[2005] HCA 44
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1
[2017] HCA 43
Burton v Director of Public Prosecutions [2022] NSWCA 242
Clubb v Edwards (2019) 267 CLR 171
[2019] HCA 11
Coleman v Power (2004) 220 CLR 1
[2004] HCA 39
Comcare v Banerji (2019) 267 CLR 373
Source
Original judgment source is linked above.
Catchwords
[2005] HCA 44
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1[2017] HCA 43
Burton v Director of Public Prosecutions [2022] NSWCA 242
Clubb v Edwards (2019) 267 CLR 171[2019] HCA 11
Coleman v Power (2004) 220 CLR 1[2004] HCA 39
Comcare v Banerji (2019) 267 CLR 373[2022] HCA 23
Kassam v HazzardHenry v Hazzard (2021) 106 NSWLR 520[2021] NSWCA 299
Kassam v HazzardHenry v Hazzard (2021) 393 ALR 664[2021] NSWSC 1320
Knight v Victoria (2017) 261 CLR 306[2017] HCA 29
LibertyWorks Inc v Commonwealth (2021) 95 ALJR 490[2021] HCA 18
Maloney v R (2013) 252 CLR 168[2013] HCA 28
McCloy v New South Wales (2015) 257 CLR 178[2015] HCA 34
Miller v TCN Channel Nine Pty Ltd (1991) 161 CLR 556 at 613-614[1986] HCA 60
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900[2020] NSWCA 160
Palmer v State of Western Australia (2021) 272 CLR 505
[2021] HCA 5
Tajjour v New South Wales (2014) 254 CLR 508
[2014] HCA 35
Tey v New South Wales [2023] NSWSC 266
Thomas v Mowbray (2007) 233 CLR 307
[2007] HCA 3
Unions NSW v New South Wales (2013) 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
Judgment (25 paragraphs)
[1]
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)
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.
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.
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).
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?"
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).
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.
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.
[4]
Mr Stratton and the Black Lives Matter protest
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.
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.
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.
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.
[5]
Ms Pandolfi and the Transgender Rights protest
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.
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.
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.
[6]
The plaintiffs were engaging in a form of political communication
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.
[7]
The parties' evidence
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.
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.
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.
[8]
Legislative Scheme
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.
[9]
Public Health Act 2010 (NSW)
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.
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".
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.
[10]
PHO4 and PHO5
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.
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.
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.
[11]
PHO6
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.
[12]
The approach to assessing burdens on the implied freedom
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.
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.'"
[13]
Section 7 of the Public Health Act
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.
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).
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].
[14]
Does s 7(2) of the Public Health Act impose an unjustifiable burden on the implied freedom of communication on government and political matters?
[15]
Does the impugned law effectively burden the freedom in its terms, operation or effect?
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."
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.
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.
[16]
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?
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.
[17]
Can the burden on the freedom imposed by the law be characterised as justifiable?
[18]
Is the law suitable to achievement of the purpose, in the sense of having a rational connection to that purpose?
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].
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.
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.
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.
[19]
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?
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").
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.
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.
[20]
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?
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].
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].
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.
[21]
Conclusion on s 7(2) of the Public Health Act
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.
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.
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.
[22]
Clause 18(1) of PHO4 and clause 22(1) of PHO5
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.
[23]
Section 10 of the Public Health Act
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.
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.
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.
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.
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.
[24]
Conclusion
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.
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.
[25]
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
The defendants submitted that most of the plaintiffs' evidence was not relevant to the determination of their constitutional challenge. They submitted that the role of the Court when determining the constitutional validity of legislation is to ascertain the relevant facts. In so doing, the Court is not bound by the ordinary rules of evidence, and can establish those facts by judicial notice or by way of "rational considerations": Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [630]; Maloney v R (2013) 252 CLR 168; [2013] HCA 28 at [351] and [353]. In the absence of a judicial review challenge to PHO4 or PHO5, the defendants submitted that only two facts were relevant to the plaintiffs' challenge, neither of which was in dispute: (i) the making of those orders; and (ii) that the plaintiffs had been charged for breaching directions in those orders. It was then for the Court to work through the test that the High Court had formulated in recent cases on the basis of those facts.
Notwithstanding their primary position, the defendants read an affidavit of Dr Jeremy McAnulty, affirmed on 2 March 2022. In late January 2020, Dr McAnulty was placed in the role of Deputy Public Health Controller for the COVID-19 response in NSW, a role which evolved into Executive Director, COVID Public Health Response Branch. In his affidavit, Dr McAnulty outlined the nature of the threat posed by COVID-19 at the relevant times and the background and justification for the public health orders that were in force during that period.
