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.