Federal Court of Australia

Athavle v State of New South Wales [2021] FCA 1075

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 31 August 2021 is dismissed.

2.    The applicants pay the respondents’ costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

GRIFFITHS J:

1    These reasons for judgment relate to the applicants’ interlocutory application dated 31 August 2021 in which interim injunctive relief is sought against the respondents restraining them from preventing the applicants “celebrating the religious observance of Rosh Hashanah on 6 and 8 September 2021 and Yom Kippur on 15 and 16 September 2021 in accordance with social distancing rules applicable to exempted gatherings”. The substantive proceeding relates to various subordinate legislative instruments made by the Commonwealth, New South Wales and Victoria concerning the current COVID-19 pandemic.

2    The interlocutory application needed to be heard and determined expeditiously having regard to the imminent dates of the first of the specified religious events. The Court conducted an urgent case management hearing on the morning of 2 September 2021, at which all parties other than New South Wales appeared.

3    The applicants relied upon an affidavit dated 2 September 2021 by their instructing solicitor, which described the steps taken to serve the relevant documents on each of the parties. The Court directed that the applicants’ solicitor ensure that New South Wales was made aware of what transpired at the case management hearing on 2 September 2021 and to forward a copy of the Court’s orders regarding preparation for and the conduct of the interlocutory hearing on the following day, 3 September 2021. All parties appeared at that hearing and were legally represented.

4    The applicants indicated at the case management hearing that they proposed to rely on an amended originating application dated 2 September 2021. The primary amendments to the originating application dated 31 August 2021 related to the applicants’ claims against the Commonwealth. The Court drew attention to several deficiencies in the amended originating application, which the applicants undertook to rectify prior to the interlocutory hearing. The Court also highlighted the need for the applicants promptly to serve notices under s 78B of the Judiciary Act 1903 (Cth). However, given the urgency of the matter, I considered that s 78B(1) of the Judiciary Act did not prevent the Court from proceeding to hear and determine the interlocutory application (see s 78B(5)).

The amended originating application

5    The applicants seek declaratory relief against each of the respondents in respect of three subordinate legislative instruments. The NSW order is entitled Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (NSW Order). The Victorian order as of the date of the interlocutory application is entitled Restricted Activity Directions (Victoria) (No 26) (Vic) (Victorian Directions). The applicants’ claims regarding the Commonwealth are directed to a legislative instrument entitled Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth) (Commonwealth Declaration).

6    In brief, the applicants seek declaratory relief that the NSW Order and Victorian Directions do not, on their proper construction, interfere with religious observances, relying upon the principle of legality and international treaties signed by Australia. They also seek declaratory relief that the State instruments and the Commonwealth Declaration are invalid because the instruments are legally unreasonable to the extent that they have interfered with freedom of religion and association and it is claimed that those instruments encroach upon a freedom of religion which is expressed in s 116 of the Constitution or is otherwise implied.

7    It will be necessary to elaborate upon relevant parts of each of these instruments in due course. In its written submissions, the applicants appeared not to press any interlocutory relief against the Commonwealth specifically. For completeness, however, I will address those contentions.

A threshold question of the Court’s jurisdiction

8    Victoria and the Commonwealth (but not NSW) challenged the Court’s jurisdiction to entertain the proceeding. They contended that the applicants’ claims relating to s 116 of the Constitution and the alleged implied Constitutional right of religious freedom were merely colourable and used to fabricate Federal jurisdiction (see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 per Bowen CJ, Morling and Beaumont JJ and Westpac Banking Corporation v Paterson [1999] FCA 1609; 95 FCR 59 at [13]-[14] per Branson, Sackville and Kiefel JJ). In Fencott v Muller [1983] HCA 12; 152 CLR 570 at 609, a plurality of the High Court (Mason, Murphy, Brennan and Deane JJ) stated that a Federal claim had to be a “substantial aspect of [the] controversy” if it was to attract the Federal Court’s accrued jurisdiction. In Adamson v West Perth Football Club Inc (1979) 27 ALR 475 at 499, Northrop J said that a Federal claim had to be both bona fide and also substantial before it and other claims could be determined, “but the validity or strength of the claim … is quite immaterial so long as they are genuinely raised” (see Geoffrey Lindell (ed), Cowen and Zines’s Federal Jurisdiction in Australia (Federation Press, 4th ed, 2016), p 198).

9    As Professor Lindell has said, there are only a few cases where claims have been dismissed as colourable (see p 199). On the question whether the strength of a claim is a relevant consideration in determining colourability, Professor Lindell concluded that the fact that a claim is hopeless may be a relevant factor even if it is insufficient by itself to show that the claim is not genuine. I respectfully agree.

10    As noted, the applicants’ Federal claim concerns s 116 of the Constitution and an alleged implied Constitutional right to religious freedom. Presumably reliance is placed on this Court’s jurisdiction under s 39B(1A) of the Judiciary Act in relation to matters arising under the Constitution. As long as that claim is not colourable, this Court would also have accrued jurisdiction to determine claims relating to the two State legislative instruments.

11    Although I regard this case as borderline, for the following reasons I am not persuaded that the Federal claim is colourable. First, as Victoria pointed out, the applicants’ challenge to the Commonwealth Declaration is rather hollow in circumstances where the Declaration does not affect the applicants’ celebration of Jewish religious holidays in any way. But that of itself does not make the Federal claim colourable. Although it appears to me that the applicants’ assertion of the existence of an implied Constitutional freedom of religion is weak and evidently unsupported by any existing authority, the High Court has emphasised in other contexts the need for the Court to be sensitive to the possibility of further development of the law (see, for example, Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [25] per French CJ and Gummow J in the context of the proper approach to summary processes under s 31A of the Federal Court of Australia Act 1976 (Cth)).

12    Secondly, although as will emerge I regard the applicants’ case based upon s 116 of the Constitution to be weak, with reference to their case against both the Commonwealth and the two States, I am not persuaded that that case lacks bona fides or is colourable.

13    Thirdly, the fact that a Federal claim may be untenable does not necessarily mean that it is colourable, nor does it “deprive the Court of jurisdiction to deal with the non-federal claims” (see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 561 at [85]-[88] per French J, Beaumont and Finkelstein JJ agreeing).

Summary of impugned instruments

(a) New South Wales

14    The NSW Order is dated 20 August 2021. It commenced on 21 August 2021. It was made under s 7 of the Public Health Act 2010 (NSW) (NSW Act), which provides:

7    Power to deal with public health risks generally (cf 1991 Act, s 5)

(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.

15    The risk to public health which underlies the basis for making the NSW Order is set out in cl 1.8 of the NSW Order. It is stated there that a situation has arisen that is, or is likely to be, a risk to public health in the following circumstances:

(a)    public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19;

(b)    COVID-19 is a potentially fatal condition and is highly contagious; and

(c)    a number of cases of people with COVID-19 have recently been confirmed in both NSW and elsewhere in Australia, including by community transmission, and there is an ongoing risk of continuing introduction or transmission of the virus in NSW.

16    The NSW Order is then divided into various Parts, involving directions applying to what are described as the “general area” (Pt 2), “stay at home areas” (Pt 3), “areas of concern” (Pt 4) and additional directions for Greater Sydney (Pt 5). The concept of the “general area” is defined in Sch 1 as the whole of NSW other than an area that is a “stay at home area” or “an area of concern”. Stay at home areas are defined in Sch 1 as including Greater Sydney (other than a part of Greater Sydney that is an “area of concern”) and Regional NSW, apart from a regional NSW area that is an area of concern. Regional NSW is defined as the State of NSW other than Greater Sydney. The “areas of concern” are then identified in Sch 1 by reference to specified local government areas or parts of the City of Penrith.

