIVERED          :   23 AUGUST 2022
FILE NO/S:   CIV 2286 of 2021
BETWEEN:   BEN FALCONER
Applicant
AND
CHIEF HEALTH OFFICER
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent

Catchwords:

Administrative law - Judicial review - Where Chief Health Officer authorised to issue orders for emergency management purposes and to prevent control or abate a serious public health risk in COVID 19 pandemic - Where public health state of emergency declared - Where Chief Health Officer issued directions directing unvaccinated Police workers to not enter a Police facility - Whether Chief Health Officer failed to have regard precautionary principle and principle of proportionality in Public Health Act 2016 (WA) - Whether directions proportionate to public health risk - Whether directions irrational

Legislation:

Police Act 1892 (WA)
Public Health Act 2016 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	S E J Prince SC & B J Tomasi
First Respondent	:	K M Pettit SC & J F Bennett
Second Respondent	:	K M Pettit SC & J F Bennett

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Cases referred to in decision:

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
BDV17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29
Browne v Dunn (1893) 6 R 67 (HL).
Falconer v Chief Health Officer [2022] WASC 3
Falconer v Commissioner of Police [No 4] [2022] WASC 271
Falconer v Commissioner of Police, and Finlay v Commissioner of Police [2022] WASC 272
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Kassam v Hazzard [2021] NSWC 1320
Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520
LibertyWorks Inc v Commonwealth [2021] HCA 18.
McCloy v New South Wales (2015) 357 CLR 178
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
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
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285
SZQYM v Minister for Home Affairs [2019] FCA 779
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Table of Contents

Introduction

The Directions

The challenge to the Directions

The legislative context

Serious public health incidents and public health emergencies

The evidence

Non- expert evidence

The use to be made of Dr Robertson's affidavit

The expert evidence

Findings of fact

The police role in the public health state of emergency

Other Chief Health Officer directions

Dr Robertson's affidavit

The letters of advice

Was there a serious health risk

Did Dr Robertson consider the actions directed were reasonably necessary

The grounds of the application

Grounds 1(d) and 1(e): failure to have regard to mandatory considerations

The precautionary principle

The principle of proportionality

Proportionality

Ground 2: irrationality

Was the decision to make the Directions irrational in fact

The particulars of irrationality in Ground 2.

Conclusion

ALLANSON J:

Introduction

On 12 November 2021, Dr Andrew Robertson published directions under the Public Health Act which, in substance, prohibited any WA Police Force worker[1] from entering or remaining at a WA Police facility unless they were vaccinated against COVID-19.
[1] The Police Force workers included mention of the Police Force, and members of the public service employed in the police department. The distinction between these two groups is significant in the two actions which were heard at the same time as this action; Falconer v Commissioner of Police [No 4] [2022] WASC 271, and Finlay v Commissioner of Police [2022] WASC 272.
The applicant, Ben William Falconer, is a constable appointed under the Police Act 1892 (WA). He has chosen not to be vaccinated and has challenged the validity of the directions.
The Police Commissioner also made directions ordering vaccination against COVID-19 for WA Police workers. In a separate action, Mr Falconer also challenged those directions. The cases were heard together but are determined by distinct considerations. I am publishing separate reasons in each. In these reasons, I consider only the directions made under the Public Health Act 2016 (WA), and refer to them simply as the Directions.

The Directions

The Directions are titled WA Police Force Worker (Restrictions on Access) Directions. They came into effect on 12 November 2021.
After reciting preliminary matters, Dr Robertson stated that he considered 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….'.
The purpose of the Directions was stated in a preamble:
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.
The substance of the Directions was in cl 4 and 8, by which a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been vaccinated against COVID-19, unless the person was present solely in a capacity other than as a WA Police Force worker.[2] The restriction applied to persons not partially vaccinated (one dose) from 1 December 2021, and to those not fully vaccinated (two doses) from 1 January 2022.
[2] WA Police facility was 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'.
The Directions stated that they were made pursuant to the powers in s 157(1)(e), s 157(1)(k), s 180 and s 190. The respondents also relied on the power in s 157(1)(b) by which an authorised person may direct any person, or class of person, not to enter any premises, or class of premises. That power may be relied on to support the Directions, even though it is not referred to in them. Given the breadth of the power in s 157(1)(k), I doubt that it is necessary to rely on paragraph (b).

The challenge to the Directions

The applicant's case challenged the directions on four grounds:
1.The Chief Health Officer failed to take into account the precautionary principle;
2.The Chief Health Officer failed to take into account the principle of proportionality;
3.Disproportion to the stated purpose of the Chief Health Officer in making the Direction; and
4.The Directions are beyond power because they are legally irrational.

The legislative context

The Directions were made under s 190 of the Public Health Act. Whether Dr Robertson failed to comply with an express or implied condition of his statutory authority, so as to act beyond the power conferred on him by the Act, is to be determined as question of statutory interpretation.[3]
[3] See, for example, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 [30].
In determining the meaning of the statutory provision, it is necessary to have regard to the text but also to its context and purpose.[4]
[4] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
The Public Health Act was enacted in 2016, and amended by the Public Health Amendment (COVID-19 Response) Act 2020 (WA). The objects of the Act include:
(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
…
(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…[5]
[5] Public Health Act 2016 (WA) Section 3(1).
In pursuit of those objects, regard must be had to five principles set out in the Table in s 3(2). The applicant relies on the alleged failure to have regard to two of the stated principles:
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 three other principles relate to sustainability, intergenerational equity, and acknowledging and respecting the functions of local governments.

Serious public health incidents and public health emergencies

Part 11 and 12 provide a range of powers that may be exercised by authorised persons, including the Chief Health Officer, to meet serious risks to public health.
Part 11 provides for the exercise of powers for the purpose of preventing, controlling or abating a serious public health risk. A serious public health risk includes risk of harm to public health involving potential harm of a high impact or on a wide scale.[6] 'Risk' is not separately defined. The use of 'risk' in combination with the term 'potential harm' indicates that the powers under pt 11 are intended to be exercisable by reference to the chance of serious harm occurring. The Act does not specify whether, to be a serious public health risk, the potential harm must be likely, or more probable than not. In my opinion, the degree of risk required must take into account the seriousness of the potential harm.
[6] Section 4.
Part 11 div 1 provides for the authorisation of persons to exercise serious health incident powers.
Section 157, in pt 11 div 2, sets out powers which may be exercised by an authorised person if a serious public health risk has arisen and while that risk continues.[7]
[7] Section 156.
The powers 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.[8] The direction may be given to a class of person.[9]
[8] Section 157(1)(b)(k).
[9] Section 157(4).
An authorised person may also direct any person, or class of person, to undergo medical treatment or to be vaccinated, and to use reasonable force to ensure compliance with that direction.[10] The Directions did not call upon the authority to compel vaccination.
[10] Section 157(1)(j), and s 158.
Part 12 provides for the declaration of a public health state of emergency, for the authorisation of persons who may exercise emergency powers, and for the powers that may be exercised for the purposes of emergency management during a public health state of emergency.
Part 12, div 3 provides for the declaration of a public health state of emergency. By s 167(1) the Minister has power to declare a public health state of emergency in the whole or any area or areas of the State. By s 167(2) the Minister cannot declare a public health state of emergency unless the Minister:
(a)has considered the advice of the Chief Health Officer, given after the Chief Health Officer has consulted with the person holding the office of State Emergency Coordinator under the Emergency Management Act 2005; and
(b)is satisfied that a public health emergency has occurred, is occurring or is imminent; and
(c)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.
A public health emergency means an event or circumstance, or a series of events or circumstances, that is causing or contributing to, has caused or contributed to or may cause or contribute to serious adverse effects on public health.
The declaration of a public health state of emergency may be extended under s 170, with s 167(2) applying in the same way it applies to the original declaration.
Part 12 div 4 deals with the authorisation of persons to exercise emergency management powers.[11]
[11] In Falconer v Chief Health Officer [2022] WASC 3, on an interlocutory application in this action, I dealt with the authority of the Chief Health Officer to exercise powers under pt 11 and pt 12.
Part 12 div 5 sets out those powers which may be exercised.
Relevantly s 190 provides that an emergency officer (which includes the Chief Health Officer) may, for emergency management purposes, exercise specified powers, including any serious public health incident power conferred by s 157. Emergency management purposes include the purposes of:
(a)mitigation or prevention of the potential adverse effects of a public health emergency; and
(b)preparation for the response to a public health emergency; and
(c)combating of the effects of a public health emergency.[12]
[12] See s 4.
It is through s 190 that the Chief Health Officer, in making the Directions, exercised the power in s 157(1)(k).
The opinion required by s 157(1)(k), is that the Chief Health Officer considers that the action directed is 'reasonably necessary'. The Act does not require that the action be found, objectively, to be necessary. Nor does the Act require that the Chief Health Officer only direct actions he considers are essential. In the context of pt 11 and pt 12 of the Act, 'reasonably necessary' should be construed as meaning that which is reasonably appropriate and adapted to the purpose for which the power was conferred.[13]
[13] See, for example, Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39]; Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 [49] - [52].
In that legislative context, on an action for judicial review, the true questions are, first, did Dr Robertson make the directions for emergency management purposes during a public health state of emergency; and second, was it open to him to consider that the Directions were reasonably adapted to the purpose of preventing, controlling or abating the serious public health risk posed by COVID-19.

