FEDERAL COURT OF AUSTRALIA

Wilson v State of Victoria [2023] FCA 111

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the Respondents.

2.    Any costs to be awarded in the proceeding are to be fixed by way of a lump sum.

3.    On or before 4.00 pm on 6 March 2023, the parties:

(a)    file proposed agreed orders on any orders for lump sum costs in the proceeding (including reserved costs); alternatively

(b)    in the absence of agreement, file written submissions, limited to three (3) pages on the appropriate lump sum costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and a proposed form of order.

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

REASONS FOR JUDGMENT

HESPE J:

INTRODUCTION

1    This is an interlocutory application by the Respondents seeking the following alternative orders:

(1)    an order under r 13.01 of the Federal Court Rules 2011 (Cth) that the Applicants’ amended originating application be set aside for want of jurisdiction;

(2)    an order for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Rules; and

(3)    an order that the Applicants’ amended statement of claim be struck out under r 16.21 of the Rules.

2    The Respondents also sought costs.

DECLARATIONS SOUGHT BY THE APPLICANTS

3    By their amended originating application dated 21 January 2022, the Applicants seek relief in relation to measures taken in Victoria in response to the COVID-19 pandemic, being measures that related to the rollout of vaccines and restrictions imposed on the activities of individuals who were not vaccinated against the virus that causes COVID-19.

4    By their amended originating application, the Applicants seek 19 declarations (set out in Annexure A). The declarations fall into the following categories:

(a)    Declarations that certain acts or activities of the State of Victoria and/or Commonwealth of Australia relating to the COVID-19 vaccine rollout, and Victorian Government measures restricting the activities of unvaccinated people in Victoria, were beyond power because they were contrary to s 51(xxiiiA) of the Constitution (Declarations 2, 3, 4, 5, 6 and 13).

(b)    A declaration that Sch 1 of the National Health Amendment (COVID-19) Act 2021 (Cth) was beyond power as it was contrary to s 51(xxiiiA) of the Constitution (Declaration 7).

(c)    Declarations that certain announcements by the Premier of the State of Victoria and measures introduced by the Victorian Government (by way of directions made by the Chief Health Officer of Victoria or orders made by the Minister) breached the Magna Carta 1297 (Imp) 25 Edw I c. XXIX, as enacted by Pt II Div 3 of the Imperial Acts Application Act 1980 (Vic) (Declarations 1, 8 and 16).

(d)    A declaration that the State of Victoria and the Commonwealth breached the Monopolies Act 1623–4 (Imp) 21 or 21 and 22 Jac I c. III ss 1 and 6, as enacted by Pt II Div 4 of the Imperial Acts Application Act, by “compounding laws to lock out the Second Applicant from the Vaccinated Economy in favour of vaccinated people” (Declaration 9).

(e)    A declaration that announcements made by the Premier and directions made by the Chief Health Officer were not made according to the Occupational Health and Safety Act 2004 (Vic) (Declarations 10 and 11).

(f)    A declaration that announcements made by the Premier and subsequently implemented were “unlawfully incompatible” with the Charter of Human Rights and Responsibilities Act 2008 (Vic) (Declaration 12).

(g)    A declaration that advice in National Cabinet statements was incorrect (Declaration 14).

(h)    A declaration that advice provided by the Fair Work Ombudsman was “incompetent” (Declaration 15).

(i)    A declaration that the State of Victoria breached the Confirmation of Liberties Act 1405–6 (Imp) 7 Henry IV c. I, as enacted by Pt II Div 3 of the Imperial Acts Application Act, by restricting entry to the workplace (Declaration 17).

(j)    Public health orders restricting the activities of unvaccinated individuals were invalid as they were contrary to the separation of powers under Ch III of the Constitution (Declarations 18 and 19).

(k)    Public health orders restricting the activities of unvaccinated individuals were invalid as they were contrary to the Charter (Declarations 18 and 19).

5    Although it is difficult to discern a connection to any of the declarations sought, the Applicants also by their pleadings allege that certain Victorian ministerial orders are invalid by reason of:

(a)    s 109 of the Constitution, because they rely for their operation on the Australian Immunisation Register Act 2015 (Cth);

(b)    an implied constitutional right of privacy; or

(c)    sections 51(xxxvii) or 51(xxxviii) of the Constitution.

IMPUGNED MEASURES

6    Section 198(1) of the Public Health and Wellbeing Act 2008 (Vic) provides:

The Minister may, on the advice of the Chief Health Officer and after consultation with the Minister and the Emergency Management Commissioner under the Emergency Management Act 2013, declare a state of emergency arising out of any circumstances causing a serious risk to public health.

7    A state of emergency was first declared in Victoria in relation to the COVID-19 pandemic on 16 March 2020 and remained in force until 15 December 2021. A series of directions were made by the Chief Health Officer (or the Acting Chief Health Officer) which had the effect of severely restricting the liberties of individuals in Victoria. In colloquial terms, Victoria was “locked down”.

8    During a press conference held on 5 September 2021, the Premier said:

So we’re going to move from a situation where, to protect the health system, we’ve got everybody locked down. We’re going to move to a situation where to protect the health system, we’re going to lock out people who are not vaccinated and can be.

9    During a press conference held on 1 October 2021, the Premier announced that, by Friday, 15 October 2021:

authorised workers, that is people who are going to work now and are not having to work by law from home, will need to have their first dose. They will need to have their second dose and be fully vaccinated by 26 November … It’ll be by law, they will need to be vaccinated with at least one dose. Now, other groups, that have been specifically mandated, like teachers or healthcare workers or construction workers or aged care workers, they’re not affected by this. They have their own timelines …

The Premier’s statements made at the press conferences of 5 September 2021 and 1 October 2021 are referred to in these reasons as the Announcements.

10    On 7 October 2021, the Acting Chief Health Officer for the State of Victoria made the first COVID-19 Mandatory Vaccination (Workers) Directions pursuant to s 200(1) of the Public Health and Wellbeing Act. That provision relevantly provides:

200    Emergency powers

(1)    The emergency powers are—

…

(b)    restrict the movement of any person or group of persons within the emergency area;

…

(d)    give any other direction that the authorised officer considers is reasonably necessary to protect public health.

11    Further directions (numbered 2, 3, 4 and 5) were made on 14, 15, 19 and 21 October 2021, respectively (the Pandemic Directions).

12    The COVID-19 Mandatory Vaccination (Workers) Directions (No 5) were revoked on 29 October 2021 by the COVID-19 Mandatory Vaccination (Workers) Directions (No 6). Between 29 October and 15 December 2021, the Chief Health Officer made three COVID-19 Mandatory Vaccination (Workers) Directions (numbered 6 to 8) and three COVID-19 Mandatory Vaccination (General Workers) Directions (numbered 1 to 3). The Applicants, by their amended originating motion and pleadings, have not expressly challenged the directions made after the COVID-19 Mandatory Vaccination (Workers) Directions (No 5).

13    The Pandemic Directions imposed obligations on employers in relation to workers. Their explicit purpose, as stated in cl 1(1) of each direction, was “to impose obligations upon employers in relation to the vaccination of workers, in order to limit the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) within the population of those workers”. The broad effect of the Pandemic Directions was that employers could not permit a worker to work outside the worker’s ordinary place of residence unless the worker was fully vaccinated (cl 5(1)) or met the definition of an “excepted person” (cl 8(4)), as defined in cl 8(5). The Pandemic Directions also required employers to collect, record and hold “vaccination information” about workers who may be scheduled to work outside of the worker’s ordinary place of residence (cl 4(1)).

14    The Public Health and Wellbeing Act was amended from 8 December 2021 by the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic). Section 12 of the amending Act inserted a new Pt 8A (comprising ss 165A to 165CX) entitled “Protection of life and public health during pandemics”. New s 165AB(1) provided:

(1)    The Premier may make a declaration under this subsection (a pandemic declaration) if the Premier is satisfied on reasonable grounds that there is a serious risk to public health arising from—

(a)    a pandemic disease; or

(b)    a disease of pandemic potential.

