Falconer v Commissioner of Police - [2022] WASC 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FALCONER -v- COMMISSIONER OF POLICE [No 4] [2022] WASC 271
CORAM:   ALLANSON J
HEARD:   13 JULY 2022
DELIVERED          :   23 AUGUST 2022
FILE NO/S:   CIV 2308 of 2021
BETWEEN:   BEN FALCONER
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Administrative law - Judicial review - Where applicant is a member of the Police Force - Where Commissioner of Police issued order requiring all members of Force to be vaccinated against COVID-19 - Whether order lawful - Statutory construction - Whether right to bodily integrity curtailed by engagement of police officer to serve as member of Police Force

Legislation:

Occupational Safety and Health Act 1984 (WA)

Police Act 1892 (WA)
Police Force Regulations 1979 (WA)
Public Health Act 2016 (WA)

Result:

Application dismissed
Injunction discharged

Category: B

Representation:

Counsel:

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

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Albrech v Commissioner of Police [2015] WASC 248
Anderson v Sullivan (1997) 78 FCR 380
Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237
Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113
Bropho v Western Australia (1990) 171 CLR 1
Calabro v The State of Western Australia [2012] WASC 418
Coco v The Queen (1994) 179 CLR 427
Enever v The King (1906) 3 CLR 969
Falconer v Chief Health Officer [No 3] [2022] WASC 270
Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44
Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520
Lee v New South Wales Crime Commission (2013) 251 CLR 196
Mickelburg v The State of Western Australia [2007] WASC 140
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Mohammadi v Bethune [2018] WASCA 98
New South Wales v Briggs (2016) 95 NSWLR 467
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
NSW Commissioner of Police v Cottle [2022] HCA 7
Nugent v Stewart (Commissioner of Police) [2016] QCA 223; (2016) 261 A Crim R 383
Pense v Hemy [1973] WAR 40
Plaintiff S 157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Police Service Board v Morris (1985) 156 CLR 397
R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday v Sullivan (1938) 60 CLR 601

ALLANSON J:

Introduction

The applicant, Ben William Falconer, is a member of the Western Australian Police Force. The Commissioner of Police issued an Employer Direction requiring Police Force employees to be vaccinated against COVID-19. The applicant is not vaccinated against COVID-19 and objects to being ordered to be vaccinated.
Under the Police Act 1892 (WA) and the Police Force Regulations 1979 (WA), a member of the Police Force must not disobey or, without good and sufficient cause, fail to carry out a lawful order. The question in this action is whether the Employer Direction is a lawful order.

The applicant's engagement as a member of the Police Force

By s 5 of the Police Act 1892 (WA), the Commissioner of Police is 'charged and vested with the general control and management of the Police Force'.
As a member of the Police Force, the applicant is not employed under a contract of employment, and the Commissioner is not his employer. The applicant is an independent office-holder in the service of the Crown, exercising original authority in the execution of his duties.[1] The relations of employment and service are distinct:
[T]here is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category.[2]
[1] See NSW Commissioner of Police v Cottle [2022] HCA 7; Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237; Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113; Enever v The King (1906) 3 CLR 969.
[2] Attorney-General for New South Wales v Perpetual Trustee Co Ltd, 129; New South Wales v Briggs (2016) 95 NSWLR 467 [53].
That common law position has to some extent been modified by statute in Western Australia, but the fundamental character of the constable's office remains unchanged.[3]
[3] Pense v Hemy [1973] WAR 40; Mickelburg v The State of Western Australia [2007] WASC 140; Calabro v The State of Western Australia [2012] WASC 418; and Albrech v Commissioner of Police [2015] WASC 248.
Section 9 of the Police Act authorises the Commissioner, with the approval of the Minister, to frame rules, orders, and regulations for the general government of members of the Police Force, including 'the control, management, and discipline thereof as may be necessary for rendering the same efficient for the discharge of the several duties thereof'. In Pense v Hemy, Burt J said of section 9 that it presupposes, 'a body of law, independently existing concerning the powers, privileges, duties and responsibilities of the constable'.[4]
[4] Pense v Hemy 42.
Section 138A(1) enacts a general power to make regulations for the purpose of carrying out or giving effect to the Act. The Police Force Regulations are made pursuant to that power. Regulation 603 prescribes a general obligation to not disobey or, without good and sufficient cause, fail to carry out a lawful order.
A member who fails to comply with or contravenes any provision of the regulations, including by breach of reg 603, commits an offence against the discipline of the Force.[5] Section 23 of the Police Act provides for how disciplinary offences are dealt with. A member of the Force found to have committed such an offence is liable to punishment, ranging from a reprimand to discharge or dismissal from the Force.
[5] Police Force Regulations, reg 1601.

