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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
Case
[2021] NSWSC 1320
Decision Date
CaseChat Overview and Summary
In the case of Kassam v Hazzard and Henry v Hazzard, the High Court of Australia was presented with a challenge to the validity of public health orders made under the Public Health Act in response to the COVID-19 pandemic. The orders designated certain areas of concern, restricted movement out of these areas, and imposed vaccination requirements for certain activities. The applicants, including individuals and businesses, argued that the orders were unlawful for various reasons, including that they violated personal freedoms, did not comply with the principle of legality, and infringed upon their constitutional rights. The respondents, the Minister for Health and the Chief Health Officer, defended the orders as necessary to manage the public health crisis.
The court was required to determine several legal issues, including the scope of the power to make such broad public health orders, the validity of the orders under the principle of legality, and whether the orders violated constitutional rights. The court considered whether the orders exceeded the power conferred by the Public Health Act, whether the principle of legality was engaged by the broad directions in the orders, and whether the orders infringed upon personal freedoms or rights protected by the Constitution. The court also had to address issues of administrative law, including the proof of the basis upon which the Minister for Health acted and the grounds of challenge available to the applicants.
The court found that the orders were within the scope of the power conferred by the Public Health Act, and that the principle of legality did not render the orders invalid. The court held that the orders did not violate personal freedoms, including the freedom of movement and capacity to work, as they did not infringe upon the right to body integrity. The requirement for persons to produce vaccination evidence upon request did not infringe upon the privilege against self-incrimination. The court also found that the orders did not render invalid by section 51(xxiiiA) of the Constitution, as they did not create any form of civil conscription in the provision of medical and dental services. The court rejected all grounds of review and held that the orders were a genuine exercise of the Minister's power.
The court made orders dismissing the applications and declaring the public health orders valid and enforceable. The applicants were ordered to pay the respondents' costs of the proceedings.