(2)    The Premier must consult with, and consider the advice of, the Minister and the Chief Health Officer before making a pandemic declaration.

15    New s 165AI(1) provided:

(1)    The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health.

16    A pandemic declaration was made by Premier pursuant to the new Pt 8A, taking effect from 15 December 2021: Victoria, Victoria Government Gazette (Special), No S 705, 10 December 2021.

17    On 15 December 2021, the Minister for Health for the State of Victoria made the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) and the Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2021 (No. 1) pursuant to s 165AI of the Public Health and Wellbeing Act (the Pandemic Orders). The preamble to each of the orders provided that they were made “in the belief that this Order is reasonably necessary to protect public health throughout Victoria from the serious risk arising from the coronavirus (COVID-19) pandemic disease”. The objective of each of the Pandemic Orders was “to impose obligations on employers in relation to the vaccination of … workers, in order to limit the spread of COVID-19 within the population of those workers”: cl 1(1). The Pandemic Orders expired on 12 January 2022: cl 4(1).

18    Further Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Orders (numbered 2 to 6) and Pandemic COVID-19 Mandatory Vaccination (General Workers) Orders (numbered 2 to 4) were made between 12 January 2022 and 12 April 2022.

19    The last of these was revoked on 22 April 2022 by the Pandemic (Workplace) Order 2022 (No. 8).

20    The Applicants, by their originating motion and pleadings, have not expressly challenged the orders made after the first Pandemic COVID-19 Mandatory Vaccination (General Workers) Directions and the first Pandemic COVID-19 Mandatory Vaccination (Special Workers) Directions.

21    The general effect of the Pandemic Orders was the same as the general effect and scope of the Pandemic Directions, precluding employers from permitting a worker to work outside the worker’s ordinary place of residence unless the worker was fully vaccinated or otherwise exempted.

22    As unvaccinated workers, the Applicants were not permitted to work outside their ordinary place of residence whilst the Pandemic Directions of the Chief Health Officer and Pandemic Orders were in effect.

23    By their amended statement of claim, the Applicants allege that the Announcements made by the Premier, the Pandemic Directions of the Chief Health Officer (including the Acting Chief Health Officer) and the Pandemic Orders were unlawful or invalid because:

(a)    Joint scheme in contravention of s 51(xxiiiA): the Pandemic Directions and the provision of support from the Commonwealth for Victoria’s COVID-19 vaccine roll‑out involved an impermissible joint scheme in contravention of the prohibition on civil conscription in s 51(xxiiiA) of the Constitution (Applicants’ Amended Statement of Claim (ASOC) at [53]–[56]);

(b)    Interference with privacy: the Pandemic Directions and the Pandemic Orders were invalid by reason of inconsistency with ss 51(xxxvii) or 51(xxxviii) of the Constitution and an implied “right to privacy” under the Constitution (ASOC at [57], [57C]);

(c)    Section 109 inconsistency: the Pandemic Orders, insofar as they provide that a current COVID-19 digital certificate issued by Services Australia is acceptable evidence of a person’s status as an “excepted person”, were inconsistent with s 11 of the Australian Immunisation Register Act (ASOC at [57B]);

(d)    Breach of the separation of powers: the Pandemic Orders were invalid as offending the separation of powers under Ch III of the Constitution, in that the powers under which the Pandemic Orders were made are so indeterminate as to require the Court to assume a legislative function in being called upon to interpret those powers (ASOC at [57D]);

(e)    Incompatibility with Charter: the Announcements and the Pandemic Orders were unlawful as they are incompatible with the Charter (ASOC at [60B], [61]);

(f)    Contravention of Imperial Acts: the Announcements and the Pandemic Directions were unlawful because they contravened certain Imperial Acts given force in Victoria by the Imperial Acts Application Act including the Magna Carta, the Confirmation of Liberties Act and the Monopolies Act (ASOC at [60], [63], [66], [68], [72]);

(g)    Absence of authorisation under the Occupational Health and Safety Act 2004 (Vic): the Announcements and the Pandemic Directions were not made in accordance with the Occupational Health and Safety Act 2004 (Vic) due to insufficient safety data (ASOC at [30], [47], [67]). Given that the Pandemic Directions and orders were made pursuant to the Public Health and Wellbeing Act and not the Occupational Health and Safety Act 2004 (Vic), this contention is misconceived and need not be considered further.

24    On 13 September 2021, the National Health Amendment Act was passed, inserting Pt VIIIB into the National Health Act 1953 (Cth), in the following terms:

132G    Provision of COVID-19 vaccines and treatments

(1)    The Minister may provide or arrange for the provision of:

(a)    COVID-19 vaccines (including boosters); and

(b)    treatments for COVID-19; and

(c)    consumables related to the use of such vaccines and treatments.

(2)    To avoid doubt:

(a)    subsection (1) covers payments for vaccines, treatments or consumables even if arrangements to purchase those vaccines, treatments or consumables were made before this Part commenced; and

(b)    this Part does not limit the provision of vaccines, treatments or consumables for COVID-19 or any other disease or ailment under another provision of this Act or any other law.

(3)    This Part has no effect after 30 June 2022.

25    The Applicants seek to challenge the validity of that amendment on the basis that it is “beyond power” of s 51(xxiiiA) of the Constitution.

26    By their submissions, the Applicants further contended that:

(1)    by using the army to assist in and facilitate the vaccine rollout, the Commonwealth breached the Imperial Acts;

(2)    the vaccine rollout involved an impermissible “mixing” of State and Federal laws; and

(3)    the declarations sought would be of utility because they would assist in an act of grace or other compensation application.

JURISDICTION AND JUDICIAL POWER

27    The original jurisdiction of this Court is limited to that vested in it by laws made by the Federal Parliament: Federal Court Act s 19.

28    In this case, any jurisdiction of this Court is sourced in s 39B of the Judiciary Act 1903 (Cth), which relevantly provides:

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

29    A matter does not arise under the Constitution or under a law made by the federal Parliament merely because someone asserts that it does: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 (Toohey J), cited with approval by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 198 ALR 250 at 253 [14].

30    Although the Federal Court has power to grant declaratory relief in respect of any subject matter within its jurisdiction, its power to do so is confined by the considerations which mark out the limits of judicial power: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581–2 (Mason CJ, Dawson, Toohey and Gaudron JJ), 596–7 (Brennan J). The first limit is that declaratory relief must be directed to the determination of legal controversies and not hypothetical questions: Unions NSW v New South Wales [2023] HCA 4 at [14] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ); [89] (Steward J). For a matter to arise, there must be an immediate right, duty or liability to be established by the determination of the Court: Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); Unions NSW at [15] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). The second limit is that the person seeking relief must have a real interest in the outcome: Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 437–8 (Gibbs J). See also Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at 359 [103] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 96 ALJR 234 at 246 [32] (Kiefel CJ, Keane and Gordon JJ). Standing in that way is “subsumed in the constitutional requirement of a ‘matter’”: Unions NSW at [15] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ) (citing Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 at 68 [152]), [45] (Edelman J).

Commonwealth

31    In so far as the Commonwealth is concerned, the acts which the Applicants seek to impugn related to the enactment of amendments made to the National Health Act and executive acts of the Commonwealth in supporting the COVID-19 vaccine rollout. Those are matters within the jurisdiction of this Court.

32    Schedule 1 to the National Health Amendment Act inserted Pt VIIIB into the National Health Act. That part ceased to have effect after 30 June 2022: National Health Act s 132G(3). The question is whether the Court has power to issue declaratory relief in those circumstances.

33    In so far as declaratory relief is sought in relation to the National Health Act, it may be accepted for present purposes that a declaration of invalidity for a lapsed legislative instrument may be of utility where the declaration might provide the basis for or relate to a subsequent cause of action: see, eg, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at 65–6 [23] (French CJ, Kiefel and Nettle JJ), 90 [112] (Gageler J), 123 [235] (Keane J), 152 [350] (Gordon J); Unions NSW at [21] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). The Applicants have not identified any cause of action which would give utility to a declaration in relation to that amendment.

