Federal Court of Australia

Certain Underwriters at Lloyd’s of London v Dural 24/7 Pty Ltd [2022] FCA 206

ORDERS

THE COURT DECLARES THAT:

1.    The words “or other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908” appearing in clause 7 of the Sportspack Combined Wording 11.18 forming part of the contract of insurance between Certain Underwriters at Lloyd’s of London subscribing to policy number PMEL99/0100038 and Dural 24/7 Pty Ltd bearing the policy number PMEL99/0100038 ought to be read as “or other listed human diseases under the Biosecurity Act 2015 (Cth)”.

THE COURT ORDERS THAT:

2.    The matter be listed for case management on 30 March 2022 at 09:30 AEDT.

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

REASONS FOR JUDGMENT

JAGOT J:

1    The applicants seek a declaration in these terms:

The words “or other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908” appearing in clause 7 of the Sportspack Combined Wording 11.18 forming part of the contract of insurance between Certain Underwriters at Lloyd’s of London subscribing to policy number PMEL99/0100038 and Dural 24/7 Pty Ltd bearing the policy number PMEL99/0100038 ought to be read as “or other listed human diseases under the Biosecurity Act 2015 (Cth)”.

2    I have concluded that this declaration should be made.

Facts

3    The relevant facts are contained in a statement of agreed facts. They include the following (with some uncontroversial amendments and additions made for clarity).

4    The applicants are the underwriters of a policy of insurance bearing policy number PMEL99/0100038 for the period 1 January 2020 at 4.00 pm to 1 January 2021 at 4.00 pm (policy).

5    The respondent is an insured under the policy. At all material times it operated a Snap Fitness gym franchise at Unit 3&4/256-258 New Line Road, Dural NSW.

6    Until 16 June 2016, the Quarantine Act 1908 (Cth) was in force.

7    Under s 21 of the Quarantine Proclamation 1998 (Cth), each of the following human diseases had been declared under s 13(1)(ca) of the Quarantine Act to be a “quarantinable disease” under the Quarantine Act at the date of its repeal:

(a) Cholera;

(b) Plague;

(c) Rabies;

(d) Viral haemorrhagic fevers of humans;

(e) Yellow fever;

(f) Smallpox;

(g) Severe Acute Respiratory Syndrome (SARS);

(h) Highly Pathogenic Avian Influenza in Humans (HPAIH);

(i) Human swine influenza with pandemic potential; and

(j) Middle East respiratory syndrome.

8    On 16 June 2016, the Quarantine Act was repealed by the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Cth).

9    On 16 June 2016, the Quarantine Proclamation was repealed by the Quarantine Repeal Proclamation 2016 (Cth).

10    On 16 June 2016, the Biosecurity Act 2015 (Cth) (as relevant) commenced and remained in force at all relevant times thereafter.

11    The term “quarantinable disease” is not used in the Biosecurity Act.

12    At the time the policy commenced, each of the following diseases had been determined to be a “listed human disease” under s 42 of the Biosecurity Act as set out in the Biosecurity (Listed Human Diseases) Determination 2016 (Cth):

(a) Human influenza with pandemic potential;

(b) Middle East Respiratory Syndrome;

(c) Plague;

(d) Severe Acute Respiratory Syndrome (SARS);

(e) Smallpox;

(f) Viral Haemorrhagic Fevers;

(g) Yellow Fever.

13    On 21 January 2020, the Director of Human Biosecurity determined “human coronavirus with pandemic potential” to be a listed human disease under s 42 of the Biosecurity Act as set out in the Biosecurity (Listed Human Diseases) Amendment Determination 2020 (Cth). COVID-19 has been a listed human disease within the meaning of the Biosecurity Act since 21 January 2020.

14    On or about 16 December 2020, the respondent, by its insurance broker, lodged a claim with the insurer seeking indemnity for business interruption losses in connection with COVID-19.

15    The applicants deny that they are obliged to indemnify the respondent for those losses.

The policy

16    Page 4 of the policy is headed “Information”. It contains a sub-heading “Conformity”. The paragraph below that sub-heading says (emphasis added):

In this Policy You will find that some items can be singular or plural, feminine or masculine. This clause is designed to correct this. Words in the singular shall include the plural and vice versa. Words importing the masculine will import the feminine and the neuter. References to ‘a person’ will also to include any individual, company, partnership, or any other legal entity. References to a statute law also includes all its amendments or replacements.

