Kassam & Ors v Hazzard & Ors [2022] HCATrans 131 (12 August 2022)

Last Updated: 15 August 2022

[2022] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S3 of 2022

B e t w e e n -

AL-MUNIR KASSAM

First Applicant

GEORGE NOHRA

Second Applicant

JELENA ZMIRIC

Third Applicant

and

BRADLEY HAZZARD

First Respondent

KERRY CHANT

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

ALEXANDREA GOUNDOULAS

Fifth Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 12 AUGUST 2022, AT 12.30 PM

Copyright in the High Court of Australia

____________________

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances.

MR P.E. KING appears with MR J.M. HARKESS for the applicants. (instructed by Ashley, Francina, Leonard and Associates)

MR S.J. FREE, SC appears with MR T.O. PRINCE for the third respondent. (instructed by Crown Solicitor (NSW))

GAGELER J: I note that there is a submitting appearance for each of the first, second and fourth respondents, and I note that there is no appearance for the fifth respondent.

Mr King.

MR KING: Thank you, your Honours. Your Honour, this application concerns the proper construction of Public Health Act 2010 (NSW) section 7, particularly subsection (2)(b) which has been and remains New South Wales’ primary public health legal response to COVID‑19 by means of directions given by the first respondent Minister.

The trial judge, with whom the Court of Appeal generally agreed, your Honours, found the challenge directions given by the Minister to the applicants “draconian” and substantially impaired their fundamental common law rights, particularly as to freedom of movement, giving them standing to sue, but then concluded that being “very broadly stated” subsection (2)(b) was unfettered, affording the Minister what was described as maximum flexibility possible in law.

For the reasons set out in the written argument, the applicants respectfully submit the special leave questions attract the appellate attention of this honourable Court. Beyond them, the appeal raises the larger question, whether New South Wales public health law is properly construed fit for purpose or represents a flawed template.

Your Honours, special leave is not opposed by the respondent on the first three issues of law, being questions of construction on the ground of mootness or utility. That, with respect, is ‑ ‑ ‑

GAGELER J: I am not sure that is – I see, go ahead, Mr King. I misunderstood you.

MR KING: That, with respect, is correct, because those issues do have special utility moving forward, not just for the applicants but for all Australians, as found by the presiding judge, as his Honour then was, at page 108, and the primary judge. Special leave in respect of the fourth argument of legal unreasonableness is not now pressed before your Honours.

Turning then to our first special leave question. It is whether on the proper construction of subsection (2)(b) of section 7 the power conferred is executive in character which the Minister exceeded by giving directions of a legislative or hybrid character fatal to their validity. The respondents have two fundamental answers to that case, adopting the Court of Appeal reasons. The most detailed reasoning on this issue is found in the reasons of Justice Leeming, commencing at paragraph 144, page 179, with whom the other judges agreed.

The first answer to the applicants’ case is really to confess and avoid, that is, to reason that the legislative executive distinction in Australian public law founded on the separation of powers no longer exists because, to adopt Justice Leeming’s words at paragraph 154, page 182, with whom Justice Bell expressly agreed at paragraph 78, page 161 of the application book, the distinctions are:

undeveloped or unascertainable –

and misconceived as:

importing an implied constraint –

In other words, the simple analysis of Lord Diplock relied upon by the applicants in McEldowney v Forde, and of Justice French, as his Honour then was, in Evans v State of New South Wales, of construing the power as executive and the directions given under it as legislative or hybrid, giving rise to a non‑compliance fatal to validity is disregarded or rejected by the Court of Appeal in the respondents’ approach because, they say, the distinction is out of date or impossible to make.

The applicants respectfully contend that the reasoning of the Court of Appeal on this issue is contrary to authority, against fundamental principles of the rule of law, and has led to a miscarriage of justice to the applicants. First, as to authority, in the leading case in this Court of Commonwealth v Grunseit referred to in the courts below, Chief Justice Latham stated the authoritative test as to the distinction, since frequently cited and applied. None of the cases, I should add, refer to any implied constraint as arising from the distinction.