34    As the High Court most recently said in Unions NSW at [22] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ) (citations omitted), in these circumstances:

The plaintiff must show that “success in the action would confer on [them] … a benefit or advantage greater than [that] conferred upon the ordinary member of the community; or … relieve [them] of a detriment or disadvantage to which [they] would otherwise have been subject … to an extent greater than the ordinary member of the community”. They must have more than a mere intellectual or emotional concern, and more than a belief, however strongly held, that the law or the Constitution should be upheld. As Croome demonstrates, a plaintiff may have a sufficient interest where their freedom of action is particularly affected by the impugned law. Other cases, such as Onus v Alcoa of Australia Ltd, demonstrate that the breadth of the categories of interest include economic, cultural and environmental interests.

35    Here, the Applicants are not the subject of enforcement action and cannot assert that any of their rights, duties or legal interests have been infringed because the Federal Health Minister could arrange for the provision of COVID-19 vaccines. As the High Court most recently said in Unions NSW at [26] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ) (citations omitted):

The only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong. The plaintiffs cannot point to any other foreseeable consequences from the grant of a declaration. There is not a justiciable controversy and not a matter.

See also Edelman J at [51]–[53].

36    It may be accepted that a declaration of invalidity relating to a lapsed instrument may be of utility where a delegated instrument made before might be remade in the future. For example in Wragg v New South Wales (1953) 88 CLR 353 where Taylor J said at 392 (Dixon CJ, McTiernan, Williams, Fullagar and Kitto JJ agreeing at 385, 389 and 391):

At the time of the commencement of the suit potatoes were declared goods for the purposes of the [Prices Regulation Act 1948–9 (NSW)], and Prices Regulation Order No. 322, which was promulgated on 6th March, 1953, and which related to the maximum prices which might be charged upon sales of potatoes, was in force. But when this appeal came on to be heard the order was no longer in force and potatoes were no longer declared goods. This circumstance, however, does not disentitle the plaintiffs to have considered the questions which have been stated in the case.

37    However, here, in so far as the Commonwealth is concerned, the challenge is not to delegated legislation that might be remade. The legislation sought to be challenged is simply no longer in force. The terms on which Parliament might seek to enact future legislation is entirely at large. As the High Court said in Unions NSW at [27] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ):

Plainly, the Court cannot be asked to rule on the past invalidity of [legislation] in anticipation that the Parliament may re-enact the provision, or to rule on the validity of possible future legislation that might be “materially similar”…

See also Edelman J at [60].

38    In these circumstances, any declaration relating to the amendments no longer in force would be of no practical consequence. The Applicants’ complaints in relation to those amendments do not found a justiciable controversy invoking the powers of this Court.

39    The Commonwealth submitted that there remained a matter in so far as the Applicants sought to challenge actions of the Commonwealth executive because there was no material before the Court to suggest that at least some of these executive actions — referred to as a “National Plan” (ASOC at [23]) or “intergovernmental agreement” (ASOC at [10]) — did not remain on foot. There remained, to use the words of Counsel for the Commonwealth, “that rump of the case”, although it was difficult to identify how those executive actions had any bearing at all on the Applicants’ individual rights and interests.

40    In so far as the Applicants contend that there was some Commonwealth executive action relating to a joint scheme for the vaccine rollout, the Applicants do not articulate how any Commonwealth involvement in the supply or distribution of vaccines had any impact on their rights, duties or liabilities, or point to a loss arising to them by reason of the use of Commonwealth government resources to secure and distribute vaccines. Accordingly, the Applicants cannot explain how a declaration related to the vaccine rollout might produce a foreseeable consequence for them. This issue goes directly to the power of the Court to grant declaratory relief. As the High Court said in Truth about Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at 613 [52] (Gaudron J) (citations omitted):

[A] declaration cannot be made if it “will produce no foreseeable consequences for the parties”. That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

41    For these reasons, the Court is not satisfied that the declarations sought, in so far as they relate to the Commonwealth, are premised on the existence of a justiciable controversy in respect of which the Court may exercise judicial power.

Victoria

42    The gravamen of the Applicants’ complaints are acts and decisions of the State of Victoria rather than acts and activities of the Commonwealth.

43    In so far as the Applicants seek declarations relating to actions of the State of Victoria and which do not arise under or involve the interpretation of the Constitution, the Court’s jurisdiction in relation to those claims is dependent upon those claims forming part of the same justiciable controversy as the remainder of the Applicants’ claims. The jurisdiction of the Court is not invoked where the federal claim is “colourable”. A federal claim will be colourable where it is raised for an improper purpose of “fabricating jurisdiction”: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 (Bowen CJ, Morling and Beaumont JJ); Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148 at 169 [88] (Perry J). In Cook v Pasminco Limited [2000] FCA 677; (2000) 99 FCR 548, Lindgren J said at 550 [14]:

Are the federal claims here “genuine” and “non-colourable” or are they fabricated in order to bring the common law claims within the Court’s jurisdiction? I would conclude that they are not genuine and are colourable and fabricated if they are obviously doomed to fail, at least unless there was evidence to the contrary. There is no evidence to the contrary here.

44    I do not accept the Respondents’ submissions that the Court lacks jurisdiction because the constitutional claims are untenable. The fact that claims are untenable may give rise to an inference that the claims were made for an improper purpose and are therefore colourable. On the facts of this case, I do not draw such an inference. Although their constitutional claims may be misguided, particularly given the Applicants in this case are self-represented, I am not prepared to conclude that those claims were made for an improper purpose of “fabricating jurisdiction” and I accept that the Applicants pursue their claims bona fide.

45    In so far as the Applicants seek declarations relating to actions of the State of Victoria, the vaccine mandates which seem to be the cornerstone of the Applicants’ complaints ceased to have effect from 12 January 2022. Although the Applicants did not explicitly challenge the successor orders up to the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 6) and the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 4), those orders had ceased to have effect from 22 April 2022. The Applicants’ contention that the declarations sought would be of utility because they would assist in an act of grace application to the Commonwealth is unfounded speculation. The power of the Finance Minister to make an act of grace payment is a power granted under s 65 of the Public Governance, Performance and Accountability Act 2013 (Cth) to make payments on behalf of the Commonwealth. As stated above, the Applicants can point to no loss arising to them by reason of the use of Commonwealth government resources to secure and distribute vaccines. The Applicants’ complaints arise from consequences of executive orders of the Victorian Government. How executive acts of a state government might be expected to found a basis for a payment from the Commonwealth Government was not explained.

46    The Applicants have not articulated any basis on which they might have a claim for compensation from the State of Victoria based on the Pandemic Orders or Pandemic Directions, or how any declaration might assist in supporting such a claim. The Applicants made reference to s 204 of the Public Health and Wellbeing Act. That section is relevantly in the following terms:

(1)    A person who suffers loss as a result of a decision by the Chief Health Officer to give an authorisation to an authorised officer under this Division may apply to the Secretary for compensation if the person considers that there were insufficient grounds for the giving of that authorisation.

(2)    If the Secretary decides that there were insufficient grounds for the giving of an authorisation to an authorised officer under this Division, the Secretary is to pay just and reasonable compensation to the applicant.

47    Section 204 does not apply to the decisions and acts sought to be impugned by the Applicants in this case. Section 204 does not apply to the making of the ministerial orders or the Pandemic Directions. There is no discernible basis on which the declarations sought by the Applicants might have utility in supporting a claim for compensation based on s 204 of the Public Health and Wellbeing Act.

48    The challenge to the Victorian executive directives (whether in the form of Pandemic Directions or Pandemic Orders) have utility on the basis that the legislative basis for the exercise of those powers remains in force. In so far as the State of Victoria is concerned, there is a sufficient basis to found a justiciable controversy. On this basis, I am satisfied that the Court has power to grant declaratory relief in relation to the constitutional validity of the Victorian health directives and ministerial orders.

