Falconer v Commissioner of Police [No 2]
[2024] WASCA 47
•1 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FALCONER -v- COMMISSIONER OF POLICE [No 2] [2024] WASCA 47
CORAM: BUSS P
VAUGHAN JA
HALL JA
HEARD: 6 SEPTEMBER 2023
DELIVERED : 30 APRIL 2024
FILE NO/S: CACV 85 of 2022
BETWEEN: BEN WILLIAM FALCONER
Appellant
AND
COMMISSIONER OF POLICE
Respondent
FILE NO/S: CACV 87 of 2022
BETWEEN: LESLIE HENRY FINLAY
Appellant
AND
COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE)
Respondent
ON APPEAL FROM:
For File No: CACV 85 of 2022
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: FALCONER -v- COMMISSIONER OF POLICE [No 4] [2022] WASC 271
File Number : CIV 2308 of 2021
For File No: CACV 87 of 2022
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: FINLAY -v- COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE) [2022] WASC 272
File Number : CIV 1081 of 2022
Catchwords:
Appeals - Administrative law - Appellants sought judicial review of direction by Commissioner of Police to police officers and Police Department employees to be vaccinated against COVID‑19 - Whether direction infringed right to bodily integrity - Whether Commissioner had authority to infringe right to bodily integrity - Principle of legality - Whether statutory provisions relied upon to issue direction curtailed or abrogated right to bodily integrity - Whether s 202(3) of Public Health Act 2016 (WA) constrained power to issue direction
Legislation:
Police Act 1892 (WA), s 5, s 10, s 12
Police Force Regulations 1979, reg 603
Public Health Act 2016 (WA), s 202(3)
Public Sector Management Act 1994 (WA), s 29(1)(g)
Result:
Appeals dismissed
Category: A
Representation:
CACV 85 of 2022
Counsel:
| Appellant | : | S E J Prince SC & B J Tomasi |
| Respondent | : | K M Pettit SC & J F Bennett |
Solicitors:
| Appellant | : | Lawfield Legal Practice |
| Respondent | : | State Solicitor's Office |
CACV 87 of 2022
Counsel:
| Appellant | : | S E J Prince SC & B J Tomasi |
| Respondent | : | K M Pettit SC & J F Bennett |
Solicitors:
| Appellant | : | Lawfield Legal Practice |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Airedale NHS Trust v Bland [1993] AC 789
Anderson v Sullivan (1997) 78 FCR 380
Attorney‑General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237
Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Binsaris v Northern Territory of Australia [2020] HCA 22; (2020) 270 CLR 549
BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 269 CLR 574
Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29
Bropho v The State of Western Australia [1990] HCA 24; (1990) 171 CLR 1
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Collins v Wilcock [1984] 1 WLR 1172
Enever v The King [1906] HCA 3; (1906) 3 CLR 969
Falconer v Chief Health Officer [No 2] [2022] WASC 29
Falconer v Chief Health Officer [No 3] [2022] WASC 270
Falconer v Commissioner of Police [2022] WASCA 157
Falconer v Commissioner of Police [No 3] [2022] WASC 30
Falconer v Commissioner of Police [No 4] [2022] WASC 271
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272
Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55
Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269
Governing Council of North Metropolitan TAFE v The State School Teachers' Union of WA (Inc) [2019] WASCA 120
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
In re F (Mental Patient: Sterilisation) [1990] 2 AC 1
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
Kassam v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Montgomery v Lanarkshire Health Board [2015] UKSC 11
New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569
NSW Commissioner of Police v Cottle [2022] HCA 7; (2022) 96 ALJR 304
Nugent v Commissioner of Police (Qld) [2016] QCA 223; (2016) 261 A Crim R 383
Parkinson v St James NHS Trust [2001] EWCA Civ 530; [2002] QB 266
Pense v Hemy [1973] WAR 40
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328
R (West) v Parole Board [2002] EWCA Civ 1641; [2003] 1 WLR 705
R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459
Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369
S v S [1972] AC 24
Schloendorff v Society of New York Hospital (1914) 211 NY 125, 129; 105 NE 92
Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379; (2016) 95 NSWLR 157
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871
Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
BUSS P & VAUGHAN JA:
Introduction
These two appeals were heard together. At the time of the relevant events the appellant in appeal CACV/85/2022,[1] Ben Falconer,[2] was a member of the Western Australian Police Force. The appellant in appeal CACV/87/2022,[3] Leslie Finlay, was a public service officer employed in the Police Department. The Commissioner of Police is a respondent to both appeals.[4]
[1] Appeal CACV/85/2022 will be referred to as the Falconer appeal.
[2] At all material times, up to and including the hearing of the appeals, Mr Falconer was a senior constable. Accordingly, he would ordinarily be referred to as 'Senior Constable Falconer'. However, in the interests of concision and without intending any disrespect, we will refer to him as 'Mr Falconer'.
[3] Appeal CACV/87/2022 will be referred to as the Finlay appeal.
[4] The State of Western Australia was initially joined as the second respondent in the Falconer appeal. It was later removed as a respondent.
There are overlapping issues in the appeals so far as they arise in the same factual context. The two appellants have the same legal representatives in the two appeals. So too the Commissioner retains the same counsel and solicitors for both appeals. The parties in the Finlay appeal also refer generally to and rely on the submissions that have been made in the Falconer appeal. In the circumstances it is convenient to deal with the appeals in a single set of reasons. We will differentiate between the two appeals, and the resolution of them, where that is necessary or appropriate.
The appeals arise out of two decisions of Allanson J: Falconer v Commissioner of Police [No 4][5] and Finlay v Commissioner of Police.[6] The primary judge handed down the two decisions on the same day. His Honour heard the two primary proceedings over three days together with a third set of proceedings. The third proceedings also involved Mr Falconer. But in the third proceedings the defendants were the Chief Health Officer and the State of Western Australia rather than the Commissioner. The primary judge also provided separate reasons in the third proceedings: Falconer v Chief Health Officer [No 3].[7] An appeal by Mr Falconer against the primary judge's decision in the third proceedings was to be heard with the present two appeals. However, Mr Falconer discontinued that appeal immediately before the appeal hearing.
[5] Falconer v Commissioner of Police [No 4] [2022] WASC 271 (Falconer reasons).
[6] Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272 (Finlay reasons).
[7] Falconer v Chief Health Officer [No 3] [2022] WASC 270.
The appeals arise out of the Western Australian State Government's executive response to the COVID‑19 pandemic.
Both appellants challenge the validity of a direction entitled 'Employer Direction Effective 1 December 2021'[8] issued by the Commissioner on 24 November 2021. The Employer Direction followed earlier directions issued by the Chief Health Officer under the Public Health Act 2016 (WA). In effect, among other things, the Employer Direction directed the appellants to be vaccinated against COVID‑19. The primary judge held, in substance, that the direction mandating COVID‑19 vaccination was valid and lawful.
[8] We will refer to this as the Employer Direction, conformably with its title, even though there is an issue in the appeal as to whether sworn police officers are relevantly 'employees'.
At the heart of the two appeals are the appellants' contention that the Employer Direction is not within the scope of the authority conferred on the Commissioner because the direction to vaccinate infringed Mr Falconer's and Mr Finlay's right to bodily integrity. Alternatively, the appellants contend that, on its proper construction, s 202(3) of the Public Health Act is a protective provision that protects employees from adverse employment consequences as a result of complying with a direction made under pt 12 of that Act (such as the Chief Health Officer's directions) and in that respect s 202(3) conditions and constrains the exercise of the various statutory and general law powers relied on for the Employer Direction.
Accordingly, the appellants challenge the validity of the Employer Direction on the ground that it is not authorised and beyond power.
In this respect, in these appeals the court's sole function is to determine whether the Employer Direction is legally invalid due to one or both of the two matters relied on by the appellants. Despite both parties, at times, couching their submissions in terms more directed to the necessity or reasonableness of the Employer Direction in the circumstances that then confronted the Commissioner, it is not for this court to consider the merit of the Commissioner's purported exercise of power in issuing the Employer Direction. The court is concerned solely with the confined questions of legality agitated by the appellants on appeal - those questions largely raising for consideration the scope of the Commissioner's power to mandate vaccination against COVID‑19.
For the reasons that follow both appeals should be dismissed. While, in its application to Mr Falconer, the Employer Direction mandating COVID‑19 vaccination infringed the right to bodily integrity, that was not the case in relation to Mr Finlay. Even though, as to Mr Falconer, the Employer Direction infringed the right to bodily integrity, it was nonetheless duly authorised as being within the Commissioner's power to control and manage the Police Force under s 5 of the Police Act 1892 (WA). The argument based on s 202(3) of the Public Health Act is without merit. The primary judge was not in error, in either of the ways asserted in the two grounds of appeal, in finding that the Employer Direction was valid and lawful.
The factual background
The World Health Organisation declared COVID‑19 a pandemic on 11 March 2020. In Western Australia, the Minister for Health declared a public health state of emergency in respect of COVID‑19 on 16 March 2020.[9] The declaration was made pursuant to s 167 of the Public Health Act. A further public health state of emergency was declared on 22 September 2021. The public health state of emergency applied to the whole of the State of Western Australia.
[9] Western Australia, Government Gazette, No 37 (18 March 2020) 633. It might, however, be observed that the Police Force Worker Directions recorded that the public health state of emergency was declared with effect from 1.30 pm on 23 March 2020.
At the relevant time Mr Falconer was a senior constable stationed at a regional police station. Mr Finlay was employed in the Police Department as a call taker/radio operator. Pursuant to the Public Sector Management Act 1994 (WA) the Commissioner is deemed to be the chief executive officer of the Police Department (s 4(3)) and the 'employing authority' of public service officers employed in the Police Department (s 5(1)(c)(i)).
On 12 November 2021 the Chief Health Officer published directions under the Public Health Act. These directions were entitled 'WA Police Force Worker (Restrictions on Access) Directions'.[10] The effect of these Police Force Worker Directions was to prohibit police officers,[11] and others such as Police Department employees like Mr Finlay, from attending at any WA Police facility unless vaccinated against COVID‑19 or exempt from vaccination.
[10] We will refer to these directions as the Police Force Worker Directions.
[11] These reasons refer to 'police officers' with the intention of encompassing commissioned officers, non‑commissioned officers and constables, among others, appointed for the purposes of and under the Police Act. Each such police officer is a 'member' of the Police Force and will be referred to as such in these reasons.
