25 October 2021

Supreme Court dismisses challenges to NSW government COVID-19 public health orders

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The Court determined these public health orders were valid and consistent with the powers of the NSW Health Minister.
Australia Coronavirus (COVID-19)
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The NSW Supreme Court has dismissed two legal challenges seeking to invalidate public health orders which require workers in the aged care, construction, education and healthcare sectors to be vaccinated and impose strict lockdown restrictions for residents in areas of concern.

In doing so, the Supreme Court determined the public health orders were valid and consistent with the powers conferred to the NSW Health Minister under the Public Health Act 2010 (NSW) (Public Health Act).

Workers affected by the public health orders commenced proceedings seeking to invalidate the Public Health (COVID 19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), Public Health (COVID 19 Aged Care Facilities) Order 2021 and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW), (together, the Public Health Orders) on the following grounds:

  • the Public Health Orders went beyond the scope of the Public Health Act
  • the Public Health Orders were unreasonable as they affected fundamental rights and freedom
  • the Public Orders were made for an improper purpose
  • the Public Health Orders were inconsistent with section 51(xxiiiA) of the Constitution.

In dismissing the challenges, the Supreme Court held that the Public Health Orders did not violate any right to bodily integrity.

The Supreme Court recognised that the Public Health Orders mandated COVID-19 vaccinations as a condition of work in certain industries and curtailed the freedom of movement, "which in turn affects a person's ability to work (and socialise) in areas of concern". However, the Public Health Orders do not authorise involuntary vaccination and do not interfere with a person's right to bodily integrity as pleaded by the plaintiffs.

The Court found that the Public Health Orders' restriction on unvaccinated individuals was authorised under the Public Health Act. The Supreme Court made this finding by:

  • recognising that the objects of the Public Health Act focused exclusively on public safety
  • recognising that the Public Health Act contemplated public health orders, including ones that give directions to a wide group of individuals and segregate and isolate residents, and these restrictive public health orders could be considered necessary to fulfil the objects of the Public Health Act.

Despite the arguments put forward by the plaintiffs, the Supreme Court found the differential treatment of people according to their vaccination status was not arbitrary or unrelated to the relevant risk of public health and therefore was consistent with the Public Health Act. To illustrate, the Supreme Court stated public health orders based on arbitrary grounds unrelated to public health, including race, gender, or a political opinion, would "be at severe risk of being held to be invalid as unreasonable".

Furthermore, the Supreme Court found the plaintiffs' reliance on the Constitution was misconceived as the relevant section 51(xxiiiA) of the Constitution is directed to the legislative power of the Commonwealth and the Public Health Orders were an exercise of the NSW Government's legislative power.

It is important to note that the Supreme Court made it clear that the Court's role was not to assess the merits of the Public Health Orders as a response to the COVID-19 pandemic. Instead, the sole task of the Supreme Court was to determine the legality of the Public Health Orders within the limits of the Public Health Act. We anticipate the two remaining challenges, insofar as they refer to public health orders under the Public Health Act, will likely also be dismissed, given the challenges are made on similar grounds to these proceedings.

Considerations for employers

The Public Health Orders that formed the focus of this decision operate separately to an employer's lawful and reasonable directions.

For employers considering whether to mandate COVID-19 vaccinations as a condition of employment or a requirement for returning to work, this continues to remain a question as to whether such a direction is "lawful and reasonable" in the circumstances, including by reference to the employer's specific industry, the work environment and the type of work performed.

However, in the context of risks to public health, the Supreme Court's decision highlights two key findings:

  1. the Supreme Court's recognition of the COVID-19 vaccine as a method to achieve the objects of the Public Health Act, being the protection of the health and safety of the public
  2. the Supreme Court's recognition of the Public Health Act permitting the different treatment of vaccinated and unvaccinated people, specifically in the form of restrictions of movement and conditions of work.

These proceedings are among a total of five proceedings seeking to invalidate the NSW Government's Public Health Orders. One of these proceedings has already been dismissed by consent, and the remaining two proceedings will be heard by the Supreme Court next month.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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