THE COURT:
1 On 30 November 2023, at the conclusion of oral submissions, we pronounced particular orders in respect of an application for leave to appeal and related application for an extension of time made by Mr Eric Cameron Wilson and Mrs Tracey Lee Wilson in respect of orders made in the original jurisdiction in proceedings which they had instituted against the State of Victoria and the Commonwealth of Australia. At that time, we indicated that we would publish as soon as possible thereafter, our reasons for the making of those orders. These are those reasons.
2 On 20 February 2023, acting under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Court gave summary judgment dismissing a proceeding instituted by Mr and Mrs Wilson against the State of Victoria and the Commonwealth: see Wilson v State of Victoria [2023] FCA 111 (primary judgment). In so doing, the Court made that day the following orders in respect of costs:
2. Any costs to be awarded in the proceeding are to be fixed by way of a lump sum.
3. On or before 4.00 pm on 6 March 2023, the parties:
(a) file proposed agreed orders on any orders for lump sum costs in the proceeding (including reserved costs); alternatively
(b) in the absence of agreement, file written submissions, limited to three (3) pages on the appropriate lump sum costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and a proposed form of order.
[Order 1 was the order granting summary judgment in favour of the respondents]
"We shall refer to orders 2 and 3 as the "20 February 2023 costs orders".
3 On 7 March 2023, and as a sequel to the 20 February 2023 costs orders, the Court made, nominally by consent, the following further orders in respect of costs:
1. The Applicants pay the costs of the First Respondent fixed in the sum of $30,000.
2. The Applicants pay the costs of the Second Respondent fixed in the sum of $20,000.
We shall refer to orders 1 and 2 as made on 7 March 2023 as the "7 March 2023 costs orders". Further and where necessary, we shall refer to the 23 February 2023 costs orders and the 7 March 2023 costs orders collectively as "the costs orders".
4 Mr and Mrs Wilson wish to challenge the order for summary judgment, together with the costs orders.
5 To do so, they require a grant of leave to appeal. That is because a decision granting summary judgment under s 31A of the FCA Act is deemed to be an interlocutory judgment - s 24(1D)(b), FCA Act - and an appeal against an interlocutory judgment lies only by the leave of the court or a judge - s 24(1A), FCA Act. The costs orders were ancillary to that interlocutory judgment.
6 Further, on their face, the 7 March 2023 costs orders were consensual, which, as to these orders, may engage the separate requirement for leave, flowing from s 24(1D)(a) of the FCA Act.
7 So it is that we approached the proceeding before us on the basis that Mr and Mrs Wilson required a grant of leave to appeal to challenge any of the orders made by the primary judge.
8 Contrary to a submission made by Mr and Mrs Wilson, the exception to the requirement for leave to appeal found in s 24(1C)(a) of the FCA Act, is inapplicable to the circumstances of this case. That is because none of the orders made by the primary judge subjected them to incarceration or some other total deprivation of their personal liberty. Such a construction of the phrase, "affecting the liberty of an individual" in s 24(1C)(a) of the FCA Act is, as Victoria submitted, the subject of a number of prior authorities in this Court, including, in the Full Court, Hastwell v Kott Gunning [2021] FCAFC 70, at [15] - [23]. It was not put that these authorities were clearly wrong and, in any event, we are not persuaded that they are. Accordingly, s 24(1C)(a) of the FCA Act does not confer an appeal as of right on Mr and Mrs Wilson.
9 Strictly, Mr and Mrs Wilson require an extension of time within which to seek leave to appeal. Under the Rules of Court, an application for leave must be filed within 14 days of the interlocutory order sought to be challenged (r 35.13(a) of the Federal Court Rules 2011 (Cth) (FCR)).
10 As it happens, Mr and Mrs Wilson filed what purported to be a notice of appeal within the 28-day time limit fixed by the FCR in respect of the institution of an appeal as of right (r 36.03(a)(i)). Because there had been no prior grant of leave, that document ought to have been rejected by the Registrar and not permitted to be filed. That Mr and Mrs Wilson did so does appear to offer, via a manifestation of a lack of understanding of a need for a grant of leave, the explanation for why a grant of leave was not sought within the prescribed time.
11 Thereafter, Mr and Mrs Wilson have filed what purports to be an amended notice of appeal and a further amended notice of appeal. Once again, the absence of a prior grant of leave ought to have led the Registrar to reject the filing of these documents.
12 Based on the absence of a prior grant of leave to appeal, both the Commonwealth and Victoria objected to the competency of the appeal. In response, and insofar as the same was necessary, Mr and Mrs Wilson applied for a grant of leave. The Commonwealth and Victoria opposed any grant of leave to appeal. In so doing, each accepted that there was, in light of an obvious misunderstanding by Mr and Mrs Wilson of the need for a grant of leave, an explanation for why they had delayed seeking leave to appeal.
13 Of course, apart from whether there is an acceptable explanation for delay, the prospective merits of an application for leave to appeal can be relevant to whether or not to grant an extension of time within which to seek leave to appeal. However, in the circumstances of this particular case, the preferable course in our view is to grant Mr and Mrs Wilson an extension of time and then squarely address whether or not to grant leave to appeal. So doing does not visit any prejudice on either the Commonwealth or Victoria.
14 Whether or not to grant leave to appeal requires the exercise of a discretion which, on its face, is unfettered but must be exercised judicially. The exercise of that discretion is usually informed, and in this case should be exercised, by reference to principles discussed by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, at 398 - 400 (Sheppard, Burchett and Heerey JJ). Flowing from that case and those principles we ask ourselves two interrelated questions:
(a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and
(b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong?
