The Supreme Court of New South Wales has upheld a number of public health orders that require employees of particular industries to be vaccinated against COVID-19, dismissing challenges made by a number of health, aged care, education and construction workers in the State.
The spread of the Delta variant of COVID-19 caused lengthy lockdowns to be imposed across NSW, and the message conveyed by the NSW Government was that the only way out of lockdown would be through the mass vaccination of the eligible population.
In addition to announcing that only fully vaccinated people would be able to enjoy additional freedoms when the state reopened, Health Minister Brad Hazard (“the Minister”) passed a number of public health orders (“the Orders”) which imposed requirements on workers in the health, aged care, education and construction industries, and additionally on workers that live in a Local Government Area (“LGA”) of concern and leave that LGA to perform authorised work, to be vaccinated against COVID-19 within various timeframes. The Orders require employers of such workers to obtain evidence of their workforce’s vaccination status, and prevent employers from offering work to employees that do not comply with the Orders. The Minister made these Orders under section 7(2) of the Public Health Act 2010 (“the PHA”), which empowers the Minister to make such directions to reduce or remove public health risks and to control movement to and from areas subject to public health risks.
A total of ten workers across the health, aged care, education and construction industries, who had made the choice not to get vaccinated, challenged the validity of the Orders in the Supreme Court of New South Wales (“the Court”). The challenges were heard together, and the Court published its decision in the single judgment of Kassam v Hazzard; Henry v Hazzard  NSWSC 1320 (“the Decision”) on 15 October 2021.
In the context of the 107-day lockdown imposed on the Greater Sydney Area and countless regional lockdowns across NSW, the Minister implemented a number of public health orders under the PHA, including the following:
- Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) – which provided that an authorised worker that lived in an LGA of concern must have received at least one dose of a COVID-19 vaccine by 30 August 2021, and that construction workers must have received at least one dose of a COVID-19 vaccine by 23 September 2021;
- Public Health (COVID–19 Care Services) Order 2021– which provides that aged care workers must have received at least one dose of a COVID-19 vaccine by 17 September 2021, and be fully vaccinated by 31 October 2021;
- Public Health (COVID–19 Vaccination of Education and Care Workers) Order 2021 (– which provides that education workers must be fully vaccinated against COVID-19 by 8 November 2021; and
- Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 – which provides that healthcare workers must have received at least one dose of a COVID-19 vaccine by 30 September 2021, and be fully vaccinated by 30 November 2021.
While the first of these Orders has now been repealed due to the Government lifting additional restrictions on LGAs of concern, the remainder are still in effect. Each of the Orders require that employers in these industries must collect and maintain a record of the vaccination status of their employees.
Section 10 of the PHA prescribes that it is an offence to fail to comply with a public health order; and penalties for non-compliance include fines of up to $11,000 or six months’ imprisonment for individuals or $55,000 fines for corporations, plus additional fines for repeated non-compliance. This means that both employees and employers that do not comply with the Orders may face punishment.
The Plaintiffs’ Arguments
The plaintiffs that disputed the Orders made a number of arguments as to why they thought the Orders were invalid and should be quashed by the Court. The reasons put forward by the plaintiffs were as follows:
- The Minister did not undertake any real exercise of power in making the Orders;
- The Orders are an unreasonable exercise of the power of section 7 of the PHA because of the effect on the right to bodily autonomy of workers that did not wish to be vaccinated;
- The Orders confer powers on police officers that are inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW);
- The Orders, and section 7 of the PHA, must be rendered invalid as they are inconsistent with section 51(xxxiiiA) of the Constitution (which prevents states from creating laws that have the effect of imposing a civil conscription on its citizens);
- The Minister failed to have regard to various relevant considerations, and failed to afford the plaintiffs natural justice when introducing the Orders; and/or
- The Orders are inconsistent with the Australian Immunisation Register Act 2015 (Cth) and are therefore invalid under section 109 of the Constitution (which prescribes that any State law which is inconsistent with Federal law shall be invalid).
The plaintiff’s argument was heavily reliant on questioning the appropriateness of vaccinations, and reflected their general objections to receiving a COVID-19 vaccine. Principally, the plaintiffs contended that the Orders interfere with a person’s right to bodily integrity, and relied on evidence that supported alternative treatments, questioned the efficacy of COVID-19 vaccines, downplayed the severity of COVID-19, and asserted that COVID-19 vaccines are “experimental”.
The Court rejected each argument put forward by the plaintiffs and dismissed the Proceedings. Justice Beech-Jones made the following findings with respect to the plaintiffs’ arguments:
- Section 7(2) of the PHA clearly authorises significant limitations on freedom of movement in the context of a public health risk, and the Minister acted within the powers vested by this section;
- The Orders do not violate any right to bodily integrity as they do not authorise that anyone be involuntarily vaccinated; rather, they restrict a person’s freedom of movement to varying levels dependent on whether that person is vaccinated or unvaccinated;
- The powers vested on police officers with respect to enforcing the Orders are not inconsistent with other State legislation;
- The Orders are not inconsistent with any provision of the Constitution;
- No duty to afford procedural fairness arose in the circumstances that the Orders were made, as the Orders affect a very wide class of persons; and
- The Orders are not inconsistent with any provision of Federal legislation.
His Honour further noted that it was not the role of the Court to “conclusively resolve legitimate debates concerning the appropriate treatments for COVID-19 or the effectiveness of the vaccines”, and that such considerations are “matters of merits, policy and fact for the decision-maker” – in this case the Minister. As such, the plaintiffs’ evidence that generally questioned the efficacy and utility of COVID-19 vaccines was of little relevance to the Decision.
A full copy of the Decision can be accessed here.
Where to from here?
The immediate significance of the Decision is that employers and employees in the industries covered by the Orders or health orders of similar nature, must continue to abide by the Orders and must urgently ensure, if they have not already, that they are complying with their obligations under the Orders. As the deadlines for workers to provide proof of their first vaccination has already passed, employers that are subject to the Orders are prohibited from offering work to unvaccinated employees unless they have a legitimate medical exemption from receiving a COVID-19 vaccine.
Similar public health orders have been introduced in other states and territories, and the respective Supreme Courts of Victoria and Queensland are both currently hearing similar actions brought by individuals in those states. These courts are not bound to follow the NSW Decision; although they may find Justice Beech-Jones’ reasoning to be persuasive with respect to the argument before them.
Previously, we have considered the circumstances in which an employer can implement a mandatory vaccination policy of its own accord, where a specific law does not cover their industry. This decision may give some comfort to employers that mandatory vaccination policies are enforceable. However, we note that as the decision was purely based on the powers of the Minister to ensure the health and safety of NSW citizens it should not be seen as a judicial green light to mandatory vaccination. We have created COVID-19 vaccination policies for a number of our clients, and are ready and able to assist any employers who wish to roll out their own bespoke policy. If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.