Larter v Hazzard

[2022] NSWCA 238

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Larter v Hazzard [2022] NSWCA 238

Hearing dates:

26 July 2022

Date of orders:

22 November 2022

Decision date:

22 November 2022

Before:

Brereton JA at [1];
Mitchelmore JA at [53].

Decision:

(1) Grant the applicant an extension of time to apply for leave to appeal to the date on which the summons was filed; and

(2) Refuse leave to appeal, with costs.

Catchwords:

HEALTH – Public Health – COVID-19 – Public health orders made under Public Health Act 2010 (NSW), s 7, requiring state-employed healthcare workers to be vaccinated by particular dates – Whether it was open to the Minister to make the orders having regard to the risk to public health – Whether order could have effect beyond 90-day limit imposed by statute – Whether orders inconsistent with International Covenant on Civil and Political Rights

Legislation Cited:

Health Practitioner Regulation National Law 2009 (NSW), ss 20A, 150

Health Services Act 1997 (NSW)

International Covenant on Civil and Political Rights, Arts 12, 17, 18, 19, 26

Interpretation Act1987 (NSW), s 32(2)

Public Health Act 2010 (NSW), s 7

Public Health (COVID-19 Care Services) Order (No 2) 2022 (NSW)

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

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Baird v Glasgow Corporation [1936] AC 32

Brownells Limited v Ironmongers’ Wages Board (1980) 81 CLR 108; [1950] HCA 3

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

Jones v Metropolitan Meat Industries Board (1926) 37 CLR 252; [1925] HCA 54

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

Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299

Kruse v Johnson [1898] 2 QB 91

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

Salt v Scott Hall [1903] 2 KB 245

Schofield v City of Moorabbin [1967] VR 22

Sharpe v Heywood [2013] NSWCA 192

Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56

Category:

Principal judgment

Parties:

John Edward Larter (Applicant)
The Hon Brad Hazzard MP, Minister for Health & Medical Research (First Respondent)
Health Administration Corporation (Second Respondent)
The State of New South Wales (Third Respondent)

Representation:

Counsel:
S Prince SC with T Wong (Applicant)
Submitting appearances (First and Second Respondents)
T Prince with D Farinha (Third Respondent)

Solicitors:
Pryor Tzannes & Wallis Solicitors (Applicant)
Crown Solicitor’s Office (NSW) (Respondents)

File Number(s):

2021/347689

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2021] NSWSC 1451;

[2021] NSWSC 1595

Date of Decision:

10 November 2021;
9 December 2021

Before:

Adamson J

File Number(s):

2021/259688

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was a paramedic in the NSW Ambulance Service who, in accordance with his religious beliefs, has decided not to be vaccinated against the COVID-19 virus. As a result he was, from 30 September 2021, prohibited from doing work in that capacity, by public health orders made by the Minister for Health and Medical Research under s 7 of the Public Health Act 2010 (NSW) (“the Act”). The applicant sought declarations that the public health orders in question were invalid. His application was dismissed by the primary judge. He sought leave to appeal against both the primary judgment and the costs orders against him.

Held, per Brereton JA at [52], Mitchelmore JA agreeing at [53], refusing leave to appeal, with costs:

As to the order’s purported operation beyond the Act’s 90-day limit:

1. The power conferred by s 7 of the Act is one to deal with short-term emergencies for a period not exceeding 90 days. It is doubtful that it could be a valid use of the power to include in an order – which could only operate for 90 days – a provision which would only be effective after its expiry. The date stipulated as the deadline for NSW Health workers to have received their second vaccination fell more than 90 days after the original order was made. However, the original order was revoked and replaced, and the deadline was within the 90-day operational period of the subsequent order. Moreover, even if the order was ultra vires insofar as it purported to have operation after 90 days, the offending provision would be severable, without affecting the validity of the original order. Therefore, although this ground was arguable, there were insufficient prospects of ultimate success to justify a grant of leave to appeal: [25]-[26], [51].

As to legal unreasonableness:

1. The Act confers a broad discretion on the Minister in accordance with its intention of affording the maximum flexibility possible to address and counter risks to public health and their potential consequences, and any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the orders were necessary: [27], [31]-[33].

   Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299, followed.

2. As to the applicant’s argument that it was unreasonable to require a very small number of conscientious objectors within NSW Health to be vaccinated, while not at the same time requiring privately employed general practitioners and pharmacists to be vaccinated, the focus must be on what the order required, and not on what more it might have required. The fact that an order does not go so far as it might does not mean that it is unreasonable. The order addressed a component of the risks posed by unvaccinated healthcare workers, and it was not unreasonable for the Minister to consider it necessary to deal with the risk: [36].

As to inconsistency with the International Covenant on Civil and Political Rights:

1. Whether the ICCPR articles 12, 18 and 19 were engaged turns on whether the relevant order was a “necessary” one. In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, it was held that it was. That judgment has now been upheld on appeal, albeit without reference to the ICCPR, in a judgment which holds that the Order was a valid exercise of a power conditioned on the Minister considering it “necessary” to deal with a risk to public health, and there is no reason to suppose that this Court would now take the view that it was not: [39]. The orders did not interfere with the applicant’s privacy, family, home or correspondence contrary to Art 17, and even if they did authorise any such interference, such interference was not arbitrary or unlawful, but pursuant to a valid exercise of a statutory power: [40]. Nor does it contravene Art 26 (which prevents discrimination on the grounds of religion, race and sex): the Order does not attach consequences to adhering to a particular religion, but to unvaccinated status, and it does so regardless of religious belief: [41]-[42].

   Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664, followed. Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299, considered.

As to whether leave to appeal should be granted:

1. Although the issue regarding the order’s 90-day operational period was arguable, no ground of appeal had sufficient prospects of ultimate success to justify a grant of leave to appeal. There would also be no utility in granting leave to appeal, because the orders impugned and their successors have expired and thus no longer have any effect. Moreover, no practical benefit would accrue to the applicant from having the orders declared invalid: neither the professional complaints made against him nor the termination of his employment depends on them, and a declaration that they were invalid would not result in his reinstatement: [50]-[52].

Judgment

1. BRERETON JA: The applicant John Larter was a paramedic in the NSW Ambulance Service who, in accordance with his religious beliefs, has decided not to be vaccinated against the COVID-19 virus. As a result he was, from 30 September 2021, prohibited from doing work in that capacity, by the effect of public health orders made by the first respondent Minister for Health and Medical Research (“the Minister”). ^[1] Mr Larter sought declarations that the public health orders in question were invalid. His application was dismissed by Adamson J, ^[2] who subsequently made orders that he pay the costs of the third respondent, the State of New South Wales. ^[3] Mr Larter seeks leave to appeal, from the primary judgment and from the costs judgment. His summons being out of time, he also seeks an extension of time in which to do so, which is not opposed by the State, which is the only active respondent.

   1. The relevant prohibition lapsed when the last of the Orders containing it expired on 19 June 2022, after the hearing and judgment at first instance: see below at [3].

   2. Larter v Hazzard (No 2) [2021] NSWSC 1451 (“primary judgment”).

   3. Larter v Hazzard (No 3) [2021] NSWSC 1595 (“costs judgment”).

Legislative Background and Context

2. Section 7 of the Public Health Act 2010 (NSW) (“the Act”) relevantly empowers the Minister to make directions which he considers necessary to deal with situations that have arisen which are “a risk to public health”. It provides as follows:

Power 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.

3. On 26 August 2021, pursuant to s 7(2) of the Act, the Minister made the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (“the Original Order”). The relevant situation was the COVID-19 pandemic, including outbreaks of several sub-variants of the virus. The Original Order was amended with effect from 29 September 2021 (“the September Amendment”). It was revoked on 22 October 2021, when it was replaced by a further order of that date (“the October Order”). The October Order was revoked on 23 December 2021 (after the primary judgment was delivered), when it was replaced by an order of that date (“the December Order”). A further order was made on 21 March 2022 (“the March 2022 Order”), which expired on 19 June 2022. Only the Original Order and the October Order were impugned in the proceedings below.

4. Clause 4(1) of the Original Order directed that a health care worker must not do work as a health care worker unless the worker had received at least one dose of a COVID-19 vaccine if the work was done on or after 30 September but not before 30 November 2021, and at least two doses of the vaccine if the work was done on or after 30 November 2021. Part 2 of the Original Order (as amended by the September Amendment, which inserted sub-clause 4(1A)), was as follows:

4 Directions of Minister for health care workers to be vaccinated

(1) The Minister directs that a health care worker must not do work as a health care worker unless—

(a)    if the work is done on or after 30 September but before 30 November 2021— the worker has received at least 1 dose of a COVID-19 vaccine, or

(b)    if the work is done on or after 30 November 2021—the worker has received at least 2 doses of a COVID-19 vaccine.

(1A)    Subclause (1) does not apply in relation to work done for a public health organisation, the Health Administration Corporation, the Ambulance Service of NSW or the Ministry of Health under a contract of service or a contract for services if—

(a)    the work does not involve the provision of a health service, and

(b)    the person doing the work is not physically present, while doing the work, at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health.

(2) The Minister directs that a health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker.

(3)    Subclauses (1) and (2) do not apply to—

(a)    a health practitioner who does work as a health care worker in response to a medical emergency, or

(b)    another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak.

5 Direction of Minister for responsible persons for health care workers

The Minister directs that each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 4 applies complies with the directions of the clause.

5. The date 30 November 2021 was more than 90 days after the Original Order was made (on 26 August 2021), and thus after the order would have expired pursuant to s 7(5) of the Act, had it not earlier been revoked by the October Order (on 22 October 2021).

6. Part 2 of the October Order relevantly provided:

…

5 Health care workers not to work unvaccinated

(1)    A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVID-19 vaccine.

(2)    A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine.

(3)    Subclauses (1) and (2) do not apply in relation to work done for a public health organisation, the Health Administration Corporation, the Ambulance Service of NSW or the Ministry of Health under a contract of service or a contract for services if—

(a)    the work does not involve the provision of a health service within the meaning of the Health Services Act 1997, and

(b)    the person doing the work is not physically present, while doing the work, at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health.

