Stratton v State of New South Wales; Pandolfi v Minister for Health and Medical Research

13. 252 CLR 530; [2013] HCA 58 Unions NSW v New South Wales (2019) 264 CLR 595; [2019] HCA 1 Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 Category: Principal judgment Parties: Chad Stratton (First Plaintiff) Ruby Pandolfi (Second Plaintiff) State of New South Wales (First Defendant) Minister for Health and Medical Research (Second Defendant) Representation: Counsel: S Prince SC with F Graham and T Wong (Plaintiffs) M G Sexton SC SG with M Adams (Defendants)

Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd (First Plaintiff) National Justice Project (Second Plaintiff) Crown Solicitor's Office (NSW) (Defendants) File Number(s): 2021/00215485 Publication restriction: Nil

JUDGMENT

1. By Summons filed on 9 July 2021, the plaintiffs, Chad Stratton and Ruby Pandolfi, challenge the validity of Penalty Notices issued by NSW Police alleging that each had committed an offence under s 10 of the Public Health Act 2010 (NSW). The Penalty Notices respectively alleged that the plaintiffs, having had notice of a direction that the second defendant ("Minister") made under the Public Health Act and without reasonable excuse, failed to comply with that direction.
2. The direction that the plaintiffs were alleged not to have complied with was contained in a public health order that the Minister made under s 7(2) of the Public Health Act, as part of the State Government's response to the COVID-19 pandemic. Clause 18(1) of Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 ("PHO4") and cl 22(1) of Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 ("PHO5") provided that a person "must not participate in an outdoor public gathering of more than 20 people". Both Mr Stratton and Ms Pandolfi were arrested in the course of engaging in outdoor protest activity which involved a gathering of more than 20 people.
3. The plaintiffs challenge the validity of the Penalty Notices on the basis that s 7(2) of the Public Health Act and/or the orders made pursuant thereto, along with s 10 of the Public Health Act pursuant to which they were charged, imposed an unjustified burden on the implied freedom of communication on governmental and political matters. The freedom is recognised as necessarily implied "because the great underlying principle of the Constitution is that citizens are to share equally in political power and because it is only by a freedom to communicate on these matters that citizens may exercise a free and informed choice as electors": LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490; [2021] HCA 18 ("LibertyWorks") at [44] (Kiefel CJ, Keane and Gleeson JJ).
4. The applicable analysis, settled by a majority of the High Court in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 ("McCloy") and adopted with some refinement in a series of subsequent cases, involves the following inquiries, as set out by Kirk JA in Burton v Director of Public Prosecutions [2022] NSWCA 242 ("Burton") at [16] (Bell CJ and Leeming JA agreeing): "(1) Does the impugned law effectively burden the freedom in its terms, operation or effect? If not, the inquiry ends. (2) If so, is the purpose of the law legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative government? If the purpose is not legitimate, the measure is invalid. If it is legitimate, it is necessary to address the next question. (3) Can the burden on the freedom imposed by the law be characterised as justifiable? That involves testing the law by way of a structured proportionality analysis, which raises the following issues: (a) Is the law suitable to achievement of the purpose, in the sense of having a rational connection to that purpose? (b) Is the burden on the freedom necessary, in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom? (c) Is the law adequate in its balance, that is to say, not unduly burdensome on the freedom taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom?"
5. The plaintiffs have applied these inquiries to ss 7 and 10 of the Public Health Act and to the orders in PHO4 and PHO5 which are the subject of the Penalty Notices, on the basis that uncertainty attends the level at which the implied freedom analysis should be undertaken. The structure of their arguments is apparent from the declarations sought: 1. First, the plaintiffs alleged that s 7(2) of the Public Health Act should be construed so as not to confer power on the Minister to take action or give directions which prohibit or otherwise impermissibly burden the implied freedom of communication on government or political matters (Prayer 1). Alternatively, s 7(2) is invalid in so far as it impermissibly burdens the implied freedom (Prayer 2). If either of those arguments is accepted, then s 7(2) would not support the making of cl 18 of PHO4 and cl 22 of PHO5 (Prayer 4). 2. Next, the plaintiffs contended that cl 18(1) of PHO4 and cl 22(1) of PHO5 should be read down so as not to apply to political communications and/or outdoor public gatherings which are for the purpose of a protest or demonstration about governmental or political matters (Prayer 3). Alternatively, cl 18(1) of PHO4 and cl 22(1) of PHO5 are invalid because they impermissibly burden the implied freedom (Prayer 5). 3. The plaintiffs also alleged that s 10 of the Public Health Act should be read down so as not to make it an offence for a person to engage in political communication and/or participate in an outdoor gathering for the purpose of a protest or demonstration about governmental or political matters (Prayer 6). Alternatively, they alleged that s 10 impermissibly burdens the implied freedom and is invalid to that extent (Prayer 7).
6. The plaintiffs also contended that engaging in political communication and/or participating in a public outdoor gathering for the purpose of a protest or demonstration about governmental or political matters is a "reasonable excuse" for not complying with a direction under s 7, within the meaning of s 10 of the Public Health Act (Prayer 8). In oral submissions, Senior Counsel for the plaintiff clarified that the plaintiffs were not seeking an advisory ruling as to the meaning of "reasonable excuse" in s 10; rather, the declaration anticipated an argument the defendants might run, to the effect that s 10 should be read down by reference to the concept of "reasonable excuse". Ultimately, the defendants did not advance that argument.
7. I have concluded that the implied freedom analysis should be applied to s 7(2) of the Public Health Act, applying the approach that the High Court has adopted in a series of cases beginning with Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 ("Wotton"). I have further concluded that s 7(2) does not impose an unjustified burden on the implied freedom. I have reached the same conclusion in relation to s 10 of the Act. In light of those conclusions, it is unnecessary to consider whether either provision should be read down. It follows that the Penalty Notices are valid and the Summons must be dismissed.

