Government Power to Mandate Vaccinations Upheld by Supreme Court

A series of challenges to mandatory vaccination requirements has been dismissed on all grounds by the New South Wales Supreme Court.

Legal Challenge

The legal challenges, lodged on behalf of ‘essential workers’ in the construction, health and aged care and education industries, sought to challenge the validity of the NSW public health orders that restrict the activities of people who have not been vaccinated against COVID-19, including their ability to work in certain industries.

In the proceedings brought against NSW Health Minister Brad Hazzard, Chief Medical Officer Dr Kerry Chant, and the State of NSW, the plaintiffs argued that they have an “informed choice to refuse to be vaccinated” and sought for the public health orders requiring them to be vaccinated to be declared invalid.

The Supreme Court Decision

Delivering his judgment on the matter on Friday 15 October 2021, Justice Beech-Jones noted it was not the court’s function to “conclusively resolve legitimate debates concerning the appropriate treatments for COVID-19 or the effectiveness of the vaccines”.

Those are “matters of merits, policy and fact for the decision-maker, not the court,” His Honour said.

Rather, it was the court’s function only to determine the legality of orders made under the Public Health Act 2010 (NSW) (the Act).

Human Rights

Justice Beech-Jones noted that a central tenet of the plaintiffs’ case was their “right to bodily integrity”. However, he held that the public health orders did not, strictly, require the plaintiffs to be vaccinated, which remained a matter for their choice. As such, while recognising the plaintiffs do have a right to bodily autonomy, His Honour found the relevant public health orders did not contravene that right.

Rather, His Honour considered, the relevant public health orders did “curtail freedom of movement which in turn affects a person’s ability to work (and socialise)”. However, the court held that the Act clearly authorises the curtailing of the free movement of people, including their movements to and at work. The court determined that, because the act specifically contemplated that orders could curtail free movement, orders could not be invalid for doing precisely that.

Future Steps

The lawyers for the plaintiff have indicated that an appeal is likely to be filed. There also remain unresolved challenges to the public health orders, on other unrelated grounds, including the proportionality of the requirements of the public health orders to the ongoing risk of Covid-19. Notwithstanding these additional challenges, the recent upholds the legality of the State government’s use of Public Health Orders to make COVID-19 vaccinations mandatory for certain categories of workers, and employers will need to be aware of the requirements which apply to their workers moving forward.

If you have any further questions about mandatory vaccination in the workplace please do not hesitate to contact Nick Stevens, Luke Maroney, and Daphne Klianis.

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