(4)    A health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker.

(5)    Subclauses (1), (2) and (4) do not apply to—

(a)    a health practitioner who does work as a health care worker in response to a medical emergency, or

(b)    another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak.

6 Responsible persons for health care workers

Each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 5 applies complies with the clause.

7. Before the hearing at first instance, Mr Larter’s registration as a paramedic was suspended by the Paramedicine Council on 20 September 2021, under s 150 of the Health Practitioner Regulation National Law (NSW) (“the HPR law”), as a result of six complaints concerning his having expressed in the media views about the COVID-19 pandemic and public health orders for lockdowns and vaccinations. The reasons for that decision, which were provided to Mr Larter in writing on 7 October 2021, referred amongst other things to the Council’s concerns that the statements attributed to him (which included that the public health orders would result in members of the public “dying”) raised issues of potential risks to public safety and the public interest. On 15 October 2021, Mr Larter appealed against the Council’s decision to suspend his registration to the NSW Civil and Administrative Tribunal; that appeal has not yet been determined. His appeal was listed for hearing on 28 and 29 June 2022; the outcome was not in evidence.

8. On 26 May 2022, the Health Care Complaints Commission informed Mr Larter that it had resolved to refer the complaints to the Council, pursuant to s 20A(2)(e) of the HPR Law. On 27 May, the Council informed him that it would be conducting proceedings under s 150 (“Powers for the protection of the public”).

9. Since the hearing below, Mr Larter’s employment has been terminated, on 22 March 2022. On the same day, he commenced proceedings in the Industrial Relations Commission for unfair dismissal, complaining that NSW Ambulance had terminated his employment prior to his case being exhausted in the Supreme Court and NCAT, and that the points raised in a reply by him to NSW Ambulance on 22 February 2022 had not been addressed. So far as the evidence before this Court indicated, those proceedings have not yet been determined.

10. As has been noted, the last version of the order expired, by operation of s 7(5) of the Act, on 19 June 2022, after Mr Larter had filed his summons for leave to appeal and after the parties had exchanged their written submissions. Although it remains a possibility, at least theoretically, that a further similar order might be made at some future time, there is currently no longer any prohibition sourced in a public health order on unvaccinated health care workers working in that capacity. ^[4]

    4. As distinct from aged care and disability services workers, for whom such a prohibition continues to apply: see Public Health (COVID-19 Care Services) Order (No 2) 2022 (NSW), Part 2; and as distinct from a prohibition sourced in conditions of employment imposed by the Secretary of the Department, as to which see below at [50].

The Primary Judgment

11. The proceedings at first instance were heard for a day and a half on 4 and 5 November 2021, most of which was occupied by the cross-examination of the NSW Chief Health Officer, Dr Chant, as to the reasons for her advice to the Minister to make the orders. ^[5] The hearing closely followed the delivery, on 15 October 2021, of the judgment of Beech-Jones CJ at CL in Kassam v Hazzard; Henry v Hazzard (“Kassam (SC)”), ^[6] in which his Honour dismissed a number of challenges to other public health orders made by the Minister under s 7(2) of the Act. The primary judge delivered the primary judgment on 10 November 2021.

    5. Costs judgment at [8].

    6. [2021] NSWSC 1320; (2021) 393 ALR 664.

12. Before the primary judge, the applicant impugned the order on the sole ground of legal unreasonableness. ^[7] He did not adduce any expert evidence to support that allegation, including his contention that the number of unvaccinated health care workers was not such as to justify the orders. As summarised by the primary judge, his arguments were: ^[8]

“1.   The Orders are broader than necessary in that they cover persons who do not pose a sufficient risk to warrant the prohibition;

2.   In the alternative to (1), the Order, before it was amended, was too broad, as is evident from the need for the amendment;

3.   It is unreasonable to require the very small percentage of conscientious objectors within NSW Health to be vaccinated while at the same time failing to require a larger group comprised of health practitioners, such as private general practitioners and pharmacists, who are not employed by NSW Health and who do not work in its health facilities, to be vaccinated;

4.   The Order was invalid because it purported to address consequences which would ensue beyond the 90-day period of the Order;

5.   The orders are invalid because they provide for permanent consequences in circumstances where they are only permitted to operate for 90 days; and

6.   The orders contravene the International Covenant on Civil and Political Rights (ICCPR) and are therefore invalid in that they unduly interfere with the right to work of those who, for religious reasons, have a conscientious objection to vaccination.”

