Kassam v Hazzard; Henry v Hazzard

Case •

[2021] NSWSC 1320

•

15 October 2021

Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
Hearing dates: 30 September 2021, 1 October 2021, 5 and 6 October 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction:Common Law
Before: Beech-Jones CJ at CL
Decision:

Proceedings 2021/249601

(1)   The proceedings be dismissed;

(2)   On or before 22 October 2021, the parties confer in relation to the appropriate orders as to costs;

(3)   In the event that agreement is reached on the appropriate orders as to costs, the parties file the proposed orders on or before 5.00pm on 25 October 2021;

(4)   In the event that no agreement is reached on the appropriate orders as to costs, each party file and serve:

(i)   their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5.00pm on 29 October 2021;

(ii)   any submissions in reply that do not exceed four pages on or before 5.00pm on 5 November 2021.

Proceedings 2021/252587

(1)   The proceedings be dismissed;

(2)   On or before 22 October 2021, the parties confer in relation to the appropriate orders as to costs;

(3)   In the event that agreement is reached on the appropriate orders as to costs, the parties file the proposed orders on or before 5.00pm on 25 October 2021;

(4)   In the event that no agreement is reached on the appropriate orders as to costs, each party file and serve:

(i)   their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5pm on 29 October 2021;

(ii)   any submissions in reply that do not exceed four pages on or before 5pm on 5 November 2021.

Catchwords:

PUBLIC HEALTH ACT – COVID-19 – public health orders made under s 7(2) of the Public Health Act – orders designate certain areas of concern and restrict movement out of the home and out of the area –authorised workers able to leave area of concern but only if vaccinated – orders allow residents of area of concern to enter and remain on construction sites but only if vaccinated – orders allow persons to enter and remain upon premises that operate aged care facilities but only if vaccinated – orders preclude persons from working at school and early education facilities unless vaccinated – scope of power to make orders giving such broad directions – whether power limited by reference to other powers conferred by the Public Health Act as a whole – whether principle of legality engaged by impugned orders – effect on personal freedoms – orders affect freedom of movement and capacity to work – orders do not violate right to body integrity – rule restricting freedom of movement for unvaccinated persons does not vitiate consent to vaccination – requirement for persons who leave areas of concern, enter building sites or work at schools or aged care centre to produce vaccination requirement on request – requirement does not infringe privilege against self-incrimination – privilege protects against production of incriminating not exonerating material.

ADMINISTRATIVE LAW – proof of basis upon which Minister for Health acted – Minister did not give evidence – part of documents relied on subject of public interest immunity claim as documents produced to sub-committee of cabinet - whether Jones v Dunkel inference or Blatch v Archer reasoning available against Minister and State – position of Ministers with competing responsibilities – no adverse inference available – Blatch v Archer reasoning not available

ADMINISTRATIVE LAW – grounds of challenge – relevant considerations – how derived and how framed – procedural fairness – no obligation to afford procedural fairness in making public health orders affecting a vast number of persons – not proven that making of orders was not a genuine exercise of the Minister’s power – unreasonableness – adducing of evidence to undermine factual basis for making of orders – decision to make orders informed by policy considerations – whether differential treatment of unvaccinated persons consistent with objects of Public Health Act – all grounds of review rejected.

CONSITUTIONAL LAW – whether orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution – orders do not create any form of civil conscription in the provision of medical and dental services – s 51(xxiiiA) does not limit legislative power of the States – no joint scheme with Commonwealth to effect civil conscription – neither orders or Public Health Act dependent for its operation on any joint scheme with Commonwealth – argument untenable – no inconsistency between orders, Public Health Act and Australian Immunisation Register Act 2015

Legislation Cited:

Australian Immunisation Register Act 2015 (Cth)

Constitution

Constitution Alteration (Social Services) Act 1946

Disability Discrimination Act 1992 (Cth)

Education Act 1990 (NSW)

Education Standards Authority Act 2013

Evidence Act 1995 (Cth)

Fair Work Act 2009

Health Insurance Act 1973 (Cth)

Health Records and Information Privacy Act 2002 (NSW)

Interpretation Act 1987

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Personal Information Protection Act 1998 (NSW)

Privacy Act 1988 (Cth)

Public Health Act 1991

Public Health Act 2010 (NSW)

State Emergency and Rescue Management Act 1989 (NSW)

Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)

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

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

Public Health (COVID-19 General) Order 2021

Cases Cited:

ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14

Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271; [1987] HCA 6

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

ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Associated Province Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Athavle v State of New South Wales [2021] FCA 1075

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53

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

Baldwin v State of New South Wales [2020] NSWCA 112

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Botany Bay City Council and Others v Minister of State for Transport and Regional Development (1996) 66 FCR 537

Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; [1981] HCA 69

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

Buckley v Tutty (1971) 125 CLR 353; [1971] HCA 71

Castle v Director General, State Emergency Service [2008] NSWCA 231

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

Commonwealth of Australia v Northern Land Council and Another (1993) 176 CLR 604; [1993] HCA 24

Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457; [1910] HCA 28

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

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

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74

Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174

Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242

G v H (1994) 181 CLR 387; [1994] HCA 48

General Practitioner’s Case (1980) 145 CLR 532; [1980] HCA 30

Gorman v McKnight [2020] NSWCA 20

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7

Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235

Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492

Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; [2009] NSWSC 761

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCB 6015

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; [1986] FCA 290

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

McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 474; [2004] FCA 1701

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

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20

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

Norberg v Wynrib [1992] 2 SCR 226

P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382; [1949] HCA 66

Pye v Renshaw (1951) 84 CLR 58; [1951[ HCA 8

R v Melin (Ozan) [2019] EWCA 557

R v Richardson (Diane) [1999] QB 444

Reid v Sinderberry (1944) 68 CLR 504; [1944] HCA 15

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

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

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

Secretary, Department of Health & Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15

Sidaway v Bethlehem Royal Hospital Governors [1984] QB 493

Spencer v Commonwealth (2018) 262 FCR 344; [2018] FCAFC 17

State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60

Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1996) 44 NSWLR 598; [1996] HCA 196

Tunnock v Victoria (1951) 84 CLR 42; [1951] HCA 55

Wong v The Commonwealth (2009) 236 CLR 573

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Dunsmiur v New Brunswick [2008] 1 SCR 190

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Texts Cited:

Convention on the Rights of Persons with Disabilities

International Covenant on Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

Universal Declaration of Bioethics and Human Rights

Augusto Zimmerman and Gabriel Moens, “Emergency Measures and the Rule of Law”,(2021) 64(10) Quadrant Magazine

Hansard, Legislative Assembly, 24 November 2010, p 28128

Category:Principal judgment
Parties:

Proceedings 2021/249601
Al-Munir Kassam (First Plaintiff)
George Nohra (Second Plaintiff)
Alexandrea Goundoulas (Third Plaintiff)
Jelena Zmiric (Fourth Plaintiff)
Bradley Hazzard (First Defendant)
Kerry Chant (Second Defendant)
State of NSW (Third Defendant)
Commonwealth of Australia (Fourth Defendant)

Proceedings 2021/252587
Natasha Henry (First Plaintiff)
Selina Crowe (Second Plaintiff)
Julie Ramos (Third Plaintiff)
Hohepa Waapu (Fourth Plaintiff)
Kamran Khan (Fifth Plaintiff)
Sandi Greiner (Sixth Plaintiff)
Bradley Hazzard (Defendant)
Representation:

Counsel:
Mr P King; Ms E Rusiti (Kassam Plaintiffs)
Mr M Clarke QC; Dr J Harkess; Ms V Plain (Henry Plaintiffs)
Mr J Kirk SC; Mr T Prince; Mr D Reynolds (State Defendants)
Ms J Davidson (Commonwealth)

Solicitors:
Ashley, Francina, Leonard & Associates (Kassam Plaintiffs)
G&B Lawyers (Henry Plaintiffs)
Crown Solicitor’s Office (State Defendants)
Australian Government Solicitor (Commonwealth)
File Number(s): 2021/249601; 2021/252587

TABLE OF CONTENTS

The Public Health Act – ss 3, 7, 10 and 10A

The PHA – Other Provisions

Public Health (COVID – 19 Additional Restrictions for Delta Outbreak) Order (No 2)

Right to Bodily Integrity

Privilege Against Self-incrimination

The Aged Care Order

The Education Order

The Kassam Plaintiffs

The Henry Plaintiffs

Findings about the Plaintiffs

The Making of the Public Health Orders

Kassam Plaintiffs’ Notice to Produce

The Henry Plaintiffs’ Notice to Produce and Public Interest Immunity

The Crisis Policy Committee Meeting on 19 August 2021

The Making of Order (No 2)

The Making of the Aged Care Order

The Making of the Education Order

Other Evidence

Findings

The Expert Evidence

The Expert Evidence adduced by the State Parties

The Kassam Plaintiffs’ Evidence Concerning Alternative Treatments and Professor Macartney’s Response

The Kassam Plaintiffs Evidence Concerning Vaccine Effectiveness and Professor Macartney’s Response

Professor Bhattacharya’s Report

Dr Park’s Evidence Adduced by the Henry Plaintiffs and Professor Macartney’s Response

Findings

Henry Plaintiffs – Ground 1: Ultra Vires – Principle of Legality

Henry Plaintiffs – Grounds 2 and 4: Improper Purpose and Wrong Question

Henry Plaintiffs – Ground 5: Natural Justice

Henry Plaintiffs – Ground 3: Irrelevant Considerations

Henry Plaintiffs – Ground 6: Unreasonableness

Kassam Plaintiffs – Ground A: No Active Consideration

Kassam Plaintiffs – Ground B: Scope of Power

Kassam Plaintiffs – Ground C: Unreasonableness

Kassam Plaintiffs – Ground D: Inconsistency with LEPRA

Kassam Plaintiffs – Ground E: Constitutional Ground - Civil Conscription

Civil Conscription

No Application to the States

Alleged Joint Scheme

Conclusion on s 51(xxiiiA) Contention

Kassam Plaintiffs – Ground F: s 109 – Australian Immunisation Register Act 2015

Conclusion

Judgment

  1. The highly contagious variant of COVID-19 known as the Delta variant was first detected in the community in New South Wales in June 2021. Since that time, it has spread rapidly. In response to the threat to public health it poses, the Minister for Health and Medical Research, the Honourable Bradley Hazzard, (the “Minister”), made various orders under s 7(2) of the Public Health Act 2010 (the “PHA”) which on any view significantly affect the freedoms of the citizens of this State and impose greater burdens on those who are not vaccinated. The main focus of the two proceedings the subject of this judgment is those aspects of those orders which prevented so called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines.

