Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 Hearing dates: 29-30 November 2021 Date of orders: 08 December 2021 Decision date: 08 December 2021 Before: Bell P at [1]; Meagher JA at [138]; Leeming JA at [139] Decision: Proceedings 2021/303731; 2021/331988 1. Refuse leave to appeal in respect of grounds 3–6, 8, 9 and 11 of the draft notice of appeal. 2. Grant leave to appeal in respect of grounds 1 and 2 of the draft notice of appeal but dismiss the appeal. 3. Order that the appellants pay the costs of the application for leave to appeal and the appeal. Proceedings 2021/317873; 2021/321987 1. Refuse leave to appeal in respect of grounds 4–8 of the draft notice of appeal. 2. Grant leave to appeal in respect of grounds 1, 2 and 3 of the draft notice of appeal but dismiss the appeal. 3. Order that the appellants pay the costs of the application for leave to appeal and the appeal. Catchwords: ADMINISTRATIVE LAW – statutory construction – Public Health Act 2010 (NSW), s 7 – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) does not turn upon whether those orders are of an administrative or legislative character – whether those orders were authorised by and validly made under s 7 of the Public Health Act 2010 (NSW) APPEALS – leave to appeal – principles governing – consequences for the parties – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) was sought to be challenged – where two of those orders had been repealed and ceased to operate as at the hearing of the appeal and the third was to expire imminently – where the reasons of the primary judge disclosed no error of principle – where the proper construction of s 7 of the Public Health Act 2010 (NSW) raises a matter of public importance in the midst of an ongoing pandemic – whether there is any utility in granting leave to appeal to review orders already repealed or imminently to expire CIVIL PROCEDURE – Court of Appeal – leave to appeal – concurrent hearing of leave application and appeal – where constitutional arguments sought to be raised – where no arguable case was advanced – where the reasons of the primary judge disclosed no error of principle – where the raising of constitutional arguments does not give a case elevated status when considering a grant of leave to appeal – whether leave to be granted in circumstances of limited utility HUMAN RIGHTS – discrimination – context – employment – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) coerced workers in particular industries and workplaces to be vaccinated – where none of the applicants had been vaccinated in the exercise of their own free will HUMAN RIGHTS – legislation – Public Health Act 2010 (NSW), s 7 – principle of legality – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – whether certain public health orders made during the COVID-19 pandemic interfered with rights – whether those rights recognised by the common law – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence STATUTORY INTERPRETATION – legislative purpose – Public Health Act 2010 (NSW) – statement of objects – where purpose of Act is to promote, protect and improve public health including by the prevention of the spread of infectious diseases – where s 7 of the Act expressly contemplates the limitation of freedom of movement to address a public health risk STATUTORY INTERPRETATION – Anthony Hordern principle – where multiple sources of power in a statute – where some sources of power expressly qualified – Public Health Act 2010 (NSW), ss 7 and 8– whether the same source of power as s 7(2) – where s 7(3) expressly authorised limitation of freedom of movement – where power in s 7(3) expressed "without limiting s 7(2)" – whether the specific power in s 7(3) expressly qualified the general power in s 7(2) STATUTORY INTERPRETATION – principle of legality – common law rights and freedoms – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence – whether any of those rights are recognised at common law – if so, whether they are "fundamental rights" – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) interfered with any of those rights – whether the principle of legality operated to constrain any interference with those rights STATUTORY INTERPRETATION– where s 7(6) of the Public Health Act 2010 (NSW) proscribes the making of orders in relation to any part of New South Wales for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (NSW) – COVID-19 pandemic – whether the emergence of the Delta strain was an "emergency" under s 4 of the State Emergency and Rescue Management Act 1989 (NSW) – where the Premier did not declare a "state of emergency" under that Act Legislation Cited: A New Tax System (Family Assistance) Act 1999 (Cth) ss 6, 61B(1)(b), 85BA(1)(a)(iii) Acts and Instruments (Framework Reform) Act 2015 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3 Administrative Decisions Review Act 1997 (NSW) s 7 Australian