The making of the direction

On 12 November 2021, the Western Australian Chief Health Officer published directions under the Public Health Act 2016 (WA), the effect of which was to prohibit police officers, and others, from attending for work at any WA Police Facility unless vaccinated against COVID-19.
On 24 November 2021, following several earlier announcements, the Commissioner of Police issued an Employer Direction to all Western Australia Police Force employees, effective from 1 December 2021. Relevantly it stated:
You are directed to:
·Be vaccinated against COVID-19 in accordance with Part 1 of the Schedule to this direction unless you are exempt from the requirements of the Directions;[6] and
·Provide evidence of your vaccination, or of any exemption applying to you, in accordance with Part 2 to the Schedule to this direction.
[6] The Directions referred to are those issued earlier by the Chief Health Officer.
Part 1 of the Schedule provided:
All employees, as part of their employment, must be vaccinated against COVID-19, as follows
·Before 12:01 am on 1 December 2021 - Partially vaccinated (first dose); and
·Before 12:01 am on 1 January 2022 - Fully vaccinated (two doses).
The Employer Direction further provided for evidence of vaccination; and that failure to comply was a breach of discipline which may result in disciplinary action, the outcome of which may vary from a reprimand to dismissal.
The applicant faces disciplinary action. He challenges the validity of the Employer Direction. In a separate action, heard at the same time, he unsuccessfully challenged the directions issued by the Chief Health Officer.[7]
[7] Falconer v Chief Health Officer [No 3] [2022] WASC 270.

The application

The applicant seeks a declaration that the Employer Direction was invalid, and an injunction restraining the Commissioner from taking steps under it. The Employer Direction has since been withdrawn.
On 24 December 2021, I made orders restraining the Commissioner from dismissing the applicant in reliance on the Employer Direction until further order.
The application (as amended, following some interlocutory orders) sets out three grounds (numbered 2, 3 and 5). Within those grounds and a plethora of particulars, lies three basic contentions: the Employer Direction is not within the scope of the authority conferred on the Commissioner by the Act or regulations because it infringes the applicant's right of bodily integrity; the Employer Direction is not a proportionate exercise of the Commissioner's powers; and the Employer Direction is legally irrational.

The right to bodily integrity

The common law recognises a right to bodily integrity - the right of every adult of sound mine to determine what shall be done with their own body. That right was accepted as well established by the New South Wales Court of Appeal in Kassam v Hazzard. As Leeming JA said:
The 'right to bodily integrity' is well established. It is jealously guarded by the courts. This may be seen in the exercise of the parens patriae jurisdiction such as in Secretary, Department of Health and Community Services v JWB and SMB [Marion's Case] (1992) 175 CLR 218; [1992] HCA 15 as well as in the vindication of claims for battery in cases where there is no lawful authority (Binsaris v Northern Territory of Australia (2020) 94 ALJR 644; [2020] HCA 22) or where a patient's consent to a medical procedure is defective: Rogers v Whitaker (1992) 175 CLR 479 at 490; [1992] HCA 58.[8]
[8] Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 [166].
In Kassam v Hazzard, the court held that provisions which limited the freedom of movement or the freedom to work for those who are not vaccinated did not violate anyone's right to bodily integrity. Those provisions accepted that there were those who may choose not to be vaccinated, and respected that choice. Each was a temporary measure. Bell P observed nothing in any of the challenged Orders required, still less coerced, workers covered by those orders to be vaccinated against their will, and the Orders contained no sanction for a worker exercising their own free will and deciding not to be vaccinated.[9]
[9] Kassam v Hazzard [97].
The Employer Direction differs in a fundamental respect from that considered in Kassam v Hazzard, and from the Chief Health Officer directions I considered in Falconer v Chief Health Officer. Those directions limited certain activities to those who were vaccinated; the direction issued by the Commissioner ordered that all members of the Police Force must be vaccinated.

