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Federal Court of Australia |
Last Updated: 28 June 2022
FEDERAL COURT OF AUSTRALIA
Knowles v Commonwealth of Australia [2022] FCA 741
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File number(s):
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Judgment of:
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Date of judgment:
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Catchwords:
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PRACTICE AND PROCEDURE – application
for joinder – application for removal of parties – whether party
sought to be joined has standing
– applications for joinder and removal of
parties granted
PRACTICE AND PROCEDURE – applications for summary dismissal and strike out – pleadings allege invalidity of certain measures relating to COVID-19 restrictions – pleadings allege invalidity due to contraventions of Constitution ch II and ss 51(xxiiiA) and 92, inconsistency with Fair Work Act 2009 (Cth), legal unreasonableness, breach of duty or duties of care, and contravention of Australian Consumer Law s 60 – whether pleadings have reasonable prospects of success – applications to strike out amended statement of claim granted – proceeding summarily dismissed – summary judgment in favour of respondents |
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Legislation:
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Constitution ss 51(ix), 51(xx),
51(xxiiiA), 51(xxxi), 92, 96, 109, 122, ch II
Freedom of Information Act 1982 (Cth) s 34(1)(b)
Workplace Relations Act 1996 (Cth) s 170NC
Federal Court Rules 2011 (Cth) r 9.08
Human Rights Act 2019 (Qld)
Public Health and Wellbeing Act 2008 (Vic) ss 165AB, 165AI, 189,
190, 198, 199, 200, 200(1)(b), 200(1)(d), pt 10 div 3
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth) Border Restrictions Direction (Qld) Border Restrictions Direction (No 14) (Qld) COVID-19 Directions (No 55) 2021: Directions for Mandatory Vaccination for Workers to Attend the Workplace (NT) COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) (Vic) COVID-19 Mandatory Vaccination (Specified Workers) Directions (No 8) (Vic) Freight Movement Code for Domestic Border Controls (Cth) Health Worker (Restrictions on Access) Directions (No 3) (WA) Mandatory Vaccination of Certain Workers – No 5 (Tas) Operational Protocol for Freight Movements entering Queensland (Qld) Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1) (Vic) Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1) (Vic) Protocol for Domestic Border Controls – Freight Movements (Cth) Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (NSW) Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) Public Health (COVID-19 General) Order 2021 (NSW) Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW) Vaccination Requirements for Certain Workers – No 10 (Tas)
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Cases cited:
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5 Boroughs NY Pty Ltd v State of Victoria
[2021] VSC 785
Athavle v State of New South Wales [2021] FCA 1075 Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 Binsaris v Northern Territory [2020] HCA 22; 270 CLR 579 British Medical Association v Commonwealth [1949] HCA 44; 79 CLR 201 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Commissioner of Taxation v Pham [2013] FCA 579; 134 ALD 534 Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059; 310 IR 399 Cotterill v Romanes  [2021] VSC 498  Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Davis v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCAFC 213 DBE17 v Commonwealth of Australia [2020] FCA 958 DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 General Practitioners Society in Australia v Commonwealth [1980] HCA 30; 145 CLR 532 Gerner v State of Victoria [2020] HCA 48; 270 CLR 412 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Harding v Sutton (No 2) [2021] VSC 789 Hill v Zuda Pty Ltd [2022] HCA 21 Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270 Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; 244 CLR 508 Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 Kassam v Hazzard (No 2) [2021] NSWSC 1599 Kassam v Hazzard [2021] NSWCA 299 Larter v Hazzard (No 2) [2021] NSWSC 1451 Loielo v Giles [2020] VSC 722; 63 VR 1 McCloy v New South Wales [2015] HCA 34; 257 CLR 178 Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 Minister for the Environment v Sharma [2022] FCAFC 35 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Minister of State for the Army v Dalziel [1944] HCA 4; 68 CLR 261 Murphy v State of Victoria [2014] VSCA 238; 45 VR 119 Ng v Commissioner of the Australian Federal Police [2022] WASCA 48 Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 P J Magennis Pty Ltd v Commonwealth [1949] HCA 66; 80 CLR 382 Palmer v Western Australia [2021] HCA 5; 95 ALJR 229 Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 Photographic Performance Co of Aust Ltd v Copyright Tribunal [2019] FCAFC 95; 270 FCR 645 Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 QNurses First Inc v Monash Health [2021] FCA 1372 R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; 158 CLR 535 RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526 Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331 Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; 205 FCR 227 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 Spencer v Commonwealth [2018] FCAFC 17; 262 FCR 344 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 Victoria v Commonwealth [1975] HCA 52; 134 CLR 338 White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 Williams v Commonwealth [2012] HCA 23; 248 CLR 156 Wong v Commonwealth [2009] HCA 3; 236 CLR 573 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; 266 CLR 428 Wroughton v Catholic Education Office Diocese of Parramatta [2015]
FCA 1236; 255 IR 284
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Division:
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General Division
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Victoria
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Administrative and Constitutional Law and Human Rights
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Number of paragraphs:
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Date of last submission/s:
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18 March 2022
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Solicitor for the Applicants:
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Ashley, Francina, Leonard & Associates
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Counsel for the First Respondent:
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Ms J Davidson with Mr C Tran
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Solicitor for the First Respondent:
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Australian Government Solicitor
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Counsel for the Second Respondent:
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Mr T Prince with Mr H Cooper
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Solicitor for the Second Respondent:
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Crown Solicitor’s Office
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Counsel for the Third Respondent:
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Mr A Pound SC with Mr S Frauenfelder
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Solicitor for the Third Respondent:
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Victorian Government Solicitor’s Office
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Counsel for the Fourth Respondent:
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Mr P Turner SC
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Solicitor for the Fourth Respondent:
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Office of the Solicitor-General (Litigation)
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Counsel for the Fifth Respondent:
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Mr A Shuy
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Solicitor for the Fifth Respondent:
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State Solicitor’s Office
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Counsel for the Sixth Respondent:
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Mr T Moses
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Solicitor for the Sixth Respondent:
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Solicitor for the Northern Territory
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Counsel for the Seventh Respondent:
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Ms F Nagorcka
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Solicitor for the Seventh Respondent:
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Crown Law
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ORDERS
THE COURT ORDERS THAT:
(a) file proposed agreed orders on any orders for lump sum costs in the proceeding (including reserved costs); alternatively(b) in the absence of agreement, file written submissions, limited to 5 pages for the applicants and 10 pages for combined submissions on behalf of all respondents, on the appropriate lump sum costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and a proposed form of order.
MORTIMER J:
(a) whether certain parties should be joined as applicants;(b) whether certain parties should be removed from the proceeding;
(c) whether summary judgment should be ordered in favour of the respondents against the applicants;
(d) whether orders should be made striking out all or parts of the applicants’ pleadings; and
(e) whether, if the proceeding continues, a protective costs order should be made in favour of the applicants.
(a) the Australian Capital Territory, by orders dated 28 February 2022; and(b) the State of South Australia, by orders dated 1 March 2022.
BACKGROUND
(a) the statement of claim alleged:(i) that:
The implementation of the National Plan and the steps that were being undertaken in respect of it were ... being implemented or undertaken in the context of a New World Order.
...
The New World Order is a form of government, having as its purpose the consolidation of the world’s economies to a single economy, and in which the international community are intending to assume responsibility for localised peace and security, with the active support of the world’s major powers.
(ii) the “State Orders” were invalid by contravening the Disability Discrimination Act 1992 (Cth), in that:
the fact that each of the Applicants and the Group Members are susceptible to an infectious disease at any time in the future, means as a consequence that they thereby have a disability for the purposes of section 48 of the Disability Discrimination Act 1992 (Cth).
(b) the originating application sought:(i) a declaration that the members of the Australian population who received vaccinations “received them in circumstances that amounted to an assault and a battery”; and
(ii) an order directing the Prime Minister of Australia, together with each of the Premiers and Chief Ministers of the States and Territories of Australia) to meet at the entrance to the Embassy of the Republic of Poland in Canberra and deliver the apology set out in the second schedule to the statement of claim. That draft apology included language to the effect that Prime Minister Scott Morrison, on behalf of himself and the Premiers and Chief Ministers, acknowledged responsibility for putting Australia in danger of falling into a state of lawlessness and totalitarian rule, and that his actions and behaviour constituted a breach of the Nuremberg Code.
(a) that certain ‘Measures’ (see [49], below) were invalid, because they were:(i) in contravention of s 51(xxiiiA) of the Constitution;(ii) in contravention of s 92 of the Constitution;
(iii) along with the ‘National Plan’ under which they were adopted (see [50], below), in contravention of Chapter II of the Constitution;
(iv) inconsistent with the Fair Work Act 2009 (Cth), and therefore liable to be struck down or declared void to the extent of such inconsistency pursuant to s 109 of the Constitution; and
(v) legally unreasonable;
(b) that the respondents breached the duty, or duties, of care the applicants contend are owed to them; and
(c) that the respondents contravened s 60 of the Australian Consumer Law (being sch 2 of the Competition and Consumer Act 2010 (Cth)) in connection with the provision of vaccines.
(a) an affidavit of Mr Robert Balzola dated 20 December 2021;(b) a supplementary affidavit of Mr Balzola dated 4 January; and
(c) two affidavits of Mr M Hopkins dated 2 March 2022.
