Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

Supreme Court New South Wales

Medium Neutral Citation: Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Hearing dates: 30 September 2021, 1 October 2021, 5 and 6 October 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: Proceedings 2021/249601 (1) The proceedings be dismissed; (2) On or before 22 October 2021, the parties confer in relation to the appropriate orders as to costs; (3) In the event that agreement is reached on the appropriate orders as to costs, the parties file the proposed orders on or before 5.00pm on 25 October 2021; (4) In the event that no agreement is reached on the appropriate orders as to costs, each party file and serve: (i) their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5.00pm on 29 October 2021; (ii) any submissions in reply that do not exceed four pages on or before 5.00pm on 5 November 2021. Proceedings 2021/252587 (1) The proceedings be dismissed; (2) On or before 22 October 2021, the parties confer in relation to the appropriate orders as to costs; (3) In the event that agreement is reached on the appropriate orders as to costs, the parties file the proposed orders on or before 5.00pm on 25 October 2021; (4) In the event that no agreement is reached on the appropriate orders as to costs, each party file and serve: (i) their proposed orders as to costs and any submissions in support of the proposed orders that are not to exceed four pages on or before 5pm on 29 October 2021; (ii) any submissions in reply that do not exceed four pages on or before 5pm on 5 November 2021. Catchwords: PUBLIC HEALTH ACT – COVID-19 – public health orders made under s 7(2) of the Public Health Act – orders designate certain areas of concern and restrict movement out of the home and out of the area –authorised workers able to leave area of concern but only if vaccinated – orders allow residents of area of concern to enter and remain on construction sites but only if vaccinated – orders allow persons to enter and remain upon premises that operate aged care facilities but only if vaccinated – orders preclude persons from working at school and early education facilities unless vaccinated – scope of power to make orders giving such broad directions – whether power limited by reference to other powers conferred by the Public Health Act as a whole – whether principle of legality engaged by impugned orders – effect on personal freedoms – orders affect freedom of movement and capacity to work – orders do not violate right to body integrity – rule restricting freedom of movement for unvaccinated persons does not vitiate consent to vaccination – requirement for persons who leave areas of concern, enter building sites or work at schools or aged care centre to produce vaccination requirement on request – requirement does not infringe privilege against self-incrimination – privilege protects against production of incriminating not exonerating material. ADMINISTRATIVE LAW – proof of basis upon which Minister for Health acted – Minister did not give evidence – part of documents relied on subject of public interest immunity claim as documents produced to sub-committee of cabinet - whether Jones v Dunkel inference or Blatch v Archer reasoning available against Minister and State – position of Ministers with competing responsibilities – no adverse inference available – Blatch v Archer reasoning not available ADMINISTRATIVE LAW – grounds of challenge – relevant considerations – how derived and how framed – procedural fairness – no obligation to afford procedural fairness in making public health orders affecting a vast number of persons – not proven that making of orders was not a genuine exercise of the Minister's power – unreasonableness – adducing of evidence to undermine factual basis for making of orders – decision to make orders informed by policy considerations – whether differential treatment of unvaccinated persons consistent with objects of Public Health Act – all grounds of review rejected. CONSITUTIONAL LAW – whether orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution – orders do not create any form of civil conscription in the provision of medical and dental services – s 51(xxiiiA) does not limit legislative power of the States – no joint scheme with Commonwealth to effect civil conscription – neither orders or Public Health Act dependent for its operation on any joint scheme with Commonwealth – argument untenable – no inconsistency between orders, Public Health Act and Australian Immunisation Register Act 2015 Legislation Cited: Australian Immunisation Register Act 2015 (Cth) Constitution Constitution Alteration (Social Services) Act 1946 Disability Discrimination Act 1992 (Cth) Education Act 1990 (NSW) Education Standards Authority Act 2013 Evidence Act 1995 (Cth) Fair Work Act 2009 Health Insurance Act 1973 (Cth) Health Records and Information Privacy Act 2002 (NSW) Interpretation Act 1987 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Personal Information Protection Act 1998 (NSW) Privacy Act 1988 (Cth) Public Health Act 1991 Public Health Act 2010 (NSW) State Emergency and Rescue Management Act 1989 (NSW) Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) Public Health (COVID-19 General) Order 2021 Cases Cited: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271; [1987] HCA 6 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Associated Province Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Athavle v State of New South Wales [2021] FCA 1075 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 Baldwin v State of New South Wales [2020] NSWCA 112 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Botany Bay City Council and Others v Minister of State for Transport and Regional Development (1996) 66 FCR 537 Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; [1981] HCA 69 British Medical Authority v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44 Buckley v Tutty (1971) 125 CLR 353; [1971] HCA 71 Castle v Director General, State Emergency Service [2008] NSWCA 231 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Commonwealth of Australia v Northern Land Council and Another (1993) 176 CLR 604; [1993] HCA 24 Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457; [1910] HCA 28 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309; [2004] HCA 40 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 G v H (1994) 181 CLR 387; [1994] HCA 48 General Practitioner's Case (1980) 145 CLR 532; [1980] HCA 30 Gorman v McKnight [2020] NSWCA 20 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235 Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; [2009] NSWSC 761 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCB 6015 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; [1986] FCA 290 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 474; [2004] FCA 1701 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 Norberg v Wynrib [1992] 2 SCR 226 P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382; [1949] HCA 66 Pye v Renshaw (1951) 84 CLR 58; [1951[ HCA 8 R v Melin (Ozan) [2019] EWCA 557 R v Richardson (Diane) [1999] QB 444 Reid v Sinderberry (1944) 68 CLR 504; [1944] HCA 15 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) FCR 185; [2001] FCA 855 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 Secretary, Department of Health & Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Sidaway v Bethlehem Royal Hospital Governors [1984] QB 493 Spencer v Commonwealth (2018) 262 FCR 344; [2018] FCAFC 17 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1996) 44 NSWLR 598; [1996] HCA 196 Tunnock v Victoria (1951) 84 CLR 42; [1951] HCA 55 Wong v The Commonwealth (2009) 236 CLR 573 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Dunsmiur v New Brunswick [2008] 1 SCR 190 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Texts Cited: Convention on the Rights of Persons with Disabilities International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Universal Declaration of Bioethics and Human Rights Augusto Zimmerman and Gabriel Moens, "Emergency Measures and the Rule of Law",(2021) 64(10) Quadrant Magazine Hansard, Legislative Assembly, 24 November 2010, p 28128 Category: Principal judgment Parties: Proceedings 2021/249601 Al-Munir Kassam (First Plaintiff) George Nohra (Second Plaintiff) Alexandrea Goundoulas (Third Plaintiff) Jelena Zmiric (Fourth Plaintiff) Bradley Hazzard (First Defendant) Kerry Chant (Second Defendant) State of NSW (Third Defendant) Commonwealth of Australia (Fourth Defendant)