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Challenge to WA mandatory vaccine directions heads to trial

29 March 2022

4:00 AM

29 March 2022

4:00 AM

On Tuesday, Senior Constable Ben Falconer’s challenge to the WA Police Mandatory vaccine directions heads to trial.

The last month, and the last week in particular, have seen several developments in the lead up to the trial, set down for two days before his Honour Justice Jeremy Allanson of the Supreme Court of Western Australia.

A number of further judicial reviews have been commenced against vaccine mandates in fire and emergency services, health, education, corrections, construction, and Western Power (WA’s electricity generation corporation). All of these cases have been deferred by the Supreme Court pending the outcome of the Falconer case. If the challenge succeeds and the police mandate is struck down, then it is likely that all of the other vaccine mandates under challenge will follow suit, given the similarities between the mandates across the various industries. 

Unfortunately, the trial will not be livestreamed, due to opposition from counsel for the Chief Health Officer, Andy Robertson, and Police Commissioner Chris Dawson. Indeed, the lengths the State of Western Australia and Chris Dawson, have allegedly gone to so as to potentially obfuscate, delay, and perhaps suppress information that may cause harm to their position is extraordinary and takes one’s breath away.

Last month, counsel for the Chief Health Officer, Andy Robertson, tried to prevent obtaining discovery of documents. The documents sought by Senior Constable Falconer’s legal team were internal communications between the Chief Health Officer and the executive government, relating to the medical advice and the decision to implement the mandatory vaccination in October 2021. Despite the Chief Health Officer’s lawyers arguing strongly that the documents should not be discovered, Justice Allanson ordered that discovery be given.

In a recent judicial review by the High Court of New Zealand, Justice Francis Cooke struck down the police and defence force vaccine mandates. In deciding that the vaccine mandates were unlawful, Justice Cooke considered expert evidence given by Professor Nikolai Petrovsky of Flinders University in South Australia, concerning the effectiveness of vaccination in reducing transmission of the omicron variant. Justice Cooke concluded that, although the Omicron variant poses a threat to the continuity of workforces, this was the case ‘for the vaccinated as well as the unvaccinated’. New Zealand has since removed most vaccine mandates.

Counsel for Falconer therefore, sought to file an affidavit by Professor Petrovsky in these proceedings. Counsel for Andy Robertson, however, formally opposed the court considering Professor Petrovsky’s affidavit at a directions hearing last Thursday. Justice Allanson decided against the filing of the affidavit but would allow counsel for Falconer to lead it in cross-examination. 

Then, the next day, in a stunning development, the solicitors for the Chief Health Officer advised that he will no longer be called to give evidence at the trial. Dr Robertson was to be called to verify an affidavit he swore and filed earlier in the month in accordance with court directions. After receiving the affidavit, the legal team for the police applicants had notified Dr Robertson that he would be required to attend court for cross-examination on his affidavit. That cross-examination will not now take place. No reasons have been given by the Chief Health Officer’s legal team for his last-minute change of position, either to the applicants’ legal team or to the Court. This about-face would seem, to any reasonable person, as an attempt to avoid scrutiny at all costs. Some may even say he is running scared. However, given Andy Robertson last court appearance, following which he was put into political witness protection, it is hardly surprising.

In a very troubling backdrop to the Falconer case, late last month, internal emails to WA Police employees asking for their thoughts on Covid vaccination mandates in the workplace were allegedly wiped from all staff inboxes without explanation.

Jordan McDonald, a former police officer who resigned in protest late last year has formed Pro Choice Cops WA, which is supporting Senior Constable Falconer sent the emails. He alleges they were promptly scrubbed from all staff inboxes within 10 hours before they could get further submissions. There have also been claims that some staff were threatened with disciplinary action if they replied to the survey.

According to the final report by Pro Choice Cops WA, nearly 68 per cent of respondents said they did not support the vaccine mandates, and 46 per cent did not want the Covid vaccines – with many saying ‘bullying’ was a major reason for getting the jab.

Fifty-seven respondents, or 15 per cent, said they had a serious reaction to their vaccine, while 83 per cent said they felt traditional policing priorities had been negatively impacted or neglected due to the Covid response.

The majority said they did not agree with how police were being used to enforce public health directions, and 60 per cent said they no longer had confidence in Chris Dawson.

‘The takeaway is exactly what I suspected from the beginning, which is that morale is bad because of the diverted response away from traditional policing, and the never-ending goalposts,’ Mr McDonald said. It has been suggested a fourth job will be mandated before too long.

The low morale has led to a record number of resignations. Figures in this screenshot from the WA Police Union are alarming.

In the three months to mid-March this year, a record number of cops (124) have called it quits. This number does not include those stood down due to the mandatory vaccination direction and unsworn police staff. Further, there is anecdotal evidence that a further 50 police officers have resigned since then.

The reasons for this record number of resignations corroborate those in Jordan McDonald’s survey. Additional reasons given relate to processes surrounding the Covid in the workspace. Police are required to wear masks and associated PPE even though vaccination was meant to end this. Further, the rules surrounding close contacts and diverting responses to Covid jobs rather than traditional policing has meant there are insufficient resources, especially on the front-line. This had led to the Commissioner initiating a forced transfer of over 30 staff to regional locations. 

Mr McDonald asserts that none of these issues are acknowledged but are considered ‘dissent’ that must be crushed.

The importance of the Falconer case therefore cannot be understated. For those who wish to make a contribution to the considerable legal costs, the links to crowdfunding sites are here and here.

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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