At the start of the Covid pandemic I wrote two posts on potential challenge to the restrictions and orders that were then being implemented:
- Challenging COVID restrictions – part 1 (April 23, 2020) and
- Challenging COVID restrictions – part 2 (April 23, 2020).
In part 1 I said:
If you think the current restrictions on your liberty is a breach of your fundamental and inalienable human rights, you could challenge them. You could apply to a human rights watchdog and in some states, you may be able to seek a declaration in the Supreme Court. My prediction is that, given the near universal international response, you would have no chance of persuading any tribunal that the current powers are not lawful. (I would also predict that it would take so long that by the time you got a result the restrictions will have been lifted anyway).
In part 2 talking about the power of the State Ministers I said:
… an individual may think the orders ‘go too far’ but that is not grounds to set them aside if the Minister held the necessary belief and the orders are such that it is not unreasonable to think they are necessary even if it could also be reasonable to think they are not. It is the Minister’s state of mind that is relevant and the fact that some people would have made a different decision does not mean that the Minister’s decision does not stand.
Larter v Hazzard
One person who has taken these issues to the Supreme Court is NSW paramedic John Larter. Mr Larter has declined the COVID vaccine. As a result of complaints concerning his public statements about the COVID-19 pandemic and public health orders for lockdowns and vaccinations, his registration as a paramedic was suspended. That suspension has been lifted but there are conditions on his registration. He was dismissed from his position with NSW Ambulance. He has ongoing cases challenging the actions of the Paramedicine Council and NSW Ambulance.
Apart from those actions, he also challenged the power of Health Minister Brad Hazzard to issue orders under the Public Health Act that required health workers to be vaccinated. His original application was heard, and dismissed, by Adamson J on10 November 2021 (Larter v Hazzard (No 2)  NSWSC 1451). On 9 December 2021 Mr Larter was ordered to pay the state’s costs in responding to the litigation (Larter v Hazzard (No 3)  NSWSC 1595).
Mr Larter appealed to the Court of Appeal. That appeal was dismissed, with costs, on 22 November 2022 (Larter v Hazzard  NSWCA 238; Brereton JA with whom Mitchelmore JA agreed).
In the course of dismissing the appeal, Brereton JA found that there may have been one arguable point. The order that was the subject of the appeal – the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) – was made on 26 August 2021. That order said that any person doing health work had to have had at least one dose of a COVID vaccine between 30 September 2021 and 30 November 2021; and after 30 November 2021 they had to have had two doses (-).
The Public Health Act provided the Minister the power to make such an order, but pursuant to s 7(5) of the Act, the order would only be in force for 90 days. 30 November was more than 90 days after the order was made and so, it was argued, the obligation to have two vaccines after 30 November was beyond the Minister’s power ().
At - Brereton J said
… I doubt that it could be a valid use of the power to make an order which could only operate for a period of 90 days, to include in it a provision which would only be effective after its expiry… In my view, the proposition that the Original Order, in its purported application to work done on or after 30 November 2021, was ultra vires, is at least arguable.
However, the Original Order was repealed by the October Order, made on 22 October 2021, before that provision would purportedly have had any effect (from 30 November 2021). Moreover, clause 4(1)(b) would in my opinion have been severable, without affecting the validity of the remainder of the Original Order. Thus even if, insofar as it purported to require double vaccination from 30 November, the Original Order was ultra vires, that would not result in invalidity of the order as a whole.
That is, it may have been beyond power to say that workers had to be double vaccinated after 30 November, but it is of no relevance. Even if the argument succeeded it would mean that the requirement of the August order – that workers be double vaccinated after 30 November 2021 would have had no effect but the rest of the order including the requirement to be vaccinated after 30 September would have remained, and in any event the August order was repealed before 30 November and replaced by another order that had the same effect.
The court therefore declined to hear an argument on whether that part of the order – requiring double vaccination after 30 November – was beyond power as it was moot – it would not make any difference to anyone’s legal position.