The evidence

Non-expert evidence

The applicant read an affidavit of Ben William Falconer, sworn 1 March 2022, to which he attached copies of affidavits sworn on 15 December 2021 and 1 March 2022 in the related proceedings. The applicant was not cross examined. His standing to seek relief by judicial review was not challenged.
The applicant also read an affidavit of Dr Andrew Robertson, Chief Health Officer, sworn 8 March 2022. The affidavit was originally filed on behalf of the respondents. On the respondents advising that they did not intend to call Dr Robertson, the applicant read his affidavit.
Although the respondents, including Dr Robertson, were on notice of the specific challenges to the Directions he issued as Chief Health Officer, there was no challenge to the factual matters set out in his affidavit.
The respondents read three affidavits of Kylie Maree Whiteley, Acting Deputy Commissioner of Police, sworn 16 December 2021, 8 March 2022, and 22 June 2022.
Deputy Commissioner Whiteley was cross examined, although her evidence was not directly challenged. Cross examination was primarily for the purpose of eliciting some further evidence.

The use to be made of Dr Robertson's affidavit

The applicant chose to read Dr Robertson's affidavit into evidence. Counsel for the applicant confirmed that the affidavit was adduced as evidence, with no limitations in its use.[14] Save to the extent of any inconsistency with the evidence of Professor Petrovsky, the facts in it were not challenged.
[14] ts 149 - 150.
Counsel for the respondents submitted that it was not open to the applicant to seek to impugn the evidence of Dr Robertson, or to raise matters that were not put to him. Counsel specifically referred to the rule in Browne v Dunn.[15] To comply with that rule, unless notice has been clearly given that the evidence is challenged, a party should put to an opponent's witness in cross-examination the case on which it is proposed to rely in contradicting the witness's evidence. This is particularly the case where the challenge to the evidence relies on inferences to be drawn from other evidence in the proceedings.
[15] Browne v Dunn (1893) 6 R 67 (HL).
There are conceptual difficulties in applying the rule in a case where evidence was on affidavit, and where the conduct of the respondents, in filing the affidavit of Dr Robertson but then declining to call him, led to his evidence being read by the applicant. But, assuming the rule can apply in these circumstances, notice of the applicant's case was given by the affidavits he filed, the written opening submissions which were filed well in advance of the hearing, and the general manner in which the case was conducted. I do not believe that anything can be drawn from the application of the rule.

The expert evidence

The parties called expert evidence, with each expert providing a report attached to an affidavit.
The applicant read the affidavit of Professor Nikolai Petrovsky. He was cross examined.
The respondents read the affidavits of Professor Christopher Charles Blyth, and Professor Peter Bruce McIntyre. The applicant did not cross examine either of the respondents' expert witnesses.
The experts provided a joint report which was received as Exhibit 1 in the trial.
I will return later in these reasons to the proper use of the expert evidence, having regard to the questions raised in the action.

Findings of fact

The police role in the public health state of emergency

The applicant deposed, in effect, that there are duties that he and other officers can reasonably perform at home, without the need to attend a WA Police facility. In particular, he said there are a number of essential functions which can be performed using a web-based remote access system.
The respondents adduced evidence through Assistant Commissioner Whiteley to the effect that it is inherent in the role of a frontline police officer, such as the applicant, that they work in the community. It is not a role that can be carried out from home. Even when off duty, an officer may be recalled.[16]
[16] Affidavit of Assistant Commissioner Whiteley, sworn 16 December 2021 [157] - [159]; Supplementary affidavit of Assistant Commissioner Whiteley, sworn 8 March 2022 [38] - [49].

In particular, Assistant Commissioner Whitely referred to the work done by the Police Force during the pandemic, working in partnership with the Hazard Management Agency in various roles. She referred to functions including management and compliance checking of hotel quarantine; G2G Pass processing and compliance checks; border checkpoints; self-quarantining checks; investigating breach of directions; vehicle checkpoints; testing, tracing, isolating and quarantining responses when breaches or outbreaks were identified; arresting and managing individuals who are COVID-19 positive; maintaining essential police services and maintaining public order.
In short, the applicant believes that he could carry out the duties of his office from home, his superior officers do not agree. That factual issue is, perhaps, more pointed in the action between this applicant and the Commissioner of Police. In the present case, the issue is whether, on the information before Dr Robertson, it was open to him to consider that the exclusion of unvaccinated officers from Police facilities was reasonably necessary to prevent, control, or abate the public health risk posed by the pandemic. It was not necessary for him to consider whether they could work from home.

Other Chief Health Officer directions

The Directions were one of a series of directions issued by Dr Robertson as Chief Health Officer over 2021. Some of those directions preceded the declaration of a public health state of emergency.
Dr Robertson first made directions that restricted access to workplaces for unvaccinated workers in May 2021. The directions related to quarantine centres.
Between 9 August 2021 and 20 September 2021, specific directions were made restricting access to the workplace for five other employee groups, including WA Police mission-critical areas workers.
On 22 September 2021, the Minister declared a public health state of emergency in respect of the whole of the State. It was not in dispute that the declaration was extended in accordance with the Act, and was in force at all times material to this action. No challenge has been made to the declaration or any extension of it.
After the Minister had declared a public health state of emergency, Dr Robertson issued further directions for different workforces, including primary health care workers, resources industry workers, community care services workers, and meat industry workers, as well as those challenged in this action.

Dr Robertson's affidavit

As Chief Health Officer, Dr Robertson regularly received up-to-date information, including statistics and modelling about COVID-19 infections, hospitalisations and deaths, and vaccinations.[17] As a member of a committee of all Australian Chief Health Officers (the AHPPC), Dr Robertson attended the majority of the meetings of that committee, over 500 COVID-19 specific meetings since January 2020, and his deputies covered those he could not.[18]
[17] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [10].
[18] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [12].
Dr Robertson received information from a wide range of sources. These included important international research papers, including in relation to COVID-19 vaccination.[19] Relevantly, he was aware of case numbers; the then dominant strains of the virus and their features; the risks of significant increase in cases, in hospitalisations and deaths; and the capacity of the State's healthcare system to accommodate significant increase in hospitalisations.[20]
[19] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [12] - [14].
[20] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [21]
Dr Robertson referred to some publications to which he had particular regard. I did not understand him to mean that his consideration was restricted to those publications. He said, and I accept, that he had:
an up-to-date and accumulative situational awareness about:
(a)the risks other Australian and international jurisdictions have faced during the COVID-19 pandemic;
(b)the impacts on health that have resulted from the presence of COVID-19 in those other jurisdictions;
(c)what measures exist in relation to the prevention and management of the risks and impacts of COVID-19 across jurisdictions and the world;
(d)what the risks and benefits are of those measures; and
(e)the medical research literature on a range of COVID-19 related issues.[21]
[21] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [15].
Dr Robertson considered vaccination to be a highly important measure to reduce the spread of COVID-19 from the Delta variant and the rates of severe illness caused by it.[22]
[22] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [28], [39], [52].
Specifically, he was aware:
(1)in New South Wales, most people were being infected in the workplace or at home;[23]
(2)the vaccination rate in the WA Police Force had increased substantially following introduction of the requirement to wear masks, but some people remained slow to get vaccinated, and some remained hesitant - at 19 September 2021, 8.9% of police officers and staff had not taken a first vaccine dose;[24]
(3)vaccination rates in Western Australia were lagging in comparison to other Australian jurisdictions;
(4)modelling demonstrated Western Australia's susceptibility in the event of an outbreak;[25]
(5)the Delta variant was far more transmissible than earlier strains, was a more severe variant, and infected persons were more infectious while asymptomatic or symptomatic;[26]
(6)a person infected with Delta was more likely to suffer serious health complications which would require hospitalisation, and Delta caused other long-term health complications.[27]
[23] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [33].
[24] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [45].
[25] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [54].
[26] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [56], [58].
[27] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [59].
Dr Robertson based his decision on his understanding that two doses of vaccine had a significant impact in reducing a person's chance of being infected, and a double dosed person who did get infected was less likely to transmit the virus to others, resulting in a significant overall reduction in transmission. Two doses of vaccine were also very effective at preventing serious disease.[28]
[28] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [61].
He stated:
At the time I made the Directions, I considered there were highly significant benefits to getting people double-vaccinated as there would be a significant reduction of spread in the workplace and family home.
As a consequence of the above, decreasing rates of infection with the virus was not my singular focus at the time I made the Directions. An important focus was also preventing serious disease in the population.
My decisions to mandate vaccination for entry into additional workplaces, including those captured by the Directions, was based on the premises that the workers at these additional workplaces:
(a)were at an increased risk of contracting COVID-19 themselves because of their functions and interactions with the general public;
(b)posed a risk of transmitting COVID-19 to vulnerable populations; and/or
(c)offered a critical service without which there would be further damage to public safety and public good order.[29]
[29] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [62] - [64].
Dr Robertson did not consider personal protective equipment, including masks, or rapid antigen testing to be an adequate protection.
He considered that restricting access to workplaces was a proportionate response and preferable to exercising the power to compel vaccination.[30]
[30] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [77].
Dr Robertson did not, in his affidavit, say that he considered the waning effectiveness of vaccines against infection over time; nor did he refer to consideration of boosters.

