Athavle v State of New South Wales [2021] FCA 1075

Athavle v State of New South Wales [2021] FCA 1075

The applicants failed to establish a serious question to be tried; the public health orders clearly intend to restrict freedoms, including religious observance, in pursuit of public health. The principle of legality does not apply where the purpose of the instruments is to curtail those freedoms. Section 116 of the Constitution is not engaged as it only restricts the Commonwealth, and the Commonwealth declaration imposes no limits on religious practice. The legal threshold for unreasonableness and disproportionality is not met, and policy choices are for the executive, not the courts. The balance of convenience strongly favours refusing interlocutory relief due to the risk to public...

Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Interlocutory Application / Decision on Application for Urgent Interlocutory Injunction
Outcome
Interlocutory application dismissed
Legal Topics
['freedom of Religion' 'covid 19 Public Health Orders' 'statutory Interpretation' 'principle of Legality' 'legal Unreasonableness' 'proportionality' 'federal Jurisdiction']
['administrative Law' 'constitutional Law' 'human Rights Law'] ['freedom of Religion' 'covid 19 Public Health Orders' 'statutory Interpretation' 'principle of Legality' 'legal Unreasonableness' 'proportionality' 'federal Jurisdiction']

Case Brief

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Procedural Posture

Interlocutory Application / Decision on Application for Urgent Interlocutory Injunction

Legal Issues

  1. 1 ['Whether there is a serious question to be tried regarding validity of NSW and Victorian public health orders restricting religious observance' 'Whether the balance of convenience favours granting interlocutory relief' 'Whether the principle of legality applies to the impugned instruments' 'Whether the public health orders are legally unreasonable or disproportionate' 'Whether the impugned instruments are constitutionally invalid due to s 116 or implied constitutional rights' 'Whether accrued federal jurisdiction is established']

Ratio Decidendi

The applicants failed to establish a serious question to be tried; the public health orders clearly intend to restrict freedoms, including religious observance, in pursuit of public health. The principle of legality does not apply where the purpose of the instruments is to curtail those freedoms. Section 116 of the Constitution is not engaged as it only restricts the Commonwealth, and the Commonwealth declaration imposes no limits on religious practice. The legal threshold for unreasonableness and disproportionality is not met, and policy choices are for the executive, not the courts. The balance of convenience strongly favours refusing interlocutory relief due to the risk to public...

Court Disposition

Interlocutory application dismissed

Orders

  • ['The interlocutory application dated 31 August 2021 is dismissed.' "The applicants pay the respondents' costs, as agreed or taxed."]