Varnhagen v State of South Australia (No 2) - [2022] SASCA 118

Supreme Court of South Australia
(Court of Appeal: Civil)
VARNHAGEN & ANOR v STATE OF SOUTH AUSTRALIA & ORS (No 2)
[2022] SASCA 118
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
15 November 2022
STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - GENERAL LEGISLATIVE POWERS
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - GENERAL PRINCIPLES
Appeal against a decision of a judge of the Supreme Court.

The appellants filed an originating application for review challenging the lawfulness of the Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction 2022 (‘Seventh Healthcare Setting Direction’) issued in response to the COVID-19 pandemic. This direction was purported to have been made under s 25 of the Emergency Management Act 2004 (SA), following the declaration of a major emergency. It prohibited the appellants, both nurses, from working at their places of employment, unless they had received at least one COVID-19 vaccine, had received or made a booking to receive a second dose of the vaccine and would then receive or make a booking to receive a third dose within the prescribed time. Neither appellant met these requirements.
On 24 May 2022, whilst proceedings were underway, the declaration of a major emergency was revoked, and the South Australian Public Health (COVID-19) Amendment Act 2022 (SA) (‘Amendment Act’) was enacted. A transitional provision in the Amendment Act, cl 2(1) of sch 2, purported to continue a relevant direction ‘apparently in force’ under the Emergency Management Act, as a direction under section 90C of the South Australian Public Health Act 2011 (as inserted by the Amendment Act).
The respondents successfully applied for the appellants’ originating application for review to be summarily dismissed, on the ground that it ceased to have utility following the passing of the Amendment Act.
On appeal, the appellants contended that the primary judge erred in holding that cl 2(1) of sch 2 of the Amendment Act, read together with the definition of ‘relevant direction’ in cl 1, was constitutionally valid, in that:
•the provisions, on their proper construction, had the effect of taking from the Supreme Court of South Australia power to grant relief in relation to the Seventh Healthcare Setting Direction on account of jurisdictional error and therefore were beyond State legislative power; and
•alternatively, the provisions, on their proper construction, constituted a direction from the Parliament of South Australia to the Supreme Court of South Australia to treat that which may be invalid (the Seventh Healthcare Setting Direction) as valid and thereby constituted an impermissible interference with the exercise of judicial power by that Court.

By a Notice of Alternative Contention, the first and second respondents contended that if the primary judge erred in concluding that sch 2 of the Amendment Act is valid, the proceedings should be remitted to the primary judge, because the transitional provisions:
•on proper construction, only operated upon a valid direction under the Emergency Management Act; and/or
•in accordance with the partial disapplication principle, have a partially valid operation in respect of relevant directions that were previously valid under the Emergency Management Act.
Held (by the Court), dismissing the appeal:
1.A court charged with determining whether the last relevant emergency declaration was ‘apparently in force’, is able to do so by reference to the ordinary incidents of that descriptive factum in the context in which it is deployed. Having regard to the purpose of cl 2(1), those incidents are captured by the indicia identified by the primary judge, being that the declaration was styled as a notice issued under the Emergency Management Act; the declaration was promulgated as having been issued by the State Co-ordinator; and the declaration asserted that it had legal force.
2.The phrase ‘apparently in force’, read in context, is nothing more than a descriptive factum that has no bearing on the underlying question of actual validity of the declaration. In interpreting that descriptive factum, the Court is not tasked with determining what the law was, or even what it may have been. While the choice of the word ‘apparently’ was unusual, the phrase is not incapable of objective application. Neither does its interpretation require a legislative act by the Court.
3.Clause 2(1) does not constitute an impermissible direction to the Court to treat that which might be invalid as valid. The most that can be said is that Parliament had prospectively deemed the commands contained in the Seventh Healthcare Setting Direction to be within the scope of administrative authority under s 90C of the Amendment Act.
4.As there is no defect or potential defect in validity on the construction adopted, it would not be appropriate to hypothesise as to the kind of defect that might be said to engage either approach contended for in the Notice of Alternative Contention.

Commonwealth Constitution s 75(v); Emergency Management Act 2004 (SA) ss 2, 3, 5A, 6, 15, 22, 23, 24, 24A, 25; Judiciary Act 1903 (Cth) s 78B; South Australian Public Health Act 2011 (SA) ss 90C, 90E; South Australian Public Health (COVID-19) Amendment Act 2022 (SA) ss 90A, 90B, 90C, 90D, 90E, 90G; sch 2, cls 1, 2, 3; Uniform Civil Rules 2020 (SA) rr 151.1(2), 213.1(c), referred to.
A v Independent Commissioner against Corruption (2014) 88 NSWLR 240; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Australian Education Union v Fair Work Australia (2012) 246 CLR 117; Baker v The Queen (2004) 223 CLR 513; Barton v R (1980) 147 CLR 75; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372; Clubb v Edwards; Preston v Avery (2019) 267 CLR 171; DPP v Patrick Stevedores (2012) 41 VR 81; Duncan v Independent Commissioner Against Corruption (2015) 256 CLR 83; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Lipohar (1999) 200 CLR 485; North Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; Re Macks; Ex parte Saint (2000) 204 CLR 158; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108; Varnhagen & Ors v The State of South Australia & Anor (No 2) [2022] SASC 118; Wainohu v New South Wales (2011) 243 CLR 181, considered.

VARNHAGEN & ANOR v STATE OF SOUTH AUSTRALIA & ORS (No 2)
[2022] SASCA 118
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: On 27 September 2022, a judge of this Court summarily dismissed the appellant’s originating application for review, having determined three agreed questions of law adversely to the appellant. This appeal from that decision challenges the judge’s conclusions on two of those questions of law, the effect of which was that cl 2(1) of sch 2 of the South Australian Public Health (COVID-19) Amendment Act 2022 (SA) (‘Amendment Act’) is valid.
Clause 2(1) of sch 2 is a transitional provision. It provides to the effect that on the cessation of the last emergency declaration pursuant to s 23 of the Emergency Management Act 2004 (SA) in respect of the outbreak of COVID-19 in South Australia, a relevant direction (as defined in cl 1) continues in force as a direction under s 90C of the South Australian Public Health Act 2011 (SA) (‘Public Health Act’) (as inserted by the Amendment Act). That is so whether or not it is a direction of a kind that could be made under s 90C as in force after the commencement of the Amendment Act.
Ground 1 of the Notice of Appeal complains that the primary judge erred in holding that cl 2(1) of sch 2 of the Amendment Act, read together with the definition of ‘relevant direction’ in cl 1, was constitutionally valid, in that:
·the provisions, on their proper construction, had the effect of taking from the Supreme Court of South Australia power to grant relief in relation to the Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction 2022 (‘Seventh Healthcare Setting Direction’) on account of jurisdictional error and therefore were beyond State legislative power; and
·alternatively, the provisions, on their proper construction, constituted a direction from the Parliament of South Australia to the Supreme Court of South Australia to treat that which may be invalid (the Seventh Healthcare Setting Direction) as valid and thereby constituted an impermissible interference with the exercise of judicial power by that Court.
The first and second respondents have filed a Notice of Alternative Contention, advancing the ground that in the event that the primary judge erred in concluding that sch 2 of the Amendment Act is valid for the reasons given, the proceedings should be remitted to the primary judge to determine whether or not the Seventh Healthcare Setting Direction was validly made under the Emergency Management Act. They contend that this is because the transitional provisions:
·on proper construction, only operate upon a valid direction under the Emergency Management Act; and/or
·in accordance with the partial disapplication principle, have a partially valid operation in respect of relevant directions that were previously valid under the Emergency Management Act.
On 14 October 2022, Bleby JA granted leave to appeal on Ground 1 in so far as it was required. The appeal was listed in an expedited fashion. It is probable that beyond 23 November 2022, the appeal proceedings would cease to have utility, because s 90E of the Public Health Act, as inserted by the Amendment Act, will cause the relevant direction the subject of the challenge to expire.