17    It is unnecessary to summarise all parts of the NSW Order. It is sufficient to focus on those parts which relate to religion.

18    The applicants’ desire to practise their religious faith is particularly affected by those parts of the NSW Order which specify the maximum number of persons who are permitted on premises. In areas of concern, an occupier of premises must not allow more persons on the premises than the number of persons equal to one person per four square meters of space in the premises. There are various exceptions to that prohibition, including various “gatherings” referred to in Sch 3. The exempted gatherings specified in Sch 3 cover a range of gatherings, including at airports, hospitals, prisons, courts or tribunals, the Parliament, supermarkets, certain educational institutions etc. Significantly, gatherings for the purpose of practising religious faith are not included in Sch 3.

19    The provisions of Pts 3 and 4 of the NSW Order are also particularly relevant. They relate to stay at home areas and areas of concern respectively. In those areas, which currently covers the whole of NSW, a person is now allowed to be away from their place of residence without a “reasonable excuse” (see cl 3.2 for “stay at home areas” and cl 4.2 for “areas of concern”). As Mr J Kirk SC, who appeared together with Dr B Lim for NSW, pointed out, there are provisions which qualify the prohibitions relating to such matters including the “reasonable excuses” set out in Sch 2.

20    In addition, it should be noted that religious functions are the subject of cl 17 in Sch 2, the effect of which is to permit a person who is a priest, minister of religion or member of a religious order to leave the person’s place of residence to go to the person’s place of worship or provide pastoral care. This entitlement is, however, subject to the maximum number of persons limited on the premises, including those imposed by cl 4.9, but it does provide some allowance for a minister for religion to visit a parishioner in their home for the purpose of providing pastoral care. I appreciate that the applicants here feel that that is insufficient but the relevant point is that this provision indicates that the NSW Order represents an attempt at balancing competing interests and considerations.

(b) Victoria

21    The Victorian Directions were made under s 200 of the Public Health and Wellbeing Act 2008 (Vic) (Victorian Act). Where a state of emergency exists under s 198 and the Chief Health Officer believes that it is reasonably necessary to grant an authorisation to eliminate or reduce a serious risk to public health, the Chief Health Officer is empowered to authorise authorised officers appointed by the Secretary of the Department of Health and Human Services to exercise any of the public health risk powers and emergency powers. The emergency powers are specified in s 200 and include restricting the movement of any person or group of persons within the emergency area and giving any other directions that the authorised officer considers is reasonably necessary to protect public health.

22    The Victorian Directions the subject of the interlocutory application are dated 26 August 2021. They commenced on that day with a “restricted activity period” ending just before midnight on 2 September 2021 (cl 4). There is evidence that the Victorian Directions may be extended but that any such extended or replacement Directions would only likely remain in place for at most another 80 days.

23    The key relevant features of the Victorian Directions which affect religion may be summarised as follows. First, the Directions need to be read together with other relevant Directions in force in Victoria. Secondly, the Victorian Directions restrict the operation of certain businesses and undertakings in Victoria with a view to addressing what is described in the Preamble as “the serious public health risk posed to Victoria by severe acute respiratory syndrome coronavirus 2”. Certain exceptions are specified in cl 7 including a limited exception for places of worship (which has the same meaning as in the Heritage Act 2017 (Vic)). Clause 7(12) provides (emphasis in original):

Permitted operation - places of worship

(12)    A person who owns, controls or operates a place of worship in the State of Victoria may operate that place of worship during the restricted activity period only for the purpose of:

(a)    broadcasting (live or otherwise) via electronic means a religious ceremony, with only the minimum number of persons required to conduct the ceremony and facilitate the broadcasting, up to a maximum of five people in attendance; or

(b)    hosting an essential public support service (whether that service is provided on a voluntary basis or otherwise), with only the minimum number of persons required to conduct and/or facilitate the essential public support service and with a maximum of 10 persons attending the place of worship to receive the essential public support services at any one time; or

Examples: a food bank or a service for homeless persons.

Note 1: the persons required to conduct and/or facilitate the service are not included in the maximum of 10 persons.

Note 2: an essential public support service does not include people gathering for worship or prayer.

(c)    conducting a wedding or funeral that is compliant with the requirements of the Stay at Home Directions (Victoria).

(c) Commonwealth

24    The Commonwealth Declaration is made under s 475 of the Biosecurity Act 2015 (Cth). The Governor-General is empowered by that provision to declare that a human biosecurity emergency exists where the Health Minister is satisfied that a listed human disease is posing a severe and immediate threat, or is causing harm to human health on a nationally significant scale, and the declaration is necessary to prevent or control that disease in Australia. COVID-19 is a “listed human disease” for the purpose of that legislation and the Health Minister has the requisite satisfaction required by s 475(1). The Declaration commenced on 18 March 2020 and has been extended five times pursuant to s 476 of the Biosecurity Act, most recently until 17 September 2021.

25    The Explanatory Statement to the Commonwealth Declaration identifies its purpose as to declare that a human biosecurity emergency exists. Otherwise, though, the Commonwealth Declaration imposes no specific restriction on any activity, including any aspect of practising religious faith.

26    During a human biosecurity emergency period, as declared by the Commonwealth Declaration, the Health Minister may, in accordance with ss 477 and 478 of the Biosecurity Act, determine emergency requirements, or give directions, which he or she considers are necessary to prevent or control the entry, emergence, establishment or spread of the declared listed human disease in Australia.

27    The applicants do not seek to challenge any such directions in the present proceedings. Their challenge is confined to the Commonwealth Declaration itself.

The applicants’ evidence summarised

28    Although the interlocutory application relates only to specified Jewish religious services, the applicants read affidavits from various ministers of other religions. Pastor Christopher Dinkar Athavle, who is the Pastor of Smithfield Baptist Church, gave evidence of his attempts to persuade various NSW Parliamentarians that the NSW health orders are unreasonably preventing the practise of religious faith, including having serious adverse effects on parishioners’ physical and mental health. He deposed that it was unreasonable that the rest of the world was providing worship services, but not in Australia.

29    Pastor Athavle described how he believed that his Church could safely operate by, for example, using social distancing, masks and hand sanitisers, as is the case with large shopping centres and liquor stores. Pastor Athavle stated that the present “blanket bans on congregations are disproportionate and I believe we can do more to provide essential services to the community”.

30    I do not doubt the sincerity of Pastor Athavle’s concerns.

31    Evidence to similar effect was given by Pastor Robert Ayoub, Pastor of the Padstow Congregational Church. He deposed that he and his parishioners were unable to practise their faith in its fullness if they are unable to gather in person. He said that it was unreasonable to allow businesses such as liquor stores, supermarkets and other organisations to be open to the public and operate in a COVID-safe manner, but not a Church.

32    I do not doubt the sincerity of this evidence.

33    Evidence was given by Rabbi Menachem Mendel Kaminetzky, who is a full time Rabbi and Rabbinical Judge. He described how the NSW Order prohibited Jews from attending a Synagogue, which meant that on particular days, including on Rosh Hashanah and Yom Kippur, Jewish people would not be able to fulfil their Biblical obligations. He said that modern digital forms of communications are not allowed on Jewish festivals and that many Jews would be distressed if they were not able to attend services at a place of worship for these two festivals. He explained that Jewish Law required the Shofar to be blown on Rosh Hashanah and that this obligation could not be fulfilled if the Shofar was not blown on 7 and 8 September 2021. He said that Rosh Hashanah (6-8 September 2021) and Yom Kippur (15-16 September 2021) are extremely important days in the Jewish calendar.

