Retired Northern Territory lawyer Geoff James has produced two legal opinion essays. The first is a 1,500-word piece, examining the Gunner Government’s decision to use the Public and Environmental Health Act and emergency health declarations to deal with COVID-19 rather than enacting new legislation. Below that is a longer, more detailed piece, that looks at the specific wording of the Act, and concludes there is no legal validity to the chief health officer’s Directions NO. 55, colloquially known as the vaccine mandate.
In this first essay, Mr James argues the Gunner Government is exploiting the scope for one-person-rule offered by the Public and Environmental Health Act emergency powers but that the chief health officer’s so-called vaccine mandate is invalid because it goes beyond the power afforded him under the enabling act.
Many Territory citizens have asked the question, are paragraphs 6, 7 and 10 of Directions No. 55 made by the chief health officer valid laws of the NT?
Those paragraphs make it illegal for unvaccinated workers to go to work, and imposes a very stern penalty on them if they do. Any employer who facilitates a worker to attend work in an unvaccinated state is also liable to a massive penalty.
Those paragraphs are the basis of what people call the vaccine mandate. The question is, are they valid laws?
The answer is very straightforward. I will give it to you now to save you the effort of reading on if you are short of time. The answer is no. Those provisions are not valid laws.
When somebody can get the issue before an appropriate court, they will be declared unlawful as ultra vires, meaning that it is beyond the power allowed under the enabling legislation.
The basis for the viewpoint that these supposed laws are not valid laws is because, as subordinate legislation, their content is ultra vires, the power given by the Act of parliament that enables the making of them. In plain speech, the CHO has exceeded the power intended to be given to him in section 52 of the Public and Environmental Health Act.
The truth is that paragraphs 6, 7 and 10 are invalid and of no effect even though, in general, the term ‘vaccine mandate’ has made the public regard forced vaccination as being settled law.
After all, the word “mandate” connotes a command which you must obey. Note however that the normal words for such a social instrument (that is, an enforceable law) is one or other of “law “, “act of Parliament” or “statute”. Take your pick. So, why is it called a mandate?
Our system has a cultural abhorrence of laws being made by individual people. In more reflective times, that process is called tyranny or, if we are being kind, autocracy. So, the solution chosen by our political leaders is to use the weasel word ‘mandate’ to conceal the reality that it is not a proper law.
In the contemporary common law world, law making is the exclusive province of elected legislatures. Our society, and more importantly our legal system, has a natural hostility to one-man rule which evolved as a response to the undemocratic edicts of hereditary monarchs. Other candidates seeking to rule without reference to an assembly of elected legislators, have emerged from time-to-time with the ambition to replace the kings.
In present times, the most common aspirants to individual undemocratic law making powers have been ministers and high ranking public servants. Being alert to this tendency, our common law legal system has devised a range of legal doctrines to provide measures to legally control or prevent such undemocratic activity. They are too numerous to be fully reviewed in this article.
However, the primary answer to the question of whether these particular CHO directions, the so-called ‘vaccine mandate’, constitute valid laws, requires us only to look at the doctrine of ultra vires in its application to delegated legislation.
Under common law, making laws is the exclusive province of the legislature of the jurisdiction, and it will always be unlawful and invalid for a single individual – whether a minister or a public official – to purport to make law under whatever guise; the favourite is a proclamation. The only exception is where that individual is specifically authorised to make laws by a power expressly given to him under a delegation of power from the legislature.
A delegation of the legislature’s law making power can only be given through an enabling act, which must be specific, and the law making power will be limited in scope by the words of the act. It will be ultra vires if the delegate attempts to make laws which go beyond the scope of those words.
When an individual makes a law under a delegation, it is called subordinate legislation because the delegate is, in practical terms, under the orders of the enabling legislation. The NT’s CHO does not possess any inherent law making authority. The NT’s CHO is nothing more than a servant of the executive government.
When he or she makes subordinate laws, we become subject to the one-person-rule of that officer. That will be legitimate if the laws that he or she makes are authentically authorised by the enabling act. However, to be legally authentically authorised, the CHO’s “laws” must fit within the scope of the delegation given in the enabling act.
What are Chief Health Officer directions?
The CHO has a statutory delegation by force of s.52 of the PEH Act, and has the authority to make directions that have the force of subordinate law. But that authority is limited to times when a public health emergency has been declared. There are further limits to the validity of a subordinate law, depending on a number of factors.
The most basic limiting factor is the doctrine of ultra vires. That means that if the CHO makes a direction which covered activities that are not specified in s.52, it will not be a valid law. It will be ultra vires.
Another aspect of s.52 is that the CHO has no delegated authority unless there is a declared public health emergency. That must come from the NT Health Minister who has power under s.48 of the Public and Environmental Health Act to declare a public health emergency.
The original NT declaration was made in March 2020. That has been renewed every 90 days since, and the duration has been amended from five days to 90 days.
It is useful to ask, what is an emergency? The Oxford English dictionary defines an emergency as a serious, unexpected, and potentially dangerous situation requiring immediate action. How can a set of circumstances be unexpected if they have been ongoing since February 2020? In law, the answer is because the minister has said so, and she has the power to say so by force of s.48.
But I suggest there is also a socio-political answer. The government could have introduced a law into the NT Legislative Assembly to establish the legal regime to deal with COVID-19, but the NT Government believes it should have exclusive control over the COVID-19 response. For that reason it has not been willing to trust the normal democratic processes and ask the legislature to enact a COVID-19 law.
The government does not believe that the Legislative Assembly would pass such legislation. Crudely expressed, the cabinet wants a legally enforced vaccine mandate but doesn’t have the guts to put it to a vote of the Assembly elected by the people of the NT for the purposes of making law. The government is exploiting the scope for one-person-rule offered by the Public and Environmental Health Act emergency powers.
There is no other logical explanation. In March 2022, it is untenable to suggest that there is such an urgency regarding COVID-19 that executive action in the form of one-man-rule is a necessity, and there is no time to put the issue to the true law makers.
The duly elected members of the Legislative Assembly have been sidelined by the executive government.
That cannot be justified on the basis of emergency. The cabinet has had almost 24 months to react in a proper constitutional manner. There is no emergency.
Yes, there is a problem; and, it may be a major problem. But it is not an emergency, even though at an earlier time that classification may have been correct.
The legislature of the Northern Territory is the proper law making body to which this issue should be entrusted. For some reason the preponderance of western governments obdurately refuse to address the problems of the pandemic in a democratic manner. When the USA’s Biden government attempted to impose a vaccine mandate through use of delegated legislation rather than simply approaching the US Congress to pass the law, a social commentator put his finger on the reason why.
He said, correctly, that if the proper body, the legislature, were approached to pass this form of legislation, it would certainly refuse. The US Supreme Court settled the question by declaring that delegated legislation to be invalid as ultra vires.
There are three possible explanations why the NT Government has failed to introduce legislation into the proper forum, the Legislative Assembly.
These are incompetence, megalomania or the belief that the Legislative Assembly would not pass such laws. The third option is the strongest possibility.
I acknowledge any socio-political explanation has no bearing on the legal question of whether the NT’s vaccine mandate is invalid by being ultra vires.
Nonetheless, I wish to make clear there remains quite sufficient time, to protect the NT from the pandemic by enacting considered, and adequately supported legislation, debated in the normal matter and passed into law if approved by a majority in that institution after the usual public debate.