On 24 October 2022, the appellants filed an Amended Notice of Appeal, being Appeal or Review Grounds (Revision 1). This document adds grounds of appeal against the separate judgment of the primary judge with respect to costs in this matter.[1] Leave to appeal is required on Ground 2 pursuant to r 213.1(c) of the Uniform Civil Rules 2020 (SA). The grant of leave on Ground 1 did not extend to a further ground against a separate costs judgment not then articulated, and on which the respondents were necessarily not heard. This judgment concerns Ground 1 only.
[1] Varnhagen & Ors v The State of South Australia & Anor (No 2) [2022] SASC 118.
Background
The following account of the background facts is drawn from the judgment of the primary judge. Those facts were not in contention.
COVID-19
COVID-19 is a respiratory disease caused by SARS-CoV-2, which first emerged as a human pathogen in China. The virus takes over the machinery of the body’s cells, replicating and spreading throughout the body. It is associated with severe respiratory illness in some infected individuals.
The World Health Organisation declared COVID-19 a pandemic on 11 March 2020.
The original virus is known as the Wuhan-Hu-1 strain. Different isolates of SARS-CoV-2 have emerged over time as the virus has spread. Millions of infections have occurred. Variants arise from random mutations. Those variants which increase the success of the virus become dominant strains.
By September 2021, the Delta variant of COVID-19 was almost the exclusive strain involved in community transmission in Australia. The transmissibility of the Delta strain was greater than that of predecessor strains. This strain was responsible for more infections and deaths globally than earlier strains.
In November 2021, the Omicron variant was identified and classified as a ‘variant of concern’, because of its significant transmissibility capability. By January 2022, the Omicron variant of COVID-19 was almost the exclusive strain of COVID-19 involved in community transmission in Australia.
Vaccines
Currently available COVID-19 vaccines are based on the viral spike protein used by the virus to bind to the receptors on the cells in the human upper respiratory tract. These vaccines induce the immune system to make neutralising antibodies against the spike protein, inhibiting the virus attaching to the receptors.
To be used in Australia, vaccines must be approved, or at least provisionally approved, by a Commonwealth regulatory body, the Therapeutic Goods Administration (‘TGA’). The TGA has approved five vaccines for use in Australia: Comirnaty (Pfizer), Vaxzevria (AstraZeneca), Spikevax/Takeda (Moderna), Nuvaxovid (Novavax) and Covid-19 Vaccine Janssen (Janssen-Cilag).
The Emergency Management Act
The Emergency Management Act purports to be the source of power for the making of the Seventh Healthcare Setting Direction and the approvals. Relevantly, that Act contains the following provisions.
Section 2 identifies the objects and guiding principles of the Act:
(1)     The objects of this Act are—
(a)     to establish an emergency management framework for the State that—
(i)promotes prompt and effective decision-making associated with emergencies; and
(ii)makes provision for comprehensive and integrated planning in relation to emergencies; and
(b)     to promote community resilience and reduce community vulnerability in the event of an emergency.
‘Emergency’ is defined by s 3 as:
… an event (whether occurring in the State, outside the State or in and outside the State) that causes, or threatens to cause-
(a)     the death of, or injury or other damage to the health of, any person; or
(b)     the destruction of, or damage to, any property; or
(c)     a disruption to essential services or to services usually enjoyed by the community; or
(d)     harm to the environment, or to flora or fauna;
A drafter’s note to this definition provides:
This is not limited to naturally occurring events (such as earthquakes, floods or storms) but would, for example, include fires, explosions, accidents, epidemics, pandemics, emissions of poisons, radiation or other hazardous agents, hijacks, sieges, riots, acts of terrorism and hostilities directed by an enemy against Australia.
Section 6 establishes the State Emergency Management Committee (‘SEMC’). This comprises a presiding member (being the chief executive of the government department that has responsibility for administering the Emergency Management Act), the State Co-ordinator and other persons appointed by the presiding member. The functions of the SEMC include the preparation and maintenance of a State Emergency Management Plan (‘SEMP’), which ‘must detail strategies for dealing with emergencies in the State’. These include strategies for preventing, preparing for and containing emergencies, coordinating response and recovery operations and the deployment of resources and services in respect of response and recovery operations.[2]
[2] Emergency Management Act 2004 (SA) s 5A.
The Emergency Management Act also creates the office of State Co-ordinator to lead the actions that are taken when an emergency occurs. Section 14 provides that the Commissioner of Police concurrently holds the office of State Co‑ordinator. Section 15 sets out the functions and powers of the State Co‑ordinator:
The State Co-ordinator has the following functions:
(a)     to manage and co-ordinate response and recovery operations in accordance with this Act and the SEMP;
(b)     if an identified major incident, a major emergency or a disaster is declared under this Act—to ensure SEMC is provided with adequate information in order to fulfill its monitoring functions under this Act;
(c)     to carry out other functions assigned to the State Co-ordinator under this Act.
Sections 22-24A authorise and condition an exercise of power by the State Co-ordinator or Governor to declare a particular emergency. They provide as follows:
22—Identified major incidents
(1)     If it appears to the State Co-ordinator that the nature or scale of an emergency that has occurred, is occurring or is about to occur is such that it should be declared to be an identified major incident, the State Co-ordinator may declare the emergency to be an identified major incident.
(2)     A declaration under this section—
(a)may be made orally (but if made orally must, as soon as is reasonably practicable, be reduced to writing and a copy provided to the Minister); and
(b)subject to this section, remains in force while response operations are being carried out in relation to the emergency (but not for a period exceeding 12 hours).
(3)     The State Co-ordinator may, at any time, revoke a declaration under this section.
23—Major emergencies
(1)     If it appears to the State Co-ordinator that a major emergency has occurred, is occurring or is about to occur, the State Co-ordinator may declare the emergency to be a major emergency (whether or not the emergency has previously been declared to be an identified major incident under section 22).
(2)     A declaration under this section—
(a)must be in writing and published in a manner and form determined by the Minister; and
(b)remains in force for the period specified in the declaration (which must not exceed 14 days) and for such further periods (which may be of any length) as may be approved by the Governor.
(3)     The State Co-ordinator may, at any time, revoke a declaration under this section.
24—Disasters
(1) If it appears to the Governor that a major emergency has occurred, is occurring or is about to occur and the Governor is satisfied that the nature or scale of the emergency is, or is likely to be, such that it should be declared to be a disaster under this section, the Governor may (whether or not the emergency has previously been declared to be an identified major incident under section 22 or a major emergency under section 23) declare the emergency to be a disaster.
(2)     A declaration under this section—
(a)must be made in writing and published in a manner and form determined by the Minister; and
(b)remains in force for the period specified in the declaration (which must not exceed 30 days) and for such further periods (which may be of any length) as may be approved by resolution of both Houses of Parliament.
(4)     The Governor may, at any time, revoke a declaration under this section.
24A—Public health incidents and emergencies
An emergency may be declared to be an identified major incident, a major emergency or a disaster whether or not the emergency has previously been declared to be a public health incident or a public health emergency under the South Australian Public Health Act 2011.
Section 25 sets out the powers of the State Co-ordinator upon a declaration having been made:
25—Powers of State Co-ordinator and authorised officers
(1)     On the declaration of an identified major incident, a major emergency or a disaster under Division 3, and while that declaration remains in force, the State Co-ordinator must take any necessary action to implement the SEMP and cause such response and recovery operations to be carried out as he or she thinks appropriate.
