Federal Court of Australia

Kikuyu v Minister for Health NSW [2023] FCAFC 36

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The respondents file and serve any evidence and written submissions, limited to five pages, in support for an order as to costs on or before 13 March 2023.

3.    The appellant file and serve any evidence and written submissions in response, limited to five pages, on or before 27 March 2023.

4.    The respondents file and serve any evidence and written submissions in reply, limited to two pages, on or before 3 April 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

THE COURT:

1    This is an appeal from the decision of the primary judge which found that there was no inconsistency, direct, indirect or operational, between the Biosecurity Act 2015 (Cth) and the orders that the Minister for Health for the State of New South Wales (State Minister), the first respondent, and the Secretary for Health, the second respondent, respectively, made pursuant to powers contained in s 7 of the Public Health Act 2010 (NSW) and s 116A of the Health Services Act 1997 (NSW) in response to the public health consequences arising from the COVID-19 pandemic.

2    It is common ground that Loretta Kikuyu, the appellant, who was employed as a nurse by a public health authority of the State, had her employment terminated on 8 December 2021 because she was not vaccinated against COVID-19 as required by an order made by the Secretary. The appellant claimed that s 109 of the Constitution of the Commonwealth rendered invalid the two State laws because they were inconsistent with the Biosecurity Act, which prevailed to the extent of every inconsistency.

Background

3    The primary judge dealt with the issues in a carefully reasoned and lucid judgment. His Honour adopted as facts the parties’ agreed statement of facts (agreed facts) that relevantly are:

Introduction

1.    This statement of agreed facts (SAF) is made jointly by the applicant and the respondents pursuant to order 3(b) of the orders dated 23 May 2022. This SAF sets out facts agreed between the parties for the purposes of s. 191 of the Evidence Act 1995 (Cth).

Listed human disease determination

2.    On 21 January 2020, the Commonwealth Director of Human Biosecurity determined that “human coronavirus with pandemic potential” was a “listed human disease” under s. 42(1) of the Biosecurity Act 2015 (Cth) (Biosecurity Act) by adding cl. 4(h) to the Biosecurity (Listed Human Diseases) Determination 2016. A copy of that instrument as amended is at Annexure 1.

The human biosecurity declaration

3.    On 18 March 2020, the Governor-General of the Commonwealth of Australia declared a “human biosecurity emergency” in relation to COVID-19 under Part 2 of Chapter 8 of the Biosecurity Act. A copy of that declaration, being the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Declaration), is at Annexure 2.

4.    The Declaration as made was in force for a period of three months.

5.    The Governor-General subsequently varied the Declaration to extend the period during which it was in force on eight successive occasions, pursuant to instruments made under s. 476(1) of the Biosecurity Act. The effect of those variations was that the Declaration continued in force from 18 March 2020 to the end of 17 April 2022. Copies of each of the varied versions of the Declaration are at Annexures 3 to 10.

The Orders

6.    The first respondent is the NSW Minister for Health. He made the following orders purportedly under s. 7 of the Public Health Act 2010 (NSW), copies of which are at Annexures 11-16 to this SAF (together, the Orders):

…

The Determination

7.    On 12 November 2021, Ms Elizabeth Koff, then the Secretary of the New South Wales Ministry of Health, made determination no. 33 of 2021 purportedly under s. 116A(1) of the Health Services Act 1997 (NSW) (HSA) (Determination). A copy of the Determination is at Annexure 17.

8.    The Determination remains in force until it is rescinded. As at the date of this SAF, it has not been rescinded.

State of emergency

9.    No state of emergency has been declared to exist in New South Wales in relation to the COVID-19 pandemic under s. 33 of the State Emergency and Rescue Management Act 1989 (NSW).

The applicant

10.    The applicant was employed as a registered nurse by South Eastern Sydney Local Health District (SES LHD) from, relevantly, immediately before the commencement of the First Order on 26 August 2021 until her employment was terminated on 8 December 2021.

11.    During the term of her employment with SES LHD, the applicant was:

(a)    a “health care worker” as that term is variously defined in the Orders; and

(b)    a person employed in the NSW Health Service under Part 1 of Chapter 9 of the HSA for the purposes of the Determination.

