Knowles v Commonwealth of Australia
[2022] FCA 741
•27 June 2022
FEDERAL COURT OF AUSTRALIA
Knowles v Commonwealth of Australia [2022] FCA 741
File number(s): VID 579 of 2021 Judgment of: MORTIMER J Date of judgment: 27 June 2022 Catchwords: PRACTICE AND PROCEDURE – application for joinder – application for removal of parties – whether party sought to be joined has standing – applications for joinder and removal of parties granted
PRACTICE AND PROCEDURE – applications for summary dismissal and strike out – pleadings allege invalidity of certain measures relating to COVID-19 restrictions – pleadings allege invalidity due to contraventions of Constitution ch II and ss 51(xxiiiA) and 92, inconsistency with Fair Work Act 2009 (Cth), legal unreasonableness, breach of duty or duties of care, and contravention of Australian Consumer Law s 60 – whether pleadings have reasonable prospects of success – applications to strike out amended statement of claim granted – proceeding summarily dismissed – summary judgment in favour of respondents
Legislation: Constitution ss 51(ix), 51(xx), 51(xxiiiA), 51(xxxi), 92, 96, 109, 122, ch II
Biosecurity Act 2015 (Cth) ss 475, 477
Competition and Consumer Act 2010 (Cth) pt XI, sch 2 (Australian Consumer Law) ss 2, 5(1)(a), 60
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth) ss 341, 343, 344, 351, 385, 386, 387, pt 3-2
Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37N, pt IVA
Freedom of InformationAct 1982 (Cth) s 34(1)(b)
Workplace Relations Act1996 (Cth) s 170NC
Federal Court Rules 2011 (Cth) r 9.08
Emergency Management Act 2005 (WA) ss 56, 58, 67
Human Rights Act 2019 (Qld)
Public and Environmental Health Act 2011 (NT) ss 48, 50, 52
Public Health Act 1997 (Tas) ss 14, 15, 16, 40
Public Health Act 2010 (NSW) ss 7, 132
Public Health Act 2005 (Qld) ss 319, 323, 362B
Public Health Act 2016 (WA) ss 157, 167, 171, 180, 190
Public Health and Wellbeing Act 2008 (Vic) ss 165AB, 165AI, 189, 190, 198, 199, 200, 200(1)(b), 200(1)(d), pt 10 div 3
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth)
Border Restrictions Direction (Qld)
Border Restrictions Direction (No 14) (Qld)
COVID-19 Directions (No 55) 2021: Directions for Mandatory Vaccination for Workers to Attend the Workplace (NT)
COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) (Vic)
COVID-19 Mandatory Vaccination (Specified Workers) Directions (No 8) (Vic)
Freight Movement Code for Domestic Border Controls (Cth)
Health Worker (Restrictions on Access) Directions (No 3) (WA)
Mandatory Vaccination of Certain Workers – No 5 (Tas)
Operational Protocol for Freight Movements entering Queensland (Qld)
Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1) (Vic)
Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1) (Vic)
Protocol for Domestic Border Controls – Freight Movements (Cth)
Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (NSW)
Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)
Public Health (COVID-19 General) Order 2021 (NSW)
Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW)Vaccination Requirements for Certain Workers – No 10 (Tas)
Cases cited: 5 Boroughs NY Pty Ltd v State of Victoria [2021] VSC 785
Athavle v State of New South Wales [2021] FCA 1075
Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446
Binsaris v Northern Territory [2020] HCA 22; 270 CLR 579
British Medical Association v Commonwealth [1949] HCA 44; 79 CLR 201
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Commissioner of Taxation v Pham [2013] FCA 579; 134 ALD 534
Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059; 310 IR 399
Cotterill v Romanes [2021] VSC 498
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Davis v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCAFC 213
DBE17 v Commonwealth of Australia [2020] FCA 958
DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309
Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
General Practitioners Society in Australia v Commonwealth [1980] HCA 30; 145 CLR 532
Gerner v State of Victoria [2020] HCA 48; 270 CLR 412
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Harding v Sutton (No 2) [2021] VSC 789
Hill v Zuda Pty Ltd [2022] HCA 21
Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; 244 CLR 508
Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664
Kassam v Hazzard (No 2) [2021] NSWSC 1599
Kassam v Hazzard [2021] NSWCA 299
Larter v Hazzard (No 2) [2021] NSWSC 1451
Loielo v Giles [2020] VSC 722; 63 VR 1
McCloy v New South Wales [2015] HCA 34; 257 CLR 178
Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387
Minister for the Environment v Sharma [2022] FCAFC 35
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Minister of State for the Army v Dalziel [1944] HCA 4; 68 CLR 261
Murphy v State of Victoria [2014] VSCA 238; 45 VR 119
Ng v Commissioner of the Australian Federal Police [2022] WASCA 48
Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170
P J Magennis Pty Ltd v Commonwealth [1949] HCA 66; 80 CLR 382
Palmer v Western Australia [2021] HCA 5; 95 ALJR 229
Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1
Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719
Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180
Photographic Performance Co of Aust Ltd v Copyright Tribunal [2019] FCAFC 95; 270 FCR 645
Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293
QNurses First Inc v Monash Health [2021] FCA 1372
R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; 158 CLR 535
RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424
RJE v Secretary to the Department of Justice (2008) 21 VR 526
Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218
Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; 205 FCR 227
Spencer v Commonwealth [2010] HCA 28; 241 CLR 118
Spencer v Commonwealth [2018] FCAFC 17; 262 FCR 344
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081
Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591
Victoria v Commonwealth [1975] HCA 52; 134 CLR 338
White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298
Williams v Commonwealth [2012] HCA 23; 248 CLR 156
Wong v Commonwealth [2009] HCA 3; 236 CLR 573
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; 266 CLR 428Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236; 255 IR 284
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 274 Date of last submission/s: 18 March 2022 Date of hearing: 3-4 March 2022 Counsel for the Applicants: Mr P E King with Ms E Rusiti Solicitor for the Applicants: Ashley, Francina, Leonard & Associates Counsel for the First Respondent: Ms J Davidson with Mr C Tran Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr T Prince with Mr H Cooper Solicitor for the Second Respondent: Crown Solicitor’s Office Counsel for the Third Respondent: Mr A Pound SC with Mr S Frauenfelder Solicitor for the Third Respondent: Victorian Government Solicitor’s Office Counsel for the Fourth Respondent: Mr P Turner SC Solicitor for the Fourth Respondent: Office of the Solicitor-General (Litigation) Counsel for the Fifth Respondent: Mr A Shuy Solicitor for the Fifth Respondent: State Solicitor’s Office Counsel for the Sixth Respondent: Mr T Moses Solicitor for the Sixth Respondent: Solicitor for the Northern Territory Counsel for the Seventh Respondent: Ms F Nagorcka Solicitor for the Seventh Respondent: Crown Law ORDERS
VID 579 of 2021 BETWEEN: CIENNA KNOWLES
First Applicant
JOHN HARDING
Second Applicant
HARDING ELECTRICAL PTY LIMITED (and others named in the Schedule)
Third Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
STATE OF NEW SOUTH WALES
Second Respondent
STATE OF VICTORIA (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
27 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), Monica Smit be removed as an applicant.
2.Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), the Hon Bradley Ronald Hazzard, Dr Kerry Gai Chant, Dr N Deborah Friedman and Prof Benjamin Cowie be removed as respondents to the proceeding.
3.Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), Cienna Knowles, Mikailah Lehmann, Serafine Nichols and Alison Zerk be added as applicants.
4.The proceeding be entitled Knowles & Ors v Commonwealth of Australia & Ors.
5.Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the whole of the amended statement of claim filed on 21 December 2021 be struck out.
6.Leave to the applicants to file and serve any further amended statement of claim be refused.
7.Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the respondents.
8.Any costs to be awarded in the proceeding are to be fixed by way of a lump sum.
9.On or before 4.00 pm on 11 July 2022, the parties:
(a)file proposed agreed orders on any orders for lump sum costs in the proceeding (including reserved costs); alternatively
(b)in the absence of agreement, file written submissions, limited to 5 pages for the applicants and 10 pages for combined submissions on behalf of all respondents, on the appropriate lump sum costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and a proposed form of order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
The Court has before it a number of interlocutory applications (IAs), covering the following topics:
(a)whether certain parties should be joined as applicants;
(b)whether certain parties should be removed from the proceeding;
(c)whether summary judgment should be ordered in favour of the respondents against the applicants;
(d)whether orders should be made striking out all or parts of the applicants’ pleadings; and
(e)whether, if the proceeding continues, a protective costs order should be made in favour of the applicants.
In relation to [1(b)] above, the following two parties have already been removed by consent pursuant to r 9.08 of the Federal Court Rules 2011 (Cth):
(a)the Australian Capital Territory, by orders dated 28 February 2022; and
(b)the State of South Australia, by orders dated 1 March 2022.
There were some other matters raised by the applicants (for example, complaints about a lack of responsiveness from the respondents to a proposal of mediation), but these have been overtaken by the listing of the summary dismissal and strike out applications, and no more need be said about them.
For the reasons I set out below, the joinder and removal orders sought will be made. The amended statement of claim (ASOC) already contains pleadings about the proposed new applicants, and sets out causes of action alleged to arise from their circumstances. While this was irregular, in the sense that no leave to remove and join parties had been granted, none of the respondents took issue with the irregularity. The strike out and summary dismissal applications proceeded on the basis of the ASOC.
The removal and joinder orders are chronologically ahead in time of the orders relating to the strike out and summary dismissal applications. In this way, the parties to the proceeding are regularised, and the orders in the strike out and summary dismissal applications can be made in the regularised proceeding.
When in these reasons I address the summary dismissal and strike out applications, I use the term ‘applicants’ to refer to the applicants as they will be after the joinder and removal orders are made. I also use the term summary dismissal to cover both the summary judgment applications and the strike out applications.