17    Section 2 under the “Scope of Cover” part of the policy is headed “Business Interruption”. The “Cover” provision need not be repeated here. Clause 7 is part of the “Extensions of Cover” provision. It is in these terms on p 33 of the policy:

7. Murder, Suicide or Disease

The Occurrence of any of the circumstances set out in this extension of cover shall be deemed to be Damage to Property used by You at the Situation.

a. Murder or suicide occurring at the Situation

b. the outbreak of human infectious or contagious disease occurring within a 20 kilometre radius of Your Situation; or

c. closure or evacuation of Your Business by order of a government, public or Statutory Authority consequent upon:

d. the discovery of an organism likely to result in a human infectious or contagious disease at the Situation,

e. vermin or pests at the Situation, or

f. defects in the drains or other sanitary arrangements at the Situation; or

Cover under b. and c. under this extension of cover does not apply in respect of Highly Pathogenic Avian Influenza in Humans or other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908.

18    It is common ground that sub-clauses d, e and f of cl 7 are each intended to be further sub-clauses of sub-clause c. This is apparent from the fact that sub-clause c ends with a colon and sub-clauses d, e and f are matters consequent upon the closure or evacuation covered by sub-clause c. Accordingly, the exclusionary paragraph at the end of cl 7 applies to sub-clauses b and c read together with d.

The submissions

19    In HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; (2020) 104 NSWLR 634 the New South Wales Court of Appeal decided that a reference in an insurance policy to “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908 and subsequent amendments” was not to be construed as meaning “diseases determined to be listed human diseases under the Biosecurity Act 2015 (Cth)”. In so doing the Court rejected the contentions of the insurer that the Biosecurity Act constituted a “subsequent amendment” and that the references to the Quarantine Act were obvious mistakes which should be construed as if they were or included references to the Biosecurity Act.

20    The applicants in the present case contend that a different conclusion must be reached as a result of the conformity clause in the policy which provides that “references to a statute law includes all its amendments or replacements”.

21    The applicants submitted that the relevant sentence in the conformity clause operates with respect to “all” amendments and replacements of a statute. The word “all” does not permit any reading down of the reach of the conformity clause. If the new statute law may be properly described as a replacement of the previous statute law then the conformity clause operates so that the reference to the previous statute in the policy is to be read as including a reference to the new statute. There is, the applicants said, no textual or contextual indicator in the policy which suggests the ordinary meaning of “replacements” should be displaced: Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633 at [76]-[77].

22    In particular, and contrary to the respondent’s case, the applicants submitted that the conformity clause does not distinguish between statutes which impose obligations and those which confer powers. The reasonable reader would understand the reference to “statute law” in the conformity clause to include both the provisions of a statute and the statute itself, and would also understand that the language of the conformity clause extends to subordinate legislation and executive acts.

23    According to the applicants, the Biosecurity Act replaced the Quarantine Act. In this regard, the Explanatory Memorandum to the Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 said on p 4 “[t]he Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 (the Bill) makes transitional and consequential provisions to support the commencement of the Biosecurity Bill as it replaces the Quarantine Act 1908 (Quarantine Act) as the Commonwealth’s primary biosecurity legislation”. See also Wonkana at [106] where Hammerschlag J (Bathurst CJ and Bell P agreeing) said it “is plain that the Biosecurity Act replaced the Quarantine Act, albeit that it has a more extensive reach in terms of its subject matter than the Quarantine Act”.

24    The applicants submitted further that the words “other diseases declared to be quarantinable diseases” should be construed as “other listed human diseases” as the concept of a quarantinable disease no longer exists under the Biosecurity Act, having been replaced by a “listed human disease” as determined under s 42. They referred again to the Explanatory Memorandum which said at p 23 “[t]he addition of this provision [s 42] provides for the concept of ‘listed human disease’ under the Biosecurity Act which replaces ‘quarantinable disease’. The concept of quarantinable disease no longer exists following the repeal of the Quarantine Act.”

