Varnhagen v The State of South Australia

Supreme Court of South Australia
(Civil: Application)
VARNHAGEN & ORS v THE STATE OF SOUTH AUSTRALIA & ANOR
[2022] SASC 108
Judgment of the Honourable Justice Hughes
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
On 14 December 2021 the applicants filed an application seeking judicial review of various decisions by the Governor approving extensions of a declaration of major emergency and of various directions issued by the State Co-ordinator under the Emergency Management Act 2004 (SA) in response to the COVID-19 pandemic. The focus of the proceedings became the lawfulness of a direction (‘Seventh Healthcare Settings Direction’) prohibiting two of the applicants, both nurses, from attending at healthcare settings, which were their places of employment, unless they were vaccinated against COVID-19. Neither nurse was vaccinated.
On 24 May 2022, whilst proceedings were still underway, the declaration of major emergency was revoked, and the South Australian Public Health (COVID-19) Amendment Act 2022 (SA) (‘Amendment Act’) was enacted and commenced operation. The Amendment Act created new powers for managing COVID-19 in the community but purported, via transitional provisions, to continue directions that had been issued by the State Co-ordinator under the Emergency Management Act 2004 and were “apparently in force” as though they were made by the Governor under the South Australian Public Health Act 2011 (‘SAPH Act’). One such direction was the Seventh Healthcare Settings Direction.
By way of interlocutory application dated 30 May 2022, the respondents applied for the judicial review proceedings to be summarily dismissed on the ground that they ceased to have utility following the passing of the Amendment Act. The applicants gave notice of a matter arising under the Constitution, asserting the Amendment Act’s transitional provisions were incompatible with the institutional integrity of the Supreme Court and had a privative effect upon the Court’s capacity to review the validity of the direction.
The parties formulated three questions of law to be considered at a separate trial within the proceedings. First, whether the Amendment Act deemed the relevant direction to remain in force as a direction under the SAPH Act; second, whether the relevant provisions of the Amendment Act were invalid; and third, whether the proceedings should be dismissed on the basis that the applicants’ application is hypothetical or lacks utility.
Held, resolving the questions of law, granting the respondents’ interlocutory application and dismissing the proceedings:
1. The content of the relevant direction is deemed to continue in force as a direction under the SAPH Act, irrespective of whether or not it was previously in force as a matter of law.
2. The Amendment Act is valid and does not direct the Court to a conclusion regarding the validity of the Seventh Healthcare Settings Direction, constrain the exercise of judicial power or remove or limit the Court’s supervisory jurisdiction.
3. The Seventh Healthcare Settings Direction has no prospective effect in the challenged form. The proceedings lack utility and are dismissed.
Boxing and Martial Arts Act 2000 (SA) s 10; Business Names Act 1996 (SA) (repealed) s 32; Emergency Management Act 2004 (SA) ss 1, 2, 3, 4, 5A, 6, 22, 23, 24, 24A, 25; Firearms Act 2015 (SA) s 4; Judiciary Act 1903 (Cth) s 78B; Industrial Arbitration (Special Provisions) Act 1984 (NSW); Land Tax Act 1936 (SA) s 5; Legislation Interpretation Act 2021 (SA) s 16; Motor Vehicles Act 1959 (SA) s 51(1a); Planning Act 1999 (NT) s 148A; Planning Amendment Bill 2021 (NT); Prices Act 1948 (SA) s 3; South Australian Public Health Act 2011 (SA) ss 90A, 90B, 90C, 90D, 90E, 90G; South Australian Public Health (COVID-19) Amendment Act 2022 (SA) sch 2 cll 1, 2, 3; Uniform Civil Rules 2020 (SA) r 151.1(2), referred to.
Chief Constable of North Wales v Evans [1982] 3 All ER 141, applied.
Building and Construction Employees and Builders' Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 , distinguished.
Attorney-General (NT) v Emerson [2014] HCA 13; Australian Education Union v General Manager, Fair Work Australia (2012) 246 CKR 117; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Duncan v Independent Commissioner Against Corruption (2015) 256 CLR 86; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Independent Commissioner Against Corruption v Cunneen (2015) 256 CLR 1; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Kuczborski v Queensland (2014) 254 CLR 51; Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; Nicholas v The Queen (1998) 193 CLR 173; Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics [2021] NTSCFC 4; R v Humby; Ex Parte Rooney (1973) 129 CLR 231; State of South Australia v Totani (2010) 242 CLR 1; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

VARNHAGEN & ORS v THE STATE OF SOUTH AUSTRALIA & ANOR
[2022] SASC 108
Civil
HUGHES J:

The applicants in these proceedings, Ms Varnhagen and Ms Millington, challenge the lawfulness of requirements imposed on them to be vaccinated against COVID-19 before working at their places of employment. The applicants are or were employed as health care workers within the public sector and have been affected by the direction as neither is vaccinated. The requirements were imposed in the context of the COVID-19 pandemic.
The requirement imposed on the applicants was conveyed by a direction issued by the State Co-ordinator under the Emergency Management Act 2004 during a period of a declared major emergency. By way of judicial review, the applicants challenge the lawfulness of various extensions of the period of declared emergency and the State Co-ordinator’s direction regarding vaccination. It is convenient to refer to the judicial review action as “the primary proceedings”.
The respondents in the primary proceedings are the State of South Australia and Mr Grantley Stevens in his capacity as State Co-ordinator.
This decision addresses questions of law arising in the primary proceedings. The questions of law were argued as a separate trial within the proceedings. The parties agreed that the answer to the questions of law will be determinative of the course of the primary proceedings.
The primary proceedings had progressed considerably at the time the questions of law arose. This is because the questions relate to the validity of legislation passed during the course of the primary proceedings. To understand the context of the questions of law, it is necessary to set out some of the background to the primary proceedings, with an emphasis upon what is relevant to the determination of the questions of law.
COVID-19[1]
[1] The paragraphs under this heading are a summary of paragraphs 1-44 of the first report of Professor Petrovsky, received as exhibit MFI-8. While the respondents submitted that the report was not relevant to the disposition of the primary proceedings, there was no dispute as to the propositions that have formed the basis of these introductory remarks.
COVID-19 is a respiratory disease caused by SARS-CoV-2 that first emerged as a human pathogen in China. It is associated with severe respiratory illness in some infected individuals.
Transmission of the disease occurs via a variety of routes including touching of contaminated surfaces and then secondary contamination of mucosal surfaces like the mouth, nose or eyes, and via aerosol transmission of minute droplets that are released into the air as an infected person exhales, which are then inhaled by other persons. The virus enters the body in this manner and takes over the machinery of the cells, replicates and spreads throughout the body and in particular to the lungs where it may cause severe disease.
The World Health Organisation declared COVID-19 a pandemic on 11 March 2020.
The original virus is known as the Wuhan-Hu-1 strain and over time, different isolates of SARS-CoV-2 have emerged as the virus spread around the populated world causing hundreds of millions of infections. Variants arise from random mutations and those which increase the success of the virus become dominant strains. Following the Wuhan strain, the Alpha, Beta and Gamma variants emerged. These were overtaken by the Delta variant which emerged in India in the first half of 2021. By September 2021, the Delta variant of COVID‑19 was the almost exclusive strain of COVID-19 involved in community transmission in Australia.
The transmissibility of the Delta strain was greater than that of predecessor strains and 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” within a widely adopted classification system, because of its significant transmissibility capability. Omicron rapidly replaced the Delta variant across countries and, at the time the primary proceedings were commenced, was or was becoming, the dominant variant. By January 2022, the Omicron variant of COVID-19 was the almost exclusive strain of COVID-19 involved in community transmission in Australia.
Vaccines
A vaccine is a preparation introduced into the body to stimulate the body’s immune response to a particular disease. Immunisation occurs when the response is triggered and creates a temporary or permanent protection through the presence of antibodies.
