Federal Court of Australia

Peers v Eastern Health [2026] FCA 1677

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory applications dated 2 January 2026 and 25 February 2026 be dismissed.

2.    The applicant’s writ of summons in the High Court of Australia accepted for filing in this court on 6 June 2025 as an originating application be dismissed.

3.    The applicant pay the respondents’ costs of the proceeding to be agreed or assessed.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    By an application in the form of a writ of summons issued in the High Court of Australia on 24 January 2025, but remitted to this court by a Justice of the High Court and accepted for filing in this court as an originating application on 6 June 2025, the applicant, who is self-represented, seeks declaratory relief the substance of which is that s 165AI of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) is inconsistent with the Fair Work Act 2009 (Cth) (FW Act) and, by reason of s 109 of the Commonwealth Constitution, is inoperative to the extent of that inconsistency.

2    Eastern Health, which had employed the applicant under the relevant contract from about 2013 until December 2022, is the first respondent to the application, and the State of Victoria (the State) is the second respondent. Eastern Health is a public health service incorporated under s 65P and Sch 5 of the Health Services Act 1988 (Vic). It is governed by a board of directors appointed by the Victorian Governor in Council on the recommendation of the relevant Minister.

3    The application is accompanied by a statement of claim filed in the High Court on 18 Febraury 2025 but accepted for filing in this court on 6 June 2025 as a concise statement. The declaratory relief sought is as set out in that document in the following terms:

1.    A Court declaration that Eastern Health is a trading corporation within the meaning of section 51(xx) of the Constitution and therefore the employment relationship between itself and its employees is governed by the Fair Work Act 2009 (Cth) to the exclusion of all state industrial laws by reason of section 26 of the aforementioned federal act.

2.     A Court declaration that the Public Health and Well Being Act 2008 (Vic) in its practical operation or substance Pandemic (Workplace) Order 2022 (No.1-10) pursuant to s165AI of the Act requiring the proof of vaccination status prior to or for continued employment in relation to Covid-19 answers the description of an industrial relations law because it applies to employment generally and provides for the establishment or enforcement of terms and conditions of employment, namely proof of vaccination status and therefore invalid by reason of s26 of the Fair Work Act 2009 (Cth) for inconsistency pursuant to section 109 of the Constitution.

3.    A Court declaration that there is a direct inconsistency pursuant to section 109 of the Constitution between the Public Health and Well Being Act 2008 (Vic) and the Fair Work Act 2009 (Cth) as the former pursuant to s165AI alters, impairs or detracts from the operation of the latter unless the state act is first satisfied, the State of Victoria having determined the limits of federal power which is ultra vires the states.

4.    A Court declaration that a direct inconsistency arises by reason of the Commonwealths express intention to ‘cover the field’ pursuant to s26 of the Fair Work Act 2009 (Cth) and therefore makes the state act the Public Health and Well Being Act 2008 (Vic) invalid or inoperable by reason of s109 of the Constitution.

5.     A Court declaration that organised bodies of persons such as incorporated companies or municipal corporations are subject to the Constitution by reason of Clause 5 and must obey a federal act where the intent is expressly made that no state law can have operation on the subject matter of industrial relations and it is immaterial what the corporate policy may prescribe otherwise, giving the corporate policy no legal effect.

6.     A Court declaration that corporate policies are of no legal effect on the subject matter of industrial relations where there exists a federal act that expressly prohibits the operation of a state act on the subject matter of industrial relations.

4    The applicant has also filed interlocutory applications dated 2 January 2026 and 25 February 2026, the substance of which is a claim that the Federal Court of Australia lacks jurisdiction to grant the remedies sought.

5    The applicant relies on the following further material:

(a)    an outline of submissions dated 1 October 2025;

(b)    an outline of submissions dated 24 August 2026; and

(c)    submissions in reply dated 21 September 2026.

6    The applicant also provided to chambers on 9 October 2026, but did not file, short submissions on costs. This was after the hearing of the applications. These further submissions were provided without leave, although I have considered them.

7    Eastern Health has filed:

(a)    a concise statement in response dated 5 September 2025;

(b)    an affidavit of Ms Fleur Shaw-Jones affirmed on 10 November 2025;

(c)    submissions dated 2 April 2026; and

(d)    further submissions dated 11 September 2026.

