Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021)
In light of the Delta variant of COVID-19, the Minister for Health and Medical Research made orders affecting freedoms of the citizens and imposing burdens on those unvaccinated. The plaintiffs contend that the orders were violative of s 51(xxiiiA) of the Constitution and that the differential treatment of unvaccinated persons were inconsistent with objects of Public Health Act. The Court, in deciding whether or not to grant the grounds raised by the plaintiffs, assessed the impugned orders on the rights and freedoms of those persons who chose not be vaccinated.
Facts:
The highly contagious variant of COVID-19 known as the Delta variant was first detected in the community in New South Wales in June 2021. In response to its rapid spreading and the threat to public health, the Minister for Health and Medical Research, the Honourable Bradley Hazzard, (the “Minister”), made various orders which affected freedoms of the citizens and imposed burdens on those unvaccinated. It prevented so-called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines.
The Kassam plaintiffs brought the proceedings who contend that the Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (“Order (No 2)”), and s 7 of the PHA, are invalid. They are suing the Minister, the Chief Medical Officer, Dr Kerry Chant, the State of NSW (the “State parties”) and the Commonwealth of Australia as they made an informed choice to not get vaccinated. The grounds for establishing the invalidity of (Order No 2) are the following: the Minister did not undertake any real exercise of power in making the order (Ground A); that Order (No 2) is either outside of the power conferred by s 7 or represents an unreasonable exercise of the power because of its effect on fundamental rights and freedoms (Ground B); and the manner in which Order (No 2) was made was unreasonable (Ground C).
The Kassam plaintiffs further contend that the order confers powers on police officers that are inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) (Ground D). The order, along with s 7 of the PHA, are submitted by the Kassam plaintiffs as rendered invalid by s 51(xxiiiA) of the Constitution (Ground E) and otherwise inconsistent with the Australian Immunisation Register Act 2015 (Constitution, s 109) (Ground F).
Proceedings were also brought by the Henry plaintiffs as they too refuse to be vaccinated. They sue the Minister, seeking declarations that Order (No 2) is invalid along with the Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) (the “Aged Care Order”) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the “Education Order”; and collectively the “impugned orders”). They allege that the impugned orders are beyond the scope of s 7(2) of the PHA (Ground 1); that they were made for an improper purpose (Ground 2), that in making them the Minister failed to have regard to various relevant considerations (Ground 3); asked the wrong question or took into account irrelevant considerations (Ground 4); was obliged to but failed to afford them natural justice (Ground 5) and acted unreasonably (Ground 6).
On the evening of 3 October 2021, pending completion of the hearings, the Minister made Public Health (COVID-19 General) Order 2021, repealing Order (No 2) with effect from the beginning of 11 October 2021. Both plaintiffs confirmed that they sought declaratory relief concerning its invalidity (or least parts of it). Further, the Aged Care Order and the Education Order continue to have effect.
Issues:
I. Whether or not the orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution.
II. Whether or not the power limited by reference to other powers conferred by the Public Health Act as a whole.
III. Whether or not the principle of legality engaged by impugned orders.
IV. Whether or not differential treatment of unvaccinated persons is consistent with objects of Public Health Act.
Applicable law:
Australian Immunisation Register Act 2015 (Cth) - establishes and provides for an immunisation register.
Constitution - provides the individual's implied right not to be conscripted to take part in a vaccination program amounting to a medical service provided to the public.
Constitution Alteration (Social Services) Act 1946 - conferred upon the Federal Parliament legislative power to make laws for the peace, order and good government of the Commonwealth.
Disability Discrimination Act 1992 (Cth) - the definition of “disability” in s 4 of the DDA includes having present in a person’s body a disease and includes a disease that “may exist in the future” as well as a disability that may be “imputed to a person”.
Education Act 1990 (NSW) - where an Education Order only applies in respect of persons physically attending “at” the places listed in subparagraphs (a), (b), (c) and (e) of the definition of relevant work.
