Larter v Hazzard (No 2) [2021] NSWSC 1451

Supreme Court New South Wales

Medium Neutral Citation: Larter v Hazzard (No 2) [2021] NSWSC 1451 Hearing dates: 4-5 November 2021 Decision date: 10 November 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the further amended summons filed on 5 November 2021. (2) Reserve the question of costs. (3) Direct that any party who seeks, or resists, an order for costs, apply in writing to my Associate within seven days, following which directions will be made with a view to the application being determined on the papers, unless an application that it be heard orally is made and granted. Catchwords: PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — health care workers required to be vaccinated by particular dates as a condition of being permitted to provide health care services — whether it was open to the Minister to make the public health orders having regard to the risk to public health posed by COVID-19 — consideration of the width of the power in s 7 by reference to Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 — Chief Medical Officer gave evidence of her advice to the Minister to make the orders, the rationale for the orders and available data — concern to protect categories of persons at greater risk of severe COVID-19 illness who are over-represented in health facilities and to prevent disruption to the delivery of public health services — reasonably open to the Minister to make the orders PUBLIC HEALTH ACT — Time-limited orders — the Minister is not permitted to make an order which has an effect beyond 90 days — the direction requiring health care workers to be double-vaccinated by 30 November 2021 could not become operative since the 90-day period would expire on about 24 November 2021 — the direction does not render the order invalid in circumstances where the Minister's purpose was to put staff on notice of his intention to prohibit staff who had not been double-vaccinated from performing duties — the potentially permanent effects of the orders are the inevitable consequence of the width of the power in s 7, risk posed by the virus and the Minister's decision as to how to deal with the risk HUMAN RIGHTS — International law — the public health orders are not inconsistent with the International Covenant on Civil and Political Rights — freedom of religion and religious expression and freedom of thought and expression may be subject to limitations necessary to protect public health — obligation under the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics — not necessary to address whether Australia's international obligations can be used to construe State legislation ADMINISTRATIVE LAW — Remedies — plaintiff seeks declarations that two public health orders were, and are, invalid and associated relief by way of injunctions — whether the plaintiff had a reasonable excuse to fail to comply with the directions cannot be determined in the absence of a charge under s 10 of the Public Health Act 2010 (NSW) and concrete facts Legislation Cited: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), arts 17, 18, 19, 26 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 12 Interpretation Act 1987 (NSW), s 43 Public Health Act 2010 (NSW), ss 3, 7, 10 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW), cll 2, 3, 4, Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW), cll 3, 5, 6 Cases Cited: Athavle v State of New South Wales [2021] FCA 1075 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Australian Securities and Investments Commission v DB Management (2000) 199 CLR 321; [2000] HCA 7 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Chief of Defence Force v Gaynor (2017) 246 FCR 298; [2017] FCAFC 41 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 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 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 2010 Category: Principal judgment Parties: John Edward Larter (Plaintiff) The Hon. Brad Hazzard MP, Minister for Health and Medical Research (First Defendant) Health Administration Corporation (Second Defendant) State of New South Wales (Third Defendant) Representation: Counsel: S Prince SC / M Maconachie / T Wong (Plaintiff) Submitting appearance (First and Second Defendants) J Kirk SC / T Prince / D Reynolds (Third Defendant)