Does the Direction interfere with the applicant's right of bodily integrity

The Commissioner submitted that the Employer Direction did not provide for forceful vaccination, or confer authority on any person to perform a medical procedure on someone who did not consent to it. The Commissioner submitted that the effect of the order was to require a Police Officer to choose between their employment and becoming vaccinated. The only consequence of not becoming vaccinated was that an officer would be liable to be disciplined for failure to carry out a lawful order, and may face dismissal. The submissions of the Commissioner appeared to treat this as simply a 'practical effect' of failure to comply.
The applicant submitted that the Employer Direction was not limited to practical compulsion, which was already in place under the directions made by the Chief Health Officer. The applicant submitted the Employer Direction purported to legally compel a member of the Police Force to be vaccinated, on threat of legal sanction for failing to comply.
Having regard to reg 1601 and s 23 of the Police Act, the Employer Direction carries a legal sanction for failure to comply. It is not properly equated with a provision requiring a person to undergo a medical examination before commencing employment, or to be vaccinated for the purposes of or as a condition of recruitment or overseas deployment. It does not simply require the applicant to choose between compliance and leaving the Police Force. It is an order which, if valid, the applicant is legally required to obey.

Does the Commissioner have the power to order vaccination

The right to bodily integrity has been established as an important common law right. Important common law rights can only be abrogated by clear legislative intention, either by express words or by necessary implication.[10] The test of whether rights have been excluded by necessary implication is a stringent one.
General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.[11]
[10] Coco v The Queen (1994) 179 CLR 427; Bropho v Western Australia (1990) 171 CLR 1.
[11] Plaintiff S 157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 [30].
Acts which would interfere with the right to bodily integrity can be authorised by legislation. For example, the Public Health Act 2016 (WA) specifically authorises the administration of medical treatment or vaccination without consent, acts which would otherwise constitute the tort of battery. The Police Act does not.
The applicant submitted, correctly, that the question in this case is not one of consent. The question framed by the applicant is whether power has been conferred on the Commissioner to issue an order which would override the right of a member to decide what should be done with their own body, and where non-compliance would expose the member to serious penalties. The question is not whether such a power could be conferred, but whether it has been.
The office of Commissioner is a statutory office, and the powers and incidents of that officer are controlled by the statute.[12] The applicant submitted that, in determining whether the power of control and management vested in the Commissioner includes the power to make the Employer Direction, the court should be guided by the principle of legality. That principle requires the court, in construing the Police Act, to consider whether the legislature has directed its attention to the right of bodily integrity, and has determined that it should be abrogated or curtailed.[13] Like any other question of statutory construction, it is to be decided having regard to the objects, terms and context of the Act.[14]
[12] Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44.
[13] See Lee v New South Wales Crime Commission (2013) 251 CLR 196 [171] - [173], [313] - [314].
[14] Mohammadi v Bethune [2018] WASCA 98 [31] - [35].
The Commissioner submitted that the powers of control and management conferred by s 5 should not be construed as any less than those an employer may exert over an employee in order to address workforce health and capacity. The powers are sufficiently broad to enable the Commissioner to protect the health and welfare of the Police Force generally, and also to protect the community. The powers are also ambulatory, in the sense that their content would vary over time and to take account of the prevailing circumstances.
The Commissioner further submitted that the powers ought be interpreted in the context of:
(1)a hierarchical and disciplined Force, in which officers and constables are required to subscribe to an engagement and are bound to serve until legally discharged;
(2)the Force can only operate effectively if senior officers are able to give directions to those more junior;
(3)the ability to give directions may include giving directions that place a subordinate in danger; and
(4)the risk of danger, including danger to health, demands further management or control to protect officers from it.
The Commissioner submitted that the powers conferred by s 5 must now be exercised in the context of the Commissioner's obligations to protect officers from risk, including the duty under the Occupational Safety and Health Act 1984 (WA) to, so far as practicable, protect officers from health hazards. By necessary implication, the Commissioner has the power to discharge his duties under the Occupational Safety and Health Act by the Employer Direction under s 5.
Similarly, the content of control and management must be construed by reference to the Commissioner's obligations under the directions issued by the Chief Health Officer which prevented unvaccinated officers being rostered or attending police facilities.
On the facts, the Commissioner submitted, he had no option but to require unvaccinated officers to take leave without pay, to institute arrangements in which officers could elect to be vaccinated or resign, or to order vaccination. Each of those options would involve some measure of coercion or inducement.
Assuming the Employer Direction would otherwise infringe the right of bodily integrity, it is within the power of the Commissioner to do so.
The principle of legality has been said to have, at most, limited operation in the construction of legislation which has among its objects the abrogation or curtailment of the particular right, freedom or immunity.[15] In construing the powers of the Commissioner under the Police Act, the court should accept that the legislative object of providing for a disciplined Police Force may involve a public interest which cannot be pursued without impairment of some private right or immunity.[16]
[15] Lee v New South Wales Crime Commission [314].
[16] Lee v New South Wales Crime Commission [126].
To become a member of the Police Force, a person is required to subscribe to the engagement in s 10 of the Police Act, and is 'thereby bound to serve Her Majesty as a member of the Police Force'. Entering an engagement to serve as a member of a hierarchical force is not simply to enter a contract of employment. A member is required to serve until discharged.
In Police Service Board v Morris it was not in dispute that a senior officer could lawfully order a subordinate to answer questions about what occurred when he was performing, or should have been performing, his duties. The issue was whether an officer could rely on the privilege against incrimination to refuse to answer questions. Two members of the High Court found the privilege did not apply in disciplinary processes. Importantly, Wilson and Dawson JJ said the statutory scheme in that case, which obliged a member of the force to obey any order, provided for:
A disciplined force, the members of which voluntarily undertake the curtailment of freedoms which they would otherwise enjoy. It is in that context that it may be necessary to draw the implication that the privilege is excluded by a provision designed to further the effectiveness of an organization based upon obedience to command. To admit of exceptions, such as the privilege against self-incrimination, without the possibility of having regard to the circumstances in which they might have to be applied, may be alien to the nature and purposes of the organization which the legislation seeks to regulate.[17]
[17] Police Service Board v Morris (1985) 156 CLR 397, 409. See also Nugent v Stewart (Commissioner of Police) [2016] QCA 223; (2016) 261 A Crim R 383.
Brennan J said, to similar effect:
Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.[18]
[18] Police Service Board v Morris, 412.
Similarly, in Anderson v Sullivan, Finn J upheld the lawfulness of an order to a member of the Australian Federal Police to provide a sample of urine for drug testing, in the context of the distinctive nature of police forces and policing in which members' freedoms are curtailed.[19]
[19] Anderson v Sullivan (1997) 78 FCR 380, 395.

