Kassam v Hazzard; Henry v Hazzard

Al-Munir Kassam (First Appellant) George Nohra (Second Appellant) Jelena Zmiric (Third Appellant) Alexandrea Goundoulas (Fourth Appellant) Bradley Ronald Hazzard (First Respondent) (Submitting appearance) Kerry Chant (Second Respondent) (Submitting appearance) State of New South Wales (Third Respondent) Commonwealth of Australia (Fourth Respondent)

Natasha Henry (First Appellant) Selina Crowe (Second Appellant) Julie Ramos (Third Appellant) Hohepa Waapu (Fourth Appellant) Sandi Greiner (Fifth Appellant) Bradley Ronald Hazzard (Respondent) Representation: Counsel:

P E King with E Rusiti (Appellants) J K Kirk SC with T O Prince and D J Reynolds (Third Respondent) J Davidson (Fourth Respondent)

M Clarke QC with J Harkess and V Plain (Appellants) J K Kirk SC with T O Prince and D J Reynolds (Respondent)

Ashley Francina Leonard and Associates (Appellants) NSW Crown Solicitor's Office (First-Third Respondents) Australian Government Solicitor (Fourth Respondent)

G&B Lawyers (Appellants) NSW Crown Solicitor's Office (Respondent) File Number(s): 2021/303731, 2021/331988; 2021/317873, 2021/321987 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 1320 Date of Decision: 15 October 2021 Before: Beech-Jones CJ at CL File Number(s): 2021/249601; 2021/252587

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Between 20 August and 23 November 2021, the Hon Bradley Hazzard MLA, Minister for Health and Medical Research (the Minister) made three orders (together, the impugned Orders) under s 7(2) of the Public Health Act 2010 (NSW) in response to the emergence of the Delta strain of the COVID-19 virus: the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order (No 2)); the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) (the Aged Care Order); and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the Education Order). By the operation of s 7(5) of the Public Health Act, each of the impugned Orders expires at the end of 90 days after it was made unless repealed earlier. Order (No 2) was repealed as of 11 October 2021, and the Aged Care Order was repealed as of 1 November 2021 at 9am. The Education Order is scheduled to expire as of 23 December 2021. Order (No 2) had the effect of conditioning the freedom of movement of certain persons, described as "authorised workers", residing in certain areas, described as "areas of concern", to leave the designated area in which they resided for the purposes of their work or employment upon having received at least one dose of an approved COVID-19 vaccine or having been issued with a medical contraindication certificate exempting them from the requirement to be at least partially vaccinated. The Aged Care Order and the Education Order had the same operative effect, albeit that they applied to "authorised workers" at aged care facilities and schools irrespective of where they resided. Pursuant to the impugned Orders, an "authorised worker" was also required to carry evidence of his or her vaccination or exemption from vaccination when leaving the relevant "area of concern" in order to engage in work or employment. The validity of Order (No 2) was challenged by two sets of plaintiffs (the Kassam Applicants and the Henry Applicants respectively) in the Common Law Division. The Henry Applicants also challenged the validity of the Aged Care Order and the Education Order. The Kassam and Henry Applicants were "authorised workers" residing in "areas of concern" and who, without a valid medical exemption, had chosen not to receive a COVID-19 vaccination. The Henry Applicants also included aged care and education workers who had chosen not to receive a COVID-19 vaccination without a valid medical exemption. At first instance it was contended that Minister had acted ultra vires in making the impugned Orders on the basis that the principle of legality precluded the infringement, by the impugned Orders, of the following six rights asserted to be recognised by the common law: the right to bodily integrity; the right to earn a living; the right not to be discriminated against; the right to privacy; the privilege against self-incrimination; and the right to silence. These infringements were said to result from the effect of the impugned Orders in mandating or coercing the vaccination of "authorised workers". The impugned Orders were also contended to be invalid on various other grounds including that they were made for an improper purpose, that the Minister failed to take account of mandatory relevant considerations, and that the impugned Orders were legally unreasonable. The Kassam Applicants further contended that Order (No 2) was unconstitutional in two respects. First, that it enacted a form of "civil conscription" contrary to s 51(xxiiiA) of the Constitution and secondly, that it was inconsistent with the Australian Immunisation Register Act 2015 (Cth) and therefore invalid by reason of s 109 of the Constitution. Beech-Jones CJ at CL delivered judgment dismissing both sets of proceedings on all of the contended grounds of invalidity. Both the Kassam and Henry Applicants sought leave to appeal. The principal issues on appeal were: 1. whether the applications warranted the grant of leave to appeal (the leave issue); 2. the significance or otherwise as to whether the impugned Orders were characterised as administrative or legislative (the characterisation issue); and 3. whether the impugned Orders were authorised by s 7 of the Public Health Act 2010 (NSW) (the construction issue). The Court held (Bell P, Meagher and Leeming JJA agreeing, with Leeming JA also giving supplementary reasons), refusing leave to appeal save for those grounds concerning the proper construction of s 7 of the Public Health Act 2010 (NSW) and dismissing the appeal on those grounds with costs. As to the leave issue Per Bell P; Meagher JA agreeing at [138]; Leeming JA agreeing at [139]: 1. Leave to appeal was warranted in relation to those grounds of the draft notices of appeal which concerned the proper construction of s 7 of the Public Health Act 2010 (NSW), which is a matter of ongoing public importance given that the Education Order remains in force and the COVID-19 pandemic continues to pose a risk to public health: [35]-[36]. Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48; Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40; Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, referred to. 1. Leave to appeal was otherwise refused on the basis of a lack of utility in circumstances where Order (No 2) and the Aged Care Order have both been repealed, with the Education Order soon to expire in addition to the fact that there was no arguable error of principle in the decision at first instance: [37]-[38]. 2. The constitutional grounds sought to be raised by the Kassam Applicants were completely untenable. The simple fact that a particular argument invokes the Constitution does not give it any elevated status when considering a grant of leave to appeal: [39]-[42]. As to the characterisation issue Per Bell P; Meagher JA agreeing at [138]; Leeming JA agreeing at [139]: 1. The question of the validity of the impugned Orders did not turn upon whether they were of an administrative or legislative character. Rather, the relevant question was simply whether the impugned Orders were validly authorised by s 7 of the Public Health Act 2010 (NSW): [79]. 2. The power in s 7 is not limited to the making of "administrative" orders. The true nature and purpose of the power conferred by s 7 may be seen from the legislative text and context. The premise of the power in s 7(2) is that there is a risk to public health, encompassing a danger to the health of many members of the public. It is plain from s 7(3) that the power extends to orders which curb freedom of movement, without limiting the broad power granted by s 7(2): at [73]-[78] per Bell P; at [138] per Meagher JA; at [158]-[160] per Leeming JA. 1. In determining whether delegated legislation is ultra vires, it is wrong to apply the reasoning in decisions concerning other, differently worded powers uncritically: [148]-[152]. Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301; [1943] HCA 15; Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWC 146; Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423; Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1949] HCA 47, referred to. 1. The distinction between "administrative" and "legislative" instruments is problematic, far from crisp and well-defined, and dependent on context. There is no reason in principle why a power may not fairly be described as both legislative and administrative: [153]-[155]. Victorian Stevedoring and General Contracting Co Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582, cited. As to the construction issue Per Bell P; Meagher JA agreeing at [138]; Leeming JA agreeing at [139]: 1. Consideration of the operation, purpose and scope of s 7 of the Public Health Act 2010 (NSW) in view of the status of "the protection of the health and safety of the public" as the "paramount consideration" in the exercise of powers conferred by the Act: [50]-[60]. 2. The express power in s 7(3) is formulated "without limiting subsection (2)", such that to construe s 7(3) as limiting the scope of the power vested by s 7(2) would run contrary to the fundamental purpose of the Act. It was inconceivable that Parliament would not have intended to afford the Minister maximum flexibility to address risks to public health: [127]-[129]. Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9; Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, considered. 1. Consideration of the relationship between s 7 and s 8 of the Public Health Act. The concept of a "state of emergency", as effected by a declaration in those terms by the Premier, operates as a clear mechanism to indicate when the power in s 8 of the Public Health Act 2010 (NSW) is engaged rather than the power in s 7. Section 8 of the Act was not engaged in the absence of a declaration of a state of emergency by the Premier, within the meaning of the State Emergency and Rescue Management Act 1989 (NSW): [114]-[118]. 2. Discussion of the content and application of the principle of legality: [80]-[93]. 3. Of the six rights said to have been infringed by the impugned Orders in violation of the principle of legality, three of them - the "right to earn a living", the "right to privacy" and the "right not to be discriminated against" - were not recognised or fully recognised by the common law and did not engage the principle of legality. In any event, and in view of its express purpose, it would not be a sensible construction of s 7 of the Public Health Act 2010 (NSW) as authorising the restriction of freedom of movement except to the extent that it impaired a person's rights to earn a living, to privacy and not to be discriminated against. Such a construction would be unworkable and corrosive of the obvious purpose of the Act, in defiance of clear legislative intent: [111]-[112]. 4. None of the right to bodily integrity, the right to silence, and the privilege against self-incrimination, to the extent that they may otherwise engage the principle of legality, were infringed, even indirectly, by the impugned Orders: [113]. 1. The impugned Orders proceeded on the basis that persons, including "authorised workers", could choose not to be vaccinated. Vaccination was not a requirement under the impugned Orders, nor did they coerce "authorised workers", aged care workers or education workers to be vaccinated. The impugned Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. The impugned Orders contained no sanction for the exercise of the choice not to receive a vaccination: [96]-[97]. Norberg v Wynrib [1992] 2 SCR 226, distinguished. 1. The requirement under the impugned Orders to produce evidence of identity, residence and vaccination status did not have a tendency to incriminate unvaccinated persons. Rather, that requirement had the opposite, exonerating effect as production of that material would permit an authorised worker to take advantage of the exemption to travel outside an "area of concern" or to participate in certain work activities. On the proper construction of the impugned Orders, it could not sensibly be said that the purpose of the requirement to produce the relevant material was to obtain admissions of criminal conduct: [108]. Ex parte Grinham; Re Sneddon [1961] SR (NSW) 862, distinguished. Per Leeming JA; Meagher JA agreeing at [138]: 1. The legal analysis of whether s 7 of the Public Health Act 2010 (NSW) authorised the impugned Orders is not much assisted by deploying the language of "rights" and the "principle of legality". A more nuanced analysis is required, both of the asserted rights, and of the legal and practical operation of the impugned Orders: [167]. Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209, endorsed.

