Davis v Minister for Health

NCAT Appeal Panel|2022-02-11|Before: Armstrong J

rative and Equal Opportunity Division Citation: [2021] NSWCATAD 310 Date of Decision: 25 October 2021 Before: L Pearson, Principal Member File Number(s): 2021/271978

REASONS FOR DECISION

The question raised in this appeal is whether s 7 of the Public Health Act 2010 (NSW) permits a person to seek administrative review in the New South Wales Civil and Administrative Tribunal (NCAT) of directions given by the NSW Minister for Health and Medical Research, the effect of which were to prohibit a "health care worker" who had not received a COVID-19 vaccine by a specified date, from undertaking health care work in NSW.
In the decision under appeal, the Tribunal decided that NCAT does not have power to review the impugned directions: Davis v Minister for Health [2021] NSWCATAD 310. As we explain below, we disagree with that conclusion.
Our decision relates solely to the question of whether NCAT has authority to determine an application for review of the impugned directions and not the merit of those directions. The question of whether the decision by the Minister to make those directions was the "correct and preferable decision" will be determined by a Tribunal of NCAT.

Background to appeal

Throughout 2020 and 2021, NSW Minister for Health and Medical Research, the Honourable Bradley Hazzard (the Minister) made a series of orders under s 7 of the Public Health Act in response to the COVID-19 pandemic. This appeal concerns one of those orders, the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (the PHO), made by the Minister on 26 August 2021 and now repealed.
By cl 4(1) of the PHO, the Minister directed health care workers not to do work as a health care worker unless: 1. if the work was done on or after 30 September 2021, the worker had received at least one dose of a COVID-19 vaccine, or 2. if the work was done on or after 30 November 2021, the worker had received at least two doses of a COVID-19 vaccine.
That direction (the vaccination direction) did not apply to health care workers who were unable to receive a COVID-19 vaccine because of a medical contraindication and who presented a "medical contraindication certificate": cl 6(1) of the PHO.
In a letter dated 14 September 2021, a director of the Northern NSW Local Health District (the NNSWLHD) notified enrolled nurse, Ms Danielle Davis, that as a consequence of the PHO, she would not be permitted to continue to work at Ballina Hospital unless, by 30 September 2021, she provided evidence of having received at least one dose of a COVID-19 vaccine, or a medical contraindication certificate. Ballina Hospital is operated by the NNSWLHD.
When she failed to provide evidence of having received a COVID-19 vaccine or a medical contraindication certificate, the NNSWLHD suspended Ms Davis' employment.
Her employment was later terminated (on or about 8 December 2021) on the basis of her continued failure to meet the vaccination requirements outlined in public health orders and a determination made by the Health Secretary under s 116A of the Health Services Act 1997 (NSW) fixing conditions of employment. By the time that her employment was terminated, the PHO the subject of consideration in this appeal had been rescinded and replaced by the Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021. That order essentially contained the same vaccination requirements for a health care worker in the position of Ms Davis as the earlier order, the PHO. The s 116A determination (being Determination No 33 of 2021), in force from 12 November 2021, required relevant NSW Health Service employees (including Ms Davis) to comply with vaccination requirements in order to be employed, or to remain employed.
On 23 September 2021, Ms Davis applied to NCAT seeking administrative review of several decisions made by the Minister and the NNSWLHD. Those decisions included the vaccination direction.
The Minister, in turn, applied to NCAT for summary dismissal of the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), contending that the Tribunal did not have jurisdiction to "review the PHO". On 25 October 2021, following a hearing, the Tribunal dismissed the proceedings concluding that s 7(7) of the Public Health Act did not give the Tribunal jurisdiction to review: 1. the making of the PHO … or the giving of direction by that order: Davis v Minister for Health at [63], and 2. the actions taken by the NNSWLHD in informing Ms Davis of the vaccination direction and the consequences of non-compliance with that direction: Davis v Minister for Health at [64]-[66].
Ms Davis now appeals from the Tribunal's decision. She contends that in exercising the power to dismiss the proceedings the Tribunal failed to consider, or to properly consider, the terms of s 7(7)(b) of the Public Health Act. She contends that the vaccination direction falls squarely within the scope of s 7(7)(b) of the Public Health Act.
The Minister opposes the appeal. The Minister contends that the conclusion reached by the Tribunal was correct, but for reasons different to those given by the Tribunal.

