Public Health Orders Opposed by the Plaintiffs
Larter v Hazzard (No 2) [2021] NSWSC 1451 (10 November 2021)
Public health orders were made under s 7 of the Public Health Act 2010 (NSW) requiring health care workers to be vaccinated by particular dates as a condition of being permitted to provide health care services.
The plaintiffs oppose such an order claiming that it was not it was not open to the Minister to make the public health orders, having regard to the risk to public health posed by the COVID-19 virus. The Court, in resolving this dispute, considered the International Covenant on Civil and Political Rights, the potentially permanent effects of the orders, as well as the width of the power in s 7.
Facts:
Between 26 August 2021 and 22 October 2021, the Honourable Brad Hazzard, the first defendant (the Minister), purported to make two public health orders with the effect, if valid, unless the plaintiff has received at least one dose of a COVID-19 vaccine by 30 September 2021 and received two doses by 30 November 2021, of prohibiting the plaintiff from working as a paramedic in New South Wales, which has been his occupation for over 25 years.
The plaintiff challenges the public health orders on the sole ground of legal unreasonableness. He contends that it was not open to the Minister to make the public health orders, having regard to the risk to public health posed by the COVID-19 virus (the virus).
The plaintiff seeks declarations that two public health orders are invalid by further amended summons filed on 5 November 2021. He also seeks associated relief by way of further declarations and injunctions. His Honour concluded that, in order to impugn the relevant public health order on the grounds of legal unreasonableness, it was necessary for the plaintiff to show “that no Minister acting reasonably could have considered it necessary, that is, appropriate and adapted, to deal with the identified risk to public health and its possible consequences by making the impugned orders.”
Dr Kerry Chant, Chief Health Officer at NSW Health, gave affidavit evidence in the proceedings on behalf of the defendant, as to the pandemic, the background to the orders and their rationale. She expressed concern to protect categories of persons at greater risk of severe COVID-19 illness who are over-represented in health facilities and to prevent disruption to the delivery of public health services. Dr Chant advised the Minister that she considered that, in the absence of medical contraindications, all healthcare workers should be vaccinated against COVID-19 to reduce the public health risks.
On 22 October 2021, Dr Chant approved a brief to the Minister recommending that he approve and sign the draft order, which became Order 2. As she explained, it was necessary to remake the order since the Order would have expired prior to 30 November 2021, which was the date by which all healthcare workers were required to have their second vaccine dose.
Issues:
I. Whether or not it was open to the Minister to make the public health orders having regard to the risk to public health posed by COVID-19.
II. Whether or not the public health orders are inconsistent with the International Covenant on Civil and Political Rights.
III. Whether or not the plaintiff had a reasonable excuse to fail to comply with the directions.
Applicable law:
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 - provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 - where Australia has an obligation to prevent, treat and control epidemics.
Interpretation Act 1987 (NSW), s 43 - relied upon in observing that orders are not subject to disallowance by Parliament since they are not statutory rules and do not need to be laid before Parliament (although Parliament, being sovereign, can always legislate to render orders of no effect or to remove the power under s 7 from the Minister.
Public Health Act 2010 (NSW), ss 3, 7, 10 - provides that the protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act; applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health; provides that it is an offence not to comply with a direction.
Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) - requires health care workers (as defined) to be vaccinated by particular dates as a condition of being permitted to provide health care services in New South Wales.
Public Health (COVID-19 Vaccination of Healthcare Workers) Order 2021 (NSW), cll 2, 3 - expresses the grounds for concluding that there is a risk to public health.
Public Health (COVID-19 Vaccination of Healthcare Workers) Order 2021 (NSW), cll 4 - provides directions of the Minister for the health care workers to be vaccinated.
Athavle v State of New South Wales [2021] FCA 1075 - a challenge to three subordinate legislative instruments including the Public Health (COVID-19 Additional Restrictions for Delta Outbreak.
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 - Brennan J explained that the Court’s function is to adjudicate on the legality of the administrative action (the making of the order), not its merits.
Australian Securities and Investments Commission v DB Management (2000) 199 CLR 321; [2000] HCA 7 - provides that the object of s 7 is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions.
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 - held that when the decision sought to be impugned is “a matter of opinion or policy or taste it may be very difficult to show” legal unreasonableness because, in such cases, the decision-maker (in this case, the Minister) “will be left with a very wide discretion which cannot be effectively reviewed by the courts”.
Chief of Defence Force v Gaynor (2017) 246 FCR 298; [2017] FCAFC 41 - provides that the dictates of the plaintiff's conscience do not relieve him from complying with, or being bound by, valid orders.
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 - held that the Court ought not lightly find that the plaintiff’s right to work had been abrogated in the absence of irresistibly clear words and necessary intention.
Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457; [1910] HCA 28 - provides that the word “necessary” in s 7(2) does not mean indispensable, vital, essential or requisite but rather, “appropriate and adapted”.
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 - considered orders made pursuant to s 7 of the Act in response to the COVID-19 pandemic and found them to be a legally reasonable exercise of the power conferred by s 7.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 - provides that the word “considers” in s 7(2) reflects a subjective state of mind on the part of the Minister, which must have been reasonably formed.
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 - where it was held that it is not appropriate that such a question be determined in the abstract in the absence of a charge under s 10 and concrete facts by reference to which the question may be assessed.
Analysis:
Pursuant to s 7 by reference to Kassam v Hazzard, the Minister's power must include dealing with contingencies, including those which are highly unlikely or which may never eventuate for the object of “prevent[ing]” the spread of any disease and is, accordingly, a wide power
The 90-day time limit in 7(5) requires the Minister to review the need for an order within that period and make another order if the continuing risk to public health was thought to require it. The plaintiff argued that he would not obtain the benefit of the 90-day limitation if his employment were terminated as a consequence of his not being vaccinated by the deadlines specified in the orders.
The orders make no provision for the termination of the services of workers who are prevented from working by reason of not having been vaccinated, although this was the effect of statements made by the Minister in the course of daily press conferences.
It may be accepted that the effects on the plaintiff of not being vaccinated are grave and, potentially, far-reaching and permanent. However, this is the inevitable consequence of the breadth of the power in s 7, the risk posed by the virus, and the Minister’s decision (based on Dr Chant’s advice) as to the appropriate way of dealing with the risk. It does not follow from the fact that under s 7(5) an order remains operative for no more than 90 days, that the consequences of an order cannot be permanent, that they may not be extended for a further 90 days, or until the risk against which they are designed to guard has been sufficiently ameliorated.
The plaintiff submitted that the orders infringe art 18 of the ICCPR, which provides for freedom of religion and religious expression. However, these rights are subject to an exception in art 18(3) that the freedom may be subject to limitations which are necessary to protect public health.
The Minister submitted that Art 17(1) of the ICCPR which provides that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation" did not apply because the orders did not provide for compulsory medical treatment by way of vaccination. As held in the case of Henry v Hazzard [2021] NSWSC 1320, movement of persons may be validly curtailed when vaccination status is applied as a discrimen, consistent with the objectives of the Public Health Act proving to be a genuine exercise of power.
Conclusion:
The Court concluded that the public health orders are not inconsistent with the International Covenant on Civil and Political Rights. The Court dismissed the further amended summons filed on 5 November 2021. The question of costs is reserved. The Court directs that any party who seeks, or resists, an order for costs, apply in writing to my Associate within seven days, following which directions will be made with a view to the application being determined on the papers, unless an application that it be heard orally is made and granted.