34    I do not doubt the sincerity of this evidence.

35    Minister Robin Tso, Minister of the Hunter Presbyterian Church of Eastern Australia, gave evidence of how the current NSW Order is preventing members of his Church from faithfully obeying the law of God through attendance at public congregation. Minister Tso stated that “[t]his time has been very hard on many in this small community” and he gave evidence of the struggles of a number of long-term members of the congregation during the COVID-19 pandemic and under the current NSW Order. Minister Tso opined that “the Order is unreasonable” for its effect on public worship compared to other commercial entities such as supermarkets and liquor stores, and gave evidence of alternative arrangements he believed could be implemented to allow his congregation to meet at the Church’s worship hall in a COVID-safe manner.

36    I do not doubt the sincerity of Minister Tso’s evidence.

37    Evidence to similar effect was given by Rabbi Zvi Hirsch Telsner regarding the effect of the Victorian Directions and by Mr Yankel Koncepolski, who affirmed two affidavits and described himself as an “International Businessman” and long-standing member of the Sydney Jewish community. I do not doubt the sincerity of their evidence. Mr Koncepolski was cross-examined on one aspect of his second affidavit and he confirmed that he had been told by a Rabbi who was a member of the Executive of the Victorian Rabbinical Council that he had been informed by the Victorian Health Department on 17 August 2021 that it would no longer consider any request for attending synagogues on Rosh Hashanah. He did not dispute, however, that the Victorian Health Department might put in place alternative arrangements, as occurred in 2020.

38    The applicants relied upon an affidavit by John Adams, who described himself as a professional economist. Assuming that the affidavit was relied upon for the opinions it expressed, it may be noted that it did not comply with the Court’s Practice Note GPN-EXPT regarding expert reports. Mr Adams claimed that the “arbitrary nature in which the NSW Government is able to define what is and is not essential as part of the NSW Public Health Order unfairly discriminates against my ability to practice my religion” and that it was unreasonable to distinguish between businesses such as grocery stores, liquor stores and newsagencies, which are permitted to operate, whereas churches are not.

39    I do not doubt the sincerity of Mr Adams’s evidence, but give it little weight as opinion evidence because of the failure to adhere to the Court’s requirement for expert evidence.

The applicants’ expert evidence

(i) Professor Bhattacharya

40    The applicants also relied upon an expert report by Professor Jayanta Bhattacharya, who is a tenured Professor of Medicine at Stanford University in California. He provided a very detailed report dated 30 August 2021 entitled “Lockdowns and the Science of COVID”. Professor Bhattacharya expressed opinions on 11 matters. In his introduction, he acknowledged that most of the material in his report relates to matters as at June 2021 and reflected the scientific literature up to then, with selected updates from July and August 2021. He noted the applicants’ claim that churches and synagogues can safely meet following the same safety guidelines as other essential businesses, such as grocery stores.

41    It is convenient to summarise Professor Bhattacharya’s opinion evidence with reference to the following 11 questions or statements which he was asked to address.

A. Does COVID-19 pose a real or imminent serious threat to the health of the population?

42    In summary, Professor Bhattacharya opined that COVID-19 poses a real or imminent serious threat only to the health of a specific part of the population, being the elderly and a limited number of people with certain chronic conditions. He said that age is the single most important risk factor, with a worldwide 99.95% infection survival rate for people under 70 and 94.5% infection survival rate for people 70 and over. He said that when this vulnerable population is vaccinated against COVID-19 and protected against hospitalisation and mortality from the infection, “the disease poses little risk beyond the risk posed by other respiratory viruses”.

B. What does the scientific evidence indicate regarding the possibility that a person with no COVID-19 symptoms, but infected with SARS-CoV-2, can spread the virus to others?

43    After noting scientific evidence to the effect that symptomatic patients passed on COVID-19 to household members in 18% of instances, Professor Bhattacharya noted that asymptomatic persons passed on the infection to household members in only 0.7% of instances. He opined that public health authorities could inform citizens of the higher risk of disease transmission posed by symptomatic individuals and advise people with symptoms to stay at home and avoid private gatherings with people outside of their households. He said that if people without symptoms gathered together, even if they came from different households, the likelihood of disease spread occurring is of an order of magnitude lower than if symptomatic people gathered alongside uninfected people. He concluded that such “insights about the spread of Covid indoors from this literature could also be used to replace draconian policy restricting in-home private gatherings and religious worship with a less draconian policy”.

C. What principles of good health policy and public health practice do lockdown policies violate?

44    Professor Bhattacharya concluded that sound public health practice should adhere “to key principles which aim at grounding policy sound science, respecting human rights and democratic norms, appropriately accounting for costs and benefits of policies and uncertainty in outcomes, treating people equitably, as well as other principles not discussed here”.

D. Are lockdown measures necessary to maintain and enhance the health and well-being of the general population?

45    After addressing both theoretical and empirical literature on lockdown effectiveness, including a case study which compared the position in Florida and California, Professor Bhattacharya concluded that neither the theoretical literature nor the empirical literature “provides convincing support for the idea that lockdowns effectively contain the spread of COVID-19 disease over anything other than short periods”.

E. Are governmental actions aiming to slow down the propagation of the disease harmful to the health of the population?

46    Professor Bhattacharya opined that evidence of the benefits of lockdowns was “equivocal”, whereas the harmful effects of lockdowns are “manifold and devastating”. He referred to an article in The Australian newspaper dated 29 August 2021, which reported that in Victoria 340 teenagers were presenting in emergency departments each week for mental-health related issues and that hundreds presented with suicidal ideation and self-harm. He said that this represented a sharp increase since 2020, and an even sharper increase since 2019 before COVID-19 related lockdowns.

F. How beneficial are religious services for participants and can they be held safely?

47    Professor Bhattacharya described religious activity as “essential to a meaningful life for many Australians, and the Australian Constitution guarantees the free exercise of religion”. He summarised his conclusions as follows:

The overwhelming evidence that church attendance provides psychological and other benefits for attendees, should be considered against the cost of a marginal increase in disease spread, (a harm that can be mitigated by following safety protocols.) Notably missing in governmental justifications for church closure, is any attempt to quantify or consider in any way the positive public health benefits foregone by shutting down churches and banning worship, both for congregants and the positive ripple effects in the community. Before closure orders are imposed on religious organizations, it is incumbent upon those imposing them to conduct an analysis of the direct or indirect economic impacts. Policies enacted without a careful consideration of both its costs and benefits cannot possibly be construed to have a rational basis.

G. Do alternative policies exist that can protect the population, that do not impair human rights, civil liberties, constitutional freedoms, and basic principles of public health?

48    Professor Bhattacharya referred to the Great Barrington Declaration, of which he is a co-author, which describes an alternative policy of “focused protection”. That Declaration is dated 2020 and has apparently been co-signed by 12,000 epidemiologists and public health professionals, as well as 35,000 medical professionals. Professor Bhattacharya described the Declaration as offering a policy alternative to lockdowns that reduces COVID-19 related mortality among the vulnerable by focusing resources devoted to focused protection where they live.