12.    The applicant has not received any doses of a COVID-19 vaccine and is not exempt from the requirements in the Orders or the Determination.

13.    On 8 December 2021, the applicant’s employment with SES LHD was terminated. A copy of the letter of termination is at Annexure 18.

14.    The applicant has standing to seek the relief claimed in these proceedings.

(annexures and orders omitted)

The Legislative Context

4    The Biosecurity Act is a very lengthy Act, covering over 650 pages of the statute book, and deals, as one might expect, with a wide variety of subject matters. Relevantly, the Biosecurity Act provided:

4    Objects of this Act

The objects of this Act are the following:

(a)    to provide for managing the following:

(i)     biosecurity risks;

(ii)    the risk of contagion of a listed human disease or any other infectious human disease;

(iii)    the risk of listed human diseases or any other infectious human diseases entering Australian territory or a part of Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory;

(iv)    risks related to ballast water;

(v)     biosecurity emergencies and human biosecurity emergencies.

(b)    to give effect to Australia’s international rights and obligations, including under the International Health Regulations, the SPS Agreement, the Ballast Water Convention, the United Nations convention on the Law of the Sea and the Biodiversity Convention.

…

8    Concurrent operation of State and Territory laws

(1)    This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act (except as referred to in subsection (2)).

(2)    Subsection (1) is subject to the following provisions:

(a)    section 172 (prohibited goods);

(b)    section 265 (ballast water);

(c)    subsections 445(4), 446(4), 477(5) and 478(4) (biosecurity emergencies and human biosecurity emergencies).

(3)    Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:

(a)     the law makes an act or omission:

(i)    an offence; or

(ii)    subject to a civil penalty; and

(b)    that (or any similar) act or omission is also:

(i)    an offence against a provision of this Act; or

(ii)    subject to a civil penalty under this Act.

5    Section 9 defines “biosecurity emergency” as meaning a biosecurity emergency declared to exist under s 443(1) and “human biosecurity emergency” to be a human biosecurity emergency declared to exist under s 475(1).

6    Section 42, which is in Div 3, Pt 1 of Ch 2 of the Biosecurity Act, gave the Director of Human Biosecurity power to make a determination in writing that a human disease was a listed human disease if the Director considered that it may be communicable and cause significant harm to human health. Before making such a determination, the Director must consult with the chief health officer, however described, for each State and Territory and the Director of Biosecurity. (The instrument referred to in par 2 of the agreed facts is a determination under s 42).

7    The provisions referred to in s 8(2) were as follows:

    section 172, which provided that the whole of Pt 3 of Ch 3 (dealing with prohibited goods) applied, to the exclusion of a law, or a provision of a law, of a State or Territory to the extent that it purported to prohibit or restrict the bringing or importation of particular goods into Australian territory or a part of Australian territory from outside Australia for the purpose of managing biosecurity risks associated with those goods;

    section 265 in Div 2, Pt 1 of Ch 5, which provided that, subject to s 265(2), Ch 5 applied to the exclusion of a law, or a provision of a law, of a State or Territory to the extent that the law or provision dealt with biosecurity risks associated with ballast water or sediment; and s 265(2) which provided that Ch 5 did not exclude or limit the concurrent operation of a law, or a provision of a law, of a State or Territory to the extent that it dealt with the treatment or disposal of ballast water or sediment that had already been removed from a vessel; and

    sections 445(4) and 446(4), in Div 3, Pt 1 of Ch 8 dealing with biosecurity emergencies, and ss 477(5) and 478(4), in Div 2, Pt 2 of Ch 8 dealing with human biosecurity emergencies. Part 1 of Ch 8 consisted of ss 442–472. Relevantly, s 443(1) provided that the Governor-General could declare that a biosecurity emergency existed if the Agriculture Minister was satisfied that the disease or pest was posing a severe and immediate threat, or is causing harm, on a nationally significant scale to animal or plant health, the environment or economic activities related to animals, plants or the environment, and that a declaration was necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or a part of Australian territory.

8    Under s 445(1), the Agriculture Minister had a discretion to make a determination to specify any requirement that he or she was satisfied was appropriate and adapted to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory (as defined). Importantly, s 445(4) provided:

(4)    A requirement determined under subsection (1) has effect despite any provision of any other Australian law.

