Episode 44 7 October 2021
Legal challenges to public health orders in Australia
Principal lawyer, Geraldine Grace | Host, New Earth lawyer podcast
I discuss the various legal challenges to public health directions that are underway in Australia, in New South Wales, Victoria and Queensland. I also provide some information to clarify the inaccurate claim that the Australian Constitution contains a provision banning mandatory vaccination.
I am an experienced corporate lawyer, using the law to build purposeful, human-centred, Earth-friendly legal enterprises & ecosystems, for happier humans and a better planet.
I am also the founder and host of the New Earth lawyer podcast.
I am based in Melbourne, Australia, and an expert in enterprise governance, purpose, business & human rights and modern slavery. I established my own law practice Geraldine Grace in 2020, focussing on enterprises seeking purpose, and actors in the impact economy.
I am a legal advisor to not-for-profits with a national reach in impact and purpose. I work with Boards to optimise performance and help enterprises embed purpose and integrate human rights into their business.
I have over 20 years' experience practising law in Australia, the UK, Hong Kong and mainland China. I have worked for large global and Australian law firms and was a partner of a top-tier Australian law firm for several years.
[1:10] I discuss the New South Wales cases, involving multiple plaintiffs such as a construction worker, paramedic and teacher, against orders requiring them to be vaccinated to attend work. The trial concluded this week and the court is now preparing its judgment.
[4:10] In Victoria, a teacher and her husband have challenged the public health orders. That case is due for trial on 25 October 2021.
[4:59] The extension of Victorian public health orders from healthcare, aged-care, construction and education to other workers was announced by the Premier but not released as orders yet.
[5:43] In Queensland, 7 police officers have launched a case against the Chief Commissioner of Police. That case is due to be heard week of 18 October 2021.
[6:17] There are claims circulating that mandatory vaccination is unconstitutional in Australia. This is based on a misunderstanding of section 51 (xxiiia) of the Constitution.
[8:12] That section of the Constitution was inserted to allow the Commonwealth government to implement the Pharmaceutical Benefits Scheme.
[9:13] The High Court interpreted the section to protect doctors from conscription, not the public.
[10:40] Fear is as bad as divisiveness. We all have a choice and we need to trust we will be able to deal with whatever comes our way.
Kassam v Hazzard; Henry v Hazzard Proceedings Number: 2021/00249601 in the New South Wales Supreme Court
Cetnar v State of Victoria from the Supreme Court of Victoria website.
Media article in The Age newspaper on the Cetnar case
Media article from the ABC website on the challenge against the Queensland Police Commissioner.
Explanation from the Medical Journal of Australia regarding the origins of the Pharmaceutical Benefits Scheme.
British Medical Association v Commonwealth  HCA 44; (1949) 79 CLR 201, the High Court interpretation of section 51 (xiiiA).
Hi, everyone. Welcome to the New Earth lawyer podcast. My name is Geraldine Johns-Putra. I am your host. I'm a lawyer based in Melbourne, Australia. I'm speaking to you from Boonwurrung country. And so I'd like to pay my respects to their Elders past, present and emerging.
Today I wanted to give you a bit of an update. So much is happening actually, I'm getting emails, text messages, virtually every day, asking me what people's rights are with respect to public health orders. So I wanted to give an update on various cases that are ongoing with respect to challenging public health orders, not employment cases, but public health order challenges. So these are government orders being made, usually by the Chief Health Officer of a particular state.
I'm going to start with New South Wales because there's been quite a lot of media. I wanted to talk about a case there by multiple plaintiffs, a construction worker, high school special ed teacher, aged care worker and a paramedic amongst them. The cases are being heard together, so they're known as Kassam v Hazzard and Henry v Hazzard. The New South Wales Supreme Court actually has been hearing the case. The barrister for the government actually argued that the public health orders that require workers in certain sectors to be vaccinated to attend work, he argued that it wasn't a vaccine mandate, but it was, actually if the workers took advantage of being vaccinated, then they would be exempted from restrictions requiring them to stay at home, they'd be exempted from movement orders if they got vaccinated, and therefore they could then go to work. What that says is that it's not actually a 'no jab, no job' argument that the government is running, they're basically saying, if you don't get jabbed, then you can't 'leave your house to go to work'. Which makes it interesting, because it then means that in an employment context, does it mean a private employer can then order their workers to be vaccinated because of the government requirements that people have to be vaccinated if they attend certain workplaces. And if they don't, if their workers don't get vaccinated, then can they be terminated or must they only be required to either do their work at home, or if they can't do the work at home be suspended on leave without pay for the duration until the movement orders are lifted? So it does cause some uncertainty for employers. Can they terminate, for private employers, can they terminate workers who are unvaccinated? Or do they have to wait, let's just order them to work, either work from home or have leave without pay, and wait until the restrictions on movement are lifted? So that's actually going to be a very interesting case to to see the outcome of, because, well, closing submissions were heard Wednesday, 6th October, so that's just yesterday, and the court has reserved judgment. So hopefully, everything has been expedited in that case, so hopefully in a matter of weeks, or maybe even less, we we might hear what the decision is from the New South Wales Supreme Court.