I am satisfied that the right to bodily integrity is curtailed, by necessary implication, where the effectiveness of the force is based on obedience to command, and where the nature of the office requires members to carry out duties which may expose them to harm. In New South Wales v Fahy, Gummow and Hayne JJ commented, 'Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees'.[20] Could an officer required to apprehend a potentially violent offender; or to interact closely with members of the public who have, or are suspected to have, an infectious disease such as COVID‑19, say that an order to do so interferes with their bodily integrity. Whether a member might have reasonable cause for disobeying or failing to carry out a particular lawful order is a matter to be dealt with under s 23 and pt IIA of the Act. But the infringement of a common law right which is inconsistent with membership of a disciplined force is not, in itself, a sufficient reason to declare the order unlawful.
[20] New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [27].
Before moving to the specific grounds of the application, I emphasise that I have approached this matter by reference to the particular nature of the engagement of a member of the Police Force. The nature of the employment or other relationship may be critical to whether an order mandating vaccination is lawful.

The grounds of review

Findings of fact

For the purpose of considering the grounds, it is necessary to set out a limited number of factual findings. The evidence was given on affidavit by Assistant Commissioner Whiteley, and was not challenged.
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 officers may get recalled, they may also be redeployed to other areas in response to incidents.[21]
[21] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021 [157] – [159].
In her supplementary affidavit, sworn 8 March 2022, Assistant Commissioner Whiteley provided further information on the role of a police officer. Relevantly,
(1)Patrol and Inquiry Officers, for approximately 95% of the time, are required to provide frontline services by attending to enquiries and complaints and by conducting other patrols.
(2)Officers are expected to contribute to the free and safe movement of vehicles, and the enforcement of laws by conducting active patrols.
(3)Officers are also required to contribute to the effective running of the police station, including obtaining reports from members of the public, managing people in custody, liaising with witnesses and suspected offenders. They must report regularly to their supervisors.
(4)An officer rostered on at a police station is required to assume responsibility for anyone entering police custody.
(5)Officers are regularly required to attend court to give evidence and for other purposes.
(6)An officer in a regional location may be called upon to respond to matters at any time of the day or night.
(7)Officers may be deployed from any location to respond to needs at any other location within the State.
(8)During the pandemic, the Police Force has been working in partnership with the Hazard Management Agency in various roles, 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 identified; arresting and managing individuals who are COVID-19 positive; maintaining essential police services and maintaining public order.
Because of the risk of reduced capability due to infection, business continuity planning remains a priority to manage increasing exposure risk and absences from the workplace.
At 12 November 2021, 95.1% of Police Force personnel had received one dose of COVID-19 vaccine, and 89.9% had received two doses.

