Federal Court of Australia

Kikuyu v Hazzard (No 2) [2022] FCA 812

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s claim be dismissed.

2.    By 4pm on 15 July 2022, the parties file competing minutes of order as to costs and any supporting submissions, limited to two pages.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The final hearing of this case was observed by interested spectators filling three courtrooms and by over 4,000 viewers via the use of remote technology. The case was the subject of extensive commentary on social media including Telegram and Twitter.

2    Given the publicity this case has generated, apparently at the instigation of the solicitor for the applicant, it is worth dispelling some misconceptions and commencing this judgment by stating what this proceeding, and others like it, are not about: see, for example, Knowles v Commonwealth of Australia [2022] FCA 741; Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664.

3    This case is not about the wisdom or otherwise of the response of State governments or the Commonwealth to the public health challenges caused by the spread of COVID-19. It is not about any right to individual liberty or autonomy nor the appropriateness or otherwise of vaccine mandates. It is not about holding public officials to account for political or public health actions some consider to be wrongheaded or controversial.

4    It is about something quite different.

5    The applicant seeks declarations that certain public health orders made by the first respondent (Minister), and a determination made by the second respondent (Secretary), are invalid. The sole ground advanced is that the State provisions authorising those instruments are inconsistent with Part 2 of Chapter 8 of the Biosecurity Act 2015 (Cth) and are, therefore, invalid to the extent of the inconsistency between the State and Commonwealth Acts pursuant to s 109 of the Commonwealth Constitution.

6    Whatever else this argument lacked, it did not lack ambition.

7    The logical consequence of the applicant’s contention is that between 18 March 2020 and 17 April 2022, every measure taken under all State and Territory laws to prevent and control the spread of COVID-19 was invalid and inoperative.

8    For reasons explained below, the applicant’s argument is legally misconceived and must be rejected.

B    THE RELEVANT FACTS

9    The parties filed a joint Statement of Agreed Facts, which became Exhibit A. A copy recording my relevant findings comprises Annexure A to this judgment. For present purposes, it is sufficient to record the following:

(1)    the Commonwealth Director of Human Biosecurity’s determination on 21 January 2020 that “human coronavirus with pandemic potential” was a “listed human disease” under s 42(1) of the Biosecurity Act;

(2)    the Governor-General’s declaration on 18 March 2020 of a “human biosecurity emergency” in relation to COVID-19 under Pt 2 of Ch 8 of the Biosecurity Act, which declaration was varied to remain in force until 17 April 2022 (Declaration);

(3)    the Minister’s making of the orders under s 7 of the Public Health Act 2010 (NSW) (PHA) commencing 26 August 2021 (Orders);

(4)    the Secretary’s making of the impugned determination no. 33 of 2021 under s 116A(1) of the Health Services Act 1997 (NSW) (HSA) on 12 November 2021 (Determination); and

(5)    the applicant was employed as a registered nurse by South Eastern Sydney Local Health District until her employment was terminated by reason of the fact that she had not met COVID-19 vaccination requirements.

C    THE APPLICANT’S CLAIM

10    This proceeding has a chequered procedural history. It is a “declassed” class action. The applicant’s case, as now formulated, bears little resemblance to the representative claim first filed. The original statement of claim contained no mention of s 109 of the Constitution. Last May, the Court made orders for the filing of a further amended originating application and second further amended statement of claim, directing the applicant to remove all reference to previous versions of the pleading and plead, with specificity, the applicant’s argument as to inconsistency.

11    The applicant’s inconsistency argument, at least in writing, alleged both “indirect” and “direct” inconsistency.

12    As to indirect inconsistency, it was asserted that for the duration of the period in which the Declaration remained in force, the Commonwealth Parliament had evinced an intention for Pt 2 of Ch 8 of the Biosecurity Act (comprising ss 473–479) to be the exclusive law regarding the subject matter of the prevention and control of the emergence, establishment or spread of COVID-19 in Australian territory or a part of Australian territory. Accordingly, on the applicant’s case, the provisions authorising the Orders and Determination – and, by extension, the Orders and Determination themselves – are invalid to the extent they encroach upon that subject matter.