In Victoria, a teacher commenced in action challenging the Victorian government's public health order. Now that order imposes obligations on employers again to ensure that those on site are vaccinated. And it was recently extended to include operators of education facilities and Ms Belinda Cetnar, I hope I'm saying that right, she's a casual relief teacher and her husband Jack, who's a horticulturist at a school, they filed a lawsuit against the Victorian Government claiming they've been adversely affected because they are unvaccinated and they can't attend work. So that case has been listed for trial in the Victorian Supreme Court on October 25.
Separately the government announced, the Premier actually announced on Friday the 1st of October that the direction to be vaccinated to attend work would be extended to all workers on an authorised worker list. And that list is long and it includes many professions like journalists, lawyers, personal trainers, as of today, which is Thursday, the 7th of October, those public health orders haven't been released, or the existing public health orders haven't been extended to this full list of authorised workers. So there isn't actually anything lawful right now to reflect this requirement that the Premier has had announced.
In Queensland, the police commissioner has been challenged by seven police staff. That's with respect to a direction she made for all police staff to be vaccinated of this suspension and possible dismissal. That challenge is being brought in the Queensland Supreme Court. There was a directions hearing last week for that and the matter is expected to be heard in the week of October 18. There's a separate challenge apparently from Queensland health care workers. Okay, so that's Queensland.
At the Federal level, there have been claims circulating on the internet, I've been asked about it, that the Australian Constitution provides that mandatory vaccinations are unconstitutional, or that the High Court of Australia has even previously held that's the case. That's false. The claim that there's a provision in our Constitution that bans or outlaws mandatory vaccination, that's based on on a provision, that's section 51(xxiiiA) of the Constitution. Now that section gives our Commonwealth Parliament the power to make laws with respect to the provision of "maternity allowances, widows, pensions, child and downwind unemployment, pharmaceutical sickness and hospital benefits, medical and dental services, but not so as to authorise any form of civil conscription. benefits to students and family allowances". So that's the full power that's given to the Commonwealth Parliament. So the claim is that the words "but not so as to authorise any form of civil conscription" after the words "medical and dental services" means that vaccines cannot be mandated. Now, this is actually not a correct interpretation of the provision. The High Court has not interpreted this provision in such a way as to guarantee the right to consent to medical treatment, or to prevent people from being conscripted to accept medical treatment, that provision has been interpreted actually to protect doctors, not the public.
That provision was inserted into our Constitution in 1946, by referendum, it was there to empower the Aussie parliament to enact the Commonwealth Pharmaceutical Benefits Scheme, the PBS. Now under that scheme, patients could actually access drugs, medicines, from pharmacists for free if they had a scrip from their doctor. So that scheme required doctors to write scrips or certain medicines, so that their patients could then go to the pharmacy and get that medicine for free. And then the government would reimburse the pharmacists. That was actually to provide better healthcare to the public. What happened was that the doctors objected to that scheme, because it was actually taking away a source of income from them, which was through prescribing medicines to their own patients. So to ensure that the doctors didn't make the claim, the government then inserted the provision into the constitution to make sure that they had the power to enact the Pharmaceutical Benefits Scheme. And like I said it was passed by a referendum. So the public agreed that the government should have this power.
There anyway was a claim, brought by doctors, and that case was heard in 1949 by the High Court, the doctors claimed it was still unconstitutional for the government to force doctors into the Pharmaceutical Benefits Scheme. Because they still had to use these particular scrips. And the doctors claimed successfully that that was a form of conscription. Forcing doctors to use this particular form of scrip, that was a form of conscription in forced onto them by Parliament. And they won that on that point. So that means that the High Court sided with the doctors and found that that those words against civil conscription protected the doctors, that's the actually only interpretation by the High Court of that section of the Constitution. So I just wanted to make that's clear, you know, what's circulating on the internet, about that section is wrong.
Finally, I just want to say that I am seeing so much fear from people, and I get it. But in addition to this whole divisiveness that's surrounding these public health orders, that these public health orders are engendering in people, generating in people, that's the fear and the divisiveness are both just the worst part of all of this. I appreciate the intense pressure. It's normal to feel stressed, sad, angry, worn down if you don't agree with the public health orders at a deep personal level, and you're feeling coerced into doing something because you basically can't go to work, which means that you lose your livelihood, I get it. Now I can't make the choice for people. People write to me, I advise them when I can when it's in my area of specialisation. Otherwise, I refer them on to specialists, like workplace lawyers. So I get it because I'm seeing people writing to me, like I said, virtually every day. I'm not here to tell anyone what to do. But I just want to remind people that everything is a choice. Whatever you choose, trust you'll be able to deal with the consequences. Trust you'll be able to deal with whatever comes your way. Whatever you choose. All right, so yeah, it'll be another intense week. I guess, there's going to be a lot of stuff happening, I anticipate, so I'll see you next week. Bye.