H. What concrete policies would provide focused protection of the vulnerable?

49    Professor Bhattacharya described various steps which would provide “focused protection”, which he described as a term which referred to a suite of policies aimed at reducing the risk of viral exposure and severe outcomes for the elderly population and others who face a high infection fatality risk from COVID-19 infection.

50    Professor Bhattacharya was critical of the failure of public health officials in Australia to develop strategies since December 2020, when a safe and effective vaccine became available, so as to provide focused protection of the vulnerable. He concluded that an approach which focuses solely on slowing disease spread (i.e. lockdown) ultimately increases both COVID-19 related and lockdown harms relative to a policy of focused protection.

I. The de-coupling of cases and deaths despite the spread of variants versions of the virus

51    Professor Bhattacharya noted that Australia had been slow in its vaccine role out compared to other rich countries but added that, as at 30 August 2020, at least 80% of the Australian population over the age of 65 had received at least one dose of a COVID-19 vaccine and nearly 60% had received two doses. He compared this with the situation in Sweden. He concluded that, because of the success of the vaccination campaign in Australia, COVID-19 “poses no real or immense serious risk to the population’s health and the situation is clearly no longer an emergency, even for previously vulnerable older adults”.

J. The existing of lingering symptoms after recovery from COVID infection (Long COVID) do not make lockdown a wise policy

52    Professor Bhattacharya concluded that “long COVID” symptoms do occur in a minority of patients who recover from COVID-19, and pose a real burden on patients who suffer from it. He added, however, that in his view, the successful vaccine rollout in Australia should end the state of emergency. He said that a vaccinated individual has a near zero likelihood of having a severe dose of COVID-19 resulting in hospitalisation.

K. Is zero-COVID (or eradication of COVID) a viable long term strategy?

53    Professor Bhattacharya concluded that the “only practical course is to live with the virus in the same way that we have learned to live over millennia with countless other pathogens”. He added that because Australia had been successful in vaccinating its vulnerable older population and having regard to the principles of “focused protection”, there is no need for Australia to continue down a “fruitless zero-COVID path”.

54    Professor Bhattacharya is a well-regarded expert in his field. For the following reasons, however, I do not give his report much weight, at least at this stage of the proceeding. First, as is evident from its terms, the bulk of Professor Bhattacharya’s report is directed to overseas jurisdictions. I acknowledge that it contains some limited references to Australian conditions but those references themselves raise matters which diminish the weight of his evidence. For example, having regard to what I say below, it is evident that Professor Bhattacharya has a limited understanding of Constitutional provisions in Australia relating to religion. I consider that he has overstated the significance of those provisions.

55    Secondly, and perhaps more importantly, Professor Bhattacharya’s evidence represents a different view as to how complex policy choices should be made in a pandemic. Even if it were accepted that his views are reasonable views, merely because reasonable minds might differ on policy choices manifested in the impugned instruments does not demonstrate unreasonableness and/or disproportionality. Nothing in Professor Bhattacharya’s evidence rises so high as to suggest that there is a serious question to be tried that any of the impugned instruments is beyond power in the legal sense. In evaluating his evidence it is important for the Court not to be drawn into a merits review of the impugned instruments.

56    Thirdly, it is notable that Professor Bhattacharya does not directly address the terms or substance of any of the three impugned instruments. His evidence is pitched at a much higher level of generality, which derogates from its weight. I was left with the distinct impression that his report was based largely on existing material in relation to overseas countries which is unrelated to the instruments the subject of these proceedings. Some minor adjustments were made to that material with a view to presenting a semblance of relevance to the present proceeding in the Court. This is not said critically of anyone. Rather, it is the inevitable consequence of the haste with which these proceedings have been brought.

(ii) Professor Thomas Borody

57    The applicants also relied upon an expert report by Professor Thomas Borody, who is the founder and Medical Director of the Centre for Digestive Diseases, which deals with infections and gastrointestinal conditions. Professor Borody holds no less than three Doctorates in Medicine, Philosophy and Science. Professor Borody previously developed the Triple Therapy which cured ulcers. He attached a copy of a 2017 report on that subject.

58    Professor Borody deposed that he had developed an effective and cheap COVID-19 treatment that is comprised of Ivermectin, Zinc and Doxycycline and he said that it had proven to be effective in treating patients with COVID-19, as he said was supported by over 40 trials. He said that no strains of COVID-19 had yet been shown to be resistant to the Triple Therapy.

59    Professor Borody said that the Commonwealth Minister for Health, the Hon Greg Hunt MP, had written to him on 27 August 2020 and specifically stated that doctors in Australia can prescribe Ivermectin and other components “off label”. Professor Borody also referred to a report which he co-authored which recorded the study results of Ivermectin. The report concluded that the treatment had been highly effective and led to “100% survival and cure in unselected ambulatory ‘moderate to severely’ ill COVID-19 patients with hypoxia managed as outpatients”. Professor Borody acknowledged that Ivermectin is not an approved medication for the treatment of COVID-19 because it has not yet been through the Therapeutic Goods Administration’s approval process, which is complex and expensive.

60    I do not doubt Professor Borody’s credentials and expertise. With no disrespect, however, I give his evidence little weight at this stage of the proceeding, particularly because it does not directly address any aspect of the three instruments which are the subject of this proceeding. As is the case with Professor Bhattacharya’s expert evidence, the opinions expressed by Professor Borody are opinions which a reasonable person might hold. As I have emphasised, however, it is insufficient for current purposes simply to demonstrate that reasonable minds might differ on the appropriateness of the checks and balances manifested in the impugned instruments.

NSW’s evidence summarised

61    New South Wales relied on three affidavits. The first is dated 3 September 2021 and is affirmed by Ms Elizabeth Daley, solicitor. It described the State’s involvement in the proceedings, including an email dated 2 September 2021 which was sent at 9:47 am by the applicants’ instructing solicitor to the NSW Crown Solicitor’s Office. That email attached the Court documents relied upon by the applicants. It appears that this is the first time NSW was served with the documents, being almost 20 minutes after the case management hearing commenced on Thursday, 2 September 2021. This explains the non-appearance of NSW at that case management hearing.

62    The other two affidavits relied on by NSW are an affidavit dated 3 September 2021 by Ms Christine Selvey, Acting Executive Director, COVID-19 Public Health Response Branch, NSW Health and an affidavit dated 3 September 2021 by Mr Richard Broome, Acting Executive Director, Health Protection, NSW.

63    Ms Selvey has degrees in medicine and exercise science, has trained as a medical practitioner and has worked in communicable disease public health since 1998, working full time and exclusively in that area since January 2007. Ms Selvey described the broad objective of Orders made under the NSW Act since the commencement of the COVID-19 pandemic as “to reduce the risk of transmission of the virus by limiting physical contact and reducing the opportunity for mixing of individuals and groups who would not normally come into contact”. Ms Selvey also provided up to date information on the extent of the current “extremely serious outbreak of COVID-19” in NSW. This included the fact that in the 24 hours to 8:00 pm on 1 September 2021, NSW recorded 1288 new locally acquired cases of COVID-19 and that the total number of cases in NSW since the beginning of the pandemic is 29,202. She also gave evidence regarding the extent of vaccination in NSW, together with the number of new locally acquired cases in various parts of the State. She deposed that there had been 23,586 cases and 107 COVID-related deaths in NSW since 16 June 2021 and 163 deaths in total since the start of the pandemic. There are currently 957 COVID-19 cases in hospital in NSW, with 160 people in intensive care, 64 of whom require ventilation. Ms Selvey also gave evidence concerning the Delta variant of COVID-19 which she described as a highly contagious and transmissible strain. She said that one person affected with the Delta variant is estimated to infect two to three other persons.