Current COVID-19 vaccines are based on the viral spike protein which is used by the virus to bind to the receptors on the cells in the human upper respiratory tract, including within the nose. Vaccines operate by inducing the immune system to make neutralising antibodies against the spike protein. This inhibits the virus attaching to the receptors. Different vaccines achieve this in different ways.
Vaccines must be approved or at least provisionally approved by the Therapeutic Goods Administration (the “TGA”), a Commonwealth regulatory body, to be used in Australia. 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 impugned approvals extending the declaration of major emergency
On 22 March 2020, Mr Grantley Stevens in his capacity as State Co-ordinator under the Emergency Management Act 2004 made a declaration in the following terms:[2]
[2] Exhibited as LP1(a) to the affidavit of Loretta Polson affirmed on 10 December 2021.
I, Grantly Stevens,[3] 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:
[3] It would appear that the instrument contains a misspelling of the State Co-ordinator’s name.
The outbreak of the Human Disease named COVID-19 within South Australia
Declared at Adelaide on this 22^nd of March 2020
At 1300 hours, for a period of 14 days.
It was not in dispute that by this declaration, the State Co-ordinator intended to enliven a suite of powers, available to him and others, that could be exercised for the purpose of managing the spread of COVID-19 in the South Australian community.
When the 14-day period of that declaration was about to expire, and purportedly in accordance with s 23(2)(b) of the Emergency Management Act, 2004, the Governor approved the extension of the operation of the declaration for a further 28 days. The extension of the period of declaration was purportedly approved by the Governor each 28 days thereafter until its revocation on 24 May 2022 (“the Emergency Declaration Approvals”).[4]
[4] Prior to 31 August 2021, the approvals were given by the former Governor and on one occasion, the approval was given by the Administrator.
The Emergency Declaration Approvals are in relevantly similar terms to one another. The text of the most recent, and last, approval given by the Governor on 28 April 2022 is annexed to this judgement. In the primary proceedings, the applicants seek that each of the approvals given after October 2021 be quashed and declared invalid.
The declaration of major emergency was revoked by the State Co-ordinator on 24 May 2022.
The impugned Healthcare Settings Direction
In reliance upon powers conferred by the Emergency Management Act 2004 available to the State Co-ordinator when a major emergency declaration is in force, the State Co-ordinator purported to issue various directions. Relevant to these proceedings, the State Co-ordinator purported to issue directions that had the effect that certain employment duties could not be performed by persons who were unvaccinated. This was the effect of a prohibition on the attendance of unvaccinated persons at places at which those persons were required to attend to carry out their duties.
Of relevance to these proceedings, the State Co-ordinator issued a succession of directions that affected person who work in ‘healthcare settings’. A ‘healthcare setting’ is defined in the notice but for the purpose of this decision it may be accepted that the applicants’ ordinary places of work were healthcare settings.
On 7 October 2021, the State Co-ordinator issued the Emergency Management (Healthcare Settings Workers Vaccination) (COVID-19) Direction 2021 (the “First Healthcare Settings Direction”) and it took effect immediately.[5] It required persons performing work duties in a healthcare setting, as defined in the direction, to have had an approved vaccination against COVID-19 and be booked for a second vaccination.
[5] Exhibited as LP1(d) to the affidavit of Loretta Polson affirmed on 10 December 2021.
The scope of the direction was extended by a further direction issued on 20 October 2021, that being the Emergency Management (Healthcare Setting Workers Vaccination No 2) (COVID-19) Direction 2021 (the “Second Healthcare Settings Direction”) which took effect immediately.[6] It revoked the earlier direction and issued a fresh direction which repeated the content of the earlier direction but added definitions and different health care settings to the direction, effectively clarifying areas of doubt and expanding its effect.
[6] Exhibited as LP1(e) to the affidavit of Loretta Polson affirmed on 10 December 2021.
The scope of the Second Healthcare Settings Direction was extended, and an exemption added, in a further direction issued on 8 November 2021, the Emergency Management (Healthcare Setting Workers Vaccination Direction No 3) (COVID-19) Direction 2021 (the “Third Healthcare Settings Direction”) which took effect immediately and again revoked its predecessor.[7] The Third Healthcare Settings Direction:
1.added further healthcare settings,
2.excluded certain settings, and
3.amended the requirements regarding an exemption.
[7] Exhibited as LP1(f) to the affidavit of Loretta Polson affirmed on 10 December 2021.
The Third Healthcare Settings Direction was amended by the Emergency Management (Healthcare Setting Workers Vaccination No 4) (COVID-19) Direction 2021 issued on 8 December 2021 (the “Fourth Healthcare Settings Direction”) which took effect immediately and revoked its predecessor. The Fourth Healthcare Setting 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. It 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 (the “Fifth Healthcare Settings Direction”) which revoked its predecessor, took effect on 29 January 2022 and required workers in healthcare settings to receive a third vaccination within four weeks of becoming eligible to do so.[8]
[8] Exhibited as SM21 to the affidavit of Stuart McLean sworn on 9 February 2021.
The Emergency Management (Healthcare Setting Workers Vaccination No 6) (COVID-19) Direction 2022 (the “Sixth Healthcare Settings Direction”) was made on 28 January 2022 and became operative on 29 January 2022 at which time its predecessor was revoked. It introduced a “prescribed time” within which a booster vaccination was required to be had or booked by a person working in a healthcare setting as defined.
The Emergency Management (Healthcare Setting Workers Vaccination No 7) (COVID-19) Direction 2022 (the “Seventh Healthcare Settings Direction”) was made, and took effect on, 4 March 2022. It revoked its predecessor and repeated the content of earlier directions but 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 only 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 that the healthcare setting operator required.
The primary proceedings
The primary proceedings were brought by way of judicial review filed on 14 December 2021. There are six applicants but the applications of only the first and third applicants proceeded. By consent, the applications concerning the other four applicants have been adjourned until further order, pending the outcome of the applications of the first and third applicants.[9] Hereafter, a reference to “the applicants” is a reference to the first and third applicants.
[9] Orders number 3, 4 and 5 of the Court’s Orders dated 1 April 2022.
The applicants sought to have the Court make orders declaring the approvals by the Governor extending the declaration of emergency to be invalid. The applicants also sought to have the Healthcare Settings Direction (at that time, the fourth such direction) quashed by an order in the nature of certiorari or declared invalid. An order in the nature of certiorari would remove the legal consequences, or purported legal consequences, of the exercise, or purported exercise, of power by which the Healthcare Settings Direction was issued.
The framing documents for the primary proceedings have been revised on a number of occasions and updated to account for the successive approvals and directions. The primary proceedings are currently defined by the applicants’ Amended Statement of Facts, Issues and Contentions (Revision 4) filed on 22 July 2022 and the respondents’ Response (Revision 2) filed on 15 June 2022.
The Seventh Healthcare Settlings Direction in more detail
The Seventh Healthcare Settings Direction, which was the last of the directions in that sequence, is styled as a notice. It is six pages in length. It is not addressed to any individual or group. It contains a section headed “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.

Following some definitions, clause 5(1) of the Direction provides that a person must not engage in work or perform duties a relevant location from a particular date unless:
·The person has received at least one dose of a Therapeutic Goods Administration 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 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.
The direction contains “notes” listing the settings and the types of workers affected, and provides that incidental attendance at a setting is captured.
The direction proceeds:
(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.
The direction carves out circumstances that do not enliven the clause 5(1) prohibition as follows:
(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 that there is an exclusion for persons responding to emergencies, and delivery drivers.
Clause 5(4) then provides:
·An operator of a healthcare setting must ensure that any person engaging in work or duties at the healthcare setting under subclause (3) –
· Complies with the COVID Safe Plan for the healthcare setting; and
· Wears appropriate personal protective equipment.