15 In so doing, we bear in mind that the decision sought to be challenged is not an interlocutory value judgement on a matter of practice and procedure which calls for circumspection in granting leave, but rather one which, although deemed to be interlocutory, nonetheless has a quality of finality about it in a practical sense. Related to the latter, and as the primary judge appreciated, summary judgment under s 31A of the FCA Act could only be granted if the criteria in that provision, as explained in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer), were met. In turn, that the primary judge was addressing whether summary judgment criteria were met provides a prism through which to assess whether any of the alleged errors are such as to warrant a grant of leave to appeal.
16 When considering s 477A of the Migration Act 1958 (Cth) and the exercise of a discretion to extend the time within which to bring an application for a remedy in relation to a migration decision, the High Court considered that an assessment of the merits of the substantive application is usually, although not invariably, undertaken at an impressionistic level: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819, at [12] and [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The same approach applies by analogy to an application for leave to appeal such as in the present case.
17 Approaching the question of whether to grant leave in this way, we would refuse to grant leave to appeal, save in respect of the costs orders.
18 Our reasons for a refusal of leave are as follows.
19 As they came to be identified by their amended originating application of 21 January 2022, Mr and Mrs Wilson sought various types of declaratory relief arising from various measures taken by the Commonwealth or, as the case may be, Victoria, which were reactive to the COVID-19 pandemic. The measures in question might generally be described as those which related to the provision of vaccines in respect of the virus that causes COVID-19 and restrictions imposed on the activities of individuals, especially with respect to attending workplaces, who were not vaccinated against that virus.
20 The particular types of declaratory relief sought are detailed by the primary judge (at [4] and [5]) in her Honour's reasons for judgment. Also to be found in those reasons for judgment are the extracts of pertinent constitutional and legislative provisions of the Commonwealth, Victoria and the United Kingdom or the predecessors of the latter. We incorporate all of that by reference without repeating it.
21 Treating Mr and Mrs Wilson's purported further amended notice of appeal as an expression of the bases upon which they seek leave to appeal, it might first be observed that, on its face, it takes the form of an alleged denial of procedural fairness by the primary judge with some 17 numbered particulars of alleged unfairness being given.
22 Yet it is clear to the point of demonstration that, if nothing else, her Honour amply discharged the judicial obligation to afford Mr and Mrs Wilson an opportunity to be heard in respect of the application for summary judgment and did so without there being a scintilla of evidence of any bias on her part, be that real or apprehended. Viewed as an allegation of a denial of procedural fairness, the case for a grant of leave is thus utterly hopeless.
23 So viewing the further amended notice of appeal would not, however, in our view, do justice to Mr and Mrs Wilson, who act for themselves. And to be fair, neither the Commonwealth nor Victoria sought the disposal of the application for leave to appeal only on such a narrow and literal reading of the proposed grounds of appeal. Instead, whether to grant leave to appeal should, in our view, be approached on the basis that Mr and Mrs Wilson seek leave to appeal on any or each of the 17 different grounds which they identify in that notice.
24 Further, as we have mentioned, the prism through which to view Mr and Mrs Wilson's leave to appeal application is that the judgment they seek to challenge is one given summarily under s 31A of the FCA Act. To give summary judgment under that section, the primary judge had to be satisfied that the proceedings instituted by Mr and Mrs Wilson were attended with no reasonable prospect of success. In Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis), Reeves J conducted a notable survey of authority concerning s 31A of the FCA Act, both before and after Spencer, as well as an analysis of the judgments delivered in Spencer. We share the view voiced by his Honour at [19] in Cassimatis that each of the joint judgments delivered in Spencer counselled caution in the granting of summary judgment under s 31A of the FCA Act. If, with reference to one or more of their 17 proposed grounds, Mr and Mrs Wilson can show that, arguably, the primary judge in effect conducted a "mini-trial" (cf Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, at 260-1) in circumstances where the issues of law, or fact or mixed law and fact warranted a trial on the merits, they would be entitled to a grant of leave.
25 The 17 grounds identified by Mr and Mrs Wilson are as follows:
1. It was found in error our complaints "do not found a justiciable controversy" at [38] regarding the lapsing of National Health Amendment (COVID-19) Act 2021 (Cth) Schedule 1, by not considering:
(a) the cessation of the Amendment did not undo its ongoing arrangements by which Jab mandates can be and/or are operative;
(b) a loss of livelihood, forfeiture of insurance and credit, or charges for non or late-payments, caused or made worse by Jab mandates of the First Respondent relying on the unlawful and wilful authorisations/provisions of the Second Respondent, is compensable under s. 204 of the Public Health and Wellbeing Act 2008 (Vic) and common law.
(c) Jab mandates if not "under law" when seriously limiting statutorily protected human rights, are vindicable.
2. The reasons state "the Applicants cannot explain how a declaration related to the vaccine rollout might produce a foreseeable consequence for them" at [40]. However, we say this was in error because the declarations sought will enable:
(a) redress for tems (a), (b) and (c) above;
(b) the restoration of the Applicant's lawful doctor/patient relationships in genuine COVID-19 medicine including full free and informed consent (Charter s. 10(c));
(c) the restoration of our electoral franchises instead of rule (or potential rule) by unlawful inter-government fiat;
(d) the prevention of interference in our business, employment, community and family relationships by unlawful mandatory Jab requirements.
3. Regarding the Public Health and Wellbeing Act 2008 (Vic), the reasons wrongly state "section 204 does not apply" at [47]. But the Vaccinated Economy Directions were:
(a) made by the Chief Health Officer who authorised himself or others; and
(b) the authorisations should not have been made because
(i) they implemented the Vaccinated Economy not in accordance with the Public Health and Wellbeing Act Vic (2008) and/or
(ii) they were given for the purpose of mandating a Vaccinated Economy by way of unconstitutional arrangements with the Second Respondent and/or
(iii) the reason for the authorisation, that there was a "pandemic of the unvaccinated" ravaging the entire State, was facnciful, misdirected and absurd on ABS (and other official) evidence.