Insofar as the summary dismissal and strike out applications are concerned, for the reasons that follow those applications should be upheld, and there should be orders striking out the ASOC, with no leave to re-plead, and summary judgment in favour of all respondents.
The application for a protective costs order was not addressed in any detail at the hearing. Given my conclusions above, it need not be decided.
BACKGROUND
On 11 March 2020 the World Health Organization declared the outbreak of the COVID-19 virus a pandemic. The virus was present in Australia by this time. Federal and State governments in Australia implemented a variety of restrictive measures designed to reduce the risks posed by the spread of the pandemic, as the various governments assessed those risks. Governments around the world did the same. The reactions by governments, and the measures implemented, were not uniform by any means. This proceeding is a challenge to a number of the measures implemented in Australia at the federal, State and Territory levels, but with a focus on measures relating to COVID-19 vaccinations.
The proceeding was commenced by originating application dated 11 October 2021. It was commenced as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth). At that time, various measures including vaccination programs and travel restrictions were in place at both the federal and State and Territory levels, many of which had been in place since early 2020, although amended from time to time. There is no dispute that the COVID-19 virus has resulted in large numbers of infections across the community, and a significant level of serious illness and death. However, many restrictions and measures implemented to deal with the pandemic have significantly affected the day-to-day life of most members of the Australian community, although the extent of effect varies considerably across the country, and across the Australian population.
In its initial form, the case as pleaded ranged far and wide, and sought some unusual relief. For example:
(a)the statement of claim alleged:
(i)that:
The implementation of the National Plan and the steps that were being undertaken in respect of it were … being implemented or undertaken in the context of a New World Order.
…
The New World Order is a form of government, having as its purpose the consolidation of the world’s economies to a single economy, and in which the international community are intending to assume responsibility for localised peace and security, with the active support of the world’s major powers.
(ii)the “State Orders” were invalid by contravening the Disability Discrimination Act 1992 (Cth), in that:
the fact that each of the Applicants and the Group Members are susceptible to an infectious disease at any time in the future, means as a consequence that they thereby have a disability for the purposes of section 48 of the Disability Discrimination Act 1992 (Cth).
(b)the originating application sought:
(i)a declaration that the members of the Australian population who received vaccinations “received them in circumstances that amounted to an assault and a battery”; and
(ii)an order directing the Prime Minister of Australia, together with each of the Premiers and Chief Ministers of the States and Territories of Australia) to meet at the entrance to the Embassy of the Republic of Poland in Canberra and deliver the apology set out in the second schedule to the statement of claim. That draft apology included language to the effect that Prime Minister Scott Morrison, on behalf of himself and the Premiers and Chief Ministers, acknowledged responsibility for putting Australia in danger of falling into a state of lawlessness and totalitarian rule, and that his actions and behaviour constituted a breach of the Nuremberg Code.
Initially, the respondents to the proceeding were the Commonwealth, all the States and the ACT and the Northern Territory, as well as a number of individuals who held positions in some of the States as Minister for Health, Chief Health Officer, Deputy Chief Health Officer and Acting Chief Health Officer. At the first case management hearing, counsel for the applicants sought an opportunity to file an amended originating application and statement of claim. That course was not opposed.
In its amended form, the proceeding is no longer a representative proceeding. The principal allegations made can be grouped into the following categories:
(a)that certain ‘Measures’ (see [49], below) were invalid, because they were:
(i)in contravention of s 51(xxiiiA) of the Constitution;
(ii)in contravention of s 92 of the Constitution;
(iii)along with the ‘National Plan’ under which they were adopted (see [50], below), in contravention of Chapter II of the Constitution;
(iv)inconsistent with the Fair Work Act 2009 (Cth), and therefore liable to be struck down or declared void to the extent of such inconsistency pursuant to s 109 of the Constitution; and
(v)legally unreasonable;
(b)that the respondents breached the duty, or duties, of care the applicants contend are owed to them; and
(c)that the respondents contravened s 60 of the Australian Consumer Law (being sch 2 of the Competition and Consumer Act 2010 (Cth)) in connection with the provision of vaccines.
In support of the joinder and removal IAs dated 20 December 2021, the applicants read:
(a)an affidavit of Mr Robert Balzola dated 20 December 2021;
(b)a supplementary affidavit of Mr Balzola dated 4 January; and
(c)two affidavits of Mr M Hopkins dated 2 March 2022.
In support of the summary dismissal applications, the following evidence was read:
(a)an affidavit of Mr Cameron John Retallick dated 28 January 2022 in support of the Commonwealth of Australia’s IA dated 28 January 2022;
(b)an affidavit of Ms Ava Hurley dated 28 January 2022 in support of the State of New South Wales’ IA dated 28 January 2022;
(c)an affidavit of Ms Janine Margaret Hebiton dated 28 January 2022 in support of the State of Victoria’s IA dated 28 January 2022;
(d)an affidavit of Mr Simon Roberts dated 28 January 2022 in support of the State of Tasmania’s IA dated 1 November 2021;
(e)an affidavit of Ms Tisha Tejaya dated 28 January 2022 in support of the NT’s IA dated 28 January 2022; and
(f)an affidavit of Mr Paul Andrew Lack dated 28 January 2022 in support of the State of Queensland’s IA dated 28 January 2022.
THE APPLICANTS’ REMOVAL AND JOINDER APPLICATIONS
The applicants’ removal applications recognise that some of the individual respondents were acting in the course of their duties, and it is likely that the State or Territory concerned, or the Commonwealth, would accept responsibility for the actions of those individuals in the course of their duties. At a general level, this is the position each of the government parties adopted. Those individual respondents are as follows:
(a)the Hon Bradley Ronald Hazzard;
(b)Dr Kerrry Gai Chant;
(c)Dr N Deborah Friedman; and
(d)Prof Benjamin Cowe.
The applicants’ joinder applications address some of the points made early in the proceeding on behalf of the respondents; namely that it was difficult to discern how some of the original applicants were affected by the conduct of which they complained. As it now stands, the proposed applicants are to be (with the proposed ‘new’ applicants in bold):
(a)Cienna Knowles, who the applicants seek to join as the first applicant, replacing the former first applicant Monica Smit. Ms Knowles is described as a resident of the Central Coast of NSW, and as having been “non-consensually double-vaccinated, resulting in her hospitalisation as a consequence of adverse effects, and the loss of her employment and other opportunities”;
(b)John Harding, who is a small businessperson resident in Melbourne, working as an electrical contractor. The ASOC contends that Mr Harding is “unable to work in the construction industry unless he submits himself to vaccination” and that “[h]is liberties to move about the State have been curtailed”;
(c)Harding Electrical Pty Ltd, which is described as the small business of Mr Harding, and as carrying on business in the construction industry involving the installation of solar panels. The ASOC contends Harding Electrical Pty Ltd can no longer carry on business in Victoria unless its workers provide it with their vaccination records, which is “something that it does not believe that it is at liberty to require of them”;
(d)Murat Temel, described by counsel for the applicants as a small businessperson running a hairdressing business in NSW. The ASOC pleads that Mr Temel is not able to carry out his business, and is not able to move about the State of NSW as a free person;
(e)Michael Temel Hair Pty Ltd, which is described as the small business of Mr Temel, through which Mr Temel carries on a hairdressing business in Parramatta. The ASOC pleads Michael Temel Hair Pty Ltd has not been able to carry out its business;
(f)Antoine Sandroussi, who was described by counsel for the applicants at oral hearing as a small businessperson and truck driver from the State of Queensland. In the ASOC it is contended he is a resident of South Western Sydney. The applicants contend Mr Sandroussi has been adversely affected by measures in Queensland and NSW, and that he “submitted himself to vaccination in circumstances as amounted to coercion, and without the giving of prior medical consent”;
(g)Serafine Nichols, who is a resident of Western Australia and described as an employee of the Western Australian government. The ASOC contends she was affected by measures “in various ways”, including by the termination of her employment;
(h)Mikailah Lehmann, who is a Tasmanian resident working as a health professional, an occupational therapist and disability support worker. The ASOC pleads she has been unable to carry on her business; and
(i)Alison Zerk, who is described as being a former resident of the NT. The ASOC pleads that she was “also affected by the border issues, fled the NT to escape the operation of the laws in that state and was rendered homeless”. She is described as currently residing in South Australia.
Ms Smit, whom the applicants seek to remove as an applicant, is described as a resident of Victoria. The original statement of claim alleged that Ms Smit’s “liberties to move about the State of Victoria were curtailed”, and that:
She allegedly attempted to set up a protest concerning the lockdowns and the restrictions that were imposed in the State of Victoria. She was imprisoned for 22 days. Her liberties to move about the State of Victoria have been severely curtailed and her movements in the State of Victoria have been followed by police.
The applicants allege that each of the applicants have been adversely affected by various lockdowns or restrictions imposed upon the liberties of people, and restrictions on the right to carry on trade.
The submissions for the State of Victoria, whose solicitors also act for Dr Friedman and Prof Cowe, indicated consent for the removal of Dr Friedman and Prof Cowe as respondents. At hearing, counsel for the other government parties indicated that they neither consented nor opposed the removal of the individual respondents.
Counsel for Tasmania opposed the joinder of one of the new individuals, Ms Mikailah Lehmann, on the basis that Ms Lehmann has no standing in respect of the allegations against Tasmania. In support of this contention, counsel for Tasmania submitted that Ms Lehmann has no “special interest” (citing Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493 at 530-31 (Gibbs J)), as either Ms Lehmann has no interest in the impugned Tasmanian Measures, or she has no greater interest in the impugned Measures than any other person in Tasmania.
Conclusion on removal and joinder
Save for the submissions of Tasmania, there was no real opposition to the removal and joinder applications. I accept the applicants have attempted to regularise the proceeding and address some of the concerns raised by the respondents.
In the circumstances, it is appropriate that leave be granted to remove Ms Smit, and to remove the 10th to 13th respondents inclusive, described at [16] above.
