Athavle v State of New South Wales [2021] FCA 1075

Federal Court of Australia

Athavle v State of New South Wales [2021] FCA 1075 File number(s): NSD 894 of 2021

Judgment of: GRIFFITHS J

Date of judgment: 3 September 2021

Date of publication of reasons: 6 September 2021

Catchwords: HUMAN RIGHTS – freedom of religion – COVID-19 pandemic – applicants sought urgent interlocutory injunction restraining enforcement of NSW and Victorian public health orders (the impugned instruments) to allow observance of Jewish religious holidays – whether serious question to be tried – whether balance of convenience favoured injunction – where orders sought could have dire consequences for public health and third parties –undertaking as to damages inadequate – interlocutory application dismissed HIGH COURT AND FEDERAL COURT – interpretation of Constitution – accrued jurisdiction – whether applicants' Federal claims merely colourable – borderline case – whether Federal claim is bona fide – merely because Federal claim is untenable does not deprive Court of jurisdiction – federal jurisdiction enlivened STATUTORY INTERPRETATION – whether "principle of legality" applies to read down impugned instruments – whether public health orders unreasonable or disproportionate – common law right to freedom of religion – where purpose of impugned instruments to restrict rights and freedoms to protect public health – where impugned instruments involve complex policy choices – where relief sought invites Court to rewrite impugned instruments – separation of powers between executive and judiciary – no constructional choice available – no serious question to be tried and balance of convenience does not favour applicants CONSTITUTIONAL LAW – whether impugned instruments constitutionally invalid – whether implied Constitutional right to religious freedom restricting State legislative power – implied right to religious freedom would be contrary to express terms of s 116 of the Constitution – Preamble to Constitution does not support implication – no serious question to be tried and balance of convenience does not favour applicants