This mess has gone far enough. Significant numbers of people, who have an objection to vaccination as is their entitlement, have been displaced from their employment. It is time the issue got before the court for the inevitable determination of invalidity.
Geoff James is a recently retired lawyer who graduated in 1967, and privately practiced general law as an amalgam (solicitor and barrister) in Darwin for 40 years. During that period there was a short absence in the United States whilst employed by McGraw Hill as an editor of legal profession publications. Some of his most controversial litigation includes the Ranger uranium injunction case, the Oenpelli roads case, the Timor gun-running case and the Mudginberri Abattoirs case, all of which made national headlines.
Read below for his full essay on the topic of the Northern Territory’s so-called vaccination mandate.
An essay concerning Section 52 of the Public and Environmental Health Act of the Northern Territory and Directions No. 55 (2021) made by the Chief Health Officer appointed under that Act.
Is the NT’s vaccine mandate imposed by CHO Directions No. 55 valid law?
The issue that this essay addresses is the question of whether paragraphs 6, 7 and 10 of Directions No. 55 made by the chief health officer of the Northern Territory constitute valid laws of the NT?
My answer is no. Those provisions are not valid laws of the Northern Territory.
Expressed in short legal language, my basis for that viewpoint, is that these putative laws are not valid laws because, as subordinate legislation, their content is ultra vires the power given by the statute that enables the making of them.
“For those who are unfamiliar with the meaning of the expression ‘ultra vires’, meaning that it is beyond power.
Paragraphs 6, 7 and 10 contain provisions that are beyond the scope of the delegation of power that was given to the CHO by the legislature of the NT in section 52 of the Public and Environmental Health Act. Therefore, they are invalid and of no effect.
I will explain my basis for this conclusion in the subsequent content of this essay. Before doing so, I extend my apologies to members of the legal profession for the ponderous way in which I have expressed my reasoning. I offer the explanation that the bulk of what follows has been crafted as an essay (in contrast to the traditional lawyer’s opinion) in the hope that it can be read and understood by non-members of the profession. That aim is motivated by the belief that our community may soon be teetering on the edge of a precipice of despair, and I consider it is time, for those of us in a position to do so, to make efforts to ensure that the public is better informed.
By paragraphs 6 and 7 of the NT CHO’s Directions No.55, workers in a range of specified industries, who have not received a completed course of doses of an approved COVID-19 vaccine, are prohibited from attending their normal workplace. Paragraph 10 of those Directions imposes a reciprocal obligation on the employer of a worker to ensure that the worker does not attend the workplace. By s.56 of the Public and Environmental Health Act a liability for 400 penalty units is imposed on any offender who contravenes a direction made by the CHO.
The combined effect of these four provisions is customarily referred to as the ‘vaccine mandate’.
Acceptance as settled law
By the normalisation of that phrase the public, the media, and (very importantly) the leadership of industry, have come to regard as settled law the proposition that affected workers are obliged to become vaccinated, and their employers must not permit the affected workers to continue to perform their employment duties in the workplace, unless those workers comply.
The assertion “It is the law!” is commonly heard in the discourse between employers and employees. Politicians and journalists regularly utter similar phrases with an order of confidence similar to that which would be expected of an evangelist quoting the ten commandments.
In my view, with immeasurably less justification.
Laws by executive fiat
The purpose of this essay is to expound a view on matters of law.
Regrettably any useful analysis of the validity of a law made by the fiat (command) of a member, or servant, of the executive government must necessarily involve consideration of matters that some observers may consider to be political. Such matters are only raised in this essay as a means of drawing the reader’s attention to the fact that it is exceptional for a law to be made by a Minister (a member of the executive government) or by a public servant (a servant of the executive government; usually one that holds a statutory office). Anything of that nature is subject to stringent and specific legal constraints.
A better description of such matters would be constitutional (rather than political). In the contemporary common law world (essentially anywhere that English is an official language), the making of laws for the peace order and good government of society is the exclusive province of elected legislatures. Our common law system has a cultural abhorrence of the making of laws by individual people. This quite natural hostility evolved as a response to the edicts of hereditary monarchs.
The decrees of the old kings were sometimes benign, sometimes oppressive but were always undemocratic. Subsequently the era of powerful monarchs waned but the legal system did not relax. Over the centuries various other candidates emerged with the ambition to replace the kings. Typically, the aspirants to individual undemocratic lawmaking powers included ministers of state and certain high officers of what is now called the public service. These were, and remain, the main players who feature in the occasional drift to one man rule.
Common law response
From very early times, our common law set its face against any form of rule by the autocratic decree of an individual person. A range of legal doctrines were evolved to provide a suite of techniques by which such undemocratic activity could be legally controlled, restrained and in some cases prevented. In recent centuries, the public statutes of the various English speaking democracies have also introduced measures to regulate one-person-rule.
It would not be helpful if I were to articulate a full table of all of the possible constraints that our common law, and statutes, have devised to make one-person-rule untenable. That would be unnecessary. To answer the key question of this essay, one need only consider one of the many relevant principles. That is the doctrine of ultra vires in its application to delegated legislation.
The heart of an important common law doctrine in respect of one-person-rule is as follows.
Making law is the exclusive province of the duly constituted legislature of the jurisdiction. Where a minister or public official, to purports to make law, regardless of the name that is assigned to the process (“whether Gazette Notice”, “proclamation” “bylaw” or “regulation”), that will always be unlawful and invalid.
The only exception is that if that individual person’s power to make law is expressly, and specifically, authorised by a delegation of power from the legislature. However, no such delegation may be made except by the legislature passing a properly constituted Act containing the delegation (referred to as the “enabling Act” or sometimes “the parent legislation”).
No delegation in an enabling act will be valid if it is so general as to effectively hand over the subject matter to the delegate. An enactment of the legislature which, in substance, has the effect of the legislature abdicating its power over a subject matter in favour of the delegate, will be of no effect. The legislature is not permitted to abdicate its role.
And example would be if the legislature passed a law in terms such as the following.
“The chief health officer may, by notice published in the Gazette from time to time, make, amend, repeal, and re-establish such Directions, with the force of law, as he or she may consider to be necessary and appropriate for the regulation, and protection, of public health in the Northern Territory.”
That law would be to no effect (for infringement of the principle that the legislature may not abdicate its role) and any purported law made by the CHO under this supposed power, would be invalid.
A delegation will be invalid unless its terms are specific and those terms restrict the delegate’s lawmaking power to laws that are designed to give effect to the enabling act (or make it more workable). Some commentators say that the principle is that a delegation must be restricted to providing “in-fill” for the broader scheme of the enabling enactment that has been duly considered, and passed, by the legislature.
The delegated power will always be construed as limited to the scope of the express words of the delegation as contained in the enabling act.
Any example of a subordinate lawmaking power being exercised in a way which offends against the last stated element of the doctrine – an exercise of delegated power that exceeds the scope of the words of the delegation – is said to be ultra vires
Role of legislatures
It is in the name.
Legislature means a body that makes laws; the name comes from the Latin – leges – meaning law. Where a minister or public official legitimately makes a law under a delegation from the legislature that is classified as subordinate legislation. In a crude use of language, we might say that the description “subordinate legislation” connotes the sense that the relevant minister or public official is under the orders of the legislature insofar as regards any power to make law on the basis of the delegation.