As to joinder, there being no active opposition to the joinder of Ms Knowles, Ms Nichols, and Ms Zerk, it is appropriate to grant leave for those individuals to be joined as applicants. It is appropriate that only those persons willing to be applicants should remain as applicants, and that at this stage of the proceeding adjustments to the parties which are contended to better reflect the allegations sought to be raised by the proceeding should be permitted.
I do not accept the submissions of Tasmania that Ms Lehmann’s joinder should not be permitted because she has no standing. At this early of the proceeding, and given the nature of the allegations made, I am satisfied that Ms Lehmann has a sufficient interest in challenging the impugned Measures. The nature of the Measures, and the risks they were designed to address, mean that a very large proportion of the Australian community has been affected by them in one way or another. That feature may mean that a very large number of people have standing to challenge these measures; however, that fact simply arises because of the nature of the pandemic and the measures implemented to address it. Ms Lehmann alleges she has been denied the opportunity to work, and to earn an income, because the impugned Tasmanian Directions required her to be vaccinated, and she is not. Deprivation of income and the opportunity to work associated with a government measure is a tangible interest sufficient to give Ms Lehmann standing to challenge the Measures. The structure of this proceeding means that it is clear that various applicants have standing in relation to some but not all of the impugned Measures. Properly, most of the respondents have framed their submissions in a way that implicitly accepts this. See also Cotterill v Romanes [2021] VSC 498 at [132].
Given the conclusions I have reached on the summary dismissal applications, there might be a question whether the removal and joinder orders should be made at all. The view I have taken is that the appropriate course is to regularise the proceeding in the way sought by the applicants, and to do this by way of orders made chronologically first, and then to make the orders sought on the respondents’ IAs. Those orders then operate against the applicant parties as they are after the removal and joinder orders. In my opinion that situation best reflects the intention of the applicant parties.
APPLICABLE PRINCIPLES
There is no real debate about the applicable principles under s 31A(2) or rule 26.01(a), (b), (c) and/or (d). I have summarised those principles in Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [46]-[48], DBE17 v Commonwealth of Australia [2020] FCA 958 and Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 at [16]-[20]. The material question is how those principles should be applied in the circumstances of this proceeding.
It can be accepted that reasonable judicial minds may differ over whether allegations in a proceeding have no reasonable prospects of success. The contentions made on behalf of the applicants in this proceeding not unsurprisingly urged considerable caution in forming such a view, especially where the allegations have a novelty to them, as some of the allegations in this proceeding do. I accept the cautionary note sounded by the High Court in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 to this effect, and the need to ensure that summary dismissal processes are not used to stultify the development of the law: see Spencer at [25]. I have borne that factor in mind.
However, it is also the case that the resources of the Court, and the respondents as government parties, are public resources, and should be directed towards the resolution of controversies in a manner which is proportionate to the nature of a proceeding, to the issues it raises, but also proportionate to its prospects of success. Where a summary dismissal application is brought, the greater the size and complexity of a proceeding, the more persuaded a Court may need to be about its prospects before forcing respondents to defend a proceeding to trial, and before allocating to such a trial the finite public resources of the Court. Some of the pleadings in this case (such as the allegations about a joint scheme or agreements between the Commonwealth and other government parties, and indeed the negligence case as pleaded) suggest this proceeding will be resource intensive, and drawn out, with significant processes of discovery. The very nature and range of the responding government parties is indicative of the significant amount of human resources, and public funds, which would be expended on this matter proceeding to a contested trial. The applicants have shown some consciousness of the need to comply with their obligations under ss 37M and 37N of the FCA Act, but nevertheless, their submissions make it clear they wish to advance wide ranging factual and legal arguments, and to invite the Court to closely scrutinise arrangements by and between the government parties concerning, in particular, the requirements for, and implementation of, a scheme of vaccination for COVID-19, and restrictions relating to COVID-19, across many parts of Australia. A trial will be a considerable undertaking for all concerned.
On the other hand, the allegations made on behalf of the applicants concern one of the largest domestic and international health crises in the lifetimes of most members of the Australian community. Lives and livelihoods have been profoundly affected. The various government responses to the crisis are a matter of substantial public interest. Although the applicants seek private law remedies as well as public law ones, the subject matter of this proceeding means, in my opinion, the Court should be firmly persuaded that the allegations do not justify a trial. I have taken what I consider to be an appropriately cautious approach to whether the various claims have reasonable prospects of success, and I have borne the High Court’s obiter comments in Spencer steadily in mind in my assessment.
One nuance arising from the applicants’ submissions about the appropriate threshold is the couching of their written submissions in terms of the Court needing to determine whether the pleaded case is “fanciful”: see the applicants’ written submissions at [10]. In fact, what the High Court said must be “more than … ‘fanciful’” are the prospects of success: see Spencer at [25]. It may be a slight difference, and of course the High Court’s reasons are not to be construed as a statute. Nevertheless, what is being assessed are the prospects of the applicants’ pleaded case succeeding. With the use of the term “fanciful”, the Court is not making any subjective assessment of the subject matter of, or position underlying, the applicants’ allegations.
Rather, as the authorities have emphasised repeatedly, the introduction of s 31A into the FCA Act reflected a conscious change in the appropriate threshold for summary dismissal. The Court must give effect to that change. The respondents must persuade the Court the causes of action upon which the applicants rely have no reasonable prospects of success, such that they are entitled to judgment in their favour. What must be assessed and measured by the Court is the prospects of the applicants succeeding at trial, assuming they prove the material facts they allege. If the term “fanciful” is used (and in my respectful opinion it might be best avoided), it is to be used in this context.
Nor is it to the point that the applicants’ claims are “genuine” (see applicants’ reply submissions at [2]). No respondent has suggested the applicants’ claims are not genuine. However, commencing a proceeding with a true sense of grievance, and not as a sham or a colourable way to achieve another objective, is not sufficient. The respondents’ IAs are directed at the underlying legal and factual basis for the applicants’ pleaded claims, and that is what the Court must examine.
OTHER IMPORTANT DECISIONS ABOUT COVID-19 RESTRICTIONS
This is not the first piece of litigation to challenge COVID-19 restrictions before an Australian Court. Some of the authorities below featured in the submissions of the respondents. The applicants tended to submit they were all distinguishable, or should not control the outcome of the summary dismissal applications.
Palmer
In Palmer v Western Australia [2021] HCA 5; 95 ALJR 229, the plaintiffs, who were located in Queensland, brought a challenge to border restrictions imposed pursuant to the Emergency Management Act 2005 (WA) (EM Act WA). The nature of the challenge is summarised by Kiefel CJ and Keane J at [13]:
The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect.
The High Court rejected all the challenges, with various justices giving different reasons for their rejection.
Kassam (NSWSC)
Senior and junior counsel in the current proceeding also appeared for the applicant in Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 (Kassam NSWSC). The judgment dealt with two originating proceedings together. Beech-Jones CJ in CL’s reasons in Kassam NSWSC were relied on heavily by the respondents in this proceeding. Kassam NSWSC concerned orders made under the Public Health Act 2010 (NSW) (NSW PH Act). His Honour described at [1] the subject matter of the proceedings:
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.
Like some of the applicants in the present proceeding, the plaintiffs in Kassam NSWSC had made an informed choice to refuse to be vaccinated. Kassam NSWSC was a judicial review proceeding, although there was also a constitutional challenge, as there is here. The court heard evidence, including expert evidence, and pronounced final orders dismissing the proceeding and rejecting all challenges made to the orders.
Kassam NSWSC is a seriously considered, and extensive, judgment of a superior State Court concerning a series of similar challenges to the pleadings in this case.
Kassam (NSWCA)
The NSW Court of Appeal granted leave to appeal to the Kassam NSWSC plaintiffs on several grounds, but in a carefully reasoned judgment, dismissed the appeals: Kassam v Hazzard [2021] NSWCA 299 (Kassam NSWCA).
Together, the decisions in Kassam NSWSC and Kassam NSWCA at first instance and on appeal (together, Kassam) should be seriously and carefully considered on the respondents’ present applications. It is truth that only the NSW restrictions were in issue, however some of the constitutional arguments raised there are also raised in this proceeding. For those arguments, there was no material distinction highlighted by the applicants which suggested that the prospects of success of those arguments depended on which State or Territory measures were being considered. They were contended to apply to all the Measures, equally. Decisions of an intermediate appellate court (here, the NSW Court of Appeal) about the interpretation and operation of the Constitution should be treated as falling into the category of decisions which a primary judge should follow, unless firmly persuaded the decision is wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 151-152 [135]. The Constitution is the preeminent federal law of this country, and in my opinion, the same principle should apply: see also Ng v Commissioner of the Australian Federal Police [2022] WASCA 48 at [194]-[198]; Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 at [3]-[4], [47]-[49]. I should therefore not depart from the approach taken in Kassam NSWCA by the NSW Court of Appeal to the constitutional arguments, at least, unless satisfied it is wrong, or plainly wrong, however the term is to be understood: see the discussion by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [2]-[11]. Leave to appeal was rejected on the constitutional arguments: Kassam NSWCA at [41].
Recently, in Hill v Zuda Pty Ltd [2022] HCA 21 at [25] the full High Court suggested the better expression to “plainly wrong” might be “unless there is a compelling reason to do so”, referring to the use of that expression in RJE v Secretary to the Department of Justice (2008) 21 VR 526 at 554 [104]. The Court also made the point (at [26]) that:
intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.
As I explain below, I respectfully agree with the approach of Beech-Jones CJ at CL in Kassam NSWSC on all issues (not just constitutional issues), and I respectfully agree with the approach by the NSW Court of Appeal in the appeal in Kassam NSWCA on the issues on which it granted leave. Its decision not to grant leave on other issues, and reasoning for doing so, is also of some significance in these applications. Irrespective of the strict position under the authorities I have referred to at [41]-[42], I respectfully agree with the reasoning in the two Kassam decisions.