Statutory framework - administrative review jurisdiction

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 the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, s 9(1). "Enabling legislation" is defined by s 4(1) of the ADR Act to mean "legislation which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters". "Administrator", in relation to an administratively reviewable decision, is defined to mean "the person or body that makes the decision under enabling legislation": ADR Act, s 8.
An application for an administrative review under the ADR Act of an administratively reviewable decision may only be made by an "interested person": ADR Act, s 55(1).
The ADR Act defines "decision" to include making an order (s 6(1)(a)), giving a direction (s 6(1)(b)) and "doing … any other act or thing" (s 6(1)(g)). 6 Meaning of "decision" (1) General meaning A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing.
The Public Health Act is the enabling legislation which is the subject of this appeal. Contained in Part 2 ("General public health"), s 7(7) of that Act provides that an application may be made to NCAT for an administrative review under the ADR Act of any of the decisions referred to in para (a) and para (b) of s 7(7). Because it is relevant to the determination of this appeal, we set out the text of s 7 in full: 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. (Emphasis added.)
Also contained in Part 2, ss 8 and 9 of the Public Health Act give the Minister power to deal with specific public health risks: public health risks during a state of emergency (s 8), and public health risks arising from an act or omission of a public authority (s 9).
Section 10 of the Public Health Act makes it an offence for a person who is subject to and has notice of a direction under ss 7, 8 or 9 to fail to comply with that direction without reasonable excuse.

The PHO

The PHO was made on 26 August 2021 and was repealed on 22 October 2021. [1]
Notwithstanding the repeal of the PHO, the Minister conceded (correctly, in our view) that there remains utility in the appeal. It could not be said that reaching a decision about the proper construction of s 7(7)(b) of the Public Health Act has "no practical consequences for either of the parties": see e.g. Jardin v Metcash Ltd (2011) 214 IR 448; [2011] NSWCA 409 at [35].
Clause 4 of the PHO, which is central to this appeal, states: 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.
"Health care worker" was defined by cl 2 to include "a person who does work, including as a member of staff of the NSW Health Service", for "a public health organisation within the meaning of the Health Services Act 1997".
COVID-19 vaccine was defined as "a vaccine approved by the Therapeutic Goods Administration of the Commonwealth for use as a vaccine against COVID-19": PHO, cl 2(1).
Under cl 4(2), if required to do so by an "authorised person", a health care worker, must provide evidence of vaccination: cl 4(2). Clause 2(1) defined an "authorised person" to mean a "responsible person" for a worker, and a person authorised by a responsible person. "Responsible person" in turn was defined to include the person who employs or engages the worker to work as a health care worker, and a person who exercises employer functions for the person who employs the worker to work as a health care worker: PHO, cl 4(2).
Clause 6 dealt with exemptions. By cl 6(1) , cl 4 did 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.
A "medical contraindication certificate" was defined to mean "a certificate issued by a medical practitioner (a) in a form approved by the Chief Health Officer, and (b) certifying that because of a specified medical contraindication, the worker to whom the certificate has been issued cannot have a COVID-19 vaccine": PHO, cl 2(1).
By cl 5, the Minister directed 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".

Identification of the administratively reviewable decision

In the initiating application made to NCAT (the Application), Ms Davis failed to identify with precision the decision(s) that she was requesting NCAT to review. In the decision under appeal, the Tribunal noted that in the course of the proceedings Ms Davis said that she was seeking administrative review of the "legal validity and merits of the PHO and administrative review of the decision of the NNSWLHD notified in the letter dated 14 September 2021": at [4]. In determining the Application, the Tribunal proceeded on the basis that Ms Davis was seeking review of: 1. the "legality and merits" of the PHO; 2. the directions in cll 4 and 5 of the PHO (the impugned directions); and 3. the actions taken by the NNSWLD in relation to Ms Davis, said to be taken in compliance with cl 5 of the PHO.
Pointing out that Ms Davis was not legally represented in the proceedings before the Tribunal, counsel for Ms Davis in the appeal, Ms Conte-Mills, stated that Ms Davis had abandoned the claim that s 7(7) of the Public Health Act permitted NCAT to review the PHO itself and the actions taken by the NNSWLD.
We proceed on that basis.
With the consent of both parties, we removed the NNSWLD as a party to this appeal.

