Kikuyu v Hazzard (No 2)

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FEDERAL COURT OF AUSTRALIA

Kikuyu v Hazzard (No 2) [2022] FCA 812  

File number: NSD 1303 of 2021
Judgment of: LEE J
Date of judgment: 13 July 2022
Catchwords: CONSTITUTIONAL LAW – where applicant had not received any doses of a COVID-19 vaccine – where applicant’s employment under Health Services Act 1997 (NSW) terminated owing to vaccination status – whether State laws inconsistent with Biosecurity Act 2015 (Cth) pursuant to s 109 of the Constitution – whether inconsistency direct or indirect – Biosecurity Act does not “cover the field” – Biosecurity Act and impugned State laws do not concern the same subject matter – State laws do not “alter, impair or detract from” Biosecurity Act – no inconsistency – State laws neither invalid nor inoperative under s 109
Legislation:

Constitution s 109

Biosecurity Act 2015 (Cth) Pt 2 Ch 8; ss 8, 8(1), 8(2), 8(2)(c), 42, 42(1), 473, 475(1), 475(1)(a), 477, 477(1), 477(5), 478, 478(1), 478(4), 478(5)

Health Services Act 1997 (NSW) s 116A, 116A(1)

Public Health Act 2010 (NSW) s 7
Cases cited:

Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237

Bell Group NV (in liq) v Western Australia [2016] HCA 21; (2016) 260 CLR 500

Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

Ex Parte McLean (1930) 43 CLR 472

Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664

Knowles v Commonwealth of Australia [2022] FCA 741

McWaters v Day (1989) 168 CLR 289

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

Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229

R v Winneke; Ex parte Gallagher (1982) 152 CLR 211

Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61

The Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441

Victoria v The Commonwealth (1937) 58 CLR 618

Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 41
Date of hearing: 15 June 2022
Counsel for the Applicant: Mr M Robinson SC with Mr R Scheelings
Solicitor for the Applicant: Maatouks Law Group
Counsel for the Respondents: Mr T Prince with Mr H Cooper
Solicitor for the Respondents: Crown Solicitor’s Office (NSW)

ORDERS

NSD 1303 of 2021
BETWEEN:

LORETTA KIKUYU

Applicant
AND:

BRADLEY RONALD HAZZARD, MINISTER FOR HEALTH NSW

First Respondent

ELIZABETH KOFF, SECRETARY FOR NSW HEALTH

Second Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

13 JULY 2022

THE COURT ORDERS THAT:

1.The applicant’s claim be dismissed.

2.By 4pm on 15 July 2022, the parties file competing minutes of order as to costs and any supporting submissions, limited to two pages.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court…

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Details
Case
[2022] FCA 812
Decision Date

CaseChat Overview and Summary

In the case of Kikuyu v Hazzard (No 2), the applicant, a registered nurse employed by the South Eastern Sydney Local Health District, sought to challenge the validity of orders and a determination that led to the termination of her employment due to her failure to comply with COVID-19 vaccination requirements. The applicant argued that the New South Wales laws were inconsistent with the Commonwealth Biosecurity Act 2015, invoking section 109 of the Constitution. The court had to determine whether the New South Wales laws were inconsistent with the Biosecurity Act and, if so, whether this inconsistency rendered the state laws invalid or inoperative.

The court addressed two types of inconsistency that the applicant posited: direct and indirect. Direct inconsistency involves a conflict between laws where simultaneous compliance is impossible or one law interferes with the rights conferred by the other. However, the court noted that no argument for direct inconsistency was made, as section 109 does not address inconsistency "between powers," but rather inconsistency between operative laws. The court also considered indirect inconsistency, which the applicant argued occurred because the Commonwealth Parliament intended for the Biosecurity Act to be the exclusive law regarding COVID-19 prevention and control. However, the court found that the Biosecurity Act did not "cover the field" and that the state laws did not concern the same subject matter or alter, impair, or detract from the Biosecurity Act.

Based on its reasoning, the court concluded that there was no inconsistency between the Biosecurity Act and the state laws, and thus the state laws were neither invalid nor inoperative under section 109. The applicant’s claim was dismissed, and the court directed the parties to file competing minutes of order regarding costs by a specified date. The parties were also limited to two pages for any supporting submissions.

