Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

On Friday 15 October 2021, two challenges to the NSW public health orders, restricting activities of residents who had not been vaccinated against COVID-19 (including their ability to work in certain industries) were dismissed by Justice Robert Beech-Jones in the NSW Supreme Court.

The proceedings were brought by multiple plaintiffs, which included aged-care workers, a paramedic, a construction worker and school teacher. The Court noted that all plaintiffs had stated ‘that they have made an informed choice to refuse to be vaccinated’ and sought for the public health orders requiring them to be vaccinated to be declared invalid. The various plaintiffs argued several points regarding the validity of certain orders made pursuant to section 7 of the Public Health Act 2010 (NSW) (PHA), which affected the freedoms of the citizens of NSW and imposed greater burdens on those who were not vaccinated. Some of the plaintiffs brought their proceeding against the Minister for Health and Medical Research (Bradley Hazzard) (the Minister), the NSW Chief Medical Officer and the State of NSW. They argued that the Minister did not undertake any real exercise of power in making the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order No 2). Furthermore, they argued that Order No 2 is either outside the power conferred by the PHA or represents an unreasonable exercise of the power because of its effect on fundamental rights and freedoms. In addition, the plaintiffs argued that the Order No 2 and section  7 of the PHA were rendered invalid by s 51(xxiiA) of the Constitution, which confers certain powers on the Parliament to make laws for the peace, order and good government of the Commonwealth.

Other plaintiffs sued only the Minister, seeking declarations that certain public health orders were invalid (including Order No 2, and various orders covering aged-care facilities and education and care workers), contending that because of their effect on rights and freedoms, they were beyond the scope of section 7 of the PHA. Furthermore, these plaintiffs argued that these orders were made for an improper purpose, that in making them the Minister failed to have regard to various relevant considerations, asked the wrong question or took into account irrelevant considerations, and was obliged to but failed to afford the plaintiffs natural justice and acted unreasonably.

In his reasons for judgment, Justice Beech-Jones noted that it was not the Court’s function to determine the merits of the exercise of power by the Minister to make the various orders, much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant. It was also noted that it was not the Court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines especially their capacity to inhibit the spread of the disease. These are all matters of merits, policy and fact for the decision maker and not the Court. Instead, Justice Beech-Jones noted that it was the Court’s only function to determine the legal validity of the 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.

One of the main grounds contended by all plaintiffs was the effect of the orders on the rights and freedoms of those persons who chose not to be vaccinated – especially their ‘freedom’ or ‘right’ to their own bodily integrity. On this point, the Court held that the proper analysis is that the orders curtailed freedom of movement, which in turn affected a person’s ability to work (and socialise). With regards to the right to bodily integrity, the Court held that it is not violated as the orders do not authorise the involuntary vaccination of anyone. The orders curtailed the free movement of persons including their movement to and at work, which are the type of restrictions that the PHA authorises.

In setting out his reasons, Justice Beech-Jones summarised as follows:

  • The plaintiffs did not demonstrate that the making of the orders was not a genuine exercise of power by the Minister. The Court found that the Minister was not obliged to afford the plaintiffs or anyone else procedural fairness in making the orders.
  • It was not demonstrated that the manner in which the orders were made was unreasonable or that the operation and effect of the orders could not reasonably be considered to be necessary to deal with the identified risk to public health and its possible consequences.
  • Order 2 did 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.
  • There was no inconsistency between Order 2 and the Australian Immunisation Register Act 2015 (Cth) (with reference to the plaintiff’s contention that Order 2 is rendered inoperative under section 109 of the Constitution because it is inconsistent with the Immunisation Register – which imposes an obligation on a registered vaccination provider who administers a relevant vaccine to report that fact within a specified period).

The outcome of these proceedings was highly anticipated, given the challenge on the orders requiring mandatory vaccination, which many individuals are now subject to. It is likely that we will see further challenges of this nature, in various States. However, one may expect that challenges of a similar nature to those outlined above will likely meet a similar fate in the Courts. Nonetheless, each State may face challenges to its own public health orders and we will wait with bated breath to see what outcomes are achieved.

Francine Hoyne-Clancy
Senior Associate, Workplace Relations/Employment Law