Larter v Hazzard (No 2)

[2021] NSWSC 1451

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Larter v Hazzard (No 2) [2021] NSWSC 1451

Hearing dates:

4-5 November 2021

Decision date:

10 November 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Dismiss the further amended summons filed on 5 November 2021.

(2)   Reserve the question of costs.

(3)   Direct that any party who seeks, or resists, an order for costs, apply in writing to my Associate within seven days, following which directions will be made with a view to the application being determined on the papers, unless an application that it be heard orally is made and granted.

Catchwords:

PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — health care workers required to be vaccinated by particular dates as a condition of being permitted to provide health care services — whether it was open to the Minister to make the public health orders having regard to the risk to public health posed by COVID-19 — consideration of the width of the power in s 7 by reference to Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 — Chief Medical Officer gave evidence of her advice to the Minister to make the orders, the rationale for the orders and available data — concern to protect categories of persons at greater risk of severe COVID-19 illness who are over-represented in health facilities and to prevent disruption to the delivery of public health services — reasonably open to the Minister to make the orders

PUBLIC HEALTH ACT — Time-limited orders — the Minister is not permitted to make an order which has an effect beyond 90 days — the direction requiring health care workers to be double-vaccinated by 30 November 2021 could not become operative since the 90-day period would expire on about 24 November 2021 — the direction does not render the order invalid in circumstances where the Minister’s purpose was to put staff on notice of his intention to prohibit staff who had not been double-vaccinated from performing duties — the potentially permanent effects of the orders are the inevitable consequence of the width of the power in s 7, risk posed by the virus and the Minister’s decision as to how to deal with the risk

HUMAN RIGHTS — International law — the public health orders are not inconsistent with the International Covenant on Civil and Political Rights — freedom of religion and religious expression and freedom of thought and expression may be subject to limitations necessary to protect public health — obligation under the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics — not necessary to address whether Australia’s international obligations can be used to construe State legislation

ADMINISTRATIVE LAW — Remedies — plaintiff seeks declarations that two public health orders were, and are, invalid and associated relief by way of injunctions — whether the plaintiff had a reasonable excuse to fail to comply with the directions cannot be determined in the absence of a charge under s 10 of the Public Health Act 2010 (NSW) and concrete facts

Legislation Cited:

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), arts 17, 18, 19, 26

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 12

Interpretation Act 1987 (NSW), s 43

Public Health Act 2010 (NSW), ss 3, 7, 10

Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)

Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW), cll 2, 3, 4,

Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW), cll 3, 5, 6

Cases Cited:

Athavle v State of New South Wales [2021] FCA 1075

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

Australian Securities and Investments Commission v DB Management (2000) 199 CLR 321; [2000] HCA 7

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Chief of Defence Force v Gaynor (2017) 246 FCR 298; [2017] FCAFC 41

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457; [1910] HCA 28

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

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

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

Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41

Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 2010

Category:

Principal judgment

Parties:

John Edward Larter (Plaintiff)
The Hon. Brad Hazzard MP, Minister for Health and Medical Research (First Defendant)
Health Administration Corporation (Second Defendant)
State of New South Wales (Third Defendant)

Representation:

Counsel:
S Prince SC / M Maconachie / T Wong (Plaintiff)
Submitting appearance (First and Second Defendants)
J Kirk SC / T Prince / D Reynolds (Third Defendant)

Solicitors:
Pryor Tzannes & Wallis Solicitors & Notaries (Plaintiff)
Crown Solicitor’s Office (NSW) (Defendants)

File Number(s):

2021/259688

Judgment

Introduction

1. By further amended summons filed on 5 November 2021, John Larter (the plaintiff) seeks declarations that two public health orders are invalid. He also seeks associated relief by way of further declarations and injunctions.

2. Between 26 August 2021 and 22 October 2021, the Honourable Brad Hazzard, the first defendant (the Minister), purported to make two public health orders pursuant to the power conferred on him by s 7 of the Public Health Act 2010 (NSW) (the Act) to give such directions by order as the Minister considers necessary to deal with a situation that he considers on reasonable grounds is, or is likely to be, a risk to public health.

3. The effect of the public health orders, if valid, is that, unless the plaintiff has received at least one dose of a COVID-19 vaccine by 30 September 2021 and received two doses by 30 November 2021, he is prohibited from working as a paramedic in New South Wales, which has been his occupation for over 25 years.

4. In substance, the plaintiff, for whom Mr (Shane) Prince SC appeared with Mr Maconachie and Ms Wong, challenges the public health orders on the sole ground of legal unreasonableness. In other words, he contends that it was not open to the Minister to make the public health orders, having regard to the risk to public health posed by the COVID-19 virus (the virus).

5. For reasons given in more detail below, this Court’s jurisdiction is confined, in this context, to determining whether it was open to the Minister, in the exercise of the power granted by s 7 of the Act, to make the public health orders. It is not for the Court to stand in the shoes of the Minister and decide what public health order could or should have been made, since Parliament has determined that this is a matter for the Minister. Thus, this Court’s only role is to determine whether the power in s 7 authorised the making of public health orders in the terms in which they were made.

6. All references to legislation in these reasons are to be read as references to the Act, unless otherwise stated.

7. The Minister and the Health Administration Corporation, the second defendant, have filed submitting appearances. Thus, the State of New South Wales, the third defendant, for whom Mr Kirk SC appeared with Mr (Thomas) Prince and Mr Reynolds, was the only active defendant and will be referred to in these reasons as the defendant.

Relevant legislative provisions

8. The objects of the Act are set out in s 3 as follows:

“3   Objects

(1)     The objects of this Act are as follows—

(a)     to promote, protect and improve public health,

(b)     to control the risks to public health,

(c)     to promote the control of infectious diseases,

(d)     to prevent the spread of infectious diseases,

…

(f)     to monitor diseases and conditions affecting public health.

(2)     The protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.”

9. Section 7 relevantly provides:

“7   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.

…

(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.

…”

10. Section 10 of the Act provides that it is an offence not to comply with a direction. It provides that a person who is subject to a direction under, relevantly, s 7, and has notice of the direction must not, without reasonable excuse, fail to comply with the direction. The maximum penalty for an individual is 100 penalty units or imprisonment for 6 months, or both.

11. The Act repealed and replaced earlier legislation. Two of the significant changes effected were that public health orders no longer needed to be published in the Government Gazette and the previous time limit on the effect of the orders of 28 days was extended to 90 days. The reason for these changes were explained in the following extract from the Second Reading Speech to the Bill which became the Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 2010 at 28128):

“The review of the Public Health Act recognised that a number of the current administrative requirements associated with making emergency orders do not deliver greater clarity or accountability to any subsequent emergency action, whilst having the potential to slow the response and therefore the effectiveness of that response. Amendment of the relevant provisions therefore is warranted to improve flexibility while ensuring that the appropriate balance is struck with protecting ordinary liberties and freedoms, including freedom of movement and assembly. For example, the requirement that an order be published in the Government Gazette before it takes effect may result in unnecessary delays in responding to public health emergencies, such as the outbreak of a pandemic. In addition, the limitation of orders to 28 days may be inappropriately short, particularly when dealing with a serious infectious disease outbreak.”