Mr Stratton and the Black Lives Matter protest

1. A detailed account of the events resulting in Mr Stratton being issued with the Penalty Notice is provided in his affidavit affirmed 1 December 2021 and the affidavit of Jeremy Styles, solicitor, affirmed 9 July 2021. It is sufficient for the purpose of the issues arising in the proceedings to identify the following facts, which were not the subject of challenge.
2. In May 2020, Mr Stratton learned of the death of George Floyd in the United States, and was aware that there were a number of Black Lives Matter protests in various cities across that country. According to Mr Stratton, he learned of an outdoor protest that had been arranged by a Facebook group called "Justice for David Dungay Jnr", who had died in Long Bay Prison Hospital in 2015. The protest, which was organised under the banner "I Can't Breathe - Black Lives Matter - Justice Now!", was to be held on 28 July 2020 in the Domain in Sydney. The Facebook page listed a range of COVID-19 safety protocols with which participants were urged to comply, including maintaining a safe distance of 1.5 m from other attendees, wearing a mask, practising thorough hand hygiene and not attending if unwell or symptomatic. The protest was not an authorised public assembly for the purposes of the Summary Offences Act 1988 (NSW), which I will address in due course.
3. While attending the protest, Mr Stratton was arrested and issued with the Penalty Notice charging him with the offence under s 10 of the Public Health Act of failing to comply with a direction. As I noted above, the direction was contained in cl 18(1) of PHO4, which provided: The Minister directs that a person must not participate in an outdoor public gathering of more than 20 people.
4. The Penalty Notice alleged that Mr Stratton was warned that he was in breach of PHO4 by being in a gathering of more than 20 persons and that he would be detained if he did not move away.

