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NSW COVID-19 – Challenge to Vaccine Mandate Fails in the Supreme Court

As COVID-19 vaccinations remain a topical issue, the NSW Supreme Court has recently dismissed two cases involving workers challenging the validity of the public health orders made by the NSW Government under the Public Health Act 2010 (NSW) (Public Health Act) mandating vaccinations for “authorised workers” Challen (Vaccine PHOs).

The Vaccine PHOs prevented specified persons living in an “area of concern” from working in various industries, including construction, aged care and education, unless they had been vaccinated with an approved COVID-19 vaccine. A number of other public health orders have also been introduced which require the vaccination of workers who work in specific industries, such as education, quarantine and healthcare.

These orders have been highly contentious and raise a number of workplace issues, with the case of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 placing a spotlight on the Vaccine PHOs and their legal validity.

The proceedings were brought by multiple plaintiffs working within the aged care, health, education and construction industries, who under the Vaccine PHOs, are required to be vaccinated to be able to attend work.

The plaintiffs argued that that the Vaccine PHOs were invalid on the grounds that:

  • the NSW Health Minister had not acted within the scope of his powers under the Public Health Act in making the Vaccine PHOs;

  • the Vaccine PHOs represented an unreasonable exercise of power because of their effect on fundamental rights and freedoms, with the plaintiffs claiming that the “right” or “freedom” to “bodily integrity” was being “curtailed” by the Vaccine PHOs; and

  • the manner in which the Vaccine PHOs were made was unreasonable;

  • the Vaccine PHOs were also inconsistent with a number of other laws.

The plaintiffs also argued that the Public Health Act was “not intended to modify or abrogate fundamental rights” of individuals.

However, the Supreme Court rejected these claims, finding that:

  • it had not been demonstrated the making of the Vaccine PHOs were not a genuine exercise of power by the Health Minister or that the Health Minister had made the Vaccine PHOs for an improper purpose;

  • it had not been demonstrated that the manner in which the Vaccine PHOs were made was unreasonable or that the operation and effect of the Vaccine PHOs could not reasonably be considered to be necessary to deal with the identified risk to public health and its possible consequences;

  • the Vaccine PHOs were not inconsistent with other laws as claimed by the plaintiffs;

  • so far as the “right to bodily integrity is concerned”, the Court said whilst the Vaccine PHOs curtailed the freedom of movement, which could affect a person’s ability to socialise and work, the Vaccine PHOs did not “authorise the involuntary vaccination of anyone”;

  • the curtailing of freedom of movement, including movement to and from work, were the “very type of restrictions” that the Public Health Act clearly authorised.

Justice Beech-Jones also noted that it is not the function of the Court to “determine the merits of the exercise of the power by the Minister to make the impugned orders” nor was it its function to “conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines".

Rather, the Court’s only function was to determine the legal validity of Vaccine PHOs and whether the Health Minister had acted reasonably in deeming the Vaccine PHOs necessary to deal with risks to public health.

The proceedings were ultimately dismissed and consequently the Vaccine PHOs remain valid and enforceable.

However, this is still a space to watch with legal challenges to mandatory vaccination orders still occurring. At present, there is another case before the NSW Supreme Court which has been commenced by Mr John Edward Larter, a paramedic and deputy mayor in the Snowy Valleys Council, challenging the public health order requiring healthcare workers to be fully vaccinated by 30 November 2021. The matter is next listed on 4-5 November 2021.

For further information or advice for your business, our employment law team is available to assist and can help you with navigating potential COVID-19 vaccination implications for your business. Please contact Lisa Berton or Nick Noonan with any queries.

This information is general in nature and based on the facts and circumstances known as at the date of publication. This information may need to change based on legislative, governmental and other changes or developments which occur with respect to the COVID-19 pandemic. If you require further information or specific advice in regards to your business, please let us know.


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