Davis v Minister for Health

Tribunal hearing

1. Clause 8 of Sch 3 to the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides for the constitution of the Tribunal in matters under the PH Act: 8 Public Health Act 2010 (1) The Tribunal, when exercising its substantive Division functions for the purposes of section 64 of the Public Health Act 2010, is to be constituted by one Division member who is an Australian lawyer. (2) The Tribunal, when exercising its substantive Division functions for the purposes of section 7, 65 or 66 of that Act, is to be constituted by 3 Division members as follows - (a) 1 presidential member, (b) 1 member who is an Australian lawyer, (c) 1 member who is a registered medical practitioner with experience in public health matters.
2. A "substantive Division function" is defined in cl 1 of Sch 3 relevantly to mean a Division function other than a Division function "exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal". The granting of a stay is an "interlocutory decision" as defined in s 4 of the NCAT Act.
3. The hearing of the stay application was listed for 28 September 2021, and the respondent Minister for Health and the NNSWLHD were notified.
4. There was no appearance by the NNSWLHD. The Minister was represented by counsel at the hearing, and provided written submissions, an affidavit affirmed 27 September 2021 by Ms G Bromwich, and a copy of the decision of the Federal Court in Athavle v State of New South Wales [2021] FCA 1075. The Minister also provided a copy of the Doherty Institute Modelling Report (revised 10 August 2021).
5. Leave was granted by consent for Ms Davis to be represented by an agent, Ms Emma Turner. Ms Davis provided written submissions dated 27 September 2021, in support of her contentions that the facts concerning COVID-19 are different from what is believed by the Minister; the law applies differently from how the Minister applied it; and there is a preferable way for the Minister to exercise his discretion.
6. In that document Ms Davis stated that her application is "to review the merits as well as review the lawfulness" of the PHO, and stated the relief requested in the following terms: 1. A stay is requested to allow the continuance of essential work while the above remains true and before this matter can be heard in totality. I rely upon the income I receive from my work and will need to rely on extended family and social networks to support myself and my two children and one grandchild. 2. If this request is not possible, I request that the suspension from 30 September 2021 be on full salary until the matters are resolved as I am fit and able to work per my substantive contract of employment and believe to unjustly discriminated against. 3. I wish the Tribunal to set aside the Order and send it back to the Minister to reconsider his position in line with this entire application. The harshness of being terminated for a temporaneous virus is not reasonable.
7. At the hearing Ms Davis confirmed that she is seeking an order that she be allowed to continue to work until the substantive review application is resolved, or if she is suspended after 30 September 2021, that it be on full pay until the review application is resolved.
8. At the conclusion of the hearing the application for a stay was refused, with written reasons to follow. These are the reasons for that decision.

Jurisdiction of the Tribunal

1. The Tribunal has jurisdiction in respect of those matters for which legislation, referred to in the NCAT Act as "enabling legislation", has conferred that jurisdiction.
2. Section 30(1) of the NCAT Act provides that the Administrative Decisions Review Act 1997 (the ADR Act) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
3. Section 7(1) of the ADR Act provides that an "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Section 9(1) of the ADR Act provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. …
4. Subject to s 60 of the ADR Act, an application to the Tribunal for an administrative review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision: ADR Act, s 60(1).
5. Section 60(2) gives the Tribunal power to stay the decision or make an order "otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." Section 60(3) lists the matters the Tribunal must take into account when determining whether it is satisfied that is desirable to make an order: (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
6. Section 61 of the ADR Act provides that the Tribunal may not make an order under s 60 unless the administrator who made the decision to which the order would relate "has been given a reasonable opportunity to make submissions in relation to the matter", unless the Tribunal is satisfied that because of the urgency of the case or otherwise, it is not practicable to provide such an opportunity. Under s 62, an order under s60 may be subject to conditions, and any such order has effect until the expiration of any period specified in the order, or until the decision of the Tribunal on the application takes effect.