Cotterill
Cotterill was a judicial review proceeding challenging directions made under the Public Health and Wellbeing Act 2008 (Vic) (Vic PHW Act), based on an alleged infringement of the implied freedom of communication about governmental or political matters in the Commonwealth Constitution. Niall JA dismissed the proceeding. In so doing, his Honour held that the High Court’s decision in McCloy v New South Wales [2015] HCA 34; 257 CLR 178 required the assessment of any alleged infringement to be applied to the legislation concerned, rather than to directions made under the legislation. Niall JA held that the provisions of the Vic PHW Act which authorised the making of the directions were valid in all their potential operations insofar as they may impose a burden on political communication: at [9]. His Honour found the legislative provisions served a legitimate purpose and there were significant constitutional limitations that confined their exercise and ensured that no lawful exercise of power could be “obnoxious to the constitutional freedom”: see [9]. Furthermore, his Honour decided that, even if the McCloy test were to be applied directly to the directions themselves (as the plaintiff had submitted it should), the directions would not be invalid by reason of their burden on political communication. While in the present proceeding there is no pleaded case based on the implied freedom of political communication, I consider the decision Cotterrill is important, and refer to it below.
Loielo
Loielo v Giles [2020] VSC 722; 63 VR 1 was an earlier challenge to a direction made under the Vic PHW Act. The impugned direction imposed a curfew in greater Melbourne from 9.00 pm to 5.00 am. The plaintiff sought judicial review on the grounds of legal unreasonableness and a lack of independence of the person who issued the direction – the State’s Chief Health Officer – from the Premier of Victoria. Ginnane J dismissed the proceeding, finding that the Chief Health Officer had not issued the direction at the Premier’s behest, and determining that the issuing of the direction was not affected by any legal unreasonableness, irrationality or illogicality and was instead a lawful exercise of the emergency powers conferred by the Act, and was proportionate to the risk posed by the COVID-19 virus.
Larter
Like Kassam, Larter v Hazzard (No 2) [2021] NSWSC 1451 involved a challenge to orders made under the NSW PH Act. The orders in question effectively prohibited healthcare work by unvaccinated people. In a claim for declaratory and injunctive relief, the plaintiff contended that the orders were legally unreasonable – that it was not open to the Minister to make the orders, having regard to the risk to public health caused by COVID-19. Adamson J dismissed the claim, finding that it was reasonably open for the Minister to make the orders concerned.
5 Boroughs
5 Boroughs NY Pty Ltd v State of Victoria [2021] VSC 785 differed in nature from the other cases above. It concerned two representative claims in negligence, each brought on behalf of persons who alleged they had suffered economic loss resulting from Victoria’s stage 3 and 4 lockdown restrictions, during the ‘second wave’ of the pandemic. As pleaded, the plaintiffs’ cases contended this loss ultimately flowed from the allegedly negligent hotel quarantine program applied in Victoria. The defendants applied for summary judgment, or striking out of the representative plaintiff’s statement of claim. John Dixon J refused the summary judgment application, but struck out the entirety of the statement of claim. His Honour found that the plaintiff had failed to properly identify the duty supposed to be owed by the State of Victoria to take reasonable care to ensure that the State’s hotel quarantine program was implemented effectively, but granted leave to the plaintiff to re-plead its case.
Gerner
Gerner v State of Victoria [2020] HCA 48; 270 CLR 412 concerned proceedings commenced in the High Court’s original jurisdiction to challenge the constitutional validity of s 200(1)(b) and (d) of the Vic PHW Act and the lockdown directions made under those provisions. The plaintiffs submitted that the legislative provision and directions infringed a guarantee of a general freedom of movement contended to be implicit in the Commonwealth Constitution, and contended to “[stand] independently of political communication and independently of interstate trade, commerce and intercourse”: Gerner at [9]. The State of Victoria demurred, and the Court upheld the demurrer. The Court held unanimously that there was no basis in the text and structure of the Constitution for the contended implication: at [9].
THE INSTRUMENTS, BODIES AND DECISIONS OR CONDUCT IMPUGNED BY THE APPLICANTS
The applicants allege they have been subject to “various lockdown measures or restrictions imposed upon the liberties of people, and restrictions on the right to carry on trade” applying across Australia. The applicants define these actions as ‘Measures’. A table entitled “Particulars of Measures” at [4] of the ASOC sets out those measures that the applicants appear to include within the definition of ‘Measures’. These are addressed in turn, below.
The applicants also impugn what they describe in their pleading as a ‘National Plan’, included in their definition of the Measures, which they contend was agreed at the National Cabinet commencing March 2020. They appear to allege that the National Plan was to some extent responsible for the various State and Territory Measures.
I interpolate here that it appeared common ground that the ‘National Cabinet’ referred to in the pleadings was the body established in March 2020 as part of the governmental response to the COVID-19 pandemic. Beyond that, the applicants do not make any specific allegations of fact about what the National Cabinet was, or how it was established. In Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719, White J had a range of evidence before him on the topic, some of which was less direct than his Honour found the Court was entitled to expect: see [84]-[86]. Nevertheless, his Honour found as follows (at [87]):
I find that the National Cabinet was established by a collective decision of COAG [Council of Australian Governments] on 13 March 2020. This, ultimately, was the submission of counsel for the respondent.
In the absence of any pleadings or submissions to the contrary, I consider it appropriate to adopt White J’s finding for the purposes of this decision.
By [10] of the ASOC, the National Plan is alleged by the applicants to have included:
(a)the making of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (2020 Biosecurity Declaration) on 20 March 2020 pursuant to s 475 of the BiosecurityAct 2015 (Cth);
(b)a series of intergovernmental agreements and protocols, lockdown measures and restrictions (including the Measures) that have been imposed on the freedom of movement and the exercise of civil liberties of the population of Australia; and
(c)“a system and by way of a civil conscription for the vaccination of the population (with vaccines that were recommended, obtained, and paid for by the Commonwealth)”.
Commonwealth
With respect to the Commonwealth, the applicants include in the impugned ‘Measures’ two directions made pursuant to the s 475 of the Biosecurity Act, being the 2020 Biosecurity Declaration and the Protocol for Domestic Border Controls – Freight Movements and Freight Movement Code for Domestic Border Controls. The Protocol and the Code are two different documents; both were in evidence, through the Commonwealth’s affidavit material. The Code is expressed to be a “binding” document. In these reasons, I refer to both documents as the Freight Movements Measures.
Section 475 of the Biosecurity Act provides:
(1)The Governor‑General may declare that a human biosecurity emergency exists if the Health Minister is satisfied that:
(a)a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and
(b)the declaration is necessary to prevent or control:
(i)the entry of the listed human disease into Australian territory or a part of Australian territory; or
(ii)the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.
Note 1:The declaration is a human biosecurity emergency declaration (see section 9).
Note 2: For revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.
Note 3:A human biosecurity emergency declaration may be varied under section 476. Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to variation of a human biosecurity emergency declaration.
(2)A human biosecurity emergency declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.
Requirements for human biosecurity emergency declaration
(3) A human biosecurity emergency declaration must specify:
(a)the listed human disease to which the declaration relates; and
(b)the nature of the human biosecurity emergency and the conditions that gave rise to it; and
(c)the period during which the declaration is in force.
Note 1:The listed human disease specified under paragraph (3)(a) is the declaration listed human disease (see section 9).
Note 2:The period specified under paragraph (3)(c) is the human biosecurity emergency period (see section 9).
(4) A human biosecurity emergency period:
(a)must not be longer than the period that the Health Minister considers necessary to prevent or control:
(i)the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or
(ii)the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; and
(b) in any case, must not be longer than 3 months.
Note:A human biosecurity emergency period may be extended under section 476.
(Original emphasis.)
The 2020 Biosecurity Declaration was first issued on 18 March 2020. It declares that a human biosecurity emergency existed, by reference to a human coronavirus with pandemic potential. The declaration states that the human coronavirus had entered Australian territory, that it was in some cases fatal, that there was no vaccine against or anti-viral treatment for the virus when the declaration was made, and that the virus posed a severe and immediate threat to human health on a nationally significant scale. The 2020 Biosecurity Declaration was extended for consecutive and continuous periods since its creation, and remained in force at the date of the summary dismissal application. It expired and ceased to have effect on 17 April 2022.
Once a declaration is made under s 475, the powers in s 477 become available. Those powers permit the Health Minister to “determine any requirement that he or she is satisfied is necessary” for the purposes listed in s 477(1). Such requirements may include, as specified (non-exhaustively) in s 477(3), requirements restricting or preventing the movement of persons, goods or conveyances in or between specified places, and other requirements. However, on the applicants’ pleadings, and in light of the table entitled “Particulars of Measures” at [4] of the ASOC, it is apparent that the applicants bring no challenge to the exercise of any power under s 477.
The Protocol commences with the following statement:
The movement of domestic freight via heavy vehicles and freight trains is critical to ensuring supply chains continue to operate smoothly and individuals, businesses and service providers can access the goods they need. Any movement of freight-related workers across the country or through communities needs to be balanced with the safety of both the workforce and broader community.
The Protocol goes on to note that States and territories may introduce additional restrictions or differential advice (eg on travel from a particular area) in relation to areas affected by COVID-19, but that:
Greater consistency in border management of supply chains will assist industry to comply. Where any variations exist between jurisdictions, these need to be clearly communicated to the freight and logistics industry, border control authorities and national regulators.
The Code, contemplated by the Protocol, describes itself as having been developed in consultation with industry to limit the potential for COVID-19 to spread through the operation of supply chain networks. The Code itself does not impose a vaccine requirement for freight workers or prevent the transit of freight across borders, but it does specify “the measures that will be enforced by relevant states and territories through their Public Health Orders and Emergency Management Directions”. The Code then sets out the measures which will be “enforceable in each state and territory that implements border controls”.