The Direction further provides:
6.Powers of authorised officers
Nothing in this direction derogates from the powers of authorised officers to exercise powers pursuant to the Act.
IMPORTANT – FAILURE TO COMPLY WITH THIS DIRECTION IS AN OFFENCE.
This direction operates from the 4^th day of March 2022 at 1333 hours.
The Seventh Healthcare Settings Direction is signed and dated by the State Co‑ordinator.
It was not in dispute that the two applicants in respect of whom the application was pressed, Ms Varnhagen and Ms Millington, were affected by the direction. Each applicant filed an affidavit outlining her personal and employment circumstances, and her views, beliefs and reasons for not receiving a COVID-19 vaccination.
The First Applicant, Deni Varnhagen, is a registered nurse who in 2021 worked as an intensive care nurse at Flinders Medical Centre, alongside permanent employment as an anaesthetic/recovery nurse at the Glenelg Day Surgery. She has been a registered nurse for about seven years. Prior to 1 November 2021, she engaged in work or performed duties in a “Phase 1 healthcare setting” within the meaning of the Seventh Healthcare Settings Direction. She has not received a COVID-19 vaccine as that expression is used in the Direction. She received what she described as “notices” from her employer, Flinders Medical Centre, in October and November of 2021 advising she would not be able to continue working from 1 November 2021, and she has not been able to work as a nurse at the Glenelg Day Surgery since 1 November 2021. Ms Varnhagen deposed that she does not wish to take any of the three COVID-19 vaccines currently approved by the Therapeutic Goods Administration and does not consider that she is able to make an informed decision regarding either the effectiveness or safety of those vaccines.
Ms Varnhagen deposed:
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 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.[10]
[10] Affidavit of Deni Varnhagen affirmed on 9 December 2021 at [14], [16].
The Third Applicant,[11] Courtney Millington, is a registered nurse casually employed with Healthcare Australia and has a temporary contract with the Women’s and Children’s Hospital. She has been a registered nurse for 17 years. Prior to 1 November 2021, Ms Millington was engaged in work or performed duties at a “Phase 1 healthcare setting” within the meaning of that term in the Seventh Healthcare Settings Direction.
[11] As she appeared on the original list of four applicants, later expanded to six and then proceeded with on the basis of two.
She has four young children whom she supports. Ms Millington had her hours of work reduced throughout the pandemic due to suspensions on elective surgeries. She received a copy of the Direction. In October 2021, whilst working in a hospital ward, she was informed she would be required to be vaccinated to continue to perform her duties. She subsequently received one dose of the Pfizer vaccine. Ms Millington deposed to experiencing pain following the vaccination. She sought an exemption to from the requirement to have a further vaccination but no exemption was granted. She does not believe it is appropriate that she has the COVID-19 vaccine given her health conditions and information from her doctors.[12]
[12] Affidavit of Courtney Millington affirmed on 7 December 2021.
Nature of Judicial Review – statutory powers have limits
The applicants brought their challenges to the Emergency Declaration Approvals and the Seventh Healthcare Settings Direction by way of judicial review. Given the issues now to be determined as questions of law, it is not necessary to consider in any detail the nature of the primary proceedings. It is sufficient to state that an action for judicial review concerns whether an exercise of public power exceeded the limits placed upon the person in whom, or body in which, the power is reposed. An action for judicial review is not about whether a decision or action was the correct or preferable decision or action, but rather whether it was lawfully made or done by virtue of being within the limits constraining the exercise of the power.
In deciding whether the applicants have succeeded in judicial review action, the Court does not decide whether the applicants were harmed by the Emergency Declaration Approvals or the Seventh Healthcare Settings Direction or suffered loss as a result of them. Nor does the Court decide whether it would take the same action as was taken by the Governor or the State Co-ordinator (now or at the time), or whether it was the best action to take.
The limited scope of judicial review reflects the important premise that types of decision-making power are vested exclusively in the legislature, the executive and the courts respectively. When the legislature confers the executive with decision-making power, the Court’s authority in undertaking judicial review is to ensure that, on the application of a person aggrieved by an exercise of that power, it has been exercised lawfully. As Lord Brightman put it in Chief Constable of the North Wales Police v Evans:[13]
Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
[13] [1982] 3 All ER 141, 154.
In this case, the primary proceedings require consideration of the complaints made about the Emergency Declaration Approvals and the Seventh Healthcare Settings Direction and decide whether the applicants have shown that they were unlawfully made.
Emergency Management Act 2004
The source of the power relied upon for both the approvals and the direction is in the Emergency Management Act 2004. Therefore, the primary proceedings have as their central focus what that legislation does.
The purpose of the Emergency Management Act 2004 may be ascertained from its objects, as follows:
(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 in the Act as follows:
emergency means 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 says:
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.
The Act establishes the State Emergency Management Committee (the “SEMC”) whose membership includes the State Co-ordinator, a presiding member (being the chief executive of the government department that has responsibility for administering the Act) and other persons appointed by the presiding member.[14] The functions of the SEMC include the preparation and maintenance of a State Emergency Management Plan (the “SEMP”) which “must detail strategies for dealing with emergencies in the State” including for preventing, preparing for, containing, coordinating the response and recovery operations of and deployment of resources and services in respect of response and recovery operations.[15]
[14] Emergency Management Act 2004 s 6.
[15] Emergency Management Act 2004 s 5A.
The impugned Emergency Declaration Approvals in the primary proceedings followed an initial declaration of major emergency that was made by the State Co‑ordinator on 22 March 2020. That declaration was made pursuant to section 23 of the Act, which is set within a suite of provisions concerning emergencies. Sections 22-24 of the Act 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 23 was the source of power for the declaration by the State Co‑ordinator of the major emergency, and section 23(2) was the purported source of power for the Emergency Declaration Approvals granted by the Governor. Its proper use is the subject of the applicants’ first ground of review in the primary proceedings. They contend that it was not contemplated that there would be successive extensions of a major emergency approved and that the legislative scheme contemplated that, where an emergency endured, Parliament ought to have been involved in the decision-making via a declaration of disaster, if that were required.
In addition to establishing the abovementioned machinery to do what might be called the planning and preparatory work in respect of significant emergencies, the Emergency Management Act 2004 also creates a statutory office to lead the actions that are taken when an emergency occurs. That statutory office is the State Co-ordinator. The Act provides that the Commissioner of Police concurrently holds the office of State Co-ordinator. In that office are reposed the functions set out in section 15:
(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 fulfil its monitoring functions under this Act;
(c)To carry out other functions assigned to the State Co-ordinator under this Act.
Section 25 sets out the powers of the State Co-ordinator upon a declaration having been made, and it is the exercise of these powers that is the focus of the primary proceedings.
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.

The directions that were the subject of the primary proceedings, including the Seventh Healthcare Settings Direction, were said to have been made pursuant to section 25(1), or in the alternative, sections 25(2)(fc) and (i) of the Act.
Issues in the primary proceedings
The parties agreed that the issues for the Court’s determination in the primary proceedings are:
1.Whether the Emergency Declaration Approvals are inconsistent with, and repugnant to, the scheme and provisions of the Emergency Management Act 2004.
2.Whether the Seventh Healthcare Settings Direction has a legislative character, rather than an administrative character and, if so, whether, as at the date it was issued, the duties and powers under s 25 of the Emergency Management Act 2004 were capable of being used to give directions for such a legislative purpose.
3.Whether the Seventh Healthcare Settings Direction is reasonably proportionate to the enabling purpose under s 25 of the Emergency Management Act 2004.
4.Whether the Seventh Healthcare Settings Direction is legally unreasonable in that the requirements of the directions do not meet the stated purposes.
The passing of amendments to the South Australian Public Health Act 2011
The primary proceedings had progressed on these issues to the point at which closing submissions were underway. The proceedings were then confronted with a significant event.
