ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO
INSTITUTE PROCEEDINGS –
GENERALLY – where the Chief Health Officer issued a series of
directions regarding vaccination against COVID-19 – where
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TOINSTITUTE PROCEEDINGS –GENERALLY – where the Chief Health Officer issued a series ofdirections regarding vaccination against COVID-19 – wherethe directionshave since been revoked – where the respondents in each proceeding bringan application claiming the applicantsno longer have standing – whetherthe applicants in each proceeding have standing to seek a review of thedecisionsActs Interpretation Act 1954 (Qld), s 20Charter of Human Rights and Responsibilities Act 2006 (Vic)Crimes Act 1914 (Cth), s 79(3)Judicial Review Act 1991 (Qld), ss 4, 20, 21, 22, 43 30, 43,44, 47, 48Human Rights Act 2019 (Qld), ss 11, 13, 58, 59New Zealand Bill of Rights Act 1990 (NZ)Public Health Act 2005 (Qld), s 315, 362A, 362B, 362D, 362J, 362MAJ,498Public Health and Other Legislation (Public Health Emergency) Amendment
Act 2020 (Qld)
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
[1992]
HCA 10, cited
Air Nelson Ltd v Minister of Transport [2008] NZCA 26, cited
Australian Conservation Foundation Inc v Commonwealth
v Chief Health Officer [2022] QCA 188, considered Borrowdale v
Director-General of Health [2020] NZHC 2090, cited
Croome v Tasmania (1997) 191 CLR 119
[1997] HCA 5, considered
Grounded Kiwis Group Inc v Minister of Health [2022] NZHC 832
[2022] 3 NZLR 19,
considered
Hunt & Ors v Gerrard & Ors [2022] QCA 263, cited Kable v
Director of Public Prosecutions (NSW) (1996) 189 CLR 51
[1996] HCA 24,
cited
Kuczborski v Queensland [2014] HCA 46
(2014) 254 CLR 51
[2014] HCA
46, cited
Judgment (148 paragraphs)
[1]
the Second Further Amended Application is dismissed insofar as it seeks review of, and relief in respect of, the third respondent's decision to give the COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction; and
the applicants pay the third respondent's costs of the proceeding incurred on and from 1 February 2023 on the standard basis, in an amount to be agreed or assessed.
[2]
the Further Amended Application is dismissed; and
the applicants pay the respondents' costs of the proceeding incurred on and from 1 February 2023
[3]
on the standard basis, in an amount to be agreed or assessed.
[4]
the Further Amended Application is dismissed; and
the applicants pay the respondents' costs of the proceeding incurred on and from 1 February 2023 on the standard basis, in an amount to be agreed or assessed.
[5]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS -
[6]
GENERALLY - where the Chief Health Officer issued a series of directions regarding vaccination against COVID-19 - where the directions have since been revoked - where the respondents in each proceeding bring an application claiming the applicants no longer have standing - whether the applicants in each proceeding have standing to seek a review of the decisions
DF Villa SC with PF Santucci & W Liu for the respondents/applicants
[32]
BI McMillan with PH Nevard for the applicants/respondents DP O'Brien KC with FJ Nagorcka for the first intervenor
[33]
P Morreau for the second intervenor In BS367 of 2022
[34]
P Zappia KC with N Dour for the respondents/applicants
[35]
BI McMillan with PH Nevard for the applicants/respondents DP O'Brien KC with FJ Nagorcka for the first intervenor
[36]
P Morreau for the second intervenor In BS966 of 2022
[37]
P Zappia KC with N Dour for the respondents/applicants
[38]
BI McMillan with PH Nevard for the applicants/respondents DP O'Brien KC with FJ Nagorcka for the first intervenor
[39]
GR Cooper, Crown Solicitor for the applicants/respondents GR Cooper, Crown Solicitor for the first intervenor Queensland Human Rights Commissioner for the second intervenor
[40]
GR Cooper, Crown Solicitor for the applicant/respondents GR Cooper, Crown Solicitor for the first intervenor Queensland Human Rights Commissioner for the second intervenor
[41]
Alexander Law for the respondents/applicants
GR Cooper, Crown Solicitor for the respondents/applicants GR Cooper, Crown Solicitor for the first intervenor Queensland Human Rights Commissioner for the second intervenor
[42]
[1] In early 2020, the Public Health Act2005 (PHA) was amended1 by, among other things, the insertion of a new Part 7A into Chapter 8 of that statute.
