The Western Australian border directions
9 Mr Wilson's primary submission is that Dr Castella will not have to undergo 14 days' quarantine, or at least that ASIC had not demonstrated that he will. Mr Wilson relied principally on the terms of the Controlled Border for Western Australia Directions which were made under s 56 of the Emergency Management Act 2005 (WA) and came into effect on 14 November 2020. The starting point of the Directions in relation to international arrivals is that if they enter Western Australia they must comply with defined 'centre quarantine requirements': para 7. Those requirements essentially involve 14 days' hotel quarantine: para 17 and Schedule 2.
10 There are, however, three ways in which, under the Directions, it is contemplated that the centre quarantine requirements may be alleviated, in part. The first is that an 'authorised officer' may direct otherwise: para 7(a). An authorised officer is defined in para 15 of the Directions as having the same meaning that it has in the Emergency Management Act. In turn, s 3 of the Emergency Management Act defines an authorised officer as the State Emergency Coordinator and any person authorised by the State Emergency Coordinator under s 61 to act as an authorised officer. The Western Australian Commissioner of Police was the State Emergency Coordinator at the time the Directions were issued, and was therefore an authorised officer. The Directions provide no guidance on the circumstances in which he or any other authorised officer might vary the centre quarantine requirements and nor did the evidence.
11 Mr Wilson said I should infer that ASIC has not asked the Commissioner (or any other authorised officer) to make any direction lifting or varying the hotel quarantine requirement, as there was no evidence that it had made such a request. But even if I make that inference, the possibility that an authorised officer would vary the requirements in this case in a way which would make Dr Castella willing to come here to give evidence is speculative.
12 At various points in submissions Mr Wilson emphasised, in effect, that the onus of proof in the application was on ASIC. It is true, as I said in ASIC v Wilson (No 1) (at [6]), that reason for the exercise of the discretion must be made out by the party seeking a favourable exercise of it. But I do not consider that this places an onus on ASIC to negative every possibility which might undermine the basis on which it seeks the exercise of the discretion here. In the end, the court must make an assessment of what is in the best interests of justice in all the circumstances of the case, based on all the evidence adduced.
13 Here, the content of the Directions and of Mr Smith's affidavit of 3 June 2021, establish that the likely starting point of any arrangements for Dr Castella to travel to Western Australia would be 14 days' hotel quarantine. The extent to which exceptions to that may be available must be weighed on all the evidence in the usual way. In the circumstances of the pandemic as set out in Mr Smith's affidavit, I do not consider that the power of an authorised officer to alleviate the requirements of the Directions in unspecified circumstances provides any basis to depart from that starting point, and in the end Mr Wilson did not place much weight on it in his submissions.
14 The second possible exception to the hotel quarantine requirements which is found in the Directions arises if the international arrival is subject to a 'specified arrangement': para 7(b). This is defined in para 40 to mean a number of specified directions, apparently also made under the Emergency Management Act. The specified directions were not before the court but their titles as set out in the Directions include 'the Chevron FIFO Worker Directions (No 2)' (para 40(a)), 'the Flight Crew Directions' (para 40(b)) and the 'Yongah Hill Immigration Detainees Directions' (para 40(h)). It can be inferred from these titles that the specific directions relate to classes of persons who are frequently required to enter Western Australia and for whom the Western Australian authorities deem it appropriate to make special arrangements, for example airline flight crew.
15 Mr Wilson submitted that if an organisation such as Chevron could reach such arrangements with the Western Australian government, then there is no reason why an organisation such as ASIC could not do so as well. But on the face of things, the arrangements for organisations such as Chevron and airlines are embodied in directions of general application which would not be apt vehicles to facilitate a one-off visit by a single person for the discharge of a specific purpose. I put no weight on this second exception and, once again, Mr Wilson put little weight on it in his submissions.
16 Senior counsel for Mr Wilson spent more time on the third possible exception. It arises under para 8 of the Directions, which states that 'A person who receives a modified quarantine direction must comply with that direction'. Paragraph 31 defines a modified quarantine direction as follows:
Modified quarantine direction means:
(a) the directions set out in Schedule 4 to these directions if a person entered Western Australia to:
(i) provide care to a dependent person who resides in Western Australia; or
(ii) receive care from a person who resides in Western Australia; or
(iii) attend a funeral service; or
(iv) visit a relative who has had a serious medical episode or whose death is imminent; or
(v) receive urgent and essential medical treatment; or
(vi) comply with an order of an Australian court; or
(b) a direction entitled 'Modified Quarantine Direction' that requires quarantine but on terms different to the self-quarantine requirements and which is sent to the person via the G2G Pass Platform or to the email address they nominated through the G2G Pass Platform.
