Pandemic arguments

The pseudo legal phenomenon exploded into mainstream discourse during the COVID-19 pandemic, with the numbers of adherents experiencing exponential growth. The majority of legal arguments perpetuated on social media were clearly pseudo legal in nature and had no legal merit at all. These included such arguments as:

• (1) That the vaccine mandates and lockdown restrictions imposed by the States Health Acts are subordinate to the Biosecurity Act 2015 in terms of legislating regarding health issues, pursuant to section 109 inconsistency.
• (2) That section 51(xxiiiA) of the Commonwealth Constitution prevents governments from mandating vaccines.
• (3) That vaccine mandates and lockdown restrictions are a breach of various international treaties including the Declaration on Human Rights and the Nuremberg Code.
• (4) That the vaccine mandates breach the ethics of informed consent to medical treatment and the right to bodily integrity.
• (5) That refusing service to those who were not wearing a mask for whatever reason while it was a CHO direction is discrimination.
• (6) That requiring someone to disclose their vaccine status is a breach of the Privacy Act 1988.
• (7) That mandates requiring proof of vaccine status to authorities infringe on the privilege against self-incrimination and the right to silence.
• (8) That vaccine mandates limit the right to religious beliefs if the vaccine has been tested on cells derived from an aborted human fetus.
• (9) That outside of government imposed vaccine mandates for specific occupations, private businesses don’t have the right to enforce vaccine policies for employees.
• (10) That the CHO directions or mandates are not in fact laws as they have not gone through the normal legislative process such as being passed by both houses of parliament and receiving royal assent.
• (11) That there is no power to limit the common law right to free movement within Australia, and that the limits placed on movement limited the implied constitutional right of political communication.
• (12) That vaccine mandates and lockdown restrictions infringe on the right to earn a living.
• (13) That closing the State borders is a breach of section 92 of the Constitution.
• (14) That State borders do not exist as covering clause 8 of the Constitution meant the Colonial Boundaries Act 1895 no longer applied.
• (15) That the States cannot pass laws to do with quarantine, due to section 69 of the Constitution.
• (16) That the government must first prove that COVID-19 is real in order to make directions regarding it.

(1) THE BIOSECURITY ACT 2015

A popular contention was that the vaccine mandates and lockdown restrictions imposed by the States Health Acts are subordinate to the Commonwealth Biosecurity Act 2015, pursuant to section 109 of the Constitution, that “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” 

As explained on QRTRUE, the argument follows that “mask mandates, quarantine, vaccines, vaccine passport mandates etc are unlawful”, based on the provisions of the Biosecurity Act 2015. They generally cite sections 60 and 61, relating to a “human biosecurity control order” and insist that restrictions can only apply to individuals, not groups.

An example of this can be found in Joash Cohen v Davidsons Garage Pty Ltd [2021] FWC 6587 (at 25-26): 

“Mr Cohen sent Mr Cantelo the following text message in response to this request: “I understand the predicament you are in but that said there has been no legal (or shall I say lawful) obligation put on to you personally by the government and or the federal biosecurity act (that is above state legislation or guidance) … for me to be requested to have a test you have lawfully have to have a signed document by a bio security officer addressing myself by name personally to do so and only if I have symptoms that suggests I am susceptible to be sick. (Bio security act clause 60 and 61).”

Mr Cohen’s text message appears to be referring to ss 60 and 61 of the Biosecurity Act 2015 (Cth), which specify the federal biosecurity officers who are empowered to impose a “human biosecurity control order”, the circumstances in which such an order may be imposed and the prescribed content for such an order. A human biosecurity control order may, in brief summary, be imposed on an individual if the relevant officer is satisfied that the individual has a listed human disease, and may require the individual to comply with certain biosecurity measures including vaccination, restricting the individual’s behaviour and ordering the individual to remain isolated (see s 59). Since Mr Cantelo was not purporting to impose a human biosecurity control order on Mr Cohen, but was rather simply conveying to him an employment direction, ss 60 and 61 of the Biosecurity Act 2015 were utterly irrelevant to the situation.”

In the article “The premise of inconsistency: Section 109” I outline the three different spheres of legislative powers outlined in the Constitution, the EXCLUSIVE powers delegated to the Commonwealth, that the States have no source of power to legislate about, the RESIDUAL powers retained by the States, that the Commonwealth has no source of power to legislate about, and the CONCURRENT powers that they both have the power to legislate about, but in which Commonwealth laws are superior to the extent of any inconsistency. Section 109 can only apply to laws made under the concurrent sphere of legislative powers, those areas where both the States and the Commonwealth can legislate. It cannot apply to laws made under either the exclusive nor residual sphere, as they would be ultra vires.

HEALTH is not a concurrent power, the Commonwealth actually has no constitutional source of power to legislate in this area, it is purely a residual power of the States that was not delegated to the Commonwealth at Federation. (See the list of residual powers on page 936 of Quick and Garran’s The annotated constitution of the Australian Commonwealth) The only impact the Commonwealth can have on health is through entitlements such as Medicare, (Sickness benefits power, (section  51(xxiiiA) such as in the 2017 childcare and family tax benefit restrictions for the childhood vaccination schedule) External affairs power, (section 51(xxix)) and Corporations power, (section 51(xx)) and through its monopoly of major taxation sources, it has power to make financial arrangements that can tie dependent states into specific policies (including public health policies) as a condition of the Commonwealth grants made to them. But ultimately, health remains a responsibility of the States, as explained in the paper “Public health and the Australian Constitution“.

The residual legislative powers of the States are very broad and plenary, while the legislative powers of the Commonwealth are enumerated and limited. ⁠The plenary nature of the power was established in the series of historic Privy Council decisions at the close of the nineteenth century, as referred to by the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) HCA 55 (at 14). It would be “almost impossible to use wider or less restrictive language’ than the phrase “peace, welfare (or order) and good government”. It “is as ample and plenary as the power possessed by the Imperial Parliament itself”. The phrase has traditionally been used to confer “the widest legislative powers appropriate to a sovereign”.

The constitutional sources of power for the Biosecurity Act 2015 (listed in Division 2) are the Quarantine power, (section 51(ix)) External affairs power, (section 51(xxix)) Trade and commerce power, (section 51(i)) Fisheries power, (section 51(x)) Aliens power, (section 51(xix)) Corporations power, (section 51(xx)) Territories and Commonwealth places power, (section 122) Postal power, (section 51(v)) Sickness benefits power, (section  51(xxiiiA)) and Census and statistics power (section 51(xi)). None of these powers deal directly with the subject matter of health, but primarily quarantine.