64    Ms Selvey deposed that, at the present time, she considered that there remained “a substantial risk of transmission of the Delta variant of COVID-19 in the community” and that public health measures assist in suppressing transmission. She described such measures as including limiting instances and the size of gathering between persons, physical distancing, testing, contact tracing, quarantining and vaccination. I accept her evidence.

65    Mr Broome, who has qualifications in medicine and public health, gave evidence regarding Orders made under s 7 of the NSW Act and the process for applying for exemptions from those Orders. He emphasised that every Order since 26 June 2021 has contained a clause which empowers the Minister to grant an exemption to the Order, including the power in cl 7.2 of the NSW Order. He described the process for seeking an exemption and its determination. He said that exemptions can be sought and granted to permit a certain number persons to attend a particular event, such as a funeral or more generally in respect of particular categories of gatherings or particular classes of the community.

66    Mr Broome said that in the last two weeks his team had received at least four sets of applications which sought exemptions in relating to the celebration of up-coming Jewish holidays. He said that three of those sets of applications sought exemptions of a group of up to ten or more people to gather to celebrate Rosh Hashanah and Yom Kippur. He said that those applications had not yet been decided. He said that another application sought a series of exemptions in relation to the blowing of the Shofar in public places across Sydney and that, on 2 September 2021, the Minister for Health and Medical Research had approved the exemption. Mr Broome also deposed that none of the applicants in these proceedings had applied to NSW Health for an exemption from the NSW Order in connection with the celebration of upcoming Jewish holidays. While Minister Tso gave evidence that he did unsuccessfully apply for an exemption from the NSW Order, this was evidently unrelated to the upcoming Jewish holidays. I accept Mr Broome’s evidence.

Victoria’s evidence summarised

67    Victoria read an affidavit dated 2 September 2021 by Ms Nicole Brady, Deputy Secretary of Public Health Policy & Strategy, COVID-19 Response Division in the Victorian Department of Health. Ms Brady has a Bachelor of Arts and a Masters of Public Health. She described the history of the state of emergency in Victoria presented by the COVID-19 pandemic. She also described at length the current epidemiological position in Victoria, which she described as involving a serious outbreak of COVID-19. She gave detailed statistics of the number of active cases in Victoria, including the fact that there were 870 public exposure sites as compared with 479 public exposure sites two weeks earlier.

68    Ms Brady described public health Directions which have been issued in Victoria including the current Victorian Directions. She said that she was aware that consideration had been given to the effect that those particular Directions would have on the ability of Victorians to gather for religious purposes. She also confirmed that the current Victorian Directions were due to end just before midnight on 2 September 2021 and that the content and timing of any further Directions would be matters for the relevant decision-makers and subject to public health assessment and other relevant considerations.

69    Ms Brady noted that of the witnesses relied upon by the applicants, only one was based in Victoria, Rabbi Telsner. Ms Brady noted that the Rabbi had not given evidence specifically about the conduct of religious observances of Rosh Hashanah or Yom Kippur.

70    Ms Brady also gave evidence as to the consultation which had been conducted in 2020 in the lead up to Rosh Hashanah and Yom Kippur with the Rabbinical Council. She described how these consultations resulted in Rosh Hashanah being observed in Melbourne during 2020 consistently with public health Directions in force at that time.

71    Ms Brady also said that she had met with the Rabbinical Council on 1 September 2021 regarding the observance of Rosh Hashanah and Yom Kippur this year and that it was her understanding that Rosh Hashanah will be celebrated along similar lines to those arrangements which were put in place in 2020. Ms Brady said that she intended to meet with the Rabbinical Council next week and that she was committed to meeting as often as required with the Council to deal with any further issues relating to Rosh Hashanah or Yom Kippur.

72    I accept Ms Brady’s evidence without reservation.

The Commonwealth’s evidence summarised

73    The Commonwealth relied on an affidavit dated 2 September 2021 by its instructing solicitor, Mr Jonathon Hutton. He described his interactions with the applicants’ solicitor regarding the documentation in the present proceeding. It is unnecessary to describe those interactions.

Interlocutory injunctive relief

74    Unsurprisingly, there was no dispute regarding the general principles concerning interim injunctions. They may be summarised as follows:

(a)    has the applicant for relief made out a prima facie case (otherwise referred to as a “serious question to be tried”), in the sense explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ; and

(b)    does the balance of convenience favour the grant of an injunction or the refusal of relief, which may also require consideration of discretionary factors (Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [19] per Gleeson CJ and Crennan J (ABC v O’Neill))?

75    The requirement of a “prima facie” case generally requires the applicant to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O’Neill at [65]. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks: Beecham at 622. In Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238, the Full Court (Dowsett, Foster and Yates JJ) said at [67]:

… The question of whether there is a serious question or prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance.

76    Where interlocutory relief is sought in proceedings other than those involving competing private interests, public interest considerations may arise. As Mason ACJ acknowledged in Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; 161 CLR 148 at 154-155, in some cases where the public interest will be adversely affected by the grant of an injunction, the applicant may need to show “a probability, even a distinct probability of success, in order to obtain an interlocutory injunction”. His Honour said that the degree of likelihood of success in the action is a factor which is related to the balance of convenience.

77    Expressed in another way, a relevant consideration in this proceeding is the fact that third party interests, namely those of the public who might be affected by the grant of an interlocutory injunction, are relevant. Although the applicants have proffered an undertaking as to damages, this may not be a sufficient answer to this matter.

Consideration and determination

(a) Is there a serious question to be tried?

78    For the following reasons, I consider that the applicants have failed to demonstrate that there is a serious question to be tried. If there is, in my view it is very weak.

79    First, the applicants’ reliance on the “principle of legality” in challenging both the NSW Order and the Victorian Directions is misconceived. In brief, that is because both those instruments make it abundantly clear that they are intended to encroach upon and restrict what the applicants say is their fundamental right or freedom at common law to practice their religious faiths (for which the applicants relied upon Mason ACJ and Brennan J’s observations in Church of the New Faith v Commissioner for Pay-roll Tax (Vic) [1983] HCA 40; 154 CLR 120 at 130). The terms of the State instruments represent the weighing or balancing of competing interests by the maker of the instrument, whose objective is to protect the public and its institutions from deleterious effects of the COVID-19 pandemic, while also recognising the justification for some limited exceptions to that protection. Plainly this involves an evaluative judgment with a heavy political and policy content.

80    It is sufficient for present purposes to set out French CJ’s description of the principle of legality in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [41]-[42] (Adelaide City Corporation) (footnotes omitted):

41.    … The power and by-laws made under it must be construed by reference to the common law principle of legality, and the requirements of reasonableness and proportionality discussed below. Ultimately, the implied constitutional freedom of political communication imposes limits which affect construction. It is necessary first to consider the application of the principle of legality so far as it concerns the common law freedom of expression.

The principle of legality

42.    Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a “principle of legality” which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).

81    Some Justices of the current High Court have highlighted some difficulties with the principle of legality (see, for example, Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [313]-[314] per Gageler and Keane JJ). In particular, their Honours noted that the principle of legality “can at most have limited application in the construction of legislation which has amongst its objects or purpose the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked”.