13    As to direct inconsistency, the applicant’s submissions were, ultimately, brief and restricted to written submissions. In the end, it was unclear if and how they materially differed from the applicant’s case for indirect inconsistency.

14    Before considering the substance of the applicant’s arguments, it is worth initially detailing the legal principles concerning inconsistency which are well-settled and, no doubt as a consequence, were not in dispute.

D    APPLICABLE PRINCIPLES

15    Where a law of a State or Territory is inconsistent with a law of the Commonwealth, s 109 of the Constitution provides that the Commonwealth law shall prevail and the State or Territory law will be invalid and inoperative to the extent of the inconsistency: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 (at 446 [30] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

16    Two aspects of inconsistency are conventionally referred to: “direct inconsistency” and “indirect inconsistency”: Victoria v The Commonwealth (1937) 58 CLR 618 (at 630 per Dixon J); Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 (at 76–77 [28] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). Ultimately, however, both are directed towards the same question: whether there is a “real conflict” between a Commonwealth law and State or Territory law: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508 (at 525 [42] per French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ). It is not enough for a State or Territory law to be capable of applying to the same factual circumstances to which the Commonwealth law applies: Ex Parte McLean (1930) 43 CLR 472 (at 485 per Dixon J); McWaters v Day (1989) 168 CLR 289 (at 296 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). A “real conflict” requires something more.

17    Where a court is concerned with direct inconsistency, the question to be answered is whether the State or Territory law would “alter, impair or detract from” the legal or practical operation of the Commonwealth law: Outback Ballooning (at 447 [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; 456 [65], 458–459 [70] per Gageler J); Jemena Asset Management (at 524–525 [39]–[41] per French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ). Put another way, a State or Territory law is inconsistent with a Commonwealth law if its operation and effect would undermine that of the Commonwealth law: Outback Ballooning (at 447 [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); Jemena Asset Management (at 525 [41] per French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ).

18    Indirect inconsistency, by contrast, involves determining whether a law of the Commonwealth, on its proper construction, expresses an intention to state “completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed”: Ex Parte McLean (at 483 per Dixon J). A Commonwealth law of this kind is said to “cover the field” of the issue in respect of which it deals, leaving no room for the operation of a State or Territory law: Outback Ballooning (at 447 [33] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

19    In every case, the Court must begin by construing the Commonwealth law in question: Bell Group NV (in liq) v Western Australia [2016] HCA 21; (2016) 260 CLR 500 (at 521–522 [52] per French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ). Where the focus is direct inconsistency, it will be necessary to have regard to both laws and their operation; where an indirect inconsistency is alleged, the primary focus is on the Commonwealth law and the “field” it is intended to occupy: Outback Ballooning (at 447 [34] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); The Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 (at 466–467 [54] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). That intention is ascertained through the express terms of the law, any necessary implications and inferences drawn from the structure, subject matter and purpose of the law: Outback Ballooning (at 461–462 [78] per Gageler J). The Court is tasked with determining whether the Commonwealth law “necessarily contain[s] the implicit negative proposition” of exclusivity: Commonwealth v ACT (at 468 [59] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

20    Where the Commonwealth law does reveal an intention to govern completely or exhaustively a particular subject matter, the Court must then determine whether the State or Territory law also purports to govern that same subject matter: Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (at 116 [261] per Gummow J). If it does, it is invalid and inoperative to the extent and for the duration of the inconsistency; if it does not, the two laws may operate concurrently.

E    INDIRECT INCONSISTENCY

21    There is no indirect inconsistency between the Biosecurity Act and s 7 of the PHA or s 116A of the HSA. The Biosecurity Act does not evince an intention to state completely or exhaustively the law on emergency requirements (s 477) and ministerial directions (s 478) in a human biosecurity emergency period. This is a complete answer with respect to both s 7 of the PHA and s 116A of the HSA. Further, s 116A of the HSA, under which the Determination was made, concerns an entirely different subject matter to the relevant provisions of the Biosecurity Act.

22     I refer here only to the provisions of the impugned State laws, and not to the Orders and the Determination, because s 109 applies as between a State or Territory law and a Commonwealth law. Section 109 relates to the Orders and Determination insofar as they were made under the impugned State laws.