On 24 May 2022, the South Australian Public Health (COVID-19) Amendment Act 2022 (the “Amendment Act”) was enacted and immediately commenced operation. On that same day, the State Co-ordinator revoked the declaration of major emergency.[16] The respondents informed the Court that there were five directions issued pursuant to s 25 of the Emergency Management Act 2004 in place on 24 May 2022 (including the Seventh Healthcare Settings Direction) that, by virtue of the revocation of the declaration, ceased to operate under that Act. They submit that the substance of the Seventh Healthcare Settings Direction has been afforded a new legal basis ensuring that it endures beyond the revocation of the emergency management declaration, by virtue of transitional provisions in the Amendment Act.
[16] The instrument of revocation was received as exhibit R30.
By interlocutory application dated 30 May 2022,[17] the respondents applied for the summary dismissal of the primary proceedings. They assert that the primary proceedings ceased to have utility following the revocation of the declaration and the Seventh Healthcare Settings direction ceasing to have effect under the Emergency Management Act 2004. The respondents also amended their Response to reflect their view of the effect of the Amendment Act and to assert that the proceedings are now appropriately summarily dismissed.[18] In short, they assert that the impugned Direction as it was made has no ongoing effect, that the primary proceedings lack utility and the relief sought is now unavailable to the applicants.
[17] FDN 82.
[18] FDN 86 filed on 15 June 2022.
On 30 June 2022, pursuant to section 78B of the Judiciary Act 1903 (Cth), the applicants gave notice of a matter arising under the Constitution with respect to the Amendment Act. The applicants contend that the relevant transitional provisions in the Amendment Act that purport to continue the Seventh Healthcare Settings Direction are invalid. They assert that the transitional provisions are incompatible with the institutional integrity of the Supreme Court and as such offend the doctrine described in Kable v Director of Public Prosecutions (NSW) (“Kable”).[19] They also contend that the scheme established in the Amendment Act removes this Court’s power to grant relief for jurisdictional error and thereby offends the principles described in Kirk v Industrial Court of New South Wales (“Kirk”).[20]
[19] (1996) 189 CLR 51.
[20] (2010) 239 CLR 531.
On 21 July 2022, I 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 primary proceedings trial pursuant to rule 151.1(2) of the Uniform Civil Rules 2020. The parties formulated the issues for the separate trial as questions of law.
The applicants issued notices pursuant to section 78B of the Judiciary Act 1903 but neither the Commonwealth Attorney-General nor any of the State Attorneys-General sought to intervene at this stage of the proceedings.
The applicants, by way of interlocutory application filed 19 July 2022, proposed that I reserve the questions of law on these issues to the Court of Appeal. After hearing the parties for argument on 21 July 2022, I declined to reserve the questions. On 28 July 2022 I delivered reasons in respect of that ruling to the parties.
The applicants amended their Originating Application in the primary proceedings to seek relief in the form of declarations in respect of the alleged invalidity.[21] It is convenient to continue to refer to the parties by reference to their roles in the primary proceedings rather than by reference to their roles in the separate trial of the respondents’ application for summary dismissal.
[21] Originating Application for Review (Revision 2) (Dated 22 July 2022, FDN-100) and Statement of Facts, Issues and Contentions (Revision 4) (Dated 22 July 2022, FDN-99).
The parties agreed that the issues could be addressed primarily by way of written submissions supplemented by an oral hearing. The Court received the respondents’ written submissions dated 14 June, 11 July and 27 July 2022, and the applicants’ written submissions dated 27 June 2022 and Notice of a Constitutional Matter dated 30 June 2022. The parties then made oral submissions on 4 August 2022.
The questions of law to be determined
Against that background, the parties seek answers to the following questions:[22]
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?
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?
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?
[22] FDN-105.
The respondents initiated the application for summary dismissal and were content to lead with their contentions, and in accordance with those arrangements, their contentions are considered first in this decision.
It is convenient to commence consideration of the issue by setting out the relevant terms of the Amendment Act.
The Amendment Act
The Amendment Act makes changes to the South Australian Public Health Act 2011 (the “SAPH Act”). It incorporates into the SAPH Act a scheme for the exercise of powers in respect of COVID-19 that operates quite differently from that established under the Emergency Management Act 2004. The relevant provisions 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.
(2)…
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.
The power in s 90C only operates where an emergency declaration under the Emergency Management Act 2004 is not in force. It authorises the Governor to issue directions imposing requirements on persons generally or classes of persons who have tested positive for COVID-19 or are close contacts. This is a narrower class of person in relation to whom directions may be made by the State Co‑ordinator under the Emergency Management Act 2004.
Section 90D empowers “emergency officers” to exempt persons or classes of persons from directions, to use the powers in section 25 of the Emergency Management Act 2004, and to enforce directions. The Governor may fix a date for the expiry of directions, and certain directions are reviewable in the Magistrates Court pursuant to section 90G.
The scheme does not authorise the Governor to make directions concerning matters such as those addressed in the Seventh Healthcare Settings Direction, or to persons at large.
The SAPH Act as amended contains no mechanism for the re-making of the directions made under the Emergency Management Act 2004 or the amendment of those directions, but enables their expiry. Section 90E imposes a requirement upon the Minister to fix a date by which s 90C and all directions made under it will expire and such date must be within six months of the section coming into operation.
The transitional provisions in schedule 2 of the Amendment Act purport to continue the effect of directions that were issued under the Emergency Management Act 2004 prior to the Amendment Act coming into operation. It was not in dispute that the Amendment Act came into operation prior to the revocation of the Emergency Declaration.
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 key words that give rise to the questions of law considered in this decision are the words in clause 2(1):
a relevant direction continues in force as a direction under section 90C.
For convenience, a reference to “clause 2” in this decision is a reference to clause 2 of the transitional provisions as read with the definitions in clause 1, and in particular with the definition of the term “relevant direction”.
The Respondents’ Contentions
The respondents’ position on the effect of the transitional provisions
The respondents contend that the effect of clause 2 is that, from 24 May 2022 (being the date that the last emergency declaration was revoked with immediate effect) the substance of Seventh Healthcare Settings Direction continues in force. They contend that the direction continues as a direction of the Governor under s 90C of the SAPH Act, irrespective of whether or not the Seventh Healthcare Settings Direction was previously validly in force as a matter of law under the Emergency Management Act 2004 and notwithstanding that the direction is not one that could now be made under the SAPH Act. They argue that the legislature’s intention in this regard is revealed by the use of the words “apparently in force” and the fact that clause 2(1) provides for the directions under the Emergency Management Act 2004 to continue “whether or not it is a direction of a kind that could be made under [s 90C] as in force after the commencement of this Act”.
The respondents maintain that an orthodox statutory interpretation approach supports this construction. They contend that “apparently in force” is synonymous with “purportedly”. Those words ensure that all apparently valid directions, whether valid or invalid immediately prior to the commencement of the Amendment Act, have become new directions under s 90C. They submit that this does not affect the reviewability of the directions as they were originally issued, and nor does it affect the reviewability of the directions as they now operate under s 90C of the SAPH Act.
The respondents’ case is that clause 2 captures that which has apparently been made under an authority to make it, whether or not a court might subsequently determine that was not made within power.
The respondents submit that on this view, the applicants’ claim for relief pertains to administrative acts the legal effect of which ended on 24 May 2022. The applicants are not now subject to the Seventh Healthcare Settings Direction as it was issued, but a direction that has a different legal basis.
The respondents observe that the mechanism continues in force directions of a type that could not be made under the SAPH Act, as the scope for making new directions under the SAPH Act is considerably more limited than that which operated under the Emergency Management Act2004 and excludes directions of the nature of the Seventh Healthcare Settings Direction.