25    That is, according to the applicants, from the inception of the policy the conformity clause operated. This is because the Quarantine Act and Quarantine Proclamation 1998 were repealed on 16 June 2016 before inception of the policy. Those statute laws were replaced by the Biosecurity Act and the Biosecurity (Listed Human Diseases) Determination 2016 made under that Act. The Biosecurity (Listed Human Diseases) Determination 2016 was amended on 21 January 2020 to include COVID-19. The conformity clause then operated to replace the reference to the Quarantine Act (and the Quarantine Proclamation 1998 made under that Act) with the Biosecurity Act (and the amended Biosecurity (Listed Human Diseases) Determination 2016 made under that Act).

26    According to the applicants “this construction should be preferred as the parties must be taken to have intended that the references to statute law contemplated by the Conformity Clause would include references to both the title of statutes contained in the Policy and also to any statutory terms or concepts used in the Policy”.

27    The applicants also submitted that the conformity clause operates retrospectively and prospectively. Nothing indicates any temporal limitation on its operation. Further, in Wonkana at [55]-[60] Meagher JA and Ball J rejected any inference that the parties knew at the inception of the policy in that case that the Quarantine Act had been repealed. The same approach should be applied in this case. On that basis, the putative common intention of the parties not to have an existing different statute apply to the statute nominated cannot exist. Further, if the respondent is right about the temporal limitation on the operation of the conformity clause and it is inferred the parties did know of the repeal of the Quarantine Act then they must also be taken to have intended that the exclusionary provision could never operate. This is implausible.

28    The respondent submitted, to the contrary, that:

(1)    the operative language in the exclusion in cl 7 is not a “reference to a statute law” within the meaning of the conformity clause;

(2)    the Biosecurity Act is not a “replacement” of the Quarantine Act within the meaning of the conformity clause, and the concept of listing human diseases is not a replacement for the concept of declaring quarantinable diseases because the replacement envisaged by the parties is one that is equivalent to the original statute law, not something fundamentally different; and

(3)    the conformity clause only applies to prospective replacements to statute laws, not replacements which had already occurred at the time of entry into the policy.

29    In support of its first proposition the respondent noted that the relevant sentence in the conformity clause refers to “a statute law”, not a “statute”. It is if a “statute law” is amended or replaced that the reference in the policy to a statute law is to include the amendment or replacement of that statute law. For example, p 4 of the policy says “[u]nder the Insurance Contracts Act 1984, You have a Duty of Disclosure”. The statute is the Insurance Contracts Act 1984 (Cth). The “statute law” is the duty of disclosure under that Act. The conformity clause operates so that an amendment or replacement of the duty of disclosure in the Insurance Contracts Act or by another Act is included within the reference to that duty on p 4 of the policy. The respondent referred also to the reference on p 67 to the insurers being able to “cancel this Policy for any of the reasons and within the timeframes allowed by the Insurance Contracts Act (1984) as amended”. The provisions in the Insurance Contracts Act specifying those reasons and timeframes are “statute laws”. If those provisions are amended or replaced, the reference on p 67 will include the amendments and replacements of those “statute laws”.

30    In the present case the respondent noted that the operative reference is “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908”. This is not a “statute law”. It is a thing (a list of diseases) which has a legal status or character derived from an executive act by a particular person (the Governor-General) authorised by a statute. Even if the reference to the Quarantine Act is taken to be a “statute law” and the Biosecurity Act is a replacement of that Act, the conformity clause would not operate to convert an executive act under that new Act (or its outcome) into the thing described by the exclusion clause, namely, the outcome of an executive act by a different person, pursuant to a different process, applying different standards, and creating a different legal character in a disease. The conformity clause, accordingly, does not do what the applicants ask of it. The conformity clause could have been drafted to deem references to subordinate legislation and executive acts under an amended or replacement statute to be executive acts under the referenced statute, but does not do so. It cannot be assumed that the parties together would intend a wider operation for this clause than its express terms require.

31    The respondent submitted that this does not lead to absurdity. There are infinite potential amendments to or replacements of statute law. It cannot be assumed or inferred that the parties to the policy intended that rights under the policy would be governed by executive acts by yet to be identified officials under wholly new legislative regimes which “replace” the Quarantine Act. The fact that an exclusion may have a narrower operation than the applicants wish does not involve absurdity: Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID‑19 insurance test cases) [2021] FCA 1206 at [179].

