Knowles v Commonwealth of Australia

THE APPLICANTS' REMOVAL AND JOINDER APPLICATIONS 16 The applicants' removal applications recognise that some of the individual respondents were acting in the course of their duties, and it is likely that the State or Territory concerned, or the Commonwealth, would accept responsibility for the actions of those individuals in the course of their duties. At a general level, this is the position each of the government parties adopted. Those individual respondents are as follows: (a) the Hon Bradley Ronald Hazzard; (b) Dr Kerrry Gai Chant; (c) Dr N Deborah Friedman; and (d) Prof Benjamin Cowe. 17 The applicants' joinder applications address some of the points made early in the proceeding on behalf of the respondents; namely that it was difficult to discern how some of the original applicants were affected by the conduct of which they complained. As it now stands, the proposed applicants are to be (with the proposed 'new' applicants in bold): (a) Cienna Knowles, who the applicants seek to join as the first applicant, replacing the former first applicant Monica Smit. Ms Knowles is described as a resident of the Central Coast of NSW, and as having been "non-consensually double-vaccinated, resulting in her hospitalisation as a consequence of adverse effects, and the loss of her employment and other opportunities"; (b) John Harding, who is a small businessperson resident in Melbourne, working as an electrical contractor. The ASOC contends that Mr Harding is "unable to work in the construction industry unless he submits himself to vaccination" and that "[h]is liberties to move about the State have been curtailed"; (c) Harding Electrical Pty Ltd, which is described as the small business of Mr Harding, and as carrying on business in the construction industry involving the installation of solar panels. The ASOC contends Harding Electrical Pty Ltd can no longer carry on business in Victoria unless its workers provide it with their vaccination records, which is "something that it does not believe that it is at liberty to require of them"; (d) Murat Temel, described by counsel for the applicants as a small businessperson running a hairdressing business in NSW. The ASOC pleads that Mr Temel is not able to carry out his business, and is not able to move about the State of NSW as a free person; (e) Michael Temel Hair Pty Ltd, which is described as the small business of Mr Temel, through which Mr Temel carries on a hairdressing business in Parramatta. The ASOC pleads Michael Temel Hair Pty Ltd has not been able to carry out its business; (f) Antoine Sandroussi, who was described by counsel for the applicants at oral hearing as a small businessperson and truck driver from the State of Queensland. In the ASOC it is contended he is a resident of South Western Sydney. The applicants contend Mr Sandroussi has been adversely affected by measures in Queensland and NSW, and that he "submitted himself to vaccination in circumstances as amounted to coercion, and without the giving of prior medical consent"; (g) Serafine Nichols, who is a resident of Western Australia and described as an employee of the Western Australian government. The ASOC contends she was affected by measures "in various ways", including by the termination of her employment; (h) Mikailah Lehmann, who is a Tasmanian resident working as a health professional, an occupational therapist and disability support worker. The ASOC pleads she has been unable to carry on her business; and (i) Alison Zerk, who is described as being a former resident of the NT. The ASOC pleads that she was "also affected by the border issues, fled the NT to escape the operation of the laws in that state and was rendered homeless". She is described as currently residing in South Australia. 18 Ms Smit, whom the applicants seek to remove as an applicant, is described as a resident of Victoria. The original statement of claim alleged that Ms Smit's "liberties to move about the State of Victoria were curtailed", and that: She allegedly attempted to set up a protest concerning the lockdowns and the restrictions that were imposed in the State of Victoria. She was imprisoned for 22 days. Her liberties to move about the State of Victoria have been severely curtailed and her movements in the State of Victoria have been followed by police. 19 The applicants allege that each of the applicants have been adversely affected by various lockdowns or restrictions imposed upon the liberties of people, and restrictions on the right to carry on trade. 20 The submissions for the State of Victoria, whose solicitors also act for Dr Friedman and Prof Cowe, indicated consent for the removal of Dr Friedman and Prof Cowe as respondents. At hearing, counsel for the other government parties indicated that they neither consented nor opposed the removal of the individual respondents. 21 Counsel for Tasmania opposed the joinder of one of the new individuals, Ms Mikailah Lehmann, on the basis that Ms Lehmann has no standing in respect of the allegations against Tasmania. In support of this contention, counsel for Tasmania submitted that Ms Lehmann has no "special interest" (citing Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493 at 530-31 (Gibbs J)), as either Ms Lehmann has no interest in the impugned Tasmanian Measures, or she has no greater interest in the impugned Measures than any other person in Tasmania.

Conclusion on removal and joinder 22 Save for the submissions of Tasmania, there was no real opposition to the removal and joinder applications. I accept the applicants have attempted to regularise the proceeding and address some of the concerns raised by the respondents. 23 In the circumstances, it is appropriate that leave be granted to remove Ms Smit, and to remove the 10th to 13th respondents inclusive, described at [16] above. 24 As to joinder, there being no active opposition to the joinder of Ms Knowles, Ms Nichols, and Ms Zerk, it is appropriate to grant leave for those individuals to be joined as applicants. It is appropriate that only those persons willing to be applicants should remain as applicants, and that at this stage of the proceeding adjustments to the parties which are contended to better reflect the allegations sought to be raised by the proceeding should be permitted. 25 I do not accept the submissions of Tasmania that Ms Lehmann's joinder should not be permitted because she has no standing. At this early of the proceeding, and given the nature of the allegations made, I am satisfied that Ms Lehmann has a sufficient interest in challenging the impugned Measures. The nature of the Measures, and the risks they were designed to address, mean that a very large proportion of the Australian community has been affected by them in one way or another. That feature may mean that a very large number of people have standing to challenge these measures; however, that fact simply arises because of the nature of the pandemic and the measures implemented to address it. Ms Lehmann alleges she has been denied the opportunity to work, and to earn an income, because the impugned Tasmanian Directions required her to be vaccinated, and she is not. Deprivation of income and the opportunity to work associated with a government measure is a tangible interest sufficient to give Ms Lehmann standing to challenge the Measures. The structure of this proceeding means that it is clear that various applicants have standing in relation to some but not all of the impugned Measures. Properly, most of the respondents have framed their submissions in a way that implicitly accepts this. See also Cotterill v Romanes [2021] VSC 498 at [132]. 26 Given the conclusions I have reached on the summary dismissal applications, there might be a question whether the removal and joinder orders should be made at all. The view I have taken is that the appropriate course is to regularise the proceeding in the way sought by the applicants, and to do this by way of orders made chronologically first, and then to make the orders sought on the respondents' IAs. Those orders then operate against the applicant parties as they are after the removal and joinder orders. In my opinion that situation best reflects the intention of the applicant parties.

APPLICABLE PRINCIPLES 27 There is no real debate about the applicable principles under s 31A(2) or rule 26.01(a), (b), (c) and/or (d). I have summarised those principles in Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [46]-[48], DBE17 v Commonwealth of Australia [2020] FCA 958 and Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 at [16]-[20]. The material question is how those principles should be applied in the circumstances of this proceeding. 28 It can be accepted that reasonable judicial minds may differ over whether allegations in a proceeding have no reasonable prospects of success. The contentions made on behalf of the applicants in this proceeding not unsurprisingly urged considerable caution in forming such a view, especially where the allegations have a novelty to them, as some of the allegations in this proceeding do. I accept the cautionary note sounded by the High Court in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 to this effect, and the need to ensure that summary dismissal processes are not used to stultify the development of the law: see Spencer at [25]. I have borne that factor in mind. 29 However, it is also the case that the resources of the Court, and the respondents as government parties, are public resources, and should be directed towards the resolution of controversies in a manner which is proportionate to the nature of a proceeding, to the issues it raises, but also proportionate to its prospects of success. Where a summary dismissal application is brought, the greater the size and complexity of a proceeding, the more persuaded a Court may need to be about its prospects before forcing respondents to defend a proceeding to trial, and before allocating to such a trial the finite public resources of the Court. Some of the pleadings in this case (such as the allegations about a joint scheme or agreements between the Commonwealth and other government parties, and indeed the negligence case as pleaded) suggest this proceeding will be resource intensive, and drawn out, with significant processes of discovery. The very nature and range of the responding government parties is indicative of the significant amount of human resources, and public funds, which would be expended on this matter proceeding to a contested trial. The applicants have shown some consciousness of the need to comply with their obligations under ss 37M and 37N of the FCA Act, but nevertheless, their submissions make it clear they wish to advance wide ranging factual and legal arguments, and to invite the Court to closely scrutinise arrangements by and between the government parties concerning, in particular, the requirements for, and implementation of, a scheme of vaccination for COVID-19, and restrictions relating to COVID-19, across many parts of Australia. A trial will be a considerable undertaking for all concerned. 30 On the other hand, the allegations made on behalf of the applicants concern one of the largest domestic and international health crises in the lifetimes of most members of the Australian community. Lives and livelihoods have been profoundly affected. The various government responses to the crisis are a matter of substantial public interest. Although the applicants seek private law remedies as well as public law ones, the subject matter of this proceeding means, in my opinion, the Court should be firmly persuaded that the allegations do not justify a trial. I have taken what I consider to be an appropriately cautious approach to whether the various claims have reasonable prospects of success, and I have borne the High Court's obiter comments in Spencer steadily in mind in my assessment. 31 One nuance arising from the applicants' submissions about the appropriate threshold is the couching of their written submissions in terms of the Court needing to determine whether the pleaded case is "fanciful": see the applicants' written submissions at [10]. In fact, what the High Court said must be "more than … 'fanciful'" are the prospects of success: see Spencer at [25]. It may be a slight difference, and of course the High Court's reasons are not to be construed as a statute. Nevertheless, what is being assessed are the prospects of the applicants' pleaded case succeeding. With the use of the term "fanciful", the Court is not making any subjective assessment of the subject matter of, or position underlying, the applicants' allegations. 32 Rather, as the authorities have emphasised repeatedly, the introduction of s 31A into the FCA Act reflected a conscious change in the appropriate threshold for summary dismissal. The Court must give effect to that change. The respondents must persuade the Court the causes of action upon which the applicants rely have no reasonable prospects of success, such that they are entitled to judgment in their favour. What must be assessed and measured by the Court is the prospects of the applicants succeeding at trial, assuming they prove the material facts they allege. If the term "fanciful" is used (and in my respectful opinion it might be best avoided), it is to be used in this context. 33 Nor is it to the point that the applicants' claims are "genuine" (see applicants' reply submissions at [2]). No respondent has suggested the applicants' claims are not genuine. However, commencing a proceeding with a true sense of grievance, and not as a sham or a colourable way to achieve another objective, is not sufficient. The respondents' IAs are directed at the underlying legal and factual basis for the applicants' pleaded claims, and that is what the Court must examine.

OTHER IMPORTANT DECISIONS ABOUT COVID-19 RESTRICTIONS 34 This is not the first piece of litigation to challenge COVID-19 restrictions before an Australian Court. Some of the authorities below featured in the submissions of the respondents. The applicants tended to submit they were all distinguishable, or should not control the outcome of the summary dismissal applications.

Palmer 35 In Palmer v Western Australia [2021] HCA 5; 95 ALJR 229, the plaintiffs, who were located in Queensland, brought a challenge to border restrictions imposed pursuant to the Emergency Management Act 2005 (WA) (EM Act WA). The nature of the challenge is summarised by Kiefel CJ and Keane J at [13]: The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect. 36 The High Court rejected all the challenges, with various justices giving different reasons for their rejection.

Kassam (NSWSC) 37 Senior and junior counsel in the current proceeding also appeared for the applicant in Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 (Kassam NSWSC). The judgment dealt with two originating proceedings together. Beech-Jones CJ in CL's reasons in Kassam NSWSC were relied on heavily by the respondents in this proceeding. Kassam NSWSC concerned orders made under the Public Health Act 2010 (NSW) (NSW PH Act). His Honour described at [1] the subject matter of the proceedings: The main focus of the two proceedings the subject of this judgment is those aspects of those orders which prevented so called "authorised workers" from leaving an affected "area of concern" that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines. 38 Like some of the applicants in the present proceeding, the plaintiffs in Kassam NSWSC had made an informed choice to refuse to be vaccinated. Kassam NSWSC was a judicial review proceeding, although there was also a constitutional challenge, as there is here. The court heard evidence, including expert evidence, and pronounced final orders dismissing the proceeding and rejecting all challenges made to the orders. 39 Kassam NSWSC is a seriously considered, and extensive, judgment of a superior State Court concerning a series of similar challenges to the pleadings in this case.

Kassam (NSWCA) 40 The NSW Court of Appeal granted leave to appeal to the Kassam NSWSC plaintiffs on several grounds, but in a carefully reasoned judgment, dismissed the appeals: Kassam v Hazzard [2021] NSWCA 299 (Kassam NSWCA). 41 Together, the decisions in Kassam NSWSC and Kassam NSWCA at first instance and on appeal (together, Kassam) should be seriously and carefully considered on the respondents' present applications. It is truth that only the NSW restrictions were in issue, however some of the constitutional arguments raised there are also raised in this proceeding. For those arguments, there was no material distinction highlighted by the applicants which suggested that the prospects of success of those arguments depended on which State or Territory measures were being considered. They were contended to apply to all the Measures, equally. Decisions of an intermediate appellate court (here, the NSW Court of Appeal) about the interpretation and operation of the Constitution should be treated as falling into the category of decisions which a primary judge should follow, unless firmly persuaded the decision is wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 151-152 [135]. The Constitution is the preeminent federal law of this country, and in my opinion, the same principle should apply: see also Ng v Commissioner of the Australian Federal Police [2022] WASCA 48 at [194]-[198]; Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 at [3]-[4], [47]-[49]. I should therefore not depart from the approach taken in Kassam NSWCA by the NSW Court of Appeal to the constitutional arguments, at least, unless satisfied it is wrong, or plainly wrong, however the term is to be understood: see the discussion by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [2]-[11]. Leave to appeal was rejected on the constitutional arguments: Kassam NSWCA at [41]. 42 Recently, in Hill v Zuda Pty Ltd [2022] HCA 21 at [25] the full High Court suggested the better expression to "plainly wrong" might be "unless there is a compelling reason to do so", referring to the use of that expression in RJE v Secretary to the Department of Justice (2008) 21 VR 526 at 554 [104]. The Court also made the point (at [26]) that: intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them. 43 As I explain below, I respectfully agree with the approach of Beech-Jones CJ at CL in Kassam NSWSC on all issues (not just constitutional issues), and I respectfully agree with the approach by the NSW Court of Appeal in the appeal in Kassam NSWCA on the issues on which it granted leave. Its decision not to grant leave on other issues, and reasoning for doing so, is also of some significance in these applications. Irrespective of the strict position under the authorities I have referred to at [41]-[42], I respectfully agree with the reasoning in the two Kassam decisions.

Cotterill 44 Cotterill was a judicial review proceeding challenging directions made under the Public Health and Wellbeing Act 2008 (Vic) (Vic PHW Act), based on an alleged infringement of the implied freedom of communication about governmental or political matters in the Commonwealth Constitution. Niall JA dismissed the proceeding. In so doing, his Honour held that the High Court's decision in McCloy v New South Wales [2015] HCA 34; 257 CLR 178 required the assessment of any alleged infringement to be applied to the legislation concerned, rather than to directions made under the legislation. Niall JA held that the provisions of the Vic PHW Act which authorised the making of the directions were valid in all their potential operations insofar as they may impose a burden on political communication: at [9]. His Honour found the legislative provisions served a legitimate purpose and there were significant constitutional limitations that confined their exercise and ensured that no lawful exercise of power could be "obnoxious to the constitutional freedom": see [9]. Furthermore, his Honour decided that, even if the McCloy test were to be applied directly to the directions themselves (as the plaintiff had submitted it should), the directions would not be invalid by reason of their burden on political communication. While in the present proceeding there is no pleaded case based on the implied freedom of political communication, I consider the decision Cotterrill is important, and refer to it below.

Loielo 45 Loielo v Giles [2020] VSC 722; 63 VR 1 was an earlier challenge to a direction made under the Vic PHW Act. The impugned direction imposed a curfew in greater Melbourne from 9.00 pm to 5.00 am. The plaintiff sought judicial review on the grounds of legal unreasonableness and a lack of independence of the person who issued the direction - the State's Chief Health Officer - from the Premier of Victoria. Ginnane J dismissed the proceeding, finding that the Chief Health Officer had not issued the direction at the Premier's behest, and determining that the issuing of the direction was not affected by any legal unreasonableness, irrationality or illogicality and was instead a lawful exercise of the emergency powers conferred by the Act, and was proportionate to the risk posed by the COVID-19 virus.

Larter 46 Like Kassam, Larter v Hazzard (No 2) [2021] NSWSC 1451 involved a challenge to orders made under the NSW PH Act. The orders in question effectively prohibited healthcare work by unvaccinated people. In a claim for declaratory and injunctive relief, the plaintiff contended that the orders were legally unreasonable - that it was not open to the Minister to make the orders, having regard to the risk to public health caused by COVID-19. Adamson J dismissed the claim, finding that it was reasonably open for the Minister to make the orders concerned.

5 Boroughs 47 5 Boroughs NY Pty Ltd v State of Victoria [2021] VSC 785 differed in nature from the other cases above. It concerned two representative claims in negligence, each brought on behalf of persons who alleged they had suffered economic loss resulting from Victoria's stage 3 and 4 lockdown restrictions, during the 'second wave' of the pandemic. As pleaded, the plaintiffs' cases contended this loss ultimately flowed from the allegedly negligent hotel quarantine program applied in Victoria. The defendants applied for summary judgment, or striking out of the representative plaintiff's statement of claim. John Dixon J refused the summary judgment application, but struck out the entirety of the statement of claim. His Honour found that the plaintiff had failed to properly identify the duty supposed to be owed by the State of Victoria to take reasonable care to ensure that the State's hotel quarantine program was implemented effectively, but granted leave to the plaintiff to re-plead its case.

Gerner 48 Gerner v State of Victoria [2020] HCA 48; 270 CLR 412 concerned proceedings commenced in the High Court's original jurisdiction to challenge the constitutional validity of s 200(1)(b) and (d) of the Vic PHW Act and the lockdown directions made under those provisions. The plaintiffs submitted that the legislative provision and directions infringed a guarantee of a general freedom of movement contended to be implicit in the Commonwealth Constitution, and contended to "[stand] independently of political communication and independently of interstate trade, commerce and intercourse": Gerner at [9]. The State of Victoria demurred, and the Court upheld the demurrer. The Court held unanimously that there was no basis in the text and structure of the Constitution for the contended implication: at [9].