[2] Section 362A provided that the purposes of the new part were to confer additional powers for the COVID-19 emergency on the Chief Health Officer (CHO) and emergency officers. The CHO was given the power (under s 362B) to give any of a number of identified directions including restricting:
[43]
(a) the movement of persons;
(b) the entry of persons into stated places; and
(c) contact between persons.
[44]
[3] Pursuant to those powers various directions were given.
[4] On 11 December 2021, the former CHO, Dr Aitken, gave a direction entitled "COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction" (the First High-Risk Direction). Broadly, that direction provided that workers must not enter and remain in, work in, or provide services in a high-risk setting unless the worker had, subject to certain exemptions:
[45]
(a) received the first dose of a COVID-19 vaccine by 17 December 2021;
(b) received the prescribed number of doses of a COVID-19 vaccine by 11:59pm on 23 January 2022; and
(c) shown evidence of having received the COVID-19 vaccine to their employer or the responsible person.
[46]
[5] High-risk settings were defined as services, businesses or activities declared to be a high-risk setting by the CHO under the direction, and included some educational settings, corrective services facilities, police watch houses, youth detention centres, and airports. On 4 February 2022, the CHO, Dr Gerrard, gave a direction entitled "COVID-19 Vaccination Requirements for Workers in a High-Risk Setting Direction (No. 2)" (the Second High-Risk Direction). The Second High-Risk Direction imposed similar obligations as the First High-Risk Direction but required that workers in a high-risk setting be "full vaccinated".
[6] The CHO also gave a direction on 24 December 2021, entitled the "Public Health and Social Measures linked to vaccination status Direction (No. 2)" (Second Social Measures Direction), and on 8 February 2022, entitled the "Public Health and Social Measures linked to vacation status Direction (No. 3)" (Third Social Measures Direction).
[7] Those directions provided that, among other things, a person could only enter and remain at particular businesses, activities or undertakings where the person was fully vaccinated against COVID-19 and provided proof, or where an unvaccinated person provided evidence of a medical contraindication or participation in a vaccine trial. Persons who operated relevant businesses or activities were required, among other things, to comply with the vaccination entry requirements and take reasonable steps to ensure staff and visitors also complied with them.
[8] In each of these matters, the applicants seek orders including the quashing or setting aside of the directions made under Part 7A and restraining the enforcement of those directions. They rely on the inherent powers of the Supreme Court and remedies available under the Judicial Review Act1991 (JRA). They call in aid the Human Rights Act2019 (HRA).
[9] Since the applications were filed, each of the challenged directions has been revoked. The First High-Risk Direction was revoked by the Second High-Risk Direction, and the Second High-Risk Direction was revoked by a direction of the CHO published on 30 June 2022. The Second Social Measures Direction was revoked by the Third Social Measures Direction, and the Third Social Measures Direction was revoked by a direction of the CHO made on 4 March 2022. In addition, Part 7A of the PHA has been deleted and there is now no power to make the directions which are the subject of the challenges.
[10] The respondents in each matter have applied for orders dismissing the applications on the basis that the applicants no longer have standing to seek the relief claimed in the various applications. For the reasons which follow those applications must be granted.
[49]
The directions which are challenged and the orders which are sought
[50]
[11] There are three separate applications - the Johnston application, the Ishiyama application and the Hunt application. I will attempt to distinguish the parties by referring to the parties applying for dismissal - the Chief Health Officer, the former Chief Health Officer and the Commissioner of the Queensland Police Service - as the "Dismissal Applicants" and the parties who are opposing this application - Hunt & Ors, Johnston & Ors, and Ishiyama & Ors - as the "Dismissal Respondents". The Dismissal Respondents in these proceedings are police officers, teachers or persons and corporations involved in the hospitality industry.
[12] In each of them the basic arguments are the same and I will deal with them on that basis. There are some minor matters which arise on the facts in each application and I will deal with those separately.
[13] In the Johnston matter, the applicants challenged the CHO's decision to make the the Second High-Risk Direction. The applicants apply alternatively under s 20 JRA, s 43 JRA and the inherent jurisdiction of the Court for the following orders to be made:
[51]
(a) a declaration that the decision and/or direction is or are invalid:
(b) pursuant to s 30 JRA an order setting aside the decision and/or direction;
(c) pursuant to s 43 and s 47 JRA an order that the decision and/or direction be quashed;
(d) pursuant to s 43 and s 47 JRA and/or the inherent jurisdiction of the Court, an injunction restraining the third respondent from acting in respect of the decision.