The preamble to the Police Force Worker Directions stated:
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.
Paragraph 4 of the Police Force Worker Directions was headed 'Access Restrictions Applying to WA Police Force Workers'. It provided:
Subject to paragraphs 5 and 6:
(a)on and from 12:01 am on 1 December 2021, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been partially vaccinated against COVID‑19; and
(b)on and from 12:01 am on 1 January 2022, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been fully vaccinated against COVID‑19,
unless the person is present at the WA Police facility solely in a capacity other than as a WA Police Force worker. (bold emphasis in original to designate initial use of a defined term)
Paragraphs 5 and 6 are presently irrelevant. In terms of the definitions used in par 4:
Fully vaccinated means that the person has been administered with two doses of a COVID‑19 vaccine registered by the Therapeutic Goods Administration.
Partially vaccinated means that the person has been administered with one dose of a COVID‑19 vaccine registered by the Therapeutic Goods Administration.
WA Police facility means any premise owned, leased or operated by the WA Police Force where a police or police-related service is delivered other than a mission critical area, including but not limited to a vehicle, vessel or aircraft.
Note: A WA Police facility includes a police station, a multi-functional a police facility, a district detective office, a police headquarters and a police custodial facility.
WA Police Force worker means a person of the kind set out in Column 1 of the table in Schedule 1 other than an exempt person (even if the exempt person falls within Column 1 of the table in Schedule 1).
The prohibition in par 4 of the Police Force Worker Directions did not apply to an exempt person (such a person was not a 'WA Police Force worker' as defined). The term 'exempt person' included a person who had a medical exemption or a temporary exemption from vaccination. There is no suggestion that either Mr Falconer or Mr Finlay was an exempt person for the purpose of the Police Force Worker Directions.
Column 1 in sch 1 of the Police Force Worker Directions identified as a 'WA Police Force worker':
A person who is a police officer appointed under the Police Act 1892 (WA) to be a member of the Police Force of Western Australia;
A person employed in the Police Service.
Each of Mr Falconer and Mr Finlay was a WA Police Force worker. Mr Falconer met the first description in column 1 of sch 1; Mr Finlay met the second description. Accordingly, from 12:01 am on 1 December 2021 Mr Falconer could not, if unvaccinated, attend the police station to which he was attached. Nor could Mr Falconer enter a police station. These restrictions, it may be inferred, would prevent Mr Falconer carrying out his assigned duties as a senior constable in a regional location. Nor, if unvaccinated, could Mr Finlay carry out his duties as an employee.[12] Moreover, as will be seen, the Commissioner could not lawfully permit Mr Falconer or Mr Finlay to work in a WA Police facility while the Police Force Worker Directions were in force.
[12] Finlay reasons [27].
In the latter respect, other aspects of the Police Force Worker Directions should be noted. A WA Police Force worker could be required to provide evidence of his or her vaccination status (par 8). The employer or the WA Police had to take all reasonable and lawful steps to collect and maintain a record of the vaccination status of each WA Police Force worker (par 8(a)(i)). Importantly, the employer or WA Police had to take all reasonable and lawful steps to only roster on, or otherwise permit to work in a WA Police facility, a WA Police worker who was vaccinated or was an exempt person in accordance with the directions (par 8(a)(ii)).
It was an offence for a person to fail, without reasonable excuse, to comply with any of the directions. The offence was punishable by a fine of up to $20,000 for individuals.[13]
[13] Public Health Act s 202(1).
The appellants suggest that, although not in terms, the Police Force Worker Directions were in substance a direction that mandated vaccination.[14] That mischaracterises the Police Force Worker Directions. They did not mandate vaccination. The Police Force Worker Directions took the different course of preventing a non-vaccinated WA Police Force worker from attending a WA Police facility. There was, in contradistinction to the Employer Direction issued by the Commissioner, no requirement to be vaccinated under the Police Force Worker Directions. However, as will now be seen, the Employer Direction did purport to compel vaccination.
[14] Mr Falconer's submissions par 13 WAB 7.
On 24 November 2021 the Commissioner issued the 'Employer Direction' to all WA Police Force members and employees including both sworn police officers (such as Mr Falconer) and those employed under the Public Sector Management Act (such as Mr Finlay). The Employer Direction was effective from 1 December 2021. The Employer Direction referred to the substance of the Police Force Worker Directions and then stated under the heading 'Employer Direction':
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 [Police Force Worker Directions]; and
•Provide evidence of your vaccination, or of any exemption applying to you, in accordance with Part 2 of the Schedule to this direction.
Part 1 of the Schedule to the Employer Direction 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). (emphasis added)
The Employer Direction went on to state:
Failure to comply with this employer direction is a breach of discipline which may result in disciplinary action. The outcomes of such disciplinary action may vary from a reprimand to dismissal.
…
If you do not comply with a requirement of this direction, this may be addressed as a disciplinary matter. Disciplinary action can range from reprimand to dismissal.
At the relevant time Mr Falconer was not vaccinated and did not intend to become vaccinated.[15] That was also the position with Mr Finlay.[16] As mentioned, there is no suggestion that either of Mr Falconer or Mr Finlay was exempt from the requirements of the Police Force Worker Directions.
[15] Falconer reasons [1].
[16] Finlay reasons [1].
A number of observations should be made about the Employer Direction and the requirement to be vaccinated:
1.The Employer Direction went beyond the Police Force Worker Directions. It required 'as part of their employment' that, unless exempt, all sworn police officers and other WA Police Force employees be vaccinated against COVID‑19. WA Police Force members and employees were positively directed to be vaccinated as contemplated by pt 1 to the schedule to the Employer Direction rather than merely not entering, or remaining at, a WA Police facility if unvaccinated (as was provided for under the Police Force Worker Directions).
2.The Employer Direction foreshadowed disciplinary action in the event of non-compliance with the direction.
3.Vaccination is undoubtedly a medical treatment[17] - thus the requirement to be vaccinated mandated a medical treatment as a condition of the sworn police officers' continuing service and the other employees' continuing employment.
4.In context the Employer Direction vaccination requirements to be 'partially vaccinated (first dose)' and 'fully vaccinated (two doses)' by certain times referred to the 'partially vaccinated' against COVID‑19 and 'fully vaccinated' against COVID‑19 as found in the Police Force Worker Directions. Accordingly, the reference was to doses of a COVID‑19 vaccine registered by the Therapeutic Goods Administration.
5.There was no issue in the litigation about the validity of the Minister of Health's declaration of a public health state of emergency within Western Australia.
6.There was no issue in the litigation that COVID‑19 presented a serious public health risk.
7.There was no issue in the litigation that the available vaccinations against COVID‑19 materially reduced the serious public health risk presented by COVID‑19.
8.There was no issue in the litigation about the safety of the available vaccinations against COVID‑19.
[17] Indeed, senior counsel for the appellants referred to the available COVID‑19 vaccinations the subject of the Employer Direction as a 'medical treatment': appeal ts 37, 38. See also Mr Falconer's submissions par 19 WAB 8.
There was evidence before the primary judge that the Commissioner was advised, at all times, that vaccination was safe, effective and the recommended measure to meets the risks of COVID‑19.[18] Moreover, in pre-trial rulings the primary judge limited the scope of expert evidence to be adduced by the parties. In that connection Mr Falconer confirmed, in substance, that his case was not about the safety of the vaccines. Nor was it about the efficacy of the vaccinations with respect to preventing serious illness and death.[19] There was no subsequent enlargement of the case. Nor did Mr Finlay seek to challenge the safety of the COVID‑19 vaccinations the subject of the Employer Direction.
[18] Falconer reasons [87], [100].
[19] Falconer v Chief Health Officer [No 2] [2022] WASC 29 [63] (see also Mr Falconer's submissions dated 26 January 2022 in actions CIV/2286/2021 and CIV/2308/2021 par 26). The primary judge recorded that concession in the context of Mr Falconer's proceedings against the Chief Health Officer rather than the Commissioner. However, the argument as to expert evidence was heard simultaneously in both proceedings. In the primary judge's reasons for rejecting expert evidence in Mr Falconer's proceedings against the Commissioner his Honour relied on the reasons given in Mr Falconer's proceedings against the Chief Health Officer: Falconer v Commissioner of Police [No 3] [2022] WASC 30 [3]. In any event Mr Falconer's written submissions in which the concession was made were filed in both proceedings.
Accordingly, there was no contention in the litigation that the mandated COVID‑19 vaccination involved an unsafe medical treatment. Nor is the safety of the mandated COVID‑19 vaccination an issue in the appeals. The argument based on infringement of the right to bodily integrity focused on the interference to a vaccine recipient's person that inevitably arises whenever a vaccine is administered by needle. To many this might be considered a relatively modest infringement. But there is - according to senior counsel for the appellants - no question of gradation of interference with the right to bodily integrity.[20]
[20] Appeal ts 31.
The Employer Direction was withdrawn before the two primary proceedings were heard.[21] Nevertheless, disciplinary action was commenced against Mr Falconer due to his non‑compliance with the Employer Direction.[22]
[21] Falconer reasons [14]; Finlay reasons [11].
[22] Falconer reasons [13].
The court was informed by the Commissioner, in terms that were not disputed by Mr Finlay, that Mr Finlay had resigned from his position after the primary judge gave judgment and before the appeal hearing. The Commissioner stated before this court that he did not intend to pursue any disciplinary process or outcome in respect of Mr Finlay.[23] Nor did the Commissioner seek to vary the 'no order as to costs' outcome that prevailed as between the Commissioner and Mr Finlay in the primary proceedings.[24]
[23] Commissioner's submissions par 55 WAB 21.
[24] Commissioner's submissions pars 56, 57 WAB 21 - 22.
These matters are relied on by the Commissioner in contending that Mr Finlay's appeal should be dismissed as moot.
The statutory context
The statutory context must be developed in three respects. The provisions of the Public Health Act are relevant to both appeals. Otherwise the Police Act and its associated regulations are relevant to the Falconer appeal and the Public Sector Management Act is relevant to the Finlay appeal.
The material provisions of the Public Health Act
The Public Health Act is an Act to protect, promote and improve the health and wellbeing of the public of Western Australia as well as reducing the incidence of preventable illness. Its objects and principles are described in s 3 of the Act. Those principles include the 'precautionary principle' and the 'principle of proportionality'. The Act provides for a Chief Health Officer with various functions in relation to the administration of the Act (s 6, s 11 - s 13).
