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Byron Shire
December 3, 2021

Comment: Court rejects challenges to vax laws

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More than a million people tuned into the live stream of  Kassam v Hazzard; Henry v Hazzard via the NSW Supreme Court’s YouTube channel over the past couple of weeks, many hoping for a judgment which invalidates public health orders which mandate vaccines for certain industries, such as healthcare, aged care and construction.

But these hopes were dashed on Friday,  October 15, when the court delivered a judgment dismissing both cases.

The proceedings were brought by plaintiffs who sought to remain in their industries despite not being vaccinated.

NSW Supreme Court. File photo

One of the proceedings was brought by Mr Al-Munir Kassam, and three other people, whose legal team argued that they had made an informed choice not to be vaccinated, that the choice should be respected on grounds of – among other things – protecting bodily integrity, and that the state has exceeded its power by making orders which, in practical terms, amount to a vaccine mandate.

The proceedings were brought against Health Minister Brad Hazzard, Chief Medical Officer, Dr Kerry Chant, the State of NSW and the Commonwealth of Australia.

Separate proceedings were brought by Natasha Henry and five other people, and like the plaintiffs in the Kassam proceedings, they also chose not to be vaccinated. These proceedings were brought against the Health Minister only.

Test case

For many Australians, it was an important test case, given concerns raised over mandated vaccination policies being implemented by both the NSW Government and, in some cases, by private businesses.

The intense public interest led Supreme Court Justice, Robert Beech-Jones, to take the extraordinary step of warning the public not to contact him – with the court reporting that over 1,800 emails had been received from concerned members of the public.

In the simplest of terms, the ‘no jab, no job’ policies have left thousands of workers with no option other that to receive approved COVID-19 vaccinations or be unable to attend their workplaces.

While the plaintiffs made clear that their employment had been impacted by orders requiring vaccination, additional challenges were made against what effectively amounted to travel restrictions imposed on their LGAs.

To support the challenges, evidence was presented about concerns regarding the efficacy of COVID-19 vaccinations – including that they are ineffective against the contracting or spread of the disease, and the insufficiency of data regarding both short and long term potential side effects.

Arguments were presented regarding the infringement of public health orders on the rights to bodily integrity and privacy, asserting that they amounted to civil conscription, represented a breach of natural justice and were made by Health Minister Brad Hazzard without clear legislative authority.

The court disagreed with every argument presented by the plaintiffs, rejecting all challenges on all grounds.

In the judgement published on the NSW Supreme Court website, Justice Robert Beech-Jones remarked that ‘the legislation underpinning the public health orders set out to achieve an abrogation of normal rights in a pandemic’, finding that the defendants were doing exactly that with a view to achieving public health outcomes.

The Judge rejected the Constitutional argument regarding civil conscription, and an asserted inconsistency with the immunisation register act, finding no constitutional basis for these submissions.

Bodily integrity

One of the key arguments of the plaintiffs was their ‘freedom’ or ‘right’ to their own bodily integrity.

In his judgment, Justice Beech remarked that while the plaintiffs sought to deploy the ‘principle of legality’ which is a rule of statutory construction to the effect that, in the absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or abrogate fundamental rights.

No Bill of Rights 

However, this country does not have a Bill of Rights, and thus, important as the principle of legality is, it is only a rule of construction.

He ruled that the right to bodily integrity was not violated as the orders did not authorise the involuntary vaccination of anyone, while the degree to which the freedom of movement was impaired differed depending on whether a person is vaccinated or unvaccinated.

‘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’, Justice Beech-Jones found.

He also dismissed claims that Health Minister Brad Hazzard acted outside his powers, by not asking the right questions or failing to take into account relevant considerations.

The case was the first in Australia challenging various limitations on unvaccinated people, although there are several other similar challenges, such as the one by NSW paramedic, John Larter, which is yet to be heard by the courts.

While many see this test case as a significant defeat over the policy of mandatory vaccinations, there are some important takeaways which shouldn’t be dismissed.

Public backlash

Firstly, the backlash from the public over these mandates, along with the coercive tactics of the government, is becoming stronger. Businesses too, are pushing back against rules that decree they must only serve vaccinated customers.

Secondly, the legal challenge sends a salient message of accountability to those in positions of power that Australians will challenge laws and rules they don’t believe are fair.

Thirdly, and most importantly, Australia urgently needs a Bill of Rights to protect the fundamental democratic freedoms of its people.

Sonia Hickey is a freelance writer, magazine journalist and owner of Woman with Words. She is a member of the Sydney Criminal Lawyers® content team. This was first published by Sydney Criminal Lawyers.


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41 COMMENTS

  1. The right decision was made. The amount of deliberate disinformation spread by anti-vaxxers regarding the transcript should have been highly embarrassing for those who genuinely oppose mandatory vaccinations, but unsurprisingly… not a peep.