32    In support of its second proposition the respondent noted that the ordinary meaning of “replacement” includes not just a thing which has taken the place of, but also a substitute or equivalent for, something (Macquarie Dictionary online edition, “replacement”, “replaced”, “replacing” – “2. to provide a substitute or equivalent in the place of: to replace a broken vase”). According to the respondent it is this second meaning (a substitute or equivalent in the place of) which applies to the conformity clause. This conclusion, the respondent said, is supported by textual and contextual considerations. The contract is a policy of insurance. The parties require a high degree of certainty about its operation. If “replacement” does not mean “equivalents” but extends to include fundamentally different statute laws then there would be no such certainty. Further, the conformity clause is an introductory clause the primary object of which is to simplify drafting by omitting the need for tedious elaboration of possibilities in order to be comprehensive. The clause is not intended to alter materially the substantive operation of the contract of insurance itself, or to provide for that to occur.

33    The respondent referred to observations I made in Swiss Re at [169] that although the Biosecurity Act may be regarded as “successor legislation to the Quarantine Act dealing with some of the same subject-matter”, the differences are “extensive and fundamental” such that the Biosecurity Act is “not the Quarantine Act in a modern drafting style” but “conceptually and substantively different”. In Swiss Re at [168] I said that the process for determining that a disease is a listed human disease under the Biosecurity Act was “entirely new and different and represents a radical alteration to the process for declaring that a disease is a ‘quarantinable disease’ under the Quarantine Act”. I also noted the differences in the persons making the determination or declaration, the criteria to be used, the process required to be followed and the legislative consequences of being a listed human disease. To this the respondent added that under the Quarantine Act, diseases that could be declared to be quarantinable diseases were not just human diseases but any disease, whether human, animal or plant (see the definition of quarantinable disease in s 5 and s 13(1)(ca) of the Quarantine Act, and ss 21, 36 and 58 of the Quarantine Proclamation 1998).

34    The respondent submitted that the standard for deciding if the Biosecurity Act was a “re-enactment” of the Quarantine Act was low (a statute will be a re-enactment if it “‘deals substantially with the same subject matter to achieve the same or similar ends’, cannot be described as an ‘entirely new and different enactment’, does ‘not alter the essential nature’ of the previous enactment and is not ‘so radical an alteration’ to the previously existing legislation as to not fall within the meaning of the term ‘modification’ being ‘the action of making changes in an object without altering its essential nature’”: Swiss Re at [159]). The Biosecurity Act is a not a replacement of the Quarantine Act for the same reasons – its provisions are an entirely new and different enactment, its essential nature is different, and its provisions are radically altered when compared to the Quarantine Act.

35    In support of its third proposition the respondent submitted that references to statute laws in the policy would naturally be understood by a reasonable reader as referring to those statute laws as they stood at the time of the contract, including all amendments up to that date. The conformity clause is directed at post-contractual amendments. Giving the clause retrospective operation produces counter-intuitive results. It is one thing to agree to have statutes apply in their existing state (ie, to pick up past amendments). It is another to agree that a different existing statute will apply to govern the parties’ rights, where parties may not be aware of the existence of that statute, the provisions of which neither party may have considered, and which provisions may (on the applicants’ case) differ fundamentally from the statute named in the policy. As the Quarantine Act was repealed and the Biosecurity Act was enacted prior to entry into the policy, the conformity clause has no application.

Consideration

36    The applicable principles of construction were not in dispute. They have been summarised in LCA Marrickville Pty Limited v Swiss Re International SE [2022] FCAFC 17 at [2] and [56]-[103] (the appeal from Swiss Re), referring to Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2022] FCAFC 16 at [8]-[15]. The fundamental principle remains that the issue is “not what each of the parties meant to say, but rather what is the objective meaning to be attributed to the words they have used to express what they have agreed”: Star at [10].

37    It is necessary to recognise immediately that the issue of construction in this case was not considered in Wonkana, Swiss Re or LCA Marrickville. Each of these cases considered the relationship between the Quarantine Act and the Biosecurity Act in contexts different from the policy in the present case given the conformity clause. In Wonkana the principal issue was whether the Biosecurity Act was within the meaning of the phrase “and subsequent amendments” in the policy. In Swiss Re and LCA Marrickville the principal issue was whether the Biosecurity Act was a re-enactment of the Quarantine Act within the meaning of s 61A of the Property Law Act 1958 (Vic). In these decisions there are references to the Biosecurity Act having “replaced” the Quarantine Act (for example, Wonkana at [13], [42], [44], [106]; Swiss Re at [153]; LCA Marrickville at [219]). Those references do not answer the question whether the conformity clause, in saying that “[r]eferences to a statute law also includes all its amendments or replacements”, operates so that the words “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908” are to be construed as meaning “other listed human diseases under the Biosecurity Act 2015 (Cth)”.

