[2005] HCA 44
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352
[2015] HCA 7
Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217
[2012] HCA 12
Brown v State of Tasmania (2017) 261 CLR 328
Source
Original judgment source is linked above.
Catchwords
[2014] NSWCA 414
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322[2005] HCA 44
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352[2015] HCA 7
Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217[2012] HCA 12
Brown v State of Tasmania (2017) 261 CLR 328[2017] HCA 43
Burton v Director of Public Prosecutions [2022] NSWCA 242
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436[1990] HCA 1
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[2019] HCA 23
Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700[2021] HCA 21
Cotterill v Romanes [2021] VSC 498360 FLR 341
Cotterill v Romanes [2023] VSCA 7
Farm Transparency International Ltd v New South Wales [2022] HCA 2396 ALJR 655
Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900[2020] NSWCA 160
Harrington v Lowe (1996) 190 CLR 311 at 328[1996] HCA 8
Kassam v Hazzard (2021) 106 NSWLR 520
[2021] NSWCA 299
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36
[2017] NSWCA 37
McCloy v State of New South Wales (2015) 257 CLR 178
[2015] HCA 34
Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556
[1986] HCA 60
Minet v Leman (1855) 20 Beav 269
(1855) 52 ER 606
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
[1992] HCA 46
North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569
[2015] HCA 41
Palmer v State of Western Australia (2021) 272 CLR 505
[2021] HCA 5
Potter v Minahan (1908) 7 CLR 277
[1908] HCA 63
Sunol v Collier (No 2) [2012] NSWCA 44
260 FLR 414
United States v Fisher, 6 US 385
2 Cranch 358 (1805)
Wotton v State of Queensland (2012) 246 CLR 1
Judgment (17 paragraphs)
[1]
Commissioner of Police v Thomson [2020] NSWSC 1424
Commonwealth v AJL20 (2021) 273 CLR 43; [2021] HCA 21
Cotterill v Romanes [2021] VSC 498; 360 FLR 341
Cotterill v Romanes [2023] VSCA 7
Farm Transparency International Ltd v New South Wales [2022] HCA 23; 96 ALJR 655
Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900; [2020] NSWCA 160
Harrington v Lowe (1996) 190 CLR 311 at 328; [1996] HCA 8
Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34
Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; [1986] HCA 60
Minet v Leman (1855) 20 Beav 269; (1855) 52 ER 606
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46
North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41
Palmer v State of Western Australia (2021) 272 CLR 505; [2021] HCA 5
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414
United States v Fisher, 6 US 385; 2 Cranch 358 (1805)
Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2
Category: Principal judgment
Parties: Victor Kah-Xu Tey / Renee Nicole Altakrity (Plaintiffs)
State of New South Wales (First Defendant)
Bradley Ronald Hazzard, Minister for Health and Medical Research (Second Defendant)
Representation: Counsel:
P Menzies KC / F Maghami (Plaintiffs)
M Sexton SC / MWR Adams (First and Second Defendant)
[2]
Solicitors:
Lehman Walsh Lawyers (Plaintiffs)
Crown Solicitor for NSW (First and Second Defendant)
File Number(s): 2021/00307488
2022/00020977
Publication restriction: Nil
[3]
JUDGMENT
BASTEN AJ: Each of the plaintiffs, Victor Kah-Xu Tey and Renee Nicole Altakrity, faces one charge under s 10 of the Public Health Act 2010 (NSW) ("Public Health Act") for failing to comply with a direction in the form of a Public Health Order. Mr Tey also faces a charge of refusing or failing to comply with a direction under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("Law Enforcement Act"). The charges have not yet been heard but are presently pending in the Local Court.
On 29 October 2021, Mr Tey filed a summons in this Court seeking declarations challenging the validity of provisions of the Public Health Act and the validity of the certain orders made under s 7 of the Public Health Act. First, the Public Health Act, and the orders under it, were sought to be construed as not prohibiting or restricting public political communications and/or political protests. Alternatively, if properly construed the legislation did have such effects, then declarations were sought that the Public Health Orders and the Public Health Act were invalid because they impermissibly burdened the implied freedom of political communication under the Commonwealth Constitution. The summons also sought to challenge the validity of s 197 of the Law Enforcement Act.
Ms Altakrity commenced similar proceedings in this Court on 24 January 2022, seeking orders in different terms but to similar effect. Each summons named the State as the first defendant and the then Minister for Health, Bradley Hazzard, as the second defendant. (It would have been appropriate to name the office, rather than the individual holding the office at the relevant time.) The informants, who issued the court attendance notices, were not joined. Neither summons sought a substantive order quashing the court attendance notices, although that was evidently the intended purpose of the declarations.
Although the charges concerned conduct which occurred on 9 May 2020, 5 September 2020 and 3 July 2021, none of the matters have proceeded to a hearing in the Local Court. They have, presumably, been stood over from time to time to allow these proceedings to be commenced, heard and determined. The proceedings in this Court have also been stood over to allow a separate set of related proceedings to be heard.
In the meantime, a similar challenge based on the implied freedom of political communication has been considered and decided in Victoria with respect to an infringement notice issued to a person conducting a protest against the "stay at home directions" made under the Public Health and Wellbeing Act 2008 (Vic). On 17 August 2021, Niall JA (sitting in the Common Law Division) dismissed the proceedings: Cotterill v Romanes. [1] On 8 February 2023, the Court of Appeal dismissed an appeal from the judgment and orders of Niall JA. [2] Although the Solicitor-General submitted that the Victorian legislation was not relevantly distinguishable, he did not contend that this Court was bound by the result in Cotterill. Accordingly, while I have had regard to the reasoning in both Victorian judgments, I have treated the question as to the validity of the New South Wales legislation as a matter which has not yet been determined.