8    The State has filed:

(a)    a concise statement in response dated 5 September 2025;

(b)    a list of documents filed on 11 November 2025; and

(c)    submissions dated 20 March 2026.

9    For the reasons that follow I have concluded that this court does have jurisdiction to adjudicate this dispute and, were it to be appropriate to do so, grant declaratory relief as necessary. Also for the reasons that follow I have determined that declarations in the terms sought by the applicant should not be made.

BACKGROUND

10    The relevant underlying facts are described largely as follows in the State’s submissions.

11    The applicant was employed by Eastern Health as a visiting medical officer anaesthetist pursuant to a contract of employment dated on or around 5 November 2012, and effective from 25 February 2013.

12    Eastern Health terminated the applicant’s employment on 8 December 2022. Documents annexed to the affidavit of Ms Shaw-Jones indicate that the applicant’s employment was terminated for serious misconduct (including a failure to follow directions and dishonesty) relating to her vaccination status.

13    The applicant does not give any evidence about the reasons for which her employment was terminated. Her position is that “termination of the employment of the applicant, the date of termination and the reasons for termination are immaterial and irrelevant as I am not seeking remedy against Eastern Health in relation to reinstatement nor am I seeking financial compensation for any perceived unfair dismissal”.

JURISDICTION

14    The applicant appears to contend that the Judiciary Act 1903 (Cth) (Judiciary Act) does not confer jurisdiction on this court to “invalidate or render inoperable a [S]tate or [F]ederal [A]ct and cannot immunise the Federal Court from a challenge to its jurisdiction to provide the remedy sought.” In substance the applicant appears to contend that only the High Court has the necessary jurisdiction to make the declarations she seeks. In support of her argument in this respect the applicant cites passages from R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; 94 CLR 254, Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476, Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531, and Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146; 25 VAR 124.

15    It is unnecessary for present purposes to describe in any further detail the applicant’s submissions in support of her claim that this court lacks jurisdiction. As the State submits, there is no warrant on the face of the Constitution and the Judiciary Act, or otherwise, for the conferral of jurisdiction on this court to be limited in the way the applicant contends.

16    More particularly, I accept the State’s submission (also adopted by Eastern Health) that under s 71 of the Constitution the judicial power of the Commonwealth is vested in the High Court and in such other federal courts as the Commonwealth Parliament creates. The original jurisdiction of the High Court is set out in ss 75 and 76 of the Constitution. That jurisdiction includes matters arising under the Constitution: see s 76(i). In s 77 of the Constitution, the Commonwealth Parliament is given the power of “defining the jurisdiction of any federal court other than the High Court”. On the basis of the constitutional powers provided by ss 71 and 77 of the Constitution, the Commonwealth Parliament enacted the Federal Court of Australia Act 1976 (Cth), establishing this court. This court has the original jurisdiction conferred under s 19(1) of that Act “as is vested in it by laws made by the Parliament”. Section 39B(1A)(b) of the Judiciary Act confers on this court jurisdiction to determine any matter “arising under the Constitution”. There can thus be no doubt that this court has jurisdiction to determine whether any part of the PHW Act is inconsistent with the FW Act and therefore inoperative because of s 109 of the Constitution. As to the circumstances in which a justiciable controversy answers the description in s 76(1) of a matter “arising under the Constitution”, see Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [31] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); see also McBain v Victoria [2000] FCA 1009; 99 FCR 116 (Sundberg J).

17    Accordingly I would dismiss the applications of 2 January 2026 and 25 February 2026 challenging this court’s jurisdiction.

THE RELEVANT STATUTORY INSTRUMENTS

18    Before turning to the question of any inconsistency between the PHW Act and the FW Act, it is convenient to say something about the PHW Act and the Pandemic (Workplace) Order 2022 (No 10) (the Order), which are the relevant instruments in this proceeding.

19    As the State submits, the stated purpose of the PHW Act is to promote and protect public health and wellbeing in Victoria: PHW Act s 1. Part 8A of the PHW Act establishes the regulatory framework for the management of risks associated with pandemics: see PHW Act s 165A.

20    On 10 December 2021, after consultation with the State’s Chief Health Officer and the Minister for Health, the then-Premier of Victoria made a pandemic declaration under s 165AB of the PHW Act in respect of the COVID-19 pandemic disease. That declaration remained in force until 12 October 2022.