4. The "not so as to authorise any form of civil conscription" constitutional guarantee of s.51(xxiiiA) does not apply to the Global Clinical Trial / Jab Rollout for patients at [61, 62, 64], yet our case was not properly considered that:
(a) The applicable test should be: "Did the Commonwealth authorise a form of civil conscription when providing for a medical service under a law of the Commonwealth?" and the guarantee was breached, because:
(b) The First Respondent required classes of workers to "serve medically" by attending a medical procedure and be registered, to erect the Vaccinated Economy for the purported protection of the community even overriding personal doctor's advice; and
(c) The Second Respondent authorised these mandates by willfully providing for them and promoting them under Federal law (National Health Amendment (COVID-19) Act 2021 Schedule 1 and Fair Work Act 2009 s. 682(1)(a));
(d) References to doctors or patients are an impermissible gloss on the Constitutional text. (e)Thin analogies based on just terms property law causation reliaed on in Kassam are unhelpful because each case turns on its own circumstances as stated by all High Court justices in Wong. Our case is materially different from what was put in Kassam and Knowles relied on in the reasons. We should be heard.
5. The reasons failed to consider our two alternative s. 51(xxiiiA) Constitutional claims because they were not directly attacked by the Respondents even put on notice to do so:
(a) the head of power to provide pharmaceutical benefits and medical services is benevolent and not wide enough to supply the Global Clinical Trial / Jab Rollout or Australian Immunisation Register to medically competent persons coerced into participation. We should be heard.
(b) that the term 'medical' is itself not broad enough to provide the Global Clinical Trial /Jab Rollout to medically competent persons against established standards of medical ethics regarding coersion. We should be heard.
6. Concerning the Australian Imunisation Register Act 2015 (Cth) the reasons state "A request made under s 11(2) [opting out] does not apply to s 22(2)(d) [allowing disclosures under State law]" so there is no section 109 inconsistency at [71]. But our case (put in the alternative to paragraph 8 below) that:
(a) The purpose of the Register is confined to "medical services without civil conscription" under s. 13 contrary to the First Respondent's use of it.
(b) Section 11 is dominant over s. 22(2)(d) because the Commonwealth must speedily stop sharing protected information by a person who opts out, which is also binding on the First Respondent under covering clause 5 of the Constitution.
(c) There is no provision in the Federal Act for State legislation to force a person to opt back in under Vaccinated Economy Directions or Pandemic Orders, and section 6 binds the Crown in right of the State to the entire Act including the opt-out clause in section 11.
(d) Tha Act under section 22(2)(d) cannot authorise any form of civil conscription by providing the neccesary information for the Vaccinated Economy Directions and Pandemic Orders, by virtue of s. 51(xxiiiA) of the Constitution.
(e) For each of these reasons the Vaccinated Economy Directions of the Chief Health Officer and the Pandemic Orders by the Minister of the First Respondent which were only practicable in reliance on the coerced use of the Australian Imunisation Register Act 2015 (Cth) were inconsistent with Federal law and invalid. If so, the Respondents cannot succeed. was not properly considered.
7. That "Given Pandemic Directions and orders were made pursuant to the Public Health and Wellbeing Act and not the Occupational Health and Safety Act 2004 (Vic) … this contention [that the risk management of the later act should apply] is misconceived and need not be considered further" at [23(g)]. However this was in error:
(a) Nothing in "Part 16 - COVID-19 temporary measures" of the Occupational Health and Safety Act 2004 (Vic) changed the risk criteria to be applied in workplaces or authorised the Chief Health Officer to direct a more risky criteria.
(b) Constitutional law requires that when a power is conferred by Parliament to make new laws those new laws cannot override another Act unless the empowering Act auithorises this. The Public Health and Wellbeing Act 2008 (Vic) does not.
(c) The risk management of the Occupational Health and Safety Act 2004 (Vic) must be applied to satisfy the proportionality principle of s. 9 of the Public Health and Wellbeing Act 2008 (Vic) or must be considered to be reasonable in what is "resonably neccesary" for Vaccinated Economy Directions or Pandemic Orders. We should be heard.
8. The reasons state "The claim of an implied right of privacy is not supported by authority and is untenable" at [68], was in error because:
(a) The right being the corollary of the Crown's long-established constitutional duty not to interfere with the liberties of the subject without lawful authority;
(b) that the right / duty is implicit in the written Constitutional term "subject of the Queen";
(c) the right of constitutional privacy is the pre-condition of parliamentary sovereignty within each constitutional domain, otherwise executives don't need their Parliaments to authorise new laws over subjects of the Queen;
(d) In Wooltops [1922} HCA 62part of the privacy expressed by Issacs J was derived from the subject of the Queens' national character upon which government powers may only act within their constitutional domains.
(e) Separate constitutional domains operating on the same person was recognised by Brennan J in R v Dunkan [1983] HCA 23 as having to maintain separation of the character and incidents of power, not one imposing penalties in relation to another as the Vaccinated Economy Directions and Pandemic Orders did, and workplace laws are said to do.
(f) Combined State / Federal powers must be federalised under sections 51(xxxvii) and 51(xxviii) of the Constitution to be in a valid constitutional domain to bring them within the High Court's supervisory jurisdiction under section 71(4)(iii)(v) for our protection.
(g) therefore the following mixing / matching of State and Federal laws by executives without the consent of their Parliaments was and is unlawful:
(i) The coerced use of the Australian Immunisation Register as a workplace entry mechanism for subjects of the Queen;
(ii) coercing subjects of the Queen into a federal Global Clinical Trial / Jab Rollout program (conducted under the National Health Amendment (COVID-19) Act 2021 (Cth)).
mandating these undermined our federal liberty since Federal Parliament made no such provision in federal law by clear words, and in the case of health could not so authorise without referred health power from the Victorian State Parliament which it does not have.