In Grunseit the Minister has made direction under the National Security Act, then expressed in wide powers, wide terms not dissimilar to that in the present case. The legislative executive distinction adopted by the Court in construing the legislation was critical to the result. Justice Williams relevantly held at 66 that “a discretion to direct” of the very type found in subsection (2) in this case is executive, not legislative in character. At 83 Chief Justice Latham agreed, saying:

The law is not altered by the direction of the Minister; it is neither extended nor limited.

The most recent acceptance of the relevance of the distinction by this honourable Court was in Griffith University v Tang in 2005 where obiter Justices Gummow, Callinan and Heydon noted the distinctions as significant, referring to them as preserved by the law, even if sometimes difficult to draw. Leading text writers Pearce & Argument in Delegated Legislation, 5th edition, page 200, acknowledge and use the distinction.

A more recent careful analysis is found in Sea Shepherd v Western Australia, a decision of Justice Edelman when sitting on that court. At 56 his Honour referred to the distinction as remaining:

of real importance in a number of areas of law –

Likewise, at intermediate appellate court level in . . . . . in Queensland, the Court of Appeal there expressly referred to the distinction and set out a list of desiderata. The tests there stated, however, were not considered or applied by the Court of Appeal in this case. At paragraph 154, page 182 of the court book, Justice Leeming referred to the distinction dismissively as:

a refuge of thought –

in a passage expressly agreed in by the presiding judge. Justice Dickson in Dignan, who was referred to, of course did not support those views. Apart from authority, the Court of Appeal reasoning is contrary to principle. The separation of powers in a modern state is more important than ever for safeguarding a fundamental common law right and lawful public decision‑making for reasons going back to the original statement of Principles of Good Government by Montesquieu. As Alexander Hamilton wrote in The Federalist, legislative, executive and judicial power in the same hands does not secure an impartial administration of the laws.

Finally, the reasoning effects a miscarriage of justice. Justice to Jelena, the third applicant, who has sought merits review of the Minister’s decision under subsection 7 in NCAT. But, as in Tang, so in this case, subsection (7) of 7 expressly preserves the distinction, ironically, your Honours, and this is not disputed in the respondents’ written case, the Minister has himself adopted the distinction in NCAT, by objecting to its jurisdiction on the ground that its decisions in Order 2 are legislative, not executive, hence not amenable to administrative review there as provided for by the Parliament.

Justice Leeming queried subsection (7)’s relevance to this issue as not greatly bearing on the nature of the power at reasons 160. However, with respect, Justice Leeming never examined the nature of the powers conferred by section 7. Subsection (7) incorporates by reference to the ADR Act (NSW), which confers a right of merits review of an executive character, substituting the Minister’s directions for NCAT’s own quote‑unquote correct and preferable decision. That is not a legislative decision, that is an executive decision par excellence.

For these reasons, your Honours, the legislative and executive distinction is not moribund, is not unascertainable, nor a refuge of thought. By not applying the law, the Court of Appeal has constructively failed to exercise its appellate jurisdiction, itself an appellable error. I said the Court of Appeal adopted a second error to the applicant’s case, by doing ‑ ‑ ‑

GAGELER J: Mr King, may I just interrupt there?

MR KING: Yes, of course, your Honour.

GAGELER J: If one were to adopt the distinction for which you contend and characterise the power conferred by section 7(2) to make an order as executive as distinct from legislative, what is the consequence for the scope of that power, in your submission? Where does that . . . . . ? What is the limitation?

MR KING: The limitations depend upon the proper construction of the provision. So, I will deal with subsection (3), for example, in a moment, which specifically refers to limits in relation to isolation and segregation, which the Parliament expressly dealt with in the second reading speech. So it, of course, depends on each case.

A good example, your Honour, in a health area, would be the Minister giving general directions under subsection (2)(b), for example, as to other departmental involvement or clean‑up. Then, under subsection (3), with respect to the specific provisions they are provided for – segregation, isolation and so on – the section works properly when construed, as we submit it does, a Diceyan carte blanche – as the learned Court of Appeal has decided is conferred on the Minister by subsection (2)(b), undermines the parliamentary intention in this case.

Your Honours, going on with the second question, their Honours put the matter a second way. They said subsection (2) is so broad it confers a hybrid, or dual operation, conferring two powers on the Minister; both executive and legislative. This appears in the reasons of Justice Leeming at 144, page 179, where he refers to “hybrid”, and later at 155, and in the reasons of the President – as his Honour then was – at page 77. It is submitted this answer, too, should be rejected.