49    In case I am wrong on the question of jurisdiction in relation to the Commonwealth actions, I have considered the Applicants’ claims for relief in respect of both the Commonwealth and the State of Victoria further, below.

SUMMARY JUDGMENT

50    This Court may give judgment for a party defending a proceeding if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding: Federal Court Act s 31A, Rules r 26.01. This test does not require a Court to definitively determine that a proceeding is necessarily bound to fail: Federal Court Act s 31A(3); Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at 140 [56] (Hayne, Crennan, Kiefel and Bell JJ); Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8(1)] (Steward J). The applicable principles under s 31A(2) or rule 26.01(a), (b), (c) and/or (d) have been summarised recently by Mortimer J in Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [46]–‍[48], DBE17 v Commonwealth of Australia [2020] FCA 958 at [50] and Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 at [16]– ‍[20].

51    The essential question is whether the Applicants have a reasonable prospect of prosecuting all or part of the proceeding. In addressing this question, I note the following caution expressed by Mortimer J most recently in Knowles v Commonwealth of Australia [2022] FCA 741 at [28]–[30]:

[28]    It can be accepted that reasonable judicial minds may differ over whether allegations in a proceeding have no reasonable prospects of success. The contentions made on behalf of the applicants in this proceeding not unsurprisingly urged considerable caution in forming such a view, especially where the allegations have a novelty to them, as some of the allegations in this proceeding do. I accept the cautionary note sounded by the High Court in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 to this effect, and the need to ensure that summary dismissal processes are not used to stultify the development of the law: see Spencer at [25]. I have borne that factor in mind.

[29]    However, it is also the case that the resources of the Court, and the respondents as government parties, are public resources, and should be directed towards the resolution of controversies in a manner which is proportionate to the nature of a proceeding, to the issues it raises, but also proportionate to its prospects of success. Where a summary dismissal application is brought, the greater the size and complexity of a proceeding, the more persuaded a Court may need to be about its prospects before forcing respondents to defend a proceeding to trial, and before allocating to such a trial the finite public resources of the Court. Some of the pleadings in this case (such as the allegations about a joint scheme or agreements between the Commonwealth and other government parties, and indeed the negligence case as pleaded) suggest this proceeding will be resource intensive, and drawn out, with significant processes of discovery. The very nature and range of the responding government parties is indicative of the significant amount of human resources, and public funds, which would be expended on this matter proceeding to a contested trial. The applicants have shown some consciousness of the need to comply with their obligations under ss 37M and 37N of the [Federal Court] Act, but nevertheless, their submissions make it clear they wish to advance wide ranging factual and legal arguments, and to invite the Court to closely scrutinise arrangements by and between the government parties concerning, in particular, the requirements for, and implementation of, a scheme of vaccination for COVID-19, and restrictions relating to COVID-19, across many parts of Australia. A trial will be a considerable undertaking for all concerned.

[30]    On the other hand, the allegations made on behalf of the applicants concern one of the largest domestic and international health crises in the lifetimes of most members of the Australian community. Lives and livelihoods have been profoundly affected. The various government responses to the crisis are a matter of substantial public interest … [T]he subject matter of this proceeding means, in my opinion, the Court should be firmly persuaded that the allegations do not justify a trial. I have taken what I consider to be an appropriately cautious approach to whether the various claims have reasonable prospects of success, and I have borne the High Court’s obiter comments in Spencer steadily in mind in my assessment.

52    Although the Applicants’ challenge in the present case relates to restrictions imposed only in the State of Victoria, the arguments they wish to advance in their wide-ranging factual and legal arguments invite the Court to closely scrutinise intergovernmental arrangements concerning the scheme of vaccination for COVID-19. The time required to be allocated to a trial would be significant.

53    The legal and factual bases of the Applicants’ pleaded claims are considered below.

Claims based on Section 51(xxiiiA) of the Constitution

Claims against the Commonwealth

54    In so far as the Applicants’ claims relating to the Commonwealth are concerned, the first category of the Applicants’ claims appear to be that actions taken by the Commonwealth in relation to the funding and supply of COVID-19 vaccines, including the indemnification of health professionals, and vaccine mandates imposed in Victoria restricting the activities unvaccinated individuals might engage in, were contrary to s 51(xxiiiA) of the Constitution because they were part of a joint action by the State of Victoria and the Commonwealth which amounted to “civil conscription”. The Applicants submitted that s 51(xxiiiA) prohibits the Commonwealth (acting alone or jointly with the State of Victoria) from either coercing the Applicants into receiving medical services or benefits, or requiring the Applicants to attend a medical service where that requirement amounts to “civil conscription”.

55    The Applicants point to various aspects of the COVID-19 vaccine rollout which they say contravened s 51(xxiiiA), including:

(a)    the provision by the Commonwealth of medical services, pharmaceutical benefits, and sickness and hospital benefits;

(b)    the use of the Australian Immunisation Register for recording vaccination status;

(c)    the provision by the Commonwealth of COVID-19 vaccines to Victorians; and

(d)    the involvement of Federal entities, including the Australian Defence Force, the Commonwealth Department of Health, and the Fair Work Ombudsman.

56    The Applicants also challenge the constitutional validity of Sch 1 to the National Health Amendment Act, passed by the Commonwealth Parliament, on the basis that it authorised various activities — including the procurement and distribution of COVID-19 vaccines, the use of the Register, and the indemnities provided to health practitioners — which breached the Applicants’ “entitlements” under s 51(xxiiiA).

Claims against the State of Victoria

57    In so far as the claims relating to the State of Victoria are concerned, the Applicants allege that the Pandemic Directions and the Pandemic Orders infringed s 51(xxiiiA) of the Constitution.

Consideration of Claims based on s 51(xxiiiA)

58    Section 51(xxiiiA) is a grant of legislative power to the Commonwealth to make laws with respect to

the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.

It is not a freestanding constitutional guarantee but is a limit on the legislative power of the Commonwealth to make laws. Section 51(xxiiiA) contains no limitation on the powers of the State of Victoria.

59    The scope of the power in s 51(xxiiiA) was explained by the High Court in Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573. The majority of the Court (French CJ and Gummow J at 593 [60] together with Hayne, Crennan and Kiefel JJ at 633 [209], 639 [226]) held that “civil conscription” involves a compulsion or coercion to carry out work or to provide a service. Section 51(xxiiiA) does not empower the Commonwealth to make laws which compel (in a legal or practical sense) a medical or dental practitioner to provide services.

60    The COVID-19 vaccine rollout and the vaccine mandates imposed by the State of Victoria involved no exercise of legislative power of the Commonwealth. Furthermore, nothing in the terms of the National Health Amendment Act, the vaccine rollout or the Pandemic Orders or Pandemic Directions involved compelling any provider (whether it be a medical provider or pharmaceutical provider) to administer the vaccine. The Applicants’ claims concerning the National Health Amendment Act, vaccine mandates or vaccine rollout do not raise claims that amount to civil conscription within the meaning of s 51(xxiiiA): see also Knowles at [114] (Mortimer J). These claims (reflected in Applicants’ proposed declarations 2 to 6 and 13) are bound to fail.

61    The same conclusion was expressed by the New South Wales Court of Appeal in Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 in relation to similar arguments based on s 51(xxiiiA), where Bell P said at 531–2 [38] (Meagher and Leeming JJA agreeing at 550 [138] and 550 [139], respectively):

I agree with the primary judge’s assessment that the argument based upon s 51(xxiiiA) of the Constitution was completely untenable. As his Honour noted at PJ [267], that placitum “only qualifies a (Commonwealth) law for the ‘provision’ of ‘medical or dental services’”. Moreover, as his Honour outlined at PJ [268], “civil conscription is directed to compulsive service in the provision of medical services”, not their receipt. As the primary judge observed at PJ [272], “[n]othing in any part of Order (No 2) or the [Public Health Act] involves any element of coercion on a doctor or other medical provider to vaccinate anyone.”