The G2G Pass Platform is a platform for the Western Australian government to grant passes permitting entry to Western Australia. Mr Wilson pointed out once again that ASIC had not sought any modified direction under para (b) of the definition, but he accepted that in the ordinary course a modified quarantine direction would be made under para (a), and so be in the terms of Schedule 4.
17 Schedule 4, again, essentially provides for 14 days' quarantine. It is not necessarily hotel quarantine, but it can be inferred that Dr Castella would need to stay in a hotel if he were to travel to Western Australia anyway, so that point is not material. What is potentially material is that Schedule 4 also contemplates that the person who has received the modified quarantine direction ('you') may leave the quarantine location ('suitable premises') if 'you are given another direction which you are required by law to obey' (Schedule 4 para 4(a)), or (Schedule 4 para 4(c)) (bold and italics in original):
you leave the suitable premises for the purpose of travelling to a particular place in accordance with paragraph 7 in order to either:
(i) provide care to a dependent person who resides in Western Australia; or
(ii) receive care from a person who resides in Western Australia; or
(iii) attend a funeral service; or
(iv) visit a relative who has had a serious medical episode or whose death is imminent; or
(v) receive urgent and essential medical treatment; or
(vi) comply with an order of an Australian court,
as nominated in your G2G Pass Declaration or updated G2G Pass Declaration (whichever is applicable) or otherwise indicated to an authorised officer (relevant purpose), in accordance with paragraph 5 of the Controlled Border for Western Australia Directions …
18 Paragraph 7 of Schedule 4, with which Dr Castella's travel within Western Australia would need to comply, provides (bold and italics in original):
You may leave your suitable premises to travel to the particular place or places for the relevant purpose, provided that:
(a) unless you are attending a private residence, you seek approval in advance from a person in authority at the particular place and notify them that you are subject to a self-quarantine direction and comply with any requirements of that place; and
(b) you travel in a private vehicle to the particular place or places by the most direct and practicable route available and without stopping, except as required by law or necessary for fuel; and
(c) while you are at the particular place or places, you remain there, and only for so long as is reasonably necessary for the relevant purpose; and
(d) if you are required to travel from one particular place to another particular place for the relevant purpose while you are not at your suitable premises, you comply with the terms in subparagraph (a) to (c); and
(e) following your attendance at the particular place or places, you travel in a private vehicle to the suitable premises by the most direct and practicable route available and without stopping, except as required by law or necessary for fuel; and
(f) you comply with paragraph 10.
Note: You must not visit cafes, restaurants, shopping centres, public parks, or any other place while you are not at your suitable premises if it is not essential or reasonably necessary to carry out the relevant purpose.
In the case of compliance with an order of a court, a 'person in authority' is a court officer at the relevant court: Schedule 4 para 13(e). A 'private vehicle' in Dr Castella's case would be a vehicle of which he is the sole occupant, other than a driver: Schedule 4 para 14.
19 Paragraph 10 of Schedule 4 relevantly provides:
At all times while you are in Western Australia, you must:
(a) take all reasonable steps to keep at least 1.5 metres away from any other person; and
…
(c) wear a face mask, if practicable and available, when you are travelling or in an enclosed space outside of your suitable premises; and
(d) when coughing or sneezing, do so into your elbow or a tissue; and
(e) wash your hands often with soap and water or using alcohol hand rub, particularly before and after attending a bathroom.
20 Mr Wilson's submission based on these provisions was that it would be open to ASIC to apply to the court for the issue of a subpoena or other order requiring Dr Castella to attend the court to give evidence in person. If an order of that kind was made, it could be served on Dr Castella on his arrival in Australia. He would then be required to attend at this court in Perth and so, it was said, para 31(a)(vi) of the Directions and para 4(c)(vi) of Schedule 4 would be engaged. Dr Castella would be required to go directly from the airport to hotel quarantine but he then could travel from hotel quarantine to the court, without waiting 14 days, in order to give evidence. He would need to comply with the requirements in paras 7 and 10 of Schedule 4. Most of those requirements, including the requirement for 1.5 metre distancing, would pose no impediment to his giving evidence. As for the requirement that Dr Castella wear a face mask, Mr Wilson submitted that this could be satisfied by means of a clear plastic face shield which would mean that his face would be visible.
21 Having considered those submissions I consider that, as a matter of practical reality, it is unlikely that Dr Castella would be able to give evidence in person in this court in Western Australia without first having to undergo 14 days' quarantine.