21    Subsequently, the Minister for Health made the Order commencing 12 July 2022 pursuant to s 165AI of the PHW Act. Amongst other things, the Order required Eastern Health, as a regulated employer, to collect, record and hold certain information regarding its employees’ vaccination status, and to take all reasonable steps to ensure that healthcare workers who were not fully vaccinated against the COVID-19 disease did not enter a hospital for the purposes of working, unless an exception applied: see Order cl 16 and cl 27(2). If Eastern Health did not have information regarding an employee's vaccination status, it was required to treat that employee as though they were not fully vaccinated: see Order cl 27(3).

22    The Order was revoked on 12 October 2022, that is, before the termination of the applicant’s employment with Eastern Health: see Order cl 4(1). From the time the Order was revoked, relevantly similar requirements were imposed on Eastern Health by secretarial directions made under s 105A of the Health Services Act 1988 (Vic). Those directions were revoked with effect from 4 October 2024 and, it would seem, are not challenged by the applicant in this proceeding.

NO INCONSISTENCY

No direct inconsistency

23    The applicant appears to contend that the “direct” inconsistency between the PHW Act and the FW Act arises because she says the practical effect of the PHW Act is to determine whether an employment relationship between an employer and employee can arise or continue, and thereby whether the FW Act applies. That is to say, the alleged practical effect of the PHW Act is to prohibit what the FW Act allows.

24    I accept the State’s submission, supported by Eastern Health, that the practical effect of the PHW Act is not to determine whether an employment relationship can arise or continue. I agree that nothing in the PHW Act or the Order or like instruments invalidates an existing employee-employer relationship, prevents such a relationship from being formed, or requires the dismissal of any employee. In the present context, the Order required only that Eastern Health, in its capacity as the operator of a “healthcare facility” take reasonable steps to ensure that a “healthcare worker” (as those terms are defined in cl 45 of Sch 4 to the Order) did not enter, or remain on, the premises of the facility for the purposes of working at the facility unless the worker was fully vaccinated (boosted) or an exception applied.

No indirect inconsistency

25    The applicant appears to contend also that an “indirect” inconsistency arises because s 26 of the FW Act evinces an intention that it “cover the field” of industrial relations. Section 26(1) of the FW Act provides (subject to certain conditions and exceptions) that the FW Act “is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer”. The applicant seems to submit that the PHW Act, in its practical operation or substance, is a “State or Territory industrial law” for the purposes of s 26 of the FW Act because the Order made pursuant to s 165IA of the PWH Act:

(a)    applied generally to all employers and employees in the State; and

(b)    provided for the establishment or enforcement of terms and conditions of employment.

26    I accept the State’s submission, supported by Eastern Health, that the PHW Act is not a “State or Territory industrial law” excluded by s 26(1) of the FW Act: it is not an “Act of a State or Territory that applies to employment generally” for the purposes of ss 26(2)(b) and 26(4), nor does it have as one of its main purposes any of the purposes specified in s 26(2)(b) (including the purposes of “regulating workplace relations” or “providing for the establishment or enforcement of terms and conditions of employment”). Rather, I accept, as the State submits, that the purpose of the PHW Act is to promote and protect public health and wellbeing in Victoria; insofar, one might add, as that concept is to be interpreted from time to time by the Victorian authorities.

27    I also accept the submission by the State, adopted by Eastern Health, that further, and in any event, s 26 of the FW Act has no application to the PHW Act because the impugned practical operation of the PHW Act in these circumstances deals with “non-excluded matters” within the meaning of ss 27(1)(c) and 27(2) of the FW Act. That is, the PHW Act deals with “occupational health and safety” and, or alternatively, “directions to perform work (including to perform work at a particular time or place, or in a particular way)” relating to the “provision of essential services or to situations of emergency”: see FW Act ss 27(2)(c), 27(2)(k)(i).

28    For these reasons it would not be appropriate to make the declarations sought.

DECLARATIONS LACK UTILITY

29    However, even if the applicant’s claims of inconsistency had a proper foundation, in all the circumstances I would still decline to make the declarations. As I have mentioned, the applicant does not seek any order of reinstatement against Eastern Health, nor does she seek monetary compensation of any kind. There would therefore be no utility in making the declarations. As the High Court observed in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 582, “declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”, citing In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257. Relief should not be granted if the question is “purely hypothetical” or if “the court’s declaration will produce no foreseeable consequences for the parties”: see Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 at 188 (Mason J), 189 (Aickin J).