Ms Pandolfi and the Transgender Rights protest

1. A similarly detailed account of the events leading to the issuing of the Penalty Notice to Ms Pandolfi is contained in an affidavit of Ms Pandolfi, affirmed 28 November 2021, and the first affidavit of Emma Hearne, affirmed 9 July 2021, from which I have distilled the following facts.
2. On 5 August 2020, the Hon Mark Latham introduced a Bill to the Legislative Council, which was widely known as the Trans Erasure Bill. Ms Pandolfi understood that the Bill sought to prevent teaching and discussion about transgender people in government schools by banning any mention of gender fluidity, and disciplining teachers and counsellors for teaching about gender fluidity. An outdoor public protest, under the banner "Protect Trans Kids, Kill Latham's Bills", was arranged to be held on 10 October 2020 in Taylor Square in Sydney. The Facebook page for the event made a number of announcements about the applicable COVID-Safety plan, which included that participants should wear a mask and physically distance, that masks and hand sanitiser would be available, and that persons should stay home if they felt unwell or had symptoms. The protest was not an authorised public assembly for the purposes of the Summary Offences Act.
3. While attending the protest, Ms Pandolfi was arrested and issued with a Penalty Notice alleging that she had failed to comply with a direction, being cl 22(1) of PHO5. The Penalty Notice alleged that Ms Pandolfi had notice of the direction "regarding mass gatherings" and without reasonable excuse she failed to comply with it by participating in the protest.

The plaintiffs were engaging in a form of political communication

1. On the basis of their respective affidavits, the plaintiffs submitted that their participation in the outdoor protest activity as a result of which they were charged was a form of political communication. The defendants did not dispute that the plaintiffs were engaging in a form of political communication at the time of their arrest. I accept that the protest activity in which the plaintiffs engaged was a form of political communication.

The parties' evidence

1. The parties each made various objections to the other's affidavits. However, they submitted that, in the interests of a just, quick and cheap hearing, I should receive the evidence and later deal with the objections if and to the extent the evidence was relevant to the issues as I came to determine them.
2. In addition to the affidavits of Mr Stratton, Mr Styles, Ms Pandolfi and Ms Hearne to which I have already referred, the plaintiffs relied on an affidavit of Hugo Atkinson affirmed 1 December 2021, and two further affidavits of Ms Hearne, affirmed 1 December 2021 and 12 May 2022. The affidavit of Mr Atkinson and the first of the further affidavits of Ms Hearne were directed to identifying other outdoor gatherings that occurred around the time of the two protests, predominantly rugby league games (and one horse racing event), which were attended by crowds of various sizes. The attendees ranged from a few thousand persons (around July 2020) to well in excess of 10,000 persons (in October 2020). The second further affidavit of Ms Hearne collated what were described in the affidavit as "public statements made by the representatives of the Commonwealth and New South Wales Governments regarding each jurisdiction's strategy for addressing COVID-19" between 16 April 2020 and 31 December 2020.
3. The plaintiffs also relied on the evidence of Professor Catherine Bennett, Chair in Epidemiology at Deakin University, who produced two expert reports dated 30 November 2021 and 9 May 2022. The focus of Professor Bennett's evidence was the 20-person limit on attendance at outdoor public gatherings in July and October 2020 which was the subject of the direction in cl 18(1) of PHO4 and cl 22(1) of PHO5. In summary, Professor Bennett's evidence was that, according to the data as at July and October 2020, the risk of outdoor transmission of COVID-19 was very low, with no outdoor transmission events having been reported in Australia in 2020. Professor Bennett considered that the very low risk of an outdoor community protest leading to widespread community transmission would be reduced further if COVID-19 safety protocols were observed, such as social distancing, mask wearing and registering details for contact tracing purposes. She opined that, assuming an outdoor public protest had 500 people present and the infection risk was evenly distributed across Sydney, the chance of having a COVID-positive person present on 23 July 2020 was 18 in 100. That risk reduced to 7.5 in 1,000 by 25 September 2020, and to effectively zero by 30 November 2020.

Legislative Scheme

1. It is necessary for the purpose of the plaintiffs' challenge to set out the applicable provisions of the Public Health Act and the orders made pursuant to s 7 of that Act.

Public Health Act 2010 (NSW)

1. The objects of the Public Health Act are set out in s 3(1). They are: (a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health, (f) to monitor diseases and conditions affecting public health.
2. The term "public health" is not defined. In Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 ("Kassam CA"), Leeming JA described the concept of "public health" as concerning, at its core, "a danger to members of the public": at [159]. That description is consistent with s 3(2) of the Public Health Act, which provides that "[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act".
3. Part 2 of the Public Health Act is titled "General public health". Section 7 is the first provision in that Part. It provides as follows: 7 Power to deal with public health risks generally (cf 1991 Act, s 5) (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.