[4]
Application for an extension of time
The plaintiffs' written submissions conceded that they required an extension of time within which to commence their respective proceedings, although no order extending time was sought in either summons. That view appears to have been based upon an assumption that the proceedings were brought under s 65 or s 69 of the Supreme Court Act 1970 (NSW), or were otherwise proceedings in the supervisory jurisdiction of the Court and thus engaged Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): see r 59.1(1). Pursuant to r 59.10, proceedings for judicial review of a decision must be commenced within three months of the date of the decision. However, these proceedings did not challenge the issue of the court attendance notices, nor the making of the Public Health Orders. Rather, they challenged the scope of the powers conferred under the Public Health Act. As the ultimate intention was to quash or set aside the court attendance notices, it was significant that none of the usual grounds of judicial review was relied upon. The Solicitor-General conceded that, were an extension necessary, it was not opposed.
As will be explained below, while public health orders might be susceptible to review for failure to comply with the terms of the Public Health Act under which they were made, only the Act could be reviewed for compliance with the Constitution. The former is commonly described as administrative law review, the latter as constitutional review. Whether the latter engages UCPR Pt 59 may well be an open question; as it does not need to be resolved in this case, it will not be.
It is sufficient to find that to the extent that the plaintiffs require an extension of time, they should have it.
[5]
Identifying the issues
The State's submission, already adverted to, that the only question before the Court was a constitutional question, and that that question could only arise with respect to the scope of the statute, identifies a preliminary issue. There were other issues raised by the plaintiffs which were not clearly separated in either summons, nor in the common written submissions for both plaintiffs. (At the hearing, counsel for the plaintiffs added little to their written submissions.) However, the issues may be expressed in the following terms:
1. Does the Public Health Act, properly construed, confer on the Minister a power to take action or give directions which restrict the freedom of people to engage in communication on political matters?
2. Did the Public Health Orders, properly construed, restrict the freedom of people to engage in communication on political matters?
3. If the answer to question (1) is yes, is the Public Health Act invalid because it is incompatible with the implied constitutional freedom of political communication?
4. If the answer to question (2) is yes, were the Public Health Orders invalid because they were incompatible with the implied constitutional freedom of political communication?
5. If the answers to questions (1) and (3) are yes, can the Public Health Act be read down so as to be invalid only to the extent that it restricts people from communicating on political matters?
6. If the answers to questions (2) and (4) are yes, can the Public Health Orders be read down so as to be invalid only to the extent that they restricted people from communicating on political matters?
[6]
Evidence
The parties took different views as to the scope of the relevant evidence, but agreed that a ruling on the objections would depend upon determining aspects of the substantive submissions as to the proper basis of challenge in this Court. It was agreed that the objections could be disposed of in this judgment.
The plaintiffs each filed an affidavit setting out the background to their activities, intentions and beliefs in relation to the conduct which gave rise to the charges. The State objected to the bulk of that evidence. For example, with respect to Ms Altakrity, only the evidence of her being charged on 9 May 2020 and the copy of the court attendance notice served on her were said to be relevant. With respect to Mr Tey, the State conceded the relevance of his evidence that he attended protest gatherings on 5 September 2020 and 3 July 2021, and was charged with breaches of relevant Public Health Orders and failure to comply with a "move on" direction given under s 197 of the Law Enforcement Act. Annexures containing the briefs of evidence in each matter and the relevant court attendance notices were accepted as relevant material in his case.
In addition, the plaintiffs had sought to tender an expert report of Dr Monica Gandhi, a professor of medicine at the University of California, San Francisco, expressing opinions with respect to risks of infection by COVID-19 and the scientific evidence for "outdoor transmission". Senior counsel for the plaintiffs conceded that the only material difference between Dr Gandhi's report and the opinions expressed by Dr Jeremy McAnulty, who was, from late January 2020 until May 2022, Deputy Public Health Controller for the COVID-19 response, was the degree of risk in attending outdoor events, and the likely success of seeking to control outdoor crowds. Two affidavits affirmed by Dr McAnulty had been filed by the State. However, consistently with his objection to the evidence of the plaintiffs, the Solicitor-General did not seek to read Dr McAnulty's affidavits.
The fact that the plaintiffs had been charged with offences arising out of their non-compliance with the relevant Public Health Orders may have provided a basis for demonstrating standing to bring the present proceedings. However, the State conceded that each had standing. The nature of the charges was otherwise relevant to identify the impugned provisions and to confirm that the law enforcement officers had acted on the basis that those provisions covered what might be described as "expressive conduct" by political protest, namely opposition to the restrictions on movement imposed by the Public Health Orders themselves.
[7]
First issue - construing the impugned legislation
It is well established that, in determining whether legislation creating an offence is invalid as an unconstitutional restriction on freedom of speech, "[t]he first step is to construe the statutory language creating the offence". [6] However, the underlying reason for that approach is important. The implied freedom of political communication is a constitutional constraint on legislative power. It derives from elements of the Commonwealth Constitution providing for a system of representative government through a Parliament "directly chosen by the people". [7] The constraint applies to exercises of legislative power. Thus, if a legislative power properly construed does not impose, nor permit the imposition of, a burden on political communication, the constitutional issue does not arise.
Two other matters should be noted in dealing with this issue. First, in common with similar legislation in other jurisdictions, the Interpretation Act 1987 (NSW), s 31(1), provides that an Act should be construed "as operating to the full extent of, but so as not to exceed, the legislative power of Parliament". There is then a "blue pencil" provision, [8] which allows that if to any extent an Act would, but for that section, be construed as being in excess of the legislative power of the Parliament, it shall be valid to the extent to which it is not in excess of that power: s 31(2). There were suggestions in the plaintiffs' written submissions that s 31(2) should be applied at the outset. However, to do that would be to import the constitutional argument into the question of statutory interpretation. While that submission has an element of logical plausibility, to adopt it would be to undermine the purpose of first construing the provision, in order to understand its meaning for the purpose of considering whether it breaches the implied freedom. Rather, as stated in the joint reasons in Wotton v State of Queensland, [9] "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."
Secondly, it will be appropriate, as the State accepted, in construing the statute to apply the principle of statutory construction known as the principle of legality. That principle, which harks back to Chief Justice Marshall in the US Supreme Court, [10] is commonly identified by reference to the statement in Potter v Minahan [11] that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". The plaintiffs identified that principle as engaging a presumption of non-interference with freedom of speech, freedom of association and freedom of movement. In identifying "freedom of speech", the submissions referred to Nationwide News Pty Ltd v Wills, [12] a case involving the implied freedom of political communication.