Here, my discourse risks giving offence by appearing to postulate a political viewpoint. I suggest that a fairer classification of what I wish to say is that I will be speaking of constitutional matters. The point that I wish to discuss is that laws are reasonably easy to pass. A majority of like-minded members of a legislature (usually called a party) form a government. A committee of the government forms a cabinet. The cabinet acquires a dual role, i.e. its members remain as legislators in their capacity as members of the legislature, but they also perform the non-lawmaking role of the executive government of the jurisdiction.
The cabinet segregates itself into ministers in charge of the various ministries of government. When a minister discerns that there is outdated, unsatisfactory or no sufficient law suitable to regulate the affairs of his or her portfolio, the minister proposes to cabinet that the governing party introduce into the legislature a proposed new law to cover the situation. If the cabinet supports the proposal, it commends the proposed new law to the governing party. If supported by the governing party, the proposed new law is introduced into the legislature for approval by a majority of the legislators. Sometimes such proposals pass into law; on other occasions the legislature, by majority vote, rejects the proposal and it does not become law.
That is the way that law is made in the common law world. Where the legislature can be classified as fully elected, the process is called democracy. The law is not made by ministers or public officials unless the legislature makes a delegation to them in accordance with the principles of the doctrine set out above.
I pose the following question.
Why didn’t the government of the NT introduce a law into the Legislative Assembly in usual manner to establish the legal regime by which it desired to address the circumstances of our community suffering the risk of an unwanted infectious disease? Wouldn’t it have been much simpler to do so? Troublesome lawyers cannot normally question a regular enactment of the legislature!
The question, and the possible answers to it, raise some interesting issues.
What are CHO directions?
The CHO’s subordinate laws which are commonly called the ‘vaccination mandate’, are an example of one-person-rule by a public official. The CHO is no more than a servant of the executive government. Under our legal and constitutional system, he does not possess any inherent lawmaking authority. However, he does have a statutory delegation to that end by force of s.52 of the Public and Environmental Health Act. A study of that delegation confirms that the legislature has limited the delegated authority of the CHO to a period when a public health emergency has been declared.
If no public health emergency is declared, the CHO has no authority to make any laws under the delegation. Any directions that he purported to make would be a nullity. If, however, there is a declared public health emergency, then the CHO can make directions which have the force of subordinate law provided they are valid. Validity will depend on a number of factors, but for the purposes of this essay, a critical factor will be compliance with the doctrine of ultra vires. That is, the directions must not intrude into an area of societal activity that is not encompassed in the terms of the delegation as set out in s.52.
Meaning of emergency
Prior to progressing that examination, it is desirable to place the concept of a “public health emergency” under scrutiny. On certain predications, s.48 of the Public and Environmental Health Act empowers the NT Health Minister to declare a public health emergency. It is probably safe to assume that the predications have been satisfied but I do not propose to examine the issue as it is unlikely to be relevant to this discussion. The original declaration reveals that the Minister specified the existence of “a public health emergency….arising out of the serious public health risk from Novel coronavirus (COVID-19)”.
In the numerous renewals of that declaration (effectively every 90 days) the formula used has been reduced to the phrase “the public health emergency” with a reference back to the original declaration. Hence it is safe to conclude that at the time at which the CHO made the Directions No. 55 there apparently was a “public health emergency” for the purposes of the Public and Environmental Health Act.
It is nonetheless useful to ask, what is an “emergency”? In the Oxford English Dictionary, we find the meaning of that word relevantly defined as: “A serious, unexpected, and potentially dangerous situation requiring immediate action.”
That ordinary meaning of the word “emergency” gives one pause for thought. At the risk of seeming unconcerned regarding the medical security of my fellow citizens, I raise this, possibly inconvenient, question: How can any set of circumstances be unexpected if they have been ongoing since February 2020 – almost two years prior to the making of the mandate directions?
In law, there is an answer. Because the minister has said so; and she has the power to say so by force of s.48 of the Public and Environmental Health Act.
The legal answer to the riddle of how circumstances which are not a surprise, and are fully expected, can be classified as an emergency is postulated in the previous paragraph (an answer worthy of a character from a Lewis Carrol novel). However, I suggest that there is another answer that will repay examination. That is, the sociopolitical answer.
The NT’s executive government believes it should have exclusive control over the Covid pandemic response. For that reason, it is not willing to trust the normal democratic process and ask the legislature to enact laws of the nature and content that the executive government endorses as the measures necessary to cope with the pandemic situation. The executive government is afraid that the full elected Legislative Assembly of the NT would not pass that legislation.
Crudely expressed, the NT cabinet wants a vaccine mandate, with the force of law, but doesn’t have the guts to put it to a vote of the Assembly elected by the people of the Northern Territory for the purposes of making law. They know that they would lose. So, they are attempting to exploit the scope for one-person-rule offered by the Public and Environmental Health Act emergency powers. There is no other logical explanation.
It is quite untenable to suggest that the urgency of the problem demands urgent executive lawmaking action to the exclusion of the legislature. The NT cabinet has had almost 24 months to react in a proper constitutional manner. The NT’s situation is similar to that which prevails in many jurisdictions around the world. For some reason, regardless of having adequate time to do so, the preponderance of western governments obdurately refuse to address the problems of the pandemic in a democratic manner.
A social commentator in the United States recently made some observations regarding one the Biden government’s vaccine mandates which it attempted to impose on approximately 80,000,000 workers by the use of delegated legislation in the form of work safety rules made by the US Occupational Health and Safety Agency (the equivalent of an Australian Work Health agency). The US Supreme Court declared that delegated legislation to be invalid. Discussing the case, the commentator offered his theory as to why the Biden administration had relied on delegated legislation rather than simply approaching United States Congress for the passage of a proposed law.
The commentator said words to this effect: If elected legislatures were asked to enact legislation of this kind, they would refuse.
Significance of sociopolitical answer
The situation is no different in the NT. There has been ample time for the NT cabinet to formulate a recommended law for our elected legislators to consider and enact on our behalf. However, the executive government of the NT has resolutely failed to do so. The burning question is, why? There are three choices of possible explanation. The answer can only be one, or other, or a combination, of incompetence, megalomania or the belief that the NT’s Legislative Assembly would not agree to pass laws of the type which the executive government desires to have in force.
The most charitable explanation, and the choice that I would make, is the third possible answer. The executive government does not trust the legislative arm of our jurisdiction with an issue so complex. Some readers may shrug off the significance of this observation and the previous paragraphs. Indeed, some critics may be hostile and suggest that I am arguing a political point of view.
I readily acknowledge that my choice of explanation, or any sociopolitical explanation, has no bearing on the legal question of whether the NT’s vaccine mandate is invalid by reason of it being ultra vires. However, in reply to any critic, I would say that my motive for raising these matters is to remove the influence of emotion from the analysis. My wish is to make clear that there is ample scope, and there remains quite sufficient time, to protect the NT community from the medical risks of the pandemic by the enactment of considered and adequately supported legislation introduced into the Legislative Assembly, debated in the normal matter and passed into law if approved by a majority in that institution.