[52]
[14] In the Ishiyama matter, the applicants challenge both the Second High-Risk Direction and the First High-Risk Direction. The orders sought are relevantly the same as those in the Johnston matter save that they also seek declarations that the directions contravene s 13 and/or s 58 of the HRA. Further, they rely upon s 59 HRA as a ground supporting the claims that the direction be quashed or that the relevant respondents be restrained from acting in respect of the direction. They also seek declarations that s 362B and s 362D of the PHA are invalid.
[15] In the Hunt matter, the applicants challenge both the Second Social Measures Direction and the Third Social Measures Direction.
[16] The orders sought are relevantly the same as those in the Ishiyama matter.
[17] How directions might "contravene" s 13 of the HRA was neither explained nor explored. In the end, it need not be considered as reliance was placed upon the conduct dealt with in s 58.
[18] Section 362MAJ of the PHA provided that Part 7A was to expire on "the COVID-19 public health legislation expiry date". That was defined to be the earlier of either the day the COVID-19 emergency ended under Section 324(1), or 31 October 2022.2 The parties have proceeded on the basis that Part 7A expired on 31 October 2022.
[53]
[19] The third respondent in Johnston and the respondents in Ishiyama and Hunt in each of these applications apply under s 48 of the JRA for an order that the proceedings concerning the decisions referred to above be dismissed. Section 48 provides that the court may stay or dismiss an application under any of sections 20, 21, 22 or 43 if the court considers that it would be inappropriate for those proceedings to be continued.
[20] The respondents contend that the applicants lack standing because the directions of which they complain have been revoked. It was further argued that, should there be any standing, any relief would resolve only a hypothetical issue and have no practical effect.
[54]
Is section 20 of the JRA available to the applicants?
[55]
[21] In each application, a statutory order of review in relation to the relevant decision or decisions is sought. The power to make a statutory order of review is found in s 20 of
the JRA. It provides that a person who "is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review". A "decision to which this Act applies" is "a decision of an administrative character" which may be made in a number of ways - s 4 JRA. Each of the decisions which led to the public health directions were made pursuant to s 362B of the PHA.
[58]
[22] In Hunt & Ors v Gerrard & Anor,3 the Court of Appeal held that the CHO's decisions to issue public health directions under s 362B of the PHA were properly characterised as decisions of a legislative, rather than an administrative, character. It follows, then, that s 20 of the JRA does not apply to those decisions.
[59]
"A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
Maximum penalty - 100 penalty units or 6 months imprisonment."
[60]
"A person to whom a direction is given under this division must comply with the direction unless the person has a reasonable excuse.
Maximum penalty - 100 penalty units."
[61]
[25] Section 20 of the Acts Interpretation Act1954 provides that the repeal (which includes expiry) of a provision of an Act does not affect a liability incurred under the Act and a proceeding may be started, and a penalty imposed, as if the repeal had not happened.
[26] In addition to that general provision, s 498 of the PHA provides:
[62]
"(1) This section applies in relation to an offence against repealed section 362D or repealed section 362J committed by a person before the commencement.
[63]
(2) Without limiting the Acts Interpretation Act 1954, section 20, a proceeding for the offence may be continued or started, and the person may be convicted of and punished for the offence, as if chapter 8, part 7A had not expired.
[64]
(3) Subsection (2) applies despite the Criminal Code, section 11.
[65]
repealed, for a provision of this Act, means the provision as in force from time to time before the commencement."
[66]
[27] It follows, then, that a person who did not comply with a public health direction or another direction given under Part 7A remains liable for prosecution notwithstanding
the expiry of the sections creating the offences. Other matters, such as the time limit for prosecutions under the Justices Act1886, still apply.
[69]
[28] The dismissal applicants' core submissions were that the dismissal respondents:
[70]
(a) are required to demonstrate "continuous" standing;
(b) have lost any standing they may have had due to the revocation of the directions;
(c) are no longer adversely affected by the directions;
(d) do not have a special interest in pursuing the application; and
(e) would incur no foreseeable consequence if a declaration were made given the revocation.
[71]
[29] Additionally, it was argued that the respondents do not have standing to challenge the validity of the decisions which may result in criminal proceedings because there are no criminal proceedings presently being prosecuted.
[30] These submissions were supported by the Attorney-General.