THE INSTRUMENTS, BODIES AND DECISIONS OR CONDUCT IMPUGNED BY THE APPLICANTS 49 The applicants allege they have been subject to "various lockdown measures or restrictions imposed upon the liberties of people, and restrictions on the right to carry on trade" applying across Australia. The applicants define these actions as 'Measures'. A table entitled "Particulars of Measures" at [4] of the ASOC sets out those measures that the applicants appear to include within the definition of 'Measures'. These are addressed in turn, below. 50 The applicants also impugn what they describe in their pleading as a 'National Plan', included in their definition of the Measures, which they contend was agreed at the National Cabinet commencing March 2020. They appear to allege that the National Plan was to some extent responsible for the various State and Territory Measures. 51 I interpolate here that it appeared common ground that the 'National Cabinet' referred to in the pleadings was the body established in March 2020 as part of the governmental response to the COVID-19 pandemic. Beyond that, the applicants do not make any specific allegations of fact about what the National Cabinet was, or how it was established. In Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719, White J had a range of evidence before him on the topic, some of which was less direct than his Honour found the Court was entitled to expect: see [84]-[86]. Nevertheless, his Honour found as follows (at [87]): I find that the National Cabinet was established by a collective decision of COAG [Council of Australian Governments] on 13 March 2020. This, ultimately, was the submission of counsel for the respondent. 52 In the absence of any pleadings or submissions to the contrary, I consider it appropriate to adopt White J's finding for the purposes of this decision. 53 By [10] of the ASOC, the National Plan is alleged by the applicants to have included: (a) the making of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (2020 Biosecurity Declaration) on 20 March 2020 pursuant to s 475 of the Biosecurity Act 2015 (Cth); (b) a series of intergovernmental agreements and protocols, lockdown measures and restrictions (including the Measures) that have been imposed on the freedom of movement and the exercise of civil liberties of the population of Australia; and (c) "a system and by way of a civil conscription for the vaccination of the population (with vaccines that were recommended, obtained, and paid for by the Commonwealth)".

Commonwealth 54 With respect to the Commonwealth, the applicants include in the impugned 'Measures' two directions made pursuant to the s 475 of the Biosecurity Act, being the 2020 Biosecurity Declaration and the Protocol for Domestic Border Controls - Freight Movements and Freight Movement Code for Domestic Border Controls. The Protocol and the Code are two different documents; both were in evidence, through the Commonwealth's affidavit material. The Code is expressed to be a "binding" document. In these reasons, I refer to both documents as the Freight Movements Measures. 55 Section 475 of the Biosecurity Act provides: (1) The Governor-General may declare that a human biosecurity emergency exists if the Health Minister is satisfied that: (a) a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and (b) the declaration is necessary to prevent or control: (i) the entry of the listed human disease into Australian territory or a part of Australian territory; or (ii) the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory. Note 1: The declaration is a human biosecurity emergency declaration (see section 9). Note 2: For revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901. Note 3: A human biosecurity emergency declaration may be varied under section 476. Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to variation of a human biosecurity emergency declaration. (2) A human biosecurity emergency declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration. Requirements for human biosecurity emergency declaration (3) A human biosecurity emergency declaration must specify: (a) the listed human disease to which the declaration relates; and (b) the nature of the human biosecurity emergency and the conditions that gave rise to it; and (c) the period during which the declaration is in force. Note 1: The listed human disease specified under paragraph (3)(a) is the declaration listed human disease (see section 9). Note 2: The period specified under paragraph (3)(c) is the human biosecurity emergency period (see section 9). (4) A human biosecurity emergency period: (a) must not be longer than the period that the Health Minister considers necessary 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; and (b) in any case, must not be longer than 3 months. Note: A human biosecurity emergency period may be extended under section 476. (Original emphasis.) 56 The 2020 Biosecurity Declaration was first issued on 18 March 2020. It declares that a human biosecurity emergency existed, by reference to a human coronavirus with pandemic potential. The declaration states that the human coronavirus had entered Australian territory, that it was in some cases fatal, that there was no vaccine against or anti-viral treatment for the virus when the declaration was made, and that the virus posed a severe and immediate threat to human health on a nationally significant scale. The 2020 Biosecurity Declaration was extended for consecutive and continuous periods since its creation, and remained in force at the date of the summary dismissal application. It expired and ceased to have effect on 17 April 2022. 57 Once a declaration is made under s 475, the powers in s 477 become available. Those powers permit the Health Minister to "determine any requirement that he or she is satisfied is necessary" for the purposes listed in s 477(1). Such requirements may include, as specified (non-exhaustively) in s 477(3), requirements restricting or preventing the movement of persons, goods or conveyances in or between specified places, and other requirements. However, on the applicants' pleadings, and in light of the table entitled "Particulars of Measures" at [4] of the ASOC, it is apparent that the applicants bring no challenge to the exercise of any power under s 477. 58 The Protocol commences with the following statement: The movement of domestic freight via heavy vehicles and freight trains is critical to ensuring supply chains continue to operate smoothly and individuals, businesses and service providers can access the goods they need. Any movement of freight-related workers across the country or through communities needs to be balanced with the safety of both the workforce and broader community. 59 The Protocol goes on to note that States and territories may introduce additional restrictions or differential advice (eg on travel from a particular area) in relation to areas affected by COVID-19, but that: Greater consistency in border management of supply chains will assist industry to comply. Where any variations exist between jurisdictions, these need to be clearly communicated to the freight and logistics industry, border control authorities and national regulators. 60 The Code, contemplated by the Protocol, describes itself as having been developed in consultation with industry to limit the potential for COVID-19 to spread through the operation of supply chain networks. The Code itself does not impose a vaccine requirement for freight workers or prevent the transit of freight across borders, but it does specify "the measures that will be enforced by relevant states and territories through their Public Health Orders and Emergency Management Directions". The Code then sets out the measures which will be "enforceable in each state and territory that implements border controls". 61 These measures include requiring freight workers who cross State or Territory borders to record a negative COVID-19 test result every 7 days, minimise contact with other people, wear masks for "all interactions", adhere to local contact tracing requirements, and monitor lockdown and hotspot announcements, amongst other matters. In this version of the Code, there is no vaccination requirement imposed by the Code itself.

Victoria 62 The table entitled "Particulars of Measures" at [4] of the ASOC nominates the following Victorian Measures: (a) a number of directions made under the ss 165AB and 165AI of the Vic PHW Act that were "[p]resently" in force (ie at the time of the filing of the ASOC), having come into effect at 11:59 pm on 15 December 2021. They are: (i) Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1); and (ii) Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1); and (b) a number of directions that were formerly in force, having been revoked at 11:59 pm on 15 December 2021, and which were made pursuant to ss 189, 190, 198, 199 and 200 of the Vic PHW Act, being the: (i) COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13); (ii) COVID-19 Mandatory Vaccination (Specified Workers) Directions (No 8); and (iii) the predecessors to those instruments. 63 Sections 165AB and 165AI of the Vic PHW Act provide: 165AB Premier may make a pandemic declaration (1) The Premier may make a declaration under this subsection (a pandemic declaration) if the Premier is satisfied on reasonable grounds that there is a serious risk to public health arising from - (a) a pandemic disease; or (b) a disease of pandemic potential. (2) The Premier must consult with, and consider the advice of, the Minister and the Chief Health Officer before making a pandemic declaration. (3) The Premier may make a pandemic declaration whether or not, at the time the declaration is made - (a) the pandemic disease is present in Victoria; or (b) the disease is a disease of pandemic potential that is present in Victoria - as the case requires. (4) The validity of a pandemic declaration is not affected by either of the following - (a) the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a disease of pandemic potential, but the disease was a pandemic disease at that time; (b) the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a pandemic disease, but the disease was a disease of pandemic potential at that time. … 165AI Minister may make a pandemic order (1) The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health. (2) Without limiting subsection (1), a pandemic order may include, but is not limited to, an order - (a) that requires persons to be detained in a pandemic management area for the period specified in the order - (i) if the conditions specified in the order are satisfied; or (ii) in the circumstances specified in the order; or (b) that requires that the detention of persons in a pandemic management area be extended for the period specified in the order - (i) if the conditions specified in the order are satisfied; or (ii) in the circumstances specified in the order; or (c) that restricts movement in a pandemic management area; or (d) that requires movement in, into or from a pandemic management area; or (e) that prevents or limits entry to a pandemic management area; or (f) that prohibits or regulates gatherings whether public or private in a pandemic management area; or (g) that requires the use of personal protective equipment in a pandemic management area; or (h) that prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area; or (i) that requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records; or (j) that requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area; or (j) that requires the quarantining, destruction or other management of disease vectors in a pandemic management area. Note A person can be detained in the exercise of a pandemic management power: see sections 165B(1)(b) and 165BA(1)(b). Special protections apply to detention under this Part, including the right of a detained person to apply for review by a Detention Appeals Officer of the detention: see Division 6. (3) A period of detention specified in a pandemic order must not exceed the period that the Minister believes is reasonably necessary to eliminate or reduce a serious risk to public health. (4) Without limiting subsection (2)(b), the reasons for making a pandemic order that requires the extension of a period for which persons are detained may relate to a refusal or failure to comply with a requirement to undergo a medical examination or a medical test. (Original emphasis.) 64 The Specified Facilities Directions imposed obligations on operators of residential aged care facilities, construction sites, healthcare facilities and educational facilities. These obligations included a requirement that the operators take all reasonable steps to ensure that only vaccinated persons (or persons exempted from having a vaccination for specific reasons) worked on the premises of the specified facilities. The following provisions illustrate how the restrictions operate: 4 Operator must collect, record and hold vaccination information Vaccination information (1) If a worker is, or may be, scheduled to work at a specified facility after the commencement of these directions, the operator must collect, record and hold vaccination information about the worker. … 5 Operator must take reasonable steps to prevent entry of unvaccinated workers Prevention of entry to premises (1) An operator of a specified facility must take all reasonable steps to ensure that a worker who is: (a) for the period before the relevant full dose deadline, unvaccinated; or (b) for the period on and after the relevant full dose deadline, unvaccinated or partially vaccinated, does not enter, or remain on, the premises of the specified facility for the purposes of working at the specified facility. … 6 Limits on work outside ordinary place of residence (1) If: (a) a person is a worker; and (b) it is reasonably practicable for the person to work at the person's ordinary place of residence, an operator of a specified facility must take all reasonable steps to ensure that the person does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility, unless: (c) the operator collects, records and holds vaccination information about the person; and (d) the person is: (i) fully vaccinated; or (ii) an excepted person. Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person's ordinary place of residence. (Original emphasis.) 65 The term "worker", as used in cl 6(1)(a) of the Specified Facilities Directions, was relevantly defined in the Schedule to the Directions by reference to different types of work in the different types of facilities covered by the Directions. An "excepted person", for the purposes of cl 6(1)(d)(ii), was a person who held an acceptable certification that they were unable to receive a dose, or a further dose, of an available vaccine due to a medical contraindication or an acute medical illness. 66 The Specified Workers Directions imposed obligations on employers of "workers" within 33 defined categories. The defined categories spanned a wide range of industries, including agriculture and forestry, creative arts, professional services, science and technology, retail and transportation, among others. In broad terms, the Directions obliged employers to require unvaccinated workers in the industries covered to work from home, as illustrated by the following provisions: 4 Employer must collect, record and hold vaccination information Vaccination information (1) If a worker is, or may be, scheduled to work outside the worker's ordinary place of residence after the commencement of these directions, the employer of the worker must collect, record and hold vaccination information about the worker. … 5 Employer must ensure unvaccinated workers do not work outside ordinary place of residence No work outside ordinary place of residence (1) An employer of a worker must not permit a worker who is: (a) for the period before the relevant full dose deadline, unvaccinated; or (b) for the period on and after the full dose deadline, unvaccinated or partially vaccinated, to work for that employer outside the worker's ordinary place of residence. (2) For the purposes of subclause (1)(a), if an employer does not hold vaccination information about a worker, the employer must treat the worker as if the worker is unvaccinated. … 6 Limits on work outside ordinary place of residence (1) If: (a) a person is a worker; and (b) it is reasonably practicable for the person to work at the person's ordinary place of residence, an employer of the person must not permit the person to work for that employer outside the person's ordinary place of residence, unless: (c) the employer collects, records and holds vaccination information about the person; and (d) the person is: (i) fully vaccinated; or (ii) an excepted person. Note: this obligation does not apply in relation to a person who is a worker, if it is not reasonably practicable for the person to work at the person's ordinary place of residence. (Original emphasis.) 67 The Specified Workers Directions defined "worker" in its Schedule by reference to the different categories of work, and used the same definition for "excepted person" as that used in the Specified Facilities Directions. Clause 7 of the Specified Workers Directions provided exceptions to the vaccination requirements in certain circumstances, such as responding to emergencies or performing urgent and essential work to protect health and safety or assets and infrastructure.

New South Wales 68 The table at [4] of the ASOC states that 'Measures' in the NSW context include a number of directions made pursuant to s 7 of the NSW PH Act, being: (a) Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, which commenced at 7:08 pm on 26 June 2021; (b) Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021, which commenced on 31 July 2021; (c) Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021, which commenced on 21 August 2021; and (d) Public Health (COVID-19 General) Order 2021, which commenced on 11 October 2021. 69 Section 7 of the NSW PH Act provides: 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. 70 The Temporary Movement and Gathering Restrictions limited the number of visitors permitted in residential premises, holiday homes and short-term rentals, limited the number of persons allowed in certain non-residential premises, required face masks in certain settings and restricted singing, dancing and the consumption of alcohol in non-residential premises. They imposed additional restrictions in Greater Sydney, including by the following provisions: 20 Direction of Minister concerning staying at home (1) The Minister directs that an affected person must not without reasonable excuse - (a) be away from the person's place of residence, wherever located, or (b) if the person is staying in temporary accommodation, wherever located - be away from the temporary accommodation. (2) For the purposes of subclause (1), a reasonable excuse includes doing an activity specified by Schedule 1. (3) For the purposes of subclause (1)(b), it is a reasonable excuse to leave the temporary accommodation if - (a) the period of the booking of the temporary accommodation expires, and (b) the person goes directly to the person's place of residence or other temporary accommodation, and (c) the person continues to comply with this clause. (4) Subclause (2) does not permit a person to participate in a gathering in contravention of Part 2 or this Part, Division 3. (5) Taking a holiday is not a reasonable excuse. (6) This clause does not apply to a person who is homeless. 21 Direction of Minister concerning entering Greater Sydney (1) The Minister directs that a person outside of Greater Sydney must not, without reasonable excuse, enter greater Sydney. (2) For the purposes of subclause (1), a reasonable excuse includes - (a) entering to go to the person's place of residence in Greater Sydney, or (b) doing an activity specified in Schedule 1, items 2-4, 6 or 8-16, or (b1) obtaining food or other goods or services if - (i) the food, goods or services are for the personal needs of the person's household or for other household purposes, including for vulnerable persons or pets, and (ii) the food, goods or services, or equivalent food, goods or services, are not reasonably available outside Greater Sydney, or (c) attending a funeral memorial service, or a gathering following a funeral or memorial service, at which there are no more than 10 persons, excluding the person conducting the service and any other person necessary for the conduct and preparation of the service. (3) Subclause (2) does not permit a person to participate in a gathering in contravention of Part 2 [ie, the restrictions on work, gatherings and premises generally] or this Part, Division 3. (4) Taking a holiday in Greater Sydney is not a reasonable excuse. (5) (Repealed). 71 The Temporary Movement and Gathering Restrictions were replaced by the additional restrictions imposed in response to the outbreak of COVID-19's Delta variant. These additional restrictions maintained many of the same limitations and directions as the Temporary Movement and Gathering Restrictions. As the COVID-19 vaccine was deployed throughout NSW, the additional restrictions were repealed and replaced by the Additional Restrictions (No 2). The Additional Restrictions (No 2) differentiated between vaccinated and unvaccinated people by way of the following provisions: 4.3 Leaving area of concern for work (1) A person whose place of residence is 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 who is at least 16 years of age and is leaving an area of concern for work must - (a) carry evidence showing the person's name and place of residence, and (b) produce the evidence for inspection if requested to do so by a police officer. (3) This clause does not apply to a person who 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. … 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 certified medical contraindication 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) A person has a certified medical contraindication if the person - (a) cannot have a COVID-19 vaccine due to a medical contraindication, and (b) has a certificate, in the form approved by the Chief Health Officer, from a medical practitioner that specifies the medical contraindication. (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 - Australian Immunisation Register means the Australian Immunisation Register kept under the Australian Immunisation Register Act 2015 of the Commonwealth. required evidence means - (a) evidence showing the person's name and place of residence, 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 certificate specifying a medical contraindication as required under subclause (4). test for COVID-19 includes test for COVID-19 using a rapid antigen test in the way approved by the Chief Health Officer. (Original emphasis.) 72 The version of the Additional Restrictions (No 2) that I have extracted above is taken from the version exhibited to one of Mr Balzola's affidavits, read by the applicants. The submissions of NSW appeared to refer to a different version. For present purposes, I do not consider any variation is material, as both versions impose both restrictions on movement, and restrictions based on vaccination status. These are the primary features to which the applicants' allegations are directed. 73 In October 2021, 70% of the people aged 16 years or older in NSW had received two doses of the COVID-19 vaccine, and the Additional Restrictions (No 2) were replaced by the General Order. The General Order maintained significant restrictions in respect of the activities of unvaccinated persons, while easing restrictions on vaccinated persons. Relevant provisions included: 2.4 Maximum number of persons - places of residence (1) If the place of residence of a household is in the general area and no member of the household is an unvaccinated adult, each member of the household who is over 18 years of age must not allow - (a) a visitor who is an unvaccinated adult to be at the place of residence, or (b) more than 10 visitors to be at the place of residence at any 1 time. (2) If the place of residence of a household is in the general area and a member of the household is an unvaccinated adult, each member of the household who is over 18 years of age must not allow a visitor to be at the place of residence. (3) A visitor must not be at a place of residence in the general area if - (a) the person is an unvaccinated adult, or (b) a member of the household of the place of residence is an unvaccinated adult, or (c) another visitor at the place of residence is an unvaccinated adult, or (d) there are more than 9 other visitors at the place of residence. … 2.18 Premises closed to unvaccinated adults (1) The occupier of the following premises in the general area must take reasonable steps to ensure that an unvaccinated adult is not on the premises - (a) higher risk premises, (b) business premises that are hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours, (c) recreation facilities (indoors), (d) public swimming pools, (e) information and education facilities, (f) retail premises, but not critical retail premises, (g) business premises that are auction houses, (h) business premises that are betting agencies, (i) gaming lounges, (j) markets that do not predominantly sell food, (k) properties operated by - (i) the National Trust, or (ii) the Historic Houses Trust. (2) An unvaccinated adult must not be on premises referred to in subclause (1) in the general area. (3) The occupier of higher risk premises in the general area must ensure that a person who is under 16 years of age and who is not a fully vaccinated person is not on the premises unless the person is - (a) on the premises to carry out work, or (b) accompanied by a person who is - (i) a member of the person's household, and (ii) a fully vaccinated person. (4) This clause does not apply to a person who is on the premises for the following purposes - (a) because of a service to assist vulnerable members of the public, for example a food bank or a service providing for the needs of homeless persons, (b) to purchase food or beverages to be consumed off the premises, (c) to attend a small funeral or memorial service or small wedding service, (d) to use a click and collect service. (4A) This clause also does not apply to a person who is on the premises if - (a) the premises are outside Greater Sydney, and (b) the person resides outside Greater Sydney, and (c) the person has had only 1 dose of a COVID-19 vaccine, and (d) the person is on the premises for the purposes of work. (4B) Subclause (4A) and this subclause are repealed at the beginning of 1 November 2021. (5) In this clause - higher risk premises means the following - (a) entertainment facilities, (b) recreation facilities (major), (c) hospitality venues, (d) places of public worship, (e) premises at which a significant event is being held, other than a small funeral or memorial service or small wedding service. (Original emphasis.)