Specifically in relation to public gatherings, Dr McAnulty considered that all such gatherings involved a risk of transmission of COVID-19, but the likelihood was highest where there were large groups of people crowded together in close proximity, moving between different groups, and speaking, cheering, singing and chanting at a loud volume. Structured public gatherings, such as ticketed sporting events, required that attendees register their attendance for contact tracing details and generally required attendees to be seated, which reduced movement and mixing. The ability to enforce a COVID-19 Safety Plan, and to require those who failed to comply with that plan to leave, was also facilitated by the structure of organised and ticketed events. Unstructured public gatherings involved a higher risk that attendees would not comply with a COVID-19 Safety Plan, and that others would spontaneously join without registering their attendance for contact tracing.
Professor Bennett and Dr McAnulty were the only witnesses who were cross-examined. Both experts accepted that COVID-19 presented serious health risks which warranted precautionary measures, although Professor Bennett expressed the view that such measures should be reviewed once scientific data became available. Dr McAnulty did not disagree with Professor Bennett's assessment of the medical evidence in July 2020 as indicating that there was a very low risk of COVID-19 spreading in outdoor settings. He was not aware of any scientific or epidemiological basis for the selection of 20 people in PHO4 or PHO5. He also testified that he could not quantify or provide any basis for the selection of 20 people in PHO4 or PHO5 in terms of the risk of transmission of COVID-19 outdoors. Dr McAnulty gave evidence that as a matter of logic, the more people who are together, the higher the risk of persons being exposed to COVID-19, although the approach at the time, as he understood it, was to try to minimise "any risk at all" of transmission.
During his cross-examination, Dr McAnulty was shown footage of rugby league games where the crowd was cheering, standing up and moving around. The footage was taken from a game that occurred two days after the Black Lives Matter protest on 30 July 2020, and from a game which 14,510 people attended on the same day as the Transgender Rights protest on 10 October 2020. In response, Dr McAnulty said that the riskiness of a particular event depended on factors including the density of people, the likelihood that someone was infectious and the ventilation, and he would need to know the details of the two comparative events to be able to form a view as to their riskiness.
The above summary of the evidence, including the expert evidence, is sufficient to demonstrate that it may have been relevant to a merits review challenge to cl 18(1) of PHO4 and cl 22(1) of PHO5 in the Civil and Administrative Review Tribunal, for which provision is made in s 7(7) of the Public Health Act, and/or to a judicial review challenge to those clauses pursuant to s 69 of the Supreme Court Act 1970 (NSW). However, save for the facts that I have drawn from the evidence in my summary of the issuing of the Penalty Notices, the evidence is not relevant to the constitutional question that I have to decide, in circumstances where, as I conclude below, that question should be answered by reference to the provisions of the Public Health Act.
Section 7(6) refers to the State Emergency and Rescue Management Act 1989 (NSW) (which is defined in the Public Health Act as the "1989 Act"). Section 8 of the Public Health Act makes separate provision for any part of the State for which a state of emergency exists, and applies "if, after consultation with the Minister administering [the 1989 Act], the Minister considers on reasonable grounds that the emergency is, or is likely to be, a risk to public health": s 8(1). Section 8(2) is in similar terms to s 7(2), but provides that the Minister can only take the steps for which it provides "with the Agreement of the Minister administering the 1989 Act". Another difference between s 7 and s 8 is that unless an order made under s 8 is earlier revoked, it expires "when the relevant state of emergency ceases to exist".
In addition to ss 7 and 8, s 9 of the Public Health Act permits the Minister to serve a written order on a public authority, directing the authority to take specified action, where the Minister considers that because of an act or omission of a public authority a situation has arisen that is, or is likely to be, a risk to public health. The specified action the subject of the written order is "to minimise or rectify any adverse consequences of the act or omission": s 9(2).
As noted above, PHO4 and PHO5, which included the relevant directions, were made under s 7(2). The Penalty Notices issued to the plaintiffs alleged that they had committed an offence under of s 10 of the Public Health Act, which provides:
10 Offence not to comply with Ministerial direction
A person who -
(a) is subject to a direction under section 7, 8 or 9, and
(b) has notice of the direction,
must not, without reasonable excuse, fail to comply with the direction.
Maximum penalty -
(a) in the case of an individual - 100 penalty units, or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 50 penalty units for each day the offence continues, or
(b) in the case of a corporation - 500 penalty units and, in the case of a continuing offence, a further 250 penalty units for each day the offence continues.
Clause 18 of PHO4 and cl 22 of PHO5 were in identical terms. I have set out cl 18(1) of PHO4 above at [10]. The full clause provides:
18 Direction of Minister concerning outdoor public gatherings
(1) The Minister directs that a person must not participate in an outdoor public gathering of more than 20 people.
