Kassam v Hazzard; Henry v Hazzard

[2021] NSWCA 299

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

Hearing dates:

29-30 November 2021

Date of orders:

08 December 2021

Decision date:

08 December 2021

Before:

Bell P at [1];
Meagher JA at [138];
Leeming JA at [139]

Decision:

Proceedings 2021/303731; 2021/331988

1.   Refuse leave to appeal in respect of grounds 3–6, 8, 9 and 11 of the draft notice of appeal.

2.   Grant leave to appeal in respect of grounds 1 and 2 of the draft notice of appeal but dismiss the appeal.

3.   Order that the appellants pay the costs of the application for leave to appeal and the appeal.

Proceedings 2021/317873; 2021/321987

1.   Refuse leave to appeal in respect of grounds 4–8 of the draft notice of appeal.

2.   Grant leave to appeal in respect of grounds 1, 2 and 3 of the draft notice of appeal but dismiss the appeal.

3.   Order that the appellants pay the costs of the application for leave to appeal and the appeal.

Catchwords:

ADMINISTRATIVE LAW – statutory construction – Public Health Act 2010 (NSW), s 7 – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) does not turn upon whether those orders are of an administrative or legislative character – whether those orders were authorised by and validly made under s 7 of the Public Health Act 2010 (NSW)

APPEALS – leave to appeal – principles governing – consequences for the parties – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) was sought to be challenged – where two of those orders had been repealed and ceased to operate as at the hearing of the appeal and the third was to expire imminently – where the reasons of the primary judge disclosed no error of principle – where the proper construction of s 7 of the Public Health Act 2010 (NSW) raises a matter of public importance in the midst of an ongoing pandemic – whether there is any utility in granting leave to appeal to review orders already repealed or imminently to expire

CIVIL PROCEDURE – Court of Appeal – leave to appeal – concurrent hearing of leave application and appeal – where constitutional arguments sought to be raised – where no arguable case was advanced – where the reasons of the primary judge disclosed no error of principle – where the raising of constitutional arguments does not give a case elevated status when considering a grant of leave to appeal – whether leave to be granted in circumstances of limited utility

HUMAN RIGHTS – discrimination – context – employment – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) coerced workers in particular industries and workplaces to be vaccinated – where none of the applicants had been vaccinated in the exercise of their own free will

HUMAN RIGHTS – legislation – Public Health Act 2010 (NSW), s 7 – principle of legality – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – whether certain public health orders made during the COVID-19 pandemic interfered with rights – whether those rights recognised by the common law – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence

STATUTORY INTERPRETATION – legislative purpose – Public Health Act 2010 (NSW) – statement of objects – where purpose of Act is to promote, protect and improve public health including by the prevention of the spread of infectious diseases – where s 7 of the Act expressly contemplates the limitation of freedom of movement to address a public health risk

STATUTORY INTERPRETATION – Anthony Hordern principle – where multiple sources of power in a statute – where some sources of power expressly qualified – Public Health Act 2010 (NSW), ss 7 and 8– whether the same source of power as s 7(2) – where s 7(3) expressly authorised limitation of freedom of movement – where power in s 7(3) expressed “without limiting s 7(2)” – whether the specific power in s 7(3) expressly qualified the general power in s 7(2)

STATUTORY INTERPRETATION – principle of legality – common law rights and freedoms – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence – whether any of those rights are recognised at common law – if so, whether they are “fundamental rights” – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) interfered with any of those rights – whether the principle of legality operated to constrain any interference with those rights

STATUTORY INTERPRETATION– where s 7(6) of the Public Health Act 2010 (NSW) proscribes the making of orders in relation to any part of New South Wales for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (NSW) – COVID-19 pandemic – whether the emergence of the Delta strain was an “emergency” under s 4 of the State Emergency and Rescue Management Act 1989 (NSW) – where the Premier did not declare a “state of emergency” under that Act

Legislation Cited:

A New Tax System (Family Assistance) Act 1999 (Cth) ss 6, 61B(1)(b), 85BA(1)(a)(iii)

Acts and Instruments (Framework Reform) Act 2015 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3

Administrative Decisions Review Act 1997 (NSW) s 7

Australian Film Development Corporation Act 1970 (Cth)

Australian Immunisation Register Act 2015 (Cth)

Building Units and Group Titles Act 1980 (Qld) s 30(7)

Civil Procedure Act 2005 (NSW) s 56

Commonwealth Constitution ss 51(xxiiiA), 109

Corporations Law (NSW) Ch 6

Interpretation Act 1984 (WA) s 41

Interpretation Act 1987 (NSW) ss 21, 45(1), Pt 6

Legislation Act 2003 (Cth) s 8

National Security Act (1939-1940) (Cth) s 5(4)

Public Health Act 1991 (NSW) s 5(6)

Public Health Act 2010 (NSW) ss 3, 7, 8, 62(6), 87 132, 133

State Emergency and Rescue Management Act 1989 (NSW) ss 4, 33(1)

Subordinate Legislation Act 1989 (NSW) s 10(2)

Supreme Court Act 1970 (NSW) s 101(2)(r)

Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018 (Cth)

Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) cll 4.3, 5.8, Pts 2-5, Sch 1,

Pts 1-3

Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW)

Public Health (COVID-19 Care Services) Order (No 2) 2021 (NSW)

Public Health (COVID-19 General) Order 2021 (NSW)

Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63

Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45

Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321; [2000] HCA 7

Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Binsaris v Northern Territory [2020] HCA 22; 94 ALJR 644

Bowers v The Law Society of New South Wales [2021] NSWCA 270

Breen v Williams (1996) 186 CLR 71; [1996] HCA 57

British Medical Association v Commonwealth (1949) 79 CLR 201; [1949] HCA 44

Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24

Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Commonwealth v Bank of New South Wales (1949) 79 CLR 497

Commonwealth v Grunseit (1943) 67 CLR 58; [1943] HCA 47

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3

Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337

Dainford Limited v Smith (1985) 155 CLR 342; [1985] HCA 23

Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288

Davis v Minister for Health [2021] NSWCATAD 310

Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423

Electrolux Home Products Pty Limited v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40

Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325

Elliott v Minister administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416

Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582; [1997] FCA 723

Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301; [1943] HCA 15

Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242; [1979] HCA 27

Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48

Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33

Ha v New South Wales (1997) 189 CLR 465; [1997] HCA 34

Hamzy v NSW Commissioner of Police [2020] NSWCA 184

Hayward (a pseudonym) v R (2018) 97 NSWLR 852; [2018] NSWCCA 104

Hemmes Trading Pty Ltd v State of NSW [2009] NSWSC 1303

Hepples v The Commissioner of Taxation of the Commonwealth of Australia (1992) 173 CLR 492; [1992] HCA 3

Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88; [1982] HCA 2

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26

Lisa Maree Campbell as Administrator ad litem of the Estate of the Late Ralph Gordon Barry Campbell v Commonwealth Bank of Australia [2014] NSWCA 316

Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438

Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23

Malika Holdings Pty Limited v Stretton (2001) 204 CLR 290; [2001] HCA 14

Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32

McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30

Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34

Mulholland v Australian Electoral Commission (2004) 220 CLR 181, [2004] HCA 41

Nagle v Feilden [1966] 2 QB 633

Norberg v Wynrib [1992] 2 SCR 226

Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146

O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61

P.J. Magennis Proprietary Limited v Commonwealth (1949) 80 CLR 382; [1949] HCA 66

Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34

Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615

R v Thomas (2006) 14 VR 475; [2006] VSCA 165

Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14; 246 LGERA 1

Re DG and the Adoption Act 2000 [2007] NSWCA 241; 244 ALR 195

Reeves v The Queen [2013] HCA 57; 88 ALJR 215

RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855

Rinehart v Rinehart [2020] NSWCA 221

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

Sea Shepherd Australia Ltd v Western Australia (2014) 313 ALR 208; [2014] WASC 66

Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s Case”) (1992) 175 CLR 218; [1992] HCA 15

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379

Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4

Sharpe v Heywood [2013] NSWCA 192

Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45

The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Company Proprietary Limited (1910) 10 CLR 457; [1910] HCA 28

Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34

WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159

Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56

Texts Cited:

M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017)

JD Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths)

D Meagher and M Groves (eds), The Principle of Legality in Australia and New Zealand (2017, Federation Press) Chs 1, 5

JJ Spigelman, Statutory Interpretation and Human Rights (2008, University of Queensland Press)

G Williams and S Rigney, “Human Rights in a Pandemic” in B Bennett and I Freckelton, Pandemics, Public Health Emergencies and Government Powers (Federation Press, 2021)

Category:

Principal judgment

Parties:

Proceedings 2021/303731; 2021/331988

Al-Munir Kassam (First Appellant)
George Nohra (Second Appellant)
Jelena Zmiric (Third Appellant)
Alexandrea Goundoulas (Fourth Appellant)
Bradley Ronald Hazzard (First Respondent) (Submitting appearance)
Kerry Chant (Second Respondent) (Submitting appearance)
State of New South Wales (Third Respondent)
Commonwealth of Australia (Fourth Respondent)

Proceedings 2021/317873; 2021/321987

Natasha Henry (First Appellant)
Selina Crowe (Second Appellant)
Julie Ramos (Third Appellant)
Hohepa Waapu (Fourth Appellant)
Sandi Greiner (Fifth Appellant)
Bradley Ronald Hazzard (Respondent)

Representation:

Counsel:

Proceedings 2021/303731; 2021/331988

P E King with E Rusiti (Appellants)
J K Kirk SC with T O Prince and D J Reynolds
(Third Respondent)
J Davidson (Fourth Respondent)

Proceedings 2021/317873; 2021/321987

M Clarke QC with J Harkess and V Plain (Appellants)
J K Kirk SC with T O Prince and D J Reynolds (Respondent)

Solicitors:

Proceedings 2021/303731; 2021/331988

Ashley Francina Leonard and Associates (Appellants)
NSW Crown Solicitor’s Office (First-Third Respondents)
Australian Government Solicitor (Fourth Respondent)

Proceedings 2021/317873; 2021/321987

G&B Lawyers (Appellants)
NSW Crown Solicitor’s Office (Respondent)

File Number(s):

2021/303731, 2021/331988;
2021/317873, 2021/321987

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 1320

Date of Decision:

15 October 2021

Before:

Beech-Jones CJ at CL

File Number(s):

2021/249601; 2021/252587

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 20 August and 23 November 2021, the Hon Bradley Hazzard MLA, Minister for Health and Medical Research (the Minister) made three orders (together, the impugned Orders) under s 7(2) of the Public Health Act 2010 (NSW) in response to the emergence of the Delta strain of the COVID-19 virus: the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order (No 2)); the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) (the Aged Care Order); and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the Education Order). By the operation of s 7(5) of the Public Health Act, each of the impugned Orders expires at the end of 90 days after it was made unless repealed earlier. Order (No 2) was repealed as of 11 October 2021, and the Aged Care Order was repealed as of 1 November 2021 at 9am. The Education Order is scheduled to expire as of 23 December 2021.

Order (No 2) had the effect of conditioning the freedom of movement of certain persons, described as “authorised workers”, residing in certain areas, described as “areas of concern”, to leave the designated area in which they resided for the purposes of their work or employment upon having received at least one dose of an approved COVID-19 vaccine or having been issued with a medical contraindication certificate exempting them from the requirement to be at least partially vaccinated. The Aged Care Order and the Education Order had the same operative effect, albeit that they applied to “authorised workers” at aged care facilities and schools irrespective of where they resided. Pursuant to the impugned Orders, an “authorised worker” was also required to carry evidence of his or her vaccination or exemption from vaccination when leaving the relevant “area of concern” in order to engage in work or employment.

The validity of Order (No 2) was challenged by two sets of plaintiffs (the Kassam Applicants and the Henry Applicants respectively) in the Common Law Division. The Henry Applicants also challenged the validity of the Aged Care Order and the Education Order. The Kassam and Henry Applicants were “authorised workers” residing in “areas of concern” and who, without a valid medical exemption, had chosen not to receive a COVID-19 vaccination. The Henry Applicants also included aged care and education workers who had chosen not to receive a COVID-19 vaccination without a valid medical exemption.

At first instance it was contended that Minister had acted ultra vires in making the impugned Orders on the basis that the principle of legality precluded the infringement, by the impugned Orders, of the following six rights asserted to be recognised by the common law: the right to bodily integrity; the right to earn a living; the right not to be discriminated against; the right to privacy; the privilege against self-incrimination; and the right to silence. These infringements were said to result from the effect of the impugned Orders in mandating or coercing the vaccination of “authorised workers”. The impugned Orders were also contended to be invalid on various other grounds including that they were made for an improper purpose, that the Minister failed to take account of mandatory relevant considerations, and that the impugned Orders were legally unreasonable.

The Kassam Applicants further contended that Order (No 2) was unconstitutional in two respects. First, that it enacted a form of “civil conscription” contrary to s 51(xxiiiA) of the Constitution and secondly, that it was inconsistent with the Australian Immunisation Register Act 2015 (Cth) and therefore invalid by reason of s 109 of the Constitution.

Beech-Jones CJ at CL delivered judgment dismissing both sets of proceedings on all of the contended grounds of invalidity. Both the Kassam and Henry Applicants sought leave to appeal.

The principal issues on appeal were:

1. whether the applications warranted the grant of leave to appeal (the leave issue);

2. the significance or otherwise as to whether the impugned Orders were characterised as administrative or legislative (the characterisation issue); and

1. whether the impugned Orders were authorised by s 7 of the Public Health Act 2010 (NSW) (the construction issue).

The Court held (Bell P, Meagher and Leeming JJA agreeing, with Leeming JA also giving supplementary reasons), refusing leave to appeal save for those grounds concerning the proper construction of s 7 of the Public Health Act 2010 (NSW) and dismissing the appeal on those grounds with costs.

As to the leave issue

Per Bell P; Meagher JA agreeing at [138]; Leeming JA agreeing at [139]:

1. Leave to appeal was warranted in relation to those grounds of the draft notices of appeal which concerned the proper construction of s 7 of the Public Health Act 2010 (NSW), which is a matter of ongoing public importance given that the Education Order remains in force and the COVID-19 pandemic continues to pose a risk to public health: [35]–[36].

Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48; Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40; Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, referred to.

1. Leave to appeal was otherwise refused on the basis of a lack of utility in circumstances where Order (No 2) and the Aged Care Order have both been repealed, with the Education Order soon to expire in addition to the fact that there was no arguable error of principle in the decision at first instance: [37]–[38].

2. The constitutional grounds sought to be raised by the Kassam Applicants were completely untenable. The simple fact that a particular argument invokes the Constitution does not give it any elevated status when considering a grant of leave to appeal: [39]–[42].

As to the characterisation issue

Per Bell P; Meagher JA agreeing at [138]; Leeming JA agreeing at [139]:

2. The question of the validity of the impugned Orders did not turn upon whether they were of an administrative or legislative character. Rather, the relevant question was simply whether the impugned Orders were validly authorised by s 7 of the Public Health Act 2010 (NSW): [79].

3. The power in s 7 is not limited to the making of “administrative” orders. The true nature and purpose of the power conferred by s 7 may be seen from the legislative text and context. The premise of the power in s 7(2) is that there is a risk to public health, encompassing a danger to the health of many members of the public. It is plain from s 7(3) that the power extends to orders which curb freedom of movement, without limiting the broad power granted by s 7(2): at [73]-[78] per Bell P; at [138] per Meagher JA; at [158]–[160] per Leeming JA.

1. In determining whether delegated legislation is ultra vires, it is wrong to apply the reasoning in decisions concerning other, differently worded powers uncritically: [148]–[152].

Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301; [1943] HCA 15; Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWC 146; Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423; Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1949] HCA 47, referred to.

2. The distinction between “administrative” and “legislative” instruments is problematic, far from crisp and well-defined, and dependent on context. There is no reason in principle why a power may not fairly be described as both legislative and administrative: [153]–[155].

Victorian Stevedoring and General Contracting Co Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582, cited.

As to the construction issue

Per Bell P; Meagher JA agreeing at [138]; Leeming JA agreeing at [139]:

4. Consideration of the operation, purpose and scope of s 7 of the Public Health Act 2010 (NSW) in view of the status of “the protection of the health and safety of the public” as the “paramount consideration” in the exercise of powers conferred by the Act: [50]–[60].

5. The express power in s 7(3) is formulated “without limiting subsection (2)”, such that to construe s 7(3) as limiting the scope of the power vested by s 7(2) would run contrary to the fundamental purpose of the Act. It was inconceivable that Parliament would not have intended to afford the Minister maximum flexibility to address risks to public health: [127]–[129].

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9; Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, considered.

6. Consideration of the relationship between s 7 and s 8 of the Public Health Act. The concept of a “state of emergency”, as effected by a declaration in those terms by the Premier, operates as a clear mechanism to indicate when the power in s 8 of the Public Health Act 2010 (NSW) is engaged rather than the power in s 7. Section 8 of the Act was not engaged in the absence of a declaration of a state of emergency by the Premier, within the meaning of the State Emergency and Rescue Management Act 1989 (NSW): [114]–[118].

7. Discussion of the content and application of the principle of legality: [80]–[93].

8. Of the six rights said to have been infringed by the impugned Orders in violation of the principle of legality, three of them — the “right to earn a living”, the “right to privacy” and the “right not to be discriminated against” — were not recognised or fully recognised by the common law and did not engage the principle of legality. In any event, and in view of its express purpose, it would not be a sensible construction of s 7 of the Public Health Act 2010 (NSW) as authorising the restriction of freedom of movement except to the extent that it impaired a person’s rights to earn a living, to privacy and not to be discriminated against. Such a construction would be unworkable and corrosive of the obvious purpose of the Act, in defiance of clear legislative intent: [111]–[112].

9. None of the right to bodily integrity, the right to silence, and the privilege against self-incrimination, to the extent that they may otherwise engage the principle of legality, were infringed, even indirectly, by the impugned Orders: [113].

1. The impugned Orders proceeded on the basis that persons, including “authorised workers”, could choose not to be vaccinated. Vaccination was not a requirement under the impugned Orders, nor did they coerce “authorised workers”, aged care workers or education workers to be vaccinated. The impugned Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. The impugned Orders contained no sanction for the exercise of the choice not to receive a vaccination: [96]–[97].

Norberg v Wynrib [1992] 2 SCR 226, distinguished.

2. The requirement under the impugned Orders to produce evidence of identity, residence and vaccination status did not have a tendency to incriminate unvaccinated persons. Rather, that requirement had the opposite, exonerating effect as production of that material would permit an authorised worker to take advantage of the exemption to travel outside an “area of concern” or to participate in certain work activities. On the proper construction of the impugned Orders, it could not sensibly be said that the purpose of the requirement to produce the relevant material was to obtain admissions of criminal conduct: [108].