9    In a complementary way, under s 446(1), during a biosecurity emergency period, the Agriculture Minister had a discretion to give any direction to any person or to take any action that the Minister was satisfied was appropriate and adapted to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. Correspondingly to s 445, s 446(4) provided:

(4)    A direction may be given, or an action taken, under subsection (1) despite any provision of any other Australian law.

10    Section 473 contained a simplified outline of Pt 2 of Ch 8. In particular, the outline stated that Pt 2 provided special powers for dealing with emergencies involving threats or harm to human health on a nationally significant scale, being human biosecurity emergencies. It noted that the Governor-General could make a human biosecurity emergency declaration if the (Commonwealth) Health Minister was satisfied that the special powers in Pt 2 of Ch 8 were needed to deal with that emergency and that the Health Minister had discretionary powers to deal with the emergency, subject to the limits and protections.

11    Relevantly, s 475(1) provided that the Governor-General could declare that a human biosecurity emergency existed if the Health Minister was satisfied that: a listed human disease, declared under s 42, was posing a severe and immediate threat, or was causing harm, to human health on a nationally significant scale; and the declaration was necessary to prevent or control the entry of that listed human disease into Australian territory or a part of Australian territory or the emergence, establishment or spread of that listed human disease there. (The Governor-General, in this case, made a determination under s 475(1) and extended it under s 476, as stated in pars 3–5 of the agreed facts). Critically, ss 477 and 478 relevantly provided:

477    Health Minister may determine emergency requirements during human biosecurity emergency period

(1)      During a human biosecurity emergency period, the Health Minister may determine any requirement that he or she is satisfied is necessary:

(a)      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; or

(b)      to prevent or control the spread of the declaration listed human disease to another country; or

(c)      if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations in relation to the declaration listed human disease—to give effect to the recommendation.

…

(3)      Without limiting subsection (1), the requirements that the Health Minister may determine include the following:

(a)      requirements that apply to persons, goods or conveyances when entering or leaving specified places;

(b)      requirements that restrict or prevent the movement of persons, goods or conveyances in or between specified places;

(c)      requirements for specified places to be evacuated;

(d)      if a recommendation has been made as referred to in paragraph (1)(c)—requirements for the purposes of giving effect to the recommendation.

(4)      Before determining a requirement under subsection (1), the Health Minister must be satisfied of all of the following:

(a)      that the requirement is likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined;

(b)    that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined;

(c)      that the requirement is no more restrictive or intrusive than is required in the circumstances;

(d)      that the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances;

(e)      that the period during which the requirement is to apply is only as long as is necessary.

(5)      A requirement determined under subsection (1) applies despite any provision of any other Australian law.

…

478    Health Minister may give directions during human biosecurity emergency period

(1)      During a human biosecurity emergency period, the Health Minister may give any direction, to any person, that the Health Minister is satisfied is necessary:

(a)      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; or

(b)      to prevent or control the spread of the declaration listed human disease to another country; or

(c)      if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations in relation to the declaration listed human disease—to give effect to the recommendation.

…

(2)      Without limiting subsection (1), the directions that the Health Minister may give under that subsection include the following:

(a)      a direction to a person who is in a position to close premises, or prevent access to premises, to do so;

(b)      a direction for the purposes of giving effect to or enforcing a requirement determined under section 477;

(c)      if a recommendation has been made as referred to in paragraph (1)(c)—a direction for the purposes of giving effect to the recommendation.

(3)      Before giving a direction under subsection (1), the Health Minister must be satisfied of all of the following:

(a)      that the direction is likely to be effective in, or to contribute to, achieving the purpose for which it is to be given;

(b)      that the direction is appropriate and adapted to achieve the purpose for which it is to be given;

(c)      that the direction is no more restrictive or intrusive than is required in the circumstances;

(d)      if the direction is to apply during a period—that the period is only as long as is necessary.

(4)      A direction may be given under subsection (1) despite any provision of any other Australian law.

(5)      A direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body.

(emphasis added)

12    Pursuant to s 479, a person had to comply with a requirement or direction under ss 477(1) or 478(1) and it was an offence if the person did not do so.