Part 12 of the Public Health Act deals with public health emergencies.
The Minister for Health may declare that a public health state of emergency exists in the whole or any area of the State (s 167(1)). The minister may only do so if, among other things, the minister is satisfied that extraordinary measures are required to prevent or minimise loss of life or prejudice to the safety, or harm to the health, of persons (s 167(2)). The declaration may be extended from time to time; but each such extension or further extension cannot exceed 14 days (s 170). During a public health state of emergency the Chief Health Officer may authorise various persons (referred to as 'emergency officers') to exercise certain emergency powers (s 174, div 5). Additionally, the Chief Health Officer is himself or herself designated as an emergency officer under the Act (s 4(1)). The Chief Health Officer may exercise power as an emergency officer.
An emergency officer might, if duly authorised, direct a person to be vaccinated (s 184(1)(c)) in which case an emergency officer or police officer may use reasonable force to ensure that the direction is complied with (s 185(1)).[25]
[25] See also Public Health Act s 157(1)(j), s 158.
An emergency officer might also, for emergency management purposes, exercise any serious public health incident power (s 190(1)(p)). Serious public health incident powers are dealt with in pt 11 of the Act. They include directing any person to enter, or not to enter, any premises (s 157(1)(b)), requiring a person to provide information for certain purposes (s 157(1)(e)), directing any person to be vaccinated (s 157(1)(j))[26] and otherwise taking or directing another person to take any action that the emergency officer considers is reasonably necessary to prevent, control or abate the serious public health risk (s 157(1)(k)). Independently, pt 12 provides for emergency powers relating to movement and evacuation (s 180).
[26] See also Public Health Act s 158 as to enforcement of a direction under s 157(1)(j) to be vaccinated.
The Chief Health Officer relied on s 157(1)(e), 157(1)(k), s 180 and s 190(1)(p) of the Act in determining it was reasonably necessary to give the Police Force Worker Directions to prevent, control or abate the serious public health risk presented by COVID‑19.
Division 7 of pt 12 of the Act contains general provisions regarding emergency powers (s 199) and directions given under pt 12 (s 200). The appellants rely in particular on s 202(3) in div 7. Section 202 deals with a failure to comply with a direction given by an emergency officer. It provides:
(1)A person must not, without reasonable excuse, fail to comply with a direction given by an emergency officer or police officer:
(a)under section 180, 182, 183, 184, 190 or 195; or
(b)otherwise in connection with the exercise of any power conferred on the officer under Division 5 or 6.
Penalty for an offence under this subsection: a fine of $20,000.
(2)Subsection (1) does not apply unless, when the emergency officer or police officer gives the direction, the officer informs the person that a failure to comply with the direction may constitute an offence.
(3)A person must comply with a direction referred to in subsection (1) despite the provisions of any other written law, 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 Police Act and the Police Force Regulations 1979 (WA)
The Police Act provides the statutory framework for the appointment and operation of the Police Force of Western Australia.
Section 5 of the Act provides for the appointment of a Commissioner of Police. He or she is by that section:
charged and vested with the general control and management of the Police Force of the said State …
The Act also provides for the appointment of commissioned officers (s 6) and non‑commissioned officers and constables (s 7). Commissioned officers are appointed and removed by the Governor (s 6, s 8); non‑commissioned officers and constables are appointed by the Commissioner (s 7(1)). The commissioned officers are charged with the government and superintendence of the Police Force as the Commissioner directs from time to time (s 6). The commissioned officers are also subject to the control and discipline of the Commissioner (s 6). The Commissioner may remove any non‑commissioned officer subject to compliance with a procedure provided for under the Act (s 8).
The Commissioner is empowered, subject to the approval of the Governor, to appoint so many non‑commissioned officers and constables of different grades as the Commissioner deems necessary 'for preservation of peace and order throughout' Western Australia (s 7(1)).
The primary judge held that, as a member of the Police Force, Mr Falconer was an independent office holder in the service of the State rather than being employed under a contract of employment.[27] In written submissions Mr Falconer devotes considerable effort to a contention that, in their modern incarnation, police officers are employees.[28] As will be seen, ultimately a lesser proposition was pressed at the appeal hearing. For present purposes it suffices to state that, absent a statutory provision to the contrary, members of a police force are not employed under a contract of employment; they are, instead, independent office holders exercising original authority in the execution of their duties.[29]
[27] Falconer reasons [4], [45].
[28] Mr Falconer's reply to the notice of contention pars 1(b), 7 - 23.
[29] Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113, 129. See also: Enever v The King [1906] HCA 3; (1906) 3 CLR 969, 975 ‑ 977, 982; Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44 [4] ‑ [5], [70], [119]; New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467 [50] ‑ [51], [53]; Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369 [90]; NSW Commissioner of Police v Cottle [2022] HCA 7; (2022) 96 ALJR 304 [9]. Compare Attorney‑General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 252.
Part II of the Police Act addresses the regulations, duties and discipline of the Police Force.
Officers and constables of the Police Force must subscribe to an engagement which, among other things, includes a commitment to see and cause peace to be kept and preserved (s 10). Thereafter he or she is bound to serve as a member of the Police Force (s 11). A non‑commissioned officer or constable must not, unless authorised in writing by the Commissioner, resign his or her office or withdraw from his or her duties without giving notice as prescribed. If convicted of doing so he or she will be liable to forfeit all arrears of pay and to a penalty of not more than $50 or may be committed to prison for a period not exceeding 14 days (s 12).
In the case of Mr Falconer the required notice period was one month.
Section 9 provides, relevantly and in effect, that the Commissioner may, with the approval of the relevant minister, frame rules, orders and regulations for the general government of the members of the Police Force as well as the control, management and discipline thereof as may be necessary for rendering the same efficient for the discharge of the duties thereof and for the purpose of preventing neglect or abuse.
Section 9 was considered by Burt J (as his Honour was then) in Pense v Hemy.[30] Burt J observed that, as a 'disciplined force', the evident and declared purpose of s 9 was to provide for the rules required to establish and maintain that discipline. The power presupposes - and if exercised the product of its exercise presupposes - a body of law, independently existing, concerning the powers, privileges, duties and responsibilities of the officers and constables forming the Police Force.[31]
[30] Pense v Hemy [1973] WAR 40.
[31] Pense v Hemy (42).
There is a further regulation making power in s 138A(1) of the Act.
The Police Force Regulations 1979 (WA) have been made pursuant to the Act. Regulation 201 provides for the order of ranks within the Police Force. Conformably with s 5 of the Act, the Commissioner ranks with authority above all other ranks (reg 201(a)(i)). Otherwise there is a detailed ranking in terms of authority as between officer ranks, non‑commissioned officer ranks and other ranks (reg 201(a) - (c)). Generally speaking, seniority is determined by the rank held by the member and the general seniority of the members of the Police Force is in the order set out in reg 201 (reg 805).
Part III of the Regulations provides for the organisation of the Police Force. The Commissioner determines functions, duties and responsibilities (reg 301) as well as deployment and control of the Police Force (reg 302). Provision is made for 'officers in charge' and 'officers in control' (reg 303 - 305). The senior member exercises command unless one member has been specially detailed for that duty (reg 306).
In terms of duties, dealt with generally in pt IV, reg 401 is important. Each member must carry out such functions, duties and responsibilities as he or she is directed by or on behalf of the Commissioner. And, by reg 402(c), every member must obey promptly all lawful instructions given by any member under whose control or supervision the member is placed.
Part VI of the Regulations is entitled 'General rules relating to discipline'. Regulation 603 is a key provision. It provides:
A member shall not disobey a lawful order and shall not, without good and sufficient cause, fail to carry out a lawful order.
A series of obligations as to performance are provided for in reg 605. A member must perform and carry out any duty in a proper manner. He or she must work his or her beat in accordance with orders. A member must, except for good and sufficient cause, promptly and diligently attend to and carry out anything which is his or her duty as a member. Numerous other obligations are prescribed as to the making of false or misleading statements, secrecy, not compromising the member's position as well as other more specific matters (reg 606 ‑ reg 621). There is a regulation dealing with acts against discipline (reg 622). Acts against discipline are to be reported (reg 623).
A member who fails to comply with, or who contravenes any of the regulations, commits an offence against the discipline of the Police Force (reg 1601).
Provision is made for investigation into acts against discipline (reg 624) and disciplinary proceedings (reg 625).
Section 14 of the Act deals expressly with the obligation of members of the Police Force engaged in service outside of the State of Western Australia. All such officers and constables are amenable to and must obey the lawful commands of his or her superior officers. Moreover, they are liable to the same penalties, forfeitures and punishments, in all respects, for any offence against the discipline of the Police Force in the same manner as if the offence had been committed within Western Australia.
Disciplinary offences are provided for in s 23. The Commissioner, or an officer appointed for that purpose, may examine any member of the Police Force on oath on a charge of an offence against the discipline of the Police Force being made (s 23(1)). Where it is determined that a member of the Police Force has committed an offence against the discipline of the Police Force the determination is to be recorded (s 23(4)). The officer or constable may be cautioned, reprimanded or fined or - subject to various conditions in s 23(5) & (6) - be demoted, suffer a reduction in salary, be suspended from duty or be discharged or dismissed from the Police Force (s 23(4)).
Part IIA of the Act provides for the Police Appeal Board. There is a right of appeal to the Board in respect of convictions for an offence against the discipline of the Police Force where a member is punished by being discharged or dismissed, suspended from duty, reduced in rank, fined or transferred by way of punishment. The appeal may be against one or both of the punishment or the decision on which the punishment was based. See s 33E. The Board may confirm, modify or reverse any decision or punishment appealed against or make another order deemed just. The decision of the Board is final. See s 33H. The Commissioner must give effect to the decision of the Board (s 33I).
The Public Sector Management Act
The Public Sector Management Act, by its long title, is an Act 'to provide for the administration of the Public Sector of Western Australia and the management of the Public Service and of other public sector employment'.
Various 'Public Sector principles' are enshrined in pt 2 of the Act. These include, by s 8, human resource management principles. Employees are to be provided with safe and healthy working conditions (s 8(1)(e)). Also, employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts (s 8(1)(c)). There are also numerous public administration and management principles (s 7) and principles of conduct (s 9) which need not be recounted.
Mention has already been made that, by the Act, the Commissioner is deemed to be the chief executive officer and the employing authority of public service officers employed in the Police Department (s 4(3), s 5(1)(c)(i)).