[31] Aside from distinguishing the authorities relied on by the dismissal applicants and the Attorney-General, there were two core submissions made by Mr Zappia KC for the Ishiyama and Hunt applicants. They were:
[72]
(a) where an applicant complains a revoked law has infringed their personal liberty in the past, that is enough for them to have standing to challenge the revoked law and seek a declaration of invalidity without needing to show any further consequence; and
(b) the applicants do not have to show that a criminal prosecution has commenced. It is enough to show that there is evidence before the court that the applicants have engaged in conduct which could result in criminal prosecution.
[73]
[32] Mr Villa SC for the Johnston applicants adopted these submissions generally.
[74]
[33] The requisite interest for general or injunctive relief at general law was summarised by Gibbs CJ in Australian Conservation Foundation Inc v Commonwealth:4
[75]
"... an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be
[76]
prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."
[77]
[34] On the issue of making declarations about having an interest, the majority in
[78]
"The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation in circumstances that have not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'.
[79]
[35] On the application of those principles in public matters Gibbs J also said in Australian Conservation Foundation Inc:7
[80]
"The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so."
[81]
[36] Applications made under a specific statute must also be considered in the context of that particular statute.
[37] Section 44 of the JRA provides:
[82]
"A person is entitled to make an application for review if the person's interests are, or would be, adversely affected in or by the matter to which the application relates."
[83]
[38] With respect to declarations, s 47(1) provides:
[84]
"(1) The court may grant the declaration or injunction sought in an application under section 43 instead of, or in addition to, a prerogative order if it considers it would be just and convenient to do so having regard to:
(a) the nature of the matters in relation to which relief may be granted by way of a prerogative order; and
(b) the nature of the persons against whom relief may be granted by way of a prerogative order; and
(c) all the circumstances in the case."
[85]
[39] The principles involved in these types of cases have been the subject of extensive consideration by the High Court.
[40] In Zhang v Commissioner of the Australian Federal Police,8 the validity of search warrants issued under the Crimes Act1914 (Cth) and the seizure of material said to be relevant to offences against s 92.3(1) and (2) of the Criminal Code (Cth) was considered. A unanimous High Court said:
[88]
"[6] To be emphasised at the outset is that Mr Zhang has no standing to challenge the validity of s 92.3(1) and (2) of the Criminal Code by reason merely of the ongoing AFP investigation or of the potential for him to be charged with offences against those provisions as a result of that investigation. His standing to challenge the validity of those provisions arises only as an aspect of his standing to challenge the validity of the warrants and orders under authority of which occurred derogation from his common law rights."
[89]
[41] The High Court referred to two decisions which support that statement. The first is Kuczborski v Queensland.9 In that case, the plaintiff had sought declarations that the Vicious Lawless Association Disestablishment Act 2013 (Qld) and certain provisions of the Criminal Code (Qld), the Liquor Act1992 (Qld) and the Bail Act1980 (Qld) were invalid on the basis that they offended the principle in Kable v Director of Public Prosecutions (NSW).10 The majority (Crennan, Kiefel, Gageler and Keane JJ) said:
[90]
"[175] The plaintiff did not call into question the authorities which establish that a party who seeks a declaration that a law is invalid must have sufficient interest in having his or her legal position clarified. In Dickson, in a passage cited with approval in Croome, Lord Upjohn said "[a] person whose freedom of action is challenged can always come to the court to have his rights and position clarified". In Croome it was observed that such a person would have a sufficient interest to establish a justiciable controversy, which is to acknowledge that issues as to standing and whether a question is hypothesised may overlap.
[91]
[176] The plaintiff argued that his claim was supported by the authorities and that he was entitled to know whether the impugned laws applied to him**. It can be said immediately that they do apply to him, just as they apply to everyone else in Queensland. The plaintiff has no more interest than anyone else in clarifying what the law is. The pertinent question is whether the plaintiff has a sufficient interest to have his "rights and position clarified" by the declaration he seeks.**
[184] The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect "the legal situation of persons subject to the jurisdiction of the court" serves to maintain the ordinary characteristics of judicial power.
[185] It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law. Any person actually in jeopardy of punishment under these laws will have standing to challenge their validity."
[96]
[42] As far as this application is concerned, the following may be drawn from the paragraphs (of the majority decision) set out above:
[97]
(a) issues as to standing and whether a matter is hypothetical may overlap;
(b) the pertinent question to be asked is whether an applicant has a sufficient interest to have that applicant's "rights and position clarified" by a declaration; and
(c) any person who is actually in jeopardy of punishment under the Directions will have standing to challenge their validity.