As pointed out by Wheeler JA. in Glew v Shire of Greenough [2006] WASCA 260 (at 7), the subjects in section 51 were not expressed to be exclusive, the Constitution contemplated that both State and Commonwealth Parliaments would be able to make laws in relation to the matters set out in that list, and it was only where the Commonwealth had passed a law in relation to one of those listed subject matters, and a State law was inconsistent with the Commonwealth law, that the State law would become invalid or inoperative subject to section 109. In Victoria v The Commonwealth [1937] HCA 82 (at 630), Dixon J referred to two approaches which are be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws, which was adopted in Work Health Authority v Outback Ballooning Pty Ltd (2019) HCA 2 (at 32-34 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). The first approach has regard to when a State law would “alter, impair or detract from” the operation of the Commonwealth law. The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to “completely, exhaustively, or exclusively covering the field”. (that is to say, covering the subject matter).

So even when it comes to the subject matter of quarantine, (which the public health orders are not about, but health) the States are still empowered to make laws in this area, as stated by Robert Garran on page 660 of The annotated constitution of the Australian Commonwealth, the Commonwealth is not given exclusive power over the whole of the field. The Commonwealth Biosecurity Act 2015 still applies for its intended subject matter, national quarantine, and provisions in the State Public Health Acts that relate to quarantine operate concurrently with the Biosecurity Act 2015, subject to the following exceptions. As provided in section 8(1) “This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act (except as referred to in subsection (2)).” 

Section 172 (prohibited goods) excludes a State law that purports to prohibit or restrict the importation of particular goods into Australia, section 265 (ballast water) excludes a State law that deals with biosecurity risks associated with ballast water or sediment, and subsections 445(4), provides that the Agriculture Minister may determine any requirement to prevent or control a disease or pest in Australia despite any provision of State law, 446(4), provides that the Agriculture Minister may give any direction to any person or take any action to prevent or control a disease or pest in Australia despite any provision of State law, 477(5) provides that during a human biosecurity emergency period, the Health Minister may determine any requirement to prevent or control the entry of a human disease into Australia despite any provision of State law, and 478(4) provides that during a human biosecurity emergency period, the Health Minister may give any direction to any person to prevent or control the entry of a human disease into Australia despite any provision of State law. All of these relate to national quarantine, primarily under the External affairs power, (section 51(xxix)), and not those provisions in the State Public Health Acts that relate to quarantine within the State.

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(2) SECTION 51(xxiiiA) CONSCRIPTION

This argument concludes that section 51(xxiiiA) of the Constitution prevents governments from imposing vaccine mandates. I actually refuted this concept back in 2017 in relation to the no jab no play/pay policies regarding the child vaccine schedule, as published in the article “The Civil Conscription Argument – Section 51(xxiiiA)“.

The argument was widely disseminated online during the pandemic, including by Great Australian Party legal adviser Darren Dickson:

Pauline Hanson’s speech introducing the “COVID‑19 Vaccination Status (Prevention of Discrimination) Bill 2021”:

Numerous lawyers including Serene Teffaha (AdvocateMe) and Nathan Buckley (G&B Lawyers) perpetuated the theory, and even Professors Gabriël Moens and Augusto Zimmermann wrote widely about it:

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. As Kirby J. stated in Wong v Commonwealth of Australia [2009] HCA 3 (at 124):

“A further feature, derived from the text, that lends support to the foregoing propositions is that the protection afforded by the words in brackets is special, limited and necessarily restricted to those involved in the provision of “medical and dental services”. Such persons comprise the healthcare professionals who provide the designated services.”

As further explained by Beech-Jones CJ in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

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).”

Further, Beech-Jones CJ went on to comment on the Kassam plaintiffs reference to the Quadrant Magazine article by Augusto Zimmerman and Gabriel Moens, “Emergency Measures and the Rule of Law” (at 285):

“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).”

In Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, (at 35) Hartigan IC agreed with Beech-Jones CJ in Kassam v Hazzard [2021] NSWSC 1320 (from 261) regarding the correct interpretation of section 51(xxiiiA) of the Constitution:

“In relation to Mr Tilley’s contention with respect to s 51(xxiiiA) of the Commonwealth of Australia Constitution Act, regard must be had to the terms of that provision. Relevantly, s 51(xxiiiA) of the Constitution states:

51. Legislative powers of the Parliament: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:— (xxiiiA) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:

This provision of the Constitution appears to relate to the Commonwealth’s power to make laws regarding the provision of, inter alia, medical services. The civil conscription limitation appears to relate to those who provide the, inter alia, medical services. In Wong v Commonwealth of Australia and Anor, Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 the High Court, in considering s 51 (xxiiiA) of the Constitution, relevantly held (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. [footnotes omitted].

Accordingly, I do not consider that s 51(xxiiiA) of the Constitution is relevant to the circumstances of this matter as it relates to the provision of, inter alia, medical services, rather than the receipt of such services by an individual. Further, I do not consider that s 51(xxiiiA) of the Constitution is relevant to this matter as it relates to the Commonwealth’s power to make such laws and does not cover the responsibilities of the State.”

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(3) INTERNATIONAL TREATIES

It was often contended that vaccine mandates and lockdown restrictions are a breach of human rights, referring to the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and in relation to vaccines, the Nuremberg Code.

The Nuremberg Code was developed following World War II and addresses human medical experimentation. It formed part of the International Medical Tribunal’s case involving 23 doctors and administrators in August 1947, accused of often deadly medical experiments carried out on concentration camp inmates. While the Nuremberg Code was an important historical document, it is no longer used to guide research ethics as it had been replaced by the World Medical Association’s Helsinki Declaration (1964).

The first principle of the code begins, “The voluntary consent of the human subject is absolutely essential.” That subjects must have the legal capacity to give consent and be in a position to exercise free power of choice. The code’s emphasis on requiring consent for participation was about what was permissible during research experiments, but this is irrelevant for approved vaccines, which have been tested in clinical trials prior to administration. If anything, the Nuremberg Code would only be relevant at the research trial stage of a vaccine’s development, not its rollout to the general public. Moreover, no vaccinations are compulsory in Australia, only required for certain types of employment, and during the current health crisis, certain types of activity. The Nation­al Cab­i­net State­ment on 6 August 2021 under the head­ing “Employ­ee Vac­ci­na­tions” noted: “Aus­trali­a’s pol­i­cy remains that vac­cines should be vol­un­tary and free.”