The Public Health COVID-19 Vaccination of Health Care Workers) Order 2021

1. The PHO was made under s 7 of the PH Act, which provides: 7 Power to deal with public health risks generally(cf 1991 Act, s 5) (1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health. (2) In those circumstances, the Minister - (a) may take such action, and (b) may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences. (3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary - (a) to reduce or remove any risk to public health in the area, and (b) to segregate or isolate inhabitants of the area, and (c) to prevent, or conditionally permit, access to the area. (4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order. (5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order. (6) Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989. (7) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) any action taken by the Minister under this section other than the giving of a direction by an order under this section, (b) any direction given by any such order.
2. The PHO was made on 26 August 2021. As in force until 29 September 2021, and therefore in effect at the date of the application and the hearing of the stay application, the PHO stated: 3 Grounds for concluding that there is a risk to public health It is noted that the basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows - (a) public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), (b) COVID-19 is a potentially fatal condition and is highly contagious, (c) a number of cases of individuals with COVID-19 have recently been confirmed in New South Wales and other Australian jurisdictions, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales, including by means of community transmission, (d) the risk of transmission, including by means of community transmission, of COVID-19 in New South Wales will remain significant and ongoing unless more COVID-19 vaccines are administered. Part 2 Directions concerning vaccination of health care workers 4 Directions of Minister for health care workers to be vaccinated (1) The Minister directs that a health care worker must not do work as a health care worker unless - (a) if the work is done on or after 30 September but before 30 November 2021 - the worker has received at least 1 dose of a COVID-19 vaccine, or (b) if the work is done on or after 30 November 2021 - the worker has received at least 2 doses of a COVID-19 vaccine. (2) The Minister directs that a health care worker must, if required to do so by an authorised person on or after the commencement of this Order, provide vaccination evidence for the worker. (3) Subclauses (1) and (2) do not apply to - (a) a health practitioner who does work as a health care worker in response to a medical emergency, or (b) another person who does work as a health care worker in response to a non-medical emergency, for example, a fire, flooding or a gas leak. 5 Direction of Minister for responsible persons for health care workers The Minister directs that each responsible person for a health care worker must take all reasonable steps to ensure that the health care worker to whom clause 4 applies complies with the directions of the clause. Part 3 Miscellaneous 6 Exemptions (1) Clause 4 does not apply to a health care worker who - (a) is unable, due to a medical contraindication, to receive a COVID-19 vaccine, and (b) presents a medical contraindication certificate for the worker to a responsible person for the worker. (2) The Minister may, in writing and subject to conditions the Minister considers appropriate, exempt a person or class of persons from the operation of this Order if the Minister is satisfied it is necessary to protect the health and well-being of persons.
3. Clause 2 relevantly defines a "health care worker" to mean: (a)A person who does work, including as a member of staff of the NSW Health Service, for any of the following: (i) a public health organisation within the meaning of the Health Services Act 1997, (ii) the Health Administration Corporation, (iii) the Ambulance Service of NSW, …
4. Clause 2 defines "responsible person" for a health care worker to mean, "(a) the person who employs or engages the worker to work as a health care worker".
5. The hearing of the application for an order under s 60 of the ADR Act proceeded on the basis that Ms Davis is a "health care worker" as defined, and subject to the direction in cl 4 of the PHO; and that she does not have an exemption as provided for under cl 6 of the PHO.
6. The Tribunal notes that the PHO was amended on 29 September 2021, to include in cl 4: (1A) Subclause (1) does not apply in relation to work done for a public health organisation, the Health Administration Corporation, the Ambulance Service of NSW or the Ministry of Health under a contract of service or a contract for services if - (a) the work does not involve the provision of a health service, and (b) the person doing the work is not physically present, while doing the work, at premises operated by the public health organisation, Health Administration Corporation, Ambulance Service of NSW or Ministry of Health.
7. That amendment also includes a definition of "health service" in cl 2, that it "has the same meaning as in the Health Services Act 1997".

Applicant's submissions

1. Ms Davis is seeking administrative review of the validity of the PHO, and also the direction by the NNSWLHD to its employees. She submits that the PHO targets health care workers personally, and not the community generally. She is not questioning the Minister's power to make a PHO under s 7 of the PH Act, rather she is challenging the direction made under the PHO. Some decisions under a PHO are reviewable by the Tribunal, and the Tribunal has power to review on the merits whereas a court cannot.
2. Ms Davis submits that COVID-19 cases are not uniformly spread across NSW, and that over 18 months the data has shown that the North Coast of NSW is not susceptible to outbreaks despite some instances of individual, social or family cases which have not spread beyond the carriers. That data disputes the grounds stated in cl 3 of the PHO for the conclusion that there is a risk to public health. Further, international data shows that the vaccination programs are not working, when Israel and India are compared, and the data does not demonstrate that the risk of transmission will remain significant and ongoing unless vaccinations are administered. Ms Davis lives in Ballina on the North Coast where COVID is rare and has not spread, and there have been no COVID deaths in the area. She submits that she is 4.96 times more likely to die from the vaccination that from the virus, citing the Therapeutic Goods Administration (TGA) Database of Adverse Event Notifications for the Pfizer COVID vaccine.
3. Ms Davis submits that lockdowns, mandatory face coverings and mandated vaccinations would not be necessary unless supported by emergency conditions, and point to there being a state of emergency; however no state of emergency has been declared, and if NSW is in a state of emergency then the PHO is not valid under s 7 of the PH Act. Ms Davis submits that the PHO is not proportional as the North Coast has been relatively unaffected, and the PHO mandates experimental, provisionally authorised vaccines.
4. Ms Davis submits that the Minister has not taken into consideration the risk that a highly experienced cohort of health workers will be stood down in regional NSW, resulting in an essential health skills shortage.
5. Ms Davis submits that if a stay is not granted, she will not be able to work and will lose her employment. She has been told by a manager that there will be a short period of leave without pay to organise termination of employment. She has been working for NSW Health since 2004.