Ex parte Grinham; Re Sneddon [1961] SR (NSW) 862, distinguished.

Per Leeming JA; Meagher JA agreeing at [138]:

10. The legal analysis of whether s 7 of the Public Health Act 2010 (NSW) authorised the impugned Orders is not much assisted by deploying the language of “rights” and the “principle of legality”. A more nuanced analysis is required, both of the asserted rights, and of the legal and practical operation of the impugned Orders: [167].

Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209, endorsed.

Judgment

1. BELL P: Between 30 September and 6 October 2021, Beech-Jones CJ at CL (the primary judge) heard two sets of proceedings (the Kassam Proceedings and the Henry Proceedings) involving challenges to various orders made pursuant to s 7(2) of the Public Health Act 2010 (NSW) in response to the COVID-19 pandemic and the particular impact of the so-called Delta variant of the virus.

2. There were four separate plaintiffs in the Kassam Proceedings and six separate plaintiffs in the Henry Proceedings. Their particular circumstances were described by the primary judge at [95]-[98] and [99]-[104] of his Honour’s judgment (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (PJ)) and it is not necessary to refer to them in any detail, save to observe that they were all persons who were in one way or another directly affected by the various orders sought to be impugned.

3. Both the Kassam Plaintiffs and the Henry Plaintiffs contended that the Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order (No 2)) made pursuant to s 7(2) of the Public Health Act was invalid. The terms of s 7 are set out at [48] below. Deployed in support of the attack on Order (No 2) were arguments said to be based upon the principle of legality, with particular focus being placed upon the suggested impact of Order (No 2) on the rights of the Plaintiffs, including as to their bodily integrity as persons who have chosen not to be vaccinated. The effect but not the form of the Order, it was submitted, was to mandate or coerce vaccination.

4. The Kassam Plaintiffs further contended that Order (No 2) was unconstitutional in two respects, amounting to a form of civil conscription contrary to s 51(xxiiiA) of the Commonwealth Constitution, and being inconsistent with the Australian Immunisation Register Act 2015 (Cth) and thus invalid by reason of s 109 of the Constitution.

5. The Henry Plaintiffs also contended that the Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) (the Aged Care Order) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the Education Order) were invalid.

6. All of the Orders were contended to be invalid on various public law grounds, including that they were so unreasonable that they could not lawfully have been made, and that the Minister for Health and Medical Research (the Minister), in making the orders, failed to take into account relevant considerations and acted for an improper purpose.

7. In a comprehensive judgment delivered with great expedition on 15 October 2021, the primary judge dismissed both sets of proceedings. In so doing, his Honour observed (at PJ [7]) that it was:

“not the Court’s function to determine the merits of the exercise of the power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant. It is also not the Court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines especially their capacity to inhibit the spread of the disease. These are all matters of merits, policy and fact for the decision maker and not the Court (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28], [66] and [108]; ‘Li’). Instead, the Court’s only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences.”

8. These observations apply equally to this Court’s role. Indeed, for reasons explained below as a result of the requirement for leave to appeal in respect of both sets of proceedings, this Court’s role is even more constrained.

9. At first instance, there was an issue as to whether Order (No 2), the Aged Care Order and the Education Order (together, the Impugned Orders) were of a legislative or administrative character. The primary judge held that it was not necessary to resolve this debate, but proceeded on the basis that the Impugned Orders were administrative in character on the footing that this was the most favourable basis to the Plaintiffs for the purposes of their collective challenges, in view of the fact that the grounds on which delegated legislation may be challenged are more constrained than those available in respect of judicial review of administrative decisions.

10. The primary judge rejected an argument made (and repeated on appeal) by reference to the principle of legality to the effect that the Impugned Orders interfered with various fundamental rights, but that s 7 of the Public Health Act did not authorise such interference. His Honour also held that:

1. The Impugned Orders did not in fact violate any right to bodily integrity, as they did not authorise the involuntary vaccination of anyone: PJ [9].

2. To the extent that the Impugned Orders curtailed freedom of movement which in turn may have affected a person’s ability to work and socialise by reference to a person’s vaccination status, this was the very type of restriction that the Public Health Act authorised. As such, the principle of legality did not justify the reading down of s 7(2) of the Public Health Act to preclude the imposition of limitations on that freedom: PJ [9].

3. Any consideration of the unreasonableness of an order made under s 7(2) was to be undertaken by reference to the objects of the Public Health Act which were exclusively directed to public safety. In that context, the differential treatment of people according to their vaccination status was not arbitrary: PJ [10].

4. It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power by the Minister, nor that the making of the Impugned Orders by the Minister involved any failure to ask the right question or any failure to take into account relevant considerations, much less that it was undertaken for an improper purpose: PJ [11(i)].

5. It was otherwise not demonstrated that either the manner in which the Impugned Orders were made was unreasonable or that the operation and effect of the Orders could not reasonably be considered to be necessary to deal with the identified risk to public health and its possible consequences: PJ [11(ii)].

6. Order (No 2) did not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution and, even if it did, the prohibition on civil conscription does not apply to laws made by the State of NSW: PJ [11(iv)]. The primary judge described this aspect of the constitutional argument as “completely untenable”: PJ [286]. His Honour also rejected an argument based upon PJ Magennis Proprietary Limited v Commonwealth (1949) 80 CLR 382; [1949] HCA 66 (Magennis) to the effect that there was a joint scheme between the Commonwealth and the State which engaged s 51(xxiiiA): PJ [284].

7. There was no inconsistency between Order (No 2) and the Australian Immunisation Register Act: PJ [11(v)]. The primary judge described this argument as “without substance”: PJ [293].

   11. Applications for leave to appeal have been filed in both sets of proceedings.

   12. The Kassam Applicants have raised the following 11 grounds of appeal:

   “1.   The primary judge erred in holding that in the absence of a bill of rights applicable in NSW the Appellants' right to bodily integrity, their right to freedom of movement unmolested by government except where expressly authorised by law, and their right to work, were not protected by the common law.

   2.   The primary judge misconstrued and misapplied Public Health Act 2010 including but not limited to section 7.

   3.   The primary judge misconstrued Order No 2.

   4.   The primary judge erred in failing to construe and apply the usual implication of reasonableness with respect to the making of Order No 2 and in preferring the evidence of Professor Macartney in relation to the effectiveness of treatments, vaccines or mRNA inhibitors and their capacity to inhibit their spread of disease over the six experts called by the appellants, particularly having regard to the far reaching consequences of Order No 2.

   5.   The primary judge erred in holding that the making of Order No 2 in the form and to the effect made was legally reasonable.

   6. The primary judge erred in construing and misapplying Constitution section 51 (xxiiiA) with respect to civil conscription.

   7. The primary judge erred in construing and misapplying Constitution section 109 and the terms operation and effect of Australian Immunisation Act 2015.

   8.   The primary judge erred in his findings in that there was no evidence to support the findings, including that the Appellants made an informed choice not to be vaccinated, and/or that the provisions of Order No 2 do not comprise an effective means of compulsion.

   9.   The primary judge erred in that an inference drawn was not supportable by the facts, including the finding that the arrangements between the Commonwealth and the State of NSW are and were not an effective mode of civil conscription.

   10.   The primary judge wrongly excluded or admitted evidence.

   11.   The primary judge erred in failing to give adequate reasons for the findings of fact made including that abrogation of fundamental common law rights was the very thing the Public Health Act 2010 set out to achieve, without having regard to the applicable second reading speeches, and the text, context and purpose of the law.”

   13. Grounds 7 and 10 were not pressed, although it should be observed that the formulation of a ground of appeal such as ground 10 is completely unacceptable without any identification of the evidence said to have been either wrongly excluded or wrongly admitted. As Gleeson JA outlined in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [52], the importance of precision in formulating grounds of appeal cannot be overstated.

   14. The Henry Applicants have raised the following 8 grounds of appeal:

   “1.   The learned trial judge erred in determining that the Respondent did not act outside his power in making the impugned public health orders. In particular, the learned trial judge erred:

   a.    in determining the Impugned Public Health Orders did not violate the rights as contended by the Appellants, namely:

   i.   the right to bodily integrity;

   ii.   the right to earn a living;

   iii.   the right not to be discriminated against;

   iv.   the right to privacy;

   v.   the right to silence; and

   vi.   the privilege against self-incrimination.

   b. in determining that, in the absence of Australia having a bill of rights, the common law rights identified by the Applicants were not effectively engaged so that the principle of legality operated to limit the scope of the power under s 7 of the Public Health Act 2010(NSW);

   c.    in determining that the Impugned Public Health Orders abrogated rights that the legislation set out to achieve;

   d. in failing to determine that certain particular Impugned Public Health Orders pertaining to the gathering and production of vaccination evidence were designed to enforce other public health orders and were therefore not within the scope of s 7 of the Public Health Act 2010 (NSW);

   e. In determining that s 7 of the Public Health Act 2010 (NSW) should not be read down so as to render the Impugned Public Health Orders invalid.

   2.   The learned trial judge erred in finding that the impugned public health orders did not mandate or coerce workers to be vaccinated.

   3.   The learned trial judge erred in determining that the Impugned Public Health Orders were not made for an improper purpose in that the learned trial judge failed to determine that the Impugned Public Health Orders were legislative in character in circumstances where the Court was called upon to determine that the power under s 7 is an administrative power (not legislative), and in circumstances where the Respondent used the s 7 power to legislate a compulsory public vaccination program being a purpose not authorised by the Public Health Act 2010 (NSW).