  2. One of the proceedings is brought by Mr Al-Munir Kassam and three other persons (the “Kassam plaintiffs”). Their circumstances are described further below but it suffices to note that they all state that they have made an informed choice to refuse to be vaccinated. They sue the Minister, the Chief Medical Officer, Dr Kerry Chant, the State of NSW (the “State parties”) and the Commonwealth of Australia. They contend that the Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (“Order (No 2)”), and s 7 of the PHA, are invalid.

  3. The Kassam plaintiffs rely on various bases to establish the invalidity of Order (No 2) namely that: the Minister did not undertake any real exercise of power in making the order (Ground A); that Order (No 2) is either outside of the power conferred by s 7 or represents an unreasonable exercise of the power because of its effect on fundamental rights and freedoms (Ground B); and the manner in which Order (No 2) was made was unreasonable (Ground C). The Kassam plaintiffs also contend that Order (No 2) confers powers on police officers that are inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) (Ground D).

  4. In addition, the Kassam plaintiffs also argued that Order (No 2) and s 7 of the PHA are rendered invalid by s 51(xxiiiA) of the Constitution (Ground E). They further contended that they are otherwise inconsistent with the Australian Immunisation Register Act 2015 (Constitution, s 109) (Ground F).

  5. The other proceedings are brought by Ms Natasha Henry and five other persons (the “Henry plaintiffs”). Like the Kassam plaintiffs, they also refuse to be vaccinated. They sue the Minister only. They seek declarations that Order (No 2) is invalid along with 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”; and collectively the “impugned orders”). They contend that because of their effect on rights and freedoms, the impugned orders are beyond the scope of s 7(2) of the PHA (Ground 1); that they were made for an improper purpose (Ground 2), that in making them the Minister failed to have regard to various relevant considerations (Ground 3); asked the wrong question or took into account irrelevant considerations (Ground 4); was obliged to but failed to afford them natural justice (Ground 5) and acted unreasonably (Ground 6).

  6. On the evening of 3 October 2021, when hearing of the proceedings was still to be completed, the Minister made Public Health (COVID-19 General) Order 2021 which repealed Order (No 2) with effect from the beginning of 11 October 2021. Despite this, it was not contended by any party that the challenges to Order (No 2) were rendered futile. Both sets of plaintiffs confirmed that they sought declaratory relief concerning its invalidity (or least parts of it). Further, the Aged Care Order and the Education Order continue to have effect.

  7. Leaving aside the constitutional challenge raised by the Kassam plaintiffs, in considering the grounds of challenge raised in both proceedings it is important to note that it is 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. As explained below, one of the main grounds of challenge in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who chose not be vaccinated especially their “freedom” or “right” to their own bodily integrity. The plaintiffs contend that, as a matter of construction, the broad words of s 7(2) of the PHA do not authorise orders and directions that interfere with those rights or that they are otherwise unreasonable because of their effect on those rights. They seek to deploy the “principle of legality” which is a rule of statutory construction to the effect that, in the absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or abrogate fundamental rights (Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 at 437; “Coco”). However, this country does not have a bill of rights, and thus, important as the principle of legality is, it is only a rule of construction. As such “the assistance to be gained from [the] presumption will vary with the context in which it is applied” (Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309; [2004] HCA 40 at [19] per Gleeson CJ; Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 at [39]). At least so far as the abrogation of particular rights are concerned, the presumption is of little assistance in construing a statutory scheme when abrogation is the “very thing which the legislation sets out to achieve” (Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 at [43]).

  1. Although it was contended that the impugned orders interfere with a person’s right to bodily integrity and a host of other freedoms, when all is said and done the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises. Hence, the principle of legality does not justify the reading down of s 7(2) of the PHA to preclude limitations on that freedom.

  2. Further, any consideration of the unreasonableness of an order made under s 7(2) is to be undertaken by reference to the objects of the PHA which are exclusively directed to public safety. Orders and directions under the PHA that interfere with freedom of movement but differentiate between individuals on arbitrary grounds unrelated to the relevant risk to public health, such as on the basis of race, gender or the mere holding of a political opinion, would be at severe risk of being held to be invalid as unreasonable (see Li at [70] per Hayne, Kiefel and Bell JJ). However, the differential treatment of people according to their vaccination status is not arbitrary. Instead, it applies a discrimen, namely vaccination status, that on the evidence and the approach taken by the Minister is very much consistent with the objects of the PHA. Accordingly, for this reason and the reasons set out below this aspect of both challenges fails.

