The COVID-19 pandemic has seen restrictions and obligations imposed on the entire Australian community. Many of the steps taken to control the pandemic are unprecedented within Australian living memory. One response to the pandemic has been to require people in some professions to be vaccinated against COVID if they are to continue in their role. This article will review legal challenges to these directions.
Work health and safety
A person conducting a business or undertaking (a PCBU) is required to take reasonable steps to ensure that workers (including volunteers) are not exposed to unnecessary risks to health and safety due to their work. Further there is an obligation to take reasonable steps to ensure that the work does not expose others, such as clients and customers, to a risk to their health and safety. To meet those obligations, a PCBU may require employees or volunteers to get vaccinated.
Before implementing WHS procedures and policies or changing employment conditions, a PCBU must consult with affected workers (ss 47 and 49). It was this failure to consult, rather than any fundamental rule against vaccine mandates, that led to a ruling that a mandate imposed by BHP was not lawful (CFMEU v Mt Arthur Coal [2021] FWCFB 6059).
Further, a PCBU that requires all employees to have a vaccine will have to demonstrate why, whether alone or with other control measures, that was a ‘reasonably practicable’ step to protect either the workers, or those affected by the work, from the risk of COVID-19. Deputy President Dean of the Fair Work Commission (in dissent) said (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015. [138]):
It is very clear that a range of control measures will need to be implemented by employers to meet their health and safety obligations… [C]ontrols (based on a proper assessment of the risk in a particular workplace) might include appropriate air ventilation and filters, personal protective equipment including masks, staggered meal breaks, increased use of outdoor areas etc. The simple act of requiring people to stay at home if unwell and symptomatic will no doubt have a significant impact on the spread of all coronaviruses (whether a cold, flu or COVID).
Identifying that a vaccine is a necessary part of the reasonable control measures will be easier in some workplaces compared to others. Paramedics for example are exposed to people in uncontrolled environments. People cannot be asked to refrain from calling paramedics if they are unwell as that if the very time, they need paramedics. Paramedics cannot ‘socially isolate’ from their patients. The use of PPE may reduce risk of infection, but that risk is further reduced with vaccination. Further paramedics who are not vaccinated may pose a risk to vulnerable patients. As Adamson J said in Larter’s case (Larter v Hazzard (No 2) [2021] NSWSC 1451, [83], discussed in more detail below):
… the effect of the orders was to remove the increased risk of transmission posed by unvaccinated NSW Health workers. It would be of no comfort to the vulnerable patient who is infected by the unvaccinated health care worker to be told that he or she was unlucky by being in the wrong ward at the wrong time because most health care workers had been vaccinated.
Similar arguments could also be made for rescue operators who must also operate in close contact with patients. Whether those arguments apply to fire fighters and others depends on all the circumstances. What is clear is that relying on the Work Health and Safety Act does not give an easy answer to the question of whether employers can or must require their workers to be vaccinated.
Public Health Orders
The presence of public health orders changes the issue. Where an order has been made under relevant public health legislation, or as has happened in some cases, emergency management legislation, then those operating in that environment have no choice but to comply. To draw a parallel an employer cannot employ someone to drive an emergency vehicle if they do not have a licence. The person may be a competent and safe driver but the obligation to have a licence is imposed by law and the employer has no choice but to comply.
Kimber v Sapphire Coast Community Aged Care Ltd involved a nurse who did not want to get an influenza vaccination. On 24 March 2020, the NSW Minister for Health made a Public HealthOrder which said that an employee of a residential aged care facility must not enter the facility if they did not “have an up-to-date vaccination against influenza, if the vaccination is available to the person” (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [6]). Sapphire Coast Community Aged Care wrote to Ms Kimber and advised her that because of her refusal to get vaccinated she was ‘unable to perform the inherent requirements’ of her role and so she was dismissed. The majority of the Full Bench of the Fair Work Commission upheld the finding that her dismissal was not ‘unfair’. They said (Ibid [54] (Vice President Hatcher and Commissioner Riordan):
Ms Kimber was at the time of her dismissal legally prohibited from working at Imlay House. That plainly made the continuation of her employment untenable. In circumstances where Ms Kimber was given ample opportunity by her employer to get vaccinated or demonstrate that she had a medical contraindication, no other consideration could operate to render her dismissal unfair.