Judgment

1. BELL P: Between 30 September and 6 October 2021, Beech-Jones CJ at CL (the primary judge) heard two sets of proceedings (the Kassam Proceedings and the Henry Proceedings) involving challenges to various orders made pursuant to s 7(2) of the Public Health Act 2010 (NSW) in response to the COVID-19 pandemic and the particular impact of the so-called Delta variant of the virus.
2. There were four separate plaintiffs in the Kassam Proceedings and six separate plaintiffs in the Henry Proceedings. Their particular circumstances were described by the primary judge at [95]-[98] and [99]-[104] of his Honour's judgment (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (PJ)) and it is not necessary to refer to them in any detail, save to observe that they were all persons who were in one way or another directly affected by the various orders sought to be impugned.
3. Both the Kassam Plaintiffs and the Henry Plaintiffs contended that the Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order (No 2)) made pursuant to s 7(2) of the Public Health Act was invalid. The terms of s 7 are set out at [48] below. Deployed in support of the attack on Order (No 2) were arguments said to be based upon the principle of legality, with particular focus being placed upon the suggested impact of Order (No 2) on the rights of the Plaintiffs, including as to their bodily integrity as persons who have chosen not to be vaccinated. The effect but not the form of the Order, it was submitted, was to mandate or coerce vaccination.
4. The Kassam Plaintiffs further contended that Order (No 2) was unconstitutional in two respects, amounting to a form of civil conscription contrary to s 51(xxiiiA) of the Commonwealth Constitution, and being inconsistent with the Australian Immunisation Register Act 2015 (Cth) and thus invalid by reason of s 109 of the Constitution.
5. The Henry Plaintiffs also contended that the Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) (the Aged Care Order) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the Education Order) were invalid.
6. All of the Orders were contended to be invalid on various public law grounds, including that they were so unreasonable that they could not lawfully have been made, and that the Minister for Health and Medical Research (the Minister), in making the orders, failed to take into account relevant considerations and acted for an improper purpose.
7. In a comprehensive judgment delivered with great expedition on 15 October 2021, the primary judge dismissed both sets of proceedings. In so doing, his Honour observed (at PJ [7]) that it was: "not the Court's function to determine the merits of the exercise of the power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant. It is also not the Court's function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines especially their capacity to inhibit the spread of the disease. These are all matters of merits, policy and fact for the decision maker and not the Court (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28], [66] and [108]; 'Li'). Instead, the Court's only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences."
8. These observations apply equally to this Court's role. Indeed, for reasons explained below as a result of the requirement for leave to appeal in respect of both sets of proceedings, this Court's role is even more constrained.
9. At first instance, there was an issue as to whether Order (No 2), the Aged Care Order and the Education Order (together, the Impugned Orders) were of a legislative or administrative character. The primary judge held that it was not necessary to resolve this debate, but proceeded on the basis that the Impugned Orders were administrative in character on the footing that this was the most favourable basis to the Plaintiffs for the purposes of their collective challenges, in view of the fact that the grounds on which delegated legislation may be challenged are more constrained than those available in respect of judicial review of administrative decisions.
10. The primary judge rejected an argument made (and repeated on appeal) by reference to the principle of legality to the effect that the Impugned Orders interfered with various fundamental rights, but that s 7 of the Public Health Act did not authorise such interference. His Honour also held that:
11. The Impugned Orders did not in fact violate any right to bodily integrity, as they did not authorise the involuntary vaccination of anyone: PJ [9].
12. To the extent that the Impugned Orders curtailed freedom of movement which in turn may have affected a person's ability to work and socialise by reference to a person's vaccination status, this was the very type of restriction that the Public Health Act authorised. As such, the principle of legality did not justify the reading down of s 7(2) of the Public Health Act to preclude the imposition of limitations on that freedom: PJ [9].
13. Any consideration of the unreasonableness of an order made under s 7(2) was to be undertaken by reference to the objects of the Public Health Act which were exclusively directed to public safety. In that context, the differential treatment of people according to their vaccination status was not arbitrary: PJ [10].
14. It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power by the Minister, nor that the making of the Impugned Orders by the Minister involved any failure to ask the right question or any failure to take into account relevant considerations, much less that it was undertaken for an improper purpose: PJ [11(i)].
15. It was otherwise not demonstrated that either the manner in which the Impugned Orders were made was unreasonable or that the operation and effect of the Orders could not reasonably be considered to be necessary to deal with the identified risk to public health and its possible consequences: PJ [11(ii)].
16. Order (No 2) did not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution and, even if it did, the prohibition on civil conscription does not apply to laws made by the State of NSW: PJ [11(iv)]. The primary judge described this aspect of the constitutional argument as "completely untenable": PJ [286]. His Honour also rejected an argument based upon PJ Magennis Proprietary Limited v Commonwealth (1949) 80 CLR 382; [1949] HCA 66 (Magennis) to the effect that there was a joint scheme between the Commonwealth and the State which engaged s 51(xxiiiA): PJ [284].
17. There was no inconsistency between Order (No 2) and the Australian Immunisation Register Act: PJ [11(v)]. The primary judge described this argument as "without substance": PJ [293].
18. Applications for leave to appeal have been filed in both sets of proceedings.
19. The Kassam Applicants have raised the following 11 grounds of appeal: "1. The primary judge erred in holding that in the absence of a bill of rights applicable in NSW the Appellants' right to bodily integrity, their right to freedom of movement unmolested by government except where expressly authorised by law, and their right to work, were not protected by the common law. 2. The primary judge misconstrued and misapplied Public Health Act 2010 including but not limited to section 7. 3. The primary judge misconstrued Order No 2. 4. The primary judge erred in failing to construe and apply the usual implication of reasonableness with respect to the making of Order No 2 and in preferring the evidence of Professor Macartney in relation to the effectiveness of treatments, vaccines or mRNA inhibitors and their capacity to inhibit their spread of disease over the six experts called by the appellants, particularly having regard to the far reaching consequences of Order No 2. 5. The primary judge erred in holding that the making of Order No 2 in the form and to the effect made was legally reasonable. 6. The primary judge erred in construing and misapplying Constitution section 51 (xxiiiA) with respect to civil conscription. 7. The primary judge erred in construing and misapplying Constitution section 109 and the terms operation and effect of Australian Immunisation Act 2015. 8. The primary judge erred in his findings in that there was no evidence to support the findings, including that the Appellants made an informed choice not to be vaccinated, and/or that the provisions of Order No 2 do not comprise an effective means of compulsion. 9. The primary judge erred in that an inference drawn was not supportable by the facts, including the finding that the arrangements between the Commonwealth and the State of NSW are and were not an effective mode of civil conscription. 10. The primary judge wrongly excluded or admitted evidence. 11. The primary judge erred in failing to give adequate reasons for the findings of fact made including that abrogation of fundamental common law rights was the very thing the Public Health Act 2010 set out to achieve, without having regard to the applicable second reading speeches, and the text, context and purpose of the law."
20. Grounds 7 and 10 were not pressed, although it should be observed that the formulation of a ground of appeal such as ground 10 is completely unacceptable without any identification of the evidence said to have been either wrongly excluded or wrongly admitted. As Gleeson JA outlined in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [52], the importance of precision in formulating grounds of appeal cannot be overstated.
21. The Henry Applicants have raised the following 8 grounds of appeal: "1. The learned trial judge erred in determining that the Respondent did not act outside his power in making the impugned public health orders. In particular, the learned trial judge erred: a. in determining the Impugned Public Health Orders did not violate the rights as contended by the Appellants, namely: i. the right to bodily integrity; ii. the right to earn a living; iii. the right not to be discriminated against; iv. the right to privacy; v. the right to silence; and vi. the privilege against self-incrimination. b. in determining that, in the absence of Australia having a bill of rights, the common law rights identified by the Applicants were not effectively engaged so that the principle of legality operated to limit the scope of the power under s 7 of the Public Health Act 2010 (NSW); c. in determining that the Impugned Public Health Orders abrogated rights that the legislation set out to achieve; d. in failing to determine that certain particular Impugned Public Health Orders pertaining to the gathering and production of vaccination evidence were designed to enforce other public health orders and were therefore not within the scope of s 7 of the Public Health Act 2010 (NSW); e. In determining that s 7 of the Public Health Act 2010 (NSW) should not be read down so as to render the Impugned Public Health Orders invalid. 2. The learned trial judge erred in finding that the impugned public health orders did not mandate or coerce workers to be vaccinated. 3. The learned trial judge erred in determining that the Impugned Public Health Orders were not made for an improper purpose in that the learned trial judge failed to determine that the Impugned Public Health Orders were legislative in character in circumstances where the Court was called upon to determine that the power under s 7 is an administrative power (not legislative), and in circumstances where the Respondent used the s 7 power to legislate a compulsory public vaccination program being a purpose not authorised by the Public Health Act 2010 (NSW). 4. The learned trial judge erred in determining that the Respondent did not fail to take into account relevant considerations, namely: a. the safety and efficacy of COVID-19 vaccinations; b. the rights referred to in Ground 1(a)(i) to (vi) above; c. other measures, including alternatives to vaccination, as a means by which to address the risk to public health that COVID-19 represents; 5. The learned trial judge erred in determining that the Respondent did not take into account irrelevant considerations, namely that a person who chooses not to be vaccinated is 'self-entitled and indulgent in the extreme'. 6. The learned trial judge erred in determining the Impugned Public Health Orders were not unreasonable and not disproportionate. 7. The learned trial judge erred in failing to draw an adverse inference against the Respondent from his failure to adduce evidence to explain what matters or considerations were taken into account in making the Impugned Public Health Orders. 8. The learned trial judge erred in failing to accept the expert evidence adduced in support of the Applicants' case (including that adduced by the Kassam plaintiffs), none of whom were sought to be cross-examined."
22. Before turning to consider the question of leave to appeal, it is important to note the current status of the Impugned Orders.

Status of the Impugned Orders

1. Order (No 2) was originally made by the Minister on 20 August 2021, and was amended on numerous occasions. On the evening of 3 October 2021, that is, during the course of the proceedings below, the Minister made Public Health (COVID-19 General) Order 2021 (the General Order) which repealed Order (No 2) with effect from the beginning of 11 October 2021. Despite this, it was not contended by any party at first instance that the challenges to Order (No 2) were rendered futile: PJ at [6]. Both sets of Plaintiffs confirmed that they sought declaratory relief concerning its invalidity. Further, the Aged Care Order and the Education Order (as challenged by the Henry Plaintiffs) continued to have effect at the date of the primary judgment.
2. However, the Aged Care Order (which was made by the Minister on 26 August 2021) and which was still in force at the time of delivery of the primary judgment, was repealed with effect from 9am on 1 November 2021, pursuant to the Public Health (COVID-19 Care Services) Order (No 2) 2021 (NSW).
3. The Education Order, which was made by the Minister on 23 September 2021, remains in force. Unless repealed earlier, it will expire at the end of 22 December 2021, pursuant to s 7(5) of the Public Health Act. That sub-section provides that an order made under s 7 expires at the end of 90 days after the order is made, unless earlier revoked or specified in the order.
4. The status of these Orders, two of which have ceased to be operative and one of which will cease to operate in a matter of weeks, together with the form of relief sought by the parties both at first instance and on appeal, namely the making of bare declarations unaccompanied by any claims for compensation or damages which would almost certainly not be available in any event (see Public Health Act ss 132-133) bears strongly on the question of leave to appeal, to which I now turn.