[98]
[43] The second decision referred to in Zhang was Smethurst v Commissioner of the Australian Federal Police.11 In that case, the validity of a search warrant was again in question_._ The Court held that the warrant was invalid and the plurality (Kiefel CJ, Bell and Keane JJ) considered the situation where s 79(3) of the Crimes Act created an offence of communicating prescribed documents or information. The plaintiffs sought a declaration that s 79(3) was invalid. The plurality said that it was not necessary to consider that because, since the events in question, that provision had been repealed. The plaintiffs nevertheless pressed for a declaration as being useful to them, in that it might result in the investigation and possibility of prosecution being brought to an end. The plurality said:
[99]
"[106] The difficulty for the plaintiffs is that they have no interest in questions about s 79(3) which sets them apart from persons generally and is sufficient to give them standing. A party who seeks a declaration that a law is invalid must have a sufficient interest in having their legal position clarified. Unless and until they are charged with an offence under
s 79(3), the plaintiffs have no more interest than anyone else in clarifying what the law is.
[102]
[107] No analogy may be drawn with respect to the position of the plaintiffs in Croome v Tasmania. There the law criminalised the plaintiff's relationship with other people and affected their freedom of action. The plaintiffs pleaded that they had engaged in conduct which, if the impugned provisions of the Criminal Code (Tas) were operative, rendered them liable to prosecution, conviction and punishment. The plaintiffs here understandably do not say that their past conduct has contravened s 79(3)."
(emphasis added, citations omitted)
[103]
[44] Smethurst was referred to in Unions NSW v New South Wales.12 The plaintiffs sought declarations to the effect that particular sections of the Electoral Funding Act2018 (NSW) were invalid as infringements of the constitutionally implied freedom of political communication. The majority, when considering the constitutional requirement that a dispute involve a "matter" for the purposes of Ch III of the Constitution, considered what was necessary to establish standing and said:
[104]
"[16] What is required to establish standing varies with the nature of the relief that is sought and will apply differently to different sorts of controversies . Where, as here, the relief sought is declaratory of the invalidity of legislation, standing has traditionally been explained in terms of a requirement for the party seeking the relief to have a "real" or "sufficient" interest in obtaining the relief . That requirement is closely aligned with the requirement that, for the making of a declaration to constitute an exercise of judicial power, the declaration must be seen at the time of its making to produce foreseeable consequences for the parties.
[105]
[18] As the standing of a party to seek declaratory relief depends on the sufficiency of the interest of that party in obtaining that relief, a sufficient interest must continue to subsist up until the time at which relief is granted or refused. If, after the commencement of a proceeding, a party ceases to have a sufficient interest in obtaining the relief sought, that party no longer has standing to obtain that relief, the "matter" ceases to exist and, in consequence, the jurisdiction of the Court comes to an end. But that is not to say that the interest must remain the same throughout the proceeding; the nature of a party's interest may change but still remain sufficient.
[21] A plaintiff will have and maintain a real or sufficient interest in obtaining relief if and for so long as they seek a declaration of their own rights, legal interests or liabilities, or if and for so long as the declaration sought will directly affect their rights, legal interests or liabilities. Generally, such a declaration will have foreseeable consequences for the plaintiff because they will be able to legally enforce those rights, interests or liabilities. So, for example, a declaration of invalidity of a law (even where the law has been repealed or amended) may have foreseeable consequences for that plaintiff where such a declaration assists to negative a statutory defence to a common law cause of action such as an intentional tort, or where the plaintiff is being prosecuted for breach of that law. The past infringement of certain personal rights or interests of a plaintiff, such as reputation and liberty, may also be sufficient for seeking declaratory relief even where there are no other asserted legal consequences."
[108]
[45] The majority went on to say that the test for a sufficient interest is broad and flexible and varies according to the nature and subject matter of the litigation. Whether a person's interest is sufficient is a question of degree, not a question of discretion, and the plaintiff must show that:
[109]
"[22] ... "success in the action would confer on [them] ... A benefit or advantage greater than [that] conferred upon the ordinary member of the community; or ... relieve [them] of a detrimental disadvantage to which [they] would otherwise have been subject ... to an extent greater than the ordinary member of the community".13"
[110]
[46] The decision in _Croome v Tasmania_14 was considered and the majority said: "[22] ... As Croome demonstrates, a plaintiff may have a
[111]
sufficient interest where their freedom of action is particularly affected by the impugned law. Other cases, such as Onus v Alcoa of Australia Ltd, demonstrate that the breadth of the categories of interest include economic, cultural and environmental interests."