(2)     Without limiting or derogating from the operation of subsection (1), but subject to the regulations, the State Co-ordinator or an authorised officer may, if of the opinion that it is necessary to do so, do or cause to be done all or any of the following things:
(a)enter and, if necessary, break into any land, building, structure or vehicle (using such force as is necessary);
(b)take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing;
(ba)remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;
(bb)   carry out, or cause to be carried out, excavation or other earthworks;
(c)construct, or cause to be constructed, barriers, buildings or other structures;
(ca)    subject a place or thing to a decontamination procedure;
(d)direct the owner of, or the person for the time being in charge of, any real or personal property to place it under the control or at the disposition of a specified person;
(e)remove, or cause to be removed, to such place as the State Co-ordinator or authorised officer thinks fit, any person or animal, or direct the evacuation or removal of any person or animal;
(f)    direct or prohibit the movement of persons, animals or vehicles;
(fa)    direct a person to submit to a decontamination procedure;
(fb)direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons;
(fc)direct a person to undergo medical observation, examination (including diagnostic procedures) or treatment (including preventative treatment);
(g)remove flammable material or any other hazardous material or cause flammable material or any other hazardous material to be removed from any place, building or structure;
(h)cause any supply of fuel or other flammable liquid, any gas or electricity or any other hazardous material to be connected, reconnected, disconnected or shut off;
(i)    direct a person who is in a position to do so—
(i)    to stop any work or operation; or
(ii)     to close any premises or other place; or
(iii)to contain the escape of any hazardous material, or to nullify the effects of the escape of any hazardous material; or
(iv)to shut off or remove any plant, equipment, apparatus or device or to perform any operation in relation to any plant, equipment, apparatus or device;
(j)connect, disconnect, reconnect, shut off or cut off the supply of water or any drainage facility;
(k)     make use of the gratuitous services of any person;
(ka)require a person to furnish such information as may be reasonably required in the circumstances (other than information that may be required to be furnished under section 6 of the Essential Services Act 1981);
(l)remove to such place as he or she thinks fit any person who obstructs or threatens to obstruct response or recovery operations;
(m)direct, insofar as may be reasonably necessary in the circumstances, any person (other than a control agency or other person referred to in paragraph (n)) to assist in the exercise of any power under this section;
(n)in the case of a major emergency or disaster—give directions to any control agency or person whose responsibilities require him or her to engage in response or recovery operations, or who is so engaged;
(o)     exercise any prescribed power.
(2a)   A direction or requirement under this section must not prohibit travel into or out of the State where the travel is for the purpose of escaping domestic violence or providing support to a family member who is experiencing domestic violence, or is otherwise reasonably necessary for the purpose of dealing with circumstances arising out of domestic violence (but a direction may impose conditions in relation to such travel).
(3)     In addition, if, after considering the advice of the Chief Public Health Officer, the State Co-ordinator is of the opinion that the scope of an emergency is of such a magnitude that demand for medical goods or services cannot be met without contravening the laws of the State, the State Co-ordinator may, despite those laws, authorise authorised officers, or authorised officers of a particular class, to provide, or direct the provision of, such goods or services or a particular class of such goods or services on such conditions as the State Co‑ordinator thinks appropriate.
Declaration of major emergency

On 22 March 2020, Mr Grantley Stevens, acting in his capacity as State Co‑ordinator, declared a major emergency in the following terms:
I, Grantly [sic] Stevens, State Co-ordinator for the State of South Australia, declare pursuant to Section 23(1) of the Emergency Management Act, 2004 that a Major Emergency is occurring in respect of:
The outbreak of the Human Disease named COVID-19 within South Australia
Declared at Adelaide on this 22nd of March 2020
At 1300 hours, for a period of 14 days.
Prior to the 14-day period of the above declaration expiring, the Governor, purportedly in accordance with s 23(2)(b) of the Emergency Management Act, approved the extension of the operation of the declaration for a further 28 days. The Governor purportedly approved the extension of the period of declaration each 28 days thereafter until its revocation on 24 May 2022 (‘Emergency Declaration Approvals’). The Emergency Declaration Approvals were all in largely similar terms.
Healthcare Setting Directions
Following the declaration of a major emergency, the State Co-ordinator purported to issue various directions in the exercise of the powers set out above. They included directions to the effect that certain employment duties could not be performed by persons who were unvaccinated. Consequently, unvaccinated persons were prohibited from attending at places at which they were required to attend to carry out their duties.
Relevantly, the State Co-ordinator issued a succession of directions affecting persons who work in ‘healthcare settings’. These directions, including the Seventh Healthcare Setting Direction, were purported to have been made pursuant to s 25(1) or, in the alterative, ss 25(2)(fc) and (i) of the Emergency Management Act. Broadly described, they were as follows.
On 7 October 2021, the State Co-ordinator issued the Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 (‘First Healthcare Setting Direction’). That direction took effect immediately. It required persons working in a healthcare setting to have had an approved vaccination against COVID-19 and to be booked for a second vaccination.
On 20 October 2021, the State Co-ordinator issued the Emergency Management (Healthcare Setting Workers Vaccination No 2) (COVID-19) Direction 2021 (‘Second Healthcare Setting Direction’). This took effect immediately and extended the scope of the First Healthcare Setting Direction. The Second Healthcare Setting Direction repeated the content of the earlier direction, in addition to adding definitions and different healthcare settings to the direction.
On 8 November 2021, the State Co-ordinator issued the Emergency Management (Healthcare Setting Workers Vaccination Direction No 3) (COVID‑19) Direction 2021 (‘Third Healthcare Setting Direction’). This took effect immediately. It added further healthcare settings, excluded certain settings and amended the requirements regarding an exemption.
On 8 December 2021, the State Co-ordinator amended the Third Healthcare Setting Direction by the Emergency Management (Healthcare Setting Workers Vaccination No 4) (COVID-19) Direction 2021 (‘Fourth Healthcare Setting Direction’). This direction removed an exemption whereby a person was permitted to engage in work in a healthcare setting if they were currently taking part in a COVID-19 vaccine trial and receipt of a TGA-approved vaccine would impact the validity of that trial. The direction also corrected what appears to have been a clerical error in the numbering of clauses.
On 6 January 2022, the State Co-ordinator issued the Emergency Management (Healthcare Setting Workers Vaccination No 5) (COVID-19) Direction 2022 (‘Fifth Healthcare Setting Direction’). This took effect on 29 January 2022. It required workers in healthcare settings to receive a third vaccination within four weeks of becoming eligible to do so.
On 28 January 2022, the State Co-ordinator issued the Emergency Management (Healthcare Setting Workers Vaccination No 6) (COVID-19) Direction 2022 (‘Sixth Healthcare Setting Direction’). This took effect on 29 January 2022. It introduced a ‘prescribed time’ within which persons working in a healthcare setting had to have received or be booked to receive a booster vaccination.
On 4 March 2022, the State Co-ordinator issued the Seventh Health Setting Direction. This took effect immediately. It repeated the content of earlier directions and added an exemption for a person working in a healthcare setting on a single occasion or infrequently, such as a delivery driver. Such a person was required to have a negative rapid antigen test in the 24 hours prior to the attendance at the healthcare setting and comply with any requirements for the use of personal protective equipment required by the healthcare setting operator.
Seventh Healthcare Setting Direction
The primary judge set out the Seventh Healthcare Setting Direction in detail. The direction is styled as a notice and is six pages in length. It is not addressed to any individual or group. The direction contains a section titled ‘Purpose’, which provides:
The purpose of this direction is to:
·Maintain the provision of health care services operating in the State of South Australia
·Minimise the disruption to those services due to the spread of COVID-19 amongst healthcare setting workers;
·Minimise the disruption to those services due to workers being furloughed following possible exposure to COVID-19; and
·Reduce the risk of the spread of COVID-19 by healthcare setting workers to patients.
