Kassam v Hazzard; Henry v Hazzard

In *Kassam v Hazzard* and *Henry v Hazzard*, the appellants sought leave to appeal to the Court of Appeal of New South Wales against decisions of the primary judge concerning the validity of several public health orders made under the *Public Health Act 2010* (NSW) during the COVID-19 pandemic. The dispute centred on 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). The appellants contended that these orders interfered with various common law rights, including the right to bodily integrity, the right to earn a living, and the right not to be discriminated against, and that they were not validly made under the Act.

The Court of Appeal was required to determine whether the impugned public health orders were authorised by and validly made under section 7 of the *Public Health Act 2010* (NSW). This involved considering the proper construction of section 7, including the relationship between its various subsections and the application of the principle of legality to any alleged interference with common law rights. The Court also had to assess the utility of granting leave to appeal, given that two of the challenged orders had been repealed and the third was due to expire imminently, and whether the raising of constitutional arguments elevated the status of the case for the purposes of granting leave.

The Court reasoned that the validity of the orders did not turn on whether they were administrative or legislative in character. It applied the principle of legality, noting that section 7 of the *Public Health Act 2010* (NSW) expressly contemplates and authorises the impairment of freedom of movement for the protection of public health. The Court found no error in the primary judge's reasoning and concluded that the appellants had not advanced an arguable case for constitutional arguments. While acknowledging the public importance of construing section 7 of the Act, particularly in the context of an ongoing pandemic, the Court found limited utility in reviewing orders that had already ceased to operate or were about to expire.

Consequently, the Court of Appeal refused leave to appeal in respect of most grounds, granting leave only on specific grounds but dismissing the appeals on those grounds. The appellants were ordered to pay the costs of the applications for leave to appeal and the appeals.