(a) an affidavit of Mr Cameron John Retallick dated 28 January 2022 in support of the Commonwealth of Australia’s IA dated 28 January 2022;(b) an affidavit of Ms Ava Hurley dated 28 January 2022 in support of the State of New South Wales’ IA dated 28 January 2022;
(c) an affidavit of Ms Janine Margaret Hebiton dated 28 January 2022 in support of the State of Victoria’s IA dated 28 January 2022;
(d) an affidavit of Mr Simon Roberts dated 28 January 2022 in support of the State of Tasmania’s IA dated 1 November 2021;
(e) an affidavit of Ms Tisha Tejaya dated 28 January 2022 in support of the NT’s IA dated 28 January 2022; and
(f) an affidavit of Mr Paul Andrew Lack dated 28 January 2022 in support of the State of Queensland’s IA dated 28 January 2022.
THE APPLICANTS’ REMOVAL AND JOINDER APPLICATIONS
(a) the Hon Bradley Ronald Hazzard;(b) Dr Kerrry Gai Chant;
(c) Dr N Deborah Friedman; and
(d) Prof Benjamin Cowe.
(a) Cienna Knowles, who the applicants seek to join as the first applicant, replacing the former first applicant Monica Smit. Ms Knowles is described as a resident of the Central Coast of NSW, and as having been “non-consensually double-vaccinated, resulting in her hospitalisation as a consequence of adverse effects, and the loss of her employment and other opportunities”;(b) John Harding, who is a small businessperson resident in Melbourne, working as an electrical contractor. The ASOC contends that Mr Harding is “unable to work in the construction industry unless he submits himself to vaccination” and that “[h]is liberties to move about the State have been curtailed”;
(c) Harding Electrical Pty Ltd, which is described as the small business of Mr Harding, and as carrying on business in the construction industry involving the installation of solar panels. The ASOC contends Harding Electrical Pty Ltd can no longer carry on business in Victoria unless its workers provide it with their vaccination records, which is “something that it does not believe that it is at liberty to require of them”;
(d) Murat Temel, described by counsel for the applicants as a small businessperson running a hairdressing business in NSW. The ASOC pleads that Mr Temel is not able to carry out his business, and is not able to move about the State of NSW as a free person;
(e) Michael Temel Hair Pty Ltd, which is described as the small business of Mr Temel, through which Mr Temel carries on a hairdressing business in Parramatta. The ASOC pleads Michael Temel Hair Pty Ltd has not been able to carry out its business;
(f) Antoine Sandroussi, who was described by counsel for the applicants at oral hearing as a small businessperson and truck driver from the State of Queensland. In the ASOC it is contended he is a resident of South Western Sydney. The applicants contend Mr Sandroussi has been adversely affected by measures in Queensland and NSW, and that he “submitted himself to vaccination in circumstances as amounted to coercion, and without the giving of prior medical consent”;
(g) Serafine Nichols, who is a resident of Western Australia and described as an employee of the Western Australian government. The ASOC contends she was affected by measures “in various ways”, including by the termination of her employment;
(h) Mikailah Lehmann, who is a Tasmanian resident working as a health professional, an occupational therapist and disability support worker. The ASOC pleads she has been unable to carry on her business; and
(i) Alison Zerk, who is described as being a former resident of the NT. The ASOC pleads that she was “also affected by the border issues, fled the NT to escape the operation of the laws in that state and was rendered homeless”. She is described as currently residing in South Australia.
She allegedly attempted to set up a protest concerning the lockdowns and the restrictions that were imposed in the State of Victoria. She was imprisoned for 22 days. Her liberties to move about the State of Victoria have been severely curtailed and her movements in the State of Victoria have been followed by police.
Conclusion on removal and joinder
[2021] VSC 498 at [132] .APPLICABLE PRINCIPLES
OTHER IMPORTANT DECISIONS ABOUT COVID-19 RESTRICTIONS
Palmer
The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect.
Kassam (NSWSC)
The main focus of the two proceedings the subject of this judgment is those aspects of those orders which 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.
Kassam (NSWCA)
intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.
Cotterill
Loielo
Larter
5 Boroughs
Gerner
THE INSTRUMENTS, BODIES AND DECISIONS OR CONDUCT IMPUGNED BY THE APPLICANTS
I find that the National Cabinet was established by a collective decision of COAG [Council of Australian Governments] on 13 March 2020. This, ultimately, was the submission of counsel for the respondent.
(a) the making of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (2020 Biosecurity Declaration) on 20 March 2020 pursuant to s 475 of the Biosecurity Act 2015 (Cth);(b) a series of intergovernmental agreements and protocols, lockdown measures and restrictions (including the Measures) that have been imposed on the freedom of movement and the exercise of civil liberties of the population of Australia; and
(c) “a system and by way of a civil conscription for the vaccination of the population (with vaccines that were recommended, obtained, and paid for by the Commonwealth)”.
Commonwealth
(1) The Governor‑General may declare that a human biosecurity emergency exists if the Health Minister is satisfied that:(a) a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and(b) the declaration is necessary to prevent or control:
(i) the entry of the listed human disease into Australian territory or a part of Australian territory; or(ii) the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.
Note 1: The declaration is a human biosecurity emergency declaration (see section 9).
Note 2: For revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.
Note 3: A human biosecurity emergency declaration may be varied under section 476. Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to variation of a human biosecurity emergency declaration.
(2) A human biosecurity emergency declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.
Requirements for human biosecurity emergency declaration
(3) A human biosecurity emergency declaration must specify:(a) the listed human disease to which the declaration relates; and(b) the nature of the human biosecurity emergency and the conditions that gave rise to it; and
(c) the period during which the declaration is in force.
Note 1: The listed human disease specified under paragraph (3)(a) is the declaration listed human disease (see section 9).
Note 2: The period specified under paragraph (3)(c) is the human biosecurity emergency period (see section 9).
(4) A human biosecurity emergency period:(a) must not be longer than the period that the Health Minister considers necessary to prevent or control:(i) the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or(ii) the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; and
(b) in any case, must not be longer than 3 months.
Note: A human biosecurity emergency period may be extended under section 476.
(Original emphasis.)
The movement of domestic freight via heavy vehicles and freight trains is critical to ensuring supply chains continue to operate smoothly and individuals, businesses and service providers can access the goods they need. Any movement of freight-related workers across the country or through communities needs to be balanced with the safety of both the workforce and broader community.
Greater consistency in border management of supply chains will assist industry to comply. Where any variations exist between jurisdictions, these need to be clearly communicated to the freight and logistics industry, border control authorities and national regulators.
Victoria
(a) a number of directions made under the ss 165AB and 165AI of the Vic PHW Act that were “[p]resently” in force (ie at the time of the filing of the ASOC), having come into effect at 11:59 pm on 15 December 2021. They are:(i) Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1); and(ii) Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1); and
(b) a number of directions that were formerly in force, having been revoked at 11:59 pm on 15 December 2021, and which were made pursuant to ss 189, 190, 198, 199 and 200 of the Vic PHW Act, being the:
(i) COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13);(ii) COVID-19 Mandatory Vaccination (Specified Workers) Directions (No 8); and
(iii) the predecessors to those instruments.
165AB Premier may make a pandemic declaration
(1) The Premier may make a declaration under this subsection (a pandemic declaration) if the Premier is satisfied on reasonable grounds that there is a serious risk to public health arising from—(a) a pandemic disease; or(b) a disease of pandemic potential.
(2) The Premier must consult with, and consider the advice of, the Minister and the Chief Health Officer before making a pandemic declaration.
(3) The Premier may make a pandemic declaration whether or not, at the time the declaration is made—
(a) the pandemic disease is present in Victoria; or(b) the disease is a disease of pandemic potential that is present in Victoria—
as the case requires.
(4) The validity of a pandemic declaration is not affected by either of the following—(a) the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a disease of pandemic potential, but the disease was a pandemic disease at that time;(b) the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a pandemic disease, but the disease was a disease of pandemic potential at that time.
...
165AI Minister may make a pandemic order
(1) The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health.(2) Without limiting subsection (1), a pandemic order may include, but is not limited to, an order—
(a) that requires persons to be detained in a pandemic management area for the period specified in the order—(i) if the conditions specified in the order are satisfied; or(ii) in the circumstances specified in the order; or
(b) that requires that the detention of persons in a pandemic management area be extended for the period specified in the order—
(i) if the conditions specified in the order are satisfied; or
(ii) in the circumstances specified in the order; or(c) that restricts movement in a pandemic management area; or(d) that requires movement in, into or from a pandemic management area; or
(e) that prevents or limits entry to a pandemic management area; or
(f) that prohibits or regulates gatherings whether public or private in a pandemic management area; or
(g) that requires the use of personal protective equipment in a pandemic management area; or
(h) that prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area; or
(i) that requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records; or
(j) that requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area; or
(j) that requires the quarantining, destruction or other management of disease vectors in a pandemic management area.
Note
A person can be detained in the exercise of a pandemic management power: see sections 165B(1)(b) and 165BA(1)(b). Special protections apply to detention under this Part, including the right of a detained person to apply for review by a Detention Appeals Officer of the detention: see Division 6.
(3) A period of detention specified in a pandemic order must not exceed the period that the Minister believes is reasonably necessary to eliminate or reduce a serious risk to public health.(4) Without limiting subsection (2)(b), the reasons for making a pandemic order that requires the extension of a period for which persons are detained may relate to a refusal or failure to comply with a requirement to undergo a medical examination or a medical test.
(Original emphasis.)
Vaccination information
(1) If a worker is, or may be, scheduled to work at a specified facility after the commencement of these directions, the operator must collect, record and hold vaccination information about the worker.
...
- Operator must take reasonable steps to prevent entry of unvaccinated workers
Prevention of entry to premises
(1) An operator of a specified facility must take all reasonable steps to ensure that a worker who is:(a) for the period before the relevant full dose deadline, unvaccinated; or(b) for the period on and after the relevant full dose deadline, unvaccinated or partially vaccinated,
does not enter, or remain on, the premises of the specified facility for the purposes of working at the specified facility.
