Kassam; Henry v Hazzard has been dismissed on all challenges, with the court ruling in favour of the NSW Chief Health Officer.
Those working in areas and industries issued with mandatory vaccination orders will now have to comply with vaccine directions or lose their employment.
“One of the main grounds of challenges in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who choose to not be vaccinated – especially their freedom or right to their own bodily integrity,” said the New South Wales Supreme Court judge during the dismissal.
The verdict went on to explain that, “When all is said and done, the proper analysis is that the impugned orders curtailed freedom of movement, which in turn affects a person’s ability to work and socialise. So far as the right to bodily integrity is concerned, it is not violated as the impugned orders did not authorise the involuntary vaccination of anyone. [...] Curtailing the free movement of persons, including their movement to and at work, are the very type of restrictions that the Public Health Act clearly authorises.
“Orders and directions made under the Public Health Act that interfere with freedom of movement, but differentiate between individuals on arbitrary grounds unrelated to the relevant risk to public health such as on the basis of race, gender, or the mere holding of a political opinion, would be at severe risk of being held as invalid and unreasonable.
“However, the differential treatment of people according to their vaccination status is not arbitrary. Instead, it applies a discriminate, namely vaccination status, and on the evidence and the approach taken by the minister, is very much consistent to the objects of the Public Health Act.”
The case sought to overturn and invalidate Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Delta Order) issued by NSW Chief Health Officer Brad Hazzard.
Hazzard originally created the public health order on the grounds that it was reasonable to avert risk to public health under Section 7 of the Public Health Act 2010. The implementation of this health order has resulted in workers in New South Wales being forced to choose between being vaccinated by the state-given deadline, or losing their jobs.
The health orders were challenged by several workers including one in construction, teaching, and healthcare who have all been required to receive a Covid19 vaccination.
The plaintiffs argued that the health direction was unreasonable, with its attached terms invalidating consent and effectively compelling individuals to submit to vaccination under coercive directions. It was further argued that Brad Hazzard had exceeded the scope of his powers granted under the Public Health Act and that these health orders interfered with fundamental rights and freedoms.
“In the absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or aggregate fundamental rights. However, this country does not have a bill of rights and thus as important as the principle of legality is, it is only a rule of construction. As such, the assistance to be gained from the presumption will vary with the context in which it is applied.
“Leaving aside the constitutional challenge raised by the plaintiffs in the Kassam proceedings, in considering the grounds of challenge raised in both proceedings, it is important to note that it is not the court’s function to determine the merits of the exercise of the powers by the minister to make the impugned orders – much less for the court to choose between plausible responses to the risk to public health posed by the Delta variant. It is also not the court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected, or the effectiveness of Covid19 vaccines – especially their capacity to inhibit the spread of the disease. These are all matters of merits, policy and fact for the decision maker, and not the court.
“Instead the court’s only function is to determine the legal validity of the impugned orders, which includes considering whether it has been shown that no minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences.”