   4.   The learned trial judge erred in determining that the Respondent did not fail to take into account relevant considerations, namely:

   a.    the safety and efficacy of COVID-19 vaccinations;

   b.    the rights referred to in Ground 1(a)(i) to (vi) above;

   c.    other measures, including alternatives to vaccination, as a means by which to address the risk to public health that COVID-19 represents;

   5.   The learned trial judge erred in determining that the Respondent did not take into account irrelevant considerations, namely that a person who chooses not to be vaccinated is ‘self-entitled and indulgent in the extreme’.

   6.   The learned trial judge erred in determining the Impugned Public Health Orders were not unreasonable and not disproportionate.

   7.    The learned trial judge erred in failing to draw an adverse inference against the Respondent from his failure to adduce evidence to explain what matters or considerations were taken into account in making the Impugned Public Health Orders.

   8.    The learned trial judge erred in failing to accept the expert evidence adduced in support of the Applicants’ case (including that adduced by the Kassam plaintiffs), none of whom were sought to be cross-examined.”

   15. Before turning to consider the question of leave to appeal, it is important to note the current status of the Impugned Orders.

Status of the Impugned Orders

16. Order (No 2) was originally made by the Minister on 20 August 2021, and was amended on numerous occasions. On the evening of 3 October 2021, that is, during the course of the proceedings below, the Minister made Public Health (COVID-19 General) Order 2021 (the General Order) which repealed Order (No 2) with effect from the beginning of 11 October 2021. Despite this, it was not contended by any party at first instance that the challenges to Order (No 2) were rendered futile: PJ at [6]. Both sets of Plaintiffs confirmed that they sought declaratory relief concerning its invalidity. Further, the Aged Care Order and the Education Order (as challenged by the Henry Plaintiffs) continued to have effect at the date of the primary judgment.

17. However, the Aged Care Order (which was made by the Minister on 26 August 2021) and which was still in force at the time of delivery of the primary judgment, was repealed with effect from 9am on 1 November 2021, pursuant to the Public Health (COVID-19 Care Services) Order (No 2) 2021 (NSW).

18. The Education Order, which was made by the Minister on 23 September 2021, remains in force. Unless repealed earlier, it will expire at the end of 22 December 2021, pursuant to s 7(5) of the Public Health Act. That sub-section provides that an order made under s 7 expires at the end of 90 days after the order is made, unless earlier revoked or specified in the order.

19. The status of these Orders, two of which have ceased to be operative and one of which will cease to operate in a matter of weeks, together with the form of relief sought by the parties both at first instance and on appeal, namely the making of bare declarations unaccompanied by any claims for compensation or damages which would almost certainly not be available in any event (see Public Health Act ss 132-133) bears strongly on the question of leave to appeal, to which I now turn.

Leave to appeal

Principles and submissions

20. Notwithstanding the assertion unsupported by argument on the part of the Henry Applicants that leave to appeal was not required, no appeal to this Court lies other than with the leave of the Court of Appeal from a final judgment or order of a judge of a Division of the Supreme Court, unless it involves “a matter at issue” amounting to or of the value of $100,000 or more or (directly or indirectly) “any claim, demand or question to or respecting any property or civil right” amounting to or of the value of $100,000 or more: Supreme Court Act 1970 (NSW) s 101(2)(r). That is not this case, notwithstanding evidence led on information and belief in support of the application for leave that one of the Applicants in the Kassam Proceedings had suffered a financial loss of more than $100,000 as a result of the making of Order (No 2).

21. In Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [13]-[30], I reviewed the principles relevant to s 101(2)(r) of the Supreme Court Act. Putting aside the questionable form of the “evidence” relied upon (a hearsay assertion), most relevant for present purposes is the fact that the phrase “matter at issue” in the sub-section has been construed as meaning that there is “a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000”: see at [18]. That would not be the consequence of a successful appeal in circumstances where there was no claim for damages and no property or civil right involved having the requisite value or capable of being so valued cf. Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 205; [1960] HCA 40.

22. The requirement of leave to appeal plays an important role in the administration of justice. It is a preliminary procedure “recogni[s]ed by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention”: see Coulter v The Queen (1988) 164 CLR 350 at 356; [1988] HCA 3; see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [35].

23. The Henry Applicants put that if leave was required, it should be granted for the following reasons:

“(a) The case involves significant matters of principle concerning the exercise of public power by a Minister under s 7 of the Public Health Act 2010 within the context of an unprecedented global pandemic. In particular, a discretionary statutory power has never before been used in a way that effectively obliges a significant section of the workforce to submit to vaccinations under threat of losing their ability to work.

(b)    The public health orders at issue are so detailed, prescriptive and generalised in their application that concern is necessarily raised as to whether a Minister has usurped the function of the Parliament by effectively legislating a compulsory public vaccination program in circumstances where there is no long-term data relating to the efficacy and safety of the vaccinations sought to be administered.”

24. The Kassam Applicants adopted these reasons and, in addition, submitted that the appeal raised significant matters of principle concerning:

“a.    The extent of the powers granted to the Minister by s.7 of the Act

b. The meaning and extent of the constitutional guarantee against civil conscription in Constitution S.51(xxiiiA)

c.    Whether the agreements reached and arrangements entered into between the [State of New South Wales] and [the Commonwealth], with others, at National Cabinet constitute a ‘joint scheme’ between the Commonwealth and at least one of the Australian States, analogous to that found in PJ Magennis Pty Ltd v Commonwealth [1949] HCA 66; 80 CLR 382; 23 ALJR 564; [1950] ALR 33.”

25. The principles concerning leave to appeal were summarised by Gleeson JA (with whom Macfarlan and Payne JJA agreed) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] as follows:

“Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].”

26. In Sharpe v Heywood [2013] NSWCA 192 at [34], Gleeson JA, with whom Barrett JA agreed, said that “[a]lthough not the only factor relevant, an essential prerequisite of a grant of leave to appeal is that the Court be persuaded that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal.”

27. Leave to appeal will also be refused where its grant would lack utility: see, for example, Hamzy v NSW Commissioner of Police [2020] NSWCA 184 at [40], [44], [45] and [53]; Rinehart v Rinehart [2020] NSWCA 221 at [43]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [146] and [148]; Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325 at [10]; Bowers v The Law Society of New South Wales [2021] NSWCA 270 at [12]-[13]; and Lisa Maree Campbell as Administrator ad litem of the Estate of the Late Ralph Gordon Barry Campbell v Commonwealth Bank of Australia [2014] NSWCA 316 at [21]. Not only is this consideration sound as a matter of common sense, but to grant leave in a case where there would be no utility in doing so scarcely facilitates “the just, quick and cheap resolution of the real issues in the proceedings” cf. Civil Procedure Act 2005 (NSW) s 56. Moreover, scarce judicial resources should not be deployed in resolving proceedings whose utility is either wholly lacking or extremely limited: see, for example, Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16].

28. Utility is, moreover, not to be measured by the interest that may lie in the particular answer of a court of a particular status on a question or questions in circumstances where any answer it gives will have no practical effect as between the parties, or at all. It is not the role of this Court to give advisory opinions on what may have become hypothetical questions. In Bass v Permanent Trustee Company Limited (1999)198 CLR 334; [1999] HCA 9 at [47], the plurality of the High Court noted that:

“Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude.” (footnote omitted).

See also Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [180] and [457].

29. Leave to appeal was opposed by the State.

30. The State properly accepted that those grounds of appeal seeking to challenge the primary judge’s construction of s 7 of the Public Health Act raised an issue of general importance. The State submitted, however, that the primary judge’s construction was not attended by sufficient doubt so as to warrant a grant of leave. The State also submitted that the specific grounds concerning Order (No 2) – namely grounds 3, 4 and 5 – raised no issue of principle or public importance and noted that the only Order challenged by the Kassam Applicants, being Order (No 2), had been repealed for more than a month, and the invalidity of the Order would not give rise to any claim for damages. The State also noted that there was no challenge made below to the validity of the General Order which replaced Order (No 2).

31. In relation to the constitutional arguments with respect to s 51(xxiiiA), the State contended that the primary judge was correct to describe such arguments as “completely untenable”. The State further noted that the Kassam Applicants advanced no submissions in support of ground 7, and little if any argument related to grounds 8, 10 and 11 and, as noted above, grounds 7 and 10 were not ultimately pressed.

32. With respect to the Henry Proceedings, the State similarly submitted that none of the proposed grounds of appeal had sufficient merit to warrant a grant of leave. Whilst the State again accepted that the grounds seeking to challenge the primary judge’s construction of s 7 of the Public Health Act raised an issue of general importance, the State submitted that the primary judge’s construction was “clearly correct”, and that the balance of the grounds raised no point of principle.

33. The State further submitted that, given that, of the Orders impugned by the Henry Parties, only the Education Order remained in force and expires no later than 22 December 2021, “there is limited general public importance or utility in the Court considering the impugned orders”.

Disposition of leave question

34. I would grant leave to appeal in relation to those grounds which involve the proper construction of s 7 of the Public Health Act (grounds 1-3 in the Henry Appeal and grounds 1-2 in the Kassam Appeal). That issue, as the State concedes, raises a matter of public importance. Questions of construction in relation to s 7 of the Public Health Act have ongoing significance given the continuation of the Education Order, and the fact that the COVID-19 virus continues to mutate and that the risk to public health caused by the pandemic has not abated.