...
6 Limits on work outside ordinary place of residence
(1) If:(a) a person is a worker; and(b) it is reasonably practicable for the person to work at the person’s ordinary place of residence,
an operator of a specified facility must take all reasonable steps to ensure that the person does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility, unless:(c) the operator collects, records and holds vaccination information about the person; and(d) the person is:
(i) fully vaccinated; or
(ii) an excepted person.
Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.
(Original emphasis.)
4 Employer must collect, record and hold vaccination information
Vaccination information
(1) If a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence after the commencement of these directions, the employer of the worker must collect, record and hold vaccination information about the worker.
...
- Employer must ensure unvaccinated workers do not work outside ordinary place of residence
No work outside ordinary place of residence
(1) An employer of a worker must not permit a worker who is:(a) for the period before the relevant full dose deadline, unvaccinated; or(b) for the period on and after the full dose deadline, unvaccinated or partially vaccinated, to work for that employer outside the worker’s ordinary place of residence.
(2) For the purposes of subclause (1)(a), if an employer does not hold vaccination information about a worker, the employer must treat the worker as if the worker is unvaccinated.
...
- Limits on work outside ordinary place of residence
(1) If:(a) a person is a worker; and(b) it is reasonably practicable for the person to work at the person’s ordinary place of residence,
an employer of the person must not permit the person to work for that employer outside the person's ordinary place of residence, unless:(c) the employer collects, records and holds vaccination information about the person; and(d) the person is:
(i) fully vaccinated; or
(ii) an excepted person.
Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.
(Original emphasis.)
New South Wales
(a) Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, which commenced at 7:08 pm on 26 June 2021;(b) Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, which commenced on 31 July 2021;
(c) Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, which commenced on 21 August 2021; and
(d) Public Health (COVID-19 General) Order 2021, which commenced on 11 October 2021.
(1) This section 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.(2) In those circumstances, the Minister—
(a) may take such action, and
(b) may by order give such directions,
as the Minister considers necessary to deal with the risk and its possible consequences.
(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary—
(a) to reduce or remove any risk to public health in the area, and
(b) to segregate or isolate inhabitants of the area, and
(c) to prevent, or conditionally permit, access to the area.
(4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order.(5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order.
(6) 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 the State Emergency and Rescue Management Act 1989.
(7) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—
(a) any action taken by the Minister under this section other than the giving of a direction by an order under this section,(b) any direction given by any such order.
20 Direction of Minister concerning staying at home
(1) The Minister directs that an affected person must not without reasonable excuse—(a) be away from the person’s place of residence, wherever located, or(b) if the person is staying in temporary accommodation, wherever located—be away from the temporary accommodation.
(2) For the purposes of subclause (1), a reasonable excuse includes doing an activity specified by Schedule 1.
(3) For the purposes of subclause (1)(b), it is a reasonable excuse to leave the temporary accommodation if—
(a) the period of the booking of the temporary accommodation expires, and(b) the person goes directly to the person’s place of residence or other temporary accommodation, and
(c) the person continues to comply with this clause.
(4) Subclause (2) does not permit a person to participate in a gathering in contravention of Part 2 or this Part, Division 3.
(5) Taking a holiday is not a reasonable excuse.
(6) This clause does not apply to a person who is homeless.
21 Direction of Minister concerning entering Greater Sydney
(1) The Minister directs that a person outside of Greater Sydney must not, without reasonable excuse, enter greater Sydney.(2) For the purposes of subclause (1), a reasonable excuse includes—
(a) entering to go to the person’s place of residence in Greater Sydney, or(b) doing an activity specified in Schedule 1, items 2–4, 6 or 8–16, or
(b1) obtaining food or other goods or services if—(i) the food, goods or services are for the personal needs of the person’s household or for other household purposes, including for vulnerable persons or pets, and(ii) the food, goods or services, or equivalent food, goods or services, are not reasonably available outside Greater Sydney, or
(c) attending a funeral memorial service, or a gathering following a funeral or memorial service, at which there are no more than 10 persons, excluding the person conducting the service and any other person necessary for the conduct and preparation of the service.
(3) Subclause (2) does not permit a person to participate in a gathering in contravention of Part 2 [ie, the restrictions on work, gatherings and premises generally] or this Part, Division 3.(4) Taking a holiday in Greater Sydney is not a reasonable excuse.
(5) (Repealed).
4.3 Leaving area of concern for work
(1) A person whose place of residence is in an area of concern must not leave the area of concern for the purposes of work unless the person is an authorised worker.(2) An authorised worker who is at least 16 years of age and is leaving an area of concern for work must—
(a) carry evidence showing the person’s name and place of residence, and(b) produce the evidence for inspection if requested to do so by a police officer.
(3) This clause does not apply to a person who has not been in the area of concern during the previous 14 days.
(4) In this clause—
authorised worker means a person who is authorised to work outside the area of concern because of an exemption under Part 7.
Note 1— A list of authorised workers is published on the NSW government website www.nsw.gov.au.
Note 2— See clause 5.8 for additional restrictions for workers who reside in an area of concern and who work on a construction site in Greater Sydney.
...
5.8 Vaccination required to work on construction sites in Greater Sydney
(1) A person whose place of residence is in an area of concern must not enter or remain on a construction site in Greater Sydney unless the person—(a) has had 2 doses of a COVID-19 vaccine, or(b) has had 1 dose of a COVID-19 vaccine at least 21 days ago, or
(c) has had 1 dose of a COVID-19 vaccine within the previous 21 days and has been tested for COVID-19 within the previous 72 hours, or
(d) has a certified medical contraindication and has been tested for COVID-19 within the previous 72 hours.
(2) The occupier of the construction site must not allow the person to enter or remain on the construction site unless satisfied that the person has complied with this clause.
(3) The person must, when entering or on the construction site—
(a) carry the required evidence, and(b) produce the required evidence for inspection if requested by—
(i) the person’s employer, or
(ii) the occupier of the construction site, or
(iii) a police officer, or
(iv) an authorised officer.
(4) A person has a certified medical contraindication if the person—(a) cannot have a COVID-19 vaccine due to a medical contraindication, and(b) has a certificate, in the form approved by the Chief Health Officer, from a medical practitioner that specifies the medical contraindication.
(5) This clause does not apply to the following persons—
(a) a person who enters or remains on a construction site because of an emergency,(b) a police officer,
(c) an authorised officer.
(6) In this clause—
Australian Immunisation Register means the Australian Immunisation Register kept under the Australian Immunisation Register Act 2015 of the Commonwealth.
required evidence means—
(a) evidence showing the person’s name and place of residence, and
(b) all of the following that apply to the person—(i) evidence from the Australian Immunisation Register that the person has had 1 or 2 doses of a COVID-19 vaccine,
Example— An online immunisation history statement or COVID-19 digital certificate from the Australian Immunisation Register.
(ii) evidence that the person has been tested for COVID-19,
Example— An SMS text message or email from the testing organisation.(iii) a certificate specifying a medical contraindication as required under subclause (4).
test for COVID-19 includes test for COVID-19 using a rapid antigen test in the way approved by the Chief Health Officer.
(Original emphasis.)
2.4 Maximum number of persons—places of residence
(1) If the place of residence of a household is in the general area and no member of the household is an unvaccinated adult, each member of the household who is over 18 years of age must not allow—(a) a visitor who is an unvaccinated adult to be at the place of residence, or(b) more than 10 visitors to be at the place of residence at any 1 time.
(2) If the place of residence of a household is in the general area and a member of the household is an unvaccinated adult, each member of the household who is over 18 years of age must not allow a visitor to be at the place of residence.
(3) A visitor must not be at a place of residence in the general area if—
(a) the person is an unvaccinated adult, or(b) a member of the household of the place of residence is an unvaccinated adult, or
(c) another visitor at the place of residence is an unvaccinated adult, or
(d) there are more than 9 other visitors at the place of residence.
...
2.18 Premises closed to unvaccinated adults
(1) The occupier of the following premises in the general area must take reasonable steps to ensure that an unvaccinated adult is not on the premises—(a) higher risk premises,(b) business premises that are hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours,
(c) recreation facilities (indoors),
(d) public swimming pools,
(e) information and education facilities,
(f) retail premises, but not critical retail premises,
(g) business premises that are auction houses,
(h) business premises that are betting agencies,
(i) gaming lounges,
(j) markets that do not predominantly sell food,
(k) properties operated by—
(i) the National Trust, or
(ii) the Historic Houses Trust.
(2) An unvaccinated adult must not be on premises referred to in subclause (1) in the general area.(3) The occupier of higher risk premises in the general area must ensure that a person who is under 16 years of age and who is not a fully vaccinated person is not on the premises unless the person is—
(a) on the premises to carry out work, or
(b) accompanied by a person who is—
(i) a member of the person’s household, and
(ii) a fully vaccinated person.
(4) This clause does not apply to a person who is on the premises for the following purposes—(a) because of a service to assist vulnerable members of the public, for example a food bank or a service providing for the needs of homeless persons,(b) to purchase food or beverages to be consumed off the premises,
(c) to attend a small funeral or memorial service or small wedding service,
(d) to use a click and collect service.
(4A) This clause also does not apply to a person who is on the premises if—(a) the premises are outside Greater Sydney, and(b) the person resides outside Greater Sydney, and
(c) the person has had only 1 dose of a COVID-19 vaccine, and
(d) the person is on the premises for the purposes of work.
(4B) Subclause (4A) and this subclause are repealed at the beginning of 1 November 2021.