(2) This clause does not apply to a person who is -
(a) engaged in work, or
(b) providing care or assistance to vulnerable persons.
(3) This clause does not apply to the following -
(a) a gathering on premises for which a person is required by clause 7 of this Order to develop and keep a COVID-19 Safety Plan,
(b) a community sporting activity for which a person is required by clause 16 of this Order to develop and keep a COVID-19 Safety Plan,
(c) a gathering listed in Schedule 2 of this Order,
(d) a gathering of persons who are all from the same household,
(e) a gathering for a wedding, a funeral, a memorial or a religious service or a gathering immediately after a wedding, a funeral, a memorial or a religious service,
(f) a gathering to move to a new place of residence or a business moving to new premises,
(g) a gathering to provide emergency assistance to a person or persons,
(h) a gathering necessary to allow a person to fulfil a legal obligation,
(i) a gathering of persons on real property to enable persons to view or inspect the real property for the purposes of the sale or lease of that property,
(j) a gathering of persons at a display home or other display premises to enable persons to view or inspect the display home or display premises for the purpose of the sale or lease of real property.
Clause 7(1) of PHO4, to which cl 18(3)(a) refers, directed occupiers of premises listed in column 1 of Sch 1, which included recreation facilities (major), to develop and comply with a COVID-19 Safety Plan "that addresses the matters required by the approved COVID-19 Safety checklist set out opposite the premises in column 2 of Schedule 1 approved on the date specified in column 3 of Schedule 1". The occupier was also required to keep a copy of the plan on the premises and make it available for inspection by an authorised officer or police officer as requested: cl 7(2). Identical provision was made in cl 7 of PHO5.
Schedule 2 of PHO4 and PHO5, to which cl 18(3)(c) of PHO4 and cl 22(3)(c) of PHO5 referred, was titled "Exempted Gatherings" and contained a list of gatherings including those: at a court or tribunal (item 7); at Parliament for the purpose of its normal operations (item 8); at a supermarket, a market that predominantly sells food, a grocery store or shopping centre (but not a retail store in a shopping centre) that is necessary for the normal business of the supermarket, market, store or centre (item 9); or at an outdoor space for the purpose of transiting through the place (for example Pitt Street Mall) (item 13).
Clause 24 of PHO 4 (cl 30 of PHO5) provided that the Minister "may, in writing and subject to the conditions the Minister considers appropriate, grant an exemption to this Order or specified provisions of this Order".
Wotton involved a challenge to conditions of a parole order made with respect to the plaintiff under the Corrective Services Act 2006 (Qld), which precluded him from attending meetings on Palm Island without the prior approval of a corrective services officer, and from receiving any direct or indirect payment or benefit from negotiating or dealing with the media through a representative. The plaintiff also challenged the provision of the Corrective Services Act pursuant to which those conditions were imposed. The basis of his challenge was that both the order and the statute impermissibly infringed the implied freedom of political communication. The Commonwealth submitted that the implied freedom did not apply to a particular exercise of a statutory power or discretion. French CJ, Gummow, Hayne, Crennan and Bell JJ accepted that submission, stating at [22] (which includes the passage extracted in AJL20):
"The Commonwealth submitted that: (i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits; (iv) if, 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, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power. These submissions, which were supported by Victoria, should be accepted."
It followed that the resolution of Wotton turned "upon the restraint imposed by the Constitution upon the legislative power of the Queensland legislature", with the inclusion of the particular conditions in the parole order being for agitation in other proceedings: at [24], see also [74] (Kiefel J).
The approach in Wotton has been followed in cases like Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 ("Comcare"), with the plurality (Kiefel CJ, Bell, Keane and Nettle JJ) stating at [44] that in circumstances where an empowering statute does not impermissibly burden the implied freedom, the exercise of a power or discretion under that statute by a decision-maker does not raise a constitutional question. Writing separately, Gageler J summarised the application of the implied freedom to provisions which empower an exercise of an administrative discretion by reference to the decision in Wotton (at [96]):
"Wotton establishes that the validity of a law which burdens the freedom of political communication by empowering an exercise of an administrative discretion is to be determined by asking in the first instance whether the burden is justified across the range of potential outcomes of the exercise of that discretion. If the burden is justified across the range of potential outcomes, that is the end of the constitutional inquiry. The law is valid and the validity of any particular outcome of the exercise of discretion is to be gauged by reference solely to the statutory limits of the discretion. There is no occasion to consider whether the scope of the discretion might be read down in order to ensure that the law is within constitutional power. There is in consequence no occasion to consider whether a particular outcome might fall within the scope of the discretion as so read down, and there is accordingly no occasion to consider whether a particular outcome falls within the scope of the discretion having regard to the implied freedom."