Ground 2 - the Commissioner's powers as employer

The first ground (ground 2 of the substituted application) contends that the Employer Direction is not a lawful and reasonable direction given by the Commissioner as an employer under the Police Act and Regulations, and/or the contract of employment. The ground is fundamentally flawed to the extent that it regards the Commissioner as an employer, and the relationship between the applicant and the Commissioner as one governed by a contract of employment. The common law regarding an employee's obligation of obedience to the commands of an employer,[22] is not the proper test in this context.
[22] See, for example, R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday v Sullivan (1938) 60 CLR 601 at 621 - 622.
The ground cannot succeed.

Ground 3 - allegations of want of power

Ground 3 alleges, generally, that the Employer Direction is beyond power because the Commissioner was not authorised to make it under the Public Health Act or the Police Act.
The Public Health Act can be immediately put aside. There is no question of the Employer Direction being made under that Act. Its validity must be determined by reference to the Police Act.
Ground 3(a) is premised on the Chief Health Officer Directions being invalid. Those Directions are valid, for the reasons I have given in Falconer v Chief Health Officer, and ground 3(a) must fail.
Ground 3(b) alleges the Employer Direction misconstrues and goes beyond the terms of the Chief Health Officer Directions. There is no doubt that the Employer Direction goes further than the directions made by the Chief Health Officer. They directly order members of the force to be vaccinated, where the Chief Health Officer stopped short of that step.
The evidence does not, however, support a finding that the Commissioner misconstrued the Chief Health Officer Directions. The Commissioner issued a broadcast to members on the same day as the Employer Direction. He stated that, as Commissioner, he had a duty to take measures to protect the community, including employees of the Police Force, against the threat of COVID-19. He further stated that medical advice from the Chief Health Officer was that vaccination was a key measure to protect against the pandemic.[23]
[23] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 54.
The section of the Employer Direction headed 'Overview' stated that the Commissioner had earlier advised all employees of the Chief Health Officer Directions, correctly setting out the effect of those Directions, and continued:
I further advised that I was proposing to separately direct employees to be vaccinated against COVID-19, and provide evidence of vaccination, or exemption from vaccination, on or after 1 December 2021. Having considered the feedback and available information, I am issuing an Employer Direction…[24]
[24] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 55.
Further, the applicant establishes no basis for the contention that the Commissioner could not make orders that go beyond what the Chief Health Officer directed. The Commissioner relied on an independent source of power. Nothing in the Public Health Act limits the Commissioner's powers either expressly or implicitly.
Ground 3(c) contends that the Employer Direction is not reasonably appropriate and adapted or proportionate to the implementation of the Chief Health Officer Directions. While the Employer Direction is clearly a response to the effect of the Directions, its validity is not determined by whether and to what extent it implements the Chief Health Officer Directions. The Employer Direction contains separate orders to meet the situation where members of the Police Force cannot lawfully attend their place of work and cannot carry out their duties as police officers unless vaccinated and where the Commissioner could reasonably consider that vaccination was an important measure to protect the Police Force and the community.
The question of proportionality arises also in Ground 5 and I will deal with that there.
Ground 3(e) was argued by reference to the power of the Commissioner to make orders that infringe the bodily integrity of members of the Police Force, that underlying issue is dealt with earlier in these reasons.

The additional ground

At the hearing, the applicant amended his application to add a further ground 3(f) that the Commissioner's power under s 5 of the Police Act is constrained by s 162 and s 202 of the Public Health Act, and the Employer Direction is beyond power because it would circumvent those protective provisions.
The relevant part of each section is in the same terms, and provides that a person must comply with a direction given under either s 157 or s 190 and:
(a)no civil or criminal liability is incurred as a result of that compliance; and
(b)complying with the direction is not to be regarded as -
(i)a breach of any duty of confidentiality or secrecy imposed by law; or
(ii)a breach of professional ethics or standards or any principles of conduct applicable to the person's employment; or
(iii)unprofessional conduct.
The effect of the Employer Direction is to impose a separate obligation on those subject to it to be vaccinated. It does not regard an unvaccinated officer who complies with the Directions as having breached any duty, or principle of conduct applicable to that person's employment. Disciplinary proceedings are not brought because an unvaccinated officer has complied with the Directions and not attended his place of work, but because that officer has refused an order that they be vaccinated.
Ground 3(f) is without merit.