Principles and submissions

1. Notwithstanding the assertion unsupported by argument on the part of the Henry Applicants that leave to appeal was not required, no appeal to this Court lies other than with the leave of the Court of Appeal from a final judgment or order of a judge of a Division of the Supreme Court, unless it involves "a matter at issue" amounting to or of the value of $100,000 or more or (directly or indirectly) "any claim, demand or question to or respecting any property or civil right" amounting to or of the value of $100,000 or more: Supreme Court Act 1970 (NSW) s 101(2)(r). That is not this case, notwithstanding evidence led on information and belief in support of the application for leave that one of the Applicants in the Kassam Proceedings had suffered a financial loss of more than $100,000 as a result of the making of Order (No 2).
2. In Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [13]-[30], I reviewed the principles relevant to s 101(2)(r) of the Supreme Court Act. Putting aside the questionable form of the "evidence" relied upon (a hearsay assertion), most relevant for present purposes is the fact that the phrase "matter at issue" in the sub-section has been construed as meaning that there is "a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000": see at [18]. That would not be the consequence of a successful appeal in circumstances where there was no claim for damages and no property or civil right involved having the requisite value or capable of being so valued cf. Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 205; [1960] HCA 40.
3. The requirement of leave to appeal plays an important role in the administration of justice. It is a preliminary procedure "recogni[s]ed by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention": see Coulter v The Queen (1988) 164 CLR 350 at 356; [1988] HCA 3; see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [35].
4. The Henry Applicants put that if leave was required, it should be granted for the following reasons: "(a) The case involves significant matters of principle concerning the exercise of public power by a Minister under s 7 of the Public Health Act 2010 within the context of an unprecedented global pandemic. In particular, a discretionary statutory power has never before been used in a way that effectively obliges a significant section of the workforce to submit to vaccinations under threat of losing their ability to work. (b) The public health orders at issue are so detailed, prescriptive and generalised in their application that concern is necessarily raised as to whether a Minister has usurped the function of the Parliament by effectively legislating a compulsory public vaccination program in circumstances where there is no long-term data relating to the efficacy and safety of the vaccinations sought to be administered."
5. The Kassam Applicants adopted these reasons and, in addition, submitted that the appeal raised significant matters of principle concerning: "a. The extent of the powers granted to the Minister by s.7 of the Act b. The meaning and extent of the constitutional guarantee against civil conscription in Constitution S.51(xxiiiA) c. Whether the agreements reached and arrangements entered into between the [State of New South Wales] and [the Commonwealth], with others, at National Cabinet constitute a 'joint scheme' between the Commonwealth and at least one of the Australian States, analogous to that found in PJ Magennis Pty Ltd v Commonwealth [1949] HCA 66; 80 CLR 382; 23 ALJR 564; [1950] ALR 33."
6. The principles concerning leave to appeal were summarised by Gleeson JA (with whom Macfarlan and Payne JJA agreed) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] as follows: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]."
7. In Sharpe v Heywood [2013] NSWCA 192 at [34], Gleeson JA, with whom Barrett JA agreed, said that "[a]lthough not the only factor relevant, an essential prerequisite of a grant of leave to appeal is that the Court be persuaded that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal."
8. Leave to appeal will also be refused where its grant would lack utility: see, for example, Hamzy v NSW Commissioner of Police [2020] NSWCA 184 at [40], [44], [45] and [53]; Rinehart v Rinehart [2020] NSWCA 221 at [43]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [146] and [148]; Eliezer v The Owners - Strata Plan No 51682 [2017] NSWCA 325 at [10]; Bowers v The Law Society of New South Wales [2021] NSWCA 270 at [12]-[13]; and Lisa Maree Campbell as Administrator ad litem of the Estate of the Late Ralph Gordon Barry Campbell v Commonwealth Bank of Australia [2014] NSWCA 316 at [21]. Not only is this consideration sound as a matter of common sense, but to grant leave in a case where there would be no utility in doing so scarcely facilitates "the just, quick and cheap resolution of the real issues in the proceedings" cf. Civil Procedure Act 2005 (NSW) s 56. Moreover, scarce judicial resources should not be deployed in resolving proceedings whose utility is either wholly lacking or extremely limited: see, for example, Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16].
9. Utility is, moreover, not to be measured by the interest that may lie in the particular answer of a court of a particular status on a question or questions in circumstances where any answer it gives will have no practical effect as between the parties, or at all. It is not the role of this Court to give advisory opinions on what may have become hypothetical questions. In Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9 at [47], the plurality of the High Court noted that: "Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude." (footnote omitted). See also Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [180] and [457].
10. Leave to appeal was opposed by the State.
11. The State properly accepted that those grounds of appeal seeking to challenge the primary judge's construction of s 7 of the Public Health Act raised an issue of general importance. The State submitted, however, that the primary judge's construction was not attended by sufficient doubt so as to warrant a grant of leave. The State also submitted that the specific grounds concerning Order (No 2) - namely grounds 3, 4 and 5 - raised no issue of principle or public importance and noted that the only Order challenged by the Kassam Applicants, being Order (No 2), had been repealed for more than a month, and the invalidity of the Order would not give rise to any claim for damages. The State also noted that there was no challenge made below to the validity of the General Order which replaced Order (No 2).
12. In relation to the constitutional arguments with respect to s 51(xxiiiA), the State contended that the primary judge was correct to describe such arguments as "completely untenable". The State further noted that the Kassam Applicants advanced no submissions in support of ground 7, and little if any argument related to grounds 8, 10 and 11 and, as noted above, grounds 7 and 10 were not ultimately pressed.
13. With respect to the Henry Proceedings, the State similarly submitted that none of the proposed grounds of appeal had sufficient merit to warrant a grant of leave. Whilst the State again accepted that the grounds seeking to challenge the primary judge's construction of s 7 of the Public Health Act raised an issue of general importance, the State submitted that the primary judge's construction was "clearly correct", and that the balance of the grounds raised no point of principle.
14. The State further submitted that, given that, of the Orders impugned by the Henry Parties, only the Education Order remained in force and expires no later than 22 December 2021, "there is limited general public importance or utility in the Court considering the impugned orders".

Disposition of leave question

1. I would grant leave to appeal in relation to those grounds which involve the proper construction of s 7 of the Public Health Act (grounds 1-3 in the Henry Appeal and grounds 1-2 in the Kassam Appeal). That issue, as the State concedes, raises a matter of public importance. Questions of construction in relation to s 7 of the Public Health Act have ongoing significance given the continuation of the Education Order, and the fact that the COVID-19 virus continues to mutate and that the risk to public health caused by the pandemic has not abated.
2. I am of the view, however, that leave to appeal should be refused in respect of grounds 4-8 of the Henry Appeal and grounds 3-6, 8-9 and 11 of the Kassam Appeal. This is for a number of reasons.
3. First, by way of contrast to those grounds in respect of which I would grant leave (and putting to one side for the moment the constitutional arguments), the remaining grounds involve challenges to the process by which the Impugned Orders were made, or the legal reasonableness of those Orders in light of the evidence led at first instance of the Minister's purpose in making those orders. These matters are all evidence specific and the grant of leave to appeal would manifestly lack utility in relation to Order (No 2) and the Aged Care Order, both of which have been repealed. A grant of leave to appeal would be of extremely limited utility in relation to the Education Order, as it will expire on 22 December 2021 with the final term of public schools in New South Wales ending on 17 December 2021.
4. Secondly, having carefully reviewed the detailed reasons of the primary judge in relation to the issues covered by the grounds in respect of which I would refuse leave to appeal, I am comfortably satisfied that they disclose no error of principle. Moreover, aspects of the arguments advanced in support of those grounds lack any secure foundation in the case law. This was particularly so in relation to ground 4 of the Henry Appeal which, at least as it was advanced in oral argument by Mr Clarke QC, failed to have proper regard to the well-known observations of Mason J, as he then was, in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39; [1986] HCA 40 (Peko-Wallsend) cf. s 62(6) of the Public Health Act (referred to at [54] below).
5. In relation to the constitutional arguments sought to be raised by the Kassam Applicants (grounds 6 and 9, noting that ground 7 was not pressed), I agree with the primary judge's assessment that the argument based upon s 51(xxiiiA) of the Constitution was completely untenable. As his Honour noted at PJ [267], that placitum "only qualifies a (Commonwealth) law for the 'provision' of 'medical or dental services'." Moreover, as his Honour outlined at PJ [268], "civil conscription is directed to compulsive service in the provision of medical services", not their receipt. As the primary judge observed at PJ [272], "[n]othing in any part of Order (No 2) or the [Public Health Act] involves any element of coercion on a doctor or other medical provider to vaccinate anyone."
6. Additionally, s 51(xxiiiA) of the Constitution is not a constraint on State power. Ground 9 of the Kassam Appeal relates to the attempt to circumvent the fact that s 51(xxiiiA) does not purport to constrain State power and is bound up with the unsuccessful argument put at first instance based on Magennis. This was only one of the objections to the s 51(xxiiiA) argument. In any event, as the primary judge observed at PJ [284] in relation to the body of material which the Kassam Parties sought to rely on: "all this [sic] of this material takes the matter nowhere for two reasons. First, there is nothing in any of the materials relied on, including the material concerning aged care workers, to support the contention that NSW was required under some agreement to mandate vaccines to anyone (cf Spencer at [210]). Second, even if they were, there is nothing in Order (No 2) or the [Public Health Act] to suggest that any aspect of their operation or validity is dependent on the existence of any agreement with the Commonwealth to require them to mandate vaccines which on the authority of Magennis might render them inoperative." (emphasis in original).
7. The documents relied upon by the Kassam Parties did not warrant a finding of the kind required by analogy with Magennis but, even if they had, it would not assist because of the fact that nothing in the Impugned Orders imposed any form of compulsion on a provider of medical or dental services so as to engage the operation of the placitum, assuming it otherwise applied.
8. Just because an argument is raised under the Constitution does not give it any elevated status when considering a grant of leave to appeal. Leave to appeal should be refused in relation to grounds 6 and 9 of the Kassam Appeal.
9. Ground 8 of the Kassam Appeal also does not warrant the grant of leave. It was not the subject of any written submissions advanced on behalf of the Kassam Parties.
10. Ground 11 of the Kassam Appeal is fanciful. The primary judge's reasoning was thorough with extensive consideration being given to the text, context and purpose of the Act and, contrary to the assertion in ground 11, regard was had to the second reading speech: see PJ [13]-[42].
11. The refusal of leave to appeal on the grounds indicated also renders of no relevance the fresh evidence that was sought to be adduced by both the Kassam and Henry Parties. As such and for that reason alone, I would reject the attempt to lead that evidence.
12. It follows from the limited grant of leave to appeal that the balance of this judgment focuses on the proper construction of s 7 of the Public Health Act and the question of whether it authorised the making of the Impugned Orders.

