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Challenge to WA mandatory vaccination orders set to go to trial

14 January 2022

2:00 PM

14 January 2022

2:00 PM

At a hearing on January 12, 2022, Justice Jeremy Allanson of the Supreme Court of Western Australia determined that Senior Constable Ben Falconer’s challenge to the mandatory vaccination orders imposed on WA Police workers by the Chief Health Officer and the Commissioner of Police would go to a full trial.

Spectator Australia readers will recall that on December 24, 2021 Justice Allanson granted Senior Constable Falconer an injunction preventing the Police Commissioner, until trial, from carrying out his threat to sack Falconer for not being vaccinated against Covid by the December 1, 2021 deadline. Commissioner Chris Dawson, after initially stating that decision applied only to Falconer, then relented and gave an undertaking not to sack a further 27 police officers whose jobs were also in jeopardy.

This outcome followed a hearing the previous day in which counsel for the Chief Health Officer and the Commissioner for Police had argued that Senior Constable Falconer’s case was so weak that it should be summarily dismissed. On this point, Justice Allanson delivered his judgment on January 12, rejecting the arguments advanced by the Chief Health Officer and the Police Commissioner, finding that Senior Constable Falconer’s arguments have sufficient merit to go to trial. The trial has been provisionally listed for March 29 to 31, 2022.

In his judgment in the matter against the Police Commissioner, Justice Allanson stated:

‘There is, in my opinion, a real question to be tried regarding the power of the Commissioner, in the exercise of his powers of management, to mandate vaccination with the sanction of disciplinary proceedings for disobedience.’

In his judgment in the matter against the Chief Health Officer, Justice Allanson concluded:

‘The questions of legal irrationality (including arguments based on proportionality of the (mandatory vaccination) Directions as a response to Covid) have a factual component which makes it inappropriate to dispose of them without trial.’

Senior Constable Falconer’s two court wins have meant that the jobs of all 28 unvaccinated police officers are safe until Justice Allanson hands down his decision after the trial.

After the January 12 hearing, Senior Constable Falconer’s solicitor, Hotchkin Hanly Partner Mark Hemery, said: ‘It is encouraging that the Court has seen fit to allow Senior Constable Falconer to have his day in Court without losing his job, despite the best efforts of the Chief Health Officer and the Police Commissioner to prevent that from occurring.’

In the hearing on December 23, it emerged during the hearing that all WA public sector mandatory vaccine directions are the same as those for the WA Police Force. Therefore, Mr Hemery added that Hotchkin Hanly has instructions to commence seven further proceedings in the Supreme Court against the Chief Health Officer as soon as possible. These proceedings will challenge the Chief Health Officer’s directions applying to workers in the education, building and construction, mining, fire and emergency services, health, WA correctional facility and critical infrastructure sectors, on the same grounds as Senior Constable Falconer’s challenge to the WA Police direction.

Mr Hemery stated that if these proceedings are successful, they will render unlawful the current stand downs of many workers covered by the directions. He added ‘Once the further proceedings are commenced, the number of unvaccinated workers whose jobs are presently at risk and may potentially be saved if all of the directions under challenge are struck down by the court is likely to be in the many thousands.’

The Falconer proceedings are listed for a further hearing on January 24, 2022, when Justice Allanson will consider procedural issues for the trial, including expert evidence and the disclosure of documents. One hopes this will include consideration of statements by the UK’s head vaccine adviser, Professor Sir Andrew Pollard, who helped develop the Oxford-AstraZeneca vaccine, calling for an end to ongoing mass vaccination.

‘It really is not affordable, sustainable or probably even needed to vaccinate everyone on the planet every four to six months,’ Prof Pollard told BBC Radio 4’s Today program. ‘In the future, we need to target the vulnerable.’

Such a positive outcome would not have been possible without the generous support of so many donors, which will be even more critical as the matter heads to trial. If you have not yet donated to support Ben Falconer’s action and wish to do so, once again here is the link to the GoFundMe page.

Dr Rocco Loiacono is a Senior Lecturer at Curtin University Law School.

The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.

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