  3. As for the balance of the grounds of challenge, in summary and for the reasons set out below:

  1. It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power by the Minister, 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. The Minister was not obliged to afford the plaintiffs or anyone else procedural fairness in making the impugned orders;

  2. 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;

  3. No aspect of Order (No 2) was shown to be inconsistent with LEPRA;

  4. Order (No 2) does 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; and

  5. There is no inconsistency between Order (No 2) and the Australian Immunisation Register Act 2015 (Cth);

    1. It follows that all grounds of challenge fail, and both proceedings must be dismissed. The balance of these reasons explain these conclusions.

The Public Health Act – ss 3, 7, 10 and 10A

  1. Subsection 3(1) of the PHA enunciates the objects of the Act. They include “promot[ing], protect[ing] and improv[ing] public health”, “control[ling] the risks to public health” and “prevent[ing] the spread of infectious diseases”. As noted by Senior Counsel for the State parties, Mr Kirk SC, those objects involve active measures. Subsection 3(2) provides that the “protection of the health and safety of the public is to be the paramount consideration in the exercise of functions” under the Act. The making of orders under s 7 by the Minister is one of those functions.

  2. Section 7 is found within Part 2 of the PHA which is entitled “General Public Health”. It provides:

“(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.”

  1. Section 10 of the PHA provides that a person who is subject to a “direction” under ss 7, 8 or 9 and who has notice of the direction “must not, without reasonable excuse, fail to comply with the direction”. Non-compliance with s 10 is an offence, with the maximum penalty for an individual being 100 penalty units or imprisonment for 6 months or both and, in the case of a continuing offence, a further 50 penalty units for each day the offence continues. For a corporation, the maximum penalty is 500 penalty units and, in the case of a continuing offence, a further 250 penalty units for each day the offence continues.

  2. Section 10A provides that a direction made by the Minister under ss 7, 8 or 9 “may adopt, and require compliance with, a publication as in force for the time being”. The State parties submitted that the serious penalties imposed by s 10 and the power to adopt a publication conferred by s 10A provides some support for the contention that the power conferred by s 7 includes a power to make rules of general application.

  3. Seven matters should be noted about the power conferred by s 7 at this point.

  4. First, for the power conferred by the section to be enlivened, the Minister must “consider” on “reasonable grounds” that a situation has arisen that is or is likely to be, a risk to public health. As explained below, each of the impugned orders contains a statement of the grounds for concluding that there is a risk to public health. I infer from the Minister’s making of the impugned orders with that statement that those grounds reflected his consideration. There was no contention by either set of plaintiffs that s 7(1) was not satisfied.

  5. Second, one indication of the potential width of the power conferred by s 7(2) is that it is activated by a determination that there is a “risk” to public health and the power is exercised to “deal with the risk and its possible consequences”. By definition “risks” and “possible consequences” are contingencies that may never eventuate and may even have a very low chance of materialising. Given the object of “prevent[ing]” the spread of any disease, the scope of any power which is conferred to address “risk” and its “possible consequences” would appear to be very wide.

  6. Third, the power conferred on the Minister by s 7(2) is to take “action” and “by order give direction”. The concept of “action” appears to refer to some specific step. Given that s 10 does not engage with “action” it seems unlikely that “action” includes any form of prohibition. An order that gives direction(s) appears to have a potentially wide scope. In that regard, both parties referred to s 7(3) for different purposes. Subsection 7(3) clearly contemplates the imposition of severe restrictions on movement in any part of the State declared to be a public health risk area and for the imposition of conditions on movement.

  7. Junior Counsel for the Henry Plaintiffs, Dr Harkess, sought to distinguish between ss 7(2) and 7(3). He submitted that s 7(3) was directed to dealing with public health emergencies in particular areas and contended, or conceded, that it enabled those areas to be effectively partitioned by an order to avoid a contagion spreading. This contention was embraced by the State parties. Dr Harkess then sought to contrast ss 7(3) with s 7(2). This contention was not embraced by the State parties. It overlooks that s 7(3) is expressed as not limiting s 7(2).

  8. Counsel for the Kassam plaintiffs, Mr King with whom Ms Rusiti of counsel appeared, submitted that s 7(3) is indicative of the narrowness of s 7(2) because the “power in sub 2 is independent of the special powers in subs 3”. [1] I disagree. His submission does not truly address the words “without limiting” and more importantly does not address that subsection 7(3) does not confer any power to make an order. Instead, subsection 7(3) is only declaratory of what an order under s 7(2) can address. There is only one source of power in s 7 to make an order and that is conferred by s 7(2).

    1. Kassam plaintiffs: Supplementary submissions of plaintiffs in closing at [2(i)] (“Kassam sup subs”).

  9. Given the objects and subject matter of the PHA, the terms of ss 7(2) and 7(3) and the criminal sanctions imposed for breaching a direction under s 10, it is evident that the PHA specifically contemplates the making of orders that give direction to a wide group of persons, including persons residing in particular areas, that severely curtail freedom of movement. The segregation much less the isolation of the inhabitants of an area of the State is clearly a draconian step, yet it is clearly contemplated as what may be considered necessary (by the Minister) to fulfill the objects of the PHA. Otherwise, as the authorities referred to below explain, whether and, if so, the extent to which the broad words of s 7(2) affect fundamental rights and freedoms requires a focus on the particular right or freedom in question (and the degree of affectation).