[Emphasis added.]

The orders

12. On 26 August 2021 at 9.54am, the Minister made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (the Order). The Order was amended on 29 September 2021 at 2.44pm (the Amended Order), to exempt external contractors who were doing work (other than the provision of health services) when not physically present at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health. At 5.49pm on 22 October 2021, the Amended Order was repealed and replaced by Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW) (Order 2). The effect of the orders was to require health care workers (as defined) to be vaccinated by particular dates as a condition of being permitted to provide health care services in New South Wales. It was common ground that the plaintiff was a health care worker to whom the orders applied.

The Order

13. Part 1 of the Order contains definitions and an outline of the grounds for concluding that there is a risk to public health. The Order defines “COVID-19 vaccine” as meaning a vaccine approved by the Therapeutic Goods Administration of the Commonwealth (the TGA) for use as a vaccine against the virus. It defines “health care worker” as meaning each of the following:

“(a)    a person who does work, including as a member of staff of the NSW Health Service, for any of the following—

(i)    a public health organisation within the meaning of the Health Services Act 1997,

(ii)    the Health Administration Corporation,

(iii)    the Ambulance Service of NSW,

(b)    a registered paramedic who does work involving transporting, or assessing whether to transport, persons to or from a hospital or public health facility, including any treatment incidental to the work,

(c)    a member of staff of the Ministry of Health,

(d)    a person who does work at a private health facility,

(e)    another person, or a person belonging to a class of persons, who does work specified by the Chief Health Officer as the work of a health care worker for this Order in a notice published on the website of NSW Health.”

14. The term “medical contraindication certificate” for a health care worker is defined to mean a certificate issued by a medical practitioner in an approved form certifying that “because of a specified medical contraindication, the worker to whom the certificate has been issued cannot have a COVID-19 vaccine.”

15. Clause 3 of the Order provides:

“Grounds for concluding that there is a risk to public health

It is noted that the basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows—

(a)    public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),

(b)    COVID-19 is a potentially fatal condition and is highly contagious,

(c)    a number of cases of individuals with COVID-19 have recently been confirmed in New South Wales and other Australian jurisdictions, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales, including by means of community transmission,

(d)    the risk of transmission, including by means of community transmission, of COVID-19 in New South Wales will remain significant and ongoing unless more COVID-19 vaccines are administered.”

16. Part 2 of the Order, as amended by the Amended Order, which added sub-clause 4(1A), makes the following directions:

“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.”

Order 2

17. The effect of Order 2 is substantially similar to Order 1. However, there are some differences in drafting. The grounds for concluding that there is a risk to public health are expressed in cl 3 of Order 2 as follows:

“3 Grounds for concluding that there is a risk to public health

It is noted that the basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows—

(a)    public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2),

(b)    COVID-19 is a potentially fatal condition and is highly contagious,

(c)    a number of cases of individuals with COVID-19 have been confirmed in New South Wales and other Australian jurisdictions, and there is an ongoing risk of continuing transmission of the virus in New South Wales,

(d)    those cases include individuals with the Delta variant of COVID-19, which is more contagious than previous variants and has increased the risk and speed of community transmission,

(e)    health care workers work with vulnerable and sick members of the community, including those who have COVID-19,

(f)    ensuring that health care workers are vaccinated will reduce—

(i) the risk of infection, severe disease and death in the workers, and

(ii) the risk of transmission of infection from workers to patients and other workers,

(g)    public health and hospital services are at risk without appropriate and proportionate mitigation strategies, including vaccination to protect health care workers and patients.”

18. Part 2 of Order 2 relevantly provides:

“…

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.”

Relevant authority

19. This Court has previously considered orders made pursuant to s 7 of the Act in response to the COVID-19 pandemic and found them to be a legally reasonable exercise of the power conferred by s 7: Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (Kassam). Mr Prince confirmed that the plaintiff substantially accepted the correctness of Kassam but submitted that the Order and Order 2 were distinguishable from the orders found to be valid in that case. In Kassam, Beech-Jones CJ at CL identified the following matters that affected the width of the power in s 7:

1. The power is enlivened when the Minister considers on “reasonable grounds” that a situation has arisen that is, or is likely to be, a risk to public health;

2. Because the power is enlivened by a determination that there is a “risk” to public health and the power is exercised to “deal with the risk and its possible consequences”, the power must include dealing with contingencies, including those which are highly unlikely or which may never eventuate for the object of “prevent[ing]” the spread of any disease and is, accordingly, a wide power;

3. Section 7(3) contemplates the imposition of severe restrictions on movement in any part of the State declared to be a public health risk area and for the imposition of conditions on movement, and is therefore a further indication of the width of the power under s 7(2) to make an order, which it expressly does not limit;

4. Section 7(2) is the sole source of the Minister’s power to make an order, s 7(3) being merely declaratory of what an order under s 7(2) can address (at [22]);

5. Given the objects and subject matter of the Act, the terms of s 7 and the criminal sanctions imposed for breaching a direction under s 10, it is plain that the Act contemplates the making of orders that give directions to a wide group of persons, and that severely curtail an individual’s rights, including freedom of movement (at [23]);

6. The extent to which the words of s 7(2) affect fundamental rights and freedoms requires a focus on the particular right or freedom, and the degree to which that right or freedom has been affected;

7. The word “necessary” in s 7(2) does not mean indispensable, vital, essential or requisite but rather, “appropriate and adapted”: at [25]-[26]; Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457 at 469 (Higgins J); [1910] HCA 28; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39] (Gleeson CJ);

8. There must be a reasonable connection between the public health risk and the direction (at [90]);

9. The word “considers” in s 7(2) reflects a subjective state of mind on the part of the Minister, which must have been reasonably formed: 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); and

10. In addressing the extent to which s 7(2) may authorise any interference with fundamental rights and freedoms, it is significant that an order can operate for no longer than 90 days (unless remade) and that the power is only exercisable by a Minister who is accountable to the Parliament and to the public.

20. His Honour concluded at [232] (by reference to Li at [67]) that, in order to impugn the relevant public health order on the grounds of legal unreasonableness, it was necessary for the plaintiff to show “that no Minister acting reasonably could have considered it necessary, that is, appropriate and adapted, to deal with the identified risk to public health and its possible consequences by making the impugned orders.”

21. In Kassam, his Honour addressed the plaintiff’s argument that an infringement on the liberty of a person who is unvaccinated vitiates the consent of a person who decides to be vaccinated so as to avoid such infringement. His Honour said at [63]:

“So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.”