Education Standards Authority Act 2013 - provides assessments of application for registration for home schooling which are carried out by authorized persons which include "inspectors" appointed pursuant to this Act.
Evidence Act 1995 (Cth) - wherein evidence that was given about COVID-19 vaccines, and reasons for rejecting them, was only allowed to be used to establish beliefs and opinions.
Health Insurance Act 1973 (Cth) - where the practical effect of the scheme for the payment of medical benefits does not amount to civil conscription in that it did not compel a medical practitioner, legally or practically, to provide a service on behalf of the Commonwealth or at all to treat any patient or particular patient.
Health Records and Information Privacy Act 2002 (NSW) - specifies that the Act applies to, inter alia, an “organisation that ... collects, holds or uses health information”.
Interpretation Act 1987 - supports material presumably on the basis that it confirms that the meaning of s 7(2) is “the ordinary meaning conveyed by the text of the provision”.
Personal Information Protection Act 1998 (NSW) - provides for the individual’s rights to anonymity and privacy.
Privacy Act 1988 (Cth) - precludes an “APP entity” that holds personal information that was collected for a particular purpose from using or disclosing that information to another person unless the individual has consented to the disclosure.
Public Health Act 2010 (NSW) s 3(1) - includes “promot[ing], protect[ing] and improv[ing] public health”, “control[ling] the risks to public health” and “prevent[ing] the spread of infectious diseases” as objects of the Act.
State Emergency and Rescue Management Act 1989 (NSW) - provides that action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under this Act.
Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) - provides the grounds for concluding that there is a risk to public health.
Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) - provides that unvaccinated workers not enter residential aged care facilities.
Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) - where the Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has—
(a) had 2 doses of a COVID-19 vaccine, or
(b) been issued with a medical contraindication certificate.
Public Health (COVID-19 General) Order 2021 - made on the evening of 3 October 2021 by the Minister which repealed Order (No 2) with effect from the beginning of 11 October 2021.
Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 - where it was held that a contention about the supposed lack of scientific certainty about the safety and efficacy of the vaccines is a factual assertion not a relevant consideration.
Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271; [1987] HCA 6- provided that the reference in s 51(xxiiiA) to the provision of the benefits is confined to the provision of those benefits by the Commonwealth.
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 - held that when the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 - provided that a Jones v Dunkel inference entitles a court to, inter alia, draw an inference unfavourable to a party from their failure to call a witness whom that party would have expected to call.
Associated Province Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 - provided for a classic example of unreasonableness where a teacher have been dismissed because they had red hair and how such decision does not reflect a common law right, privilege or entitlement not to be discriminated against but instead are a reflection of the courts’ jurisdiction to supervise the proper exercise of public powers.
Athavle v State of New South Wales [2021] FCA 1075 - where the basis of challenge was the effect of lockdowns on freedom of religion.
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 - where if the impugned orders were found to have a legislative character, then the threshold for demonstrating that they were unreasonable is especially high.
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 - provided that the limitation on their freedom of movement imposed by provisions was sufficient to give a “special interest” in their validity and thus standing to challenge them.
Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 - provided that so far as the abrogation of particular rights are concerned, the presumption is of little assistance in construing a statutory scheme when abrogation is the “very thing which the legislation sets out to achieve”.
Baldwin v State of New South Wales [2020] NSWCA 112 - provides the contention that clauses 4.3(3A)(b) and 5.8(3)(b) of Order (No 2) which in some circumstances require a person to produce evidence of their identity, residence and vaccination status, violate their privilege against self-incrimination.
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969 - enunciated the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced.
Botany Bay City Council and Others v Minister of State for Transport and Regional Development [1996] FCA 1507; (1996) 66 FCR 537 - where the obligation to afford natural justice in relation to the impugned orders is not synonymous with someone having standing to challenge them.
Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; [1981] HCA 69 - where if the impugned orders were classified as legislative acts, then no duty to afford procedural fairness arose, although the classification of the power as legislative is not necessarily determinative.