13    The Public Health Act gave the State Minister power under s 7(1) if he or she considered on reasonable grounds that a situation had arisen that was, or was likely to be, a risk to public health and provided in s 7(2) and (3):

(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.

14    The Health Services Act provided in s 116A(1) that:

(1)    The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law.

The Factual Context

15    As noted in par 6 of the agreed facts, the State Minister made a number of orders under s 7 of the Public Health Act, the relevant two of which were: the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021, which was in force between 29 September 2021 and 22 October 2021; and the Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021, which was in force between 22 October 2021 and 23 December 2021 (Public Health Order 2). Public Health Order 2, among other matters:

    recited that the State Minister had grounds for concluding that a situation had arisen that was, or was likely to be, a risk to public health, being that international and Australian public health authorities had been monitoring and responding to outbreaks of COVID-19, which was a potentially fatal condition and was highly contagious;

    in Pt 2, cll 5 and 6 provided:

5    Health care workers not to work unvaccinated

(1)    A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVID-19 vaccine.

(2)    A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine.

…

6    Responsible persons for health care workers

Each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 5 applies complies with the clause.

(emphasis added)

16    On 12 November 2021, in exercise of powers under s 116A(1) of the Health Services Act, the Secretary made determination number 33. That determination imposed, under Pt 1 of Ch 9 of the Health Services Act, a condition of employment on all employees of the New South Wales Health Service that to be employed, or remain employed, relevantly, unless an exemption applied, the person must have received at least one dose of a COVID-19 vaccine as at the date of determination 33 and at least two doses on and from 30 November 2021.

17    It was an agreed fact that the appellant had not received any doses of a COVID-19 vaccine and was not exempt from any of the requirements in either the State Minister’s order or the Secretary’s determination 33.

18    On 8 December 2021, the Chief Executive of the South Eastern Sydney Local Health District wrote to the appellant and terminated her employment for the reason that, despite requests, she had not provided appropriate evidence that she had been vaccinated or had an exemption from being vaccinated. The letter noted that the appellant was to be paid, in lieu of any required notice period, the higher of the amount specified either in respect of the notice period in the termination clause of her award or the minimum notice period specified in the Fair Work Act 2009 (Cth), together with all relevant leave entitlements.

The primary Judge’s Reasons

19    His Honour noted at the outset of his reasons that the proceeding was not about the wisdom or otherwise of the response of the State or the Commonwealth to public health challenges caused by the spread of COVID-19. Nor was it about the rights to individual liberty or autonomy, nor the appropriateness or otherwise of vaccine mandates. It was not about holding public officials to account politically for their public health actions that some consider to be wrongheaded or controversial but, rather, the proceeding was about the different question of inconsistency of laws for the purposes of s 109 of the Constitution.

20    The primary judge necessarily began, as was common ground, by construing the Commonwealth law in question. He referred to Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500 at 521–522 [52] per French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ. His Honour found that there was no indirect inconsistency between the Biosecurity Act and either s 7 of the Public Health Act or s 116A of the Health Services Act. He held that the Biosecurity Act did not evince an intention, completely or exhaustively, to state what the law should be governing the particular conduct or matter. He found that the Health Minister’s requirements in s 477 and directions in s 478 in respect of a human biosecurity emergency period were not comprehensive or exhaustive statements of the law in a human biosecurity emergency period and that this was the complete answer with respect to all of the provisions of the State laws on which the appellant relied. He held that s 116A of the Health Services Act, under which determination 33 was made, concerned an entirely different subject matter from that addressed by the relevant provisions of the Biosecurity Act.

21    His Honour then turned to construing the operation of s 8 of the Biosecurity Act. He rejected the appellant’s construction (repeated before us). Specifically, the appellant submitted that, read in the context of the Act as a whole, the statements of non-exclusivity in s 8(1) and exclusivity in s 8(2) entailed that the specific provisions referred to in s 8(2) and the words in parentheses in that subsection effectively excluded the subject matter covered by the whole of the Parts or Chapters of the Act where those provisions appeared in the Biosecurity Act from the possibility of concurrent operation with State and Territory laws. The primary judge found that the appellant’s contention was unsupported by the text of s 8 and did not accord with principles of statutory construction, having regard to the tests in Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428. His Honour found that s 8(1) expressly contemplated the concurrent operation of State and Territory laws with the Biosecurity Act.