  10. In his written submissions, Mr Kirk SC, with whom Mr Prince and Mr Reynolds appeared, contended that, as a matter of substance, Order (No 2) either effectively declared areas of the State to be high risk areas or the whole State to be a high risk area. [2] He pointed to Ground (c) of Order (No 2) and the delineation in that order between the general area, stay at home areas and “areas of concern”. The terms of Order (No 2) are set out below but it does not include any express “declaration” to that effect. Given that the words “without limiting subsection 7(2)” indicate that s 7(3) is only be treated as an instance or an example of the exercise of the power conferred by s 7(2) it is unnecessary to consider this further.

    2. Submissions of the State Defendants at [83ff] (“State subs”).

  11. Fourth, one matter the Minister must conclude before exercising the power conferred by s 7(2) is that the relevant action or order is “necessary”. The Henry plaintiffs submitted that this effectively means it had to be ‘[i]ndispensable, vital, essential; requisite’ [3] . I reject that contention. In the context of the exercise of a power that deals with a “risk” and “its possible consequences”, “necessary” does not mean “absolutely or essentially necessary” but instead means “appropriate and adapted” (Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457 at 469 per Higgins J; [1910] HCA 28; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39] per Gleeson CJ).

    3. Henry plaintiff’s submissions at [82] (“Henry subs”).

  12. Fifth, an exercise of power under s 7(2) is premised on the Minister “consider[ing]” it “necessary to deal with the risk and its possible consequences”. The reference to “considers” reflects a subjective state of mind on the part of the relevant Minister. That said, where the exercise of a statutory power is conditioned on the existence of a subjective state of mind of a public official the provision conferring the power is usually construed as though that state of mind was formed reasonably (Li at [64] per Hayne, Kiefel and Bell JJ; at [88] to [92] per Gageler J; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ).

  13. In that regard, one issue that was the subject of significant debate between the parties was whether the exercise of the power to make an order expressed in wide terms should be classified as a quasi-legislative act, as contended for by the State parties, or as an administrative act, as contended for by the plaintiffs. The State parties contended that orders made under s 7(2) could, depending on their content, be either an administrative act or have a legislative quality (citing McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 at [43]). They pointed to the fact that s 7 contemplates that the making of rules that may be expressed in wide terms and which attract a criminal sanction under s 10 such that in that case they would have a legislative character (RG Capital Radio Ltd v Australian Broadcasting Authority (2001) FCR 185; [2001] FCA 855 at [43]; “RG Capital”). They also pointed to the necessity to publish them in the gazette as supporting that characterisation. [4] Generally laws containing rules, and not administrative decisions, are published to the world at large.

    4. State subs at [24] to [27].

  14. Dr Harkess, and counsel for the Kassam plaintiffs, Mr King, contended that the making of an order was an administrative act. [5] Dr Harkess contended that a power such as s 7 could not have a dual characterisation such that it might authorise the making of quasi-legislation in the form of widely drafted directions given by orders and administrative decisions in the form of specific directions addressed to particular people, entities or narrow locations. Most significantly, he pointed to s 7(7)(b) which on its face appears to allow merits review by the Civil and Administrative Tribunal (“NCAT”) of directions given by an order made under s 7(2) (RG Capital at [72ff]). Mr Kirk SC submitted that did not extend to review of the directions given by the orders in this case, a construction that appears to be contestable.

    5. See Submissions of (Henry) Plaintiffs in reply to defendants’ written submissions at [2] (“Henry reply subs”).

  15. In the end result it is not necessary to determine this debate, especially as to do so may require a conclusive determination of the scope of merits review available in NCAT. The debate’s significance was said to be that, if the impugned orders were found to have a legislative character, then the threshold for demonstrating that they were unreasonable is especially high (Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 at [48] per French CJ), that no obligation to afford natural justice would arise and it could not be said that the impugned orders were invalid by reason of a failure by the Minister to take into account relevant considerations when he made them. As explained below, some of those contentions are debatable. In any event, I will address all three grounds on the basis favourable to the plaintiffs namely that the impugned orders are administrative decisions. I will address the unreasonableness ground on the basis that the plaintiffs must demonstrate that no Minister could have reasonably formed the conclusion that the impugned orders were necessary, that is appropriate and adapted, to “deal with” the relevant “risk and its possible consequences” (Li at [28], [76] and [105] to [106]; see [233] below).

  16. Sixth, in considering the extent to which s 7(2) may authorise any interference with fundamental rights and freedoms, Mr Kirk SC pointed to the temporary nature of any order in that it can only operate for at most 90 days (s 7(5)) and noted that the power is only exercisable by a Minister who is accountable to the Parliament and to the public. He also relied on the second reading speech in the Legislative Assembly for the PHA when the relevant Minister stated (Hansard, Legislative Assembly, 24 November 2010, p 28128): [6]

“The review of the Public Health Act recognised that a number of the current administrative requirements associated with making emergency orders do not deliver greater clarity or accountability to any subsequent emergency action, whilst having the potential to slow the response and therefore the effectiveness of that response. Amendment of the relevant provisions therefore is warranted to improve flexibility while ensuring that the appropriate balance is struck with protecting ordinary liberties and freedoms, including freedom of movement and assembly. For example, the requirement that an order be published in the Government Gazette before it takes effect may result in unnecessary delays in responding to public health emergencies, such as the outbreak of a pandemic. In addition, the limitation of orders to 28 days may be inappropriately short, particularly when dealing with a serious infectious disease outbreak.”