Subject to the Act and to any other written law relating to the Police Department, the Commissioner's function, as chief executive officer, is to manage the Police Department (s 29(1)). In particular, by s 29(1)(g), the Commissioner is:
to manage and direct employees employed in that department or organisation [ie the Police Department] and, without limiting the generality of this paragraph, to be responsible for the recruitment, selection, appointment, deployment and termination of employment of those employees.
The Commissioner, as chief executive officer, has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions (s 29(2)). In performing the functions of a chief executive officer the Commissioner is, among other things, to comply with the public sector principles set out in s 7 ‑ s 9 (s 30).
Part 5 of the Public Sector Management Act addresses substandard performance and disciplinary matters. The primary judge held, and it was uncontentious on appeal, that pt 5 applied to Mr Finlay in relation to any suspected breach of discipline for disobeying or disregarding a lawful order.[32] Division 2 deals with substandard performance. It need not be considered. Division 3 deals with disciplinary matters. By s 80(a) an employee who disobeys or disregards a lawful order commits a 'breach of discipline'. He or she potentially becomes liable to having the matter dealt with as a disciplinary matter under div 3 of pt 5 (s 81(1)(a)). After dealing with the matter as a disciplinary matter the Commissioner may, among other things, decide to take disciplinary action (s 82A(3)(b)) - such action including a reprimand, a fine, a reduction in salary, a reduction in classification or dismissal (see s 80A definition).
[32] Finlay reasons [15]. There was no consideration given by the parties to the appeal as to how, if at all, s 76(4) of the Public Sector Management Act might affect Mr Finlay's continuing susceptibility to proceedings under pt 5 of the Act.
The employee may, in some cases, appeal against the disciplinary action to the Public Service Appeal Board (s 78).
The litigation
Mr Falconer commenced two proceedings. In action CIV/2286/2021 Mr Falconer challenged the validity of the Police Force Worker Directions. The action failed.[33] In action CIV/2308/2021 Mr Falconer challenged the validity of the Employer Direction. That action also failed.[34] The Falconer appeal is against the order dismissing the challenge to the validity of the Employer Direction.
[33] Falconer v Chief Health Officer [No 3] [164].
[34] Falconer reasons [112].
Numerous grounds were pressed in Mr Falconer's challenge to the Employer Direction. We will only refer to those that are relevant on appeal. Relevantly, by trial ground 3, Mr Falconer contended:
The Employer Direction is ultra vires because the Commissioner was not authorised to make the Employer Direction under … the Police Act in that:[35]
…
(e)the Employer Direction is not within the scope of authority to give directions conferred on the Commissioner by the Police Act or any regulations made thereunder; and/or
(f)[36] s 162[37] and s 202 of the Public Health Act constrain s 5 of the Police Act, such that s 5 of the Police Act does not authorise an order which would circumvent the protective provisions of the Public Health Act.
[35] Trial ground 3 also contended that the Commissioner was not authorised to make the Employer Direction under the Public Health Act. However, it is not said on appeal that the Commissioner purported to exercise a power under the Public Health Act. Accordingly, that part of trial ground 3 may be disregarded. See also Falconer reasons [48].
[36] Mr Falconer's amended application dated 14 July 2022 mistakenly refers to this as trial ground 3(g). However, the primary judge referred to it as trial ground 3(f). That was also the convention adopted on the appeal.
[37] On appeal it was common ground that s 162 of the Public Health Act was not applicable and that only s 202 was relevant (the Police Force Worker Directions being a direction under pt 12 of the Public Health Act). See appeal ts 47.
Similar grounds were advanced by Mr Finlay in his failed challenge[38] to the validity of the Employer Direction in action CIV/1081/2022. By trial ground 2 Mr Finlay relevantly contended:
The Employer Direction is ultra vires because the Commissioner was not authorised to make the Employer Direction under … the Public Sector Management Act in that:
…
(d) the Employer Direction is not within the scope of authority to give directions conferred on the Commissioner by the Public Sector Management Act and/or any regulations made thereunder; and/or
(e)… s 202 of the Public Health Act constrain[s] the powers conferred by the Public Sector Management Act, such that the Public Sector Management Act does not authorise a direction which would circumvent those protective provisions of the Public Health Act.
[38] Finlay reasons [38].
Mr Falconer's trial ground 3(e) (like Mr Finlay's trial ground 2(d)) argued that the Employer Direction was not within the scope of the authority conferred on the Commissioner because the direction to vaccinate against COVID‑19 infringed the right to bodily integrity.
In the Falconer reasons the primary judge started by referring to the common law right to bodily integrity.[39] His Honour then considered whether the Employer Direction interfered with Mr Falconer's right to bodily integrity.[40] His Honour's conclusion on this issue is a little unclear. The primary judge said only that, having regard to s 23 of the Police Act and reg 1601 of the Police Force Regulations, the Employer Direction carried a legal sanction for failure to comply - thereby differentiating the direction to vaccinate from simply requiring Mr Falconer to choose between compliance and leaving the Police Force. It was an 'order' which, if valid, Mr Falconer was legally required to obey.[41]
[39] Falconer reasons [17] - [19].
[40] Falconer reasons [20] - [22].
[41] Falconer reasons [22].
Later the primary judge came to a conclusion '[a]ssuming the Employer Direction would otherwise infringe the right to bodily integrity'.[42] Accordingly, reading the Falconer reasons fairly and as a whole, we are not satisfied that his Honour finally concluded that the Employer Direction infringed the right to bodily integrity. Rather, in resolving the question of statutory construction, the primary judge assumed favourably to Mr Falconer that the Employer Direction infringed the right to bodily integrity.
[42] Falconer reasons [32].
The primary judge was satisfied that, even if the Employer Direction interfered with Mr Falconer's right to bodily integrity, the direction was authorised by s 5 of the Police Act. His Honour found that the right to bodily integrity was curtailed by necessary implication where the effectiveness of the Police Force is based on obedience to command and the nature of the office requires members of the Police Force to carry out duties which may expose them to harm. The Employer Direction was thus within the power of the Commissioner as conferred by the Police Act.[43]
[43] Falconer reasons [32] - [38], [56].
His Honour stated:
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. 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.
…
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'. 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.[44] (citations omitted)
[44] Falconer reasons [33], [38].
In the Finlay reasons the primary judge held that the Employer Direction did not infringe the right to bodily integrity - it did not purport to authorise involuntary vaccination or any act that interfered with Mr Finlay's body without his consent.[45] His Honour further concluded that an employer seeking to manage responsibilities for health and safety, and to implement a proper response to the risks of the pandemic, may reasonably issue an order requiring vaccination for employees. While that may result in dismissal for those who choose not to comply, that was not itself an abrogation of the right to bodily integrity.[46] Accordingly, the direction was reasonable and lawful.[47]
[45] Finlay reasons [31]. See also [36].
[46] Finlay reasons [36].
[47] Finlay reasons [24].
The rejection of Mr Falconer's and Mr Finlay's cases based on the right to bodily integrity is challenged by ground 2 in their respective appeals.
Separately, the primary judge held that Mr Falconer's trial ground 3(f) (the equivalent of Mr Finlay's trial ground 2(e)) was without merit.[48] After recounting the terms of s 202 of the Public Health Act the primary judge stated:
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.[49]
[48] Falconer reasons [60].
[49] Falconer reasons [59]. The primary judge picked up and, in effect, incorporated this reasoning in rejecting the similar contention as advanced in Mr Finlay's challenge to the Employer Direction: Finlay reasons [38].
This reasoning, and the rejection of Mr Falconer's trial ground 3(f) and Mr Finlay's trial ground 2(e), is challenged by ground 1 in the two appeals.
Grounds of appeal and notices of contention
Ground 1 in the Falconer appeal provides:
The learned trial judge erred in law by finding that [trial ground] 3(f) of the appellant's application was without merit because:
(a)his Honour misconstrued s 5 and s 9 of the Police Act in light of s 202 of the Public Health Act 2016; and
(b)his Honour erred in finding that police officers are not 'employees'. (references and abbreviations omitted)
The reference to s 9 of the Police Act is curious. While the primary judge made passing reference to the effect of s 9[50] his Honour did not construe or apply s 9. Nor, on a fair reading of the appellant's case in the Falconer appeal, is there any suggestion in Mr Falconer's written submissions that the primary judge misconstrued or misapplied s 9. Rather, ground 1(a) is advanced - and thus should only be considered - by reference to s 5.
[50] Falconer reasons [6].
Ground 1(b) is also expressed unhappily. It provides, in terms, for a challenge to the primary judge's finding that Mr Falconer is not employed under a contract of employment and the Commissioner is not his employer.[51] Conformably with the express terms of ground 1(b), Mr Falconer's written submissions press the contention that members of the WA Police Force are employees within the general law conception of employer and employee.[52] However, in oral submissions senior counsel for Mr Falconer explained that ground 1(b) was to be understood in the less ambitious sense that a police officer had relevant 'employment' for the purpose of the application of s 202(3) of the Public Health Act; it was not said that a police officer was an employee according to the usual general law conception of an employee.[53] We will approach ground 1(b) in accordance with the explanation provided by senior counsel for Mr Falconer.
[51] Falconer reasons [4]. See also Falconer reasons [5], [45].
[52] Mr Falconer's reply to the notice of contention pars 1(b), 7 - 23.
[53] Appeal ts 22 - 24.
Ground 1 in the Finlay appeal is substantially similar to ground 1(a) in the Falconer appeal (although necessarily framed by reference to the different sources of power relied on for the Employer Direction in its application to public service officers employed in the Police Department):
The learned trial judge erred in law in finding that [trial ground] 2(e) of the appellant's application was without merit because his Honour misconstrued s 80 of the Public Sector Management Act or the Commissioner's common law powers in light of s 202 of the Public Health Act. (references and abbreviations omitted)
The congruency in the two grounds 1 is readily apparent from the circumstance that, while Mr Finlay refers to there being one additional matter in his appeal,[54] Mr Finlay otherwise states that the argument he advances in the Finlay appeal is identical in substance to that advanced in the Falconer appeal save that the power purportedly exercised in his case was s 80 of the Public Sector Management Act rather than s 5 of the Police Act.[55]
[54] Mr Finlay's submissions pars 5 - 7 WAB 5 - 6.
[55] Mr Finlay's submissions par 4 WAB 5.
