Kikuyu v Minister for Health NSW [2023] FCAFC 36

Kikuyu v Minister for Health NSW [2023] FCAFC 36

There is no inconsistency between the Biosecurity Act and the NSW Public Health Orders or Health Services Act provisions as the Commonwealth law is not exhaustive nor has the Federal Health Minister exercised powers under ss 477 or 478 relating to the subject matter; State laws operate concurrently unless specific Commonwealth determinations/directions exist that conflict with them. The appeal is dismissed as neither direct nor indirect inconsistency arises.

Jurisdiction
Australia
Judgment Date
27 February 2023
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
['inconsistency Between Commonwealth and State Laws' 'biosecurity Emergency Powers' 'covid 19 Vaccine Mandates' 'employment Conditions—health Care Workers']
['constitutional Law' 'administrative Law' 'human Rights'] ['inconsistency Between Commonwealth and State Laws' 'biosecurity Emergency Powers' 'covid 19 Vaccine Mandates' 'employment Conditions—health Care Workers']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the NSW Public Health Orders and Health Services Act provisions were inconsistent (direct, indirect, operational) with the Commonwealth Biosecurity Act for purposes of Constitution s 109' 'Whether a declaration under Biosecurity Act s 475/476 renders State laws invalid or inoperative in the relevant field absent Commonwealth Ministerial determinations/directions']

Ratio Decidendi

There is no inconsistency between the Biosecurity Act and the NSW Public Health Orders or Health Services Act provisions as the Commonwealth law is not exhaustive nor has the Federal Health Minister exercised powers under ss 477 or 478 relating to the subject matter; State laws operate concurrently unless specific Commonwealth determinations/directions exist that conflict with them. The appeal is dismissed as neither direct nor indirect inconsistency arises.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' 'The respondents file and serve any evidence and written submissions, limited to five pages, in support for an order as to costs on or before 13 March 2023.' 'The appellant file and serve any evidence and written submissions in response, limited to five pages, on or before 27 March 2023.'...