Film Development Corporation Act 1970 (Cth) Australian Immunisation Register Act 2015 (Cth) Building Units and Group Titles Act 1980 (Qld) s 30(7) Civil Procedure Act 2005 (NSW) s 56 Commonwealth Constitution ss 51(xxiiiA), 109 Corporations Law (NSW) Ch 6 Interpretation Act 1984 (WA) s 41 Interpretation Act 1987 (NSW) ss 21, 45(1), Pt 6 Legislation Act 2003 (Cth) s 8 National Security Act (1939-1940) (Cth) s 5(4) Public Health Act 1991 (NSW) s 5(6) Public Health Act 2010 (NSW) ss 3, 7, 8, 62(6), 87 132, 133 State Emergency and Rescue Management Act 1989 (NSW) ss 4, 33(1) Subordinate Legislation Act 1989 (NSW) s 10(2) Supreme Court Act 1970 (NSW) s 101(2)(r) Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018 (Cth) Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) cll 4.3, 5.8, Pts 2-5, Sch 1, Pts 1-3 Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) Public Health (COVID-19 Care Services) Order (No 2) 2021 (NSW) Public Health (COVID-19 General) Order 2021 (NSW) Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63 Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45 Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321; [2000] HCA 7 Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Binsaris v Northern Territory [2020] HCA 22; 94 ALJR 644 Bowers v The Law Society of New South Wales [2021] NSWCA 270 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 British Medical Association v Commonwealth (1949) 79 CLR 201; [1949] HCA 44 Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Commonwealth v Bank of New South Wales (1949) 79 CLR 497 Commonwealth v Grunseit (1943) 67 CLR 58; [1943] HCA 47 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Dainford Limited v Smith (1985) 155 CLR 342; [1985] HCA 23 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Davis v Minister for Health [2021] NSWCATAD 310 Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 Electrolux Home Products Pty Limited v The Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325 Elliott v Minister administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582; [1997] FCA 723 Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301; [1943] HCA 15 Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242; [1979] HCA 27 Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33 Ha v New South Wales (1997) 189 CLR 465; [1997] HCA 34 Hamzy v NSW Commissioner of Police [2020] NSWCA 184 Hayward (a pseudonym) v R (2018) 97 NSWLR 852; [2018] NSWCCA 104 Hemmes Trading Pty Ltd v State of NSW [2009] NSWSC 1303 Hepples v The Commissioner of Taxation of the Commonwealth of Australia (1992) 173 CLR 492; [1992] HCA 3 Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88; [1982] HCA 2 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26 Lisa Maree Campbell as Administrator ad litem of the Estate of the Late Ralph Gordon Barry Campbell v Commonwealth Bank of Australia [2014] NSWCA 316 Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23 Malika Holdings Pty Limited v Stretton (2001) 204 CLR 290; [2001] HCA 14 Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32 McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Mulholland v Australian Electoral Commission (2004) 220 CLR 181, [2004] HCA 41 Nagle v Feilden [1966] 2 QB 633 Norberg v Wynrib [1992] 2 SCR 226 Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 P.J. Magennis Proprietary Limited v Commonwealth (1949) 80 CLR 382; [1949] HCA 66 Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 R v Thomas (2006) 14 VR 475; [2006] VSCA 165 Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14; 246 LGERA 1 Re DG and the Adoption Act 2000 [2007] NSWCA 241; 244 ALR 195 Reeves v The Queen [2013] HCA 57; 88 ALJR 215 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855 Rinehart v Rinehart [2020] NSWCA 221 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Sea Shepherd Australia Ltd v Western Australia (2014) 313 ALR 208; [2014] WASC 66 Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218; [1992] HCA 15 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4 Sharpe v Heywood [2013] NSWCA 192 Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Company Proprietary Limited (1910) 10 CLR 457; [1910] HCA 28 Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34 WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56 Texts Cited: M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) JD Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths) D Meagher and M Groves (eds), The Principle of Legality in Australia and New Zealand (2017, Federation Press) Chs 1, 5 JJ Spigelman, Statutory Interpretation and Human Rights (2008, University of Queensland Press) G Williams and S Rigney, "Human Rights in a Pandemic" in B Bennett and I Freckelton, Pandemics, Public Health Emergencies and Government Powers (Federation Press, 2021) Category: Principal judgment Parties: Proceedings 2021/303731; 2021/331988