These measures include requiring freight workers who cross State or Territory borders to record a negative COVID-19 test result every 7 days, minimise contact with other people, wear masks for “all interactions”, adhere to local contact tracing requirements, and monitor lockdown and hotspot announcements, amongst other matters. In this version of the Code, there is no vaccination requirement imposed by the Code itself.
Victoria
The table entitled “Particulars of Measures” at [4] of the ASOC nominates the following Victorian Measures:
(a)a number of directions made under the ss 165AB and 165AI of the Vic PHW Act that were “[p]resently” in force (ie at the time of the filing of the ASOC), having come into effect at 11:59 pm on 15 December 2021. They are:
(i)Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1); and
(ii)Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1); and
(b)a number of directions that were formerly in force, having been revoked at 11:59 pm on 15 December 2021, and which were made pursuant to ss 189, 190, 198, 199 and 200 of the Vic PHW Act, being the:
(i)COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13);
(ii)COVID-19 Mandatory Vaccination (Specified Workers) Directions (No 8); and
(iii)the predecessors to those instruments.
Sections 165AB and 165AI of the Vic PHW Act provide:
165AB Premier may make a pandemic declaration
(1)The Premier may make a declaration under this subsection (a pandemic declaration) if the Premier is satisfied on reasonable grounds that there is a serious risk to public health arising from—
(a)a pandemic disease; or
(b)a disease of pandemic potential.
(2)The Premier must consult with, and consider the advice of, the Minister and the Chief Health Officer before making a pandemic declaration.
(3)The Premier may make a pandemic declaration whether or not, at the time the declaration is made—
(a)the pandemic disease is present in Victoria; or
(b)the disease is a disease of pandemic potential that is present in Victoria—
as the case requires.
(4)The validity of a pandemic declaration is not affected by either of the following—
(a)the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a disease of pandemic potential, but the disease was a pandemic disease at that time;
(b)the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a pandemic disease, but the disease was a disease of pandemic potential at that time.
…
165AI Minister may make a pandemic order
(1)The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health.
(2)Without limiting subsection (1), a pandemic order may include, but is not limited to, an order—
(a)that requires persons to be detained in a pandemic management area for the period specified in the order—
(i)if the conditions specified in the order are satisfied; or
(ii)in the circumstances specified in the order; or
(b)that requires that the detention of persons in a pandemic management area be extended for the period specified in the order—
(i) if the conditions specified in the order are satisfied; or
(ii) in the circumstances specified in the order; or
(c)that restricts movement in a pandemic management area; or
(d)that requires movement in, into or from a pandemic management area; or
(e)that prevents or limits entry to a pandemic management area; or
(f)that prohibits or regulates gatherings whether public or private in a pandemic management area; or
(g)that requires the use of personal protective equipment in a pandemic management area; or
(h)that prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area; or
(i)that requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records; or
(j)that requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area; or
(j)that requires the quarantining, destruction or other management of disease vectors in a pandemic management area.
Note
A person can be detained in the exercise of a pandemic management power: see sections 165B(1)(b) and 165BA(1)(b). Special protections apply to detention under this Part, including the right of a detained person to apply for review by a Detention Appeals Officer of the detention: see Division 6.
(3)A period of detention specified in a pandemic order must not exceed the period that the Minister believes is reasonably necessary to eliminate or reduce a serious risk to public health.
(4)Without limiting subsection (2)(b), the reasons for making a pandemic order that requires the extension of a period for which persons are detained may relate to a refusal or failure to comply with a requirement to undergo a medical examination or a medical test.
(Original emphasis.)
The Specified Facilities Directions imposed obligations on operators of residential aged care facilities, construction sites, healthcare facilities and educational facilities. These obligations included a requirement that the operators take all reasonable steps to ensure that only vaccinated persons (or persons exempted from having a vaccination for specific reasons) worked on the premises of the specified facilities. The following provisions illustrate how the restrictions operate:
4Operator must collect, record and hold vaccination information
Vaccination information
(1)If a worker is, or may be, scheduled to work at a specified facility after the commencement of these directions, the operator must collect, record and hold vaccination information about the worker.
…
5Operator must take reasonable steps to prevent entry of unvaccinated workers
Prevention of entry to premises
(1)An operator of a specified facility must take all reasonable steps to ensure that a worker who is:
(a)for the period before the relevant full dose deadline, unvaccinated; or
(b)for the period on and after the relevant full dose deadline, unvaccinated or partially vaccinated,
does not enter, or remain on, the premises of the specified facility for the purposes of working at the specified facility.
…
6 Limits on work outside ordinary place of residence
(1) If:
(a)a person is a worker; and
(b)it is reasonably practicable for the person to work at the person’s ordinary place of residence,
an operator of a specified facility must take all reasonable steps to ensure that the person does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility, unless:
(c)the operator collects, records and holds vaccination information about the person; and
(d)the person is:
(i) fully vaccinated; or
(ii) an excepted person.
Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.
(Original emphasis.)
The term “worker”, as used in cl 6(1)(a) of the Specified Facilities Directions, was relevantly defined in the Schedule to the Directions by reference to different types of work in the different types of facilities covered by the Directions. An “excepted person”, for the purposes of cl 6(1)(d)(ii), was a person who held an acceptable certification that they were unable to receive a dose, or a further dose, of an available vaccine due to a medical contraindication or an acute medical illness.
The Specified Workers Directions imposed obligations on employers of “workers” within 33 defined categories. The defined categories spanned a wide range of industries, including agriculture and forestry, creative arts, professional services, science and technology, retail and transportation, among others. In broad terms, the Directions obliged employers to require unvaccinated workers in the industries covered to work from home, as illustrated by the following provisions:
4 Employer must collect, record and hold vaccination information
Vaccination information
(1)If a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence after the commencement of these directions, the employer of the worker must collect, record and hold vaccination information about the worker.
…
5Employer must ensure unvaccinated workers do not work outside ordinary place of residence
No work outside ordinary place of residence
(1)An employer of a worker must not permit a worker who is:
(a)for the period before the relevant full dose deadline, unvaccinated; or
(b)for the period on and after the full dose deadline, unvaccinated or partially vaccinated, to work for that employer outside the worker’s ordinary place of residence.
(2)For the purposes of subclause (1)(a), if an employer does not hold vaccination information about a worker, the employer must treat the worker as if the worker is unvaccinated.
…
6Limits on work outside ordinary place of residence
(1)If:
(a)a person is a worker; and
(b)it is reasonably practicable for the person to work at the person’s ordinary place of residence,
an employer of the person must not permit the person to work for that employer outside the person's ordinary place of residence, unless:
(c)the employer collects, records and holds vaccination information about the person; and
(d)the person is:
(i) fully vaccinated; or
(ii) an excepted person.
Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.
(Original emphasis.)
The Specified Workers Directions defined “worker” in its Schedule by reference to the different categories of work, and used the same definition for “excepted person” as that used in the Specified Facilities Directions. Clause 7 of the Specified Workers Directions provided exceptions to the vaccination requirements in certain circumstances, such as responding to emergencies or performing urgent and essential work to protect health and safety or assets and infrastructure.
New South Wales
The table at [4] of the ASOC states that ‘Measures’ in the NSW context include a number of directions made pursuant to s 7 of the NSW PH Act, being:
(a)Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, which commenced at 7:08 pm on 26 June 2021;
(b)Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, which commenced on 31 July 2021;
(c)Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, which commenced on 21 August 2021; and
(d)Public Health (COVID-19 General) Order 2021, which commenced on 11 October 2021.
Section 7 of the NSW PH Act provides:
7Power 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.
The Temporary Movement and Gathering Restrictions limited the number of visitors permitted in residential premises, holiday homes and short-term rentals, limited the number of persons allowed in certain non-residential premises, required face masks in certain settings and restricted singing, dancing and the consumption of alcohol in non-residential premises. They imposed additional restrictions in Greater Sydney, including by the following provisions:
20 Direction of Minister concerning staying at home
(1)The Minister directs that an affected person must not without reasonable excuse—
(a)be away from the person’s place of residence, wherever located, or
(b)if the person is staying in temporary accommodation, wherever located—be away from the temporary accommodation.
(2)For the purposes of subclause (1), a reasonable excuse includes doing an activity specified by Schedule 1.
(3)For the purposes of subclause (1)(b), it is a reasonable excuse to leave the temporary accommodation if—
(a)the period of the booking of the temporary accommodation expires, and
(b)the person goes directly to the person’s place of residence or other temporary accommodation, and
(c)the person continues to comply with this clause.
(4)Subclause (2) does not permit a person to participate in a gathering in contravention of Part 2 or this Part, Division 3.
(5)Taking a holiday is not a reasonable excuse.
(6)This clause does not apply to a person who is homeless.
21 Direction of Minister concerning entering Greater Sydney
(1)The Minister directs that a person outside of Greater Sydney must not, without reasonable excuse, enter greater Sydney.
(2)For the purposes of subclause (1), a reasonable excuse includes—
(a)entering to go to the person’s place of residence in Greater Sydney, or
(b)doing an activity specified in Schedule 1, items 2–4, 6 or 8–16, or
(b1)obtaining food or other goods or services if—
(i)the food, goods or services are for the personal needs of the person’s household or for other household purposes, including for vulnerable persons or pets, and
(ii)the food, goods or services, or equivalent food, goods or services, are not reasonably available outside Greater Sydney, or
(c)attending a funeral memorial service, or a gathering following a funeral or memorial service, at which there are no more than 10 persons, excluding the person conducting the service and any other person necessary for the conduct and preparation of the service.
(3)Subclause (2) does not permit a person to participate in a gathering in contravention of Part 2 [ie, the restrictions on work, gatherings and premises generally] or this Part, Division 3.
(4)Taking a holiday in Greater Sydney is not a reasonable excuse.
(5)(Repealed).