Ground 5 - irrationality

Ground 5 alleges legal irrationality, with 12 paragraphs that are headed 'Particulars' but are, in effect, separate allegations. I set out the legal principles relating to an allegation of irrationality in my reasons in Falconer v Chief Health Officer, but it is convenient to summarise them here briefly before discussing the specific allegations.
There is a presumption that any discretionary power conferred by statute will be exercised reasonably. The following propositions are drawn from the reasons of Hayne, Kiefel, and Bell JJ in Minister for Immigration and Citizenship 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.
Clearly, there is a degree of overlap between rationality and proportionality, but they are not effectively interchangeable terms.
The applicant relied on the submissions he made with regard to 'testing proportionality' in the proceedings regarding the Directions issued by the Chief Health Officer. As in that action, I do not accept the argument that the test of whether a measure is suitable, necessary and adequate in its balance should be transplanted from the context of measures limiting an exercise of power by reference to a constitutionally protected right or freedom.
There may be circumstances where a disproportionate exercise of an administrative discretion may be characterised as irrational and also as unreasonable on the basis that it exceeds what, on any view, is necessary for the purpose it serves.[25] But, as Allsop CJ said in Minister for Immigration v Stretton:
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.[26]

The particulars

[25] Minister for Immigration and Citizenship v Li[2013] HCA 18; (2013) 249 CLR 332 [30] (French CJ).

[26] Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 [21] - [22].

Particular 5(a) contends that the Employer Direction cannot rationally address any risk to health and safety to the workforce or community which has not already been addressed by the CHO Direction. It assumes that the Employer Direction addresses only the same objects as the Chief Health Officer Directions. This assumption is flawed. While the Chief Health Officer Directions were in force, unvaccinated officers could not attend to their duties, and the Commissioner was prevented from rostering them. To that extent the two directions were connected, and the practical effect of the Chief Health Officer Directions was something the Commissioner was required to manage.
The Chief Health Officer Directions addressed the health and safety of the workforce and the community by removing unvaccinated officers from the workplace. It may have been within the powers of the Chief Health Officer to go further for the purposes of emergency management, but the Chief Health Officer Directions do not.
The Employer Direction issued by the Commissioner is clearly directed to ensuring not only that unvaccinated employees do not attend WA Police facilities, but that members of the Police Force are available to carry out the duties they have undertaken to discharge. That requires officers to be vaccinated.
I have earlier held that the Commissioner has power to issue such an order. There is no irrationality, in the relevant sense, disclosed by this particular.
Particular 5(b) contends that it is legally irrational for the Commissioner to take the approach he did, when there were other options available. In particular, the applicant contends that members of the WA Police Force could perform a range of functions without entering police premises.
First, it is not sufficient to establish a measure is irrational by showing that there were other options available.
Second, I have earlier set out the evidence of Assistant Commissioner Whiteley on the role of the members of the police force, particularly during the pandemic. Under s 11 of the Police Act, each member of the force was bound to serve, on subscribing the engagement under s 10, until legally discharged. Those officers who chose not to be vaccinated were unable to discharge the duties of their office faithfully according to law. It is not consistent with the operation of a disciplined force that officers may choose which duties they will be able to carry out.
The applicant has not established the Commissioner's failure to adopt some alternative response to the COVID-19 pandemic and the Directions made by the Chief Health Officer was irrational in the relevant sense.
Particular 5(c) asserts that there was no rational basis for the Employer Direction when the police workforce had performed its work since the advent of the pandemic without any identified risk to health.
This application was heard together with Falconer v Chief Health Officer, and the evidence was received in both cases. All of the expert witnesses agreed that an outbreak of COVID-19 could have occurred at any time in Western Australia, even though it can be seen with hindsight that the border control measures were effective. Professor Blyth and Professor McIntyre commented that the risk was ever present, and undetected community transmission had been shown in other jurisdictions to be present for weeks before detection. And it could not reasonably have been expected that the borders would remain closed forever.[27]
[27] See Exhibit 1, P17.
At the date of the hearing, it is common knowledge that the borders are open, and the transmission of COVID-19 in the community has been widespread.
The evidence shows the importance of two doses of vaccine for protection. I cannot see how it was so unreasonable, and therefore legally irrational, for the Commissioner to act on the risk of COVID-19 entering the community, rather than wait for that risk to be realised.
In particular 5(d) the applicant alleges that it was irrational for the Employer Direction to apply without differentiation by reference to nature of work, whether an officer was on leave, location of work, or other factors.
The applicant relied on his evidence that there was a range of functions which officers could perform without entering police premises.
The Commissioner submitted that it is not unreasonable in the relevant sense, with a large and broadly spread workforce, an ongoing pandemic, and the restrictions imposed by the Chief Health Officer Directions for the Commissioner to make a straightforward and simple direction.
The evidence of Assistant Commissioner Whiteley, summarised earlier in these reasons, is inconsistent with the applicant's contention that officers could continue to carry out their duties without entering police premises. As a matter of fact, the applicant has not established that he (or others) could continue to carry out his duties in accordance with his engagement. That engagement is not confined to those tasks which can be found for him and that do not involve failure to comply with the Chief Health Officer directions.
The evidence also shows that the Commissioner considered the need for all staff, regardless of where they worked or the duties they performed, to be vaccinated because of the risk of exposure in the course of their day-to-day duties.[28] He requested advice about venue or function specific priorities, while considering that every police station and facility may, at any time, be needed to respond to emergencies.[29] The Chief Health Officer initially recommended mandatory vaccination in mission critical areas.[30] In later advice, the Chief Health Officer advised that vaccination was the most effective intervention for the prevention of disease and to avoid essential policing services being jeopardised.[31]
[28] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 10.
[29] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 19.
[30] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 20.
[31] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 29. See also KMW 40.