Any finding of invalidity of the mandate, as expressed in the directions, will not leave the public unprotected. There is no legitimate basis on which to harbour an emotional fear of such an outcome. That outcome will simply require the members of the executive government of the NT to revert to their proper role which is not lawmaking. Their proper role is, the execution and administration of the laws of the NT duly enacted by its Legislative Assembly.
The time is now appropriate for me to cease introductory remarks and present my analysis of the legal merits, or otherwise, of the putative so-called vaccine mandate that is said to be in force in the NT. I will begin that process by discussing an actual example which strongly suggests that there is a general acceptance of the vaccination mandate as being valid and binding law. I will put a case that the public has been hoodwinked.
For the purposes of illustration, I will refer to the facts of an incident with which I am personally familiar. On November 16, 2021, an employer wrote to one of its truck drivers, who is now a Fair Work Commission un-fair dismissal claimant, in the following terms.
“Lawful and reasonable direction by [employer name redacted].
“12. You are hereby directed to provide to your [employer name redacted] Leader by 12:00 noon on Monday, 22 November 2021: (a) evidence that you have received your first COVID-19 vaccine dose; and (b) evidence that you have a scheduled appointment to receive your second COVID-19 vaccine dose; or (c) certification from a medical practitioner of a medical exemption that you are unable to have a dose, or further dose, of a COVID-19 vaccine due to a medical contraindication or an acute medical illness……..
“14. A failure to comply with the direction in paragraph 12 by the required deadline, will constitute a failure to comply with a lawful and reasonable direction and this will be regarded as conduct warranting disciplinary action which may include the termination of your employment.
“15. In the alternative, if you remain unable to attend the workplace to perform your job, [employer name redacted] may have no option other than to terminate your employment as it cannot continue to place you on unpaid leave indefinitely.”
Assumption of legal force
The heading of the employer’s paragraph 12 strongly suggests that the employer considers its instruction to be no more, and no less, than a lawful instruction. Subsequently, in its notice of termination of employment, the employer put that question beyond debate. It’s subsequent letter of November 26, 2021 contains the following critical text which unambiguously clarifies the employer’s belief.
“This decision has been made because, despite repeated requests and sufficient time in which to comply, you have failed to comply with [employer name redacted]’s lawful and reasonable direction and because, due to your unvaccinated status, for the reasons previously explained to you, you are unable to attend for work and perform your job.”
These examples, raise the question of on what basis did the employer consider the direction to be lawful?
There are only two possible bases upon which an instruction given by an employer can be legitimately classified as “lawful”.
The primary, and most obvious, basis upon which an employer might classify an instruction as being “lawful” is the situation where the employment contract, or terms implied into it by force of general common law, confer on the employer an entitlement to give such a direction.
The second possible basis on which an employer might correctly classify an instruction as being “lawful” can only be a provision of a valid law which expressly applies to the particular employment relationship, or necessarily applies to all, or an identified class, of employment relationships by reason of its generality.
In this analysis, when I use that expression “law”, I intend to refer to laws made by, or with the authority of, the relevant legislature. The phrase “with the authority of” the legislature refers to any subsidiary laws (by whatever name including the name “Directions”) that may be made by a minister or a government servant (commonly called an officer) under a power delegated to them by force of a valid law of the relevant legislature.
When specifically speaking of these subsidiary laws made pursuant to delegated power, I will use the expression “subordinate legislation”. That a technical phrase and I will utilise it to highlight, and reinforce, the reality that ministers and other officers in government service do not possess any organic power to make law. They can only make a law by the methods prescribed by an authorisation given by a law passed by the legislature and only within the terms relating to subject matter which are specified in that law.
Contract does not cover it
Nothing in the relevant employee’s written employment contract, nor the applicable enterprise bargaining agreement, empowered the employer to give any such an instruction. It is true that the common law implies certain unwritten terms into employment contracts. However, it would be an ill informed and reckless advocate who put forward an argument to the effect that common law implies into an employment contract a right given to an employer to direct an employee as to his or her private medical affairs. To put such an argument invites the recognition of its absurdity.
Inevitably therefore one must conclude that the employee’s employment contract would not justify the employer’s contention that its direction was “lawful”. The preponderance of employment relationships throughout the NT community would be similar. Of course, there will be exceptions where it will be possible to say that the employment contract does justify the employer’s intervention in the medical affairs of the employee; but such would be a very special case.
Mistake about law/Confusion of legal advice
No disrespect to the employer is intended by my remarks in the previous paragraphs. A typical employer might be forgiven for succumbing to the blizzards of propaganda to the effect that the mandates are law that are constantly expounded in public by political and industry leaders with the supine concurrence of an incurious media. Indeed, scrutiny of the correspondence quoted above would strongly suggest that the text used was written by, or at the very least prepared on the detailed advice of, a qualified legal advisor.
Any such legal advisor may have advised on the law of some other Australian jurisdiction rather than that of the Northern Territory. I am unaware of the content of the statute law of the state of Victoria but based on its reputation, I do not find it difficult to imagine that a Victorian law, whether an act of Parliament or subordinate legislation, may perhaps have been correctly reported in those terms with the result that the employer confused that advice as being applicable to all jurisdictions in Australia.
Whatever may be the explanation, it is inescapable that employer’s basis for the instruction is, and remains, an assumption that the “mandate” is the law. How else would the employer justify the use of the expression “lawful and reasonable direction”?
No national mandate
This essay relates exclusively to the law of the Northern Territory. The reader of this essay must dismiss the influences of all other jurisdictions. The laws of the other jurisdictions of Australia are not relevant to this essay. Each jurisdiction in the Australian federation has the duty, and privilege, of establishing its own laws with respect to health. The law adopted by, for example, the state of Victoria in respect of mandates has no operation in the Northern Territory. The same position applies to the law of each of the other Australian jurisdictions.
Nor is it proper to think in terms of national law. There is no national law imposing any vaccination mandate. There cannot be such a national law as the federal parliament has no jurisdiction over general health issues. Except for international quarantine, and certain funding measures, health is a state matter by reason of our Constitution. The Commonwealth does not pretend otherwise. A review of Commonwealth law will make clear that there is no such thing as a national mandate notwithstanding the terminology that has become common.
NT statute law?
It follows, from the foregoing, that the focus of this essay must be an examination of NT statute law and its subordinate legislation. The scope of NT legislation to be reviewed is simplified by accepting the cue provided by the introductory paragraph of Directions No. 55 in which the CHO asserts that in making Directions No.55 he has acted by force of s.52 of the Public and Environmental Health Act.
The CHO expressly states: “under section 52 of the Public and Environmental Health Act 2011 (the Act), [that he considers it to be] necessary, appropriate or desirable to take action to alleviate the public health emergency in the Territory, declared by instrument entitled ‘Declaration of Public Health Emergency’, dated 18 March 2020, (the public health emergency declaration), by making the following directions”
After which 18 paragraphs follow accompanied by an interpretation schedule of two pages.
In those circumstances, the Northern Territory laws that must be examined to answer the question of whether paragraphs 6, 7 and 10 of Directions No. 55 are valid laws, may be safely restricted to the content of the Public and Environmental Health Act and the text of paragraphs 6, 7 and 10. The CHO has expressly acknowledged that no other Northern Territory law is relevant.
As the CHO has acted under the power conferred upon him by s.52 of the Public and Environmental Health Act, it is necessary and appropriate to study the contents of that section. It reads as follows: 52 CHO’s emergency powers.