22. In Kassam, his Honour did not find it necessary to decide whether the exercise of a power to make an order was a quasi-legislative or an administrative act. For the purposes of the proceedings, his Honour assessed the legality of the decision to make the orders as if it was an administrative act, as the threshold for legal unreasonableness was lower for an administrative act (and therefore more favourable to the plaintiff): at [27]-[29]. I propose to adopt the same approach. Kassam will be referred to further below when I address the plaintiff’s submissions.

The factual background to the making of the orders

23. Dr Kerry Chant, who has held the position of Chief Health Officer at NSW Health since 2008, gave affidavit evidence in the proceedings on behalf of the defendant and was extensively cross-examined. She is an experienced doctor and public health specialist and has a particular interest and expertise in blood borne virus infections and the prevention and control of communicable diseases.

24. Dr Chant was involved in developing the NSW Health Policy Directive entitled “Occupational Assessment, Screening and Vaccination Against Specified Infectious Diseases”, which was created in January 2011 and amended from time to time. The document made provision for vaccination, including of health care workers, against diseases such as Tuberculosis and Hepatitis B. It was thought to be inadequate to address the risks posed by the virus because of the gravity of the consequences of infection (including death), the high transmissibility of the virus and the circumstance that even vaccinated persons could be infected with the virus and pass it on to others. In this context, Dr Chant did not regard the distinction drawn in the document between workers who worked in “high risk” areas and those who worked in “low risk” areas as either meaningful or helpful.

25. What follows is a summary of Dr Chant’s evidence as to the pandemic, the background to the orders and their rationale, which I accept.

What public health entails

26. The concept, “public health” includes not only the health of the whole population but also, in some circumstances, the management of individuals. Where the health concern is a highly transmissible disease, such as caused by infection from the virus, the management of individuals is inextricably linked with the health of the population since, as recent experience has shown, a single case can rapidly lead to widespread infection throughout the community.

The COVID-19 pandemic

27. COVID-19 is an infectious disease caused by the SARS-CoV-2 virus, which causes respiratory infections. The first case was detected in New South Wales in January 2020. As it was a new disease, there was no immunity in the human population when it emerged. The virus passes from person to person when virus particles are expelled from the airways of an infected person and enter the airways of another person. It can also be transmitted when a person touches a contaminated surface and then touches his or her face. Infection with the virus may take 48 hours to become manifest and may, in some cases, be asymptomatic. The Delta variant of the virus, which is about twice as infectious as the original virus, was first detected in late 2020. It is capable of being transmitted through brief interactions between proximate persons. Unless there are control measures, one person infected with the Delta variant is estimated to infect between 3.2 and 8 other persons.

28. In May 2021, the Delta variant was designated a variant of concern. It was first detected in the New South Wales community in June 2021.

29. The consequences of infection vary. Some people are completely asymptomatic. Others will die. Most people will experience mild to moderate respiratory illness. Some become seriously ill and require medical intervention, including intensive care and ventilation to survive. Adults infected with the Delta variant have an increased risk of requiring hospitalisation.

30. Certain people are at greater risk of severe COVID-19 illness, including those older than 70, those with chronic health conditions and those with suppressed immunity. People who fall into these three categories are over-represented in health facilities. However, any infected individual could develop serious illness which may lead to death. Those who have become infected may develop “long COVID”, that is, they experience prolonged symptoms after surviving the acute illness. Even survivors of the virus who do not have long COVID may have a range of residual health conditions following their illness and its treatment, including long-term lung function impairment and neurological deficits.

31. The data relating to the virus in New South Wales at particular dates (relevant to the making of the orders) is set out in the following tables.

Date	As at 8pm 25 August 2021	As at 8pm 24 October 2021
Number of COVID-19 related deaths in NSW	135 (79 since 16 June 2021)	558 (502 since 16 June 2021)
Locally acquired cases reported Since 16 June 2021 In preceding 7 days In preceding 24 hours	15,684 5,740 1,029	68,166 2,123 294
Admissions to hospital Number in intensive care Number requiring ventilation	698 116 43	474 116 57

32. The evidence also included data about the effective reproductive number (known as R_eff), published by the Commonwealth Government. If this figure is less than one, COVID cases are declining and, if it is more than one, they are increasing. There are various ways of calculating the R_eff, which is often expressed to include a range to indicate the level of uncertainty about the end figure. It is a “global figure”, which looks at whole populations in a designated geographical area, rather than individual groups of people within that area. The evidence revealed the following:

Date	26 August 2021	30 September 2021	21 October 2021
Reff – Effective reproductive number	1.16 (0.54-2.45)	0.71 (0.39-1.28)	0.56 (0.30-1.03)
ICU due to COVID	115	206	125
% of ICU capacity due to COVID	14%	21%	13%

33. Dr Chant confirmed that there were several estimates of the R_eff at any given time. While she was aware of these estimates and took them into account, they were not the “key drivers for the advice in relation to [the orders].” The effect of her evidence was that the R_eff is potentially volatile. Thus, although it has decreased since 26 August 2021, it could increase in the future.

COVID-19 vaccines

34. Three vaccines that have been developed in response to the virus are available in New South Wales: the Pfizer Australia – Comirnaty BNT162b2 (mRNA) (Pfizer) vaccine (the Pfizer vaccine); AstraZeneca (Vaxzevria) ChAdOx1-S vaccine (the AstraZeneca vaccine); and the Moderna Spikevax (elasomeran) COVID-19 vaccine (the Moderna vaccine). NSW Health has arrangements in place to support health care workers to access vaccination as well as to obtain expert clinical advice through the NSW Immunisation Specialist Service, which is provided in conjunction with the National Centre for Immunisation Research and Surveillance. The TGA approvals in respect of the vaccines are set out in the following table.

Date of approval	Vaccine	Approved use
25 January 2021	Pfizer	16 years and older
15 February 2021	AstraZeneca	18 years and older
22 July 2021	Pfizer	12 years and older
9 August 2021	Moderna	18 years and older
3 September 2021	Moderna	12 years and older

COVID-19 in health care settings

35. I accept Dr Chant’s evidence as to the effects of the virus in health care settings and the protections required in such settings as follows:

“21.    From very early in the pandemic, health care settings, and hospitals in particular, have been identified as ‘high risk’ settings that require a hierarchy of controls to protect against outbreaks.

22.    Patients, by reason of their generally older age-profile as well as the presence of pre-existing comorbidities and/or acute illnesses are more vulnerable to severe health outcomes following a COVID-19 infection even if they are fully vaccinated. They are also more likely to have health conditions that prevent them from receiving the same protection from the vaccines as community members with no underlying health conditions or current medical treatment. In addition, because of their need to receive treatment for serious health conditions they may need to delay receiving or completing their recommended course of vaccination until sufficiently recovered or medically appropriate.

