ALQ June 2022 Public Health Orders

Issue: June 2022

Public Health Order decisions

Tribunal has jurisdiction to review public health order directions

Access the decision: Davis v Minister for Health [2022] NSWCATAP 115.

The applicant (Ms Davis) was a registered nurse at Ballina Hospital who was affected by orders made by the Minister for Health under s. 7 of the Public Health Act 2010. The orders required health care workers to be vaccinated to continue working. The applicant sought merits review of the Minister's decision under s. 7(7) of the Act. The Minister applied for the proceedings to be summarily dismissed on the basis that the review sought was outside the scope of the review power in s. 7(7).

At first instance, the Minister was successful on his summary dismissal application. Ms Davis appealed.

The Appeal Panel (Armstrong J and Deputy President Britton) allowed the appeal and set aside the order summarily dismissing the proceedings. Its critical finding was at [74], where it described the process of making an order under s. 7 as a 'three-stage process'.

The Minister must first consider on reasonable grounds that a situation has arisen that is or is likely to be a risk to public health. Secondly, he must decide to address the risks by making an order. Thirdly, he must decide the content of the order, being specific directions. The decision to make an order is not reviewable, but the specific directions are: at [75].

The summary dismissal order having been set aside, the proceedings have been remitted to the Administrative and Equal Opportunity Division of the Tribunal for substantive determination.

Broad Federal Court challenge to public health orders thrown out

Access the decision: Knowles v Commonwealth of Australia [2022] FCA 741.

A group of applicants challenged the public health 'measures' taken by each State and Territory and by the Commonwealth. The 'measures' challenged by NSW were the public health orders made by the Minister for Health under s. 7 of the Public Health Act 2010 during and immediately after the Delta lockdown in 2021. Equivalent steps taken by the other jurisdictions were also challenged.

Each jurisdiction applied for the proceedings to be summarily dismissed or, in the alternative, for the amended statement of claim to be struck out.

The grounds for impugning the measures were multifarious and included constitutional challenges (that the measures amounted to an impermissible civil conscription or that they contravened the guarantee that trade, commerce and intercourse among the States be absolutely free), administrative law challenges (that the measures were legally unreasonable or made without evidence) and private law causes of action (in negligence and under the Australian Consumer Law).

Justice Mortimer found in favour of the respondents, summarily dismissing the proceedings. Her Honour dealt with each cause of action in turn, finding that none had sufficient prospects to warrant the matter proceeding to trial. Her Honour noted that several of the grounds had already been dealt with in other proceedings challenging the public health measures. Although leave to replead was sought, where the issues identified were in the causes of action themselves, and not the pleadings, her Honour was not persuaded that the issues with the case could be cured. She further described the case as 'a general attack on the government response across Australia to the COVID-19 pandemic' and as an 'ideological' attack.

Other decisions in this issue

• Privacy 
  

• GIPA 
  

• Judicial Review 
  

• Merits Review 
  

• Constitutional law