(1) If an emergency declaration is in force, the CHO may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration. (2) The actions the CHO may take include any of the following: (a) reducing, removing or destroying the public health risk causing or threatening to cause the emergency; (b) issuing warnings in relation to the emergency; (c) segregating or isolating persons in an area or at a particular place; (d) evacuating persons from an area or a particular place; (e) preventing persons accessing or entering into an area or a particular place; (f) controlling the movement of vehicles within an area.
(3) The directions the CHO may give include directions requiring any of the following: (a) a person to undergo a medical examination of a general nature, or of a stated kind, immediately or within the period stated; (b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period; (c) a stated thing to be seized or destroyed; (d) a stated person to provide oral or written information relating to the emergency.
Review of ss.52(1)
Ss.52(1) constitutes the legislature’s nomination of the CHO as an officer to be delegated to make subordinate legislation in certain circumstances. That is, the CHO is named as a delegate of the legislature to make laws. If he does so, those laws are to be called directions. Such directions, if valid, are to have the force of law by virtue of other provisions in Public and Environmental Health Act. It is unnecessary to review those provisions.
The first qualifying circumstance for the making of valid directions is the existence of a public health emergency declared under the legislation. That is unarguable. These introductory words – “If an emergency declaration is in force” – in the first line of ss.52(1) are clear authority for that proposition. Moreover that requirement has been satisfied.
Note however the CHO’s delegated powers are limited to that which the CHO “considers necessary, appropriate or desirable to alleviate [that particular] public health emergency.”
It is not an unlimited power to make social rules with the force of law regarding all and any classes of activity that the CHO may wish to regulate. The power is limited to that which is directed at alleviating the particular public health emergency. That limitation calls for an examination of the meaning of the word “alleviate” (the meaning of “emergency” is discussed elsewhere).
Meaning of alleviate
The Oxford English dictionary defines the word “alleviate” as being a verb meaning “make (pain or difficulty) less severe”.
The present context therefore suggests that the word “alleviate” as used in ss.52(1) refers to making the emergency less severe. I have already discussed the meaning of “emergency” i.e., a “serious, unexpected, and potentially dangerous situation requiring immediate action”. For the moment, I won’t make any further analysis as to how these two words fit the puzzle that is under consideration except to make this point. If there is no emergency, then nothing can alleviate it. If there is nothing to alleviate, there is no predication upon which the delegated power can be justified and therefore it may not be exercised.
In the next few paragraphs, I pose the question, has the emergency disappeared?
I feel the need to offer some observations about the point of whether the emergency has disappeared because I regard it as a possible avenue for other analysts who may want to mount an argument which is different to my ultra vires analysis. Possibly there may be scope for a judicial challenge of the current extended version of the original declaration of emergency. An argument might be crafted along the lines that the current extension of the original declared emergency ought to be set aside for the reason that at the time of the extension renewal, the NT community was already almost 24 months into the pandemic.
Hence, it might be argued, at the time of the most recent extension, there was no unexpected situation. If that argument was successful further reliance on the CHO’s emergency powers would not be possible. Then, it would be essential for the executive government to submit a proposed replacement law to the legislature for consideration.
When scrutinising the legislative concept of an emergency, one cannot help but be cognisant of how elastic the concept has become under the current executive government. As recently as when the original emergency was declared by proclamation made on March 18, 2020, the duration of the emergency (fixed by s.50 in its then form) was limited to five days. That fact is acknowledged in the proclamation. However by force of some amendment that I have not yet traced, it appears that subsequently s.50 was amended to permit the duration of an emergency to be fixed for 90 days [see s.50(1)(a) in its current form].
Since that amendment the executive government has, on five occasions, extended the emergency by 90 days. That measure is authorised by a provision in the Public and Environmental Health Act which permits extensions. That is as may be but any reasonable person would think that a set of circumstances that have lasted for a length of time in the order of 450 days (five x 90) could not be truly unexpected. I speculate that perhaps this feature of the current emergency declaration may have the result that the existing circumstances do not conform to the true judicial meaning of an emergency. If so, perhaps the time is ripe for a court to intervene and declare that the declared emergency no longer exists for the purposes of the Public and Environmental Health Act!
Appeal against emergency
Perhaps, those motivated to do so, might also formulate a plan for action pursuant to the following section of the Public and Environmental Health Act: 107 Appeal against decision relating to emergency declaration.
(1) A person whose interests are affected by any of the following decisions may appeal to the Local Court against the decision: (a) a decision of the minister under section 48 to declare a public health emergency; (b) a decision of the minister under section 50(2) to extend the period an emergency declaration is in force; (c) a decision of the CHO under section 52(1) to take stated action to alleviate a public health emergency, including a decision to give a direction.
(2) The appeal must be lodged within 24 hours after the decision is made.
Subsequent provisions in the legislation facilitate the procedures on appeal.
From a lawyer’s point of view one must always remember that an appeal is not a mere complaint. If, for example, an employer approached me as an aggrieved party and asked what kind of case he or she would need to make, I would recommend that plans be made to enlist the cooperation of an employee who was at risk of losing his or her job, to join the appeal as co-plaintiff.
To lead medical evidence from a duly qualified person to the effect that the accursed disease will be with us for many years to come and has long ago ceased to be unexpected.
Lead evidence from another qualified person which analysed the statistical probabilities of the accursed disease causing death or serious permanent disability with specific emphasis on the proportion of patients who suffer death (which I understand is a microscopic percentage i.e., people of extreme age with comorbidities).
Lead medical evidence that outlines the possibilities of practical alternative means of protecting that microscopic percentage of the population who are at extreme risk (e.g., perhaps, by locking them down – only joking).
Provide personal evidence from the employer, perhaps supported by other business proprietors, to outline the disadvantages of having to dismiss staff who have a medical objection to the vaccine. Such disadvantages would be illustrated by pointing to the the loss of the employer’s investment in training staff, the business interruption caused by the loss of trained staff and by their replacement with people who are not competent to perform the same duties without training and the cost to the employer providing that training.
And lead evidence from the co-plaintiff (the employee at risk of losing his job) as to the severe disadvantages implicit in the process of finding alternative work.
I will not develop those arguments any further. I have expounded them merely to stimulate the possibility that some other analysts may wish to pursue the possibilities that they offer. To me, they are only talking points, as in my judgement the argument that I will now develop, based on the doctrine of ultra vires, is a far simpler, and a more certain, answer to the riddle of the validity, or otherwise, of the supposed vaccine mandate.
Can ss.52(1) stand alone?
I now turn to a detailed examination of whether paragraphs 6, 7 and 10 of Directions No.55 are valid, and pose the question, do the terms of paragraphs 6, 7 and 10 fall within the limits imposed by s.52 on the CHO’s delegated power to make law?
The starting point must be the foundation of the CHO’s power which is ss.52(1). That subsection has already been shortly discussed but further analysis is required. To recapitulate, it authorises the CHO to take actions (including making Directions) that he or she considers necessary, appropriate or desirable to alleviate a public health emergency. If ss.52(1) were all that appeared in the legislation, a court would bound to rule that the generality of that delegation impugned its validity.