PHO4 and PHO5

1. PHO4 commenced at the beginning of 1 July 2020: cl 2. PHO5 relevantly commenced on 28 September 2020: cl 2(1). PHO4 was repealed on the commencement of PHO5: cl 31 of PHO5. PHO5 was, in turn, repealed on the commencement of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 6) 2020 ("PHO6"), on 1 December 2020: cl 2 and cl 37 of PHO6.
2. Clause 5 of both PHO4 and PHO5 provided as follows: 5 Grounds for concluding that there is a risk to public health The basis for concluding that a situation has arisen that is, or is likely to be, a risk to public health is as follows - (a) public health authorities both internationally and in Australia have been monitoring and responding to international outbreaks of COVID-19, also known as Novel Coronavirus 2019, (b) COVID-19 is a potentially fatal condition and is also highly contagious, (c) a number of cases of individuals with COVID-19 have now been confirmed in New South Wales, as well as other Australian jurisdictions, including by means of community transmission.
3. Part 2 of both Orders was titled "Restrictions on gatherings and use of premises". Division 1 of Part 2 related to non-residential premises and contained a series of directions in relation to different types of premises. The plaintiffs emphasised cl 10 of PHO4 (being cl 13 of PHO5), which applied to a "recreation facility (major)", defined in cl 3 to mean "a building or place used for large-scale sporting or recreation activities that are attended by large numbers of people whether regularly or periodically, and includes theme parks, sports stadiums, showgrounds, racecourses and motor racing tracks". Clause 10 of PHO4 provided as follows: 10 Directions of Minister about major recreation facilities (1) The Minister directs that a person who is the occupier of a recreation facility (major) must not allow persons, other than persons engaged in work, to be on the premises unless - (a) admission to the premises is by way of a ticket and each person has been assigned to a seating area; and (b) the total number of persons is the lesser of 25% of the capacity of the premises or 10,000 persons. (2) Subclause (1) does not apply in circumstances where - (a) admission to the premises is limited to a maximum of 500 persons, and (b) the size of the premises is sufficient to ensure there is at least 4 square metres of space for each person on the premises. (3) The Minister directs that the occupier of premises of a type listed in Schedule 1 (for example, food and drink premises) that are within a recreation facility (major) must not allow persons to be on the premises unless the size of the premises is sufficient to ensure there is at least 4 square metres of space for each person on the premises.

PHO6

1. As noted above, PHO6 entered into force on 1 December 2020, and repealed and replaced PHO5: cl 2, cl 37. PHO6 increased the cap on attendees at outdoor public gatherings to 50 people: cl 26(1). The direction concerning outdoor public gatherings, in cl 26, also included a new provision, in cl 26(4), which provided: (4) This clause does not apply to an outdoor public gathering if - (a) the gathering is for the purpose of a protest or demonstration about a government or political matter, and (b) the gathering consists of no more than 500 persons, and (c) the person who is principally responsible for organising the gathering - (i) has and complies with a COVID-19 Safety Plan that addresses the matters required by the approved COVID-19 safety checklist set out opposite the type of event in column 3 of Schedule 1 approved on the date specified in column 4 of Schedule 1, and (ii) keeps a copy of the COVID-19 Safety Plan while the gathering occurs at the place the gathering is held or begins and makes it available for inspection by an authorised officer or a police officer as requested.