82    That is precisely the case here. The very object of the two States’ legislative instruments is to regulate a range of freedoms, including abrogating or curtailing some of those freedoms or rights. That clear intention is manifested in the distinctions which are drawn in those instruments, which carve out exemptions in the case of some rights or freedoms but not others. As Gageler J stated in R v Independent Broad-Based Anti-Corruption Commissioner [2016] HCA 8; 256 CLR 459 at [76]-[77] (footnotes omitted):

76    Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction. An interpretative technique which involves examining a complex and prescriptive legislative scheme designed to comply with identified substantive human rights norms in order to determine whether, and if so to what extent, that legislative scheme might butt up against a free-standing common law principle is inherently problematic. The technique is even more problematic if the common law principle lacks precise definition yet demands legislative perspicacity and acuity if it is not to create of its own force an exception to the scheme that is spelt out in the statutory language.

77    Be that as it may, any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical. …

83    This case is far removed from the circumstances in Evans v New South Wales [2008] FCAFC 130; 168 FCR 576, where the principle of legality was applied in a case which presented constructional choices (see at [68] per Branson, French and Stone JJ). There are no such choices here having regard to the plain terms of the impugned instruments.

84    Secondly, the applicants’ case is not strengthened by their reliance on s 116 of the Constitution and the alleged implied Constitutional freedom of religion. Section 116 of the Constitution states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

85    In its terms, s 116 applies only to the Commonwealth and not to the States, and is therefore only relevant to the Commonwealth Declaration.

86    Section 116 of the Constitution prohibits the Commonwealth from making any law “for prohibiting the free exercise of any religion”. But the Commonwealth Declaration here does not prohibit the free exercise of any religion. Indeed, as emphasised above, it has no substantive content in its own right or contain any provision which is directed to the free exercise of any religion. Any such prohibition or restriction might flow from directions made by the Commonwealth Health Minister under s 477(2) of the Biosecurity Act. But no such direction is challenged by the applicants in these proceedings. Moreover, any such direction would not be a “legislative instrument” and Mr King, who appeared for the applicants, explicitly stated that the challenge was directed only to legislative instruments and not administrative decisions.

87    Thirdly, the applicants’ reliance on s 116 of the Constitution is inconsistent with caselaw which establishes that in determining whether a law is invalid by reference to s 116, the focus is on the purpose of the law and not its effect (see, for example, Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 160 per Gummow J, with whom Dawson J agreed). The applicants do not suggest that the purpose of the Commonwealth Declaration was to prohibit the free exercise of any religion. Rather, their case is directed to what they say is the effect of the Commonwealth Declaration. This position nevertheless fails to address the fact that the Commonwealth Declaration has no substantive effect as such and primarily operates to permit directions to be given which may have some substantive effect but no such direction is challenged by the applicants here.

88    As to the applicants’ proposition that there is under the Constitution an implied right of religious freedom (either related to or independently of s 116), no authority was cited in support of that proposition. Mr King submitted that the existence of such an implied right was supported by the terms of the Preamble to the Constitution. But that is inconsistent with the decision in Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [13] per Debelle, Sulan and Vanstone JJ where it was held that the reference to “Almighty God” in the Preamble “does not in any way enlarge the meaning and operation of s 116”. Moreover, as NSW submitted, no Constitutional implication can be drawn which is inconsistent with the express terms of the Constitution (see MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 at [41]-[42] per Gleeson CJ, Gummow and Hayne JJ and [197]-[198] per Heydon, Crennan and Kiefel JJ; see also Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; 161 CLR 556 at 569 per Gibbs CJ, 579 per Mason J, 615 per Brennan J and 636 per Dawson J, and Gerner v Victoria [2020] HCA 48; 385 ALR 394 at [27]-[29]). The asserted implied right would go beyond and be inconsistent with the express terms of s 116. Inconsistency would also arise if s 116, which is expressly confined to the Commonwealth, was extended to the States.

89    It is difficult to see any connection between the asserted implied Constitutional right and the implied constitutional right of political communication applied in cases such as Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520.

90    Mr King placed heavy reliance upon a decision of the Superior Court of California in Burfitt v Newsom (Cal Super Ct, No BCV-20-102267, 12 October 2020). In that case a “preliminary injunction” was issued which had the effect of prohibiting enforcement of restrictions and COVID-19 safety protocols against the plaintiff, who contended that the restrictions unconstitutionally infringed the free exercise of religion. That decision necessarily reflected the different Constitutional context in California and the United States. The Court’s brief reasons for judgment refer to the free exercise of religion clause in art 1, s 4 of the California Constitution, which caselaw has held prohibits treating religious activities worse than comparable secular activities. Presumably the Court also relied upon the First Amendment to the United States Constitution. There are no equivalent Constitutional provisions here. For completeness it might be noted that the applicants placed no reliance on any aspect of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to the Victorian Directions. The only fleeting reference made to it by the applicants was in closing address in reply.

91    For the following reasons, I also consider the applicants’ reliance on “legal unreasonableness” does not raise a sufficiently strong issue to be tried.

92    The applicants provided the following particulars of the alleged unreasonableness of the NSW Order and the Victorian Directions:

(a)    Each instrument discriminates against religion by closing down places of worship whilst favouring commercial entities as exempt entities such as supermarkets, liquor stores and newsagents.

(b)    A proportionate response would have permitted places of worship to exercise religion and to permit religious observances to occur, subject to exempt gathering or other reasonable restrictions in the circumstances.

(c)    Each instrument is unreasonable in that it fails to identify and specify health risk areas in particular areas where churches and synagogues are located and make appropriate directions or orders accordingly.

(d)    The respondents have failed to answer or apply to the applicants’ reasonable requests for the limited purpose of conducting religious observances.

(e)    No approach has been made to the applicants to consider or propose a sensible and practical plan of management.

(f)    The respondents have abandoned a zero infection outcome with respect to measures relating to COVID-19.

(g)    No or unreasonable regard has been paid to freedom of religion as recognised by the Constitution nor sufficient regard to the principle of legality.

(h)    Alternatives to harsh and draconian lockdown measures that are less costly and more effective are readily available.

(i)    There is no end in sight to the lockdowns such that a temporary measure has become in effect permanent and at the complete and unfettered discretion of the respondents without effective accountability.

(j)    No area of either State has been made safe nor the public health risk in each such area prevented or removed by the measures, but instead the respondents have admitted that the measures have failed.

(k)    With respect to the Commonwealth Declaration, neither of the conditions in paragraph 6(c) and (d) existed when the Declaration was made.

93    As was pointed out at the case management hearing, it is difficult to understand what is meant by the reference to paragraph 6(c) and (d) in circumstances where paragraph 6(c) of the amended originating application simply contains a reference to “Sunday” and paragraph 6(d) refers to “other religious holidays and worship as proposed by the applicants”. The only sensible reading of particular (k) is a reference to sub-section 6(c) and (d) of the Commonwealth Declaration itself, but they merely speak to the conditions which gave rise to the biosecurity emergency in March 2020. They do not in any way condition the ongoing validity of the Commonwealth Declaration, which as noted above is dependent on s 475 (and its extension under s 476) of the Biosecurity Act.