E.1    Commonwealth law not a complete or exhaustive statement

23    As noted above, the Court is to look initially at the Biosecurity Act, the relevant provisions of which are s 8 and Pt 2 of Ch 8 (comprising ss 473–479). Section 8 provides:

8    Concurrent operation of State and Territory laws

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

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

(a)     section 172 (prohibited goods);

(b)    section 265 (ballast water);

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

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

(a)    the law makes an act or omission:

(i)     an offence; or

(ii)      subject to a civil penalty; and

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

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

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

(4)    Subsection (3) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:

(a)    provides for a penalty that differs from the penalty provided for in this Act;

(b)    provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act;

(c)    provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act.

24    The applicant’s reading of s 8 is creative. It is contended that s 8 contains both statements of non-exclusivity (s 8(1)) and exclusivity (s 8(2)), with the effect that the references to specific provisions in s 8(2) exclude the whole Parts or Chapters within which those provisions reside.

25    This contention finds no support in s 8 itself. Subsection (1) expressly contemplates the concurrent operation of State and Territory laws and the Biosecurity Act. Provisions of this kind are commonplace and effective to avoid indirect inconsistency by making clear that the law is not intended to be exhaustive or exclusive of State or Territory laws: Outback Ballooning (at 451 [48] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). This is so notwithstanding s 8(2), which relevantly provides that s 8(1) is “subject to” ss 477(5) and 478(4). “Subject to” does not mean negatived by: it simply means that s 8(1) must be read harmoniously with the provisions set out in s 8(2). A closer look at ss 477 and 478 demonstrates that the provisions, read in the light of s 8, plainly do not evince an intention to “cover the field”.

26    Sections 477 and 478 mirror one another, such that my analysis of one develops my analysis of the other. Section 477 is in the following terms:

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

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

(a)    to prevent or control:

(i)    the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or

(ii)    the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or

…

(2)    A determination made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

…

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

27    Pursuant to s 477(5), if the Minister is satisfied that a prevention or control requirement is necessary, the Minister may make a determination which, by operation of s 8(2)(c), applies even if it excludes or limits the operation of a law of a State or Territory that is capable of operating concurrently with the Biosecurity Act: s 8(1). Crucially, it is not the power in s 477(1) that is an exception in s 8(2); it is the determination that applies despite any provision of any other Australian law: s 477(5). This is a far cry from providing that the section supersedes any provision of any other Australian law at all times and for all purposes, as the applicant contends.

28    To this end, even if the Biosecurity Act “covered the field”, no inconsistency would arise unless and until the federal Health Minister exercised power under ss 477 or 478. The applicant’s case does not rely on any such exercise of power. Rather, the contention is that, by reason of the Governor-General’s declaration of a “human biosecurity emergency”, and the mere existence of the powers in ss 477 and 478, there is an automatic and exhaustive inconsistency. In effect, this submission forces the federal Health Minister to enter the field in a human biosecurity emergency (irrespective of how geographically confined that emergency may be within the Commonwealth).

29    The same conclusion obtains with respect to s 478, which relevantly provides:

478    Health Minister may give directions during human biosecurity emergency period

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

(a)    to prevent or control:

(i)    the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or

(ii)    the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or

…

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

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

…

30    Again, it is a direction validly made under s 478(1) which is unaffected by any provision of any other Australian law, not the power in s 478(1) itself: s 478(4).

31    The wider statutory context confirms that the power in s 478(1) is to operate concurrently with State and Territory laws, not exclusively. Section 478(5) provides that a “direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body”. That provision reflects a recognition that the States and Territories have their own emergency response imperatives that must be accounted for and are not to be obstructed by the Commonwealth regime.

32    As such, the applicant’s contention that “the Commonwealth power was so wide and so comprehensive at all relevant times that the State simply should have bowed out” cannot be sustained on a plain reading of the Biosecurity Act. Nothing in the balance of the Biosecurity Act displaces the effect of s 8 and no “implicit negative proposition” of exclusivity is discernible: Commonwealth v ACT (at 468 [59] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

33    This result is unsurprising. Beyond the terms of the Biosecurity Act, it would be inimical to the purposes and functions of the cooperative federalist system for State and Territory authorities to be prevented from implementing emergency responses by the exclusive operation of Commonwealth law. There can be no scope for significant coordination and collaboration where the States and Territories are unable to develop and enforce their own emergency measures. The state of the emergency may be very different as between the various States and Territories at any one time. That is central to the High Court’s decision in Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229. The applicant’s interpretation of the Biosecurity Act is not only wrong, but would be striking, as it would destroy the ability of the States and Territories to formulate tailored measures for their respective jurisdictions.