The letters of advice

Between 3 August 2021 and 20 August 2021, the Commissioner of Police advised Dr Robertson of the rate of vaccination of Police employees as at 3 August 2021, and expressed concern about the effect of the Delta variant and its consequences for staff, their families and colleagues, and the capacity for police to perform their duty.[31] While, initially, the discussion was of mission-critical facilities, the Commissioner expressed concern from the outset that every police station and facility may be required at any time to respond to emergencies.
[31] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 4, AGR 6.
Dr Robertson advised regarding the risk of spread of the Delta variant, particularly in indoor settings, and the effect that degradation of police services would have on the broader public health.[32]
[32] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 5, AGR 7.
On 25 August 2021, Dr Robertson provided advice to the Commissioner on mandatory vaccination for mission-critical police facilities, and the public health grounds for mandating vaccination where three conditions were met: the presence of a serious health risk; the vaccine is safe and effective; and mandating the vaccine is proportionate.[33] In his discussion of the serious public health risk, Dr Robertson provided information on the global effect of the COVID-19 pandemic. He advised:
It is noted that police officers and ancillary staff are required to work with all persons in Western Australia, including those who may have travelled from overseas or jurisdictions that are experiencing community transmissions of COVID-19, and are often required to work in very close contact with others. Full vaccination of personnel, combined with other risk mitigation measures currently implemented, will greatly mitigate this serious public health risk.[34]
[33] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 7.
[34] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 7, p 43.
Dr Robertson referred to the vaccine currently being offered to police personnel, the Pfizer vaccine, and to studies showing that it was effective in preventing clinical disease generally, and serious disease particularly. He advised that the vaccine had been demonstrated to be effective in preventing infection and to subsequently reduce community spread. Dr Robertson referred to the justification for additional, more coercive measures 'when the restrictions placed on individuals are both minimised and proportionate to the expected advantages'. In particular, he referred to the tremendous harm that could be caused by unvaccinated workers who may spread COVID-19.
On 19 September 2021, Dr Robertson was advised of the vaccination rate within Police Force employees: 92.4% of all police officers had then received their first dose.[35]
[35] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 8.
On 18 and 19 October 2021, Dr Robertson provided advice to the Premier, in which he recommended mandatory vaccination of specified workforces 'that are at a higher risk of exposure, have a greater potential to transmit to vulnerable populations, or are themselves critical to the functioning of our society'. He cited guidelines issued by the Communicable Diseases Network Australia on 8 October 2021. Part of his advice related to the WA Police Force, and the strong public health benefit to mandating COVID-19 vaccination for the entire workforce. Dr Robertson referred to the nature of Police work, including the high risk of exposure and transmission, the limitations of personal protective equipment and physical distancing, and the critical role of the Police Force, particularly during the global pandemic and the prolonged state of emergency.[36]
[36] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9. AGR 11.
In his advice to the Premier, Dr Robertson repeated and expanded on the earlier advice he had given to the Commissioner of Police. He further advised on whether the mandate proposed was lawful and reasonable, referring in particular to the reasonableness of requiring vaccination for employees required to interact with people with an increased risk of being infected.[37]
[37] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9.
Although Dr Robertson spoke of mandatory vaccination, he explained it 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. This still allows choice by the individual not to take the vaccine and to work in an alternative part of the organisation, if available, or 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.[38]
[38] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 57; see also AGR 11, p 68.
Dr Robertson provided further and updated advice on 22 October 2021 with respect to more workforces, in particular for those who may be required to carry on essential business activities in the event of lockdown. Again the approach was to require those attending work to be fully vaccinated. In that advice, Dr Robertson referred to the position in other jurisdictions, to the outbreaks of community transmission in New South Wales, the ACT, and Victoria, and to how quickly the infection can spread within the community. He further referred to the deaths occurring in people who had not received any doses of vaccine. Dr Robertson continued:
As the eastern States of Australia open their international and interstate borders, travel and trade will increase the likelihood of incursion of disease into WA. Current vaccination rate of 54% fully vaccinated leaves WA vulnerable to major outbreaks should there be introduction and spread of the disease. This risk combined with our unrestricted movement and lifestyle means WA is at high risk of COVID outbreaks and rapid spread.
…
It has been demonstrated that strategies that vaccinate essential workers early lead to substantial reductions in the number of infection, hospitalisations, deaths, and cases of Long COVID. In addition to this, vaccination would reduce staff absenteeism, sick leave and subsequent disruption of services, which may in turn contribute to morbidity and mortality from other causes.[39]

Was there a serious health risk

[39] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 13.

The unchallenged evidence set out the effect of the pandemic in other jurisdictions in Australia where it had spread in the community. In the period 1 January 2021 to 24 October 2021, there had been 134,740 cases, with 12,188 people hospitalised, 1,772 in ICU (not died), and 903 deaths.[40] In the seven days to 14 October 2021, there had been 8,262 cases not already in quarantine and 7,627 new cases in quarantine.[41] It is common knowledge that Western Australia had been able, by closing its borders, to limit the spread into the community.
[40] Affidavit of Professor Christopher Charles Blyth, sworn 24 May 2022, CCB 1 [39] table 4, p 20.
[41] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 15, p 86.
The frequency of hospitalisation and death was significantly higher for those aged 60 years and older, but the effect of the virus was not confined to older people. In the period January to October 2021, 64% of all infections were in younger adults and the total number of hospitalisations of that age group was more than double the total number of hospitalisations in those older than 60 years.[42]
[42] Affidavit of Professor Christopher Charles Blyth, sworn 24 May 2022, CCB 1 [39] - [40], p 20.
In addition to the risk of severe disease, the post-viral syndrome 'Long COVID' was causing chronic illness requiring ongoing medical treatment.[43]
[43] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [60], p 16.
While the risk was for the time being contained in Western Australia, COVID-19 carried a risk of potential harm to public health[44] that was of a high impact and on a wide scale. COVID-19 was a serious public health risk, as defined in s 4 of the Act.

Did Dr Robertson consider the actions directed were reasonably necessary

[44] Defined in s 4:

Although this issue was not directly raised in the grounds, it is essential to the resolution of the application. On the unchallenged evidence, Dr Robertson considered the directions he made were reasonably necessary to prevent, control or abate the serious public health risk of the COVID-19 pandemic.
I am satisfied that his purpose in making the Directions was to mitigate and (if possible) prevent the potential adverse effects of COVID-19 in Western Australia. There was a risk that COVID-9 would cause or contribute to serious adverse effects on public health. The number of cases resulting in hospitalisation and death between January and October 2021 in other jurisdictions, demonstrated how serious the pandemic had been to that time.

The grounds of the application

Grounds 1(d) and 1(e): failure to have regard to mandatory considerations

These grounds both rely on s 3(2) by which, in pursuit of the objects of the Act, regard must be had to five principles.
The principles regarding mandatory considerations were accurately summarised in the applicant's written submissions:
(a)The ground is made out if a decision-maker fails to take into account a consideration which she or he is bound to take into account in making the decision;
(b)The factors a decision maker is bound to consider in making the decision is determined by construction of the statute;
(c)Not every failure to take into account a mandatory relevant consideration will justify setting aside the decision, in that some failures might be so minor that it cannot be said they materially affect the decision;
(d)It is not the function of the court to substitute its own decision, including as to the weight to be given to a particular consideration.
The applicant also relied on those authorities which have attempted to give content to what a decision maker must do to have regard to or take into account a consideration. In particular, the applicant referred to cases which have discussed the need for 'proper, genuine and realistic' consideration, and for decision makers to have 'positively given genuine consideration to and actively engaged with' the matters they are required to consider. There is a clear need for caution in this approach, which must recognise the limited role of a court in reviewing the exercise of an administrative decision.[45]
[45] See Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 [22] - [27].
There are two additional reasons for caution in applying the authorities in the present circumstances.
First, many of the authorities - particularly those in the fertile field of migration law - concern decision makers who are required to act on the basis of the information presented at a hearing, or perhaps in a report, or in submissions made by interested parties. Dr Robertson was making a series of decisions on the basis of information he received continuously and from a wide range of sources. The risk was evolving: for example, the Delta variant emerged in late 2021 as the primary strain.
Second, the reasons of an administrative decision maker are the central evidence in many applications for judicial review. Here there are no reasons in the usual sense, and none were required. One of the functions of the Chief Health Officer under s 6 of the Public Health Act is to provide advice or recommendations to the Minister or any other person or body on matters relevant to public health. The material before the court included letters of advice to the Premier and the Commissioner of Police.