Clause 5(1) of the direction provides that a person must not engage in work or perform duties at a particular location from a specified date unless:
·the person has received at least one dose of a TGA approved or recognised COVID-19 vaccine; and
·the person has received, or has evidence of a booking to receive, a second dose of a TGA approved or recognised COVID-19 vaccine within the interval after the first dose recommended by the Australian Technical Advisory Group on Immunisation (‘ATAGI’) for that COVID-19 vaccine; and
·within the prescribed time, the person receives, or has evidence of a booking to receive, a third dose (booster) of a TGA approved COVID-19 vaccine.
‘Notes’ contained within the direction provide the settings and types of workers affected. The direction also provides that incidental attendance at a setting is captured.
Clause 5(2) then provides:
(2)A person subject to the requirement in subclause (1) must provide the operator of the healthcare setting with proof of their vaccination status and evidence of the applicable prescribed time for receiving a booster dose upon request.
Clause 5(3) then outlines the circumstances in which the prohibition contained in cl 5(1) is not enlivened:
(3)Despite subclause (1), a person may engage in work or perform duties at a healthcare setting if-
(a) the person has a medical certificate or letter from a legally qualified medical practitioner certifying that the person-
(i)has a medical exemption from receiving a TGA approved COVID-19 vaccine on either a permanent or temporary basis in accordance with the guidelines published from time to time by ATAGI; or
(ii)has a medical exemption on either a permanent or temporary basis from receiving the preferred vaccine as recommended by ATAGI for the person’s age; or
(iii)has an appointment to be assessed by a medical specialist or has commenced an assessment with a medical specialist to determine whether they have a medical exemption from receiving a COVID-19 vaccine on either a permanent or temporary basis in accordance with the guidelines published from time to time by ATAGI; and
(iv)the certificate or letter specifies the nature of the exemption and the basis on which it applies; and
(v)the Chief Public Health Officer or her delegate has endorsed the exemption; and
(vi)the person provides the operator of the healthcare setting with a copy of the endorsement provided under paragraph (v).
Again, ‘notes’ convey an exclusion for persons responding to emergencies, and delivery drivers.
Clause 5(4) provides:
(4)An operator of a healthcare setting must ensure that any person engaging in work or duties at the healthcare setting under subclause (3) –
(a) complies with the COVID Safe Plan for the healthcare setting; and
(b) wears appropriate personal protective equipment.
Clause 6 then provides:
6—Powers of authorised officers
Nothing in this direction derogates from the powers of authorised officers to exercise powers pursuant to the Act.
The Amendment Act
The Amendment Act was enacted on 24 May 2022 and commenced operation immediately. On that same day, the State Co-ordinator revoked the declaration of a major emergency. The Amendment Act made changes to the Public Health Act, including incorporating a scheme for the exercise of powers in respect of COVID‑19, which operates differently to those established under the Emergency Management Act. The relevant sections are as follows:
90A—Interpretation
(1)     In this Part—
…
relevant emergency declaration means a declaration under section 23 of the Emergency Management Act 2004 in respect of the outbreak of COVID-19 within South Australia.
…
90B—Principles
The principles set out in section 14 (other than section 14(6), (7) and (9)) apply for the purposes of this Part in the same way as they apply to Parts 10 and 11.
90C—Directions
(1)The Governor may, by notice in the Gazette, issue directions under this section imposing requirements in relation to persons generally, or classes of persons, who—
(a)     have tested positive for COVID-19; or
(b)     are close contacts (as may be defined from time to time in the directions issued under this subsection).
(2)     Without limiting subsection (1), directions of the Governor under this section may—
(a)     require or allow a person or a class of persons to act in contravention of another law of the State; and
(b)     affect the lawful rights or obligations of any person or class of persons (including by requiring persons to isolate or quarantine); and
(c)     refer to or incorporate, wholly or partially and with or without modification, information prepared or published by a prescribed body or person, either as in force at the time the directions are made or as in force from time to time; and
(d)     make different provision according to the matters or circumstances to which they are expressed to apply; and
(e)     provide that a matter or thing is to be determined according to the discretion of the Chief Public Health Officer, an emergency officer or any other specified person or body; and
(f)     make provisions of a savings or transitional nature.
(3)Directions under this section may not come into operation, or continue to operate, if a relevant emergency declaration is in force.
(4)The Minister must, before the end of the 7th day after a direction is issued under this section, cause a document or documents setting out the relevant health advice for the direction to be published on a website determined by the Minister.
(5)     In this section—
relevant health advice for a direction means advice provided by the Chief Public Health Officer or by other officers of the Department to any Ministers of the Crown in respect of the issuing of the direction.
Section 90D provides that an ‘emergency officer’ may use any power referred to in s 25 of the Emergency Management Act for the purpose of enforcing a direction made under s 90C and may exempt persons or classes of persons from a direction. Section 90E provides for the expiration of directions:
(1)     The Minister—
(a)     may, by notice in the Gazette, fix a day or days, on which a direction under section 90C, or specified provisions of such a direction, will expire; and
(b)     must, by notice in the Gazette, fix a day on which section 90C and all directions under that section will expire (if they have not previously expired in accordance with this section).
(2)The day fixed by the Minister for the purposes of subsection (1)(b) must be not later than 6 months after the day on which this section came into operation.
(3)For the avoidance of doubt (and without derogating from section 32 of the Legislation Interpretation Act 2021), the expiry of a provision of a direction under this section does not affect the validity or operation of anything done in accordance with the direction before that expiry.
Section 90G provides for rights of review of certain directions in the Magistrates Court.
The transitional provisions in sch 2 of the Amendment Act purport to continue the effect of directions issued under the Emergency Management Act, prior to the operation of the Amendment Act. It is not in dispute that the Amendment Act came into operation prior to the revocation of the declaration of a major emergency.
Schedule 2 of the Amendment Act provides:
Schedule 2—Transitional provisions
1—Interpretation
In this Schedule—
last relevant emergency declaration means the relevant emergency declaration in force immediately before the commencement of this Schedule;
relevant direction means a direction or requirement apparently in force under section 25 of the Emergency Management Act 2004 immediately before the cessation of the last relevant emergency declaration;
relevant emergency declaration means a declaration under section 23 of the Emergency Management Act 2004 in respect of the outbreak of COVID-19 within South Australia.
2—Continuation of directions
(1)On the cessation of the last relevant emergency declaration, a relevant direction continues in force as a direction under section 90C of the South Australian Public Health Act 2011 (as inserted by this Act) whether or not it is a direction of a kind that could be made under that section as in force after the commencement of this Act.
(2)     For the purposes of this clause, a reference in a relevant direction—
(a)     to an authorised officer will be taken to be a reference to an emergency officer under the South Australian Public Health Act 2011; and
(b)     to the State Co-ordinator will (where the context permits) be taken to be a reference to the Chief Public Health Officer; and
(c)     to another relevant direction will be taken to be a reference to that direction as continued in force under subclause (1).
(3)If a relevant direction continues in force under subclause (1), any approval or exemption granted under that direction that is in force immediately before the cessation of the last relevant emergency declaration also continues in force as if it had been granted under the direction as continued under subclause (1).
3—Emergency officers
A person who was, immediately before the cessation of the last relevant emergency declaration, appointed as an authorised officer under section 17 of the Emergency Management Act 2004 will, on the cessation of the last relevant emergency declaration, be taken to be appointed as an emergency officer under the South Australian Public Health Act 2011 and—
(a)     any conditions applying to the person's appointment under the Emergency Management Act 2004 will also apply to the person's appointment under the South Australian Public Health Act 2011; and
(b)     the identity card issued to the person under the Emergency Management Act 2004 will be taken to be the person's identity card under section 48 of the South Australian Public Health Act 2011.
The issues on appeal focus on the words in cl 2(1), ‘a relevant direction continues in force as a direction under section 90C’. For convenience, a reference to ‘cl 2’ is a reference to cl 2 of the transitional provisions read together with the definition of ‘relevant direction’, as defined in cl 1.