Wotton was also applied in Palmer v State of Western Australia (2021) 272 CLR 505; [2021] HCA 5 ("Palmer"). Palmer concerned directions made pursuant to s 67 of the Emergency Management Act 2005 (WA) ("EM Act") which had the effect of closing the WA border. Section 67 applied during a state of emergency. Section 56 of the EM Act provided that the responsible minister could declare a state of emergency if: he or she has considered the advice of the State Emergency Coordinator; is satisfied that an emergency "had occurred, is occurring, or is imminent"; and is satisfied that extraordinary measures are required to prevent or minimise, inter alia, loss of life, and prejudice to the safety, or harm to the health, of persons or animals. The plaintiff alleged that the directions and/or the authorising provisions in the EM Act contravened s 92 of the Constitution.
Kiefel CJ and Keane J, writing together, and Gageler J, Gordon J, and Edelman J, writing separately, accepted that the validity of the directions in issue in that case was to be determined by reference to the authorising provisions of the relevant statute: [63], [67] (Kiefel CJ and Keane J), [118] (Gageler J), [201]-[202] (Gordon J), [224] (Edelman J). Gageler J relevantly stated at [119]-[120]:
"Where executive action purporting to be taken pursuant to statute imposes a burden argued to infringe the implied constitutional guarantee of freedom of political communication or the express constitutional guarantee of absolute freedom of trade, commerce and intercourse among the States, two distinct questions accordingly arise: one constitutional, the other statutory. The statutory question is whether the executive action is authorised by the statute. The constitutional question is whether the statute complies with the constitutional guarantee if, and insofar as, the statute authorises the executive action.
Those two distinct questions arise in respect of the making of subordinate or delegated legislation in the same way as they arise in respect of any other executive action pursuant to statute. Our conception of subordinate legislation, as Dixon J explained in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan, is that it is wholly dependent for its force and effect on the enactment, and the continuing operation of the statute by which it is authorised."
(Emphasis added).
The sentence that I have emphasised in the above extract is relevant to the argument that the plaintiffs advanced in their submissions in reply, namely, that PHO4 and PHO5 were legislative in character, such that the implied freedom analysis should be applied to them directly. Even if the orders were to be characterised as legislative rather than administrative (noting the observations in Kassam CA that the two are not necessarily mutually exclusive (at [77], [155])), it would not follow that the analysis should be conducted at the level of the orders. The question of whether the orders were authorised by the Public Health Act would remain.
In Palmer, Kiefel CJ and Keane J foreshadowed that "[i]n some cases, difficult questions may arise because the power or discretion given by the statute is broad and general", although no such question arose in that matter (at [68]). Gageler J also observed that the statutory and constitutional questions "could converge" into the hypothetical question: "if the subordinate legislation in issue had been enacted as legislation, would that legislation have been compliant with the constitutional guarantee in issue?": at [122] and [124]. By way of example, his Honour referred to executive action undertaken in the exercise of a discretionary power conferred by a statutory provision that is "so broadly expressed as to require it to be read down as a matter of statutory construction to permit only those exercises of discretion that are within constitutional limits": at [122] (emphasis added).
The legislation in issue in Adelaide City involved a challenge to by-laws which were made pursuant to a statutory provision that authorised a council to make by-laws "for all or any of the following purposes" including, relevantly, "for the prevention and suppression of nuisances" and "generally for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants". Crennan and Kiefel JJ observed that the statutory provision challenged in Wotton conferred a discretion the exercise of which was conditioned by reference to what was reasonably necessary. Their Honours noted that relevant to consideration of legislation of that nature was what Brennan J had said in Miller v TCN Channel Nine Pty Ltd (1991) 161 CLR 556 at 613-614; [1986] HCA 60, to the effect that where a discretionary power, "in its own terms", is so qualified as to confine the area for its exercise to constitutional requirements, that power will be valid (at [216]). Crennan and Kiefel JJ observed that there was no similar conditioning of the discretion conferred by the provision authorising the making of by-laws that were in issue in that case (at [216]).
Although Gageler J in Palmer referred to legislation formulated in broad terms as an example of a situation in which the constitutional and statutory inquiries may converge, like Kiefel CJ and Keane J, and Gordon J, his Honour did not decide the validity of the directions that were in issue on that basis, stating at [126]:
"The problem with conflating the statutory and constitutional questions in that manner, however, was that treating the Directions as if they had been enacted as Western Australian legislation failed to acknowledge the constitutional significance of critical constraints built into the scheme of the Act which sustained the Directions. The hypothetical analysis simplified the constitutional question to the point of obscuring the manner of its answer."
