By Paul Gregoire and Ugur Nedim
The overarching story is well known. The highly contagious Delta variant of the COVID-19 virus entered NSW in mid-June. And this led to health measures being imposed throughout Greater Sydney, which placed extreme restrictions on people’s freedoms, especially on those not vaccinated.
In response, questions were raised around whether the government could legitimately restrict people from continuing to turn up to their places of employment to work unless they sought to get the COVID-19 vaccine, and whether this requirement infringed upon their basic rights.
This debate spilled out onto the streets in the form of “freedom” protests, as well as into the NSW Supreme Court with the case of Kassam versus Hazzard, which challenged the powers in the Public Health Act 2010 (NSW) (PHA) that permitted numerous orders that affected citizens’ rights.
In particular, issue was raised around the stipulations in Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order No 2), which presiding Justice Robert Beech-Jones, stated is likely “the mostly widely read legal instrument in the history of NSW”.
Indeed, at 4 pm on 15 October, all eyes were cast upon the Supreme Court’s livestream of Chief Judge at Common Law Beech-Jones delivering his final judgement on the Kassam/Henry case, in which he dismissed all grounds raised against the validity of public health orders in New South Wales.
As his Honour explained, Kassam consisted of two proceedings brought against NSW health minister Brad Hazzard, around restrictions upon “authorised workers” to leave “areas of concern” and the prevention of some from continuing to work in the construction, aged care and education industries.
One set of proceedings was brought by Al-Munir Kassam and three other plaintiffs against the health minister, the Chief Medical Officer, the state of NSW and the Commonwealth, specifically around whether section 7 of the PHA legitimately or reasonably allowed for the imposition of Order No 2.
The Kassam plaintiffs also questioned whether the police powers created by Order No 2 were inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), as well as whether the order is rendered invalid by section 51(xxiiiA) of the Australian Constitution.
The second proceedings were raised by aged care worker Natasha Henry and five other plaintiffs, solely against Hazzard in relation to vaccine mandates contained within “the impugned orders”, which included Order No 2, and two other orders relating to age care and education workers.
All of the plaintiffs had refused to be vaccinated despite it being a requirement for them to do so in relation to continuing their employment – at least during the lockdown – under the terms of various public health orders, with a range of reasons being raised around coming to an “informed choice”.
The matters considered
The onset of the COVID-19 pandemic in March 2020, and its re-emergence in June this year, sparked powers under section 7 of the PHA that permit the state health minister to issue far-reaching orders – without parliamentary oversight – aimed at curbing a public health risk.
The findings released by Justice Beech-Jones provide a detailed explanation of the consideration he gave to each of the close to a dozen separate grounds raised against the health measures, as well as thorough reasons as to why each of them didn’t stand.
His Honour makes clear that in deliberating upon these issues, it was not the court’s function to consider the merit in the minister having imposed certain rules or to pass judgement on the efficacy of medical treatments, both those rolled out and those that remain unapproved.
The court’s function, he further outlines, was to “determine the legal validity of the impugned orders”, including whether any of the grounds reveal that no reasonable minister could have considered them necessary to deal with the identified health risk and “its possible consequences”.
Another key issue surrounding the case is that neither the Commonwealth nor NSW has a bill protecting citizens’ rights in law.
So, the freedom infringements raised had to relate to those rights protected in common law, which ruled out discrimination as this body of law doesn’t specifically protect against it.
Relied on by both sets of plaintiffs, one of the main grounds involved in the case was whether the limitations and restrictions placed on certain workers due to their decision not to get the vaccine led to their right to bodily integrity being infringed upon.
“Although it was contended that the impugned orders interfere with a person’s right to bodily integrity and a host of other freedoms,” his Honour explained, “the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work”.
The court’s reading of the restrictions found that those affected by the imposed requirements around vaccinations didn’t force them to undergo the treatment and thereby encroach upon bodily autonomy, but rather, if they chose not to get the jab, their freedom of movement was restricted.
“Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises,” explained the justice, who then knocked down the argument that this then violates the right to work, as common law doesn’t protect this right.
In terms of the reasonableness of orders, especially those having a greater impact upon the unvaccinated, his Honour set out that if the laws differentiated on an arbitrary measures, like race or class, there would be an issue. But, in terms of vaccines, this was in line with the aims of the PHA.
The constitutional challenge
Section 51(xxiiiA) of the Australian Constitution prohibits parliament from passing laws in terms of a “civil conscription” around medical and dental services.
The Kassam plaintiffs asserted that vaccine mandates were a form of civil conscription, in that they force citizens to get the jab.
However, his Honour showed that the civil conscription ban actually targets the passing of laws that would require medical professionals to do something against their will. For example, this could be forcing them to administer the COVID-19 vaccine to others.
So, the contention that the vaccine mandates are unconstitutional as they breach this prohibition is unfounded, as the ban relates to those administering a treatment and not people receiving any such medical procedure.
“All of the asserted grounds of invalidity raised by both sets of plaintiffs have been rejected,” Justice Beech-Jones ruled in mid-October. “Both proceedings must be dismissed.”
His Honour outlined that the imposition of Order No 2 was genuine. And an obligation of procedural fairness to certain individuals had not been breached, as when decisions are made that affect such large numbers of people no such obligation needs to be met.
In terms of the contention as to whether a power in Order No 2 that required police officers to check a person’s documentation if they were exempt from the mask mandate was inconsistent with the powers contained in the LEPRA, this assertion was again dismissed.
“Nothing in LEPRA indicates that the powers it confers on police officers to make requests of a person’s identity are exhaustive,” Justice Beech-Jones found.
“To the contrary, Part 15 of LEPRA suggests that it applies to regulate the exercise of powers conferred by various laws including the making of requests.”