The Public Health Act

1. The objects of the Public Health Act are set out in s 3. They are: (a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health. (f) to monitor diseases and conditions affecting public health.
2. Section 3(2) provides that "[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act."
3. Section 7 of the Public Health Act provides as follows: "7 Power to deal with public health risks generally (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."
4. A number of observations may be made about s 7 of the Public Health Act.
5. First, the risk to public health with which it is concerned need not have materialised at the time of the making of any order under s 7; all that is required is that a "situation" has arisen that "is, or is likely to be" a risk to public health. It was not submitted at first instance, and not ultimately submitted on appeal, that either the COVID-19 pandemic or the emergence of the Delta strain was not a "situation" for the purposes of s 7 of the Public Health Act.
6. Secondly, the powers conferred by s 7(2) are broad, confined only by what "the Minister considers necessary to deal with the risk and its possible consequences", supplemented by an implied requirement that the Minister undertakes that consideration reasonably: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34]. The breadth of the power conferred by s 7(2) is also informed by the subject matter, scope and purpose of the Act and the paramount consideration specified in s 3(2) of the Act.
7. Section 7(2) on its face thus confers a broad discretion on the Minister. Contrary to submissions advanced by the Appellants, any judicial review of the Minister's exercise of power must be undertaken not by reference to what may have been objectively necessary (even if that were ascertainable, it being a matter upon which views could differ) but by reference to whether it was open to the Minister, acting reasonably, to "consider" that the measures given effect by the Orders were necessary. As Gleeson CJ observed in Mulholland v Australian Electoral Commission (2004) 220 CLR 181, [2004] HCA 41 at [41]: "the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy."
8. Dr Harkess, who appeared for the Henry Parties, accepted that s 7(2) authorised the making of "detailed directions insofar as they are designed to restrict the freedom to move". He was constrained to accept in his submissions in reply, however, that the logic of his argument based upon the principle of legality was that directions designed to restrict the freedom of movement in furtherance of the paramount consideration identified in s 3(2) of the Public Health Act were not permissible insofar as they impaired, even in an indirect or temporary way, any of the six rights identified in ground 1(a) of the Henry Notice of Appeal (see [14] above), which are considered in more detail below. Such an interpretation would be corrosive of the express power to curtail movement and would have the potential to significantly undermine the efficacy of any measures introduced to restrict movement.
9. Thirdly, no matters or considerations are mandated as to what the Minister is to take into account in exercising the power conferred by s 7(2). This may be contrasted with s 62(6) of the Act, which is concerned with public health orders made by an authorised medical practitioner relating to persons with what are referred to as Category 4 or 5 conditions. In deciding whether or not to make a public health order pursuant to that section of the Act, an authorised medical practitioner is by s 62(6) required to ("must") take into account "the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health" as well as "any matters prescribed by the regulations for the purposes of this section." The absence of a similar provision in or in relation to s 7 defeats the suggestion made by the Henry Parties that such a consideration was mandatory for the purposes of s 7, cf. Peko-Wallsend.
10. Fourthly, s 7(3) of the Public Health Act is not a separate source of power but supplies an example of the kind of order that may be made pursuant to s 7(2). Importantly, s 7(3) is expressly stated not to limit s 7(2), a textual indication militating powerfully against one of the arguments advanced on behalf of the Kassam Parties and dealt with at [121]-[130] below. Sub-sections 7(3)(b) and (c) indicate that an order made pursuant to the power conferred by s 7(2) may restrict movement and restrict access to particular areas, whether absolutely or conditionally. The reference to "inhabitants" and the fact that an order may apply to inhabitants of "any part of the State" illustrates the potential breadth of such an order.
11. Fifthly, the fact that, pursuant to s 7(4), an order made pursuant to s 7 is required to be published in the Gazette as soon as practicable after it is made, but that failure to do so will not invalidate it, also points towards the potentially broad-reaching effect of such an order and its importance. It is an order designed formally to come to people's attention by publication in the Gazette.
12. Sixthly, the fact that, pursuant to s 7(5), an order will expire at the end of 90 days after it was made (if not revoked or specified to end earlier) highlights the temporary nature of any order made pursuant to s 7(2). If such an order interfered with fundamental rights, such interference would necessarily only be temporary.
13. In this context, it is relevant to note one argument advanced on behalf of the Henry Parties. Dr Harkess submitted that s 7(2) should only be used for "short, sharp" measures to address a "short, discrete event", an "isolated incident" or a "situation" that had arisen, suggesting thereby that the section could not be used to address a situation presenting a public health risk or likely risk of lengthy duration and extensive impact. This submission should be rejected. First, an order under s 7(2) may be made prophylactically and it may be impossible to know whether the risk perceived as likely to arise will in fact materialise and, if so, for how long it will last. Secondly, the word "situation" does not necessarily or obviously imply something minor or only calling for a "short, sharp" response. The "situation" in existence may be grave or potentially so. Thirdly, pursuant to s 7(5), the only temporal limitation is 90 days. That is not a self-evidently short period and, in fact, was lengthened from 28 days which was the corresponding period under the predecessor Act: see the Public Health Act 1991 (NSW) s 5(6).
14. Seventhly, s 7(6) is a machinery provision in the sense that it makes it plain that, in the postulated circumstance, there may only be one set of orders made under the Public Health Act governing the situation.
15. Eighthly, the significance, if any, of s 7(7) is dealt with at [76] below.
16. It is also necessary to set out s 8 of the Public Health Act as it, together with the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) featured prominently in the argument advanced by Mr King on behalf of the Kassam Parties. Section 8 of the Public Health Act provided that: "8 Power to deal with public health risks during state of emergency (1) This section applies in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (the 1989 Act) if, after consultation with the Minister administering that Act, the Minister considers on reasonable grounds that the emergency is, or is likely to be, a risk to public health. (2) In these circumstances, the Minister, with the agreement of the Minister administering the 1989 Act- (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 direct- (a) all persons in a specified group, or (b) all persons residing in a specified area, to submit themselves for medical examination in accordance with the order. (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 when the relevant state of emergency ceases to exist. (6) Action taken (including any order made) under this section has effect as if it had been taken in the execution of Division 4 of Part 2 of the 1989 Act."

The Impugned Orders

1. Each of the Impugned Orders was described in detail by the primary judge: Order (No 2) at PJ [43]-[54], the Aged Care Order at PJ [77]-[83] and the Education Order at PJ [84]-[94].
2. Each of the Orders set out grounds for concluding that there was a risk to public health. The following three grounds were common to each order: "(a) public health authorities both internationally and in Australia have been monitoring and responding to outbreaks of COVID-19, which is a condition caused by the severe acute respiratory syndrome coronavirus (SARS-CoV-2), (b) COVID-19 is a potentially fatal condition and is highly contagious, (c) a number of cases of individuals with COVID-19 have recently been confirmed in New South Wales and other Australian jurisdictions, including by means of community transmission, and there is an ongoing risk of continuing introduction or transmission of the virus in New South Wales."
3. In addition, the Aged Care Order and the Education Order included the further ground that "the risk of transmission, including by means of community transmission, of COVID-19 in New South Wales will remain significant and ongoing unless more COVID-19 vaccines are administered."
4. The Education Order added a further ground, namely that "there is a risk of transmission of COVID-19 among children at government schools, non-government schools and early education and care facilities because the COVID-19 vaccine is currently not available for children of certain ages" (emphasis added).
5. The focus of the attack on Order (No 2) was cll 4.3 and 5.8, but it is necessary to note at the outset that Pts 2, 3 and 4 of that Order were directed to what was described as "the general area", "stay at home areas" and "areas of concern" respectively. These were areas which were identified in Pts 1, 2 and 3 respectively of Schedule 1 to the Order. Part 5 of Order (No 2) contained additional directions for Greater Sydney.
6. Clause 4.3, which fell within Pt 4 of the Order and related to the "areas of concern" as identified in Schedule 1, provided as follows: "4.3 Leaving area of concern for work (1) A person who lives in an area of concern must not leave the area of concern for the purposes of work unless the person is an authorised worker. (2) An authorised worker must not leave the area of concern for work without a permit issued by Service NSW. Note - See clause 6.4. (2A) An authorised worker does not require a permit for the provision of an emergency service. (3) An authorised worker who is at least 16 years of age must not leave the area of concern for work unless the worker - (a) has had at least 1 dose of a COVID-19 vaccine, or (b) has been issued with a medical contraindication certificate. (3A) The authorised worker, when leaving the area of concern for work must - (a) carry the required evidence, and (b) produce the required evidence for inspection if requested by - (i) the worker's employer, or (ii) the occupier of the worker's place of work, or (iii) a police officer, or (iv) an authorised officer. (3B), (3C) (Repealed) (3D) This clause does not apply to a person if the person has not been in the area of concern during the previous 14 days. (4) In this clause - authorised worker means a person who is authorised to work outside the area of concern because of an exemption under Part 7. Note 1 - A list of authorised workers is published on the NSW government website www.nsw.gov.au. Note 2 - See clause 5.8 for additional restrictions for workers who reside in an area of concern and who work on a construction site in Greater Sydney. required evidence means - (a) evidence showing the worker's name and place of residence, and (b) the worker's vaccination evidence, and (c) a permit issued by Service NSW, if required."
7. Clause 5.8 which fell within Pt 5 of the Order and related to Greater Sydney provided as follows: "5.8 Vaccination required to work on construction sites in Greater Sydney (1) A person whose place of residence is in an area of concern must not enter or remain on a construction site in Greater Sydney unless the person - (a) has had 2 doses of a COVID-19 vaccine, or (b) has had 1 dose of a COVID-19 vaccine at least 21 days ago, or (c) has had 1 dose of a COVID-19 vaccine within the previous 21 days and has been tested for COVID-19 within the previous 72 hours, or (d) has a medical contraindication certificate issued to the person and has been tested for COVID-19 within the previous 72 hours. (2) The occupier of the construction site must not allow the person to enter or remain on the construction site unless satisfied that the person has complied with this clause. (3) The person must, when entering or on the construction site - (a) carry the required evidence, and (b) produce the required evidence for inspection if requested by - (i) the person's employer, or (ii) the occupier of the construction site, or (iii) a police officer, or (iv) an authorised officer. (4) (Repealed) (5) This clause does not apply to the following persons - (a) a person who enters or remains on a construction site because of an emergency, (b) a police officer, (c) an authorised officer. (6) In this clause - required evidence means - (a) evidence showing the person's name and place of residence, and (a1) a permit issued by Service NSW, if the person is required to have the permit to enter or leave an area of concern for work, and (b) all of the following that apply to the person - (i) evidence from the Australian Immunisation Register that the person has had 1 or 2 doses of a COVID-19 vaccine, Example - An online immunisation history statement or COVID-19 digital certificate from the Australian Immunisation Register. (ii) evidence that the person has been tested for COVID-19, Example - An SMS text message or email from the testing organisation. (iii) a medical contraindication certificate issued to the person. test for COVID-19 includes test for COVID-19 using a rapid antigen test in the way approved by the Chief Health Officer."
8. The primary judge said at PJ [56] that: "provisions such as clause 4.3 and 5.8 do not violate any person's right of bodily integrity. Unlike, say, the court orders in Marion's Case, they do not purport to confer authority on any person including a medical practitioner to perform a medical procedure on anyone. After the making of Order (No 2), any attempt to force an injection into the arm of anyone who lived in an area of concern or worked in the construction industry was still a battery." His Honour continued: "57 Clause 4.3 operated in conjunction with clause 4.2 which precluded all persons residing in an area of concern from leaving their homes without a reasonable excuse, one of which was that it was not reasonably practical for a person to work at their residence. Clause 4.3(1) qualified the ability to leave home for any of the reasonable excuse reasons so that a resident of an area of concern could only leave the area if they were an 'authorised worker'. In turn, subclause 4.3(3) qualified that limited permission to authorised workers to leave the area of concern so that in effect it was only applicable to the vaccinated. The end result was that persons who lived in the areas of concern, who were authorised workers, and who had not fulfilled the vaccination requirements were in no different position to people who lived in the areas of concern and who were not authorised workers. They all had their freedom of movement severely restricted. 58 Clause 5.8 of Order (No 2) operated differently but it still imposed a sanction on entering and remaining on a construction site which was relaxed for the vaccinated. Neither clause 4.3 nor clause 5.8 authorised the vaccination of persons without their consent. Neither provision imposed a sanction for being unvaccinated per se. On its face these provisions impaired freedom of movement and not a person's autonomy over their own body."
9. His Honour concluded at PJ [70] that: "provisions such as clause 4.3 and 5.8 do not amount to a violation of anyone's right to bodily integrity but instead impede their freedom of movement which has consequential effects on their ability to work. Freedom of movement is undoubtedly important, although it is not necessarily some form of positive right. Regardless, the [Public Health Act] is clearly directed to limiting that freedom, sometimes severely."
10. The primary judge reached similar conclusions about the effect of the Aged Care Order and the Education Order: see PJ [83] and [94]. Those Orders, although expressed in different ways, also conditioned the ability to attend at work, relevantly an aged care facility and schools, on persons having at least one vaccination: see Aged Care Order cl 5; Education Order cl 4.
11. Attention is now turned to the various arguments advanced on appeal in relation to the grounds upon which I would grant leave to appeal.