Where there is a valid public health order, an employer has no choice to comply and if that order requires that a certain class of workers are vaccinated then the employer cannot continue their employment if they refuse to get the vaccination. But are the public health orders lawful? That was the question in Kassam & Henry v Hazzard & Ors and again in Larter v Hazzard, a supreme court case involving a NSW paramedic.
In Kassam’s case (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320)Justice Beech-Jones went through arguments regarding the scope of the powers vested in the Minister for Health and whether the orders made were unconstitutional or beyond the power of the Minister. This paper cannot deal with each step in His Honour’s reasoning but notes that all the objections were dismissed. His Honour’s reasoning was confirmed by the NSW Court of Appeal (Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299). In response to the claim that the various orders were a vaccine mandate, His Honour said (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [9]):
… the proper analysis is that the impugned orders curtail 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 do not authorise the involuntary vaccination of anyone.
In the Court of Appeal, Bell P said (Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299, [95]-[96]):
None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated…
The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area … or to enter a particular place…
Leeming JA said “… “free choice” is a label which disguises the fact that many choices commonly made by people are influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour” (Ibid [170]). Or, as Senator Jaccqui Lambie said “You have freedom to make a choice but, if you make a choice, those choices have consequences” (Commonwealth, Parliamentary Debates, Senate, 22 November 2021, 10 (Jacquie Lambie).
John Larter was a NSW Paramedic who chooses not to have the COVID-19 vaccination. He argued that the orders went too far. In making that argument he relied on the principle of legality – a principle of statutory interpretation that says a statute should not be held to interfere with fundamental rights and freedoms unless that intention is expressed by clear language. Her Honour Justice Adamson said (Larter v Hazard (No 2) [2021] NSWSC 1451, [80]):
The object of s 7 [of the Public Health Act 2010 (NSW)] is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions…’
The Parliament had provided that “[t]he protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this [Public Health] Act” (Ibid [83]). In doing so the Parliament had given the Minister an intentionally broad power. It is not the role of the court to assess each of the options and make some determination as to which decision the minister should have made. As Beech-Jones J said in Kassam (Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [7]):
… [I]t is not the Court’s function to determine the merits of the exercise of the power by the Minister … much less for the Court to choose between plausible responses to the risks to the 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 COVID-19 vaccines … 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.
The Minister might choose to require certain workers to be vaccinated or he or she may take another of many options. In Larter’s case, Justice Adamson said (Larter v Hazzard (No 2) [2021] NSWSC 1451, [86]):
… The range of decisions reasonably open to the Minister is, in this context, wide. As long as the decision sought to be impugned falls within the ambit of those which are reasonably open, this Court has no power to set it aside on the grounds of unreasonableness. Each of the decisions between available alternatives are policy questions which Parliament has decided are to be matters for the Minister’s consideration and decision.
Her honour dismissed all the challenges to the relevant order requiring Mr Larter and other health care workers to be vaccinated.
Conclusion
I understand that both Larter and Kassam have sought leave to appeal to the High Court of Australia. Until the High Court rules on either matter the conclusion to be drawn is that where the Minister or Chief Health Officer has exercised a power under relevant Public Health or emergency management legislation to issue an order or direction requiring certain workers to be vaccinated then the employer has no choice but to comply. Workers do retain a choice, there have been no orders that ‘authorise the involuntary vaccination of anyone’. Workers have a choice, but choices often come with a cost. In this case a worker in an area subject to an order must choose between the vaccine or their job. That is a hard choice, but it is a choice.
For readers of this blog these decisions are relevant first (and obviously) because they may be subject to a similar direction and these decisions explain the impact of those directions. On a different note, these decisions suggest that there is a wide discretion given to those empowered by legislation to make emergency decisions. Where in a flood or fire a duly authorised emergency officer makes a direction that impacts upon liberties, such as decision to order an evacuation or to restrict access to an area, or to cut off fuel or electricity, they too will be judged – not on the merits of the decision – but on whether they were legally empowered to make it. Courts can be expected to leave decision making to those charged with the lawful authority to make those decisions recognising that in an emergency, however caused, decisions must be made and some of those decisions will impact upon what we perceive to be our fundamental rights and freedoms. It is in recognition of that need that legislation like public health and emergency management legislation has been passed.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
Firstly it’s great to have the Blog back and kudos to all those (esp. ACP) who are providing support.
