Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 was a challenge against vaccine mandates for certain workers in New South Wales, contending that the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 and section 7 of the Public Health Act 2010 are invalid.

The court was concerned with challenges to a series of orders which imposed restrictions, including:

(1) on persons living in specified local government areas from leaving the area except as ‘authorised workers’, which required a person to have had at least one dose of a vaccine or been issued with a medical certificate,
(2) on persons from specified areas entering or remaining on a construction site unless vaccinated,
(3) on unvaccinated workers entering or remaining on the premises of residential aged care facilities; and
(4) on education and care workers carrying out specified work unless vaccinated.

The Plaintiffs published their Statement of Claim: Al-Munir Kassam and Ors v Bradley Ronald Hazzard and Ors Statement of Claim

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The case was highly publicised, and proceedings were broadcast live on YouTube. SBS: “One million view NSW COVID-19 vaccine mandate case“:

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As Beech-Jones J noted (at 7):

“…it is important to note that it is not the Court’s function to determine the merits of the exercise of the 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. It is also not the Court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines especially their capacity to inhibit the spread of the disease. These are all matters of merits, policy and fact for the decision maker and not the Court (see Minister for Immigration and Citizenship v Li [2013] HCA 18 at [28], [66] and [108]). Instead, the Court’s only function is to determine the legal validity of the impugned orders which includes considering 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.”

Bodily integrity

Beech-Jones CJ at CL rejected the arguments relating to bodily integrity, and said (at 63):

‘It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. … People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 (NSW)] do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.”

In upholding that decision on appeal in Kassam v Hazzard [2021] NSWCA 299, Bell P said (at 95-97):

“The primary judge held that the common law recognised a right to bodily integrity, and so much may be accepted. Such a right is supported by Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15 and, as was observed in the joint judgment in that case at 253, it is a right which “underscores the principles of assault” in both civil law (the tort of battery) and criminal law. As already noted, however, the primary judge held at [9] that this right was not infringed or impaired by any of the Impugned Orders. None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated.
The Impugned Orders proceed on the basis that there will be citizens who choose not to be vaccinated. Under Order (No 2), if such a worker was an authorised worker, he or she was unable to leave his or her local government area unless vaccinated to the extent specified in cll 4.3 and 5.8. So, too, under the Aged Care Order and the Education Order, a relevantly qualified worker was not able to enter particular facilities or schools unless vaccinated to the level specified in each of those Orders. As explained above, this was (and could only be) a temporary measure as each of the Orders had a maximum 90‑day life pursuant to s 7(5) of the Public Health Act. The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area (in the case of Order (No 2)) or to enter a particular place, under the Aged Care and Education Orders.
Nothing in any of those Orders required, still less coerced, aged care workers or educational professionals, authorised workers or workers in the construction industry, to be vaccinated. … Nothing in the Orders forced them to do so and the Orders contained no sanction for exercising what each of the Plaintiffs in the Henry Proceedings described on oath as the exercise of their own free will in deciding not to be vaccinated.”

Leeming JA said (at 170):

“…free choice” is a label which disguises the fact that many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour.”

Right to work

This contention was addressed (at 199):

“The Henry plaintiffs also contended that the impugned orders interfere with what has long been recognised as a “common law right to work”. In fact the common law has refused to recognise a “right’ in those terms. Instead, it has struck down unreasonable contractual restraints of trade, but that has nothing to do with provisions such as section 7 of the Public Health Act 2010. (Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492 at 502 citing Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 260 to 261; Buckley v Tutty (1971) 125 CLR 353). The Henry plaintiffs also relied on international recognition of a right to work specifically in Part III of the Article 6 of the International Covenant on Economic, Social and Cultural Rights. Those rights are fundamentally different to the restraint of trade doctrine. They are social welfare obligations imposed on State parties. They do not engage the principle of legality. In any event, as noted by Mr Kirk SC, Article 12 of the same treaty obliges state parties to take steps to prevent, treat and control epidemics. Even if the principle of legality was engaged in this respect, by authorising infringement of freedom of movement section 7 of the Public Health Act 2010 clearly authorises interferences with movement to and from places of work if that is necessary to address the relevant risk and its possible consequences.”