23.    COVID-19 outbreaks in health care settings also have significant operational impacts. Providing an adequate response to the COVID-19 pandemic for the population of NSW and ensuring continued access to non-COVID-19 related health care is highly dependent on having adequate health system capacity at all times. The impact of an outbreak where staff have been infected or are close contacts will result in a reduction in available staff to provide health care, at a minimum during the assessment, testing and isolation period following exposure, and deep-cleaning of spaces that are then unavailable for healthcare use. Patients who have been exposed will also need to be isolated and ward areas placed in lockdown having the effect that new patients cannot be admitted and alternate services would need to be rapidly established.

24.   Health care workers are at risk of acquiring infection in the community but are also at risk of infection in their day-to-day work, including from patients and from co-workers they come into close contact with.

25.    The operation of a health care service depends on several components including environmental services, food services, diagnostic services, procurement, payroll and logistics. A number of these staff will have direct contact with patients and for others by virtue of their presence on a health care site they will interact with staff that have direct patient contact. This can occur for example in areas that provide services to both staff and patients, such as food kiosks and pharmacies.

26.    A range of other health service staff may provide support services and predominantly work off-site (such as finance, administration, legal, IT and engineering) but these staff may still be required to attend healthcare facilities for meetings, site visits, inspections or otherwise in the performance of their duties. Ministry of Health staff also undertake important operational work such as a contact tracing and health system management functions. Staff may be deployed to health services as part of their role or to supplement local capacity including providing local surge staffing.

27.    Vaccination of health workers is a major factor in reducing the risk of infection and transmission to patients and other staff, thereby reducing the risk of outbreaks in health care settings and during provision of health care. The COVID-19 vaccines are effective in protecting against infection and transmission and are highly effective in preventing severe illness should infection occur, notwithstanding the effectiveness is not 100%.

28.    Requirements on health workers to vaccinate were well-established prior to the COVID-19 pandemic as a proportionate measure to mitigate the risks of infection with infectious viruses to themselves, their co-workers and patients. For example, health care workers are required to be vaccinated against, or demonstrate immunity to, hepatitis B prior to working in exposure-prone activities like surgery.

29.    That said, no one measure can completely eliminate the risk of infection with SARS-CoV-2, and a range of controls is necessary. Measures in place at public hospitals include screening workers and patients for COVID-19 symptoms, requirements for use of personal protective equipment (PPE), discouraging use of indoor communal spaces such as tea rooms, restricting visitors, and ongoing education about risk mitigation strategies. The effectiveness of these measures depends on individuals applying them consistently or correctly. The practicality of these measures, and the ability to enforce them. consistently, varies by setting. They are critical risk mitigation strategies, but they cannot replace the benefits of vaccinating health workers against COVID-19.”

36. Dr Chant elaborated on this evidence in cross-examination, as summarised below.

Dr Chant’s advice to the Minister to make the orders

37. On a number of occasions in July and August 2021, Dr Chant advised the Minister that she considered that, in the absence of medical contraindications, all health care workers should be vaccinated against COVID-19 to reduce the public health risks. In the course of giving such advice, she informed him of the matters set out above.

38. Dr Chant’s opinion that health care workers should be vaccinated arose from her concern to protect vulnerable patients as well as to prevent disruption to the orderly delivery of public health services when those in need of such services or health care workers became infected or were at risk of infection. In such cases, facilities had to be closed for deep cleaning and staff members were required to self-isolate until they tested negative. She also explained that no attempt was made to delineate the types of health care workers (apart from the exception in cl 4(1A) as introduced by the Amended Order and extracted above) who were required to be vaccinated because the transmissibility and severity of the virus, coupled with the integrated structure of the public health system which required, at times, large-scale redeployment of staff to other areas at short notice was such as to make such delineation counterproductive.

39. Although from an early stage Dr Chant considered that all health care workers ought be vaccinated (and to that end arranged for them to have priority access to the vaccine) she did not advise the Minister that it should be mandated because the supply of vaccines, including Pfizer, was limited before July 2021. However, once supply and access increased, Dr Chant considered that the time had come to require health care workers to be vaccinated. Further, she understood there to be strong support for the vaccine among health care workers and, thus, considered that the requirement would not unduly affect the supply of health services. Dr Chant gave advice to the Minister in respect of the Order, the Amended Order and Order 2.

The circumstances and consultation immediately prior to the making of the Order

40. In the fortnight leading up to 18 August 2021, there had been at least one “transmission event” every day “in NSW Health settings.” On 17 August 2021, there were almost 1,300 NSW Health staff in isolation due to potential and actual transmission events. The numbers of staff in isolation had been increasing since the Delta outbreak.

41. On 18 August 2021, the Minister held a meeting with representatives of various organisations (described as “stakeholders”), which included professional associations, including unions and health care providers, to discuss the mandatory vaccination of health care workers in New South Wales. The organisations which were represented at the meeting were the Australian Medical Association; the Australian Salaried Medical Officer Federation of NSW; the Australian Paramedics Association; the NSW Nurses and Midwives Association; the Royal Australian and New Zealand College of General Practitioners; the Australian College of Rural and Remote Medicine; Australian Catholic Healthcare; Healthscope; Healthe Care; Private Hospitals Association; Sydney Adventist Hospital; St Vincent’s Private Hospital; Ramsay Health; Day Hospitals Australia and MQ Health. Dr Chant did not attend the meeting, but sent Dr Cretikos, from the Ministry of Health, as her delegate

42. The following passage appears in the summary prepared after the meeting which was sent to those who had attended:

“A requirement for vaccination is a significant additional control measure available to health service providers in NSW to manage the risk of COVID-19 transmission in health workplaces.

NSW Health and other health care providers have a fundamental duty of care towards patients and visitors to their facilities.

NSW Health and other employers are required under Work, Health and Safety law to implement all ‘reasonably practicable control measures’ to ensure the health and safety of staff.

There was agreement among all in attendance to ensure a safe workplace for all staff who work within health care to ensure that ‘thousands’ were not required to enter isolation either due to infection or as a close contact. It was noted that the Victorian outbreak in 2020 impacted 10,000 frontline health care workers with significant consequences for access and delivery of health care.

There was universal support for all healthcare workers to require vaccination. This requirement extends to all employees of health care organisations.

The main issue for clarification was the timeline for the commencement of the requirement. The majority of attendees favoured the earliest practicable date and this was identified as 30 September for Dose 1. The caveats associated with this date related to:

●   Accessibility of vaccines in this timeframe given supply constraints

●   Deployment of information and education strategies to address concerns about vaccines for particular cohorts of the workforce

●   Availability of exemptions for staff with medical contraindications to vaccination.”

43. The summary concluded with a proposition for implementation which included a reference to the dates which were ultimately included in the Order (30 September 2021 for the first dose; and 30 November 2021 for the second dose); the acceptance that the prohibition would not apply to those with a medical contraindication; and the requirement for employees to provide evidence of vaccination. The proposition also said:

“Employees who are unable to provide evidence that they have received a first dose of a vaccine by 30^th September will be excluded from their workplace. The resolution of the employment status of excluded employees will occur in line with each organisation’s industrial arrangements.”