The respondents contend that clause 2 contains no express or implied command that the Court is to treat as valid what is or might be invalid. In particular, clause 2 does not require the Court to treat as valid the Seventh Healthcare Settings Direction as issued under the Emergency Management Act2004.
Rather, they submit that clause 2 effects a prospective change to the substantive law and provides a mechanism by which the Seventh Healthcare Settings Direction operates that de-couples it from the authority impugned in the primary proceedings. The validity of the direction now depends upon the new mechanism established by s 90C. They submit that the validity of the direction as originally issued is now not a matter about which the applicants have standing to challenge.
The respondents contend that an interpretation that conditioned the transition of the Seventh Healthcare Settings Direction upon its validity, as argued for by the applicants, would thwart the evident intention of the legislature to give the substance of the direction prospective efficacy irrespective of whether the administrative act by which the direction was originally issued was lawful. They say that the Attorney-General’s statements to the House of Assembly in committee support that interpretation.
The respondents contend that if, contrary to their primary position, clause 2 is incapable of attaching to directions that were not lawfully made, it is not wholly invalid but only invalid to that extent. They submit that the provision still has work to do in that it continues the operation of any valid directions including those which could not now be made under the SAPH Act as amended. If that alternative argument is correct, then it would be necessary to ascertain the validity of the Seventh Healthcare Settings Direction as it was issued under the Emergency Management Act2004 as an answer to the question of whether that direction has, by the mechanism of clause 2, continued to operate beyond 24 May 2022.
The respondents’ contentions regarding the Constitutional issues
The respondents’ primary position is that the Constitutional issues raised by the applicants do not need to be addressed because on the correct interpretation of the transitional provisions, clause 2 does not have the effects contended for by the applicants that enliven the Constitutional issues.
The respondents submit that the Kable doctrine is not engaged as the institutional integrity of the Court is not impaired because the mechanism in clause 2 does not impermissibly constrain the Court’s treatment of the Seventh Healthcare Settings Direction before or after the revocation of the Emergency Declaration or direct the Court to find the Direction prior to the revocation to be valid. They submit that there is no direction to the Court whatsoever but also observe that the threshold for an impermissible direction is high and an interference with the Court’s ordinary processes is required before Kable is infringed in this respect.

The respondents maintain that the direction principle does not preclude a state legislature from changing, as the legislature here as done, the substance of a law to be applied by a court, and in accordance with the High Court’s statements in Duncan v Independent Commissioner Against Corruption,[23] even the rights in issue in legal proceedings may be the subject of “legislative declaration of action”.[24]
[23] (2015) 256 CLR 83.
[24] (2015) 256 CLR 83, 101 at [20].
The respondents argue that there have been many instances of statutory text of a type similar to that used in the Amendment Act being found, since Kable, not to be impermissibly directive of the Court’s activity. They submit that a comparison made by the applicants between clause 2 and the legislation considered in Building and Construction Employees and Builders Labourer’s Federation (NSW) v Minister for Industrial Relations[25] (the “BLF case”) is not apt. In that case, the Court considered a legislative command that an administrative act that had earlier been held to be invalid was required “be taken to be” valid. The respondents submit that clause 2 is not ad hominem legislation in the manner of the legislation considered in the BLF case.
[25] (1986) 7 NSWLR 372.
On the respondents’ account, even if the provision has the effect of an invalid direction enduring with a cloak of validity placed upon it by clause 2, the direction principle is not infringed because the legislature has placed the cloak and does not command the Court to do so.
The respondents also contend that no jurisdiction has been denied to the Court and therefore the principle in Kirk is not offended. They say that the Court’s power to assess the validity of the Seventh Healthcare Settings Direction has not been diminished. The jurisdiction of the Court is unaffected. The Court is not prohibited, if an appropriate opportunity presents itself, from determining the validity of the Seventh Healthcare Settings Direction as issued by the State Co‑ordinator, or that direction as it operates by virtue of being taken to have been issued under s 90C.
The respondents submit that the first question posed, namely whether the effect of clause 2 is to deem the Seventh Healthcare Settings Direction to continue in effect, should be answered in the affirmative. They submit that the second question posed as to whether clause 2 is invalid should be answered in the negative.
The respondents’ application for summary dismissal
The respondents argue that if their construction of the scheme is as they contend, the applicants no longer have a real interest in obtaining the relief sought in the primary proceedings and so do not have standing. Even if they have standing, there is no relief to be granted and the proceedings should be dismissed.
In their view, the validity of the direction as deemed to have been issued by the Governor under s 90C of the SAPH Act remains open to be challenged if a basis for so doing arising under its transitioned form were identified.
They submit that because the impugned transitional provisions are valid, the originating application should be dismissed. They contend that the third question as to whether the primary proceedings now lack utility such that they should be summarily dismissed should be answered in the affirmative.
The respondents’ case on reading down
The respondents advanced an alternative argument which entails that clause 2(2) of the Amendment Act be read down. They argue, firstly, that if the applicants’ construction of “apparently in force” is open, the Court should nevertheless prefer a construction that has the effect that the transitional provisions are valid. However, even if the applicants’ case is made out, they say it can only succeed to the extent that the transitional provisions fail to attach to an invalid direction. Accordingly, if the applicants’ construction were adopted, the respondents contend that the Court should partially disapply the transitional provisions and proceed to determine the primary proceedings so as to ascertain whether the Seventh Healthcare Settings Direction is valid and has therefore transitioned to the new scheme.
The Applicants’ Case on Validity
The applicants contend that clause 2 of the Amendment Act is invalid. They submit that the legislature has, unsuccessfully, attempted to take the invalid or potentially invalid Seventh Healthcare Settings Direction as made under the Emergency Management Act 2004 and re-create it as a direction that is immune from challenge.
The applicants accept that the Amendment Act has no retrospective operation but submit that it creates a prospective prohibition on the Court’s assessment of the validity of the Seventh Healthcare Settings Direction. The applicants contend that the effect of the Amendment Act is to prevent the Court from assessing the lawfulness of the Seventh Healthcare Settings Direction as made under s 90C. That which was, in their view, invalid is now incapable of being revealed as such. The protection that the legislature has attempted to confer on the Seventh Healthcare Settings Direction entails an impermissible constraint on the Court’s power.
The applicants submit that the purported effect of clause 2 is to continue the liabilities that were imposed via the Seventh Healthcare Settings Direction under the Emergency Management Act 2004 but to impose a different sanction for failure to comply with the Direction’s requirements. They complain that the continuation of the past liabilities cannot be achieved whilst simultaneously thwarting the reviewability of those liabilities. They observe that the legislature did not create new liabilities as it might have done.[26]
[26] R v Humby; Ex Parte Rooney (1973) 129 CLR 231.
As well as shielding that which transitions from challenge by the words “continues in force”, the applicants submit that the transitional provisions are impermissibly vague as to what is captured. The applicants contend that the words “apparently in force” in clause 2 fail to adequately identify the set of circumstances that meet the description. They reject the respondents’ assertion that it is a matter of historical fact as to what might meet the description and say that the Court has been denied, by that choice of words, the ability to determine membership of the class. They say that the phrase “apparently in force” is illusory and contains nothing to describe what is included or excluded but requires the Court to accept that everything “apparently in force” now has attached to it the cloak of validity.
They maintain that the use of the words “apparently in force” belies an intention to make valid something that may in fact and law be invalid. They submit that the Amendment Act does not retrospectively validate the directions and transition them (as it might have done) but instead requires the Court to treat the directions as valid when they are not, or may not be.
This amounts, they argue, to a legislative command to the Court that infringes the Court’s integrity so as to attract the operation of the Kable doctrine, which has the effect that the relevant provisions should be struck down as invalid.