[8]
Second issue - considering only the effect of the Act
This issue concerns the second and fourth questions raised by the plaintiffs. The third question involved consideration of whether the statute burdens political communication. The fourth question raises a similar issue as to the operation of the Public Health Orders. The State submitted that the fourth question, which appeared to be at the heart of the plaintiffs' submissions, was not the correct question to ask: the proper question was the third question, concerning the statute itself. The State's submission should be accepted. The reason was concisely stated by the joint reasons in the High Court in The Commonwealth of Australia v AJL20: [16]
"43 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."
A similar statement of principle, derived from earlier High Court authority, was identified by the Court of Appeal in A v Independent Commission Against Corruption, [17] an approach accepted by Gageler J in Comcare v Banerji. [18]
Although the principle explained in AJL20 was expressed in relation to legislation of the Commonwealth, the principle had earlier been stated in Wotton, [19] a case involving State law, and applied in Palmer v State of Western Australia, [20] also involving State law.
When invited to address the State's submission that the question of invalidity must be addressed in relation to the authorising statute, rather than the subordinate orders, senior counsel for the plaintiffs responded that they relied upon both. [21] The response raised a question, not expressly addressed in submissions, as to whether there were circumstances where it might be appropriate to go beyond the consideration of the authorising legislation in exploring the operation of the implied freedom; that is may there be a qualification on the universal operation of the conventional approach?
[9]
Principles for assessing legislative scheme
The manner in which the court should approach a challenge to the validity of a law on the basis that it contravenes the implied freedom of political communication was recently summarised by the Court of Appeal in Burton v Director of Public Prosecutions. [29] Kirk JA held that the justification of a law which infringes the implied freedom may, and should, be assessed by reference to principles described as "structured proportionality". [30]
There is no dispute that the Public Health Act will, in some circumstances, impose a burden on political communication. The parties differed, however, on the severity of the burden. As explained by Kiefel CJ and Keane J in Farm Transparency International Ltd v New South Wales: [31]
"27 The question whether the freedom is burdened has regard to the legal and practical operation of the law. The question is not how it may operate in specific cases, which are but illustrations of its operation, but how the statutory provision affects the freedom more generally."
The extent of the burden is relevant in the process of justification. In Farm Transparency Kiefel CJ and Keane J stated: [32]
"29 The process of justification commences with the identification of the statutory purpose. That purpose must be compatible with the system of representative government for the provision to be valid. A justification for a burden will only be sufficient if it is shown that the statutory provision is proportionate to the achievement of its purpose …. [P]roportionality has been assessed by reference to whether the impugned provision is suitable, necessary and adequate in its balance."
Although some members of the High Court have not applied structured proportionality reasoning, and those that have, have emphasised that it is a "tool" or mechanism for assessing validity, the primary point of departure between that form of analysis and reasoning in earlier cases turns on whether it is appropriate for the Court to ask whether a law which is suitable for the achievement of its purpose and imposes a burden which is "necessary" to achieve the legitimate purpose, should also be assessed by reference to the "adequacy" in the balance achieved between the purpose served by the measure and the extent of the restriction it imposes on the implied freedom. It is neither necessary nor appropriate for this Court to enter into that area of debate.
[10]
Public Health Act, section 7 - burden and legitimacy
Section 7 of the Public Health Act reads as follows:
7 Power to deal with public health risks generally
(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.
(2) In those circumstances, the Minister -
(a) may take such action, and
(b) may by order give such directions,
as the Minister considers necessary to deal with the risk and its possible consequences.
(3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary -
(a) to reduce or remove any risk to public health in the area, and
(b) to segregate or isolate inhabitants of the area, and
(c) to prevent, or conditionally permit, access to the area.
(4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order.
(5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order.
…
(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.
As noted above, there is no dispute that the discretionary power conferred on the Minister by s 7 extends to actions and directions which may (and in this case do) effectively burden political communication. The Public Health Orders, when in operation, limited the opportunity for people to leave their homes and gather in public places for the purpose of protesting governmental action, both legislative and executive, and both in relation to the Public Health Orders themselves and in relation to other matters.
As the State noted, the legislative purpose of the Public Health Act, and in particular the purpose of s 7, is usefully stated in the objects set out in s 3:
3 Objects
(1) The objects of this Act are as follows -
(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 protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.
[11]
Rational connection
In dealing with the question of justification, the first issue to be addressed is whether the law was suitable to achieve its purpose. That is, did the law have a rational connection with its purpose? Although the plaintiffs' submissions correctly identified that issue, they strayed into a generic statement that although the purpose of the Public Health Orders was to protect public health, "there is no rational connection so as to justify a blanket prohibition of public political communications".
This proposition both misstated the issue and misdescribed the operation of the statute. The operation and effects of s 7 were described by the Court of Appeal in Kassam v Hazzard [34] in the reasons of the then President and need not be repeated. Conformity with the test of rational connection is demonstrated by the language of s 7. Public health risks may involve a wide variety of circumstances and may require an urgent response interfering with people's freedoms, or a monitoring response with limited adverse effects on individuals. The nature of the issue self-evidently requires conferring a degree of flexibility on those with responsibility to protect public health. The responsibility is vested in the Minister, answerable to the Parliament; but he or she may only act on "reasonable grounds" in determining that a risk has arisen or is likely to arise.
Further, while the power to take such steps as the Minister considers necessary involves a subjective judgment on the part of the Minister, the considerations must relate to the risk identified on reasonable grounds and its possible consequences. Further, to the extent that the Minister gives directions, that must be by "order" which must be published in the Gazette and which may operate for no more than 90 days.
The section further provides for administrative review by the Civil and Administrative Tribunal in relation to action taken by the Minister under subs (2)(a), and directions given by order under subs (2)(b). The power to review those decisions does not expressly extend to the Minister's determination that there is a relevant risk under subs (1), but the connection between the opinion formed by the Minister under subs (1) and the actions taken under subs (2) suggests that, in a practical sense, the grounds on which the Minister was satisfied that the risk arose are likely to be material to any administrative review.