British Medical Authority v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44 - observed that one of the “most successful means of compulsion of services is to be found in the deprivation of means of subsistence”.
Castle v Director General, State Emergency Service [2008] NSWCA 231 - stated that one limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons.
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 - provided that absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or abrogate fundamental rights.
Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457; [1910] HCA 28 - where in the context of the exercise of a power that deals with a “risk” and “its possible consequences”, “necessary” does not mean “absolutely or essentially necessary” but instead means “appropriate and adapted”.
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 - where the exercise of a statutory power is conditioned on the existence of a subjective state of mind of a public official the provision conferring the power is usually construed as though that state of mind was formed reasonably.
Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309; [2004] HCA 40 - provided that “the assistance to be gained from [the] presumption will vary with the context in which it is applied”.
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 - held that the privilege against self-incrimination protects an accused person who is required by process of law to produce documents which tend to implicate that person in the commission of the offence charged.
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 - considered it highly doubtful that an internal Department report not shown to have been laid before a House of Parliament can be relied upon.
G v H (1994) 181 CLR 387; [1994] HCA 48 - provided that Jones v Dunkel is but an example of the maxim enunciated in Blatch v Archer that all evidence is to be weighed according to the proof which it was in the power of one side to have produced.
Gorman v McKnight [2020] NSWCA 20 - the High Court has not considered the judgment of La Forest, Gonthier and Cory JJ in Norberg and nor has the Court of Appeal (other than on the issue of whether consent is a defence or an element of the offence.
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 - provided that Professor Bhattacharya did not directly address the terms or substance of any of the impugned instruments in that case.
Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235 - Cavanagh J upheld a claim that they should be withheld from production under ss 130 and 131A of the Evidence Act.
Hepples v Federal Commissioner of Taxation [1992] HCA 3; (1992) 173 CLR 492 - provided that common law struck down unreasonable contractual restraints of trade, but that has nothing to do with provisions such as s 7 of the PHA.
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; [2009] NSWSC 761 - provided that what appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person’s will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 - an example of the maxim enunciated in Blatch v Archer that all evidence is to be weighed according to the proof which it was in the power of one side to have produced.
Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCB 6015 - an unfair dismissal case that addressed whether an employee who objected to being vaccinated could be reinstated to work at an aged care centre.
Kioa v West (1985) 159 CLR 550; [1985] HCA 81 - where if the impugned orders were classified as legislative acts, then no duty to afford procedural fairness arose, although the classification of the power as legislative is not necessarily determinative.
Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; [1986] FCA 290 - where Pincus J described the various burdens on the time of Ministers which would be imposed by giving evidence in Court proceedings.
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 - Gageler and Keane JJ stated that the “[a]pplication of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law” but “extends to the protection of fundamental principles and systemic values”.
McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 474; [2004] FCA 1701 - provided that orders made under s 7(2) could, depending on their content, be either an administrative act or have a legislative quality.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 - where the ground of a failure to take into account a relevant consideration can only be made out if the Minister failed to take into account a consideration which he was bound by the statute to take into account in making that decision.
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 - where it was held that Wednesbury, and decisions like it, do not reflect a common law right, privilege or entitlement not to be discriminated against but instead are a reflection of the courts’ jurisdiction to supervise the proper exercise of public powers.
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 - Callian J observed that it is unnecessary to decide in this case whether the rule [in Jones v Dunkel] should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent.
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 - provided that the principle in Anthony Hordern is not engaged where the two powers do not deal with the same subject matter.
Norberg v Wynrib [1992] 2 SCR 226 - their Honours held that not only could consent to an assault be vitiated by force, threats of force, fraud or deceit as to the nature of the defendant’s conduct (at 246) but, based on principles of “unconscionability”, found it is also vitiated where there exists proven inequality between the parties and proven “exploitation”.