(5) In this clause—
higher risk premises means the following—(a) entertainment facilities,(b) recreation facilities (major),
(c) hospitality venues,
(d) places of public worship,
(e) premises at which a significant event is being held, other than a small funeral or memorial service or small wedding service.
(Original emphasis.)
Western Australia
(a) a State of Emergency declared on 15 March 2020;(b) a Public Health State of Emergency declared on 23 March 2020; and
(c) the Health Worker (Restrictions on Access) Directions (No 3), which came into effect on 22 September 2021.
(1) The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State.(2) The Minister must not make a declaration under this section unless the Minister—
(a) has considered the advice of the State Emergency Coordinator; and(b) is satisfied that an emergency has occurred, is occurring or is imminent; and
(c) is satisfied that extraordinary measures are required to prevent or minimise —
(i) loss of life, prejudice to the safety, or harm to the health, of persons or animals; or(ii) destruction of, or damage to, property; or
(iii) destruction of, or damage to, any part of the environment.
(3) A declaration under this section is to include —
(a) the time when, and date on which, the declaration is made; and(b) the area of the State to which it applies.
(4) The making of a state of emergency declaration does not prevent the making of further state of emergency declarations in relation to the same or a different emergency.
(1) The Minister may, in writing, declare that a public health state of emergency exists in the whole of the State or in any area or areas of the State.(2) The Minister cannot make a public health state of emergency declaration unless the Minister —
(a) has considered the advice of the Chief Health Officer, given after the Chief Health Officer has consulted with the person holding the office of State Emergency Coordinator under the Emergency Management Act 2005; and(b) is satisfied that a public health emergency has occurred, is occurring or is imminent; and
(c) is satisfied that extraordinary measures are required to prevent or minimise loss of life or prejudice to the safety, or harm to the health, of persons.
(3) A public health state of emergency declaration —
(a) must include —(i) details of the public health emergency that is the basis of the declaration; and(ii) the time when, and date on which, the declaration is made; and
(iii) details as to whether the declaration applies to the whole of the State or to one or more specified areas of the State;
and(b) may limit the powers that may be exercised during the period for which the declaration is in force.
(4) The making of a public health state of emergency declaration does not prevent the making of further public health state of emergency declarations in relation to the same or a different public health emergency.
Access Restrictions Applying to Health Care Workers
- Subject to paragraphs 6 and 7, a person who is a hea1th care worker must not enter, or remain at:
(a) on and from the stage one commencement date, a tier one health care facility if the person has not been partially vaccinated against COVID-19; and(b) on and from the stage two commencement date:
- a tier one hea1th care facility if the person has not been fully vaccinated against COVID-19; or
- a tier two health care facility if the person has not been partially vaccinated against COVID-19; and
(c) on and from the stage three commencement date:
- a tier two health care facility if the person has not been fully vaccinated against COVID-19; or
- a tier three health care facility if the person has not been partially vaccinated against COVID-19; and
(d) on and from the stage four commencement date, a tier three health care facility if the person has not been fully vaccinated against COVID-19,
unless the person is present at the health care facility solely in a capacity other than as a health care worker.
Access Restrictions Applying to Health Support Workers
- Subject to paragraphs 6 and 7, a person who is a health support worker must not enter, or remain at:
(a) on and from the stage one commencement date, a tier one health care facility if the person has not been partially vaccinated against COVID-19; and(b) on and from the stage two commencement date, a tier one health care facility if the person has not been fully vaccinated against COVID-19; and
(c) on and from the stage three commencement date:
- a tier two health care facility if the person has not been partially vaccinated against COVID-19; or
- a tier three health care facility if the -person has not been partially vaccinated against COVID-19; and
(d) on and from the stage four commencement date:
- a tier two health care facility if the person has not been fully vaccinated against COVID-19; or
- a tier three health care facility if the person has not been fully vaccinated against COVID-19,
unless the person is present at the health care facility solely in a capacity other than as a health support worker.
(Original emphasis.)
Tasmania
(a) a declaration of a public health emergency by the Director of Public Health, made pursuant to s 14 of the Tasmanian PH Act and extended pursuant to s 15, with the table at [4] recording the latest extension as being made at 19 October 2021;(b) a declaration made pursuant to s 40 of the Tasmanian PH Act that COVID-19 is a notifiable disease; and
(c) two directions made under s 16 of the Tasmanian PH Act, being;
(i) the direction entitled Mandatory Vaccination of Certain Workers – No 5 made on 24 September 2021 under s 16 of the Tasmanian PH Act; and(ii) the direction entitled Vaccination Requirements for Certain Workers – No 10, which took effect from 31 October 2021.
14. Emergency declaration
(1) The Director, by any means the Director considers appropriate, may declare that a public health emergency exists if satisfied that the situation requires it.(2) The declaration is to specify –
(a) the nature of the public health emergency; and
(b) any area to which the declaration relates; and
(c) the period during which the declaration is in force.
(3) The Director is to notify the State Controller, within the meaning of the Emergency Management Act 2006, if the existence of a public health emergency is declared under this section.
...
16. Directions of Director
(1) While an emergency declaration is in force, the Director may take any action or give any directions to –
(a) manage a threat to public health or a likely threat to public health; or
(b) quarantine or isolate persons in any area; or
(c) evacuate any persons from any area; or
(d) prevent or permit access to any area; or
(e) control the movement of any vehicle.
(2) The Director may give any one or more of the following directions while an emergency declaration is in force:(a) that any specified person undergo –(i) a clinical assessment specified in the direction; or(ii) a clinical assessment, specified in the direction, conducted by a person, or a member of a class of persons, specified in the direction;
(b) that any specified person move to, or stay in, a specified area;
(c) that any substance or thing be seized;
(d) that any substance or thing be destroyed;
(e) that any other action be taken the Director considers appropriate.
(2A) A direction given under this section may specify the manner in which the direction is to be complied with.
(3) A person must comply with a direction of the Director given under this section.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 6 months, or both.
(4) A person who carries out a clinical assessment for the purpose of a direction given under subsection (2)(a) must provide to the Director a written report in relation to the assessment as soon as practicable after the assessment is completed.
Penalty: Fine not exceeding 25 penalty units.
(5) A direction given under this section ceases to be in force when the requirements of the direction have been satisfied.(6) The Director may revoke a direction given under this section.
(7) The Director must revoke under subsection (6) a direction as soon as practicable after he or she is satisfied that it is no longer necessary, for the purposes of managing a threat to public health or a likely threat to public health, for the direction to remain in force.
(8) If a direction given under this section, or an order under section 16C(1)(e), requires a person to be quarantined or isolated or to stay in a specified area, the Director, at the required intervals, must –
(a) consider whether it is necessary for the person to continue to be subject to the direction or order; and(b) if necessary in order to determine whether it is necessary for the person to continue to be subject to the direction or order, arrange for the clinical assessment of the person.
(9) The required intervals are intervals that the Director considers reasonable, but not less than once in every successive period of 7 days.
...
- Notifiable diseases and contaminants
The Director, by public notice, may declare –(a) a disease, whether communicable or non-communicable, that is specified in the notice, or all diseases, whether communicable or non-communicable, that are members of a class of diseases specified in the notice, to be notifiable diseases; and(b) an organism, or substance, that is specified in the notice, or all organisms or substances that are members of a class of organisms or substances specified in the notice, to be notifiable contaminants.
Queensland
(a) a public health emergency declared on 29 January 2020;(b) the Border Restrictions Direction, which commenced at 12:01 am on 26 March 2020 (as amended from time to time); and
(c) the Operational Protocol for Freight Movements entering Queensland (as amended from time to time).
319 Declaration of public health emergency
(1) This section applies if the Minister is satisfied—(a) there is a public health emergency; and(b) it is necessary to exercise powers under this chapter to prevent or minimise serious adverse effects on human health.
(2) The Minister may declare a public health emergency by a signed written order (a public health emergency order).
(3) However, before declaring a public health emergency the Minister must, if practicable, consult with the chief executive and the chief health officer.
(4) If it has not been practicable to consult with the chief executive or the chief health officer under subsection (3), the Minister must consult as soon as practicable after the declaration of the public health emergency.
(5) A public health emergency order takes effect from its declaration by the Minister by signed written order.
...
- Extending declared public health emergency
(1) A regulation may extend, or from time to time further extend, the period of a declared public health emergency.(2) A regulation made under this section commences on the day it is made whether or not it is notified on that day.
(3) A regulation extending or further extending the period of a declared public health emergency—
(a) must state the period, of not more than 90 days, by which the declared public health emergency is extended or further extended; and(b) expires at the end of the stated period unless the regulation is sooner repealed or it expires under section 324(3).
(4) Subsection (2) applies despite the Statutory Instruments Act 1992, section 32.
...
362B Power to give directions
(1) This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.(2) The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions—
(a) a direction restricting the movement of persons;(b) a direction requiring persons to stay at or in a stated place;
(c) a direction requiring persons not to enter or stay at or in a stated place;
(d) a direction restricting contact between persons;
(e) any other direction the chief health officer considers necessary to protect public health.
(3) A public health direction must state—
(a) the period for which the direction applies; and(b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.
(Original emphasis.)
Arrivals To Queensland
- A person who arrives in Queensland from another State or Territory of Australia must self-quarantine for a period of 14 days, unless they are an exempt person.
- Despite the direction in paragraph 2, an exempt person, who arrives in Queensland must self-quarantine for a period of 14 days if:
- they have been outside the border of Australia in the last 14 days; or
- they travelled in the last 14 days to particular areas of Australia. The particular areas of Australia that require self-quarantine will be decided by the Chief Health Officer and published on the Queensland Health website.