The applicant submitted that the letter to the Premier of 19 October 2021 is to be taken as Dr Robertson's contemporaneous reasons for decision in respect of the making of the Directions. That letter did not purport to be a statement of reasons. While it no doubt included reasons why Dr Robertson believed the action he was taking was both reasonable and necessary, it was essentially conclusionary. It did not set out all of the evidence or information upon which he acted, or findings made on material questions of fact. It did not attempt to weigh all relevant considerations for and against what should be done. The same can be said of the other letters sent to the Commissioner of Police and the Premier. They should not be read as something they were not.
The absence of formal reasons does not prevent review.[46] The applicant may rely on the inferences to be drawn from all of the material in evidence before the court, including contemporaneous documents and, in this case, the affidavit later made.
[46] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360.
Even where a decision maker is required to give reasons for a decision, the appropriateness of drawing an inference from the stated reasons must be evaluated having regard to the content of any statutory obligation, pursuant to which the reasons were prepared.[47] Where an administrative decision maker is required to deal with a particular issue an inference may be drawn from any failure to expressly deal with that matter in the reasons. Where a decision-maker is required to make findings on a material question of fact, the failure to set out a finding may support an inference that no finding was made, or that the decision-maker did not consider that fact to be material.
[47] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 [32]; BDV17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 [38].
But the court must exercise caution in drawing inferences, particularly from what is not said.[48] In simple terms, a letter advising what the decision maker is going to do, or believes should be done, may not refer to all of the considerations which were taken into account in arriving at that conclusion.
[48] See, for example, Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [53].
The general position at common law is that the person asserting an issue bears the onus of proof. Subject to any modifying statutory provision, that position applies in judicial review proceedings.[49] The applicant must establish a basis for drawing the inferences necessary to make out the alleged error. It is not for the respondents to demonstrate, by way of evidence or inference that the decision was regularly reached.[50]

The precautionary principle

[49] Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 [39]; Minister for Immigration and Citizenship v SZGUR [67].

[50] See Minister for Immigration and Citizenship v SZGUR [67] - [68].

The precautionary principle in s 3(2) is stated in two paragraphs. Paragraph (1) states the principle: 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. Paragraph (2) states matters by which decision making should be guided in the application of the principle, including an assessment of the risk-weighted consequence of the options.
In asserting failure to have regard to the precautionary principle, the applicant relied on the statement of the Full Court of the Federal Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts[51] that 'failure to include reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account'. The applicant then submitted:
What must be shown… is that the CHO has turned his mind to the risk-weighted options with respect to reducing transmission of COVID-19 to and from WA Police employees, and engaged in the comparative exercise required.
[51] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 [46].
There are several difficulties with this submission.
First, it apparently reverses the onus of proof. It is for the applicant to show that the Chief Health Officer did not guide his application of the precautionary principle by assessment of the risk weighted consequences. That is, the facts proved must give rise to a reasonable and definite inference so that the court is satisfied that the Chief Health Officer failed to turn his mind to the proper application of the precautionary principle.
Second, there is no statement of reasons. The court cannot find the extent of the material that was before Dr Robertson and how he dealt with it. The unchallenged evidence is that he received information from a wide range of sources, continuously, over a period of many months. His letters of advice distilled some of that information and his thinking for the purposes of advising the Commissioner of Police and the Premier. It is unrealistic to attempt to draw an inference that a particular matter has been the subject of only superficial examination from a short letter advising the Commissioner.
Third, even where there is a statement of reasons, the court should not necessarily infer from the failure of a decision-maker to refer expressly to a particular consideration that it has been overlooked:
Once a matter has been identified as a mandatory relevant consideration, it is the salient facts that give shape and substance to the matter that must be brought to mind. These are the facts which are of such importance that, if they are not considered, it could not be said that the matter has been properly considered.[52]
[52] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [45].
I have set out the various statements made by Dr Robertson in advising on the proposed measures. They disclose that he considered the seriousness of the harm to public health from the risk of COVID-19 spreading in the workplace, particularly in indoor settings, and to vulnerable populations; he considered the use of personal protective equipment or other measures; he was satisfied of the safety and effectiveness of the vaccines and he proposed a measure that allowed workers a choice, but would encourage voluntary uptake of vaccination and not permit unvaccinated workers to encounter exposed members of the public in their workplace.[53] Importantly, he did not consider there to be any ambiguity or uncertainty about the low risk of adverse events following vaccination and the risk of the spread of COVID-19 that would warrant any delay in taking action.[54] I am satisfied that, although he did not refer specifically to the precautionary principle, he turned his mind to the matters he was required to consider.
[53] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [78].
[54] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [73] - [74].
The respondents also submitted that the applicant did not establish a realistic possibility that the decision could have been any different had the precautionary principle been taken into account.[55] In light of my finding, it is not necessary to decide the question of materiality.
[55] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 [34]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [45] - [46].
Ground 1(d) is not upheld.

The principle of proportionality

The principle of proportionality in s 3(2) is also stated in two paragraphs. First, there is the statement of principle: decisions made and actions taken to prevent, control or abate a public health risk should be proportionate to the public health risk sought to be prevented, controlled or abated. Paragraph (2) provides that 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 applicant needed to establish either from the result - the fact that Directions were made and their content - or as an inference properly to be drawn from the documents that were in evidence, that Dr Robertson did not have regard to the principle of proportionality as required.
The first step is to identify the action taken and the public health risk sought to be prevented, controlled or abated.
The action challenged is the making of directions that applied to the Police workforce, directed to ensuring that only vaccinated workers attended at work. It was not the only measure that was then available. Dr Robertson could have ordered all police officers to be vaccinated, pursuant to s 157(1)(j), but did not.
It is common knowledge, of which I take notice, that during 2021 the Western Australian borders were closed; those who entered the State were required to quarantine. Lockdowns were imposed, the wearing of masks was mandated in specified circumstances, social distancing was required, and the size of gatherings was limited. Directions were issued covering different workforces, which were identified as having either particular vulnerability, or important functions while restrictions were in place.
The applicant's submissions took a very narrow view of the relevant public health risk, referring to 'the risk posed by some police employees choosing not to be vaccinated'.[56]
[56] Applicant's written submissions filed 15 March 2022 [41].
As I understand Dr Robertson's letters, and the terms of the Directions, he was concerned with the risk posed by COVID-19 in the whole community. The Directions were intended to respond to something more serious, and of wider impact, than the risk posed by some unvaccinated employees.
The risks to which Dr Robertson had regard are stated in his various letters. At a general level, he wanted to ensure all possible risk mitigation measures were in place to minimise the potential of COVID-19 transmission to the WA community.[57] The Police Facility Directions were one of a series of measures to attempt to ensure vaccination of workforces identified as critical 'to reduce the possible impacts of COVID-19 on [the] workforce and the community members which they serve'.[58] In later advice to the Premier, provided shortly before he made the Directions, Dr Robertson stated:
It has been demonstrated that strategies that vaccinate essential workers early lead to substantial reductions in the number of infections, hospitalisations, deaths, and cases of Long COVID. In addition to this, vaccination would reduce staff absenteeism, sick leave and subsequent disruption of services, which may in turn contribute to morbidity and mortality from other causes.[59]
[57] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 55.
[58] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 11, p 67.
[59] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 13, p 76.
The range of advice given by Dr Robertson in the period leading up to the making of the Directions shows a strong consideration was the continued functioning of critical workforces and services in the event of a lockdown or major restriction. Specifically, in relation to the WA Police, Dr Robertson had regard to:
(1)the very large work force, with close interaction with the community, with work of an unpredictable nature, where personal protective equipment and physical distancing cannot be adequately applied;[60]
(2)the high risk of exposure and/or transmission;[61]
(3)that vaccination of the whole work force would reduce the risk of the workforce becoming infected, developing serious illness, and further spreading the disease;[62]
(4)that the workforce was critical to the functioning of society during a pandemic and prolonged state of emergency;[63]
(5)the evidence regarding the Delta variant, including that it led to more severe outcomes, with people not fully vaccinated most at risk;[64]
(6)evidence of the protection provided by the available vaccines, which 'significantly reduce the rates of infection and subsequent spreading of the virus', and with serious disease largely confined to the unvaccinated;[65]
(7)the safety of the vaccines;[66]
(8)the limited options given his view of the importance of vaccine uptake;
(9)whether the use of the mandate in the form proposed was reasonable.[67]
[60] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 7, p 43, AGR 9, p 53.
[61] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 53.
[62] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 53.
[63] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 53.
[64] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 53.
[65] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 55.
[66] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 9, p 56.
[67] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022, AGR 11, p 67.
The applicant further submitted that the material before the court indicated consideration only of matters in favour of making the Directions, and not those matters which might weigh against them.
First, the inference that other matters were not considered cannot readily be drawn from the material before the court. It may be more readily inferred that it was not considered material to the advice then being given to the Commissioner or the Premier. That does not mean it was not considered, or not considered material, in making the Directions.
Second, the applicant relied on a series of factors which he asserted needed to be genuinely considered and which he asserted were not. The applicant relied on the Chief Health Officer's discovery.
It is difficult to establish the factual basis for this submission. Orders were made requiring discovery of documents referring to or relating to Dr Robertson's consideration of the principle of proportionality. The applicant asserted that the discovered documents disclose that there was no genuine consideration of specified matters and no information or current information about others. But the applicant did not put all discovered documents in evidence. Counsel for the applicant submitted that the respondent could produce a document from the 326 discovered to undermine the applicant's argument.[68] That would be to reverse the onus of proof.
[68] ts 146.
The reference to the discovery is, with respect, unhelpful. It is not possible, on the evidence before the court, to say what information was before Dr Robertson or how he took it into account. I do not know what is in the documents. In any event, Dr Robertson's access to information was not limited to documents. For example, Dr Robertson attended the majority of the more than 500 meetings of the committee of Australian Chief Health Officers; each of the letters from the Commissioner of Police refers to discussions with Dr Robertson.
I will deal later in these reasons with the arguments regarding the rationality of the directions. But the challenge in ground 1(e) fails.