7. Primary judgment at [4].

8. Primary judgment at [71].

13. The applicant’s proposed grounds of appeal appear not to take issue with the primary judge’s rejection of the contentions in (1) and (2) above, but assert error with respect to the remainder of her Honour’s findings, which were, in essence:

1. (in relation to (3) above) that the Court’s ability to review the merits of the decision was “extremely confined”, ^[9] and that “the effect of the orders was to remove the increased risk of transmission posed by unvaccinated NSW Health workers”; ^[10]

2. (in relation to (4)) that the Minister’s evident purpose in including in the Original Order a requirement that workers not only have had one vaccination by 30 September 2021 but also a second vaccination by 30 November 2021, “was to put the staff of NSW Health on notice of his then intention that those members of staff who had not been double-vaccinated by 30 November 2021 would not be permitted to perform duties”; ^[11]

3. (in relation to (5)) that the orders were concerned with preventing those who were not vaccinated from working for NSW Health except in certain limited circumstances, and the way in which the Minister chose to achieve that policy objective was to impose time limits on vaccination and to do so with fair warning so that workers could comply if minded to do so; ^[12] and

4. (in relation to (6)) that, as Beech-Jones CJ at CL found in Kassam (SC) at [271], the orders did not provide for compulsory medical treatment by way of vaccination and did not infringe ICCPR Article 17(1). ^[13] Further, the freedoms of religion and religious expression are subject to the exception in Article 18(3) which permits limitations which are necessary to protect public health. ^[14]

   9. Citing Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at [36] (Brennan J).

   10. Primary judgment at [77], [83].

   11. Primary judgment at [92].

   12. Primary judgment at [95].

   13. Primary judgment at [99].

   14. Primary judgment at [100].

14. In the costs judgment delivered on 9 December 2021, the primary judge ordered the applicant to pay the State’s costs. Her Honour rejected the applicant’s argument that each party should pay its own costs on account of the fact that had he been successful the result would have been of benefit to “all those health workers who have not been vaccinated”, ^[15] and found that “the proceedings were substantially brought for the [applicant]’s benefit and would, if successful, have benefited a limited cohort of health workers in the same position as the [applicant] (being unvaccinated at the relevant dates)”. Further, “the argument that the orders were manifestly unreasonable was weak”, and the State had offered to “resolve the proceedings on the basis that there would be no order as to costs” six weeks after the filing of the proceedings. ^[16]

    15. Costs judgment at [5].

    16. Costs judgment at [23].

Proposed Grounds of Appeal

15. The draft notice of appeal raises the following questions:

1. whether the primary judge erred in refusing leave to amend to include a ground alleging that the Minister took into account an irrelevant consideration in making the September Order and/or the October Order, namely a desire to dismiss (unvaccinated) health care workers from employment or otherwise punish such persons (Ground 1);

2. whether the September Order was invalid by reason of s 7(5) of the Act, by reason that it purported to require workers to have a second vaccination outside the 90-day period (Grounds 2 to 4);

3. whether the September Order and the October Order were legally unreasonable (Grounds 5 to 9);

4. whether the ICCPR applied to, and was infringed by, the making of the Orders (Ground 10); and

5. whether the primary judge’s discretion miscarried in ordering Mr Larter to pay the State’s costs (Grounds 11 to 13).

16. Leave to appeal is required because the primary judgment does not involve a matter at issue amounting to or of the value of $100,000 or any claim, demand or question to or respecting any property or civil right of that value. ^[17] The costs judgment is one dealing with the question of costs alone, and so requires leave by reason of Supreme Court Act 1970 (NSW), s 101(2)(c), although were leave granted to appeal from the primary judgment, the question of costs would necessarily be in play.

    17. Supreme Court Act 1970 (NSW), s 101(2)(r); and see Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299 (“Kassam (CA)”) at [20]-[21] (Bell P, as his Honour the Chief Justice then was).

17. The State opposes leave to appeal, on the basis that the application raises no issue of principle or question of public importance, especially insofar as it involves matters of practice and procedure and the exercise of discretion as to costs; that no point that is more than merely arguable is identified; that the decision sought to be appealed poses no reasonably clear injustice nor raises any question of “on-going significance” about continuing orders or the construction of s 7 of the Act; and that any appeal would have no utility, given that the orders in question have been revoked or have expired without any action having been taken under them against Mr Larter.

18. One essential prerequisite for a grant of leave to appeal is that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. ^[18]

    18. Sharpe v Heywood [2013] NSWCA 192 at [34] (Gleeson JA; Barrett JA agreeing); see also Kassam (CA) at [26] (Bell P).

First Issue: Refusal of Leave to Amend

19. Before the primary judge, Senior Counsel for the applicant sought leave to amend the summons to add the following additional ground:

“The Minister took into account an irrelevant consideration in making [the September Order and/or the October Order], namely the desire to dismiss health care workers from employment in the health system or otherwise punish them if they declined to be vaccinated, which is not a consideration relevant to s 7 of the Public Health Act.”

20. The primary judge refused leave. Her Honour observed that it was raised late. After refusing leave, her Honour said: ^[19]

“Rather than take up time now giving ex tempore reasons, I will include in my reasons for decision because I’m cognisant of the fact that I have two hearings in the next two days and I don’t want to take up that time. If your instructing solicitor could undertake to file a further amended summons in terms of what I’ve just said, perhaps as soon as possible.”

19. Tcpt, 4 November 2021, p 9(42)-(47).

21. The reasons foreshadowed were however not included in the primary judgment. On 14 April 2022, the solicitor acting for the State wrote to Mr Larter’s solicitors, inviting them to apply to her Honour for such reasons. No response was forthcoming, nor was any such request apparently made, and there is no evidence as to why it was not.