The Victorian Court of Appeal made a similar observation in Cotterill v Romanes [2023] VSCA 7 at [79] ("Cotterill VSCA"). Cotterill relevantly concerned two directions made pursuant to the emergency powers in the Public Health and Wellbeing Act 2008 (Vic) ("Victorian PHW Act"), namely the Stay at Home Directions (Restricted Areas) (No 14) made on 27 August 2020 by Victoria's Deputy Public Health Commander, and the Stay Safe Directions (Melbourne) (No 2) made on 28 October 2020 by Victoria's Chief Health Officer. The August directions prohibited persons ordinarily resident in the greater Melbourne area from leaving home except for one of a number of permitted reasons, which included engaging in exercise but did not include engaging in protest, or any other form of political communication. The October directions provided that a person could not arrange to meet, organise or intentionally attend a gathering of more than nine other persons for a common purpose at a public place unless an exception applied. Again, there was no exception for engaging in protest or any other form of political communication. The plaintiff sought declarations that parts of the two directions were invalid because the directions, or alternatively the emergency powers, impermissibly infringed the implied freedom.
The plaintiffs in the present case relied on the decision of Niall JA at first instance, in Cotterill v Romanes [2021] VSC 498 ("Cotterill VSC"), to support their argument that the question referred to at [39] is unsettled. However, his Honour concluded that whether the implied freedom had been infringed was to be answered by reference to the authorising provisions in the Victorian PHW Act rather than the impugned directions. Niall JA accepted that "where there is both an exercise of legislative power and administrative power, the McCloy analysis is, generally speaking, to be applied at the level of the legislative power", with the specific exercise of power "relevant only to identify the power in issue, and perhaps illustrate its legal and practical effect": at [167].
The Court of Appeal (Emerton P, McLeish and Kennedy JJA) dismissed the plaintiffs' appeal from Niall JA's decision. In addressing the ground of appeal about the appropriate level of analysis from first principles (at [77]), the Court stated that "the obvious starting point for constitutional analysis is the statute, and in particular, whether the authorising provisions conferring executive power fall within the legislative power of the Parliament": at [79]. Their Honours further stated that "to proceed directly to the impugned exercise of executive power" would, in most cases, "conflate issues of law and fact or obscure the true scope of that power": at [79].
It is thus appropriate in the present case to start with the authorising provision in the Public Health Act, noting, as the Victorian Court of Appeal recognised in Cotterill VSCA, that the fact that the analysis commences with the statute "does not mean that it will necessarily end there": at [87]. The defendants accepted that PHO4 and PHO5 could fall to be examined directly in order to determine their compatibility with the implied freedom, but only if the power in s 7(2) of the Public Health Act was consistent with Gageler J's example in Palmer at [122], to which I have referred above at [48].
Although the plaintiffs focused considerable attention in their submissions in reply on the provisions that were the subject of analysis in Palmer and Cotterill, to support an argument that s 7(2) did not contain any equivalent constraints, a comparative exercise tends to distract from the task of focusing on the terms of the section in issue. Pursuant to s 7(1), the 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". Although the risk to public health "need not have materialised at the time of the making of any order under s 7", s 7(1) does require a "situation" to have arisen which the Minister considers is or is likely to be a risk to public health: Kassam CA at [50] (Bell P).
The plaintiffs emphasised the amorphous nature of "risk", and that s 7(1) did not impose what they submitted would be the higher bar of Ministerial satisfaction (noting that the language of "satisfaction" was used in the provisions at issue in Palmer). However, the legislature's selection of "risk" should not be divorced from the text that qualifies it. The focus of the subsection is consideration by the Minister (on reasonable grounds) that there is an existing situation that is or is likely to be a risk to public health. I have referred above to the interpretation of "public health" in this statutory context.
If the precondition in s 7(1) is satisfied, s 7(2) confers a broad power to take action or make directions, the exercise of which is circumscribed by what "the Minister considers necessary to deal with the risk and its possible consequences". In Kassam v Hazzard; Henry v Hazzard (2021) 393 ALR 664; [2021] NSWSC 1320 ("Kassam NSWSC"), Beech-Jones J construed "necessity" in this context as meaning "appropriate and adapted": at [25]. In exercising the power in s 7(2), then, the Minister must consider that the action or direction is appropriate and adapted to dealing with the actual or likely risk to public health that has been identified in s 7(1) and its possible consequences.