It is also relevant that, by reason of the Chief Health Officer Directions, officers were unable to carry out their duties unless vaccinated.
On the evidence, it was open for the Commissioner to conclude that a single direction applying to all officers was reasonable or necessary for the purpose of protecting the health of the Force and the continuation of essential police functions.
Particular 5(e) is based on the whether the number of members who were not vaccinated would make a material difference.
The Employer Direction was made at a time when the highly transmissible Delta variant was the predominant variant of COVID-19 in the community.
The Commissioner had received advice from the Chief Health Officer on 25 August 2021. In that letter, Dr Robertson advised that, should transmission occur, the potential impacts of COVID-19 infection on the WA police workforce could be significant with the potential to cause serious illness and to jeopardise the continuity of essential policing services with broader adverse impacts on the community. Dr Robertson advised that vaccination was the most effective intervention for the prevention of the disease, that it was safe and effective, and that although voluntary compliance be preferable, unvaccinated workers who may spread the virus could cause tremendous harm. At that time, Dr Robertson recommended the mandating of vaccination for those working in mission-critical areas.[32]
[32] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 29.
Dr Robertson had also written to the Premier on 19 October 2021, a letter that was available on the WA Government website.[33] In this letter, Dr Robertson advised that further mandatory vaccination directions were required for workforces at a high risk of exposure, with a greater potential to transmit to vulnerable populations, or themselves critical to the functioning of society. He specifically referred to the WA Police Force and the strong public health benefit in mandating vaccination for the entire workforce. While Dr Robertson took a restricted view of mandating - requiring vaccination only for those attending Police facilities - the Commissioner was not so constrained.
[33] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021 [75] - [76]; KMW 40.
To show that the Employer Direction was irrational, the applicant must show that, despite the Commissioner receiving or being aware of that advice, it was not open to him to regard vaccination of the whole workforce (subject only to exemptions given under the Chief Health Officer Directions) to be a reasonable or necessary response to the situation facing the Police Force and the State. He has not done so.
Particular 5(f) alleges there was no rational basis for the Employer Direction because police workers to whom it applies may remain unvaccinated in the community if terminated from employment, thus making no difference to the level of threat they would pose to the community and the police workforce with whom they could interact as private citizens.
The premise of this ground is contrary to the advice given by the Chief Health Officer. Vaccination was recommended for workforces at a high risk of exposure, with a greater potential to transmit to vulnerable populations, or themselves critical to the functioning of society. It was open to the Commissioner to consider that the level of threat posed to the community by unvaccinated private citizens was materially different from the threat posed by serving police officers.
Particular 5(g) contends that preventing unvaccinated police officers or other members of the police workforce from remaining in employment in any capacity whatsoever is untethered from any risk identified in the Employer Direction or in the Directions.
The applicant submitted that the Commissioner uncritically adopted the logic of the Chief Health Officer Directions without turning his mind to whether the Employer Direction is a 'necessary or rational' response to the requirements imposed by the Chief Health Officer Directions. Ultimately, the submission was that the Employer Direction was unreasonable because there were alternative ways of ensuring compliance with the Chief Health Officer Directions.
On questions of policy, where there is an area of decisional freedom, irrationality, in the relevant sense, cannot be established simply by showing a failure to adopt alternative measures. The applicant must go further and show it was arbitrary or capricious to adopt the chosen alternatives.
More generally, the applicant is inviting the court to, first, decide that the lawful purpose for the Employer Direction is to ensure compliance with the Chief Health Officer Directions; and second, decide for itself what is necessary for the that purpose. Both limbs of the argument fail. The Employer Direction is not confined to implementation of or compliance with the Chief Health Officer Directions. And it is not for the court to decide what is necessary.
In particular 5(h), the applicant contends that the Commissioner failed to apply any independent thought or rational analysis to the level of risk arising from not requiring vaccinations compared to the identification of the comparative adverse consequences of making the direction on affected employees.