9. Nothing about Pandemic Orders "renders the power conferred indeterminate in the sense of being either unfettered or unreviewable" at [77], this is an error because:
(a) Administrative actions operating outside Victoria's protected human rightsdo not have the unlawful uncertainty of 7(2) of the Charter used as the ambit of a criminal lawmaking power under colour of protected human rights.
(b) The "interpretation" of the Ministers power must be by the Charter under s. 165A(2) of the Public Health and Wellbeiung Act 2008 (Vic).
(c) There is no express power in Part 8A to limit the right of full free and informed consent to medical treatment or experimentation (provided in s. 10(c) of the Charter) to mandate a Global Clinical Trial / Jab Rollout that deprives our livelihoods if we don't comply.
(d) A Minister confering such power on themselves is a legislative function to consider everything in s. 7(2) of the Charter to limit that protected human right with the Minister's "any order" power expressly subject to protected human rights under 165A(2) being part of the objects to be achived under Part 8A.
(e) The High Court declined the invitation to legislate in Pidoto v Victoria [1943] HCA 37, Breen v Williams [1996] HCA 57, and Attorney-General (Cth) v Huynh [2023] HCA 13, as did three High Court justices regarding 7(2) of the Charter as an interpretive tool, in the hung case of Momcilovic v the Queen [2011] HCA 34.
(f) Neither Chu Kheng Lim or Pompano relied on suggest Courts should accept legislative functions from a parliament, nor do they relate to protected human rights.
(g) The power to limit rights was already a given in Eshetu and Enfield relied on In the present case, the uncertain interpretation of the limiting power itself is in issue since 7(2) was employed for the task;
(h) There is no interpretation of a power by the Charter alone which could limit a human right (s. 7(3) of the Charter) and there is nothing in the pre-conditions to the enlivenment of the Minister's power considered in the reasons which bears on the ambit of its potential exercise to limit s. 10(c) of the Charter to impose Jab mandates in conformity to with the Charter.
(i) Limitations of protected human rights cannot be determined by the Minister's opinions for it is the Charter which is normative of ministerial power (s. 4(1)(f)). For the breadth of the Minister's power to legislate is not a question of satisfaction of the existence of a particular thing in this case but the application of the broad public policy and political considerations of 7(2) of the Charter to deturmine how wide the Minister's power should be.
(j) "It is, emphatically, the province and duty of the judicial department to say what the law is" so the ambit of the Minister's criminal law-making power must be interpretable by the Courts which cannot be reasonably done under s. 7(2) of the Charter. That is Parliament's job alone.
(k) Only the rights (plural) themselves are adopted by s. 32 of the Charter as applying to legislation under s. 49(1), not the method of limiting a right in 7(2). That method governs the discretion of Public Authorities once the power to limit a protected right has been already allowed by Parliament.
10. "The validity of the Pandemic Orders is not affected by s 32 of the Charter if the order is empowered by the Public Health and Wellbeing Act" at [102]. But this incorrectly assumes the rule in Kerrison displaces the Charter in the making of subordinate legislation, which in our alternative case to paragraph 9, it does not:
(a) The Minister's power was not excersised lawfully because he did not interpret the ambit of his power correctly, if doing so by reference to 7(2) of the Charter was valid.
(b) Section 32 of the Charter cannot be disapplied from Part 8A of the Public Health and Wellbeing Act 2008 (Vic) because that Part is intended to be interpreted by the Charter by reason of s. 165A(2).
(c) Assuming the Minister somehow can limit our right under s. 10(c) of the Charter such power would only become available if the limitation was justifiable under 7(2) of the Charter to satisfy 32(1) of the Charter in this alternative case.
(d) The Minister's statements attempting to justify the Pandemic Orders under 7(2) of the Charter demonstrate he did not properly turn his mind to the task, since the impacts of limiting protected human rights were improperly considered per his written reasons.
(e) Therefore the Minister never formed a valid opinion to enliven the power to give the Pandemic Orders.
(f) This is a different scenario to Kerrison relied on in the reasons, where a wide power to make local laws was not questioned, or whether the council voted correctly when making them.
(g) Alternatively, if we must challenge under s. 38 of the Charter as the reasons assume, Kerrison shound not be followed as countenanced by the Supreme Court of Victoria in Harding v Sutton [160], we say in this case because:
(i) Parliament knew when it made Ministers accountable under s. 4(1)(f) of the Charter, that Minisers often make subordinate instruments;
(ii) Parliament also knew when it extened the Charter to all Acts under s. 49(1), that many Acts empowered Ministers to make subordinate instruments;
(iii) In a case were this is not possible to achieve considering the purpose of a provision, the Minister's power is saved under s. 32(3)(b) or Parliament can make an override declaration vis-a-vis 21(2).
(iv) Parliament expects these parts of the Charter to be operative under s. 165A(2)(b) of the Public Health and Wellbeing Act 2008 (Vic) but will be moot if Kerrison is followed. For there is no reason for the savings of 32(3)(b) or 21(2) to exist if subordinate instruments are not usually subject to the Charter;
11. The reasons state "The Imperial Acts referred to do not support the Applicants' claims as against the State of Victoria" because the impugned laws were authorised by statute at [86]. But in case if our previous grounds are all unsuccessful, the following was not considered:
(a) The validity of similar Directions was doubted as not obvious in Harding v Suttion [2021] VSC 741 at [165-168] based on the non-legislative nature of the power conferred under s. 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic);
(b) For the reasons given in paragraph 7 above, the impugned Directions cannot override an Act of Parliament such as the workplace risk management regime of the Occupational Hearth and Safety Act 2004 (Vic).
(c) And the First Respondent was obliged by law to justify its blanket interference with our liberties yet failed to respond to these doubts, meaning our case should not have been dismissed.