22    The primary judge then turned to construe the operation of ss 477(5) and 8(2). He found that only a determination under s 477(1), to which s 477(5) referred, applied to the subject matter of the determination despite any provision in any other Australian law. That was, he held, a “far cry” from s 477 superseding any provision of any other Australian law at all times and for all purposes once the Governor-General had made any declaration under s 475 or extended such a declaration under s 476, as the appellant contended. His Honour found that even if the Biosecurity Act covered the field, no inconsistency would arise unless and until the Health Minister exercised his or her powers under either ss 477 and 478 in a way that was inconsistent with the operation of some provision in a State law.

23    The primary judge rejected the appellant’s case that, simply because the Governor-General had made a declaration of a human biosecurity emergency under s 475, which was in force either directly or pursuant to an extension under s 476, the Commonwealth’s legislative power covered the field to the exclusion of any concurrent exercise of power by a State or Territory and regardless of whether or not the Health Minister actually exercised any power under ss 477 or 478. His Honour rejected the argument that the Biosecurity Act, read as a whole, displaced the evident intention or operation of s 8 to limit the area of exclusivity to those specific instances identified in the provisions specified in s 8(2).

24    His Honour held that it would be inimical to the purposes and functions of the cooperative federal system if State and Territory authorities were prevented from implementing emergency responses by the exclusive operation of Commonwealth law reaching beyond the terms of the Biosecurity Act. Such a construction would prevent significant coordination and collaboration leaving States and Territories unable to develop and enforce their own emergency measures. His Honour recognised that different States or polities within the federation may need different responses to the conditions in or within their geographical areas. His Honour held that not only was the appellant’s construction of the Biosecurity Act wrong but would, if accepted, “destroy the ability of the States and Territories to formulate tailored measures for their respective jurisdictions”.

25    His Honour held that even if Pt 2 of Ch 8 of the Biosecurity Act was intended to be a complete or exhaustive statement of the law on a particular subject matter, the appellant had failed to demonstrate that the two impugned State laws operated on the same subject matter. He found that determination 33 could not be characterised as a measure for the prevention or control of the emergence, establishment or spread of COVID-19 within New South Wales, as the appellant had submitted. Rather, s 116A(1) of the Health Services Act enabled the Secretary to fix the salary, wages and conditions of employment of staff employed under Pt 1 of Ch 9 of that Act, and those conditions mandated a requirement for all employees, unless exempted, to have at least one or two COVID-19 vaccinations. His Honour characterised the fixing of conditions of employment for staff in the Health Service as differing fundamentally from the subject matter of the relevant Commonwealth provisions.

26    Last, his Honour dismissed the appellant’s suggested construction that there was a direct inconsistency because the State and Commonwealth laws operated so that simultaneous obedience to the relevant provisions of each was impossible or one law took away from, or interfered with, the rights or privileges conferred by the other (citing Dixon J in Ex parte McLean (1930) 43 CLR 472 at 483). His Honour found that the appellant did not advance such an argument orally and it was not available because s 109 did not deal with inconsistency between powers but, rather, with inconsistency between operative laws. Until there was an inconsistency arising from the Health Minister exercising one or more of the powers in ss 477(1) and 478(1), the operation of s 109 of the Constitution and, indeed, s 8 of the Biosecurity Act, were not enlivened.

The Appellant’s Submissions

27    The appellant advanced similar arguments in the appeal to those she put to the primary judge. She did not take issue with his Honour’s statement of the principles as to determining whether there was direct or indirect inconsistency between the Commonwealth and State laws, but simply disputed his Honour’s construction of the Biosecurity Act. She argued that, properly construed, the Biosecurity Act effectively covered the field once the Governor-General made a declaration under s 475(1) that human coronavirus with pandemic potential was an infectious disease. The appellant contended that reading the Biosecurity Act as a whole and having regard to its length and breadth, it constituted what she said was “a big grab” of Commonwealth power. She again submitted that, once the Governor-General made a declaration under s 475(1) and while it remained in force, the Health Minister’s powers in ss 477 and 478 were enlivened, which circumstance by itself rendered any power, or exercise of power, by a State or Territory of its own legislative powers inconsistent with the Commonwealth law. She argued that this was so regardless of whether the Health Minister had made any determination, or given any direction, under either ss 477(1) or 478(1) which dealt with the same subject matter in the State law. She contended that once the Governor-General had acted under s 475, the Commonwealth could and should have dealt with the position of every aspect of the public health situation throughout the Commonwealth, including the employment of nurses by the State Government, and that it had the power so to determine.