Mr Finlay's reference to s 80 of the Public Sector Management Act is plainly erroneous. Section 80 is concerned with disciplinary matters rather than the power to issue employment directions. At the appeal hearing senior counsel for Mr Finlay clarified that the relevant statutory provision was s 29(1)(g) of the Public Sector Management Act rather than s 80.[56] This appears to be common ground.[57]
[56] Appeal ts 65.
[57] Appeal ts 88. Commissioner's submissions par 16 WAB 14.
Ground 2 in the Falconer appeal provides:
The learned trial judge erred in law by construing s 5 and s 9 of the Police Act as conferring on the Commissioner of Police a power to directly interfere with the right to bodily integrity of members of the police force by requiring her or him to undertake a medical procedure to which she or he does not properly consent. (references omitted)
Again, the mention of s 9 of the Police Act may be ignored.
Ground 2 in the Finlay appeal raises essentially the same point in the different statutory and general law context that informs Mr Finlay's circumstances:
The learned trial judge erred in law by construing s 80 [this too should refer to s 29(1)(g) rather than s 80] of the Public Sector Management Act or the common law as conferring on the Commissioner of Police a power to interfere with the right to bodily integrity of members of the police force. (references omitted)
Ground 2 in the Finlay appeal, unlike the ground 1 in the Falconer appeal, does not go on to explain that the claimed interference with the right to bodily integrity is due to the Commissioner requiring a person to undertake a medical procedure to which he or she does not properly consent. It is, however, implicit in ground 2 in the Finlay appeal that this is what underpins the claimed interference. Mr Finlay's submissions in support of his ground 2 rely on Mr Falconer's submissions in support of ground 2 in the Falconer appeal.
There is another difficulty with ground 2 in the Finlay appeal. In the Finlay reasons the primary judge did not, properly understood, construe the relevant statutory power or determine the content of the general law power to include a power to interfere with the right to bodily integrity enjoyed by non‑sworn employees of the Police Department such as Mr Finlay. Rather, as we have attempted to explain, the primary judge concluded that the Employer Direction did not infringe the right to bodily integrity. That finding is not adequately challenged by ground 2 as stated (although it is squarely addressed in Mr Finlay's appellant's case).[58]
[58] Mr Finlay's submissions par 8(a) WAB 6, pars 10 - 12 WAB 6 - 7.
In each appeal the Commissioner relies on a notice of contention. In the Finlay appeal the Commissioner also argues that the appeal is inutile and should be dismissed on that basis. Ordinarily we would first address the grounds of appeal and then only return to the notice of contention points if and to the extent that it is necessary or appropriate to do so. However, there is material overlap between the notice of contention points and aspects of the grounds of appeal. In the circumstances it is convenient to refer to the notices of contention together with the grounds of appeal.
The notice of contention in the Falconer appeal provides:
1.Section 202(3) of the Public Health Act has no relevant application to police officers in the circumstances of this matter
2.The Employer Direction did not legally oblige any officer to become vaccinated against his or her will.
When read with the Commissioner's written submissions, notice of contention ground 1 fastens on the primary judge's finding that sworn police officers are not employees. The Commissioner says that s 202(3) of the Public Health Act is not engaged in the case of non‑employees. Accordingly, on the Commissioner's case, the so‑called protective provision has no relevant application to police officers in the circumstances of this matter. In this respect the point raised by notice of contention ground 1 overlaps with ground 1(b) of the Falconer appeal.
Notice of contention ground 2 raises, in substance, the question whether the Employer Direction constitutes an infringement of the right to bodily integrity of those subject to the Employer Direction. In this respect the point raised by notice of contention ground 2 overlaps with ground 2 of the Falconer appeal.
The notice of contention in the Finlay appeal provides:
1.In case it be held that the trial Judge either:
(a)ruled that there was no power under the Public Sector Management Act to make the Employer Direction; or
(b)ruled only as to a common law power, leaving unaddressed whether there was such power under the Public Sector Management Act,
the Respondent contends that the outcome below should be upheld by reason that the Public Sector Management Act did authorise the Employer Direction, for the reasons that follow.
2.The Employer Direction did not legally oblige any officer to become vaccinated against his or her will.
Notice of contention ground 2 in the Finlay appeal is the same as notice of contention ground 2 in the Falconer appeal. It, as with its analogue in the Falconer appeal, overlaps with appeal ground 2 - the Commissioner contends that the Employer Direction did not interfere with the right to bodily integrity as the Employer Direction did not legally oblige any officer to become vaccinated against his or her will.
Notice of contention ground 1 in the Finlay appeal proceeds on the premise that either par 1(a) or (b) is satisfied. Contrary to par 1(a), the primary judge did not conclude that there was no relevant power under the Public Sector Management; his Honour left the question of power under the Public Sector Management Act unaddressed. And, insofar as the primary judge addressed the general law power, his Honour did so inferentially and in the context where his Honour had concluded that the Employer Direction did not effect any infringement of the right to bodily integrity.
The issues that arise in the appeals
The overlaps between the appeal grounds and the notice of contention points make it desirable to re‑state the issues that arise for determination in the appeals. That is all the more so given the various drafting difficulties we have referred to.
The issues that arise in relation to appeal grounds 2 and the notice of contention points that overlap with appeal grounds 2 are as follows:
1.What is the nature and content of the right to bodily integrity?
2.Did the Employer Direction infringe Mr Falconer's or Mr Finlay's right to bodily integrity?
3.If and to the extent that the Employer Direction infringed the right to bodily integrity, was the Employer Direction invalid? More precisely:
(a)as to Mr Falconer, was the Employer Direction outside the scope of authority to give directions as conferred on the Commissioner by s 5 of the Police Act (there being no express power to interfere with the right to bodily integrity of members of the WA Police Force by requiring a police officer to undertake a medical procedure to which he or she does not properly consent)?
(b)as to Mr Finlay, was the Employer Direction outside the scope of authority to give directions as conferred on the Commissioner by s 29(1)(g) of the Public Sector Management Act, further or alternatively, the general law (there being no express power to interfere with the right to bodily integrity of public service officers employed in the Police Department by requiring such an employee to undertake a medical procedure to which he or she does not properly consent)?
The determination of the first two issues affects the resolution of the other issues. That is self‑evident with issue 1 and issue 2. Whether the right to bodily integrity is infringed by the Employer Direction depends on the nature and content of the right to bodily integrity. But, so too, issue 3 is affected by the resolution of issue 1 and issue 2. The appellants' case on issue 3 relies on the so‑called 'principle of legality'. That requires analysis of both the right relied on (ie issue 1) and whether (and, if so, to what extent) the Employer Direction infringed the relevant right (ie issue 2).
We have dealt first with the issues that arise in relation to appeal grounds 2 as in oral submissions senior counsel for the appellants addressed appeal grounds 2 before dealing with appeal grounds 1. The point raised by appeal grounds 1 was secondary to the point based on the right to bodily integrity.
The issues that arise in relation to appeal grounds 1 and the notice of contention points that overlap with appeal grounds 1 are as follows:
1.Is s 202(3)(b)(ii) of the Public Health Act, properly construed, inapplicable to sworn police officers so far as complying with a direction is not to be regarded as a breach of any principles of conduct 'applicable to the person's employment'? (This is only relevant to the Falconer appeal.)
2.Does s 202(3) of the Public Health Act, properly construed, constrain s 5 of the Police Act (in the case of Mr Falconer) or s 29(1)(g) of the Public Sector Management Act, further or alternatively, the general law (in the case of Mr Finlay), so as not to authorise the Employer Direction?
Logically, in relation to Mr Falconer, the issue identified in [102.1] above arises before the issue in [102.2] above. However, the issue as to the scope of the term 'employment' in s 202(3)(b)(ii) becomes irrelevant if Mr Falconer fails in his wider contention as underpins the issue in [102.2] above. Accordingly, it is convenient to consider first whether s 202(3) of the Public Health Act, properly construed, constrains the powers relied on to authorise the Employer Direction. It is only if Mr Falconer succeeds in this respect that it will become necessary to consider the issue about the application of s 202(3)(b)(ii) to sworn police officers.
There is also, in relation to the Finlay appeal, the issue whether there is a remaining genuine controversy such that there is sufficient utility to hear and determine the appeal. It is convenient to address that point at the outset.
The utility of Mr Finlay's appeal
The Commissioner argues that there is no sufficient utility in hearing Mr Finlay's appeal. The appeal is said to have no consequences for the employment of Mr Finlay given his resignation and the Commissioner's expressed intention not to pursue any disciplinary process or outcome. Nor are there any costs consequences.
As a general principle the court should refuse to give an advisory opinion in respect of issues of which there is no longer a controversy between the parties.[59]
[59] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 [47].
The Commissioner accepts, however, that the court retains a discretion to hear and determine the Finlay appeal. The Commissioner's concession was correct. The Western Australian Industrial Appeal Court has held that it retains a discretion to continue to hear an appeal in circumstances where the subject matter of the appeal has been rendered moot by reason of a change in circumstances or otherwise.[60]
[60] Governing Council of North Metropolitan TAFE v The State School Teachers' Union of WA (Inc) [2019] WASCA 120 [12]. See also Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29 [8].
Often the exercise of the discretion will be influenced by the consideration that limited judicial resources should not be applied in resolving proceedings which lack or are of doubtful utility. The distinguishing feature of Mr Finlay's appeal is that it largely falls to be determined by reference to the principles that must be examined and applied in relation to Mr Falconer's appeal. Accordingly, what is ordinarily a powerful discretionary consideration is of much lesser weight in this instance. The hearing and determination of Mr Finlay's appeal takes on a different complexion insofar as it is to be heard and determined in the context of Mr Falconer's appeal.
We are, in all the circumstances, satisfied that it is in the interests of justice that the court hear and determine Mr Finlay's appeal. In coming to that conclusion we take into account the nature of the issues raised by the appeal and the obvious public interest in their determination. While those issues will also be considered in the context of Mr Falconer's appeal it must be remembered that he is a serving police officer. Accordingly, a particular statutory regime applies and will inform the resolution of Mr Falconer's appeal. The separate questions raised by Mr Finlay's appeal are of general application and importance to employees under the regime that applies to the Public Sector Management Act. They should be resolved by a decision of this court.
Accordingly, in the exercise of discretion, we would allow Mr Finlay's appeal to proceed. It is not necessary to consider Mr Finlay's contention that there is continuing utility in the appeal so far as he says that the appeal, if successful, would assist him in an action against the Commissioner for constructive dismissal.