Right to appeal

A party has a right to appeal to an Appeal Panel of NCAT against an "ancillary decision" of the Tribunal as of right on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act. In contrast, a party requires leave of the Appeal Panel to appeal from an "interlocutory decision" of the Tribunal.
The Minister contended that the decision under appeal was in the nature of an interlocutory decision but did not oppose Ms Davis being given leave to appeal.
Section 4 of the NCAT Act gives the following definitions of "ancillary" and "interlocutory" decisions: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - ... (h) the summary dismissal of proceedings, ….
After deciding that it lacked jurisdiction to determine the Application, the Tribunal proceeded to exercise the power to dismiss the proceedings under s 55(1)(b) of the NCAT Act on the grounds that the proceedings were misconceived. The first of these decisions is plainly "preliminary to, a decision determining proceedings" and, therefore, an ancillary decision.
In AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [127], [128], Basten JA observed that the definitions of ancillary and interlocutory decisions in the NCAT Act, were "potentially confusing". His Honour concluded at [127] that the refusal of a summary dismissal application, even if based on lack of jurisdiction, is "almost certainly an interlocutory decision". (See also Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 at [23]-[26].)
Where, as here, the ultimate decision is to grant a summary dismissal application, that decision self-evidently "concerns … the summary dismissal of proceedings". We think that the Tribunal's decision is best characterised, for the purposes of the NCAT Act, as an "interlocutory decision". It follows that leave is required, notwithstanding that the sole question raised by the appeal ─ what is the proper construction of s 7(7) of the Public Health Act ─ is a question of law.
As acknowledged by the Minister, while the PHO is no longer in force, the proper construction of s 7(7) is nonetheless a question of public importance given the ongoing nature of the COVID-19 pandemic and the continued operation of other public health orders made under 7 of the Public Health Act.
For these reasons we grant Ms Davis leave to appeal.

Ms Davis' submissions

Ms Davis does not challenge the conclusion reached by the Tribunal that s 7(7)(a) of the Public Health Act does not give her a right to apply to NCAT for administrative review of the impugned directions.
However, Ms Davis contends that the Tribunal erred by overlooking s 7(7)(b), which provides that a person may apply to NCAT for administrative review of "any direction given by any such order".
Ms Davis argues that the class of decisions the subject of the carve out in s 7(7)(a) "any action taken by the Minister under this section other than the giving of a direction by an order under this section" and those the subject of s 7(7)(b), "any directions given by any such order", are not one and the same thing. She contends that the manifest intention of s 7(7) is to distinguish between "actions" and "directions". Ms Davis contends that s 7(7)(a) is a reference to the act of giving a direction by an order (a verb), while s 7(7)(b) is a reference to the subject direction itself (a noun).
Applying that construction, Ms Davis contends that the impugned directions fall squarely within s 7(7)(b).