28    The appellant made no challenge to the validity of the Biosecurity Act. To the contrary, she adopted it and accepted that there was no exercise of power under that Act in relation to herself. She said it was irrelevant that once the Commonwealth’s power was enlivened, that it had not exercised it. She submitted that the mere existence of the potential for its exercise, read with the Biosecurity Act as a whole and with her reading of s 8(2), meant that, necessarily, there was either a direct or indirect inconsistency.

29    The appellant argued, alternatively, that the Health Minister had exercised some powers under ss 477(1) and 478(1) to make determinations and give directions with respect to other matters, such as cruise ships, and that having invoked the power to some extent, that conduct triggered, in some way, the full ambit of the Commonwealth’s powers to operate to the exclusion of any State legislative power. As another alternative, the appellant contended that s 8(2) should be construed to say that, once a declaration had been made by the Governor-General under s 475, whatever subject matter could be made the subject of a determination or direction under ss 477(1) or 478(1) was excluded from the operation of all State or Territory legislative powers with respect to those two sections.

Consideration

30    There is no dispute that the Governor-General made a valid declaration under s 475 and that the extensions of it under s 476 continued to apply. We reject the appellant’s argument that the effect of the Governor-General’s declaration was to enliven the Health Minister’s powers under ss 477 and 478 of the Biosecurity Act to make determinations or give directions in a way that had the consequence of rendering inoperative all State laws under which the State Minister and the Secretary, respectively, made the order and determination under which her employment came to be terminated.

31    It was common ground before the primary judge and us that his Honour correctly identified the principles of construction to determine whether, for the purposes of s 109 of the Constitution, a law of a State is inconsistent with a law of the Commonwealth, as determined in Outback Ballooning 266 CLR at 446–448 [31]–[35]. In that case, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:

31    In Victoria v The Commonwealth (“The Kakariki”) ((1937) 58 CLR 618 at 630), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing ((1999) 197 CLR 61 at 76-77 [28]), Dickson v The Queen ((2010) 241 CLR 491 at 502 [13]-[14]) and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd ((2011) 244 CLR 508 at 524 [39]).

32    The first approach has regard to when a State law would “alter, impair or detract from” the operation of the Commonwealth law. This effect is often referred to as a “direct inconsistency” (Dickson v The Queen (2010) 241 CLR 491 at 504 [22]; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [39]). Notions of “altering”, “impairing” or “detracting from” the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law (Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 525 [41]).

33    The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say “completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed” (Ex parte McLean (1930) 43 CLR 472 at 483). This is usually referred to as an “indirect inconsistency”. A Commonwealth law which expresses an intention of this kind is said to “cover the field” or, perhaps more accurately, to “cover the subject matter” with which it deals (Ex parte McLean (1930) 43 CLR 472 at 483; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [40]; see also The Commonwealth v Australian Capital Territory (2013) 250 CLR 441). A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law (The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 467 [56]).

34    The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.

35    It is not to be expected that a Commonwealth law will usually declare that it has this effect. In some cases the detailed nature or scheme of the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter (Momcilovic v The Queen (2011) 245 CLR 1 at 116 [261]). It may state a rule of conduct to be observed, from which the relevant intention may be discerned (Ex parte McLean (1930) 43 CLR 472 at 483-484). Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563-564). A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended (See, eg, R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; New South Wales v The Commonwealth (“Hospital Benefits Case”) (1983) 151 CLR 302). The essential notion of indirect inconsistency is that the Commonwealth law contains an implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject of legislation (Momcilovic v The Queen (2011) 245 CLR 1 at 111 [244] per Gummow J).

32    In Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34], Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said:

In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said:

“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

33    Their Honours continued (at 388 [35]):

It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.