First, as Professor . . . . . has demonstrated, the former long‑lived court hybrid, the Commonwealth Court of Conciliation and Arbitration, was held invalid in the Boilermakers case because the powers were just that, dual or hybrid, because a hybrid exercise of power by one public entity undermines the rule of law. Second, the incompatibility of these powers is of long standing in the common law. As early as 1702, Chief Justice Holt explained there are basic differences between legislative and executive powers. The standout example, of course, is the Henry VIII cause, a classic exercise of legislative not executive power.

Next, and critically, as the RPH decision in this Court demonstrates, there are very different ground of challenge for legislative and executive decisions, which demonstrates that a hybrid is a legal impossibility. For example ‑ ‑ ‑

GAGELER J: Mr King, I am still having difficulty understanding the practical import of this distinction you are drawing. Are you saying that an order under section 7(2) cannot give directions to more than one person?

MR KING: Of course, no, your Honour. That seems to be the argument of the respondents against us. No, we submit that it can be of a general character, as it was in Grunseit. It is just simply a mischaracterisation of our argument to say it is limited to individual persons.

GAGELER J: Well, what is your argument? What is the limitation that follows from the distinction that you are drawing?

MR KING: It cannot be legislative. It may be executive. The very distinction ‑ ‑ ‑

GAGELER J: I get that. Let us assume that it is executive. Grant that part of your argument, so what?

MR KING: Well, in this case, the directions were admittedly legislative. So, applying the test of Lord Diplock in McEldowney v Forde, or Justice French in Evans v New South Wales, there is a fatal disconformity.

GAGELER J: Mr King, what makes them legislative?

MR KING: What makes them legislative is a power, for example, which will overwrite other legislation, which may repeal or amend other laws which may have a general legal effect. So, if your Honour looks at subsection (2)(b) you will see it is a power to give directions, not to make directions, not to make law, or to take actions. It does not bind the Minister. It is not legislative, which it would do. If it was legislative it would bind the Minister himself, but these are directions made to third persons. They can be a large group of third persons subject, of course, to the proper construction of the powers and the operation of the principle legality about which Dr Harkess will speak shortly.

So, subsection (2) deals with a broad range of powers which are not limited to individuals, but not the deed powers that are involved in subsection (3), or the principle legality. There is a very clear distinction, in our respectful submission, which the cases refer to and which principle provides.

So, a good example, your Honour, on the very question you asked is natural justice. Natural justice is not a criticism. It could be – breach of natural justice is not a criticism, it can be made of the exercise of legislative power, except in very limited ‑ ‑ ‑

GAGELER J: I am not sure about that, Mr King. What about Bread Manufacturers v Evans, for example?

MR KING: Well, with respect, that was not an exercise of legislative power. What the authors – sorry, Pearce & Argument describe is a very limited right to introduce natural justice, whereas in relation to the exercise of executive power it is a broad and universal objection to the exercise of such powers. Other examples are relevancy and even irrationality, so they apply differently to the different powers that are there stated.

Of course, they have different legal effect, as Chief Justice Holt has said. So, your Honour, in our respectful submission, the Court of Appeal erred in condemning the applicants’ cases as based on unascertainable standards which do not exist or do not matter. The case law, principle and the injustice to my clients for not applying the distinction is a very good demonstration of it.

As I have said, the irony if not, with respect, hypocrisy of the first respondent objecting to my clients’ merits review application in NCAT because it is legislative, not executive, points up the potency of the distinction, even today.

Your Honours, the second special leave argument concerns the construction of subsection (3). We have set out very clearly why Anthony Hordern as explained by Justice Brennan in Danforth, is the proper approach. This is not a case where the Leon Fink, which is a narrow application of the provision, applies. The description by the respondent that this is a non-exhaustive exercise of power really makes no sense. The suggestion that subsection (2) should be construed by reference to subsection (3), even though the prescribed condition, to use Justice Dixon’s word in Anthony Hordern, was never exercised by the Minister, is a legal nonsense, in our respectful submission.