6. Exhibit Kassam 2, Tab 6.

  1. Mr Kirk SC submitted that this passage contemplates that orders made under s 7 will interfere with “ordinary liberties and freedoms” but, even so, the amendments were offering improved flexibility. Those amendments were the extension of the operative period of an order from 28 days to 90 days and the removal of the requirement that an order could only be effective upon publication in the Gazette.

  2. The above passage also refers to the “review of the Public Health Act”. This was a departmental review of the Public Health Act 1991 which, in relation to orders made under the predecessor to s 7, referred to the “potentially intrusive nature of orders on the rights of individuals”. [7] Mr Kirk SC contended that the use of this material was supported by s 34(1) and s 34(2)(b) of the Interpretation Act 1987 presumably on the basis that it confirms that the meaning of s 7(2) is “the ordinary meaning conveyed by the text of the provision” (s 34(1)(a)). This may be the case for the second reading speech (s 34(2)(f)) but I consider it highly doubtful that an internal Department report not shown to have been laid before a House of Parliament can be relied upon (s 34(2)(c); cf Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [31] to [34]). Given the view I take of the width of the power conferred by s 7(2), nothing turns on this.

    7. Exhibit State 1, Tab 8 at p 69.

The PHA – Other Provisions

  1. The plaintiffs relied on four other parts of the PHA as suggesting that s 7 does not support the impugned orders.

  2. First, s 8 confers power on the Minister to take action and by orders give directions in circumstances where a state of emergency exists under the State Emergency and Rescue Management Act 1989. It provides:

(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.

Note: Consequently, it is an offence under that Act to obstruct or hinder the Minister administering that Act in the exercise of any such function (section 40), and no proceedings may be brought against any person (including the Crown) as a consequence of any damage, loss, death or injury arising from the exercise of any such function (section 41).”

  1. Thus s 8 confers a similar power to that conferred by s 7, however it is the only source of power to take action or by order give directions in circumstances where a state of emergency exists. The effect of exercising the power is set out in subsection 8(6) and is explained by the note to the section. In this case, it was accepted that no state of emergency has been declared to exist under s 33 of the State Emergency and Rescue Management Act 1989. It was not contended by the State parties that any part of the impugned orders was made under s 8.

  2. One matter raised by the Henry plaintiffs is that, unlike s 7, s 8(3) confers an express power to require all persons in a specified group or residing in a specified area to submit themselves for a medical examination which might otherwise constitute a battery. The effect of the submission was that the inclusion of that specific power is an indication that no such power is conferred by s 7 and thus s 7(2) did not authorise so much of the impugned orders as concerns vaccinations which were also said to legalise what would otherwise be a battery. Given the subject matter, objects and text of the PHA I consider it unlikely that s 7 could be read down by this means. However, it is not necessary to determine this because, for the reasons I will outline, none of the impugned orders direct any person to submit to a medical examination or a medical procedure. I am otherwise not addressing the larger question of whether s 7(2) could authorise an order that gives directions requiring persons to submit to vaccination by allowing an injection into their arm.

  3. Second, Part 4 of the Act deals with so called “Scheduled medical conditions”. Those conditions are listed in Schedule 1 to the PHA. COVID-19 is listed as a category 2, 3 and 4 condition. Section 62 confers on an authorised medical practitioner the power to make a “public health order” “in respect of a person” that the Secretary is satisfied on reasonable grounds “has a category 4 or 5 condition and because of the way the person behaves may … be a risk to public health”. It can also be exercised in relation to a person who has been exposed to a “contact order condition”, is at risk of developing the contact order condition and because of the way they behave may be a risk to public health (s 62(1)). A “contact order condition” is a medical condition listed in schedule 1A to the PHA and includes COVID-19 (s 51). A public health order under s 62 may require a person to refrain from specific conduct or undergo “specified treatment” (s 62(3)) as well as authorise their detention (s 62(4)).

  4. Dr Harkess relied on s 62 as indicating that Parliament had made specific provision for a power that mandates a form of medical treatment, which might include vaccination, and contrasted its specific words with the generality of s 7. While I do not accept that the impugned orders mandate any vaccination at least in the manner contended for by Dr Harkess, it does not matter. As noted by Mr Kirk SC, in substance this submission seeks to invoke the principle of construction stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9 (“Anthony Hordern”), namely, that “[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power”.

  5. However, the principle in Anthony Hordern is not engaged where the two powers do not deal with the same subject matter (Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59], [61] and [70] per Gummow and Hayne JJ). Section 62 is a power directed to treating and preventing the spread of a particular disease that a particular person either has or to which they have been directly exposed. Section 7 is directed to giving directions by order that deal with public health risks generally, ie addressing the overall risk and its possible consequences. Directions given by an order under s 7 may address the risk posed to people before they acquire a disease or are directly exposed to it.