Privacy

Beech-Jones CJ rejected the contention that the Public Health Order was invalid because it violated a person’s right to privacy. His Honour held (at 215):

“Dr Harkess also referred to privacy principle 6 in Schedule 1 to the Privacy Act 1988 (Cth) which precludes an “APP entity” that holds personal information that was collected for a particular purpose from using or disclosing that information to another person unless the individual has consented to the disclosure (or subclauses 6.2 or 6.3 apply). Dr Harkess referred to the circumstance where a person submits to vaccination because of the effect of Order (No 2), the Aged Care Order or the Education Order and then obtains their vaccination evidence from the Australian Immunisation Register which is described below. He contended that, in those circumstances, there was no consent to the disclosure even though it is the (now) vaccinated person obtaining the information. This argument rises no higher than his contention about the impugned orders vitiating consent in relation to an alleged violation of the right to bodily integrity which has been addressed above and rejected.”

There is an exception to the requirement of consent if sub-clause 3.4 applies in relation to the information. Sub-clause 3.4 applies if the collection of information is required or authorised by or under an Australian law, which is defined to include an “an Act of the Commonwealth or of a State or Territory”. Clauses 7 and 8 of the Public Health Order, made under the Public Health Act 2010 (NSW), required or authorised the collection of medical information by employers about employees.

Privilege against self-incrimination

It was argued by both sets of plaintiffs that the requirement violates their privilege against self-incrimination. Beech-Jones J. held (from 71) that the privilege does not protect against production of evidence by a person that may exonerate them from a breach of the law, it is a privilege against the compulsory production by them of incriminating material or potentially incriminating material. (See Baldwin v State of New South Wales [2020] NSWCA 112 (at 30) and Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 (at 502 per Mason CJ and Toohey J.)

Section 51(xxiiiA) of the Constitution

What I found most interesting in this case is the question relating to the contention that section 51(xxiiiA) of the Constitution prevents any parliament from passing laws in respect of mandatory vaccination, which I had addressed in an earlier article: The Civil Conscription Argument – Section 51(xxiiiA). In summary, section 51(xxiiiA) does not prevent mandatory vaccination, it prevents the nationalization of medical and dental services, in this situation, doctors being forced to administer a vaccine against their will, as employees of the Commonwealth. It is regarding the provision of services by the doctor, not the acquisition of services by the patient. Secondly, it only applies to the Commonwealth, not the States:

MEANING OF SECTION 51(xxiiiA) at 272: “Nothing in any part of Order (No 2) or the PHA involves any element of coercion on a doctor or other medical provider to vaccinate anyone. Otherwise, this submission simply repeats the wrong assertion that s 51(xxiiiA) operates on the acquisition of a medical service as opposed to its provision.”
APPLICABILITY TO STATES at 275-276: “Section 51 of the Constitution, of which s 51(xxiiiA) is part, is directed to the legislative power of the Commonwealth not the states. … Even if the impugned orders imposed a form of civil conscription, which they do not, they would not be rendered invalid by the operation of s 51(xxiiiA).”

Full extract (from 261):