Your Honours, I now propose to ask Dr Harkess, my colleague at the Melbourne bar, to present our third special leave question.

GAGELER J: Why is that, Mr King?

MR KING: Your Honour, Dr Harkess is my esteemed colleague and we informed the Court that we would each make a presentation. He made very detailed presentations about this issue in the court below and it is one of his specialisations.

GAGELER J: Very well. There should be no assumption that two counsel will ordinarily be heard on the one special leave application
representing the interests of the same parties, but you may proceed, Mr Harkess.

MR KING: Thank you, your Honour. We did give notice, your Honour.

MR HARKESS: I am grateful for your Honours allowing me to just make a few brief points in relation to the issue of legality to supplement the written arguments. In my submission, there are two critical determinations made by the courts below that cannot be left undisturbed if the principle of legality is to be preserved. The most important of these is the issue of the right to bodily integrity. Now, the primary judge and indeed the Court of Appeal held that the impugned public health orders did not engage or violate the right to bodily integrity as a matter of principle.

It is submitted that must be wrong because as soon as the Minister chose to impose a condition on authorised workers that they could only attend the workplace if they are vaccinated, the right was engaged. The primary judge accepted that condition had a coercive effect yet oddly found consent to being vaccinated was not vitiated, but that seemed to overlook the critical point found in the principle of legality that a Minister of the Crown has no power to coerce a person into submitting themselves to a medical procedure of this nature under threat of being denied access to their workplace unless in accordance with well‑established principle in Coco and Binsaris in this Court that there must be clear unambiguous statutory authority. So, that is the first point. Once it is accepted that the right to bodily integrity is engaged, the principle of legality leads to the conclusion that section 7 does not authorise the making of such orders.

Now, the principle of legality, in my submission, referring to Mr King’s point about the legislative administrative distinction, can also be deployed to resolve this ambiguity as to whether or not section 7 permits the making of administrative powers or, indeed, legislative. The principle of legality would dictate that the interpretation of section 7 is limited to administrative decision‑making only and that is because legislative power by its very nature is designed to have a broad and sweeping coercive effect on the rights of the population at large. A power that has coercive effects on less people is of course administrative power which is ‑ ‑ ‑

GLEESON J: Dr Harkess, can I interrupt you?

MR HARKESS: Yes, your Honour.

GLEESON J: The Court of Appeal found that the orders did not have a coercive effect in relation to bodily integrity.

MR HARKESS: That is correct. So, the President Bell made the point that it did not have a coercive effect, but the primary judge did, which was odd. So, the point I make is that it clearly did have a coercive effect as soon as we recognise it is a condition that you be vaccinated, the imposition of a condition creates that coercive effect. The primary judge referred to it as an “encouraging effect” or, at most, assuming for his analysis it has a coercive effect. So that is a critical point in issue. Can a condition of this nature where there is no expressed power to impose a condition requiring vaccination have a coercive effect and therefore engage that principle of legality?

May it please the Court.

GAGELER J: Thank you, Mr Harkess. Mr Free?

MR FREE: If the Court pleases. Your Honours, can I begin by making ‑ ‑ ‑

GAGELER J: Mr Free, I am sorry, I will not interrupt you again – perhaps – but I do wish to hear what you have to say about section 7(7). In due course.

MR FREE: Thank you, your Honour, I will get to that shortly, I anticipate. Can I begin just by making a few brief remarks about utility? It is not a point we have taken up in the written response, but your Honours, we do submit that in assessing the asserted public importance and in the interest of justice on this special leave application, you would have regard to the lack of utility matter. This is dealing with the validity of an order which has expired, was repealed back in October of 2021.

Importantly, your Honours, there are references in our learned friends’ written argument to the General Order, which is the name given to the order which came into effect from October 2021, and was the replacement – in effect – for what was called Order (No 2); but the General Order was not challenged in these proceedings below, and is not in issue. It is important to clarify that point, so the Court would be dealing with – if special leave were granted – abstract questions of construction now separated from a live controversy. It would be relevant only to the validity of a past order, and there would be real questions about relief ever being appropriate in the circumstances. Our learned friends do not press their ground in relation to reasonableness – that had added problems – but we would submit it is a problem even in respect to the construction issues.