Minister's submissions

The Minister contends that, despite disavowing it to be her intention, Ms Davis in fact is seeking administrative review of the PHO itself.
The Minister contends that s 7(7) of the Public Health Act does not permit administrative review of either the PHO or the impugned directions. In support the Minister relies on the arguments outlined below.
First, the text of s 7(7) which provides that an application may be made to the Tribunal for administrative review "of any of the following decisions" (emphasis added). The Minister argues that those words indicate that s 7(7) is intended to select certain decisions out of "the universe of decisions" the Minister may make under s 7.
The Minister contends that it would have been simple enough for s 7(7) to provide that the Tribunal may review any decision made under s 7, that is, all "actions" and "orders". Instead, s 7(7) by its terms permits the Tribunal to review the following: 1. any "action" taken by the Minister (other than the giving of a direction by an order under s 7): s 7(7)(a), and 2. any "direction" given by any order under s 7: s 7(7)(b).
The Minister contends that it is significant that the language of s 7(7)(a) ("any action taken by the Minister under this section") mirrors that used by s 7(2)(a) ("the Minister…may take such action"). In contrast, the language used by s 7(7)(b) ("any direction given by any such order") does not mirror s 7(2)(b) ("the Minister … may by order give such direction"). The Minister contends that this deliberate choice of language indicates that s 7(7)(b) does not give the Tribunal jurisdiction to review "orders", only "directions" made under the orders.
Second, the carve out in s 7(7)(a) expressly provides that the Tribunal does not have jurisdiction to review "the giving of a direction by an order".
Third, pointing to the conclusion reached by the Tribunal at [62], the Minister contends that the impugned directions are the "primary if not the sole function of the PHO". In substance if not form, the impugned directions are the substance of the order made by the Minister in exercise of the power conferred by s 7(2)(b). Without the impugned directions, the remaining provisions of the PHO would have "no work to do".
Finally, the construction advanced by the Minister is consistent with the following passage from the NSW Health's Consultation Paper on the Draft Public Health Bill 2010. Referring to the predecessor to s 7(7) (s 40 of the Public Health Act 1991 (NSW)), the report stated (at pp 7,8): "In accordance with section 40, the actions taken by the Minister and the directions given by the Minister under a section 5 order are reviewable in the Tribunal. However, the decision to make an order giving directions is not reviewable by the Tribunal." (Emphasis added.)
Referring to the comment made by the Tribunal at [57], that the Consultation Paper (and the subsequent Consultation Report) were of "limited assistance" in ascertaining the meaning of s 7(7), the Minister accepts that because neither document was laid before Parliament, they carry lesser weight than if had they been. (Section 34(2) of the Interpretation Act 1987 (NSW) contains a non-exhaustive list of material that may be considered in the interpretation of a provision of an Act, where permitted by s 34(1) of that Act and includes "any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made" (emphasis added).) However, the Minister contends the type of extrinsic material a decision-maker may consider in the interpretation of a provision of an Act, if permitted by s 34(1) of the Interpretation Act, is not limited to the material listed in s 34(2). Rather a decision-maker is permitted to consider material if it is "capable of assisting'' in ascertaining the meaning of a statutory provision: Interpretation Act, chapeau to s 34(1).
In the alternative, the Minister contends that, properly construed, s 7(7) confers jurisdiction on the Tribunal to review directions of an administrative not a legislative nature. The Minister contends that the PHO, and seemingly by implication, the impugned directions contained in that order are of a legislative nature and therefore not subject to review by the Tribunal.

Examples of "directions" potentially falling within s 7(7)(b) of the PHO

In answer to a question we raised in the hearing of the appeal, the Minister advised that he was unable to identify a public health order that contains a direction of a kind that, in his view, potentially falls within s 7(7)(b). In submissions filed with leave after the hearing of the appeal, the Minister gave the following hypothetical examples of the type of directions that might fall within s 7(7)(b): 1. a direction that, if set aside, would not effectively set aside the public health order and was administrative in nature, e.g. a direction that applies to a particular person which directs that person to take certain steps; 2. a direction that a particular person take certain steps to address a public health risk arising on the person's property, provided that the relevant public health order included other directions and was administrative in nature.
Ms Davis submits that if the Minister's contention about the limited type of directions that potentially fall within s 7(7)(b) were to be accepted, it would confound the clear legislative intent that a person may apply to NCAT for administrative review of "any directions given by such order". Ms Davis contends that the hypothetical examples posited by the Minister would enable the Minister to avoid administrative review by drafting public health orders which contained a single direction or co-dependent directions.
With respect to the second example given by the Minister, Ms Davis contends that it is "inconceivable" that a public health order made under s 7(2) of the Public Health Act would be directed at a particular individual rather than a class of persons. Ms Davis points out that s 7 is contained in Part 2 (General Public Health), which, as its title suggests, concerns general public health. Ms Davis contends that it is inconceivable that the Minister would use s 7(2) to make a direction aimed at a particular individual, in circumstances where Division 4 of Part 4 (Public Health Orders for Category 4 And 5 Conditions) of the Public Health Act, specifically s 62, permits the making of public health orders which are directed at named individuals.