44. The NSW Government prepared a document entitled “Unvaccinated Workforce Risk” as at 30 September 2021, which set out the effect of the Order on the provision of health care services in New South Wales. The document recorded that of the 185,641 total NSW Health staff as at that date, 4,917 (2.65%) were unvaccinated. The document graded the risk of impact by reference to metropolitan and regional areas, as well as by reference to service type (for State-wide services such as the Ambulance Service of NSW and Ministry of Health) as follows:

Risk	Meaning
Low	Nil services impacted
Medium	At least one service impacted, less than 5% overall loss
High	Multiple services impacted or greater than 5% loss

45. All State-wide services as well as the Ministry of Health were assessed as low risk. All Local Health Districts (LHD) in New South Wales were assessed as low risk apart from the following:

Local Health District	Risk
South Western Sydney	Medium
Far West	Medium
Hunter New England	High
Murrumbidgee	Medium
Northern New South Wales	High
Southern New South Wales	High
Western New South Wales	Medium

46. The document further analysed the nature of the impacts. For example, South Western Sydney LHD was rated as medium risk because its interpreter service was affected. It was estimated that, as at 30 September 2021, 14.5% of interpreters (47 people) would remain unvaccinated across particular language groups. The steps to be taken in mitigation were identified as follows:

“Challenge relates to specific languages, and the District is attempting to identify availability [of interpreters] through agencies.”

47. The Murrumbidgee LHD was rated as medium risk because a Full-time Equivalent of 4.2 registered and enrolled nurses who work at the Deniliquin District Hospital (a 41-bed hospital) had elected not to be vaccinated. The steps to be taken in mitigation included:

“Staffing from alternative areas, including the District redeployment list is being investigated.”

48. Southern NSW LHD was rated as high risk as 504 (11.8%) of the staff were expected not to have received their first vaccination by 30 September 2021. Of the 504, 161 were permanent staff and 343 were agency, casual or contingency workers. The document included under the heading, “Risk identified”:

“Midwives at Cooma – two staff seeking exemption due to pregnancy. Not expected to be approved. A further 2 agency staff are choosing not to be vaccinated.”

49. The steps in mitigation included referral and transfer of birthing from Cooma to Queanbeyan.

50. On 22 October 2021, Dr Chant approved a brief to the Minister recommending that he approve and sign the draft order, which became Order 2. As she explained, it was necessary to remake the order since the Order would have expired prior to 30 November 2021, which was the date by which all health care workers were required to have their second vaccine dose.

Dr Chant’s oral evidence

51. Dr Chant was cross-examined at length about the rationale for the orders and the available data at particular times. She accepted that if someone had been vaccinated once, it was reasonable to assume that the person would proceed to be fully vaccinated.

52. The following data are established from her evidence in combination with the documents tendered by the plaintiff.

1. As at 25 August 2021, of the 181,663 total NSW Health staff, 80% had received at least one vaccination and 74% had been fully vaccinated;

2. As at 25 August 2021, of the 5,507 ambulance staff (which I infer included the plaintiff), 82% had received at least one vaccination and 75% had been fully vaccinated, leaving 995 ambulance staff who had not received any vaccination;

3. As at 29 September 2021, of the 185,692 total NSW Health staff, 94% had received at least one vaccination and 87% had been fully vaccinated;

4. As at 29 September 2021, of the 5,687 ambulance staff (which I infer included the plaintiff), 96% had received at least one vaccination and 89% had been fully vaccinated, leaving 216 (4% of the total) who had not received any vaccination;

5. As at 22 October 2021, of the 185,885 total NSW Health staff, 97% had received at least one vaccination and 93% had been fully vaccinated, leaving 4,995 (3% of the total), who had not received any vaccination; and

6. As at 22 October 2021, of the 5,723 ambulance staff (which I infer included the plaintiff), 97% had received at least one vaccination and 92% had been fully vaccinated, leaving 155 (3% of the total), who had not received any vaccination.

53. The greatest single daily increase in vaccinations of NSW Health staff occurred between 23 and 24 August 2021. Having regard to the publicity given to the Minister’s public statements about the need for NSW Health staff to be vaccinated, I infer that the proposed public health order motivated many NSW Health staff to get vaccinated.

54. In New South Wales, the public health response to the virus took two forms: policy and social measures (such as social distancing, mask-wearing, contract tracing, lockdowns and other restrictions) on the one hand; and vaccination, on the other. The greater the take-up rate of vaccination, the fewer policy and social measures were required. Thus, once the vaccination rate reached 70%, there was a lessening of restrictions and a further lessening when the vaccination rate reached 80%. This corresponded with the transition of New South Wales to a “living with COVID” model, which requires high vaccination rates in the community. However, because the vaccination rates were not uniform throughout New South Wales, account had to be taken of the variation when lifting restrictions.

55. The consequences of outbreaks in health facilities are particularly dire: first, the people in those facilities were likely to include those in the most vulnerable group who could not be effectively protected by a vaccine against the virus; second, the staff employed at the facility could become infected and transmit the virus to patients and to the wider community; and third, such outbreaks would lead to the need to quarantine staff, deep-clean facilities and transfer staff from other areas in order to make sure that the re-opened facility could continue to operate. As to the third matter, Dr Chant referred to the “organisational disruption that has occurred [which] can also have significant impacts outside COVID care.”

56. Dr Chant said that even when vaccination rates had reached high levels, it was still necessary to guard against the risk to those persons who were vulnerable either because of their age or health condition since the vaccine was not as effective to protect them against the virus. Thus, if such people became infected, the potential consequences were much more serious than in the healthy population because of their high degrees of morbidity and mortality. As such people were disproportionately in need of health services, Dr Chant saw the requirement that workers who provide health services be vaccinated as appropriate to ameliorate the risk to those people. She described as “tragic” the deaths that were the result of infections in hospitals, aged care facilities or other public health institutions.

57. Dr Chant explained that the public health orders were additional control measures to protect the most vulnerable members of the community, for whom vaccination provides lesser protection and who suffer from greater rates of morbidity and mortality if infected. She confirmed that before the Order was amended, she was asked whether it was safe to exempt the category of workers who did not provide a health service and were not physically present at relevant locations, and advised that it was reasonable to exempt such persons.

58. Dr Chant gave advice to the Minister about the orders and was consulted about various aspects of their wording (which was drafted by Government lawyers). She regarded the grounds as having been better articulated in Order 2 than in Order 1 and considered that the grounds expressed in Order 2 represented an adjustment to the language to more accurately reflect the change in context from a pandemic to an endemic, with which the community would continue to live.