30    Further, to paraphrase only slightly the observations of the Full Court of this court in Mayne Nickless Ltd v Transport Workers Union of Australia [1998] FCA 984 at 3–4 (Black CJ, von Doussa and Carr JJ):

The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit. No encouragement should be given, therefore, to the use of scarce judicial time to decide [questions] that are essentially moot. There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance.

31    The present case is not one where substantial legal rights of practical importance are in issue.

STANDING

32    Turning then to the applicant’s standing to seek the declaratory relief, notwithstanding the deployment of a battery of legal practitioners to meet the applicant’s case (there were at least seven lawyers in court for the State and Eastern Health, including senior counsel and two junior barristers), the State and Eastern Health have, rather unsatisfactorily, adopted different positions. All this in circumstances where the State appears to raise the question of the applicant’s standing as something of an afterthought.

33    Eastern Health does not dispute that the applicant has standing to challenge the validity of the PHW Act. Eastern Health admits that, as a national systems employer, it has obligations under the FW Act. It submits, rather inconclusively, that this issue “could be relevant” insofar as the applicant contends that Eastern Health has in some sense sought to circumvent the operation of the FW Act.

34    The State’s position is that the applicant has no “special interest” in the question of whether the relevant instruments were inconsistent with the FW Act greater than the ordinary member of the community. Success in the proceeding would not, the State submits, provide a basis for, or relate to, a subsequent cause of action at the suit of the applicant. The State draws the court’s attention to the fact that the Order had been revoked prior to the termination of the applicant’s employment, and that no orders or directions to the same effect have been in force since 2 October 2024. The State submits that the applicant’s employment was not terminated, as the applicant contends, because she failed to disclose her vaccination status, but for reasons of serious misconduct. The State further submits that other than satisfaction, the applicant gains no advantage should she succeed with her claims in the proceeding because she was not dismissed for any reason connected to the Order or related instruments, nor does she seek reinstatement or compensation: see Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [65], [69] (Gageler and Gleeson JJ) (Hobart International Airport); Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627 at [22] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ).

35    The State maintains that even if the submission that the applicant does not have a “special interest” in the proceeding is rejected, its argument that the applicant lacks standing must bear upon the question of whether the applicant should be granted the relief that she seeks: Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 437–438 (Gibbs J); Hobart International Airport at [32] (Kiefel CJ, Keane and Gordon JJ).

36    The applicant, of course, regards the suggestion that she lacks standing as risible. Her position, in substance, is that her standing derives from what she maintains is the general application of the PHW Act to regulate workplace relations, including the fact that the relevant instruments, prior to their revocation, operated to prevent her from attending her place of work. She contends that because the power in s 165IA of the PWH Act remains, she has a “very real interest” in knowing whether there is a risk that a similar order could be made in the future.

37    Although I accept the State’s submissions that the applicant lacks standing, I have nonetheless thought it appropriate in all the circumstances to give substantive consideration to the case she has brought. However, that the applicant lacks standing, I accept, is also a matter disentitling her to the declarations she seeks to have the court make.

EASTERN HEALTH CORPORATE POLICIES

38    Turning finally to the applicant’s contention that certain unidentified corporate policies of Eastern Health are invalid by operation of s 109 of the Constitution, the following may be said.

39    I accept Eastern Health’s submission that no policies are identified in the applicant’s material and that the alleged invalidity is not asserted by the applicant based on the terms or effect of any specific policy or any contravention of the terms of the FW Act. Rather, the applicant maintains that the policies are invalid because:

(a)    Eastern Health has, in practical terms, exercised legislative power;

(b)    section 109 of the Constitution can apply directly to invalidate policies because they operate in practical terms as state laws; and

(c)    Eastern Health’s policies have permitted the State to circumvent s 109 of the Constitution.

40    I reject each of these contentions pressed by the applicant.

41    First, insofar as Eastern Health’s corporate policies are said to operate in practical terms as State legislation that is rendered inoperative by s 109 of the Constitution, that is not correct. Eastern Health is a body corporate without any legislative function, both as a matter of fact and as a matter of law. I accept Eastern Health’s submission that its actions, including corporate policies, do not have effect as legislation practically or otherwise.