22. The State submitted that the issue was raised only in the further amended summons, a draft of which was provided two days before the hearing. The applicant submitted that the issue was raised in his first written submissions, albeit in the slightly different form that “[the September Order] seeks to subvert the dignity, will, and conscience of conscientious objectors by economic and industrial sanction”. However, in my opinion, there is a world of difference between a submission that the September Order sought to subvert the dignity, will and conscience of conscientious objectors by sanction, and a ground which refers to an irrelevant consideration. In particular, once that ground was raised, evidence as to whether such a consideration was taken into account would be relevant. Raising at the belated stage at which it was a ground which might be answered by evidence is a proper basis for refusing leave to amend. A determination whether or not to grant leave to permit a summons to be amended to raise an additional ground of complaint at the commencement of the hearing is one of practice and procedure, in which the ambit of a trial judge’s discretion is broad. An appeal on this ground has not been shown to have prospects of success.

Second Issue: Purported operation beyond 90-day period

23. The power conferred by s 7 is one to deal with short-term emergencies for a period not exceeding 90 days. In the appeal from Kassam (“Kassam (CA))”, Bell P, as his Honour the Chief Justice then was, observed: ^[20]

“[57] Sixthly, the fact that, pursuant to s 7(5), an order will expire at the end of 90 days after it was made (if not revoked or specified to end earlier) highlights the temporary nature of any order made pursuant to s 7(2). If such an order interfered with fundamental rights, such interference would necessarily only be temporary.”

20. Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299.

24. As the applicant submits, the Act contains no provision which would enable the operation of an order to be extended beyond the 90-day period referred to in s 7(5). Whether the Minister could circumvent the 90-day limitation by repeatedly remaking the same order may be arguable but does not arise here, where the question is whether the order is invalid because it purported to have effect beyond the 90-day period.

25. For my part, I doubt that it could be a valid use of the power to make an order which could only operate for a period of 90 days, to include in it a provision which would only be effective after its expiry. As has been noted, the primary judge considered that the “evident purpose” of the order was to place employees of NSW Health on notice about the timetable for requiring double vaccination. Again, for my part, I respectfully doubt that such a purpose could give validity to what is otherwise ineffective. In my view, the proposition that the Original Order, in its purported application to work done on or after 30 November 2021, was ultra vires, is at least arguable.

26. However, the Original Order was repealed by the October Order, made on 22 October 2021, before that provision would purportedly have had any effect (from 30 November 2021). Moreover, clause 4(1)(b) would in my opinion have been severable, without affecting the validity of the remainder of the Original Order. ^[21] Thus even if, insofar as it purported to require double vaccination from 30 November, the Original Order was ultra vires, that would not result in invalidity of the order as a whole.

    21. Under Interpretation Act 1987 (NSW), s 32(2).

Third Issue: Legal Unreasonableness

27. As was held in Kassam (CA), s 7(2) of the Act confers a broad discretion on the Minister in accordance with its intention of affording the Minister the maximum flexibility possible to address and counter risks to public health and their potential consequences, and any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the Orders were necessary. Bell P said: ^[22]

“[51] Secondly, the powers conferred by s 7(2) are broad, confined only by what “the Minister considers necessary to deal with the risk and its possible consequences”, supplemented by an implied requirement that the Minister undertakes that consideration reasonably: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34]. The breadth of the power conferred by s 7(2) is also informed by the subject matter, scope and purpose of the Act and the paramount consideration specified in s 3(2) of the Act.

[52] Section 7(2) on its face thus confers a broad discretion on the Minister. Contrary to submissions advanced by the Appellants, any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary (even if that were ascertainable, it being a matter upon which views could differ) but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the Orders were necessary. As Gleeson CJ observed in Mulholland v Australian Electoral Commission (2004) 220 CLR 181, [2004] HCA 41 at [41]:

“the word “necessary” has different shades of meaning. It does not always mean “essential” or “unavoidable”, especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy.”

22. Kassam (CA) at [51]-[52], see also at [129] (Bell P).

28. Like Beech-Jones CJ at CL in Kassam (SC), ^[23] the primary judge evaluated the legality of the decision to make the orders as if it were an administrative decision, rather than delegated legislation, on the basis that this was more favourable to the applicant, as the threshold for legal unreasonableness was lower for an administrative act than for delegated legislation. ^[24] However, in Kassam (CA), Bell P said:

“[77] In my view, the question of the validity of the Impugned Orders does not turn upon whether or not they were of an administrative or legislative character (and the two are not necessarily mutually exclusive: see McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 at [39] and the reasons of Leeming JA at [153]-[155] below). Rather, the question is simply whether the Impugned Orders were authorised by s 7 of the Public Health Act.

[78] In my view, they were. The power in s 7 of the Public Health Act is very broad and no narrow construction should be afforded to it given its subject matter and the nature of the risk it is designed to address, matters which Leeming JA in his separate reasons has also emphasised.”