Administrative or legislative?

1. The first argument advanced was that s 7 of the Public Health Act only authorised administrative action but that the Impugned Orders were legislative in their effect, and invalid for that reason.
2. There are various areas in which the characterisation of an action, instrument or order as either administrative or legislative is rendered important by statute. One example is where an instrument of a particular character needs to be laid before Parliament. This was the issue in Commonwealth v Grunseit (1943) 67 CLR 58; [1943] HCA 47 which involved s 5(4) of the National Security Act (1939-1940) (Cth). See also Sea Shepherd Australia Ltd v Western Australia (2014) 313 ALR 208; [2014] WASC 66, relating to the need for all subsidiary legislation in Western Australia to be published in the Gazette as required by s 41 of the Interpretation Act 1984 (WA).
3. Another and perhaps the most familiar example of a statute rendering the characterisation of an action or an instrument of a particular character of importance is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) which permits judicial review of "decision to which this Act applies" which is defined in s 3 to mean "a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition)" under a specified enactment or by a Commonwealth authority or an officer of the Commonwealth. Unsurprisingly, there is a well-developed body of jurisprudence which has built up, especially in the Federal Court, in relation to the meaning of a decision of "an administrative character". Difficult questions may arise in this regard in circumstances where review is sought under the ADJR Act of instruments which may be regarded as being of a legislative, as distinct from an administrative, character. The decision of the Full Court of the Federal Court in Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582; [1997] FCA 723 is a case in point; see also RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855.
4. 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.
5. In my view, the question of the validity of the Impugned Orders does not turn upon whether or not they were of an administrative or legislative character (and the two are not necessarily mutually exclusive: see McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 at [39] and the reasons of Leeming JA at [153]-[155] below). Rather, the question is simply whether the Impugned Orders were authorised by s 7 of the Public Health Act.
6. In my view, they were. The power in s 7 of the Public Health Act is very broad and no narrow construction should be afforded to it given its subject matter and the nature of the risk it is designed to address, matters which Leeming JA in his separate reasons has also emphasised.
7. Arguments based upon the principle of legality, what was called "the erroneous pathway" and Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9 (Anthony Hordern) do not defeat that conclusion. Those arguments are now addressed.

Principle of legality

1. The next argument advanced was that the Impugned Orders were not authorised by s 7 of the Public Health Act because they amounted to or resulted in an interference with the six rights referred to in ground 1(a) of the Henry Notice of Appeal (see [14] above) contrary to the principle of legality.
2. The principle, in its modern manifestation, is closely associated with the decision of the High Court in Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 (Coco) although, in Australian jurisprudence, it may be traced back to Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63. In Coco at 437, a plurality of the High Court noted the following: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." (footnote omitted).
3. The principle has excited much debate and controversy as to its nature and sphere of operation: see, for example, D Meagher and M Groves (eds), The Principle of Legality in Australia and New Zealand (2017, Federation Press) (Meagher and Groves); and JJ Spigelman, Statutory Interpretation and Human Rights (2008, University of Queensland Press). That debate is ongoing and extends to whether the "principle of legality" is properly described as a principle at all: see J Basten, "The Principle of Legality - An Unhelpful Label?" in Meagher and Grove at Ch 5.
4. For these reasons, it is important to keep the principle of legality in perspective and it must be applied with care: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [38]. A number of points may be made in this regard.
5. First, as the primary judge held, the principle of legality is not of universal application and the assistance to be gained from it varies widely: see, for example, Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321; [2000] HCA 7 at [43] (DB Management); Electrolux Home Products Pty Limited v The Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [19]-[23]; see also Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88 at 94; [1982] HCA 2; O'Sullivan v Farrer (1989) 168 CLR 210 at 215; [1989] HCA 61; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575; [1992] HCA 10 (Ainsworth) as to the need for caution in the application of rules of statutory interpretation so as to bring about a result that the legislation is unlikely to have intended.
6. DB Management was a case where the presumption that legislation is not intended to interfere with vested proprietary rights had been invoked in the context of construing the takeover provisions in Ch 6 of the then Corporations Law (NSW). Of course, one of the purposes of those provisions was to permit the compulsory acquisition of shares in a company once a particular ownership threshold had been reached. The very nature of the legislation in question necessarily contemplated an interference with proprietary rights, namely the shares of those shareholders who had not accepted a takeover offer. As a unanimous High Court observed at [43], "interference with vested proprietary rights … is what compulsory acquisition is about". Their Honours went on to observe that "it does not help to say that legislation enabling abrogation of property rights should be strictly confined according to its terms, when the legislation confers a power upon a regulatory authority (subject to procedures of review) to alter those terms." Thus, the principle of legality will have little if any role to play in a context where the objects or purpose of an Act contemplate the curtailment of particular rights: see Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [314] (Lee).
7. The principle of legality's role may be thought of as an occasionally useful, context-dependent adjunct to the ultimate and central judicial task and responsibility of giving effect to legislative intention. As Basten JA (with whom Beazley P and Payne JA agreed) observed in Elliott v Minister administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123 at [35] (Elliott): "The general requirement that effect must be given to the text of the statute, read in context and having regard to its apparent purpose, remains the principal focus of statutory construction." The usual process of statutory construction expressed above is not "overridden" by the principle of legality: Elliott at [40].
8. Secondly, contrary to submissions advanced on behalf of the Henry Parties, the principle of legality will not necessarily be engaged or enlivened if the interference with fundamental rights authorised by a statute is slight or indirect or temporary. As Gageler and Keane JJ observed in Lee at [324], in a passage cited with approval by Bathurst CJ in Hayward (a pseudonym) v R (2018) 97 NSWLR 852; [2018] NSWCCA 104 at [68]: "The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle …" (emphasis added).
9. In Lee at [126], Crennan J observed that: "In some cases, a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity. An underlying legislative object is not necessarily to be achieved at any cost, but commonly by striking a balance between competing interests." (footnote omitted, emphasis added).
10. It was in this context that Mr Kirk SC, who appeared for the State of New South Wales, observed, correctly in my view, that it would be open (and indeed may be expected) that the Minister, who is ultimately politically accountable, in considering what was necessary to deal with the reasonably perceived risk to public health with which s 7 of the Public Health Act is concerned, would take into account the impact which any orders he or she made pursuant to s 7(2) may have on the rights and freedoms of citizens, but that the principle of legality should not operate to preclude measures which did impair those rights, even if indirectly and temporarily, as part of a response to the risk to public health.
11. Thirdly, it has been suggested the principle of legality's insistence on clarity in a statute which authorises the curtailing of rights will be correlative to and vary with the strength or fundamental nature of the right(s) involved: see Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32 at [159] per Nettle, Gordon and Edelman JJ. A similar strand of reasoning may be seen in McHugh J's decision in Malika Holdings Pty Limited v Stretton (2001) 204 CLR 290; [2001] HCA 14 at [28]-[30] (Malika) and the decision of McHugh J in Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33 at [36], where his Honour observed that: "The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend 'ordinary' common law rights, the 'presumption' of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced."
12. That invites attention to a matter that has aroused a deal of controversy in the jurisprudence and secondary literature in relation to the principle of legality, namely the meaning of and manner in which "fundamental rights" are to be identified: see B Lim, "The Rationales for the Principle of Legality" in Meagher and Groves, Ch 1 at pp 9-12. In Malika at [28], McHugh J urged caution in the identification of fundamental values and correlative fundamental rights in recognition of the fact that "in Australia today, few principles or rights can claim to be so fundamental that it is unlikely that the legislature would want to change them." In the present case, as shall be seen, the "rights" relied upon by the Henry Parties, in particular, varied in terms of the strength of their claims to be recognised as "fundamental" or indeed, in some cases, to be "rights" at all, other than perhaps in some aspirational or rhetorical sense.
13. The Applicants' argument based upon the principle of legality raises three issues: first, whether and if so which of the rights relied upon were in fact rights recognised at common law at all, and/or were of such a fundamental nature or character to engage the principle of legality; secondly, whether the Impugned Orders did in fact interfere with any of those rights and, if so, to what extent; and, thirdly, whether the principle of legality in fact operated to constrain any interference with such rights by the Impugned Orders given the purpose for which the power to make such Orders was conferred.
14. The Applicants' argument needs to grapple with the fact that freedom of movement is impaired as a result of the Impugned Orders, but that is expressly what s 7 of the Public Health Act contemplates and what counsel for the Henry Parties accepted was expressly authorised. It is obvious that that impairment could impinge on any form of work, for example, which required travel or required a worker to travel to his or her place of work. It is also obvious that the impairment could impinge upon various freedoms, such as freedom of religion, at least where a place of worship required travel beyond specified areas.
15. In the next part of this judgment, attention is given to the six "rights" on which the Henry Parties relied for their argument and whether or not they were impaired. (a) Right to bodily integrity
16. The primary judge held that the common law recognised a right to bodily integrity, and so much may be accepted. Such a right is supported by Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218; [1992] HCA 15 and, as was observed in the joint judgment in that case at 253, it is a right which "underscores the principles of assault" in both civil law (the tort of battery) and criminal law. As already noted, however, the primary judge held at [9] that this right was not infringed or impaired by any of the Impugned Orders. None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated.
17. The Impugned Orders proceed on the basis that there will be citizens who choose not to be vaccinated. Under Order (No 2), if such a worker was an authorised worker, he or she was unable to leave his or her local government area unless vaccinated to the extent specified in cll 4.3 and 5.8. So, too, under the Aged Care Order and the Education Order, a relevantly qualified worker was not able to enter particular facilities or schools unless vaccinated to the level specified in each of those Orders. As explained above, this was (and could only be) a temporary measure as each of the Orders had a maximum 90-day life pursuant to s 7(5) of the Public Health Act. The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area (in the case of Order (No 2)) or to enter a particular place, under the Aged Care and Education Orders.
18. Nothing in any of those Orders required, still less coerced, aged care workers or educational professionals, authorised workers or workers in the construction industry, to be vaccinated. Indeed, as was observed in the course of argument, none of the Plaintiffs had in fact succumbed to any "coercion" by being vaccinated against their will. Nothing in the Orders forced them to do so and the Orders contained no sanction for exercising what each of the Plaintiffs in the Henry Proceedings described on oath as the exercise of their own free will in deciding not to be vaccinated.
19. The attempt by the Henry Parties to rely on the judgment of La Forest, Gonthier and Cory JJ of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 226 was unavailing for the detailed reasons given by the primary judge at PJ [61]-[63]. That decision rests upon particular Canadian conceptions of unconscionability and fiduciary duty as between doctors and patients, a matter expressly rejected by the High Court in Breen v Williams (1996) 186 CLR 71; [1996] HCA 57, and any analogy in any event between a doctor and the Minister was, as the primary judge observed, "stretched beyond breaking point": PJ [62].
20. The right to bodily integrity was not impaired by any of the Impugned Orders and they were not rendered invalid on the basis that, contrary to the principle of legality, such impairment was not expressly or impliedly authorised. (b) "Right to earn a living" or a "right to work"
21. By way of contrast to the right to bodily integrity, the existence of a common law "right to earn a living" or a "right to work" is far more problematic, although it is powerful rhetorical refrain. The use of such a refrain, however, is not the same as a right recognised by the common law, still less a right or value of a "fundamental" character apt to attract and engage the principle of legality. The primary judge held that "the common law has refused to recognise a 'right' in those terms": PJ [199].
22. Such a right was asserted by the Henry Parties to have been accepted by O'Connor J in The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Company Proprietary Limited (1910) 10 CLR 457 at 464; [1910] HCA 28, who said that "every citizen is at liberty primâ facie to carry on his business in his own way within the law" (emphasis added). The words "prima facie" and "within the law" heavily qualify any assistance which this observation provided to the Henry Parties, and the citation of this decision by Warren CJ in WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 at [83] does not advance the matter.
23. Far more apposite, in my view, is the observation of Barwick CJ in Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 at 260-261; [1979] HCA 27, that: "To convert the doctrine that … there should be no unreasonable restraint on employment into a doctrine that every man has a 'right to work', is, in my opinion, to depart radically from … the common law … It is in the public interest that a man should be able to exercise his capacity to work. The law does not enforce a right to exercise that capacity: it does no more than remove the unreasonable impediment upon its exercise." This passage was cited with approval in Hepples v The Commissioner of Taxation of the Commonwealth of Australia (1992) 173 CLR 492 at 502; [1992] HCA 3, and by this Court in Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 346 (Curro).
24. As explained in JD Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths) at 88, the "right to work" mentioned in some cases, of which Nagle v Feilden [1966] 2 QB 633 is the most well-known, is "not a positive right, but a liberty which is not to be unreasonably impeded". That is entirely consistent with what this Court said in Curro.
25. The primary judge was correct to conclude that there was and is no common law "right to work" in any strict sense which would engage the principle of legality. For this reason, to the extent that people's ability to work was directly or indirectly affected by the Impugned Orders, they were not invalid by reason of the operation of the principle of legality. (c) "Right not to be discriminated against"
26. In relation to the "right not to be discriminated against" also relied upon by the Henry Parties, I concur with the primary judge's analysis at PJ [201]: "…protection from discrimination is not a right, freedom or immunity protected by the principle of legality. The failure of the common law to protect against discrimination is reflected in the necessity for legislation to be passed to prohibit it. That said, … the fact that a decision under an enactment or subordinate legislation may unjustifiably differentiate between classes of people can be a basis for concluding that it is invalid but that is because the enabling statute does not support that differentiation. Hence, the classic example of unreasonableness provided in Associated Province Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229 to 230 ('Wednesbury') of a teacher having been dismissed because they had red hair."
27. Consistent with this observation, Mr Kirk submitted that what, for want of a better phrase, might be referred to as "rights discourse" may fall to be considered in assessing the reasonableness of any exercise of power. This is to take a far more nuanced approach to the question of impingement on what may be asserted to be rights or values than the blunt approach contended for by the Henry Parties, which was to the effect that even a temporary or indirect or partial impairment of a right not expressly authorised by legislation should result in the Order's invalidity. (d) "Right to privacy"
28. The next right sought to be relied upon by the Henry Parties in support of their argument based upon the principle of legality was the so-called "right to privacy". Again, in circumstances where the common law of Australia has not to date recognised any tort of protecting invasion of privacy (see Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63), where equity's respect for privacy is tied to notions of confidentiality and where legislatures have seen fit to afford qualified legislative protection of citizens' privacy, it cannot be suggested that the asserted "right" is of such a character or quality as to engage the principle of legality, especially in the blunt and unnuanced way by which the Henry Parties contended that it operated. (e) "Privilege against self-incrimination"
29. With respect to the privilege against self-incrimination, the primary judge accepted that this engaged the principle of legality, although his Honour held that it was not violated by any of the Impugned Orders (PJ [198]), a conclusion with which I agree. As his Honour observed, far from the requirement under the Impugned Orders to produce evidence of identity, residence and vaccination status having a tendency to incriminate, the requirement had the opposite, exonerating effect, as production of this material would permit an authorised worker to take advantage of the carve out contained in the orders to travel outside a specific area or to participate in certain types of work: PJ [71]-[74]. On the proper construction of any of the Impugned Orders, it could not be sensibly said that the purpose of requiring the production of the material required by the Orders was in order to obtain admissions of criminal conduct cf. Ex parte Grinham; Re Sneddon (1959) 61 SR (NSW) 862. (f) "Right to silence"
30. Insofar as reliance was placed upon the "right to silence", notwithstanding that the use of that expression may obscure more precise rules or principles (see RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [22]), it may be accepted to be a fundamental right which engages the principle of legality, but this will only be so when that "right" is understood in the context in which it is most often used, namely, the right to refuse to answer questions from law enforcement officers or judicial officials. As described by Dawson J in Petty v The Queen (1991) 173 CLR 95 at 118; [1991] HCA 34: "The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation. It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority."
31. As with the privilege against self-incrimination, this right cannot sensibly be said to have been infringed by any of the Impugned Orders.