(citations omitted)
[112]
[47] The circumstances in Unions NSW which existed after the relevant legislation was repealed can be distinguished from those in this application. As the majority observed:
[113]
"[25] The plaintiffs have not demonstrated that they continue to have standing, or a real or sufficient interest, to seek a declaration as to the invalidity of s 35. The plaintiffs cannot
and do not assert that any of their rights, duties or legal interests have been infringed by the past application of s 35. The plaintiffs are not the subject of enforcement action for any past breach of s 35, nor do they claim to have contravened s 35 in the past. Nor do they assert that a declaration of invalidity would assist them in vindicating any right, duty or legal interest. The plaintiffs assert invalidity solely by reference to the implied freedom of political communication. That implied freedom is not a personal right; it is a freedom from unjustified legislative interference."
(citations omitted)
[117]
[48] In these applications, the Dismissal Respondents assert that a declaration of invalidity would assist them in vindicating the rights afforded them under the HRA. They also maintain that such a declaration would assist them in defending any prosecution. But that may not avail them in light of these statements in Unions NSW:
[118]
"[26] At best, the plaintiffs' concern is whether their past compliance with s 35 was necessary. It can be accepted that the plaintiffs modified their behaviour to comply with the law, and that persons should not be disadvantaged in seeking to challenge the validity of a law because of their compliance with the law. However, unlike the impugned law in Croome, s 35 of the EF Act no longer restricts the plaintiffs' freedom of action or interferes with their activities. The only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong. The plaintiffs cannot point to any other foreseeable consequences from the grant of a declaration. There is not a justiciable controversy and not a matter."
[119]
[49] The Dismissal Respondents rely on _Loielo v Giles_15 and Grounded Kiwis Group Inc v Minister of Health.16
[50] In Loielo Ginnane J considered a curfew which had been imposed on residents in Melbourne prohibiting them from leaving their home during specified hours except for specified purposes, under penalty of a significant fine. The plaintiff was a restaurant owner who lived and worked in the restricted area. She sought judicial review of the direction imposing the curfew on grounds that included that the decision was unreasonable, illogical and irrational in the legal sense. She sought a declaration that the decision unlawfully limited her human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), particularly her rights of freedom of movement and liberty.
[51] The curfew direction was revoked with effect from the first day of trial on the basis that the Government's public health advisers considered it was no longer a proportionate measure. Ginnane J held that:
[123]
(a) the plaintiff had standing to bring the proceeding,
(b) her private right to run her business had been substantially and adversely affected by the curfew, and
(c) while the revocation of the curfew might be relevant to the exercise of the discretion to grant a declaration, it did not remove the plaintiff's standing.
[124]
[52] Ginnane J dismissed the proceeding, finding that the plaintiff had not established any breaches of the Charter. The Dismissal Respondents rely upon obiter comments made by Ginnane J at the end of his decision, where his Honour said:
[125]
"[267] If I had found that the plaintiff had established a breach of her Charter rights, I would have granted her an appropriately worded declaration to reflect that finding even though the Curfew has been revoked. I would not readily regard such a declaration of unlawful limitation of human rights as having no foreseeable consequence."
[126]
[53] I do not, with respect, agree with his Honour's statement. An "appropriately worded declaration to reflect that finding [that her Charter rights had been breached] even though the Curfew has been revoked" falls within the description in Unions NSW: "The only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong."
[54] His Honour did find that the plaintiff's business had been substantially and adversely affected by the curfew, but that would not have assisted the plaintiff because s 39(3) of the Charter provides: "A person is not entitled to be awarded any damages because of a breach of this Charter." A similar provision is found in s 59(3) of the HRA.
[55] _Grounded Kiwis Group Inc. v Minister of Health_17 is a decision of the High Court of New Zealand. The relevant legislative provisions the subject of the original application in that case had been amended or repealed and events had overtaken the application. The Minister submitted that the relief should be declined and the judicial review application dismissed. The court declined to do that. Mallon J had found that as the system restricting entry in to New Zealand did not sufficiently allow individual circumstances to be considered and prioritised where necessary, it operated as an unjustified limit on the right of New Zealand citizens to enter their country. His Honour said:
[127]
"[431] However, although relief is discretionary, where the Court upholds one or more grounds of review, the starting point is that relief should be granted. There must be "extremely strong reasons to decline to grant relief"18. As the High Court put it in Borrowdale v Director-General of Health: 19
Declarations perform the critical constitutional function of vindicating legal rights and promoting the ideals of the rule of law. They announce to the world at large breach of the applicant's rights and operate as a vindication for the prejudice or loss suffered."