The circumstances of the appellants
The appellants’ ordinary places of work were healthcare settings. It is not in dispute that the appellants were affected by the Seventh Healthcare Setting Direction. The first appellant, Ms Deni Varnhagen, is a registered nurse. In 2021, she worked as an intensive care nurse at Flinders Medical Centre, alongside permanent employment as an anaesthetic/recovery nurse at the Glenelg Day Surgery. She engaged in work or performed duties in a ‘Phase 1 healthcare setting’ within the meaning of the Seventh Healthcare Setting Direction prior to 1 November 2021.
Ms Varnhagen has not received a COVID-19 vaccine. In October and November of 2021, she received ‘notices’, by her description, from her employer, Flinders Medical Centre, advising she would not be able to continue working from 1 November 2021. She has similarly not been permitted to work as a nurse at the Glenelg Day Surgery since 1 November 2021. Ms Varnhagen’s evidence was that she is not willing to take any COVID-19 vaccine:
I am not able to make an informed decision regarding either the effectiveness or the safety to use any of the three COVID-19 vaccines [approved by the TGA at the time] and having regard to my personal circumstances as a healthy, young female of child-bearing age.
…
I believe that, because of the directions, I am being left with no choice as to whether I receive a COVID-19 vaccine. I believe that I am being coerced into doing so in order to keep my employment.
The second appellant, Ms Courtney Millington, has been a registered nurse for 17 years. At the time of the primary judgment, she was casually employed by Healthcare Australia and had a temporary contract with the Women’s and Children’s Hospital. She engaged in work or performed duties in a ‘Phase 1 healthcare setting’ within the meaning of the Seventh Healthcare Setting Direction prior to 1 November 2021.
Ms Millington has four young children, whom she supports. She has had her hours of work reduced as a result of the pandemic, due to suspensions on elective surgeries. In October 2021, she was informed that she would be required to be vaccinated to continue to perform her duties whilst working in a hospital ward. She received the first dose of the Pfizer vaccine, which she said caused her pain. She consequently sought an exemption from the requirement to have a further vaccination, but this was not granted. Given her health conditions and advice she has received from her doctors, she does not believe it is appropriate to receive the COVID-19 vaccine.
Procedural history of the matter
On 14 December 2021, the appellants filed an originating application for review, challenging the lawfulness of various extensions of the period of declared emergency and the State Co-ordinator’s direction regarding vaccination. The appellants sought orders declaring the approvals by the Governor extending the declaration of emergency to be invalid. They also sought to have the Fourth Healthcare Setting Direction (which purported to be in force at the time) quashed by an order in the nature of certiorari or declared invalid.
As identified above, the Fourth Healthcare Setting Direction was superseded by later directions. The State Co-ordinator issued the Seventh Health Setting Direction on 4 March 2022. The Amendment Act then commenced on 24 May 2022.
The respondents’ position from that time was that the transitional provisions in the Amendment Act afforded the substance of the Seventh Healthcare Setting Direction a new legal basis that also endured beyond the revocation of the emergency management declaration. Consequently, by interlocutory application dated 30 May 2022, the respondents applied for summary dismissal of the judicial review proceedings. They contended that the revocation of the emergency management declaration and the cessation of the Emergency Management Act to provide any statutory basis for the Seventh Healthcare Setting Direction caused the judicial review proceedings to have no further utility.
On 30 June 2022, the appellants gave notice of a matter arising under the Constitution pursuant to s 78B of the Judiciary Act 1903 (Cth). They contended that the relevant transitional provisions in the Amendment Act that purported to continue the Seventh Healthcare Setting Direction were invalid. Neither the Commonwealth Attorney-General nor any of the State Attorneys-General sought to intervene. That remains the case.

On 21 July 2022, the primary judge directed that the determination of the respondents’ application for summary dismissal and of the Constitutional issue be heard and determined as a separate trial within the initial judicial review proceedings, pursuant to r 151.1(2) of the Uniform Civil Rules. On 27 September 2022, she delivered judgment on application for summary dismissal, answering the questions of law raised, including the Constitutional issue, in favour of the respondents.
The primary judge’s findings
The questions of law determined by the primary judge and her findings are as follows:
Question 1(a): Does clause 2(1) of Schedule 2 of the South Australian Public Health (COVID-19) Amendment Act 2022, read with the definition of ‘relevant direction’ in clause 1 of Schedule 2, have the effect of deeming the Emergency Management (Healthcare Settings Workers Vaccination No 7) (COVID-19) Direction 2022 to continue in force as a direction under s 90C of the South Australian Public Health Act 2011, irrespective of whether or not it was previously in force as a matter of law under the Emergency Management Act 2004?
Answer: Yes
Question 1(b): Is clause 2(1) of Schedule 2 of the South Australian Public Health (COVID‑19) Amendment Act 2022, read with the definition of ‘relevant direction’ in clause 1 of Schedule 2, invalid in whole or in part, and, if in part, to what extent?
Answer: No
Question 1(c): Should the proceedings be dismissed in the exercise of the Court’s discretion on the basis that the relief sought in relation to the Emergency Management (Healthcare Settings Workers Vaccination No 7) (COVID-19) Direction 2022 is hypothetical or lacks utility?
Answer: Yes
Briefly described, the judge’s reasons were as follows.
Question 1(a): consideration of the operation of cl 2 of the Amendment Act
The primary judge began by considering how cl 2 of the Amendment Act operated. One effect of the Amendment Act was to act upon the content of any direction that was ‘apparently in force’ under the Emergency Management Act immediately before the Amendment Act’s commencement. The judge considered the phrase ‘apparently in force’ as follows:[3]
[3] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [111]-[113], [115].
“Apparently in force” is a phrase that does not appear to have been widely employed and counsel did not refer the Court to any judicial consideration of it. The words “in force” are commonly found across the statute book in relation to statutes but more frequently in relation to administrative instruments. It is evident that in the context of a statute or with regard to an administrative instrument, “in force” means valid in the sense of lawfully made, and operational in the sense of being current.
Sections 16(1)(a) and (2)(h) of the Legislation Interpretation Act 2021 allow extrinsic materials, and in particular records of the proceedings of Parliament, to be used to assist in the construction of a provision. At the Committee stage of the Legislative Council’s consideration of the clause 2 of Schedule 2 of the Amendment Bill, the Attorney-General said,
… the word “apparently” is important in this context. Any directions that are issued now that transfer over into the new scheme that this bill contemplates will continue in force and can be expired in whole or in part but cannot be amended or reintroduced. If there was any technical legal deficiency in a direction that is issued now, once the scheme that is contemplated in this Bill comes into force there is no prospect whatsoever of amending it to make up for that technical legal deficiency. That is why the word “apparently” is there.
I am advised it is not aimed at any particular action that is before a court at the moment. It is there so that it is used in the substance of the directions that are to continue and enforce upon transitioning in respect of any technical legal arguments that might be said to undermine them, because the directions to be continually enforced can be expired in whole or part but cannot be amended.
…
Nevertheless, it is possible to construe the clause without reference to extrinsic materials. The word “apparently” should be understood as adding something to the words “in force”. The use of the word “apparently” connotes that which appears rather than that which is. That which is apparent may be wholly, partly or not at all synonymous with that which is. What is important is that it is the appearance of being in force that dictates membership of the class of transitioned directions, rather than whether a particular direction is in force. It says nothing as to whether a direction is, or is not, in force.
…
The phrase “apparently in force” should be understood to refer to that which appears to be valid irrespective of whether it is known to be valid and might subsequently be found to be invalid. The provision captures that which may have latent invalidity.
(Footnotes omitted)
The judge considered the Seventh Healthcare Setting Direction to have the following indicia of being ‘apparently in force’:[4]
·It was styled as a notice issued under the Emergency Management Act;
·It was promulgated as having been issued by the State Co-ordinator; and
·It asserted that it had legal force.