Can I touch on the three aspects of the construction issues, your Honours – briefly – dealing first with the administrative versus legislative dichotomy, with respect to much of what our learned friend said today, was directed to a false issue. It is not part of the Court of Appeal’s reasoning below, and is not part of our argument on the response, that there is no distinction between legislative and administrative exercises of power; it is a distinction which can be blurred, as Justice Leeming in particular observed, but it is a distinction that exists and assumes importance in particular contexts, for example in the ADJR Act context.

The point of the reasoning in the court below – which we respectfully submit is correct – is that it is not a distinction that is decisive or even of particular assistance in understanding the scope of the power in section 7 of the Public Health Act. Much of the argument your Honours heard today about the very fact that there is a distinction between the two – in our respectful submission – is misdirected.

The reasoning of their Honours Justice Leeming and the President below emphasised that to understand the scope of the power in section 7 orthodox principles of construction should be applied and it is a distraction to try to overlay on them some notion that the power despite the breadth of the terms and despite what the orthodox principles of text and context would tell you is to be artificially confined to administrative acts.

If I could take up your Honour Justice Gageler’s point about section 7(7), that is a legislative indication that perhaps some exercises of power under section 7 may generate decisions that are amenable to review in the Civil and Administrative Tribunal of New South Wales under the Administrative Decisions Review Act which, in turn, might suggest that particular actions, for example, particular directions given by an order may have an administrative character. And so, for example, the making of a direction under an order, or by an order, directed to a particular individual, if it took that form, might have an administrative character and that would be amenable to review in NCAT.

That, in our submission, is no more than an indication that that is within the scope of the power conferred by section 7. It is certainly not an indication that that is the full scope of the power conferred by section 7. To suggest that it has that effect and that the power in section 7(2) is so confined would, as the Court of Appeal effectively reasoned below, so severely restrict the scope of a power which is intended, we would say clearly, to be flexible and broad, that it is a very unlikely construction.

So, your Honours, the other indications as to the scope of the power conferred by section 7(2) include, as observed by the court below, that it is plainly intended to deal with the public and public risks in a way which would encompass orders and directions directed to may people at once. It is to be done in the form of an order published in a gazette, which is a further indication of the public character of it and the breadth of the application of it.

It leaves to the Minister the scope to determine the content of orders and the content of the directions that are given by such orders, which is at least broad enough to encompass an ability to create the rules rather than simply to apply pre‑existing rules to individual cases in the way that is characteristic of administrative decisions. So, for all of those reasons, the characterisation of this as a hybrid power which may encompass the making of orders which might have the character of being legislative or might have the character of being administrative, or which might generate directions that are administrative, in our submission, was a sound characterisation.

Your Honours, can I touch briefly on the Anthony Hordern argument? You have not heard much more about it orally today, so I will not dwell on it, but, can I just say, two critical characteristics go into why this is not an Anthony Hordern situation. Firstly, as their Honours observed below, there is only one power here . . . . . conferred this power in section 7 . . . . . purport to . . . . . confer a separate one, which is the . . . . .

GAGELER J: I am having difficulty hearing you. I think that might be shared by others.

MR FREE: Yes. I am sorry, your Honours. I do not know if anything has changed at this end. Is that any better, your Honours?

GAGELER J: That is, for my part.

MR FREE: All right. I am sorry about that. I am not sure what happened there, your Honours, but I will – I was just making an observation about the character of the power being a power in section 7(2) and subsection (3) not creating a separate power, such as would generate the basis for an Anthony Hordern analysis. It is also important to note that subsection (3) does not impose any additional preconditions in terms of the circumstances in which the power can be exercised or matters about which the Minster must be satisfied. It is no more than a description of a form in which an order can take when it incorporates the declaration of part of a State to be a public health risk area.

Your Honours, finally on the topic of the principle of legality, again, the only argument developed today orally was predicated on the notion that this exercise of power, or rather that the – I am sorry, I withdraw that ‑ that this order did interfere with the right to bodily integrity. The short point, your Honours, is that it did not, for the reasons the Court of Appeal held below.