35. I am of the view, however, that leave to appeal should be refused in respect of grounds 4-8 of the Henry Appeal and grounds 3-6, 8-9 and 11 of the Kassam Appeal. This is for a number of reasons.

36. First, by way of contrast to those grounds in respect of which I would grant leave (and putting to one side for the moment the constitutional arguments), the remaining grounds involve challenges to the process by which the Impugned Orders were made, or the legal reasonableness of those Orders in light of the evidence led at first instance of the Minister’s purpose in making those orders. These matters are all evidence specific and the grant of leave to appeal would manifestly lack utility in relation to Order (No 2) and the Aged Care Order, both of which have been repealed. A grant of leave to appeal would be of extremely limited utility in relation to the Education Order, as it will expire on 22 December 2021 with the final term of public schools in New South Wales ending on 17 December 2021.

37. Secondly, having carefully reviewed the detailed reasons of the primary judge in relation to the issues covered by the grounds in respect of which I would refuse leave to appeal, I am comfortably satisfied that they disclose no error of principle. Moreover, aspects of the arguments advanced in support of those grounds lack any secure foundation in the case law. This was particularly so in relation to ground 4 of the Henry Appeal which, at least as it was advanced in oral argument by Mr Clarke QC, failed to have proper regard to the well-known observations of Mason J, as he then was, in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39; [1986] HCA 40 (Peko-Wallsend) cf. s 62(6) of the Public Health Act (referred to at [54] below).

38. In relation to the constitutional arguments sought to be raised by the Kassam Applicants (grounds 6 and 9, noting that ground 7 was not pressed), I agree with the primary judge’s assessment that the argument based upon s 51(xxiiiA) of the Constitution was completely untenable. As his Honour noted at PJ [267], that placitum “only qualifies a (Commonwealth) law for the ‘provision’ of ‘medical or dental services’.” Moreover, as his Honour outlined at PJ [268], “civil conscription is directed to compulsive service in the provision of medical services”, not their receipt. As the primary judge observed at PJ [272], “[n]othing in any part of Order (No 2) or the [Public Health Act] involves any element of coercion on a doctor or other medical provider to vaccinate anyone.”

39. Additionally, s 51(xxiiiA) of the Constitution is not a constraint on State power. Ground 9 of the Kassam Appeal relates to the attempt to circumvent the fact that s 51(xxiiiA) does not purport to constrain State power and is bound up with the unsuccessful argument put at first instance based on Magennis. This was only one of the objections to the s 51(xxiiiA) argument. In any event, as the primary judge observed at PJ [284] in relation to the body of material which the Kassam Parties sought to rely on:

“all this [sic] of this material takes the matter nowhere for two reasons. First, there is nothing in any of the materials relied on, including the material concerning aged care workers, to support the contention that NSW was required under some agreement to mandate vaccines to anyone (cf Spencer at [210]). Second, even if they were, there is nothing in Order (No 2) or the [Public Health Act] to suggest that any aspect of their operation or validity is dependent on the existence of any agreement with the Commonwealth to require them to mandate vaccines which on the authority of Magennis might render them inoperative.” (emphasis in original).

40. The documents relied upon by the Kassam Parties did not warrant a finding of the kind required by analogy with Magennis but, even if they had, it would not assist because of the fact that nothing in the Impugned Orders imposed any form of compulsion on a provider of medical or dental services so as to engage the operation of the placitum, assuming it otherwise applied.

41. Just because an argument is raised under the Constitution does not give it any elevated status when considering a grant of leave to appeal. Leave to appeal should be refused in relation to grounds 6 and 9 of the Kassam Appeal.

42. Ground 8 of the Kassam Appeal also does not warrant the grant of leave. It was not the subject of any written submissions advanced on behalf of the Kassam Parties.

43. Ground 11 of the Kassam Appeal is fanciful. The primary judge’s reasoning was thorough with extensive consideration being given to the text, context and purpose of the Act and, contrary to the assertion in ground 11, regard was had to the second reading speech: see PJ [13]-[42].

44. The refusal of leave to appeal on the grounds indicated also renders of no relevance the fresh evidence that was sought to be adduced by both the Kassam and Henry Parties. As such and for that reason alone, I would reject the attempt to lead that evidence.

45. It follows from the limited grant of leave to appeal that the balance of this judgment focuses on the proper construction of s 7 of the Public Health Act and the question of whether it authorised the making of the Impugned Orders.

The Public Health Act

46. The objects of the Public Health Act are set out in s 3. They are:

(a)   to promote, protect and improve public health,

(b)   to control the risks to public health,

(c)   to promote the control of infectious diseases,

(d)   to prevent the spread of infectious diseases,

(e)   to recognise the role of local government in protecting public health.

(f)   to monitor diseases and conditions affecting public health.

47. Section 3(2) provides that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.”

48. Section 7 of the Public Health Act provides as follows:

“7   Power to deal with public health risks generally

(1)   This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

(2)   In those circumstances, the Minister—

(a)   may take such action, and

(b)   may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary—

(a)   to reduce or remove any risk to public health in the area, and

(b)   to segregate or isolate inhabitants of the area, and

(c)   to prevent, or conditionally permit, access to the area.

(4)   An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order.

(5)   Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order.

(6)   Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989.

(7)   An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a)   any action taken by the Minister under this section other than the giving of a direction by an order under this section,

(b)   any direction given by any such order.”

49. A number of observations may be made about s 7 of the Public Health Act.

50. First, the risk to public health with which it is concerned need not have materialised at the time of the making of any order under s 7; all that is required is that a “situation” has arisen that “is, or is likely to be” a risk to public health. It was not submitted at first instance, and not ultimately submitted on appeal, that either the COVID-19 pandemic or the emergence of the Delta strain was not a “situation” for the purposes of s 7 of the Public Health Act.

51. Secondly, the powers conferred by s 7(2) are broad, confined only by what “the Minister considers necessary to deal with the risk and its possible consequences”, supplemented by an implied requirement that the Minister undertakes that consideration reasonably: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34]. The breadth of the power conferred by s 7(2) is also informed by the subject matter, scope and purpose of the Act and the paramount consideration specified in s 3(2) of the Act.

49. Section 7(2) on its face thus confers a broad discretion on the Minister. Contrary to submissions advanced by the Appellants, any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary (even if that were ascertainable, it being a matter upon which views could differ) but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the Orders were necessary. As Gleeson CJ observed in Mulholland v Australian Electoral Commission (2004) 220 CLR 181, [2004] HCA 41 at [41]:

“the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy.”

53. Dr Harkess, who appeared for the Henry Parties, accepted that s 7(2) authorised the making of “detailed directions insofar as they are designed to restrict the freedom to move”. He was constrained to accept in his submissions in reply, however, that the logic of his argument based upon the principle of legality was that directions designed to restrict the freedom of movement in furtherance of the paramount consideration identified in s 3(2) of the Public Health Act were not permissible insofar as they impaired, even in an indirect or temporary way, any of the six rights identified in ground 1(a) of the Henry Notice of Appeal (see [14] above), which are considered in more detail below. Such an interpretation would be corrosive of the express power to curtail movement and would have the potential to significantly undermine the efficacy of any measures introduced to restrict movement.

54. Thirdly, no matters or considerations are mandated as to what the Minister is to take into account in exercising the power conferred by s 7(2). This may be contrasted with s 62(6) of the Act, which is concerned with public health orders made by an authorised medical practitioner relating to persons with what are referred to as Category 4 or 5 conditions. In deciding whether or not to make a public health order pursuant to that section of the Act, an authorised medical practitioner is by s 62(6) required to (“must”) take into account “the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health” as well as “any matters prescribed by the regulations for the purposes of this section.” The absence of a similar provision in or in relation to s 7 defeats the suggestion made by the Henry Parties that such a consideration was mandatory for the purposes of s 7, cf. Peko-Wallsend.

55. Fourthly, s 7(3) of the Public Health Act is not a separate source of power but supplies an example of the kind of order that may be made pursuant to s 7(2). Importantly, s 7(3) is expressly stated not to limit s 7(2), a textual indication militating powerfully against one of the arguments advanced on behalf of the Kassam Parties and dealt with at [121]-[130] below. Sub-sections 7(3)(b) and (c) indicate that an order made pursuant to the power conferred by s 7(2) may restrict movement and restrict access to particular areas, whether absolutely or conditionally. The reference to “inhabitants” and the fact that an order may apply to inhabitants of “any part of the State” illustrates the potential breadth of such an order.

56. Fifthly, the fact that, pursuant to s 7(4), an order made pursuant to s 7 is required to be published in the Gazette as soon as practicable after it is made, but that failure to do so will not invalidate it, also points towards the potentially broad-reaching effect of such an order and its importance. It is an order designed formally to come to people’s attention by publication in the Gazette.

57. Sixthly, the fact that, pursuant to s 7(5), an order will expire at the end of 90 days after it was made (if not revoked or specified to end earlier) highlights the temporary nature of any order made pursuant to s 7(2). If such an order interfered with fundamental rights, such interference would necessarily only be temporary.