Western Australia 74 The applicants impugn two declarations and a direction, as recorded in the table at [4] of the ASOC. It is not disputed that the declarations and direction were made pursuant to ss 56 and 58 of the EM Act WA, and ss 157, 167, 171, 180 and 190 of the Public Health Act 2016 (WA) (PH Act WA). They are: (a) a State of Emergency declared on 15 March 2020; (b) a Public Health State of Emergency declared on 23 March 2020; and (c) the Health Worker (Restrictions on Access) Directions (No 3), which came into effect on 22 September 2021. 75 Section 56 of the EM Act WA provides: 56. Minister may make state of emergency declaration (1) The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State. (2) The Minister must not make a declaration under this section unless the Minister - (a) has considered the advice of the State Emergency Coordinator; and (b) is satisfied that an emergency has occurred, is occurring or is imminent; and (c) is satisfied that extraordinary measures are required to prevent or minimise - (i) loss of life, prejudice to the safety, or harm to the health, of persons or animals; or (ii) destruction of, or damage to, property; or (iii) destruction of, or damage to, any part of the environment. (3) A declaration under this section is to include - (a) the time when, and date on which, the declaration is made; and (b) the area of the State to which it applies. (4) The making of a state of emergency declaration does not prevent the making of further state of emergency declarations in relation to the same or a different emergency. 76 Section 167 of the PH Act WA provides: 167. Minister may make public health state of emergency declaration (1) The Minister may, in writing, declare that a public health state of emergency exists in the whole of the State or in any area or areas of the State. (2) The Minister cannot make a public health state of emergency declaration unless the Minister - (a) has considered the advice of the Chief Health Officer, given after the Chief Health Officer has consulted with the person holding the office of State Emergency Coordinator under the Emergency Management Act 2005; and (b) is satisfied that a public health emergency has occurred, is occurring or is imminent; and (c) is satisfied that extraordinary measures are required to prevent or minimise loss of life or prejudice to the safety, or harm to the health, of persons. (3) A public health state of emergency declaration - (a) must include - (i) details of the public health emergency that is the basis of the declaration; and (ii) the time when, and date on which, the declaration is made; and (iii) details as to whether the declaration applies to the whole of the State or to one or more specified areas of the State; and (b) may limit the powers that may be exercised during the period for which the declaration is in force. (4) The making of a public health state of emergency declaration does not prevent the making of further public health state of emergency declarations in relation to the same or a different public health emergency. 77 The Heath Worker Directions were made pursuant to the PH Act WA in order to address the risks posed by COVID-19 in health care settings. The general scheme of the directions was to exclude unvaccinated or partially vaccinated health workers from different health facilities, at different times depending on the sensitivity of the health facility and depending on the Western Australian government's estimation of the timing of the deployment of the COVID-19 vaccine. They included the following provisions: Access Restrictions Applying to Health Care Workers 4. Subject to paragraphs 6 and 7, a person who is a hea1th care worker must not enter, or remain at: (a) on and from the stage one commencement date, a tier one health care facility if the person has not been partially vaccinated against COVID-19; and (b) on and from the stage two commencement date: i. a tier one hea1th care facility if the person has not been fully vaccinated against COVID-19; or ii. a tier two health care facility if the person has not been partially vaccinated against COVID-19; and (c) on and from the stage three commencement date: i. a tier two health care facility if the person has not been fully vaccinated against COVID-19; or ii. a tier three health care facility if the person has not been partially vaccinated against COVID-19; and (d) on and from the stage four commencement date, a tier three health care facility if the person has not been fully vaccinated against COVID-19, unless the person is present at the health care facility solely in a capacity other than as a health care worker. Access Restrictions Applying to Health Support Workers 5. Subject to paragraphs 6 and 7, a person who is a health support worker must not enter, or remain at: (a) on and from the stage one commencement date, a tier one health care facility if the person has not been partially vaccinated against COVID-19; and (b) on and from the stage two commencement date, a tier one health care facility if the person has not been fully vaccinated against COVID-19; and (c) on and from the stage three commencement date: i. a tier two health care facility if the person has not been partially vaccinated against COVID-19; or ii. a tier three health care facility if the -person has not been partially vaccinated against COVID-19; and (d) on and from the stage four commencement date: i. a tier two health care facility if the person has not been fully vaccinated against COVID-19; or ii. a tier three health care facility if the person has not been fully vaccinated against COVID-19, unless the person is present at the health care facility solely in a capacity other than as a health support worker. (Original emphasis.) 78 The terms "health care worker" and "health support worker" were defined in a schedule to the Health Worker Directions. The definitions excluded "exempt persons", the definition for whom included people with a medical exemption as recorded on the Australian Immunisation Register. Paragraphs 6 and 7 of the directions provided general exclusions and exceptions to the restrictions in paragraphs 4 and 5, including exceptions to allow workers to perform emergency duties or exercise industrial rights.

Tasmania 79 The impugned 'Measures' in the Tasmanian context are a number of declarations and directions made pursuant to ss 14, 15, 16 and 40 of the Public Health Act 1997 (Tas) (Tasmanian PH Act), being: (a) a declaration of a public health emergency by the Director of Public Health, made pursuant to s 14 of the Tasmanian PH Act and extended pursuant to s 15, with the table at [4] recording the latest extension as being made at 19 October 2021; (b) a declaration made pursuant to s 40 of the Tasmanian PH Act that COVID-19 is a notifiable disease; and (c) two directions made under s 16 of the Tasmanian PH Act, being; (i) the direction entitled Mandatory Vaccination of Certain Workers - No 5 made on 24 September 2021 under s 16 of the Tasmanian PH Act; and (ii) the direction entitled Vaccination Requirements for Certain Workers - No 10, which took effect from 31 October 2021. 80 Sections 14, 16 and 40 of the Tasmanian PH Act provide: 14. Emergency declaration (1) The Director, by any means the Director considers appropriate, may declare that a public health emergency exists if satisfied that the situation requires it. (2) The declaration is to specify - (a) the nature of the public health emergency; and (b) any area to which the declaration relates; and (c) the period during which the declaration is in force. (3) The Director is to notify the State Controller, within the meaning of the Emergency Management Act 2006, if the existence of a public health emergency is declared under this section. … 16. Directions of Director (1) While an emergency declaration is in force, the Director may take any action or give any directions to - (a) manage a threat to public health or a likely threat to public health; or (b) quarantine or isolate persons in any area; or (c) evacuate any persons from any area; or (d) prevent or permit access to any area; or (e) control the movement of any vehicle. (2) The Director may give any one or more of the following directions while an emergency declaration is in force: (a) that any specified person undergo - (i) a clinical assessment specified in the direction; or (ii) a clinical assessment, specified in the direction, conducted by a person, or a member of a class of persons, specified in the direction; (b) that any specified person move to, or stay in, a specified area; (c) that any substance or thing be seized; (d) that any substance or thing be destroyed; (e) that any other action be taken the Director considers appropriate. (2A) A direction given under this section may specify the manner in which the direction is to be complied with. (3) A person must comply with a direction of the Director given under this section. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 6 months, or both. (4) A person who carries out a clinical assessment for the purpose of a direction given under subsection (2)(a) must provide to the Director a written report in relation to the assessment as soon as practicable after the assessment is completed. Penalty: Fine not exceeding 25 penalty units. (5) A direction given under this section ceases to be in force when the requirements of the direction have been satisfied. (6) The Director may revoke a direction given under this section. (7) The Director must revoke under subsection (6) a direction as soon as practicable after he or she is satisfied that it is no longer necessary, for the purposes of managing a threat to public health or a likely threat to public health, for the direction to remain in force. (8) If a direction given under this section, or an order under section 16C(1)(e), requires a person to be quarantined or isolated or to stay in a specified area, the Director, at the required intervals, must - (a) consider whether it is necessary for the person to continue to be subject to the direction or order; and (b) if necessary in order to determine whether it is necessary for the person to continue to be subject to the direction or order, arrange for the clinical assessment of the person. (9) The required intervals are intervals that the Director considers reasonable, but not less than once in every successive period of 7 days. … 40. Notifiable diseases and contaminants The Director, by public notice, may declare - (a) a disease, whether communicable or non-communicable, that is specified in the notice, or all diseases, whether communicable or non-communicable, that are members of a class of diseases specified in the notice, to be notifiable diseases; and (b) an organism, or substance, that is specified in the notice, or all organisms or substances that are members of a class of organisms or substances specified in the notice, to be notifiable contaminants. 81 The Mandatory Vaccination direction restricted unvaccinated workers from entering residential aged care facilities, quarantine sites and medical or health facilities. The direction also restricted unvaccinated workers from providing quarantine transport services or health and medical services or treatments. The direction provided a number of exceptions to these restrictions, including for people who were unable to be vaccinated against COVID-19 due to a medical contraindication. The Mandatory Vaccination direction continued for several iterations, until it was revoked and replaced by an early iteration of the Vaccination Requirement direction. The Vaccination Requirement direction contained similar provisions to those of the Mandatory Vaccination direction.

Queensland 82 In respect of Queensland, the impugned 'Measures' are a declaration, direction and protocol made under ss 319, 323 and 362B of the Public Health Act 2005 (Qld) (Queensland PH Act), being: (a) a public health emergency declared on 29 January 2020; (b) the Border Restrictions Direction, which commenced at 12:01 am on 26 March 2020 (as amended from time to time); and (c) the Operational Protocol for Freight Movements entering Queensland (as amended from time to time). 83 At the time of the filing of the ASOC, ss 319, 323 and 362B of the Queensland PH Act provided: 319 Declaration of public health emergency (1) This section applies if the Minister is satisfied - (a) there is a public health emergency; and (b) it is necessary to exercise powers under this chapter to prevent or minimise serious adverse effects on human health. (2) The Minister may declare a public health emergency by a signed written order (a public health emergency order). (3) However, before declaring a public health emergency the Minister must, if practicable, consult with the chief executive and the chief health officer. (4) If it has not been practicable to consult with the chief executive or the chief health officer under subsection (3), the Minister must consult as soon as practicable after the declaration of the public health emergency. (5) A public health emergency order takes effect from its declaration by the Minister by signed written order. … 323 Extending declared public health emergency (1) A regulation may extend, or from time to time further extend, the period of a declared public health emergency. (2) A regulation made under this section commences on the day it is made whether or not it is notified on that day. (3) A regulation extending or further extending the period of a declared public health emergency - (a) must state the period, of not more than 90 days, by which the declared public health emergency is extended or further extended; and (b) expires at the end of the stated period unless the regulation is sooner repealed or it expires under section 324(3). (4) Subsection (2) applies despite the Statutory Instruments Act 1992, section 32. … 362B Power to give directions (1) This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community. (2) The chief health officer may, by notice published on the department's website or in the gazette, give any of the following public health directions - (a) a direction restricting the movement of persons; (b) a direction requiring persons to stay at or in a stated place; (c) a direction requiring persons not to enter or stay at or in a stated place; (d) a direction restricting contact between persons; (e) any other direction the chief health officer considers necessary to protect public health. (3) A public health direction must state - (a) the period for which the direction applies; and (b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction. (Original emphasis.) 84 As the State of Queensland noted in its written submissions, there were more than 60 different 'Border Restrictions Directions' promulgated by the State's Chief Health Officer under s 362B of the Queensland PH Act from 25 March 2020 to 14 January 2022. The version provided in the affidavit material filed on behalf of the applicants is that dated 25 March 2020. Clauses 2 to 4 of the direction provided: Arrivals To Queensland 2. A person who arrives in Queensland from another State or Territory of Australia must self-quarantine for a period of 14 days, unless they are an exempt person. 3. Despite the direction in paragraph 2, an exempt person, who arrives in Queensland must self-quarantine for a period of 14 days if: 1. they have been outside the border of Australia in the last 14 days; or 2. they travelled in the last 14 days to particular areas of Australia. The particular areas of Australia that require self-quarantine will be decided by the Chief Health Officer and published on the Queensland Health website. Additional Requirements For People Arriving By Aircraft 4. Any person who arrives by aircraft may not enter Queensland unless they provide the following information upon arrival: 1. Personal and contact details; 2. The address where they intend to stay in Queensland; 3. Information about where they have travelled in the last 30 days; and 4. Any other information requested in an arrivals form. 85 The remaining provisions of that version of the direction specified the classes of people who were considered "exempt persons", which included ordinary residents of Queensland, certain federal and State government employees, certain health practitioners or emergency service providers, certain workers in the transport, freight and logistics industries, and other specified persons. In August 2021, a version of the Border Restrictions Directions imposed vaccination requirements for certain essential workers seeking entry to Queensland. From 13 December 2021 to 15 January 2022, the prevailing iterations of the Border Restrictions generally required travellers to be fully vaccinated for entry into Queensland, with exceptions for those with a medical excuse. 86 As the State of Queensland submitted, various iterations of the Border Restrictions Directions required compliance with the Operational Protocol for Freight Movements as a condition of entering Queensland under an exemption for an 'essential activity'. Compliance with the Operational Protocol for Freight Movements was not required by the version of the Border Restrictions Directions that was provided in the applicants' evidence; the first iteration of the directions that required such compliance was the Border Restrictions Direction (No 14), which was given on 22 September 2020. Like the Border Restrictions Directions, the Operational Protocol for Freight Movements had several different iterations, as the protocol was amended over time to respond to the changing conditions of the COVID-19 pandemic. The applicants provided a copy of the iteration that existed in December 2021, which included the following provisions: 8. Freight and logistics operators entering Queensland from another state or territory in Australia must fulfill all the requirements outlined in the QLD Freight Protocol including: a. having a valid Queensland Border Declaration Pass; and b. adhering to the mandatory COVID-19 testing requirements; and c. adhering to the mandatory vaccination requirements. … 18. A freight and logistics operator who has been in another state or territory in the previous 14 days must not enter Queensland unless the person is fully vaccinated. Note: Evidence of vaccination for paragraph 18 may be the person's vaccination card, immunisation history or other written evidence provided by their general practitioner. The person will be required to show evidence if required by an emergency officer (public health). … 43. Fully vaccinated means a person: a. has received the prescribed number of doses of a COVID-19 vaccine, and it has been 7 days since the final dose; or b. is under 16 years of age; or c. is unable to receive a COVID-19 vaccine because of a medical contraindication and has evidence of a medical contraindication; or d. has a medical certificate or letter from a medical practitioner registered under the Health Practitioner Regulation National Law (Queensland) certifying that the person is currently taking part in a COVID-19 vaccine trial and receipt of a Therapeutic Goods Administration approved vaccine would impact the validity of the trial. Note: The medical certificate or letter from a medical practitioner about the clinical trial will only be valid for a period of time. Note: Proof of receiving the prescribed number of doses of a COVID-19 vaccine includes a COVID-19 digital certificate, an immunisation history statement (printed or digital) or an international COVID-19 vaccination certificate. (Original emphasis.)