The learned primary judge did not reach a conclusion that these orders operated in a way to coerce people to be vaccinated such as to amount to a legal interference or a practical consequence of interference with bodily integrity. What his Honour Justice Beech‑Jones did in paragraph 59 of the judgment at page 33 of the application book was to effectively hypothesise that that was the practical effect, noting that that was the argument. His Honour did not reach a conclusion that that was the true character of the orders.

So, your Honours, the other point to note about the asserted practical effect being one of coercion or compulsion to receive vaccination, as the court observed below, none of the plaintiffs – and as your Honours will know, there were multiple plaintiffs in two groupings – none of them had in fact been vaccinated, so there was nothing to indicate that in any of the individual cases that were before the court, had in fact been a practical consequence of compulsion. So, the premise, we would say, that this order is one which interferes with bodily integrity is wrong and the applicant would enjoy no reasonable prospects of success on that point. If the Court pleases, those are our submissions.

GAGELER J: Thank you, Mr Free. Mr King, do you have anything in reply?

MR KING: Thank you, your Honours. Your Honours, just in relation to the issue of utility. Firstly, that was conceded before the primary judge and the Court of Appeal in respect of the questions the subject of the special leave application. I have already referred to the observations of the presiding judge about the issues moving forward being of great relevance.

I just wanted to mention – I did mention Jelena’s case, she is the third applicant. We served an affidavit about these matters, your Honour, but of course have not filed in this Court because leave was not sought. Could I just mention her circumstances to demonstrate the significance of the utility? Jelena was dismissed by her employer on 29 July 2022, that is just two weeks ago, on the ground that she unreasonably relied on her medical practitioner’s contraindication certificate obtained in accordance with the Minister’s directions under Order 2, the very orders the subject of this appeal.

Jelena has sought since administrative review of the Minister’s decision under subsection (7). It can be expected the Minister will, as he has done in other cases such as Davis, object to NCAT’s . . . . . jurisdiction review under subsection (7) or seek to stultify it on the ground that his directions are legislative in effect, not executive, which, of course, is the power of NCAT, an executive agency of the State as found by
your Honours in the recent decision which I was involved in your Honours’ Court of Corbett v Burns. So, in our respectful submission, there is ‑ ‑ ‑

GAGELER J: Well, Mr King, that could give rise to a separate proceeding, could it not? An appeal to the Court of Appeal?

MR KING: No, your Honour, because it demonstrates utility in the present case in relation to that particular matter, and it does relate to Order 2, so they are ongoing issues relating to Order 2. Of course, all of the powers that have been exercised relate expressly to subsection (2)(b) which is the subject of this application.

Your Honour, my friend raised ‑ your Honour raised an issue about subsection (7) and whether it preserves the distinction, to use the language of this honourable Court in Griffith University v Tang to which I referred in my remarks. Your Honours would know that subsection (7) expressly incorporates the operation of the Administrative Decisions Review Act 1997 and that draws the very distinction to which we have referred and, therefore, in our respectful submission, makes the distinction highly relevant and, indeed, not only relevant but of utility for the reasons that I have just mentioned.

Your Honour, just finally, in relation to the issue concerning Hordern, my friend put a submission that Hordern only applies if there is a one – when one power is being exercised, but that is exactly what the primary judge said at paragraph 24. Hordern does apply here, for the very reasons powerfully put by Justice Brennan in Dainford.

Unless there is anything else I can assist your Honours with, those are our submissions.

GAGELER J: Thank you very much, Mr King. The Court will retire to consider the course it will take.

AT 1.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.12 PM:

GAGELER J: We are not persuaded that there is reason to doubt the correctness of the construction of section 7 of the Public Health Act adopted by the Court of Appeal. There will be an extension of time within which to file the application for special leave to appeal, but special leave to appeal is refused. Do you seek costs, Mr Free?

MR FREE: We do, your Honour.

GAGELER J: Do you have anything to say against that, Mr King?

MR KING: Just, your Honour, that this is one of those matters of public importance which engage broad cross‑sections of the community, something like half a million people were switched in on the hearings below. We would submit it is a case where Richmond could be applied.

GAGELER J: Were costs ordered in the Court of Appeal?

MR KING: They were.

GAGELER J: The application for special leave to appeal is refused, with costs.

The Court will now adjourn until 1.30 pm.

AT 1.13 PM THE MATTER WAS CONCLUDED