  2. Please stick to using facts and leave the opinions on the editorial floor. Everything posted after the “Public backlash” title is opinion of the writer. The reality is if such a backlash existed, we wouldn’t be at the 80% (and rising) vaccination rate.

    • There is public backlash David, you don’t see or hear it however.

      Probably because anything questioning the Govt/Pharma/Media narrative is not reported. See if you can find out about protests in Brisbane, big ones in France, Italy and New York last week? Rarely reported.

      E.g. When was the last time you heard
      a Dr, Nurse or health care worker speak of their cconcerns about vaccine injuries they are seeing and their issue with mandates?

      When your last freedom is lost, your jab passport to go to the shops isn’t current because you haven’t had your 6th booster prick for a disease that is less dangerous than driving for most, then and only then may you realise what you have willingly given up in the name of “keeping you safe”.

      And Governments have such an honourable track record approving drugs, chemicals, whack ideas and wars.

      DDT – a not so “safe and effective” insecticide.

      Thalidomide – disfigurement.

      Asbestos, Cigarettes, Cane toads, Rabbits, Camphor laurel trees, Lantana…

      Iraq had WMD’s didn’t they? (weapons of mass delusion – a bit like now).

      And what how did they go with Afghanistan? Vietnam 2.0

      And the mainstream media speaks of a China war every other week. You cool with that responsible reporting?

      All the best.

      • Maybe because the media and pollies get the info from well regulated data bases – published online. But hey they COULD be hacked and manipulated – I’m sure Trump won the election as well.

  3. If a Bill of Rights is going to lead to the countermanding of important and essential public health orders then we are better off without it. At the very least, any such Bill should be designed so that such countermanding is not possible.

  4. Wait public backlash? Against who, the people going to court or these people not wanting mandatory vaccinations in essential employment. Flabbergasted that people who work in health care are already vaccinated for many diseases don’t want to protect their workplace or themselves, suddenly become martyrs to look up to. Looking at the numbers vaccinated these people are a very small minority who are make a lot of noise. The majority want to get back to normal and the reason many of these businesses didn’t open was the rudeness, ignorance and arrogance of these selected few to staff about vaccination.

    • Your comment tells the world that those like you who are pushing for these mRNA experimental vaccines to be mandatory don’t understand that they aren’t just like other vaccines. Educate yourself.

    • What a pathetic comment. In my team (major hospital in NSW) 40% didn’t want a jab, they were force under pain of unemployment. I was lucky one, I could afford to retire rather than risking serious injury by the experimental jab. Delta variant (in particular version 2) makes current “vaccines” very inefficient. Metadata from other highly vaccinated nations (like Israel, Singapore) shows very clearly that different approach is necessary. Only uniformed “thru belivers” and now supper rich pharmaceutical companies think otherwise.

  5. Hi Sonia. I would be interested to know what ‘evidence was presented about concerns regarding the efficacy of COVID-19 vaccinations – including that they are ineffective against the contracting or spread of the disease’. Two studies, referenced by the Royal Australian College of General Practitioners, state that both AstraZeneca and Pfizer are in fact remarkably effective in doing just that.
    https://www1.racgp.org.au/newsgp/clinical/mounting-evidence-suggests-covid-vaccines-do-reduc

  6. A bill of rights may well have the effect of *limiting* rights to only those included in such a bill. We are better off (in most instances) under our existing common-law approach to rights, which is less limiting.

    I do wish Aussies would stop taking the USA as a model of everything desirable. As democratic models go, the US is way down at the bottom of the list.

  7. “Public backlash”? Um, really? Define “public” so that in this context of relatively few individuals, we don’t get such stupid journalistic sensationalism.

    Perhaps also consider the scenario where the virus gets into Mullum (Oh perish the thought) and, an anti-vaxxer gets seriously sick, is taken to hospital to take the last ICU bed (the rest also filled with anti-vaxxers) when a stroke victim arrives in ED only to find all ICU beds taken up by COVID sick anti-vaxxers?

    Then, sadly, the stroke victim contracts COVID in ED after all those anti-vaxxers were admitted, and dies.

    Don’t give me that absolute, unmitigated rubbish about “rights” in this context. Anti-vaxxers are the epitome of the same toxic premise of an individual’s sovereign rights that infects the US and other bastions of capitalism. To them, the health and welfare of the broader community means nothing.

    Selfish mongrels.

