In response to the COVID-19 delta crisis the NSW Health Minister implemented a range of public health orders under section 7(2) of the Public Health Act 2010 (NSW) (the “PHA”).  In more recent times, those public health orders have provided more freedoms to vaccinated citizens than to those people who remained unvaccinated.  While specific public health orders “mandated” vaccinations for specific categories of workers such as aged care, education and construction, the Public Health (COVID-19 General) Order 2021 (the “General Order”) required “authorised workers” to be vaccinated as a condition of being able to able to leave a designated “area of concern” for work.

In response to the orders, ten workers across the health care, aged care, education and construction industries initiated two sets of proceeding.  The first group of plaintiffs brought an action against the NSW Health Minister Brad Hazzard, Chief Medical Officer Dr Kerry Chant and the State of NSW arguing that the public health orders were invalid because:

• in making the health orders the Health Minister did not undertake any real exercise of power;
• the orders are outside the power conferred by section 7 of the PHA or represent an unreasonable exercise of power;
• the manner in which the order was made was unreasonable;
• the health orders confer powers on police officers that are inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW);
• the health orders are invalid as per s 51(xxiiiA) of the Constitution; and
• the health orders are inconsistent with the Australian Immunisation Register Act 2015.

The second group took action against the Health Minister only and sought a declaration that each of the General Order, the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) (the “Aged Care Order”) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) were invalid on the grounds that:

• the health order effected their rights and freedoms beyond the scope of section 7(2) of the PHA;
• the health orders were made for an improper purpose;
• in making the health orders the Health Minister failed to have regard to various relevant considerations;
• the Health Minister did not afford natural justice; and
• the Health Minister acted unreasonably.

In determining the matters, the Supreme Court made clear that its purpose was not to engage in debate about the effectiveness of the public health responses to COVID-19.  The Court said that it was “important to note that it is not the Court’s function to determine the merits of the exercise of power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risks to the public health posed by the Delta variant”. The Court explained that the role of the court was to determine the legal validity of the public health orders. This involved determining whether, “it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences.”

The Court considered the imposition on individual rights and freedoms to choose not to be vaccinated. The Court noted that since Australia does not have a constitutionally prescribed Bill of Rights that an individual’s rights are somewhat limited. The Court said that an individual’s bodily integrity has not been violated as the public health orders do not authorise the vaccination of an individual without their consent. Rather the public health orders only impact the freedom to work for those people who choose to remain unvaccinated.

In response to the claimed freedom of movement it was noted that the degree of impairment caused by the public health orders differed depending on an individual’s vaccination status. The Court outlined that even though the orders differentiate people based on their vaccination status, that the impact on those who remain unvaccinated is “not arbitrary”. This is because it was not demonstrated that the public health orders were not a genuine exercise of power by the Health Minister and were not implemented for an improper purpose. As a result, the public health orders are not unreasonable to deal with the identified risk to public health. Further to this the public health orders do not involve the differential treatment of people based on prohibited grounds such as “race, gender or political opinion”.

Additionally, the Court held that the public health orders were not inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), section 51(xxiiiA) of the Constitution and Australian Immunisation Register Act 2015 as was claimed by the first group of plaintiffs.

As a result, the claims were dismissed. Ultimately, this case demonstrates the unwillingness of the Court to involve themselves in the policy making when it comes to the public health response to COVID-19. The courts role is to assess the governments approach to the pandemic, focusing strictly to the validity of the exercise of their power.

People + Culture Strategies