(a) Is there a serious question to be tried?
78 For the following reasons, I consider that the applicants have failed to demonstrate that there is a serious question to be tried. If there is, in my view it is very weak.
79 First, the applicants' reliance on the "principle of legality" in challenging both the NSW Order and the Victorian Directions is misconceived. In brief, that is because both those instruments make it abundantly clear that they are intended to encroach upon and restrict what the applicants say is their fundamental right or freedom at common law to practice their religious faiths (for which the applicants relied upon Mason ACJ and Brennan J's observations in Church of the New Faith v Commissioner for Pay-roll Tax (Vic) [1983] HCA 40; 154 CLR 120 at 130). The terms of the State instruments represent the weighing or balancing of competing interests by the maker of the instrument, whose objective is to protect the public and its institutions from deleterious effects of the COVID-19 pandemic, while also recognising the justification for some limited exceptions to that protection. Plainly this involves an evaluative judgment with a heavy political and policy content.
80 It is sufficient for present purposes to set out French CJ's description of the principle of legality in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [41]-[42] (Adelaide City Corporation) (footnotes omitted):
41. … The power and by-laws made under it must be construed by reference to the common law principle of legality, and the requirements of reasonableness and proportionality discussed below. Ultimately, the implied constitutional freedom of political communication imposes limits which affect construction. It is necessary first to consider the application of the principle of legality so far as it concerns the common law freedom of expression.
The principle of legality
42. Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a "principle of legality" which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).
81 Some Justices of the current High Court have highlighted some difficulties with the principle of legality (see, for example, Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [313]-[314] per Gageler and Keane JJ). In particular, their Honours noted that the principle of legality "can at most have limited application in the construction of legislation which has amongst its objects or purpose the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked".
82 That is precisely the case here. The very object of the two States' legislative instruments is to regulate a range of freedoms, including abrogating or curtailing some of those freedoms or rights. That clear intention is manifested in the distinctions which are drawn in those instruments, which carve out exemptions in the case of some rights or freedoms but not others. As Gageler J stated in R v Independent Broad-Based Anti-Corruption Commissioner [2016] HCA 8; 256 CLR 459 at [76]-[77] (footnotes omitted):
76 Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction. An interpretative technique which involves examining a complex and prescriptive legislative scheme designed to comply with identified substantive human rights norms in order to determine whether, and if so to what extent, that legislative scheme might butt up against a free-standing common law principle is inherently problematic. The technique is even more problematic if the common law principle lacks precise definition yet demands legislative perspicacity and acuity if it is not to create of its own force an exception to the scheme that is spelt out in the statutory language.
77 Be that as it may, any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical. …
83 This case is far removed from the circumstances in Evans v New South Wales [2008] FCAFC 130; 168 FCR 576, where the principle of legality was applied in a case which presented constructional choices (see at [68] per Branson, French and Stone JJ). There are no such choices here having regard to the plain terms of the impugned instruments.
84 Secondly, the applicants' case is not strengthened by their reliance on s 116 of the Constitution and the alleged implied Constitutional freedom of religion. Section 116 of the Constitution states:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
85 In its terms, s 116 applies only to the Commonwealth and not to the States, and is therefore only relevant to the Commonwealth Declaration.
86 Section 116 of the Constitution prohibits the Commonwealth from making any law "for prohibiting the free exercise of any religion". But the Commonwealth Declaration here does not prohibit the free exercise of any religion. Indeed, as emphasised above, it has no substantive content in its own right or contain any provision which is directed to the free exercise of any religion. Any such prohibition or restriction might flow from directions made by the Commonwealth Health Minister under s 477(2) of the Biosecurity Act. But no such direction is challenged by the applicants in these proceedings. Moreover, any such direction would not be a "legislative instrument" and Mr King, who appeared for the applicants, explicitly stated that the challenge was directed only to legislative instruments and not administrative decisions.
87 Thirdly, the applicants' reliance on s 116 of the Constitution is inconsistent with caselaw which establishes that in determining whether a law is invalid by reference to s 116, the focus is on the purpose of the law and not its effect (see, for example, Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 160 per Gummow J, with whom Dawson J agreed). The applicants do not suggest that the purpose of the Commonwealth Declaration was to prohibit the free exercise of any religion. Rather, their case is directed to what they say is the effect of the Commonwealth Declaration. This position nevertheless fails to address the fact that the Commonwealth Declaration has no substantive effect as such and primarily operates to permit directions to be given which may have some substantive effect but no such direction is challenged by the applicants here.