62    Although it is far from clear, the Applicants also appear to allege that the Commonwealth exceeded its powers by entering into an intergovernmental agreement with the State of Victoria which had the effect of imposing civil conscription contrary to s 51(xxiiiA). As explained above, nothing in the rollout or the mandates involved civil conscription within the meaning of that term as it is used in s 51(xxiiiA) because nothing in the rollout or the mandates compelled any provider (whether it be a medical provider or pharmaceutical provider) to administer the vaccine. A similar contention was rejected by the New South Wales Supreme Court in Kassam v Hazzard [2021] NSWSC 1320 at [284] (per Beech-Jones J). As Mortimer J said in Knowles at [114]:

The applicants’ construction of s 51(xxiiiA) derives no support even from obiter statements in any present authority. Section 51(xxiiiA) contains no “guarantee” relevant to the vaccination of individual patients. The applicants’ construction derives no support from the text of the provision, nor plausibly arises on a proper construction of it. It involves an unwarranted approach to a limit on federal legislative power which properly construed is unconnected with the impugned Measures.

63    As was the case in Knowles, there is no factual basis in the material facts as pleaded for concluding that there was an agreement between the State of Victoria and the Commonwealth which required the State of Victoria to compel medical practitioners to vaccinate individuals. Nor is there anything in any of the directives that compelled medical practitioners or pharmacists to administer vaccines.

64    The Applicants contend that their argument is different from that rejected in the earlier cases. They seek to rely upon the fact that, unlike in the Kassam proceedings, they do not seek to contend there was an acquisition of property otherwise than on just terms. Given that the New South Wales Supreme Court and Court of Appeal both considered the terms of s 51(xxiiiA) as a distinct matter, the fact that Applicants here do not rely upon other arguments which were also dismissed in the Kassam proceedings is irrelevant. The Applicants rely in particular upon the words “not so as to authorise any form of civil conscription” in s 51(xxiiiA). However, the Applicants’ reliance upon the phrase is misplaced. The phrase does not extend the meaning of “civil conscription”, as explained by High Court in Wong (set out at 59 above). Nor does the phrase extend the operation of s 51 of the Constitution to any power or law of the State of Victoria.

65    The Applicants’ claims based on s 51(xxiiiA) of the Constitution do not enjoy any reasonable prospects of success.

Claims based on an implied constitutional right of privacy

66    The Applicants appear to rely upon an implied constitutional right of privacy to impugn actions of the Commonwealth and the State of Victoria relating to the vaccine mandate and vaccine rollout, including National Cabinet Statements and certain advice published by the Fair Work Ombudsman.

67    In support of the existence of an implied right to privacy in the Constitution, the Applicants rely upon the joint judgment of Kiefel CJ, Bell and Keane JJ in Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 198–9 [60]). That case was concerned with the implied freedom of political communication which has been recognised as necessary to the functioning of the constitutionally prescribed system of representative and responsible government. It does not stand as support for an implied right of privacy.

68    The claim of an implied right of privacy is not supported by authority and is untenable. The High Court in Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412 at 422 [14] said: “[i]t is now well settled that what the Constitution implies depends on ‘what … the terms and structure of the Constitution prohibit, authorise or require’”, citing Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 566–7. See also McGinty v Western Australia (1996) 186 CLR 140 at 168 (Brennan CJ). Nothing in the text or structure of the Constitution supports the implication of a right to privacy. The Applicants’ claims based on an implied constitutional right of privacy do not enjoy any reasonable prospects of success.

Claims based on s 109 of the Constitution

69    The Court also considers the claim based on s 109 of the Constitution to be untenable. Although both the Pandemic Orders and the Pandemic Directions required employers to collect, record and hold vaccination information of their workers, the Applicants only sought to impugn the validity of the Pandemic Orders pursuant to s 109 of the Constitution.

(a)    The Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) (cl 7) provided:

Vaccination information

If a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence after the commencement of this Order, the employer of the worker must collect, record and hold vaccination information about the worker.

(b)    The Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2021 (No. 1) (cl 7) provided:

Limits on work outside ordinary place of residence

(1)    If:

(a)    a person is a general worker; and

(b)    it is reasonably practicable for the person to work at the person’s ordinary place of residence,

an employer of the person must not permit the person to work for that employer outside the person’s ordinary place of residence, unless:

(c)    the employer collects, records and holds vaccination information about the person; and

(d)    the person is:

(i)    fully vaccinated; or

(ii)    an excepted person.

Note: this obligation does not apply in relation to a person who is a general worker, if it is not reasonably practicable for the person to work at the person’s ordinary place of residence.

(2)    For the purposes of complying with this clause, an employer is authorised to use any information about a worker that it holds under subclause (1)(c).

70    The vaccination information can include information derived from a record of information made under, or in accordance with, the Australian Immunisation Register Act: Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) Sch 2 Div 1 cl 2; Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2021 (No. 1) Sch 1 cl 2. Section 11(2) of the Australian Immunisation Register Act provides that a person may request that personal information relating to that individual not be disclosed from the Register. Section 22(2)(d) of the Australian Immunisation Register Act provides:

(2)    A person may make a record of, disclose or otherwise use protected information if:

…

(d)    the person is required or authorised to do so by or under a law of the Commonwealth or of a State or Territory;

71    A request made under s 11(2) does not apply to s 22(2)(d).

72    To the extent that the Pandemic Orders authorised an employer to obtain information from the Register, that authorisation would enable the information to be recorded or disclosed consistently with the Australian Immunisation Register Act. There is no inconsistency between the Australian Immunisation Register Act and the Pandemic Orders.

Claims based on Separation of Powers

73    The Applicants contend that, by reason of the separation of powers established by Ch III of the Constitution between legislatures and the Court, the Pandemic Orders made under s 165AI of the Public Health and Wellbeing Act and Pt 8A of that Act (in which s 165AI appears) were and are invalid. The Applicants contended that “the Minister’s purported power to legislate has an indefinite case-by-case human rights ambit, requiring the Court to impermissibly legislate the Minister’s power in lieu of the Victorian Parliament, conflicting with Chapter III of the Constitution”.

74    The contentions that Pt 8A of the Public Health and Wellbeing Act and the Pandemic Orders made under it are constitutionally invalid by reason of Ch III of the Constitution are untenable. Part 8A of the Public Health and Wellbeing Act does not confer legislative power on the Courts. Section 165A(2) of that Act provides:

(2)    The Parliament—

(a)    recognises the importance of protecting human rights in managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential; and

(b)    intends that nothing in this Part displaces the operation of the Charter of Human Rights and Responsibilities; and

(c)    intends that the Charter of Human Rights and Responsibilities therefore applies to the following—

(i)    the interpretation of this Part and subordinate instruments made under this Part;

(ii)    acts done, and decisions made, under this Part by public authorities.

75    Thus, the task of the Court is to interpret Pt 8A and subordinate instruments made under that Part in a manner consistent with the provisions of the Charter. Ministerial orders made under the Public Health and Wellbeing Act are an exercise of power by the executive, not the Courts. In so far as s 165A(2)(c)(ii) is concerned, that section applies to acts and decisions by the executive made under Pt 8A.

76    The delineation with which the doctrine of the separation of powers is concerned is the separation of judicial from executive and legislative power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 26 (Brennan, Deane and Dawson JJ). Chapter III of the Constitution does not limit the powers which a State Legislature is able to confer upon a State Executive: Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at 89–90 [124]–[125] (Hayne, Crennan, Kiefel and Bell JJ); Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [69] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

77    The contention that Pt 8A gives the Minister an “unconstitutionally indeterminate” legislative power is untenable. Neither the fact that the Premier’s powers to make pandemic declarations and Minister’s power to make pandemic orders are discretionary nor the fact that the discretion may be exercised based on the belief of the repository of the discretion renders the power conferred indeterminate in the sense of being either unfettered or unreviewable: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 651 [130] (Gummow J); Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148 [28], 152–4 [43]–[44] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

78    As the Commonwealth submitted, as a matter of ordinary statutory construction, the impugned provisions of the Public Health and Wellbeing Act are subject to limits, including:

(1)    standards of “reasonableness”, rendering the exercise of those powers reviewable: see, eg, s 165AI(1), (3);

(2)    a precondition to the making of a pandemic order under Div 3 of Pt 8A is that the Premier has made a pandemic declaration in accordance with all of the requirements of Div 2 of Pt 8A: s 165AI(1); and

(3)    a precondition to the making of a pandemic order under Div 3 of Pt 8A is that the Minister must request and have regard to the advice of the Chief Health Officer: s 165AL(1), (2).