In addition, and as a matter of implication, the power in s 7(2) is qualified by the requirement that it be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [26], [64] and [88]-[92]; Kassam NSWSC at [26]; Kassam CA at [52]. Although the plaintiffs in their reply submissions sought to downplay this qualification on the basis that is "implied into every statute that authorises executive action", the requirement of reasonableness has long been recognised as a limitation on disproportionate exercises of power. Any view that the Minister forms as to the necessity of an action or order under s 7(2) must be formed "through an intelligible process of reasoning" on the basis of the information before the Minister at the relevant time: Palmer at [158] (Gageler J). As Beech-Jones J observed in Kassam NSWSC, any consideration of an order under s 7(2) on the ground of unreasonableness "is to be undertaken by reference to the objects of the [Public Health Act] which are exclusively directed to public safety" (at [10]; see also Kassam CA at [51]). Protection of the health and safety of the public is, of course, the paramount object of the Public Health Act, in s 3(2).
Section 7(3) of the Public Health Act "supplies an example of the kind of order that may be made pursuant to s 7(2)", as opposed to constituting a separate source of power: Kassam CA at [55]. That orders may include segregation or isolation of particular individuals located in any part of the State that is declared a public health risk area, and may prevent access to that area, either entirely or subject to permission, highlights the seriousness of the risks and possible consequences with which the Minister may need to deal under the section. The plaintiffs emphasised the scope of potential action and orders, but such actions are always subject to the Minister considering that such action is necessary (in the sense of being appropriate and adapted) to deal with the risk or likely risk and its possible consequences.
The requirement, in s 7(4), to publish an order in the New South Wales Government Gazette as soon as practicable after it is made (although failure to do so will not invalidate it) points to the potentially broad-reaching effect of such an order: Kassam CA at [56]. However, s 7(5) provides an important limitation, prescribing a 90-day limit on the operation of an order under s 7(2); and there is no power for the Minister to extend an order. It follows that any further direction requires the Minister to consider whether s 7 applies (see s 7(1)) and whether any directions are necessary to deal with the risk to public health to which s 7(1) refers and its possible consequences: Kassam CA at [57].
Finally, s 7(7) confers a right of review to the NSW Civil and Administrative Tribunal, pursuant to the Administrative Decisions Review Act 1997 (NSW), of any action taken by the Minister under this section "other than the giving of a direction by an order under this section", and "any direction given by such an order". In addition to the express conferral of an entitlement to merits review, exercises of power under s 7 would be amenable to judicial review pursuant to s 69 of the Supreme Court Act 1970. The defendants submitted, and I accept, that the following issues could be raised on an application for judicial review:
1. Whether, for the purposes of s 7(1), there were reasonable grounds for engaging the power and whether the Minister's views as to the existence of a risk or the likelihood of a risk to public health were reasonable.
2. Whether the action taken or directions made under s 7(2) involved a reasonable exercise of that power, noting the statutory test.
The power conferred by s 7(2) of the Public Health Act reflects a legislative intention to confer on the Minister "the maximum flexibility to counter or address the risks to public health which could be severe, fast-moving and wide-ranging": Kassam CA at [129] (Bell P). At the same time, however, the power is qualified by reference to the circumstances in which the section applies, the basis on which action can be taken or orders made, the period for which orders can be in force and the reviewability of exercises of the power. In my view, those qualifications are such that the constitutional analysis can and should be applied to s 7(2) of the Public Health Act.
Consistently with the extract from AJL20 which I set out in [41] above, the next question is whether, properly construed, that provision can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity. If so, it is valid in all its applications, and no further constitutional issue arises. In Cotterill VSC, Niall JA made an observation in this respect that is apposite (at [199] citations omitted):
"A conclusion that a law is valid in all its operations, though undoubtedly broad, is not as freewheeling as it may sound. First, one is only concerned with the applications or operations that may burden the freedom. In Palmer, Gageler J identified the matter in issue as whether the provisions are valid insofar as they impose a discriminatory burden. Here, the issue is whether sub-ss 200(a) and (d) are valid insofar as they may burden political communication. A conclusion that those provisions are valid in all their operations, means, simply put, that if a decision maker stays within the guiderails, or 'hedging duties' set by the legislation, then any exercise of the power insofar as it results in a burden will be justified for the purposes of the implied freedom. At that point, the Constitution can be put to one side and the issue addressed by asking whether the decision maker complied with the essential statutory preconditions. 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."