58. In this context, it is relevant to note one argument advanced on behalf of the Henry Parties. Dr Harkess submitted that s 7(2) should only be used for “short, sharp” measures to address a “short, discrete event”, an “isolated incident” or a “situation” that had arisen, suggesting thereby that the section could not be used to address a situation presenting a public health risk or likely risk of lengthy duration and extensive impact. This submission should be rejected. First, an order under s 7(2) may be made prophylactically and it may be impossible to know whether the risk perceived as likely to arise will in fact materialise and, if so, for how long it will last. Secondly, the word “situation” does not necessarily or obviously imply something minor or only calling for a “short, sharp” response. The “situation” in existence may be grave or potentially so. Thirdly, pursuant to s 7(5), the only temporal limitation is 90 days. That is not a self-evidently short period and, in fact, was lengthened from 28 days which was the corresponding period under the predecessor Act: see the Public Health Act 1991 (NSW) s 5(6).

59. Seventhly, s 7(6) is a machinery provision in the sense that it makes it plain that, in the postulated circumstance, there may only be one set of orders made under the Public Health Act governing the situation.

60. Eighthly, the significance, if any, of s 7(7) is dealt with at [76] below.

61. It is also necessary to set out s 8 of the Public Health Act as it, together with the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) featured prominently in the argument advanced by Mr King on behalf of the Kassam Parties. Section 8 of the Public Health Act provided that:

“8   Power to deal with public health risks during state of emergency

(1)   This section applies in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (the 1989 Act) if, after consultation with the Minister administering that Act, the Minister considers on reasonable grounds that the emergency is, or is likely to be, a risk to public health.

(2)   In these circumstances, the Minister, with the agreement of the Minister administering the 1989 Act–

(a)   may take such action, and

(b)   may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

(3) Without limiting subsection (2), an order may direct–

(a)   all persons in a specified group, or

(b)   all persons residing in a specified area,

to submit themselves for medical examination in accordance with the order.

(4)   An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order.

(5)   Unless it is earlier revoked, an order expires when the relevant state of emergency ceases to exist.

(6)   Action taken (including any order made) under this section has effect as if it had been taken in the execution of Division 4 of Part 2 of the 1989 Act.”

The Impugned Orders

62. Each of the Impugned Orders was described in detail by the primary judge: Order (No 2) at PJ [43]-[54], the Aged Care Order at PJ [77]-[83] and the Education Order at PJ [84]-[94].

63. Each of the Orders set out grounds for concluding that there was a risk to public health. The following three grounds were common to each order:

“(a)   public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus (SARS-CoV-2),

(b)   COVID-19 is a potentially fatal condition and is highly contagious,

(c)   a number of cases of individuals with COVID-19 have recently been confirmed in New South Wales and other Australian jurisdictions, including by means of community transmission, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales.”

64. In addition, the Aged Care Order and the Education Order included the further ground that “the risk of transmission, including by means of community transmission, of COVID-19 in New South Wales will remain significant and ongoing unless more COVID-19 vaccines are administered.”

65. The Education Order added a further ground, namely that “there is a risk of transmission of COVID-19 among children at government schools, non-government schools and early education and care facilities because the COVID-19 vaccine is currently not available for children of certain ages” (emphasis added).

66. The focus of the attack on Order (No 2) was cll 4.3 and 5.8, but it is necessary to note at the outset that Pts 2, 3 and 4 of that Order were directed to what was described as “the general area”, “stay at home areas” and “areas of concern” respectively. These were areas which were identified in Pts 1, 2 and 3 respectively of Schedule 1 to the Order. Part 5 of Order (No 2) contained additional directions for Greater Sydney.

67. Clause 4.3, which fell within Pt 4 of the Order and related to the “areas of concern” as identified in Schedule 1, provided as follows:

“4.3   Leaving area of concern for work

(1)   A person who lives in an area of concern must not leave the area of concern for the purposes of work unless the person is an authorised worker.

(2)   An authorised worker must not leave the area of concern for work without a permit issued by Service NSW.

Note—See clause 6.4.

(2A)   An authorised worker does not require a permit for the provision of an emergency service.

(3)   An authorised worker who is at least 16 years of age must not leave the area of concern for work unless the worker—

(a)   has had at least 1 dose of a COVID-19 vaccine, or

(b)   has been issued with a medical contraindication certificate.

(3A)   The authorised worker, when leaving the area of concern for work must—

(a)   carry the required evidence, and

(b)   produce the required evidence for inspection if requested by—

(i)   the worker's employer, or

(ii)   the occupier of the worker's place of work, or

(iii)   a police officer, or

(iv)   an authorised officer.

(3B), (3C)   (Repealed)

(3D)   This clause does not apply to a person if the person has not been in the area of concern during the previous 14 days.

(4)   In this clause—

authorised worker means a person who is authorised to work outside the area of concern because of an exemption under Part 7.

Note 1— A list of authorised workers is published on the NSW government website 2— See clause 5.8 for additional restrictions for workers who reside in an area of concern and who work on a construction site in Greater Sydney.

required evidence means—

(a)   evidence showing the worker's name and place of residence, and

(b)   the worker's vaccination evidence, and

(c)   a permit issued by Service NSW, if required.”

68. Clause 5.8 which fell within Pt 5 of the Order and related to Greater Sydney provided as follows:

“5.8   Vaccination required to work on construction sites in Greater    Sydney

(1)   A person whose place of residence is in an area of concern must not enter or remain on a construction site in Greater Sydney unless the person—

(a)   has had 2 doses of a COVID-19 vaccine, or

(b)   has had 1 dose of a COVID-19 vaccine at least 21 days ago, or

(c)   has had 1 dose of a COVID-19 vaccine within the previous 21 days and has been tested for COVID-19 within the previous 72 hours, or

(d)   has a medical contraindication certificate issued to the person and has been tested for COVID-19 within the previous 72 hours.

(2)   The occupier of the construction site must not allow the person to enter or remain on the construction site unless satisfied that the person has complied with this clause.

(3)   The person must, when entering or on the construction site—

(a)   carry the required evidence, and

(b)   produce the required evidence for inspection if requested by—

(i)   the person's employer, or

(ii)   the occupier of the construction site, or

(iii)   a police officer, or

(iv)   an authorised officer.

(4)   (Repealed)

(5)   This clause does not apply to the following persons—

(a)   a person who enters or remains on a construction site because of an emergency,

(b)   a police officer,

(c)   an authorised officer.

(6)   In this clause—

required evidence means—

(a)   evidence showing the person's name and place of residence, and

(a1)   a permit issued by Service NSW, if the person is required to have the permit to enter or leave an area of concern for work, and

(b)   all of the following that apply to the person—

(i)   evidence from the Australian Immunisation Register that the person has had 1 or 2 doses of a COVID-19 vaccine,

Example— An online immunisation history statement or COVID-19 digital certificate from the Australian Immunisation Register.

(ii)   evidence that the person has been tested for COVID-19,

Example— An SMS text message or email from the testing organisation.

(iii)   a medical contraindication certificate issued to the person.

test for COVID-19 includes test for COVID-19 using a rapid antigen test in the way approved by the Chief Health Officer.”

69. The primary judge said at PJ [56] that:

“provisions such as clause 4.3 and 5.8 do not violate any person’s right of bodily integrity. Unlike, say, the court orders in Marion’s Case, they do not purport to confer authority on any person including a medical practitioner to perform a medical procedure on anyone. After the making of Order (No 2),any attempt to force an injection into the arm of anyone who lived in an area of concern or worked in the construction industry was still a battery.”

His Honour continued:

“57   Clause 4.3 operated in conjunction with clause 4.2 which precluded all persons residing in an area of concern from leaving their homes without a reasonable excuse, one of which was that it was not reasonably practical for a person to work at their residence. Clause 4.3(1) qualified the ability to leave home for any of the reasonable excuse reasons so that a resident of an area of concern could only leave the area if they were an ‘authorised worker’. In turn, subclause 4.3(3) qualified that limited permission to authorised workers to leave the area of concern so that in effect it was only applicable to the vaccinated. The end result was that persons who lived in the areas of concern, who were authorised workers, and who had not fulfilled the vaccination requirements were in no different position to people who lived in the areas of concern and who were not authorised workers. They all had their freedom of movement severely restricted.

58   Clause 5.8 of Order (No 2) operated differently but it still imposed a sanction on entering and remaining on a construction site which was relaxed for the vaccinated. Neither clause 4.3 nor clause 5.8 authorised the vaccination of persons without their consent. Neither provision imposed a sanction for being unvaccinated per se. On its face these provisions impaired freedom of movement and not a person’s autonomy over their own body.”

70. His Honour concluded at PJ [70] that:

“provisions such as clause 4.3 and 5.8 do not amount to a violation of anyone’s right to bodily integrity but instead impede their freedom of movement which has consequential effects on their ability to work. Freedom of movement is undoubtedly important, although it is not necessarily some form of positive right. Regardless, the [Public Health Act] is clearly directed to limiting that freedom, sometimes severely.”

71. The primary judge reached similar conclusions about the effect of the Aged Care Order and the Education Order: see PJ [83] and [94]. Those Orders, although expressed in different ways, also conditioned the ability to attend at work, relevantly an aged care facility and schools, on persons having at least one vaccination: see Aged Care Order cl 5; Education Order cl 4.

72. Attention is now turned to the various arguments advanced on appeal in relation to the grounds upon which I would grant leave to appeal.

Consideration

Administrative or legislative?

73. The first argument advanced was that s 7 of the Public Health Act only authorised administrative action but that the Impugned Orders were legislative in their effect, and invalid for that reason.

