Kikuyu v Minister for Health NSW [2023] FCAFC 36

Federal Court of Australia

Kikuyu v Minister for Health NSW [2023] FCAFC 36 Appeal from: Kikuyu v Hazzard (No 2) [2022] FCA 812

File number: NSD 641 of 2022

Judgment of: RARES, PERRY AND RAPER JJ

Date of judgment: 27 February 2023

Catchwords: CONSTITUTIONAL LAW – whether inconsistency between Commonwealth and State laws – where Biosecurity Act 2015 (Cth) allowed concurrent operation of State and Territory laws with limited specified exceptions – where Public Health Act 2010 (NSW) empowered State Minister to give directions necessary to deal with public health risk and its consequences – where State Minister ordered health care workers to receive at least two doses of COVID-19 vaccine by specified date – where Health Services Act 1997 (Cth) empowered Health Secretary to fix salary, wages and conditions of employment of staff employed in public health organisation – where Health Secretary made determination that all employees of New South Wales Health Service had to receive at least two doses of COVID-19 vaccine by specified date – where after specified date employee terminated because received no doses and not exempt – Held: appeal dismissed

Legislation: Constitution s 109 Biosecurity Act 2015 (Cth) ss 4, 8, 9, 42, 172, 265, 443(1), 445(1), (4), 446(1), (4), 473, 475, 476, 477(1), (5), 478(1), (4), (5), 479 Health Services Act 1997 (NSW) ss 116A(1), (2) Public Health Act 2010 (NSW) s 7 Public Health (COVID-19 Vaccination Health Care Workers) Order 2021 Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 Pt 2 cll 5, 6