The Nuremberg Code is a treaty, and like all treaties mentioned above, they do not form part of domestic law.  See Bradley v Commonwealth [1973] HCA 34, Minister for Foreign Affairs and Trade v Magno, G [1992] FCA 864,  Dietrich v The Queen [1992] HCA 57, and Minister for Immigration and Ethnic Affairs v Teoh (1995) HCA 20, where (at 286-287) Mason CJ and Deane J said: 

“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive.  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

As also noted by Hayne J. in Joosse v Australian Securities and Investment Commission [1998] HCA 77: (at 21):

“The third element in the submissions made by the applicants, and the one to which greatest significance was given in oral argument, asserts that significance is to be attached to certain of Australia’s international dealings. These contentions fail to take account of certain basic principles. First, provisions of an international treaty to which Australia is a party do not form part of domestic law unless incorporated by statute. It follows that what one of the applicants referred to as various human rights instruments do not of themselves give rights to or impose obligations on persons in Australia. Similarly, the Charter of the United Nations does not have the force of law in Australia.”

Similarly, regarding the International Covenant on Civil and Political Rights, it was held in Dietrich v The Queen [1992] HCA 57 that:

“The ratification by Australia of the I.C.C.P.R. on 13 August 1980 did not render it part of Australian municipal law. The I.C.C.P.R. is now contained in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). While the Act confers power on the Human Rights and Equal Opportunity Commission to investigate and conciliate alleged breaches of rights contained in the I.C.C.P.R., it does not create justiciable rights for individuals. Likewise, although Australia’s accession to the First Optional Protocol to the I.C.C.P.R. effective as of 25 December 1991 enables Australians to petition the United Nations Human Rights Committee for alleged violations of the rights set out in the I.C.C.P.R., it does not make the I.C.C.P.R. part of Australian municipal law.”

Even when an international treaty is brought into domestic law through legislation, such as the Victorian Charter of Human Rights and Responsibilities Act 2006, the High Court held in Momcilovic v The Queen & Ors [2011] HCA 34 that it does not empower the courts to radically re-interpret legislation or subvert the parliaments intent. It was held that the Charter protects fundamental human rights while maintaining parliamentary sovereignty.

The subject matter that is included in the Nuremberg Code is found in divisions 168-170 of the Criminal Code Act 1995. Section 10.5 “Lawful authority” provides that “A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.” Section 268.120 provides that: “This Division is not intended to exclude or limit any other law of the Commonwealth or any law of a State or Territory.” Section 270.12 provides that section 270 is “not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.”

In relation to the International Covenant on Civil and Political Rights in Larter v Hazzard (No 2) [2021] NSWSC 1451 (at 62) Adamson J pointed out Australia has an obligation under article 12 of the ICCPR to prevent, treat and control epidemics, as also addressed in Kassam v Hazzard [2021] NSWSC 1320 (at 199).

In Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 40 (at 99-100) Pidgeon IC drew attention to the Human Rights Compatibility Statement:

“I have reviewed Ms Colebourne’s application for exemption and note that she makes a reference to human rights by bringing the VEC’s attention to the dissenting decision of Deputy President Dean in the Fair Work Commission matter of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015. I note that the paragraph Ms Colebourne directs the VEC’s attention to is to Australia’s obligations under the International Covenant on Civil and Political Rights, specifically Article 7 ‘that no one shall be subjected without his free consent to medical or scientific experimentation’. I note that s 17(c) of the Human Rights Act 2019 (Qld) provides that a person ‘must not be subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent’. I further note that the Human Rights Compatibility Statement considered this section and addresses it under the heading ‘human rights limited’ on page 2 of the document. There is no evidence before me that the VEC was unaware of the Human Rights Compatibility Statement considered by the Commissioner of Police in making the Direction or that Ms Colebourne’s human rights were not considered in making the decision not to grant the exemption.”

The applicants in Harding v Sutton [2021] VSC 741 sought declarations that the vaccination directions are invalid because they are incompatible with various human rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic), the right not to be subjected to medical treatment without consent in section 10(c), and the right not to have their privacy unlawfully or arbitrarily interfered with in section 13(a). It was submitted by the defendants that s 38(1) of the Charter did not apply to the giving of the Vaccination Directions, which they characterised as instruments of a legislative character and hence ‘subordinate instruments’. They relied on Kerrison v Melbourne City Council [2014] FCAFC 130 as authority for the proposition that s 38(1) of the Charter does not apply to the ‘act’ of making or to a ‘decision’ to make a subordinate instrument. They also argued that the Vaccination Directions do not subject any person to medical treatment, relying on the reasoning in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, in which Beech-Jones J rejected a submission that mandatory vaccination orders in New South Wales violate any person’s right of bodily integrity. His Honour held that a consent to vaccination is not vitiated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry to a work site.

Further examples of this misconstrued understanding of the place of international law can be found in Isabella Stevens v Epworth Foundation [2022] FWC 593 (at 26):

“…the contention of Ms Stevens that the Directions are invalid on the ground that they are contrary to international human rights conventions is misconceived, because international conventions have domestic effect in Australia only to the extent that they have been incorporated into legislation.”

Filla v Independent Community Living Australia [2022] NSWCATAD 108: (at 8-10)

“In both written and oral submissions, Mr Filla referred to Article 7 of the International Covenant on Civil and Political Rights 1980 and sought my explanation as to how any NSW law, or, the PHO’s, could override international law. He frequently referred to there being no ‘higher laws’ above United Nations Law and that the Hon Bradley Hazzard MLA, Minister for Health and Medical Research, had no jurisdiction to make valid PHO’s because a PHO order is not a law, only a directive. Therefore, the PHO’s are of no legal effect. Mr Filla cited the Charter of Human Rights and Responsibilities Act 2006, which protects him from cruel, inhuman or degrading treatment and that this and other international laws and covenants are apposite in this leave application.”

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(4) BODILY INTEGRITY AND CONSENT

Consent to any medical procedure is the sole choice of the patient, except in an emergency when the patient lacks capacity and the patient’s express wishes are unknown, or, and this is the crux of it, where the law otherwise allows or requires treatment to be given without consent. An obvious example is compulsory drug and alcohol testing of blood following a road accident.

Some other examples of this in New South Wales legislation is (1) section 174 of the Children and Young Persons (Care and Protection) Act 1998, where consent is not required to treat a child or young person, regardless of capacity, if the treatment is required urgently to save the life or prevent serious damage to the health of the child or young person, (2) for patients receiving electro-convulsive therapy and for surgical treatment provided to involuntary patients under the Mental Health Act 2007, (3) for involuntary treatment for severe substance dependence under the Drug and Alcohol Treatment Act 2007, (4) for treatment provided to inmates in a corrective facility under section 73 of the Crimes (Administration of Sentences) Act 1999, and (5) for Special Medical Treatment under the Guardianship Act 1987. Consent of the patient is also not required for treatment which is authorised by an order of a court, Tribunal or authorised person.