[12]
Necessity for burden on political communication
As explained in McCloy v State of New South Wales, [36] the test of "suitability" identified above "does not involve a value judgment about whether the legislature could have approached the matter in a different way". [37] Rather, it is the second stage of the justification dealing with "necessity" which requires the Court to ask whether "other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling" are available. [38] That element was reformulated in Comcare v Banerji [39] in the following terms:
"35 Where, as here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose in the sense described, such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom."
It is clear that this element is not an invitation to the Court to redraft the provision in different terms to demonstrate that it is possible to lessen significantly any burden on political communication. Although it may sound like a similar exercise, the court is to consider only whether some alternative course was open to the parliament but not adopted. The formulation in Banerji suggests that this will not "ordinarily" be the case.
This Court was not taken to any examples in other cases where that test had resulted in invalidity. Further, as the State submitted, the plaintiffs had proposed no alternative to s 7 of the Public Health Act. Although the onus on justification is said to lie on the party supporting the law, under the "structured proportionality" approach, there is some onus on the challenger to identify an obvious and compelling alternative that might impose a lesser burden on political communication. [40]
One aspect of the plaintiffs' case was that, while outdoor gatherings were generally prohibited, there were exceptions, which included permitting limited numbers of persons to attend outdoor sporting events. At least by implication, the argument was that the Public Health Orders could (and should) also have provided an exception for political protests.
[13]
Adequacy of balance
The final element in the process of justification requires the Court to determine whether the burden on political communication is undue, having regard to the importance of the purpose served by the impugned legislation.
Once it is established that the impugned law serves a legitimate purpose compatible with the constitutional system of government, although imposing some burden on political communication, and that the law is suitable and adapted to achieving its intended purpose, and that there is no reasonably practicable and compelling alternative, there are likely to be few circumstances in which the court would then declare that the burden on political communication was undue. [41] Particularly may that be so where the burden on political communication is neither a purpose of the impugned law nor a necessary consequence in all circumstances.
Nevertheless, it is necessary to consider the extent of the restriction. The Solicitor-General noted that, on one view, there was no significant burden on political communication imposed by the Public Health Act. That was because persons wishing to hold a "public assembly", which involved any assembly held in a public place and included a procession, could obtain authority from the Commissioner of Police pursuant to Pt 4 of the Summary Offences Act 1988 (NSW). Section 24 of that Act provides that a person participating in an authorised public assembly "is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place".
During 2020, at least three cases came to this Court on applications by the Commissioner of Police to prohibit public gatherings due to the risks created for transmission of COVID-19. [42] In Commissioner of Police v Gray, the relationship between the Public Health Act (and orders under that Act) and the Summary Offences Act was addressed. By a textual analysis, Adamson J concluded that a failure, without reasonable excuse, to comply with a direction given under s 7 of the Public Health Act by attending a public gathering, was an "offence relating to participating in an unlawful assembly" for the purposes of s 24 of the Summary Offences Act. [43] This was understood to be a resolution of the potential inconsistency between s 10 of the Public Health Act and a public assembly authorised under the Summary Offences Act. [44]
[14]
Conclusion - Public Health Act
For these reasons the plaintiffs' claim for invalidity with respect to the Public Health Act and the orders made under it must be rejected.
[15]
Law Enforcement Act
Separately from the charges of non-compliance with the Public Health Orders, on 5 September 2020 Mr Tey was charged with an offence under s 199(1) of the Law Enforcement Act. Order 7 in Mr Tey's summons sought a declaration that s 197 of the Law Enforcement Act "may not be exercised in relation to a [Public Health Order] where to do so would prevent, burden or restrict a genuine demonstration or protest as defined in s 200 of [the Law Enforcement Act]".
Section 197(1) of the Law Enforcement Act confers power on a police officer to give a direction to a person in a public place if the officer reasonably believes that the person is obstructing others, or traffic, or harassing or intimidating others, amongst other grounds. It does not appear to involve enforcement of a public health order. But, in any event, s 197 appears in Pt 14 of the Law Enforcement Act, which includes s 200. The latter provision relevantly provides:
200 Limitation on exercise police powers under this Part
…
(2) This Part does not authorise a police officer to give a direction in relation to-
(a) an apparently genuine demonstration or protest, or
(b) a procession, or
(c) an organised assembly, except as provided by subs (3) or (4).
The exceptions in subss (3) and (4) are not presently relevant.
Whether the direction given was authorised by s 197, read in combination with s 200, is not in issue: that is a matter to be determined by the Local Court. It may also be necessary to determination the relationship between the limitation imposed by s 200 on a direction given by reference to an order under the Public Health Act. However, it follows from the limitation imposed by s 200(2) that the power to give a direction under s 197 cannot validly operate in relation to a demonstration or protest which involves a political communication.
It is not necessary to repeat the process set out above in analysing this challenge: because no burden on political communication was demonstrated, the challenge was untenable. The written submissions for the plaintiffs did not attempt to support the challenge.
[16]
Orders
Each summons named the then Minister for Health as a second defendant. He took no separate part in the proceedings and no order should be made as to his costs, if any.
The Court makes the following orders:
1. In relation to the summons filed by Victor Kah-Xu Tey -
1. to the extent that the plaintiff requires an extension of time, time within which to commence the proceeding is extended to 29 October 2021;
2. dismiss the summons;
3. order that the plaintiff pay the costs of the State of New South Wales.
1. In relation to the summons filed by Renee Nicole Altakrity -
1. to the extent that the plaintiff requires an extension of time, time within which to commence the proceeding is extended to 24 January 2022;
2. dismiss the summons;
3. order that the plaintiff pay the costs of the State of New South Wales.
[17]
Endnotes
[2021] VSC 498; 360 FLR 341.
Cotterill v Romanes [2023] VSCA 7 (Emerton P, McLeish and Kennedy JJA) ("Cotterill").
(2017) 261 CLR 328; [2017] HCA 43.
Brown at [7]-[17].