The applicants observe that there is a similarity in the legislative command in the Amendment Act and that considered in Building & Construction Employees & Builders Labourers’ Federation (NSW) v Minister for Industrial Relations[27] which concerned a law that required the Court to treat an industrial organisation’s registration as cancelled. The relevant words of the NSW statute were that,
The registration of the State Union under the Industrial Arbitration Act 1940 shall, for all purposes, be taken to have been cancelled on 2 January 1985 by operation of, and pursuant to, the Industrial Arbitration (Special Provisions) Act 1984.
In addition, the action of the minister administering the Industrial Arbitration (Special Provisions) Act 1984 in giving or purportedly giving, before the commencement of this Act, a certificate referred to in that Act shall (to the extent, if any, that that action was invalid) be treated, for all purposes, as having been valid, and the certificate shall correspondingly be treated, for all purposes, as having been validly given from the time it was given or purportedly given.
…
The case pre-dated Kable. The applicants invite the Court to acknowledge that, on the application of the Kable doctrine, such a law might now be found invalid. Additionally, the applicants argue that the mechanism that the legislature has adopted, and in particular the requirement that the Court treat a direction that was “apparently” in force as being valid, removes the reviewability of the direction which impermissibly usurps the supervisory jurisdiction of the Court and offends the principle in Kirk.
[27] (1986) 7 NSWLR 372.
The applicants submit that the effect of the Amendment Act is to infringe the Court’s role by directing the Court as to the conclusions it should reach in the exercise of its jurisdiction, the proscription of which was described in Australian Education Union v General Manager, Fair Work Australia.[28] In the applicants’ view, the Court is prevented, because of the transitional provisions, from finding the impugned direction unlawful. They maintain that while the legislature may change a law in a way that has an effect on pending proceedings, it cannot direct the Court as to the conclusion it must reach in the exercise of jurisdiction, and yet this is what has occurred.
[28] (2012) 246 CLR 117.
If, as the applicants claim, the relevant transitional provisions are invalid, it follows that the impugned Seventh Healthcare Settings Direction has not continued beyond the revocation of the Emergency Declaration and no longer has any effect whatsoever.
The applicants’ position on reading down and the questions of law
The applicants’ case is that the relevant transitional provisions are invalid. They contend that if that argument has been cast too broadly and that only invalid directions (established as such) fail to transition under the Amendment Act, then a reading down of the provisions to preserve that which may be valid, is unachievable. The phrase “apparently in force” is insufficiently clear to indicate what would be preserved.
The applicants’ case is that each of the questions of law is to be answered differently than contended for by the respondents. They say that clause 2 does not have the effect of deeming that the Seventh Healthcare Settings Direction continues in force; that clause 2 is invalid; and that the application for summary dismissal of their application for relief in the primary proceedings should be dismissed.
Consideration
How does clause 2 of the Amendment Act operate?
On 24 May 2022, the declaration of a major emergency was revoked pursuant to section 23(3) of the Emergency Management Act 2004.[29]
[29] Exhibit R30.
It was not disputed and I find that the effect of that revocation, amongst other things, was that the Seventh Healthcare Settings Direction ceased to have any prospective effect under the Emergency Management Act 2004 from that time.
On the same day, the Amendment Act commenced operation, and one of its effects was to act upon the content of any direction that was, immediately before the Amendment Act’s commencement “apparently in force” under the Emergency Management Act 2004.
“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[30] but more frequently in relation to administrative instruments.[31] 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.
[30] For example, s 5(1a) of the Motor Vehicles Act 1959 which refers to a Commonwealth Act “as amended and in force for the time being”.
[31] For example, s 4(1) of the Firearms Act 2015 defines a “firearms licence” as a licence in force under Part 2; s 5(1)(b) of the Land Tax Act 1936 refers to an exemption that “has been granted, and remains in force, under this section”.
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.
I entertain some doubt that the words “continue and enforce” said to have been uttered by the Attorney-General in the second of these paragraphs, and later in that paragraph “continually enforced” were what was actually said or intended. It would make sense if those words were read (on both occasions) as “continue in force” which is the wording of the relevant provision. In part because of the uncertainty that attaches to the accuracy of the transcription, but primarily because it is not necessary to do so, I do not consider that the respondents’ arguments are advanced by reliance on the Attorney-General’s statements. At most, they corroborate an account of the use of the words “apparently in force” as being intended to attach legal force to a class of directions made by the State Co‑ordinator even if some or all of them suffer “technical legal deficiencies”. It is not clear which sorts of defects were intended to be captured.
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”.[32] 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.
[32] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).
The applicants’ argument that “apparently in force” means that it cannot be known (particularly by a person liable to be affected) whether a direction exists as such, does not establish the invalidity of clause 2. I reject the applicants’ submission that “apparently” is substantively different when followed by the words “in force” than its operation in the phrases “apparently genuine certificate”,[33] “apparently certified”[34] or “apparently for sale”[35] in other legislation.
[33] Business Names Act 1996 (SA) (repealed) s 32(1).
[34] Boxing and Martial Arts Act 2000 (SA) s 10(3)(b).
[35] Prices Act 1948 (SA) s 3(2)(b).
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.
The Seventh Healthcare Settings Direction has the following indicia of being “apparently in force”:
·It was styled as a notice issued under the Emergency Management Act 2004;
·It was promulgated as having been issued by the State Co-ordinator;
·It asserted that it had legal force.
The content of the notice was brought to the attention of the applicants who brought the primary proceedings challenging that it had legal force but not asserting that it did not have the appearance of legal force.
The phrase “apparently in force” is not to be determined by reference solely to the opinion of promulgator or the 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 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”.
I find that, immediately prior to its revocation and the commencement of the Amendment Act, the Seventh Healthcare Settings Direction was apparently in force.
What does “continues in force” mean, and what continues?
The further question that arises is what can be said to have “continued in force” for the purposes of clause 2? The respondents’ case requires the Court to contemplate an essential change to the direction, notwithstanding the use of the word “continues”, which is suggestive of the Seventh Healthcare Settings Direction enduring.
The Seventh Healthcare Settings Direction that was apparently in force immediately prior to the revocation of the emergency declaration, and the direction that is in force under s 90C have several distinguishing characteristics. That which was apparently in force was a direction of the State Co-ordinator and issued under the Emergency Management Act 2004. That which is now in force is a deemed direction of the Governor made under the SAPH Act. Whilst the penalties for non‑compliance are equivalent, the source of criminal sanctions arise under different enactments.
On closer examination, the change and endurance are not incapable of operating together.
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 Act2004, 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.

The applicants described this as a continuing liability with new sanctions. This is inapt as s 90C does not create liabilities but rather confers powers to issue directions. The distinction is important as validity relates to the source of power and not its effect.
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.
Notwithstanding the change in the source of power, the command continues in force and is not the subject of any retrospective alteration. In Nelungaloo Pty Ltd v The Commonwealth[36] the Court held that the legislature had power to make a law that determined that an administrative act that was invalid was to be treated, retrospectively, as valid. That conclusion was also reached in Australian Education Union v General Manager, Fair Work Australia[37] in which the Court held that a legislature may pass a law which changes, retrospectively, the law as declared by a court. French CJ, Crennan and Kiefel JJ said:
If a court exercising federal jurisdiction makes a decision which involves a formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by a court. Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment.[38]
[36] (1947) 75 CLR 495.
[37] (2012) 246 CLR 117, 141 at [50].
[38] (2012) 246 CLR 117, 141-152.
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.
