Knowles v Commonwealth of Australia [2022] FCA 741, noted in the preceding post, includes a useful itemisation of recent COVID judgments -
[34] This is not the first piece of litigation to challenge COVID-19 restrictions before an Australian Court. Some of the authorities below featured in the submissions of the respondents. The applicants tended to submit they were all distinguishable, or should not control the outcome of the summary dismissal applications. ...
35 In Palmer v Western Australia [2021] HCA 5; 95 ALJR 229, the plaintiffs, who were located in Queensland, brought a challenge to border restrictions imposed pursuant to the Emergency Management Act 2005 (WA) (EM Act WA). The nature of the challenge is summarised by Kiefel CJ and Keane J at [13]:
The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect.
36 The High Court rejected all the challenges, with various justices giving different reasons for their rejection. ...
37 Senior and junior counsel in the current proceeding also appeared for the applicant in Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 (Kassam NSWSC). The judgment dealt with two originating proceedings together. Beech-Jones CJ in CL’s reasons in Kassam NSWSC were relied on heavily by the respondents in this proceeding. Kassam NSWSC concerned orders made under the Public Health Act 2010 (NSW) (NSW PH Act). His Honour described at [1] the subject matter of the proceedings:
The main focus of the two proceedings the subject of this judgment is those aspects of those orders which prevented so called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines.
38 Like some of the applicants in the present proceeding, the plaintiffs in Kassam NSWSC had made an informed choice to refuse to be vaccinated. Kassam NSWSC was a judicial review proceeding, although there was also a constitutional challenge, as there is here. The court heard evidence, including expert evidence, and pronounced final orders dismissing the proceeding and rejecting all challenges made to the orders.
39 Kassam NSWSC is a seriously considered, and extensive, judgment of a superior State Court concerning a series of similar challenges to the pleadings in this case. ...
40 The NSW Court of Appeal granted leave to appeal to the Kassam NSWSC plaintiffs on several grounds, but in a carefully reasoned judgment, dismissed the appeals: Kassam v Hazzard [2021] NSWCA 299 (Kassam NSWCA).
41 Together, the decisions in Kassam NSWSC and Kassam NSWCA at first instance and on appeal (together, Kassam) should be seriously and carefully considered on the respondents’ present applications. It is truth that only the NSW restrictions were in issue, however some of the constitutional arguments raised there are also raised in this proceeding. For those arguments, there was no material distinction highlighted by the applicants which suggested that the prospects of success of those arguments depended on which State or Territory measures were being considered. They were contended to apply to all the Measures, equally. Decisions of an intermediate appellate court (here, the NSW Court of Appeal) about the interpretation and operation of the Constitution should be treated as falling into the category of decisions which a primary judge should follow, unless firmly persuaded the decision is wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 151-152 [135]. The Constitution is the preeminent federal law of this country, and in my opinion, the same principle should apply: see also Ng v Commissioner of the Australian Federal Police [2022] WASCA 48 at [194]-[198]; Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 at [3]-[4], [47]-[49]. I should therefore not depart from the approach taken in Kassam NSWCA by the NSW Court of Appeal to the constitutional arguments, at least, unless satisfied it is wrong, or plainly wrong, however the term is to be understood: see the discussion by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [2]-[11]. Leave to appeal was rejected on the constitutional arguments: Kassam NSWCA at [41].
42 Recently, in Hill v Zuda Pty Ltd [2022] HCA 21 at [25] the full High Court suggested the better expression to “plainly wrong” might be “unless there is a compelling reason to do so”, referring to the use of that expression in RJE v Secretary to the Department of Justice (2008) 21 VR 526 at 554 [104]. The Court also made the point (at [26]) that:
intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them. ..
43 As I explain below, I respectfully agree with the approach of Beech-Jones CJ at CL in Kassam NSWSC on all issues (not just constitutional issues), and I respectfully agree with the approach by the NSW Court of Appeal in the appeal in Kassam NSWCA on the issues on which it granted leave. Its decision not to grant leave on other issues, and reasoning for doing so, is also of some significance in these applications. Irrespective of the strict position under the authorities I have referred to at [41]-[42], I respectfully agree with the reasoning in the two Kassam decisions. ...