As far as vaccinations, it is provided in law in several States that consent is not required in certain circumstances. A vaccine could be made compulsory if the need arises, like a serious pandemic. Each of the States have their own Health Acts, and some contain provisions which include removing any clothing and using whatever force is necessary to administer a vaccine or other treatment. For example, in Western Australia it is section 185 of the Public Health Act 2016.

In Kassam v Hazzard [2021] NSWSC 1320, 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.

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.”

As Senator Jaccqui Lambie said: “You have freedom to make a choice but, if you make a choice, those choices have consequences” (Commonwealth, Parliamentary Debates, Senate, 22 November 2021)

In Larter v Hazzard (No 2) [2021] NSWSC 1451 the applicant relied on the principle of legality, which is a principle of statutory interpretation that says a statute should not be held to interfere with fundamental rights and freedoms unless that intention is expressed by clear language. Justice Adamson responded (at 80-83-86):

“The object of section 7 of the Public Health Act 2010 (NSW) is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions: Australian Securities and Investments Commission v DB Management [2000] HCA 7 at [43] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). It is of even less assistance in the present context when the question is whether it was open to the Minister to make a particular order under section 7, which plainly depends on the circumstances and the reasonableness of the order to address the risk to public health.”

“It is significant that Parliament has provided, in s 3(2) of the Act, that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.” Whether a risk is acceptable or not depends on its likely consequences and the difficulty of the steps required to ameliorate the risk. The answers to these questions are, as long as the step is reasonably open, within the purview of the Minister’s discretion and are not to be determined by this Court.”

“The range of decisions reasonably open to the Minister is, in this context, wide. As long as the decision sought to be impugned falls within the ambit of those which are reasonably open, this Court has no power to set it aside on the grounds of unreasonableness. Each of the decisions between available alternatives are policy questions which Parliament has decided are to be matters for the Minister’s consideration and decision.”

As Beech-Jones J said in Kassam v Hazzard [2021] NSWSC 1320 (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.”

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(5) DISCRIMINATION

There was frequent refusal to comply with the mandatory mask wearing directions, and some even came up with their own exemption cards. Prime News: “A Forster business owner is sounding the alarm on false mask exemptions after a customer presented her with a suspicious card.“:

Some considered that it was discriminatory for a business to refuse service to a customer on grounds of refusing to wear a mask, without showing evidence of a medical exemption, which they considered to be an invasion of their privacy. The simplest solution was to carry a document that confirmed the exemption from a medical or disability practitioner. This document doesn’t need to disclose any private medical condition, but simply confirms the exemption, so it does not breach privacy laws. The mask-less checkout attendant at my local Coles simply has a badge on her uniform next to her name badge signed by her doctor.

However, due to the problems associated with seeing a doctor during a complete lockdown, the rules were amended so that people could write a statutory declaration that identifies the disability, illness, or condition, and declares it makes wearing a fitted face covering unsuitable.

The New South Wales Government website states that: “If a person refuses to wear a face mask at a premise, the occupier of the premises may refuse entry to that person. It is a matter for the occupier of each premises to exercise judgement on what is appropriate for their premises and for the well-being of their staff and customers. If an occupier intends to refuse entry, they should be familiar with the exceptions and speak to the person to understand their circumstances.”

However, even if someone has a medical exemption, it still may not be discriminatory to refuse them service. Section 6(3) of the Disability Discrimination Act 1992 provides that conduct which may be discriminatory is lawful if the requirement or condition is reasonable, having regard to the circumstances of the case. Section 48(b) of the Disability Discrimination Act 1992 provides that “conduct which may be discriminatory is lawful if the discrimination is reasonably necessary to protect public health”. Asking someone if they have an exemption or refusing them entry would be found reasonable in most circumstances, would excite the defence and exclude criminal liability.

Several applicants in unfair dismissal cases contended that their dismissal from vaccine requirements was discrimination against their “disability” claiming that COVID-19 was a disability and therefore acting on the presumption that someone may at some time contract it is discriminatory. Some examples can be found in Filla v Independent Community Living Australia [2022] NSWCATAD 108 (at 25/30):

“Mr Filla submits that he has been terminated from his employment because of a presumed disability, namely, possible future sickness from this flu-like sickness called COVID-19. … In oral submissions, Mr Filla describes his disability as being a presumed disability, namely the prospect that he may contract COVID-19 if he is not immunised against it.”

Isabella Stevens v Epworth Foundation [2022] FWC 593 (at 25):

“Nor would there appear to be any cogent basis to contend that the Directions are inconsistent with Commonwealth anti-discrimination legislation, because the status of being unvaccinated is not a protected attribute.”

Petek v TAFE NSW [2022] NSWCATAD 105 (at 3):

“The complaint alleges that being subjected to a vaccine mandate from his employer, he was discriminated against because of a presumed disability (being the disease of SARs-COV-2) (COVID-19).” 

In the latter case, the applicant relied on the definition of “disability” in section 4 of the Anti-Discrimination Act 1977 (NSW) meaning (b) “the presence in a person’s body of organisms causing or capable of causing disease or illness” and that section 49A includes a disability (d) “that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).”

As explained by the President, (at 22-25) the complaint does not fit within the definition in section 4 of the Act, as both vaccinated and unvaccinated people can contract COVID-19, and (at 24) all employees are required to comply with the Policy, so he is not being treated in any way differently to other employees who do not have a disability. Further, the exception in section 49P of the Act provides that “Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health.”

In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 the plaintiffs also sought to contend that, by differentiating between people who are vaccinated and unvaccinated, the impugned order effected a form of discrimination on the basis of disability or required third parties such as employers to effect such discrimination. Beech-Jones CJ at CL noted (from 203) that firstly, everyone has a disability because even vaccinated people can acquire COVID-19. Secondly, even if being unvaccinated satisfies the definition of disability, then the differential treatment of people who are not vaccinated may not amount to direct discrimination because it appears that such people are not being treated less favourable “in circumstances that are not materially different” to the vaccinated, (sections 5(1) and 5(2) of the Disability Discrimination Act 1992 (Cth), and similarly, the definition of indirect discrimination is qualified by a provision in section 6(3) that stipulates that any requirement or condition imposed on an aggrieved person that “is reasonable, having regard to the circumstances of the case” is not discrimination. Thirdly, any such differential treatment by third parties acting in accordance with the impugned orders are supported by section 47(2) which excludes the operation of the prohibitions for “anything done by a person in direct compliance with a prescribed law” which by section 47(5) includes a state law. Fourthly, there is an exception in section 48 from the operation for persons whose disability is an infectious disease and the discrimination is reasonably necessary to protect public health. 

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(6) THE PRIVACT ACT 1988

It became popular to cite section 94H of the Privacy Act 1988 in relation to check in requirements, although most misunderstood the intention of the provision.