74. There are various areas in which the characterisation of an action, instrument or order as either administrative or legislative is rendered important by statute. One example is where an instrument of a particular character needs to be laid before Parliament. This was the issue in Commonwealth v Grunseit (1943) 67 CLR 58; [1943] HCA 47 which involved s 5(4) of the National Security Act (1939-1940) (Cth). See also Sea Shepherd Australia Ltd v Western Australia (2014) 313 ALR 208; [2014] WASC 66, relating to the need for all subsidiary legislation in Western Australia to be published in the Gazette as required by s 41 of the Interpretation Act 1984 (WA).

75. Another and perhaps the most familiar example of a statute rendering the characterisation of an action or an instrument of a particular character of importance is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) which permits judicial review of “decision to which this Act applies” which is defined in s 3 to mean “a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition)” under a specified enactment or by a Commonwealth authority or an officer of the Commonwealth. Unsurprisingly, there is a well-developed body of jurisprudence which has built up, especially in the Federal Court, in relation to the meaning of a decision of “an administrative character”. Difficult questions may arise in this regard in circumstances where review is sought under the ADJR Act of instruments which may be regarded as being of a legislative, as distinct from an administrative, character. The decision of the Full Court of the Federal Court in Federal Airports Corporation v AerolineasArgentinas (1997) 76 FCR 582; [1997] FCA 723 is a case in point; see also RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855.

76. Unlike the ADJR Act, the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) permits the review of an “administratively reviewable decision”, but such a decision will be identified not by an assessment of its character, but rather by reference to whether “enabling legislation” provides for an application to be made to the NSW Civil and Administrative Tribunal (NCAT) for the decision’s review: see the ADR Act s 7. Whether or not a person may seek review of the Impugned Orders in NCAT turns on the proper construction of s 7(7) of the Public Health Act, and it has recently been held that that section does not permit the administrative review of Order (No 2): see Davis v Minister for Health [2021] NSWCATAD 310 at [52]-[63]. But that decision did not turn on a characterisation exercise of the kind that is routinely undertaken for the purposes of the ADJR Act.

77. In my view, the question of the validity of the Impugned Orders does not turn upon whether or not they were of an administrative or legislative character (and the two are not necessarily mutually exclusive: see McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 at [39] and the reasons of Leeming JA at [153]-[155] below). Rather, the question is simply whether the Impugned Orders were authorised by s 7 of the Public Health Act.

78. In my view, they were. The power in s 7 of the Public Health Act is very broad and no narrow construction should be afforded to it given its subject matter and the nature of the risk it is designed to address, matters which Leeming JA in his separate reasons has also emphasised.

1. In the Henry appeal, no basis was laid for the foundation of proposed ground 4 that any of the eight nominated matters were impliedly made relevant considerations in the axiomatic sense that a failure to have regard to them vitiated the exercise of power.

2. Nor was any basis laid for the submission in proposed ground 5 that the Minister’s statement at a press conference as to the self-entitlement and self-indulgence of persons who chose not to get vaccinated bore upon the making of any impugned order, or, even if it did, that the statute impliedly vitiated the order on that basis.

3. There was a divergence of expert evidence before the primary judge, some of which supported the measures in the impugned orders. As it happens, the primary judge regarded the qualifications of the expert called by the respondents as “vastly superior” to those of most of the experts called by the plaintiffs, but that is not the point. The complaints in both appeals based on the failure to cross-examine the plaintiffs’ experts do not attend to the fact that a range of expert opinion was adduced. If a decision is to be shown to be legally unreasonable based on evidence which was not before the decision-maker, then the practical reality is that the challenge will highly likely fail unless that evidence all points in the same direction. The opposite is true in the present case.

4. There is nothing in the Kassam Applicants’ submission that s 51(xxiiiA) directly subtracts from State legislative power. A qualification to a new head of legislative power granted to the Commonwealth following a referendum cannot result in a diminution of State legislative power. The Kassam Applicants’ alternative submission, based upon joint action by the Commonwealth and the States, fails at the threshold because it was not shown that there was is any legal or practical compulsion on any medical or dental practitioner to perform any medical or dental service. The primary judge explained this, by reference to binding authority, at [267]-[274].

5. Proposed ground 11 of the Kassam Applicants was not separately addressed, for the good reason that there is no foundation to a complaint that the primary judge failed to give adequate reasons for concluding that fundamental common law rights were overridden by the impugned orders. The reasons were a model of their kind.

   142. As the President has noted, it follows from confining the appeal to questions of law of ongoing importance that the application to adduce fresh or further evidence must fail.

   143. I turn to three issues at the forefront of the grounds warranting a grant of leave.

The submission that s 7 only authorises “administrative” not “legislative” action

144. In some respects, the impugned orders have a hybrid character. They are described by the President. They are not “statutory rules” within the meaning of s 21 of the Interpretation Act 1987 (NSW). That denies to them the statutory presumption of validity effected by s 45(1) of that statute, but also means that they are not subject to tabling and disallowance under Part 6. It is true that that reduces the scope for scrutiny, but counterbalancing that is the fact that the order must expire of its own force within 90 days; contrast most statutory rules (such as regulations) which are disallowable but will generally expire after five years: Subordinate Legislation Act 1989 (NSW), s 10(2). On the other hand, as a matter of substance, the orders are “legislative” in the sense that they prescribe general norms of conduct, with real sanctions if breached which were applicable to thousands, indeed millions, of people. For what it is worth, they also appear on the NSW legislation website, prominently, on a page titled “COVID-related legislation”.

145. I mention this because it may explain what underpins the first submission made on appeal. The submission was that s 7 authorises only “administrative” orders, the impugned orders are “legislative”, and therefore outside the scope of the power. I do not agree with this approach.

146. For one thing, it is unnecessarily artificial. The submission requires construing the power conferred by s 7 in order to discern an implied restriction, and then construing the orders made in the purported exercise of that power in order to discern whether they exceed the implied restriction. But in principle it is surely better simply to construe the power and see whether the orders made in its purported exercise fall within its scope.

147. Authority accords with that approach. The argument being one of simple ultra vires, the starting point is to determine “[t]he true nature and purpose of the power” to make the regulation: Williams v Melbourne Corporation (1933) 49 CLR 142 at 155; [1933] HCA 56.

148. For this reason it is also wrong to apply the reasoning in decisions on other, differently worded powers uncritically. This has been pointed out on numerous occasions, perhaps most familiarly by Rich J in Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301 at 308; [1943] HCA 15:

“Authorities are of little use in determining the validity of a particular by-law. The appropriate steps are to construe the statute under which the by-law is made and then interpret it to ascertain whether it is within the ambit of the statute.”

149. As was observed by Gordon, Katzmann and Griffiths JJ in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45 at [56], the same approach applies generally to challenges to a subordinate legislative instrument.

150. Thus it is not to the point to invoke, as both applicants did, Higgins J’s statement in Commonwealth and Postmaster-General v Progress Advertising and Press Agency Company Pty Ltd (1910) 10 CLR 457 at 469; [1910] HCA 28 that “the power does not extend to everything which the Governor-General in Council considers to be necessary. The regulation must be necessary” (original emphasis). That statement has no relevance to the power conferred by s 7. Higgins J was construing a power to make regulations “necessary for carrying out this Act”. He was in fact emphasising that the power did not turn on a state of mind. Section 7 is quite differently worded. Section 7 expressly confers power by reference to what “the Minister considers necessary”.

151. Similarly inapt was the uncritical reliance on the reasoning in Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4, as occurred in the Kassam Applicants’ written and oral submissions. The power in issue in that case was a power to make regulations “for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of the Act or for carrying out the objects of the Act”. The power conferred by s 7 is delineated differently. The Kassam Applicants are not alone in committing this mistake; other examples where this Court has rejected such reasoning may be seen in Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 at [103]-[104] and Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [62]-[63].

152. Just because a passage in reasons for judgment seems apposite if read in isolation does not make it so. Reasons for judgment must always be read in context: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638. The reasons in one decision concluding that a regulation is ultra vires will be of limited assistance in a later case where the regulation-making power is differently expressed.

153. There is a separate reason telling against this step in the applicants’ argument. The distinction between “administrative” and “legislative” is in any event problematic. It depends on context. Take by way of example two federal statutes which draw upon the distinction. It is far from inevitable that the body of authority which has been developed in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (which applies to specified decisions “of an administrative character”) is equally applicable to s 8 of the Legislation Act 2003 (Cth) (a provision which itself was significantly altered by the Acts and Instruments (Framework Reform) Act 2015 (Cth) owing in part to the difficulties in its application). While the distinction between “legislative” and “administrative” is more commonly a consequence of legislation, there are also occasions where the distinction matters at general law. One is that while it is settled that there is a duty to accord procedural fairness before exercising executive power which impacts upon the rights and interests of persons (see for example Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57), there is generally no right to be accorded procedural fairness before a legislative power is exercised. An example may be seen in the submission rejected in Hemmes Trading Pty Ltd v State of NSW [2009] NSWSC 1303 at [47]-[52].

154. In all these areas, the administrative/legislative distinction is one that is far from crisp and well-defined. Hence the reference by each of Dixon J and Gummow J in this context to Professor Freund’s remarks concerning the refuge of thought and expression in the face of undeveloped or unascertainable standards: Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 at 93; [1931] HCA 34; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 634. Professor Aronson has endorsed Lehane J’s observation that “[i]f there is anything that the authorities make plain ... it is that general tests will frequently provide no clear answer”: Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 at 591, cited in M Aronson et al, Judicial Review of Administrative Action and Government Liability (6^th ed, Lawbook Co, 2017), p 91.