Constitutional Ground – Civil Conscription
The Kassam plaintiffs contend that Order (No 2) creates a form of civil conscription referred to in s 51(xxiiiA) of the Constitution which they contend applies to State laws. In the alternative, if s 51(xxiiiA) is held not to apply to State laws, then the Kassam plaintiffs contend that Order (No 2) was made in furtherance of a joint scheme between New South Wales and the Commonwealth “which had the effect of imposing a civil conscription on State citizens”.
Both the State parties and the Commonwealth of Australia contended that nothing in Order (No 2) involves a form of civil conscription referred to in s 51(xxiiiA), no such restriction on imposing civil conscription applies to the States, that, even if Order (No 2) did impose a form of civil conscription the limitation would only be infringed if the Commonwealth required the States to conscript persons and even if the Commonwealth did, it would not invalidate Order (No 2). [156]
Civil Conscription
Section 51(xxiiiA) of the Constitution confers on the Federal Parliament legislative power to make laws for the peace, order and good government of the Commonwealth with respect to:
“[t]he provision of maternity allowances, widows pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription, benefits to students and family allowances; …” (emphasis added)
This legislative power was inserted into s 51 with effect from 19 December 1946 by the Constitution Alteration (Social Services) Act 1946 following its passage in a referendum. The historical events that lead to the passage of this provision in this particular form are described in Wong v The Commonwealth (2009) 236 CLR 573; [2009] HCA 3 at [18] to [55] per French CJ and Gummow J, at [174] to [191] per Hayne, Crennan and Kiefel JJ and, to an extent, by Heydon J at [271] to [277] (“Wong”). It suffices to note two matters about that history.
First, the phrase “civil conscription” has its origins in the debate about whether “industrial conscription”, that is, the use of compulsory civilian labour, would or would not be deployed in the war effort, as it eventually was (Wong at [31] to [40]; see Reid v Sinderberry (1944) 68 CLR 504).
Second, the carve out from the referendum proposing the grant of legislative power so as to not authorise any form of civil conscription was suggested by the then opposition and agreed to by then government (Wong at [50] to [51]) and no doubt helped secure its passage. It stands in contrast to the nationalisation of medical services that took place in the United Kingdom around the same time (Wong at [274]). Thus, the phrase “civil conscription” was deployed so as to preclude compulsory service by medical professionals which might not answer the description “industrial conscription” (Wong at [50]).
Bearing that in mind, two aspects of the concept of civil conscription of s 51(xxiiiA) should be noted. First, the preclusion on authorising civil conscription only qualifies a (Commonwealth) law for the “provision” of “medical or dental services” (the BMA Case at 254 per Rich J, at 261 per Dixon J, at 282 per McTiernan J, at 286 per Williams J, contra per Latham CJ at 253 and Webb J not deciding at 292; Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at 279; [1986] HCA 6; “Alexandra”).
Second, civil conscription is directed to compulsive service in the provision of medical services. In the BMA Case a majority, Latham CJ, Rich, Williams and Webb JJ, Dixon and McTiernan JJ dissenting, upheld a challenge to the validity of a legislative requirement for pharmacists to write scripts for medicines on a particular form regardless of whether the medicine was to be obtained for free by the patient under the Pharmaceutical Benefits Scheme. The widest reading of the majority’s conclusion was that the prohibition on civil conscription in relation to medical and dental services strikes down any “compulsion of law requiring that men … perform work in a particular way” (at 249 per Latham CJ). Dixon J in dissent concluded that nothing in the impugned provision compelled the rendering of medical services to patients in any capacity whether regularly, occasionally, for a short period or intermittently (at 278). His Honour’s approach was effectively adopted in the General Practitioner’s Case (1980) 145 CLR 532 at 556-557 per Gibbs J. at 563 per Stephen J, at 564 per Mason J and 571 to 572 per Wilson J; Wong at [195]).
In Wong, Hayne, Crennan and Kiefel JJ also applied the approach of Dixon J in the BMA Case while accepting that civil conscription can arise from the practical and not just legal effect of a legislative provision (at [209]). Even so, their Honours concluded that the practical effect of the scheme for the payment of medical benefits in the Health Insurance Act did not amount to civil conscription in that it did not compel a medical practitioner, legally or practically, to provide a service on behalf of the Commonwealth or at all to treat any patient or particular patient ([id]). Their Honours also concluded that, accepting that the practical effect of the Health Insurance Act was to require doctors who wish to practise to participate in the Medicare scheme (at [224]), a requirement to comply with a standard of practice is not a form of civil conscription (at [226]).
Similarly, after reviewing the history of s 51(xxiiiA), French CJ and Gummow J in Wong reached the same conclusion. In so doing, their Honours described the meaning of “civil conscription” in s 51(xxiiiA) as follows (at [60]):
“The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase “(but not so as to authorize any form of civil conscription)” which treats “civil conscription” as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth … it also may be for the benefit of third parties, if at the direction of the Commonwealth.” (emphasis added)