  6. Third, Dr Harkess pointed to Division 4 of Part 5 of the PHA as indicative of the PHA making specific provision for restrictions on persons based on their vaccination status. This division makes specific provision for the responsibilities of principals of schools and childcare centres with respect to “vaccine preventable diseases” which includes measles, mumps and rubella (schedule 3). In effect, they implement a regime that requires the vaccination of children as a condition of enrolment at schools and childcare centres. He also referred to the enforcement provisions of Part 8, especially s 108(1) which enables an authorised officer to enter and inspect property, as well as inspect documents on the premises and take copies etc. Dr Harkess again contrasted these specific grants of power with the impugned orders which it is said conferred “powers” to compel production of evidence concerning a person’s vaccination status. So far as these contentions are concerned, I repeat [39]; the subject matter of these powers is entirely different to s 7(2).

  7. Fourth, Dr Harkess referred to the regulation making power conferred on the Governor by s 134 of the PHA as indicative of the supposed inability of s 7(2) to make the impugned orders. It is unnecessary to describe that power in any detail other than to note that the power to make regulations is only exercisable by the Governor with the advice of the Executive Council (Interpretation Act 1987, s 14). The Second Reading speech noted above emphasised the significance of responding flexibly and urgently to unfolding pandemics by making orders under s 7(2) that do not require publication in the gazette to have force. That aspect of the PHA would be undermined by reading down s 7 by reference to the regulation making power in s 134 when the former can be exercised by the Minister but the latter requires the Executive Council to be convened.

  8. Thus, the other matters pointed to by the plaintiffs in relation to the PHA do not warrant a reading down of s 7(2).

Public Health (COVID – 19 Additional Restrictions for Delta Outbreak) Order (No 2)

  1. Although I suspect that Order (No 2) was the mostly widely read legal instrument in the history of NSW, it passed into history at midnight on 10 October 2021. Until then it governed the daily lives of millions of people.

  2. Order (No 2) has had a number of iterations. It is the final iteration that is of most significance, although it is necessary to briefly trace its evolution (as well as how it was made). The first iteration of Order (No 2) was made on 20 August 2021. Clause 1.8 provided:

“1.8   Grounds for concluding that there is a risk to public health

The basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows—

(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 2 (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.”

  1. Parts 2 to 6 of the Order (No 2) then set out the “directions” made by the Minister under the Order. Each of Parts 2, 3 and 4 of Order (No 2) had their own regime of directions depending on whether a particular location was in the “general area” (Part 2), a “stay at home area” (Part 3) or an “area of concern” (Part 4). The “areas of concern” were eleven local government areas and some parts of the city of Penrith named in Schedule 1. The stay at home areas were those parts of greater Sydney and regional NSW that were not areas of concern (Schedule 1).

  2. Part 4 contained numerous restrictions on persons living in “areas of concern”. Clause 4.2(1) prohibited a person who resided in an area of concern from “be[ing] away from” their place of residence without a reasonable excuse. Clause 4.2(2) provided that a reasonable excuse “includes an activity specified for an area of concern in Schedule 2”. Presumably an inclusive definition of reasonable excuse was adopted so as not to purport to limit the operation of s 10.

  3. The various reasonable excuses in Schedule 2 included obtaining certain goods or services (cl 18) or engaging in exercise or outdoor education (cl 19). They also include leaving a place of residence for work if it was not reasonably practicable for a person to work at their place of residence (cl 2).

  4. The permission to leave a person’s place of residence in some circumstances was subject to clause 4.3. Subclause 4.3(1) precluded all persons who lived in an area of concern from leaving their relevant area of concern unless they were an “authorised worker”. An “authorised worker” was a person who was the subject of an exemption granted by the Minister under Part 7 which included education and construction workers. None of the conditions attaching to the circumstances in which authorised workers could leave an area of concern at the time Order (No 2) first commenced related to vaccination. However, clause 5.8 in the original version of Order (No 2) precluded persons whose place of residence was in “area of concern” from entering or remaining on a construction site in Greater Sydney unless they satisfied a vaccination requirement. This provision was similar to the final version of clause 5.8 set out below, although its original form made provision for a “medical contraindication” certificate in the sub-clause which was moved to the Dictionary in the next iteration.

  5. The next iteration of Order (No 2) was amended with effect from the beginning of 23 August 2021. It now included a form of vaccination condition which had to be complied with before an “authorised worker” could leave an “area of concern” (clause 4.3(3)) except if the person was tested as part of an approved “rapid antigen testing program” (clause 4.3(3B)). Further iterations of Order (No 2) were made on 25 and 27 August 2021. Another iteration made on 28 August 2021 deleted the clause concerning rapid antigen testing for authorised workers in former clause 4.3(3B). Amendments continued to be made throughout September 2021 and the most recent iteration of Order (No 2) relevant to these proceedings was issued on 25 September 2021.

  6. The end result is that from late August 2021 to midnight on 10 October 2021 all persons who resided within an LGA area of concern could not leave their relevant area except “authorised workers” in accordance with clause 4.3 which 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.

(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.

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.

Note 1— A list of authorised workers is published on the NSW government website Note 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. (emphasis added)

  1. In addition, during that time clause 5.8 of Order (No 2) 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.”

  1. The Dictionary to the Order defines a “medical contraindication certificate” as meaning:

“….. a certificate issued by a medical practitioner—

(a)   in a form approved by the Chief Health Officer, and

(b)   certifying that because of a specified medical contraindication, the person to whom the certificate has been issued cannot have a COVID-19 vaccine.”