The approach to assessing burdens on the implied freedom

1. As I have noted above, the Summons challenges the validity of s 7(2) (and s 10) of the Public Health Act and, in the alternative, the validity of cl 18(1) of PHO4 and cl 22(1) of PHO5. The plaintiffs formulated their relief in this manner in response to the uncertainty that they submitted attends the level at which the implied freedom analysis should be undertaken. They submitted in this respect that there was an inconsistency between the approach of the High Court in Wotton and the approach of Court in Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 ("Adelaide City"). In the latter case, the Court had, in the plaintiffs' submission, applied the implied freedom analysis to an exercise of executive power in the form of a local government by-law.
2. The defendants submitted that the implied freedom analysis should be conducted in relation to s 7(2) of the Public Health Act rather than the orders. They submitted there was no doubt regarding the applicable approach, which has been stated by the High Court in a series of decisions commencing with Wotton and encapsulated in the statement of Kiefel CJ, Gageler, Keane and Steward JJ in Commonwealth v AJL20 (2021) 273 CLR 43; [2021] HCA 21 at [43] (citations omitted): "When the Executive executes a statute of the Commonwealth, as opposed to exercising its common law prerogatives and capacities or whatever authority is inherent in s 61 of the Constitution, the constitutional question is whether the statutory authority conferred on the Executive is within the competence of the Parliament; the statutory question is whether the executive action in question is authorised by the statute. If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises. The question then is whether the executive action in question was authorised by the statute, with that question to be resolved by reference to the statute as a matter of administrative law. As French CJ, Gummow, Hayne, Crennan and Bell JJ said in Wotton v Queensland: '[I]f, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case … does not raise a constitutional question, as distinct from a question of the exercise of statutory power.'"

Section 7 of the Public Health Act

1. I have set out the terms of s 7 of the Public Health Act at [28] above. The plaintiffs submitted that on its proper construction, s 7(2) was a broad and "unhedged" provision. By contrast with the provisions in issue in Palmer and Cotterill VSC, which they submitted involved appropriately "hedged" statutes of narrower application, the language in s 7(2) was permissive and was designed to maximise the Minister's flexibility to deal with a range of scenarios. The plaintiffs also submitted that due to the breadth of the power in s 7(2), there was no ready answer to the question of whether it was valid in all its potential operations. On the other hand, there was a "clear-cut" answer as to whether this particular exercise of the discretion to prevent political communication offended the implied freedom. It followed, in the plaintiffs' submission, that the analysis of the constitutional question should take place at the level of the executive instrument.
2. The defendants argued that s 7(2) was not an unhedged provision. They pointed to what they described as four constitutionally significant qualifications on the exercise of the power in s 7(2). First, it must be exercised in accordance with the objects of the Public Health Act. Secondly, it may only be exercised where the Minister considers it necessary to deal with a situation which the Minister considers on reasonable grounds to be a "risk to public health… and its possible consequences". Thirdly, the requirement of necessity meant the relevant action or order must be "appropriate and adapted" or "reasonably necessary" to deal with that risk and the possible consequences. Finally, the defendants relied on previous single judge decisions which have held that the Public Health Act imposes no burden on political communication in circumstances where the public assembly is authorised pursuant to the Summary Offences Act 1988 (NSW).
3. The plaintiffs argued that each of the qualifications on which the defendants relied was either not unique to the Public Health Act (in the case of the requirement of reasonableness which they submit is a "standard implied condition") or did not in fact affect the scope of the power conferred on the Minister under s 7(2). They relied on the defendants' arguments about the need for s 7 to confer flexibility to meet different risk scenarios as in fact supporting their argument that the section requires reading down. They also submitted that s 7 could apply in such a range of circumstances that it was necessary to assess it by reference to the impugned orders as a particular example of the application of the power, relying on what Niall JA said in Cotterill VSC at [198].

Does s 7(2) of the Public Health Act impose an unjustifiable burden on the implied freedom of communication on government and political matters?

Does the impugned law effectively burden the freedom in its terms, operation or effect?