The Temporary Movement and Gathering Restrictions were replaced by the additional restrictions imposed in response to the outbreak of COVID-19’s Delta variant. These additional restrictions maintained many of the same limitations and directions as the Temporary Movement and Gathering Restrictions. As the COVID-19 vaccine was deployed throughout NSW, the additional restrictions were repealed and replaced by the Additional Restrictions (No 2). The Additional Restrictions (No 2) differentiated between vaccinated and unvaccinated people by way of the following provisions:
4.3Leaving area of concern for work
(1)A person whose place of residence is 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 who is at least 16 years of age and is leaving an area of concern for work must—
(a)carry evidence showing the person’s name and place of residence, and
(b)produce the evidence for inspection if requested to do so by a police officer.
(3)This clause does not apply to a person who 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.
…
5.8Vaccination 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 certified medical contraindication 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)A person has a certified medical contraindication if the person—
(a)cannot have a COVID-19 vaccine due to a medical contraindication, and
(b)has a certificate, in the form approved by the Chief Health Officer, from a medical practitioner that specifies the medical contraindication.
(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—
Australian Immunisation Register means the Australian Immunisation Register kept under the Australian Immunisation Register Act 2015 of the Commonwealth.
required evidence means—
(a) evidence showing the person’s name and place of residence, 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 certificate specifying a medical contraindication as required under subclause (4).
test for COVID-19 includes test for COVID-19 using a rapid antigen test in the way approved by the Chief Health Officer.
(Original emphasis.)
The version of the Additional Restrictions (No 2) that I have extracted above is taken from the version exhibited to one of Mr Balzola’s affidavits, read by the applicants. The submissions of NSW appeared to refer to a different version. For present purposes, I do not consider any variation is material, as both versions impose both restrictions on movement, and restrictions based on vaccination status. These are the primary features to which the applicants’ allegations are directed.
In October 2021, 70% of the people aged 16 years or older in NSW had received two doses of the COVID-19 vaccine, and the Additional Restrictions (No 2) were replaced by the General Order. The General Order maintained significant restrictions in respect of the activities of unvaccinated persons, while easing restrictions on vaccinated persons. Relevant provisions included:
2.4 Maximum number of persons—places of residence
(1)If the place of residence of a household is in the general area and no member of the household is an unvaccinated adult, each member of the household who is over 18 years of age must not allow—
(a)a visitor who is an unvaccinated adult to be at the place of residence, or
(b)more than 10 visitors to be at the place of residence at any 1 time.
(2)If the place of residence of a household is in the general area and a member of the household is an unvaccinated adult, each member of the household who is over 18 years of age must not allow a visitor to be at the place of residence.
(3)A visitor must not be at a place of residence in the general area if—
(a)the person is an unvaccinated adult, or
(b)a member of the household of the place of residence is an unvaccinated adult, or
(c)another visitor at the place of residence is an unvaccinated adult, or
(d)there are more than 9 other visitors at the place of residence.
…
2.18 Premises closed to unvaccinated adults
(1)The occupier of the following premises in the general area must take reasonable steps to ensure that an unvaccinated adult is not on the premises—
(a)higher risk premises,
(b)business premises that are hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours,
(c)recreation facilities (indoors),
(d)public swimming pools,
(e)information and education facilities,
(f)retail premises, but not critical retail premises,
(g)business premises that are auction houses,
(h)business premises that are betting agencies,
(i)gaming lounges,
(j)markets that do not predominantly sell food,
(k)properties operated by—
(i) the National Trust, or
(ii) the Historic Houses Trust.
(2)An unvaccinated adult must not be on premises referred to in subclause (1) in the general area.
(3)The occupier of higher risk premises in the general area must ensure that a person who is under 16 years of age and who is not a fully vaccinated person is not on the premises unless the person is—
(a) on the premises to carry out work, or
(b) accompanied by a person who is—
(i) a member of the person’s household, and
(ii) a fully vaccinated person.
(4)This clause does not apply to a person who is on the premises for the following purposes—
(a)because of a service to assist vulnerable members of the public, for example a food bank or a service providing for the needs of homeless persons,
(b)to purchase food or beverages to be consumed off the premises,
(c)to attend a small funeral or memorial service or small wedding service,
(d)to use a click and collect service.
(4A)This clause also does not apply to a person who is on the premises if—
(a)the premises are outside Greater Sydney, and
(b)the person resides outside Greater Sydney, and
(c)the person has had only 1 dose of a COVID-19 vaccine, and
(d)the person is on the premises for the purposes of work.
(4B)Subclause (4A) and this subclause are repealed at the beginning of 1 November 2021.
(5)In this clause—
higher risk premises means the following—
(a)entertainment facilities,
(b)recreation facilities (major),
(c)hospitality venues,
(d)places of public worship,
(e)premises at which a significant event is being held, other than a small funeral or memorial service or small wedding service.
(Original emphasis.)
Western Australia
The applicants impugn two declarations and a direction, as recorded in the table at [4] of the ASOC. It is not disputed that the declarations and direction were made pursuant to ss 56 and 58 of the EM Act WA, and ss 157, 167, 171, 180 and 190 of the Public Health Act 2016 (WA) (PH Act WA). They are:
(a)a State of Emergency declared on 15 March 2020;
(b)a Public Health State of Emergency declared on 23 March 2020; and
(c)the Health Worker (Restrictions on Access) Directions (No 3), which came into effect on 22 September 2021.
Section 56 of the EM Act WA provides:
56.Minister may make state of emergency declaration
(1)The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State.
(2)The Minister must not make a declaration under this section unless the Minister—
(a)has considered the advice of the State Emergency Coordinator; and
(b)is satisfied that an emergency has occurred, is occurring or is imminent; and
(c)is satisfied that extraordinary measures are required to prevent or minimise —
(i)loss of life, prejudice to the safety, or harm to the health, of persons or animals; or
(ii)destruction of, or damage to, property; or
(iii)destruction of, or damage to, any part of the environment.
(3)A declaration under this section is to include —
(a)the time when, and date on which, the declaration is made; and
(b)the area of the State to which it applies.
(4)The making of a state of emergency declaration does not prevent the making of further state of emergency declarations in relation to the same or a different emergency.
Section 167 of the PH Act WA provides:
167.Minister may make public health state of emergency declaration
(1)The Minister may, in writing, declare that a public health state of emergency exists in the whole of the State or in any area or areas of the State.
(2)The Minister cannot make a public health state of emergency declaration unless the Minister —
(a)has considered the advice of the Chief Health Officer, given after the Chief Health Officer has consulted with the person holding the office of State Emergency Coordinator under the Emergency Management Act 2005; and
(b)is satisfied that a public health emergency has occurred, is occurring or is imminent; and
(c)is satisfied that extraordinary measures are required to prevent or minimise loss of life or prejudice to the safety, or harm to the health, of persons.
(3)A public health state of emergency declaration —
(a)must include —
(i)details of the public health emergency that is the basis of the declaration; and
(ii)the time when, and date on which, the declaration is made; and
(iii)details as to whether the declaration applies to the whole of the State or to one or more specified areas of the State;
and
(b)may limit the powers that may be exercised during the period for which the declaration is in force.
(4)The making of a public health state of emergency declaration does not prevent the making of further public health state of emergency declarations in relation to the same or a different public health emergency.
The respondents also contend that, read as a whole, it is apparent the applicants’ real case is that the decision to “mandate vaccination” was itself negligent and that, acting reasonably, the respondents would not have “mandated vaccination”.
As I have noted, there are no pleadings setting out which of the applicants have suffered which of the harms (physical, mental and economic all being identified) set out in the pleadings. The respondents make this point, and add that the pleading provides no causal link between the alleged breach of duty and any of the harm allegedly suffered.
Returning to the novelty of the alleged duty of care, and the applicants’ prospects of establishing such a duty, the respondents refer to Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [3], [5] and [93]-[94] and Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]-[104].
They submit there are three key features that preclude recognition of the duty of care alleged by the applicants:
(a)it seeks to impose liability for core policy-making functions of the government respondents, performed in a highly political context and involving quasi-legislative powers;
(b)ascertaining the duty of care would create incoherence in the law, as it would:
(i)be directly inconsistent with the statutory frameworks provided for in public health statutes in each of the respondent jurisdictions for the making of public health protection decisions (citing Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270 at [20]-[22]), including by impermissibly forcing decision-makers to give disproportionate weight to the potential liability for any type of loss (including financial loss) that might result from the exercise of the relevant public health powers; and
(ii)impermissibly discourage repositories of powers from taking population level steps and measures, (citing Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331); and
(c)it would be impossible to confine the class of persons to whom the alleged duty was owed within reasonable limits (citing Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [50]), because:
(i)the duty would be owed to all persons potentially affected by the relevant statutory public health powers, which would include large parts of, if not all, of the population of Australia; and
(ii)the duty would require the duty holders to protect individuals and businesses from pure economic loss, and the applicants’ case ignores the cautious and particular approach Australian courts have required before imposing a duty to protect others from suffering economic loss, especially in terms of causation and reasonable foreseeability. They refer to Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [93], [232], [405], and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [21]-[22], [46]-[47].
In oral submissions, counsel for the applicants emphasised that this proceeding was the only one with a private law cause of action, and emphasised the importance of discovery in that context. He conceded the duty of care alleged was a novel one, but submitted the situation in respect of the COVID-19 pandemic was unusual in itself. He then submitted the three features upon which the respondents relied were not impediments to the recognition of a duty of care of the kind alleged. He submitted:
(a)Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 supported the availability of an alleged duty owed to a large number of people, and explained how existing concepts could be used to preclude any liability from being indeterminate;
(b)there is no inconsistency because (apparently at least insofar as the alleged duty reaches conduct by National Cabinet and the National Plan) there are no statutes supporting National Cabinet so there is nothing to create any inconsistency with the alleged duty. He submitted that the scope of the alleged duty:
would need to be dealt with on the whole of the evidence at trial, particularly the production of the National Cabinet minutes, agendas and notices of meeting and any reports to it.