[4] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [116].
The judge held that the phrase ‘apparently in force’ is not to be determined by reference solely to the opinion of the promulgator or the receiver of the direction, but is to be determined by reference to the overall circumstances. Relevantly: [5]
The Seventh Healthcare Settings Direction was promulgated by the respondent as having legal status. It was acted upon and complied with by many other employees. It was not invalid on its face. If the direction was at all times invalid, such invalidity will need to be discovered through legal argument and evidence in a process such as the primary proceedings took. Such invalidity is not “apparent” whereas the direction can properly be said to have been “apparently in force”.
[5] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [118].
The judge concluded that immediately prior to its revocation and the commencement of the Amendment Act, the Seventh Healthcare Setting Direction was apparently in force.
Next, the judge considered the meaning of ‘continues in force’ for the purposes of cl 2. The judge noted:[6]
The phrase “continues in force” must be understood to refer to the content of the direction. It is the command that continues. It cannot be otherwise, because the legal source of the direction has changed. The direction continues in force “as a direction under section 90C of the South Australian Public Health Act 2011”. The original source of authority for the command, being the authority purportedly vested by s 25 of the Emergency Management Act 2004, is replaced with a new source of authority, being s 90C of the SAPH Act. The direction referred to in clause 2 must therefore be understood to be the command, absent the original authority.
At the point in time at which the Amendment Act took effect, the command within the Seventh Healthcare Settings Direction continued to operate with a new source of legal authority. Under s 90C, the command became a direction of the Governor under the SAPH Act as amended. This occurred without the Governor or any other person having to make such a direction, but by operation of the provision itself. The operation of the section assumed the content of the State Co-ordinator’s notice and conferred new legal authority upon it.
By that means, that which was apparently in force became, once within the scope of s 90C, in force. That is, any direction that was apparently in force under the Emergency Management Act 2004, whether liable to be found as such to be invalid, may in its prospective operation only be impugned by reference to the new legal authority upon which it operates, and not the source of authority on which that content originally relied for its operation.
[6] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [123]-[125].
In considering the effects of cl 2, the judge pointed to the notion that validity relates to the source of power and not its effect:[7]
Clause 2 cloaks a set of administrative acts that have already occurred with a new legal quiddity that did not exist when the acts occurred. It does so prospectively to provide those acts with authority for their operation. Conversely, the source of power that gave the directions their capability ceased to operate from the date of the revocation of the major emergency declaration. One of those directions was the Seventh Healthcare Settings Direction.
…
There is no impediment to the legislature taking that which is known to be invalid and conferring validity upon it. However, that is not the mechanism employed by clause 2, which has no retrospective effect.
Because the mechanism employed by the legislature in clause 2 was unusual, if not unique, none of the authorities referred to by the parties provides a true comparator. However, it is not to the point that the mechanism used by the legislature in clause 2 is not a replication of some other mechanism used elsewhere. The applicants’ observation that there were other means to ensure the validity of the Amendment Act does not advance the matter. The question is whether the mechanism achieves what the respondents say that it achieves and whether, in so doing, the resultant provisions are valid.
[7] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [127], [129]-[130].
In effect, the judge held that the Amendment Act created a new charter of rights and obligations operating prospectively from the date of cessation of the emergency declaration. It created a new legal norm or obligation as and from 24 May 2022.
Question 1(b): consideration of the Kable principle
The judge held that cl 2 did not retrospectively validate an invalid law or administrative act, nor did it require the Court, either directly or indirectly, to treat, prospectively, an invalid administrative act as valid.[8] She held that rather, cl 2 extracts the command from that administrative act and continues its operation with a new legal source of authority and new consequences.
[8] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [140].
The judge further found it did not matter that the phrase ‘apparently in force’ alludes to the possibility that the Seventh Healthcare Setting Direction may be invalid. The provision of a new source of power to the command within the direction liberated the command from that invalidity, if the invalidity was found to exist. She held:[9]
Clearly, the law does not directly injunct the Court to determine the primary proceedings in a particular way or in fact to do anything. It is not couched in language that is directive of the Court. However, more importantly, the Amendment Act does not assert the validity of a past administrative act or any administrative act under the Court’s consideration in the primary proceedings and accordingly does not usurp the Court’s authority to determine validity. The act that is under the Court’s consideration in the primary proceedings is the act of the State Co-ordinator in issuing the Seventh Healthcare Settings Direction. That act no longer has legal operation under the Emergency Management Act 2004 and this creates the impediment to the applicants’ request for relief rather than any instruction to the Court, direct or indirect, in the Amendment Act.
[9] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [142].
The judge found that the Amendment Act did not require the Court to treat the original direction in any manner whatsoever, nor did it require the Court to depart in any way from the manner in which it exercises judicial power. She determined, therefore, that the Kable doctrine was not engaged.
Question 1(b): consideration of whether the Amendment Act removes or limits the Court’s supervisory jurisdiction
Section 75(v) of the Constitution prevents the Commonwealth Parliament from enacting legislation that would exclude a Federal Court’s jurisdiction to grant relief where a decision of a Commonwealth officer is affected by jurisdictional error. Further, a State law may not limit the power of a State Supreme Court to grant relief for jurisdictional error.[10]
[10] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 581, [99]-[100].
The judge concluded that the appellants had not established that the Amendment Act was invalid as removing or limiting this Court’s supervisory jurisdiction. She held that on its proper construction, cl 2 did not have the effect of denying the Court the power to assess the validity of the direction. She noted that nothing in cl 2 touched upon the operation of the Seventh Healthcare Setting Direction as it was in force between 4 March 2022 and 24 May 2022. She concluded that the revocation of the last relevant emergency declaration on 24 May 2022 had significantly contained, if not evaporated, the pool of potential challenges that may now require this Court’s adjudication.
The judge also did not consider that cl 2 denied the Court the power to assess the validity of the deemed direction as it operated under the amended Public Health Act. She determined that the validity of the direction as it operated, following the enactment of the Amendment Act, was to be assessed by reference to its enablers, being the transitional provisions and s 90C.
The judge did not find it necessary to invoke any principle of ‘reading down’ to save cl 2 to the extent of its validity.
Question 1(c): utility
The judge concluded that by reason of her conclusions as to the construction of cl 2 (Question 1(a)) and the Constitutional issues (Question 1(b)), that the proceedings lacked utility. Thee impugned administrative acts, and specifically the Seventh Healthcare Setting Direction, were no longer operative in their challenged form.
The appeal
On appeal, the appellants do not challenge the judge’s conclusions on the construction of cl 2, the subject of Question 1(a). They only challenge the conclusions as to validity. Subject to the need to consider the Notice of Alternative Contention, the appeal is confined to these questions of validity.
Whether cl 2(1), read together with the definition of ‘relevant direction’ in cl 1, had the effect of taking from the Supreme Court power to grant relief in relation to the Seventh Healthcare Setting Direction on account of jurisdictional error and therefore were beyond State legislative power
In Kirk v Industrial Court of New South Wales, the High Court described the nature of the supervisory jurisdiction of State Supreme Courts:[11]
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.
[11] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [98].
The exercise of that supervisory jurisdiction is subject to the appellate superintendence of the High Court. Then:[12]
There is but one common law of Australia.[13] The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of "distorted positions".[14] And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
(Footnotes in original)
[12] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [99].
[13] Lipohar (1999) 200 CLR 485 at 505 [43].
[14] Harvard Law Review, vol 70 (1957) 953, at p 963.
In invoking this principle as a basis for the invalidity of cl 2(1), the appellants relied upon a number of propositions. First, they accepted that cl 2 simply created a legal norm. However, as a practical matter, it would always be necessary for a person or body to make a decision on the application of cl 2 in a specific case. This would most likely be an authorised officer under s 90D exercising a power of enforcement under s 90D(1), or a prosecuting authority bringing a charge under s 90D(3), which would then be required to be determined by, most likely, the Magistrates Court.