And further, in any case, the Imperial Acts would still apply to condition statutory executive powers because:
(d) The impugned Directions did not restrict movement for public health but rather the ability to work generally to erect a Vaccinated Economy despite the right to work one's occupation being fundamental and requiring clear words from Parliament to override. No such clear words are contained in the Public Health and Wellbeing Act 2008 (Vic). So neither the Imperial Acts nor the Charter have been displaced.
12. The reasosns say there is a "legal or compulsive effect" test at [109] as to whether protected human rights have been observed, or whether Imperial Acts have been contravened. We say no such test applies but if it did, our case would pass it:
(a) The Premier of the First Respondent declared a timetable by which the Applicants would need to join the Global Clinical Trial / Jab Rollout in order to work. This was compulsive when the Respondents represented that it would be given legal effect the next business day, which statement was untrue but not effectively retracted.
(b) Requiring the Applicants to join the Global Clinical Trial / Jab Rollout before the Direction was actually made, denied natural justice and rights of review.
(c) Things done tending to the erection of practices prohibited by the Statute of Monopolies do not require legal or compulsive effect of themselves to be unlawful;
(d) Conduct need not have legal or compulsive effect to unlawfully limit human rights, for example a failure to properly consider full free and informed consent to medical treatment or experimentation, may be incompatible conduct under s. 38(1) of the Charter.
(e) The "legal or compulsive effect" test is unknown to law and not a basis of summary dismissal, otherwise it is not open to conclude that there was no legal or compulsive effect for summary dismissal in our case.
13. The reasons state "wide-ranging factual and legal arguments" regarding intergovernmental agreements prevented any reasonable prospect of success at [52], despite:
(a) The Respondents' submissions and evidence admitting they acted jointly;
(b) The Second Respondent putting on the inter-governmental agreement in evidence (TPC-5/6) of which only a small part could be relevant, and without any orders for discovery being neccesary;
(c) The issue of whether the jointness amounted to the Second Respondent's authorisation to contravene s. 51(xxiiiA) of the Constitution turned on other bases;
(d) case management principles should not be invoked for summary dismissal before the parties can state their positions in relation to the particular issue troubling the Court.
14. That it was "extremely difficult to see how the Applicants' case can be improved by clearer or more fulsome pleadings" and "there should be summary judgment for the Respondents" at [118-119]. This is incorrect because:
(a) items 1-3 above were not weighed in the balance having been excluded or were in error or not properly considered;
(b) any of the other grounds of appeal in items 4-14 above;
(c) the "pandemic of the unvaccinated" issue which arose on the evidence of the First Respondent is itself a basis of action not considered in the judgment (paragraph 3(b)(iii) above) and should be heard;
the extent of the Second Respondent's involvement in the matter was not properly appreciated in the reasons.
15. The utility of declarations in a fundamental freedom or human rights case should turn on the seriousness of the matter since heavy burdens and severe limitations implicitly damage the individual. We were not heard in this regard, and our protected human right of freedom to practice our beliefs in relation to our protected human right of full free and informed consent to any medical treatment or experimentation was wrongly negated by caselaw from a non-enacted human rights matter.
16. The reasons erred by not showing where all the fundamental freedoms and / or enacted human rights were expressly or by necessary implication limited by clear words of statute, except in relation to freedom of movement. Since our other protected human rights and fundamental freedoms were not shown to be limitable or burdenable by statute, the Court should have failed the "no reasonable prospect of success" test for summary dismissal as a threshold consideration.
17. We were ordered to settle costs by lump sum, whereby under GPN-COSTS (4) the only issue is quantum. But this order was made before giving us opportunity to be heard that:
(a) The Respondents failed to file any Genuine Steps Statement required by statute, since no real effort was made to reduce this case by properly answering our concerns.
(b) The Respondents were ordered by Anastassiou J on 30 November 2021 to write a letter to us explaining their concerns with our Statement of Claim so we could use leave granted to address them. But none of the issues recorded in the reasons regarding prolixity, allegations and particulars rolled together or claims being part of other claims, were adequately expressed in their letters if at all. Instead we were ambushed by these issues in interlocutory applications with claims for costs despite the orders. When put on notice of this they still pursued their costs.
(c) The Respondents were put on notice they were abusing the Court's processes pursuing summary dismissal when many issues were disputable and not all claims disputed. This too was not considered by the primary judge, and an awarded of costs will only encourage similar s. 31A first-strike strategies in future, where applicants lose control of their case by effectively becoming the respondents.
(cd) We recognise our case was not professionally pleaded (yet was good enough to agitate most of the issues in this appeal) so there should be no order as to costs.
(de) No orders as to costs is also fair because this case is predominantly about public law and new purported legislation combining with unusual inter-governmental arrangements to greatly impinge upon civil liberties and limit human rights across the entire State.
(f) No orders as to costs is also fair because this is not unusual in human rights jurisdictions due to their protective nature.
[sic - emphasis in original]
26 The short answer to each of these proposed grounds of challenge is that, having carefully considered the written and oral submissions of Mr and Mrs Wilson, as well as those of the respondents, we are not at all persuaded that any of these grounds, save ground 17 in respect of the costs order, enjoys a sufficient prospect of success to warrant a grant of leave to appeal or that denying leave would visit any injustice on Mr and Mrs Wilson. To the contrary, considering matters afresh, we agree with the course taken by her Honour, for the reasons which she gave, of ordering summary judgment.