Proportionality

The applicant also relied on a general ground that the Directions were disproportionate to the stated purpose of Dr Robertson in making them. It was difficult at times to discern whether the applicant was relying on a freestanding requirement that decisions must be proportionate to the ends they seek to achieve, or whether that argument was subsumed within the claim that the Directions were irrational.
There is no doubt that rationality operates as an implied limit on all administrative decision making, and that proportionality is a relevant factor in determining whether a particular exercise of statutory power is legally reasonable. I will deal separately with proportionality in the context of the ground alleging the directions were legally irrational.
Here the applicant sought to rely on the framework of 'proportionality testing' developed in cases concerning the limits of legislative power, where the question is whether a law restricting a constitutional freedom is justified, in the sense of being suitable, necessary, and adequate in its balance.[69]
[69] McCloyv New South Wales (2015) 357 CLR 178, Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171; LibertyWorks Inc v Commonwealth [2021] HCA 18.
The attempt to engage that concept of proportionality is, in my opinion, misguided, and deflects attention from the true question. The court must determine whether the directions were lawfully made, on a proper construction of s 190 and s 157 of the Act. The court must not exceed its role by substituting its judgment of what is reasonably necessary for that of the qualified official designated under the Act.

Ground 2: irrationality

Some basic propositions were not in dispute.
First, there is a presumption that any discretionary power conferred by statute will be exercised reasonably, as that concept has been explained in the authorities. The following propositions are drawn from the reasons of Hayne, Kiefel, and Bell JJ in Minister for Immigration v Li.
(a)To be done within the discretion conferred by the governing Act, the exercise of discretion must be legal and regular, not arbitrary, vague and fanciful. Unreasonableness may be applied to a decision which lacks an evident and intelligible justification.
(b)There is an area within which a decision-maker has a genuinely free discretion and the courts must not exceed the supervisory role by undertaking a review of the merits of an exercise of discretionary power.
(c)The standard of reasonableness required of a particular decision-maker is to be determined by reference to the statute. The court must look to the scope and purpose of the statute conferring the discretionary power, and its real object. The question to be addressed is whether the statutory power has been abused.
(d)An inference of unreasonableness may be drawn in circumstances where a discretion has obviously miscarried, but no particular error can immediately be identified. In such a case, irrationality may be found where the decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
Second, there is a degree of overlap between rationality and proportionality. The applicant submitted that, for present purposes, they are effectively interchangeable terms in this statutory context. That submission goes too far.
There may be circumstances where a disproportionate exercise of an administrative discretion may be characterised as irrational on the basis that it exceeds what, on any view, is necessary for the purpose it serves.[70] The court should, however, be careful in the application of the statements in Minister for Immigration v Li, bearing in mind that the court was there considering the concept of unreasonableness in the Migration Review Tribunal's exercise of its review jurisdiction. The discretion exercised was in a statutory context where the tribunal was to provide the applicant with an opportunity to present evidence and argument at a hearing before the tribunal made its decision. As Beach-Jones CJ at Common Law noted in Kassam v Hazzard, the formulation of general rules to deal with a risk to public health is not an area courts are familiar with, and is informed by considerations of policy.[71]
[70] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 352 [30] (French CJ).
[71] Kassam v Hazzard [2021] NSWSC 1320 [235].

The correct approach is that set out by Allsop CJ in Minister for Immigration v Stretton.[72] 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'. In his reasons for setting aside that decision, Allsop CJ said:
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.[73]
[72] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1.
[73] Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 [21] - [22].
Similarly, while his Honour was dealing with a particular statute, not identical to that before this court, the observations of Bell P in Kassam v Hazzard are pertinent:
Section 7(2) on its face thus confers a broad discretion on the Minister. Contrary to submissions advanced by the appellants, any judicial review of the Minister's exercise of power must be undertaken not by reference to what may have been objectively necessary (even if that were ascertainable, it being a matter upon which views could differ) but by reference to whether it was open to the Minister, acting reasonably, to 'consider' that the measures given effect by the Orders were necessary.[74]
[74] Kassam v Hazzard [52].
The question for the court is one of statutory construction. The following matters are relevant in the construction of the power under s 190 within the context of the Act:
(1)the power is conferred on the Chief Health Officer or an emergency officer authorised by the Chief Health Officer under s 174(2);
(2)the Chief Health Officer is required to be a medical practitioner with appropriate qualifications in public health;[75]
(3)the powers exercised under s 190 could only be exercised in a state of public health emergency;
(4)the Minister could not declare, or extend, the state of public health emergency unless satisfied that extraordinary measures were required to prevent or minimise loss of life or prejudice to the safety, or harm to the health, of persons;[76]
(5)the powers in s 190 are only some of those available during a public health state of emergency, which include the powers in s 184 in relation to quarantine, medical treatment and vaccination;
(6)the powers under s 190 are to be exercised with regard to the precautionary principle - the Act recognises that there can be no scientific certainty.[77]
[75] Section 11(2)(c).
[76] Sections 167, 170.
[77] Section 3(2).
I am not suggesting that an exercise of power under s 190 is immune from review, including on the ground that it is irrational. But the question is whether it was open to the Chief Health Officer to consider, in a declared public health state of emergency, that the power to make the Directions should be exercised for the purposes of emergency management, and that the Directions were reasonably necessary to prevent, control or abate the continuing serious public health risk. The Public Health Act does not require that the Directions be found, objectively, to be necessary. Nor does the Act require that the Chief Health Officer only direct actions he considers are essential. He is not required to postpone measures for lack of scientific certainty. The court will not substitute its view of what is reasonably necessary for the view of the officer designated by the Act to make that assessment.

Was the decision to make the Directions irrational in fact

The applicant submitted that the conduct or decision in making the Directions could be reviewed on the ground that it was irrational in fact. He relied on the decision of Allsop CJ in SZQYM v Minister for Home Affairs. The decision was in the context of the particular statutory regime for review of decisions under the Migration Act by a hearing in the Administrative Appeals Tribunal. His Honour found that a mistake as to the evidence of a 'central fact' was of such gravity that it could not be regarded as authorised as part of the task of the Tribunal. The case was extreme. His Honour said the assessment of evidence and material before it was the essence of the task of the Tribunal; the erroneous finding was not open, and the Tribunal had not given consideration to the assessment of the evidence and material before it.[78]
[78] SZQYM v Minister for Home Affairs [2019] FCA 779 [139] - [140].
The applicant submitted that Dr Robertson had so misunderstood or misinterpreted the evidence about the efficacy of vaccines, particularly with regard to transmissibility, that the information must either have not been given genuine consideration or had been fundamentally misunderstood.
In particular, the applicant identified two 'critically important' facts: the limited and waning effect of COVID-19 vaccination against transmission of the virus; and the extent to which immunity wanes over time. The applicant submitted those facts bear on the rationality of the Directions, both at the time they were made and when they came into effect.
The submission requires the court to consider the expert evidence. I take into account these matters.
First, the respondents' witnesses were not cross examined, and there was no challenge to the assumptions or facts upon which their opinions proceeded.
Second, the question concerns actions taken in the implementation of public health policy. It is an area in which the court must be informed by expert opinion. The respondents' witnesses were highly qualified to express opinion on questions related to public health, particularly immunisation policy and the response to COVID-19. Their evidence strongly supported the measures introduced.
Professor Petrovsky has been involved in vaccine research since 1998, including in research and development of novel vaccines. He has been involved in work developing a coronavirus vaccine. While Professor Petrovsky said, and I accept, that public health was part of his training and he has had input into public health policies, he has no qualification in public health and does not have the experience of the other experts.[79]
[79] ts 184.
Third, the Directions were not solely directed to the risk of transmission. While Dr Robertson referred to the tremendous harm that could be caused by unvaccinated workers who may spread COVID-19, he was also concerned with preventing workers becoming infected, thereby reducing community spread, and the effect of vaccines in preventing serious disease. The three expert witnesses agreed that the efficacy of two doses of vaccine had been demonstrated against severe infection.[80] The qualifications to that statement - that effectiveness was known to vary widely according to the type of vaccine, aging, health status of the population vaccinated, and the time since the second dose - did not detract from the general proposition.
[80] Exhibit 1, P4.
While Professor Petrovsky disagreed, or qualified his agreement, both Professor Blythe and Professor McIntyre expressed the following opinions, as recorded in the joint report:
(1)At 12 November 2021, all approved vaccines continued to demonstrate effectiveness against symptomatic Delta infection six months after the second dose, sufficient to be valuable in clinical and public health terms.[81]
(2)Vaccines had potential to impact on transmission by reducing infection, thereby reducing the number of infected individuals capable of transmitting infection, and reducing shedding of the virus in those who get infected, thereby reducing the number of individuals exposed to the virus.[82]
(3)As at 12 November 2021, two doses of a COVID-19 vaccine significantly reduced transmission of the Delta variant, although effectiveness against onward transmission waned over time and was influenced by the time since receipt of the second dose, the type of vaccine received, and receipt of a third dose or booster.[83]
(4)Those under the age of 60 were still at risk of severe COVID-19 disease.[84]
(5)The risk of infection may have been higher in Police Officers given the nature of the work.[85]
(6)The risk of severe disease and death reduces markedly with reducing age.[86] In his report, Professor Blyth provided a table of cases by age group and severity of illness.[87] While the evidence establishes that age is a significant risk factor, the data shows that adults aged 18 to 59 years still faced significant and real risk of harm from COVID-19, and the total number of hospitalisations in these young age groups was more than double the total number for those older than 60.
[81] Exhibit 1, P9.
[82] Exhibit 1, P10.
[83] Exhibit 1, P11.
[84] Exhibit 1, P14.
[85] Exhibit 1, P15.
[86] Exhibit 1, P16. In his report, Professor Blyth provided a table of cases by age group and severity of illness: see Affidavit of Professor Christoper Charles Blyth, sworn 24 May 2022, CCB1, Table 4, p 16.
[87] Affidavit of Professor Christoper Charles Blyth, sworn 24 May 2022, CCB1, Table 4, p 16.
The experts agreed that, in or around 12 November 2021, despite the lack of community transmission, the risk of a police officer acquiring COVID-19 was present. Professor Blyth and Professor McIntyre made the further comments: first the risk was ever present, and undetected community transmission had been shown in other jurisdictions to be present for weeks before detection.
Professor McIntyre further expressed the opinion that a risk management perspective is appropriate for formulation of public policy, and noted the experience in Auckland, New Zealand in August 2021 where Delta escaped to the community by means which have still not been established.[88] Risk management clearly lies behind pt 11 and pt 12 of the Public Health Act.
[88] Exhibit 1, P17.
The issue of waning vaccine efficacy/effectiveness was the most significant area of disagreement between the experts. Professor Petrovsky considered that mandating vaccination for the remaining unvaccinated police officers would not be expected to have a major effect on overall COVID-19 infection or transmission rates, due to the waning effectiveness of vaccines. Many vaccinated officers were susceptible to infection and transmission because of the period since their second vaccine dose.
The respondents' experts agreed that waning vaccine effectiveness, particularly against mild infection and ongoing transmission, has been demonstrated particularly six months after the second dose. Professor Blyth estimated (Professor McIntyre agreeing) that around 25% of vaccinated police officers were accordingly at risk of infection.[89] Both also expressed the opinion, however, that waning effectiveness was particularly demonstrated against mild infection, less against severe infection.[90] Both also said that ensuring the highest possible vaccination uptake 'is a clearly demonstrated way to reduce the risk to the individual and the community with highly transmissible variants such as Delta'.[91]
[89] Exhibit 1, P20.
[90] Exhibit 1, P22. In his oral evidence, Professor Petrovsky described one study in Israel which found a waning of effectiveness against infection, and then subsequently, several months later, a loss of protection against serious disease and death, leading the authorities to recommend a third dose: ts 19 – 220.
[91] Exhibit 1, P19.
The experts were also asked to express an opinion on the use of alternative measures including personal protective equipment, testing and isolating test positive individuals, physical distancing and hygiene. Professor Petrovsky argued the most effective strategy would be high-quality personal protective equipment, with regular testing. Professor Blyth and Professor McIntyre described those measures as complementary to vaccination, noting the challenge of compliance given the nature of police work.[92]
[92] Exhibit 1, P24. It would be a mistake to consider the Directions (and the Employer Directions issued by the Commissioner requiring vaccination) in isolation. Within the Police Force there were also a COVID-19 Infection Prevention policy and Infection Prevention Guidelines, copies of which were adduced in evidence in the affidavit of Assistant Commissioner Whiteley. See Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 22, KMW 60 and KMW 61.
There were areas of disagreement between the experts, including in relation to the importance waning effectiveness of vaccines. But it is not necessary to make the findings of fact for which the applicant contended. The question is whether it was open to Dr Robertson to consider the Directions were reasonably appropriate and adapted to control, prevent or abate the serious public health risk of COVID-19. His approach was consistent with highly qualified scientific opinion. The applicant has not demonstrated a factual error of the kind that would lead to a finding of irrationality.