In each of those cases, the power is subject to limitations. In the case of an exercise of power under s 90D(1), there must be a direction under s 90C and the officer must be of the opinion that it is necessary to exercise the power for the purpose of enforcing the direction. In the case of laying a charge pursuant to the power in s 90D(3), there must be a determination that there is a ‘relevant direction’ as defined.
Next, the appellants observed that the operation of the principle described in Kirk was not limited to privative clauses. In Graham v Minister for Immigration and Border Protection, the High Court said in the context of the comparable limit on Commonwealth legislative power arising under s 75(v) of the Constitution:[15]
Where Parliament enacts a law which confers a decision-making power on an officer and goes on to enact some other provision, not cast as a privative clause, that other provision must likewise be invalid if and to the extent that it has the legal or practical operation of denying to a court exercising jurisdiction under, or derived from, s 75(v) the ability to enforce the limits which Parliament has expressly or impliedly set on the decision-making power which Parliament has conferred on the officer.
[15] Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [46].
The appellants referred, by way of example, to Bodruddaza v Minister for Immigration and Multicultural Affairs.[16] In that case, an inflexible time limit for making an application for relief under s 75(v) in relation to certain decisions was held to be invalid in that it failed ‘to allow for the range of vitiating circumstances which may affect administrative decision-making’.[17] They also referred to Graham, where a provision that had the effect of denying the Court the evidence on which the officer’s decision was based was held invalid.[18] As to this practical operation of the principle to State Supreme Courts, they referred to the statement of Basten JA in A v Independent Commissioner against Corruption:[19]
There is no bright line standard which can be applied. No doubt a statute which so diminishes the opportunity for a Supreme Court to exercise its supervisory jurisdiction over a particular tribunal may constitute an effective removal of the jurisdiction, equivalent to that achieved by a strong privative clause.
[16] (2007) 228 CLR 651.
[17] Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [55].
[18] Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [65]-[70].
[19] (2014) 88 NSWLR 240 at [50].
The essence of the appellants’ contention on appeal was that the primary judge erred in failing to hold that the phrase ‘apparently in force’ in cl 2 has the practical operation or impact of denying to the Supreme Court its ability to exercise its supervisory jurisdiction to enforce the limits on the exercise of power under s 90D(1) or s 90D(3), and is thereby invalid.

This argument did not address the non-reviewability of a decision to prosecute, which affects the cogency of the argument in its application to an exercise of power under s 90D(3).[20] In oral submissions, senior counsel for the appellants cast the mischief slightly differently, to the effect that a court hearing a charge of an offence would be unable to entertain any challenge to the premise of the charge, namely that the relevant direction was ‘apparently in force’.
[20] Barton v R (1980) 147 CLR 75; DPP v Patrick Stevedores (2012) 41 VR 81 at [26], [30].
The appellants started by invoking the primary judge’s construction of the phrase, ‘apparently in force’, as a qualifier to a ‘relevant direction’. The judge interpreted the words ‘in force’ as meaning ‘valid in the sense of lawfully made, and operational, in the sense of being current’.[21] She interpreted the phrase ‘apparently in force’ as referring to:[22]
that which appears to be valid irrespective of whether it is known to be valid and might subsequently be found to be invalid. The provision captures that which may have latent invalidity.
[21] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [111].
[22] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [115].
As to the determination of whether something is ‘apparently in force’, as noted above, the judge said:[23]
The phrase “apparently in force” is not to be determined by reference solely to the opinion of promulgator or receiver of the direction, but is to be determined by reference to the overall circumstances. The Seventh Healthcare Settings Direction was promulgated by the respondent as having legal status. It was not invalid on its face. If the direction was at all times invalid, such invalidity will need to be discovered through legal argument and evidence in a process such as the primary proceedings took. Such invalidity is not ‘apparent’ whereas the direction can properly be said to have been ‘apparently in force’.
[23] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [118].
It should be noted here that the judge consequently found the Seventh Healthcare Setting Direction to be ‘apparently in force’. For the purposes of their argument, however, the appellants observed first that validity as a condition of the direction being ‘in force’ is a question of law. Then, that question of law is qualified by the word ‘apparently’ which also, in their submission, means ‘evidently; visibly’, ‘seemingly; contrasted with really’, and ‘so far as one can judge’. It followed, in their submission, that a ‘relevant direction’ is one that ‘apparently or seemingly had legal effect at the relevant date’.
Next, as we understood the argument, the question of whether a direction was ‘in force’ was not just one of validity; it may have been valid at the relevant time, but not in force.
The consequence of this, in the appellants’ submission, was that cl 2(1) required a determination of what the law may have been immediately before the cessation of the last relevant emergency declaration, in order to determine what the law is at the present time. However, there are no identifiable substantive limits on determining what apparently or seemingly was in legal effect, that is, no criteria for making the necessary determination. Fraud, dishonesty or other improper process are not excluded. It is an entirely subjective question. It follows, in the appellants’ submission, that there is no basis for the Supreme Court, exercising its supervisory jurisdiction, to determine that there otherwise may have been a transgression of the limits on the jurisdiction (that is, an exercise of power) under s 90D(1) or s 90D(3). The Court has no way of correcting or supervising the assertion of an authorised officer that a direction was ‘apparently in force’.
Put differently, in the appellants’ submission, this phrasing allows the authorised officer to determine conclusively what the law is, by determining what the law may have been prior to the cessation of the last relevant emergency declaration. However, to have a jurisdictional function, the clause must have some discernible, objective content, a necessary hallmark of the exercise of legislative power.[24] The judge’s approach was to imply a series of criteria (in particular, the requirement to consider the ‘overall circumstances’) for which there was no legislative authority.
[24] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [102].
The effect of the appellants’ argument, at least as initially expressed in their written submissions, is that the word ‘apparently’ can have no objective meaning, thus any attempt to construe it would be an impermissible exercise of legislative power by the Court. In oral submissions, they accepted that the Court would necessarily have to ascribe some meaning to the phrase. However, they submitted that it was difficult to see what objective criteria could be laid down without the Court effectively legislating or rewriting the statute.
We reject this argument. The primary judge did not import concepts impermissibly into the word ‘apparently’. She interpreted the word according to its ordinary meaning, in the context of its application to a declaration purportedly given pursuant to an identified statutory power.
Clause 2(1) operates, with prospective effect, on such a purported declaration. The phrase ‘apparently in force’ was chosen by Parliament against the historical background of the implementation of a regime pursuant to s 25 of the Emergency Management Act. That section empowered the State Co‑ordinator or an authorised officer to make directions. In choosing the descriptor ‘apparently in force’, Parliament was in a position to scrutinise any directions purportedly made and asserting legal force immediately prior to the commencement of cl 2(1).
To say that the phrase ‘apparently in force’ leaves open questions of, for example, whether a direction was made in breach of the rules of natural justice, or was tainted by fraud, is to disregard the practical, objective reality of the legislatively expressed reach of cl 2(1).
A court charged with determining whether the last relevant emergency declaration was ‘apparently in force’, is able to do so by reference to the ordinary incidents of that descriptive factum in the context in which it is deployed. Those incidents are, in our view, captured by the three indicia identified by the primary judge. We reach that conclusion having regard to the purpose of cl 2(1). This was to enact, prospectively, a source of legal authority for a purported declaration made under s 25 of the Emergency Management Act and asserting legal force at the time of enactment of the Amendment Act, whether or not (for any reason) that declaration was previously lawfully made. So understood, the descriptor requires that:[25]
·the declaration was styled as a notice issued under the Emergency Management Act;
·the declaration was promulgated as having been issued by the State Co‑ordinator; and
·the declaration asserted that it had legal force.