27 In deference to the submissions made by the parties, we would add the following.
28 Necessarily, by instituting a proceeding in this Court, which is established under Chapter III of the Constitution, Mr and Mrs Wilson sought to invoke an exercise of federal judicial power. Such an exercise of judicial power can extend to the determination of non-federal issues which are associated with a federal issue. Earlier this year, in Unions NSW v New South Wales [2023] HCA 4; (2023) 97 ALJR 150 (Unions NSW), at [14], Kiefel CJ, Gageler, Gordon, Gleeson & Jagot JJ stated in their joint judgment that the "making of declarations is an exercise of judicial power only where the seeking and giving of those answers or declarations arise in or out of the judicial determination of the rights and liabilities in issue in the dispute." They added, also at [14], "That understanding of the Court's function is reflected in the constitutional requirement that a dispute involves a "matter" for the purposes of Ch III of the Constitution." A person's standing to seek declaratory relief is a "component" of a "matter". Thus, also in the joint judgment in Unions NSW at [18], it was stated:
As the standing of a party to seek declaratory relief depends on the sufficiency of the interest of that party in obtaining that relief, a sufficient interest must continue to subsist up until the time at which relief is granted or refused. If, after the commencement of a proceeding, a party ceases to have a sufficient interest in obtaining the relief sought, that party no longer has standing to obtain that relief, the "matter" ceases to exist and, in consequence, the jurisdiction of the Court comes to an end. But that is not to say that the interest must remain the same throughout the proceeding; the nature of a party's interest may change but still remain sufficient.
29 These overarching requirements for an exercise of federal judicial power were, rightly, in our view, said by the Commonwealth and Victoria to bedevil the endeavour by Mr and Mrs Wilson, via ground 1, to allege error by the primary judge in summarily dismissing their challenge to the legality of arrangements made pursuant to amendments made to the National Health Act 1953 (Cth) (NHA) by the National Health Amendment (COVID-19) Act 2021 (Cth) (2021 National Health Amendment Act). The 2021 National Health Amendment Act introduced a new Pt VIIIB into the NHA. It contained one section, s 132G which, by s 132G(1) enabled the Minister to provide or arrange for the provision of:
(a) COVID-19 vaccines (including boosters); and
(b) treatments for COVID-19; and
(c) consumables related to the use of such vaccines and treatments
30 Contrary to what was put for Victoria, s 132G has not been repealed. It remains in the NHA. It is just that s 132G(3) provides that Pt VIIIB has no effect after 30 June 2022. That Part has, as the primary judge correctly understood, lapsed.
31 Flowing from s 132G(3) of the NHA, a burden for Mr and Mrs Wilson which the learned primary judge appreciated and the respondents have highlighted, is its impact on whether there is any practical utility (if there ever was) in the grant of declaratory relief concerning the legality of any arrangements by the Minister under s 132G. This is a consideration that is relevant to the exercise of the discretion to grant declaratory relief and, more fundamentally, as to whether there remains, if there ever was, a "matter" in a constitutional sense concerning the legality of those arrangements so as to engage this Court's jurisdiction.
32 Appreciating these difficulties, Mr and Mrs Wilson, by ground 1(a) sought to find comfort in s 7 of the Acts Interpretation Act 1901 (Cth). However this section, which is applicable to provisions which have lapsed (see s 7(3)(d)), merely preserves whatever past arrangements were made by the Minister. They are not a source of power to make new arrangements.
33 Another difficulty, which is not limited to ground 1(a) but applies more generally to the proposed grounds of appeal, is that Mr and Mrs Wilson do not identify any particular ongoing arrangements under Pt VIIIB the legality of which they seek to impeach; nor do Mr and Mrs Wilson identify how any such arrangements have given rise to a controversy to which they are a party. As such, they have failed to demonstrate how a determination of the legality of the arrangements which they seek to impugn could be of practical utility in any controversy to which they are a party.
34 Seemingly appreciating these difficulties, Mr and Mrs Wilson point to a right to compensation conferred by s 204 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). This section confers on a person a right to compensation where:
(a) they suffer loss as a result of a decision by the Chief Health Officer (CHO) to give an authorisation to an authorised officer under Div 3 of Pt 10 of the PHW Act; and
(b) the Secretary determines there were "insufficient grounds for the giving" of the authorisation.
35 Nonetheless, Mr and Mrs Wilson can point to no interface between any Ministerial arrangement under s 132G of the NHA and anything authorised under the PHW Act. The invalidity of any federal ministerial arrangement under s 132G could have no effect on the legality of any decision of Victoria's Chief Health Officer to authorise the exercise of any emergency powers under the PHW Act.
36 Further, insofar as there existed any requirement for any person in Victoria to be vaccinated, that requirement was wholly a creature of State law, and not of any federal ministerial arrangement under s 132G of the NHA. Ground 1(c) is thus utterly hopeless.
37 As to proposed ground 2, Mr and Mrs Wilson could not, as the primary judge concluded, and still cannot, by pleadings or otherwise howsoever identify how a "declaration related to the vaccine rollout might produce a foreseeable consequence for them".
38 As to proposed ground 3, as the primary judge concluded and as Victoria submits, there is a distinction between the CHO's authorisation of an authorised officer to exercise emergency powers and the exercise of those powers in a given case by an authorised officer. The right to compensation conferred by s 204 of the PHW Act arises only in respect of the CHO's authorisation of an authorised officer not in respect of the exercise of those powers. The primary judge was therefore plainly right in rejecting this ground.
39 Grounds 4 and 5 seek in one way or another to raise an argument that the qualifying clause in the head of Commonwealth legislative power in s 51(xxiiiA) of the Constitution - "but not so as to authorise any form of civil conscription" - was engaged when federal ministerial authorisations were made under s 132G that created an incentive for patients to undertake vaccinations. As the primary judge appreciated, there are a number of answers to this. One is that this is truly a qualifying clause to a head of Commonwealth legislative power, and not a constitutionally entrenched, free standing immunity from civil conscription. It follows that the qualifying clause in s 51(xxiiiA) on which Mr and Mrs Wilson seek to rely has no effect on the validity of State legislation which may authorise vaccination.