Additional Requirements For People Arriving By Aircraft
- Any person who arrives by aircraft may not enter Queensland unless they provide the following information upon arrival:
1. Personal and contact details;
2. The address where they intend to stay in Queensland;
3. Information about where they have travelled in the last 30 days; and
4. Any other information requested in an arrivals form.
...
- A freight and logistics operator who has been in another state or territory in the previous 14 days must not enter Queensland unless the person is fully vaccinated.
Note: Evidence of vaccination for paragraph 18 may be the person’s vaccination card, immunisation history or other written evidence provided by their general practitioner. The person will be required to show evidence if required by an emergency officer (public health).
...
43. Fully vaccinated means a person:
- has received the prescribed number of doses of a COVID-19 vaccine, and it has been 7 days since the final dose; or
- is under 16 years of age; or
- is unable to receive a COVID-19 vaccine because of a medical contraindication and has evidence of a medical contraindication; or
- has a medical certificate or letter from a medical practitioner registered under the Health Practitioner Regulation National Law (Queensland) certifying that the person is currently taking part in a COVID-19 vaccine trial and receipt of a Therapeutic Goods Administration approved vaccine would impact the validity of the trial.
Note: The medical certificate or letter from a medical practitioner about the clinical trial will only be valid for a period of time.
Note: Proof of receiving the prescribed number of doses of a COVID-19 vaccine includes a COVID-19 digital certificate, an immunisation history statement (printed or digital) or an international COVID-19 vaccination certificate.
(Original emphasis.)
Northern Territory
(a) a public health emergency declared pursuant to s 48 of the NT P&E Health Act on 18 March 2020 and subsequently extended pursuant to s 50 of that Act; and(b) the COVID-19 Directions (No 55) 2021: Directions for Mandatory Vaccination for Workers to Attend the Workplace, which took effect at 12.00 pm on 13 October 2021.
48 Declaration of public health emergency
The Minister may, in writing, declare a public health emergency if the Minister is satisfied:(a) circumstances of such seriousness and urgency exist that are, or threaten to cause, an immediate serious public health risk; and(b) after consulting the chairperson, as defined in section 8 of the Emergency Management Act 2013, of the Territory Emergency Management Council:
(i) a state of disaster or state of emergency has not been declared under the Emergency Management Act 2013 because of the circumstances; and(ii) it is not appropriate to declare a state of disaster or state of emergency under that Act.
52 CHO’s emergency powers
(1) If an emergency declaration is in force, the CHO [Chief Health Officer] may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration.(2) The actions the CHO may take include any of the following:
(a) reducing, removing or destroying the public health risk causing or threatening to cause the emergency;(b) issuing warnings in relation to the emergency;
(c) segregating or isolating persons in an area or at a particular place;
(d) evacuating persons from an area or a particular place;
(e) preventing persons accessing or entering into an area or a particular place;
(f) controlling the movement of vehicles within an area.
(3) The directions the CHO may give include directions requiring any of the following:
(a) a person to undergo a medical examination of a general nature, or of a stated kind, immediately or within the period stated;(b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period;
(c) a stated thing to be seized or destroyed;
(d) a stated person to provide oral or written information relating to the emergency.
4 These Directions apply to the following workers:(a) a worker who, during the course of work, is likely to come into contact with a vulnerable person;(b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;
(c) a worker whose workplace poses a high risk of infection with COVID-19;
(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory,
Note for direction 4(a)
To determine whether a person is a vulnerable person, a worker can ask the person directly or assume they are vulnerable if the worker is unsure. If a person does not disclose their vaccination status lo a worker, the worker should assume the person is vulnerable.
...
- For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.
- On and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the worker’s workplace.
Note for direction 7
It is expected that a third dose will be required for these workers in 2022. These Directions will be amended to add that requirement when the medical advice is more definite.
- Despite directions 6 to 7, a worker may attend the worker’s workplace without being vaccinated with an approved COVID-19 vaccine if the worker has evidence of a contraindication to all approved COVID-19 vaccines.
(Original emphasis.)
STRIKE OUT AND SUMMARY DISMISSAL
Unlike an application that pleadings be struck out, where it is the adequacy of the pleadings which is in issue, an application pursuant to s 31A not only permits – but requires – a consideration of matters outside the pleadings: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [3] to [8][2008] FCA 1920; , (2008) 252 ALR 41 at 43 to 44 per Finkelstein J. See also: Oliver v Commonwealth Bank of Australia (No 1) [2011] FCA 1440 at [23] per Perram J; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [8] per Pagone J.
A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.
(Emphasis added.)
Whatever these cases might say about less stringent approaches and “modern” case management, these authorities nevertheless emphasise that pleadings must still fulfil the “basic functions” of identifying the issues between the parties, disclosing an arguable cause of action or defence (as the case may be), and ensuring parties are apprised of the case to be met: see Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [7], extracted in Gilmour J’s reasons in Oswal at [8]. Macaulay J acknowledged those basic functions in Andrianakis at [38]. Weinberg J also referred to these basic functions in McKellar at [22], quoting a decision of Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; [1997] ATPR 41-591 at 44,151-44,153. The passages from the reasons of Mason CJ and Gaudron J in Banque Commerciale SA (en liqn) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286-287 make these functions clear.
THE CATEGORIES OF PLEADED ALLEGATIONS AND THE RESPONDENTS’ CHALLENGES
Section 51(xxiiiA) of the Constitution (ASOC [9], [10(iii)], [11(ia), (iv)], [21(iii)], [22], [23], [35(i)])
(a) the actions and decisions of the National Plan and/or the National Cabinet with respect to mandatory vaccination measures comprise joint action or a joint scheme between the Commonwealth and the States;(b) it is a purpose or effect of the National Plan to circumvent the application of s 51(xxiiiA) of the Constitution; and
(c) the Measures and National Plan amount to 'civil conscription' because they coerce or practically compel civilians to participate in the National Plan through “their submission to being “injected” with a Commonwealth authorised COVID-19 vaccine on an ongoing basis”.
Whether the Commonwealth provided relevant medical services, in that it has procured vaccines for the purpose of the pandemic response at its cost, provided and paid for the logistics of delivering those vaccines to the States and individual medical service providers, procured and paid health professionals at every level to immunise the population including the Applicants, and monitored, funded and supervised the States and Territories and implemented them through the joint action?
There could, in my opinion, be no more effective means of compulsion than is to be found in a legal provision that unless a person acts in a particular way he shall not be allowed to earn his living in the way, and possibly in the only way, in which he is qualified to earn a living.
(a) although neither the Measures nor the National Plan may stipulate certain consequences if a person is not vaccinated, neither require a person to be vaccinated or require a medical practitioner to vaccinate a person. They rely on similar findings in Kassam NSWCA at [38] and Kassam NSWSC at [272];(b) section 51(xxiiiA) can have no application to invalidate State and Territory laws, as it is a conferral of legislative power on the Commonwealth subject to the qualification stated in it. The respondents contend it is settled law that the opening words of s 51(xxiiiA), refer to the provision of those benefits by the Commonwealth, not the States and Territories. Further, there is no arguable analogy with case law on s 51(xxxi);
(c) the applicants’ attempt to ‘side step’ these basic propositions by the contention that the Commonwealth “required” the States and Territory to implement the impugned Measures should be rejected. There is nothing on the face of the instruments that suggests even at an arguable level that there was a joint scheme of civil conscription, or that the States and Territories were required by the Commonwealth to mandate the provision of vaccines. Even if contrary to the respondents’ submissions there is an arguable analogy with the s 51(xxxi) cases, present Full Court authority (Spencer v Commonwealth [2018] FCAFC 17; [2018] FCAFC 17; 262 FCR 344) is clear that more than “joint action” is needed;
(d) that leaves the challenge to the Commonwealth measures, and the applicant’s case cannot succeed in the face of High Court authority on s 51(xxiiiA), for reasons set out by the plurality in Wong. In Wong, Hayne, Crennan and Kiefel JJ at [195]-[197] endorsed the (dissenting) reasoning of Dixon J in BMA at 278, that “compulsion to serve” is inherent in the notion conveyed by the words ‘civil conscription’. Relying also on the joint judgment of French CJ and Gummow J in Wong at [60], the respondents submit “[n]othing in [the Measures and National Plan] compels, legally or practically, any medical practitioner to treat any person by giving them a vaccine”. The respondents acknowledge the different approach taken by Kirby J, who was also in the majority in Wong, but submit that a decision upholding a decision in line with five Justices of the High Court would not “stymie development of the law”; and
(e) the same arguments were advanced and rejected as “completely untenable” in Kassam NSWSC at [286]. The respondents submit that this conclusion was upheld by the NSW Court of Appeal, in rejecting leave to appeal on the constitutional grounds on the basis they lacked sufficient merit: Kassam NSWCA at [35], [38]-[40], Bell P, Meagher and Leeming JA agreeing. They submit that this ruling applied to “the whole of” the applicants’ constitutional argument.
A qualification to a new head of legislative power granted to the Commonwealth following a referendum cannot result in a diminution of State legislative power.
My conclusion
Section 51(xxiiiA) and Kirby and Heydon JJ in Wong
Normally, in our society, the provision of “medical and dental services” occurs pursuant to a private contract entered into between the healthcare provider and the patient. The purpose of incorporating a prohibition on “civil conscription” in the provision of such services is thus to preserve such a contractual relationship between the provider and the patient, at least to the extent that each might wish their relationship to be governed by such a contract.
(Citations omitted.)
The question in these appeals thus becomes how to define the point where the necessary, proper and inescapable intrusion into the private arrangements between the provider of “medical and dental services” and a recipient of such services passes beyond legitimate scrutiny for reasons of upholding the lawfulness and integrity of such payments and is converted, by its sheer detail and intrusiveness, into a prohibited “form of civil conscription”. No easy formula is available to identify that point.