(emphasis added)

34    In Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [28], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said, “[m]oreover, legislation ‘must not be read in a spirit of mutilating narrowness’”, citing Frankfurter J in United States v Hutcheson 312 US 219 (1941) at 235. Likewise, the converse of such a construction must apply also.

35    The appellant’s contention that the words in parentheses in each sub-paragraph of s 8(2) of the Biosecurity Act identified, beyond the particular sections expressly stated, the whole of the fields which were excluded from the possibility of concurrent operation under s 8(1), ignored the text of the legislation itself. The Parliament identified in s 8(1) that it was not seeking, by the enactment of the Biosecurity Act, to exclude or limit the operation of laws of a State or Territory that were capable of operating concurrently and consistently with the Act, except in the particular respects referred to in s 8(2). Importantly, the chapeau to s 8(2) provided that s 8(1) was subject to the six specific sections of the Biosecurity Act identified in s 8(2), including ss 477(5) and 478(4).

36    The words in parentheses that followed each sub-paragraph in s 8(2) referred in a general way to the subject matter to which each particular provision related. However, s 8(2) made pellucid that each individual section referred to was the respective provision to which s 8(2) applied. As we noted above, s 172 dealt with the application of the whole of Pt 3 of Ch 3. That itself explains why, as a shorthand, s 8(2)(a) referred in brackets to “prohibited goods”. Likewise, s 265 dealt with the whole of the provisions of Ch 5, that dealt generally with biosecurity risks associated with ballast water, other than in relation to the disposal of ballast water once lawfully removed from a ship.

37    As each of s 8(2)(a) and (b) identified, the Parliament expressly determined, for the purposes of s 8(1), that the whole of the subject matter of the respective Part or Chapter was enacted with the intention of excluding any inconsistent State or Territory law.

38    In contrast, s 8(2)(c) identified particular subsections in Pts 1 and 2 of Ch 8, that had a complementary effect, namely, first, ss 445(4) and 446(4) which dealt with determinations and directions made by the Agriculture Minister for the purposes of biosecurity emergencies and, secondly, more relevantly, ss 477(5) and 478(4). The latter two subsections expressed a pellucid legislative intention that a determination by the Health Minister for the purpose of a human biosecurity emergency under s 477(1), or a direction given by him or her under s 478(1), applied or could be made despite the provisions of any other Australian law and rendered such a law inoperative. The operation of those two provisions made clear that, only if and when the Health Minister exercised his or her discretion under ss 477(1) or 478(1) to make a determination or give a direction would the Biosecurity Act give primacy to the consequences provided for in the Act in respect of the operation and effect of any such determination or direction and correspondingly exclude the operation in that field of any inconsistent law of a State or Territory.

39    The imperative of obedience to the Commonwealth law is emphasised by s 479. That created an offence if a person disobeyed a determination or direction under ss 477(1) or 478(1). As a result, any State or Territory law that would otherwise have operated, including one creating an offence or imposing different requirements, would be inconsistent with the federal law for the purposes of s 109 of the Constitution and be rendered inoperable by force of ss 8(2)(c), 477(5) and 478(4) and the operation of the Commonwealth Act, read as a whole. It is evident that the intention of the Parliament in s 479, coupled with the ordinary and natural meaning of ss 477(1), (5), 478(1) and (4), that a person must obey the determination or direction made under the Commonwealth law and, if he or she does so, that conduct would be incapable of being found to contravene a State or Territory law.

40    A further indication of the limited nature of the exclusivity of a direction under s 478(1) is manifest in s 478(5), which provided that the Health Minister did not have power to give a direction under s 478(1) to an officer or employee of a State, Territory or State or Territory body, such as the appellant, unless the direction was in accordance with an agreement between the Commonwealth and the State, Territory or body.

41    Here there is no evidence of any direction under s 478(1), far less of any agreement that satisfied the condition in s 478(5), which is capable of affecting the position of the appellant. That, in itself, demonstrates that the appellant’s case is hopeless, since the effect of the Secretary’s determination under s 116A(1) of the Health Services Act and the appellant’s employer’s action was to deal with a subject matter that was not, according to the evidence, within the power of the Health Minister within the meaning of s 478(5). That was because the Health Minister could not make a direction that affected the powers of the Secretary to deal with any subject to do with the appellant’s employment in the circumstances of this proceeding. This is because there was no relevant agreement between the Commonwealth and New South Wales or the appellant’s employer, on the evidence, that could have enabled the Health Minister to give a direction under s 478(1) that could have applied to the appellant.