88 As to the applicants' proposition that there is under the Constitution an implied right of religious freedom (either related to or independently of s 116), no authority was cited in support of that proposition. Mr King submitted that the existence of such an implied right was supported by the terms of the Preamble to the Constitution. But that is inconsistent with the decision in Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [13] per Debelle, Sulan and Vanstone JJ where it was held that the reference to "Almighty God" in the Preamble "does not in any way enlarge the meaning and operation of s 116". Moreover, as NSW submitted, no Constitutional implication can be drawn which is inconsistent with the express terms of the Constitution (see MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 at [41]-[42] per Gleeson CJ, Gummow and Hayne JJ and [197]-[198] per Heydon, Crennan and Kiefel JJ; see also Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; 161 CLR 556 at 569 per Gibbs CJ, 579 per Mason J, 615 per Brennan J and 636 per Dawson J, and Gerner v Victoria [2020] HCA 48; 385 ALR 394 at [27]-[29]). The asserted implied right would go beyond and be inconsistent with the express terms of s 116. Inconsistency would also arise if s 116, which is expressly confined to the Commonwealth, was extended to the States.
89 It is difficult to see any connection between the asserted implied Constitutional right and the implied constitutional right of political communication applied in cases such as Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520.
90 Mr King placed heavy reliance upon a decision of the Superior Court of California in Burfitt v Newsom (Cal Super Ct, No BCV-20-102267, 12 October 2020). In that case a "preliminary injunction" was issued which had the effect of prohibiting enforcement of restrictions and COVID-19 safety protocols against the plaintiff, who contended that the restrictions unconstitutionally infringed the free exercise of religion. That decision necessarily reflected the different Constitutional context in California and the United States. The Court's brief reasons for judgment refer to the free exercise of religion clause in art 1, s 4 of the California Constitution, which caselaw has held prohibits treating religious activities worse than comparable secular activities. Presumably the Court also relied upon the First Amendment to the United States Constitution. There are no equivalent Constitutional provisions here. For completeness it might be noted that the applicants placed no reliance on any aspect of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to the Victorian Directions. The only fleeting reference made to it by the applicants was in closing address in reply.
91 For the following reasons, I also consider the applicants' reliance on "legal unreasonableness" does not raise a sufficiently strong issue to be tried.
92 The applicants provided the following particulars of the alleged unreasonableness of the NSW Order and the Victorian Directions:
(a) Each instrument discriminates against religion by closing down places of worship whilst favouring commercial entities as exempt entities such as supermarkets, liquor stores and newsagents.
(b) A proportionate response would have permitted places of worship to exercise religion and to permit religious observances to occur, subject to exempt gathering or other reasonable restrictions in the circumstances.
(c) Each instrument is unreasonable in that it fails to identify and specify health risk areas in particular areas where churches and synagogues are located and make appropriate directions or orders accordingly.
(d) The respondents have failed to answer or apply to the applicants' reasonable requests for the limited purpose of conducting religious observances.
(e) No approach has been made to the applicants to consider or propose a sensible and practical plan of management.
(f) The respondents have abandoned a zero infection outcome with respect to measures relating to COVID-19.
(g) No or unreasonable regard has been paid to freedom of religion as recognised by the Constitution nor sufficient regard to the principle of legality.
(h) Alternatives to harsh and draconian lockdown measures that are less costly and more effective are readily available.
(i) There is no end in sight to the lockdowns such that a temporary measure has become in effect permanent and at the complete and unfettered discretion of the respondents without effective accountability.
(j) No area of either State has been made safe nor the public health risk in each such area prevented or removed by the measures, but instead the respondents have admitted that the measures have failed.
(k) With respect to the Commonwealth Declaration, neither of the conditions in paragraph 6(c) and (d) existed when the Declaration was made.
93 As was pointed out at the case management hearing, it is difficult to understand what is meant by the reference to paragraph 6(c) and (d) in circumstances where paragraph 6(c) of the amended originating application simply contains a reference to "Sunday" and paragraph 6(d) refers to "other religious holidays and worship as proposed by the applicants". The only sensible reading of particular (k) is a reference to sub-section 6(c) and (d) of the Commonwealth Declaration itself, but they merely speak to the conditions which gave rise to the biosecurity emergency in March 2020. They do not in any way condition the ongoing validity of the Commonwealth Declaration, which as noted above is dependent on s 475 (and its extension under s 476) of the Biosecurity Act.