Firstly, the provision specifically relates to the requiring of the use of the COVIDSafe App, when it is not mandatory to even own a phone. Manual sign-in is available to those without a phone, or who don’t want to download the State-based app for whatever reason.

Secondly, this section only applies to the Australian Government’s COVIDSafe App, not to State apps, or QR codes in general. See COVID-19 check-in apps privacy FAQs:

Thirdly, as adherents seem to point to section 109 of the Constitution as evidence that this provision also applies to State laws, it must be understood that the Commonwealth’s Privacy Act 1988 doesn’t “cover the field” and only certain entities have responsibilities under it. The Act was introduced to promote and protect the privacy of individuals and to regulate how Australian Government agencies and organisations with an annual turnover of more than $3 million, and some other organisations, handle personal information. The Privacy Act does not cover State or territory government agencies, who have their own privacy legislation. See Rights and responsibilities and Privacy in your state: 

So ultimately, the privacy obligations in New South Wales are to the Privacy and Personal Information Protection Act 1998, and that is what the Privacy Impact Assessment for the MyServiceNSW app is based on. See Privacy Impact Assessment – COVID Safe Check-in:

However, organisations with an annual turnover of more than $3 million, and some other organisations do have responsibilities under the Privacy Act 1988, and this became the subject of several judgements in which the applicants felt that disclosing their medical details breached their privacy.

In Aleisha Jean Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92 it was contended that the request for medical information from employees was “in breach of an individual’s right to privacy under the Privacy Act 1988”. Deputy President Saunders of the Fair Work Commission noted the argument was disposed of by the New South Wales Court of Appeal in Kassam v Hazzard [2021] NSWCA 299. Beech-Jones CJ in Kassam v Hazzard [2021] NSWSC 1320 rejected the contention that the Public Health Order was invalid because it violated a person’s right to privacy. His Honour also relevantly held (at 215) as follows in relation to these arguments concerning the Privacy Act:

“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.”

Privacy principle 6 was found to be irrelevant to the case, as it provides that an entity must not use or disclose information for another purpose unless the individual has consented. There was no suggestion that the employer used or disclosed any information provided by the applicant for a secondary purpose. Likewise the requirement in privacy principle 3 for an APP entity such as the employer not to collect sensitive information such as medical information about an individual unless the individual consents to the collection of the information. However, 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”. In the present case, 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.

Antonio Prosia v Melbourne Archdiocese Catholic Schools Ltd T/A MACS [2022] FWC 346 (from 90):

“There is no doubt on the subject and it must comply upon pain of civil penalty prosecution. The Privacy Act itself acknowledges there will be circumstances in which “the collection of the information is required or authorised by or under an Australian law or a court/tribunal order” (Australian Privacy Principle (APP) 3.4) … As with Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, the situation in Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA and Ors [2022] FWC 81 is appreciably different to that faced by MACS and the Applicants. As detailed above schools and other Victorian workplaces are subject to public health orders which require proof of vaccination or exemption prior to entry and prohibit entry of a person if such proof is not provided.”

Similarly as with the fake mask exemptions, there were several attempts at fake vaccine certificates, via an application one could download from certain websites. ABC: “Fake COVID-19 vaccination certificates used by Australians to beat mandates and enter venues“:

The applicant in Mr David Brownbill v O&M Pty Ltd [2021] FWC 6635 was annoyed after his employer didn’t accept his fake vaccine certificate, taking him to the Fair Work Commission for unfair dismissal, and then became even more annoyed when the judge didn’t accept his fake vaccine certificate:  

Several doctors were suspended from practice for providing fake vaccination exemptions, some of which were presented in unfair dismissal cases such as in Dimitrios Perdikaris v KLF Holdings Pty Ltd [2022] FWC 384:

(at 3): “Dr Evans described the medical contraindication as “Covid-19 Vaccine Major Anxiety.” (at 5): “Dr Evans came out of retirement at aged 84, issued invitations for those interested in vaccine exemptions to “call and ask” and their “paperwork will be processed” … Dr Evans allegedly issued hundreds of exemptions for Covid-19 vaccinations “without proper medical consultation”, and that Dr Evans’ medical registration was suspended not long after Mr Perdikaris’ contraindication certificate was issued.” (at 16): “…forensically worthless even if it was actually provided by Dr Evans (prior to Dr Evans’ suspension by the Medical Council)”

Telegraph: “Dr Anthony John Evans accused of fake vaccination exemptions suspended“:

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(7) THE RIGHT TO SILENCE

The health orders in New South Wales in some circumstances required a person to produce evidence of their identity, residence and vaccination status. In Kassam v Hazzard [2021] NSWSC 1320 it was argued by both sets of plaintiffs that this 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.)

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(8) RELIGIOUS RIGHTS

Several cases had raised the contention that vaccine mandates limit the right to religious beliefs, primarily where abortion is against such beliefs, and the vaccine may be the product of research, testing and production processes developed from the cell line HEK 293, (which is derived or sourced from the fetus of an aborted child) or otherwise developed using stem cell research.

This contention was actually upheld by the New Zealand High Court under their Human Rights Charter in Ryan Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291.

However, it was rejected here in Australia in relation to the International Covenant on Civil and Political Rights in Larter v Hazzard (No 2) [2021] NSWSC 1451 (at 62). The Court accepted that the orders did not infringe any of the articles of the ICCPR, even had it been implemented and formed part of Australian law (which it was common ground that it had not and did not, having not been implemented). Article 18 of the ICCPR, which provides for freedom of religion and religious expression, is subject to an exception in article 18(3) that the freedom may be subject to limitations which are necessary to protect public health, and similarly with article 19 (which protects freedom of thought and expression), and article 26 (which prevents discrimination on the grounds of religion, race and sex). Adamson J pointed out, in any event, Australia has an obligation under article 12 of the ICCPR to prevent, treat and control epidemics, as addressed in Kassam v Hazzard [2021] NSWSC 1320 (at 199). The Court also referred to a publication in which the Pope authorised Catholics to be vaccinated with COVID-19 vaccines, and concluded his objections to the vaccine derive from his own conscience as opposed to his Catholic faith.

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(9) EMPLOYER VACCINE POLICIES

Many of the unfair dismissal cases before the Fair Work Commission in the article “The pandemic cases” were regarding whether the mandating of employees of private businesses to have vaccination was “a lawful and reasonable direction” when not under a public health order, as opposed to those by government mandate, which instantly makes it lawful and reasonable no matter what.  In every Court challenge to date, the public health directions requiring the vaccination of employees have been found to be entirely legal, and a breach of them is a breach of the law.