94    It is incontrovertible that subordinate legislation is amenable to judicial review for unreasonableness (see, for example, Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee [1945] HCA 55; 72 CLR 37 at 82 per Dixon J and Adelaide City Corporation at [48] per French CJ). It is important, however, not to lose sight of the fact that the standard of review is not merely “unreasonableness” as such. The standard is much higher, as is reflected in expressions of the standard as “so oppressive or capricious that no reasonable mind can justify it” (City of Brunswick v Stewart [1941] HCA 7; 65 CLR 88 at 97 per Starke J); “such manifest arbitrariness, injustice or partiality that a court would say Parliament never intended to give authority to make such rules” (Mixnam’s Properties Ltd v Chertsey UDC [1964] 1 QB 214 at 237 per Diplock LJ) and “no reasonable mind could justify it by reference to the purposes of the power” (Clements v Bull [1953] HCA 61; 88 CLR 572 at 577 per Williams ACJ and Kitto J).

95    The essential point is that there is a “high threshold” to judicial review of subordinate legislation for unreasonableness and the Court should avoid engaging in a merits review of such legislation (see Adelaide City Corporation at [47]-[54] per French CJ). As Spigelman CJ said in Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11 at [152], where it was contended that a legislative instrument applied unfairly and discriminatorily:

What is fair or unfair in such a context is a matter on which reasonable minds can differ. In view of the conflicting interests involved, a broad brush approach of general application is not, in my opinion, irrational.

96    As was stated in Harbour Radio Pty Ltd v Australian Communications and Media Authority [2012] FCA 614; 202 FCR 525 the proper test is not one of expediency but whether there is a power to make the subordinate instrument. Where there are difficult choices to be made, it is essential that the Court not usurp the role of the maker of the impugned subordinate instrument (see [116]-[125] per Griffiths J).

97    As is pointed out in P Herzfeld and T Prince, Interpretation (Thomson Reuters, 2nd ed, 2020) at [13.260], these expressions emphasise that “unreasonableness” “is not the antonym of “reasonableness” in the sense in which that expression is used in say, the common law of negligence”. The learned authors add, correctly, that “it is not sufficient that the court considers the subordinate legislation or its effects in certain circumstances unreasonable in this more limited sense”, citing Kruse v Johnson [1898] 2 QB 91 at 99-100 per Lord Russell CJ (Chitty LJ, Wright, Darling and Channell JJ agreeing) and Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 357 per Mason CJ, Wilson and Brennan JJ. As is also pointed out at [13.260] of that text, “in determining whether subordinate legislation is unreasonable in the requisite sense, the utility of considering whether there is a less burdensome means of addressing the mischief to which it is directed has been doubted”, citing Adelaide City Corporation at [65] per French CJ and at [120]-[122] per Hayne J (Bell J agreeing).

98    For the following reasons, I do not consider that the applicants’ challenge is strengthened by their reliance upon the notion of proportionality in impugning the relevant instruments. Assuming for present purposes that proportionality is a ground of challenge separate from that of unreasonableness, it is well settled that disproportionality is available only where the provision empowering subordinate legislation to be made is directed to a particular purpose, as opposed to it having a connection with a particular subject matter (see Herzfeld and Prince, supra at [13.270] and the cases referred to therein, including Adelaide City Corporation at [55]-[61] per French CJ). Thus, in South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 165, the majority (Wilson, Dawson, Toohey and Gaudron JJ) expressed the test of review of regulations for “reasonable proportionality” as being “whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose” (emphasis added).

99    Assuming for present purposes that review of subordinate legislation for unreasonableness and disproportionality overlap, it is apt to set out my statement of the relevant principles in Houston v State of New South Wales (No 2) [2021] FCA 637 at [117]-[120] (emphasis in original):

117    … It is well settled that, while delegated legislation may be rendered invalid for unreasonableness/disproportionality, these grounds relate to the fundamental question whether the impugned regulation is a real or valid exercise of power. Thus, for example, in South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 167-168, the majority (Wilson, Dawson, Toohey and Gaudron JJ) said (emphasis added):

… the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved … It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power.

118    This approach to reasonable proportionality as a ground of review of delegated legislation is also reflected in what French CJ said in Corporation of the City of Adelaide at [61] (footnotes omitted):

The use of the term “proportionality” in Tanner did not draw upon any novel or distinct theory of judicial review of delegated legislation. It was used to designate an evolved criterion defining the limits of a particular class of statutory power. As discussed earlier in these reasons, “proportionality” is a term used to designate criteria, going to validity, of rational law-making and decision-making in the exercise of public power. Kiefel J, writing extra-curially, has referred to its application in such disparate fields as criminal responsibility, sentencing, the permissible scope of qualifications upon human rights and freedoms under constitutional and statutory charters, intrusions upon constitutional guarantees, immunities and freedoms, express and implied, as well as purposive law-making power. Other fields in which it has been said proportionality operates include apportionment of liability in negligence cases and in the application of equitable estoppel against the “disproportionate making good of the relevant assumption”. Each of its applications has its own history.

119    It is also well settled that there is a high threshold in making good an unreasonable disproportionality challenge to legislation (see French CJ in Corporation of the City of Adelaide at [49]). The fundamental point has repeatedly been emphasised that the critical question is the existence and ambit of a power to make delegated legislation, not the expediency or merits of the exercise of the power (see, for example, French CJ in Corporation of the City of Adelaide at [48]-[50] and the cases cited therein).

120    In Murphy v Electoral Commissioner [2016] HCA 36; 261 CLR 28, Kiefel J said at [65] (footnotes omitted and emphasis added):

The aim of any testing for proportionality is to ascertain the rationality and reasonableness of a legislative restriction in a circumstance where it is recognised that there are limits to legislative power. Proportionality analysis does not involve determining policy or fiscal choices, which are the province of the Parliament …

Those observations are equally apposite to a challenge to the validity of delegated legislation based upon disproportionality. The central focus must be the contemplated ambit of power and the rational connection between the impugned regulation and the enabling power under which it was made.

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 tried 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.

101    As submitted by Mr Kirk SC, this conclusion is supported by the breadth of s 7 of the NSW Act, construed in light of the objects of that Act in s 3. As noted above, where the Health Minister considers on reasonable grounds that a situation has arisen that poses a risk to public health, the Health Minister “may take such action” and “may by order give such directions” as the Minister considers necessary. Given the breadth of s 7, I am not persuaded that there is a serious question to be tried that the NSW Order is beyond the ambit of the power of its enabling legislation. Similar observations can be made with respect to s 200 of the Victorian Act as the enabling legislation for the Victorian Directions.

102    Finally, I consider that there is a fundamental problem with the terms of the interlocutory relief sought by the applicants in their interlocutory application. They seek an order against the respondents restraining them from preventing the applicants celebrating particular religious observances on specified dates “in accordance with social distancing rules applicable to exempted gatherings”. This effectively invites the Court to rewrite provisions in the two State instruments relating to exemptions so as to permit the applicants to celebrate the specified religious observances. The Court is asked to amend those instruments by, in effect, adding to the exemptions therein so as to permit observance of the relevant services in accordance with social distancing rules. Assuming that the applicants rely upon provisions in interpretation legislation which requires subordinate instruments to be construed subject to the empowering legislation (such as s 13 of the Legislation Act 2003 (Cth), s 22 of the Interpretation of Legislation Act 1984 (Vic), and ss 31 and 32 of the Interpretation Act 1987 (NSW)), it is well settled that such provisions do not operate to require a court to redraft a legislative provision.