Claims based on Imperial Acts

79    The Applicants allege that, by coercing vaccination, the Pandemic Orders and Pandemic Directions, in connection with the COVID-19 vaccine rollout, contravened various Imperial statues given force by the Imperial Acts Application Act, namely:

(a)    the Magna Carta (as defined in para 4(c));

(b)    the Confirmation of Liberties Act (as defined in para 4(i)); and

(c)    the Monopolies Act (as defined in para 4(d)),

(together, the Imperial Acts).

80    Section 3 of the Imperial Acts Application Act relevantly provides:

The enactments mentioned in the Schedule to the extent set out in Part II shall continue to have in Victoria whether separately or in combination with any unrepealed enactment or statutory provision such force and effect, if any, as they had at the commencement of this Act.

81    Part II Div 3 of the Imperial Acts Application Act, relevantly provides:

[1297] 25 Edward I (Magna Carta) c. XXIX

No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties or free customs, or be outlawed or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

82    Part II Division 3 of the Imperial Acts Application Act, relevantly provides:

[1405-6] 7 Henry IV c. I

… And that the peace within the realm be holden and kept, so that all the King’s liege people and subjects may from henceforth safely and peaceably go, come, and abide, according to the laws and usages of the same realm; And that good justice and equal right be done to every person; saving to the same our Lord the King his regalty and prerogative.

83    Part II Div 4 of the Imperial Acts Application Act, relevantly provides:

[1623-4] 21 or 21 and 22 James I c. III ss 1, 6

An Act concerning monopolies and dispensations with penal laws and the forfeiture thereof.

1. (1)    Forasmuch as your most excellent Majesty, in your royal judgment, and of your blessed disposition to the weal and quiet of your subjects, did in the year of our Lord God one thousand six hundred and ten, publish in print to the whole realm, and to all posterity, That all grants and monopolies, and of the benefit of any penal laws or of power to dispense with the law, or to compound for the forfeiture, are contrary to your Majesty’s laws, which your Majesty’s declaration is truly consonant and agreeable to the ancient and fundamental laws of this your realm.

(2)    And whereas your Majesty was further graciously pleased, expressly to command, that no suitor should presume to move your Majesty for matters of that nature.

(3)    Yet nevertheless upon misinformations, and untrue pretences of public good, many such grants have been unduly obtained, and unlawfully put in execution, to the great grievance and inconvenience of your Majesty’s subjects, contrary to the laws of this your realm, and contrary to your Majesty’s most royal and blessed intention to published as aforesaid.

(4)    For avoiding whereof, and preventing of the like in time to come, may it please your excellent Majesty, at the humble suit of the lords spiritual and temporal, and the commons, in this present parliament assembled, That it may be declared and enacted.

(5)    And be it declared and enacted by authority of the present parliament, That all monopolies, and all commissions, grants, licences, charters and letters patents heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politick or corporate whatsoever, of or for the sole buying, selling, making, working or using of any thing within this realm, or the dominion of Wales.

(6)    Or of any other monopolies, or of power, liberty to faculty, to dispense with any others, or to give licence or toleration to do, use or exercise any thing against the tenor or purport of any law or statute.

(7)    Or to give or make any warrant for any such dispensation, licence or toleration to be had or made; or to agree or compound with any others for any penalty or foreitures limited by any statute; or of any grant or promise of the benefit, profit or commodity of any forfeiture, penalty or sum of money, that is or shall be due by any statute, before judgement thereupon had.

(8)    And all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things whatsoever, any way tending to the instituting, erecting, strengthening, furthering or countenancing of the same or any of them.

(9)    Are altogether contrary to the laws of this realm, and so are and shall be utterly void and of none effect, and in no wise to be put in use or execution.

6.     Provided also, and be it declared and enacted, That any declaration before mentioned shall not extend to any letters patents and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient: The said fourteen years to be accounted from the date of the first letters patents, or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be, if this act had never been made, and of none other.

84    The Applicants submitted that the Pandemic Orders and Pandemic Directions could not be “according to the laws and usages of the same realm”, because they were a “novel experiment”. It was also submitted that the Pandemic Directions coerced vaccinations “beyond their expiry date” and that “a delegation of legislative power, or a grant of administrative power, not in terms expressly authorising the overriding of fundamental rights, cannot be used to that effect”.

85    The Applicants’ reliance upon the Imperial Acts to challenge the Pandemic Orders and Pandemic Directions is misplaced. Those Imperial Acts provide for limitations on executive power which is not otherwise authorised by the “law of the land” or “according to the laws and usages of the same realm” or is “against the tenor or purport of any law or statute”. The Imperial Acts are not limits on the plenary power of the Parliament of Victoria. Contrary to the Applicants’ submissions, the exercises of power sought be impugned here (in the form of the Pandemic Directions made by the Chief Health Officer (or the Acting Chief Health Officer) and the Pandemic Orders made by the Minister for Health were all authorised by a statute of the Parliament of Victoria, namely the Public Health and Wellbeing Act. The Pandemic Directions and Pandemic Orders are not exercises of executive power not authorised by a statute passed by the Parliament of Victoria.

86    The Imperial Acts referred to do not support the Applicants’ claims as against the State of Victoria.

87    The Applicants allege that the Commonwealth contravened the Monopolies Act “by providing medical services, pharmaceutical benefits, [and] sickness and hospital benefits”. This allegation is unintelligible as raising any different point from those considered above. The Imperial Acts Application Act, being a Victorian statute, does not limit the exercise of powers of the Commonwealth. The Applicants contend that the reference in the preamble to the Constitution to the agreement of the people to “unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland” acknowledges the “legal relation between the Queen and subjects of the Queen, as continuing, and distinct from the written Constitution”. As subjects of the Queen, it was submitted, the Applicants enjoy “rights, privileges and immunities secured to them by Imperial law, which they may assert and enjoy without hindrance in any part of the Queen’s dominions”.

88    In relation to this contention three observations are made.

(1)    First, just how the exercise by the Commonwealth of powers to procure vaccines and distribute those vaccines impinged any rights of the Applicants was not explained other than in the context of the allegation that it formed part of some impermissible joint action with the State of Victoria. As explained at 63 above, there is no factual basis in the material facts as pleaded for concluding that there was an agreement between the State of Victoria and the Commonwealth which required the State of Victoria to compel the vaccination of individuals. Neither the fact that Pandemic Orders and Pandemic Directions related to vaccines procured by the Commonwealth nor the fact that the Pandemic Orders and Pandemic Directions made reference to the Register amounts to such an agreement between the Commonwealth and the State of Victoria.

(2)    Second, each of the Imperial Acts, as explained at 85 above, is subject to the laws validly passed by the Commonwealth or Victorian Parliament.

(3)    Third, by s 2(2) of the Statute of Westminster Adoption Act 1942 (Cth), no law passed by the Federal Parliament could be rendered void or inoperative by reason that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act.

89    For the reasons set out above, the Applicants’ Imperial Acts claims against the Commonwealth do not enjoy any reasonable prospect of success.

Challenges to Pandemic Orders based on the Charter

90    The Applicants’ contentions that the Pandemic Orders were unlawful as being incompatible with the Charter are equally untenable. The contention is based on the following propositions:

(1)    Part 8A of the Public Health and Wellbeing Act is to be interpreted in conformity with the Charter by reason of s 165A(2)(c)(i) of the Public Health and Wellbeing Act.