Northern Territory 87 The applicants impugn a declaration and direction made under the Public and Environmental Health Act 2011 (NT) (NT P&E Health Act), being: (a) a public health emergency declared pursuant to s 48 of the NT P&E Health Act on 18 March 2020 and subsequently extended pursuant to s 50 of that Act; and (b) the COVID-19 Directions (No 55) 2021: Directions for Mandatory Vaccination for Workers to Attend the Workplace, which took effect at 12.00 pm on 13 October 2021. 88 Section 48 of the NT P&E Health Act provides: 48 Declaration of public health emergency The Minister may, in writing, declare a public health emergency if the Minister is satisfied: (a) circumstances of such seriousness and urgency exist that are, or threaten to cause, an immediate serious public health risk; and (b) after consulting the chairperson, as defined in section 8 of the Emergency Management Act 2013, of the Territory Emergency Management Council: (i) a state of disaster or state of emergency has not been declared under the Emergency Management Act 2013 because of the circumstances; and (ii) it is not appropriate to declare a state of disaster or state of emergency under that Act. 89 Section 52 of the NT P&E Health Act, pursuant to which the Directions for Mandatory Vaccination were given, provides: 52 CHO's emergency powers (1) If an emergency declaration is in force, the CHO [Chief Health Officer] may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration. (2) The actions the CHO may take include any of the following: (a) reducing, removing or destroying the public health risk causing or threatening to cause the emergency; (b) issuing warnings in relation to the emergency; (c) segregating or isolating persons in an area or at a particular place; (d) evacuating persons from an area or a particular place; (e) preventing persons accessing or entering into an area or a particular place; (f) controlling the movement of vehicles within an area. (3) The directions the CHO may give include directions requiring any of the following: (a) a person to undergo a medical examination of a general nature, or of a stated kind, immediately or within the period stated; (b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period; (c) a stated thing to be seized or destroyed; (d) a stated person to provide oral or written information relating to the emergency. 90 The Directions for Mandatory Vaccination were issued on 13 October 2021. The directions included the following provisions: 4 These Directions apply to the following workers: (a) a worker who, during the course of work, is likely to come into contact with a vulnerable person; (b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection; (c) a worker whose workplace poses a high risk of infection with COVID-19; (d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory, Note for direction 4(a) To determine whether a person is a vulnerable person, a worker can ask the person directly or assume they are vulnerable if the worker is unsure. If a person does not disclose their vaccination status lo a worker, the worker should assume the person is vulnerable. … 6 For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace. 7 On and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the worker's workplace. Note for direction 7 It is expected that a third dose will be required for these workers in 2022. These Directions will be amended to add that requirement when the medical advice is more definite. 8 Despite directions 6 to 7, a worker may attend the worker's workplace without being vaccinated with an approved COVID-19 vaccine if the worker has evidence of a contraindication to all approved COVID-19 vaccines. (Original emphasis.) 91 Other provisions of the directions included a provision specifying who is considered to be "vulnerable" for the purposes of Direction 4, a provision specifying what evidence of contraindication is required, and a provision clarifying that reasonable adjustments may be made to the conduct of a business or undertaking in order to accommodate unvaccinated workers.

STRIKE OUT AND SUMMARY DISMISSAL 92 In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 at [7]-[18], Kenny J set out the applicable principles for both strike out applications under r 16.21 of the Federal Court Rules 2011 (Cth) and summary dismissal under s 31A of the FCA Act, including the distinction in the approach in principle to a strike out of the way a claim is pleaded, and summary dismissal. I have agreed with and adopted this approach in previous decisions: see Melville at [20] and Plaintiff M83A/2019 at [46]. 93 See also Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 at [4], where Flick J said: Unlike an application that pleadings be struck out, where it is the adequacy of the pleadings which is in issue, an application pursuant to s 31A not only permits - but requires - a consideration of matters outside the pleadings: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [3] to [8], (2008) 252 ALR 41 at 43 to 44 per Finkelstein J. See also: Oliver v Commonwealth Bank of Australia (No 1) [2011] FCA 1440 at [23] per Perram J; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [8] per Pagone J. 94 Nevertheless, the two inquiries are not entirely separate, as NSW submitted. In White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47], Lindgren J said: A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts. (Emphasis added.) 95 In Plaintiff M83A/2019 at [50] I described the appropriate threshold in a strike out as follows: Whatever these cases might say about less stringent approaches and "modern" case management, these authorities nevertheless emphasise that pleadings must still fulfil the "basic functions" of identifying the issues between the parties, disclosing an arguable cause of action or defence (as the case may be), and ensuring parties are apprised of the case to be met: see Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [7], extracted in Gilmour J's reasons in Oswal at [8]. Macaulay J acknowledged those basic functions in Andrianakis at [38]. Weinberg J also referred to these basic functions in McKellar at [22], quoting a decision of Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; [1997] ATPR 41-591 at 44,151-44,153. The passages from the reasons of Mason CJ and Gaudron J in Banque Commerciale SA (en liqn) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286-287 make these functions clear. 96 On these applications, the respondents' submissions largely overlapped on the issues of strike out and summary dismissal. There was no concession that the alleged flaws in the applicants' pleadings could be cured by amendment. Nor did the applicants seek any such opportunity. Therefore, in considering the IAs, I have focused on the summary dismissal application. At the end of these reasons, I also give consideration to whether the applicants should be granted leave to re-plead, but I conclude the problem in the applicants' case concerns their proposed causes of action, rather than the way those causes of action are expressed.

THE CATEGORIES OF PLEADED ALLEGATIONS AND THE RESPONDENTS' CHALLENGES 97 Helpfully, the parties agreed on the issues which need to be addressed in considering the summary dismissal and strike out applications. Also helpfully, the government parties adopted the submissions and positions of each other where appropriate, so as to limit the amount of submissions that needed to be made, and to avoid repetition. Therefore, I generally refer to the submissions of the government party which put the principal argument on an issue, and refer only to the submissions of another government party if necessary. 98 I note that in the applicants' reply submissions there are some contentions which are based on un-pleaded challenges, such as the reference at [26] of the reply submissions to the "Constitutional Writ Case based on Impairment of the Freedom of Political Communication", and the reference at [28] in the reply submissions to the exceeding of law-making officials power with regard to State human rights legislation, such as the Human Rights Act 2019 (Qld). There is no pleaded challenge to the impugned Measures based on the implied freedom of political communication, nor one based on Queensland's Human Rights Act. They therefore need not be further addressed.

Section 51(xxiiiA) of the Constitution (ASOC [9], [10(iii)], [11(ia), (iv)], [21(iii)], [22], [23], [35(i)]) 99 The applicants contend the Measures and/or National Plan are invalid because either or both infringe upon what they contend is the prohibition in s 51(xxiiiA) of the Constitution against any form of civil conscription. 100 The applicants pleaded that: (a) the actions and decisions of the National Plan and/or the National Cabinet with respect to mandatory vaccination measures comprise joint action or a joint scheme between the Commonwealth and the States; (b) it is a purpose or effect of the National Plan to circumvent the application of s 51(xxiiiA) of the Constitution; and (c) the Measures and National Plan amount to 'civil conscription' because they coerce or practically compel civilians to participate in the National Plan through "their submission to being "injected" with a Commonwealth authorised COVID-19 vaccine on an ongoing basis". 101 Counsel for the applicants submitted there was no reason to construe s 51(xxiiiA) as limited to protection for doctors and health professionals rather than also as protection for patients. He submitted that s 51(xxxiiiA) has been construed as a constitutional guarantee (referring to Kirby J in Wong v Commonwealth [2009] HCA 3; 236 CLR 573 at 128). The provision was, counsel submitted, a dual protection for patients and doctors, and should therefore be given a liberal construction (referring, amongst other authorities, to Minister of State for the Army v Dalziel [1944] HCA 4; 68 CLR 261 at 276, Latham CJ). Counsel also submitted that the Court in Kassam NSWSC was wrong to dismiss this argument on the basis at s 51(xxiiiA) does not affect the receipt of services, only the provision of services. Counsel submitted that in Kassam NSWSC, the Court did not deal with the principal way this argument was put - namely, that there was a plan to circumvent the constitutional guarantee in s 51(xxiiiA). Counsel pointed to the table of "triable issues" provided on behalf of the applicants to the Court, and referred to the following proposition from that document: Whether the Commonwealth provided relevant medical services, in that it has procured vaccines for the purpose of the pandemic response at its cost, provided and paid for the logistics of delivering those vaccines to the States and individual medical service providers, procured and paid health professionals at every level to immunise the population including the Applicants, and monitored, funded and supervised the States and Territories and implemented them through the joint action? 102 Picking up on the cautions expressed in Spencer, counsel submitted it was not fanciful that the law could develop in this way. I understood him to submit that the circumstances of the world-wide COVID-19 pandemic were so significant, and involved such intrusions into the lives of members of the community by way of restrictions, that the obiter remarks by Kirby J in Wong may represent the way the law should be developed. 103 Counsel submitted the compulsion aspect of these arguments (which engaged what he described as the prohibition on conscription in s 51(xxiiiA)) was very much a factual matter, and a matter for trial, relying on what was said by Latham CJ in British Medical Association v Commonwealth [1949] HCA 44; 79 CLR 201 at 253: There could, in my opinion, be no more effective means of compulsion than is to be found in a legal provision that unless a person acts in a particular way he shall not be allowed to earn his living in the way, and possibly in the only way, in which he is qualified to earn a living. 104 This was, counsel submitted, what had happened to Ms Knowles, Ms Nichols and Ms Lehmann. 105 The respondents make five primary submissions about this aspects of the applicants' claim: (a) although neither the Measures nor the National Plan may stipulate certain consequences if a person is not vaccinated, neither require a person to be vaccinated or require a medical practitioner to vaccinate a person. They rely on similar findings in Kassam NSWCA at [38] and Kassam NSWSC at [272]; (b) section 51(xxiiiA) can have no application to invalidate State and Territory laws, as it is a conferral of legislative power on the Commonwealth subject to the qualification stated in it. The respondents contend it is settled law that the opening words of s 51(xxiiiA), refer to the provision of those benefits by the Commonwealth, not the States and Territories. Further, there is no arguable analogy with case law on s 51(xxxi); (c) the applicants' attempt to 'side step' these basic propositions by the contention that the Commonwealth "required" the States and Territory to implement the impugned Measures should be rejected. There is nothing on the face of the instruments that suggests even at an arguable level that there was a joint scheme of civil conscription, or that the States and Territories were required by the Commonwealth to mandate the provision of vaccines. Even if contrary to the respondents' submissions there is an arguable analogy with the s 51(xxxi) cases, present Full Court authority (Spencer v Commonwealth [2018] FCAFC 17; 262 FCR 344) is clear that more than "joint action" is needed; (d) that leaves the challenge to the Commonwealth measures, and the applicant's case cannot succeed in the face of High Court authority on s 51(xxiiiA), for reasons set out by the plurality in Wong. In Wong, Hayne, Crennan and Kiefel JJ at [195]-[197] endorsed the (dissenting) reasoning of Dixon J in BMA at 278, that "compulsion to serve" is inherent in the notion conveyed by the words 'civil conscription'. Relying also on the joint judgment of French CJ and Gummow J in Wong at [60], the respondents submit "[n]othing in [the Measures and National Plan] compels, legally or practically, any medical practitioner to treat any person by giving them a vaccine". The respondents acknowledge the different approach taken by Kirby J, who was also in the majority in Wong, but submit that a decision upholding a decision in line with five Justices of the High Court would not "stymie development of the law"; and (e) the same arguments were advanced and rejected as "completely untenable" in Kassam NSWSC at [286]. The respondents submit that this conclusion was upheld by the NSW Court of Appeal, in rejecting leave to appeal on the constitutional grounds on the basis they lacked sufficient merit: Kassam NSWCA at [35], [38]-[40], Bell P, Meagher and Leeming JA agreeing. They submit that this ruling applied to "the whole of" the applicants' constitutional argument. 106 A further point made by counsel for NSW relied on the separate concurring reasons of Leeming JA, who stated (Kassam NSWCA at [141(4)]): 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.

My conclusion 107 I accept the respondents' submissions. The applicants' allegations in the ASOC concerning s 51(xxiiiA) have no reasonable prospects of success and there should be judgment in favour of the respondents on those allegations. This is not a matter of the way the allegations are framed in the pleadings, so there is no point in granting leave to the applicants to re-plead this aspect. Present authority denies these allegations any prospects of success, and there is no identified probative basis in the impugned Measures which could be relied upon to allow for the possibility that the law could be developed in a way which might, on the material, give the applicants some prospects of success on these matters. 108 As I put to the applicants' counsel during argument, the applicants' contentions on this issue require two further developments of the law, before any inquiry begins as to the facts. The first is the development of what the applicants contend was said by Kirby J in Wong, about the construction of s 51(xxiiiA) as a protection for recipients of health and medical services, and not simply providers of those services. The second was that the line of cases which the applicants contend are capable of supporting their contentions about the unlawfulness of joint "schemes" between the Commonwealth and the States (and Territories) to circumvent constitutional guarantees (eg P J Magennis Pty Ltd v Commonwealth [1949] HCA 66; 80 CLR 382) can be applied outside s 51(xxxi) and to (in this case) the constitutional guarantee said to reside in s 51(xxiiiA). 109 I consider the summary dismissal application can be determined looking principally at these two issues, rather than any assessment of the strength of the applicants' factual propositions which might lie behind them. However, even if I am wrong about this, I accept the respondents' submissions that no possible probative basis for these arguments to be applied to the impugned Measures has been identified.

Section 51(xxiiiA) and Kirby and Heydon JJ in Wong 110 As a first point, I do not accept that the reasons of Kirby J should be read in the way that the applicants contend. The context of what his Honour said at [128] needs to be understood. His Honour had described the arguments of the appellants in Wong as involving the proposition that the ability to regulate practitioners who are delivering, in the opinion of the regulator, "excessive services" presents a "coercive intrusion [that] had been introduced into the lives of the healthcare professionals who provided 'medical and dental services'": at [114]. Granted, Kirby J then accepts (at [116]) that it may be appropriate to reconsider BMA and General Practitioners Society in Australia v Commonwealth [1980] HCA 30; 145 CLR 532, but his Honour goes on to find that the prohibition's protection should be construed as extending to patients, for the following reason (at [125]): Normally, in our society, the provision of "medical and dental services" occurs pursuant to a private contract entered into between the healthcare provider and the patient. The purpose of incorporating a prohibition on "civil conscription" in the provision of such services is thus to preserve such a contractual relationship between the provider and the patient, at least to the extent that each might wish their relationship to be governed by such a contract. (Citations omitted.) 111 Therefore, the "guarantee" of which Kirby J speaks in [128] relates, as I understand his Honour's reasons, to patients being able to retain their contractual entitlements to choose their health services providers and choose the services they wish to have provided. That is why at [147] Kirby J described the issue in the appeal before the Court in Wong as follows: The question in these appeals thus becomes how to define the point where the necessary, proper and inescapable intrusion into the private arrangements between the provider of "medical and dental services" and a recipient of such services passes beyond legitimate scrutiny for reasons of upholding the lawfulness and integrity of such payments and is converted, by its sheer detail and intrusiveness, into a prohibited "form of civil conscription". No easy formula is available to identify that point. 112 Thus, I do not accept that even the obiter statements by Kirby J in Wong provide any support for the applicants' contentions. 113 There is no support in the obiter statements of Heydon J, in dissent, either. While his Honour (at [252]) certainly did describe s 51(xxiiiA) as involving a "type of constitutional guarantee", Heydon J's analysis then focused on the concept of "practical compulsion" as sufficient to engage the guarantee, but the difficulty for the applicants is that his Honour's analysis of this focused on the "practical compulsion" of medical practitioners: see [254]. That was what led to his Honour's conclusion at [259]. None of that assists the applicants on their 51(xxiiiA) contentions, which focus on "practical compulsion" of patients to receive a vaccination. 114 The applicants' construction of s 51(xxiiiA) derives no support even from obiter statements in any present authority. Section 51(xxiiiA) contains no "guarantee" relevant to the vaccination of individual patients. The applicants' construction derives no support from the text of the provision, nor plausibly arises on a proper construction of it. It involves an unwarranted approach to a limit on federal legislative power which properly construed is unconnected with the impugned Measures.

Present authority on s 51(xxiiiA) 115 The respondents are correct that on present authority the limit on federal legislative power in s 51(xxiiiA) is directed at compelling medical practitioners or health services providers to carry out work or provide services: see Wong at [60], [226]. It is not arguable that any of the impugned measures have that effect. 116 For example, the National Plan contains statements such as: Implement the national vaccination plan to offer every Australian an opportunity to be vaccinated with the necessary doses of the relevant vaccine as soon as possible. 117 And: Exempt vaccinated residents from all domestic restrictions. 118 These "measures" are incapable of being characterised as coercing medical practitioners to vaccinate a person. 119 The impugned Victorian Measures, such as the Specified Facilities Directions, in cl 5(1), provide: An operator of a specified facility must take all reasonable steps to ensure that a worker who is: (a) for the period before the relevant full dose deadline, unvaccinated; or (b) for the period on and after the relevant full dose deadline , unvaccinated or partially vaccinated, does not enter, or remain on, the premises of the specified facility for the purposes of working at the specified facility. 120 While on its face this measure does require employers in Victoria covered by the provision to take certain steps, it is incapable of being characterised as coercing medical practitioners to vaccinate a person.

Applying the s 51(xxxi) cases to s 51(xxiiiA) 121 The respondents are also correct to submit there is no arguable basis for the applicants' contention that the line of authority represented by Magennis in relation to s 51(xxxi) can be adapted to apply to s 51(xxiiiA). The first reason for that is the one already given: namely, the proper construction and operation of the limit in s 51(xxiiiA). 122 The second reason is that, even if s 51(xxiiiA) could be differently construed as the applicants contend, there is no probative basis apparent on the pleadings, or in the impugned Measures themselves, to support the proposition that the Commonwealth has "required" the States and Territories to act in a way that contravenes s 51(xxiiiA), as the applicants would have it construed. That is, no fact has been pleaded, and no probative basis has been identified, alleging the Commonwealth has entered into a scheme, whether by intergovernmental agreement or otherwise, that has required the States or Territories to compel medical practitioners to vaccinate individuals: see Spencer FCAFC at [172], [210] (Griffiths and Rangiah JJ), [354] (Perry J). It is the feature of a requirement imposed by the Commonwealth (for example, as a condition of the grant of financial assistance) that was emphasised by the Full Court in Spencer FCAFC, where that requirement would have the effect of circumventing or contradicting the just terms guarantee in s 51(xxxi). The notion that a "joint plan" was enough has been expressly rejected: see Spencer FCAFC at [210]. In ASOC [21]-[24], no material facts are pleaded, there is simply a bare assertion. Nor did the applicants' counsel point to anything on the face of the impugned measures which could conceivably support the allegation. As the extracts above indicate, on their face the Measures have no such effect. 123 This is the conclusion reached in Kassam NSWSC at [282]-[284], upheld in Kassam NSWCA. For completeness, I also accept the submissions made on behalf of NSW and by reference to the reasons of Leeming J in Kassam NSWCA, with which I respectfully agree. 124 While at this stage the applicants are not required to persuade the Court they can prove their case on the balance of probabilities, in a likely complex and resource intensive case such as this, the Court must be able to identify the material facts pleaded to support the allegation, or some probative basis in the primary material (here, the impugned Measures) for the contentions. Counsel for the applicants did not even attempt to point the Court towards one. 125 Of course the impugned instruments, and the decisions at National Cabinet, demonstrate some level of coordination, and an attempt to implement a co-ordinated national approach to the pandemic. That is to be expected in a government reaction to such a crisis, especially in a federation. It can be accepted that some of the measures are designed to incentivise vaccination, as counsel for the Commonwealth submitted. The "incentives" could well be described as both "carrots" (ability to travel, enter venues for entertainment and dining) and "sticks" (inability to attend workplaces and perform work, with the real prospect of loss of employment). Those features are relevant to other aspects of the applicants' claims in this proceeding. However they do not support, at any arguable level, contentions framed by reference to the limit on federal legislative power in s 51(xxiiiA).

