Applicants Oppose Directions for Mandatory Vaccination

Harding v Sutton [2021] VSC 741 (11 November 2021)

The defendants made a number of directions concerning mandatory vaccination.  The applicants filed an application to suspend the operation of mandatory vaccination directions made under Public Health and Wellbeing Act 2008 (Vic) in so far as they affect certain plaintiffs.  The Court, in resolving this dispute, assessed the form of the injunction filed by the applicants as well as the balance of convenience. 

Facts:

On 16 March 2020, Victoria’s Minister for Health declared a state of emergency in Victoria in relation to the COVID-19 pandemic.  The state of emergency remains in place, having been extended by further declarations made at roughly four week intervals with the most recent declaration made on 21 October 2021 ending on 18 November 2021.  Simon Harding and 128 other plaintiffs challenge the lawfulness of a number of directions made by the defendants in the exercise of their emergency powers under s 200(1)(d) of the Public Health Act, concerning mandatory vaccination against the COVID-19 virus (Vaccination Directions).  

The defendants are Brett Sutton, the Chief Health Officer appointed under the Public Health Act, and Deborah Friedman and Benjamin Cowie, each of whom gave directions as Acting Chief Health Officer at different times. 

The COVID-19 Mandatory Vaccination Directions (No 1), the first of the directions the subject of this proceeding were given by Professor Sutton on 7 September 2021.  They obliged an operator of a residential aged care facility to collect, record and hold vaccination information about workers scheduled to work at the facility, and to take reasonable steps to prevent unvaccinated workers from entering or remaining on their work premises for the purposes of working at the facility. A succession of directions in relation to ‘specified facilities’ replaced these previous directions during September and October 2021.  The COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 11) obliged an operator of a specified facility to collect, record and hold vaccination information about any worker scheduled to work at the facility.

The plaintiffs seek orders quashing the Vaccination Directions, and interlocutory and permanent injunctions restraining the defendants from making similar directions in future.  They also seek declarations that the Vaccination Directions are unlawful and invalid since they are incompatible with various human rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic).  The plaintiffs seek relief on the basis of breach of charter, acting under dictation, lack of power, improper purpose and delegation, and unreasonableness.  The plaintiffs sought interlocutory orders suspending the application of the Vaccination Directions and restraining Professor Sutton from giving any further directions to the same or similar effect, pending final hearing and determination of the proceeding.  

The defendants applied for the trial of a separate question in relation to Ground 1: whether s 38(1) of the Charter applied to the act of making or the decision to make the Vaccination Directions.  

Issues:

I. Whether or not the Court has power to suspend operation of Public Health and Wellbeing Act 2008 (Vic).

II. Whether or not the form of injunction sought sufficiently precise to enable compliance. 

Applicable law:

Public Health and Wellbeing Act 2008 (Vic) (Public Health Act), s 1 - provides that the purpose of the Public Health Act is to enact a legislative scheme that promotes and protects public health and wellbeing in Victoria. 

Public Health Act, ss 198(7)(b)–(c) - provides that a declaration under s 198 may continue in force for a period not exceeding four weeks, and may be extended by another declaration for further periods not exceeding four weeks. 

Public Health Act, ss 201(1)–(2) - provides that an authorisation under s 199 may be given orally or in writing, but if it is given orally it must be confirmed in writing as soon as reasonably practicable. 

Interpretation of Legislation Act 1984 (Vic) s 38 - relied upon by the defendants in holding that s 38(1) of the Charter did not apply to the giving of the Vaccination Directions, which they characterised as instruments of a legislative character and hence ‘subordinate instruments’.

COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 11), cl 4(1) - provided that a worker is ‘unvaccinated’ if the worker has not received a dose of a COVID-19 vaccine and is not an ‘excepted person’. 

COVID-19 Mandatory Vaccination (Workers) Directions (No 6), cl 4(1) - obliged an employer to collect, record and hold vaccination information about a worker who was, or may be, scheduled to work outside the worker’s ordinary place of residence.

Cotterill v Romanes [2021] VSC 498, [1], [13]–[19] - Niall JA rejected an argument that sub-ss 200(1)(b) and (d) of the Public Health Act were invalid because they impose an impermissible burden on the freedom of political communication implied in the Australian Constitution. 

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57, [10], [19] - where the balance of convenience favours granting an injunction in favour of the Plaintiff, because the injury likely to be suffered if the injunction were refused, outweighs the injury which the Defendant will suffer if the injunction were granted. 

ABC v O’Neill, [65] (Gummow and Hayne JJ) - provides that the Court has a wide discretion in relation to granting interlocutory prohibitive injunctions. 

Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229 - relied upon by the defendants in depending for their force and effect on the Public Health Act, in particular s 203, which makes it an offence for a person to refuse or fail to comply with a direction given to the person under s 200.

Council of the City of Ryde v Azizi [2019] NSWSC 1605 - held that absent some enabling statutory provision, the Court has no such power. 

Re Dunn [1906] ArgusLawRp 80; [1906] VLR 493  - confirmed that the ‘Supreme Court of Victoria has always had, in the most full and ample manner, similar jurisdiction to that possessed by the Court of King’s Bench in England’.

Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220 - stressed the importance of certainty and precision in the framing of any injunction, whether interlocutory or final, given that a person who does not comply with an injunction may be liable for contempt of court. 

Kracke v Mental Health Review Board (2009) 29 VAR 1, [108] - provides that in light of what must be justified, the standard of proof is high and cogent and persuasive evidence is required.

Kassam v Hazzard [2021] NSWSC 1320  - Beech-Jones J rejected a submission that mandatory vaccination orders in New South Wales violate any person’s right of bodily integrity. 

PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373 - where the interference is arbitrary, in the sense of not being proportionate to a legitimate aim. 

Loielo v Giles (2020) 63 VR 1 - where the defendant accepted that decisions to give the impugned directions were subject to s 38(1) of the Charter, and did not seek to characterise them as subordinate instruments, or instruments of a legislative character. 

Castles v Secretary of the Department of Justice [2010] VSC 310; (2010) 28 VR 141 - relied upon by the plaintiffs in making submissions about what is required of a public authority who is obliged by s 38(1) of the Charter to give proper consideration to relevant human rights. 

R v Independent Broad-Based Anti-Corruption Commission [2016] HCA 8 - where both the principle of legality and s 32 of the Charter do not permit a court to ignore the plain meaning of the statutory text or its evident purpose.

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 - where failure to take into account mandatory relevant considerations in giving the Vaccination Directions is an available ground of review of administrative action 

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 - provides that legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.

Mackenzie v Head, Transport for Victoria [2021] VSCA 100, [153] - provides that expert evidence that is capable of showing that there was no intelligible foundation for a decision is an exception to the general rule that evidence in a judicial review proceeding is limited to the material that was before the decision-maker. 

Analysis:

It is the Government's submission that the Court does not have power to suspend the operation of the Public Health Act, which gives effect to directions given under s 200(1)(d).   

The Impugned Directions were given by Professor Sutton under s 200(1)(d) of the Public Health Act, and were given force and effect by other provisions of that Act.  In particular, s 203(1) makes it an offence to fail or refuse to comply with a direction of an authorised officer given to a person in the exercise of a power under an authorisation given under s 199 of the Public Health Act. 

Absent some enabling statutory provision, the Court has no such power.  

In Victoria, the equivalent provision is s 9 of the Administrative Law Act 1978 (Vic), which gives the Court power to suspend the operation of an administrative decision ‘in order to prevent irreparable damage pending judicial review’.  However, this proceeding is brought in the Court’s inherent jurisdiction to supervise executive decision-making by way of judicial review. 

The defendants submitted that there were a number of ‘fundamental defects’ in the framing of paragraph 3 of the plaintiffs’ further amended summons.  An order prohibiting Professor Sutton from making any further mandatory vaccination directions that affect the applicant plaintiffs ‘in terms that are the same as, or similar to or in substitution of’ the Impugned Directions could not be complied with or enforced with sufficient certainty. 

There was a lack of any precision as to how the applicant plaintiffs might be excluded from the operation of any future mandatory vaccination directions.  Paragraph 3 did not distinguish between those applicant plaintiffs who own a business, who had direct obligations under the Workers Directions (No 6), and the majority of applicant plaintiffs who are employees, and were indirectly affected by the obligations imposed by the Impugned Directions on their employers.

The proposed question is a pure question of law, which could be answered without having to determine questions of fact. However, the matters at stake in this proceeding mean that an early trial is highly desirable.  Determining the separate question before trial would not save the defendants the inconvenience of going into evidence to justify any limitation on human rights imposed by the Vaccination Directions.  Determining the proposed question before trial may lead to fragmentation of the proceeding, with the obvious prospect of an appeal by parties against whom the question is answered.

Conclusion:

The Court does not have power to suspend the operation of the Public Health Act, which gives effect to directions given under s 200(1)(d).  The form of the injunction sought against Professor Sutton was neither precise nor certain, and could not be granted for that reason.  Further, while the plaintiffs established serious questions to be tried in relation to Grounds 1(a) and 4, the balance of convenience was against granting the interlocutory relief sought.  The Court decided that the proposed question should not be determined separately, before trial, and on 5 November 2021 and ordered that the defendants’ summons be dismissed.