Conclusion on principle of legality arguments

1. It follows then that of the six "rights" referred to in the Henry Appeal, three - the so-called "right to work", the "right to privacy" and the abstract "right not to be discriminated against" - simply do not engage the principle of legality. Even if, contrary to this conclusion, they did engage it, any impairment of these "rights" would have been in an indirect way as a consequence of a restriction on movement that was expressly contemplated and authorised by the Public Health Act.
2. It would not be a sensible construction of s 7 of the Public Health Act, especially given the importance of its subject matter and the paramountcy provision in s 3(2) of the Act, for it to be construed as authorising the restriction of what would otherwise be the ability freely to move within New South Wales except to the extent that it impaired a person's right to work, to privacy and not to be discriminated against. Such a construction would be not only unworkable but corrosive of the obvious purpose of the statute. It would defy clear legislative intent.
3. In respect of the right to bodily integrity, the right to silence and the privilege against self-incrimination, as already noted, none of these rights were infringed, even indirectly, by the Impugned Orders.

"Erroneous pathway" argument

1. The next argument advanced by Mr King on behalf of the Kassam Applicants was what he described as the "erroneous pathway" argument. His contention was that the COVID-19 pandemic, including the emergence of the Delta strain, was an "emergency" within the meaning of s 4 of the SERM Act and, accordingly, any orders to address it under the Public Health Act should have been made pursuant to s 8 of that Act, the terms of which have been set out above.
2. Section 4(1) of the SERM Act defines "emergency", and that definition includes "an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which … endangers, or threatens to endanger, the safety or health of persons … in the State" (emphasis added).
3. The principal difficulty with this argument is that s 8(1) of the Public Health Act only applies in relation to "any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989". A "state of emergency" is not co-extensive with "an emergency". The former is a central concept under the SERM Act which arises following a written declaration by the Premier that a state of emergency exists. Thus, s 33(1) of the SERM Act provides that "[i]f the Premier is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales, the Premier may, by order in writing, declare that a state of emergency exists in the whole, or in any specified part or parts, of New South Wales in relation to that emergency."
4. Section 8 of the Public Health Act will only be engaged where there has been a declaration of a state of emergency. Section 7(6) of the Public Health Act will operate to deprive an order made under s 7 of effect when and where a state of emergency has been declared. When such a declaration has been made, s 8(1) requires the Minister for Health to coordinate with the Minister administering the SERM Act with regard to any health specific measures he or she considers are required to address any actual or likely risks to public health posed by the emergency the subject of the relevant declaration.
5. The interrelationship between ss 7 and 8 of the Public Health Act is tolerably clear, and the concept of a "state of emergency" effected by a declaration in those terms operates as a clear mechanism to indicate when the s 8 power as opposed to the s 7 power under the Public Health Act may be used. Section 8 of the Act was not an available source of power or "pathway" for the making of any of the Impugned Orders in the absence of a declaration by the Premier of a state of emergency within the meaning of the SERM Act. It follows that the "erroneous pathway" argument fails.

The "Anthony Hordern" arguments

1. A related argument was sought to be made by reference to s 8(3) of the Public Health Act which was to the effect that, without limiting the power in s 8(2), an order made under it may direct that all persons in a specified group or residing in a specified area submit themselves for medical examination. It was put that the absence of such a power in s 7 implied that the powers in s 7 were more limited than those under s 8, and that if s 7 did not extend to a direction permitting a medical examination, it could not extend to orders which in effect, if not in terms, required affected persons to submit to a vaccination. This argument had as its foundation the principle of construction stated in Anthony Hordern at 7, namely that where a special power is given to do something subject to limitations and qualifications, an unqualified power in the same instrument cannot be exercised to do the same thing.
2. The difficulty with this argument is that s 8(2) is in materially identical terms to s 7(2), save for the fact that any order under s 8(2) requires the agreement of the Minister administering the SERM Act. That is for the obvious and practical reason of the need for coordination in circumstances where the SERM Act has been engaged as a result of a declaration of a state of emergency. It is not referable to a difference in the extent of power conferred by s 8(2) of the Public Health Act as opposed to s 7(2).
3. There was a similar attempt to take advantage of the Anthony Hordern principle by reference to s 7(3) of the Public Health Act, which provides that: "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. The argument was that the power to make orders of the kind described in s 7(3), including orders involving conditional permission to access particular areas, was dependent upon the order in question declaring any part of the State to be a public health risk area. This was said to follow from the phrase "in that event". It was submitted that none of the Impugned Orders made such a declaration, such that the s 7(2) power was impliedly limited and could not authorise the making of the kind of orders referred to in s 7(3). Despite a submission to the contrary, no declaration of the kind referred to in s 7(3) of the Public Health Act was made in any of the Impugned Orders, although Order (No 2) did discriminate as between different areas.
5. Mr King pointed to and relied on the judgment of Brennan J in Dainford Limited v Smith (1985) 155 CLR 342 at 361-362; [1985] HCA 23 (Dainford), in which his Honour held that the opening words of s 30(7) of the Building Units and Group Titles Act 1980 (Qld) "[w]ithout limiting the generality of any other provision of this section", did not displace the Anthony Hordern principle. His Honour emphasised that this observation was made in the specific context of s 30 of the Act under consideration, and contrasted his observation with the observations of Mason J (with whom Barwick CJ agreed) and Aickin J in Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672 at 678-680 and 680 respectively; [1979] HCA 26 (Leon Fink). That decision makes plain that much will depend on context.
6. In Leon Fink at 678, Mason J observed that the Australian Film Development Corporation Act 1970 (Cth) there under consideration differed from the legislation under consideration in Anthony Hordern, in that the former did not contain two distinct powers, the one general and the other special, but one power in general terms followed by specific powers. These, his Honour said, "may be no more than particular expressions or exemplifications of what may be done in the exercise of the general power." Although accepting that that circumstance alone would not make inapplicable the Anthony Hordern principle of construction, nevertheless he considered that the presence of the words "without limiting the generality of the foregoing" were an "important distinguishing feature" of the legislative provision before the Court in Leon Fink. Mason J described the critical question (which he answered in the negative) as being: "whether there is any implied restriction upon the general power to be derived from the presence of par. (a), when there is a clause which is designed to preserve the generality of the unqualified power according to its terms."
7. Mason J explained that "[f]rom time to time provisions will be inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular", and concluded (at 679) that: "[t]here are strong grounds for thinking that the specific power given by par. (a) of s. 21 was conferred in order to dispel any doubt that might be entertained as to the extent of the general power and to ensure the existence of a power to lend to producers of Australian films. In this case the words 'without limiting the generality of the foregoing' evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. The clause therefore operates to negative the restrictive implication which might otherwise have been derived from the presence of the specific power to lend contained in par. (a)."
8. Aickin J (at 680) observed that: "[i]n each case it will be a matter requiring examination of the actual words used, both general and particular, as well as the context as a whole."
9. Both Dainford and Leon Fink were referred to in some detail in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30. That case serves to emphasise the fact specific nature of the inquiry.
10. Textually, the principal objection to Mr King's argument is that it ignores the opening words of s 7(3) of the Public Health Act. Perhaps more significantly, in light of the authorities referred to above, it would run contrary to the very purpose of the legislation which is designed to permit the Minister to respond with flexibility to "a situation [that] has arisen that is, or is likely to be, a risk to public health" to construe s 7(3) as conditioning the power to make orders of the kind contemplated in s 7(3) as dependent upon the declaration of "any part of the State to be a public health risk area".
11. It is inconceivable in my view that the legislature would not have intended to afford the Minister the maximum flexibility possible to counter or address risks to public health which could be severe, fast-moving and wide-ranging. In that context, it is clear from the second reading speech to which the Court was taken that the Public Health Act was enacted with an awareness of the public health risks posed by viruses such as SARS and Ebola.
12. Moreover, a sensible purpose can be attributed to s 7(3) other than as a provision designed to cut down the broad reach of s 7(2). That purpose is to make plain that an order in exercise of the s 7(2) power may be expressed by reference to particular geographical regions or areas. Although the primary judge held that a declaration within the meaning of s 7(3) had not expressly been made, the Schedule to Order (No 2) manifests a drafting technique contemplated by s 7(3) of the Public Health Act.
13. For all of these reasons, I reject the argument advanced by reference to the Anthony Hordern principle.