(2)    The Pandemic Orders were not made within the power granted to the Minister (implicitly because those powers were limited by the Charter). Section 165A(2)(c)(i) of the Public Health and Wellbeing Act “applies the Charter to the interpretation of all Part 8A”; that is, not just s 32 of the Charter, but the whole Charter.

91    The terms of s 165A(2) of the Public Health and Wellbeing Act are set out at 74 above.

92    Section 165AI of the Public Health and Wellbeing Act provides:

(1)    The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health.

(2)    Without limiting subsection (1), a pandemic order may include, but is not limited to, an order—

(a)    that requires persons to be detained in a pandemic management area for the period specified in the order—

(i)    if the conditions specified in the order are satisfied; or

(ii)    in the circumstances specified in the order; or

(b)    that requires that the detention of persons in a pandemic management area be extended for the period specified in the order—

(c)    that restricts movement in a pandemic management area; or

(d)    that requires movement in, into or from a pandemic management area; or

(e)    that prevents or limits entry to a pandemic management area; or

(f)    that prohibits or regulates gatherings whether public or private in a pandemic management area; or

(g)    that requires the use of personal protective equipment in a pandemic management area; or

(h)    that prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area; or

(i)    that requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records; or

(j)    that requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area; or

(j)[sic]    that requires the quarantining, destruction or other management of disease vectors in a pandemic management area.

93    Section 165AP of the Public Health and Wellbeing Act is entitled “Publication of a pandemic order and associated documents”. Subsection (2) requires that the Minister publish various documents within seven days after a pandemic order or a variation, extension or revocation of a pandemic order comes into force. That subsection relevantly provides:

(2)    … [T]he Minister must ensure that within 7 days after a pandemic order or a variation, extension or revocation of a pandemic order comes into force, the following documents are published on an Internet site maintained by the Department—

…

(c)    in the case of the making, variation, or extension of the order, a statement as to whether, in the opinion of the Minister, the order does or does not limit any human right set out in the Charter of Human Rights and Responsibilities; and

(d)    if, in the opinion of the Minister, the order as made, varied or extended does limit a human right set out in the Charter of Human Rights and Responsibilities, an explanation of—

(i)    the nature of the human right limited; and

(ii)    the importance of the purpose of the limitation; and

(iii)    the nature and extent of the limitation; and

(iv)    the relationship between the limitation and its purpose; and

(v)    any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

94    Section 1 of the Charter relevantly provides:

(2)    The main purpose of this Charter is to protect and promote human rights by—

(a)    setting out the human rights that Parliament specifically seeks to protect and promote; and

(b)    ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and

(c)    imposing an obligation on all public authorities to act in a way that is compatible with human rights; and

(d)    requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and

(e)    conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

(3)    In addition, this Charter—

(a)    enables Parliament, in exceptional circumstances, to override the application of the Charter to a statutory provision…

95    Section 3 of the Charter defines “statutory provision” as including a subordinate instrument.

96    Section 4 of the Charter defines a “public authority” relevantly in the following terms:

(1)    For the purposes of this Charter a public authority is—

(a)    a public official within the meaning of the Public Administration Act 2004…

Note

A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.

97    Section 7 of the Charter provides:

(1)    This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2)    A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a)    the nature of the right; and

(b)    the importance of the purpose of the limitation; and

(c)    the nature and extent of the limitation; and

(d)    the relationship between the limitation and its purpose; and

(e)    any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3)    Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

98    Part 3 of the Charter is entitled “Application of human rights in Victoria” and comprises four divisions. Division 1 requires a statement of compatibility to be prepared in respect of Bills introduced into a Victorian House of Parliament and laid before the House of Representatives (s 28). A failure to comply with these requirements does not affect the validity of an Act (s 29). Division 2 empowers the Victorian Parliament to declare that an Act or a provision of an Act has effect despite being incompatible with one or more human rights or anything else in the Charter (s 31(1)). Division 3 contains provisions relating to the interpretation of statutory provisions. Section 32 of the Charter provides:

(1)    So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2)    International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3)    This section does not affect the validity of—

(a)    an Act or provision of an Act that is incompatible with a human right; or

(b)    a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

99    “Subordinate instrument” is defined in s 38 of the Interpretation of Legislation Act 1984 (Vic) to mean:

[A]n instrument made under an Act—

(a)    that is a statutory rule; or

(b)    that is not a statutory rule but—

(i)    contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or

(ii)    is of a legislative character;

100    Division 4 of Pt 3 of the Charter provides for obligations relating to the conduct of public authorities. Section 38 of the Charter relevantly provides:

(1)    Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2)    Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example

Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

101    Section 39 of the Charter contains a restriction on the bringing of “freestanding” challenges based on the Charter, requiring that any challenge also be at least amenable to a challenge to its lawfulness on a basis outside the Charter. Section 39 provides:

(1)    If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2)    This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—

(a)    to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b)    to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3)    A person is not entitled to be awarded any damages because of a breach of this Charter.

(4)    Nothing in this section affects any right a person may have to damages apart from the operation of this section.

102    The Public Health and Wellbeing Act by its terms empowers the Minister to make pandemic orders that place restrictions on individuals to the extent that the Minister believes is reasonably necessary to protect public health (s 165AI). The Pandemic Orders are instruments made under the Public Health and Wellbeing Act containing orders of the Minister made pursuant to the power delegated to him. The Pandemic Orders are “subordinate instruments” pursuant to the definition in s 38 of the Interpretation of Legislation Act, even though they are not “legislative instruments” within the meaning of the Subordinate Legislation Act 1994 (Vic) s 3: Public Health and Wellbeing Act s 165CR(c). The validity of the Pandemic Orders is not affected by s 32 of the Charter if the order is empowered by the Public Health and Wellbeing Act.

103    The Applicants appeared to contend that s 32(3)(b) of the Charter did not preclude a challenge to the validity of the Pandemic Orders because they were not made “within the grant of the Minister’s powers”. The Applicants contended that s 7(2) of the Charter did not apply to the Minister’s powers to make an order under Pt 8A of the Public Health and Wellbeing Act. The basis for this contention was not apparent. As the Applicants concede, the Minister has power under the Public Health and Wellbeing Act to make a pandemic order that “restricts movement in a pandemic management area” (s 165AI(2)(d)) and that such an order might differentiate or vary in its application to person or classes of person “if such application, differentiation or variation is relevant to the serious risk to public health posed by the disease specified in the pandemic declaration to which the pandemic order relates” (s 165AK(3)). To the extent that the basis for the Applicants’ contentions that the Minister acted unlawfully is different from the contentions considered above, it is not intelligible. The contention does not enjoy any reasonable prospect of success.

104    Section 38(1) of the Charter does not apply to the making of a subordinate instrument. To make a subordinate instrument is not “to act in a way” within the meaning of s 38(1): Kerrison v Melbourne City Council [2014] FCAFC 130; 228 FCR 87 at 133 [199]. Nor is the making of a subordinate instrument “the making of a decision”. As the Court stated in Kerrison at 129–30 [182]:

In our opinion the making of a subordinate instrument by a public authority is not comprehended by the phrase “to act in a way” in s 38(1). The construction we adopt of s 38(1) applies not only to a Council as a public authority but to any other “public authority”, as that term is defined in s 4 of the Charter, which might be empowered to make a subordinate instrument.

105    The Court in Kerrison supported this construction of s 38 based on textual matters and the following purposive consideration (at 133 [198]):

Through ss 28, 32 and 36 it can be seen the Charter intends to preserve the ability of lawmakers, at both primary and subordinate levels, to make laws which when properly construed (even through the prism of s 32) are incompatible, and operate incompatibly, with Part II human rights. That being one of the key purposes of the Charter, it would introduce disconformities and inconsistencies into the operation and effect of the Charter to construe s 38 as extending to the making of subordinate legislation. There would be no rational basis to confine that extension to local councils — it would apply to any individual or entity who fell within the definition of public authority and made a subordinate instrument, within the broad meaning of that term in s 38 of the Interpretation of Legislation Act.

106    The decision in Kerrison renders a contention challenging the validity of a pandemic order based on s 38 of the Charter untenable.

