by Ganesh Sahathevan
In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Beech-Jones J said at para 138:
However, equally in the absence of direct evidence from the Minister and given that the decision-making process for Order (No 2) is partly shrouded in cabinet secrecy I adopt a cautious approach to drawing inferences in favour of the State parties. Even so, some findings can be drawn about the decision-making process. For example, I infer that, where the Minister has been sent a briefing and a public order, he read it before signing off on the order. Further, based on the email noted at [118], it is clear that the decision to include a vaccination condition for authorised workers who wished to leave their relevant area of concern as reflected in the amendment made to Order (No 2) was addressed at the Crisis Policy Committee meeting on 19 August 2021.
The State parties sought a finding that, when he made the impugned orders, the Minister was familiar with the Doherty Institute modelling concerning the spread of the Delta variant amongst populations with different vaccination rates. They point to the reference to the “Doherty modelling” in the then Premier’s press conference on 10 August 2021 which the Minister attended. Given the approach taken by the State to adducing evidence, I am only prepared to draw the inference that he understood that such modelling had been undertaken and that it addressed the differences in likely transmission rates depending on vaccination levels but not that the Minister had a detailed understanding of what those rates were. I otherwise draw the inference that throughout August 2021 and thereafter the Minister was acting on the basis that vaccination materially reduced the risk of transmission from one person to another. That was expressly stated by the then Premier in the press conferences on 10 and 11 August 2021 that he attended; it was the entire rationale for the making of clause 4.3 on 23 August 2021; the Minister was specifically told that in the briefing note on 25 August 2021 concerning the making of the Aged Care Order; it is recorded in the grounds for that order signed off by the Minister the next day; it was reiterated in the brief sent to him in relation to the Education Order on 23 September 2021 and also recorded in the grounds for that order when he signed it.