Orders and Costs

1. It follows from the above reasons that, to the extent that I would grant leave to appeal, the appeal must be dismissed.
2. The Henry Applicants submitted that in the event that leave was refused by this Court, no order for costs should be made, for the following reasons: "(a) The case was novel and raised issues of human rights arising from the COVID-19 pandemic that had never been considered by a superior court in New South Wales in the history of Australia. (b) Section 7 of the Public Health Act 2010 (NSW) had never before been used in a way to impose restrictions on the public at large, depriving them of access to their work place, on the basis of their vaccination status. (c) While the Plaintiffs pursued the case because of the effect that the public health orders had on their own lives, a necessary incident of the action is that the outcome of the case would have had implications for tens of thousands of other residents of New South Wales. (d) There is significant public interest in this case. (e) The evidence of the impact that the public health orders had on the Applicants, which was not challenged by the Defendant, shows that the personal impact on each of their lives by refusing to submit to being vaccinated, has been significant. (f) The public has benefited in the action because the judicial review process has had the effect of clarifying the legal position in relation to the ability of the Minister to impose a condition of vaccination in exercising a discretionary power under s 7 of the Public Health Act 2010 (NSW)."
3. These submissions were adopted by the Kassam Applicants, who emphasised that the questions raised were of considerable public importance, particularly in the context of an unprecedented global pandemic.
4. The State submitted that if leave was refused, or if leave was granted but the appeal dismissed, there was no reason identified by any of the Kassam or Henry Parties which justified any departure from the usual rule that costs follow the event. In this respect, the State submitted that: "(a) …the case at trial was not novel. A challenge to the validity of Order (No 2) on unreasonableness grounds was rejected by Griffiths J in Athavle v New South Wales [2021] FCA 1075 (in which, incidentally, a costs order was made in favour of the State)… In any event, novelty is not a basis to depart from the ordinary rule as to costs. (b) The case at trial, and on appeal, was conducted for the private benefit of the individual plaintiffs, who complained of interference in their ability to work. The fact that incidentally others might benefit from the action is not a reason not to award costs against the applicants. Further, in circumstances where the applicants lost comprehensively at trial, they must have appreciated that they had limited prospects of success on appeal. In those circumstances, the appeal is stamped with the character of private litigants seeking to advance their private interests. (c) The fact that many members of the public may be interested in the proceedings does not mean that they are brought in the public interest. Public interest in a case is not a reason to disturb the ordinary costs position. (d) If the applicants are unsuccessful but are not ordered to pay costs, the public will not have benefited from the litigation: the litigation will only have confirmed what would otherwise be presumed, and the taxpayers of New South Wales will have suffered as a result of unmeritorious challenges (this being one of a number of such challenges) being brought to presumptively valid decisions".
5. In my view, costs should follow the event. So far as I can ascertain, no new arguments were advanced on appeal and two of the three Orders had been repealed by the time the applications for leave to appeal were filed with the third Order due to expire in a matter of weeks. This substantially reduces any claim of the litigation having a public interest character that may otherwise favour a departure from the usual rule in relation to costs.
6. The Appellants, moreover, had the benefit of a detailed, comprehensive judgment of the primary judge and no error was demonstrated on appeal.
7. MEAGHER JA: I agree that the orders proposed by the President should be made for the reasons that his Honour gives. I also adopt the additional comments made by Leeming JA.
8. LEEMING JA: I agree with the orders proposed by Bell P, and subject to what follows, which is principally by way of elaboration rather than qualification, with his reasons. Like the President, I acknowledge the comprehensive and expeditious resolution of two large trials involving a large number of legal and factual issues by the primary judge. The issues arising in the applications for leave are considerably fewer.

Leave should be confined to the grounds of general application

1. Contrary to the applicants' submissions, leave is required. The fact that there was evidence that one of the applicants suffered a financial loss of in excess of $100,000 as a "direct consequence" of the making of one of the orders does not alter that conclusion. In fact I understood the evidence to relate to the revenue of a company of which he was the sole director, but that is not the reason leave is required. The reason is that for many decades there has not been an unrestricted right of appeal where civil rights which are insusceptible to valuation are at stake. It was impossible to value Mr Clyne's right to remain on the roll of practising barristers, notwithstanding the effect of his being struck off upon his capacity to derive income, and for that reason no appeal lay as of right: Clyne v NSW Bar Association (1960) 104 CLR 186 at 205; [1960] HCA 40. The rights in issue in this litigation are likewise insusceptible to valuation. This Court is bound by the construction given by the High Court to materially identical statutory language in the same context: Re DG and the Adoption Act 2000 [2007] NSWCA 241; 244 ALR 195 at [17]-[22].
2. The fact that leave is required is not to deny the importance of the issues in play. That is a powerful factor supporting the grant of leave. However, as Bell P explains, the proposed grounds of appeal fall into two categories. Grounds 1-3 in the Henry Appeal and grounds 1-2 in the Kassam Appeal warrant leave because they are of general application in this State (other States and Territories have declared a "public health emergency" thereby engaging different powers: see G Williams and S Rigney, "Human Rights in a Pandemic" in B Bennett and I Freckelton, Pandemics, Public Health Emergencies and Government Powers (Federation Press, 2021), 134 at 139.) However, insofar as the proposed grounds of appeal are directed to aspects of the making of particular public health orders which have now ceased to have effect or will shortly (in a matter of days) cease to have effect, they lack utility. Further, the absence of utility is accompanied by a lack of merit. This may be explained briefly, by way of supplement to the reasons of the President.
3. In the Henry appeal, no basis was laid for the foundation of proposed ground 4 that any of the eight nominated matters were impliedly made relevant considerations in the axiomatic sense that a failure to have regard to them vitiated the exercise of power.
4. Nor was any basis laid for the submission in proposed ground 5 that the Minister's statement at a press conference as to the self-entitlement and self-indulgence of persons who chose not to get vaccinated bore upon the making of any impugned order, or, even if it did, that the statute impliedly vitiated the order on that basis.
5. There was a divergence of expert evidence before the primary judge, some of which supported the measures in the impugned orders. As it happens, the primary judge regarded the qualifications of the expert called by the respondents as "vastly superior" to those of most of the experts called by the plaintiffs, but that is not the point. The complaints in both appeals based on the failure to cross-examine the plaintiffs' experts do not attend to the fact that a range of expert opinion was adduced. If a decision is to be shown to be legally unreasonable based on evidence which was not before the decision-maker, then the practical reality is that the challenge will highly likely fail unless that evidence all points in the same direction. The opposite is true in the present case.
6. There is nothing in the Kassam Applicants' submission that s 51(xxiiiA) directly subtracts from State legislative power. A qualification to a new head of legislative power granted to the Commonwealth following a referendum cannot result in a diminution of State legislative power. The Kassam Applicants' alternative submission, based upon joint action by the Commonwealth and the States, fails at the threshold because it was not shown that there was is any legal or practical compulsion on any medical or dental practitioner to perform any medical or dental service. The primary judge explained this, by reference to binding authority, at [267]-[274].
7. Proposed ground 11 of the Kassam Applicants was not separately addressed, for the good reason that there is no foundation to a complaint that the primary judge failed to give adequate reasons for concluding that fundamental common law rights were overridden by the impugned orders. The reasons were a model of their kind.
8. As the President has noted, it follows from confining the appeal to questions of law of ongoing importance that the application to adduce fresh or further evidence must fail.
9. I turn to three issues at the forefront of the grounds warranting a grant of leave.

The submission that s 7 only authorises "administrative" not "legislative" action