1. Whether a law imposes a burden on the implied freedom is to be determined by reference to the law's effect on political communication as a whole, as opposed to the effect on an individual or group's preferred mode of communication: APLA Pty Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [381]; Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 at [35]-[36], [119]. As Nettle J stated in Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 ("Clubb") at [247]: "Where a restriction is limited to a preferred mode of communication, it will not infringe the implied freedom unless it significantly compromises the ability of affected persons to engage in political communication and, even then, only if and because it has a significant effect on political communication as a whole."
2. Both parties agreed that although s 7(2) of the Public Health Act did not itself prohibit or limit political communication, an exercise of the power that the subsection conferred could have that effect and thus burden the implied freedom. The parties parted ways on the extent of that burden: 1. The plaintiffs submitted that once the section was triggered, s 7(2) conferred a broad power which could prohibit public protest, accompanied by criminal sanction; with the legislative precondition to the operation of s 7(2) resting on the fluid concept of risk, actual or likely. Senior Counsel for the plaintiffs submitted that one needs to look no further than the terms of PHO4 and PHO5 to see that the law burdened the implied freedom in its terms, operation or effect. 2. The defendants accepted that s 7(2) could operate in a manner that burdened the implied freedom, but emphasised that the section was 'content neutral' and 'viewpoint neutral', as it was aimed at a wholly different purpose from proscribing any particular form or content of political expression.
3. I accept that while the power in s 7(2) does not impose a direct burden on the implied freedom of communication on governmental and political matters, the Minister may effectively burden the implied freedom by an exercise of power, as cl 18 of PHO4 and cl 22 of PHO5 demonstrate. However, the purpose of the section is not directed at imposing any such burden, and the imposition of such a burden in pursuit of the legislative purpose is limited by the manner in which the section comes to apply, in s 7(1), and the constraints on the exercise of the power, in s 7(2). True it is, as the plaintiffs emphasised, that the section is triggered, in s 7(1), by the Minister forming a view as to the risk or likely risk to public health. However, as I have noted above, the Minister has to consider that a situation has arisen that is a risk or a likely risk, to public health. The nature and extent of the identified risk is then integral to the requirement in s 7(2) that any action or directions must (in the Minister's opinion) be necessary to deal with the risk and its possible consequences. As the defendants submitted, the nature and extent of the risk and its possible consequences will determine the reasonability of the Minister's response in terms of the action taken or order made.

Is the purpose of the law legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

1. The purpose with which this aspect of the test is concerned is the mischief to which a law is directed, which can be identified from the operation of the provision itself and the objects of the statute: Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [101], [208], [321]. It was common ground that protection of public health is the purpose of the Public Health Act (see s 3), which is legitimate in the sense of being compatible with the constitutionally prescribed system of representative and responsible government.

Can the burden on the freedom imposed by the law be characterised as justifiable?

Is the law suitable to achievement of the purpose, in the sense of having a rational connection to that purpose?

1. The assessment of the suitability of a law requires that the law has a rational connection to its purpose; and it will have that connection "if the means for which it provides are capable of realising that purpose": Comcare at [33]. The assessment does not involve a value judgment about whether the legislature could have approached the matter in a different way: McCloy at [80].
2. In LibertyWorks, Edelman J stated at [201] that a provision will rarely fail for not being suitable in the sense that the means employed are incapable of realising the statute's ostensible purpose, for the "obvious reason that Parliament's purpose is itself ascertained and derived in part from the expected operation of the provision". If the provision does fail this stage, it will usually mean that the provision is either truly arbitrary as it serves no purpose at all, or that Parliament has misstated its purpose.
3. In submitting that s 7(2) was not suitable, the plaintiffs again relied on the extent of the power of prohibition conferred on the Minister, as the Minister deems the making of a direction to be necessary to deal with a public health risk. They submitted that the section was not tailored nor targeted and was not directed to a particular circumstance that one could identify as requiring that the constitutional guarantee be overridden. Since the legislation restricted freedom of movement and was designed to abrogate the principle of legality, it ought to be fettered, but apart from the constraints of time and reviewability, s 7(2) of the Public Health Act was not fettered in any way in terms of its consequences on the implied freedom. Further, the 90-day time limit was not meaningful in the context of freedom of political communication; that period "was an entire election campaign" and there was nothing in the legislation preventing the Minister from making the same regulation again at the end of the 90-day period.
4. For the reasons I have set out above, the power in s 7(2) is flexible, and necessarily so having regard to the range of "situations" that might arise; but it is not unconfined. In particular, it is formulated by reference to what is necessary to deal with a situation that has arisen which presents a risk or a likely risk to public health and its possible consequences. As the defendants submitted, framed in this way, the power in s 7(2) expands and contracts in line with the particular risk to public health being faced. There is an obvious rational connection between the purpose of the measure and the measures adopted to achieve that purpose.

Is the burden on the freedom necessary, in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom?