Michael, you make the comment:
“Where in a flood or fire a duly authorised emergency officer makes a direction that impacts upon liberties, such as decision to order an evacuation or to restrict access to an area, or to cut off fuel or electricity, they too will be judged – not on the merits of the decision – but on whether they were legally empowered to make it.”
I wonder whether (perhaps in the future) there is some commentary on the role of Royal Commissions, Parliamentary Enquiries, the Coroner or other post-event reviews which do seek to make determinations on the merits of the decisions made by those on the ground or in managerial roles?
One which comes to mind is the Thunderstorm Asthma, where I understand that the Coroner was critical of AV’s decision not to tell patients there were ambulance delays, and recommended that in future such information should be provided to assist patient’s made decisions on whether to wait or make their own way to hospital. Perhaps not a great example but I think that there is enough evidence over the course of a number disasters to show others do review the merits of decisions, albeit I recognise it’s not the court’s role.
It is true that “Royal Commissions, Parliamentary Enquiries, the Coroner or other post-event reviews” will look to review decisions on their merits (see also for example, “Tower lockdown breached human rights, Ombudsman finds” Victorian Ombudsman, 17 Dec 2020). As noted, however this is not the court’s role and courts and these sorts of inquiries are very different places (although they may look and feel the same) doing different jobs. A post event inquiry is we hope looking to identify how well an event was managed – from prediction to preparation, response and perhaps recovery – so there will be opportunities, with hindsight, to identify how decisions were made and whether there were good and effective processes and what might be learned from the process. It is also up to these sorts of inquiries, within their terms of reference or governing legislation, to determine what they will look at. They are also not bound by the rules of evidence so can take into account matters that a court could not. The most important difference is that these inquiries are necessarily backward looking, and they do not have the power to adjust legal rights or determine legal responsibilities.
Courts will review decisions if someone brings an action, after the event, usually alleging negligence. Even there, courts will give wide latitude to the authorised decision maker. In a negligence action a court has to try and judge the matter prospectively, ie from the decision maker’s point of view when they made the decision, not after the event when the outcome of the decision is known. A poor outcome does not mean a poor or negligent decision. Again a decision will not be negligent unless it was so negligent that no-one in the same position would have thought the decision was an appropriate decision in the circumstances (see for example Civil Liability Act 2002 (NSW) ss 40-46; see also Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 discussed in the post “ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires” (November 3, 2014)).
This post was about the process of judicial review, where a person asks a court to review a decision by an authorised decision maker and where the court has the power to set aside that decision or make a different decision. Here the separation of powers between the executive arm of government (ministers and public servants) and the judicial arm of government (courts and judges) is essential. The Parliament, via legislation, authorises the executive to make decisions so it is not the role of the court to make decisions that the Parliament has said others are to make. The court’s role is to judge whether the decision maker has complied with the legislation and has not made an administrative error (eg by acting beyond their jurisdiction or taking into account something they were not allowed to consider, or failing to taking into account something they were required to consider). If they have made a decision open to them, the court will not intervene even if others think the decision maker has acted beyond power or made a poor decision.
The fact that government has the authority to coerce people to have a medical procedure that is only to the benefit of the individual (there is no protection for the wider community), is an outrage to democratic freedom.
That is of course an issue of fact. You, Pete, may think there is no protection for the wider community but clearly the chief health officers have a different view. And that is the point of the post. The courts won’t resolve those debates, the question is whether the Minister or chief health officer or other authorised decision maker holds the necessary belief to authorise their action. The fact that others take a different view of the facts and, more importantly, the fact that there are many ‘reasonable’ responses to any crisis does not determine the matter. The question is were the conditions precedent for the decision maker’s action (eg that they held the necessary belief) and was their action one of the many reasonable responses to the situation as they perceived it. That others would have taken an alternative view is not the issue.