42    Further, as Eastern Health submits, any relevant policies involve no more than Eastern Health complying with its obligations under the PHW Act and, for the reasons I have explained, the PHW Act creates no relevant inconsistency for s 109 to address.

43    Secondly, I accept Eastern Health’s submission that according to its terms, s 109 of the Constitution applies to invalidate (or render inoperative) “a law of a State” to the extent of any inconsistency. The applicant’s contention that s 109 could directly invalidate corporate policies cannot be maintained because Eastern Health’s policies are not “a law of a State” upon which s 109 could operate.

44    Finally, insofar as the applicant maintains that inconsistency arises because corporate policies have done indirectly what the State cannot do directly – in other words, to take certain steps to require COVID-19 vaccination in workplaces, I accept Eastern Health’s submission that this contention must fail. First, for the reasons which have been addressed, the State is not directly prohibited by s 109 of the Constitution from doing what the PHW Act permits it to do. Secondly, there is no evidence of any coordination between the State and Eastern Health that would amount to some form of action circumventing the operation of the FW Act. And thirdly, Eastern Health, as a national systems employer, is subject to obligations under the FW Act and there is no evidence that it has sought to circumvent those obligations in any sense.

45    To the extent that the applicant further contends that Eastern Health’s corporate policies will automatically be contrary to law if the PHW Act is found to be inoperative by reason of inconsistency with the FW Act, I reject that contention. As I have found, the PHW Act is not invalid or inconsistent with the FW Act. And in any event, I accept Eastern Health’s submission that even if the PHW Act were inoperative by reason of inconsistency with the FW Act, the practical result would be that Eastern Health would be subject to the requirements of the FW Act. That circumstance would not mean that Eastern Health’s corporate policies are “contrary to law” because Eastern Health is already subject to the requirements under the FW Act as a national systems employer, and the applicant has never advanced any reason why Eastern Health’s corporate policies contravene the requirements of the FW Act, or are otherwise unlawful.

46    Further, I accept, as Eastern Health submits, that its corporate policies are not matters in controversy between the parties. There is no relief sought by the applicant concerning the validity of, or the reasons for, Eastern Health’s termination of her employment, and the validity of the PHW Act and corporate policies do not affect the applicant’s employment, which was terminated following a disciplinary process for serious misconduct. As I have noted, the applicant has never sought, in this proceeding, either reinstatement of her employment or compensation for her dismissal.

47    For these reasons, the applicant’s contentions in relation to Eastern Health’s corporate policies must be rejected.

COSTS

48    The applicant having been unsuccessful, it follows that the respondents should have their costs.

49    Although the applicant submits that there should be no order as to costs, essentially because her application has raised matters of public importance and there is a public interest in the questions she has raised being ventilated by the courts, I reject this submission.

50    The matters raised by the applicant in the form that she has raised them are not matters of public importance. The relief she sought was misconceived as a matter of law, and the applicant’s proceeding should not have been brought. It is no more than a flight of fancy. The proceeding has wasted considerable (and scarce) public resources: the resources of the State of Victoria, one of its major health providers, and the resources of the Commonwealth insofar as this court is concerned. In my view the applicant has instituted the proceeding without reasonable cause.

51    As to the court’s discretion to award costs, while the applicant is self-represented, this is not a privilege which immunises her from the consequences of her actions. As McHugh J observed in Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 481, “[l]ack of legal knowledge is a misfortune, not a privilege”. The applicant filed detailed written submissions, and presented at the hearing as articulate and capable of following the progress of her application. Clearly she has been a professional medical person of some standing. I take this into account in exercising the discretion to make a costs order. It fortifies my conclusions that in the exercise of the court’s discretion costs should follow the event.

52    I will therefore make the following orders:

(1)    The applicant’s interlocutory applications dated 2 January 2026 and 25 February 2026 be dismissed.

(2)    The applicant’s writ of summons in the High Court of Australia accepted for filing in this court on 6 June 2025 as an originating application be dismissed.

(3)    The applicant pay the respondents’ costs of the proceeding to be agreed or assessed.

Associate:

Dated:    10 November 2026