Alleged contravention of s 92 of the Constitution (ASOC [55]) 126 The applicants contend that the impugned Measures have had the purpose or effect of limiting and interfering with the trade and commerce across and within the States and Territories, in contravention of s 92 of the Constitution. 127 They contend: (a) the Measures were unnecessary, invalid, an improper use of power, unauthorised according to law, or not empowered by the relevant statute; (b) the effect of the Measures on trade between the States and Territories was "to bring it to its knees, and to wreak economic and financial devastation across the whole of the country"; and (c) this is despite the alleged facts that COVID-19: (i) "served the broad public benefit of eliminating Australia of Influenza for a period of almost 1 and a half years"; and (ii) had the effect that "the average age at which Australians who were said to have died from the Virus, well exceeded the median age of death of all other Australians". 128 The respondents submit that that section 92 is solely a limitation on legislative power, and for it to succeed, the focus must be on the statutory power which authorised or supported the impugned Measures: Palmer at [63], [67] (Kiefel CJ and Keane J), [118]-[119] (Gageler J), [201] (Gordon J), and [219]-[220] (Edelman J). They submit that once the question of the validity of the authorising provision is determined, the only remaining question is whether the executive action taken was authorised by the provision. 129 In the present proceeding, the respondents submit there are no material or relevant distinctions between the authorising statutes for the impugned Measures and the authorising Western Australian statute in Palmer. Therefore, the applicants' s 92 challenges have no reasonable prospect of success. 130 In their reply submissions, the applicants submit Palmer does not control the outcome of their s 92 allegations for two reasons. First, they say they do challenge the empowering provisions, referring to the Table at [4] of the ASOC, and to their pleadings at [55]-[58] of the ASOC. Second, they submit that they are challenging different measures in different States and in the NT, which were not considered in Palmer. 131 Counsel for Victoria also specifically referred to Cotterill, where Niall JA applied Palmer to a challenge to the stay-at-home and public gathering directions made pursuant to the powers in pt 10 div 3 of the Vic PHW Act. The Court held that Palmer could not be distinguished and the relevant provisions were valid.

My conclusions 132 I accept the respondents' submissions. As Cotterill demonstrates, the reasoning in Palmer can be applicable to similar but not identical pandemic measures in other States and Territories. The question is whether the reasoning and outcome in Palmer is applicable to the impugned Measures to the extent that it deprives the applicants' 92 challenges of any reasonable prospects of success. 133 The provisions in Palmer in issue were ss 56 and 67 of the EM Act WA. Section 56 conferred a power on the responsible Minister to make a declaration of emergency for the whole of the State, or an area or areas of the State. It provides: 56. Minister may make state of emergency declaration (1) The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State. (2) The Minister must not make a declaration under this section unless the Minister - (a) has considered the advice of the State Emergency Coordinator; and (b) is satisfied that an emergency has occurred, is occurring or is imminent; and (c) is satisfied that extraordinary measures are required to prevent or minimise - (i) loss of life, prejudice to the safety, or harm to the health, of persons or animals; or (ii) destruction of, or damage to, property; or (iii) destruction of, or damage to, any part of the environment. (3) A declaration under this section is to include - (a) the time when, and date on which, the declaration is made; and (b) the area of the State to which it applies. (4) The making of a state of emergency declaration does not prevent the making of further state of emergency declarations in relation to the same or a different emergency. 134 Once a declaration is in effect, other provisions in the EM Act WA authorised the imposition of directions and restrictions. Section 67 was held by the Court to be the provision "most clearly directed to the border restrictions" under challenge. It relevantly provided: For the purpose of emergency management during an emergency situation or state of emergency, a[n] … authorised officer may do all or any of the following - (a) direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around an emergency area or any part of the emergency area. 135 As the Chief Justice and Keane J explained at [7], the effect of the impugned Directions made under s 67 was: to close the border of Western Australia to all persons from any place unless they were the subject of exemption under the Directions. 136 Putting to one side the exercise of s 61 executive power, and subject to statutory conferrals of particularly wide powers (as to which see the observations of Niall JA in Cotterill at [197]) Palmer makes it clear that action pursuant to statutory power is not reviewed directly for its compliance with s 92. The question is whether the empowering statute exceeds the limits on legislative power imposed by s 92, by authorising exercises of power incompatible with s 92. By what measure or standard that incompatibility is to be assessed was a matter on which the members of the Court in Palmer expressed a variety of views. It is not necessary to address that debate. No justice found s 56 of the EM Act WA imposed any relevant burden for the purposes of s 92 by itself. However, the Court found that although s 67 of the EM Act WA imposed a burden on interstate intercourse because of the movement restrictions, or alternatively a burden on trade and commerce for the same reason, the burden was justified in the circumstances of the pandemic, taking into account the constraints on the exercises of the powers imposed by the statutory provisions. It is unnecessary for present purposes to set out the differing reasoning by which that conclusion was reached. 137 Palmer involved a direct challenge to the restrictions on movement into and out of Western Australia as a result of the Directions. The applicants in the present proceeding do not make any challenge to the border closures implemented by any of the respondents. Rather, their focus is on the vaccination measures. Nevertheless, the structure of the empowering provisions impugned in this proceeding is relevantly the same; a power to declare an emergency situation or to identify a situation posing a risk to public health, and a directions-making power, each conditioned in similar ways to the empowering provisions in Palmer. 138 And, as in Palmer, as the respondents contend, it is clear on the present material that the purpose for the exercise of the powers is the protection of public health. The purpose is not to impose discriminatory or protectionist burdens on interstate trade or commerce, or interstate intercourse. 139 I accept the Commonwealth's submissions that the applicants did not identify or develop any submissions concerning any material differences between the impugned Measures in this proceeding and those in Palmer. The only differences to which the applicants point (see reply submissions at [23]-[25]) are : First, Palmer was pleaded on the basis that the impugned provisions were the directions by made by the WA Health Minister restricting access to and from WA, whereas the High Court made it clear that s 92 operated upon the empowering provision of the WA law which authorised those directions, not the directions themselves. In the present case this objection is overcome by Ms Rusiti's schedule to paragraph 4 of the ASOC which specifically includes the empowering provisions as impugned measures and the pleading in paragraphs 56 to 58 of ASOC which make clear it those empowering provisions which are challenged in the action. In Palmer Edelman J however observed with respect to an s 92 challenge and this point at [224]: 'There are two premises underlying the answer given by this Court. The first, as the State of Victoria correctly submitted, is that questions of constitutional validity should be determined at the level of an empowering statute [refer Wotton v Queensland (2012) 246 CLR 1 at 14 [22] leaving questions concerning the validity of actions taken under the statute, including regulations, directions and administrative action, to be resolved by reference to whether the valid statute empowers that action.' Also see Gageler J at [109]. Second, Palmer is distinguishable because here different measures in other States and Territories are challenged. Whilst it is true the WA measures are also challenged the challenge is on a different and broader foundation to that in Palmer including that referred to in the first point but also on the ground of legal unreasonableness which Edelman J dealt with without resolving in Palmer at [286]. Also see Gageler J at [149]. (Original emphasis.) 140 The first point simply means the pleadings have attempted to replicate the proper basis for the challenge as enunciated in Palmer. That may be so, but the challenge in Palmer failed when assessed on that basis. The second point refers to a passage which emphasises the correct approach but then points to a second stage of analysis concerning whether the action taken (or the various Directions and subordinate instruments as made) falls within the authorising provision if held to be valid. The applicants do impugn the Measures on this basis, but as the reasoning in Palmer demonstrates, this is not a constitutional question. That is apparent from the stated case and the answers to it. 141 The stated case was: Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution? 142 The answers given by the Court were: On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution in each of its limbs. The exercise of the power given by those provisions to make paras 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question. No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions so that no other question remains for determination by a court. (Emphasis added.) 143 This distinction, fine as it might sometimes be, was explained by Niall JA in Cotterrill at [199]: The point being, that at the level of the exercise of power, you do not get to, or more accurately have already passed, the constitutional question because, on its proper construction, a decision that conformed to the statutory power could not be obnoxious to the implied freedom. Of course, the factors that keep a decision within power, including adherence to purpose, proportionality and reasonableness, may not be far removed from those that inform the anterior constitutional question of legislative validity but they remain conceptually distinct. (Footnotes omitted.) 144 I respectfully agree. 145 Therefore, the applicants' second point advances their constitutional contentions no further. 146 Nor does the third point. It is true that the impugned Measures in this proceeding are not confined to Western Australian provisions; all of the empowering provisions that are impugned are of a relevantly similar kind to those considered in Palmer. If there are any material differences, the applicants developed no submissions at all to identify them, nor to explain why those differences meant their s 92 case retained reasonable prospects of success in the face of the decision in Palmer. 147 Finally, the legal unreasonableness challenge made by the applicants can be considered separately. It adds nothing to the applicants' contentions about s 92. 148 In my opinion, the applicants' allegations in the ASOC concerning s 92 have no reasonable prospects of success and there should be judgment in favour of the respondents on those allegations. Like the s 51(xxiiiA) allegations, this is not a matter of the way the allegations are framed in the pleadings, so there is no basis to grant leave to the applicants to re-plead this aspect.

Whether the establishment and operation of the National Cabinet, and the making of the National Plan, are beyond the executive power of the Commonwealth under Chapter II of the Constitution (ASOC paras [10A]-[11]) 149 The applicants contend that the National Cabinet, as an entity I infer, and the making of the National Plan by National Cabinet, are "invalid as an exercise of executive power", and that they are: not authorised by law, or comprise an unlawful exercise of executive power of the Commonwealth and of State executive power contrary to Constitution Part II. 150 I infer that the applicants' reference to "Constitution Part II" denotes Chapter II of the Constitution. Chapter II includes s 61, which is headed "Executive power" and provides: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. 151 Counsel for the applicants did not develop any argument on this allegation much beyond its assertion. I accept the submission of counsel for the Commonwealth about how this allegation should be described: taking the applicants' case at its highest, their argument seems to be that the Commonwealth executive lacked the power to discuss with the States and Territories the best way to manage COVID-19 and lacked the power to agree with them as to what each polity ought to do. 152 At [15] of their reply submission, the applicants contend that: In this case the Respondents have done that [ie circumvent s 51(xxiiiA)] through the unconstitutional National Cabinet. White J held in Patrick v Morrison [2021] AATA 2719 that the National Cabinet is unauthorised and unconstitutional. 153 The latter submission is incorrect. White J's finding in Patrick was that the exemption in s 34(1)(b) of the Freedom of Information Act 1982 (Cth) in relation to Cabinet documents did not cover documents created by National Cabinet, because it was not a "committee of Cabinet": see [210]. The issue before the AAT, constituted by White J, was whether the documents sought by the applicant before the Tribunal were covered by the Cabinet documents exemption because National Cabinet was a "committee of Cabinet". In reaching that conclusion that National Cabinet was not such a committee, his Honour made findings such as the one at [192] that "the principles of collective responsibility and Cabinet solidarity were not applied in practice, at least to the full extent which those terms convey in relation to the operations of Cabinets". His Honour also made findings such as that at [107]: In my view, it may be accepted that the Prime Minister of the day does have a discretion in the establishment of Cabinet committees, including as to their composition, number, terms of reference, relationship with the Cabinet and so on. It should also be accepted that the Parliament intended the term "committee of the Cabinet" should accommodate that flexibility. However, as indicated, the evidence does not provide a single example of a cabinet committee whose membership comprised persons who were not Ministers in the Government of the day, let alone not members of the Australian Parliament. More pertinently to the present case, it does not provide evidence of a single instance of a committee of the Cabinet comprised substantially of persons who are not even members of the Australian Parliament. The characterisation of such a committee as a committee of the Cabinet would be inconsistent with entrenched conventions of responsible government, including that the Cabinet is comprised of Ministers who are responsible and answerable to the Parliament. Counsel for the applicant referred to these conventions as "120 years of practice". It is reasonable to infer that the FOI Act reflects these understandings. 154 None of these findings remotely suggest his Honour has found National Cabinet to be "unconstitutional" or "unauthorised". I reject the applicants' reliance on the decision in Patrick as in any way enhancing their prospects of success in their challenge to the National Plan. 155 The respondents made detailed submissions on this aspect of the applicants' case, even though it was barely developed by the applicants in written or oral argument. In their pleadings, at [10]-[11] of the ASOC, there is a bare assertion of a lack of constitutional foundation for, and lack of executive power to create, National Cabinet. The pleading then returns to the arguments about s 51(xxiiiA). I have made findings above about those arguments. Otherwise, [11] of the ASOC raises some judicial review grounds, which I address below. 156 In other words, aside from the bare assertion concerning National Cabinet being "unconstitutional", the applicants' contentions (including their pleadings) do not go beyond a bare assertion of a lack of power to establish a body of the kind which was called "National Cabinet". 157 The respondents' submissions contend a body of this kind can be established in an exercise of executive power. They rely on the opinion of Mason J in R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; 158 CLR 535 at 560 (cited with approval in R v Hughes [2000] HCA 22; 202 CLR 535 at [38], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ): extends to entry into governmental agreements between Commonwealth and [the] State[s] on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution. 158 The respondents also point to the power to grant financial assistance to any state on such terms and conditions as the Commonwealth Parliament thinks fit (Constitution, s 96). 159 The respondents submit that if, in respect of both the establishment of National Cabinet and the making of the National Plan, in particular in relation to the expenditure of funds on these matters, Commonwealth executive power must be exercised within the scope of its legislative power, such a requirement is met because the establishment of National Cabinet, and the measures contemplated by the National Plan are supported by: (a) the so-called nationhood power (see Victoria v Commonwealth [1975] HCA 52; 134 CLR 338 at 397 (Mason J); Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 at [8], [95], [133] (French CJ), [241]-[242] (Gummow, Crennan and Bell JJ); Williams v Commonwealth [2012] HCA 23; 248 CLR 156 at [146] (Gummow and Bell JJ), [194], [196], [240] (Hayne J), [499] (Crennan J), [559] (Kiefel J)); (b) the corporations power (Constitution, s 51(xx)); (c) the territories power (Constitution, s 122), insofar as the National Cabinet and the National Plan was with and included the Territories; (d) the external affairs power (Constitution, s 51(xxix)), insofar as the agreements concerned entry into Australia and the creation of travel arrangements with other countries; and (e) the quarantine power (Constitution, s 51(ix)), insofar as the National Cabinet and National Plan explicitly dealt with quarantine arrangements.

My conclusions 160 As the State respondents and the NT submitted, this aspect of the applicants' allegations only engages the federal Measures, not the State and Territory ones. Insofar as the applicants allege both National Cabinet was established without power, they have advanced no argument, and certainly no authority, to support this proposition, aside from misplaced reliance on White J's decision in Patrick. Insofar as the applicants allege that the National Plan is similarly flawed for a lack of executive power to enact it, they have advanced no submissions about the proper characterisation of that Plan, and no authority supporting their contentions it is invalid for lack of constitutional authority. 161 It is neither necessary nor appropriate for the Court to joust at shadows in this aspect of the applicants' case. Their case is nothing more than assertion and, on that basis alone, it has no reasonable prospects of success. The respondents' submissions, which I accept, set out an ample basis, in terms of power, for the impugned provisions.