Brown at [32]-[37].
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [2]-[3] (Gleeson CJ); see also at [158] (Gummow and Hayne JJ); [207] (Kirby J); see also Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 at [25] (Bathurst CJ), [56] (Allsop P) and [75] (in my judgment).
Constitution, s 7 (Senate), s 24 (House of Representatives).
See Harrington v Lowe (1996) 190 CLR 311 at 328; [1996] HCA 8.
(2012) 246 CLR 1; [2012] HCA 2 at [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ) (emphasis added).
United States v Fisher, 6 US 385, 390; 2 Cranch 358 (1805); see also Minet v Leman (1855) 20 Beav 269 at 278; (1855) 52 ER 606, 610 (Sir John Romilly MR).
Lazarus at [72], referring to Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [3] (Gleeson CJ), [158] (Gummow and Hayne JJ), [219]-[221] (Kirby J) and [306] (Heydon J); North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [11] (French CJ, Kiefel and Bell JJ); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [66] (Gageler J).
(2014) 88 NSWLR 240; [2014] NSWCA 414 at [56] (in my judgment, Bathurst CJ at [7] and Ward JA at [149] agreeing); see also Cotterill v Romanes (VSCA) at [63].
(2019) 267 CLR 373; [2019] HCA 23 at [51]-[52]; see also at [169] (Edelman J).
Wotton at [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ), adopting the submission of then Commonwealth Solicitor General, S Gageler SC.
(2021) 272 CLR 505; [2021] HCA 5 at [64]-[65] (Kiefel CJ and Keane J); [118] (Gageler J); [201] (Gordon J).
Legislation Cited (13)
Independent Commission Against Corruption Amendment (Validation) Act 2015(NSW)
As will be noted in addressing the legislation, a public health order could only operate for a maximum of 90 days. Different orders operated at different times in 2020 and none are currently extant. Because the charges remain unresolved the issues raised by the plaintiffs are not moot. Although the orders in question were not identical in their content, nothing was said to turn on differences: each relevantly prohibited people leaving their homes, subject to limited exceptions, which did not include engaging in political protests.
The substance of the State's objection to the evidence was that the constitutional question could only arise with respect to the scope of the statute authorising the orders and not, derivatively, the executive action taken to promulgate and enforce the orders. The State submitted that whether the statute contravened the implied freedom of political communication did not turn on any relevant factual considerations.
It is convenient to deal first with Dr Gandhi's report. As will be explained shortly, the Public Health Act, s 7, confers a power on the Minister for Health to determine "on reasonable grounds" that there is "a risk to public health". If so satisfied, the Minister may take such action or give such directions as the Minister considers "necessary" to deal with the risk. If there were an issue with respect to whether the Minister's actions or directions could be justified as an exercise of power within the terms of s 7 of the Public Health Act, Dr Gandhi's report may have been relevant. However, no such issue arose in the present proceedings and accordingly I reject the tender of that report.
With respect to the evidence of the plaintiffs, the situation is not so clear cut. On one view, it would be surprising if the scope or validity of a statute turned upon a consideration of particular circumstances in which it had been enforced or sought to be enforced. On the other hand, it is necessary for the court to avoid ruling on matters abstractly and in the absence of concrete circumstances giving rise to the question raised. Further, identifying and assessing the nature of the burden on political communication and the extent to which the measures adopted under the State law are reasonably appropriate and adapted to effecting a legitimate purpose, and then weighing the respective public interests, are exercises in which context may be important. Overly abstract reasoning is not congenial to established judicial method in this jurisdiction.
It also appears that no rigid or restrictive view as to relevant evidence has been taken in recent cases in the High Court dealing with the implied freedom of political communication. For example, in Brown v State of Tasmania [3] the joint reasons of Kiefel CJ, Bell and Keane JJ described in some little detail the circumstances in which the plaintiffs came to be charged and set out background relating to forestry activities in north-west Tasmania, which were the subject of the protests. [4] The joint reasons also discussed aspects of the "long history of political protests in Australia", including in relation to environmental issues and forest protection in Tasmania. [5]
As the State does not object to certain annexures to Mr Tey's affidavit involving fact sheets prepared by the prosecutors with respect to his charge, I see no purpose in further dissecting the evidence given by the plaintiffs to rule on aspects of admissibility which may have no immediate bearing on the resolution of the present proceedings. That each of the plaintiffs was genuinely involved in political protest and intending to express opinions antithetical to the continued operation of the Public Health Orders may be accepted for present purposes. Whether they were guilty of the offences charged is a matter for the Local Court, if and when the prosecutions are pursued there.
The State submitted that the legislation contained a sufficiently clear expression of intention to satisfy the test. Again, to the extent that the principle of statutory interpretation is understood to invoke the implied freedom of political communication, its application at this stage would subvert the purpose of carrying out the exercise of statutory construction. That is, it would require a construction of the statute which avoids interference with political communication before it has been established that it is otherwise likely to have such an effect. That question involves the application of a constraint on legislative power; principles of statutory interpretation are not, as such, constraints on legislative power, but rather provide guidance for the construction of valid legislation. That is not to say that general principles of statutory interpretation are not engaged, but only that a reading down of the text to avoid a limitation on political communication should not precede a determination that the text would otherwise impose such a limitation.