exactly. The constitution seems to be ignored. Particularly 51:23a which was added by referendum in 1946. Then there’s the Federal biosecurity act 2015 which was created for biosecurity emergencies. Also forgotten is the fact that the shots are not vaccines by definition of a vaccine nor are they approved other than emergency use only. Which is criminal when there are available numerous proven remedies for all stages of covid 19. Furthermore, it has been now established that gene therapy shots do not prevent covid nor do they reduce the effects of covid. The majorities in ICU are double dosed. A safe work place? There is no safety in the covid shots. Claiming they are is false, disinformation and misleading. A safe workplace also requires SDSs for all chemicals and products. None are available for any covid shots. Additionally it has been found that zero medical evidence and data has been presented for the decisions made in all states. Refer to the SA MP who has exposed this
The Constitution says that the Commonwealth may make laws about the payment of medical benefits but not to authorise civil conscription of the medical profession. The various mandates do not infringe s 51(xxiiia) (see Kassim). The Biosecurity Act does not purport to ‘cover the field’ for biosecurity emergencies; state public health laws also operate. According to the Centres for Disease Control and Prevention a vaccine is “A preparation that is used to stimulate the body’s immune response against diseases. Vaccines are usually administered through needle injections, but some can be administered by mouth or sprayed into the nose.” The COVID vaccines are vaccines even if they do not prevent the disease but reduce the potential impact. The majority of people in ICU are double dosed because the majority of people are double dosed – see https://www.abc.net.au/news/2022-02-03/how-to-interpret-omicron-covid-vaccination-rates-in-icu-hospital/100800114. As for the science, we can leave that to the scientists.
Thanks and respect to you Michael for airing a highly topical issue right now. ‘choosing between voluntarily vaccines or your job’ is the finding of the recent court cases, but how does this comply with Australian Privacy Principles guidelines on consent for disclosing your medical records? It seems to fail on all three factors and losing your family’s livelihood could be considered pressure, at least.
‘Consent is voluntary if an individual has a genuine opportunity to provide or withhold consent. Consent is not voluntary where there is duress, coercion or pressure..
Factors relevant to deciding whether consent is voluntary include:
– the alternatives open to the individual, if they choose not to consent
– the seriousness of any consequences if an individual refuses to consent
– any adverse consequences for family members or associates of the individual if the individual refuses to consent ‘
https://www.oaic.gov.au/privacy/australian-privacy-principles-guidelines/chapter-b-key-concepts#consent
The privacy principles apply to agencies (generally government agencies) and governs the way they must deal with information. In the case of COVID restrictions and say the need to show proof of vaccination before entering certain premises, that is not a breach of the privacy principles. Assume that such restrictions are still in place and for example you cannot enter a residential aged care facility without proof of vaccination. Your work requires you to enter an facility so if you do not reveal your status, you cannot do your job and there being no alternative job for you, you will lose your job.
Your employer asks to see your COVID vaccination certificate. It would be a breach of privacy principles if they asked your doctor about your vaccination status but that is not what they are doing. They are asking you; and you can choose to give that information or not.
Your decision should be informed. The relevant information is that if you do not show the certificate, you lose your job. That is a consequence of your choice, and you need to know that so you can make an informed choice. There is a fine line between whether ‘consequences’ become overbearing. A critical part of that line is whether the consequences may be lawfully imposed.
Police can issue a caution if they think there is sufficient evidence to issue a fine. They may say to a person ‘show me some ID and I’ll issue a caution but if you do not, I am going to arrest you’ (which implies and authorises the use of force). That conduct would be lawful (see Fines Act 1996 (NSW) s 19A and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99) so one could not say that the decision to hand over ID was made under duress. It was an informed decision, “I have a choice but if I choose not to give my ID, I’m going to be arrested.” If the threat was unlawful – “hand over your wallet or I’ll beat you” then there is no real consent.
If the employer has a lawful reason to ask for medical information (eg that they have made a reasonable and risk informed decision under WHS laws or they are required to do so to comply with a valid law or order) then telling an employee “If you don’t share this information, you cannot have your job” is giving information, not subjecting the person to duress (see also “Informing patients before acting under the Mental Health Act 2007 (NSW) s 20” (April 11, 2021).