59. Dr Chant was cross-examined about why NSW Health staff members were required to be vaccinated but that there had been no public health order requiring other health practitioners, say, general practitioners and pharmacists, to be vaccinated. She explained that many private health practitioners also worked in the public health system and in private hospitals and would be covered by the orders. However, for those who were not, I understood her to say that whereas NSW Health had conducted an analysis as at 30 September 2021 (the Unvaccinated Workforce Risk document referred to above) to ensure that health services could continue to be provided to an acceptable level if the order was made prohibiting staff from working unless they had received a vaccination by 30 September 2021, no such analysis had been undertaken with respect to private health practitioners, such as general practitioners. Thus, although her view was that persons in those categories ought to be vaccinated, she was not confident that health services could continue to be provided to an adequate level if persons within those categories were prohibited from practising unless double-vaccinated.

60. Dr Chant was also cross-examined about why there was no public health order requiring the families and close contacts of health care workers to be vaccinated. She responded by saying that NSW Health had repeatedly stressed the importance of such people being vaccinated and directed targeted messaging to those groups.

61. Mr Prince put to Dr Chant that, given that she was prepared to exempt those with a medical contraindication, she would have to accept that less than 100% compliance with vaccination constituted an acceptable risk. In response, she explained that an exemption on the basis of medical contraindication was difficult to obtain and, in most cases, was temporary and arose from the person’s having been infected by the virus. Infection provides some immunity from the virus in the absence of vaccination, which is contraindicated for a particular period after infection to ensure maximum efficacy of the vaccine and to permit the person to recover from the virus. Thus, persons in such a category did not pose the same risk as that posed by uninfected, unvaccinated health care workers. I note from the Unvaccinated Workforce Risk document referred to above that pregnancy was regarded as unlikely to warrant an exemption on the grounds of medical contraindication.

The plaintiff

62. The plaintiff was not cross-examined. In his affidavit evidence, he described himself as a practising Catholic, who is the father of six dependent children. He was first employed as a paramedic by the Ambulance Service of NSW (now the NSW Ambulance Service) in 1996 and has been continuously employed by the NSW Ambulance Service ever since. He has decided not to be vaccinated as he believes that the AstraZeneca vaccine may be the product of research, testing and production processes developed from cell lines derived or sourced from the foetus of an aborted child and abortion is against his religious beliefs. He believes that the Pfizer and Moderna vaccines may have been developed using stem cell research, to which he has a similar objection.

63. He has annexed to his affidavit material disseminated by the Catholic Church which authorises Catholics to be vaccinated. For example, in one such publication, the Pope authorised a note on the morality of using COVID-19 vaccines which said:

“The fundamental reason for considering the use of these vaccines morally licit is that the kind of cooperation in evil (passive material cooperation) in the procured abortion from which these cell lines originate is, on the part of those making use of the resulting vaccines, remote . The moral duty to avoid such passive material cooperation is not obligatory if there is a grave danger, such as the otherwise uncontainable spread of a serious pathological agent -- in this case, the pandemic spread of the SARS-CoV-2 virus that causes Covid-19. It must therefore be considered that, in such a case, all vaccinations recognized as clinically safe and effective can be used in good conscience with the certain knowledge that the use of such vaccines does not constitute formal cooperation with the abortion from which the cells used in production of the vaccines derive. It should be emphasized, however, that the morally licit use of these types of vaccines, in the particular conditions that make it so, does not in itself constitute a legitimation, even indirect, of the practice of abortion, and necessarily assumes the opposition to this practice by those who make use of these vaccines.”

[Emphasis added.]

64. Thus, the plaintiff’s religious beliefs, which I accept are genuinely held, would appear to depart from public statements made by the Catholic Church in response to the pandemic. He was, aptly, described by his counsel as a “conscientious objector”, that is, his objections to the vaccine derive from his own conscience.

65. The plaintiff tendered material which established that the Paramedicine Council of New South Wales (the Council) has suspended his right to practice as a paramedic on the basis of complaints (which are still to be investigated) that he has made a number of public statements about vaccination which do not accord with accepted learning about the vaccines.

66. In its statement of reasons for the suspension, dated 7 October 2021, the Council said:

“The Ahpra [Australian Health Practitioner Regulation Agency] and National Board’s position statement of 9 March 2021 (Registered health practitioners and students and COVID-19 vaccination) states that ‘Any promotion of antivaccination statements or health advice which contradicts the best available scientific evidence or seeks to actively undermine the national immunisation campaign (including via social media) is not supported by National Boards and may be in breach of the code of conduct and subject to investigation and possible regulatory action’ (p. 3, emphasis added).

We note that when a paramedic makes public comment of the nature and breadth undertaken by Mr Larter, the public would reasonably believe those comments to hold some professional or clinical or scientific weight and standing. However, Mr Larter’s commentary appears to have been made without Mr Larter informing himself of the accepted and necessary scientific, professional or clinical information in the relevant areas. We also could not find evidence that Mr Larter has undertaken relevant studies at university, or even through CPD activities, which would give any confidence that his comments are informed by scientific, clinical or professional norms.

On the information currently before us we are of the same view as that expressed by complainants that Mr Larter’s commentary, made as a registered healthcare professional and sometimes conspicuously in uniform as a paramedic, would undermine public confidence in the vaccination campaign in the Riverina region.

Our discussions with Mr Larter cause us to have significant concerns that he does not understand nor accept that as a registered paramedic he has obligations to act in accordance with the Code of Conduct and associated guidelines. Mr Larter’s attitude towards authority whether that be his employer, the government, the National Board or the Council, appears to be dismissive and distrustful and he appears to believe he only needs to comply with those directions that he agrees with, and which align with his concept of ‘common sense’. His conduct towards and attitude to the other health professionals he is required to engage with in fulfilling his duties is also of concern to us.”

[Emphasis in original.]

67. In its conclusions, the Council also said:

“We find the nature of Mr Larter’s alleged conduct (anti-government and public health messaging via media/social media) and the associated risks to the public interest and public health and safety, particularly given the urgency and immediacy of the public health crisis that the COVID-19 pandemic is presenting, to be serious and unacceptable.”

68. The plaintiff’s evidence established that he was on unpaid leave from 16 September 2021 and on paid sick leave since 20 September 2021 (although there was no suggestion that he was physically unfit for duties because of sickness).

69. The plaintiff’s unchallenged evidence was that, before his right to practise was suspended by the Council, 20-25% of the incidents he attended as a paramedic involved transportation of patients of the most vulnerable kind (older patients, those with pre-existing co-morbidities, and those with acute illnesses).

70. Although it would appear from the plaintiff’s evidence that he does not accept the scientific evidence which supports the efficacy of the vaccines used to prevent the spread of the virus, Mr Prince conducted the plaintiff’s case on the basis that the plaintiff had no objections to the vaccinations per se, but that he was not prepared to be vaccinated because of his own beliefs. I accept that this forensic decision by the plaintiff does not adversely reflect on his credibility, which was not challenged.

Consideration

71. The plaintiff challenges the orders on the following basis:

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;

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

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

3. 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.