Whether the Measures are inconsistent with the FW Act and therefore inoperative by reason of s 109 of the Constitution (ASOC [18]) 162 The applicants contend that the impugned Measures are inconsistent with the FW Act, and therefore inoperative by reason of s 109 of the Constitution to the extent of such inconsistency. 163 The particulars to ASOC [18] contend the Measures: (a) require employers to exercise discriminatory workplace practices in respect of the hiring and retention of workers; (b) introduce a circumstance of coercion and undue influence or of pressure in the workplace, relating to the subjecting of workers to loss of employment and "economic devastation"; (c) fail to have regard to actual risk and fail the tests of proportionality, necessity and reasonableness which are imposed by the provisions of the FW Act; (d) create a hazard to workplace safety where an employee who receives a COVID-19 vaccination has a pre-existing condition which, "if they suffer circumstances of aggravation at work, may submit other members of the work place (or the public) to greater danger"; (e) may increase the risk of harm to workers with pre-existing conditions who receive a COVID-19 vaccination; and (f) reduce the immunity of workers who may have previously contracted the virus but are then required to subsequently take the vaccine. 164 No provisions of the FW Act were identified in either the ASOC or in the applicants' written submissions in chief or in reply. The Commonwealth's submissions primarily addressed this aspect of the applicants' case and were adopted by other respondents. Its submissions attempted to do that work for the applicants, by reference to the particulars I have set out above. The Commonwealth having done that work, counsel for the applicants adopted this framework on behalf of the applicants in oral submissions. He submitted that the provisions upon which the applicants relied for their s 109 inconsistency contention were ss 341, 343, 344 and 351 of the FW Act. Those sections provide: 341 Meaning of workplace right Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: (a) a conference conducted or hearing held by the FWC; (b) court proceedings under a workplace law or workplace instrument; (c) protected industrial action; (d) a protected action ballot; (e) making, varying or terminating an enterprise agreement; (f) appointing, or terminating the appointment of, a bargaining representative; (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement; (h) agreeing to cash out paid annual leave or paid personal/carer's leave; (i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements); (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument; (k) any other process or proceedings under a workplace law or workplace instrument. Prospective employees taken to have workplace rights (3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer. Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement. Exceptions relating to prospective employees (4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings. (5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business). … 343 Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply to protected industrial action. 344 Undue influence or pressure An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: (a) make, or not make, an agreement or arrangement under the National Employment Standards; or (b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or (c) agree to, or terminate, an individual flexibility arrangement; or (d) accept a guarantee of annual earnings; or (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)). … 351 Discrimination (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4-1). (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; or (c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - taken: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) Each of the following is an anti-discrimination law: (aa) the Age Discrimination Act 2004; (ab) the Disability Discrimination Act 1992; (ac) the Racial Discrimination Act 1975; (ad) the Sex Discrimination Act 1984; (a) the Anti-Discrimination Act 1977 of New South Wales; (b) the Equal Opportunity Act 2010 of Victoria; (c) the Anti-Discrimination Act 1991 of Queensland; (d) the Equal Opportunity Act 1984 of Western Australia; (e) the Equal Opportunity Act 1984 of South Australia; (f) the Anti-Discrimination Act 1998 of Tasmania; (g) the Discrimination Act 1991 of the Australian Capital Territory; (h) the Anti-Discrimination Act of the Northern Territory. (Original emphasis.) 165 In its written submissions, the Commonwealth also interpreted the applicants' particulars as invoking the unfair dismissal regime in Part 3-2 of the FW Act, and the protections from unfair dismissal afforded to workers. Sections 385 and 386 of the FW Act provide: 385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388. 386 Meaning of dismissed (1) A person has been dismissed if: (a) the person's employment with his or her employer has been terminated on the employer's initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: (i) to whom a training arrangement applied; and (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part. (Original emphasis.) 166 Section 387 prescribes some considerations in the determination of whether a dismissal was harsh, unjust or unreasonable. It is not necessary to set them out as the applicants' pleadings and arguments do not descend into any detail about what they rely upon. 167 Counsel for the applicants referred to one authority: the decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059; 310 IR 399 at [249]-[255]. Counsel did not develop any submissions about whether the FW Act provisions set out above covered the field for the purposes of s 109 inconsistency (see generally Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; 266 CLR 428), or how the impugned Measures "alter, impair or detract" from the operation of the FW Act in a way that "undermines" it (see generally Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; 244 CLR 508). 168 The respondents submit the Measures neither require any relevant discriminatory workplace practices nor introduce a circumstance of unlawful coercion or undue influence or pressure in the workplace. They also submit there is no inconsistency with the unfair dismissal regime. 169 The Commonwealth apprehended there was a contention by the applicants that the impugned Measures require employers to discriminate against those workers who are not vaccinated. If that is the applicants' case in respect of the FW Act, the respondents submit that: (a) relying on Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236; 255 IR 284 at [77] and RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 at [112], the respondents submit s 351 is not a generalised anti-discrimination provision, but rather operates as a protection against "adverse action" (as defined in the FW Act) taken because of certain attributes; (b) an employer will not take adverse action in relation to a listed 'attribute' if they have acted to comply with a Measure. Rather, the employer has taken action because of the Measure; and (c) not being vaccinated against COVID-19 is not a physical or mental disability within the meaning of s 351 of the FW Act. 170 On the apparent allegation of coercion and undue influence or pressure introduced by the impugned Measures, the respondents submit that the Measures are not inconsistent with either s 343 or s 344 of the FW Act. 171 In relation to s 343, the respondents submit that acting in compliance with a Measure does not constitute acting "with intent to coerce", referring to QNurses First Inc v Monash Health [2021] FCA 1372 at [37], [42]). Nor have the applicants identified any relevant "workplace right" (as defined in s 341, which is extracted above) that is engaged by an employer's compliance with a Measure so as to fall within s 343 - for example, by not permitting an unvaccinated worker to enter the workplace. 172 In relation to s 344, the respondents again point to the absence of any material facts suggesting a causal link between any employer's compliance with an impugned Measure and the exertion of "undue influence or undue pressure" on an employee by that employer. Even if there were "undue pressure", one might speculate, to get vaccinated, on the general gist of the applicants' case the decision whether or not to have a COVID-19 vaccine is not a decision that falls within any of s 344(a)-(e).

My conclusions 173 It would be sufficient for a court considering a summary dismissal application to stop at this point, because once again the pleaded allegations do not rise above bare assertion, with no material facts and no particularised legal argument set out, nor even advanced in submissions. The respondents are not required to make the applicants' case for them, and then set about rebutting it. While they may bear the onus of proving that s 31A is satisfied, discharge of that onus does not entail developing the applicants' case to an arguable level and then dismantling it. If no arguable case at all appears on the pleadings, considered with the submissions made, then the Court can be comfortably satisfied this aspect of the proceeding has no reasonable prospects of success. 174 Nevertheless, given the detail developed on behalf of the Commonwealth in particular, it is appropriate to explain why, even if there had been some articulation and development by the applicants of how their case is put, I am satisfied it has no reasonable prospects of success. 175 I accept the respondents' submissions about the absence of any inconsistency between the Measures and the terms of s 351 and associated provisions in the FW Act. None of the Measures require an employer to treat a worker in a way prohibited by the FW Act. Neither the applicants' pleaded case, nor their submissions, establish how the Measures undermine the FW Act's general protections regime. The general protections regime is based on the taking of "adverse action", as defined in s 342, because of or on the basis of one of the protected attributes in s 351. The applicants have not identified which attribute listed in s 351 they rely upon, and which of the applicants possessed that attribute. They have not identified the conduct taken said to be adverse action. They have not identified how the impugned Measures remove whatever protection might otherwise exist for that conduct. 176 For completeness, there is no suggestion in the ASOC or in the applicants' submissions that they seek to repeat the "disability" line of argument put to the NSW Supreme Court in Kassam NSWSC, and reflected in [200]-[206] of Beech-Jones CJ in CL's reasons for judgment. Certainly not in terms of alleging some constitutional flaw in the impugned Measures by reference to the FW Act and s 109 of the Constitution. 177 As to any alleged inconsistency between the impugned Measures and s 344 of the FW Act, once again there was no development at all by the applicants of how it was that any or all of the impugned Measures undermined the operation of s 351. The applicants did not suggest that inconsistency could be established by the 'cover the field' analysis. 178 In Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; 263 CLR 551 at [61], the majority of the High Court endorsed the description given by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 at [26] in relation to a predecessor to s 343 of the FW Act, namely s 170NC of the Workplace Relations Act 1996 (Cth). The majority in Esso held that it was: sufficient to establish an intent to coerce to demonstrate that the person organising, taking or threatening the action intended it to negate the other person's choice and that the person organising, taking or threatening the action had actual knowledge of circumstances that made his or her conduct coercive. 179 There are no material facts pleaded about the workplace right the applicants, or some of them, are alleged to have had which was the subject of coercive conduct. Even assuming (from the general context of the ASOC) that the "coercion" is alleged to be a coercion to have a COVID-19 vaccination in order to attend a workplace, s 343 does not purport to cover the field of coercive behaviour. It only concerns coercive behaviour with an intention to "negate" the choice of an employee to exercise, or not exercise, a workplace right, as defined in s 341. None of the impugned Measures undermine the operation of s 342 in protecting employees' workplace rights, as defined. 180 Section 344 only operates on conduct by employers. It has a limited reach, only in respect of the five circumstances set out in s 344(a)-(e). Even on the assumption that the applicants' general case concerns employees being "compelled" to receive a COVID-19 vaccination, and even if all or some of the impugned Measures are otherwise capable of being impugned on the basis of s 109 of the Constitution (as "laws"), no conceivable inconsistency arises. Section 344 does not purport to cover the field of "undue pressure". It does not purport to cover the field of regulating conduct of employers. Insofar as the impugned Measures required employers only to permit vaccinated employees to enter workplaces and perform work in their workplaces, such a measure does not undermine in any sense the protections afforded to employees under s 344. The two sets of provisions are like ships in the night.

Whether the Measures (or any of them) were (and are) invalid on the ground that they were legally unreasonable (ASOC [36]) 181 This contention focuses not on the authorising provisions but on the various directions given under those provisions. 182 The applicants have at least two pleadings that clearly raise the judicial review ground of legal unreasonableness. The first is at ASOC [14], in respect of the 2020 Biosecurity Declaration: 14. At the time at which the Governor General and upon the purported satisfaction of the Minister declared in error or in circumstances that were legally unreasonable that the necessary human biosecurity emergency existed: (i). Antiviral treatments including but not limited to both Hydroxychloroquine and Ivermectin were available in Australia as a treatment against the virus; (ii). (a). Hydroxychloroquine had been on a preferred list of medications for the treatment of the SARS outbreak in 2003 and was known as an available treatment for infectious diseases; (ii). (b) the effect of the virus upon human health and mortality was being and has been overstated, most particularly by the mass media and across the world's news services; (iii). there was no immediate threat to human health on a nationally significant scale; (iv). the wording of the declaration itself was to the effect that the human virus had pandemic "potential", meaning and by consequence of the natural construction of the words used, that the circumstances of a severe and immediate threat to human health did not exist at the time; (v). and accordingly there was no basis for the Governor General to have made the declaration at all, in that the conditions precedent as to its making did not exist. and the declaration itself was of no legal consequence or effect. Particulars (a). the persons most at risk from the virus, (and without meaning to minimise their importance or suffering in any way), were people suffering with comorbidities and the elderly; (b). the median age of claimed death of male persons in Australia is 78.9 years, and for females is 84.6 years; (c). the median age of claimed death of members of the Australian population from the virus is 86 years of age, amongst the population of people whom to date are said to have passed away from it; (d). nowhere among any population group or country in the world has the average age of death of that population declined by consequence of the virus and its impact upon that population; (e). there is an infection survival rate of approximately 99.5% amongst people who contract the virus, and are under 70 years of age; (f). the number of claimed deaths of persons across Australia in total, and who are said to have died from the virus from the 1 March 2020 to the 8 October 2021, (20 months), is 1,389, whereas in Australia there were 1,255 deaths due to influenza[ ]in 2017; and, the number of deaths from adverse effects according to official records exceed those from the virus; (g). to the extent that, (and according to data produced by the Australian Bureau of Statistics), the last death in Australia that was attributed to Influenza was in July 2020, it arises that: (i). large numbers of the deaths of people across Australia and that were said to have been attributable to the virus, were or are in fact attributable to influenza; or, (ii). the presence of the virus across the Australian community was serving either to eradicate, to remove, or to cure the incidence of influenza right across Australia; or, (iii). the spread of the virus throughout the community was saving people from dying from Influenza, such that the "severe and immediate" threat to human health that Influenza normally poses across Australia had been completely eradicated by the virus, and from which members of the Australian population had died in significantly reduced numbers. (iv). With respect to Omicron, ATAGI and other public health authorities accept that a 'double vaccination mandate' is a futile or failed public health response. (Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.) 183 The second is at ASOC [36], in respect of all the impugned Measures: 36. The Measures State Orders adversely affect fundamental human rights and are legally unreasonable as an exercise of power, and are unsupported on the basis of the evidence that was available at the time that they State Orders were made. Particulars (a). The Measures State Orders were unreasonable in that they do not and have not had the effect of making anyone safe in any part of the State or Territory in which they were made, and they have not stopped the spread of COVID-19; (b). The Measures State Orders subjected the people to whom they were directed to risk of harm and injury; (d) [sic] The Measures State Orders subjected the people of Australia to what was effectively a medical experiment, and were contrary to the principles enunciated in the Nuremberg Code 1947 and the UNESCO Universal Declaration on Bioethics and Human Rights, Article 6. (Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.) 184 In writing, the applicants did not develop these contentions at all in chief. In their reply submissions there was no more than a bare assertion. In oral argument, counsel for the applicants emphasised that the decision in Palmer did not preclude a legal unreasonableness argument having reasonable prospects of success. Counsel contended that [40] of the ASOC also contained a legal unreasonableness pleading. Paragraph [40] pleads: (a). Further, the impugned Measures Orders in each State and Territory are legally unreasonable and are invalid: (b). In the case of the NSW Orders, failure to exercise the power that is confined by the usual implication of reasonableness under the Public Health Act, (section 7), Failure to make directions that are reasonable in light of the statutory purpose of dealing with public health risks generally; (c). The Measures are discriminatory in effect and disproportionate in their reach in comparison to the risk, to the unnecessary suffering and loss that it causes. They are unduly costly, and are unreasonable in their terms, their operation and effect; (d). The NSW Order is a general emergency measure more appropriate under section 8 of the Public Health Act and fails to contain specific directions to particular persons with an identifiable risk profile, with respect to specific public health risk areas of the States and Territories; (e). The impugned Measures State Orders are disproportionate in reach compared to the alleged risk, in that they involved blanket measures, and they were draconian and capricious in their impact on many persons for whom there was or is no demonstrated health risk; (f). The directions Measures make no provision for inhabitants of an area whose health is at risk from the Measures imposed, including but not limited to pregnant women, those who work from home, those who suffer from pre-existing clotting conditions or whose existing medical conditions and that may be re enlivened or exacerbated by complying with the Measures State Orders and taking the vaccination injections; (g). The Measures directions and Orders are made pursuant to the objectives of the National Plan and as part of the National Agreement, which plan has no regard to the particular needs or risk profile of individuals and purports to require the imposition of a forced medical procedure, by way of vaccination injections; (h) To the extent that the directions and the NSW Orders are made by reference to or as part of the ushering in of a New World Order, they are beyond the scope and reach of the provisions contemplated by the Public Health Act; (i) The Measures State Orders fail to have regard to up to date international and Australian medical and scientific experts. (Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.) 185 It will be seen there is some overlap with the pleading at [14] of the ASOC. Accordingly, I accept there are three pleadings which raise the judicial review ground of legal unreasonableness. 186 In support of the applicants' legal unreasonableness allegations, counsel appeared to rely on the principle of legality, in terms of construing the various authorising provisions. He did so by reference to the NT Measures: MR KING: Now, this is expressed, importantly, in line 3 of subsection (1) [of s 52 of the NT P&E Health Act], in a general way. If an emergency declaration is in force, the CHO - the health officer - may take the actions, including giving oral or written directions, the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration. So it's a power to make oral or written directions he or she considers necessary, appropriate or desirable for a certain purpose. Those words are broad, they're indeterminate, in a sense, and they - but they are covered by express authority as to their denotation and effect. But more particularly, what we submit in brief is this - that in the general, words such as that do not authorise any infraction, any incursion upon any fundamental human or legal right such as the right to bodily integrity as protected by Marion's Case in relation to personal bodily integrity in relation to medical treatments, as stated. That's the principle of legality. And indeed Northern Territory knows more about that as presently advised than anybody else, because recently in the High Court in Binsaris v The Northern Territory … 187 The reference by counsel is to Binsaris v Northern Territory [2020] HCA 22; 270 CLR 579, a case concerning the scope of statutory powers available to prison officers in NT correctional centres to physically control detainees who are minors, including by the use of tear gas dispersal devices. So far as I have been able to ascertain, none of the judgments in that case refer to the concept of legality in express terms. 188 Counsel continued: So, we say that Marion's case and the BMA case make it entirely clear, certainly at this level of the proceeding, that what the territory, Queensland and Victorian and WA laws have done, is to impose a vaccine mandate directly or indirectly, and that the principal legality applies whether it's direct or indirect, and the words the CHA considers necessary, appropriate or desirable to alleviate the public health emergency situation stated in the declaration to not justify any incursion upon human rights or legal rights recognised by the law, and there are some of those rights, your Honour, and they're set out in the decision of the High Court in ..... and it's not necessary for me to take you to it at the moment, but for present purposes the right to freedom of movement and the right to bodily integrity are critical, but, your Honour, then Mr Moses asks your Honour to look at subsections (2) and (3) of section 52, and I would ask you to go down the page, and when we look closely it's true. It does give a specific power to segregate or isolate persons in an area or at a particular place, or evacuate persons, and then in subsection (3) to undergo a medical examination, but there is nowhere in that provision is there any specific power conferred to invade or violate the right to bodily integrity directly or indirectly, and, indeed, we would say upon a close examination of the words, even the right to freedom of movement. And that's a question for trial, in our respectful submission, for those three states, and, indeed, for New South Wales as well. 189 The reference to Marion's case is a reference to the High Court's decision in Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 (Marion's Case). 190 The respondents submit the applicants' contention could not meet the test for legal unreasonableness, given how stringent the test is, relying on Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11], [52], [70] and [135]. The Commonwealth accepted that the Court should assess the applicants' legal unreasonableness contentions on the basis that this was a ground of review available in respect of an exercise of executive as well as statutory power, as the Full Court held in Davis v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCAFC 213. That question is relevant for example to the applicants' challenges to the Freight Movements Measures. 191 The respondents also rely on the rejection of similar contentions in Kassam NSWSC at [7] (as endorsed in Kassam NSWCA at [7]) and the formulation of what the applicants needed to establish: it is 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; 297 ALR 225; 139 ALD 181; [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. 192 The respondents relied on some of the allegations in the ASOC as indicating the applicants intended to call expert evidence to establish that the various exercises of power were legally unreasonable. For example, [14] of the ASOC alleges: 14. At the time at which the Governor General and upon the purported satisfaction of the Minister declared in error or in circumstances that were legally unreasonable that the necessary human biosecurity emergency existed: (i). Antiviral treatments including but not limited to both Hydroxychloroquine and Ivermectin were available in Australia as a treatment against the virus; (ii). (a) Hydroxychloroquine had been on a preferred list of medications for the treatment of the SARS outbreak in 2003 and was known as an available treatment for infectious diseases; (ii). (b) the effect of the virus upon human health and mortality was being and has been overstated, most particularly by the mass media and across the world's news services; (iii). there was no immediate threat to human health on a nationally significant scale; 193 The respondents submitted that in Kassam v Hazzard (No 2) [2021] NSWSC 1599 at [15], the Court had described this as a "futile exercise". In any event, they contended the applicants' case in this proceeding amounts to an attempt to re-litigate issues, particularly in relation to Ivermectin and hydroxychloroquine as alternative treatments, that were determined adversely to the plaintiffs in the Kassam proceedings. They do not rely on issue estoppel, but they do submit this fact is relevant to the assessment of the prospects of success of the legal unreasonableness allegations. 194 Aside from Kassam, the respondents point to similar contentions having been advanced, and rejected, in: (a) Athavle v State of New South Wales [2021] FCA 1075, which concerned a challenge to both the NSW and Victorian public health orders, and in which Griffiths J stated (at [100]): I consider that the applicants' claims of unreasonable disproportionality fall far short of the high threshold which attaches to this ground of review. Their challenge impermissibly invites the Court to determine on the merits complex policy choices. The applicants have not persuaded me that there is a serious question to be tired as to whether any of the three impugned instruments is so unreasonable as to be beyond power. As I have repeatedly emphasised, it is not the Court's task to engage in a merits review of those policy choices. Those choices require a balance between competing interests. A primary interest will be public health and public protection but other interests need to be balanced. It is a matter for the executive and not the Court to strike that balance. (b) Larter, where Adamson J rejected a challenge on the grounds of legal unreasonableness because (at [86]) the impugned orders were within the "range of decisions open to the Minister [which was], in this context, wide". 195 To any suggestions by the applicants that the impugned Measures are not precisely those considered in other proceedings, the respondents submit that any differences are, at most, "modest", and could not reasonably justify a different result.

