The court determined that the mandate was not unreasonable
The NSW Supreme Court has upheld the mandate on COVID-19 vaccines for essential workers.
In a decision that went out on Friday, Judge Robert Beech-Jones dismissed two suits filed against NSW Health and Medical Research Minister Bradley Ronald Hazzard in relation to the issuance of Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Delta Order). The suits had argued that the order was unreasonable, restricted social and occupational freedoms and went beyond the scope of the powers accorded to Hazzard in his role.
However, the court took the NSW government’s side on the matter, pointing out that the Delta Order was not unreasonable in that restrictions to freedoms were not made on arbitrary grounds.
“The differential treatment of people according to their vaccination status is not arbitrary. Instead, it applies a discrimen, namely vaccination status, that on the evidence and the approach taken by the minister is very much consistent with the objects of the Public Health Act,” the court wrote in a judgment summary. “Any consideration of the unreasonableness of an order made under section 7(2) is to be undertaken by reference to the objects of the Public Health Act which are exclusively directed to public safety.”
The court said even though the order interfered with certain freedoms, it did not infringe on the right to bodily integrity since the mandate did not authorise involuntary vaccinations.
“The court found that 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. Hence it was found that the principle of legality does not justify the reading down of section 7(2) of the Public Health Act to preclude limitations on that freedom,” the court wrote.
In addition, the court determined that Hazzard did not overstep his authority by issuing the Delta Order.
“It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power by the minister, that the making of the impugned orders by the minister involved any failure to ask the right question or any failure to take into account relevant considerations much less that it was undertaken for an improper purpose. The minister was not obliged to afford the plaintiffs or anyone else procedural fairness in making the impugned orders,” the court wrote.
The order, the court pointed out, was not inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Australian Immunisation Register Act 2015 (Cth).
The court clarified that it wasn’t in the position to determine the merits of Hazzard’s exercise of power in putting the Delta Order into force, or to decide the adequate response to the COVID-19 Delta variant outbreak.
“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 especially their capacity to inhibit the spread of the disease. The court observed that these are all matters of merits, policy and fact for the decision maker and not the court,” the court wrote. “Instead, the court noted that its 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 suits dismissed were Kassam v Hazzard and Henry v Hazzard. Beech-Jones also issued orders with regard to addressing costs.
According to News.com.au, the judge also warned people against contacting him after anti-vax groups on social media encouraged the flooding of Beech-Jones’ chambers with emails and phone calls.