The effect of the Kassam plaintiffs’ written submissions was that Order (No 2) effected a form of civil conscription because it effectively required unvaccinated persons to obtain a COVID-19 vaccine. [157] This wrongly assumed that s 51(xxiiiA) proscribes the compulsory acquisition of medical services which it does not. In oral submissions, counsel for the Kassam plaintiffs, Mr King, was pressed on how any doctors or any other medical professional was compelled to provide a medical or dental service. He contended that [158]
“…the effect of the order is what is critical in our respectful submission, and the effect of that order is to conscript both patients and doctors, their doctors, to obtain a double vaccination, or in relation to the earlier orders a single vaccination, as the price of giving up their employment and their right to protect and look after their families.”
This contention was repeated in a written submission filed on 4 October 2021. [159] Nothing in any part of Order (No 2) or the PHA involves any element of coercion on a doctor or other medical provider to vaccinate anyone. Otherwise, this submission simply repeats the wrong assertion that s 51(xxiiiA) operates on the acquisition of a medical service as opposed to its provision.
In his submissions, Dr Harkess contended that a medical or dental service was provided by a person who received a COVID-19 vaccine because they contribute to the eventual establishment of “herd immunity”. He submitted that it follows that those who were “compelled” to be vaccinated were civilly conscripted to provide dental and medical services. [160] It suffices to state that contributing to the general health of the community by adding to herd immunity is not providing a medical service.
Wong establishes that s 51(xxiiiA) is to be interpreted according to its historical purpose as explained above. On any sensible reading of the authorities the impugned orders do not impose any form of civil conscription as referred to in s 51(xxiiiA).
No Application to the States
Section 51 of the Constitution, of which s 51(xxiiiA) is part, is directed to the legislative power of the Commonwealth not the states. The reference in s 51(xxiiiA) to the provision of the benefits is confined to the provision of those benefits by the Commonwealth (Alexandra at 279; the BMA Case at 244 per Latham CJ, at 254 per Rich J, at 260 per Dixon J and at 279 to 280 per McTiernan J and 292 per Webb J). The Kassam plaintiffs sought to rely on a statement by Williams J in the BMA Case that the “expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical or dental service” (at 287). However, that statement came at the conclusion of a passage that commenced “[t]he expression [ie, civil conscription] is a prohibition upon the exercise of the legislative powers of the Commonwealth” (at 287.2). The Kassam plaintiffs also referred to the judgment of Kirby J in Wong who construed s 51(xxiiiA) by reference to “emerging norms of fundamental human rights as expressed in international law” (Wong at [133]). None of the other judgments in Wong endorsed his Honour’s approach. In any event, his Honour made it clear that what was being addressed was a restriction on “federal law” (at [145]).
The Kassam plaintiffs sought to extend the proscription on civil conscription in the provision of medical and dental services to the States by contending that it gives rise to an “an implied constitutional right of individual patients to reject unless consented to vaccination[s]” binding on the states. [161] Nothing in the text or structure of the Constitution supports any such implication. The express words of s 51(xxiiiA) suggests to the contrary as do the cases just noted. If s 51(xxxi) does not bind the States (Pye v Renshaw (1951) 84 CLR 58 at 83; [1951] HCA 8) then there is no possible justification for s 51(xxiiiA) doing so.
Even if the impugned orders imposed a form of civil conscription, which they do not, they would not be rendered invalid by the operation of s 51(xxiiiA).
Alleged Joint Scheme
On the assumption that Order (No 2) does effect a scheme of civil conscription, but that the proscription on civil conscription in s 51(xxiiiA) does not bind the States, the Kassam Plaintiffs contended that the evidence demonstrates that there was a “joint scheme or … a co-operative arrangement [between NSW and the Commonwealth] to bring about a civil conscription and that the provisions of Order (No 2), being part of and made in furtherance of the scheme, are for that reason invalid”. [162]
This contention seeks to rely on the decisions in P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382; [1949] HCA 6 (“Magennis”) and ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 (“ICM”). In Magennis a majority of the High Court held the Commonwealth exceeded its powers by entering into an intergovernmental agreement with NSW that provided for an infringement of the just terms guarantee in s 51(xxxi). The NSW legislation which effected an acquisition on other than just terms was construed as depending for its operation upon the existence of a valid law of the Commonwealth. The Commonwealth law giving effect to the agreement was held invalid, but the NSW law was only held to be inoperative (at 403 to 404 per Latham CJ; 424 to 425 per Williams J and at 406 per Rich J agreeing). Later the NSW legislation was “decoupled” from the agreement with the federal government and upheld in Pye (see ICM at [39] per French CJ, Gummow and Crennan JJ). A similar result followed in Tunnock v Victoria (1951) 84 CLR 42. The premise of Magennis that s 51(xxxi) qualifies the Commonwealth’s power to make financial grants to the States under s 96 of the Constitution was reaffirmed by French CJ, Gummow and Crennan JJ in ICM (at [46]) as well as by Heydon J (at [174]).