My conclusions 196 The principles concerning legal unreasonableness are well established: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437. In Singh, the Full Court explained that in a given circumstance legal unreasonableness might need to be assessed by reference to the outcome of an exercise of power, or the manner in which it was exercised, including the reasoning applied. Where no reasons are given, the focus will be on the outcome of the exercise of the power in the circumstances. That is the case here in respect of all the impugned Measures - no reasons have been sought by the applicants, and none exist. 197 I have previously expressed the view that the threshold for legal unreasonableness is a high one, and caution is needed to avoid substitution by a reviewing Court of its own views about what an appropriate exercise of power was: see DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 at [109]-[111]. See a similar opinion by Ginnane J in Loielo at [185]. 198 As counsel for Queensland and senior counsel for Victoria submitted, the question to be posed here, in respect of the making of each set of the impugned Measures, is whether no public authority, having the functions of the authority in question and on the state of affairs as they then existed both nationally and regionally in Australia, could have considered it to be a reasonable exercise of those functions to make the impugned Measures. In particular, given the applicants' focus in this proceeding, whether no public authority could have considered it to be reasonable exercise of its functions to impose restrictions on access to premises, workplaces, public transport and the like, on the basis of whether individuals were vaccinated or unvaccinated. 199 The exercise of some of the powers turns on the satisfaction of the repository - for example, the power in s 475 of the Biosecurity Act, which turns on the satisfaction of the responsible Health Minister. The same is true for the powers in s 165AB of the Vic PHW Act (the repository being the Premier), s 56 of the EM WA Act and s 167 of the PH Act WA (the repository being the responsible Minister), s 14(1) of the Tasmanian PH Act (the repository being the Director of Public Health), s 319 of the Queensland PH Act (the repository being the responsible Minister), and s 48 of the NT P&E Health Act (the repository being the responsible Minister). Other impugned provisions, while not using the language of satisfaction, nevertheless use language descriptive of a state of mind: for example, s 7 of the NSW PH Act conditions an exercise of power on whether "the Minister considers on reasonable grounds…". 200 In all these instances, the hurdle faced by the applicants is described in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [137]: where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. 201 As Victoria submitted in respect of the Victorian Measures, some of the Measures are made after consideration of the advice of a Chief Health Officer: see, for example, s 165AB of the Vic PHW Act. Any legal unreasonableness challenge would need to impugn the advice, and there are no pleadings in the ASOC in relation to any of the Measures which seek to do so. Assuming compatibility between the advice and the action taken, a statutory pre-condition requiring consideration of advice from a qualified senior position-holder, such as a Chief Health Officer, is likely to provide an objective justification for the exercise of power so as to make any legal unreasonableness challenge unsustainable, unless the terms of the advice are also impugned. That has not occurred in the articulation of the applicants' case in this proceeding. 202 I accept the respondents' submissions that the applicants' legal unreasonableness challenges have no reasonable prospects of success. As framed, they do no more than express disagreement with the making of the impugned Measures. There is no attempt to articulate how it is that no reasonable repository of the powers concerned could have made a declaration or direction of the kind impugned. There are no material facts pleaded about the situation in each of the States, or in the NT. There are no material facts pleaded about the relationship between the situation in the relevant State or Territory and the applicants' factual circumstances, which render the reach of the declarations or directions to them legally unreasonable. There is nothing more than assertion. At the level they have been pleaded, the allegations do no more than invite disagreement by the Court about the exercises of power. 203 As extracts from the pleadings demonstrate, the applicants' allegations also expressly seek to go behind the satisfaction formed by the various repositories of the various powers and have the Court make up its own mind about (for example): (a) whether there was an "immediate threat to human health on a nationally significant scale" (ASOC at [14(iii)]); (b) whether the Measures had the effect of "making anyone safe in any part of the State or Territory in which they were made" and whether the Measures "stopped the spread of COVID-19" (ASOC at [36], particular (a)); (c) whether the Measures are "disproportionate in their reach in comparison to the risk, to the unnecessary suffering and loss that [they] cause[]" (ASOC [40(c)]); and (d) whether the Measures are "unduly costly" (ASOC [40(c)]). 204 That is not to suggest that judicial review based on legal unreasonableness could never be satisfactorily pleaded in respect of these kinds of measures, in a way which justifies the conduct of a trial. Indeed, as senior counsel for Victoria noted, at the time of hearing there was a challenge to a number of directions under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic), concerning vaccination: see the summary given in Harding v Sutton (No 2) [2021] VSC 789 at [1]. That particular decision concerned the giving of directions relating to expert evidence which the parties proposed to adduce in support of (amongst other grounds) a legal unreasonableness argument. The Court had previously refused to grant any interlocutory relief to the plaintiffs in that proceeding, but had also refused the State's application for the determination of a separate question: see Harding v Sutton [2021] VSC 741. It appears this proceeding may have been discontinued or dismissed. 205 Further, some of the allegations have no rational connection to the legal unreasonableness ground of review. For example, ASOC [36], particular (d) alleges the Measures "subjected the people of Australia to what was effectively a medical experiment". That allegation is unsupported by any pleading of material fact and does no more than pick up a catch cry of opponents of COVID-19 vaccinations. In a similar vein, where allegations such as that in ASOC [45] fit into the legal framework of the applicants' case was never articulated, but suffice to say the allegation that the COVID-19 vaccines administered in Australia "are not true vaccines" but are "a form of gene technology or gene manipulators" is another example of an allegation on its face unsupported by any pleading of material fact, and doing no more than inviting the Court to disagree with the imposition of the Measures. 206 I am fortified in the conclusions I have reached by the decisions in Kassam, where a legal unreasonableness challenge was rejected. As the Court observed in Kassam NSWSC at [144], even on the assumption (which the Court doubted) that such a challenge could be resolved by reference to expert evidence (as the plaintiffs in that case sought and were permitted to do), the very existence of competing expert opinions on the question of the appropriateness, proportionality, and efficacy of, and justification for, restrictions and vaccination requirements is "virtually determinative" against a legal unreasonableness challenge. I respectfully agree. That is certainly the case where, in the face of the decisions in Kassam, there has been no attempt at all to develop and articulate any basis, let alone a different basis, from that advanced in Kassam, for the legal unreasonableness challenge. 207 From the slim development of the applicants' legal unreasonableness contentions orally by counsel, it became apparent that one prominent premise of those contentions was that by reason of the content the various Measures, there was a violation of, or the threatened violation of, the bodily integrity of the applicants as members of the various communities affected by the Directions. That premise is incorrect. 208 None of what can be called the 'mandatory vaccination provisions' in the impugned Measures violate the bodily integrity of any person, and certainly not of the applicants. The Measures control movement, entry to workplaces, or performance of certain work (such a work by freight operators) based on vaccination status. Most if not all of the directions provide exceptions for people who have been medically certified as unable to receive a COVID-19 vaccination: see, for example, the Queensland Measures extracted at [86] above, and the NT Directions for Mandatory Vaccination extracted at [90] above. 209 The NT Measures, being the only specific example to which the applicants' counsel pointed, do not operate on the suggested premise either. The closest they reach is the terms of s 52(3)(a) of the NT P&E Health Act (extracted at [88] above]), which empowers the Chief Health Officer to give a direction requiring a person to undergo "a medical examination of a general nature, or of a stated kind, immediately or within the period stated". This might be used, for example, as part of a quarantine regime. There is nothing in that empowering provision which authorises any violation of bodily integrity, and certainly nothing approaching the circumstances in Marion's case, which concerned involuntary sterilisation. The comparison is inapt to say the least. 210 Any reliance on an analogy with Marion's case (and other authorities) was also rejected by Beech-Jones CJ at CL in Kassam NSWSC at [56] and [63], in a passage which I respectfully adopt and agree with: Leaving aside that the evidence did not establish COVID-19 vaccinations are "experimental", as the State parties submitted, provisions such as cll 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. …. It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person's right to bodily integrity. The judgment of La Forest, Gonthier and Cory JJ in Norberg was influenced by provisions of the criminal law reforming the definition of consent for assaults including sexual assault (Norberg at SCR 251). However, in the end result, the plaintiffs' contentions are well beyond those boundaries. People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person's right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person's right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does. 211 The legal unreasonableness grounds in the ASOC have no reasonable prospects of success and there should be summary judgment for the respondents on those grounds.

A further ground of review? 212 In the ASOC at [36], as an apparent alternative to the allegation of legal unreasonableness, there was also an allegation that the impugned Measures were "unsupported on the basis of the evidence that was available at the time". This appears to invoke a 'no evidence' ground of judicial review. 213 If this is to be understood as a reference to the making of the various emergency declarations, then as the Commonwealth submitted (at [84]) this ground of review could only be made out where there is not a "skerrick of evidence" to support the formation of a state of satisfaction, or the exercise of a statutory power: see, for example, Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 at [574]-[575]; Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; 205 FCR 227 at [31]; Commissioner of Taxation v Pham [2013] FCA 579; 134 ALD 534 at [46]; Photographic Performance Co of Aust Ltd v Copyright Tribunal [2019] FCAFC 95; 270 FCR 645 at [94]. 214 Most of the particulars to ASOC [36] relate to the legal unreasonableness contention. However, particular (i) to ASOC [40] might be said to relate to a 'no evidence' argument: The Measures State Orders fail to have regard to up to date international and Australian medical and scientific experts. (Original emphasis; underlining and strikethrough indicates amendment to the statement of claim filed on 11 October 2021.) 215 Paragraph [13], particular (c) of the ASOC invokes a similar argument in respect of the 2020 Biosecurity Declaration: At the time of making the declaration and continuing declarations with respect to SARS COV-2 there was no evidence available to the Minister and / or the Director of Biosecurity including Australian Health Protection Principal Committee (AHPPC), ATAGI, TGA and AHPRA, to support clause 6 subparagraphs (b), (c) and (d). 216 No more detail is given than these two assertions. As expressed , the first does not suggest there is no evidence, but rather that the most up to date evidence was not considered. The second expressly contends there was no evidence, but provides no material facts on which that assertion is based, by reference to what material was before the responsible Minister. Without further detail, this argument is properly described as hopeless. 217 Further, I accept the Commonwealth's submissions that there was plainly some evidence, such as the declaration by the World Health Organization International Regulations Emergency Committee on 30 January 2020, that the outbreak in Wuhan, China constituted a Public Health Emergency of International Concern. Many of the impugned Measures also required there to be opinion or advice from an authority such as a Chief Health Officer, and the applicants do not allege there was no such advice or opinion. These two matters alone indicate a no evidence ground, as pleaded, is hopeless.

Whether the government parties owed the applicants a duty of care in implementing the measures (ASOC [88]-[93A]) 218 The applicants contend that the respondents owed them a duty of care that can be characterised as a duty to "take all reasonable steps to ensure that the steps undertaken by them to compel injections and for the purposes of the National Plan against the Australian population, would cause or do no harm in particular to the Applicants": see ASOC [90]. As formulated and despite the reference to the applicants, it is clear the duty of care is said to be owed to the entire Australian community. The applicants contend this is because the respondents: assumed a role protective of the community as parens patria with respect to private health and the Applicants in particular. In so far as concerns the actions of governments, that they govern for the peace, order and good government of the people of Australia as provided for in the Public Health statutes of each Respondent, and that the actions of government should be carried out by reference to the sensible limitations and containment of Executive and Administrative power, by lawful means. (Original emphasis; underlining and strikethrough, indicating amendment to the statement of claim filed on 11 October 2021, omitted.) 219 In [92] of the ASOC, the applicants allege the respondents breached the duty of care as pleaded in the following particulars to that allegation: (a) Failure to adequately or at all investigate the efficacy of the proposed mRNA products. (b) Failure to adequately or at all investigate the safety of the proposed mRNA products. (c) Failure to adequately or sufficiently warn the Applicants of adverse effects or possible adverse effects. (d) Failure to consider known antiviral treatments including prophylactics and other antiviral medical treatments. (e) Subjecting the population at large to the provisionally approved gene therapy treatment to the exclusion of other available or potential cures and proven antiviral treatments (f) Failing to safeguard against State or Territory orders, including the Measures, that operate to vitiate consent including the applicants' consent to provisionally approved gene therapy products. (g) Failure by each Respondent to take reasonable steps to ensure that the exercise of executive power by the National Cabinet was lawful; (h) Failure to take reasonable steps to make and develop Australian products reasonably available as potential cures and antiviral treatments. (Original emphasis; underlining and strikethrough, indicating amendment to the statement of claim filed on 11 October 2021, omitted.) 220 The damage the applicants allege they have suffered is pleaded as: adverse effects of COVID-19 injections, heart attack including myocarditis and periocarditis, blood clots, stroke, depression, PTSD, financial loss, psychiatric harm "and other sequalae", stress and disappointment, loss of business, loss of quiet enjoyment of life, social ostracization, bullying and harassment and loss of opportunity: see ASOC at [93A]. 221 There are no pleadings of material fact in [20] of the ASOC which allege that any of the applicants have suffered any of the physical consequences alleged. 222 The State of Victoria made the principal submissions on the negligence pleadings, supported by the other respondents. The respondents submit the Court need go no further than the alleged duty of care in order to find the requirements of s 31A of the FCA Act satisfied. They submit what is alleged is a novel and "extraordinarily broad and ill-defined" duty of care, of a kind the applicants have no reasonable prospects of establishing. In the alternative, the respondents submit that the allegations are so inherently defective that they fail to disclose a cause of action, and should be struck out. The lack of prospects should lead the Court to refuse leave to re-plead. 223 The respondents point to certain features of the alleged duty which illustrate its legal flaws. These are that: (a) the alleged duty is formulated as one to achieve a particular result (eg "ensure that the steps undertaken … would cause or do no harm": ASOC at [90]); (b) the duty appears to be allegedly owed to all members of the Australian community; (c) there is no differentiation between reasonable steps necessary to prevent the particular types of harm pleaded; and (d) no standard of care required of each of the respondents is identified. 224 The respondents also contend that, read as a whole, it is apparent the applicants' real case is that the decision to "mandate vaccination" was itself negligent and that, acting reasonably, the respondents would not have "mandated vaccination". 225 As I have noted, there are no pleadings setting out which of the applicants have suffered which of the harms (physical, mental and economic all being identified) set out in the pleadings. The respondents make this point, and add that the pleading provides no causal link between the alleged breach of duty and any of the harm allegedly suffered. 226 Returning to the novelty of the alleged duty of care, and the applicants' prospects of establishing such a duty, the respondents refer to Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [3], [5] and [93]-[94] and Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]-[104]. 227 They submit there are three key features that preclude recognition of the duty of care alleged by the applicants: (a) it seeks to impose liability for core policy-making functions of the government respondents, performed in a highly political context and involving quasi-legislative powers; (b) ascertaining the duty of care would create incoherence in the law, as it would: (i) be directly inconsistent with the statutory frameworks provided for in public health statutes in each of the respondent jurisdictions for the making of public health protection decisions (citing Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270 at [20]-[22]), including by impermissibly forcing decision-makers to give disproportionate weight to the potential liability for any type of loss (including financial loss) that might result from the exercise of the relevant public health powers; and (ii) impermissibly discourage repositories of powers from taking population level steps and measures, (citing Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331); and (c) it would be impossible to confine the class of persons to whom the alleged duty was owed within reasonable limits (citing Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [50]), because: (i) the duty would be owed to all persons potentially affected by the relevant statutory public health powers, which would include large parts of, if not all, of the population of Australia; and (ii) the duty would require the duty holders to protect individuals and businesses from pure economic loss, and the applicants' case ignores the cautious and particular approach Australian courts have required before imposing a duty to protect others from suffering economic loss, especially in terms of causation and reasonable foreseeability. They refer to Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [93], [232], [405], and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [21]-[22], [46]-[47]. 228 In oral submissions, counsel for the applicants emphasised that this proceeding was the only one with a private law cause of action, and emphasised the importance of discovery in that context. He conceded the duty of care alleged was a novel one, but submitted the situation in respect of the COVID-19 pandemic was unusual in itself. He then submitted the three features upon which the respondents relied were not impediments to the recognition of a duty of care of the kind alleged. He submitted: (a) Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 supported the availability of an alleged duty owed to a large number of people, and explained how existing concepts could be used to preclude any liability from being indeterminate; (b) there is no inconsistency because (apparently at least insofar as the alleged duty reaches conduct by National Cabinet and the National Plan) there are no statutes supporting National Cabinet so there is nothing to create any inconsistency with the alleged duty. He submitted that the scope of the alleged duty: would need to be dealt with on the whole of the evidence at trial, particularly the production of the National Cabinet minutes, agendas and notices of meeting and any reports to it. (c) on the respondents' objection that the negligence allegations went to policy and political matters, counsel submitted: whilst, ultimately, the question as to whether or not to make any response to the pandemic was open and could be described as a policy decision, the question of the implementation of that at the level to which we've referred does not do so, at least in any respect that would circumscribe a scope of law provision and a duty of care so as to exclude it. 229 In response, senior counsel for Victoria submitted: (a) Three Rivers was a misfeasance case which did not involve the identification of a novel duty of care, and, to the extent it deals with negligence, it does so by reference to the concept of proximity being a concept no longer accepted in Australia as a touchstone for ascertaining the existence of a duty of care; and (b) the submission at [228(b)] above ignores the fact that the duty of care alleged includes the making of the measures by each of the states and territories pursuant to the statutory powers in state and territory legislation. Hence, an "inevitable inconsistency arises", he submitted. 230 NSW made a particular submission on the negligence pleading. It referred to s 132 of the NSW PH Act, which provides: 132 Exclusion of liability of the State and others (1) This section applies to civil proceedings for damages or other compensation brought against the State or any authority of the State. (2) Damages or other compensation is not payable in any such civil proceedings to which this section applies to the extent that the claim is based on alleged negligence, defamation or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, in good faith any function under this Act. (3) This section does not affect any entitlement to compensation expressly conferred by this Act. 231 Counsel for NSW submitted this was never addressed by the applicants and provides a complete answer to their private law case against NSW.