(c)on the respondents’ objection that the negligence allegations went to policy and political matters, counsel submitted:
whilst, ultimately, the question as to whether or not to make any response to the pandemic was open and could be described as a policy decision, the question of the implementation of that at the level to which we’ve referred does not do so, at least in any respect that would circumscribe a scope of law provision and a duty of care so as to exclude it.
In response, senior counsel for Victoria submitted:
(a)Three Rivers was a misfeasance case which did not involve the identification of a novel duty of care, and, to the extent it deals with negligence, it does so by reference to the concept of proximity being a concept no longer accepted in Australia as a touchstone for ascertaining the existence of a duty of care; and
(b)the submission at [228(b)] above ignores the fact that the duty of care alleged includes the making of the measures by each of the states and territories pursuant to the statutory powers in state and territory legislation. Hence, an “inevitable inconsistency arises”, he submitted.
NSW made a particular submission on the negligence pleading. It referred to s 132 of the NSW PH Act, which provides:
132Exclusion of liability of the State and others
(1)This section applies to civil proceedings for damages or other compensation brought against the State or any authority of the State.
(2)Damages or other compensation is not payable in any such civil proceedings to which this section applies to the extent that the claim is based on alleged negligence, defamation or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, in good faith any function under this Act.
(3)This section does not affect any entitlement to compensation expressly conferred by this Act.
Counsel for NSW submitted this was never addressed by the applicants and provides a complete answer to their private law case against NSW.
My conclusions
I agree with the respondents’ submissions that it is a notorious fact, of which the Court can take judicial notice, that statutory public health powers in the various States and Territories have been used throughout the COVID-19 pandemic to take measures that apply to all, or large parts, of the population of Australia. The principal Commonwealth measure impugned – the 2020 Biosecurity Declaration, applied nationally. The impugned Measures have at one point or another applied to a large proportion of the Australian population, if not all of it.
The applicants did not shy away from this proposition. They seek to run their negligence case on the basis the duty is owed to all members of the community affected in a negative way by the impugned Measures. In that sense, while the proceeding is no longer continued as a representative proceeding, the negligence claim is in substance exactly that. This breadth of the persons to whom the alleged duty of care is said to be owed, without any attempt to identify or delineate the material facts relating to their circumstances, is one of the fatal flaws in the framing of the applicants’ case in negligence. It is exacerbated by the failure to articulate specific links between the making of a particular Measure and the alleged harm said to have been caused even to a specific applicant. This detail is wholly absent. In my opinion that is in large part because the harm suffered by the applicants is of the same nature as the harm the applicants’ case assumes has been suffered by a large (unidentified) proportion of the Australian community.
However, this is not the only flaw.
As to the first key feature relied on by the respondents, I consider the respondents are correct that the way the duty of care is framed here invites the Court to pass judgment on the reasonableness of what was fundamentally a complex, multi-dimensional and necessarily changeable government policy response to a world-wide pandemic, where different choices were made at different times by different governments, depending on their own assessment of the circumstances in the area for which they held political responsibility. It is precisely the kind of situation to which the observations of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [6] are directed:
Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.
In circumstances where there are exercises of statutory power that create or exacerbate a risk of harm, there might be less emphasis on whether there is incoherency or incompatibility with a posited duty, or whether the nature of the conduct or decision as involving matters of policy should preclude the duty arising: see generally the reasons of Beach J in Minister for the Environment v Sharma[2022] FCAFC 35 at [356].
At the point of principle, that might well be correct. However, the applicants’ prospects of success are not improved by reliance on such an analysis, which in any event they did not rely upon. That is because in the present circumstances, the legislation authorising the impugned measures clearly makes a series of express policy choices about what are the appropriate responses to the pandemic situation in each jurisdiction, and in that sense the applicants’ posited duty of care is inconsistent, and indeed incompatible, with the policy which the Measures evince: cf Sharma at [612]. Indeed, the whole point of the applicants’ negligence allegations is to allege that the outcome – the effect of the impugned Measures on them – was a breach of the respondents’ duty of care. At its base, their case seeks to impugn the (changing) policy choices made by the various government respondents. Gleeson CJ’s observations in Graham BarclayOysters are in my opinion directly applicable. Combined with the other flaws in the applicants’ negligence case, this is the clearest of cases where those observations should be applied. See also 5 Boroughs at [43] for a similar conclusion about wide ranging allegations against policy responses to the pandemic.
A contrast could be drawn between the applicants’ alleged duty of care and the duty of care pleaded in 5 Boroughs. In that case, the plaintiffs’ case targeted the infection prevention and control measures used in hotel quarantine in Victoria. John Dixon J described the first plaintiff’s case in this way at [1]:
It contends that these restrictions were the inevitable result of COVID-19 transmission events at two hotel quarantine sites caused by the negligent failure of the State to implement effective infection prevention and control measures at the sites.
The much more limited nature of the duty alleged is apparent from [53]-[56] of his Honour’s reasons for rejecting the summary dismissal application on the negligence claim:
The plaintiff’s posited duty in this case, at least in the context of the breaches alleged, targets particular failures on the part of the relevant Ministers and Secretaries who implemented hotel quarantine. These failures in ‘effective infection prevention and control measures’ essentially involved lack of adequate supervision, training, audits and the supply of protective equipment.
While these factors will affect the allocation of resources, in that more supervision or training, or more protective equipment might require more resources, it is difficult to see at this early stage in the proceedings, and without any evidence about the significance of resources required to meet the posited standard, how such impact is any different from any duty of care recognised against the State in negligence. If there is ever any required level of conduct that the State should achieve, meeting that standard will be easier to achieve with more resources.
At face value, exercising more precise care over safety measures in an existing program may lie outside of core policy-making functions or quasi-legislative functions, and fall within the operational category. Notionally, even given an existing set of resource constraints, it does not seem fanciful that the defendants’ conduct in implementing infection control measures could be subject to curial assessment on reasonableness criteria. What a reasonable functionary might do in such circumstances may not rely only on the political balancing of competing interests, or on the issue of resources. These are factual inquiries.
The detention notice, it would appear, already determined exceptions that would apply to returning travellers in quarantine, and the policy decision about sequestering travellers in hotels as opposed to purpose-built detention centres or prisons had already been made. Those interests had been balanced. Given that policy framework, how rigorously each hotel was supervised, regulated, or audited may, on careful analysis, involve administrative or operational decisions capable of assessment to an objective standard.
That is more than a far cry from the way the applicants have framed their negligence case.
A further feature which can be contrasted with the 5 Boroughs proceeding is that rather than alleging a duty of care owed by one State government to a specific group of people, the present proceeding alleges – without any material distinctions – duties of care – of precisely the same kind – owed by federal, State and Territory governments to the entire community of which, in substance, the applicants are part. There is no attempt to separate out the circumstances in each State and Territory, and the circumstances facing the federal government, and to plead a duty of care which is responsive to those different circumstances. Although the proceedings do select Measures at a particular point in time, the way the negligence case is framed is not tied in any detail to that particular point of time. It a jumble of general allegations against all the respondents, lumped together. It is embarrassing and inappropriate, as well as hopeless.
Finally, I accept the respondents’ submissions that the posited duty is “fundamentally inconsistent with the effective exercise of those statutory public health powers”. It is also practically impossible in a circumstance such as the COVID-19 pandemic. No government can implement responsive public health measures to a pandemic that “cause or do no harm”. The entire situation involves weighing the potential harm apprehended from the spread of the COVID-19 virus against the impacts on a community of measures designed to minimise that harm, recognising the harm caused by the virus cannot be avoided altogether. The effective exercise of public health powers will necessarily have adverse impacts on some or perhaps most members of the community. Those impacts cannot be entirely avoided and at the level of generality and breadth it is pleaded, the posited duty is incompatible with the functions, both executive and statutory, to be performed in order to deal with a public health crises affecting nations across the world.
It is true that there can be dangers in determining whether a novel duty of care has any reasonable prospects of success, before trial and fact finding, and separately from the determination of the other elements of the tort. This is the point made by Beach J in Sharma at [536]-[538], which with respect has force.
Nevertheless, there are so many flaws in the applicants’ negligence case that I am satisfied those dangers should not preclude judgment in favour of the respondents.
For completeness, in any event I accept the submissions of NSW that there is an absolute bar against a claim in negligence against it by reason of s 132 of the NSW PH Act.
Whether the Measures constitute a breach of the Australian Consumer Law (ASOC [100]-[103])
Section 60 of the ACL provides:
If a person supplies, in trade or commerce, services to a consumer, there is guarantee that the services will be rendered with due care and skill.
The applicants plead:
(a)the “subjecting” of the Australian people and in particular the applicants to a “program of mass COVID-19 injections” constituted the delivery or provision of a medical service to the Australian people, including the applicants, as consumers;
(b)this medical service was provided in, or ancillary to, trade or commerce;
(c)the provision of this medical service was subject to the guarantee in s 60 of the ACL; and
(d)the respondents contravened that guarantee by providing a service that was not fit for purpose and was not supplied with due care and skill.
The pleadings in this section are somewhat confused by reason of the deletions to the ASOC from its previous iteration. There are cross references in [103] of the ASOC to [93] of the ASOC, which is deleted. This appears to be an intended cross reference to [93A], and that is how I have approached these pleadings.