[132]
[56] It is important to bear in mind that the New Zealand Bill of Rights Act 1990 differs from the HRA in many respects and the reference to the "critical constitutional function of vindicating legal rights and promoting the ideals of the rule of law" brings to mind French CJ's statement in _Momcilovic v The Queen_20 that courts should use international and foreign domestic judgments with "discrimination and care" because they are made in a variety of legal systems and constitutional settings. The environment in which these applications are made is different and the repeated statements of principle by the High Court of Australia must be observed. In any event, the expression in Grounded Kiwis is no different to the view expressed by Ginnane J in Loielo.
[57] The Dismissal Applicants also rely on Beale v Chief Health Officer.21 In that case the applicant had challenged two Directions made by the Chief Health Officer, mandating the need to be vaccinated against the COVID-19 virus. The first was the Public Health and Social Measures linked to vaccination status Direction (the First Direction). It was posted online on 7 December 2021 but did not become effective until 17 December 2021. The second was the Public Health and Social Measures linked to vaccination status Direction (No 2), made on 24 December 2021 (the Second Direction). It revoked the First Direction as of 24 December 2021.
[58] Once the First Direction was revoked, the appellant had effectively obtained all the relief he sought with respect to the refusal to grant an exemption. He did not seek an exemption from the Second Direction and informed the Court that he had not sought exemptions in respect to the Third and Fourth Directions, so there was no further refusal to challenge.
[59] Morrison JA (with Bond JA and Flanagan J agreed) described the matter in this way: "[31] A number of features about the events must be understood:
[133]
(a) the First Direction was posted on 7 December 2021, but did not become operative until 17 December 2021;
(b) the decision about which the applicant complains (to refuse an exemption), was only in respect of an exemption from the First Direction; it seems the applicant sought that exemption before the First Direction became operative as the decision is alleged to have been made on 9 December 2021;
(c) the First Direction could not have impacted upon the applicant until it became operative, ie on 17 December 2021;
(d) the First Direction was only operative for seven days, being revoked on 24 December 2021;
(e) the Second Direction was operative for 45 days, being revoked on 8 February 2022; and
(f) no exemption was sought from the operation of the Second Direction.
[32] Once the First Direction was revoked, the applicant had effectively obtained all the relief he sought with respect to the refusal to grant an exemption. The applicant did not seek an exemption from the Second Direction and informed this Court that he had not sought exemptions in respect to the Third and Fourth Directions, so there was no further refusal to challenge.
[137]
[35] From the time when the First and Second Directions were revoked the applicant ceased to be a person who could be aggrieved under the Judicial Review Act.Section 7(1) of that Act defines a person aggrieved as including a "person whose interests are adversely affected by the decision". Section 44 enables a person to apply for a review "if the person's interests are, or would be, adversely affected". The decisions attacked were revoked some time ago, and therefore if the applicant once had an interest affected, that is no longer the case. Thus, the applicant does not fall into the category of a person entitled to a review.
[138]
[36] In other words, once the First and Second Directions were revoked, the applicant's rights were no more than that of any other citizen."
[139]
Are any of the applicants in jeopardy of punishment?
[140]
[60] This question would have been quickly answered had any of the Dismissal Applicants undertaken not to pursue any of the Dismissal Respondents for any breach of the Directions. That undertaking was not forthcoming and, no doubt, contributed to the trepidation felt by them about their position and whether they might be prosecuted or sanctioned in some other way.
[61] If the Dismissal Respondents have standing because they are in jeopardy of punishment or some other reason, then it is as individuals and, so, their own circumstances must be considered. I will do that by reference to each of the substantive applications.
[141]
[62] Each of the individuals in this application is an employee within the Queensland Police Service. There is no evidence of any disciplinary proceedings having been taken with respect to the Second High-Risk Direction. No criminal charges have been laid with respect to any purported breach of that Direction.
[63] Of the individuals who applied with respect to the Second High-Risk Direction, the most that is said on their behalf is that the imposition of that Direction exposed at least two of the applicants (Tonia Lance and Connan Barrell) to criminal sanctions if they attended the ordinary place of work, that being a police watchhouse. Neither of them has standing.
[64] Tonia Lance was placed on leave on 21 December 2021. She gives no evidence that she ever returned to work in a high-risk setting during the operational period of the Second High-Risk Direction.