1. The test of necessity is not a prescription to engage in the assessment of the relative merits of competing legislative models: Clubb at [269] (Nettle J), [407] (Edelman J). Rather, the requirement that the alternative measure must be obvious and compelling "allows latitude for parliamentary choice in the implementation of public policy": LibertyWorks at [202]. The mere existence of another measure which can achieve the same purpose will not be sufficient for a conclusion of lack of justification. The alternative measure must also be equally practicable, in the sense that it achieves the same legislative purpose to the same degree, which is to say it must be possible to conclude that the alternative legislative measure is equally as effective: Farm Transparency International Ltd v State of New South Wales (2022) 403 ALR 1; [2022] HCA 23 at [46] ("Farm Transparency"); Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 at [114] ("Tajjour").
2. The plaintiffs submitted that s 7(2) was not necessary given the existence of alternative and equally practicable measures which were less restrictive of the implied freedom, giving as an example the equivalent measures in the Victorian PHW Act. The existence of alternative and equally practicable measures demonstrated the lack of necessity of s 7(2), which by comparison was broader and contained fewer proportionality checks and balances. The plaintiffs submitted that s 7(2) was also not necessary because a limitation to the effect of the disapplication sought could have been expressly stated, expression of which would be warranted given the character of the law as a draconian, broad-based and fundamental infringement of common law rights. Further, there was no mechanism in s 7(2) for somebody to seek to have the law not apply to them in circumstances where it would impinge on the implied freedom. The plaintiffs contrasted this with the provision in Wotton which featured a "safety valve", which enabled an application to be made to approve a particular communication.
3. The defendants submitted that the provision was necessary in the sense that there was no obvious and compelling alternative that was equally practicable and available. The alternatives to which the plaintiffs pointed were not equally practicable and available measures which would achieve an identical purpose while reducing the burden on the implied freedom. Rather, those measures were less flexible and effective, vague in their intended effect, ignorant of the nature of the legislative scheme in NSW, and had not been proven to involve the imposition of a significantly lesser burden.

Is the law adequate in its balance, that is to say, not unduly burdensome on the freedom taking account of the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom?

1. The adequacy assessment directs attention to whether there is a balance in the sense of there being an "adequate congruence between the benefits gained by the law's policy and the harm it may cause": McCloy at [87]; see also Palmer at [59] (Kiefel CJ and Keane J), [199] (Gordon J), [275] (Edelman J). Logically, the greater the restriction on the implied freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate: McCloy at [87]. Additionally, the fact that a law has a "powerful public, protective purpose assumes a special importance" in the assessment: LibertyWorks at [85].
2. LibertyWorks concerned a challenge to provisions of the Foreign Influence Transparency Scheme Act 2018 (Cth), which established a scheme of registration for persons undertaking certain activities on behalf of foreign governments and other foreign principals, "in order to improve the transparency of their activities on behalf of foreign principals": s 3. Kiefel CJ, Keane and Gleeson JJ described the Act in broad terms as requiring a person to register details about themselves and their "foreign principal" (defined to include a foreign government) with the Secretary of the Attorney General's Department, where the person and the foreign principal expect the person to communicate or distribute information or material to the Australian public or a section thereof under an arrangement with, in the service of or under the order or direction of a foreign principal with the sole or substantial purpose of political or governmental influence. Their Honours described the Act as having a "powerful public, protective purpose", which was not outweighed by the burden on the implied freedom which was modest: at [85].
3. Similarly, in Cotterill VSCA, the Court described the statutory preconditions to imposing a burden on the implied freedom as the "hallmarks of a proportionate response to a serious risk" and the benefit in responding to that risk was not considered to be outweighed by the burden on the implied freedom: at [117]. In Palmer at [60]-[61], Kiefel CJ and Keane J referred to the important public purpose of protecting health and life during the COVID-19 pandemic.

Conclusion on s 7(2) of the Public Health Act

1. It follows that I do not accept the plaintiffs' submission that s 7(2) of the Public Health Act imposes an unjustified burden on the implied freedom of communication on governmental or political matters. Prayer 2 of the Summons should be dismissed.
2. By Prayer 1 of the Summons, the plaintiffs had sought a declaration that s 7(2) should be read down so as to comply with the constitutional limitations on the power, pursuant to s 31 of the Interpretation Act 1987 (NSW). So read, it would not, in their submission, confer on the Minister power to make directions (such as PHO4 and PHO5) that prohibited or restrained political communication, including by prohibiting political outdoor public gatherings of more than 20 and less than 500 people. However, provisions such as s 31 of the Interpretation Act operate to the extent that a law is "invalid in any of its potential operations": Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [34]. I have not reached that conclusion in respect of s 7(2), properly construed. Prayer 1 of the Summons should be dismissed.
3. Prayer 4 of the Summons was of a consequential nature, contending that if either of the arguments the subject of Prayers 1 and 2 was accepted, then s 7(2) would not support the making of cl 18 of PHO4 and cl 22 of PHO5. Prayer 4 should be dismissed.