23. Kassam (SC) at [27]-[29].

24. Primary judgment at [22].

29. To like effect, Leeming JA said that the distinction between “administrative” and “legislative” was in any event problematic, ^[25] that there was no reason in principle why a power may not be conferred which may be exercised in ways which may fairly be described as both legislative and administrative, ^[26] and that the issue on an application for judicial review for simple ultra vires was, do the impugned orders fall within the true nature and purpose of the statute? ^[27]

    25. Kassam (CA) at [153].

    26. Kassam (CA) at [155].

    27. Kassam (CA) at [147] (citing Williams v Melbourne Corporation (1933) 49 CLR 142 at 155; [1933] HCA 56) and [156].

30. Delegated legislation enacted in bad faith, partiality or caprice is not a genuine exercise of the powers conferred by Parliament and is therefore ultra vires. ^[28] In this respect, it is open to investigate the purposes or motives of a public authority in relation to its exercise of legislative authority: in Yates, the High Court held that an order by the Vegetable Seeds Committee for the destruction of certain vegetable seeds held by private merchants, although ostensibly within its powers, would be void if it could be proved that the Committee had made it not to remove inferior seeds from the market, but to facilitate the disposal of its own inferior stocks. ^[29] On the other hand, delegated legislation is not liable to be quashed as unreasonable merely because the courts regard it as unwise or unnecessary or harsh, though it may be quashed if the power has been used improperly. ^[30] However, considerable deference will be afforded to a public authority given such powers. ^[31]

    28. Jones v Metropolitan Meat Industries Board (1926) 37 CLR 252; [1925] HCA 54; Williams v Melbourne Corporation (1933) 49 CLR 142; Yates v Vegetable Seeds Committee (1946) 72 CLR 37 (“Yates”); Parry v Osborne [1955] VLR 152; Schofield v City of Moorabbin [1967] VR 22.

    29. See also Brownells Limited v Ironmongers’ Wages Board (1980) 81 CLR 108; [1950] HCA 3, in which it was held that the provision of high rates of overtime wages for employees working in shops after 5:45 pm had the ulterior objective of imposing pressure on employers to close shops at that hour although the closing time was fixed at 6:00 pm by statute.

    30. Kruse v Johnson [1898] 2 QB 91; Baird v Glasgow Corporation [1936] AC 32.

    31. Kruse v Johnson [1898] 2 QB 91 at [99] (Lord Russell); see Salt v Scott Hall [1903] 2 KB 245.

31. The applicant submitted that there was no rational connection between the measures contained in the Order and the actual risk they purported to address. He submitted that the matters in respect of which the Minister was required to be satisfied under s 7 were not matters of “opinion or policy or taste”, but of “objective fact”. The State submitted that they involve questions of opinion and policy, and emphasised the absence of evidence adduced by the applicant to show that the Minister’s decision was legally unreasonable.

32. That questions of opinion and policy are involved is sufficiently apparent from:

1. The provision in s 7(1), that s 7 applies “if the Minister considers on reasonable grounds that a situation has arisen …”;

2. The provision in s 7(2), that the action taken or order given by the Minister is any such as “the Minister considers necessary to deal with the risk …”; and

3. The provision in s 7(3), that the directions made by the Minister are such as “the Minister considers necessary”. ^[32]

   32. Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [64] (Hayne, Kiefel and Bell JJ); at [88]-[92] (Gageler J); Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

33. In other words, the Minister’s opinion (albeit formed on reasonable grounds) is key to engaging the power at all (s 7(1)), and the scope of any action taken or order given by the Minister (s 7(2) and s 7(3)). The applicant’s argument is contrary to the authority of Kassam (CA), in the passage set out above. ^[33] It would only be if the relevant measure could not reasonably be considered to be necessary to deal with the identified risk to public health and its possible consequences that it could be impugned as unreasonable. ^[34]

    33. Kassam (CA) at [52]; see above at [28].

    34. Cf Kassam (SC) at [11(ii)].

34. At the core of the applicant’s argument was the proposition that it was unreasonable to require a very small number of conscientious objectors within NSW Health to be vaccinated, while not at the same time requiring private general practitioners and pharmacists not employed by NSW Health to be vaccinated. Below, Mr Kirk SC, as his Honour then was, responded on behalf of the State to this argument as follows: ^[35]

“Can I deal with that last point first about the, for example, GP and pharmacy point, because it’s convenient to deal with that right at the beginning? My friend seemed to be suggesting to Dr Chant yesterday and hinted at this morning, that, well, if the Minister was really concerned about risk to patients and vulnerable and so forth, why didn’t he mandate it for pharmacies and GPs in the community? Let me grapple with that directly this way: it would have been perfectly rational and open to do so. It would also have been perfectly rational and open to have no requirement of health care workers, because the Minister might have reached the view, “I’m going to trust everyone to be to be vaccinated and, yes, there are going to be risks to vulnerable people, but I’m concerned about, you know, freedom of conscience or I don’t want to be more restrictive than I need to be.” It would have been entirely rational to have no such order. So, rational to have no order. Rational to have a really encompassing order and everything in between is rational and that’s the diabolical judgment and that’s the political judgment. To suggest, “Well, you know, they should have gone further, if they really meant it”, is actually to fail to grapple with the very sort of nuanced analysis that the Minister is criticised for in other respects, because, yes, he’s drawn a line and, no doubt, he’s got reasons for drawing that line and, perhaps, that line will be moved next week, one way or another and whether it’s moved more broad or less broad, will still be rational and reasonable and we might agree, we might disagree. Lots of people have different views, but it’s his judgment. It’s a hard one.”