This approach is consistent with that adopted by Leeming JA in Lazarus v Independent Commission Against Corruption, [13] as appears from the following passage from my judgment in Commissioner of the Australian Federal Police v Elzein: [14]
"26 The separate questions correctly (in part) asked the court first to construe the statute, before considering questions of constitutional validity. … The conventional wisdom is that there may need to be a three-step process in determining questions of constitutional validity. The first step is to construe the statute; the second is to determine whether, so construed, the statute contravenes a constitutional constraint on legislative power, and the third, if there be inconsistency, is to consider whether the statute can be read down so as to allow it a more limited, but valid, sphere of operation. The last step is provided for in s 15A of the Acts Interpretation Act 1901 (Cth), providing that a provision of an Act shall be construed so as not to exceed the legislative power of the Parliament. As Leeming JA recently explained in Lazarus v Independent Commission Against Corruption [15] dealing with the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW):
'[72] In a case such as this, the first step is to construe the statute …. If, putting to one side questions of validity, the Validation Act would not apply to the applicants, then the analysis would cease, and the court would not reach the constitutional questions. … I would reject the applicants' submissions on construction, save for the possible impact of the constitutional questions. Accordingly, the second step is to determine the constitutional issue, and to do so on the basis of the construction tentatively reached. … I would reject the applicants' constitutional submissions as well. The result is to confirm the construction previously reached. It is therefore not necessary to take the further step and consider whether in truth s 31 [of the Interpretation Act] is capable of operation upon cl 35 of the Validation Act …. Nor is it necessary to consider the extent to which avoidance of constitutional invalidity warrants favouring an alternative reasonably open construction …'
27 However, this was not a case like Coleman v Power where the construction of the statute was undertaken in circumstances where the facts were known, having been established at a trial. Those facts provided a vehicle within which to consider the meaning of the term 'insulting' in the relevant Queensland legislation, which was said to contravene the implied freedom of political communication."
Bearing these considerations in mind, the proper way to address the statutory provisions in question is to ask whether, having regard to their language and context, they are capable of conferring a power which may, in its exercise, burden the implied freedom.
It may be noted that in many cases statutes will expressly regulate communications; the exercise of statutory interpretation may be different in such cases from that in the present case where the statute confers a power on a member of the executive which may in turn be exercised in a manner which interferes with the implied freedom.
In Palmer, having accepted that the approach taken in Wotton was to be followed, Kiefel CJ and Keane J continued:
"68 In some cases difficult questions may arise because the power or discretion given by the statute is broad and general. No such question arises in this matter. As will be seen, the power to prohibit or restrict entry into a declared emergency area, which may be the whole of Western Australia, is largely controlled by the [Emergency Management Act 2005 (WA)] itself and is proportionate to its purposes."
Gageler J in Palmer acknowledged that the distinction between the constitutional question and the statutory question "has not been universally observed" [22] and continued:
"122 Even now, the statutory question can converge with the constitutional question in respect of 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."
Edelman J in Palmer also expressed a possible qualification to the accepted principle in the following terms:
"219 … Where the relevant provisions of the primary legislation are open-textured and can be disapplied from any invalid application then it will rarely be appropriate for a court to speculate upon whether the provisions are valid in all their applications, including hypothetical circumstances that are not before the court. It will usually be necessary to consider the validity of the provisions in relation to particular applications before the court or, slightly more generally, to applications of the general kind of those before the court."
These qualifications [23] were raised and addressed in Cotterill, both by Niall JA and by the Court of Appeal. They were disposed of on the basis that the qualifications were not engaged in Palmer itself and the legislation in issue in Cotterill was not more broadly expressed than that in Palmer. On that basis, there is arguably no cause to address any possible qualification of the general principle in this case because the legislation is quite similar to that reviewed in Cotterill and Cotterill should be followed. However, it may be important to understand the basis of the qualification.
The passage from the reasons of Gageler J in Palmer ended with a footnote referring to four earlier judgments of the High Court. The first was a case involving s 92 of the Constitution and the licensing of radio transmission, Miller v TCN Channel Nine Pty Ltd. [24] The specific reference was to a passage in the judgment of Brennan J in Miller at 613-614. The discussion, which commenced at 612, identified a discretion-conferring provision which might be invalid because a licence could be refused for reasons divorced from the protection of the public and the advancement of the public interest, or because it could be refused by reference to the essential qualities involved in trade, commerce and intercourse among the States. Those observations, however, appear to have been directed to the validity of the authorising provision, rather than the exercise of the discretion: see 613.1. Further, Brennan J noted that the criteria, while not defined, were not at large. Thus, the exercise of the discretion was judicially reviewable, and, although there might be procedural obstacles to discovery of the ground on which a discretion had been exercised, those had been effectively removed by the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Gageler J noted in Palmer that the distinction between reviewing the source of the power and the exercise of a power may have been "less apparent in theory and less workable in practice when judicial review of executive action undertaken in the exercise of discretionary powers conferred by statute was less developed". [25] As will be noted shortly, any action or direction given by the Minister under s 7 of the Public Health Act could be reviewed by a timely application to this Court in its supervisory jurisdiction, or by way of merits review in the Civil and Administrative Tribunal.
The second authority was a passage in the judgment of Gummow J in APLA Ltd v Legal Services Commissioner (NSW)" [26] to the following effect:
"104 The regulation-making power contained in the Act, pursuant to which the Governor, with the advice of the Executive Council, made the Regulation, must be regarded as itself limited by the Constitution. To adapt what was said by Fullagar J in O'Sullivan v Noarlunga Meat Ltd: [27]
'The question therefore resolves itself into whether the regulations are within the constitutional power of the [State]. If Parliament had enacted them directly, would they be valid?'"
The purport of that passage is not entirely clear: although Gummow J referred to the regulation-making power in the statute as limited by the Constitution, in the passage quoted from O'Sullivan the question was differently phrased.
The third authority was a passage in Wotton adopting the reasoning of Brennan J in Miller as to the area of discretion discussed above. Its significance appears from the preceding paragraph in Wotton which, relevantly, read as follows:
"9 It is important for the present case to note that s 9(1) of the Acts Interpretation Act 1954 (Qld) … requires that the Corrective Services Act be interpreted to the full extent of, but not to exceed, the legislative power of the State legislature. The Corrective Services Act confers various discretionary powers which are expressed in broad terms. However, in accordance with general principles, these powers must be understood with regard to the subject matter, scope and purpose of the statute and must be exercised on application. Further, the discretionary powers must be exercised in accordance with any applicable law, including the Constitution itself."
On one view, that passage was not consistent with the general approach adopted at [22] in Wotton, and it did not suggest any criterion which would take the matter beyond the principled focus on the authorising statute. It will be convenient to return shortly to the reference to the reading-down provision in the Interpretation Act.