My conclusions 232 I agree with the respondents' submissions that it is a notorious fact, of which the Court can take judicial notice, that statutory public health powers in the various States and Territories have been used throughout the COVID-19 pandemic to take measures that apply to all, or large parts, of the population of Australia. The principal Commonwealth measure impugned - the 2020 Biosecurity Declaration, applied nationally. The impugned Measures have at one point or another applied to a large proportion of the Australian population, if not all of it. 233 The applicants did not shy away from this proposition. They seek to run their negligence case on the basis the duty is owed to all members of the community affected in a negative way by the impugned Measures. In that sense, while the proceeding is no longer continued as a representative proceeding, the negligence claim is in substance exactly that. This breadth of the persons to whom the alleged duty of care is said to be owed, without any attempt to identify or delineate the material facts relating to their circumstances, is one of the fatal flaws in the framing of the applicants' case in negligence. It is exacerbated by the failure to articulate specific links between the making of a particular Measure and the alleged harm said to have been caused even to a specific applicant. This detail is wholly absent. In my opinion that is in large part because the harm suffered by the applicants is of the same nature as the harm the applicants' case assumes has been suffered by a large (unidentified) proportion of the Australian community. 234 However, this is not the only flaw. 235 As to the first key feature relied on by the respondents, I consider the respondents are correct that the way the duty of care is framed here invites the Court to pass judgment on the reasonableness of what was fundamentally a complex, multi-dimensional and necessarily changeable government policy response to a world-wide pandemic, where different choices were made at different times by different governments, depending on their own assessment of the circumstances in the area for which they held political responsibility. It is precisely the kind of situation to which the observations of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [6] are directed: Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature. 236 In circumstances where there are exercises of statutory power that create or exacerbate a risk of harm, there might be less emphasis on whether there is incoherency or incompatibility with a posited duty, or whether the nature of the conduct or decision as involving matters of policy should preclude the duty arising: see generally the reasons of Beach J in Minister for the Environment v Sharma [2022] FCAFC 35 at [356]. 237 At the point of principle, that might well be correct. However, the applicants' prospects of success are not improved by reliance on such an analysis, which in any event they did not rely upon. That is because in the present circumstances, the legislation authorising the impugned measures clearly makes a series of express policy choices about what are the appropriate responses to the pandemic situation in each jurisdiction, and in that sense the applicants' posited duty of care is inconsistent, and indeed incompatible, with the policy which the Measures evince: cf Sharma at [612]. Indeed, the whole point of the applicants' negligence allegations is to allege that the outcome - the effect of the impugned Measures on them - was a breach of the respondents' duty of care. At its base, their case seeks to impugn the (changing) policy choices made by the various government respondents. Gleeson CJ's observations in Graham Barclay Oysters are in my opinion directly applicable. Combined with the other flaws in the applicants' negligence case, this is the clearest of cases where those observations should be applied. See also 5 Boroughs at [43] for a similar conclusion about wide ranging allegations against policy responses to the pandemic. 238 A contrast could be drawn between the applicants' alleged duty of care and the duty of care pleaded in 5 Boroughs. In that case, the plaintiffs' case targeted the infection prevention and control measures used in hotel quarantine in Victoria. John Dixon J described the first plaintiff's case in this way at [1]: It contends that these restrictions were the inevitable result of COVID-19 transmission events at two hotel quarantine sites caused by the negligent failure of the State to implement effective infection prevention and control measures at the sites. 239 The much more limited nature of the duty alleged is apparent from [53]-[56] of his Honour's reasons for rejecting the summary dismissal application on the negligence claim: The plaintiff's posited duty in this case, at least in the context of the breaches alleged, targets particular failures on the part of the relevant Ministers and Secretaries who implemented hotel quarantine. These failures in 'effective infection prevention and control measures' essentially involved lack of adequate supervision, training, audits and the supply of protective equipment. While these factors will affect the allocation of resources, in that more supervision or training, or more protective equipment might require more resources, it is difficult to see at this early stage in the proceedings, and without any evidence about the significance of resources required to meet the posited standard, how such impact is any different from any duty of care recognised against the State in negligence. If there is ever any required level of conduct that the State should achieve, meeting that standard will be easier to achieve with more resources. At face value, exercising more precise care over safety measures in an existing program may lie outside of core policy-making functions or quasi-legislative functions, and fall within the operational category. Notionally, even given an existing set of resource constraints, it does not seem fanciful that the defendants' conduct in implementing infection control measures could be subject to curial assessment on reasonableness criteria. What a reasonable functionary might do in such circumstances may not rely only on the political balancing of competing interests, or on the issue of resources. These are factual inquiries. The detention notice, it would appear, already determined exceptions that would apply to returning travellers in quarantine, and the policy decision about sequestering travellers in hotels as opposed to purpose-built detention centres or prisons had already been made. Those interests had been balanced. Given that policy framework, how rigorously each hotel was supervised, regulated, or audited may, on careful analysis, involve administrative or operational decisions capable of assessment to an objective standard. 240 That is more than a far cry from the way the applicants have framed their negligence case. 241 A further feature which can be contrasted with the 5 Boroughs proceeding is that rather than alleging a duty of care owed by one State government to a specific group of people, the present proceeding alleges - without any material distinctions - duties of care - of precisely the same kind - owed by federal, State and Territory governments to the entire community of which, in substance, the applicants are part. There is no attempt to separate out the circumstances in each State and Territory, and the circumstances facing the federal government, and to plead a duty of care which is responsive to those different circumstances. Although the proceedings do select Measures at a particular point in time, the way the negligence case is framed is not tied in any detail to that particular point of time. It a jumble of general allegations against all the respondents, lumped together. It is embarrassing and inappropriate, as well as hopeless. 242 Finally, I accept the respondents' submissions that the posited duty is "fundamentally inconsistent with the effective exercise of those statutory public health powers". It is also practically impossible in a circumstance such as the COVID-19 pandemic. No government can implement responsive public health measures to a pandemic that "cause or do no harm". The entire situation involves weighing the potential harm apprehended from the spread of the COVID-19 virus against the impacts on a community of measures designed to minimise that harm, recognising the harm caused by the virus cannot be avoided altogether. The effective exercise of public health powers will necessarily have adverse impacts on some or perhaps most members of the community. Those impacts cannot be entirely avoided and at the level of generality and breadth it is pleaded, the posited duty is incompatible with the functions, both executive and statutory, to be performed in order to deal with a public health crises affecting nations across the world. 243 It is true that there can be dangers in determining whether a novel duty of care has any reasonable prospects of success, before trial and fact finding, and separately from the determination of the other elements of the tort. This is the point made by Beach J in Sharma at [536]-[538], which with respect has force. 244 Nevertheless, there are so many flaws in the applicants' negligence case that I am satisfied those dangers should not preclude judgment in favour of the respondents. 245 For completeness, in any event I accept the submissions of NSW that there is an absolute bar against a claim in negligence against it by reason of s 132 of the NSW PH Act.

Whether the Measures constitute a breach of the Australian Consumer Law (ASOC [100]-[103]) 246 Section 60 of the ACL provides: If a person supplies, in trade or commerce, services to a consumer, there is guarantee that the services will be rendered with due care and skill. 247 The applicants plead: (a) the "subjecting" of the Australian people and in particular the applicants to a "program of mass COVID-19 injections" constituted the delivery or provision of a medical service to the Australian people, including the applicants, as consumers; (b) this medical service was provided in, or ancillary to, trade or commerce; (c) the provision of this medical service was subject to the guarantee in s 60 of the ACL; and (d) the respondents contravened that guarantee by providing a service that was not fit for purpose and was not supplied with due care and skill. 248 The pleadings in this section are somewhat confused by reason of the deletions to the ASOC from its previous iteration. There are cross references in [103] of the ASOC to [93] of the ASOC, which is deleted. This appears to be an intended cross reference to [93A], and that is how I have approached these pleadings. 249 The allegations about why the provision of COVID-19 injections was not fit for purpose and why the vaccinations were not supplied with due care and skill, are contained in [103] of the ASOC. It is not possible to summarise them, and they therefore need to be set out, despite their length, with the strikethroughs removed: 103. Contrary to the provisions of section 60, the service was not fit for purpose and was not supplied with due care and skill, in that: (i) [neither] the National Plan, nor the roll out of the COVID-19 injection program, nor the experiment prevented people from contracting or from spreading the virus; (ii) the COVID-19 injection program exposed people to significant medical risk from the provisions of the vaccinations injections themselves; (iii) the COVID-19 injection process gave people a false sense of security in that people believing that the COVID-19 injections were "safe" meant that they posed no danger, but did not understand that they could still hold the virus and that they could unwittingly pass it onto other people; (iv) it exposed people to the risk of the injections, and in the case of many people within the population, to what was an unacceptable risk of harm; (v) it subjected members of the population to assault and to battery, who were forced to take the injection without their properly informed consent; (vi) it discriminated against people, for no good reason; (vii) it curtailed people's liberties in ways that were completely unnecessary; (viii) it created an injection based discrimination in which those who had not subjected themselves to injections were posed by the Respondents as being a danger to those injected and as people that they should shun, whereas the injected were the ones who posed the risk to the uninjected[ ](and not the other way around); (ix) the contracts that were entered into with the COVID-19 drug providers exempted them from any and all liability, but subjected the Australian people to risk of injury and of harm, and to the financial burden of dealing with injured persons; (x) treatments for the virus were denied to the Australian people, for the purposes of forcing their participation in the experiment; (xi) the service and which was a medical experiment, was forced onto people in a way that violated their rights to refuse medical treatment and in such a way as violated the Nuremburg Code and Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights; (xii) the deprivation of people's liberties was imposed in many arbitrary and ineffective ways, and that were harsh and uncalled for; (xiv) it involved the entry into of supply agreements with organisations that had engaged in criminal conduct, one of whom had been subjected to the largest penalty in the history of the health care industry across the world, but in which the Commonwealth had nevertheless agreed to provide them a complete indemnity for persons killed and injured across the population of Australia from the use of the COVID-19 injections; (xvi) All of the facts and allegations in paragraph 93 are repeated. 250 In oral submissions, counsel for the applicants made the following points: The ACL should be construed liberally including with respect to government activities of a commercial kind or engagement in trade or commerce - because that's not necessarily the same thing. 251 He submitted the question whether conduct was in trade and commerce was a question of fact, and the applicants' contentions that all of the impugned Measures were undertaken in trade and commerce was "not untenable, not fanciful". 252 One threshold submission made by the State and Territory respondents was that as a law of the Commonwealth applied by Part XI of the Competition and Consumer Act 2010 (Cth), the ACL does not apply to the Crown in right of the States or Territories. The applicable regimes are the State and Territory equivalents. 253 Putting that (considerable) difficulty to one side, and even assuming the State and Territory equivalents had been pleaded, the respondents submit that in engaging in the relevant conduct, none of the respondents were acting in trade and commerce. None was carrying on a business. Rather, their conduct is properly characterised as "purely governmental or regulatory": Murphy v State of Victoria [2014] VSCA 238; 45 VR 119 at [46(d)-(e)]. 254 Further, counsel for NSW submitted the alleged conduct did not did not constitute the supply of services by the NSW government to the applicants. Section 2(1) of the ACL defines "services" (non-exhaustively) as follows: services includes: (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under: (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or (iv) a contract of insurance; or (v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (vi) any contract for or in relation to the lending of money; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service. (Original emphasis.) 255 Counsel for NSW added that this argument also meant the applicants were not acquiring services as "consumers". 256 Counsel for the NT additionally submitted that: (a) a donation of services is not, pursuant to ACL s 5(1)(a), a supply of services unless the donation is for promotional purposes, and that the donation or free exchange of vaccinations to the applicants does not constitute a supply for the purposes of ACL s 60; and (b) none of the matters pleaded at ASOC [103] (extracted at [249], above) relate to the due care or skill with which a medical service was provided, but rather to the alleged inappropriateness of the service itself, which does not engage ACL s 60.

My conclusions 257 I accept that the applicants' ACL allegations founder on the rock of Part XI of the Competition and Consumer Act. I accept the applicable regimes are the State and Territory equivalents. If the applicants' case otherwise had reasonable prospects of success, then this might be the kind of matter where the Court would strike the current pleading out, and give leave to re-plead by reference to the State and Territory statutes. 258 However, once again, the flaws in the applicants' case are more fundamental than that. Put simply, the administration of a vaccination program in a pandemic is not the carrying on of a business. Although the s 31A threshold is lower than this, that proposition is untenable. In Murphy, the Victorian Court of Appeal endorsed the following propositions made by the trial judge in those proceedings (at [46(d)-(e)]): There is a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail the carrying on of business. To carry on some part of "the business of government" is something different from carrying on a business in the relevant sense. The carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business. (Footnotes omitted.) 259 The provision of a vaccination program across the States and Territories, in order to provide increased protection at a whole of population level against the serious effects of the COVID-19 virus, cannot be described as a commercial activity. It involves no commercial transactions. It is the provision of a public health and medical service to the community, as part of a core governmental public health function. Separately, the government purchase of vaccines might well involve a commercial transaction, but that is not the subject of the applicants' ACL s 60 allegation. 260 The applicants' pleading of conduct being "ancillary" to trade and commerce (as some apparently alternative characterisation) was not supported by reference to any authority and should also be rejected. 261 I also accept the additional submissions of the NT that none of the particular allegations made in [103] of the ASOC in fact concern the care and skill with which the mass vaccination program was administered. Instead, the allegations concern the inappropriateness of such a program. That allegation does not engage s 60 of the ACL. 262 The submission of NSW that the provision of a vaccination program is incapable of falling within the definition of 'services' in s 2 of the ACL need not be determined. The reasoning in Murphy extracted above, which speaks of governmental "services", would need to be more carefully considered. I do not need to decide this matter as there is more than an ample basis to describe the applicants' ACL claims as having no reasonable prospects of success without this argument.

UTILITY 263 Some of the respondents made submissions about the utility of the relief sought, and of the proceeding, since some or all of the impugned Measures were no longer in force. For example, NSW submitted that all of the applicants' allegations of invalidity could not sound in the grant of relief other than declaratory relief, and declaratory relief would not be granted in an exercise of discretion, because as between the applicants and NSW, a declaration would produce no foreseeable consequences for the parties: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [52]. Other respondents adopted these submissions in respect of their own Measures. Victoria did not adopt NSW's submissions and made no point about utility. 264 Although it is clear that many of the impugned Measures may no longer be in force, assuming the matter went to trial, then whether or not there are foreseeable consequences which would sound in declaratory relief would depend very much on what the evidence at trial had shown about the effect of the Measures on the applicants. 265 I do not consider this is an appropriate factor to count against the applicants on the summary dismissal application.

NO LEAVE TO RE-PLEAD SHOULD BE GRANTED 266 The question of leave to re-plead in the context of the current allegations was put by counsel for the applicants on the basis that the original pleading had been significantly amended, to remove a number of allegations, but the pleading was still in a state that needed refinement and development. Counsel indicated that, should the case advance, the applicants would seek directions permitting the amendment of their pleadings, particularly with regard to refining their ASOC. 267 The difficulty for the applicants lay primarily in their causes of action. While in these reasons I have also drawn attention to the generality of the pleaded allegations, the lack of pleaded material facts and the like, in my opinion that is not an oversight or a matter which can readily be corrected by an amendment. The generalities exist because the nature of the applicants' case is a general one. The lack of material facts exists because the applicants do not wish to put a detailed case about their own circumstances at a particular point in time and confine their allegations to how a particular Measure affected those circumstances. Their case is a general attack on the government response across Australia to the COVID-19 pandemic through the use of a vaccination program. 268 Counsel for the applicants did not give any examples of how the applicants were prepared to correct any of the flaws identified by the respondents through amendments. No further amended statement of claim was proffered. As senior counsel for Victoria pointed out in reply, no leave to re-plead was sought. The 'list of triable issues' submitted without leave just before the hearing commenced did nothing but confirm the generalised ideological nature of the attack being made. 269 There is no basis to strike out the ASOC and give the applicants leave to re-plead.

CONCLUSION 270 The respondents have discharged their burden of proving that none of the causes of action upon which the applicants' rely in their ASOC have any reasonable prospects of success. The proceeding should be summarily dismissed and there should be summary judgment for the respondents. 271 One final point should be made. Although the High Court in Spencer was concerned that s 31A not be employed to stifle the development of the law, in my opinion that qualification has been incorrectly employed by the applicants in this proceeding. It cannot be doubted that there may be cases which, in the nature of the cause of action they raise, require and invite a development of the law from its present state. Of itself, that is no basis for summary dismissal or strike out. All will depend on how the cause of action is articulated, and developed by submission. Careful, thorough and well-reasoned pleadings, with adequate material facts, which seek a development in the law, are unlikely to be characterised as having no reasonable prospects of success. 272 That is not the case here. In this case, what has occurred in many of the pleaded causes of action is that the beliefs of the applicants have been incorporated into pleadings. The Court does not doubt those beliefs - including about the COVID-19 vaccinations - may be genuinely held. But asserting beliefs in a pleading does not convert the assertion of those beliefs into a cause of action with reasonable prospects of success. 273 There will be orders that there be summary judgment for the respondents in the proceeding. 274 Although the parties advanced various submissions on costs as part of their overall submissions, the parties should be given an opportunity to agree on proposed costs orders which reflect the decision of the Court. In the absence of agreement, the Court will receive short further submissions on costs. I certify that the preceding two hundred and seventy-four (274) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

SCHEDULE OF PARTIES VID 579 of 2021 Applicants Fourth Applicant: MURAT TEMEL Fifth Applicant: MICHAEL TEMEL HAIR PTY LIMITED Sixth Applicant: ANTOINE SANDROUSSI Seventh Applicant: MIKAILAH LEHMANN Eighth Applicant: SERAFINE NICHOLS Ninth Applicant: ALISON ZERK Respondents Fourth Respondent: STATE OF TASMANIA Fifth Respondent: STATE OF WESTERN AUSTRALIA Sixth Respondent: NORTHERN TERRITORY OF AUSTRALIA Seventh Respondent: STATE OF QUEENSLAND