35. Tcpt, 5 November 2021, pp 92(36)-93(09).

35. The primary judge’s response to the applicant’s argument included the following: ^[36]

“[82] The ambit of the Order, in its original form, was, in my view, reasonable, for the reasons given by Dr Chant, which included the risks posed by the virus, its transmissibility, the relative inefficacy of the vaccine to protect vulnerable persons and the integrated nature of NSW Health. A person who could work remotely could well be required to attend a site where health care providers were working or could be required to provide a face-to-face health service. That person, if unvaccinated, could transmit the virus to others within the public health system, including patients. While the risk might be regarded as relatively remote, if the person is generally not providing in-person patient health care, a reasonable assessment of the risk takes into account not only the probability that the harm would occur if the measure was not taken (mandating vaccination) but also the likely seriousness of that harm (in this case, death of vulnerable individuals and operational disruption to public health services caused by the need to isolate staff and patients and close facilities for a not insignificant period).

[83] Although the vast majority of health care workers did not need the incentive provided by the orders to be vaccinated, the effect of the orders was to remove the increased risk of transmission posed by unvaccinated NSW Health workers. It would be of no comfort to the vulnerable patient who is infected by the unvaccinated health care worker to be told that he or she was unlucky by being in the wrong ward at the wrong time because most health care workers had been vaccinated. It is significant that Parliament has provided, in s 3(2) of the Act, that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.” Whether a risk is acceptable or not depends on its likely consequences and the difficulty of the steps required to ameliorate the risk. The answers to these questions are, as long as the step is reasonably open, within the purview of the Minister’s discretion and are not to be determined by this Court.

…

[86] It is not to the point that the Minister might have done more, for example, by requiring general practitioners and pharmacists in exclusively private practice to be vaccinated; or less, for example, by requiring only face-to-face health care workers to be vaccinated, by exempting not only those who had an exemption on the grounds of medical contraindication but also those who were conscientious objectors or, indeed, by not making an order requiring vaccination of health care workers at all. The range of decisions reasonably open to the Minister is, in this context, wide. As long as the decision sought to be impugned falls within the ambit of those which are reasonably open, this Court has no power to set it aside on the grounds of unreasonableness. Each of the decisions between available alternatives are policy questions which Parliament has decided are to be matters for the Minister’s consideration and decision.”

36. Primary judgment at [82]-[86].

36. In my respectful view, both Mr Kirk’s submissions and her Honour’s reasons are compelling, particularly in the light of the remarks of Bell P in Kassam (CA) as to the approach to judicial review of this kind of exercise of the Minister’s power. ^[37] In this context, the focus must be on what the order required, and not on what more it might have required (nor what less it might have required). The fact that an order does not go so far as it might does not mean that it is unreasonable. While the order may not have dealt with the whole of the risk posed by unvaccinated health practitioners, it dealt with an aspect of it, namely the risk posed by unvaccinated NSW Health workers. In addressing the increased risk of transmission posed by unvaccinated NSW Health workers, it was a direction that it was not unreasonable for the Minister to consider necessary to deal with the risk.

    37. Kassam (CA) at [51]-[52]; extracted above at [27].

37. This ground has insufficient prospects of success to warrant a grant of leave.

Fourth Issue: ICCPR

38. The applicant submitted (albeit only formally before her Honour, in the light of Kassam (SC)) that the primary judge erred in following the judgment of Beech-Jones CJ at CL in that case that ICCPR Articles 12, 17, 18, 19 and 26 did not apply to and were not infringed by the making of the impugned orders.

39. The engagement of Arts 12, 18 and 19 of the ICCPR turns on whether the Order was a “necessary” public health measure. ^[38] The judgment of Beech-Jones CJ at CL held that it was. That judgment has now been upheld on appeal (to the extent that leave to appeal was refused), albeit without reference to the ICCPR, in a judgment which holds that the Order was a valid exercise of a power conditioned on the Minister considering it “necessary” to deal with a risk to public health. ^[39] There is no reason to suppose that this Court would now take the view that it was not.

    38. ICCPR Arts 12(3); 18(3) and 19(3).

    39. Section 7(1) and (2) of the Act.

40. Art 17 provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. Her Honour held that it was not contravened, because, as Beech-Jones CJ at CL had held in Kassam (SC), the orders did not provide for compulsory medical treatment by way of vaccination. The orders did not interfere with Mr Larter’s privacy, family, home or correspondence; and even if they did authorise any such interference, such interference was not arbitrary or unlawful, but pursuant to a valid exercise of a statutory power.

41. The judgment in Kassam (SC) did not address Art 26. The primary judge dealt with it as follows: ^[40]

“I am not persuaded that art 26 (which prevents discrimination on the grounds of religion, race and sex) is infringed. As Mr Prince accepted on behalf of the plaintiff, the plaintiff would be in the same position if his objection to the virus arose from veganism, Buddhism, Catholicism or idiosyncratic beliefs.”