The fourth reference in Palmer was to Betfair Pty Ltd v Racing New South Wales, [28] a case involving an alleged infringement of s 92 of the Constitution. The passage noted by Gageler J, from the judgment of Kiefel J, was in the following terms:
"91 The freedoms guaranteed by s 92 operate as a limit upon the exercise of Commonwealth and State legislative powers. The Racing Administration Act and the Regulations therefore cannot grant a discretionary power which is to be exercised in a manner inconsistent with s 92. Any such grant of power must be construed so as not to exceed the limits of legislative power. The general words of cl 16(2)(a) of the Regulations, conferring the power to impose a fee condition, are therefore to be read as subject to s 92."
The questions to be addressed in relation to a challenge based on s 92 of the Constitution require consideration of the practical effect of a particular law upon interstate trade. As explained by the joint reasons of French CJ, Gummow, Hayne, Crennan and Bell JJ in Betfair:
"52 The questions presented in the present appeal thus become: (i) whether the practical operation of the fee structure shows an objective intention to treat interstate and intrastate trade in wagering transactions alike, notwithstanding a relevant difference between them; and, if so, (ii) whether the fee structure burdens interstate trade to its competitive disadvantage; and, if so, (iii) whether that burden nonetheless is reasonably necessary for New South Wales to achieve a legitimate non-protectionist purpose."
To answer the first question, it was necessary to address not merely the terms of the legislation, but the operation in a practical sense of the Regulation under it and the fee structure which was imposed by the Regulation. Thus, the acknowledgement of a possible qualification to the consideration only of the effect of legislation on political communication may be intended to refer to circumstances in which it is appropriate to review the practical operation of subordinate legislation on political communication. If that be correct, unless the circumstances in which that applies are closely defined, the qualification would potentially consume the basic principle. That would be a matter for further exposition by the High Court. The Victorian Court of Appeal in Cotterill held that the qualification, whenever it might apply, did not apply in Palmer and therefore should not apply in the present circumstances. This Court should follow that approach.
Accordingly, the focus of consideration of the plaintiffs' case must be directed to the terms of the Public Health Act, as submitted by the State. That is not to say that the terms of the Public Health Orders in effect at the time the plaintiffs were charged are irrelevant. Their validity was not otherwise challenged and they may be seen as illustrating the kind of orders which can be made under the Public Health Act, absent any constraint imposed by the implied freedom.
However, before leaving that topic it is desirable to return to the principle of statutory interpretation that requires the reading down of legislation to conform to constitutional limits. Section 31 of the Interpretation Act, in a common form, states:
31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament
(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.
(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament -
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.
To the extent that s 31 requires that not only Acts but also instruments be construed in accordance with its precept, it may itself need to be read down to comply with the Wotton principle.
Further, although the distinction between constitutional review and administrative law review is clear in principle, its application may be less clear in practice. On one view, there can be no objection to a party seeking to read down a statute or an instrument pursuant to s 31 of the Interpretation Act, on the basis that it would otherwise exceed the legislative power of parliament, rather than exercising a power under s 32 to read down an instrument so as not to exceed the power conferred by the Act under which it is made. Indeed, it is not entirely clear that a reading down under s 31 would engage the constitutional question identified in Wotton. If it did, it might engage s 78B of the Judiciary Act 1903 (Cth). However, consistently with Wotton, where delegated legislation or a public health order must be read down to comply with the limits of legislative power, the statute must be read down and the instrument under it will be invalid because it goes beyond the authority of the statute.
However, whatever uncertainties there may be in the application of this analysis, it does not permit the plaintiffs to challenge the public health orders on the basis that they involve a contravention of the implied freedom, being a restriction on legislative power.
The importance of identifying the legislative purpose is, as the State noted, because it provides a basis upon which to consider whether the law is justified. As observed by Kiefel CJ and Keane J in Palmer:
"60 This method of justification of a law may assume special importance where the law has a powerful public, protective purpose. The example given by the Commonwealth in McCloy [33] , when it sought to invoke this justification, was the object of protecting security of the nation at a time of war. Similar metaphors have been applied in public discussion about the crisis affecting the health of persons during the COVID-19 pandemic."
There can be no doubt that the pandemic involved a risk to public health of the kind envisaged by s 7(1) of the Public Health Act. The power to take action the Minister considered "necessary to deal with the risk and its possible consequences" was a statutory expression of the underlying purpose of s 7.
The plaintiffs accepted that "[t]he over-arching legislative intention of the Act and the [Public Health Orders], in seeking to promote public health and safety in relation to the COVID-19 virus, is a valid legislative objective for the NSW Government". The submissions stated, however, that in so far as the orders applied to political communication and gatherings, they were "incompatible with the functioning of the constitutionally prescribed system of representative and responsible government in New South Wales". Further, in categorically prohibiting "all acts of public political protest and gathering" the orders were "unreasonable".
There was some elision of ideas in these submissions. The implied freedom derives from a system of representative and responsible government articulated in the Commonwealth Constitution. As noted above, ss 7 and 24 of the Constitution provide for the respective houses of the Commonwealth Parliament to be composed of members (in the case of the Senate) "directly chosen by the people of the State". Protection of the people from risks to public health cannot be said to be incompatible with the constitutional scheme for government.
Secondly, the submission that the orders were "unreasonable", in the sense of being too restrictive, misconceived the issue, as explained above. Section 7 conferred powers on the Minister to take such action or give such directions as he or she considered necessary: that included declaring any part of the State (or indeed by implication the whole State) to be a public health risk area and to direct the inhabitants of the area to segregate or isolate. There was no challenge to the fact that the orders were authorised by s 7.
Further, it is necessary to focus firmly on the basis of the constitutional challenge, namely the interference with political communication. There is no doubt that the Public Health Orders had a severe impact upon the circumstances of many people, in ways which could be identified as forms of physical interference or as interference with rights and freedoms. Those general consequences are of no present significance. The interference, the subject of these proceedings, must be judged by reference to the whole subject matter of political communication, but only the exercise of political communication. However, in considering whether the purpose of the Public Health Act is legitimate, those considerations must be deferred to a later stage in the "structured" analysis.