One matter that was not expressly determined by either Magennis or the majority in ICM is whether some restriction that only applies to the Commonwealth, such as s 51(xxxi) or the civil conscription component of s 51(xxiiiA), is engaged by some informal agreement, arrangement or understanding between the Commonwealth and a State that either requires or contemplates the latter legislating to acquire property other than on just terms or effect civil conscription of the providers of medical or dental services as the case may be. This was addressed by Griffiths and Rangiah JJ in Spencer v Commonwealth (2018) 262 FCR 344; [2018] FCAFC 17 at [210] (“Spencer”) as follows:
“As we have said, where it is alleged that the State has effected an acquisition of property, s 51(xxxi) will not apply unless the State is required under an intergovernmental agreement with the Commonwealth to acquire the property on other than just terms. Assuming that an informal agreement is sufficient, there can be no lesser requirement where the agreement is an informal one. Latham CJ used the expression ‘joint action’ in the context of the specific facts of the case in Magennis where the terms and conditions of an agreement required the State to acquire property. There is no Constitutional principle that any action that can be described as ‘joint action’ that has the effect of acquiring property enlivens s 51(xxxi) of the Constitution. The expression cannot be understood as some free-standing criterion for the engagement of the provision.” (emphasis added)
Having regard to these principles and bearing in mind that the reference to “civil conscription” in the Kassam plaintiffs’ submission is to some form of mandatory vaccination, how do they seek to factually support their argument that there was a joint scheme? The Kassam plaintiffs’ submissions made reference to numerous documents recording various joint efforts between the Commonwealth and the State to address the pandemic commencing from February to March 2020 which in turn invoked pandemic planning documents prepared prior to then. [163] The main focus of its submissions was the “National Plan to Transition Australian National Covid-19 Response” published on 6 August 2021 (the “National Plan”). [164] The National Plan was issued after statements by the Prime Minister on 9 July 2021, 30 July 2021, 2 August 2021 and 6 August 2021 following meetings of the body described as “National Cabinet”. [165]
Save for one topic, none of these documents or any other document referred to by the Kassam plaintiffs evidences any joint agreement, understanding or consensus between the Commonwealth and NSW to mandate vaccines for COVID-19 much less any requirement imposed by the Commonwealth to do so.
The one exception concerns aged care workers. Thus, in his statement on 9 July 2021 the Prime Minister stated [166] :
“National Cabinet reaffirmed the commitment to implement the decision to mandate vaccination of aged care workers by mid- September 2021, with limited exceptions. All states and territories will work towards implementing this decision using state public health orders or similar state and territory instruments and will provide an indication of timing when it is available. This is consistent with the approach taken for mandating influenza vaccinations for aged care workers.”
This statement is consistent with the correspondence noted in [121].
However, all this of this material takes the matter nowhere for two reasons. First, there is nothing in any of the materials relied on, including the material concerning aged care workers, to support the contention that NSW was required under some agreement to mandate vaccines to anyone (cf Spencer at [210]). Second, even if they were, there is nothing in Order (No 2) or the PHA to suggest that any aspect of their operation or validity is dependent on the existence of any agreement with the Commonwealth to require them to mandate vaccines which on the authority of Magennis might render them inoperative. As for the Commonwealth, there is not a skerrick of a suggestion that any legislation of the Commonwealth gives effect to any such agreement so as to justify some relief being sought against it, which there was not.
Conclusion on s 51(xxiiiA) Contention
Lastly on this topic I note that the Kassam plaintiffs referred the Court to an article by two legal academics recently published in a magazine of political commentary concerning the unconstitutionality of vaccine orders (Augusto Zimmerman and Gabriel Moens, “Emergency Measures and the Rule of Law”, (2021) 64(10) Quadrant Magazine). The reliance on the article was misconceived because in fairness to the authors of the article they did not purport to address the state of the authorities on s 51(xxiiiA) and their applications to orders made under s 7(2) of the PHA or similar legislation. Hence, at the commencement of the article, the authors state that is not “feasible to predict what the Australian High Court might do if it were called upon to consider the constitutionality of vaccination orders and emergency declaration directions” but stated that they “it is still possible to determine what it should do”. This Court’s task does not involve any determination of what the High Court “might do” much less what it “should” do. Instead, its function is to apply the what the High Court has decided in relation to s 51(xxiiiA).
A consideration of the authorities in relation to s 51(xxiiiA) of the Constitution confirms that the contention that it renders any part of Order (No 2) invalid was completely untenable. I reject this ground.”