Present authority on s 51(xxiiiA)
Implement the national vaccination plan to offer every Australian an opportunity to be vaccinated with the necessary doses of the relevant vaccine as soon as possible.
Exempt vaccinated residents from all domestic restrictions.
An operator of a specified facility must take all reasonable steps to ensure that a worker who is:(a) for the period before the relevant full dose deadline, unvaccinated; or(b) for the period on and after the relevant full dose deadline , unvaccinated or partially vaccinated,
does not enter, or remain on, the premises of the specified facility for the purposes of working at the specified facility.
Applying the s 51(xxxi) cases to s 51(xxiiiA)
Alleged contravention of s 92 of the Constitution (ASOC [55])
(a) the Measures were unnecessary, invalid, an improper use of power, unauthorised according to law, or not empowered by the relevant statute;(b) the effect of the Measures on trade between the States and Territories was “to bring it to its knees, and to wreak economic and financial devastation across the whole of the country”; and
(c) this is despite the alleged facts that COVID-19:
(i) “served the broad public benefit of eliminating Australia of Influenza for a period of almost 1 and a half years”; and(ii) had the effect that “the average age at which Australians who were said to have died from the Virus, well exceeded the median age of death of all other Australians”.
My conclusions
56. Minister may make state of emergency declaration
(1) The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State.(2) The Minister must not make a declaration under this section unless the Minister —
(a) has considered the advice of the State Emergency Coordinator; and(b) is satisfied that an emergency has occurred, is occurring or is imminent; and
(c) is satisfied that extraordinary measures are required to prevent or minimise —
(i) loss of life, prejudice to the safety, or harm to the health, of persons or animals; or(ii) destruction of, or damage to, property; or
(iii) destruction of, or damage to, any part of the environment.
(3) A declaration under this section is to include —
(a) the time when, and date on which, the declaration is made; and
(b) the area of the State to which it applies.
(4) The making of a state of emergency declaration does not prevent the making of further state of emergency declarations in relation to the same or a different emergency.
For the purpose of emergency management during an emergency situation or state of emergency, a[n] ... authorised officer may do all or any of the following –(a) direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around an emergency area or any part of the emergency area.
to close the border of Western Australia to all persons from any place unless they were the subject of exemption under the Directions.
First, Palmer was pleaded on the basis that the impugned provisions were the directions by made by the WA Health Minister restricting access to and from WA, whereas the High Court made it clear that s 92 operated upon the empowering provision of the WA law which authorised those directions, not the directions themselves. In the present case this objection is overcome by Ms Rusiti’s schedule to paragraph 4 of the ASOC which specifically includes the empowering provisions as impugned measures and the pleading in paragraphs 56 to 58 of ASOC which make clear it those empowering provisions which are challenged in the action.
In Palmer Edelman J however observed with respect to an s 92 challenge and this point at [224]: ‘There are two premises underlying the answer given by this Court. The first, as the State of Victoria correctly submitted, is that questions of constitutional validity should be determined at the level of an empowering statute [refer Wotton v Queensland (2012) 246 CLR 1 at 14 [22] leaving questions concerning the validity of actions taken under the statute, including regulations, directions and administrative action, to be resolved by reference to whether the valid statute empowers that action.’ Also see Gageler J at [109].
Second, Palmer is distinguishable because here different measures in other States and Territories are challenged. Whilst it is true the WA measures are also challenged the challenge is on a different and broader foundation to that in Palmer including that referred to in the first point but also on the ground of legal unreasonableness which Edelman J dealt with without resolving in Palmer at [286]. Also see Gageler J at [149].
(Original emphasis.)
Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?
On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs.
The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court.
(Emphasis added.)
The point being, that at the level of the exercise of power, you do not get to, or more accurately have already passed, the constitutional question because, on its proper construction, a decision that conformed to the statutory power could not be obnoxious to the implied freedom. Of course, the factors that keep a decision within power, including adherence to purpose, proportionality and reasonableness, may not be far removed from those that inform the anterior constitutional question of legislative validity but they remain conceptually distinct.
(Footnotes omitted.)
Whether the establishment and operation of the National Cabinet, and the making of the National Plan, are beyond the executive power of the Commonwealth under Chapter II of the Constitution (ASOC paras [10A]-[11])
not authorised by law, or comprise an unlawful exercise of executive power of the Commonwealth and of State executive power contrary to Constitution Part II.
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
taking the applicants’ case at its highest, their argument seems to be that the Commonwealth executive lacked the power to discuss with the States and Territories the best way to manage COVID-19 and lacked the power to agree with them as to what each polity ought to do.
In this case the Respondents have done that [ie circumvent s 51(xxiiiA)] through the unconstitutional National Cabinet. White J held in Patrick v Morrison [2021] AATA 2719 that the National Cabinet is unauthorised and unconstitutional.
In my view, it may be accepted that the Prime Minister of the day does have a discretion in the establishment of Cabinet committees, including as to their composition, number, terms of reference, relationship with the Cabinet and so on. It should also be accepted that the Parliament intended the term “committee of the Cabinet” should accommodate that flexibility. However, as indicated, the evidence does not provide a single example of a cabinet committee whose membership comprised persons who were not Ministers in the Government of the day, let alone not members of the Australian Parliament. More pertinently to the present case, it does not provide evidence of a single instance of a committee of the Cabinet comprised substantially of persons who are not even members of the Australian Parliament. The characterisation of such a committee as a committee of the Cabinet would be inconsistent with entrenched conventions of responsible government, including that the Cabinet is comprised of Ministers who are responsible and answerable to the Parliament. Counsel for the applicant referred to these conventions as “120 years of practice”. It is reasonable to infer that the FOI Act reflects these understandings.
extends to entry into governmental agreements between Commonwealth and [the] State[s] on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution.
(a) the so-called nationhood power (see Victoria v Commonwealth [1975] HCA 52; 134 CLR 338 at 397 (Mason J); Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 at [8], [95], [133] (French CJ), [241]-[242] (Gummow, Crennan and Bell JJ); Williams v Commonwealth [2012] HCA 23; 248 CLR 156 at [146] (Gummow and Bell JJ), [194], [196], [240] (Hayne J), [499] (Crennan J), [559] (Kiefel J));(b) the corporations power (Constitution, s 51(xx));
(c) the territories power (Constitution, s 122), insofar as the National Cabinet and the National Plan was with and included the Territories;
(d) the external affairs power (Constitution, s 51(xxix)), insofar as the agreements concerned entry into Australia and the creation of travel arrangements with other countries; and
(e) the quarantine power (Constitution, s 51(ix)), insofar as the National Cabinet and National Plan explicitly dealt with quarantine arrangements.
My conclusions
Whether the Measures are inconsistent with the FW Act and therefore inoperative by reason of s 109 of the Constitution (ASOC [18])
(a) require employers to exercise discriminatory workplace practices in respect of the hiring and retention of workers;(b) introduce a circumstance of coercion and undue influence or of pressure in the workplace, relating to the subjecting of workers to loss of employment and “economic devastation”;
(c) fail to have regard to actual risk and fail the tests of proportionality, necessity and reasonableness which are imposed by the provisions of the FW Act;
(d) create a hazard to workplace safety where an employee who receives a COVID-19 vaccination has a pre-existing condition which, “if they suffer circumstances of aggravation at work, may submit other members of the work place (or the public) to greater danger”;
(e) may increase the risk of harm to workers with pre-existing conditions who receive a COVID-19 vaccination; and
(f) reduce the immunity of workers who may have previously contracted the virus but are then required to subsequently take the vaccine.
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:(a) a conference conducted or hearing held by the FWC;(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).
...
343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply to protected industrial action.
344 Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:(a) make, or not make, an agreement or arrangement under the National Employment Standards; or(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).
...
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
(aa) the Age Discrimination Act 2004;(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti‑Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti‑Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti‑Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti‑Discrimination Act of the Northern Territory.
(Original emphasis.)
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:(a) the person has been dismissed; and(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
(1) A person has been dismissed if:(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or(b) the person was an employee:
(i) to whom a training arrangement applied; and(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or(c) the person was demoted in employment but:(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
(Original emphasis.)
(a) relying on Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236; 255 IR 284 at [77] and RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 at [112], the respondents submit s 351 is not a generalised anti-discrimination provision, but rather operates as a protection against “adverse action” (as defined in the FW Act) taken because of certain attributes;(b) an employer will not take adverse action in relation to a listed ‘attribute’ if they have acted to comply with a Measure. Rather, the employer has taken action because of the Measure; and
(c) not being vaccinated against COVID-19 is not a physical or mental disability within the meaning of s 351 of the FW Act.
My conclusions
sufficient to establish an intent to coerce to demonstrate that the person organising, taking or threatening the action intended it to negate the other person’s choice and that the person organising, taking or threatening the action had actual knowledge of circumstances that made his or her conduct coercive.
Whether the Measures (or any of them) were (and are) invalid on the ground that they were legally unreasonable (ASOC [36])
(i). Antiviral treatments including but not limited tobothHydroxychloroquine and Ivermectin were available in Australia as a treatment against the virus;(ii). (a). Hydroxychloroquine had been on a preferred list of medications for the treatment of the SARS outbreak in 2003 and was known as an available treatment for infectious diseases;
(ii). (b) the effect of the virus upon human health and mortality was being and has been overstated, most particularly by the mass media and across the world’s news services;
(iii). there was no immediate threat to human health on a nationally significant scale;
(iv). the wording of the declaration itself was to the effect that the human virus had pandemic “potential”, meaning and by consequence of the natural construction of the words used, that the circumstances of a severe and immediate threat to human health did not exist at the time;
(v). and accordingly there was no basis for the Governor General to have made the declaration at all, in that the conditions precedent as to its making did not exist.
and the declaration itself was of no legal consequence or effect.