The particulars of irrationality in Ground 2.

The applicant relied on seven particulars of irrationality, and the cumulative effect of all of them.
(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.
One of the arguments relied on by the applicant, I assume for particular (f), is that there is no evidence that Dr Robertson had information detailing the effect of making the directions on vaccination rates among WA Police, and no evidence of the effect that mandating vaccination has on overall uptake of vaccine. The ground goes further and asserts that the policy 'runs counter' to the goal of maximum vaccine uptake. There is no evidence before the court to support that argument. It is unnecessary to consider it further.
Ground 2(a) adopts the language, but not the underlying reasoning, of the trial judge in Kassam v Hazzard. The court was there considering a clause which directed that particular workers 'must not carry out relevant work' unless vaccinated. Beach-Jones CJ at Common Law contrasted that with an order which precluded people from entering or remaining on certain worksites, and said that if the clause prevented unvaccinated workers from carrying out work remotely, there would be a serious question whether the clause, as drafted, was untethered from the risk identified in the grounds identified.[93]
[93] Kassam v Hazzard [2021] NSWC 1320 [90].
That is not the situation here. The risks identified in the Directions were 'the serious public health risks presented by COVID-19'. Dr Robertson said in his affidavit that he based the Directions on the premise that workers at Police workplaces were at an increased risk of contracting COVID-19 themselves, posed a risk of transmitting it to vulnerable populations, and offered a critical service without which there would be further damage to public safety and public good order.[94] The Directions were directly related to the identified risk.
[94] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [64].
Ground 2(b) asserts that it was irrational to extend the prohibition in the Directions to all WA police facilities, and beyond the mission critical areas, when there had been no change to the level of risk.
Dr Robertson's approach was to first deal with those groups he considered presented the highest public health risk, then deal with other groups. It was not based upon a change in level of risk, but on giving priority to workplaces with the highest risk. The first directions, in May 2021, were for persons working in quarantine facilities. Dr Robertson then made Directions for other workplaces, based on information which led him to consider that they were places where workers were most likely to come into contact with COVID by interacting with infected persons, or to interact with particularly vulnerable populations. The AHPPC recommended these workers should receive the vaccine.[95]
[95] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [26] - [27].
Before making the Directions, Dr Robertson was aware of the increased rate of vaccination in the WA Police Force, following introduction of the requirement to wear masks, but was also aware that some people were slow to get vaccinated. He was aware of the status of the pandemic, and continued to hold the view that vaccination was a highly important measure to reduce the spread of COVID-19 and the rates of severe illness caused by it. He based his assessment on the effectiveness of vaccination against the Delta variant, and was aware of the likelihood that police officers would come into contact with members of the community, including vulnerable groups.[96] He considered the need to increase Western Australia's vaccination rates to prepare for outbreaks of the Delta variant, and held the view that making entry to particular places conditional on vaccination was necessary to increase the vaccination rate to prepare for outbreaks of the Delta variant and to protect the workers and the community.[97]
[96] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [52].
[97] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [53] - [54].

A change in assessment of risk was not necessary for the Directions to be rational.
Ground 2(c) asserts that there is no rational basis for differentiating between the treatment of access to police premises by those with a medical exemption and those who consciously object to vaccination.
Dr Robertson had regard to the question of medical exemptions. He considered the size of the group would be very small. Acute medical conditions warranting exemption were rare.[98] The group unable to take a vaccine due to the risk of anaphylaxis was very small.[99]
[98] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [83].
[99] Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [85].
There is no way of determining how many people would have chosen not to be vaccinated, without measures such as the Directions. To allow access by those who chose not to be vaccinated, or perhaps those who chose not to prove vaccination, would have been to abandon the benefits Dr Robertson sought to achieve.
Ultimately, the applicant is seeking to deny any distinction between his position and the position of those who cannot be vaccinated for medical reasons. I cannot see on what basis it can be said to be outside the power conferred by the Act to draw the distinction.
Ground (d) is based upon the argument that access to police premises by unvaccinated police officers will not materially alter the risk of transmission. The applicant did not address this ground in written submissions.
Dr Robertson's advice to the Premier was that the inconsistent uptake of vaccination left him with limited options, and unvaccinated workers in settings where exposure was likely and the propensity for outbreaks high, or where vulnerable people may be exposed, could cause tremendous harm.[100] That opinion is consistent with the opinions expressed by Professor Blyth and Professor McIntyre.
[100] See, for example, Affidavit of Dr Andrew Geoffrey Robertson, sworn 8 March 2022 [47] and AGR 11, p 67.
Further, the Directions were only part of the overall response which sought to achieve the highest possible rate of vaccination in several areas that were identified as important to the continued functioning of the community should there be a Delta outbreak.
Again, it is a matter of correctly identifying the test to be applied when considering whether a direction under s 190 is irrational. If it was open to Dr Robertson to consider the Directions were reasonably necessary, having regard to the state of emergency and the serious health risk with which he was attempting to deal, the challenge must fail. The applicant has not shown that it was not reasonably open.
Ground 2(e) simply asserts that preventing unvaccinated police officers from accessing police premises will not limit the spread of COVID-19 in Western Australia. The submissions in support of it went no further.
The respondents submitted, in effect, that the complaint in this ground fails to have regard to the several purposes of the directions, including to ensure the continuity of police services, to minimise the number of persons in the community infected by interaction with infected police workers, and to afford particular protection to vulnerable people who may interact with police officers, including at police premises. The respondent submitted that maintaining the continuity of police services is a permitted object, where emergency management purposes include mitigation or prevention of the potential adverse effects of a public health emergency.
I agree with the respondents' submissions.
Further, in my opinion, it is unrealistic to assess whether the Directions are irrational in isolation from all other public health measures, including other directions, that were being put in place.
Finally, in ground 2(g) the applicant contended that it was irrational for the Directions to remain in force when there was no ongoing, periodic public health assessment.
The argument, as it was developed, was that while the directions were made on 12 November 2021, they took effect by requiring partial vaccination from 1 December 2021 and full vaccination (at that time, two doses) from 1 January 2022. The applicant submitted that the power to give Directions was intended to respond to particular risks which had arisen in the course of a state of emergency, and must be responsive to the changing environment (for example the emergence of new variants).
The applicant did not contend that the Directions were irrevocable - it was common ground at the hearing that they had been withdrawn. Nor did the applicant challenge the evidence of Dr Robertson that he regularly received up-to-date information, including daily updates in respect of aspects of the COVID-19 response. The public health state of emergency could only be extended by the Minister under s 170, upon receiving the advice of Dr Robertson, as Chief Health Officer.
The applicant has not shown that there was no ongoing public health assessment. At best, his argument is that the Directions were in place for longer than necessary. The challenge, however, is to the initial decision or conduct in making the Directions. The applicant has not shown that to be irrational.