Respondent's submissions

1. The Minister submits that while purporting to seek review of the decision contained in the NNSWLHD letter of 14 September 2021, the grounds of review indicate that Ms Davis is in fact seeking review of the directions given under the PHO itself.
2. In addressing the question of the Tribunal's jurisdiction to conduct a review of the directions given under the PHO, the Minister submits that orders made pursuant to the power conferred by s 7(2)(b) of the PH Act may be either administrative in character, that is directed at particular individuals, or legislative in character, that is orders of general application: and the PHO falls within the latter category. Section 7(7) of the PH Act confers administrative review jurisdiction on the Tribunal, and limits that jurisdiction to only certain decisions made under s 7: what is absent from s 7(7) is any conferral of jurisdiction to review the order itself. The legislature was concerned to give the Tribunal review jurisdiction only in respect of directions made in particular cases as opposed to an order containing directions of general application. The authorisation in s 7(7) of "administrative review" under the ADR Act of directions given by such an order suggests that s 7(7) of the PH Act and s 9(1) of the ADR Act were not intended to give the Tribunal jurisdiction to review an instrument of a legislative kind such as the PHO.
3. The Minister submits that it is not necessary for the Tribunal to resolve the proper construction of s 7(7) in this application for an order under s 60 of the ADR, as in any event the Tribunal should not grant the interim relief sought.
4. The Minister submits that the PHO has already taken effect, and there is no power to "stay" the operation of the PHO, relying on AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 73 NSWLR 302 (AVS). Even if there is power to make an order "otherwise affecting the operation" of directions given under the PHO, there is a question as to whether that would empower the Tribunal to "suspend" the operation of the PHO pending the outcome of the proceedings.
5. Suspending the operation of the PHO is not necessary "to secure the effectiveness" of the Tribunal's determination: if the applicant is ultimately successful in the administrative review application then subject to the jurisdictional issue, the PHO would be set aside or varied and she would be relieved of the requirement to obtain a COVID-19 vaccination in order to work as a health care worker. That determination would have real utility for the applicant, and the Minister accepts that in the interim, she would not be able to work as a health care worker. However, that does not undermine the effectiveness of any determination by the Tribunal, there being no reason to think that the fact of being stood down by the NNSWLHD would affect the applicant's ability to resume health care work if the PHO were set aside.
6. The Minister submits that the balance of convenience weighs very heavily in favour of not suspending the PHO, because: 1. The applicant would not suffer irreparable harm if the PHO were to continue in operation while the proceedings are determined; 2. The prejudice to the public interest if the PHO were suspended would be significant and irreparable. The Minister has concluded that a situation has arisen that there is, or is likely to be, a risk to public health, and the Doherty Institute Report includes modelling that demonstrates the effectiveness of vaccination in reducing the spread of COVID-19; and any suspension of the PHO could not be limited to its operation only in respect of the applicant; 3. The applicant was first notified of the PHO by an All Staff Memo on 27 August 2021, and again on 3 September 2021, and no explanation has been provided for the delay in seeking interim relief. That delay has caused prejudice to the respondent including because it means there is now little time to make alternative arrangements to address the public health risk if the PHO is suspended; 4. There is a mechanism available under cl 6 of the PHO for the applicant to seek an exemption from the requirement to obtain a COVID-19 vaccination, and no evidence that she has taken steps to seek such an exemption; and 5. The PHO is a temporary measure, as it is to expire in 90 days under s 7(5) of the PH Act, and the applicant is in substance seeking final relief though for a brief time pending determination of the substantive proceedings.
7. The Minister submits that in the present circumstances where the public interest will be adversely affected if an interim order is made, the applicant needs to show a probability of success, relying on Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 154-155 (Mason ACJ), and Athavle v State of New South Wales [2021] FCA 1075 at [76]. He submits that the applicant has not demonstrated a probability of success, or a serious question to be tried. The Minister submits in response to the stated grounds of review: 1. The PHO applies to all health workers in NSW and prescribes a rule of conduct to be followed, breach of which could sound in penalties, and there was no obligation to afford procedural fairness prior to the making of the order; 2. There has been no declaration of a state of emergency under the State Emergency and Rescue Management Act 1989, and even if one had been made covering the area of the NNSWLHD that would not be a basis for setting aside the PHO; 3. The PHO is not inconsistent with any common law rights of control and self-determination in respect of the body, as it does not mandate vaccination. In any event, common law rights can be limited by statute and s 7 of the PH Act authorises substantial interferences with individual liberties to protect public health from the risks arising from infectious diseases; 4. The Tribunal is not a court of a State and could not adjudicate on any matter arising under or involving the interpretation of the Commonwealth Constitution, and so does not have jurisdiction to determine whether s 51(xxiiiA) of the Constitution which constrains Commonwealth power only affects the validity of the PHO; 5. The TGA has given "provisional registration" to various COVID-19 vaccines, and it is not clear how that status would affect the validity of the PHO; and 6. The direction is sufficiently certain as it makes clear what is required of health care workers by the relevant deadlines.
8. The Minister's written submissions included a submission that to the extent that the applicant's grounds of review allege various errors of law, an application is made for the questions of law raised by the application be referred to the Supreme Court under s 54 of the NCAT Act. There are proceedings already on foot in the Supreme Court challenging the validity of the PHO as well as other proceedings challenging other public health orders. The Tribunal notes that that application was not pressed in oral submissions.
9. In oral submissions the Minister submitted that to the extent that the application challenges the direction notified by the NNSWLHD on 14 September 2021, it is not clear what jurisdiction the Tribunal has to review a decision that the applicant be stood down by her employer without pay. The Tribunal has no jurisdiction to exempt a person from the operation of the PHO.