155. None of the foregoing gives any encouragement for importing an implied constraint to the power conferred by s 7 to the taking of action and the making of orders which give directions which are “administrative” as opposed to “legislative”. Indeed, there is no reason in principle why a power may not be conferred which may be exercised in ways which may fairly be described as both legislative and administrative.

156. I return to the issue arising on an application for judicial review for simple ultra vires. Do the impugned orders fall within the true nature and purpose of the statute?

157. The power conferred by s 7 is very broadly stated, turning as it does upon what the Minister “considers” to be “necessary”. That is substantially broader than familiar phrases such as “necessary or convenient” or “for the purpose of” which are regularly seen in regulation making powers.

158. The power is expressed to turn upon what the Minister considers necessary to deal with the risk to public health and its possible consequences. Both the risk and the possible consequences are apt to be things in the future. Both risk and possible consequences are inherently uncertain and insusceptible to prediction. That tends to support a broad meaning to be given to the words “action” and “order” in s 7.

159. The premise of the power is that there is a risk to public health. At the heart of the concept of public health is a danger to members of the public. It is plainly within the scope and purpose of the statute that there might be danger to many members of the public. It is plain from s 7(3) that the power extends to the making of orders which direct the segregation and isolation of inhabitants in an area and the curtailment of access to an area, and the opening words of s 7(3) (“Without limiting subsection (2)”) entail that subsection (2) extends to but is not limited by what is explicitly envisaged by s 7(3).

160. All of those considerations are in the teeth of any implication that s 7 only extends to the taking of action and making orders which give directions which are “administrative” as opposed to “legislative”. I note for completeness that the reference in s 7(7) to “administrative review” is a red herring. It merely picks up the language of “administratively reviewable decision” required by the Administrative Decisions Review Act 1997 (NSW). This does not greatly bear upon the nature of the power.

161. For the reasons given by the President as supplemented by the above, the applicants’ ultra vires submission based upon the legislative/administrative distinction must be rejected.

The “principle of legality”

162. The essential mode of argument in support the first ground in each appeal was that (a) the impugned orders violated various enumerated “rights”, (b) this was contrary to the “principle of legality” and thus (c) the orders were not authorised.

163. This mode of argument operates at too high a level of generality to be persuasive. The difficulties are at least twofold.

164. First, in language to which three members of this Court adhered in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [39]:

“Identification of the scope of the principle should be undertaken with caution. The label, ‘principle of legality’ is apt to mislead. Both its ordinary meaning and its traditional usage engage a particular aspect of the rule of law, namely that government action (whether legislative or executive) which intrudes on the rights and liberties of individuals should be justified by legal authority. Its use as a principle of statutory construction is of recent origin. Further, depending on context, it is expressed in variable terms.” (footnote omitted).

165. To that it may be added that the label “principle of legality” tends to deprecate courts’ long-standing approach to statutory construction. As six members of the High Court said in Bropho v Western Australia (1990) 171 CLR 1 at 17-18; [1990] HCA 24, courts have for many, many years – long before the phrase “principle of legality” was coined – required unambiguous clarity in a wide range of contexts, extending far beyond cases which violate fundamental human rights. It was said in Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14; 246 LGERA 1 at [40] that the so-called principle of legality was “but one aspect of a more general rule of construction that clear words were required before legislation would be construed to achieve a particular result (most commonly, derogating from a ‘fundamental’ common law rule).”

166. Secondly, there are rights and there are rights (cf Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420). The “right to bodily integrity” is well-established. It is jealously guarded by the courts. This may be seen in the exercise of the parens patriae jurisdiction such as in Marion’s case (1992) 175 CLR 218; [1992] HCA 15 as well as in the vindication of claims for battery in cases where there is no lawful authority (Binsaris v Northern Territory [2020] HCA 22; 94 ALJR 644) or where a patient’s consent to a medical procedure is defective (Rogers v Whitaker (1992) 175 CLR 479 at 490; [1992] HCA 58). The right to privacy and the protection accorded to it is nascent, and may well be capable of future development, as was suggested in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [106]-[108]; it is not difficult to envisage orders upon which this right might be brought to bear. The “right to work” is much more elusive. The way in which people have worked has been regulated by statute for many centuries; as the President has pointed out, the focus of the modern common law is upon unreasonable restraints of trade.

167. The purpose of making those points is to explain that legal analysis is not much assisted by deploying the language of “rights” and the “principle of legality” in assessing whether s 7 authorises the orders. A more nuanced analysis is required, both of the rights upon which reliance is placed, and of the legal and practical operation of the orders including their exceptions and timeframe. This Court said as much in Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 at [39]:

“In order to apply the principle of legality, it is necessary to identify with a degree of precision that fundamental right, freedom or immunity which is said to be curtailed or abrogated, or that specific element of the general system of law which is similarly affected.”

Consent, coercion and free choice

168. Notions of “consent”, “free choice” and “coercion” were deployed in a number of quite distinct contexts during the hearing of these appeals. The Henry Applicants relied upon the law associated with voluntary admissions to police governing the admissibility of confessions (notably, R v Thomas (2006) 14 VR 475; [2006] VSCA 165) in support of the proposition that the three orders did, as a practical matter, “coerce” people into being vaccinated. It was put that the effect of the orders was to “deprive [people] of the ability to exercise free choice and effectively consent to a vaccination”. Mr King relied upon Latham CJ’s statements in British Medical Association v Commonwealth (1949) 79 CLR 201 at 253; [1949] HCA 44 as to the ways compulsion may be achieved in practice, short of legislation which is coercive on its face. Two points may be made in response.

169. First, consent as a legal concept is more complex than was reflected in the applicants’ submissions. A failure to obtain informed consent may be a breach of a doctor’s duty of care, but a lesser form of consent will answer an action for battery: Reeves v The Queen [2013] HCA 57; 88 ALJR 215 at [35]. The fully informed consent required of a fiduciary is separate again and cannot be reduced to a precise formula: Maguire v Makaronis (1997) 188 CLR 449 at 466; [1997] HCA 23. The notion of consent depends upon the context in which it is invoked.

170. Secondly, “free choice” is a label which disguises the fact that many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour. Consider by way of example:

1. a congestion charge designed to reduce the use of private motor vehicles;

2. a law which makes it an offence for a bicyclist not to wear a helmet or for a driver not to have a licence;

3. an additional tax (the “Medicare Levy Surcharge”) on high income earners who do not have private health insurance (see Medicare Levy Act 1986 (Cth), ss 8B, 8C and 8D);

4. a prohibition on enrolling children at child care facilities unless proof of vaccination for measles and whooping cough is first shown (Public Health Act 2010 (NSW), s 87); and

5. an inability to claim various federal tax benefits and child care subsidies for unvaccinated children (see A New Tax System (Family Assistance) Act 1999 (Cth), ss 6, 61B(1)(b) and 85BA(1)(a)(iii), read with the Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018 (Cth)).

   171. Does the fact that their decision is economically rational mean that high income earners who take out private health insurance or have their children vaccinated for measles are not making a “free choice”? More pertinently, does the economic incentive detract from the legal consequence that ordinarily accompany volition? After all, the drivers and bicyclists and parents and taxpayers in the examples given above all have a choice. On the other hand, many would agree that the quality of a motorist’s “choice” to drive into the congestion zone is different from the quality of the same person’s “choice” to maintain a licence.

   172. One point of those examples is to bring home the point that it may be unsafe to translate what has been held in one context to another. That cuts both ways.

   173. On the one hand, contrary to the Henry Applicants’ submissions, while a confession which is obtained following an inducement may be inadmissible, there are doubtless many inducements which fall well short of impugning the free choice or amounting to “coercion” thereby vitiating consent in the context of measures of the type indicated above. That is so notwithstanding that the validity of an order does not turn merely upon its form, but also its practical operation, no differently from constitutional limitations on power: see Ha v New South Wales (1997) 189 CLR 465 at 498; [1997] HCA 34. The policies underlying the law’s insistence that confessions to criminal charges be made voluntarily are quite distinct from those concerns which attend measures of the type indicated above which encourage certain types of behaviour.

   174. On the other hand, and to take the point which was developed in greatest detail in oral submissions, there is overlap between the practical compulsion on which the applicants relied with a view to impugning the orders, and the question whether a medical practitioner commits the tort of battery by vaccinating a person who gives every appearance of consenting while maintaining that he or she has no “real” choice and has been “coerced” into submitting himself or herself. As presently advised, it seems to me to be at least reasonably arguable that the medical practitioner could establish a defence to the tort while at the same time the person could maintain that the regime in its practical operation sufficiently impacted his or her right to bodily integrity so as to require unmistakably clear language. That is saying no more than that the issue of whether consent as a defence to a battery is made out is different from whether the practical effect of an order is to impact on rights and freedoms.

   175. Such subtleties were eschewed in the present case, although they might loom large if differently framed orders were made under s 7, as to which these reasons express no view. For the reasons given by the President, the orders whether analysed by reference to their form or their practical effect are authorised by s 7. That is a consequence of the facts explained in more detail by the President, notably that the orders were primarily directed to restricting movement and in large measure only incidentally impacting on other rights, were limited in duration, were subject to exceptions, and explicitly contemplated that some persons would not be vaccinated.

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Decision last updated: 08 December 2021