Decision under appeal

At [61], [62] the Tribunal set out the basis for its conclusion that s 7(7) did not permit Ms Davis to seek administrative review of either the PHO and the impugned directions: "61 The function of determining the legal validity of the PHO is, as confirmed in Kassam; Henry at [68], for the Supreme Court to discharge, and not this Tribunal. The Tribunal is not persuaded that s 7(7) confers administrative review jurisdiction on the Tribunal to review the order itself: rather, any such jurisdiction is conferred by s 7(7) of the PH Act in relation to "action" by the Minister, and "any direction given by" an order made under s 7. 62 Ms Davis submits that the Tribunal has jurisdiction to review the actions taken by the Minister and the directions given under the order. However, s 7(7)(a) excludes from the administrative review jurisdiction otherwise conferred in relation to action taken by the Minister "the giving of a direction by an order" 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 4. The giving of those directions is the primary if not the sole function of the PHO; and administrative review of the giving of any of those directions by order is expressly excluded by s 7(7)(a)." (Emphasis added.)

Consideration

The question posed by this appeal is whether s 7(7) permits a person to seek review in NCAT of the impugned directions. In answering that question, we must construe s 7(7) by reading its text in light of its context and purpose: Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 at [39], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].
Several aspects of the operation of s 7 are uncontroversial. First, the PHO is an order made by the Minister in exercise of the power conferred by s 7(2)(b) of the Public Health Act. Second, the expression "any such order" in s 7(7)(b) refers back to the expression "an order under this section" in s 7(7)(a), which in turn refers back to the power given by s 7(2)(b) to the Minister to "by order give such directions". Third, s 7(7) does not permit a person to apply to NCAT for review of an order made under s 7(2)(b), relevantly, the PHO.
The stated objects of the Public Health Act in s 3 do not assist in the task of construing s 7(7). They are too general to support a conclusion that either the Minister's or Ms Davis' preferred construction would better achieve those objects than the other: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]-[6]. Neither party suggests otherwise.
The text of s 7(7)(b) - "any direction given by any such order" (emphasis added) - would appear to support Ms Davis' preferred construction. The use of the words "any direction" indicates that the provision should be read broadly, qualified only by the requirement that the direction be "given by any such order", namely an order made under s 7(2)(b).
The primary argument advanced by the Minister is that, the impugned directions are in substance "orders" and s 7(7) permits review of "actions" and "directions", but not "orders".
In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, Beech-Jones CJ at CL considered, at [20], the distinction between an "action" and the "giving of directions by order" under s 7(2) of the Public Health Act: "[T]he power conferred on the Minister by s 7(2) is to take "action" and "by order give direction". The concept of "action" appears to refer to some specific step. Given that s 10 does not engage with "action" it seems unlikely that "action" includes any form of prohibition. …"
As the Minister points out, the impugned directions are central to the operation of the PHO. If cll 4 and 5 were removed from the PHO, the remaining clauses would have no work to do because they are ancillary or incidental to cll 4 and 5. The PHO is divided into three parts. Part 1 ("Preliminary") contains the name of the PHO (cl 1), definitions (cl 2) and "grounds for concluding that there is risk to the Public" (cl 3). Part 3 ("Miscellaneous") contains a single clause, cl 6, which provides that cl 4 does not apply to a health worker who, due to a medical contraindication is unable to receive a COVID-19 vaccine and presents a medical contraindication certificate. The impugned directions (cll 4, 5) are contained in Part 2 ("Directions concerning vaccination of health care workers").
Does it follow, however, that because, as the Minister contends, the impugned directions "represent the entire substance of the public health order", that they fall outside the scope of s 7(7)(b)?
There are several difficulties with this argument.