Jurisdiction of Tribunal

1. As discussed above, at the hearing of the application for an interim order Ms Davis stated that she is seeking administrative review of the legal validity and merits of the PHO, and of the direction to her by the NNSWLHD in the letter dated 14 September 2021. The extent of the Tribunal's administrative review jurisdiction in either respect is relevant both to whether there is power to grant an order under s 60 of the ADR Act, s 60(2) being dependent on there being an "administratively reviewable decision" the subject of an application for review, and also whether an order under s 60 of the ADR Act should be made, on consideration of the applicant's prospects of success.
2. These proceedings concern a public health order made under s 7 of the PH Act. At issue is whether s7(7) of the PH Act confers jurisdiction on the Tribunal for administrative review of either of the decisions as identified by Ms Davis. Section 7(7)(a) confers administrative review jurisdiction on the Tribunal for review of a decision being any action taken by the Minister under s 7 "other than the giving of a direction by an order" under s 7. Section 7(7)(b) confers administrative review jurisdiction for review of a decision that is "any direction given by any such order", that is, an order under s 7.
3. It is not immediately apparent that s 7(7) confers administrative review jurisdiction to review the order itself, rather, the jurisdiction is conferred in relation to certain "action" by the Minister, and "any direction given by" an order made under s 7. Under the PHO the Minister has given directions, first, in cl 4, to any person who is "a health care worker" not to work, and to provide vaccination evidence, and secondly, in cl 5, to the "responsible person" for a health care worker to take reasonable steps to ensure that that worker complies with cl 5. It is not clear how paras (a) and (b) of s 7(7) apply to the former, or how para (b) of s7(7) confers administrative review jurisdiction on the Tribunal to review action taken by the NNSWLHD as the employer of the applicant.
4. The Tribunal was of the view that it was not necessary to resolve the question of the proper construction of s 7(7) of the PH Act, concluding that in any event an order under s 60 of the ADR Act should not be made.