40. Primary judgment at [100].

42. As her Honour’s observation shows, just because a person’s exposure depends on a stance which is informed by his or her religious beliefs does not mean that he or she is discriminated against on the grounds of religion. The Order does not attach consequences to adhering to a particular religion, but to unvaccinated status, and it does so regardless of religious belief.

43. This ground has insufficient prospects to warrant a grant of leave to appeal.

Fifth Issue: Costs

44. The applicant contends that the primary judge erred in failing to find that the proceedings involved the public interest. He argues that the proceedings were concerned with holding the Minister to the confines of s 7 of the Act.

45. As the State submits, every proceeding for judicial review of a Ministerial decision can be described in that way. Moreover, even if the proceedings involved public interest elements, that by no means precludes the Court from making a costs order.

46. This is a question of costs alone, in respect of which a trial judge has a wide discretion. Even if there were a public interest aspect, her Honour’s reasons were ample to justify a costs order against Mr Larter. This ground has insufficient prospects of success to warrant a grant of leave.

Leave to appeal

47. That the orders the subject of the proceedings below have now expired is of considerable relevance on the question of leave to appeal. ^[41] In Kassam (CA), while the Court was prepared to grant leave to appeal in relation to grounds concerning the proper construction of s 7 of the Act which the State in that case conceded raised a matter of public importance, ^[42] leave was refused on the other grounds, for reasons which included:

“[36] … the remaining grounds involve challenges to the process by which the Impugned Orders were made, or the legal reasonableness of those Orders in light of the evidence led at first instance of the Minister’s purpose in making those orders. These matters are all evidence specific and the grant of leave to appeal would manifestly lack utility in relation to [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) and Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW)], both of which have been repealed. A grant of leave to appeal would be of extremely limited utility in relation to the [Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW)], as it will expire on 22 December 2021 with the final term of public schools in New South Wales ending on 17 December 2021.”

41. Cf Kassam (CA) at [19] (Bell P).

42. Kassam (CA) at [34].

48. In the present case, not only the impugned orders, but all those to like effect, have now been revoked or have expired. Mr Larter relied upon the savings clause of the March 2022 Order to argue that some utility remained. Clause 14 of that Order provided as follows:

(1) An act, matter or thing that, immediately before the repeal of the repealed order, had effect under that order continues to have effect under this order.

(2) Without limiting sub-clause (1) –

(a) an exemption granted by the Minister under the repealed order and in force immediately before the commencement of this order continues as if it were granted under this order, and

(b) a delegation in force immediately before the commencement of this order given for a provision of the repealed order continues to have effect for the corresponding provision of this order.

(3) In this clause –

Repealed Order means the Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021.

49. However, clause 14(1) saves an “act, matter or thing” only so long as some version of the Order including the savings clause remains in force. The March 2022 Order having expired, that clause no longer preserves the effect of anything in any previous Order. Accordingly, an appeal would lack utility because the Orders impugned, and their successors, no longer have any effect.

50. Moreover, no action adverse to Mr Larter depends on the impugned orders, and no practical benefit would accrue to him from having them declared invalid. The professional complaints against Mr Larter under the HPR Law which have been referred to the Paramedicine Council do not depend on any of the Orders. It is not suggested that Mr Larter has contravened the Orders; in compliance with them, he has not done work as a health care worker while they have been in force. The letter of 22 March 2022 terminating Mr Larter’s employment referred to his failure to provide evidence of vaccination or exemption so as to comply with the Original Order, the October Order or the December Order, and also the Secretary’s Determination No 33 of 12 November 2021 (“the Determination”), made under s 116A(1) of the Health Services Act 1997 (NSW) (the “HS Act”), which empowers the Secretary to “fix the salary, wages and conditions of employment of staff employed [in the NSW Health Service] in so far as they are not fixed by or under any other law”. Although the letter referred to the Original Order and the October Order, the order in force at the time of Mr Larter’s termination was the March 2022 Order; it was not one of those impugned in the proceedings below, as it had not then been made. In any event, the termination did not depend on the Original Order. The Determination, which pursuant to s 67A(1) of the HS Act applies to employees of the Ambulance Service, requires NSW Health Service employees to have received “at least two doses of a COVID-19 vaccine on and from 30 November 2021”. It was not impugned in these proceedings. Non-compliance with its requirements provided an independent basis for Mr Larter’s termination. Declaring void any or all of the Orders would not result in his reinstatement.

Conclusion

51. For the foregoing reasons, in my opinion, only the second issue is sufficiently arguable to potentially justify a grant of leave to appeal. However, because even if it succeeded the relevant part of the Original Order would be severable, there are insufficient prospects of ultimate success to justify a grant of leave. Moreover, no action against Mr Larter depends on that Order, let alone on the arguably invalid Clause 4(1)(b), which had been superseded at the time of his termination. All the impugned orders, and those to like effect which replaced them, have expired. Declaring void any or all of the Orders would not result in Mr Larter’s reinstatement. There is no utility in granting leave to appeal.

52. In my opinion, time to apply for leave to appeal should be extended to the date on which the summons was filed, but leave to appeal should be refused with costs.

53. MITCHELMORE JA: I agree with Brereton JA.

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Endnotes

Decision last updated: 22 November 2022