Some have contended that if their contract of employment does not require them to get vaccinated or wear a mask, then they do not have to. Further, they state that any attempt to require an employee to be vaccinated or wear a mask is a breach of their contract of employment. These views are legally incorrect. A contract of employment does not set out every obligation owed to an employer, nor does it list every single task an employee must carry out to do their work. Contracts of employment set out the duties of an employee, however a range of other matters are generally left to the discretion of the employer, including safety issues, disciplinary matters, the way in which work will be carried out, what the day-to-day tasks will be, what tools to use, which vehicles to drive – the list goes on. Issuing a direction to wear a mask or to be vaccinated against COVID-19 does not require a change to a contract of employment, unless of course the current contract specifically has an entitlement not to wear a mask or not be vaccinated against COVID-19, which is highly unlikely.

Employers have a singular duty to protect the health of all individuals in their workforce, and those who come into contact with their workforce. All but one case before the Fair Work Commission therefore considered it was a lawful and reasonable direction.

Employees at Queensland coal mines and related sites, operated by or related to the BHP Group of Companies, were informed of the introduction of a site access requirement by which they were directed that as a condition of entry to Queensland sites, they would be required, by 31 January 2022, to be fully vaccinated against COVID-19.

In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 a Full Bench constituted by five members of the Commission, dealt with a dispute about whether a direction to employees of Mt Arthur Coal Pty Ltd, in relation to the site access requirement to prove their vaccination status was lawful and reasonable. The Full Bench found that the direction was not lawful and reasonable on the basis of failure to consult in accordance with obligations under the Workplace Health and Safety Act 2011 (NSW) in conjunction with an Enterprise Agreement.

While the Commission found it is a lawful and reasonable direction if a proper consultation occurs in a timely manner beforehand, (even if workers disagree with the result), that consultation had not occurred in this case.

See also Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWC 6626

AFR: “BHP vaccine mandate unlawful, Fair Work rules“:

However, this was a one-off technicality on consultation, as a similar challenge was heard in Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA and Ors [2022] FWC 81 which relied heavily on this decision, with added contentions relating to the Privacy Act and the right to bodily integrity, and the Court concluded that the site access requirement was a lawful and reasonable direction.

Some have subsequently referred to this decision as applicable to situations outside of employer imposed requirements, where the direction instead has force through government imposed mandates, which is irrelevant to the object of the decision. Some examples can be found in Christina Shah v Catholic Education Office Parramatta Diocese (Cedp) [2022] FWC 443 (at 38): 

“41.5.2. The Applicant’s reliance on CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 was misconstrued. The Respondent had no obligation to consult with employees in respect to the introduction of the PHO in accordance with the Work, Health and Safety Act 2011(NSW) or the EA. In addition, there were no matters that the Respondent could reasonably or genuinely consult given that it had no discretion as to the application of the PHO. The survey referred to in the Show Cause Response was issued in relation to a proposed COVID-19 Vaccination Policy and not in relation to the PHO.”

Antonio Prosia v Melbourne Archdiocese Catholic Schools Ltd T/A MACS [2022] FWC 346 (at 50):

“In reaching its conclusion, the Full Bench expressly noted that the requirement for the direction to be lawful and reasonable (and therefore encapsulating consultation requirements) was in cases “absent a public health order.” Mt Arthur is distinguishable as it concerned a definite decision of a private company, independent of any government mandate, to require its employees to be vaccinated. In those circumstances, the Full Bench held that the Respondent had failed to consult its employees in mandating the vaccinations. The present circumstance, as has been discussed, does not involve a definite decision of the Respondent but a mandate of the Victorian Government. It is not possible for the Respondent to have consulted with the Applicants prior to the Directions being issued in circumstances where they had no part in the decision-making process.”

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(10) A MANDATE IS NOT A LAW

This became a lockdown slogan, as people repeated the phrase without much investigation. Beyond the application of outdated medieval definitions, the basic premise was that the Chief Health Officers directions or “mandates” are not in fact laws as they have not gone through the normal legislative process such as being passed by both houses of parliament and receiving royal assent.

While it is true that directions have not gone through the processes that legislation does, they are still laws and have the same effect, as they are subordinate instruments that gain their power from primary legislation that has gone through the normal legislative process, and that primary legislation also provides statutory penalties for their disregard. 

For example, while section 7 of the Public Health Act 2010 provides that the Health Minister may take such action and may by order give such directions he considers on reasonable grounds that is, or is likely to be, a risk to public health, section 10 of the Act provides that it is an offence for a person, without reasonable excuse, to fail to comply with the direction.

The federal government has adopted regulations under numerous statutes to address the health crisis, including the public health emergency sections of the Biosecurity Act 2015, which provide public officials with broad authority to delegate regulation-making power. Australia’s head of the executive branch, Governor-General David Hurley, can declare a “human biosecurity emergency” for a period of up to three months. (declaration made March 18, 2020, and then extended) Section 477 then grants the Minister for Health, Greg Hunt, power to “determine emergency requirements during human biosecurity emergency period.” This declaration is not subject to disallowance under the Biosecurity Act 2015, which expressly disables parliamentary control of regulations when the Governor-General declares a human biosecurity emergency, enabling health regulations to operate “despite any provision of any other Australian law”. The only check on this power is that regulations cease to apply when the human biosecurity emergency period ends, which is three months after the Governor-General declares the emergency, unless extended.

A similar situation exists with State emergency declarations, for example, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 No 1 (NSW) provides in Part 5, under Division 5, section 32: “Relationship of Part with this Act and other legislation” states in subsection (1): “This Part applies despite anything to the contrary in this Act, the regulations, the Tribunal rules, enabling legislation or any other legislation.”

Statutory provisions like these are commonly referred to as “Henry VIII clauses,” after the sixteenth century English King who had broad powers to legislate by proclamation. A Henry VIII clause is a provision in a primary Act which gives the power for secondary legislation (regulations) to include provisions which amend, repeal or are inconsistent with the primary legislation. The effect of a Henry VIII clause is that whoever who makes the regulations has been delegated legislative power by the Parliament. In other words, the executive arm of government would have the power to make regulations which can modify the application of the primary statute.

The Commonwealth Parliament’s power of delegation was well settled. In Capital Duplicators Pty Ltd v Australian Capital Territory [No 1] [1992] HCA 51 (at 280, per Brennan, Deanne and Toohey JJ). the High Court held:

“Although the Legislative Power of the Commonwealth is confined to the Parliament by s 1 of the Constitution, it has been accepted doctrine, at least since Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34, that the separation of the powers does not restrain the power of the Parliament to make a law ‘conferring upon the executive a power to legislate upon some matter contained within one of the subjects of the Legislative Power of the Parliament.” 