Legal principles

1. The Appeal Panel has summarised the principles relevant to stays and other orders under s 60 of the ADR Act in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113: 31. The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]: "… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. …" 32. The relevant considerations in deciding whether to make an order under s 60(2) include: (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2); (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4]; (c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. 33. The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.
2. In AVS the Court of Appeal held that it was relevant, when determining whether a stay was appropriate, to take into account not only whether there was any practical point in reviewing the decision if a stay was not granted, but also the likelihood that the decision will be affirmed and the correct decision will not have been implemented for some time. The Court held: 129. …There is an express statutory power for the Tribunal to grant or refuse a stay or other order "as it considers appropriate to secure the effectiveness of the determination of the application." In other words, the purpose of granting a stay or other order is connected with the determination of the application. "[S]ecur[ing] the effectiveness of the determination of the application" involves matters such as ensuring that the lapse of time before the determination is actually made does not deprive the review of practical point. It also involves considering the possibility that the result of the review might be that the decision is affirmed, with the consequence that if a section 60(2) order is granted the decision that the review ultimately decides was correct has not been implemented during the period of the section 60(2) order.

Whether an order is appropriate to "secure the effectiveness of the determination of the application"

1. Ms Davis submitted that if an order is not made, she will be placed on leave without pay for a short period, and her employment would be terminated if she is not vaccinated by 30 September 2021.
2. The Tribunal has had regard to the communications to all NNSWLHD staff by the Acting Chief Executive of the NNSWLHD on 27 August 2021 informing staff of the PHO, and the COVID-19 Update of 3 September 2021, provided with the application for review. The former states that the PHO "establishes mandatory requirements for health staff…to be vaccinated with a COVID-19 vaccine…". The latter states that if any worker has not received their first COVID-19 vaccine by 30 September 2021, "they will be placed on leave without pay on 1 October"; that affected staff will be contacted within the next week after 1 October and "we expect the period that staff can remain on leave without pay will be relatively short"; and that unvaccinated staff "will not be able to access accrued leave entitlements after 30 September". The letter addressed to Ms Davis dated 14 September 2021 included the statement extracted at [2] above.
3. An all staff email dated 24 September 2021 from the Acting Chief Executive of the NNSWLHD states that "being vaccinated against COVID-19 is a mandatory employment condition for working within NSW Health", and "You must have received your first dose by 30th September unless you have submitted the required medical contraindication form".
4. In a further email sent to the Tribunal after the hearing Ms Davis stated that she had had a discussion with her manager on 22 September 2021 in which she was informed that after 30 September 2021 she would be on leave without pay for approximately 1 week while they process separation paperwork.
5. Taking that evidence at its highest, and noting the Minister's objection to the form in which it was provided, the Tribunal accepts that the notifications from the NNSWLHD on 3 September 2021 and 14 September 2021, and the reference in the email of 24 September 2021 to vaccination being "a mandatory employment condition", establish that in the absence of an interim order Ms Davis would be placed on leave without pay from 30 September, the period of which is not specified, and with a prospect of having her employment terminated if she cannot meet a mandatory employment condition.
6. The Tribunal accepts that if Ms Davis is without income from her employment as a nurse after 30 September 2021, there would be an irreparable loss to her for which she would not be recompensed even if her application for review is successful. There is, however, no evidence as to whether Ms Davis has sought an exemption under cl 6 of the PHO from the application of cl 4.
7. On the limited evidence available, the Tribunal accepts that Ms Davis is an experienced enrolled nurse of several years standing as an employee of the NNSWLHD. The Tribunal agrees with the Minister that there is no indication on the available evidence that Ms Davis could not be re-employed if her application for review is successful and should her employment be terminated in the meantime. To that extent the lapse of time would not deprive the administrative review of any practical point.

Section 60(3)(a): interests of any persons affected

1. The Tribunal accepts that the interests of Ms Davis will be affected if she is unable to work and without income after 30 September 2021, and having to rely on support from extended family and friends.
2. The Tribunal also accepts that to the extent that Ms Davis is prevented from working as a nurse during the period before the application is determined, there would be the loss of an experienced health care worker in a regional area.
3. The interests of persons who may be affected also includes patients and fellow health care workers, and the community generally, who may be exposed to a higher risk of transmission of COVID-19 by the presence of an unvaccinated health care worker. While Ms Davis' position was that there has been no instance of transmission by a health care worker in Northern NSW, she accepted that transmission has occurred elsewhere in NSW in health care settings.

Section 60(3)(b): submission made by the administrator

1. The Minister opposed the grant of a stay or other order under s 60, for the reasons summarised above. The Tribunal has not had the benefit of any submissions by the NNSWLHD.

