Flat White

Will someone please explain to Daniel Andrews he can’t sack a judge who isn’t double-jabbed

8 October 2021

4:00 AM

8 October 2021

4:00 AM

The first of October 2021 will go down in history as a belter of a day in Australian politics. The Prime Minister announced changes to the cabinet, Gladys Berejiklian resigned from parliament, the Senate elected a new president, Mark McGowan doubled down on poo-pooing international travel to and from the hermit kingdom, and Daniel Andrews became the world champion in shark-jumping. 

Yes, Premier Andrews has outdone himself, which is difficult to believe given his tirades about murderous sunsets and deadly playgrounds.      

Yet here we are. 

In outdoing himself, Daniel Andrews announced that all authorized workers must be fully vaccinated against COVID19 by the end of November. At first blush this sounds a bit immoderate. Once you look up the definition of Authorized Worker, it becomes clear that the policy is totally outrageous.  


Well, in the glorious socialist state of Victoria an authorized worker includes, amongst other things, journalists, judges, state and federal parliamentarians, road maintenance workers, faith leaders, farmers, domestic and commercial waste workers, interpreters, commonwealth agency workers, pool and spa maintenance workers, and forestry workers. Basically, it’s a list of pretty much everyone, including many occupations where people work on their own or outside.  

Up to this point we have only seen the vaccination mandated in certain industries where there is a need to protect the vulnerable. Most states have mandated vaccination for health care workers and the Federal government has mandated the vaccine for aged care workers. I still think an industry-wide ban is a bit excessive – because someone working in payroll at head office for an aged care provider is no greater risk to the vulnerable than someone working in payroll at head office for a marking firm – but at least in the instances of aged care and health, the mandate is contained and rationalized.  

In the case of Victoria, what possible danger do many of those working in the above-mentioned fields pose to vulnerable groups? Very little, if any. It’s a blunt-force policy which is unlikely to materially downgrade the level of public risk. In fact, overkill and coercion are likely to put people offside and cause them to dig in their heels. It’s a good thing we don’t have a labour shortage and those people can be stood down and replaced with new staff. 

Oh, wait…  

Anyway, the critical point is that vaccination should not be mandated wholesale simply to increase the overall vaccination rate. It should be a precision instrument to protect the vulnerable. Andrews says that the broader mandate for the vaccine is required so that in the event of a spike in COVID-19 cases, Victorian hospitals are not overwhelmed. Actually, instead of imposing this requirement on citizens, the Victorian government could’ve just done its job and spent the last 18 months getting the hospitals ready so that they could handle an outbreak.  

Four thousand ICU beds, anyone? 

While Daniel Andrews might think this is some policy stroke of genius which will save him from his latest COVID-19 related pickle, this public health order, followed by his usual belittling and gaslighting commentary, might not be enough to get him over the line.

Firstly, there is this little peculiarity of our parliamentary democracy called the separation of powers. As the name suggests, the executive, the legislature and the judiciary operate separately, and as such, the executive tail can’t wag the judicial dog. Insofar as this relates to this latest policy brain fart, it means the Andrews government cannot interfere with the judiciary; it can’t fire judges or their staff or prevent them from undertaking their function. He may also want to flick through Chapter III of the federal Constitution before picking a fight that would likely wind up in the High Court.  

Similarly, query the extent to which state government laws can mandate the working conditions for a federal member of parliament or a federal public servant. This rub has wound up in the courts a few times and I don’t think Andrew’s going to like where the precedent resides.   

Ultimately, good public policy means using the smallest possible tool to create the best possible public outcome. This, like much of Andrews’ other policy frolics, is a sledgehammer which produces little public benefit.  

And so, like much of the last 18 months, Victoria continues to represent the worst that big government has to offer.  

4.00 pm update:

The Herald-Sun reports:

The state government has quietly watered down its mandatory vaccination directions…

The embarrassing backdown comes just a week after the tough new jab mandate was announced, requiring 1.2 million workers on the state’s authorised workers list to receive their first vaccine by October 15.

The same workers would have until November 26 to be fully vaccinated in order to be allowed to go back to work.

But in official directions published by the chief health officer … Commonwealth employees or people who work in connection with court proceedings are exempt from the mandate.

Dozens of Commonwealth and court related occupations remain on the authorised worker list including Australian Border Force, Commonwealth law enforcement and intelligence agency services workers.

Judges, Associate-Judges, Judicial Registrars, Magistrates, Coroners, Tribunal Members and their staff as well as lawyers and registry clerks could all receive exemptions.

Announcing the mandatory vaccination direction last week Daniel Andrews said it would apply to all Victorians on the authorised workers list without exception.

Chief Justice Anne Ferguson confirmed all Victorian court staff would be exempt…

Caroline Di Russo is a lawyer, businesswoman and unrepentant nerd.

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