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(11) FREEDOM OF MOVEMENT

In Gerner v Victoria [2020] HCA 48, the High Court rejected the argument that there was an implied freedom of movement in the Constitution. It was found that the colonies prior to Federation clearly had the power to limit the common law right to free movement, the very existence of section 92 was required precisely because governments can otherwise limit the common law right of free movement, and that this power was preserved by section 106 of the Constitution.

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(12) THE RIGHT TO WORK

This contention was addressed in Kassam v Hazzard [2021] NSWSC 1320 (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.”

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(13) SECTION 92 FREE INTERCOURSE BETWEEN STATES

In Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 180 the High Court was asked whether the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) were invalid because they impermissibly infringe section 92 of the Constitution. The court responded that on their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of section 92 of the Constitution in each of its limbs. The detailed reasons were later published in Palmer v Western Australia [2021] HCA 5.

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(14) SECTION 69 AND 51(ix) QUARANTINE

Wayne Glew was consistently referring to section 69 of the Constitution in his videos claiming that this provision means that the States could no longer pass laws regarding quarantine after Federation. The section provides that:

“On a date or dates to be proclaimed by the Governor‑General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth: Posts, telegraphs, and telephones; Naval and military defence; Lighthouses, lightships, beacons, and buoys; Quarantine. But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.”

It is important to note that it provides that the “department” of quarantine will be transferred to the Commonwealth, not the subject matter of quarantine itself. The power to legislate regarding quarantine is found in section 51(ix) of the Constitution, and like most of the subjects in section 51 it is a concurrent power that the States can also legislate regarding, and not a power exclusive to the Commonwealth. So ultimately, subject to section 109 inconsistency, the States are still empowered to make laws in this area.

Wayne Glew frequently waves Quick and Garran’s The annotated constitution of the Australian Commonwealth around for the camera, perhaps he should spend more time reading it instead. As stated by Robert Garran on page 660:

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(15) THERE ARE NO STATE BORDERS

Rodney Culleton of the Great Australian Party consistently held that there are no State borders after covering clause 8 of the Constitution meant the Colonial Boundaries Act 1895 no longer applied to boundaries within Australia. It provides:

“After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of  the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.” 

Note it doesn’t state that the boundaries themselves were abolished, but the effect of the Colonial Boundaries Act 1895. So what was the Colonial Boundaries Act 1895 about? It certainly didn’t establish the boundaries, they all existed prior to 1895, from the beginning of whatever colony.

The answer is very simple. The Colonial Boundaries Act 1895 merely dealt with the MANNER by which the colonial boundaries could be altered. Before federation, the colonial boundaries could be altered by the Queen in Council under the Colonial Boundaries Act 1895 with the consent of the affected Colonial Parliaments. Since federation, section 123 of the Commonwealth Constitution provides the only constitutional avenue for an alteration in State borders. It provides:

“The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.”

So covering clause 8 of the Commonwealth Constitution Act 1900 certainly did not alter any boundaries, but merely the manner by which they could be altered. Ultimately, there are two methods here of boundary alteration here, one prior to Federation, the other after Federation. No boundaries have been altered or abolished through either of these forms, so they remain as always.

This is confirmed by Page 378 of Quick and Garran’s Annotated constitution of the Australian Commonwealth:

“The purpose of the Act is to confer general statutory authority on the Queen to alter the boundaries of a self-governing colony, with the consent of that colony, without the necessity of resorting to Imperial legislation in every case. The reason for repealing the Act, so far as it applied to colonies which become States of the Commonwealth, is that the Constitution itself makes provision for the alteration of the boundaries of States. Sec. 123 provides that the Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of majority of voters in the State, alter the limits of the State.”

Rodney Culleton took offence to checkpoint police and anyone else referring to these boundaries as “borders” and instead called them “political limitations” which is quite the logical fallacy. The terms “border” and “boundary” basically mean the same thing, from different perspectives. By definition, a border is the outer edge of something, while a boundary is the dividing line or location between two areas. The limits of a State ARE the boundaries, and they are actual physical geographic boundaries, as evidenced by fact the original Letters Patent that established the particular colony provides the latitude and longitude points to define the exact location of the boundary.

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(16) COVID-19 ISN’T REAL

Some contended that the government must first prove that COVID-19 is real in order to make directions regarding it. The basic outline of the premise can be found in Filla v Independent Community Living Australia [2022] NSWCATAD 108 (at 10):

“Mr Fila in his written submissions questions the science behind SARS-CoV-2 (COVID-19) existing because a member of the public, under a freedom of information request, apparently was told by the Therapeutic Goods Administration that no documents exist, which, “show scientific and factual evidence of the testing and isolating regime in Australia one hundred percent identified COVID-19 and its mutated variants”. He contends, therefore, without this evidence the Respondent had no ground to terminate his employment. Mr Filla contends there is no evidence that COVID-19 exists.”

Similarly, some insisted that the vaccines were in trial, as seen in Isabella Stevens v Epworth Foundation [2022] FWC 593 (at 25):

“I reject the contention that Epworth was forcing Ms Stevens to participate in a ‘medical trial procedure’. She was not forced to do anything. And the rollout of COVID-19 vaccinations is not a trial. Relevant tests and trials took place prior to the TGA approval of those vaccines for use in Australia.”

In Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor; Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QSC 41 the applicants expanded on this premise, claiming that the Chief Health Officer was obliged to give reasons for the directions made under the Public Health Act 2005 (Qld), and requested a statement of reasons under the Judicial Review Act 1991 (Qld). Dalton J. dismissed the case accepting the Chief Health Officer’s submission they are only entitled to a statement of reasons if the decision is of administrative character, not if it is of a legislative character.

Brisbane Times: “CHO shuts down demands for vaccine mandate explanation in court case“:

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MORE PANDEMIC ASSERTIONS

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RUBUT THIS

Several people had attempted a typically pseudo legal and very invalid “foisted unilateral contract”. In Smith v La Spina [2022] FedCFamC2G 31 the applicant offered to agree to the vaccine and mask requirements if, in turn, her employer agreed to certain conditions. Those conditions included (at 6):

Similarly in Neville v State of Queensland (Queensland Health) [2022] QIRC 92 (at 37):

“As you are requesting, insisting, forcing and or coercing me to receive a medication of the type commonly named vaccine, as a requirement for my continued employment, I will give you 21 days from the date of this notice to provide me with the sworn evidence of all points above number 1-17, during which time my employment will remain as it currently it and has been since the beginning of my employment. If you are unable or unwilling to provide me with evidence as requested, it is agreed by both parties, you and I, that my employment will remain as it is currently, with no ill affect, no forced termination and you will provide me with full protection of any discrimination in the workplace by you and or your professional advisors and or your other employees. … It is my intention to continue my employment until retirement age or until such time as the company is no longer able to operate. Should you terminate my employment without my consent and without providing sworn evidence of the points 1-17 above, you will agree to a termination payment sum or five million dollars ($5,000,000 AUD). All monies agreed to in the twelve corners of this document are due and payable within 21 days of the event. You also agree that you will be liable for nay and all costs for both parties should any kind of litigation take place as a result of this contract agreed to by both parties, you and I.”