Section 60(3)(c): the public interest

1. The Minister submits that the prejudice to the public interest if an order is made would be significant, and irreparable, having regard to the grounds on which the Minister has stated in the PHO that he is satisfied that a situation has arisen that is or is likely to be a risk to public health; the modelling in the Doherty Report which demonstrates the effectiveness of vaccination in reducing the spread of COVID-19; and the particular risks arising from unvaccinated health care workers including to patients and other health care workers.
2. Ms Davis disputes the basis on which the Minister has made the PHO, pointing to a lack of spread of COVID cases in the North Coast of NSW and low fatality rates for people under 60; experience of outbreaks of COVID overseas despite high vaccination rates; and risks of the vaccine which has only provisional authorisation and which is an invasive medical intervention.
3. The public interest is a mandatory consideration, and as discussed in AVS, that consideration is guided by the objects of the PH Act. Those objects include under s 3(1) to promote, protect and improve public health, to control the risks to public health, to promote the control of infectious diseases, and to prevent the spread of infectious diseases. Under s 3(2) of the PH Act, protection of the health and safety of the public is the paramount consideration in the exercise of functions under the Act. The grounds on which the Minister concluded that a situation has arisen that is or is likely to be a risk to public health include that COVID-19 is a potentially fatal condition and highly contagious, there is an ongoing risk of continuing introduction or transmission of the virus in NSW, and the risk of transmission including by community transmission will remain significant and ongoing unless more COVID-19 vaccines are administered.
4. The Tribunal finds, on the basis of the affidavit of Ms Bromwich (admitted without objection), that the COVID-19 vaccines presently available, namely the Pfizer vaccine and the AstraZeneca vaccine, are provisionally registered in the Australian Register of Therapeutic Goods, and can lawfully be supplied in Australia, the former for individuals aged 12 years and over and the latter for individuals aged 18 years and over.
5. The Doherty Institute Modelling Report provides estimates of vaccine effectiveness for those vaccines, against overall (asymptomatic and symptomatic) infection (Table S2.1); against onward transmission to household members in case of breakthrough infections in vaccine recipients (Table S2.2); overall reduction in transmission for the Delta variant (Table S2.3); and against symptomatic disease, hospitalisation, ICU admission and death for the Delta variant (Table S2.5). For the Pfizer vaccine, for which Ms Davis states that at the age of 45 she is eligible, there is a 79% reduction in the chance of infection at two doses; up to 65% reduction against onward transmission at two doses; a 93% overall reduction in transmission for the Delta variant; and reduction of hospitalisation, ICU admission and mortality ranging between 87%-92% at two doses.
6. On the available evidence the Tribunal is satisfied that the public interest points strongly against the making of an order that would permit an unvaccinated health care worker to continue to engage in health care work, at a higher risk of becoming infected herself and transmitting COVID-19 and thereby putting the health of her patients and fellow health care workers at risk, in circumstances where the Minister has exercised powers conferred for the protection of the health and safety of the public.

Prospects of success

1. As framed in the application for review, the grounds of review appear to be modelled on those applicable under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Tribunal proceedings are not judicial review proceedings, rather administrative review proceedings, where the Tribunal's power is that conferred by s 63 of the ADR Act. The task of the Tribunal is to decide what is the "correct and preferable decision" having regard to any relevant factual material and the applicable law.
2. The grounds as framed do not, on a preliminary basis, support a view that there are strong prospects of success in respect of the challenge to the validity of the PHO. On the available evidence, and in the absence of any submissions on behalf of the NNSWLHD, the Tribunal is unable to assess the prospects of success of the review sought of the decision notified on 14 September 2021.

Conclusion

1. The Tribunal accepts that in the absence of an interim order being granted, if Ms Davis is stood down on leave without pay she will lose money which she will not be able to recover if her application for review is successful. That is a significant prejudice to her. However, that prejudice is outweighed by the public interest considerations reflected in the making of the PHO in the exercise of the powers conferred under the PH Act. The Tribunal concludes that on balance, the public interest requires that an interim order be refused.
2. The question of the Tribunal's jurisdiction needs to be further considered in light of the clarification provided by the applicant as to the decisions in respect of which administrative review is sought, and in order to engage the NNSWLHD in that consideration. At the conclusion of the hearing directions were made for submissions on jurisdiction, and for the making of any application for summary dismissal, to be heard on 11 October 2021.

ORDER

1. The order of the Tribunal is: 1. The application made on 23 September 2021 by Danielle Davis for a stay of the deadline of 30 September 2021 in Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2021