Orders

Orders of the court

1. The applicant’s claim be dismissed.

2. By 4pm on 15 July 2022, the parties file competing minutes of order as to costs and any supporting submissions, limited to two pages.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For reasons explained below, the applicant’s argument is legally misconceived and must be rejected.B THE RELEVANT FACTS The parties filed a joint Statement of Agreed Facts, which became Exhibit A. A copy recording my relevant findings comprises Annexure A to this judgment. For present purposes, it is sufficient to record the following:(1)the Commonwealth Director of Human Biosecurity’s determination on 21 January 2020 that “human coronavirus with pandemic potential” was a “listed human disease” under s 42(1) of the Biosecurity Act;(2)the Governor-General’s declaration on 18 March 2020 of a “human biosecurity emergency” in relation to COVID-19 under Pt 2 of Ch 8 of the Biosecurity Act, which declaration was varied to remain in force until 17 April 2022 (Declaration);(3)the Minister’s making of the orders under s 7 of the Public Health Act 2010 (NSW) (PHA) commencing 26 August 2021 (Orders);(4)the Secretary’s making of the impugned determination no. 33 of 2021 under s 116A(1) of the Health Services Act 1997 (NSW) (HSA) on 12 November 2021 (Determination); and(5)the applicant was employed as a registered nurse by South Eastern Sydney Local Health District until her employment was terminated by reason of the fact that she had not met COVID-19 vaccination requirements.C THE APPLICANT’S CLAIM This proceeding has a chequered procedural history. It is a “declassed” class action. The applicant’s case, as now formulated, bears little resemblance to the representative claim first filed. The original statement of claim contained no mention of s 109 of the Constitution. Last May, the Court made orders for the filing of a further amended originating application and second further amended statement of claim, directing the applicant to remove all reference to previous versions of the pleading and plead, with specificity, the applicant’s argument as to inconsistency. The applicant’s inconsistency argument, at least in writing, alleged both “indirect” and “direct” inconsistency. As to indirect inconsistency, it was asserted that for the duration of the period in which the Declaration remained in force, the Commonwealth Parliament had evinced an intention for Pt 2 of Ch 8 of the Biosecurity Act (comprising ss 473–479) to be the exclusive law regarding the subject matter of the prevention and control of the emergence, establishment or spread of COVID-19 in Australian territory or a part of Australian territory. Accordingly, on the applicant’s case, the provisions authorising the Orders and Determination – and, by extension, the Orders and Determination themselves – are invalid to the extent they encroach upon that subject matter. As to direct inconsistency, the applicant’s submissions were, ultimately, brief and restricted to written submissions. In the end, it was unclear if and how they materially differed from the applicant’s case for indirect inconsistency. Before considering the substance of the applicant’s arguments, it is worth initially detailing the legal principles concerning inconsistency which are well-settled and, no doubt as a consequence, were not in dispute.D APPLICABLE PRINCIPLES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

“Direct inconsistency” describes a situation where a State or Territory law and a Commonwealth law conflict so that simultaneous obedience to the relevant provisions is impossible, or one law takes away or interferes with a right or privilege conferred by the other law: Ex Parte McLean (at 483 per Dixon J); Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466. No such argument was advanced orally and no such argument is available for the simple reason that s 109 does not deal with inconsistency “between powers”: R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 (at 216 per Gibbs CJ). Rather, it deals with inconsistency between operative laws. Until such time as there is an inconsistency arising from the federal Health Minister exercising one or more of the powers in ss 477(1) and 478(1), the operation of s 109 (and indeed s 8 of the Biosecurity Act) is not enlivened.G CONCLUSION AND ORDERS For the above reasons, the applicant’s claim should be dismissed. The respondents foreshadowed seeking a special costs order. No doubt the applicant will contend to the contrary. By this Friday, the parties are to file competing minutes of order as to costs and any submissions (limited to two pages) supporting their proposed order.

Ratio Decidendi

Legal Principle Established

The parties filed a joint Statement of Agreed Facts, which became Exhibit A. A copy recording my relevant findings comprises Annexure A to this judgment. For present purposes, it is sufficient to record the following:(1)the Commonwealth Director of Human Biosecurity’s determination on 21 January 2020 that “human coronavirus with pandemic potential” was a “listed human disease” under s 42(1) of the Biosecurity Act;(2)the Governor-General’s declaration on 18 March 2020 of a “human biosecurity emergency” in relation to COVID-19 under Pt 2 of Ch 8 of the Biosecurity Act, which declaration was varied to remain in force until 17 April 2022 (Declaration);(3)the Minister’s making of the orders under s 7 of the Public Health Act 2010 (NSW) (PHA) commencing 26 August 2021 (Orders);(4)the Secretary’s making of the impugned determination no. 33 of 2021 under s 116A(1) of the Health Services Act 1997 (NSW) (HSA) on 12 November 2021 (Determination); and(5)the applicant was employed as a registered nurse by South Eastern Sydney Local Health District until her employment was terminated by reason of the fact that she had not met COVID-19 vaccination requirements.C THE APPLICANT’S CLAIM This proceeding has a chequered procedural history. It is a “declassed” class action. The applicant’s case, as now formulated, bears little resemblance to the representative claim first filed. The original statement of claim contained no mention of s 109 of the Constitution. Last May, the Court made orders for the filing of a further amended originating application and second further amended statement of claim, directing the applicant to remove all reference to previous versions of the pleading and plead, with specificity, the applicant’s argument as to inconsistency. The applicant’s inconsistency argument, at least in writing, alleged both “indirect” and “direct” inconsistency. As to indirect inconsistency, it was asserted that for the duration of the period in which the Declaration remained in force, the Commonwealth Parliament had evinced an intention for Pt 2 of Ch 8 of the Biosecurity Act (comprising ss 473–479) to be the exclusive law regarding the subject matter of the prevention and control of the emergence, establishment or spread of COVID-19 in Australian territory or a part of Australian territory. Accordingly, on the applicant’s case, the provisions authorising the Orders and Determination – and, by extension, the Orders and Determination themselves – are invalid to the extent they encroach upon that subject matter. As to direct inconsistency, the applicant’s submissions were, ultimately, brief and restricted to written submissions. In the end, it was unclear if and how they materially differed from the applicant’s case for indirect inconsistency. Before considering the substance of the applicant’s arguments, it is worth initially detailing the legal principles concerning inconsistency which are well-settled and, no doubt as a consequence, were not in dispute.D APPLICABLE PRINCIPLES