E.2    Different subject matters

34    Even if Pt 2 of Ch 8 of the Biosecurity Act is intended to be the complete or exhaustive statement of the law on its particular subject matter, this does not establish the applicant’s case for indirect inconsistency. It is necessary for the applicant to satisfy the further step of showing that the impugned State laws operate on the same subject matter.

35    In her written submissions, the applicant identified the “subject matter” covered by the relevant provisions of the Biosecurity Act as “the prevention or control of (inter alia) the ‘emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory’”. This is unduly broad. Part 2 of Ch 8 is concerned with “human biosecurity emergencies” “on a nationally significant scale”: ss 475(1) and 475(1)(a). To construe Pt 2 of Ch 8 as relating to all issues which in some way relate to the prevention and control of listed human diseases is absurd.

36    Even if one were to accept the broad statement of subject matter of the Commonwealth law advanced by the applicant, on no view do s 116A of the HSA and the Determination effected under it impinge upon this subject matter.

37    The Determination cannot be characterised as a measure for the prevention or control of the emergence, establishment or spread of COVID-19 within New South Wales. Section 116A(1) of the HSA is contained in Pt 1 of Ch 9 of the HSA, entitled “Employment of staff in the NSW Health Service”. It enables the Health Secretary to “fix the salary, wages and conditions of employment of staff employed under this Part”. The Determination placed conditions on employment in the NSW Health Service, mandating that an individual must have the prescribed COVID-19 vaccination dosage, subject to exceptions (none of which apply to the applicant, as confirmed by the Statement of Agreed Facts).

38    Accordingly, the subject matter of s 116A, and the Determination made under it, is the fixing of conditions of employment for staff in the NSW Health Service. However the subject matter of the relevant Commonwealth provisions is characterised, it differs fundamentally from the subject matter of s 116A of the HSA: Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 (at 250 per Stephen J).

F    DIRECT INCONSISTENCY

39    Finally, by way of completeness, it is worth noting why the applicant’s undeveloped contention as to direct inconsistency is unsustainable.

40    “Direct inconsistency” describes a situation where a State or Territory law and a Commonwealth law conflict so that simultaneous obedience to the relevant provisions is impossible, or one law takes away or interferes with a right or privilege conferred by the other law: Ex Parte McLean (at 483 per Dixon J); Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466. No such argument was advanced orally and no such argument is available for the simple reason that s 109 does not deal with inconsistency “between powers”: R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 (at 216 per Gibbs CJ). Rather, it deals with inconsistency between operative laws. Until such time as there is an inconsistency arising from the federal Health Minister exercising one or more of the powers in ss 477(1) and 478(1), the operation of s 109 (and indeed s 8 of the Biosecurity Act) is not enlivened.

G    CONCLUSION AND ORDERS

41    For the above reasons, the applicant’s claim should be dismissed. The respondents foreshadowed seeking a special costs order. No doubt the applicant will contend to the contrary. By this Friday, the parties are to file competing minutes of order as to costs and any submissions (limited to two pages) supporting their proposed order.

Associate:

Dated:    13 July 2022

Annexure A

AGREED FACTS

Listed human disease determination

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

The human biosecurity declaration

2.    On 18 March 2020, the Governor-General of the Commonwealth of Australia declared a “human biosecurity emergency” in relation to COVID-19 under Pt 2 of Ch 8 of the Biosecurity Act (Declaration).

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

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

The Orders

5.    The first respondent is the NSW Minister for Health. He made the following orders purportedly under s 7 of the Public Health Act 2010 (NSW) (together, the Orders):

The Determination

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

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

State of emergency

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

The applicant

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

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

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

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

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

12.    On 8 December 2021, the applicant's employment with SES LHD was terminated.

13.    The applicant has standing to seek the relief claimed.

Date: 30 May 2022