[65] Connan Barrell left for New Zealand by boat on 14 December 2021. There is no evidence that he ever returned to work in a high-risk setting during the operational period of the Second High-Risk Direction.
[66] Each of the other applicants in this matter has, in their respective affidavits, given evidence that during the operational period of the Second High-Risk Direction they were on leave, or were placed on leave, or were relocated to another role, or otherwise did not work in high-risk settings. There is, therefore, no evidence that they could be exposed to adverse consequences for "past non-compliance".
[142]
[67] Of the seven applicants in this matter, five were, at the relevant time, employees of Education Queensland. The Chief Executive of Education Queensland gave a direction (EQ1) in 202122 to employees of that entity. There is some evidence (Wylie, Merrill and Pyne) that some applicants had been suspended on pay for non- compliance with EQ1. That direction has not been challenged in these proceedings.
[68] The remaining applicants were employed privately. Ms Ishiyama said that her employment was terminated on the basis that she had failed to comply with a lawful and reasonable direction of her employer which, in turn, was based on the High-Risk Direction. It is argued for her and another private employee that if the High-Risk Directions are found to be unlawful or invalid then the employers will have breached the private contracts by giving directions and that an action for damages may lie.
[69] For the applicants who were privately employed to demonstrate that there will be some foreseeable consequence if the declaration they seek is made requires that they, at least, provide material that demonstrates that employers (who are not parties to these proceedings) have made decisions which can be impugned. They seek to obtain a declaration which would cast doubt upon the validity of employment related directions given by employers without the employers being a party to the proceeding.
[143]
[70] There is no evidence that any applicant was said to have been in breach of the Second High-Risk Direction. And the argument that the applicants employed in the public sector may have "potential actions" with respect to exclusion from "entering, remaining, working in or providing services in" their workplace is unsupported.
[144]
[71] There are 12 applicants in the Hunt proceedings - four are individuals and eight are companies. As far as the companies are concerned, they cannot rely on any inconsistency with or breach of the HRA as only individuals have human rights - s 11 HRA.
[72] Mr McElligott is a director of Marbel Foxhole Pty Ltd (the Ninth Applicant) which traded as a bar under the name Bar Wunder. He was charged personally under s 362D of the PHA on the basis that Bar Wunder continued to trade despite the directions. The substantive application seeks an order that s 362D is invalid because it is inconsistent with Commonwealth legislation. Mr McElligott is not an applicant. Marbel Foxhole has no standing with respect to that matter.
[73] Ms Lamb was a manager and is a part-owner of Mission Beach Tavern Pty Ltd which trades as a café. Ms Lamb gave evidence that she had been fined on 22 December 2021. She is not an applicant and the fine was imposed before the Second High-Risk Direction took effect.
[74] The applicants in this matter claim that a declaration that the Direction was invalid would "supply elements for further action to be taken". It is difficult to see what action could be taken given that the Directions are legislative in character.
[145]
[75] The Dismissal Applicants have demonstrated that the Dismissal Respondents have either never had standing or ceased to have standing when the relevant Direction was revoked. It follows that the substantive applications must be dismissed pursuant to s 48 of the JRA.
[76] The Dismissal Applicants invited the Dismissal Respondents to discontinue the substantive applications and to bear their own costs. That invitation expired on 31 January 2023.
[77] There are no good reasons to depart from the usual order for costs in respect of these dismissal applications after 31 January 2023.
[146]
(a) the Second Further Amended Application is dismissed insofar as it seeks review of, and relief in respect of, the third respondent's decision to give the COVID-19 Vaccination Requirements for workers in a high-risk setting Direction (No. 2); and
(b) the applicants pay the third respondent's costs of the proceeding incurred on and from 1 February 2023 on the standard basis, in an amount to be agreed or assessed.
[147]
(a) the Further Amended Application is dismissed; and
(b) the applicants pay the respondents' costs of the proceeding incurred on and from 1 February 2023 on the standard basis, in an amount to be agreed or assessed.
[148]
(a) the Further Amended Application is dismissed; and
(b) the applicants pay the respondents' costs of the proceeding incurred on and from 1 February 2023 on the standard basis, in an amount to be agreed or assessed.
Parties
Applicant/Plaintiff:
Johnston & Ors
Respondent/Defendant:
Carroll
Legislation Cited (8)
Interpretation Act 1954
Human Rights and Responsibilities Act 2006
Review Act 1991
Rights Act 2019
Zealand Bill of Rights Act 1990
Health Act 2005
Health and Other Legislation (Public Health Emergency) Amendment Act 2020