  1. Although Order (No 2) contains the various “lockdown” provisions and the relief sought in both cases appeared to be directed to the entirety of Order (No 2), their sole focus was on these provisions and their so called “vaccine mandate”. (Clause 4.23 of Order (No 2) contained a similar provision to clause 5.8 for persons who lived in areas of concern and who worked in an early education and care facility).

  2. The parties were in dispute about what rights of citizens were being interfered with by provisions such as clauses 4.3 and 5.8 of Order (No 2). It is appropriate to deal with two of their principal contentions at this point as they are fundamental to both challenges.

Right to Bodily Integrity

  1. The Kassam plaintiffs and the Henry plaintiffs contended that clauses 4.3(3) and 5.8(1) of Order (No 2) violated a person’s right to bodily integrity. [8] In Secretary, Department of Health & Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 (“Marion’s Case”) at [10], Mason CJ, Dawson, Toohey and Gaudron JJ identified a “a right in each person to bodily integrity [t]hat is to say, the right in an individual to choose what occurs with respect to his or her own person”. Marion’s Case concerned the power of the Family Court to authorise the sterilisation by hysterectomy of an intellectually disabled young woman who was incapable of giving consent. The issue of court authorisation was addressed in the context that a medical procedure undertaken without consent is a violation of this right and is prima facie an assault (Marion’s Case at [12]). The Henry plaintiff’s also invoked various provisions of the International Covenant on Civil and Political Rights (“ICPR”) to similar effect. They went as far to equate these provisions with Article 7 of the ICPR which proscribes “torture, cruel, inhuman or degrading treatment or punishment” as well as being subjected to “medical or scientific experimentation” without free consent. [9] Similar reliance was placed on Article 6 of the Universal Declaration of Bioethics and Human Rights. [10]

    8. Henry plaintiff’s submissions at [77]; (“Henry subs”).

    9. Henry subs at [99].

    10. Henry subs at [100].

  2. Leaving aside that the evidence did not establish COVID-19 vaccinations are “experimental”, as the State parties submitted, 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.

  3. 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.

The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.” (Footnotes omitted.)

  1. In oral argument, Mr King relied on indirect inconsistency in that he contended that the AIRA covered the field on the subject matters which it dealt with leaving no room for those aspects of Order (No 2) which deal with the production of vaccination evidence. [168] I do not accept that submission. The AIRA and provisions such as clause 5.8(3) of Order (No 2) address entirely different topics; the former being the establishment and maintenance of the immunisation register, and the latter being a specific occasion when an individual might be required to disclose their vaccination status via information obtained from the register.

    168. Tr 01/10/2021 at p 149; See also Kassam subs at [128].

  2. The Kassam plaintiffs’ written submissions also appeared to tie the allegation of inconsistency to the establishment of their case of civil conscription, [169] a case I have rejected. They also appear to raise a claim of direct inconsistency. [170] However, nothing in the AIRA conflicts with the obligation to disclose vaccination evidence in the circumstances addressed in s 4.3(3A) and s 5.8(3) of Order (No 2) (or sub‑clause 7(2) of the Aged Care Order or sub‑clause 4(2) of the Education Order).

    169. Kassam subs at [126] and [129] to [130].

    170. Kassam subs at [130] and [133].

  3. This ground is without substance and I reject it.

Conclusion

  1. All of the asserted grounds of invalidity raised by both sets of plaintiffs have been rejected. Both proceedings must be dismissed.

  2. I will direct the parties to confer on costs but failing agreement I will make orders for the exchange of competing orders and short submissions. On receiving the submissions, I will determine whether any argument over costs can be dealt with on the papers without a further oral hearing.

  3. Accordingly, in proceedings No 2021/00252587 brought by the Henry plaintiffs the Court orders that:

  1. The proceedings be dismissed;

  2. On or before 22 October 2021, the parties confer in relation to the appropriate orders as to costs;

  3. In the event that agreement is reached on the appropriate orders as to costs, the parties file the proposed orders on or before 5.00pm on 25 October 2021;

  4. In the event that no agreement is reached on the appropriate orders as to costs, each party to file and serve:

    1. their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5pm on 29 October 2021;

    2. any submissions in reply that do not exceed four pages on or before 5pm on 5 November 2021.

    1. In proceedings No 2021/00252587 brought by the Henry plaintiffs, the Court orders that:

  5. The proceedings be dismissed;

  6. On or before 22 October 2021, the parties confer in relation to the appropriate orders as to costs;

  7. In the event that agreement is reached on the appropriate orders as to costs, the parties file the proposed orders on or before 5.00pm on 25 October 2021;

  8. In the event that no agreement is reached on the appropriate orders as to costs, each party to file and serve:

    1. their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5pm on 29 October 2021;

    2. any submissions in reply that do not exceed four pages on or before 5pm on 5 November 2021.

**********

Endnotes

Amendments

16 November 2021 - [126] - The date "7 July 2012" was corrected to read "7 July 2021".

Decision last updated: 16 November 2021

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