103    As the Full Court (Branson, Hely and Selway JJ) stated in Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; 133 FCR 63 at [19]:

Put simply the Court cannot ‘construe’ the relevant provision, whether by reading down or by expunging invalid provisions, where the effect of doing so is to create a provision which the Parliament did not intend. For this purpose various indicia are referred to such as the extent of the proposed change; the indicia within the statute itself; the legislative purpose and so on. But the essential issue remains – is the Court carrying out the permissible function of the interpretation of the statute (read in the context of the relevant Acts Interpretation Act provision), or is the Court itself making legislation?

(b) Balance of convenience

104    It is well recognised that the balance of convenience can be affected by the strength or weakness of any question to be tried. As I have found above, the substance of the applicants’ legal challenge strikes me as being particularly weak, at least on the basis of the existing evidence. This aspect does not favour the applicants in terms of balance of convenience.

105    I am very conscious that the proceeding has been brought on at short notice, which has created considerable pressure for the parties and their legal representatives. The Court is grateful for all the assistance it has received. The views that I express regarding whether there is a serious issue to be tried and the balance of convenience are views which I have arrived at despite the air of urgency which surrounds the proceeding.

106    In assessing the balance of convenience it is also important to take into account that all three impugned instruments are temporary measures and the grant of an interlocutory injunction has a potential finally to determine the matter. In those circumstances, it is generally the case that the applicant for injunctive relief faces a higher test and the strength or weakness of the applicants’ claims assumes particular significance (see, for example, Brilliant Lighting (Aust) Pty Ltd v Baillieu [2004] VSC 248 at [8] per Hollingworth J and Hartleys Ltd v Martin [2002] VSC 301 at [34] per Gillard J).

107    I accept the respondents’ submission that the practical consequences of granting injunctive relief are potentially dire. As Victoria pointed out, if the restrictions on gatherings in Victoria were removed or modified as sought by the applicants, this would allow large numbers of people to gather over the specified religious holidays. Given the increasing levels of community transmission of COVID-19, there is a very real risk that people who attend such gatherings could contract or spread the virus.

108    It is difficult to see how the balance of convenience favours the applicants in any way in respect of their challenge to the Commonwealth Declaration in circumstances where that Declaration imposes no restriction at all on the applicants. Furthermore, as the Commonwealth pointed out, the applicants have not explained their delay in bringing the proceeding against the Commonwealth in circumstances where the Commonwealth Declaration commenced on 18 March 2020 and there have been five extension instruments which have simply extended the end date.

109    Finally, in assessing the balance of convenience, it is important to factor in that, in substance, the interlocutory injunction sought by the applicants is not an injunction to maintain the status quo pending final relief. Rather, it effectively seeks final relief even though for a brief time pending determination of the substantive claim. As NSW pointed out, the effect of the interlocutory injunction would be to achieve an exemption from laws which are already in force.

(c) Discretionary considerations

110    It is important not to lose sight of the public interest context in which these proceedings are brought. This is a case where the grant of interlocutory relief could affect the rights or interests of third parties or the public in general. As the plurality (Wilson, Dawson, Toohey and Gaudron JJ) stated in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [65] (footnotes omitted):

In applications to grant interlocutory injunctions, the court is concerned to examine and in appropriate cases to protect, pending the trial, the moving party’s right to relief against that party’s opponent. But the rights of plaintiff and defendant are not the only rights considered in determining where the balance of convenience lies. In Wood v Sutcliffe Sir Richard Kindersley V-C said:

“[W]henever a Court of Equity is asked for an injunction in cases of such a nature as this, it must have regard not only to the dry strict rights of the Plaintiff and Defendant, but also to the surrounding circumstances, to the rights or interests of other persons which may be more or less involved: it must, I say, have regard to those circumstances before it exercises its jurisdiction (which is unquestionably a strong one), of granting an injunction.”

The principle in Wood v Sutcliffe was approved by Cumming-Bruce LJ in Miller v Jackson:

“Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the court.”

His Lordship cited with approval a passage from Dr Spry’s Equitable Remedies. We too adopt the author's statement:

“the interests of the public and of third persons are relevant and have more or less weight according to the other material circumstances. So it has been said that courts of equity ‘upon principle, will not ordinarily and without special necessity interfere by injunction, where the injunction will have the effect of very materially injuring the rights of third persons not before the courts’. Regard must be had ‘not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved’. So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.)”

111    In my view, the proffered undertaking as to damages does not provide adequate protection to the rights, interests and potential liabilities not only of the respondents, but also third parties. If the interlocutory relief sought by the applicants was granted, there is a risk that members of the public will become infected, some will inevitably require hospitalisation and some might also die. The applicants’ potential liability to pay damages could be sizeable and beyond their means. It is unnecessary to take that matter any further having regard to the evidentiary material before the Court. The primary reason for refusing the injunctive relief lies in the weakness of the applicants’ legal case.

112    Another discretionary factor with particular relevance to the applicants’ challenge to the NSW Order is that the applicants could have sought an exemption under cl 7.2 of that Order but have not done so insofar as Rosh Hashanah and Yom Kippur are concerned, nor explained why they have not done so. I accept that an application for an exemption was made unsuccessfully by Minister Tso otherwise than in respect of Rosh Hashanah and Yom Kippur. Furthermore, on 2 September 2021 the NSW Health Minister granted an exemption under cl 7.2 of the NSW Order for the blowing of the Shofar by Rabbis or other persons nominated by the NSW Jewish Board of Deputies in outdoor public areas, subject to certain restrictions.

113    As NSW correctly pointed out, the applicants effectively seek the Court to determine a request for such an exemption, which usurps the executive function. In my respectful view, it is critical to maintain a clear distinction between executive and judicial functions.

114    There are similar discretionary considerations in the case of Victoria, with particular reference to Ms Brady’s evidence that appropriate arrangements were entered into last year in Victoria to enable some observance of Rosh Hashanah and Yom Kippur and her willingness to consult and finalise similar arrangements this year. No explanation has been provided by the applicants as to why advantage has not been taken of this position.

Conclusion

115    For these reasons the interlocutory application dated 31 August 2021 will be dismissed. In making that order, I do not cast any doubt on the sincerity and genuineness of the applicants’ motives and their concerns to achieve appropriate recognition of their interests in protecting and discharging their religious faith and responsibilities. The fundamental point, however, is that their concerns are best addressed in forums other than the Courts, whose limited powers and functions must be upheld, even in difficult and challenging cases.

116    I consider that this is an appropriate case in which to order the applicants to pay the respondents’ costs. Where the applicant is successful in an interlocutory application, the normal approach is that costs of the interlocutory process become the applicants’ costs in the cause. If, however, as is the case here, the applicant loses, the usual order is that the applicant pay the respondent’s costs of the application. As Campbell J explained in Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119 at [56], the rationale for this approach relates to the way in which interlocutory proceedings are intended to advance the final hearing. If an applicant brings and loses an interlocutory application, then that interlocutory hearing is one which will, irretrievably, have cost the respondent money and justice generally requires that the respondent be indemnified for those costs, regardless of the outcome of the substantive proceedings (similarly see Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75 at [10]-[11] per Blue J).

117    I do not accept Mr King’s submission that the interlocutory application should be viewed as being brought in the public interest. That it is not public interest litigation is vividly illustrated by the fact that the terms of the interlocutory relief sought would benefit only three applicants (and their congregations) and not the broader religious community.

118    The proceeding will now be allocated to a docket Judge who will be responsible for future case management regarding the substantive proceeding.

Associate:

Dated:    6 September 2021

SCHEDULE OF PARTIES