Particulars(a). the persons most at risk from the virus, (and without meaning to minimise their importance or suffering in any way), were people suffering with comorbidities and the elderly;(b). the median age of claimed death of male persons in Australia is 78.9 years, and for females is 84.6 years;
(c). the median age of claimed death of members of the Australian population from the virus is 86 years of age, amongst the population of people whom to date are said to have passed away from it;
(d). nowhere among any population group or country in the world has the average age of death of that population declined by consequence of the virus and its impact upon that population;
(e). there is an infection survival rate of approximately 99.5% amongst people who contract the virus, and are under 70 years of age;
(f). the number of claimed deaths of persons across Australia in total, and who are said to have died from the virus from the 1 March 2020 to the 8 October 2021, (20 months), is 1,389, whereas in Australia there were 1,255 deaths due to influenza[ ]in 2017; and, the number of deaths from adverse effects according to official records exceed those from the virus;
(g). to the extent that, (and according to data produced by the Australian Bureau of Statistics), the last death in Australia that was attributed to Influenza was in July 2020, it arises that:
(i). large numbers of the deaths of people across Australia and that were said to have been attributable to the virus, were or are in fact attributable to influenza; or,
(ii). the presence of the virus across the Australian community was serving either to eradicate, to remove, or to cure the incidence of influenza right across Australia; or,
(iii). the spread of the virus throughout the community was saving people from dying from Influenza, such that the “severe and immediate” threat to human health that Influenza normally poses across Australia had been completely eradicated by the virus, and from which members of the Australian population had died in significantly reduced numbers.
(iv). With respect to Omicron, ATAGI and other public health authorities accept that a ‘double vaccination mandate’ is a futile or failed public health response.
(Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.)
Particulars(a). The MeasuresState Orderswere unreasonable in that they do not and have not had the effect of making anyone safe in any part of the State or Territory in which they were made, and they have not stopped the spread of COVID-19;(b). The Measures
State Orderssubjected the people to whom they were directed to risk of harm and injury;
(d) [sic] The Measures State Orders subjected the people of Australia to what was effectively a medical experiment, and were contrary to the principles enunciated in the Nuremberg Code 1947 and the UNESCO Universal Declaration on Bioethics and Human Rights, Article 6.
(Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.)
(a). Further, the impugned MeasuresOrdersin each State and Territoryare legally unreasonable and are invalid:(b).
In the case of the NSW Orders, failure to exercise the power that is confined by the usual implication of reasonableness under the Public Health Act, (section 7),Failure to make directions that are reasonable in light of the statutory purpose of dealing with public health risks generally;(c). The Measures are discriminatory in effect and disproportionate in their reach in comparison to the risk, to the unnecessary suffering and loss that it causes. They are unduly costly, and are unreasonable in their terms, their operation and effect;
(d). The NSW Order is a general emergency measure more appropriate under section 8 of the Public Health Act and fails to contain specific directions to particular persons with an identifiable risk profile, with respect to specific public health risk areas of the States and Territories;(e). The impugned Measures
StateOrdersare disproportionate in reach compared to the alleged risk, in that they involved blanket measures, and they were draconian and capricious in their impact on many persons for whom there was or is no demonstrated health risk;(f). The
directionsMeasures make no provision for inhabitants of an area whose health is at risk from the Measures imposed, including but not limited to pregnant women, those who work from home, those who suffer from pre-existing clotting conditions or whose existing medical conditions and that may be re enlivened or exacerbated by complying with the MeasuresState Ordersand taking thevaccinationinjections;(g). The Measures
directions and Ordersare made pursuant to the objectives of the National Plan and as part of the National Agreement, which plan has no regard to the particular needs or risk profile of individuals and purports to require the imposition of a forced medical procedure, by way ofvaccinationinjections;
(h) To the extent that the directions and the NSW Orders are made by reference to or as part of the ushering in of a New World Order, they are beyond the scope and reach of the provisions contemplated by the Public Health Act;(i) The Measures
StateOrdersfail to have regard to up to date international and Australian medical and scientific experts.
(Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.)
MR KING: Now, this is expressed, importantly, in line 3 of subsection (1) [of s 52 of the NT P&E Health Act], in a general way.
If an emergency declaration is in force, the CHO –
the health officer –
may take the actions, including giving oral or written directions, the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration.
So it’s a power to make oral or written directions he or she considers necessary, appropriate or desirable for a certain purpose. Those words are broad, they’re indeterminate, in a sense, and they – but they are covered by express authority as to their denotation and effect. But more particularly, what we submit in brief is this – that in the general, words such as that do not authorise any infraction, any incursion upon any fundamental human or legal right such as the right to bodily integrity as protected by Marion’s Case in relation to personal bodily integrity in relation to medical treatments, as stated. That’s the principle of legality. And indeed Northern Territory knows more about that as presently advised than anybody else, because recently in the High Court in Binsaris v The Northern Territory ...
So, we say that Marion’s case and the BMA case make it entirely clear, certainly at this level of the proceeding, that what the territory, Queensland and Victorian and WA laws have done, is to impose a vaccine mandate directly or indirectly, and that the principal legality applies whether it’s direct or indirect, and the words the CHA considers necessary, appropriate or desirable to alleviate the public health emergency situation stated in the declaration to not justify any incursion upon human rights or legal rights recognised by the law, and there are some of those rights, your Honour, and they’re set out in the decision of the High Court in ..... and it’s not necessary for me to take you to it at the moment, but for present purposes the right to freedom of movement and the right to bodily integrity are critical, but, your Honour, then Mr Moses asks your Honour to look at subsections (2) and (3) of section 52, and I would ask you to go down the page, and when we look closely it’s true.
It does give a specific power to segregate or isolate persons in an area or at a particular place, or evacuate persons, and then in subsection (3) to undergo a medical examination, but there is nowhere in that provision is there any specific power conferred to invade or violate the right to bodily integrity directly or indirectly, and, indeed, we would say upon a close examination of the words, even the right to freedom of movement. And that’s a question for trial, in our respectful submission, for those three states, and, indeed, for New South Wales as well.
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. It is also 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 (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 139 ALD 181; [2013] HCA 18 at [28], [66] and [108] (Li)[)]. Instead, 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.
(i). Antiviral treatments including but not limited tobothHydroxychloroquine and Ivermectin were available in Australia as a treatment against the virus;(ii). (a) Hydroxychloroquine had been on a preferred list of medications for the treatment of the SARS outbreak in 2003 and was known as an available treatment for infectious diseases;
(ii). (b) the effect of the virus upon human health and mortality was being and has been overstated, most particularly by the mass media and across the world’s news services;
(iii). there was no immediate threat to human health on a nationally significant scale;
(a) Athavle v State of New South Wales [2021] FCA 1075, which concerned a challenge to both the NSW and Victorian public health orders, and in which Griffiths J stated (at [100]):
I consider that the applicants’ claims of unreasonable disproportionality fall far short of the high threshold which attaches to this ground of review. Their challenge impermissibly invites the Court to determine on the merits complex policy choices. The applicants have not persuaded me that there is a serious question to be tired as to whether any of the three impugned instruments is so unreasonable as to be beyond power. As I have repeatedly emphasised, it is not the Court’s task to engage in a merits review of those policy choices. Those choices require a balance between competing interests. A primary interest will be public health and public protection but other interests need to be balanced. It is a matter for the executive and not the Court to strike that balance.
(b) Larter, where Adamson J rejected a challenge on the grounds of legal unreasonableness because (at [86]) the impugned orders were within the “range of decisions open to the Minister [which was], in this context, wide”.
My conclusions
where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.
(a) whether there was an “immediate threat to human health on a nationally significant scale” (ASOC at [14(iii)]);(b) whether the Measures had the effect of “making anyone safe in any part of the State or Territory in which they were made” and whether the Measures “stopped the spread of COVID-19” (ASOC at [36], particular (a));
(c) whether the Measures are “disproportionate in their reach in comparison to the risk, to the unnecessary suffering and loss that [they] cause[]” (ASOC [40(c)]); and
(d) whether the Measures are “unduly costly” (ASOC [40(c)]).
Leaving aside that the evidence did not establish COVID-19 vaccinations are “experimental”, as the State parties submitted, provisions such as cll 4.3 and 5.8 do not violate any person’s right of bodily integrity. Unlike, say, the court orders in Marion’s Case, they do not purport to confer authority on any person including a medical practitioner to perform a medical procedure on anyone. After the making of Order (No 2), any attempt to force an injection into the arm of anyone who lived in an area of concern or worked in the construction industry was still a battery.
....
It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. The judgment of La Forest, Gonthier and Cory JJ in Norberg was influenced by provisions of the criminal law reforming the definition of consent for assaults including sexual assault (Norberg at SCR 251). However, in the end result, the plaintiffs’ contentions are well beyond those boundaries. People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.
A further ground of review?
The MeasuresState Ordersfail to have regard to up to date international and Australian medical and scientific experts.
(Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.)
At the time of making the declaration and continuing declarations with respect to SARS COV-2 there was no evidence available to the Minister and / or the Director of Biosecurity including Australian Health Protection Principal Committee (AHPPC), ATAGI, TGA and AHPRA, to support clause 6 subparagraphs (b), (c) and (d).
Whether the government parties owed the applicants a duty of care in implementing the measures (ASOC [88]-[93A])
assumed a role protective of the community as parens patria with respect to private health and the Applicants in particular.
