Australia, Federal Court of Australia, 27 June 2022,  FCA 741
Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
- Constitutional Court
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
Link to the full text of the decision
The Applicants challenged COVID-19 restrictions of mandatory vaccination and lockdowns imposed by the Australian Federal government and a number of States and Territories. The Applicants argued these infringed their right to bodily integrity, their freedom of movement and their right to conduct a business. The remedies sought were a range of declarations including that the measures taken by the Federal, State and Territory governments to restrict the spread of COVID-19 were invalid as they were contrary to the Australian Constitution, inconsistent with the Fair Work Act 2009 (Cth) and legally unreasonable. The Respondents sought an order that the Application be summarily dismissed due to having no reasonable prospects of success. The Judge concluded that the Applicants’ case was more a “general attack on the government response across Australia to the COVID-19 pandemic” rather than a detailed case about their own circumstances. The Judge determined that the Applicants had no reasonable prospects of success and summarily dismissed the Application with summary judgment in favour of the Respondents.
Facts of the case
The Applicants were private citizens and two small businesses who alleged their freedoms had been infringed by the mandatory health orders in relation to vaccination and travel restrictions.
At the time the Application was made a range of COVID-19 measures were in place in Australia, imposed by Federal and State and Territory governments. The measures included restrictions on domestic and international travel, lockdowns and vaccine mandates designed to reduce the risk of transmission of COVID-19 in the community. Among other specific measures, some States and Territories had imposed a requirement that workers in certain workplaces be vaccinated against COVID-19, and a requirement on employers to take reasonable steps to ensure this.
The Applicants’ original Statement of Claim alleged that “The implementation of the National Plan and the steps that were being undertaken in respect of it were ... being implemented or undertaken in the context of a New World Order... The New World Order is a form of government, having as its purpose the consolidation of the world’s economies to a single economy, and in which the international community are intending to assume responsibility for localised peace and security, with the active support of the world’s major powers.”
The Applicants advanced a number of claims as to the purported illegality of the various measures. They alleged that the steps taken by the Federal and State and Territory Governments to minimise the risk of transmission of COVID-19 were a contravention of the Australian Constitution, inconsistent with the Fair Work Act 2009 (Cth), contravened Australian consumer law and were legally unreasonable. The remedies sought included a declaration that all who received vaccinations received them in circumstances amounting to assault and battery. Furthermore, the Applicants sought an order requiring the Australia Prime Minister to apologise to the Australian people for allowing Australia to fall into “lawlessness and totalitarian rule” and declaring that his actions were a breach of the Nuremberg Code.
The Respondents sought an order that the matter be summarily dismissed due to the various claims having no reasonable prospects of success. The Court determined that the matter had no reasonable prospects of success and summarily dismissed the Application.
Type of measure challenged
- Local government measure
- Federal government measure
Measures, actions, remedies claimed
- A declaration that the members of the Australian population who received vaccinations “received them in circumstances that amounted to an assault and a battery”
- An order directing the Prime Minister of Australia to deliver the apology set out in the second schedule to the statement of claim
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Respondents sought that the matter be summarily dismissed on the basis of the Application having no reasonable prospects of success. In consideration of “no reasonable prospects of success” the Court had regard to a High Court authority in Spencer v Commonwealth  HCA 28 which stated that it was important that summary dismissal processes were not used to “stultify” the development of the law. However, the Court also had regard to the fact that the Respondents were Federal, State and Territory governments and defending the proceeding therefore involved the expanding of public resources, in addition to the finite public resources of the Court itself. The Court considered that a hearing would be a “considerable undertaking” due to the detail of the Applicants’ submissions and the issues raised within.
The Court acknowledged that the Applicants raised a number of allegations which concerned “…one of the largest domestic and international health crises in the lifetimes of most members of the Australian community.” As such, the responses of governments to this crisis were a matter of “substantial public interest” and a cautious approach was taken by the Court in determining whether the Application had reasonable prospects of success by examining whether there was an underlying legal and factual basis for the Applicants’ pleaded claims.
The Court considered seven recently decided cases disputing the legality of COVID-19 restrictions imposed by State and Federal governments and the powers of governments to make orders relating to public health emergencies.
In considering the High Court’s decision in Spencer, the Judge recognised the need to exercise caution in relation to novel allegations and conceded that there may be cases which, by the very nature of the issues that they raise, require a development of the law. Their novelty alone should not lead to a conclusion that they have no reasonable prospect of succession. This question should instead be based upon how the cause of action is presented and developed through written and oral submissions. The Judge stated that “Careful, thorough and well-reasoned pleadings, with adequate material facts, which seek a development in the law, are unlikely to be characterized as having no reasonable prospects of success.” That was not the case for this Application, however. The Judge found that the causes of action advanced in the Application had not been supported by adequate material facts or reasoning, and had in some cases misinterpreted the current state of the law. As such, the Applicant had no reasonable prospects of success and the order for summary dismissal was granted.
Conclusions of the deciding body
The Court summarily dismissed the Application due to it having no reasonable prospects of success.
Fundamental Right(s) involved
- Freedom of expression
- Freedom of movement of people, goods and capital
- Freedom to conduct a business
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
- Health v. right to bodily integrity
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court balanced the substantial public interest in the response of government to the COVID-19 pandemic which was “…one of the largest domestic and international health crises in the lifetimes of most members of the Australian community” with the need to ensure responsible expending of public funds and resources to defend the Applicants’ allegations. Therefore, it was necessary to closely examine the underlying legal and factual basis for the pleaded claims before concluding whether or not the Applicant had a reasonable prospect of success.