40 Another answer which, like the primary judge, we are bound to give, is that there must be a compulsion in a legal or practical sense to carry out work or provide services in order for there to be "civil conscription": Wong v The Commonwealth [2009] HCA 3; (2009) 236 CLR 573 (Wong). An incentive to undertake vaccination, perhaps because a vaccine and its administration will be provided as a service at the expense of the Commonwealth, does not in any sense amount to "civil conscription".
41 A new issue, sought to be introduced by Mr and Mrs Wilson via the proposed grounds, was that the vaccination concerned had to be medically necessary. This seeks to put a gloss on the language of s 51(xxiiiA) of the Constitution which is not present in the breadth of language of the text.
42 Ground 6 relates to Victoria's use of information on the register maintained under the Australian Immunisation Register Act 2015 (Cth) (AIR Act). It appears that Mr and Mrs Wilson now seek to agitate, as they did not below, an issue that the AIR Act authorises a form of civil conscription. This cannot possibly succeed, even were we disposed, exceptionally, which we are not, to permit it to be raised for the first time on an appeal. Nothing in the AIR Act amounts to a form of impermissible civil conscription as explained in Wong.
43 This aside, the submission of Mr and Mrs Wilson is that a request could be made under s 11(2) of the AIR Act for certain personal information not to be disclosed from the register for certain purposes and yet Victoria was purporting to permit information on the register to be used to confirm vaccination. The complete answer to this, given by the primary judge, is that s 22(2)(d) of the AIR Act authorises a person to make a record of, disclose or otherwise use protected information if required or authorised to do so by or under a State law.
44 Ground 7 seeks to impugn the legality of various announcements made by the then Premier of Victoria about public health measures and directions made by Victoria's CHO on the basis of inconsistency with the Occupational Health and Safety Act 2004 (Vic) (OHS Act). But the source of the CHO's authority to make the directions was the PHW Act. As the primary judge concluded, there is no demonstrated inconsistency between the OHS Act and the PHW Act. All that the Premier did by his public statements was to highlight the position, current or prospective, in terms of directions under the PHW Act.
45 Ground 8 seeks to advance an argument that there is an implied right of privacy in the Commonwealth Constitution. The primary judge was correct to hold that this argument "is not supported by authority and is untenable".
46 It may be accepted that there is a principle of legality pursuant to which, in the absence of clear words or necessary implication, the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. It may also be accepted, as did Keane and Gageler JJ in Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196, at [313], that this principle is "not confined to the protection of rights, freedoms or immunities that are hard-edged, of long-standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values." However, as their Honours further explained, this principle "does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature". Making the assumption that privacy falls within the principle of legality, that does not mean that privacy impacts in some way upon the validity of an incentive to undergo vaccination by an arrangement under s 132G of the NHA. Much less would this approach to statutory construction operate as any prohibition on a vaccination incentive contained in a direction lawfully given under the PHW Act.
47 Ground 9 seems premised on a proposition that the Minister is not empowered by s 165AI of the PHW Act to make orders which limit rights protected by Victoria's Charter of Rights (Charter). The short answer to this is, as Victoria submitted, that the PHW Act expressly contemplates that an order made under s 165AI might limit a Charter right: s 165AP(2)(c) and (d).
48 Ground 10 alleges that the primary judge erred in finding that the validity of the Pandemic Orders is not affected by s 32 of the Charter if the order is empowered by the PHW Act. One answer to this has already been provided in dealing with ground 9. Another is provided by this Court's earlier judgment in Kerrison v Melbourne City Council [2014] FCAFC 130; (2014) 228 FCR 87, at 133, [182], [198] - [199], which is that the making of a subordinate instrument by a public authority is not comprehended by the phrase "to act in a way" in s 38(1) of the Charter.
49 Ground 11 alleges that, in dismissing Mr and Mrs Wilsons' claim in relation to various United Kingdom Acts, as locally applied, the primary judge failed to consider various claims that the Directions and the Pandemic Orders were not authorised by statute. Nonetheless, they were considered by the primary judge, with resultant correct conclusions. Further, Victoria's submission that any argument that the PHW Act did not permit the making of directions under s 200(1) or (later) pandemic orders under s 165AI which had the effect of restricting a person's ability to work is untenable is correct. The argument is contrary to the express language of these provisions. As Victoria submitted, s 200(1)(d) of the PHW Act, under which the impugned "Vaccinated Economy Directions" were made, empowered authorised officers to "give any other direction [i.e. in addition to a direction under s 200(1)(b) which restricts movement] the authorised officer considers is reasonably necessary to protect public health". A direction which has the effect of limiting a person's ability to perform particular work is plainly within contemplation of that provision. So too, as Victoria submitted, does s 165AI of the PHW Act contemplate that orders given pursuant to that provision may impact rights beyond any right to free movement. The various United Kingdom Acts to which Mr and Mrs Wilson refer operate if at all subject to any local qualification.
50 Ground 12 seeks to give operative legal effect to various announcements by the then Premier of Victoria. However, as Victoria submitted, the primary judge correctly rejected the applicants' allegations about announcements made by the Premier on the basis that the announcements did not "have legal or compulsive effect", "did not affect legal rights" and "did no more than foreshadow the making of directions by the [CHO]".
51 Ground 13 is premised on a misunderstanding of the reasons of the primary judge. It alleges that her Honour was wrong to conclude that Mr and Mrs Wilsons' challenge entailed "wide-ranging factual and legal arguments" regarding intergovernmental arrangements. This was an accurate description of those arguments, always relevant to case management. Further, judicial power does not entail some sort of roving inquiry into the wisdom or otherwise of value judgements made in the course of public administration: it is limited, as has already been explained, to the quelling of a justiciable controversy.