[25] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [116].
The primary judge’s description of the task of determining whether an emergency declaration was ‘apparently in force’ immediately before the commencement of the Schedule was perfectly adequate. That phrase, read in context, was nothing more than a descriptive factum that had no bearing on the underlying question of actual validity of the declaration. That being the case, as Gageler J said in Duncan v Independent Commissioner Against Corruption:[26]
There is no novelty in the proposition that “in general, a legislature can select whatever factum it wishes as the ‘trigger’ of a particular legislative consequence”.[27]
(Footnote in original)
[26] (2015) 256 CLR 83 at [42]. See also Baker v The Queen (2004) 223 CLR 513 at [43].
[27] Baker v The Queen (2004) 223 CLR 513 at 532 [43], citing Re Macks; Ex parte Saint (2000) 204 CLR 158 at 178 [25], 187-188 [59]-[60], 200 [107], 232-233 [208], 280 [347].
In interpreting the descriptive factum ‘apparently in force’, the Court is not tasked with determining what the law was, or even what it may have been. While the choice of the word ‘apparently’ was unusual, the phrase is not incapable of objective application. Its interpretation does not require a legislative act by the Court. Further, once it is understood that the phrase is merely a descriptive factum that is not dependent upon the legal validity of the declaration prior to the introduction of the Amendment Act, it cannot be said that cl 2(1) impinges in any way upon the Supreme Court’s supervisory powers in contravention of the principle described in Kirk.
We dismiss Ground 1.1 of the appeal.
Whether cl 2(1), read together with the definition of ‘relevant direction’ in cl 1, constituted a direction from the Parliament to the Supreme Court to treat that which may be invalid (the Seventh Healthcare Setting Direction) as valid and thereby constituted an impermissible interference with the exercise of judicial power by that Court
In Attorney-General (NT) v Emmerson, a majority of the High Court described the Kable principle in the following terms:[28]
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
(Footnotes omitted)
[28] Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at [40].
In North Australian Aboriginal Justice Agency v Northern Territory, the plurality of French CJ, Kiefel and Bell JJ offered the following, non-exhaustive summary of the sorts of situations where there may be an undermining of the institutional integrity of a State Court:[29]
1. A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system.
2.    The term “institutional integrity” applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality.
3.    It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.
4.    A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the State or excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.
5.    Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.
6.    A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court's institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.
7.    A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member.
(Footnotes omitted)
[29] North Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569 at [39] (French CJ, Kiefel and Bell JJ).
The appellants’ challenge was directed to the fifth of the examples listed above. It was to the effect that cl 2 effectively directs the Court to treat the last relevant emergency direction as valid, whether or not that is actually the case. Starting from the proposition, which may be accepted, that there is no ‘hard and fast line’ between statutes that impermissibly interfere with the exercise of judicial power and those which do not,[30] they emphasised the statement of the High Court in Australian Education Union v Fair Work Australia that:[31]
At least in cases which are still pending in the judicial system, it will be important to consider whether or to what extent the impugned law amounts to a legislative direction about how specific litigation should be decided. That is, as one author has written, a balance must be struck between the recognition that the Parliament may change the law in a way that has an effect on pending proceedings (a proposition that has been described as “the changed law rule”) and the recognition that the Parliament cannot direct the courts as to the conclusions they should reach in the exercise of their jurisdiction (a proposition that has been described as “the direction principle”).
(Footnotes omitted)
[30] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [76].
[31] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [87].
The appellants accepted that a legislative enactment that alters substantive rights does not fall foul of the direction principle, even if those rights are pending in litigation. They accepted that in any event, this was not such a case. Rather, in their submission (and this is where their exhortation of the need to strike a balance became relevant):
The Amending Act is predicated on and accepts the potential invalidity of the Vaccination Direction. The words “apparently in force”, then, appear to have the intended effect of requiring the Court to take the Vaccination Direction as valid, even though it is or may be in fact and law invalid, for the purposes of determining whether it is a “relevant direction”. It purports to affect the law, without expressly validating it retrospectively.
This, in the appellants’ submission, requires the Court to act otherwise than in accordance with what the law is, in that it effectively directs the Court to treat the Seventh Healthcare Setting Direction as valid. It is a ‘practical direction’ to ignore the potential invalidity of the last relevant emergency declaration on that basis that it is ‘apparently in force’.
This contention is untenable. It fails to account for the fact that the operation of cl 2(1) is to create a new command with prospective effect only. As the primary judge observed:[32]
Clause 2 does not retrospectively validate an invalid law or administrative act nor does it require, either directly or indirectly, the Court to treat, prospectively, an invalid administrative act as valid. Rather, clause 2 extracts the command from that administrative act and continues its operation with a new legal source of authority and new consequences. By clause 2, an entirely new source of legal power is produced to give life-blood to the content of the Seventh Healthcare Settings Direction for its future operation.
[32] Varnhagen & Ors v The State of South Australia & Anor [2022] SASC 108 at [140].
The appellants’ contention that cl 2(1) has a similar effect as that considered by the New South Wales Court of Appeal in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations[33] cannot be accepted for this reason. That case, decided prior to Kable and the cases concerning impermissible directions to a State Court,[34] concerned a direction to the courts to treat the registration of a union as cancelled, even though it had not been.
[33] (1986) 7 NSWLR 372.
[34] International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Wainohu v New South Wales (2011) 243 CLR 181.
Regardless of how that case might now be decided subsequent to the Kable line of authorities, it provides no support for the proposition that cl 2(1) constitutes an impermissible direction to the Court to treat that which might be invalid as valid. The most that can be said is that Parliament has prospectively deemed the commands contained in the Seventh Healthcare Setting Direction to be within the scope of administrative authority under s 90C of the Amendment Act.
We dismiss Ground 1.2 of the appeal.
The Notice of Alternative Contention
The Notice of Alternative Contention filed by the respondents is premised on the event of a prospect of invalidity of the transitional provisions. In such a case, the respondents contend that those provisions should either be:
·read down so as to operate only on a relevant direction under the Emergency Management Act that was within power;[35] or
·subjected to the principle of partial disapplication.[36] That is, they should be found to operate validly at least in respect of valid directions under that Act.
[35] Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at [28].
[36] Clubb v Edwards; Preston v Avery (2019) 267 CLR 171 at [430] (Edelman J).
Either approach may have consequences for the orders that should be made. The Notice of Alternative Contention contends that, in such an event, there should be a remittal of the proceedings. The consequence of either contention succeeding would likely be that the Court would need to determine the validity of the Seventh Healthcare Setting Direction.
Acknowledging the desirability of determining all issues raised on the appeal, the possibility of engaging either of these approaches would depend on the nature of the defect or potential defect in validity on the construction adopted. As we have concluded there is no such defect, it would not be appropriate to hypothesise as to the kind of defect that might be said to engage either such approach. We dismiss the Notice of Alternative Contention on the basis that the premise for its consideration does not arise.
Conclusion
We dismiss Ground 1 of the appeal.
On 24 October 2022, after leave to appeal on Ground 1 was granted and the appeal was listed for urgent hearing and determination, the appellants filed a further document, Appeal or Review Grounds (Revision 1). That document purports to insert a second ground challenging the primary judge’s subsequent decision on costs, delivered on 21 October 2022.[37] The appellants have not yet sought leave to appeal against that decision.
[37] Varnhagen & Ors v The State of South Australia & Anor (No 2) [2022] SASC 118.
Given the urgency advanced by the appellants in having Ground 1 heard and determined, with the risk of futility should the matter proceed past 23 November 2022, the Court indicated that the question of leave to appeal on Ground 2 and any other preliminary issue associated with that ground could await the hearing and determination of Ground 1. That now having occurred, we will hear from the parties as to the progression of proposed Ground 2.