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MARTIAL LAW

A concerned follower messaged me with a question: “Do you think the Australian defence force can be deployed into Sydney to help enforce the public orders? I thought that was some kind of martial law, but I have a feeling you will tell me that’s its perfectly fine. Would love to hear you talk about this on your Facebook page.”

“The Australian Government’s Use of the Military in an Emergency and the Constitution” by Anthony Gray (2021 UNSW Law Journal) considers the constitutional validity of using the ADF in the recent crises. It explains the legislative basis for the Commonwealth’s use of the military, (primarily the Defence Act 1903 and Biosecurity Act 2015) and the possible constitutional sources of power, the defence power in section 51(vi), the Commonwealth’s executive power in section 61, the inherent nationhood power, and incidental power in section 51(xxxix).

In summary, section 35 of the Defence Act 1903 permits the Governor-General to make an order to protect a state/territory against ‘domestic violence’. However, exercise of this power is conditional upon that government seeking protection. This has occurred during COVID-19, with members of the military accompanying state police to enforce quarantine orders and restrictions.

Section 46 permits a Minister to confer special powers upon members of the ADF that have been called out. They are potentially broad. They might include, relevantly, taking action to prevent or end threats to a person’s health or safety, or public health and safety, control the movement of individuals, evacuate them, to search and seize persons, things or property, detain them pursuant to the call-out order, require persons to answer questions or produce documents where easily accessible, and patrolling areas. The ADF may also be declared a national response agency under section 452 of the Biosecurity Act 2015, and thus have powers delegated to it.

Regarding the extent of Commonwealth constitutional power to deal with emergencies, the article has concluded that the relevant provisions of the Defence Act 1903 are likely supported by the defence power, together with the incidental power, and that greater difficulty attends use of the executive power and/or the inherent nationhood power.

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INCITEMENT

After Zoe Buhler was arrested for incitement over a Facebook post encouraging anti-lockdown protests, there was a lot of online chatter of the meaning of incitement, and claims made that she was not guilty unless the event went ahead. Incitement in Victorian law is found in section 321g of the Crimes Act 1958:

This Bench Manual on Incitement in Victoria provides a great summary of the offence.

The case law cited in section 4 is R v Massie [1999] 1 VR 542, a case in which the defendant “…had incited a police undercover agent who went by the name of Joe Black to murder his brother Frank and Frank’s wife and to injure his own former de facto wife, Marguerite Bourke”. Of course, the actual murder did NOT occur, and neither the assault, but the charge of incitement on both counts STILL applied. If it had not been an undercover agent, and the murder and assault DID occur, it would of been accessory to both counts, not incitement.

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DISSENT

The applicant appealed the decision from Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 relating to an unfair dismissal claim brought by a former receptionist at an aged-care facility, in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd. [2021] FWCFB 6015. While the majority of the Commission upheld the primary decision, Lyndall Dean, the deputy president of the Fair Work Commission, delivered an extraordinary dissenting judgment (from 61) including:

“Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.

The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.

Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged. All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value. Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.”

ABC: “Fair Work Commission deputy president barred from hearing vaccine matters until training is completed“:

Although it is understandable that Deputy President Dean’s dissent raised hope of a successful outcome in challenges, some have subsequently referred to it  in other cases as an actual outcome of the Appeal, neglecting to note that it was merely a minority judgement that was overruled by the majority of the Full Bench, and the applicants case was dismissed. Therefore it is really of little benefit to any future litigation. Some examples of this can be found in Mr Antonio Ferrato v Virtus Diagnostics [2021] FWC 6460 (at 19):

“In the hearing of the matter the Applicant identified the 27 September 2021 decision of the Full Bench of the Commission in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd, and particularly the minority decision of Deputy President Dean, as the “outcome” before the Commission to which he referred.”

Isabella Stevens v Epworth Foundation [2022] FWC 593 (at 37):

“Ms Stevens relied on the dissenting decision of Dean DP in Kimber v Sapphire Coast Community Aged Care Limited [2021] FWCFB 6015. I do not find that decision to be of any assistance to Ms Stevens.”

Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76 (at 68): 

“Ms Graffunder drew several statements from the decision of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd that I have considered. However, I note those comments were made in a context where the ultimate decision was to refuse an appeal of an unfair dismissal claim related to an employee who refused a mandatory vaccination requirement. Further many of the comments drawn by Ms Graffunder came from the minority decision.”

Peter Bateson v Ventura Transit Pty Ltd [2022] FWC 355 (at 38):

“In this letter Mr Bateson set out his views on the mandate including claims that the vaccine was experimental, was not safely tested, was produced by companies with a history of criminal conduct, was a breach of human rights and was being imposed as a term of his employment to which he had not agreed. Mr Bateson attached what he claimed was a decision of the Commission (it was a dissent in a full bench decision).”

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16 (at 59):

“…the dissenting decision of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd and the reasons given by Deputy President Dean as to why vaccinations should remain voluntary.”

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COMPENSATED

Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice [2022] NSWIRComm 1011 concerned the dismissal of a Child Protection Caseworker for her attendance at a ‘World Freedom Rally’ (which was a breach of the public health order) and the publication of social media of posts highly derogatory of government and government officials, which were breaches of the roles codes of conduct. The court held the dismissal was not unjust or unreasonable but was harsh, and ordered compensation of 12 weeks pay.

“She also raised her increasing levels of anxiety and fear about what was happening around the world and in Australia regarding the idea of forced COVID-19 vaccinations and military deployment. … On 24 July 2021, the applicant attended a “World Freedom Rally” at Victoria Park on Broadway, Sydney. She claimed that she attended the rally to exercise her “implied constitutional right to Political Communication, to peacefully protest and assemble” and to voice her “concerns and fears regarding the Australian government, the premier and ministers’, continued fear campaigns and threats in relation to forced COVID-19 vaccinations against the Australian people” as well as her “fears of the government’s harsh imposed lockdowns and restriction, which has significant impacts on small businesses, the livelihood and mental health of the Australian people”. … During the protest, the applicant uploaded videos and pictures of her attendance at the rally on her personal social media accounts. She had previously posted “different sources of information including research studies, parliamentary posts, adverse reactions to COVID-19 vaccines and death”.”

News: “Sacked worker paid out after attending freedom rally, sharing photo of Gladys Berejiklian with Hitler moustache” 

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