52 Ground 14 takes issue with the primary judge's conclusion that Mr and Mrs Wilsons' pleadings could not be improved. We agree with her Honour's conclusion. Fundamentally, the reason why they could never be improved was that they sought to raise propositions which were in law untenable and to do so without identifying a "matter" in a constitutional sense.
53 Ground 15 asserts that, in the primary judge's determination of the utility of the declarations sought, Mr and Mrs Wilson were not heard on the "seriousness of the matter". This is but a rehearsal of the allegation in the chapeau to the grounds of an alleged denial of procedural fairness. Mr and Mrs Wilson were afforded, and took up with alacrity, an opportunity to be heard by the primary judge. Further, at the very highest, and that is a large assumption, all that Mr and Mrs Wilson could achieve, was what was termed in Unions NSW, at [26], "the satisfaction of a statement by the Court validating their contentions of an historical wrong". The conclusion of the primary judge that this entails no justiciable controversy and therefore no "matter" was correct.
54 By ground 16, Mr and Mrs Wilson allege that the reasons of the primary judge do not show where all the "fundamental rights" they asserted were expressly or by necessary implication limited by clear words of statute. However, in the face of a conclusion that the various impugned Vaccination Directions and the Pandemic Orders were authorised by the PHW Act, the reasons for judgment were more than sufficient.
55 Finally, a refusal of leave to appeal in respect of any of grounds 1 to 16 visits no injustice, practical or otherwise, on Mr and Mrs Wilson. There is no subsisting declaration of a state of emergency under s 198 of the PHW Act empowering the Minister to make a pandemic order.
56 As to ground 17, on delivering judgment the primary judge ordered that "[a]ny costs to be awarded in the proceeding are to be fixed by way of a lump sum". Her Honour did not, in terms, by the 20 February 2023 costs orders order that Mr and Mrs Wilson pay either the Commonwealth's or the State of Victoria's costs. Instead, her Honour's orders contemplated that any costs ordered would be fixed in a lump sum and left it to the parties in the first instance to agree in whose favour a costs order would be made and, if no agreement were reached, to file short written submissions as to who should pay costs.
57 It became obvious at the hearing that neither Mr Wilson nor Mrs Wilson had ever agreed that they ought to be liable for either the Commonwealth's or Victoria's costs. Instead, believing that the 20 February 2023 imposed a liability upon them to pay the respondent's costs with only the quantum of the costs yet to be determined, Mr and Mrs Wilson then agreed to particular amounts being fixed. Their "agreement" to pay costs fixed in the amount of $30,000 vis a vis the first respondent and $20,000 vis a vis the second respondent was then embodied in the 7 March 2023 costs order. Written submissions on the subject of whether or not Mr and Mrs Wilson should be liable for costs in the first place were never made to the primary judge, as was in fact intended by the 20 February 2023 costs orders. The 20 February 2023 costs orders might, with respect, have been made clearer by expressly stating that the written submissions were to be directed to the subject of whether costs should be awarded at all.
58 In our view, Mr and Mrs Wilson have not just established that they should be granted leave to appeal against the 7 March 2023 costs order. They have also established that their appeal on this ground should be allowed. They were inadvertently denied procedural fairness on the subject of whether they should be subject to any costs liability at all.
59 The question becomes whether the Full Court should determine whether Mr and Mrs Wilson should be subject to a costs liability in respect of the proceedings in the original jurisdiction or whether the case should be remitted to the original jurisdiction for that purpose?
60 Initially, the Commonwealth and Victoria contended that, for reasons of pragmatism, the Full Court ought to determine the costs issue. In their submission, costs should just follow the event because there had been no disentitling conduct and that this was not one of those unusual cases where a public interest was served such that, exceptionally, there should be no order as to costs. Mr and Mrs Wilson joined issue with each of these propositions and wished to contend that there was in fact conduct by the respondents in the litigation which in their view warranted a departure from the ordinary rule.
61 After having an opportunity to obtain instructions, both the Commonwealth and Victoria agreed that if the costs appeal were allowed, it would be appropriate for the question of what costs orders should be made to be remitted to the primary judge.
62 We agree. In our view, the place for the resolution of how costs should be awarded, if at all, in the original jurisdiction is, in the circumstances of this matter, the original jurisdiction. This is particularly so because Mr and Mrs Wilson wish to allege that there was disentitling conduct on the part of the respondents which would justify departing from the ordinary rule that costs should follow the event. It is the primary judge who had the ongoing case management responsibility in the original jurisdiction proceedings, and not this Court on the appeal. The primary judge, therefore, is better placed to determine whether there is any substance in Mr and Mrs Wilson's allegations of disentitling conduct. Further, if the Full Court were to determine costs in the original jurisdiction, one way or the other, that would then put an approved party in the position of seeking to persuade the High Court to grant special leave to appeal or, exceptionally, pursuant to s 75(v) of the Constitution, to issue a constitutional writ directed to this Court. If determined in the original jurisdiction, an aggrieved party could still seek leave to appeal to this Court against the costs order.
63 Setting aside the 7 March 2023 costs order will allow the fulfilment of what the primary judge in fact intended by the 23 February 2023 costs orders. It will also allow the primary judge, if so persuaded, to vary those orders so as to allow for an oral hearing in respect of costs.
64 As to the costs of preparing submissions on the appeal in accordance with the costs orders of 30 November 2023, these submissions mainly canvassed the merits of whether costs should follow the event in the original jurisdiction. Indeed, it may be that a course that will commend itself to the primary judge is that these stand as the respective submissions of the parties as to how costs should be awarded in the original jurisdiction. In any event, given their principal content, it seems to us that the just order as to costs in respect of them is that the costs of and incidental to their preparation, insofar as they have been prepared by counsel, should abide the order as to costs made in the original jurisdiction. As Mr and Mrs Wilson have acted for themselves, they would not, in any event, be entitled to any order for costs in respect of their preparation of their submissions, even were they to succeed on the costs issue.