The Amendment Act does not interfere with the exercise of judicial power such as to engage the Kable principle
The Kable doctrine is well-established. A state law that purports to confer upon a court a power or function that has the effect of substantially impairing the court’s institutional integrity is incompatible with the Supreme Court’s role as a repository of federal jurisdiction.[39] For that reason, the state law will be constitutionally invalid.[40] Impairment may occur where legislation conscripts or enlists the Court in the implantation of the legislative or executive policies of the State or Territory concerned, such as was found to have occurred in State of South Australia v Totani.[41] Impairment may also occur where the court is required by the law to depart to a significant degree from the methods and standards which characterise the exercise of judicial power. This may occur where a court is directed as to the conclusion it should reach in the exercise of its jurisdiction (the direction principle). The direction principle was described in Australian Education Union v General Manager, Fair Work Australia[42] as follows:
As a general rule, the Parliament of the Commonwealth, which is empowered to define the jurisdiction of the federal courts and to invest the courts of the States with federal jurisdiction, cannot “direct [those] courts as to the manner an outcome of the exercise of their jurisdiction”.[43] It cannot interfere with or intrude into the exercise of the judicial power.
[39] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560 at [39] (Gummow, Hayne, Heydon And Kiefel JJ).
[40] Attorney-General (NT) v Emerson [2014] HCA 13 at [40].
[41] (2010) 242 CLR 1. See also Kuczborski v Queensland (2014) 254 CLR 51, 98 at [140] (Crennan, Kiefel, Gageler and Keane JJ).
[42] (2012) 246 CLR 117, 140 at [48]-[49] (French CJ, Crennan and Kiefel JJ).
[43] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 36-37 (Brennan, Deane and Dawson JJ); Nicholas v The Queen (1998) 193 CLR 173, 185-186 at [15] (Brennan CJ).
The parties in the current proceedings agreed that a law that alters substantive rights, even retrospectively, does not impermissibly interfere with the judicial function even in respect of rights that are the subject of pending litigation. Even a retrospective alteration of the law does not infringe the principle if it is applied by courts “in accordance with their ordinary processes”.[44] The mischief is in the impairment of the judicial function and not the interference with the rights of the parties. As was observed by Chief Justice French and Crennan and Kiefell JJ in Australian Education Union v General Manager, Fair Work Australia, “the Parliament could enact a law which would affect, or even render nugatory, pending proceedings in a court exercising federal jurisdiction”.[45]
[44] Duncan v Independent Commissioner Against Corruption (2015) 256 CLR 83, 98 at [28].
[45] (2012) 246 CLR 117, 141 at [49] (French CJ, Crennan and Kiefel JJ).
The principles relevant to assessment of the validity of legislative treatment of past administrative acts and legal pronouncements were canvassed in Duncan v Independent Commission Against Corruption.[46] The High Court was required to consider the effect of a legislative provision passed to address a court’s earlier finding. That earlier finding, in the case of Independent Commission Against Corruption v Cunneen,[47] confined a definition of ‘corrupt conduct’ such that a conviction imposed on Ms Cunneen was found to have been wrongly imposed as the conduct in question fell outside the definition, properly construed. The New South Wales Parliament subsequently expanded the definition to capture the circumstances found to be outside the definition, and passed a law to the effect that:
Anything done or purporting to have been done by the Commission before 15 April that would have been done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been and always to have been, validly done.
[46] (2015) 256 CLR 83.
[47] (2015) 256 CLR 1.
“Relevant conduct” was defined as conduct that would be correct conduct if the definition had the broader meaning. Each of the members of the Court found the provisions to be valid. The plurality, French CJ, Kiefel, Bell and Keane JJ, said:[48]
As a matter of the ordinary use of language, cll 34 and 35 deem to be valid acts done by the respondent before 15 April 2015 to the extent that they would have been valid if corrupt conduct as defined in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions.
In this way, cll 34 and 35 operate to amend s 8(2) of the ICAC Act in its application to acts done by the respondent prior to 15 April 2015. Parliament thereby changed the meaning of “corrupt conduct”, as a matter of substantive law, from the meaning given to that expression in Cunneen, in respect of acts occurring before 15 April 2015. It is not to the point that cl 35 does not expressly purport to “amend” s 8(2): it is well settled that a statute which effects an alteration of the provision of an earlier statute amends that earlier statute even though it may not expressly describe itself as “an amending statute.”
(footnotes omitted).
[48] (2015) 256 CLR 83, 94 at [11] –[12] (French CJ, Kiefel, Bell and Keane JJ).
Duncan v Independent Commission Against Corruption supports the proposition that the consequence of legal validity can be attributed to a past administrative act by statute, including where there are proceedings to challenge the validity of the administrative act on foot. To do so will not, of itself, impair the integrity of the court’s judicial functions. Each law that attempts to alter the substantive law retrospectively may be assessed on its merits to determine whether it impermissibly interferes with the exercise of judicial function, and there is no “all-embracing proposition” that describes all statutes that are beyond power on this basis.[49] Where an attribution of validity to past acts or laws is effected by the legislature, the court’s powers and function may remain untrammelled.
[49] Australian Education Union v General Manager, Fair Work Australia [2012] 246 CLR 117, 149 (Gummow, Hayne and Bell JJ).
A more recent example of a legislature purporting to attach validity to an administrative act in the past arose in Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics.[50] Those proceedings concerned a planning decision by which a Minister refused a request to amend the Northern Territory Planning Scheme. The aggrieved party commenced judicial review proceedings challenging the validity of the decision. The Northern Territory’s legislature passed the Planning Amendment Bill 2021 (NT), which inserted the following provision into the Planning Act 1999 (NT):
148A
(1)this section applies in relation to the Minister’s decision to refuse a request to amend the NT Planning Scheme to change the zones of Lots 6907 an 6908 Town of Darwin, notice of which decision is dated 27 July 2020.
(2)Despite any law to the contrary, the decision is valid and is taken to have been valid on and from the date it was made.
[50] [2021] NTSCFC 4.
The aggrieved party challenged the validity of the law, asserting that it infringed the Kable doctrine. The matter was determined as a question of law that required the Full Court of the Supreme Court of the Northern Territory to consider whether, against the background of the proceedings, the provision undermined or interfered with the institutional integrity of the courts of the Northern Territory or otherwise infringed Chapter III of the Constitution. Applying the High Court’s reasoning in Duncan v Independent Commission Against Corruption, the Full Court of the Supreme Court (Grant CJ, Kelly J and Hiley AJ) said:[51]
A distinction is to be drawn … between legislation which impermissibly affects the processes and procedures to be applied by a court in the determination of pending and future proceedings, and legislation which permissibly effects a retrospective alteration of the substantive law which is to be applied by the courts in accordance with their ordinary processes.
[51] Ibid at [19].
On consideration of the manner of operation of s 148A of the Planning Act 1999 (NT), the Court proceeded:[52]
Although it may be accepted that legislation which directs a court to reach a particular conclusion would ordinarily infringe Kable principles, on proper characterisation s 148A is not a direction to the Supreme Court as to how to determine the issues in this proceeding. It does not direct or conscript the Supreme Court to conscript the Supreme Court to treat as valid that which the legislature has left invalid. Its effect, rather, is to validate retrospectively the Minister’s decision. That is to say, it is a retrospective validation of an administrative act which thereby affects substantive rights. It states expressly, and in the clear exercise of legislative rather than judicial authority, that “[d]espite any law to the contrary, the decision is valid”. The subsequent provision that the decision “is taken to have been valid on and from the date it was made” is ancillary to that validation, and a direction to the Court only in the sense that it clarifies and puts beyond doubt that the legislative validation is retrospective in its operation.
[52] Ibid at [29].
The Court concluded that there had been no legislative or executive act that was “passed off” as a judicial act, so as to conscript the court. The court had not been left with the task of determining validity but directed as to the outcome that it must reach.
What may be observed in respect of the current proceedings is that clause 2 does not operate directly on the Seventh Healthcare Settings Direction in the manner that s 148A of the Planning Act 1999 (NT) did. 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.