38    To the extent there was debate about it, the conformity clause forms part of the policy. The fact that the conformity clause is on a page headed “Information” and the contents of the page might otherwise fairly be described as containing information rather than operative provisions of the policy is immaterial. On its own terms the conformity clause is an operative provision which dictates how aspects of the policy are to be construed.

39    A reasonable business person in the position of the parties would understand that the phrase “a statute law” is not a technical, legal term or a term of art. It is a descriptive term in which the subject-matter is “law” and the kind of law described is “statute law”. The words “a statute law” are apt to include a “law” which has as its source a statute. There is no commercial or logical reason to infer that in referring to “a statute law”, the parties commonly intended to mean anything more than a “law” the source of which is a statute, whether the statutory source be direct or indirect, immediate or ultimate. In particular, it cannot be assumed or inferred that by “a statute law” the parties had in mind any distinction between primary legislation (made by a Parliament), and subordinate legislation (made by a person or body authorised by primary legislation) or legislative and non-legislative instruments. These are technical legal concepts which have no relevance to the generality of the description used in the conformity clause (“a statute law”) or the evident purpose of that clause (to include amendments and replacements of “a statute law” in any reference to that law in the policy).

40    Rather, by “law”, the parties mean only some legally enforceable or recognised right, duty, status or relationship. By “statute law”, the parties mean only some legally enforceable or recognised right, duty, status or relationship the source of which, be it direct or indirect, immediate or ultimate, is a statute. In the conformity clause, “a statute law” is used to identify a class of law by reference to its opposite – that is, a “non-statute law”. A “non-statute law” is any legally enforceable or recognised right, duty, status or relationship the source of which is other than a statute.

41    The distinction which the respondent seeks to draw between a “statute” and a provision of a statute, in the context of the conformity clause, is unsound. A “statute law” may encompass a statute as a whole or a specific provision of a statute. The relevant issue is whether the “statute law” under consideration, be it a statute as a whole or a specific provision of a statute, has been amended or replaced.

42    The distinction which the respondent seeks to draw between primary, and subordinate legislation and legislative (or non-legislative) instruments, is also unsound in the context of the conformity clause. Even if the conformity clause had simply referred to a “statute” rather than “a statute law” I would not accept that the reference was intended to take the technical, legal meaning of an Act of Parliament in contrast to subordinate legislation or a subordinate instrument made under an Act or subordinate legislation. For the reasons given, I do not construe “a statute law” as involving any such distinctions. Provided there is a “law” (a legally enforceable or recognised right, duty, status or relationship) and the source of that law is a statute, then that law is “a statute law” within the meaning of the conformity clause.

43    The respondent’s submission that the parties could have referred in the conformity clause to subordinate legislation and executive acts under primary or subordinate legislation if they had been intended to be included within “a statute law” illegitimately pre-supposes that the parties had in mind the kind of technical, legal distinctions which exercise the minds of lawyers. That pre-supposition is illegitimate because it would not be supposed that reasonable commercial parties, dealing with an interpretative provision such as the relevant sentence in the conformity clause, would have in mind any technical, legal distinctions between different kinds of legislation. The commercial result which avoids commercial inconvenience is to recognise that “a statute law” is a general and broad phrase concerned with laws the source of which (be it direct or indirect, immediate or ultimate) is a statute.

44    I do not accept that the reference in the exclusion from cl 7 to “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908” is merely a thing (a list of diseases) which has a legal status or character derived from an executive act by a particular person (the Governor-General) authorised by a statute. Under s 13(1)(ca) of the Quarantine Act the Governor-General could declare a disease to be a quarantinable disease. By the making of such a proclamation the legal status of a disease as a quarantinable disease was established under the Quarantine Act. That status enabled other actions to be taken including, for example, the declaration of an epidemic caused by a quarantinable disease (s 2B(1)), the giving of such directions and taking of such actions as the Minister thinks necessary to control and eradicate the epidemic (s 2B(2)), and the making of an instrument in writing authorising certain persons to give such directions and take such action (s 3).