First, if correct, the Minister's preferred construction appears to require that the impugned directions be characterised as both directions and orders. That the impugned directions are directions for the purpose of s 7 is evident by, for example, the interaction between s 7 and s 10. Section 10 makes it an offence for a person who "is subject to a direction under s 7" and has "notice of [that] direction" (emphasis added) to fail to comply with the direction without reasonable excuse. While not fatal to the Minister's construction, the dual characterisation of the impugned directions tends to support Ms Davis' preferred construction.
Second, as Ms Davis points out, the Minister's construction would lead to the arguably anomalous result of excluding from review directions which "represent the entire substance of the public health order", but permitting review of orders which could not be so described. That construction would permit a person to seek review of a direction, providing that that direction was but one of several directions contained in an order, and not co-dependent with those directions. On the other hand, the Minister's construction would not permit review of a direction where that direction was the only direction contained in an order, or co-dependent with other directions within that order.
Applying the Minister's construction, the "enforcement" direction in cl 5 of the PHO ("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 [cl 4]") would appear to be reviewable. This is because cl 5 could not be said to "represent the entire substance of the public health order". If cl 5 were to be removed, the PHO arguably would be less effective in achieving its evident purpose - to ensure that only vaccinated health care workers undertake health care work. Nonetheless, it could not be said that cl 4 would have no work to do. Clause 4 would operate to direct health care workers not to undertake health care work unless they had received a COVID-19 vaccine by the nominated date. Section 10 of the Public Health Act in turn would make it an offence for health care workers not to comply with that direction.
Section 7 of the Public Health Act does not confer jurisdiction on the Tribunal to review the Minister's decision to make orders under that Act. So much is clear from s 7(7)(a). The Minister's power to make such orders is very wide. Providing that the Minister "considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health", s 7(2) permits the Minister to take such action, and by order give such directions, as the Minister "considers necessary to deal with the risk and its possible consequences".
The width of the power to make orders is illustrated by s 7(3), which enables the Minister, among other things, to declare parts of the State to be a public health risk area and, in that event, to make various kinds of directions the Minister considers necessary. Such directions may be intended "to reduce or remove risks to public health" in the declared area (s 7(3)(a)); "to segregate or isolate inhabitants of the area" (s 7(3)(b)); or "to prevent, or conditionally permit, access to the area" (s 7(3)(c)).
This compendium of possible directions that a Minister may make under an order made under s 7(2)(b) demonstrates the clear distinction that the legislature drew between orders and directions. The power to make orders is a general power. Under s 7 the Minister, in a single order, could make, as the Minister put it, "a universe of decisions" - that is, directions. Or, as in the case before us, a small number of sharply focussed ones.
The making of an order under s 7 is a three-stage process. The Minister must first "consider" on "reasonable grounds" that a situation has arisen that is, or is likely to be, a risk to public health. Second, the Minister must exercise the discretion to address that risk "by order" giving such directions the Minister "considers necessary to deal with the risk and its possible consequences". Third, the Minister must decide the specific content - meaning the directions - of that order.
Section 7(7) does not permit administrative review of the general decision-making power of the Minister. It permits administrative review of the specific directions given in the exercise of that power. In short, s 7(7)(b) appears intended to temper the Minister's very wide (and necessary) powers by making specific directions reviewable on their merits. The Tribunal cannot review the Minister's decision to make a public health order. It is the detailed directions made under that order that come within the Tribunal's jurisdiction.
We agree with the Minister that it is necessary to construe s 7(7) by reading it in light of its context and purpose. In our view, the fact that an order made under s 7(2) contains one or many directions does not alter the clear meaning of s 7(7). It is evident that the legislature intended directions to be reviewable under s 7(7)(b). The context and purpose of s 7(7) is to enable the Minister to exercise broad power to protect a risk to the public, but not in an unfettered or unaccountable way.