The allegations about why the provision of COVID-19 injections was not fit for purpose and why the vaccinations were not supplied with due care and skill, are contained in [103] of the ASOC. It is not possible to summarise them, and they therefore need to be set out, despite their length, with the strikethroughs removed:
103.Contrary to the provisions of section 60, the service was not fit for purpose and was not supplied with due care and skill, in that:
(i)[neither] the National Plan, nor the roll out of the COVID-19 injection program, nor the experiment prevented people from contracting or from spreading the virus;
(ii)the COVID-19 injection program exposed people to significant medical risk from the provisions of the vaccinations injections themselves;
(iii)the COVID-19 injection process gave people a false sense of security in that people believing that the COVID-19 injections were “safe” meant that they posed no danger, but did not understand that they could still hold the virus and that they could unwittingly pass it onto other people;
(iv)it exposed people to the risk of the injections, and in the case of many people within the population, to what was an unacceptable risk of harm;
(v)it subjected members of the population to assault and to battery, who were forced to take the injection without their properly informed consent;
(vi)it discriminated against people, for no good reason;
(vii)it curtailed people’s liberties in ways that were completely unnecessary;
(viii)it created an injection based discrimination in which those who had not subjected themselves to injections were posed by the Respondents as being a danger to those injected and as people that they should shun, whereas the injected were the ones who posed the risk to the uninjected[ ](and not the other way around);
(ix)the contracts that were entered into with the COVID-19 drug providers exempted them from any and all liability, but subjected the Australian people to risk of injury and of harm, and to the financial burden of dealing with injured persons;
(x)treatments for the virus were denied to the Australian people, for the purposes of forcing their participation in the experiment;
(xi)the service and which was a medical experiment, was forced onto people in a way that violated their rights to refuse medical treatment and in such a way as violated the Nuremburg Code and Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights;
(xii)the deprivation of people’s liberties was imposed in many arbitrary and ineffective ways, and that were harsh and uncalled for;
(xiv)it involved the entry into of supply agreements with organisations that had engaged in criminal conduct, one of whom had been subjected to the largest penalty in the history of the health care industry across the world, but in which the Commonwealth had nevertheless agreed to provide them a complete indemnity for persons killed and injured across the population of Australia from the use of the COVID-19 injections;
(xvi)All of the facts and allegations in paragraph 93 are repeated.
In oral submissions, counsel for the applicants made the following points:
The ACL should be construed liberally including with respect to government activities of a commercial kind or engagement in trade or commerce – because that’s not necessarily the same thing.
He submitted the question whether conduct was in trade and commerce was a question of fact, and the applicants’ contentions that all of the impugned Measures were undertaken in trade and commerce was “not untenable, not fanciful”.
One threshold submission made by the State and Territory respondents was that as a law of the Commonwealth applied by Part XI of the Competition and Consumer Act 2010 (Cth), the ACL does not apply to the Crown in right of the States or Territories. The applicable regimes are the State and Territory equivalents.
Putting that (considerable) difficulty to one side, and even assuming the State and Territory equivalents had been pleaded, the respondents submit that in engaging in the relevant conduct, none of the respondents were acting in trade and commerce. None was carrying on a business. Rather, their conduct is properly characterised as “purely governmental or regulatory”: Murphy v State of Victoria [2014] VSCA 238; 45 VR 119 at [46(d)-(e)].
Further, counsel for NSW submitted the alleged conduct did not did not constitute the supply of services by the NSW government to the applicants. Section 2(1) of the ACL defines “services” (non-exhaustively) as follows:
services includes:
(a)any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and
(b)without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(i)a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or
(ii)a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii)a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or
(iv)a contract of insurance; or
(v)a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(vi)any contract for or in relation to the lending of money;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
(Original emphasis.)
Counsel for NSW added that this argument also meant the applicants were not acquiring services as “consumers”.
Counsel for the NT additionally submitted that:
(a)a donation of services is not, pursuant to ACL s 5(1)(a), a supply of services unless the donation is for promotional purposes, and that the donation or free exchange of vaccinations to the applicants does not constitute a supply for the purposes of ACL s 60; and
(b)none of the matters pleaded at ASOC [103] (extracted at [249], above) relate to the due care or skill with which a medical service was provided, but rather to the alleged inappropriateness of the service itself, which does not engage ACL s 60.
My conclusions
I accept that the applicants’ ACL allegations founder on the rock of Part XI of the Competition and Consumer Act. I accept the applicable regimes are the State and Territory equivalents. If the applicants’ case otherwise had reasonable prospects of success, then this might be the kind of matter where the Court would strike the current pleading out, and give leave to re-plead by reference to the State and Territory statutes.
However, once again, the flaws in the applicants’ case are more fundamental than that. Put simply, the administration of a vaccination program in a pandemic is not the carrying on of a business. Although the s 31A threshold is lower than this, that proposition is untenable. In Murphy, the Victorian Court of Appeal endorsed the following propositions made by the trial judge in those proceedings (at [46(d)-(e)]):
There is a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail the carrying on of business. To carry on some part of “the business of government” is something different from carrying on a business in the relevant sense.
The carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business.
(Footnotes omitted.)
The provision of a vaccination program across the States and Territories, in order to provide increased protection at a whole of population level against the serious effects of the COVID-19 virus, cannot be described as a commercial activity. It involves no commercial transactions. It is the provision of a public health and medical service to the community, as part of a core governmental public health function. Separately, the government purchase of vaccines might well involve a commercial transaction, but that is not the subject of the applicants’ ACL s 60 allegation.
The applicants’ pleading of conduct being “ancillary” to trade and commerce (as some apparently alternative characterisation) was not supported by reference to any authority and should also be rejected.
I also accept the additional submissions of the NT that none of the particular allegations made in [103] of the ASOC in fact concern the care and skill with which the mass vaccination program was administered. Instead, the allegations concern the inappropriateness of such a program. That allegation does not engage s 60 of the ACL.
The submission of NSW that the provision of a vaccination program is incapable of falling within the definition of ‘services’ in s 2 of the ACL need not be determined. The reasoning in Murphy extracted above, which speaks of governmental “services”, would need to be more carefully considered. I do not need to decide this matter as there is more than an ample basis to describe the applicants’ ACL claims as having no reasonable prospects of success without this argument.
UTILITY
Some of the respondents made submissions about the utility of the relief sought, and of the proceeding, since some or all of the impugned Measures were no longer in force. For example, NSW submitted that all of the applicants’ allegations of invalidity could not sound in the grant of relief other than declaratory relief, and declaratory relief would not be granted in an exercise of discretion, because as between the applicants and NSW, a declaration would produce no foreseeable consequences for the parties: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [52]. Other respondents adopted these submissions in respect of their own Measures. Victoria did not adopt NSW’s submissions and made no point about utility.
Although it is clear that many of the impugned Measures may no longer be in force, assuming the matter went to trial, then whether or not there are foreseeable consequences which would sound in declaratory relief would depend very much on what the evidence at trial had shown about the effect of the Measures on the applicants.
I do not consider this is an appropriate factor to count against the applicants on the summary dismissal application.
NO LEAVE TO RE-PLEAD SHOULD BE GRANTED
The question of leave to re-plead in the context of the current allegations was put by counsel for the applicants on the basis that the original pleading had been significantly amended, to remove a number of allegations, but the pleading was still in a state that needed refinement and development. Counsel indicated that, should the case advance, the applicants would seek directions permitting the amendment of their pleadings, particularly with regard to refining their ASOC.
The difficulty for the applicants lay primarily in their causes of action. While in these reasons I have also drawn attention to the generality of the pleaded allegations, the lack of pleaded material facts and the like, in my opinion that is not an oversight or a matter which can readily be corrected by an amendment. The generalities exist because the nature of the applicants’ case is a general one. The lack of material facts exists because the applicants do not wish to put a detailed case about their own circumstances at a particular point in time and confine their allegations to how a particular Measure affected those circumstances. Their case is a general attack on the government response across Australia to the COVID-19 pandemic through the use of a vaccination program.
Counsel for the applicants did not give any examples of how the applicants were prepared to correct any of the flaws identified by the respondents through amendments. No further amended statement of claim was proffered. As senior counsel for Victoria pointed out in reply, no leave to re-plead was sought. The ‘list of triable issues’ submitted without leave just before the hearing commenced did nothing but confirm the generalised ideological nature of the attack being made.
There is no basis to strike out the ASOC and give the applicants leave to re-plead.
CONCLUSION
The respondents have discharged their burden of proving that none of the causes of action upon which the applicants’ rely in their ASOC have any reasonable prospects of success. The proceeding should be summarily dismissed and there should be summary judgment for the respondents.
One final point should be made. Although the High Court in Spencer was concerned that s 31A not be employed to stifle the development of the law, in my opinion that qualification has been incorrectly employed by the applicants in this proceeding. It cannot be doubted that there may be cases which, in the nature of the cause of action they raise, require and invite a development of the law from its present state. Of itself, that is no basis for summary dismissal or strike out. All will depend on how the cause of action is articulated, and developed by submission. Careful, thorough and well-reasoned pleadings, with adequate material facts, which seek a development in the law, are unlikely to be characterised as having no reasonable prospects of success.
That is not the case here. In this case, what has occurred in many of the pleaded causes of action is that the beliefs of the applicants have been incorporated into pleadings. The Court does not doubt those beliefs – including about the COVID-19 vaccinations – may be genuinely held. But asserting beliefs in a pleading does not convert the assertion of those beliefs into a cause of action with reasonable prospects of success.
There will be orders that there be summary judgment for the respondents in the proceeding.
Although the parties advanced various submissions on costs as part of their overall submissions, the parties should be given an opportunity to agree on proposed costs orders which reflect the decision of the Court. In the absence of agreement, the Court will receive short further submissions on costs.
I certify that the preceding two hundred and seventy-four (274) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 27 June 2022
SCHEDULE OF PARTIES
VID 579 of 2021 Applicants
Fourth Applicant:
MURAT TEMEL
Fifth Applicant:
MICHAEL TEMEL HAIR PTY LIMITED
Sixth Applicant:
ANTOINE SANDROUSSI
Seventh Applicant:
MIKAILAH LEHMANN
Eighth Applicant:
SERAFINE NICHOLS
Ninth Applicant:
ALISON ZERK
Respondents
Fourth Respondent:
STATE OF TASMANIA
Fifth Respondent:
STATE OF WESTERN AUSTRALIA
Sixth Respondent:
NORTHERN TERRITORY OF AUSTRALIA
Seventh Respondent:
STATE OF QUEENSLAND
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