Comments on Civil Conscription in the Court of Appeals in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299.

(at 10): “Order (No 2) did not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution and, even if it did, the prohibition on civil conscription does not apply to laws made by the State of NSW: PJ [11(iv)]. The primary judge described this aspect of the constitutional argument as “completely untenable”: PJ [286]. His Honour also rejected an argument based upon PJ Magennis Proprietary Limited v Commonwealth (1949) 80 CLR 382; [1949] HCA 66 (Magennis) to the effect that there was a joint scheme between the Commonwealth and the State which engaged s 51(xxiiiA): PJ [284].”
(at 38): “In relation to the constitutional arguments sought to be raised by the Kassam Applicants (grounds 6 and 9, noting that ground 7 was not pressed), I agree with the primary judge’s assessment that the argument based upon s 51(xxiiiA) of the Constitution was completely untenable. As his Honour noted at PJ [267], that placitum “only qualifies a (Commonwealth) law for the ‘provision’ of ‘medical or dental services’.” Moreover, as his Honour outlined at PJ [268], “civil conscription is directed to compulsive service in the provision of medical services”, not their receipt. As the primary judge observed at PJ [272], “[n]othing in any part of Order (No 2) or the [Public Health Act] involves any element of coercion on a doctor or other medical provider to vaccinate anyone.”
Additionally, s 51(xxiiiA) of the Constitution is not a constraint on State power. Ground 9 of the Kassam Appeal relates to the attempt to circumvent the fact that s 51(xxiiiA) does not purport to constrain State power and is bound up with the unsuccessful argument put at first instance based on Magennis. This was only one of the objections to the s 51(xxiiiA) argument. In any event, as the primary judge observed at PJ [284] in relation to the body of material which the Kassam Parties sought to rely on:
“all this [sic] of this material takes the matter nowhere for two reasons. First, there is nothing in any of the materials relied on, including the material concerning aged care workers, to support the contention that NSW was required under some agreement to mandate vaccines to anyone (cf Spencer at [210]). Second, even if they were, there is nothing in Order (No 2) or the [Public Health Act] to suggest that any aspect of their operation or validity is dependent on the existence of any agreement with the Commonwealth to require them to mandate vaccines which on the authority of Magennis might render them inoperative.”
(at 141): “There is nothing in the Kassam Applicants’ submission that s 51(xxiiiA) directly subtracts from State legislative power. A qualification to a new head of legislative power granted to the Commonwealth following a referendum cannot result in a diminution of State legislative power. The Kassam Applicants’ alternative submission, based upon joint action by the Commonwealth and the States, fails at the threshold because it was not shown that there was is any legal or practical compulsion on any medical or dental practitioner to perform any medical or dental service. The primary judge explained this, by reference to binding authority, at [267]-[274].”

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ABC: “Judge dismisses challenges to NSW COVID-19 vaccination orders for workers“:

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Daily Mail: “NSW Supreme Court dismisses anti-Covid vaccine mandate cases“:

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SCL: “Kassam Versus Hazzard: What the Supreme Court Found“:

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Kassam v Hazzard; Henry v Hazzard (No 2) [2021] NSWSC 1599 was regarding the costs in the proceedings. The Plaintiffs were ordered to pay 60% of the costs of the First to Third Defendants, Minister Hazzard, Dr Kerry Chant and the State of New South Wales, and the entire costs of the Fourth Defendant, the Commonwealth of Australia.

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