Conclusion

None of the grounds of review has been established, the application must be dismissed.

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

23 AUGUST 2022

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FALCONER -v- CHIEF HEALTH OFFICER [No 3] [2022] WASC 270 (S)
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
PUBLISHED           :   5 OCTOBER 2022
FILE NO/S:   CIV 2286 of 2021
BETWEEN:   BEN FALCONER
Applicant
AND
CHIEF HEALTH OFFICER
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent

FILE NO/S: CIV 2308 of 2021
BETWEEN: BEN WILLIAM FALCONER
Applicant
AND
COMMISSIONER OF POLICE
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent

FILE NO/S: CIV 1081 of 2022
BETWEEN: LESLIE HENRY FINLAY
Applicant
AND
COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE)
Respondent

Catchwords:

Costs - Where applicants challenged directions issued during COVID-19 pandemic prohibiting access to workplace and ordering employees to be vaccinated - Where action was in the public interest - Whether exceptional circumstances justify a departure from general rule that costs are ordered to successful party

Legislation:

Rules of the Supreme Court
Supreme Court Act 1935 (WA)

Result:

In CIV 2286 of 2021 - Costs orders made
In CIV 2308 of 2021 and CIV 1081 of 2022 - No order as to costs

Category: B

Representation:

CIV 2286 of 2021

Counsel:

Applicant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

CIV 2308 of 2021

Counsel:

Applicant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

CIV 1081 of 2022

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Australian Building and Construction Commissioner v Pattinson [1922] HCA 13
Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373
Conservation Council of WA Inc v Chairman, Environmental Protection Authority [2022] WASC 58 (S)
Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S); (2016) LGERA 201
Kassam v Hazzard; Henry v Hazzard (No 2) [2021] NSWSC 1599
Larter v Hazard (No 3) [2021] NSWSC 1595
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

ALLANSON J:

Introduction

On 23 August 2022, I delivered judgment in each of these three actions, and programmed questions of costs to be dealt with on written submissions. While separate judgment was given in each action, it is convenient to deal with all matters of costs in one judgment. I will deal with each separately.
The costs applications raise the following issues:
(1)Should there be an order for costs in favour of the respondents, or should the court depart from the general rule regarding costs because the proceedings were brought in the public interest.
(2)What costs orders should be made for those interlocutory application where costs were reserved:
(a)Mr Falconer's application by chamber summons filed 15 December 2021, in which the court granted an interlocutory injunction against the Commissioner of Police restraining him from dismissing Mr Falconer until determination of the application.
(b)The respondents' application by chamber summons filed 17 December 2021, in which the court made orders under O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA) summarily dismissing part of the applications by Mr Falconer.
(c)Mr Falconer's applications for discovery against the Chief Health Officer and the Commissioner. The applications were granted in part.
(d)Mr Falconer's first applications for leave to adduce expert evidence at trial. The applications were dismissed.
(e)The applications by Mr Falconer and Mr Finlay to adjourn the trial following the decision by the respondents to not call the Chief Health Officer as a witness; and for a further conference between the experts.

Costs and public interest litigation

The threshold question is whether the court should make an order for costs in favour of the successful parties. The applicants submitted that the court should make an order that the costs in each action be limited to one dollar. They submitted that such an order 'would recognise the entitlement of the State parties to the costs of the proceedings as the successful respondents, but would also recognise that there was a public interest in the proceedings brought by the applicants'.
The applicants submitted there were two components to the public interest: first, the power of the respondents to make directions that restrict large sections of the workforce, or that bear on the right to bodily integrity; second, the effect of the proceedings on a number of similar proceedings brought by other groups of employees challenging similar directions.
The applicants referred to the effect of the directions in restricting the movements of people - a submission perhaps more pertinent to the directions which were challenged in New South Wales. But I accept that there is a public interest in challenging the direction of the Chief Health Officer to prohibit the attendance of people at their place of employment unless vaccinated against COVID-19, and in challenging the power of an employer to mandate vaccination.
The principles regarding the award of costs are not controversial. I summarised them recently in Conservation Council of WA Inc v Chairman, Environmental Authority.[101]
[101] Conservation Council of WA Inc v Chairman, Environmental Protection Authority [2022] WASC 58 (S) [284] ‑ [288].
The costs of and incidental to all proceedings in court are in the discretion of the court. The discretion conferred on the court by s 37(1) of the Supreme Court Act 1935 (WA) and O 56 r 7 of the Rules of the Supreme Court 1971 (WA) is, like any discretionary power conferred by statute, 'to be exercised judicially, that is, fairly and reasonably having regard to the subject matter, scope and purpose of the legislation'.[102]The discretion is otherwise unconfined.[103]
[102] Australian Building and Construction Commissioner v Pattinson [1922] HCA 13; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 [40]; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22], [65], [134]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24].
[103] See, for example Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] ‑ [22], [134]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] ‑ [25].
While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discretion cannot be rigidly applied, the Rules and the authorities offer guidance and help to ensure consistency in the exercise of judicial discretion.
Generally, costs follow the event and are awarded to the successful party to litigation.[104]
[104] See O 66 r 1.
There is no rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party.[105] Other factors 'may have a significant claim on the discretion of the Court'.[106]
[105] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [40].
[106] Gray v Richards (No 2) [2014] HCA 47; (2014) 89 ALJR 113 [2].
Relevantly, in 'public interest litigation' the court may have regard to considerations including the public interest in the outcome of the litigation, the basis of the challenge and the issues raised, and the importance of those issues for the future administration of the Act.[107] There is, however, no special rule applicable to proceedings on issues of public interest. Each case will turn on its own facts. There are exceptional cases where the court has departed from the usual order for costs in favour of the successful party where 'the successful party denied an order for costs derived a significant benefit from the litigation in the clarification of a statutory provision of ongoing importance to its regulatory or other public functions'.[108]
[107] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [20], [49].
[108] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S); (2016) LGERA 201 [40].
The applicants referred to the costs decision of Beech-Jones CJ at CL in the litigation in New South Wales challenging public health orders made in that State in response to the COVID-19 pandemic. His Honour said:
In a limited sense, at high level of generality and subject to the matters noted below, I accept that the challenges to the vaccine mandates in the public health orders can be characterised as being in the public interest and of such a nature in themselves as may warrant otherwise ordering under UCPR 42.1. The making of either a form of delegated legislation or executive act which had the effect of imposing significant differential limitations on the free movement of people of a sizable class, albeit a class defined by their own choices and not an innate characteristic, is a significant step. The type of action taken by the impugned orders is not something that has generally been undertaken since the time of war. Subject to the considerations that are addressed next, there is a strong public interest in affected persons being able to test the legal validity of such a step without facing financial ruin or at least severe hardship if the challenge fails. To so hold serves the rule of law. Further, just because the individual plaintiffs had a personal interest in the outcome of the challenge does not warrant a different conclusion. It was arguably necessary for them to possess that personal interest to have standing to bring the proceedings and they shared that interest with a large number of other affected persons …[109]
[109] Kassam v Hazzard; Henry v Hazzard (No 2) [2021] NSWSC 1599 [11].
His Honour's decision to award part only of the costs turned on some particular factual matters, including an offer made by the State to consent to the discontinuance of the proceedings and not seek costs, and the nature of the restrictions challenged. The challenged orders included restriction on persons in 'areas of high concern' from leaving their place of residence without reasonable excuse, while other restrictions precluded persons who lived in an 'area of concern' from leaving that area unless authorised.
In a second challenge in New South Wales to public health orders requiring the vaccination of health workers, where it was contended that the public health orders were manifestly unreasonable, Adamson J awarded costs to the successful defendants. Her Honour observed that the proceedings would have benefited the plaintiff and a small minority of NSW health workers who were not vaccinated, and that the argument that the orders were manifestly unreasonable was weak. In that case also, the plaintiff had refused an offer to resolve the proceedings on the basis there would be no order as to costs.[110]
[110] Larter v Hazard (No 3) [2021] NSWSC 1595.
The two cases illustrate how the court must have regard to the particular facts before it.
Before considering the application of those principles in the matters before me, there is a preliminary point. A most important guiding principle in the exercise of the court's discretion with respect to costs is that the successful party is generally entitled to their costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party.[111] If there is a reason to depart from the general rule, then the court should either not award costs or adjust the costs in a principled way. Nominal costs of $1.00 to recognise the entitlement of the successful party to the costs of the proceedings, but to in no measure compensate or indemnify that party against costs incurred, are not supported by principle.