Ground 2 of the appeals: the appellants' contention that the Employer Direction was invalid in its application to Mr Falconer and Mr Finlay
The nature and content of the right to bodily integrity
Leeming JA has said that the right to bodily integrity is well‑established and is 'jealously guarded' by the courts.[61] The law recognises that each individual has an intrinsic right to bodily integrity - the right encompassing the right to exclusive possession, control and use of one's own body as against everyone else or, as was expressed by the plurality in Marion's Case, 'the right in an individual to choose what occurs with respect to his or her own person'.[62]
[61] Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 (Kassam v Hazzard CA) [166].
[62] Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 233.
In this way the law protects against invasions of the human body. Each person has a right to exclude all others from his or her own body thus enabling each individual to have his or her body whole and intact, free from physical interference. Accordingly, the right to bodily integrity 'underscores the principles of assault' in both the civil law (ie the tort of battery) and the criminal law.[63] It has been identified that the right to bodily integrity is derived from the concept of individual autonomy, ie the capacity that each individual has to act independently and to choose how he or she should live his or her own life. In that respect bodily integrity is a foundational principle that protects an individual's autonomy.[64]
[63] Kassam v Hazzard CA [95] (referring to Marion's Case (253)).
[64] Hardcastle R, Law and the Human Body: Property Rights, Ownership and Control (2009) 15 - 17.
In acknowledging the right to bodily integrity, this court has recognised that the common law respects and preserves the autonomy of adult persons of sound mind with respect to their body - each such person has rights of control and self‑determination in respect of their body.[65] The right to bodily integrity has been described as a 'fundamental common law right'.[66] In the United Kingdom, Hale LJ has said of the right to bodily integrity that it is 'the most important of civil rights'[67] and 'the first and most important of the interests protected by the law of tort'.[68]
[65] Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546 [4](b), [50].
[66] Furesh v Schor [50].
[67] R (West) v Parole Board [2002] EWCA Civ 1641; [2003] 1 WLR 705 [49].
[68] Parkinson v St James NHS Trust [2001] EWCA Civ 530; [2002] QB 266 [56].
In its modern conception many descriptions of the right to bodily integrity may be sourced to what was said by Robert Goff LJ (Mann J agreeing) in Collins v Wilcock:
The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in Cole v Turner (1704) 6 Mod 149 that 'the least touching of another in anger is a battery'. The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed (1830), vol. 3, p. 120:
'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.'
The effect is that everybody is protected not only against physical injury but against any form of physical molestation.'[69]
[69] Collins v Wilcock [1984] 1 WLR 1172, 1177. See also: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72; Marion's Case (233), (265 - 266), (309 - 310).
Also important is what was said by McHugh J in Marion's Case:
[T]he common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self‑determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body.[70]
[70] Marion's Case (309 - 310).
In short, the right to bodily integrity is a person's right not to have his or her body touched or interfered with without consent.
Plainly, however, there are exceptions to the principle of inviolability of someone's person.[71] One important exception is grounded in consent. Consensual contact does not, ordinarily, amount to an assault.[72] Robert Goff LJ explains, for example, that incidental contact as part of the exigencies of everyday life is not actionable because it is impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.[73] Thus, as a general rule, physical interference with another person's body is lawful if the other person consents - although, in some circumstances, a statutory provision or the public interest may provide or require that consent is not capable of rendering the act lawful.[74]
[71] See eg Collins v Wilcock (1177); In re F (Mental Patient: Sterilisation) (13), (27 - 28), (30), (72), (74).
[72] Marion's Case (233).
[73] Collins v Wilcock (1177).
[74] In re F (Mental Patient: Sterilisation) (72); Marion's Case (233).
So too, generally speaking, a mentally competent adult can consent to proper medical treatment to be carried out on his or her body. But, by corollary, if a person is capable of making a decision on whether to allow medical treatment, he or she has a right to decide what may or may not be done with his or her body - individuals have a right to make medical decisions affecting them and their lives for themselves even if a medical practitioner may regard the decision as ill‑advised.[75] This is referred to as the 'libertarian principle of self‑determination'.[76] There is, however, a further exception that arises out of necessity in the case of emergency medical treatment.[77]
[75] Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134 [14]. See also Schloendorff v Society of New York Hospital (1914) 211 NY 125, 129; 105 NE 92, 93; Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882, 897, 904; In re F (Mental Patient: Sterilisation) (55), (71), (73); Marion's Case (309 ‑ 310); Airedale NHS Trust v Bland [1993] AC 789, 808, 816, 826 ‑ 827, 857, 864, 882, 891 - 892; Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] AC 1430 [87].
[76] In re F (Mental Patient: Sterilisation) (73). See also: Airedale NHS Trust v Bland (816), (826 ‑ 828), (864); Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (882).
[77] In re F (Mental Patient: Sterilisation) (13 - 14), (30), (37), (51 - 52), (55 - 56), (74 - 78); Marion's Case (310); Airedale NHS Trust v Bland (857), (866), (892).
It is not necessary to develop the exceptions at length. The point for present purposes is simply that the common law rule relating to the inviolability of a person's body without consent is not absolute.
The right to bodily integrity has implications for any purported power to forcibly compel a person to submit to an invasive procedure against his or her will. It is established, for example, that absent some enabling written law the court cannot order a mentally competent adult to undergo a blood test against his or her will.[78] Similar considerations impacted on the power of the courts to make orders providing for a medical examination until rules specifically empowering orders requiring such examination were introduced. Rather than making orders providing for a medical examination a court would, in the event of a claimant refusing a reasonable request to attend for a medical examination, instead order a stay of proceedings until the claimant submitted to the medical examination.[79]
[78] S v S [1972] AC 24, 43, 46, 57. See also Furesh v Schor [31] - [38], [47], [50].
[79] See eg the explanation in Furesh v Schor [68] - [74].
Similarly, relying on the right to bodily integrity, in Furesh v Schor this court held that there was no inherent power to order a party in civil proceedings to consent to a mouth swab for DNA analysis.[80]
[80] Furesh v Schor [5] - [6], [50], [99] - [102].
It is instructive that in Furesh Newnes JA saw no distinction between an order that a person have a blood test taken (which the court had no power to make) and an order that a person consent to a blood test with sanctions for non‑compliance.[81] Presumably, in Newnes JA's view, the latter kind of order infringed the party's right to bodily integrity in a manner that was relevantly indistinguishable from the former kind of order. An order that a party consent, on pain of possible sanctions for non‑compliance, is to seek by coercive effect that which is otherwise beyond the power of the court.
Did the Employer Direction infringe Mr Falconer's or Mr Finlay's right to bodily integrity?
The parties' submissions
[81] Furesh v Schor [47]. See also [51], [81].
The appellants make the bald submission that, once it is accepted that the Employer Direction compels vaccination, it interferes with the right to bodily integrity. The appellants also rely on the circumstance that a failure to obey the Employer Direction entails disciplinary consequences (this being what gave the Employer Direction its mandatory character). There is not, in the appellants' submission, a simple choice between being vaccinated or being dismissed.
In oral submissions the appellants contend that, by issuing a direction in the form of the Employer Direction that overrode the right of a Police Force member or employee to do what he or she wished with his or her own body, the direction infringed the right to bodily integrity so far as non‑compliance exposed the member or employee to serious penalties under law. This had the practical effect of curtailing the member's or employee's freedom of choice. The appellants rely on the coercive effect of the Employer Direction when coupled with the penalty regime for disobeying a lawful order as was found in the applicable statutory context.[82]
[82] Appeal ts 27, 29, 32 - 34, 46 - 47.
The Commissioner contends that the Employer Direction did not legally oblige any Police Force member or employee, including Mr Falconer and Mr Finlay, to become vaccinated against his or her free will. It is said that the sole consequence of non‑compliance is disciplinary. Accordingly, in the Commissioner's submission, the Employer Direction did not constitute an order that forcibly brought about vaccination without consent.
The Commissioner develops his contention that there was no infringement with the right to bodily integrity by five propositions:
1.The terms of the Employer Direction did not provide for forcible vaccination. Police Force members and employees could elect not to vaccinate - the Employer Direction expressly explained that the only possible consequence of non‑compliance was disciplinary.
2.That was the only explanation that the Commissioner could properly give because the regime for failing to obey a lawful direction is statutorily confined to such consequences.
3.The Employer Direction stated that vaccination was required 'as part of [your] employment' - thus informing Police Force members and employees that vaccination might be avoided by resignation.
4.Nothing in the circumstances permitted an inference that the will of any Police Force member or employee was overborne by the Employer Direction to the degree required to negate consent.
5.There is no difference in substance between: (a) directing an employee to be vaccinated or lose his or her job; or (b) informing an employee that he or she will lose his or her job if he or she does not become vaccinated.
So understood, s 202(3)(a) and s 202(3)(b) of the Public Health Act have a beneficial purpose. The beneficial purpose serves the wider statutory purpose evinced by s 202. Section 202(3)(a) and s 202(3)(b) have a direct relieving effect to the benefit of those who are required to comply with an emergency direction. And, insofar as the relieving effect assists in securing compliance with an emergency direction in accordance with the chapeau to s 202(3), s 202(3)(a) and s 202(3)(b) further the wider statutory purpose that informs the requirement that persons must comply with an emergency direction despite the provisions of any other written law. Thus, at its core, s 202(3) is designed to promote the purpose or object of securing compliance with an emergency direction.
Conclusion as to appeal grounds 1
While, in this respect, we accept the appellants' contention that s 202(3) has a protective purpose, it does not follow that s 202(3) has the effect contended for by the appellants in terms of appeal grounds 1. To the contrary, nothing in s 202(3) constrains or restricts the scope of any other statutory or general law power. That is not the approach s 202(3) takes to achieving its beneficial object. Rather, s 202(3)(a) and s 202(3)(b) fasten on the act or omission required by way of compliance with the emergency direction. The scheme of s 202(3) is to confer immunity from liability for acts or omissions in compliance with an emergency direction (s 202(3)(a)) and otherwise to preclude characterisation of acts or omissions in compliance with an emergency direction as either: (1) a breach of the type mentioned in s 202(3)(b)(i) ‑ (ii); or (2) unprofessional conduct as mentioned in s 202(3)(b)(iii).
