Sonya Parsons and Hudson Digby

Public Health Orders under scrutiny: The legality of ‘no jab, no work’

Sonya Parsons and Hudson Digby

18 October 2021

Employment Disputes Work Health and Safety

The legality of Public Health Orders (PHOs) and vaccination directives aimed at managing the COVID-19 pandemic is being challenged in courts across the Eastern seaboard. The cases are being closely watched, as they involve arguments about civil liberties and human rights.

In a judgment published last Friday afternoon (and watched online by over 30,000 viewers), the NSW Supreme Court found that PHOs issued by Health Minister Brad Hazzard are legitimate, and that sectors of the community can be required to be vaccinated in order to be allowed certain freedoms which are otherwise curtailed (such as attending specific worksites).

Under s 7 of the Public Health Act 2010 (NSW), the Health Minister has authority delegated from the NSW legislature to make orders as the Minister considers necessary to deal with risks to public health and its consequences. Unlike Acts or Regulations, orders are a species of subordinate legislation that are not required to be presented before Parliament to become effective.

Two cases challenged the legality of current NSW PHOs. One of the cases, brought by Natasha Henry and other plaintiffs, sought to quash two PHOs that require certain workers to have had their first COVID-19 vaccine to return to work, unless medically exempt or booked in for their first dose.

The plaintiffs relied on a raft of administrative law arguments, including that Minister Hazzard went beyond the regulation-making authority that was granted by the Public Health Act in making the PHOs. The plaintiffs also argued that the PHOs were made for a variety of improper purposes, including to compel classes of people to undergo a medical treatment and to deprive them of their ability to work. In support of this submission, the plaintiffs drew upon human rights, such as the right to bodily integrity and the right to earn a living, said to be reflected in common law and international covenants.

The other case, brought by Al-Munir Kassam and other plaintiffs, challenged one of these PHOs on largely different bases. Notably, the plaintiffs argued that the PHOs are invalid because their requirements breach the constitutional guarantee against civil conscription contained in s 51(xxiiiA) of the Australian Constitution.

They submitted that the requirement to be vaccinated to retain their employment and livelihood directly or indirectly amounted to civil conscription. The plaintiffs also argued that the Public Health Act does not authorise the Health Minister to make orders mandating a medical procedure as it would be contrary to Parliament’s intention against infringing rights, freedoms or immunities.

In the joint hearing of Henry and Kassam, Justice Beech-Jones heard cross-examination of health experts about the efficacy of various COVID-19 treatments and the legitimacy or otherwise of various studies on the effect of vaccination on COVID.

During trial, counsel for Mr Kassam submitted that NSW Health based its program solely on mass vaccination and failed to consider alternative options to address the spread of COVID-19, such as permitting certain portions of the community to develop immunity through exposure to the virus. Counsel further argued that, without an explicit conferral of power on the Minister to make a subordinate legislation with coercive effect, the PHOs violate the principal of legality, as they have the practical effect of compelling individuals to undergo a medical procedure.

Ultimately His Honour found:

  • the PHOs curtail freedom of movement, but they do not interfere with bodily integrity – as vaccination has not been mandated;
  • there is no bill of rights in Australia, and so the presumption that statutory rights are not intended to interfere with fundamental rights is only a rule of construction;
  • differential treatment of people pursuant to their vaccination status is consistent with the objects of the Public Health Act;
  • there was no unreasonableness in the making of the PHOs; and
  • the PHOs are not a form of civil conscription; and in any event the prohibition of civil conscription does not apply to laws made by the State of NSW.

Kassam and Henry mark the beginning of a series of cases against State governments challenging their mandatory vaccination programs, with a claim brought by seven police officers and 13 healthcare workers in Queensland and further challenges to the NSW PHOs both due to be heard shortly.

In Victoria, a casual relief teacher, Ms Belinda Cetnar, has commenced a legal challenge in Victoria’s Supreme Court on the grounds that the directive for vaccination is not ‘legally or ethically justified’.  Ms Cetnar has applied for an interlocutory injunction against the mandate for school and childcare staff and this challenge is set to be heard on 25 October 2021.

If you want to know more about mandatory vaccination in an employment context, please see our blog here or get in touch with our Employment, Workplace Relations and Safety Team.

Authors

Sonya Parsons | Partner | +61 2 8248 3409 | sparsons@tglaw.com.au

Hudson Digby | Associate | +61 2 8248 5829 | hdigby@tglaw.com.au

Alyssa Sealtiel | Law Graduate