The eloquent Lee J in Kikuyu v Hazzard (No 2) [2022] FCA 812 comments
[1] The final hearing of this case was observed by interested spectators filling three courtrooms and by over 4,000 viewers via the use of remote technology. The case was the subject of extensive commentary on social media including Telegram and Twitter.
[2] Given the publicity this case has generated, apparently at the instigation of the solicitor for the applicant, it is worth dispelling some misconceptions and commencing this judgment by stating what this proceeding, and others like it, are not about: see, for example, Knowles v Commonwealth of Australia [2022] FCA 741; Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664.
[3] This case is not about the wisdom or otherwise of the response of State governments or the Commonwealth to the public health challenges caused by the spread of COVID-19. It is not about any right to individual liberty or autonomy nor the appropriateness or otherwise of vaccine mandates. It is not about holding public officials to account for political or public health actions some consider to be wrongheaded or controversial.
[4] It is about something quite different.
[5] The applicant seeks declarations that certain public health orders made by the first respondent (Minister), and a determination made by the second respondent (Secretary), are invalid. The sole ground advanced is that the State provisions authorising those instruments are inconsistent with Part 2 of Chapter 8 of the Biosecurity Act 2015 (Cth) and are, therefore, invalid to the extent of the inconsistency between the State and Commonwealth Acts pursuant to s 109 of the Commonwealth Constitution.
[6] Whatever else this argument lacked, it did not lack ambition.
[7] The logical consequence of the applicant’s contention is that between 18 March 2020 and 17 April 2022, every measure taken under all State and Territory laws to prevent and control the spread of COVID-19 was invalid and inoperative.
[8] For reasons explained below, the applicant’s argument is legally misconceived and must be rejected.