The comparator cases relate to circumstances in which a law or act is known to be invalid and its status is changed or certain treatment of that status is directed. In the present case, no such finding or declaration or other outcome has established the invalidity of the Seventh Healthcare Settings Direction. The status, in terms of validity, of the Seventh Healthcare Settings Direction, is unknown. It does not matter that the phrase “apparently in force” alludes to the possibility that the Seventh Healthcare Settings Direction may be invalid. The provision of a new source of power to the command within the Seventh Healthcare Settings Direction liberates the command from that invalidity, if indeed that invalidity were to be found to exist.
The applicants’ complaint that clause 2 is directive of the Court’s treatment of the transitioned directions must also be rejected. 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.
In Building and Construction Employees and Builders Labourer’s Federation (NSW) v Minister for Industrial Relations[53] the Court considered a legislative command that a registration that had earlier been held to be invalid was required to “be taken to be” valid. The case is distinguished. The applicants’ invitation to conclude that the Kable doctrine would see that case decided differently is rejected. The case concerned a legislative edict to treat that which had been found to be invalid, as valid. The Amendment Act does not contain such an edict. Rather, the Amendment Act provides a new source of authority, being a direction under s 90C, rather than commanding the Court to treat that which it had found to be invalid as valid. The Amendment Act does not require the Court to treat the original direction in any manner whatsoever. Clause 2 does not attribute legal validity to a past administrative act.[54]
[53] (1986) 7 NSWLR 372, 377.
[54] Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics [2021] NTSCFC 4.
The Amendment Act does not require the Court to make any finding about the lawfulness of the administrative act prior to 24 May 2022. Nor does it preclude any such finding being made in proceedings that appropriately enliven that issue for determination. The Amendment Act does not require the Court to depart in any way from the manner in which it exercises judicial power. On the proper construction of the Amendment Act, the Kable doctrine is not engaged.
The applicants’ contention that clause 2 is invalid as impermissibly interfering with the Court’s judicial functions in a manner inconsistent with its status as a repository of federal jurisdiction, is not made out.
The Amendment Act does not remove or limit the Court’s supervisory jurisdiction
Section 75(v) of the Constitution operates to prevent the Commonwealth Parliament from enacting legislation which would exclude a federal court’s jurisdiction to grant relief where a decision of a Commonwealth officer is affected by jurisdictional error. So too, by virtue of the need to preserve the integrity of State Supreme Courts as repositories of federal jurisdiction, a State law may not limit the power of a State Supreme Court to grant relief for jurisdictional error.[55]
[55] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 581 at [99]-[100].
The applicants’ contention that the word ‘apparently’ in clause 2 removes the reviewability of the transitioned directions, is misplaced.
Clause 2, properly construed, does not have the effect of denying the Court the power to assess the validity of the direction as it was issued by the State Co‑ordinator. Nothing in clause 2 touches upon the operation of the Seventh Healthcare Settings Direction as it was in force between 4 March 2022 and 24 May 2022. However, the Seventh Healthcare Settings Direction in its original form is spent and certiorari is not available where utility cannot be established.
A person who can establish an entitlement to have a dispute or claim regarding a direction issued by the State Co-ordinator has not had their right to have that dispute or claim determined curtailed by the Amendment Act. It is the revocation of the Emergency Declaration on 24 May 2022 that has significantly contained, if not evaporated, the pool of potential challenges that may now require a court’s adjudication.
Nor does clause 2 deny the Court the power to assess the validity of the deemed direction as it now operates under the amended SAPH Act. Clause 2 does not require the Court to view the direction prior to 24 May 2022 as valid in any consideration of the validity of the direction as it operates under s 90C. The validity of the direction as it now operates is assessed by reference to its enablers, which are the transitional provisions and s 90C.
No supervision of validity by the Court has been curtailed. The applicants have not established that the Amendment Act is invalid as removing or limiting the Court’s supervisory jurisdiction.
Reading Down
The construction contended for by the applicants that the transitional provisions require the Court to treat the directions issued by the State Co-ordinator as valid is not open. Accordingly, it is not necessary to invoke a reading down principle to save clause 2 to the extent of its validity.
Summary Dismissal
It follows from the conclusions as to the construction of clause 2 and the Constitutional issues that the primary proceedings should now be understood to lack utility. The impugned administrative acts that are challenged in the primary proceedings are no longer operative in the challenged form. Clause 2 is valid and it does not have the effect contended for by the applicants.
Accordingly the primary proceedings, and more particularly the action for relief set out in paragraphs 1.1A, 1.1, 1.2, 1.3 and 2-7 of part 4 of the applicants’ Statement of Facts, Issues and Contentions (Revision 4), will be dismissed.
Answers to the questions posed
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

The Court will hear the parties as to the formal orders in respect of the dismissal of the proceedings and costs.

Annexure 1 – the last approval of extension of a revocation.
EMERGENCY MANAGEMENT ACT 2004
APPROVAL OF EXTENSION OF A MAJOR EMERGENCY DECLARATION UNDER SECTION 23
APPROVAL OF THE GOVERNOR
RECITAL
The State Co-ordinator declared a Major Emergency on 22 March 2020 under section 23(1) of the Emergency Management Act 2004 (the Act) in respect of the outbreak of the human disease named COVID-19 within South Australia (the Declaration).
With the advice and consent of the Executive Council and pursuant to section 23(2) of the Act, on the days and for the periods set out below, His Excellency the Governor approved an extension of the Declaration.
On 2 April 2020 for a period of 28 days to commence on 4 April 2020.
On 30 April 2020 for a period of 28 days to commence on 2 May 2020.
On 28 May 2020 for a period of 28 days to commence on 30 May 2020.
On 27 June 2020 for a period of 28 days to commence on 27 June 2020.
On 23 July 2020 for a period of 28 days to commence on 25 July 2020.
On 20 August 2020 for a period of 28 days to commence on 22 August 2020.
On 17 September 2020 for a period of 28 days to commence on 19 September 2020.
On 15 October 2020 for a period of 28 days to commence on 17 October 2020.
On 12 November 2020 for a period of 28 days to commence on 14 November 2020.
On 10 December 2020 for a period of 28 days to commence on 12 December 2020.
On 6 January 2021 for a period of 28 days to commence on 9 January 2021.
On 4 February 2021 for a period of 28 days to commence on 6 February 2021.
On 4 March 2021 for a period of 28 days to commence on 6 March 2021.
On 1 April 2021 for a period of 28 days to commence on 3 April 2021.
On 29 April 2021 for a period of 28 days to commence on 1 May 2021.
On 27 May 2021 for a period of 28 days to commence on 29 May 2021.
On 24 June 2021 for a period of 28 days to commence 26 June 2021.
On 22 July 2021 for a period of 28 days to commence 24 July 2021.
On 18 August 2021 for a period of 28 days to commence 21 August 2021.
With the advice and consent of the Executive Council and pursuant to section 23(2) of the Act, on the days and for the periods set out below, Her Excellency the Administrator approved an extension of the Declaration.
On 16 September 2021 for a period of 28 days to commence 18 September 2021.
With the advice and consent of the Executive Council and pursuant to section 23(2) of the Act, on the days and for the periods set out below, Her Excellency the Governor approved an extension of the Declaration.
On 14 October 2021 for a period of 28 days to commence 16 October 2021.
On 11 November 2021 for a period of 28 days to commence 13 November 2021.
On 9 December 2021 for a period of 28 days to commence 11 December 2021.
On 7 January 2022 for a period of 28 days to commence 8 January 2022.
On 3 February 2022 for a period of 28 days to commence 5 February 2022.
On 2 March 2022 for a period of 28 days to commence 5 March 2022.
On 31 March 2022 for a period of 28 days to commence 2 April 2022.
PURSUANT to section 23(2) of the Act and with the advice and consent of the Executive Council, I NOW approve a further extension of the Declaration for a period of 28 days commencing on 30 April 2022.
Given under my hand and the Public Seal of South Australia at Adelaide on Thursday, 28 April 2022.
GOVERNOR

[2022] SASC 108

27 September 2022