The appellants attempt to read into s 202(3) a restriction to the effect that an employer must not 'visit employment consequences on a person for the conduct which is in substance that protected by s 202'[160] (emphasis added). That, in our opinion, expands the relief afforded by s 202(3) in a manner which is not justified and is not open on the statutory text. The appellants' construction of s 202(3) extends the operation of the provision such that compliance simpliciter with an emergency officer's direction must never incur any adverse employment consequences - including adverse employment consequences that do not depend on regarding the compliance with the emergency officer direction as incurring civil or criminal liability or as being a breach of conduct of a kind in sub‑par (3)(b). Thus, in substance, the appellants' construction of s 202(3) treats the provision as conferring a right. The appellants are said to have the benefit of a protective shield against any adverse consequences for having complied with the Police Force Worker Directions. In this respect senior counsel for the appellants went as far as to submit that Mr Falconer and Mr Finlay had a right to choose to remain unvaccinated and not to be rostered on to work.[161]
[160] Mr Falconer's submissions par 20 WAB 9.
[161] Appeal ts 50. See also appeal ts 56 - 57.
We do not accept that s 202(3) confers a right of the kind contended for by the appellants. Such a right is untethered to the text of s 202(3). The protective effect of s 202(3)(a) and s 202(3)(b) does not reach beyond legal consequences of the nominated type that would otherwise attach to compliance with the emergency direction. Section 202(3) does not confer a right that protects a person against adverse employment consequences at large in the manner contended for by the appellants.
For completeness it remains necessary to apply s 202(3) to the facts.
It would be one thing if, by their statutory obligation to comply with the Police Force Worker Directions, Mr Falconer or Mr Finlay necessarily would have had to disobey an order of the Commissioner. In that circumstance, subject to the unresolved issue as to the reach of s 202(3)(b)(ii) as concerns Mr Falconer, complying with the Police Force Worker Directions is not to be regarded as a breach of any principles of conduct applicable to their employment. In any event, contrary to the appellants' argument as summarised at [263] above, it cannot sensibly be suggested that the Employer Direction visits adverse legal consequences on Police Force members and employees for conduct in compliance with a direction that is protected by s 202(3).
Relevantly, s 202(3) protects Police Force members and employees in respect of their conduct in compliance with the Police Force Worker Directions. That conduct, at its core, may be summarised as not entering or remaining at a WA Police facility on and from 12.01 am on 1 December 2021 unless partially vaccinated and on and from 12.01 am on 1 January 2022 unless fully vaccinated. The Employer Direction does not visit consequences on Police Force members or employees for such conduct in compliance with the Police Force Worker Directions. The conduct required by the Employer Direction is separate and distinct from compliance with the Police Force Worker Directions. Relevantly, the Employer Direction requires partial vaccination, and thereafter full vaccination, before the times mentioned in the Police Force Worker Directions.
There are, in this respect, two things to observe. First, it should be emphasised that the Employer Direction operated at an anterior stage to the Police Force Worker Directions. The Employer Direction required vaccination before the times specified in the Police Force Worker Directions. Accordingly, by the time that the appellants were required to comply with the emergency direction in the form of the Police Force Worker Directions, the time to obey the Commissioner's order and direction in the form of the Employer Direction had already come and gone.
Second, as a corollary, obedience with the Employer Direction necessarily ensured compliance with the Police Force Worker Directions. We accept that this was not the only way in which a WA Police Force worker could comply with the Police Force Worker Directions. But, once a Police Force member or employee was vaccinated against COVID-19 in accordance with the Employer Direction, he or she was not precluded from entering or remaining at a WA Police Force facility.
The first of these matters answers a criticism that the appellants made of the primary judge's reasoning. The primary judge held, in effect that there was no question of the protection afforded by s 202(3) being abrogated because the Commissioner did not propose to discipline Police Force members and employees for adhering to the terms of the Police Force Worker Directions. Rather, according to the primary judge, the Commissioner proposed to discipline members or employees for failing to carry out the terms of the Employer Direction.
According to the appellants, this conclusion was contrary to the overview to the Employer Direction as referred to at [22] above. The appellants submitted that the overview conveyed that the Commissioner made the Employer Direction to give effect to or to implement the Police Force Worker Directions. It seemed to be assumed that this assisted in the appellants' case for invalidity of the Employer Direction.
We readily accept that the Commissioner made the Employer Direction in the context of the Chief Health Officer having issued the Police Force Worker Directions. But it does not follow that the Commissioner made the Employer Direction to give effect to or to implement the Police Force Worker Directions - or, all the more so, that the Employer Direction is a separate direction which addressed the very thing that the Police Force Worker Directions disabled the Commissioner from doing. The circumstance that the Employer Direction mandated vaccination before the time for compliance with the Police Force Worker Directions highlights the two separate obligations. The primary judge's admirably succinct observations disposing of the s 202(3) point (as reproduced at [78] above) are plainly correct.
In mandating vaccination, the Employer Direction - and compliance therewith - did not interfere with compliance with the Police Force Worker Directions. To the contrary, compliance with the Employer Direction avoided the potential for non‑compliance with the Police Force Worker Directions. And, conversely, disobedience with the Employer Direction did not of itself impact on whether or not a Police Force member or employee was in compliance with the Police Force Worker Directions. Failing to partially vaccinate before 12.01 am on 1 December 2021 and failing to fully vaccinate by 12.01 am on 1 January 2022 - in contravention of the Employer Direction - was not an act or omission in compliance with the Police Force Worker Directions.
Section 202(3) of the Public Health Act does not have the legal effect contended for by the appellants in their respective appeal grounds. Nor, on the facts, was s 202(3) relevantly engaged in the interaction between the Employer Direction and the Police Force Worker Directions. The appellants fail insofar as they relied on s 202(3) of the Public Health Act as having the effect of invalidating the Employer Direction.
Appeal ground 1(a) in the Falconer appeal and appeal ground 1 in the Finlay appeal both fail. It is unnecessary to determine appeal ground 1(b) in the Falconer appeal. We decline to do so where the question of construction will not be determinative in the Falconer appeal and the issue may have implications for similar language used elsewhere in the Public Sector Management Act. The question should await a case in which it will be determinative.
Conclusion and orders
Mr Falconer's appeal should be dismissed. On 28 November 2022 this court enjoined the Commissioner from dismissing Mr Falconer from the Police Force in reliance on the Employer Direction until the determination of the Falconer appeal or further order.[162] That order should now be discharged.
[162] Falconer v Commissioner of Police [2022] WASCA 157 [33].
Mr Finlay's appeal should be dismissed.
The parties should be heard on the question of the costs of the two appeals.
HALL JA:
I agree with Buss P and Vaughan JA that the appeals should be dismissed. I generally agree with the reasons of Buss P and
Vaughan JA, other than in one respect, which is not material to the outcome.The issue on which I take a different view is as to whether the Employer Direction infringed the right to bodily integrity. Buss P and Vaughan JA conclude that Mr Falconer was effectively denied a real or genuine choice because he could not resign before the deadline for vaccination set by the Employer Direction and that the disciplinary consequences of non‑compliance were so significant as to amount to compulsion. This is said to leave Mr Falconer with no realistic option other than to comply.
There can be no doubt that to vaccinate a person against their will would constitute an infringement of the right to bodily integrity. Whether a statute or executive order has that effect is a question to be determined having regard to the terms of the statute or order and the practical impact that it has. At one extreme, an authorisation of the use of force would undoubtedly infringe the right to bodily integrity. At the other end of the spectrum, an element of coercion may be so slight or insubstantial that it could not be sensibly argued that it has the practical effect of depriving a person of a meaningful choice. Between those extremes, there is a range of possibilities. Reasonable people may differ as to where in that range the point is reached that the burden of non‑compliance is such as to deprive a person of a real or genuine choice.
To say that the choice must be real or genuine might be thought to beg the question as to what it is that gives a choice that character. Putting aside determinism, which holds that the ability to make choices is illusory, the concept of choice implies a degree of freedom to elect one available option in preference to another. It does not, however, imply that the choice will be completely free of external influence. It is doubtful that any choice is free in that sense. A person may still be free to make a choice even if one option is made less attractive by the imposition of consequences by an external body if chosen. In such cases, the effect of the burden can rarely be objectively determined as it is likely to depend on the subjective values, beliefs and personal circumstances of each individual. For example, the prospect of dismissal may be an overwhelmingly weighty factor for a person with dependants and large debts, but not for a person who is independently wealthy. One person may have a strong belief in adherence to discipline, whilst a conscientious objector may have powerful personal reasons for non‑compliance. This can make it difficult to definitively state that the point has been reached where coercion has become compulsion.
In the present case, as Buss P and Vaughan JA point out, Mr Falconer, as a sworn police officer, was required to provide one month's notice of his intention to resign. The effect of that was that even if he had given notice on the day that the Employer Direction issued, his resignation would not have become effective until the deadline for being vaccinated had passed. In these circumstances, resignation did not provide a viable alternative to compliance.
In my respectful view, this conclusion does not take into account the power of the Commissioner to effectively waive or reduce the notice period. Section 12 of the Police Act 1892 (WA) provides that a non‑commissioned officer or constable is not at liberty to resign his office unless:
expressly authorised in writing to do so by the Commissioner of Police, or unless he shall have given to such Commissioner … notice of his intention to resign.
The section provides that notice of three months is required in the case of officers stationed above the 18th parallel of south latitude and one month's notice in the case of officers stationed elsewhere. It is apparent from the use of the disjunctive in s 12 that resignation may occur without notice. An officer may resign with the written authorisation of the Commissioner without giving notice. In effect, this means that it would be open to the Commissioner to authorise an officer to resign immediately or at some time less than a month after a request for authorisation is made.
Whilst the exercise of that power is entirely within the discretion of the Commissioner, it is hard to imagine that it would not be exercised in circumstances where the reason given for resignation was a conscientious objection to vaccination. No reasonable purpose would be served by withholding authority and requiring the officer to give notice. Any concern for the maintenance of discipline within the Police Force could equally well be achieved by permitting a person to speedily resign as by undertaking a disciplinary process with a possible outcome of dismissal. That is particularly so given that an authority to resign early could avoid any breach of discipline. To assume that the Commissioner would not authorise resignation in these circumstances would be to attribute to him a high degree of irrationality in the exercise of his powers. That is an inference that I am not prepared to draw.
In my view, it was open to Mr Falconer to seek the authority of the Commissioner to resign without giving or serving the notice period. That was a viable choice that was open to Mr Falconer. It would have avoided the requirement to be vaccinated, contained in the Employer Direction. It would have avoided any breach of a lawful order leading to disciplinary action. Mr Falconer did not avail himself of that option. The existence of that choice prevents the drawing of a conclusion that the Employer Direction infringed the right to bodily integrity.
