As vaccine mandates in workplaces across the country continue to grow, and in light of a recent Supreme Court of NSW challenge failing last Friday, we thought we give you a quick run-down of what took place during the proceedings, the outcome and the implications for different industries and workforces in NSW.
Vaccines have been a controversial issue since the discovery of vaccination. The “anti-vax” movement is widespread and covers a whole spectrum of weird and wonderful characters. Some of them, however, are not simply conspiracy theorists, but rather concerned with more fundamental issues connected to mandates, such as individual autonomy over what one does with their own body, and other civil liberties such as the right to move freely and work, and the way in which mandates, or other laws, impinge upon these rights in practice. Some are concerned with the fact that there seems to be a trend in increased Government and Police powers of this nature, that never seem to go away after the threat does, and have a tendency to be abused by law enforcement in particular. Australia is an interesting case, notably having no bill of rights like some other foreign counterparts, and at times questionable behaviour from some law enforcement officers.
The two recent cases include those of Al-Munir Kassam and Natasha Henry v Bradley Ronald Hazzard. Both cases challenged challenged mandatory workplace vaccines.
In Al-Munir Kassam’s case, the Court was asked to declare public health orders invalid and unconstitutional because they impugned “personality liberty” and forced the Plaintiffs to undergo a medical procedure and isolate. The legal dispute revolved around the question of whether or not the order is legally unreasonable, suggesting the claim that “the extreme threat of prohibiting an individual from undertaking work, unless they become vaccinated, has the effect of requiring an individual – in circumstances where they may not have otherwise given their consent to be vaccinated – to receive a dose of a COVID-19 vaccine. By effectually compelling individuals to be vaccinated, their right to bodily integrity is violated.”. It was also argued that Minister Hazzard “exceed the scope” of powers granted to him by the Public Health Act.
In Henry’s case, she and five others attempted to overturn the requirement for aged care workers to get the COVID-19 jab as a condition of leaving their LGA and working. They argued that refusing to be vaccinated would “exclude (them) from participating in a significant aspect of social life”, remove the “right to continue working in their chosen vocation at their current place of employment” and impede “the ability to earn a living and sustain themselves and their families as they only
presently know how.” Further, they argued that the order effectively makes employers a “private sector vaccination police force”.
To simplify the hearing, the legal grounds advanced in both cases were that the vaccine mandates hinder multiple human rights and were therefore unconstitutional. They claimed that the orders made by Health Minister Brad Hazzard had no sound legislative authority and violated the rights to bodily integrity and privacy, implemented civil conscription and represented a breach to natural justice. Concerns around the lack of sufficient long-term data on COVID-19 vaccine safety and side effects were raised. Finally, it was argued that the orders were inconsistent with the Law Enforcement Powers and Responsibilities Act (LEPRA) and should therefore be ruled invalid.
On Friday, 15 October 2021, His Honour Robert Beech-Jones J ruled that all grounds that the challenges to the NSW COVID-19 vaccination orders had failed. In other words, the State successfully defended the restrictions of the Delta Order, arguing it “can reasonably be regarded as necessary to protect public health and safety.” Furthermore, it was found that they “do not impose civil conscription”. It was also declared that the public health order was in line with legislative powers.
The barrister for the NSW Government, Jeremy Kirk SC, relied on the fact that, technically, there was no requirement for vaccination under the public health orders and even though there was some economic pressure to do so, the orders are not fundamentally designed to restrict movement. He also argued that the differential treatment to people according to their vaccination status is not arbitrary.
A similar case will be heard in the Victoria Supreme Court and trial is set for October 25. It is important to note that cases are heard and determined based on the specific legal and factual issues put to a Court by the parties to the case, meaning just because these particular NSW cases failed, it does not necessarily mean challenges in Victoria or even future challenges on different grounds in NSW will be unsuccessful.
For present purposes, what does this mean for workers in NSW? In short, the NSW Government’s publich health orders and roadmap are currently valid and will remain in force. The NSW Government has outlined the different industries and workers who are required to be vaccinated (and provide proof of vaccination) on their website. This includes: education and care workers, aged care workers and others who work in or enter aged care facilities, health care workers, airport workers, quarantine workers and transport workers. Furthermore, since hitting the 70% double vaccinated population mark in NSW, the following businesses that reopen must ensure people entering their business premises are fully vaccinated – this includes STAFF MEMBERS. This includes business such as:
· Entertainment facilities, such as theatres, cinemas, and music or concert halls
· Recreation facilities, such as stadiums, show grounds, racecourses and motor racing tracks
· Hospitality venues, such as cafes, restaurants, pubs and food courts with seating areas
· Places of public worship, such as churches, mosques, or synagogues
· Places where a wedding, funeral, or memorial service is held (except for small weddings, small funerals, or small memorial services)
· Hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours
· Indoor recreation facilities, such as gyms, indoor pools, squash club, tennis centre, bowling alley, or ice rink
· Public swimming pools in indoor areas that are used to conduct swimming lessons, lap swimming, squad training and rehabilitation activities
· Information and education facilities, such as a museum, art gallery, library or visitor information centre
· Retail premises other than critical retail premises
· Auction houses
· Betting agencies
· Gaming lounges
· Markets that do not predominantly sell food
· Properties operated by the National Trust, or the Historic Houses Trust. More details about this can be seen again on the NSW government website.
Some workplaces don’t require vaccination as they are not public facing, retail premises or are not reopening at the 70% mark – in which they should offer their employees the ability work from home, until the 1 December. This is when the unvaccinated population also has access to the above premises. You are unvaccinated employee you may be forced to take unpaid leave until the 1st of December.
If you have any concerns on the legality of any of the above restrictions or restrictions imposed on you by an employer, please contact our office today to see where you stand.