I have reached the conclusion as to the appropriate level of analysis without relying on the last of the qualifications on which the defendants relied, which involved the interaction between the Public Health Act and Part 4 of the Summary Offences Act (see [56] above). In broad outline, Part 4 of the Summary Offences Act is titled "Public Assemblies", which is defined in s 22 to mean "an assembly held in a public place, and includes a procession so held". A "public place" is, in turn, defined to mean "a public road, public reserve or other place which the public are entitled to use". Section 23 of the Summary Offences Act permits an organiser of a public assembly to apply by notice to the Commissioner of Police for authorisation. As described by the Court of Appeal in Bassi v Commissioner for Police (NSW) [2020] NSWCA 109 at [12], if the Commissioner notifies the organiser that she does not oppose the holding of the public assembly, the effect of s 24 is that a person who participates in the assembly, "so long as it is conducted substantially in accordance with the previously notified details, will not be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place".
In Commissioner of Police (NSW) v Gray [2020] NSWSC 867 at [51]-[57] ("Gray"), Adamson J concluded that s 24 of the Summary Offences Act should be construed as conferring an immunity on participants in an authorised public assembly from the penalties of a breach of a public health order, including penalties imposed under s 10 of the Public Health Act. In Commissioner of Police (NSW) v Gibson [2020] NSWSC 953, Ierace J noted that the parties had proceeded on the basis of the construction in Gray: at [15]. On appeal from the decision of Ierace J, the Court of Appeal (Bathurst CJ, Bell P and Macfarlan JA) stated that it was "by no means obvious" that s 24 conferred an immunity of that scope, "especially in circumstances where the Public Health Order provides in cl 18(3) a list of exceptions of which an 'authorised public assembly' within the meaning of the Act is not one": Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900; [2020] NSWCA 160 at [13]. Given the position the parties had taken the Court did not say anything further on the issue.
In the recent decision of Tey v New South Wales [2023] NSWSC 266, in which the first defendant advanced the same argument as the defendants raise here about the relationship between the Summary Offences Act and the Public Health Act, Basten AJ concluded that Gray was plainly wrong and should not be followed: at [78]-[81]. There is considerable force in his Honour's conclusion, for the reasons he states. Accordingly, I have not placed any reliance on the argument that the defendants advanced in this respect.
Similar arguments to those that the plaintiff advanced were rejected by Niall JA in Cotterill VSC, and were the subject of consideration in Cotterill VSCA. The plaintiffs in that case had argued that additional constraints such as a narrower definition of an emergency and a more restricted period during which an emergency could subsist, were reasonably available, from which it followed that the challenged provisions were not necessary. In rejecting that contention, their Honours considered that the imposition of additional constraints would not significantly reduce the burden on the implied freedom (at [114]-[116]). Of particular significance for present purposes, their Honours said at [115]:
"As Edelman J pointed out in Palmer, the purpose underlying provisions responding to emergencies requires a great deal of flexibility, and 'it might be expected that the loss of that flexibility by provisions involving a lesser burden would prevent Parliament's purpose being achieved in the same degree'. … It is relevant in that context that the powers in the WA Act were in other respects broader than the emergency powers in the Act. …"
(citations omitted)
The plaintiffs relied on the Victorian PHW Act as presenting a reasonable alternative. That Act requires the responsible Minister, in the first instance, to declare a state of emergency over an area, which can be in place for no more than four weeks but with a power to extend for consecutive periods up to six months (At the relevant time, the maximum period had been extended to 12 months in the case of a declaration in respect of the COVID-19 pandemic.). If such a declaration is in place, authorised officers may exercise a range of powers, including the making of the orders that were the subject of challenge. The Victorian PHW Act adopts a different model of regulation to that in the Public Health Act, in the event of a risk to public health, such as that presented by COVID-19. However, it is not at all clear why adopting that model would represent a lesser burden on the implied freedom of political communication. In their reply submissions, the plaintiffs submitted that measures such as those contained in the Victorian PHW Act would have the effect of appropriately "hedging" the statute and thereby providing "guiderails" within which s 7(2) could be exercised without offending the constitutional guarantee. That submission rests on the plaintiffs' contention, which I have rejected, that aspects of s 7(2) such as the concept of "risk" in s 7 and the state of mind of "considers" meant that the provision was not sufficiently qualified.
As to the plaintiffs' submission that a limitation on the power by reference to the implied freedom could have been included, the Victorian Court of Appeal dismissed this argument in Cotterill VSCA, for reasons which are persuasive. The Court there observed that limiting the exercise of the emergency powers to what was reasonably necessary having regard to the need to preserve the freedom of political communication was not an obvious or compelling alternative means of achieving the legislative purpose of eliminating or reducing serious risks to public health. Not only would it be unconnected to the purpose of the provision, but such a limitation would also effectively modify or sublimate that purpose: at [113].
It has also recently been confirmed that a measure which is assessed to be both suitable and necessary is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom: Farm Transparency at [55]; Comcare at [38]; LibertyWorks at [85].