Even if I am wrong in that respect, I am not satisfied that the consequences of non‑compliance with the Employer Direction were such as to deprive Mr Falconer of a real or genuine choice. The consequences were entirely disciplinary in nature. The failure to comply with the lawful order, if proven, could expose Mr Falconer to a fine, suspension, demotion or dismissal. Those possible consequences were undoubtedly coercive, but they did not leave Mr Falconer without options. Indeed, the fact that he chose not to comply and did not obtain the vaccination indicates that Mr Falconer was not deprived of a real or genuine choice. The coercive effects of the order did not rise to the level of compulsion. The fact that Mr Falconer's action in remaining unvaccinated may be explicable on the basis that he believed the Employer Direction to be invalid does not, to my mind, negate the significance of that action. He could not have been certain that the direction would be found to be invalid, and he was clearly prepared to risk the consequences if it was not.
For those reasons, I would find against Mr Falconer on the issue of whether the Employer Direction infringed the right to bodily integrity and his appeal would fail at that point. However, for the avoidance of doubt, even if I am wrong in that respect, I agree with the balance of the reasons of Buss P and Vaughan JA and would dismiss the appeal in any event.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AR
Associate to the Honourable Justice Vaughan
30 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FALCONER -v- COMMISSIONER OF POLICE [No 2] [2024] WASCA 47 (S)
CORAM: BUSS P
VAUGHAN JA
HALL JA
HEARD: 30 APRIL 2024
DELIVERED : 30 APRIL 2024
PUBLISHED : 1 MAY 2024
FILE NO/S: CACV 85 of 2022
BETWEEN: BEN WILLIAM FALCONER
Appellant
AND
COMMISSIONER OF POLICE
Respondent
FILE NO/S: CACV 87 of 2022
BETWEEN: LESLIE HENRY FINLAY
Appellant
AND
COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE)
Respondent
ON APPEAL FROM:
For File No: CACV 85 of 2022
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: FALCONER -v- COMMISSIONER OF POLICE [No 4] [2022] WASC 271
File Number : CIV 2308 of 2021
For File No: CACV 87 of 2022
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: FINLAY -v- COMMISSIONER OF POLICE AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT KNOWN AS THE POLICE SERVICE (DEPARTMENT OF POLICE) [2022] WASC 272
File Number : CIV 1081 of 2022
Catchwords:
Costs - Whether the circumstances justify no order as to costs - Proceedings in the public interest
Legislation:
Rules of the Supreme Court 1971 (WA), O 66, r 1
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)
Supreme Court Act 1935 (WA), s 37(1)
Result:
No order as to costs in each appeal
Category: B
Representation:
CACV 85 of 2022
Counsel:
| Appellant | : | B J Tomasi |
| Respondent | : | K M Pettit SC & J F Bennett |
Solicitors:
| Appellant | : | Lawfield Legal Practice |
| Respondent | : | State Solicitor's Office |
CACV 87 of 2022
Counsel:
| Appellant | : | B J Tomasi |
| Respondent | : | K M Pettit SC & J F Bennett |
Solicitors:
| Appellant | : | Lawfield Legal Practice |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211
Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412
Buddhist Society of Western Australia (Inc) v Shire of Serpentine‑Jarrahdale [1999] WASCA 55
Falconer v Commissioner of Police [No 2] [2024] WASCA 47
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S)
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
The State of Western Australia v Collard [2015] WASCA 86
REASONS OF THE COURT:
On 30 April 2024, the court delivered its reasons for judgment in these appeals. See Falconer v Commissioner of Police [No 2].[163] The court ordered that the appeals be dismissed.
[163] Falconer v Commissioner of Police [No 2] [2024] WASCA 47.
At judgment delivery, the parties to the appeals were in dispute as to the appropriate orders for costs. The successful respondent submitted, in essence, that the appellants should be ordered to pay the respondent's costs of the appeals to be assessed. The appellants opposed the making of the costs orders sought by the respondent and submitted that there should be no order as to costs.
The respondent submitted, in essence, that there was no proper reason why the ordinary rule that the successful party to an appeal should receive their costs should not be applied in this case. The appellants submitted, in essence, that the ordinary rule should not be applied in this case because the appeals, like the primary proceedings, were brought in the public interest and that the appeals, like the primary proceedings, have assisted in resolving important legal questions in relation to the validity of extraordinary orders of the kind in question.
The primary judge decided, in effect, that there should be no order as to costs in relation to those issues in the primary proceedings which correspond to the issues in the appeals.
At judgment delivery, we decided that there should be no order as to costs. These are our reasons for making that order in each appeal.
Section 37(1) of the Supreme Court Act 1935 (WA) provides, relevantly, that subject to the Supreme Court Act and to the rules of the court, the costs of and incidental to all proceedings in the Supreme Court shall be in the discretion of the court, and the court shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.
The general rules as to costs are set out in O 66 r 1 of the Rules of the Supreme Court 1971 (WA). By O 66 r 1(1), relevantly, subject to the express provisions of any statute and of the rules, the costs of and incidental to all proceedings shall be in the discretion of the court but, without limiting the general discretion conferred on the court by the Supreme Court Act, and subject to O 66, the court will generally order that the successful party to any action or matter recover his costs.
Although O 66 r 1(1) states the general rule as to costs, the general rule does not limit the general discretion conferred on the court. This general discretion must be exercised by reference to the facts and circumstances of each particular case.
By r 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), those rules must be read with the Rules of the Supreme Court 1971.
In Oshlack v Richmond River Council,[164] the High Court did not enunciate a rule as to costs which is applicable generally in so‑called 'public interest' litigation cases. There are no special rules as to costs which apply to litigation of that kind.
[164] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.
In Buddhist Society of Western Australia (Inc) v Shire of Serpentine - Jarrahdale,[165] the Full Court of the Supreme Court of Western Australia observed [11]:
[G]reat care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner … In our view, the denial of costs to successful litigants upon the ground that the litigation bears a public interest character should continue to be the rarity which this Court supposed it would be in the South‑West Forests Defence Foundation case.
[165] Buddhist Society of Western Australia (Inc) v Shire of Serpentine‑Jarrahdale [1999] WASCA 55.
Although there are no special rules as to costs which apply to 'public interest' litigation, considerations relating to the 'public interest' may, in a particular case, be relevant to whether there should be a departure from the general rule. But the general discretion conferred on the court must not be exercised in relation to 'public interest' litigation in an unprincipled or idiosyncratic manner. As Kirby J noted in Oshlack, 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation' [134]. See also Botany Municipal Council v Secretary, Department of the Arts.[166]
[166] Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412, 416 ‑ 417 (Gummow J).
Occasionally, the court has departed from the general order as to costs in litigation which has involved the proper construction of statutory provisions of significant public importance on the basis that the proceedings were 'public interest' litigation. See, for example, Oshlack; Ruddock v Vadarlis (No 2);[167] BlueWedges Inc v Minister for the Environment, Heritage and the Arts;[168] and Roe v The Director General, Department of Environment and Conservation for the State of Western Australia.[169] However, as this court said in The State of Western Australia v Collard,[170] 'the cases in which the court has done so have been rare and the exceptional nature of such an outcome has been repeatedly emphasised'.
[167] Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229.
[168] BlueWedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211.
[169] Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S).
[170] The State of Western Australia v Collard [2015] WASCA 86 [38].
In the present case, both appellants challenged the validity of the Employer Direction issued by the Commissioner of Police on 24 November 2021. At the heart of the two appeals was the appellants' contention that the Employer Direction was not within the scope of the authority conferred on the Commissioner because the direction to vaccinate infringed Mr Falconer's and Mr Finlay's right to bodily integrity. Alternatively, the appellants contended that, on its proper construction, s 202(3) of the Public Health Act 2016 (WA) is a protective provision that protects employees from adverse employment consequences as a result of complying with a direction made under pt 12 of that Act (such as the Chief Health Officer's directions) and in that respect s 202(3) conditions and constrains the exercise of the various statutory and general law powers relied on for the Employer Direction.
A majority of the court concluded that the Employer Direction infringed the right to bodily integrity in its application to a sworn police officer in the position of Mr Falconer. However, the court held unanimously that the Employer Direction was valid in that the Commissioner of Police was empowered by s 5 of the Police Act 1892 (WA) to make the Employer Direction.
The court concluded unanimously that the Employer Direction did not infringe the right to bodily integrity in its application to a Police Force employee in the position of Mr Finlay.
The court held unanimously that s 202(3) of the Public Health Act does not have the legal effect contended for by the appellants. In particular, s 202(3) did not have the effect of invalidating the Employer Direction.
The appeals were brought in respect of a direction made by the Commissioner of Police in the extraordinary circumstances of the COVID‑19 pandemic. The Employer Direction is properly to be described as an extraordinary measure that dealt with those extraordinary circumstances.
The ambit of the Commissioner's power under s 5 of the Police Act, both generally and in respect of the Employer Direction, was uncertain. Although the appellants failed in their case as to the nature and effect of the power under s 5 of the Police Act and in their submission that the Employer Direction was invalid, the appellants' contentions on those issues raised matters of general and significant public importance and were reasonably arguable.
Similarly, the operation of s 202(3) of the Public Health Act, both generally and in relation to the Employer Direction, was attended by some doubt. Although the appellants failed in their case as to the nature and effect of s 202(3), the appellants' contentions on that issue raise matters of general and significant public importance and were reasonably arguable.
It is true that the appellants were motivated to some extent by self‑interest, namely preserving their employment. However, the appellants' attack upon the validity of the Employer Direction required the determination of issues of law that were not confined in their application to Mr Falconer and Mr Finlay.
We are not persuaded that a decision by this court that there should be no order as to the costs of the appeals would be likely to impose a significant burden on the resources of the State if applicants for judicial review, both at first instance and on appeal, could challenge the exercise of public power without the risk of an adverse order for costs. On the question of costs, each case of that kind depends upon its own particular facts and circumstances.
There is no proper basis for distinguishing between Mr Falconer and Mr Finlay in relation to the costs orders.
In our opinion, these appeals are of an exceptional nature and justify a departure from the general rule that the unsuccessful party should be ordered to pay the successful party's costs.
The appropriate order in each of the appeals is that there 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.
ET
Associate to the Honourable President Buss
1 MAY 2024
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