Ss.52(1) is too general
Ss.52(1) would be open to the criticism that it was an unlimited delegation. The common law does not permit a legislature to gift its powers to some other person or entity without limitation. An opponent in that debate may assert that ss.52(1) must not be construed in isolation. An advocate of the validity of ss.52(1) will point to the fact that ss.52(2) and ss.52(3) contain additional provisions that in fact deal with the detail of what the CHO may do. Therefore, the contra argument will be, when those subsections are taken into account, ss.52(1) cannot be said to be so general as to make an unlawful delegation.
Very neat; but the proponents of the contra argument may come to regret enlisting the aid of ss.52(2) and ss.52(3). To do so impliedly admits that, if ss.52(1) stands alone, it does not achieve a permitted delegation. It is not specific enough. On its own, the delegation which ss.52(1) purports to make is of such broad scope as to be an unqualified gift by the legislature of its powers. How else can the breath of ss.52(1) be seen? A test of this view of the breath of the delegation sought to be achieved by ss.52(1) is offered under the next two headings.
The CHO’s delegation
Looked at in isolation, the powers that ss.52(1) confer on the CHO, are expressed in these words: [the CHO] “may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency”
I propose a test based on the assumption that ss.52(1), in isolation, is not so broad as to be invalid. Assuming, for the purposes of the test, that to be a correct legal interpretation, there must be a corollary. That is, it must be the case that ss.52(2) and ss.52(3) are not necessary for the validity of ss.52(1).
Assume that the CHO has formed the view that the problem of insufficient rest is one of the factors that put human beings in danger of contracting COVID-19. It is his settled view, formulated on a reliable scientific basis, that the precaution of getting to bed before 8pm will impede the spread of infections in the community. Moreover he is confident that such a measure of rest will have a markedly beneficial effect on the immune systems of the general public and thereby significantly reduce the risk of individuals contracting the accursed disease.
Believing that he has been given power to take any action that he considers necessary, appropriate or desirable to alleviate the public health emergency, and noting the content of ss.52(1) which defines the term “action” as including giving oral or written directions), the CHO issues written directions requiring that all persons resident in the Northern Territory of Australia must be in bed at their homes by 8pm each evening.
He issues an additional written directive that bans the use of entertainment devices after 8pm each evening (whether television, radio, smart phone or any other digital or mechanical device which has a similar function).
The CHO also issues a written direction to the NT Police Commissioner requiring that the Commissioner designate 15 fully equipped police officers, with appropriate transportation, for each electoral ward in the Northern Territory and order them to patrol those wards each evening and apprehend and prosecute any person found to be out of bed after 8pm with authority to enter any premises to search for non-compliant residents and or entertainment devices.
The directions require the Commissioner to order the police officers to seize and destroy any entertainment devices found to be in use after 8pm. The CHO also issues a written direction requiring all places of public entertainment and or refreshment to close forthwith until further notice. In this respect a broad range of premises are specified including without being limited to theatres, sports grounds, clubs, hotels, bars, nightclubs, restaurants, cafés and beer gardens. This last direction includes a provision authorising health inspectors to forcibly close any venue found to be non-compliant.
Appearance of validity
Some would be brave enough to argue that the actions of the CHO were lawful by force of the delegation to him in the legislation. Certainly, there is subjective compliance with one of the main predications of the putative delegation. Yes, the CHO’s belief (he considers) that his actions in the test scenario would be desirable to alleviate the public health emergency clearly fall within the requirements of the express words of ss.52(1). Moreover it is likely that he will be scientifically correct in the judgement made. His actions (including directions) would clearly alleviate the public health emergency.
But isn’t the true issue the question of whether the CHO would have had the lawful power to institute such actions (including directions)?
Bedtime story or nightmare?
Vital features of that burning question are the following component issues.
By enacting ss.52(1), did the legislature really intend to give to the CHO unfettered power to make laws which forbid societal movement after 8pm, abolish nocturnal commerce and employment, and prohibit access to electronic amusements other than during daylight hours (with the incidental impediment to the dissemination of information)?
Doesn’t the nature and quality of that breadth, and detail, of control over society approach a magnitude such as amounts to an unfettered and undefined abdication of the power, or at least a substantial part of the power, to make laws for the peace order and good government of the NT?
Would be invalid
On a judicial consideration of the validity of the CHO’s imaginary regime of societal regulation, postulated in my hypothetical fact scenario, the ruling would be: “ss.52(1) does not specify the nature and qualities of the actions (including directions) that this statutory officer may do as a delegate of the legislature and hence is invalid as being too broad.”
The determination of the court would be that the legislature must not purport to delegate its power in terms so broad and ill-defined as to amount to an abdication. In the hypothetical case of ss.52(1) being the only head of power which purported to make a delegation of lawmaking authority to the CHO, it is not realistic to expect that the court would uphold such acts of purported lawmaking and thereby hand over the management of society to an unelected statutory officer operating from such vague terms of reference.
OSHA decision in the USA
On January 13, the US Supreme Court decided the case of National Federation of Independent Business, Et Al. v. Department of Labor, Occupational Safety and Health Administration, Et Al. The case is widely referred to in news and information as the OSHA case for the initials of the defendant agency. The focus was a similar situation to that which would arise if we were to attempt to resolve the issue of the CHO’s lawmaking authority by reference only to ss.52(1). The US Supreme Court’s judgement provides an insight into the proper interpretation of enabling powers similar to s.52.
At page six, speaking of the US Federal equivalent of our Parliament, the court said: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
That sentiment is relevant to the interpretation of ss.52(1). The Parliament of the Northern Territory has not spoken clearly in ss.52(1) to the effect that the CHO will have authority to make subordinate legislation which upends society. The subsection, if it stood alone, should not be interpreted as having that breadth and impact.
Three limbs of s.52
Nonetheless, there is a measure of importance in the generality of ss.52(1) which I will now explain.
The only limit on the generality of ss.52(1) is the power granted to the CHO is that he or she must “consider” any actions taken to have been “necessary, appropriate or desirable to alleviate a public health emergency”. But the subsection itself specifies no examples nor any limits of such actions. As there must be limits, the absence of limits in ss.52(1) invites a construction of the totality of s.52. When one makes a careful study of the totality of s.52, we see that it is divided into three distinct limbs.
These are that 52(1), which identifies the CHO as the legislature’s delegate and, in general terms, foreshadows the structural nature of the powers that are to be exercised by that delegate. That is the purpose and effect of the word, may take the actions (including giving oral or written directions). Note there are no other words in ss.52(1) section which clarify or define the nature and character of the actions or directions.
And 52(2) which, seeks to distinguish, and define, the difference between actions and directions. It states the actions the CHO may take include any of the following six actions, which in summary terms are: doing things to reduce or destroy the public health risk, issuing warnings, segregating or isolating persons, evacuating persons, preventing access to areas and controlling the movement of vehicles.
The third limb is 52(3), which performs a similar mission in respect of directions. It seeks to distinguish, and define, the difference between directions and actions. It states the directions the CHO may give include directions requiring any of the following, which in summary terms are, ordering particular persons to undergo a medical examination, giving orders that control the movement of stated persons, giving orders that stated things be seized or destroyed and giving orders that a stated person provide information.
Legislature’s three part plan
These three subsections reflect the legislature’s three part plan to define the nature and limits of its delegation of power to the CHO. It does so by the following means.
52(1) identifies the CHO as the entity who is to be empowered to take “actions (including giving oral or written directions)/
52(2) subsequently specifies examples of “actions”. The combination of ss.52(1) and ss.52(2) empowers the CHO to undertake executive actions.
