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Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor; Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor
In this significant case, the court considered the nature of the Chief Health Officer’s power to make public health directions under s 362B Public Health Act 2005 – specifically whether such decisions were, for the purposes of Judicial Review Act 1991, decisions of a legislative character (for which reasons could not be sought under s 32) or of an administrative character. In the court’s view (Davis J dissenting), properly characterized, they were decisions of a legislative character. The appeals were dismissed.
Morrison, Flanagan JJA and Davis J
16 December 2022
The appeal concerned five public health directions which the Chief Health Officer had given pursuant to s 362B Public Health Act 2005 which empowers the Chief Health Officer to “give a direction … to assist in containing, or to respond to, the spread of Covid-19 within the community”. . At first instance, Justice Dalton held that the decisions to give the directions were of a legislative character and as such the appellants were unable to obtain a statement of reasons in relation to each. .
Did the decisions of the CHO to give the five public health directions determine the content of the law as a rule of conduct or were the decisions the application of a general legislative provision to particular cases?
The courts have consistently recognised that distinguishing between administrative and legislative acts is a complex task which depends on context: see for example Ishiyama v Dr Peter Aitken, Former Chief Health Officer  QSC 41 , fn 4 and Kassam v Hazzard (2021) 106 NSWLR 520;  NSWCA 299 .
At first instance, Justice Dalton identified and quoted the relevant test contained in Commonwealth v Grunseit (1943) 67 CLR 58;  HCA 47, ultimately reasoning that the CHO’s decisions to issue the public health directions were not of an administrative character. The appellants submitted that her Honour had erred, however, by applying a different test. . The court did not accept that, noting that her Honour’s analysis was compatible with the test stated in Grunseit. .
The appellants alternatively argued that her Honour misapplied the test in determining that the directions were not of an administrative character. . Specifically, they submitted that she erred in holding that “section 362B does not in substance or in fact provide the content of rules of law”, and in holding that the CHO “could not in substance be said to simply have applied legislative provisions of that Act or to have executed provisions of that Act”. They argued that the relevant directions amounted to no more than an execution of the general rule of conduct enacted by Parliament in s 362B. . Finally, they contended that the phrase “reasonably believes it is necessary” contained in s 362B “is an administrative decision-making formulation that is seen across the cases”. .
The plurality observed as follows:
- Each direction created new rules of conduct which imposed restrictions and significant obligations on a wide range of persons and applied prospectively. ;
- The obligations imposed by the directions went well beyond “gap filling” undertaken to enable the executive to apply the rules. ;
- Whilst the wording and operation of s 326B are directly relevant in determining whether the directions given pursuant to the section determine the content of a law as a rule of conduct, so is the scope of the power which it confers on the CHO. ;
- The breadth of the jurisdictional fact is only one matter to be weighed along with other indicia, in determining the character of the decisions: see Kassam v Hazzard (2021) 106 NSWLR 520;  NSWCA 299, -.
The court held by majority that the decisions of the CHO to give the directions determined the content of the law as a rule of conduct and did not constitute the application of a general legislative provision to particular cases. .
Did the preponderance of other factors indicate whether the decisions to give the directions were of a legislative rather than an administrative character?
In her judgment, Justice Dalton identified a series of ten factors which may indicate whether a decision is of a legislative rather than an administrative character  – see Schwennesen v Minister for Environment and Resource Management  QCA 340 and Sea Shepherd Australia Ltd v Western Australia (2014) 313 ALR 184;  WASC 66. The appellants contended that her Honour misapplied the factors and erred in the weight which she gave each. After exhaustively reviewing the judgment –, the plurality was not satisfied that any error was revealed. .
Does s 362B Public Health Act 2005 confer powers on the CHO of a legislative nature?
At first instance, in rejecting the appellants’ submission that the directions were of an administrative character, Justice Dalton observed that legislation may permit members of the executive to legislate , and further that Ch 8, Pt 7A provides the power for the CHO to make directions as a singular power, which can be differentiated from the other executive powers provided by Ch 8 as well as other powers exercised by the CHO. .
The appellants sought to argue that by reasoning in that way and demarcating the CHO’s power as a singular power of a legislative kind, her Honour had erred in her interpretation of the statute. . The court did not agree that any error was apparent. .
In determining whether the decisions were of an administrative character, should the Court have regard to the remedial nature of the JRA?
The appellants contended that Justice Dalton had erred in failing to have regard to the remedial nature of Judicial Review Act 1991. The court noted that was incorrect as her Honour had considered the issue. . It was also argued that having regard to the Act’s remedial nature, the proper approach to classification of a particular decision should have been made having regard to whether it affects the rights, interests, liberties or legitimate expectations of any person as opposed to solely by reference to set criteria or indicia. .
The court was not satisfied that her Honour’s approach was wanting. Rather, in its assessment the approach adopted by her Honour was:
“orthodox and in keeping with authority. It was by a consideration of the test in Grunseit and of other indicia that her Honour determined that the CHO’s decisions to give the directions were not of an administrative character, but were legislative. Once that determination was made, the remedial nature of the JRA … does not justify treating a decision as being of an administrative character if analysis of the decision demonstrates that its administrative characteristics are displaced by its legislative characteristics.” .
Justice Davis came to a different view in respect to several issues. In particular, and having regard to the explanatory notes, his view was that the relevant directions did not determine the content of the law as a rule of conduct but instead implemented the laws of Parliament. . In Justice Davis’ opinion, s 362B shows all the hallmarks of a grant of administrative power, including:
- the power is only exercisable upon establishment of a jurisdictional fact;
- the jurisdictional fact requires that a particular subjective state of mind be held by the decision-maker;
- the power does not arise unless that state of mind is held reasonably;
- the exercise of the power is limited by subject matter, purpose and time. .
The appeals were dismissed.