22 In the first place, I doubt that the modified quarantine direction provisions would apply under para 31(a) of the Directions. Paragraph 31(a)(vi) provides that the directions in Schedule 4 apply 'if a person entered Western Australia to … comply with an order of an Australian court'. The ordinary meaning of those words is that the need to comply with the order is the reason that the person wishes to enter Western Australia. So the person must first be subject to the mandatory requirements of the order, and must enter Western Australia so that he or she can comply with those requirements. That is different to the scenario posed by Mr Wilson, in which Dr Castella would enter Western Australia for the purpose of becoming bound by an order so that, after entering the State, he can have the benefit of the modified quarantine requirements.
23 The other situations in para 31(a) which trigger Schedule 4 support the view that this scenario is not the situation contemplated by the Directions. They are all circumstances in which there is a pre-existing and compelling need for a person outside Western Australia to enter the State; for example, to receive urgent and essential medical treatment. In my view the Directions are not intended to accommodate a situation in which the person outside the state does not have such a need, but chooses to enter it in order to then become subject to a mandatory requirement.
24 Also, it would not be satisfactory for Dr Castella to give his evidence from behind some sort of clear plastic face shield. It is unlikely his face would be clearly visible all of the time, because of reflections of light. In that respect, visibility of his facial expressions over a video link would clearly be preferable. It is doubtful in any event that a shield of that kind is what is meant by 'face mask' in para 10(c) of Schedule 4, and in the absence of evidence that such a shield would provide effective protection against infection, it could not be taken to be a proper substitute for a cloth or other surgical face mask that covers the mouth and nose.
25 Speaking of an absence of evidence brings one back to the onus of proof again, but it also takes the analysis to a broader point of general importance. The Chief Justice of this court has published two relevant special measures information notes in response to COVID-19, SMIN-1 and SMIN-4. Each of them emphasises that the court's priority is the health and safety of the community and, in particular, parties, practitioners, judges and staff and the families of all these groups: see SMIN-1 paras 1.2, 2.1, 7.1 and SMIN-4 paras 1.2 and 2.1. It follows from that, and from basic prudence and common sense, that the person in charge of the courtroom arrangements - the judge - should proceed in a precautionary way which does not expose the community, and in particular parties, counsel and court staff to any real risk of infection.
26 Those important requirements in the administration of the court intersect with the requirements of the administration of justice. Regardless of where the onus of proof sits in respect of the latter requirements, the precautionary approach demanded by the situation means that I will not approve arrangements which expose individuals to a risk of infection unless I am satisfied, by medical advice if necessary, that the risk is negligible. So, for example, while it emerged at the hearing to be common ground that Dr Castella has received both doses of a COVID-19 vaccine, there was no evidence of the extent to which this would reduce the risk that he might carry or transmit the virus.
27 In so far as Mr Wilson points to ASIC's apparent omission to seek some more specific modifications to the 14 day quarantine requirement under para 31(b) of the Directions, the requirements of Schedule 4 paras 7 and 10 may be taken to indicate the measures which those responsible for public health in Western Australia consider are necessary when a person is required by an order of a court to attend a court. I do not consider it necessary for ASIC to produce evidence that it has tried and failed to obtain a more specific exemption that would be acceptable to Dr Castella. Mr Wilson drew a contrast between ASIC's efforts and the efforts of the respondents in Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79 (Roberts-Smith (No 10)) to bring Afghan witnesses to Australia, which were significant to Besanko J's decision to permit those witnesses to give evidence by video link: see [60]. But even there, those efforts had not run to their conclusion, and either borne fruit or failed. In particular, visa applications had not yet been made. Besanko J nevertheless proceeded on the basis that the efforts were likely to fail, including on the basis of the advice of a solicitor and migration agent that 'the prospects of success are low', but 'the visa application criteria and the travel ban exemption request are discretionary - we won't know whether the applicants will be successful unless they give the process a try': see Roberts-Smith (No 10) at [15], [16], [60].
28 In my view, the evidence as a whole establishes that it is highly unlikely that Dr Castella could give evidence in person in Western Australia without first undergoing 14 days' quarantine. I will therefore proceed to determine the application on the basis that Dr Castella will be unwilling to give evidence in person in Western Australia and, as I have said, there was no suggestion that while he is outside Australia he can be compelled to do so. That means that until the circumstances of the pandemic change significantly, Dr Castella will not give evidence unless it is by video link.
29 In the course of the application as resolved in ASIC v Wilson (No 1), Mr Wilson raised certain constitutional issues. But he did not press them in relation to the renewed application, as ASIC no longer contends that it is practically impossible for Dr Castella to attend. As the above discussion reveals, the problem is not that the Directions preclude Dr Castella from giving evidence; the problem is that the 14 day quarantine that would be required makes him unwilling to give evidence in person, and he is not otherwise compellable. It is not necessary to resolve any constitutional issues.