We do not agree with the Minister's submission that to seek review of the impugned directions "would … in substance, be seeking review of the order itself". That argument conflates the second and third step of the making of a public health order. Further, if this submission is accepted, as Ms Davis points out, it would quarantine from administrative review a direction which was the only direction contained in a public health order, or, co-dependent on other directions contained in that order. At the same time, it would permit review of a direction, providing it was one of several directions contained in the subject public health order, and it was not co-dependent with those directions. This would be an absurd result and contrary to the language of s 7(7)(b), which permits an application to be made to NCAT "for an administrative review of … any direction given by any such order" (emphasis added).
The Minister contends that if Ms Davis' construction is adopted it would lead to the anomalous result of requiring the Tribunal to engage in a "broad polycentric inquiry" and to decide the merit of the impugned directions which affect thousands of health care workers. In addition, that construction would result in several unintended consequences, including: 1. requiring the Minister to notify all health care workers in NSW of his decision to make the impugned directions and their review rights under s 7(7) of the Public Health Act (ADR Act, s 48(1)); 2. giving every health care worker in NSW, the right to request review of the impugned directions (ADR Act, s 49(1)).
The Minister points out that if Ms Davis' construction is adopted, the right of review given by the ADR Act would not be confined to health care workers but would extend to any "interested person" and may include patients.
While a powerful argument, the Minister's construction would require reading additional words into s 7(7)(b) (inserted words in italics): "any directions given by any such order providing that it did not represent the entire substance of that order".
A court or tribunal may imply words into a provision where necessary to ensure that the provision does not give rise to an anomalous result or manifestly contradict its apparent purpose. In Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531 (Taylor) the majority (French CJ, Crennan and Bell JJ) considered the principles that apply where a party contends that a statute should be read as if it contained additional words: "37 Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction 'reads up' a provision, giving it an extended operation, or 'reads down' a provision, confining its operation, may be moot. 38 The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which it 'too big, or too much at variance with the language in fact used by the legislature'. (citations omitted)"
The majority in Taylor concluded at [39] that it was "unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient". According to Lord Diplock, satisfaction of the following conditions was necessary to imply words into a statute: (1) that it is possible to determine from consideration of the provisions of the Act read as a whole precisely what the mischief was that it was that the purpose of the Act to remedy, (2) satisfaction that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve that purpose, and (3) the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted. (Jones v Wrotham Park Settled Estates [1980] AC 74, as reformulated by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.)
In our view to read into s 7(7)(b) the words set out at [80] above is not justified for these reasons.
First, we are not confident that the legislature intended to give s 7(7)(b) the narrow meaning the Minister urges us to adopt. That meaning is not evident from either the text of s 7(7) or the statutory scheme.
Nor in our view is it evident that the Minister's preferred construction is supported by the passage from the NSW Health Consultation Paper, set out at [52] above. At best that passage is equivocal. Indeed, that passage tends to support Ms Davis' preferred construction that s 7(7) operates to give a person the right to seek review in NCAT of a direction given by the Minister under an order made under s 7(2), but not the decision to make an order giving directions.
Second, to imply into s 7(7)(b) the additional words set out at [52] in our view would be "too much at variance with the language in fact used by the legislature": Taylor at [38] (citations omitted).