  8. From what i understand this legal battle is not over. A new challenge is being mounted and there is more to come. 🙂

    The situation where individuals are forced to inject an experimental substance is unacceptable and the arguments used to support this overreach are simplistic and flawed.. The inconvenient truth for all the Jab zealots is that this mandate is in direct conflict with : Nuremberg code article 6 section 3, International human rights charters that Australia has signed, the Common Law principles that are the foundation of our laws, fair work act and others..
    Sadly none of this laws matter and we may as well be a tin pot dictatorship. The spirit of the law means nothing to our state government.
    Sadly there are those who have been programed by their TVs to be afraid of everything and everyone. The idea that you are a “Selfish mongrel” because you refuse to inject a vaccine that will not protect me from the un-Jabed, is logic is on par with flat earthers..
    Sadly, science has been thrown out in preference to good marketing. All mention of early treatment is squashed and ridiculed. As if the Jab is the only option in Town! India has proven that the vaccine is not needed.
    Sadly, a society that tries to throw anyone that prefers to seek medical advice from their doctor and medical science is criminal.

    To all that believe that they know better, then hey that is your choice, your life! Your vaccinated, what are you afraid of? winning the Darwin awards?

    Forcing people to inject is unacceptable and our state legal system is a failure.. Fortunately all options have not been exhausted.
    Peace stay safe

    • “Nuremberg code”? Sorry the NSW Supreme Court disagrees with your legal assessment.
      “Experimental substance”? Geez, 6.7 billion doses have been administered globally, at what point will you accept that it is accepted medical practice?
      Thank goodness the “Jab zealots” were around to end polio and smallpox 🙂

      • Take as many shots as you like. That is your choice.. I am not complaining

        You are missing the point Darren.. The law is there to protect us, it is the foundation of our society in which we live. These laws and agreements have been developed and agreed to having under gone scrutiny and debate, over many years. They have been developed so we do not repeat the sins of the past..

        The fact remains, that the Jab is an experimental chemical which is not risk free! I choose to get my medical advice from a doctor, not a politician or some unknown advisor or you. You are welcome to look up the TGA website and you will find 577 reported related deaths, and over 60,000 reported side effects, some causing permanent injury.
        [‘So far, the TGA has found 9 reports of death that were linked to immunisation from 564 reports received and reviewed.’ https://www.tga.gov.au/periodic/covid-19-vaccine-weekly-safety-report-30-09-2021%5D

        re: smallpox, polio. lets stick to the car in front of of, it is what will hit us. Trying to compare entirely, unrelated events of the past is not the way to avoid being hit by what is in front of us.

        peace.

  9. I agree with the above comments on “public backlash”. 92% of NSW vaccinated so far, so are we talking about the (less than) 8% against mandated vaccines?

    • Within a few months it will be 99% like the ACT. At least once people figure out they cant do their yearly Bali holiday without it.

  10. As a vaccinated person who is part of what is now the majority of nearly 80 percent of the population I would like to suggest caution to business owners. You are starting to stand up for the unvaccinated minority. You may choose to allow them into your premises. Antivaxers have never accepted or acknowledged that the vaccines are highly effective, although not perfect, and only hear what suits them. As part of the majority, I will not enter or purchase from any business that allows people who are not vaccinated. You are risking losing up to 80 percent of customers for the sake of minority 20 percent. Be careful how you choose. It is still early days in regards to the situation you/ we are in.

    • That 80% will likely buy in Woollies or Kmart. They are the teleprompted humans, highly predictable and with no personality or values. Sticking with the conscientious objectors not only is integrity at play but it may also be a good marketing strategy.

  11. Anti-vaxxers really should just take their (metaphorical) medicine and go home and isolate – before it is too late, and they find they have pushed the rest of the population into developing an ICU triage system with them last on the list.

    For the reason Richard just explained.

  12. So Richard mate under your theory about all Ed beds being filled up only by anti Vax people please explain why around the world and including Australia thousands of fully vaccinated people are still dying still getting admitted to hospital. In a few countries now there are more Vaxxed people dying than unvaccinated. Secondly if that Stoke victim was fully vaccinated what are they worried about they are fully vaccinated that protects them against cov…..wait..yep

  13. I don’t like mandates much and never being pushed around but there are some reasons for some rules.

    What we seem to be looking at in these challenges is a small number of teachers who don’t believe in science, a small number of health care workers who don’t believe in pharmacology and medical intervention and a small number of police, ambos and other first responders who don’t prioritise public safety.

    I can’t really see much justification for ignoring the wishes of an overwhelming majority for safe work places to accommodate this thinking.

  14. Can we get some sort of nuanced reporting on the core issue – I mean, step away from the inflammatory, polarised stuff and just look at the actual Public Health Order and potential reasons for concern that we could all agree on, whether we are for or against the vaccine? I am fine with being vaxxed, personally, but I do feel concern about the mandatory stuff and the surveillance and privacy stuff, and how long we may be stuck with such stuff and how to build some democratic protections into the arrangements?

  15. Drew, Drew, Drew… it’s really time to grow up and learn to read properly.

    You’re parroting a bunch of lies and misinformation.
    If you took even a nominal amount of time to actually check your sources, you’d find they are at best badly misunderstanding the science, at worst actively lying to you for influence.
    Please spend 20 minutes sometime trying to disapprove your own position.
    You’ll find it’s not that hard.

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