And 52(3) specifies examples of “directions”. The combination of ss.52(1) and ss.52(3) is the only instance where a delegation of any lawmaking power can be found in s.52.
Consideration of these three limbs makes clear that it is not ss.52(1) that delegates law making power to the CHO. It is the combination of the identification of the CHO as the repository of delegated law making power made by ss.52(1) (the first limb of s.52) together with the specification of examples of law making in ss.52(3) that completes a grant of delegated authority to the CHO to make law in the form of directions. Without ss.52(3), the first subsection, ss.52(1), will be invalid for relevant purposes as being an abdication of legislative power.
Significance of ‘include’
The contra argument must be considered; that is, some will say that the foregoing structural analysis overlooks the significance of the words “including” as it appears in ss.52(1) and “include” as it appears in ss.52(2) and ss.52(3).
In respect of the appearance of the word “including” in ss.52(1), I say that the word “actions” followed by the words “including giving oral or written directions” is merely an omnibus expression to convey the meaning that the CHO is to be invested with authority for both executive (actions) and legislative functions (directions).
That collection of terminology is no different in substance from the formula “actions and oral or written directions” or “actions, oral directions or written directions or any or all of them”.
In ss.52(1), the appearance of the word “including” does not serve the same purpose as does the word “include” in ss.52(2) and ss.52(3). In particular, when ss.52(3) expounds the formula, “The directions the CHO may give include directions…..”, the word “include” serves an entirely different purpose. The mission of the word “include” in that context is to signal what type of lawmaking exercise that the legislature contemplated when it made the delegation that it put into effect by the combined operation of ss.52(1) and ss.52(3).
Includes any other type of direction?
There will be those who argue that the word “include” leaves open the possibility of any other type of direction in addition to the four examples that are given in the list provided by ss.52(3). That is not a convincing argument. Taking into account that a putative delegation will not be valid unless it is expressed in terms that provide limits to the ambit of the legislative power that is delegated, this argument will experience difficulty when confronted with the question: “Where, and what are the limits of the category ‘any other’ direction”? There will not be any that can be pointed to.
Ss.52(3) list not exhaustive
Putting a similar point, the proponents of the “includes any other type of direction” construction would perhaps argue the list of four examples specified in ss.52(3) is not exhaustive. The argument would continue that there can be ‘other’ directions of a similar nature to those specified in the list. To that I ask, which of the ss.52(3) examples are similar to forcing the non-consensual termination of an employment relationship and condemning a dismissed worker to unemployment?
The answer is none of them.
I quote the precise list of the ss.52(3) examples: ordering particular persons to undergo a medical examination; giving orders that control the movement of stated persons; giving orders that stated things to be seized or destroyed; and or giving orders that a stated person provide information.
Test by merger
Conscious of the danger of brainwashing myself, after listening to the observations of a reader I committed myself to amend this essay to fortify my conclusion by approaching the interpretation of s.52 from another direction. The reader had commented to the effect, “I do worry about the word ‘include’. Are you sure you can just ignore it? To me, that word signals that there could be plenty of other possible CHO directions.”
That challenge, coming from a non-lawyer, prompted me to subject my interpretation to another test. That is, I asked myself to contemplate the possibility of the legislature having had no interest in illustrating the meaning of “actions”, as it in fact has in ss.52(2), and simply enacted a composite single paragraph expression of the combined legislative intent of ss.52(1) and ss.52(3) to give effect to the parliamentary objective of nominating a delegate and granting certain lawmaking powers (directions) to that delegate.
If so, a merged form of the legislature’s words would appear as follows.
52 CHO’s emergency powers. From ss.52(1), it would be: If an emergency declaration is in force, the CHO may take the actions (including giving oral or written directions) the CHO considers necessary, appropriate or desirable to alleviate the public health emergency stated in the declaration.
And from ss.52(3), the directions the CHO may give, include directions requiring any of the following: (a) a person to undergo a medical examination of a general nature, or of a stated kind, immediately or within the period stated; (b) a stated person to remain in, or move to or from, a stated area or place immediately or within a stated period; (c) a stated thing to be seized or destroyed; (d) a stated person to provide oral or written information relating to the emergency.
Now I have presented the operative thrust of both ss.52(1) and ss.52(3) in a composite form without changing any of the wording of either subsection. My observation is that this innovation puts the word “include” in a context where greater clarity can be ascribed to its meaning. In my judgement, it is now possible to see the true mission of the words “directions the CHO may give include directions requiring any of” as they appear in the second sentence of the merged form. Common sense suggests that the list of examples from (a) to (d) should properly be interpreted as characterising the nature of directions that the legislature had in mind.
That is: in respect of 52(3)(a), the legislature had in mind an order directed at a specific person; 52(3)(b), the legislature had in mind again an order directed at a specific person; 52(3)(c), the legislature had in mind an order directed a specific asset; and 52(3)(d), the legislature had in mind an order requiring a specific person to disclose information.
An advocate of the contra case, cannot sincerely advance the following argument based in logic (and common sense): “Yes it is true that the examples are highly specific but the word ‘include’ means that the legislature did not intend for the delegate to be tied down to those specific things. He can do anything else he likes. Yes, if he wants to, he can give a direction that is nothing like what is included in that list. Indeed, he could even direct social reconstruction of the magnitude and extent postulated in the test case regarding everybody needing to be in bed by 8pm”.
The better view is that the legislature would not have intended the word “include” to have such an expansive meaning. Yes, it does have a meaning but the meaning is nowhere near as broad as would be ascribed to it by my hypothetical advocate of the contra case. Surely, the maximum ambit of meaning of the word “include” as it appears in the legislation, must be kept within the range of the general sense of the list of examples; i.e. focused and directed interventions that relate to specific individuals or things.
How could the legislature have intended otherwise, given the formula of words that it has used?
Cross checked with a lawyer
The next eight paragraphs have been written to placate my former colleagues in the legal profession. My arguments have been crafted in terms of logic and common sense in the hope that they would be digestible to a non-legal audience. I must acknowledge that they are not written in the way that a lawyer would write an opinion which involves references to decided cases and doctrines of law. After giving further thought to the foregoing paragraph headed Test by merger, I decided to subject myself to a personal test. I turned to a fellow lawyer who remains in practice and asked him for his view of my somewhat simple explanation of the correct interpretation of s.52.
His response was that the same point can be expressed in the technical language of the lawyer and would assuredly be correct.
The maxim ‘ejusdem generis‘
We agreed that a lawyer would begin by an examination of the maxim ejusdem generis. Lawyers use the word maxim to describe a short formula of words that summarises a legal method. This particular maxim is a Latin phrase that basically means “be guided by the linguistic family of words”. The word ejusdem basically means ‘the same’ and the word generis basically means ‘family of words’. The maxim is used for interpreting documents and laws where specific words (e.g., cat, dog, goldfish, budgerigar) are followed by general words (e.g., or any other animal). The legal principle of ejusdem generis is that where such a formula of specific words presents itself in a document or law, then the breadth of the later general word is restricted by the family of words created by the sum of the earlier specific words.