94 It is incontrovertible that subordinate legislation is amenable to judicial review for unreasonableness (see, for example, Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee [1945] HCA 55; 72 CLR 37 at 82 per Dixon J and Adelaide City Corporation at [48] per French CJ). It is important, however, not to lose sight of the fact that the standard of review is not merely "unreasonableness" as such. The standard is much higher, as is reflected in expressions of the standard as "so oppressive or capricious that no reasonable mind can justify it" (City of Brunswick v Stewart [1941] HCA 7; 65 CLR 88 at 97 per Starke J); "such manifest arbitrariness, injustice or partiality that a court would say Parliament never intended to give authority to make such rules" (Mixnam's Properties Ltd v Chertsey UDC [1964] 1 QB 214 at 237 per Diplock LJ) and "no reasonable mind could justify it by reference to the purposes of the power" (Clements v Bull [1953] HCA 61; 88 CLR 572 at 577 per Williams ACJ and Kitto J).
95 The essential point is that there is a "high threshold" to judicial review of subordinate legislation for unreasonableness and the Court should avoid engaging in a merits review of such legislation (see Adelaide City Corporation at [47]-[54] per French CJ). As Spigelman CJ said in Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11 at [152], where it was contended that a legislative instrument applied unfairly and discriminatorily:
What is fair or unfair in such a context is a matter on which reasonable minds can differ. In view of the conflicting interests involved, a broad brush approach of general application is not, in my opinion, irrational.
96 As was stated in Harbour Radio Pty Ltd v Australian Communications and Media Authority [2012] FCA 614; 202 FCR 525 the proper test is not one of expediency but whether there is a power to make the subordinate instrument. Where there are difficult choices to be made, it is essential that the Court not usurp the role of the maker of the impugned subordinate instrument (see [116]-[125] per Griffiths J).
97 As is pointed out in P Herzfeld and T Prince, Interpretation (Thomson Reuters, 2nd ed, 2020) at [13.260], these expressions emphasise that "unreasonableness" "is not the antonym of "reasonableness" in the sense in which that expression is used in say, the common law of negligence". The learned authors add, correctly, that "it is not sufficient that the court considers the subordinate legislation or its effects in certain circumstances unreasonable in this more limited sense", citing Kruse v Johnson [1898] 2 QB 91 at 99-100 per Lord Russell CJ (Chitty LJ, Wright, Darling and Channell JJ agreeing) and Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 357 per Mason CJ, Wilson and Brennan JJ. As is also pointed out at [13.260] of that text, "in determining whether subordinate legislation is unreasonable in the requisite sense, the utility of considering whether there is a less burdensome means of addressing the mischief to which it is directed has been doubted", citing Adelaide City Corporation at [65] per French CJ and at [120]-[122] per Hayne J (Bell J agreeing).
98 For the following reasons, I do not consider that the applicants' challenge is strengthened by their reliance upon the notion of proportionality in impugning the relevant instruments. Assuming for present purposes that proportionality is a ground of challenge separate from that of unreasonableness, it is well settled that disproportionality is available only where the provision empowering subordinate legislation to be made is directed to a particular purpose, as opposed to it having a connection with a particular subject matter (see Herzfeld and Prince, supra at [13.270] and the cases referred to therein, including Adelaide City Corporation at [55]-[61] per French CJ). Thus, in South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 165, the majority (Wilson, Dawson, Toohey and Gaudron JJ) expressed the test of review of regulations for "reasonable proportionality" as being "whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose" (emphasis added).
99 Assuming for present purposes that review of subordinate legislation for unreasonableness and disproportionality overlap, it is apt to set out my statement of the relevant principles in Houston v State of New South Wales (No 2) [2021] FCA 637 at [117]-[120] (emphasis in original):
117 … It is well settled that, while delegated legislation may be rendered invalid for unreasonableness/disproportionality, these grounds relate to the fundamental question whether the impugned regulation is a real or valid exercise of power. Thus, for example, in South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 167-168, the majority (Wilson, Dawson, Toohey and Gaudron JJ) said (emphasis added):
… the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved … It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power.