The challenge to the Chief Health Officer Directions: CIV 2286 of 2021

[111] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [25].

The applicant's primary argument was that there is a real public interest in bringing proceedings to test the use of statutory powers to prevent access to public facilities and compel employees to receive medical treatment.
The applicant submitted that the action concerned a matter of public interest and served to clarify issues of broad importance with respect to the Public Health Act 2016 (WA). Although the particular directions had been revoked at the time of the hearing, the relevant provisions of the Public Health Act under which they were made remain in force.
I accept that the action had a public interest aspect, but that is only one factor I must consider. I have also had regard to the following matters.
First, the directions did not, in themselves, require a person to be vaccinated and did not infringe the right to bodily integrity. That should have been taken as established by the decision of the Court of Appeal in New South Wales in Kassam v Hazzard.[112] The decision was delivered on 8 December 2021, before the first directions hearing in this action.
[112] Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520.
Second, the applicant's evidence was that he had decided that he did not 'at this time' want to be administered the vaccine and described himself as pro-choice.[113] He had a private interest in avoiding disciplinary action that resulted from his refusal to obey a lawful order. His personal interest is relevant although not decisive. His reason for not wanting to be vaccinated is, in my opinion, of little if any relevance to the award of costs.
[113] Affidavit of Ben William Falconer, sworn 15 December 2021, [8].
Third, most applications for judicial review are concerned with the review of actions taken in the exercise of statutory powers, and have the function of determining the limit of government powers and holding decision makers accountable. There are, however, decisions or conduct which affect an individual or only a limited group, and those which affect the community more generally. The challenged directions affected only the workforce of the Police Service, but the result potentially applied to other, similar, directions that affected other workforces.

With respect, I accept the statement of Beech-Jones CJ at CL that it serves the rule of law for persons being able to test the validity of extraordinary orders, of the kind here in question, without facing severe financial hardship. But, as in Kassam v Hazzard, there are other considerations.
In the present matter, the underlying questions of construction of the provisions of pt 12 of the Public Health Act, which governed the power to make these and other similar directions, were determined at an early stage when I ruled on the respondents' application to summarily dismiss part of the application. The primary issue that proceeded to trial was whether the particular exercise of power in making the directions in relation to the WA Police workforce was irrational. There was a further issue relating to the precautionary principle, but it was of lesser importance and without merit.
The substance of the applicants' case at trial was that the directions prohibiting members of the Police Force from attending for work at a Police facility were disproportionate to risk, and lacked any rational basis in fact. The applicant's arguments were largely dependent on the facts, and were not compelling.
The decision on the application for summary determination was handed down on 12 January 2022. I am not satisfied that, from that date, this action was of such an exceptional nature that it justified a departure from the general rule that the court should order the costs of the action to the successful party.

Mr Falconer's challenge to the Employer Direction: CIV 2308 of 2021

The Employer Direction has an additional factor. The challenge to that direction was directly concerned with the exercise of power to order a member of the Police Force to be vaccinated. The circumstances in which the action was brought are extraordinary and the question of power under s 5 of the Police Act was untested.
The applicant's case at trial did not depend only on whether the exercise of the power was rational, but also on the existence of a power to make such a direction. While there had been several decisions regarding vaccination requirements in private employment, the validity of the particular power under the Police Act and Police Force Regulations had not been determined. I dismissed the application, but I do not consider that it lacked substance in questioning whether there is such a power.
I do not accept the respondents' submission that it would put a significant burden on public resources if every public interest entity could make applications for judicial review without risk of adverse costs orders. Each case must be looked at on its facts.
The challenge to the Commissioner's direction raised an important question of wider significance than the discipline of the individual applicant. The issues determined were not confined to Mr Falconer.
Those considerations do not apply to the whole of the application. The arguments regarding rationality were largely fact based and without merit. It would not, however, be practical to attempt to apportion some of the costs to those issues, particularly where there is such a substantial factual and evidentiary overlap with the matters raised in CIV 2286 of 2021.
This was an exceptional case. I will make no order as to the costs of the proceedings in CIV 2308 of 2021 challenging the Employer Direction issued by the Commissioner of Police.

Mr Finlay's challenge to the Employee Direction: CIV 1081 of 2022

Similar considerations apply to the application brought by Mr Finlay. While there had been several decisions regarding vaccination requirements in private employment, the question had not been considered with regard to employees or officers employed under the Public Sector Management Act, and the power of an employing authority to issue an order requiring vaccination. The question was not confined to employees in the WA Police.
There should be no order as to costs in CIV 1081 of 2022.

Interlocutory matters: CIV 2286 of 2021

The application for summary dismissal

The first of the interlocutory matters was the respondents' application by chamber summons filed 17 December 2021 for orders that the court summarily dismiss the application, in whole or in part, on the ground that it had no reasonable prospect of succeeding. I heard the interlocutory application on 23 December 2021 and published reasons on 12 January 2022.
As I have said above, at that time the proceedings raised questions regarding the construction of those parts of the Public Health Act under which the emergency powers were exercised. As a result of that decision, the issues were considerably narrowed. Grounds challenging whether the directions were made for emergency management purposes, whether there was a serious public health risk, whether the direction came within s 157, s 180 and s 190 of the Public Health Act, and whether the Chief Health Officer was an authorised officer or an emergency officer, were all summarily determined.
While I reserved costs at the time, I consider that there was a strong public interest in having those matters determined, and that the implications of the decision go far beyond the interests of Mr Falconer and the WA Police. I would make no order for costs of the application for summary dismissal.

Discovery and leave to adduce expert evidence

The second interlocutory application was Mr Falconer's application for discovery against the Chief Health Officer, and leave to adduce expert evidence.[114] The application was heard on 27 January 2022. The application for discovery was granted in part. The application for leave was dismissed. No order for costs was made at the time.
[114] The applicant also applied for discovery against the Commissioner. There should be no order for costs in the application against the Commissioner, and that extends to interlocutory matters.
The applicant sought discovery of documents in eight categories. Discovery was ordered on three categories, one of which was amended. The orders made were for limited discovery on the basis that the categories not granted were either not relevant or not essential to the fair and just determination of the issues in contention.
Before determining the application for leave to adduce expert evidence, I required the applicant to provide further information regarding the proposed 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. I refused leave to adduce evidence on those questions.
The costs of those applications should be in the cause which, in the result, are to the successful respondents.
Because the applications were brought and argued in both proceedings (that is, also in the action against the Commissioner), a fair apportionment would be that the applicant pay 50% of the respondents' costs of the applications.

The second application for leave to adduce expert evidence

On 24 March 2022, I heard an urgent application by the applicant for leave to adduce expert evidence from Professor Petrovsky. I refused the application and reserved costs. This application was relevant to the next significant decision on 30 March 2022, to adjourn the trial following the decision by the respondents to not call the Chief Health Officer as a witness.
Order 66 r 1(2) provides that, if the Court is of opinion that the conduct of a party either has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
The cases of both parties evolved over time as the trial approached. In choosing not to read the affidavit of the Chief Health Officer, the respondent altered the complexion of the case. The most significant consequences of the respondents' decision for the trial were that I permitted the applicant to call the expert evidence of Professor Petrovsky, the respondents adduced expert evidence, and the applicant chose to read the Chief Health Officer's affidavit in his case.
The applicant accepts that it was open to the respondents to make a forensic decision whether to call a witness. But he submitted that he should have 60% of his costs of getting up for the first trial date, given the significant time preparing to cross examine the Chief Health Officer, and to meet the case he understood was being advanced by the respondents.
I am not satisfied that time and costs preparing for cross‑examination of a witness who is not called should, without more, be regarded as unnecessarily or unreasonably incurred. And I cannot see how the applicant can attribute 60% of getting up to the examination of one witness, particularly when the evidence was subsequently led and formed a substantial part of the applicant's submissions on trial.
There should be no costs order for the hearing on 28 March 2022 of the application for leave to adduce the evidence of Professor Petrovsky. I would not otherwise make any adjustment to the costs orders as a result of these matters.

Miscellaneous

Costs were also reserved on the first directions hearings before me on 16 and 24 December 2021. Consistently with my view that costs should be awarded after 12 January 2022, there will be no order for costs of those hearings.
I reserved costs on 16 June 2022 on two applications brought by the applicants. The first was for these actions to be referred to mediation. The application was, in effect, in relation to the two matters concerned with the Employer Directions in which I have determined there should be no order as to costs.
The hearing on 16 June 2022 also concerned a dispute about whether the court should direct a further conference between the experts, possibly facilitated by a judge or registrar, before trial. The application did not succeed. Making a separate order for that part of the costs of the hearing which relate to the proceeding against the Chief Health Officer would be impractical. I will make no costs order for the hearing of 16 June 2022.

Conclusion

In CIV 2286 of 2021

The applicant, Mr Falconer, should pay the respondents' costs of the action incurred after 12 January 2022, including 50% of the costs reserved on the application for discovery and the application to lead expert evidence.

In CIV 2308 of 2021 and 1081 of 2022

There will be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KK
Associate to the Honourable Justice Allanson

5 OCTOBER 2022

public health means the health of individuals in the context of -
(a) the wider health and wellbeing of the community; and

(b) the combination of safeguards, policies and programmes designed to protect, maintain, promote and improve the health of individuals and their communities and to prevent and reduce the incidence of illness and disability