So, in the example given, it would not be permissible to interpret the words “other animal” as including elephants, tigers and or whales. The phrase “or other animal” would not be given that meaning for the reason that elephants, tigers and whales are not normally household pets whereas the animals specified in the earlier words are a list of nominated animals that all fall within a general family of words being household pets. The word family of the earlier specific words, i.e. household pets, must control the meaning of the general words that follow. The meaning of the words “any other animal” must be restricted to a construction consistent with “other animals that are commonly household pets”.
Ejusdem generis irrelevant
So, to reiterate, the essence of the legal doctrine of ejusdem generis is that specific words characterise broad words which follow those specific words. But in my efforts to give a technical (and reliable) lawyer’s interpretation of s.52, surely I must admit that the ejusdem generis principle is irrelevant. In the case under consideration, that of s.52, the situation is the reverse. That is a case of broad language [the word “directions” and the words “directions include”] being followed by specific language [the examples posited by ss.52(3)(a) to (d) inclusive].
In practical terms ss.52(3)(a) to (d) are a case of the legislature setting out a list which it especially wishes to tabulate as being examples of directions it definitely wants us to know are within its delegation. Hence, we do not have general words following specific words, quite the reverse, we have specific words following general words.
Specialia generalibus derogant
In those circumstances, a lawyer would say, correctly, that the maxim ejusdem generis does not apply and cannot assist us to interpret either the word “directions” or the compound expression “directions include”. However the rejected maxim is not the only legal principle that should be considered. There is a reciprocal judicial maxim, specialia generalibus derogant. It translates into English as, the special derogates from the general.
For present purposes its practical meaning is that a special formula of words as to a particular subject matter, is to be preferred to general language which may also appear, and which might otherwise have governed interpretation if the special formula was not also present.
Apply specialia maxim
By applying the specialia generalibus derogant principle of legal interpretation, it is legitimate to see the list of example directions specified in ss.52(3)(a) to (d) as being specific formulae of words which characterise the meaning of the word “directions” and the compound expression “directions include” variously appearing in ss.52(1) and ss.52(3).
It is legitimate to interpret the list of specified examples, set out in ss.52(3)(a) to (d) inclusive, as being what the legislature had in mind when it used the general word “directions” and the general compound expression “directions include”.
That is linguistic common sense but at law is also consistent with the logic of the specialia generalibus derogant maxim.
I have previously expounded a lay person’s view of the language of s.52. Now, with apologies to the general readership, I express my thoughts in a way that a lawyer would be more comfortable with. A lawyer might say, by inverting the logic of the ejusdem generis principle, and following the lead of the specialia generalibus derogant principle, we should see the broad expressions “directions”, as limited to directions which can reasonably be said to fall within the family of directions which the legislature has specifically said that it intends to “include” in the delegation of the CHO.
What family of concepts?
In the list of example directions provided by ss.52(3) we see a group of concepts that are characterised by the activities of ordering particularly named people to be medically examined, of controlling the movement of such specific people, of requiring specific people to provide information and ordering that stated things to be seized or destroyed.
That constitutes a family of concepts that are focused on specified directional interventions, either in respect of specific individuals, or in relation to named things.
That family of concepts is not capable of being interpreted as including the possibility the CHO giving a direction, with the force of law, that does the three following things.
Intervenes in the economy of our society in general and non-focused way.
Requires the extensive restructuring of customary practices of our society by which its members earn their living.
On threat of penalty, imposes such inexorable pressure on the parties to employment contracts as to require one of the parties to unilaterally, and improperly, breach the employment contract.
I cannot accept that to be a legitimate interpretation of the legislature’s intention when it enacted s.52 of the Public and Environmental Health Act.
Objects of Public and Environmental Health Act
Before expressing a conclusion, it is appropriate to take cognisance of another structural element of the legislation.
I refer to s.3 which sets out the objectives of the Public and Environmental Health Act and reads as follows:
3 Objects of Act – (1) This Act has the following objects: (a) to protect and promote the health of individuals and communities in the Territory; (b) to provide a flexible capacity to protect the health of particular individuals and communities in the Territory from emerging environmental conditions, or public and environmental health issues, that may impact on their health and wellbeing; (c) to enable special action to be taken to protect the health of particular individuals and communities in the Territory who are at public health risk or facing particular health problems; (d) to improve the public and environmental health outcomes of all Territorians in partnership with individuals and the community; (e) to monitor, assess and control environmental conditions, factors and agents, facilities and equipment and activities, services and products that impact on or may impact on public and environmental health.
(2) In carrying out the objects of this Act, regard should be had to the precautionary principle.
It is customary, and desirable, to pose the question do the objects of the Act, or any of them, require, facilitate or encourage an interpretation of the enabling act (the Public and Environmental Health Act) which supports the validity of the contended delegated legislation?
I see nothing of that nature in s.3.
In expressing my conclusion, I ask to be excused for language inspired by the words of the US Supreme Court in the OSHA case. I have no words that are superior.
The Public and Environmental Health Act does empower the CHO to make laws in respect some measures that address health threats but it does not authorise the CHO to mandate workplace contractual outcomes, as between employer and employee.
Very few social relationships are as fundamental to our civilization as an individual’s entitlement to earn his or her living.
Paragraphs 6, 7 and 10 of Directions No. 55 are putative, but invalid, laws that purport to exercise powers that are, of “vast economic and political significance” in a way that interferes with a person’s fundamental right to earn his or her living and, in a typical case, has the inevitable consequence of loss of gainful employment.
The question, then, is whether the Legislative Assembly “plainly authorised” the CHO to make directions with the force of law that mandate such an outcome.
It does not.
The Public and Environmental Health Act does not “speak clearly” to authorize the CHO to exercise such powers.
Paragraphs 6, 7 and 10 of Directions No. 55 are not valid laws because, as subordinate legislation, their content is ultra vires the power given by the statute that is said to enable the making of them.
On Friday March 4, I learned that the government of South Australia had announced that it was discontinuing its “mandate” that ostensibly required police officers to be vaccinated. What was also noticeable from the media report was that this “gracious” action by the SA authorities, occurred seven days prior to the listed hearing of a SA Supreme Court challenge by SA police officers.
As an old, retired lawyer, reading between the lines, I infer that the SA Government recognised that it had structural problems with its “mandate” and would be certain to lose the case. By going quietly, and heading for the hills, the SA government has a fighting chance of avoiding an embarrassing loss in court.
The SA Police may simply accept the lifting of the “mandate” as a sufficient outcome. If so, there is a triple upside for the SA Government.
Firstly, the public will continue to be kept in the dark as to what is the truth regarding so-called ‘COVID-19 law’. Secondly, the SA authorities will avoid the embarrassing spectacle of losing a case. Thirdly, the SA authorities may be able to escape the inevitable award of costs that normally follows the loss of a court case. In my experience, this last factor is often very influential in government decisions.
United NT Businesses
A driving force which motivated me to write this essay was my admiration for a group of Darwin businessmen who got together and formed an association to oppose the NT’s supposed vaccination mandate, called United NT Businesses.
I am very thankful their insistence on questioning such extreme measures. In another era, the union movement would have offered the community similar leadership.
The association has mounted a challenge to Directions No. 55 in Supreme Court of the NT. The case is listed for hearing on April 19, and it is my hope that this essay may assist them to put their case.
Then again, that may not be necessary. I have a feeling that the NT Government will experience a Damascene vision and pull the mandate on, or about, April 12.