118 This approach to reasonable proportionality as a ground of review of delegated legislation is also reflected in what French CJ said in Corporation of the City of Adelaide at [61] (footnotes omitted):
The use of the term "proportionality" in Tanner did not draw upon any novel or distinct theory of judicial review of delegated legislation. It was used to designate an evolved criterion defining the limits of a particular class of statutory power. As discussed earlier in these reasons, "proportionality" is a term used to designate criteria, going to validity, of rational law-making and decision-making in the exercise of public power. Kiefel J, writing extra-curially, has referred to its application in such disparate fields as criminal responsibility, sentencing, the permissible scope of qualifications upon human rights and freedoms under constitutional and statutory charters, intrusions upon constitutional guarantees, immunities and freedoms, express and implied, as well as purposive law-making power. Other fields in which it has been said proportionality operates include apportionment of liability in negligence cases and in the application of equitable estoppel against the "disproportionate making good of the relevant assumption". Each of its applications has its own history.
119 It is also well settled that there is a high threshold in making good an unreasonable disproportionality challenge to legislation (see French CJ in Corporation of the City of Adelaide at [49]). The fundamental point has repeatedly been emphasised that the critical question is the existence and ambit of a power to make delegated legislation, not the expediency or merits of the exercise of the power (see, for example, French CJ in Corporation of the City of Adelaide at [48]-[50] and the cases cited therein).
120 In Murphy v Electoral Commissioner [2016] HCA 36; 261 CLR 28, Kiefel J said at [65] (footnotes omitted and emphasis added):
The aim of any testing for proportionality is to ascertain the rationality and reasonableness of a legislative restriction in a circumstance where it is recognised that there are limits to legislative power. Proportionality analysis does not involve determining policy or fiscal choices, which are the province of the Parliament …
Those observations are equally apposite to a challenge to the validity of delegated legislation based upon disproportionality. The central focus must be the contemplated ambit of power and the rational connection between the impugned regulation and the enabling power under which it was made.
100 I consider that the applicants' claims of unreasonable disproportionality fall far short of the high threshold which attaches to this ground of review. Their challenge impermissibly invites the Court to determine on the merits complex policy choices. The applicants have not persuaded me that there is a serious question to be tried as to whether any of the three impugned instruments is so unreasonable as to be beyond power. As I have repeatedly emphasised, it is not the Court's task to engage in a merits review of those policy choices. Those choices require a balance between competing interests. A primary interest will be public health and public protection but other interests need to be balanced. It is a matter for the executive and not the Court to strike that balance.
101 As submitted by Mr Kirk SC, this conclusion is supported by the breadth of s 7 of the NSW Act, construed in light of the objects of that Act in s 3. As noted above, where the Health Minister considers on reasonable grounds that a situation has arisen that poses a risk to public health, the Health Minister "may take such action" and "may by order give such directions" as the Minister considers necessary. Given the breadth of s 7, I am not persuaded that there is a serious question to be tried that the NSW Order is beyond the ambit of the power of its enabling legislation. Similar observations can be made with respect to s 200 of the Victorian Act as the enabling legislation for the Victorian Directions.
102 Finally, I consider that there is a fundamental problem with the terms of the interlocutory relief sought by the applicants in their interlocutory application. They seek an order against the respondents restraining them from preventing the applicants celebrating particular religious observances on specified dates "in accordance with social distancing rules applicable to exempted gatherings". This effectively invites the Court to rewrite provisions in the two State instruments relating to exemptions so as to permit the applicants to celebrate the specified religious observances. The Court is asked to amend those instruments by, in effect, adding to the exemptions therein so as to permit observance of the relevant services in accordance with social distancing rules. Assuming that the applicants rely upon provisions in interpretation legislation which requires subordinate instruments to be construed subject to the empowering legislation (such as s 13 of the Legislation Act 2003 (Cth), s 22 of the Interpretation of Legislation Act 1984 (Vic), and ss 31 and 32 of the Interpretation Act 1987 (NSW)), it is well settled that such provisions do not operate to require a court to redraft a legislative provision.
103 As the Full Court (Branson, Hely and Selway JJ) stated in Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; 133 FCR 63 at [19]:
Put simply the Court cannot 'construe' the relevant provision, whether by reading down or by expunging invalid provisions, where the effect of doing so is to create a provision which the Parliament did not intend. For this purpose various indicia are referred to such as the extent of the proposed change; the indicia within the statute itself; the legislative purpose and so on. But the essential issue remains - is the Court carrying out the permissible function of the interpretation of the statute (read in the context of the relevant Acts Interpretation Act provision), or is the Court itself making legislation?