42    Reading s 478 as a whole, it can be seen that the Health Minister’s power to give a direction under s 478(1) is limited by s 478(5) and cannot be exercised, let alone made exclusive under s 478(4), in an area withdrawn from his or her power because of the absence of any agreement with the State or a State body under s 478(5). This construction is consistent with the overview in the explanatory memorandum for the Bill that became the Biosecurity Act, which explained the Parliament’s purpose in enacting Ch 8 as:

The emergency chapter will complement existing agreements and state and territory controls, allowing for efficient and effective emergency responses in state, territory and Commonwealth jurisdictions.

(emphasis added)

43    The appellant’s argument would neuter such effective responses at the very time at which it might be necessary for the differing polities within the Commonwealth to formulate and tailor their own bespoke legislative and regulatory requirements to deal with a public health emergency: Spalvins 202 CLR at 644 [28]. The appellant advanced no rational purpose behind her proposed construction. As Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ held in DB Management 199 CLR at 388 [35], in construing a statute otherwise than in its natural and ordinary meaning, a party must advance some plausible formulation of an alternative legal meaning. We reject the appellant’s meonic construction that, once the Governor-General made a declaration under s 475 that was in force, either under that section or as extended under s 476, somehow the States and Territories were neutered thereafter in taking any steps within the possible legislative field covered by Pt 2 of Ch 8 irrespective of whether the Health Minister actually exercised any of his powers under Pt 2 of Ch 8 of the Biosecurity Act. Such a construction would give no work for ss 477(5), 478(4) and or (5) to do and would defeat the obvious legislative intention in s 8 in providing that it is only where a determination has been made or a direction has been given under ss 477(1) and 478(1) that those sections apply despite any provision of any other Australian law.

44    The primary judge was correct to find that the appellant’s construction of s 8 of the Biosecurity Act would be inimicable to the purposes and functions of the cooperative federal system if State and Territory authorities were prevented from implementing emergency responses because, somehow, the Commonwealth law had exclusive sway over the whole field. That construction makes no sense, has no reasonable basis and does not derive from the ordinary and natural meaning of ss 8, 477 or 478 of the Biosecurity Act. Sections 477(1) and 478(1) gave the Health Minister discretionary powers that he or she may or may not choose to exercise. It is only if and when he or she exercised the power in a particular respect that ss 477(5) and 478(4) were intended to ensure that that exercise of power rendered inoperative any inconsistent State or Territory law with respect to the same subject matter.

Conclusion

45    There is plainly no direct inconsistency because the appellant was unable to point to any State law that was inconsistent with the Commonwealth law. Nor is there any indirect inconsistency for the reasons given by the primary judge, with which we agree. Nor is there any operational inconsistency because the Health Minister has not made any determination or direction under ss 477(1) or 478(1) with respect to the same subject matter, namely the appellant’s employment.

46    On its proper construction, s 8, read with the Biosecurity Act as a whole and, in particular, having regard to the provisions of ss 477 and 478, does not purport to state completely, exhaustively or exclusively what the law governing the particular conduct or matter to which it is directed is to be, namely, the relevant Commonwealth law. Rather, each of those provisions identifies as exclusive of the concurrent operation of any State or Territory only the subject matter the target of the exercise of the Health Minister’s discretionary power under ss 477(1) or 478(1) to make a determination or give a direction. The Biosecurity Act evinces the Parliament’s intention to provide completely, exhaustively or exclusively that State or Territory laws will not operate only where a direction or determination is made under ss 477(1) or 478(1). Where such a direction or determination is made, the Commonwealth law renders any inconsistent State or Territory law inoperative only to the extent that it seeks to cover the subject matter of the direction or determination and only for so long as the direction or determination remains in force, as ensured by ss 477(5) and 478(4).

47    We note that the State Minister and Secretary have asked that they be permitted to make any application in respect of costs of the appeal in writing.

48    We will order that the appeal be dismissed and allow the parties to make submissions as to costs.

Associate:

Dated:    13 March 2023