The plaintiffs submitted that s 7(2) could not be characterised as adequate in its balance given the immense scope of the power it conferred, the low threshold for its engagement (a mere "risk" to public health (as compared to "serious risk" in the Victorian PHW Act)) and the absence of any express limitation to preserve the constitutional freedom of political communication. In their submissions in reply, the plaintiffs emphasised that, read with the penalty in s 10, the power in s 7(2) was so broad in its application and so poorly calibrated as to be obnoxious to the implied freedom.
The defendants, on the other hand, submitted that s 7(2) was adequate in its balance because it only authorised exercises of power that protected the health and safety of the public and were reasonable. They submitted that the provision did not confer on the Minister an effectively unlimited power to make directions if he or she considers that there is simply a "risk" to public health; any direction that was manifestly excessive would not be authorised by the statute. Further, they contended that the penalty in s 10 for non-compliance needed to be considered with the types of circumstances that may call for its application; so considered, it was not disproportionate.
It is apparent from what I have said about the operation and effect of s 7 that I do not accept the premise of the plaintiffs' submissions on adequacy of balance. The section does not confer a power that is triggered by a low threshold nor is it of "immense scope". As explained above, section 7(1) imposes a threshold, which rests not on risk alone but the existence of a situation that the Minister considers (on reasonable grounds) gives rise to an actual or likely risk to public health. Although the plaintiffs emphasised the requirement in the Victorian PHW Act that there be a "serious risk", I do not consider that the absence of such an adjective from s 7 of the Public Health Act diminishes the precondition to the exercise of power in that section in any material respect, let alone in a manner that would affect the adequacy of the balance between its purpose and any restriction on the implied freedom.
As to the plaintiffs' reliance on s 10 of the Act, a matter to which it gives emphasis in its reply submissions, the possibility of enforcing compliance with a direction under s 7(2) by way of the sanction for which s 10 makes provision does not affect the adequacy of balance in a manner that renders the burden on the implied freedom unjustified. It is necessary in this context to consider the circumstances in which s 7 will operate, to which I have referred above. As I have also noted above, the exercise of the power in s 7(2) must be appropriate and adapted to the identified risk and its possible consequences; it operates for a defined period; and it is reviewable on the merits in the Tribunal or in this Court pursuant to s 69 of the Supreme Court Act. The power is adequate in its balance.
The defendants also submitted that s 10 was only enlivened where the risk warranted the imposition of a direction with which a person had failed to comply. Given that a direction must be reasonably necessary having regard to its impacts on rights and freedoms, it followed that the coordinate penalty for failure to comply with that direction was reasonable. In this respect they pointed to the conditions on which proving an offence under s 10 depended, including that the Crown must establish that a person issued with a penalty pursuant to that provision was on notice of the direction under s 7, and had no reasonable excuse not to comply. In light of those matters, the defendants submitted that s 10 was an appropriate and adapted provision which formed part of a reasonable response to a public health risk, targeted towards people who were on notice of the responsive measures but nonetheless breached them without reasonable excuse.
I accept the defendants' submission that s 10 of the Public Health Act does not impose an unjustified burden on the implied freedom of political communication. Like s 7(2), the burden imposed by s 10 on communication as to governmental or political matters is indirect. Also like s 7(2), the purpose of s 10 is the protection of public health, specifically through the enforcement of directions made under s 7; and the provision is rationally connected to that purpose.
The plaintiffs did not make any real attempt on the part of the plaintiffs to engage with the issues of necessity or adequacy of balance. They did not, for example, advance any reasonably alternative measures to s 10 independently of their submissions on s 7(2), which I have addressed above. However, they did emphasise the difference between the penalty for a contravention of s 10 and the penalty for a contravention of s 545C of the Crimes Act, which may be relevant to one or both of these issues. The difference can be explained by the range of risks at which a direction under s 7(2) might be directed (subject to the requirement of ministerial consideration as to the necessity to deal with the identified risk and its possible consequences), noting also that the offence is only made out if the person has notice of the direction in question and fails to comply without reasonable excuse. The "special importance" of the purpose of protecting public health can also account for the difference in penalty. The section is both necessary and adequate in its balance.
It follows that the plaintiffs' challenge to s 10 of the Public Health Act, which was the subject of Prayer 7 of the Summons, must fail. Prayer 6 of the Summons, which sought to read down s 10 in the same manner as Prayer 1 of the Summons with respect to s 7 of the Public Health Act, would only arise if I had concluded that s 10, on its proper construction, impermissibly infringed the implied freedom in any of its potential operations. For the reasons I have expressed at [93] in relation to Prayer 1, it is unnecessary to consider Prayer 6 in light of my conclusion on Prayer 7.