By Robby Magyar

In a crucial decision handed down on Monday 18 October 2021 with a live-stream audience of 40,000 viewers, the NSW Supreme Court has upheld the power of the NSW Government to issue Public Health Orders mandating COVID-19 vaccination for specific categories of workers, by dismissing claims that the directives compromise an individual’s “right” to bodily autonomy.

The two proceedings of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, heard together, named as Defendants the NSW Minister for Health and Medical Research, Brad Hazzard, the NSW Chief Health Officer Dr Kerry Chant, the State of NSW and the Commonwealth of Australia. The case was brought by 10 workers in the health, aged care, construction, and education industries who argued that the health orders made under s7(2) of the Public Health Act 2010 (NSW) are invalid. These workers, who had refused to be vaccinated against COVID-19, challenged the Public Health Orders on several grounds including unreasonableness, that it was outside the Government’s scope of power to make them, and that it was unconstitutional as the Orders were effectively civil conscription.

In his judgment, Justice Robert Beech-Jones noted that the function of the Court is not to make determinations of the merits of an exercise of power by the Ministers making these orders, or to weigh up potential responses to the public risk risks associated with COVID-19 and the Delta variant. Rather, the role is squarely 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 Plaintiffs alleged that the mandatory vaccination requirements impinged “on the rights and freedoms” of individuals choosing not to receive a COVID-19 vaccine, “especially their ‘freedom’ or ‘right’ to their own bodily integrity”. This contention was not supported, as the Court found no authorisation of involuntary vaccination contained within the Public Health Orders. Instead, the Orders only act to curtail an individual’s freedom of movement if they refuse to receive a COVID-19 vaccine (other than in cases of verified contradictions), which is proportionate and authorised under the health order.

The Court also found that despite the Orders detrimentally impacting on non-vaccinated persons such as in a loss of work and restricted access to benefits afforded to vaccinated persons, the differential treatment cannot be seen as arbitrary or unreasonable decision on the part of NSW Health Minister Brad Hazzard and Chief Medical Officer Dr Kerry Chant, to address the coronavirus within the community.

However, if the orders were to impinge on the freedom of movement based on race, gender, or political opinion, this would be deemed arbitrary and “would be at severe risk of being held to be invalid as unreasonable” according to Justice Beech-Jones. However, the circumstances of the current cases did not meet this criterion.

The decision upholds the vaccination mandate enshrined in the applicable Public Health Order, however, there remain multiple cases on the books for the Supreme Court of NSW to consider the reasonableness of the orders, which remains a fact-based consideration.

If you have questions about how this decision or the NSW public health order impacts your business, contact the team at HR Assured.

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Robby Magyar is a Workplace Relations Consultant at FCB and HR Assured who relishes the opportunity to assist businesses in the best practice approach to managing employees and compliance concerns. He has a particular interest in making employment law and human resources digestible for our clients.