In so far as concerns the actions of governments, that they govern for the peace, order and good government of the people of Australia as provided for in the Public Health statutes of each Respondent, and that the actions of government should be carried out by reference to the sensible limitations and containment of Executive and Administrative power, by lawful means.
(Original emphasis; underlining and strikethrough, indicating amendment to the statement of claim filed on 11 October 2021, omitted.)
(a) Failure to adequately or at all investigate the efficacy of the proposed mRNA products.(b) Failure to adequately or at all investigate the safety of the proposed mRNA products.
(c) Failure to adequately or sufficiently warn the Applicants of adverse effects or possible adverse effects.
(d) Failure to consider known antiviral treatments including prophylactics and other antiviral medical treatments.
(e) Subjecting the population at large to the provisionally approved gene therapy treatment to the exclusion of other available or potential cures and proven antiviral treatments
(f) Failing to safeguard against State or Territory orders, including the Measures, that operate to vitiate consent including the applicants’ consent to provisionally approved gene therapy products.
(g) Failure by each Respondent to take reasonable steps to ensure that the exercise of executive power by the National Cabinet was lawful;
(h) Failure to take reasonable steps to make and develop Australian products reasonably available as potential cures and antiviral treatments.
(Original emphasis; underlining and strikethrough, indicating amendment to the statement of claim filed on 11 October 2021, omitted.)
(a) the alleged duty is formulated as one to achieve a particular result (eg “ensure that the steps undertaken ... would cause or do no harm”: ASOC at [90]);(b) the duty appears to be allegedly owed to all members of the Australian community;
(c) there is no differentiation between reasonable steps necessary to prevent the particular types of harm pleaded; and
(d) no standard of care required of each of the respondents is identified.
(a) it seeks to impose liability for core policy-making functions of the government respondents, performed in a highly political context and involving quasi-legislative powers;(b) ascertaining the duty of care would create incoherence in the law, as it would:
(i) be directly inconsistent with the statutory frameworks provided for in public health statutes in each of the respondent jurisdictions for the making of public health protection decisions (citing Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270 at [20]- [22]), including by impermissibly forcing decision-makers to give disproportionate weight to the potential liability for any type of loss (including financial loss) that might result from the exercise of the relevant public health powers; and(ii) impermissibly discourage repositories of powers from taking population level steps and measures, (citing Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331); and
(c) it would be impossible to confine the class of persons to whom the alleged duty was owed within reasonable limits (citing Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [50]), because:
(i) the duty would be owed to all persons potentially affected by the relevant statutory public health powers, which would include large parts of, if not all, of the population of Australia; and(ii) the duty would require the duty holders to protect individuals and businesses from pure economic loss, and the applicants’ case ignores the cautious and particular approach Australian courts have required before imposing a duty to protect others from suffering economic loss, especially in terms of causation and reasonable foreseeability. They refer to Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [93], [232], [405], and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [21]- [22], [46]-[47].
(a) Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 supported the availability of an alleged duty owed to a large number of people, and explained how existing concepts could be used to preclude any liability from being indeterminate;(b) there is no inconsistency because (apparently at least insofar as the alleged duty reaches conduct by National Cabinet and the National Plan) there are no statutes supporting National Cabinet so there is nothing to create any inconsistency with the alleged duty. He submitted that the scope of the alleged duty:
would need to be dealt with on the whole of the evidence at trial, particularly the production of the National Cabinet minutes, agendas and notices of meeting and any reports to it.
(c) on the respondents’ objection that the negligence allegations went to policy and political matters, counsel submitted:
whilst, ultimately, the question as to whether or not to make any response to the pandemic was open and could be described as a policy decision, the question of the implementation of that at the level to which we’ve referred does not do so, at least in any respect that would circumscribe a scope of law provision and a duty of care so as to exclude it.
(a) Three Rivers was a misfeasance case which did not involve the identification of a novel duty of care, and, to the extent it deals with negligence, it does so by reference to the concept of proximity being a concept no longer accepted in Australia as a touchstone for ascertaining the existence of a duty of care; and(b) the submission at [228(b)] above ignores the fact that the duty of care alleged includes the making of the measures by each of the states and territories pursuant to the statutory powers in state and territory legislation. Hence, an “inevitable inconsistency arises”, he submitted.
(1) This section applies to civil proceedings for damages or other compensation brought against the State or any authority of the State.(2) Damages or other compensation is not payable in any such civil proceedings to which this section applies to the extent that the claim is based on alleged negligence, defamation or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, in good faith any function under this Act.
(3) This section does not affect any entitlement to compensation expressly conferred by this Act.
My conclusions
Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.
It contends that these restrictions were the inevitable result of COVID-19 transmission events at two hotel quarantine sites caused by the negligent failure of the State to implement effective infection prevention and control measures at the sites.
The plaintiff’s posited duty in this case, at least in the context of the breaches alleged, targets particular failures on the part of the relevant Ministers and Secretaries who implemented hotel quarantine. These failures in ‘effective infection prevention and control measures’ essentially involved lack of adequate supervision, training, audits and the supply of protective equipment.
While these factors will affect the allocation of resources, in that more supervision or training, or more protective equipment might require more resources, it is difficult to see at this early stage in the proceedings, and without any evidence about the significance of resources required to meet the posited standard, how such impact is any different from any duty of care recognised against the State in negligence. If there is ever any required level of conduct that the State should achieve, meeting that standard will be easier to achieve with more resources.
At face value, exercising more precise care over safety measures in an existing program may lie outside of core policy-making functions or quasi-legislative functions, and fall within the operational category. Notionally, even given an existing set of resource constraints, it does not seem fanciful that the defendants’ conduct in implementing infection control measures could be subject to curial assessment on reasonableness criteria. What a reasonable functionary might do in such circumstances may not rely only on the political balancing of competing interests, or on the issue of resources. These are factual inquiries.
The detention notice, it would appear, already determined exceptions that would apply to returning travellers in quarantine, and the policy decision about sequestering travellers in hotels as opposed to purpose-built detention centres or prisons had already been made. Those interests had been balanced. Given that policy framework, how rigorously each hotel was supervised, regulated, or audited may, on careful analysis, involve administrative or operational decisions capable of assessment to an objective standard.
Whether the Measures constitute a breach of the Australian Consumer Law (ASOC [100]-[103])
If a person supplies, in trade or commerce, services to a consumer, there is guarantee that the services will be rendered with due care and skill.
(a) the “subjecting” of the Australian people and in particular the applicants to a “program of mass COVID-19 injections” constituted the delivery or provision of a medical service to the Australian people, including the applicants, as consumers;(b) this medical service was provided in, or ancillary to, trade or commerce;
(c) the provision of this medical service was subject to the guarantee in s 60 of the ACL; and
(d) the respondents contravened that guarantee by providing a service that was not fit for purpose and was not supplied with due care and skill.
(i) [neither] the National Plan, nor the roll out of the COVID-19 injection program, nor the experiment prevented people from contracting or from spreading the virus;(ii) the COVID-19 injection program exposed people to significant medical risk from the provisions of the vaccinations injections themselves;
(iii) the COVID-19 injection process gave people a false sense of security in that people believing that the COVID-19 injections were “safe” meant that they posed no danger, but did not understand that they could still hold the virus and that they could unwittingly pass it onto other people;
(iv) it exposed people to the risk of the injections, and in the case of many people within the population, to what was an unacceptable risk of harm;
(v) it subjected members of the population to assault and to battery, who were forced to take the injection without their properly informed consent;
(vi) it discriminated against people, for no good reason;
(vii) it curtailed people’s liberties in ways that were completely unnecessary;
(viii) it created an injection based discrimination in which those who had not subjected themselves to injections were posed by the Respondents as being a danger to those injected and as people that they should shun, whereas the injected were the ones who posed the risk to the uninjected[ ](and not the other way around);
(ix) the contracts that were entered into with the COVID-19 drug providers exempted them from any and all liability, but subjected the Australian people to risk of injury and of harm, and to the financial burden of dealing with injured persons;
(x) treatments for the virus were denied to the Australian people, for the purposes of forcing their participation in the experiment;
(xi) the service and which was a medical experiment, was forced onto people in a way that violated their rights to refuse medical treatment and in such a way as violated the Nuremburg Code and Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights;
(xii) the deprivation of people’s liberties was imposed in many arbitrary and ineffective ways, and that were harsh and uncalled for;
(xiv) it involved the entry into of supply agreements with organisations that had engaged in criminal conduct, one of whom had been subjected to the largest penalty in the history of the health care industry across the world, but in which the Commonwealth had nevertheless agreed to provide them a complete indemnity for persons killed and injured across the population of Australia from the use of the COVID-19 injections;
(xvi) All of the facts and allegations in paragraph 93 are repeated.
The ACL should be construed liberally including with respect to government activities of a commercial kind or engagement in trade or commerce – because that’s not necessarily the same thing.
services includes:
(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or
(iv) a contract of insurance; or
(v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(vi) any contract for or in relation to the lending of money;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
(Original emphasis.)
(a) a donation of services is not, pursuant to ACL s 5(1)(a), a supply of services unless the donation is for promotional purposes, and that the donation or free exchange of vaccinations to the applicants does not constitute a supply for the purposes of ACL s 60; and(b) none of the matters pleaded at ASOC [103] (extracted at [249], above) relate to the due care or skill with which a medical service was provided, but rather to the alleged inappropriateness of the service itself, which does not engage ACL s 60.
My conclusions
There is a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail the carrying on of business. To carry on some part of “the business of government” is something different from carrying on a business in the relevant sense.
The carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business.
(Footnotes omitted.)
UTILITY
NO LEAVE TO RE-PLEAD SHOULD BE GRANTED
CONCLUSION
Associate:
Dated: 27 June 2022
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2022/741.html