107    Furthermore, for the reasons given above, the Applicants have not demonstrated that they have a basis for seeking any relief or remedy in respect of the Pandemic Orders on the ground that they are unlawful outside of the Charter.

108    For these reasons, the Applicants’ claims based on s 38 of the Charter do not enjoy reasonable prospects of success.

Challenges to Announcements made by the Premier

109    In so far as the Applicants seek to challenge the Announcements made by the Premier in press conferences, those claims are also untenable. The Announcements themselves did not have legal or compulsive effect and did not affect legal rights. They did no more than foreshadow the making of directions by the Acting Chief Health Officer. The Announcements were not directions to the Acting Chief Health Officer. The Announcements are not the proper subject of legal challenge.

110    The Applicants contentions that the Announcements by the Premier were unlawful as being incompatible with the Charter is also untenable. The Announcements did not have any legal or compulsive effect and were incapable of affecting legal rights. They are not “acts” within the meaning of s 38 of the Charter.

Mixing of State and Commonwealth Powers

111    The Applicants appear to contend that the Commonwealth was somehow accountable for actions taken by the Victorian government because of the existence of some joint plan or agreement relating to COVID-19 vaccination. The Applicants’ pleadings and submissions were lacking in substance and detail. Neither the scope of the alleged joint plan nor the terms of an intergovernmental agreement were specified.

112    The Applicants also appeared to contend that decisions made by the National Cabinet were somehow unlawful. The Applicants’ case on this point was no more than an assertion. There was no suggestion that the National Cabinet (comprising as it did representatives of the States and the Commonwealth) made laws. There is no basis for contending that the Commonwealth lacked power to discuss matters with the States and Territories or to arrive at a consensus on the preferred way in which to manage the pandemic. There is no basis for suggesting that the ministerial orders and directions of which the Applicants complain were made or dictated by the National Cabinet.

113    The Applicants’ claim for relief relating to decisions or acts of National Cabinet are not tenable.

Unpleaded or Unexplained Challenges

114    It is noted that some of the Applicants’ submissions were premised on some contentions which were not based on pleaded challenges, such as the reference to the exercise of executive power by the Commonwealth in utilising the services of the army to distribute COVID-19 vaccines. To the extent these contentions seek to raise any different point from those considered above, they need not be further addressed.

115    Other aspects of the Applicants’ challenges were not developed in submissions. The relevance of ss 51(xxxvii) and (xxxviii) of the Constitution was not explained. The Commonwealth did not rely upon those heads of legislative power to support the actions which the Applicants sought to impugn. The extent to which these contentions seek to raise any different point from those considered above is not apparent and they need not be further addressed.

STRIKE OUT

116    Rule 16.21(1) provides:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

117    The Respondents submitted that the Applicants’ pleadings are seriously deficient. Even if they did disclose a reasonable cause of action, it was submitted that the pleadings are likely to cause prejudice, embarrassment or delay. It is difficult to tell which paragraphs relate to which claims, allegations and particulars are rolled together, claims in some parts of the amended statement of claim are particulars to other claims, the allegations of fact and legal conclusions are contained in prolix particulars and, accordingly, it is difficult for the Respondents to know the cases they have to meet.

118    I have focussed on the Respondents’ summary dismissal application because the difficulties with the causes of action sought to be invoked by the Applicants make it extremely difficult to see how the Applicants’ case can be improved by clearer or more fulsome pleadings. The premise of the Applicants’ case is misconceived and for that reason, enjoys no reasonable prospect of success. As Mortimer J said in Knowles, this Court does not doubt the sincerity of the Applicants’ beliefs about COVID-19 vaccinations. But the sincerity of those beliefs does not result in a cause of action with reasonable prospects of success.

119    The proceeding should be summarily dismissed and there should be summary judgment for the Respondents. The parties will be given an opportunity to agree on proposed costs orders. In the absence of agreement, the Court will receive short further submissions as to costs.

Associate:    

Dated:        20 February 2023

ANNEXURE A — Declarations sought in Applicants’ amended originating application

(1)    The Victorian Vaccinated Economy Announcements of 8 September and 1 October 2021 breached [1297] 25 Edward I (Magna Carta) by denying justice and right for judicial review for a period of 7 days out of 14 days said to be given by which time the first mandatory vaccination was to be received.

(2)    The coerced medical services of a clinical trial or vaccine rollout provided jointly by Victoria and the Commonwealth in October 2021 were not authorised under 51(23A) of the Constitution of Australia.

(3)    The malpracticed medical services of a clinical trial or vaccine rollout provided jointly by Victoria and the Commonwealth in October 2021 were not authorised under 51(23A) of the Constitution of Australia.

(4)    The coerced pharmaceutical benefits of a clinical trial or vaccine rollout provided jointly by Victoria and the Commonwealth in October 2021 were not authorised under 51(23A) of the Constitution of Australia.

(5)    The malpracticed pharmaceutical benefits of a clinical trial or vaccine rollout provided jointly by Victoria and the Commonwealth in October 2021 were not authorised under 51(23A) of the Constitution of Australia.

(6)    The Commonwealth provision of purported medical services to civilian workers under coercion of the Vaccinated Economy as instituted by Victoria in October 2021 breached the without civil conscription guarantee of section 51(23A) of the Constitution of Australia.

(7)    Schedule 1 a of the National Health Amendment (COVID-19) Act 2021 (Cth) is beyond power of section 51(23A) of the Constitution of Australia and invalid.

(8)    In October 2021 the state of Victoria breached [1297] 25 Edward I (Magna Carta) of the Imperial Acts Application Act 1980 (Vic) by coercing vaccinations by executive command.

(9)    In October 2021 the State of Victoria and the Commonwealth breached the Monopolies Act James I c. III ss 1, 6 by compounding laws to lock out the Second Applicant from the Vaccinated Economy in favour of vaccinated people.

(10)    The Victorian Vaccinated Economy Announcements of 8 September and 1 October 2021 were not made according to the Occupational Health and Safety Act 2004 (Vic) s 21 due to insufficient medium and long term safety data.

(11)    The COVID-19 Mandatory Vaccination (Workers) Directions made on 7 October (and successors 2, 3, 4 & 5) were not made according to the Occupational Health and Safety Act 2004 (Vic) s 21 due to insufficient medium and long term safety data.

(12)    The Vaccinated Economy imposed by the State of Victoria on 8 September and 1 October 2021 through its Premier was unlawfully incompatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic) regarding:

the protection from torture and cruel, inhuman or degrading treatment;

the protection of freedom of thought, conscience, religion and belief;

freedom of peaceful assembly and association;

freedom of movement;

recognition and equality before the law.

(13)    The COVID-19 Mandatory Vaccination (Workers) Directions (October 2021) of Victoria had no legal effect to compel or coerce any person to be vaccinated being reliant on a joint action with the Commonwealth not in accordance with section 51(23A) of the Constitution of Australia.

(14)    The National Cabinet Statements published on 4 June and 6 August 2021, were incorrect to advise that mandatory vaccines or treatments provided by the Commonwealth could be without proper consent of competent persons according to established Medical principles.

(15)    The Fair Work ombudsman was incompetent to advise in August and October 2021, that mandatory vaccines or treatments provided by the Commonwealth could be without proper consent of competent persons according to established medical principles.

(16)    The COVID-19 Mandatory Vaccination (Workers) Directions made on 7 October (and like successors 2, 3, 4 & 5) breached [1297] 25 Edward I (Magna Carta) of the Imperial Acts Application Act 1980 (Vic) by coercing vaccinations by executive command beyond the Directions expiry date.

(17)    In October 2021 the State of Victoria breached (1405–6) 7 Henry IV. c. I. of the Imperial Acts Application Act 1980 (Vic) by restricting entry to the workplace by executive command beyond the Directions expiry date to coerce vaccinations.

(18)    The Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order (No. 1) was invalid.

(19)    The Pandemic COVID-19 Mandatory Vaccination (General Workers) Order (No. 1) was invalid.