Administrative v legislative character

In the alternative, the Minister contends that the impugned directions are of a legislative character and s 7(7) confers jurisdiction on NCAT to review decisions which are of an administrative character.
In support of that argument the Minister repeats many of the arguments he made in the proceedings below. They include that applying the indicia of a "legislative decision", formulated by the Federal Court in RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855, leads to the conclusion that the PHO is legislative in character, because: 1. it is directed to a large class of persons, namely all health care workers in NSW; 2. it sets down a rule of conduct of prospective application, that is health care workers cannot do work as a health care worker unless certain conditions are met; and 3. it has binding legal effect.

Kassam v Hazzard

In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, Beech-Jones CJ at CL considered challenges brought against three public health orders made under s 7(2) of the Public Health Act (the Impugned Orders) said by the plaintiffs to be invalid on several grounds.
At [27]-[29] Beech-Jones CJ at CL said that it was not necessary to determine whether, as contended by the Minister, the Impugned Orders could be classified as a "quasi-legislative act" or as contended by the plaintiffs, as an "administrative act", reasoning that to do so "may require a conclusive determination of the scope of merits review available in NCAT". His Honour proceeded to address the arguments made by the plaintiffs on the basis most favourable to them, that is, that the Impugned Orders are "administrative decisions".
The question of the proper characterisation of the Impugned Orders was also addressed by the Court of Appeal in an appeal brought against the decision made by Beech-Jones CJ at CL: Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 (Bell P, Leeming, Meagher JJA).
At [77], Bell P dismissed the submission that the Impugned Orders were invalid because they were of a legislative character, reasoning that "the question of the validity of the Impugned Orders does not turn upon whether or not they were of an administrative or legislative character".
Commenting on s 7(7) of the Public Health Act, Bell P applied the same analysis: "76 Unlike the ADJR Act, the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) permits the review of an "administratively reviewable decision", but such a decision will be identified not by an assessment of its character, but rather by reference to whether "enabling legislation" provides for an application to be made to the NSW Civil and Administrative Tribunal (NCAT) for the decision's review: see the ADR Act s 7. Whether or not a person may seek review of the Impugned Orders in NCAT turns on the proper construction of s 7(7) of the Public Health Act, and it has recently been held that that section does not permit the administrative review of Order (No 2): see Davis v Minister for Health [2021] NSWCATAD 310 at [52]- [63]. But that decision did not turn on a characterisation exercise of the kind that is routinely undertaken for the purposes of the ADJR Act." (Emphasis added.)
Describing the Impugned Orders at [144] as having a "hybrid character", Leeming JA rejected the argument that s 7 of the Public Health Act authorises only "administrative" orders, the impugned orders are "legislative" and therefore outside the scope of the power, reasoning: "146 For one thing, it is unnecessarily artificial. The submission requires construing the power conferred by s 7 in order to discern an implied restriction, and then construing the orders made in the purported exercise of that power in order to discern whether they exceed the implied restriction. But in principle it is surely better simply to construe the power and see whether the orders made in its purported exercise fall within its scope. … 153 There is a separate reason telling against this step in the applicants' argument. The distinction between "administrative" and "legislative" is in any event problematic. It depends on context. …"
At [154]-[155], Leeming JA noted that the administrative/legislative distinction is one that is "far from crisp and well-defined" and "there is no reason in principle why a power may not be conferred which may be exercised in ways which may fairly be described as both legislative and administrative".

Conclusion

The Court of Appeal did not determine whether an order made under s 7 of the Public Health Act is administrative or legislative in character.
We agree with the comments made by Bell P in obiter at [76], that whether a person may seek review of the impugned directions in NCAT, turns not on their characterisation as administrative or legislative, but rather the proper construction of s 7(7) of the Public Health Act. The Minister has failed to address whether that analysis is flawed.
The Tribunal, correctly in our view, questioned the usefulness of characterising the PHO as legislative or administrative, in determining the question of the extent of the administrative review jurisdiction conferred by s 7(7) of the Public Health Act: at [56].
We conclude that it is not necessary to determine whether the impugned directions are of a legislative or administrative character.

Conclusion

The Tribunal erred in finding that s 7(7) of the PHA did not permit Ms Davis to seek review in NCAT of the impugned directions. The appeal must be allowed and the decision under appeal set aside.

Orders 1. The appeal is allowed. 2. The decision under appeal is set aside. 3. Matter number 2021/271978 is to be listed for directions at a date and time to be determined by the Registrar.

Endnote

The PHO was repealed and replaced by the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (No 2) on 22 October 2021, which in turn was repealed and replaced by the Public Health (COVID19 Vaccination of Health Care Workers) Order 2021 (No 3) on 23 December 2021. The Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 was made on 21 March 2022. By s 7(5) of the PH Act 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. 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: 14 April 2022

Public Health Act 1991(NSW)

Unlike the ADJR Act, the Administrative Decisions Review Act 1997(NSW)

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