Administrative Law Quarterly Newsletter December 2021

Welcome to the first edition of the CSO's Administrative Law Quarterly newsletter. The newsletter provides an overview of a selection of administrative law decisions in matters in which the CSO acted and which impact the NSW Government and its agencies.

In this issue:

Public Health Order challenges
Other significant decisions

Public Health Order challenges

There have been several recent unsuccessful challenges to the validity of public health orders (PHOs) made under the Public Health Act 2010 (the Act). Other current challenges include one matter remitted from the High Court to the Federal Court, two representative proceedings in the Federal Court and two administrative review matters in the NSW Civil and Administrative Tribunal (NCAT) awaiting an appeal in Davis (referred to below).

Some matters have been withdrawn. Four of the decided cases have particular importance for the State of NSW:

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

Section 7 of the Act validly authorised the Minister for Health and Medical Research to make PHOs requiring certain categories of worker to have had at least one dose of a COVID-19 vaccine as a condition to accessing an exemption from a prohibition on such persons attending their places of work.
In these two proceedings, the plaintiffs had argued that the impugned PHOs were: beyond the power conferred by s. 7, read in accordance with the principle of legality; contrary to the alleged requirements of s. 51(xxiiiA) of the Constitution (prohibiting the making of Commonwealth laws authorising ‘civil conscription’); and, inconsistent with other State and Commonwealth laws. The plaintiffs argued that, in making the PHOs, the Minister had failed to exercise properly the power in s. 7, had had improper purposes, had asked the wrong questions, had failed to take into account alleged mandatory relevant considerations, had breached an alleged duty to afford natural justice and had made an unreasonable decision.
On 8 December 2021, the Court of Appeal refused to grant leave to appeal in respect of all grounds of appeal, except the proper construction of s. 7, and dismissed the appeals, ordering the applicants to pay the State’s costs: Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299.
Beech-Jones CJ at CL dismissed both proceedings, rejecting all grounds of challenge and providing useful guidance on the effect of s. 7 and other provisions of the Act.

Larter v Hazzard (No. 2) [2021] NSWSC 1451

The plaintiff's challenge here was primarily to the legal reasonableness of three health care worker PHOs. Adamson J relied upon Kassam and Henry in relation to the width of s. 7 and, in particular, the Court's reliance on the test of legal reasonableness, namely, 'that no Minister acting reasonably could have considered it necessary, that is, appropriate and adapted, to deal with the identified risk to public health and its possible consequences by making the impugned orders'.
The challenge asserted, in particular, that: the PHOs were broader than necessary; they required only a very small percentage of conscientious objectors within NSW Health to be vaccinated; they provided for permanent consequences in circumstances as they were only permitted to operate for 90 days; and, they contravened the International Covenant on Civil and Political Rights.
Her Honour was satisfied that it was reasonably open to the Minister to make the PHOs, noting that the ICCPR did not, in any event, form part of Australian law.
On 9 December 2021, her Honour ordered the plaintiff to pay the State's costs (Larter v Hazzard (No 3) [2021] NSWSC 1595), notwithstanding evidence from the plaintiff's solicitor that at least $244,000 of crowd funded contributions had already been 'entirely exhausted' in payment of the plaintiff's fees and disbursements. The plaintiff has filed a Notice of Intention to Appeal to the Court of Appeal.

Can v State of New South Wales [2021] NSWSC 1480

The plaintiff challenged the legality of two PHOs in so far as they purported to authorise police officers to request and require the production of evidence from persons of their name and place of residence and vaccination status, irrespective of whether an offence was suspected.
The plaintiff argued that such requirements were ultra vires and unlawfully infringed the privilege against self-incrimination.
Adamson J rejected the plaintiff's argument that s. 112 of the Act should be read as the sole source of police officers' powers to enforce the Act and that, as a result, PHOs made under s. 7 of the Act could not bestow enforcement powers on police officers. As to the issue of self-incrimination, her Honour was not persuaded that there was 'any relevant distinction' between the clauses of the PHOs challenged in Kassam and, even accepting that the privilege against self-incrimination was affected, was not persuaded by the plaintiff's argument that 'compelling members of the public to provide evidence to the police required legislation and not a mere administrative act by a Minister'.

Davis v Minister for Health [2021] NSWCATAD 310.

In dismissing this application for administrative review, the NCAT held that s. 7(7) of the Act does not confer jurisdiction on the Tribunal in respect of the making of the Health Care Worker PHO by the Minister in the exercise of the powers conferred by s. 7. Rather, any such jurisdiction is conferred by s. 7(7) in relation to an 'action' by the Minister and 'any direction by' an order made under s. 7.
Further, the Tribunal held that s. 7(7) does not confer administrative review jurisdiction on the Tribunal in respect of the decisions made by the Northern NSW Local Health District pursuant to the direction given to it by the Minister under the PHO.
An appeal from the decision is listed for hearing in February 2022.