72. Mr Prince accepted that (6) had been determined adversely to the plaintiff by Beech-Jones CJ at CL in Kassam (at [199]) and that I would be bound to follow Kassam. Accordingly, he put argument (6) formally, to preserve the plaintiff’s rights on appeal to reargue the correctness of Kassam.

73. Mr Prince submitted that the orders were legally unreasonable as they were not “logically targeted” and were “not proportionate to the risks they purport to mitigate.” He submitted that the effect of the orders was to “compel members of a targeted cohort of the population to be vaccinated, in circumstances where vaccination of those health care workers not already vaccinated [is] mathematically irrelevant.”

74. He submitted that the change in articulation of the grounds between the Order and Order 2 was significant because it revealed the unreasonableness of the orders, which continued the vaccination requirement notwithstanding the reduction in COVID-19 cases and the substantial increase in vaccination, both of NSW Health staff and the general public, between the making of the Order and the making of Order 2, which led to the order no longer being necessary.

75. Further, Mr Prince submitted that the effect of the Order and Order 2 was unreasonable because they targeted the very small percentage of health care workers who did not propose to be vaccinated in circumstances where the intrusion into their individual rights was not warranted, having regard to the high rates of vaccination both in the general community and among health care workers, together with the circumstance that the orders did not require private practitioners to be vaccinated unless they provided services within NSW Health.

76. Mr Prince also relied on the principle of legality in support of his submission that the Court ought not lightly find that the plaintiff’s right to work had been abrogated in the absence of irresistibly clear words and necessary intendment: Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15.

The nature and limits of the Court’s jurisdiction

77. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin) at 35-41; [1990] HCA 21, Brennan J explained that the Court’s function is to adjudicate on the legality of the administrative action (the making of the order), not its merits. Where the ground of legal challenge is unreasonableness, some investigation of the merits of the decision is necessary but the limitation in the Court’s ability to review the merits is “extremely confined” (at 36). His Honour said, at 35:

“Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.”

78. His Honour said, of the Court’s limited role, at 37:

“[T]he court needs to remember that the judicature is but one of the three coordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered.”

79. Griffiths J in Athavle v State of New South Wales [2021] FCA 1075 (a challenge to three subordinate legislative instruments including the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), also referred to as the Delta lockdown order) observed at [20] that this kind of order “represents an attempt at balancing competing interests and considerations”.

The principle of legality as an aid to construction of the Act

80. The object of s 7 is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions: Australian Securities and Investments Commission v DB Management (2000) 199 CLR 321; [2000] HCA 7 at [43] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). It is of even less assistance in the present context when the question is whether it was open to the Minister to make a particular order under s 7, which plainly depends on the circumstances and the reasonableness of the order to address the risk to public health.

The ambit of the Order before its amendment

81. I do not regard the change in the expression of the grounds between the Order and Order 2 as material. The key ground is expressed in cl 3(b) of the Order (“COVID-19 is a potentially fatal condition and is highly contagious”). Everything else would appear to flow from this single ground, which is at the heart of the public health risk. The “reasonable grounds” in s 7(1) of the Act are grounds for considering that a situation has arisen that is, or is likely to be, a risk to public health. The words “reasonable grounds” do not relate to the reasonableness of the action or order which the Minister takes (under s 7(2)) to deal with the risk and its possible consequences. Further, there is no legislative requirement that the Minister identify the grounds in the order. Although Mr Kirk did not accept that the statement of grounds was merely “window dressing”, he did not contend that it had any effect, other than to inform the reader as to the background to the order. In any event, there was no suggestion that this Court was limited to the grounds as expressed in any order when addressing the question of reasonableness, although they are plainly relevant.

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.

84. I reject the distinction sought to be drawn by Mr Prince between “public health risks” (unvaccinated health care workers coming into contact with vulnerable patients) and “operational, logistical business risks” (the need to relocate employees while others are having to self-isolate as a result of potential infection). Both of these risks pertain to public health since the available employees are the ones who are responsible for providing public health services to patients, whether in a COVID-19 ward or elsewhere. I accept Mr Kirk’s oral submission:

“This COVID concern is not just about treatment of COVID.  It may mean that you’re pulling out people who have nothing to do with treating COVID in hospital, but they’re endocrinologists or they’re intensivists, who don’t work on COVID or they’re in the casualty section or they’re nurses or they’re cleaners, all of them are essential.”

85. For the same reason, I reject Mr Prince’s emphasis on the distinction between public health risks (risks to patients) and health and safety risks (to the workers who provide health services). While there is clearly a distinction, the two concepts are related and there is a significant overlap. Where workers cannot work because of, say, being infected with the virus or having to self-isolate because of possible infection, this can inhibit NSW Health’s capacity to care for and treat patients, which, in turn, creates a risk to public health.

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.

87. It is plain from the plaintiff’s evidence and the submissions which have been made by Mr Prince on his behalf that the plaintiff is aggrieved because his private interests have been overridden (and, from the plaintiff’s perspective, sacrificed) by the Minister’s concern for the public interest in public health. The Order, the Amended Order and Order 2 require the plaintiff to choose (if it be a choice) between abiding by the dictates of his conscience and continuing to practise in his chosen occupation. The dictates of his conscience do not relieve him from complying with, or being bound by, valid orders: Chief of Defence Force v Gaynor (2017) 246 FCR 298; [2017] FCAFC 41 at [122] (Perram, Mortimer and Gleeson JJ).

88. The Minister is the person whom Parliament chose to be the repository of the power. Although the Minister did not give evidence (about which no adverse inference can be drawn, for the reasons given in Kassam at [134]), Dr Chant gave extensive evidence by affidavit and in cross-examination. She was the progenitor of the orders and the person who persuaded the Minister that it was necessary to make them to protect public health in New South Wales at a time when their making would not unduly compromise NSW Health’s capacity to deliver health services if workers were required to be double-vaccinated.

89. The evidence which Dr Chant gave of her reasons and her thought-processes provided a comprehensive explanation of the rationale for the orders. When the decision sought to be impugned is “a matter of opinion or policy or taste it may be very difficult to show” legal unreasonableness because, in such cases, the decision-maker (in this case, the Minister) “will be left with a very wide discretion which cannot be effectively reviewed by the courts”: Buck v Bavone (1976) 135 CLR 110 at 119 (Gibbs J); [1976] HCA 24. Dr Chant’s articulation of the rationale for the orders in her affidavit evidence and her responses to Mr Prince’s cross-examination was a model of reasonableness. She was able to explain, on a scientific basis, why the Order, the Amended Order and Order 2 had been made, why they were made when they were made, and why the lines had been drawn where they had. Although Dr Chant was an adviser, and not the repository of the power to make orders conferred by Parliament, it was open to the Minister to accept her advice and make the orders she recommended that he make, as in fact occurred.

90. I am satisfied on the basis of Dr Chant’s evidence, that it was reasonably open for the Minister to make the Order in both its original and amended form, subject to the issue of timing, which will be addressed below.

