The Legal Challenge to Mandatory Vaccinations By James Reed
John Larter, a paramedic, has raised more than $127,000, on the fundraising campaign on GoFundMe, to mount a legal challenge against rules making it mandatory for all NSW health workers to be fully vaccinated by November 30.
Larter has already filed a challenge in the NSW Supreme Court seeking relief from the NSW Public Health Order making vaccinations mandatory for health workers. This is very good news, and shows what a dedicated freedom fighter can do. If a victory can be scored here, it will be a precedent for further legal challenges. We need this to happen soon.
“A veteran paramedic has raised more than $127,000 to help mount a legal challenge against rules making it mandatory for all NSW health workers to be fully vaccinated by November 30.
John Larter launched the fundraising campaign on GoFundMe, with a goal of raising $150,000, and has already attracted close to 2000 supporters.
Mr Larter said he had filed a challenge in the NSW Supreme Court seeking relief from the NSW Public Health Order making vaccinations mandatory for health workers and the “action has attracted some of Australia’s most senior legal minds”.
“I am fighting for this as I strongly believe no person should be discriminated against due to their medical status, and under no circumstances should they be excluded from the workplace due to that medical status,” he wrote on the fundraiser page.
“I am committed to freedom of choice, and I strongly believe that all individuals should have the choice and ability to decide what medical procedures they undergo.”
NSW Health Minister Brad Hazzard and NSW Health are also fighting a number of other actions in the Federal and Supreme Courts.
Three weeks ago, the Federal Court dismissed an application brought by a group of religious leaders seeking exemptions from restrictions.
But a further three matters are set to go to hearing later this month.
Two of them, brought by Al-Munir Kassam and Natasha Henry, are seeking to challenge rules which state that essential workers must receive their first vaccination by September 19 if they are to leave an LGA of concern for their jobs.
Clyde & Co law firm managing partner Michael Tooma said the general arguments that mandatory vaccination results in discrimination or violates freedom of choice did not stack up.
He said both the public health orders and businesses initiatives that have made vaccinations mandatory recognised the need for an exemption in circumstances where someone can’t medically get jabbed.
“I am aware of certain pro forma letters that people are encouraged to provide to their employer alleging that employer initiatives or the implementation by the employer of the public health order amounts to an economic coercion or economic duress and the effect is to remove the person’s ability to consent, but with that respect, that approach misses the point,” Mr Tooma told news.com.au.
“There is no such coercion. It is simply a requirement in relation to the inherent preconditions of performing work and these are inherent requirements of performing work safely.”
Making vaccinations mandatory in the workforce isn’t something new, Mr Tooma noted, with early childhood staff and aged care workers required to get a flu shot.
“There is nothing remarkable about the approach (to the Covid-19 vaccination) in relation to the public health orders or company approaches that are implemented after a risk assessment and proper consultation with the workforce,” he said.
“Business have been introducing similar requirements in a different context for a very long time and those requirements are yet to be successfully challenged.”
The Australian Medical Association (AMA) has called for mandatory vaccinations for the entire health care workforce including support staff like cleaners, receptionists and contractors as soon as practical.
“We need to bring these workers and the environment they work in, out of crisis mode and the first step towards that is to protect them through vaccination. This is about health care worker safety and the safety of patients, and not about vaccines by force,” AMA President Dr Omar Khorshid said last month.
“AMA proposes nationally consistent public health orders of state and territory governments to authorise mandatory vaccinations across the health care system for all staff as soon as is reasonably possible. We’ve said plans to reopen Australia will be a disaster unless our health sector is ready and that will mean having a fully protected medical workforce.”
Several Aussie companies have mandated vaccines for staff including fruit and vegetable giant SPC, Qantas, Virgin Australia, Telstra and Crown Resorts.
Mr Tooma warned businesses that when the economy starts to open up they risk legal challenges if they don’t have a vaccination policy in place, particularly as double-jabbed staff may have a right to refuse to do work in close proximity to the unvaxxed.
“So the next wave of legal challenges is likely to come from workers faced with a situation where their employer has refused to introduce mandatory vaccinations in circumstances where such a requirement is appropriate and necessary,” he said.
“They may choose to refuse to work and their legal position may actually be on a greater solid ground than the alternative action that we are seeing now.”
He said the huge number of Aussies rolling up their sleeves to get the jab shows this will become a big issue.
“Given that the percentages of vaccinated versus those who don’t intend to be vaccinated is vastly in favour of those who are vaccinated or intend to be vaccinated, that is a greater risk for business than the risk of litigation from those who don’t wish to be vaccinated,” he said.
Mr Tooma pointed to Singapore’s approach — where the government encourages businesses to make vaccinations mandatory or have frequent Covid testing in the workplace — saying its model strikes a good balance.
“In many respects these reflect public health orders in NSW, which suggest vaccination or rapid antigen testing be done before entering the workplace,” he said.
“These points become very important once shops, restaurants, cafes and offices start to open back up again. Vaccination is not the only thing necessary in relation to managing the risk of Covid but it is an important one.”
The argument given above that the vaccinated may litigate because they fear working next to the unvaccinated to my mind is flawed; for one thing, vaccination is supposed to provide protection in just these circumstances, and vaccines should be defined as failures if they do not. Secondly, it ignores the reality of breakthrough infections, where the vaccinated still get Covid, a matter well reported at this blog.
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