Other significant decisions

Here is a collection of some of the other recent significant decisions that impact the State of NSW:

In proceedings brought by Clive Palmer and his companies, the High Court found that that Western Australian legislation that purported to extinguish the plaintiffs rights was not invalid as: not complying with applicable manner and form requirements; exceeding a limitation on State legislative power deriving from the rule of law or deeply rooted common law rights; incompatible with Ch. III of the Constitution; incompatible with s. 118 of the Constitution; and, discriminating against Mr Palmer contrary to s. 117 of the Constitution. Mineralogy v Western Australia [2021] HCA 30; Palmer v Western Australia [2021] HCA 31.
In an application for a vexatious proceedings order, the pleadings and evidence from proceedings will be the best evidence as to whether those proceedings were vexatious. Collier v Attorney General for the State of New South Wales [2021] NSWCA 16.
The Mental Health Review Tribunal is authorised to make an order that a forensic patient be transferred to a mental health facility 'when a bed becomes available' because stipulating when a transfer is to take effect is reasonably necessary to ensure the effective exercise of the power. JKL v Justice Health [2021] NSWCA 94.
An order appointing 'a person' as guardian ad litem is not a valid exercise of power under s. 45(4)(a) of the Civil and Administrative Tribunal Act 2013 and similar laws should be urgently reviewed. Choi v NSW Ombudsman [2021] NSWCA 68.
The Children's Court likely has the power in particular circumstances to order that a matter be heard by a magistrate of a certain gender. Lacey v Attorney General for NSW [2021] NSWCA 27.

There were no grounds of jurisdictional error established in relation to the IRC's decision to award a 0.3% increase in public sector salaries. PSA and POA Amalgamated Union of NSW v Industrial Relations Secretary of NSW [2021] NSWCA 64.

The 2019 Inquiry into the appellant's convictions and sentences for offences arising from the deaths of her four children did not commit jurisdictional error when it found that there was no reasonable doubt as to her guilt. Nor did the Inquiry fail to give her procedural fairness before making its finding. Folbigg v Attorney General of New South Wales [2021] NSWCA 44.
The power conferred by s. 79 of the Crimes (Appeal and Review) Act 2001 to direct an inquiry into a conviction or to refer a matter to the Court of Criminal Appeal to be dealt with as an appeal is not available with respect to a conviction or sentence for a Commonwealth offence. Huynh v Attorney General (NSW) [2021] NSWCA 297.
There is no obligation to provide procedural fairness before making a firearms prohibition order. Solomon v Commissioner of Police (NSW) [2021] NSWSC 236.
It is not legally unreasonable, and not contrary to Commonwealth and State prohibitions on torture, for correctional authorities to require an inmate to provide a urine sample for urinalysis, in circumstances where an inmate alleged but did not prove that he has a psychological condition which prevents him from providing a sample when required. Ford v Commissioner for Corrective Services of New South Wales [2021] NSWSC 1541.

State legislation regulating the clearing of native vegetation does not give rise to an acquisition of property for s. 51(xxxi) of the Constitution purposes. Houston v State of New South Wales (No 2) [2021] FCA 637.
The Deputy State Coroner did not err in refusing to make protective orders in respect of the NSW Police Force's Safe Driving Policy and, in addition to the express powers in the Coroners Act 2009, the Coroner has implied or incidental powers to make non-publication and related orders. Commissioner of NSW Police v Deputy State Coroner for NSW [2021] NSWSC 398.
Section 101 of the Environmental Planning and Assessment Act 1979 (now contained in s. 4.59 of the Act), which provided that proceedings challenging the validity of a consent must be commenced within 3 months of the date on which the public notice was given, with no discretion to extend the time, is not invalid in light of the principle in Kirk v Industrial Court (NSW) but is subject to the principle in R v Hickman; Ex Parte Fox . Lu v Walding (No 2) [2021] NSWLEC 21.
Whilst the State was carrying on the business of operating 3 NSW ports through the respective State owned corporations, the privatisation of the ports was not in the course of carrying on that business so that s. 45 of the Competition and Consumer Act 2010 (Cth) ("the CC Act") did not apply to the State and it was entitled to Crown immunity. ACCC v Baxter Healthcare P/L (2007) 232 CLR 1 was distinguished and there was no contrary intention in the CC Act precluding derivative immunity from vesting in NSW Ports. Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd & Ors [2021] FCA 720,
The Appeal Panel of NCAT upheld an appeal against a decision to set aside an order cancelling the approval of a family day care service. This was the first appellate consideration of the childcare regulatory regime in the Children (Education and Care Services) National Law. Secretary, NSW Department of Education v Gabriel's Family Day Care Pty Ltd [2021] NSWCATAP 263.

For a written communication to an agency to be an internal review application under s. 53 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"), it must reasonably convey to the agency that a statutory right is being invoked and that a subsequent application for internal review under s. 53 will not give the NCAT jurisdiction to consider an administrative review application filed before that internal review application. EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62.

Review under s. 55 of the PPIP Act involves the exercise of State administrative power, not federal judicial power, so that the NCAT could therefore validly hear and determine a privacy application involving the State and a resident of another State. EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55.
The NCAT refused access to information revealing consultation and deliberations between the Minister for Planning and Open Spaces and the Minister for Health with respect to orders made under the Environmental Planning and Assessment Act 1979 in response to the COVID-19 pandemic and accepted that government processes could reasonably be expected to be impeded if deliberations were made public. Ryan v Minister for Planning and Open Spaces [2021] NSWCATAD 22.

Contacts

For more information about any of these decisions, please contact John McDonnell.

John McDonnell, Assistant Crown Solicitor
john.mcdonnell@cso.nsw.gov.au
02 9474 9219

Last updated:

16 Nov 2022