P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382; [1949] HCA 66 - a majority of the High Court held the Commonwealth exceeded its powers by entering into an intergovernmental agreement with NSW that provided for an infringement of the just terms guarantee in s 51(xxxi).
Pye v Renshaw (1951) 84 CLR 58; [1951[ HCA 8 - where the express words of s 51(xxiiiA) suggests to the contrary as do the cases just noted. If s 51(xxxi) does not bind the States.
Reid v Sinderberry (1944) 68 CLR 504; [1944] HCA 15 - provided that the phrase “civil conscription” has its origins in the debate about whether “industrial conscription”, that is, the use of compulsory civilian labour, would or would not be deployed in the war effort, as it eventually was.
RG Capital Radio Ltd v Australian Broadcasting Authority (2001) FCR 185; [2001] FCA 855 - pointed to the fact that s 7 contemplates that the making of rules that may be expressed in wide terms and which attract a criminal sanction under s 10 such that in that case they would have a legislative character.
Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 - provided that so far as batteries occasioned by medical treatment are concerned, “the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed”.
Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 - Payne JJA held that in order to apply the principle of legality, it is necessary to identify with a degree of precision that fundamental right, freedom or immunity which is said to be curtailed or abrogated, or that specific element of the general system of law which is similarly affected. Any presumption of non-interference by general words will carry greater or lesser weight according to the precise issues identified.
Sidaway v Bethlehem Royal Hospital Governors [1984] QB 493 - provided that consent can be vitiated by such matters as fraud or misrepresentation although that has been limited to the nature of what has been proposed to be done.
Spencer v Commonwealth (2018) 262 FCR 344; [2018] FCAFC 17 - where it is alleged that the State has affected an acquisition of property, s 51(xxxi) will not apply unless the State is required under an intergovernmental agreement with the Commonwealth to acquire the property on other than just terms.
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 - where the Crisis Policy Committee is to be treated as a Cabinet committee.
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1996) 44 NSWLR 598; [1996] HCA 196 - an instance of the contention that decisions affecting a very wide class of persons will not normally attract a duty to afford procedural fairness
Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 - set out the test for applying s 109 binding on this Court.
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 - provided that one of the principles and systemic values which covered the principle of construction is the accusatorial nature of the criminal justice system.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 - it is not the Court’s function to determine the merits of the exercise of the power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant.
Analysis:
Order (No 2) does not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution and, even if it did, the prohibition on civil conscription does not apply to laws made by the State of NSW. One of the main grounds of challenge in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who chose not be vaccinated, especially their “freedom” or “right” to their own bodily integrity. The Court’s only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences. The impugned orders do not authorise the involuntary vaccination of anyone.
Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises. The differential treatment of people according to their vaccination status is not arbitrary. Instead, it applies a discrimen, namely vaccination status, that on the evidence and the approach taken by the Minister is very much consistent with the objectives of the PHA. It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power or that it involved any failure to ask the right question or any failure to take into account relevant considerations much less that it was undertaken for an improper purpose.
The Minister was not obliged to afford the plaintiffs or anyone else procedural fairness in making the impugned orders. The orders were also not demonstrated to be unreasonable or that its effects could be considered unreasonable.
Conclusion:
The Court concluded that the orders do not violate the right to body integrity. Order (No 2) does not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution. The principle of legality does not justify the reading down of s 7(2) of the PHA to preclude limitations on the freedom of movement. No aspect of Order (No 2) was shown to be inconsistent with LEPRA.
The Court dismissed the proceedings. On or before 22 October 2021, the parties should confer in relation to the appropriate orders as to costs. In the event that agreement is reached on the appropriate orders as to costs, the parties should file the proposed orders on or before 5.00pm on 25 October 2021. In the event that no agreement is reached on the appropriate orders as to costs, each party file and serve:
(i) their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5.00pm on 29 October 2021;
(ii) any submissions in reply that do not exceed four pages on or before 5.00pm on 5 November 2021.