45    The Quarantine Proclamation, being the instrument containing the declaration, is a “law” because it confers a certain legal status on the diseases declared to be quarantinable disease. The Quarantine Proclamation is a “statute law” because its source is s 13(1)(ca) of the Quarantine Act. The fact that the Quarantine Proclamation is an instrument made by the Governor-General under the Quarantine Act does not mean that the Quarantine Proclamation is not “a statute law”. It is as much “a statute law” as the Quarantine Act itself.

46    The reference to the “statute law” in the exclusion to cl 7 of the policy needs to be understood in this way. That is, the phrase “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908” as a whole is a reference to a “statute law”. The reference is to diseases the legal status of which had been declared, with the effect of the declaration being to enable certain actions to be taken under the Quarantine Act. The reference to the “statute law” in the exclusion to cl 7, accordingly, is not simply “the Quarantine Act 1908”. While that Act is a statute law, the reference in cl 7 is not to that Act as a whole. The reference is to the declaration under s 13(1)(ca). As that declaration establishes the legal status of a thing (the diseases) it is a “law”, and as the source of that legal effect is a statute, the operative reference to “a statute law” for the purpose of the conformity clause is the whole of the phrase “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908”.

47    Accordingly, the question is whether that reference to “a statute law” in the exclusion to cl 7 (that is, “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908”), has been replaced by “other listed human diseases under the Biosecurity Act 2015 (Cth)”.

48    I accept that, depending on context, “replacement” has a range of ordinary meanings from the broad (“this for that”) to the more narrow (“like for like”). Contrary to the submissions for the respondent, I do not consider that the text, context, and objects or purposes of the conformity clause indicate that the parties did not intend the broad meaning to apply. The high degree of certainty which the parties to a policy of insurance may be taken to have desired is better served by the ordinary broad meaning of “replacement”. This means, as the conformity clause expressly states, “all” replacements of “a statute law” are included within the scope of the clause. Provided that the new statute law replaces (in the sense of applies instead of or in the place of) the old statute law, the conformity clause will operate. On the respondent’s approach, however, it must be assumed that the parties intended that the operation of the conformity clause would depend on a detailed statute by statute or statutory provision by statutory provision comparison of the extent and materiality of any differences between the old and the new. This seems commercially implausible.

49    Accordingly, the text and object of the conformity clause both support giving the word “replacement” its ordinary broad meaning of “this for that”. The text refers to “all” amendments and replacements. The reference to “all” and the use of the word “replacement” at large without any qualification indicate that the broad meaning of “replacement” was intended to have effect. The evident object or purpose of the clause is to ensure that references to statute laws in the policy remain current. There is no apparent justification for confining that object to amendments or replacements having the same or a substantially similar effect as the old statute law.

50    The concern which the respondent raised, that it would not be inferred that the parties intended a materially different (and unknown to the parties at the inception of the policy) statutory regime to have effect, is readily answered. In providing for “all replacements” of “a statute law to be within the scope of the conformity clause, the parties did not commit themselves to an arbitrary or capricious future. The context is references to a statute law in the policy. The parties may be taken to have known at least three matters. First, there is a limited number of references to a statute law in the policy (the Insurance Contracts Act 1984 (Cth) on pp 4 and 67, the Privacy Act 1988 (Cth) on p 8 and the Quarantine Act on p 33). Second, statute laws apply generally. Third, statute laws are laws made by Parliament or under Acts of Parliament.

51    Accordingly, while it may be accepted that the references to statute laws in the policy deal with important issues (such as the rights of cancellation of the policy under the Insurance Contracts Act on p 67), the parties can be taken to have known that any amendment to or replacement of a referenced statute law would be a result of an exercise of public power by persons exercising public responsibilities in the knowledge that the amendment or replacement would apply generally. That context works against any concern about arbitrary or capricious unknowns. It works in favour of ensuring that all references to a statute law are updated as required throughout the life of the policy to ensure the policy accords with current statutory regimes.

