Kikuyu v Hazzard

A INTRODUCTION 1 The final hearing of this case was observed by interested spectators filling three courtrooms and by over 4,000 viewers via the use of remote technology. The case was the subject of extensive commentary on social media including Telegram and Twitter. 2 Given the publicity this case has generated, apparently at the instigation of the solicitor for the applicant, it is worth dispelling some misconceptions and commencing this judgment by stating what this proceeding, and others like it, are not about: see, for example, Knowles v Commonwealth of Australia [2022] FCA 741; Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664. 3 This case is not about the wisdom or otherwise of the response of State governments or the Commonwealth to the public health challenges caused by the spread of COVID-19. It is not about any right to individual liberty or autonomy nor the appropriateness or otherwise of vaccine mandates. It is not about holding public officials to account for political or public health actions some consider to be wrongheaded or controversial. 4 It is about something quite different. 5 The applicant seeks declarations that certain public health orders made by the first respondent (Minister), and a determination made by the second respondent (Secretary), are invalid. The sole ground advanced is that the State provisions authorising those instruments are inconsistent with Part 2 of Chapter 8 of the Biosecurity Act 2015 (Cth) and are, therefore, invalid to the extent of the inconsistency between the State and Commonwealth Acts pursuant to s 109 of the Commonwealth Constitution. 6 Whatever else this argument lacked, it did not lack ambition. 7 The logical consequence of the applicant's contention is that between 18 March 2020 and 17 April 2022, every measure taken under all State and Territory laws to prevent and control the spread of COVID-19 was invalid and inoperative. 8 For reasons explained below, the applicant's argument is legally misconceived and must be rejected.

D APPLICABLE PRINCIPLES 15 Where a law of a State or Territory is inconsistent with a law of the Commonwealth, s 109 of the Constitution provides that the Commonwealth law shall prevail and the State or Territory law will be invalid and inoperative to the extent of the inconsistency: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 (at 446 [30] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 16 Two aspects of inconsistency are conventionally referred to: "direct inconsistency" and "indirect inconsistency": Victoria v The Commonwealth (1937) 58 CLR 618 (at 630 per Dixon J); Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 (at 76-77 [28] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). Ultimately, however, both are directed towards the same question: whether there is a "real conflict" between a Commonwealth law and State or Territory law: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508 (at 525 [42] per French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ). It is not enough for a State or Territory law to be capable of applying to the same factual circumstances to which the Commonwealth law applies: Ex Parte McLean (1930) 43 CLR 472 (at 485 per Dixon J); McWaters v Day (1989) 168 CLR 289 (at 296 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). A "real conflict" requires something more. 17 Where a court is concerned with direct inconsistency, the question to be answered is whether the State or Territory law would "alter, impair or detract from" the legal or practical operation of the Commonwealth law: Outback Ballooning (at 447 [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; 456 [65], 458-459 [70] per Gageler J); Jemena Asset Management (at 524-525 [39]-[41] per French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ). Put another way, a State or Territory law is inconsistent with a Commonwealth law if its operation and effect would undermine that of the Commonwealth law: Outback Ballooning (at 447 [32] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); Jemena Asset Management (at 525 [41] per French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ). 18 Indirect inconsistency, by contrast, involves determining whether a law of the Commonwealth, on its proper construction, expresses an intention to state "completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed": Ex Parte McLean (at 483 per Dixon J). A Commonwealth law of this kind is said to "cover the field" of the issue in respect of which it deals, leaving no room for the operation of a State or Territory law: Outback Ballooning (at 447 [33] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 19 In every case, the Court must begin by construing the Commonwealth law in question: Bell Group NV (in liq) v Western Australia [2016] HCA 21; (2016) 260 CLR 500 (at 521-522 [52] per French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ). Where the focus is direct inconsistency, it will be necessary to have regard to both laws and their operation; where an indirect inconsistency is alleged, the primary focus is on the Commonwealth law and the "field" it is intended to occupy: Outback Ballooning (at 447 [34] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); The Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 (at 466-467 [54] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). That intention is ascertained through the express terms of the law, any necessary implications and inferences drawn from the structure, subject matter and purpose of the law: Outback Ballooning (at 461-462 [78] per Gageler J). The Court is tasked with determining whether the Commonwealth law "necessarily contain[s] the implicit negative proposition" of exclusivity: Commonwealth v ACT (at 468 [59] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 20 Where the Commonwealth law does reveal an intention to govern completely or exhaustively a particular subject matter, the Court must then determine whether the State or Territory law also purports to govern that same subject matter: Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (at 116 [261] per Gummow J). If it does, it is invalid and inoperative to the extent and for the duration of the inconsistency; if it does not, the two laws may operate concurrently.