The effect of the Order beyond the 90-day period

91. Mr Prince argued, as referred to above, that the Minister could not make an order under s 7 of the Act which had an effect beyond 90 days. Accordingly, on that basis, he submitted that the Order was invalid because it purported to require workers not only to have had one vaccination by 30 September 2021, but also to have had two vaccinations by 30 November 2021, which was outside the 90-day period, which expired on about 24 November 2021.

92. The effect of s 7(5) is that the direction in the Order preventing workers from working unless double-vaccinated by 30 November 2021 could not become operative since the 90-day period expired on about 24 November 2021. If another order to the same effect was made in the interim (as occurred when the Amended Order and Order 2 were made), that order would be effective if 30 November 2021 fell within its 90 days of operation. I am not persuaded that the inclusion in the Order of the direction rendered the Order invalid. The Minister’s evident purpose 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.

The alleged permanent effect of time-limited orders

93. As referred to above, Mr Prince also argued that the plaintiff would not obtain the benefit of the 90-day limitation if his employment were terminated as a consequence of his not being vaccinated by the deadlines specified in the orders. In other words, it would be cold comfort to him that Order 2 would lapse 90 days after its making because, as far as he was concerned, the damage would be done when his employment was terminated as a result of his not being able to perform work after 30 September 2021.

94. The effect of s 7(5) is an important constraint on the power under s 7(2) to make orders. The power conferred on the Minister is very broad. Orders are not subject to disallowance by Parliament since they are not statutory rules and do not need to be laid before Parliament (although Parliament, being sovereign, can always legislate to render orders of no effect or to remove the power under s 7 from the Minister: s 43 of the Interpretation Act 1987 (NSW)). The 90-day time limit requires the Minister to review the need for an order within that period and make another order if the continuing risk to public health was thought to require it.

95. It is important in this context to note that the orders make no provision for the termination of the services of workers who are prevented from working by reason of not having been vaccinated, although this was the effect of statements made by the Minister in the course of daily press conferences. The orders are concerned with preventing those who were not vaccinated from working for NSW Health (except in certain limited circumstances). The way the Minister chose to achieve this policy objective was to impose time limits on vaccination and to do so with fair warning so that workers could comply if they were minded to do so. As referred to above, it may be accepted that the effects on the plaintiff of not being vaccinated are grave and, potentially, far-reaching and permanent. However, this is the inevitable consequence of the breadth of the power in s 7, the risk posed by the virus, and the Minister’s decision (based on Dr Chant’s advice) as to the appropriate way of dealing with the risk. It does not follow from the fact that under s 7(5) an order remains operative for no more than 90 days, that the consequences of an order cannot be permanent, that they may not be extended for a further 90 days, or until the risk against which they are designed to guard has been sufficiently ameliorated.

96. I reject Mr Prince’s argument that the orders are invalid on this ground.

Alleged inconsistency with the ICCPR

97. As referred to above, Mr Prince confirmed that the arguments about inconsistency with Australia’s international obligations under the ICCPR were solely put formally to preserve the plaintiff’s rights on appeal.

98. The defendant (through his junior counsel, Mr Thomas Prince) submitted that it was not necessary to address the extent to which, if at all, the ICCPR was to be taken into account in the construction of s 7 of the Act, because the orders did not infringe any of the articles of the ICCPR, even had it been implemented and formed part of Australian law (which it was common ground that it had not and did not).

99. I accept the Minister’s submission that art 17(1) of the ICCPR (“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”) did not apply because, as Beech-Jones CJ at CL found in Kassam at [271], the orders did not provide for compulsory medical treatment by way of vaccination.

100. I reject the plaintiff’s submission that the orders infringe art 18 of the ICCPR, which provides for freedom of religion and religious expression, since these rights are subject to an exception in art 18(3) that the freedom may be subject to limitations which are necessary to protect public health, as I have found the limitations imposed by the orders to be. For the same reasons, an infringement of art 19 (which protects freedom of thought and expression) has not been established since it is subject to the same exception. 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. Further, and in any event, Australia has an obligation under art 12 of the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics, as addressed in Kassam at [199]. In these circumstances, it is not necessary to address the question whether Australia’s international obligations can be used to construe not only Commonwealth legislation, but also State legislation.

101. Nor is it necessary to address the statement of the Pope extracted above which would appear to permit Catholics such as the plaintiff to become vaccinated with a clear conscience.

Other relief sought

102. The plaintiff seeks, in addition to declaratory relief that the orders are invalid (and associated injunctive relief against the defendants), declarations that from 30 September 2021 he had a reasonable excuse within the meaning of s 10 of the Act to fail to comply with the directions (that he not work if unvaccinated). It is not appropriate that such a question be determined in the abstract in the absence of a charge under s 10 and concrete facts by reference to which the question may be assessed: cf. Taikato v The Queen (1996) 186 CLR 454 at 466-467 (Gaudron J); [1996] HCA 28, where the facts had been found by the primary judge and the appellant had been convicted of an offence of possession of a prohibited item in a public place.

Conclusions regarding relief

103. For the reasons given above, I am not persuaded that the plaintiff has made out his claim for any of the relief claimed. A summary of my conclusions regarding the relief claimed is set out below.

104. I refuse the claim for declarations in prayers 1, 1A and 4 as I am satisfied that it was reasonably open to the Minister to make the Order, the Amended Order or Order 2. For the same reasons, I refuse the claim for injunctions in prayers 5, 6 and 7. Even had I made declarations as sought by the plaintiff, I would not have been persuaded that injunctions were required as the Minister and the other defendants could be expected to give effect to the rights as established by the declarations, had they been made.

105. I refuse the claim for declarations in prayers 2, 2A and 3 as the question of what constitutes a reasonable excuse for non-compliance ought not be determined in the abstract and no occasion for its determination has yet arisen as the plaintiff has not been charged with an offence under s 10 of the Act. There is no suggestion that the plaintiff has worked as a paramedic after 30 September 2021. He has been suspended from practice and is on paid sick leave.

106. I refuse the claim for declaratory relief in prayer 10 on the basis of an alleged infringement of the ICCPR for the reasons given above which are, in summary, that no infringement has been established and the ICCPR does not, in any event, form part of Australian law, having not been implemented.

107. As the plaintiff has failed in respect of each of his claims for relief, the further amended summons ought be dismissed.

Costs

108. The plaintiff asked me to reserve the question of costs. Accordingly, the only costs order I will make is that costs be reserved.

Orders

109. For the reasons given above, I make the following orders:

1. Dismiss the further amended summons filed on 5 November 2021.

2. Reserve the question of costs.

3. Direct that any party who seeks, or resists, an order for costs, apply in writing to my Associate within seven days, following which directions will be made with a view to the application being determined on the papers, unless an application that it be heard orally is made and granted.

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Decision last updated: 10 November 2021