52    The conclusion in Swiss Re (affirmed in LCA Marrickville) that the Biosecurity Act and its provisions relating to the listing of human diseases (s 42 in particular) are not a re-enactment of the Quarantine Act and its provisions relating to the declaration of quarantinable diseases (s 13(1)(ca) in particular) turned on the technical, legal meaning of “re-enactment” in s 61A of the Property Law Act 1958 (Vic). The word “replacement” in the conformity clause does not take the same meaning as “re-enactment”. Had the parties intended that technical, legal meaning to apply they would have used the word “re-enactment”. “Replacement” requires only that the new statute law operates instead of the old statute law. This inquiry focuses on three facts: (a) has the old statute law ceased to operate (if not, the issue may be one of amendment rather than replacement), (b) has the new statute law commenced operation, and (c) can it be said that the new statute law is operating instead of or in the place of the old statute law. The question in (c) calls up for consideration the subject-matter of the old statute law and the new statute law. If the subject-matter of the laws is the same or sufficiently similar in substance then it can be said that the new statute law is operating instead of or in the place of the old statute law. This will be so whether or not the new statute law deals with that subject-matter in a new and radically different manner from the old statute law.

53    I accept that even on the construction which I prefer the application of the concepts of “replacement” (and “amendment”) in the conformity clause may be contestable depending on the old and new statute laws under consideration. The scope for contest and uncertainty, however, is considerably less on my preferred construction than would result from the respondent’s preferred construction, which would call for the kind of detailed analysis of the substance of the laws involved in the concept of “re-enactment”.

54    In the present case the reference to the statute law, as noted, is “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908”. That is the old statute law which has ceased to operate as per question (a) above. The asserted new statute law is “other listed human diseases under the Biosecurity Act 2015 (Cth)”. That new statute law has commenced operation as per question (b) above. Question (c) is whether it can be said that the new statute law operates instead of or in the place of the old statute law – that is, is the subject-matter of the laws the same or sufficiently similar in substance that it can be said the new statute law is operating instead of or in the place of the old statute law?

55    This question should be answered “yes” because the old and new statute laws are dealing with substantially the same subject-matter. The subject-matter is the identification of human diseases so as to enable the taking of steps by public officials to control and eradicate the identified disease. The fact that the old and new statutes deal with this subject-matter in fundamentally different ways does not change the fact that the new statute law is operating instead of or in the place of the old statute law in respect of identifying diseases to enable the taking of steps by public officials to control and eradicate the identified diseases.

56    It is immaterial that the power under s 13(1)(ca) of the Quarantine Act extended to pests whereas s 42 of the Biosecurity Act is confined to diseases. There may be another new statute law which is a replacement of s 13(1)(ca) in respect of pests, but that is irrelevant. The relevant issue in this case is confined to quarantinable diseases and the list under s 42 of the Biosecurity Act is the replacement for the declaration under s 13(1)(ca) of the Quarantine Act in respect of diseases.

57    It is also immaterial that: (a) the person empowered to make the declaration under s 13(1)(ca) of the Quarantine Act and the determination under s 42 of the Biosecurity Act are different, (b) there are criteria for the making of the determination in s 42 of the Biosecurity Act which did not appear in the Quarantine Act, and (c) the consequences of the making of a declaration and determination are different. The subject-matter remains substantially the same – the identification of human diseases so as to enable the taking of steps by public officials to control and eradicate the identified disease.

58    I do not accept that the reasonable reader of the conformity clause would understand the reference to a statute law to be a reference to a statute law as in force at the time of inception of the policy. Rather, they would understand the reference to be to any statute law mentioned in the policy whether or not it remained in force or in the form identified in the policy. This is because the focus of the relevant sentence in the conformity clause is not the statute law itself, but the reference to the statute law in the policy. It is also because the very purpose of the relevant sentence in the conformity clause is to ensure such references remain current from time to time. There is no justification for reading the conformity clause as restricted to amendments or replacements which come into effect after the inception of the policy. It would not be assumed or inferred that the parties to the policy were scrutinising all amendments and replacements to statute law mentioned in the policy to ensure that all such references were up to date as at inception of the policy. One purpose of the relevant sentence in the conformity clause is to ensure the parties did not have to do so. Another purpose is to ensure the references remain current throughout the life of the policy.

59    For these reasons the relevant sentence in the conformity clause is to be construed as the applicant proposes. The reference in the exclusion to cl 7 to “other diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908” is a reference to a statute law. The relevant sentence in the conformity clause operates so that reference includes the statute law which replaces that statute law, being “other listed human diseases under the Biosecurity Act 2015 (Cth)”. It follows that I will make the declaration sought by the applicant.

Associate:

Dated:    10 March 2022