As for the argument that the requirements imposed by the August (and subsequent) orders were ‘unreasonable’, Brereton AJ said (at ):
… the Act confers a broad discretion on the Minister in accordance with its intention of affording the Minister the maximum flexibility possible to address and counter risks to public health and their potential consequences, and any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the Orders were necessary.
And at  and :
At the core of the applicant’s argument was the proposition that it was unreasonable to require a very small number of conscientious objectors within NSW Health to be vaccinated, while not at the same time requiring private general practitioners and pharmacists not employed by NSW Health to be vaccinated…
… In this context, the focus must be on what the order required, and not on what more it might have required (nor what less it might have required). The fact that an order does not go so far as it might does not mean that it is unreasonable. While the order may not have dealt with the whole of the risk posed by unvaccinated health practitioners, it dealt with an aspect of it, namely the risk posed by unvaccinated NSW Health workers. In addressing the increased risk of transmission posed by unvaccinated NSW Health workers, it was a direction that it was not unreasonable for the Minister to consider necessary to deal with the risk.
As for the argument that the orders infringed on fundamental human rights in a way that was not necessary it was said (at ):
… the orders did not provide for compulsory medical treatment by way of vaccination. The orders did not interfere with Mr Larter’s privacy, family, home or correspondence; and even if they did authorise any such interference, such interference was not arbitrary or unlawful, but pursuant to a valid exercise of a statutory power.
… [and] just because a person’s exposure depends on a stance which is informed by his or her religious beliefs does not mean that he or she is discriminated against on the grounds of religion. The Order does not attach consequences to adhering to a particular religion, but to unvaccinated status, and it does so regardless of religious belief.
Finally, the orders have now expired. Brereton AJ said (at ):
… no action adverse to Mr Larter depends on the impugned orders, and no practical benefit would accrue to him from having them declared invalid. The professional complaints against Mr Larter under the HPR [Health Practitioner Regulation National] Law which have been referred to the Paramedicine Council do not depend on any of the Orders. It is not suggested that Mr Larter has contravened the Orders; in compliance with them, he has not done work as a health care worker while they have been in force. The letter of 22 March 2022 terminating Mr Larter’s employment referred to his failure to provide evidence of vaccination or exemption so as to comply with the Original Order, the October Order or the December Order, and also the Secretary’s Determination No 33 of 12 November 2021 (“the Determination”), made under s 116A(1) of the Health Services Act 1997 (NSW) (the “HS Act”) … Non-compliance with [the Determination’s] requirements provided an independent basis for Mr Larter’s termination. Declaring void any or all of the Orders would not result in his reinstatement.
His Honour concluded:
For the foregoing reasons, in my opinion, only [one] … issue is sufficiently arguable to potentially justify a grant of leave to appeal. However, because even if it succeeded the relevant part of the Original Order would be severable, there are insufficient prospects of ultimate success to justify a grant of leave. Moreover, no action against Mr Larter depends on that Order… All the impugned orders, and those to like effect which replaced them, have expired. Declaring void any or all of the Orders would not result in Mr Larter’s reinstatement. There is no utility in granting leave to appeal.
The decision is consistent with those views I expressed back in April 2020. In any challenge to executive decision making, it is not sufficient to say that the decision maker did not make the decision the person challenging would have made or thinks should have been made. In this case the argument that the orders did not go as far as they could, or went too far was not to the point. The question was whether the Minister held the belief required by the Act.
The fact that minds may differ on how the Minister should have responded is irrelevant. These issues do attract different views and there are many different options open to the Minister. Courts are not there to make those decisions or to decide if the Minister (or other delegated decision maker) made the objectively ‘best’ decision – the legislature has given that decision making power to the Minister. The Courts are there only to ensure the Minister has acted in accordance with the legislation.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Thanks again for keeping us up to date and providing clarity on these issues. The rhetoric of the objectionists are a far cry from the reality of the legislation and government powers.