Further, as noted in Kassam, the powers conferred by s 7(2), while broad, are confined by the necessity criterion, and by an implied requirement that the Minister act reasonably and in accordance with the subject-matter, scope and purpose of the Act. [35]
The submission that the powers conferred by the Act were not rationally connected to the legislative purpose was untenable.
Focussing on the Public Health Act, the Minister was given express power to make orders requiring segregation or isolation. There was no suggestion that a "stay at home" order was not within the Minister's power under s 7. Nor, presumably, was it asserted that the transmission of a virus depended on the purposes of the potential victim at a gathering. Other aspects of the Public Health Orders required limits on numbers of persons involved in social or other activities and distancing between such persons. If, as was at least implicit in the plaintiffs' submissions (and in the attempt to rely upon expert evidence), it were contended that aspects of the prohibitions contained in the Public Health Orders were arbitrary or otherwise not based on reasonable grounds, that might have provided a ground of challenge on administrative or judicial review; it did not provide a relevant criterion for determining that s 7 of the Public Health Act was unconstitutional under this specific heading.
Gray did not go on appeal, but Gibson did. The Court of Appeal in Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [45] stated:
"13 Although no issue arose in the present case as to the extent to which s 24 of the Act affords a protection against a charge of breaching cl 18 of the Public Health Order, it is by no means obvious to us that that section of the Act confers an immunity for breach of cl 18, 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."
The doubt cast by the Court of Appeal on the ruling in Gray (adopted in Gibson at trial) is of some significance in the present case. If Gray were right, the State would be correct in contending that the Public Health Act had no significant impact on any form of political communication. If Gray be wrong, and the provisions of the Public Health Act prevail over Pt 4 of the Summary Offences Act, then the plaintiffs have established a degree of burdening of political communication which requires justification. In my view, the reasoning in Gray is clearly wrong and should not be followed.
The purposes of the relevant statutory provisions demonstrate that the Acts operate in different and discrete areas. Part 4 of the Summary Offences Act is only engaged where a notice of intention to hold a public assembly has been served on the Commissioner pursuant to s 23(1)(a) of that Act. The purpose of serving such a notice is to obtain authorisation and thus immunity from offences of the kind identified in s 24. The subject-matter of the Summary Offences Act may be identified sufficiently from the titles to the various parts and divisions. Thus Pt 2 deals with "Offences in public and other places" including "offensive behaviour" (such as obstructing traffic), "dangerous behaviour", "prostitution" and the presence of minors in sex clubs. Clearly many of the offences under the Summary Offences Act would not fall within the immunity from prosecution under s 24 by persons participating in a public assembly; however, it is clear that the Summary Offences Act has nothing to say about constraints on assembly imposed for public health purposes. Nor would one expect the Commissioner of Police to be the arbiter of what is a public health risk and what is not.
The subject-matter, scope and purpose of the Public Health Act have already been outlined. If the Minister for Health deems it necessary to prohibit certain public gatherings, in order to contain, reduce or eliminate a public health risk, such an order could not be evaded by making an application to the Commissioner of Police under s 23 of the Summary Offences Act. The contrary view would be neither a coherent nor harmonious resolution of what is no more than an apparent conflict between two statutes of the New South Wales Parliament. Rather, the effect of orders under the Public Health Act, and the penalties imposed for non-compliance by that Act, constitute a self-contained set of constraints on public behaviour which has nothing to do with obstructing public thoroughfares or misbehaving in public parks.
That conclusion casts no doubt on the correctness of cases involving an application by the Commissioner of Police to prohibit a public assembly under the Summary Offences Act, but it removes any suggestion that the Public Health Act does not infringe political communication by way of a prohibition by order under s 7, on certain public gatherings.
In other respects, in Banerji the joint reasons stated in relation to adequacy in the balance:
"38 If a law presents as suitable and necessary in the senses described, it is 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. In this case, that directs attention to the quantitative extent of the burden and the importance of the impugned provisions to the preservation and protection of the system of representative and responsible government mandated by the Constitution." [Citations omitted.]
There is no doubt that public protests and demonstrations are a legitimate and important aspect of political communication. On occasion, they receive widespread publicity; on other occasions they are largely ignored by the media and hence communicate with very few members of the public. In either case, dissent from government action or legislation is a jealously guarded political freedom. On the other hand, maintenance of public health against significant risks is a centrally important function of government, whether at State or Commonwealth level. The powers conferred on a State Health Minister in that regard must permit of a high degree of flexibility and must include the power to act expeditiously and to impose significant constraints on members of the public. Statutory requirements that public health orders be "necessary" in their terms, may be reviewed administratively and can operate for only 90 days, impose significant controls over an otherwise far-reaching executive power.
The COVID-19 pandemic has demonstrated with clarity the speed at which a virus can spread, and the harm it can cause, including death, to those infected by it. COVID-19 was not the first pandemic and will no doubt not be the last. The measures taken to suppress it were widely, but not universally, accepted in the Australian community. The power to protest is, generally, a legitimate response. However, refusal to comply with a law, while it may constitute a form of expressive conduct and thus political communication, is not given unqualified constitutional protection in Australia. If it were, any person who disagreed with the law could refuse to comply with it with impunity. That in substance is the plaintiffs' case. They claim a constitutionally protected entitlement to take part in public gatherings to protest against a law which prohibits taking part in public gatherings. A law which is enacted for a legitimate purpose, is reasonably appropriate and adapted to the effectuation of that process, but which imposes a limited constraint on political communication, does not reveal a manifestly imbalanced adverse effect on political communication.
Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 at [277] (Nettle J).
In Palmer at [59], Kiefel CJ and Keane J suggested that Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1 might be such a case.
Commissioner of Police (NSW) v Gibson [2020] NSWSC 953 (Ierace J); Commissioner of Police v Gray [2020] NSWSC 867 (Adamson J); Commissioner of Police v Thomson [2020] NSWSC 1424 (Cavanagh J).
Gray at [51].
Gray at [52]-[53].
(2020) 102 NSWLR 900; [2020] NSWCA 160 (Bathurst CJ, Bell P and Macfarlan JA).
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Decision last updated: 27 March 2023