1. In some respects, the impugned orders have a hybrid character. They are described by the President. They are not "statutory rules" within the meaning of s 21 of the Interpretation Act 1987 (NSW). That denies to them the statutory presumption of validity effected by s 45(1) of that statute, but also means that they are not subject to tabling and disallowance under Part 6. It is true that that reduces the scope for scrutiny, but counterbalancing that is the fact that the order must expire of its own force within 90 days; contrast most statutory rules (such as regulations) which are disallowable but will generally expire after five years: Subordinate Legislation Act 1989 (NSW), s 10(2). On the other hand, as a matter of substance, the orders are "legislative" in the sense that they prescribe general norms of conduct, with real sanctions if breached which were applicable to thousands, indeed millions, of people. For what it is worth, they also appear on the NSW legislation website, prominently, on a page titled "COVID-related legislation".
2. I mention this because it may explain what underpins the first submission made on appeal. The submission was that s 7 authorises only "administrative" orders, the impugned orders are "legislative", and therefore outside the scope of the power. I do not agree with this approach.
3. 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.
4. Authority accords with that approach. The argument being one of simple ultra vires, the starting point is to determine "[t]he true nature and purpose of the power" to make the regulation: Williams v Melbourne Corporation (1933) 49 CLR 142 at 155; [1933] HCA 56.
5. For this reason it is also wrong to apply the reasoning in decisions on other, differently worded powers uncritically. This has been pointed out on numerous occasions, perhaps most familiarly by Rich J in Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301 at 308; [1943] HCA 15: "Authorities are of little use in determining the validity of a particular by-law. The appropriate steps are to construe the statute under which the by-law is made and then interpret it to ascertain whether it is within the ambit of the statute."
6. As was observed by Gordon, Katzmann and Griffiths JJ in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45 at [56], the same approach applies generally to challenges to a subordinate legislative instrument.
7. Thus it is not to the point to invoke, as both applicants did, Higgins J's statement in Commonwealth and Postmaster-General v Progress Advertising and Press Agency Company Pty Ltd (1910) 10 CLR 457 at 469; [1910] HCA 28 that "the power does not extend to everything which the Governor-General in Council considers to be necessary. The regulation must be necessary" (original emphasis). That statement has no relevance to the power conferred by s 7. Higgins J was construing a power to make regulations "necessary for carrying out this Act". He was in fact emphasising that the power did not turn on a state of mind. Section 7 is quite differently worded. Section 7 expressly confers power by reference to what "the Minister considers necessary".
8. Similarly inapt was the uncritical reliance on the reasoning in Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4, as occurred in the Kassam Applicants' written and oral submissions. The power in issue in that case was a power to make regulations "for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of the Act or for carrying out the objects of the Act". The power conferred by s 7 is delineated differently. The Kassam Applicants are not alone in committing this mistake; other examples where this Court has rejected such reasoning may be seen in Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 at [103]-[104] and Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [62]-[63].
9. Just because a passage in reasons for judgment seems apposite if read in isolation does not make it so. Reasons for judgment must always be read in context: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638. The reasons in one decision concluding that a regulation is ultra vires will be of limited assistance in a later case where the regulation-making power is differently expressed.
10. 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. Take by way of example two federal statutes which draw upon the distinction. It is far from inevitable that the body of authority which has been developed in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (which applies to specified decisions "of an administrative character") is equally applicable to s 8 of the Legislation Act 2003 (Cth) (a provision which itself was significantly altered by the Acts and Instruments (Framework Reform) Act 2015 (Cth) owing in part to the difficulties in its application). While the distinction between "legislative" and "administrative" is more commonly a consequence of legislation, there are also occasions where the distinction matters at general law. One is that while it is settled that there is a duty to accord procedural fairness before exercising executive power which impacts upon the rights and interests of persons (see for example Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57), there is generally no right to be accorded procedural fairness before a legislative power is exercised. An example may be seen in the submission rejected in Hemmes Trading Pty Ltd v State of NSW [2009] NSWSC 1303 at [47]-[52].
11. In all these areas, the administrative/legislative distinction is one that is far from crisp and well-defined. Hence the reference by each of Dixon J and Gummow J in this context to Professor Freund's remarks concerning the refuge of thought and expression in the face of undeveloped or unascertainable standards: Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 at 93; [1931] HCA 34; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 634. Professor Aronson has endorsed Lehane J's observation that "[i]f there is anything that the authorities make plain ... it is that general tests will frequently provide no clear answer": Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 at 591, cited in M Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017), p 91.
12. None of the foregoing gives any encouragement for importing an implied constraint to the power conferred by s 7 to the taking of action and the making of orders which give directions which are "administrative" as opposed to "legislative". Indeed, 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.
13. I return to the issue arising on an application for judicial review for simple ultra vires. Do the impugned orders fall within the true nature and purpose of the statute?
14. The power conferred by s 7 is very broadly stated, turning as it does upon what the Minister "considers" to be "necessary". That is substantially broader than familiar phrases such as "necessary or convenient" or "for the purpose of" which are regularly seen in regulation making powers.
15. The power is expressed to turn upon what the Minister considers necessary to deal with the risk to public health and its possible consequences. Both the risk and the possible consequences are apt to be things in the future. Both risk and possible consequences are inherently uncertain and insusceptible to prediction. That tends to support a broad meaning to be given to the words "action" and "order" in s 7.
16. The premise of the power is that there is a risk to public health. At the heart of the concept of public health is a danger to members of the public. It is plainly within the scope and purpose of the statute that there might be danger to many members of the public. It is plain from s 7(3) that the power extends to the making of orders which direct the segregation and isolation of inhabitants in an area and the curtailment of access to an area, and the opening words of s 7(3) ("Without limiting subsection (2)") entail that subsection (2) extends to but is not limited by what is explicitly envisaged by s 7(3).
17. All of those considerations are in the teeth of any implication that s 7 only extends to the taking of action and making orders which give directions which are "administrative" as opposed to "legislative". I note for completeness that the reference in s 7(7) to "administrative review" is a red herring. It merely picks up the language of "administratively reviewable decision" required by the Administrative Decisions Review Act 1997 (NSW). This does not greatly bear upon the nature of the power.
18. For the reasons given by the President as supplemented by the above, the applicants' ultra vires submission based upon the legislative/administrative distinction must be rejected.

The "principle of legality"

1. The essential mode of argument in support the first ground in each appeal was that (a) the impugned orders violated various enumerated "rights", (b) this was contrary to the "principle of legality" and thus (c) the orders were not authorised.
2. This mode of argument operates at too high a level of generality to be persuasive. The difficulties are at least twofold.
3. First, in language to which three members of this Court adhered in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [39]: "Identification of the scope of the principle should be undertaken with caution. The label, 'principle of legality' is apt to mislead. Both its ordinary meaning and its traditional usage engage a particular aspect of the rule of law, namely that government action (whether legislative or executive) which intrudes on the rights and liberties of individuals should be justified by legal authority. Its use as a principle of statutory construction is of recent origin. Further, depending on context, it is expressed in variable terms." (footnote omitted).
4. To that it may be added that the label "principle of legality" tends to deprecate courts' long-standing approach to statutory construction. As six members of the High Court said in Bropho v Western Australia (1990) 171 CLR 1 at 17-18; [1990] HCA 24, courts have for many, many years - long before the phrase "principle of legality" was coined - required unambiguous clarity in a wide range of contexts, extending far beyond cases which violate fundamental human rights. It was said in Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14; 246 LGERA 1 at [40] that the so-called principle of legality was "but one aspect of a more general rule of construction that clear words were required before legislation would be construed to achieve a particular result (most commonly, derogating from a 'fundamental' common law rule)."
5. Secondly, there are rights and there are rights (cf Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420). The "right to bodily integrity" is well-established. It is jealously guarded by the courts. This may be seen in the exercise of the parens patriae jurisdiction such as in Marion's case (1992) 175 CLR 218; [1992] HCA 15 as well as in the vindication of claims for battery in cases where there is no lawful authority (Binsaris v Northern Territory [2020] HCA 22; 94 ALJR 644) or where a patient's consent to a medical procedure is defective (Rogers v Whitaker (1992) 175 CLR 479 at 490; [1992] HCA 58). The right to privacy and the protection accorded to it is nascent, and may well be capable of future development, as was suggested in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [106]-[108]; it is not difficult to envisage orders upon which this right might be brought to bear. The "right to work" is much more elusive. The way in which people have worked has been regulated by statute for many centuries; as the President has pointed out, the focus of the modern common law is upon unreasonable restraints of trade.
6. The purpose of making those points is to explain that legal analysis is not much assisted by deploying the language of "rights" and the "principle of legality" in assessing whether s 7 authorises the orders. A more nuanced analysis is required, both of the rights upon which reliance is placed, and of the legal and practical operation of the orders including their exceptions and timeframe. This Court said as much in Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 at [39]: "In order to apply the principle of legality, it is necessary to identify with a degree of precision that fundamental right, freedom or immunity which is said to be curtailed or abrogated, or that specific element of the general system of law which is similarly affected."

Consent, coercion and free choice

1. Notions of "consent", "free choice" and "coercion" were deployed in a number of quite distinct contexts during the hearing of these appeals. The Henry Applicants relied upon the law associated with voluntary admissions to police governing the admissibility of confessions (notably, R v Thomas (2006) 14 VR 475; [2006] VSCA 165) in support of the proposition that the three orders did, as a practical matter, "coerce" people into being vaccinated. It was put that the effect of the orders was to "deprive [people] of the ability to exercise free choice and effectively consent to a vaccination". Mr King relied upon Latham CJ's statements in British Medical Association v Commonwealth (1949) 79 CLR 201 at 253; [1949] HCA 44 as to the ways compulsion may be achieved in practice, short of legislation which is coercive on its face. Two points may be made in response.
2. First, consent as a legal concept is more complex than was reflected in the applicants' submissions. A failure to obtain informed consent may be a breach of a doctor's duty of care, but a lesser form of consent will answer an action for battery: Reeves v The Queen [2013] HCA 57; 88 ALJR 215 at [35]. The fully informed consent required of a fiduciary is separate again and cannot be reduced to a precise formula: Maguire v Makaronis (1997) 188 CLR 449 at 466; [1997] HCA 23. The notion of consent depends upon the context in which it is invoked.
3. Secondly, "free choice" is a label which disguises the fact that many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour. Consider by way of example:
4. a congestion charge designed to reduce the use of private motor vehicles;
5. a law which makes it an offence for a bicyclist not to wear a helmet or for a driver not to have a licence;
6. an additional tax (the "Medicare Levy Surcharge") on high income earners who do not have private health insurance (see Medicare Levy Act 1986 (Cth), ss 8B, 8C and 8D);
7. a prohibition on enrolling children at child care facilities unless proof of vaccination for measles and whooping cough is first shown (Public Health Act 2010 (NSW), s 87); and
8. an inability to claim various federal tax benefits and child care subsidies for unvaccinated children (see A New Tax System (Family Assistance) Act 1999 (Cth), ss 6, 61B(1)(b) and 85BA(1)(a)(iii), read with the Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018 (Cth)).
9. Does the fact that their decision is economically rational mean that high income earners who take out private health insurance or have their children vaccinated for measles are not making a "free choice"? More pertinently, does the economic incentive detract from the legal consequence that ordinarily accompany volition? After all, the drivers and bicyclists and parents and taxpayers in the examples given above all have a choice. On the other hand, many would agree that the quality of a motorist's "choice" to drive into the congestion zone is different from the quality of the same person's "choice" to maintain a licence.
10. One point of those examples is to bring home the point that it may be unsafe to translate what has been held in one context to another. That cuts both ways.
11. On the one hand, contrary to the Henry Applicants' submissions, while a confession which is obtained following an inducement may be inadmissible, there are doubtless many inducements which fall well short of impugning the free choice or amounting to "coercion" thereby vitiating consent in the context of measures of the type indicated above. That is so notwithstanding that the validity of an order does not turn merely upon its form, but also its practical operation, no differently from constitutional limitations on power: see Ha v New South Wales (1997) 189 CLR 465 at 498; [1997] HCA 34. The policies underlying the law's insistence that confessions to criminal charges be made voluntarily are quite distinct from those concerns which attend measures of the type indicated above which encourage certain types of behaviour.
12. On the other hand, and to take the point which was developed in greatest detail in oral submissions, there is overlap between the practical compulsion on which the applicants relied with a view to impugning the orders, and the question whether a medical practitioner commits the tort of battery by vaccinating a person who gives every appearance of consenting while maintaining that he or she has no "real" choice and has been "coerced" into submitting himself or herself. As presently advised, it seems to me to be at least reasonably arguable that the medical practitioner could establish a defence to the tort while at the same time the person could maintain that the regime in its practical operation sufficiently impacted his or her right to bodily integrity so as to require unmistakably clear language. That is saying no more than that the issue of whether consent as a defence to a battery is made out is different from whether the practical effect of an order is to impact on rights and freedoms.
13. Such subtleties were eschewed in the present case, although they might loom large if differently framed orders were made under s 7, as to which these reasons express no view. For the reasons given by the President, the orders whether analysed by reference to their form or their practical effect are authorised by s 7. That is a consequence of the facts explained in more detail by the President, notably that the orders were primarily directed to restricting movement and in large measure only incidentally impacting on other rights, were limited in duration, were subject to exceptions, and explicitly contemplated that some persons would not be vaccinated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2021