The evidence does not disclose a factual basis for this contention, either directly or as an inference from the result of the direction. To the contrary, the evidence shows consideration of over many months.
The first broadcasts by the Commissioner to employees advised the availability of vaccination, and that it was voluntary but strongly encouraged.[34] Over the course of 2021, advice was progressively given in broadcasts by the Commissioner which clearly show an appreciation of the risk to unvaccinated staff. On 3 August 2021, a broadcast authorised by the Commissioner advised a policy that all unvaccinated employees would be required to wear facemasks while at work.[35] At the same time, the Commissioner sought advice from the Chief Health Officer in respect of vaccinating WA Police Force personnel. The Commissioner expressed concern at the attrition attributed to the Delta variant, and the consequences for police staff, their families and colleagues, and the capacity for the police to perform the duty. In seeking that advice, the Commissioner referred specifically to his expectation that some personnel may elect not to receive vaccination on medical or philosophical grounds, and on that basis sought advice as to a 'venue and/or function specific priority' that would include the Police Operations Centre, the Tactical Response Group and State Operations Command Centre, and the Perth Watchhouse.[36]
[34] See Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 1 - KMW 6.
[35] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 17.
[36] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 19.
The Commissioner sought advice again on 20 August 2021, referring specifically to his obligations regarding the health and safety of WA Police Force staff, and the requirement to maintain the continuity of essential policing services throughout the pandemic.[37]
[37] Affidavit of Kylie Maree Whiteley, sworn 16 December 2021, KMW 27.
The Commissioner was advised, throughout this process, that vaccination was safe, effective, and the recommended measure to meet the risks of COVID-19.
The ground has not been established.
Particulars 5(i) and 5(l) are related. The applicant contends that it was irrational to make the Employer Direction without any regard to the likely duration of the State of Emergency and thus the duration of the Chief Health Officer Directions in making the Employer Declaration; and that it was irrational for the Employer Direction to remain in force without ongoing, periodic public health risk assessment.
First, there is no evidence about whether the likely duration of the state of emergency was taken into account. If it is a fact on which the applicant relies, it is a fact which the applicant must prove.
Second, there is no dispute that the Employer Direction could be withdrawn or cancelled at any time, and it was withdrawn in June 2022. The applicant has not shown, as a fact, that the need for the Employer Direction to remain in place was not considered.
Third, there is no separate challenge to any decision or conduct to keep the Employer Direction in place, and no time is specified for when its continuation became irrational.
Particular 5(j), alleges that mandating vaccination of police officers in the circumstances of the Employer Direction will not limit the spread of COVID-19 in Western Australia.
The ground assumes that the only rational justification for the Employer Direction was limiting the spread of COVID-19 in Western Australia. The evidence referred to throughout these reasons shows that to be a false assumption. The maintenance of essential police services was an important purpose.
The evidence also shows that vaccination is effective in reducing rates of infection, and thus transmission, although that effect wanes over time.[38] Two doses of vaccine had been demonstrated as effective in preventing severe disease (that is, disease requiring hospitalisation or causing death).[39] Those matters are all relevant to the purpose of the direction.
[38] Exhibit 1, P10, P11.
[39] Exhibit 1, P3.
Particular 5(k) alleges that a policy without exemption for conscientious objection is inconsistent with the stated purpose of increasing the protection of the community and the work force via increased levels of vaccination.
The evidence does not establish a factual basis for this ground, or that there was only one purpose in not providing for conscientious objection. In any event, the applicant's argument does not take into account that, in any exercise of discretion, there are likely to be competing considerations to be balanced.
The applicant relied on the particulars to ground 5 as cumulatively showing that the conduct of the Commissioner in issuing the Employer Direction was legally irrational. In summary, I am not satisfied that the applicant has established the factual basis for his contentions. All of the evidence establishes that the COVID-19 pandemic was, and remains, an extraordinary emergency. It was not, in the words of counsel for the applicant, a maelstrom in a petri dish. The measures that were taken are undoubtedly extraordinary, but that does not establish that they lacked rationality so as, for that reason, to be beyond power.
The application will be dismissed. The order of 24 December 2021 restraining the first defendant will be discharged.

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