44 Cotterill was a judicial review proceeding challenging directions made under the Public Health and Wellbeing Act 2008 (Vic) (Vic PHW Act), based on an alleged infringement of the implied freedom of communication about governmental or political matters in the Commonwealth Constitution. Niall JA dismissed the proceeding. In so doing, his Honour held that the High Court’s decision in McCloy v New South Wales [2015] HCA 34; 257 CLR 178 required the assessment of any alleged infringement to be applied to the legislation concerned, rather than to directions made under the legislation. Niall JA held that the provisions of the Vic PHW Act which authorised the making of the directions were valid in all their potential operations insofar as they may impose a burden on political communication: at [9]. His Honour found the legislative provisions served a legitimate purpose and there were significant constitutional limitations that confined their exercise and ensured that no lawful exercise of power could be “obnoxious to the constitutional freedom”: see [9]. Furthermore, his Honour decided that, even if the McCloy test were to be applied directly to the directions themselves (as the plaintiff had submitted it should), the directions would not be invalid by reason of their burden on political communication. While in the present proceeding there is no pleaded case based on the implied freedom of political communication, I consider the decision Cotterrill is important, and refer to it below. ...
45 Loielo v Giles [2020] VSC 722; 63 VR 1 was an earlier challenge to a direction made under the Vic PHW Act. The impugned direction imposed a curfew in greater Melbourne from 9.00 pm to 5.00 am. The plaintiff sought judicial review on the grounds of legal unreasonableness and a lack of independence of the person who issued the direction – the State’s Chief Health Officer – from the Premier of Victoria. Ginnane J dismissed the proceeding, finding that the Chief Health Officer had not issued the direction at the Premier’s behest, and determining that the issuing of the direction was not affected by any legal unreasonableness, irrationality or illogicality and was instead a lawful exercise of the emergency powers conferred by the Act, and was proportionate to the risk posed by the COVID-19 virus. ...
46 Like Kassam, Larter v Hazzard (No 2) [2021] NSWSC 1451 involved a challenge to orders made under the NSW PH Act. The orders in question effectively prohibited healthcare work by unvaccinated people. In a claim for declaratory and injunctive relief, the plaintiff contended that the orders were legally unreasonable – that it was not open to the Minister to make the orders, having regard to the risk to public health caused by COVID-19. Adamson J dismissed the claim, finding that it was reasonably open for the Minister to make the orders concerned. ..
47 5 Boroughs NY Pty Ltd v State of Victoria [2021] VSC 785 differed in nature from the other cases above. It concerned two representative claims in negligence, each brought on behalf of persons who alleged they had suffered economic loss resulting from Victoria’s stage 3 and 4 lockdown restrictions, during the ‘second wave’ of the pandemic. As pleaded, the plaintiffs’ cases contended this loss ultimately flowed from the allegedly negligent hotel quarantine program applied in Victoria. The defendants applied for summary judgment, or striking out of the representative plaintiff’s statement of claim. John Dixon J refused the summary judgment application, but struck out the entirety of the statement of claim. His Honour found that the plaintiff had failed to properly identify the duty supposed to be owed by the State of Victoria to take reasonable care to ensure that the State’s hotel quarantine program was implemented effectively, but granted leave to the plaintiff to re-plead its case. ..
48 Gerner v State of Victoria [2020] HCA 48; 270 CLR 412 concerned proceedings commenced in the High Court’s original jurisdiction to challenge the constitutional validity of s 200(1)(b) and (d) of the Vic PHW Act and the lockdown directions made under those provisions. The plaintiffs submitted that the legislative provision and directions infringed a guarantee of a general freedom of movement contended to be implicit in the Commonwealth Constitution, and contended to “[stand] independently of political communication and independently of interstate trade, commerce and intercourse”: Gerner at [9]. The State of Victoria demurred, and the Court upheld the demurrer. The Court held unanimously that there was no basis in the text and structure of the Constitution for the contended implication: at [9].