E.1 Commonwealth law not a complete or exhaustive statement 23 As noted above, the Court is to look initially at the Biosecurity Act, the relevant provisions of which are s 8 and Pt 2 of Ch 8 (comprising ss 473-479). Section 8 provides: 8 Concurrent operation of State and Territory laws (1) This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act (except as referred to in subsection (2)). (2) Subsection (1) is subject to the following provisions: (a) section 172 (prohibited goods); (b) section 265 (ballast water); (c) subsections 445(4), 446(4), 477(5) and 478(4) (biosecurity emergencies and human biosecurity emergencies). (3) Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that: (a) the law makes an act or omission: (i) an offence; or (ii) subject to a civil penalty; and (b) that (or any similar) act or omission is also: (i) an offence against a provision of this Act; or (ii) subject to a civil penalty under this Act. (4) Subsection (3) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty: (a) provides for a penalty that differs from the penalty provided for in this Act; (b) provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act; (c) provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act. 24 The applicant's reading of s 8 is creative. It is contended that s 8 contains both statements of non-exclusivity (s 8(1)) and exclusivity (s 8(2)), with the effect that the references to specific provisions in s 8(2) exclude the whole Parts or Chapters within which those provisions reside. 25 This contention finds no support in s 8 itself. Subsection (1) expressly contemplates the concurrent operation of State and Territory laws and the Biosecurity Act. Provisions of this kind are commonplace and effective to avoid indirect inconsistency by making clear that the law is not intended to be exhaustive or exclusive of State or Territory laws: Outback Ballooning (at 451 [48] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). This is so notwithstanding s 8(2), which relevantly provides that s 8(1) is "subject to" ss 477(5) and 478(4). "Subject to" does not mean negatived by: it simply means that s 8(1) must be read harmoniously with the provisions set out in s 8(2). A closer look at ss 477 and 478 demonstrates that the provisions, read in the light of s 8, plainly do not evince an intention to "cover the field". 26 Sections 477 and 478 mirror one another, such that my analysis of one develops my analysis of the other. Section 477 is in the following terms: 477 Health Minister may determine emergency requirements during human biosecurity emergency period (1) During a human biosecurity emergency period, the Health Minister may determine any requirement that he or she is satisfied is necessary: (a) to prevent or control: (i) the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or (ii) the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or … (2) A determination made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. … (5) A requirement determined under subsection (1) applies despite any provision of any other Australian law. 27 Pursuant to s 477(5), if the Minister is satisfied that a prevention or control requirement is necessary, the Minister may make a determination which, by operation of s 8(2)(c), applies even if it excludes or limits the operation of a law of a State or Territory that is capable of operating concurrently with the Biosecurity Act: s 8(1). Crucially, it is not the power in s 477(1) that is an exception in s 8(2); it is the determination that applies despite any provision of any other Australian law: s 477(5). This is a far cry from providing that the section supersedes any provision of any other Australian law at all times and for all purposes, as the applicant contends. 28 To this end, even if the Biosecurity Act "covered the field", no inconsistency would arise unless and until the federal Health Minister exercised power under ss 477 or 478. The applicant's case does not rely on any such exercise of power. Rather, the contention is that, by reason of the Governor-General's declaration of a "human biosecurity emergency", and the mere existence of the powers in ss 477 and 478, there is an automatic and exhaustive inconsistency. In effect, this submission forces the federal Health Minister to enter the field in a human biosecurity emergency (irrespective of how geographically confined that emergency may be within the Commonwealth). 29 The same conclusion obtains with respect to s 478, which relevantly provides: 478 Health Minister may give directions during human biosecurity emergency period (1) During a human biosecurity emergency period, the Health Minister may give any direction, to any person, that the Health Minister is satisfied is necessary: (a) to prevent or control: (i) the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or (ii) the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or … (4) A direction may be given under subsection (1) despite any provision of any other Australian law. (5) A direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body. … 30 Again, it is a direction validly made under s 478(1) which is unaffected by any provision of any other Australian law, not the power in s 478(1) itself: s 478(4). 31 The wider statutory context confirms that the power in s 478(1) is to operate concurrently with State and Territory laws, not exclusively. Section 478(5) provides that a "direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body". That provision reflects a recognition that the States and Territories have their own emergency response imperatives that must be accounted for and are not to be obstructed by the Commonwealth regime. 32 As such, the applicant's contention that "the Commonwealth power was so wide and so comprehensive at all relevant times that the State simply should have bowed out" cannot be sustained on a plain reading of the Biosecurity Act. Nothing in the balance of the Biosecurity Act displaces the effect of s 8 and no "implicit negative proposition" of exclusivity is discernible: Commonwealth v ACT (at 468 [59] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 33 This result is unsurprising. Beyond the terms of the Biosecurity Act, it would be inimical to the purposes and functions of the cooperative federalist system for State and Territory authorities to be prevented from implementing emergency responses by the exclusive operation of Commonwealth law. There can be no scope for significant coordination and collaboration where the States and Territories are unable to develop and enforce their own emergency measures. The state of the emergency may be very different as between the various States and Territories at any one time. That is central to the High Court's decision in Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229. The applicant's interpretation of the Biosecurity Act is not only wrong, but would be striking, as it would destroy the ability of the States and Territories to formulate tailored measures for their respective jurisdictions.

[2016] HCA 21

[2011] HCA 34

[1999] HCA 12

(1980) 142 CLR 237

(2016) 260 CLR 500

(1926) 37 CLR 466

(1930) 43 CLR 472

(2011) 244 CLR 508

(2021) 393 ALR 664

(1989) 168 CLR 289

(2011) 245 CLR 1

(2021) 95 ALJR 229

(1982) 152 CLR 211

(1999) 197 CLR 61

(2013) 250 CLR 441

(1937) 58 CLR 618

(2019) 266 CLR 428

[2011] HCA 33

[2021] NSWSC 1320

[2013] HCA 55

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