Clause 18(1) of PHO4 and clause 22(1) of PHO5

1. The plaintiffs sought to review the validity of cl 18(1) of PHO4 and cl 22(1) of PHO5 on the basis that s 7(2) was properly construed as conferring a statutory power of a breadth that was not amenable to analysis by reference to the constitutional question first identified in Wotton and applied in the subsequent cases to which I have referred above. For the reasons I have given, s 7(2) is to be analysed by reference to that constitutional question. Consistently with the authorities to which I have referred, in circumstances where s 7(2) is constitutionally valid, the validity of cl 18(1) of PHO4 and cl 22(1) of PHO5 rests upon answering the statutory question, of whether those orders are authorised by s 7(2). The plaintiffs did not seek to challenge the validity of those clauses of PHO4 and PHO5 on that basis, instead limiting their challenge to one of constitutional validity. Accordingly, Prayers 3 and 5 of the Summons should be dismissed.

Section 10 of the Public Health Act

1. The plaintiffs also submitted that s 10 of the Public Health Act, insofar as it made it an offence to fail to comply with a direction prohibiting or restraining political communication (such as PHO4 and PHO5), was invalid for impermissibly burdening the implied freedom. They submitted that even though the Court was not determining the charges under s 10, the Court would not be providing an advisory opinion by examining the constitutionality of that provision. That was because s 7 should not be read in an academic sense without reference to the real-world effects which were imposed by the related offence provision, referring in this context to Farm Transparency.
2. The plaintiffs accepted that there was a legitimate basis for criminalising conduct which posed a threat to public health in certain circumstances. However, they submitted that s 10 was even less proportionate than s 7, given the severe criminal consequences it imposed in respect of a failure to comply with directions prohibiting certain political protests, which went far beyond what was necessary or proportionate to protect public health.
3. Alternatively, the plaintiffs submitted that s 10 should be read down pursuant to s 31 of the Interpretation Act so as not to criminalise attending a political outdoor public gathering of more than 20 people and less than 500 people. This could be achieved by reading the phrase "reasonable excuse" in s 10 as including engaging in political communication or participating in a political outdoor public gathering. On either approach, the plaintiffs submitted that the notices issued to them were invalid.
4. The defendants submitted that the plaintiffs' challenge to s 10 must fail because they had failed to analyse the law using the structured proportionality test as required, and had not identified any alternative measure, let alone one which was obvious and compelling, that was equally practicable and significantly less burdensome. In response to this contention, the plaintiffs submitted that because the function of s 10 was to enforce a Minister's direction under s 7(2), there was no practical difference between the limitations on the scope of the power in s 7 as effected by the implied freedom and the limitations on the scope of s 10.
5. In substantive response to the plaintiffs' submissions, the defendants submitted that the penalties imposed by s 10 were scalable and comparable to penalties imposed in respect of similar offences, including the offence of unlawful assembly under s 545C of the Crimes Act. The plaintiffs took issue with this submission on the basis that there was a significant difference between the penalties available under s 10 (see [31] above) and the maximum penalty for an offence under s 545C of the Crimes Act, which was five penalty units.

Conclusion

1. The plaintiffs' challenge to the validity of the Penalty Notices depended upon establishing the invalidity of either the provision authorising the respective directions with which they failed to comply (s 7 of the Public Health Act), or the provision authorising the bringing of the charge (s 10 of the Public Health Act). The plaintiffs have not succeeded in ether respect. The Summons must be dismissed.
2. The parties agreed between them that there is to be no order as to costs. Accordingly, I make the following order: 1. The Summons is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2023