Spectator Australia readers will recall Senior Constable Ben Falconer lost his challenge to the mandatory vaccination orders of the Chief Health Officer for Western Australia, and the WA Police Commissioner, in the Supreme Court of WA in August of last year.

Undeterred, Senior Constable Falconer, who is, along with about 12 other officers, still suspended on full pay, has decided to appeal this decision, and that appeal will be heard by the WA Court of Appeal on Wednesday September 6, 2023.

The appeal justices will review the previous decisions handed down by Justice Jeremy Allanson in August 2022 including the associated evidence that led to it, in determining whether mandating injections in order to attend work was a lawful, proportionate, and effective response to Covid.

Much water has passed under the bridge since that judgment. The year 2022 saw a record number of police resignations, and already in 2023, the 2022 record has been beaten. The figures from earlier this year can be accessed via this link: Record no. of police resignations and retirements – WA Police Union (wapu.org.au). All the while, crime rates continue to increase, notwithstanding the willingness of Ben and his fellow stood down officers, many with over 20 years policing experience, to return to duty.

What is more, the mandatory vaccination orders were withdrawn in June 2022. Even so, Police Commissioner Col Blanch refuses to let Ben Falconer, and the others, near a police station.

Indeed, following the judicial review outcome last August, Commissioner Blanch commenced proceedings to dismiss Ben and more than 30 of his colleagues who did not want to be forced to choose between their jobs and the Covid jab. Some officers who agreed to internal charges against them were promptly dismissed.

Therefore, on November 28 last year, Ben’s solicitors sought an interlocutory injunction to restrain the Commissioner of Police from taking further disciplinary action or dismissing Ben before the judicial review appeal outcome was known. Following a hearing before two Justices of the WA Court of Appeal, an injunction was granted, thus protecting Ben’s employment until a judgment on the appeal is handed down. A further order was made that the costs for seeking the injunction are to be met by the Commissioner of Police.

In ordering the injunction, their Honours stated that there was a serious question to be addressed as to whether the Commissioner of Police has the relevant powers under the WA Police Act to prohibit officers from working unless they undergo a medical procedure.

Interestingly, the WA Industrial Relations Commission last June ordered that prison officer Penelope Fagan, who was sacked for refusing to take the Covid vaccine, be reinstated by the then Minister for Corrective Services, Bill Johnston.

While Fagan did not challenge the mandates themselves, her termination for not taking the jab was considered unjust and unreasonable in the circumstances. In addition to re-instatement, the Commission made orders for back pay for loss of remuneration.

While many want to move on from the events of the 2020-22, Ben and his fellow officers remain committed to see this fight through.

As Ben told me – speaking strictly as a private citizen and not as a police officer:

‘I am aware of about 10 to 15 sworn and unsworn colleagues who are in a similar position to me awaiting the appeal outcome.

‘The Labor government has a taste for the powers granted during states of emergency, they will find reasons to declare another one, they will help you forget that you can make decisions for yourselves.

‘Every plaintiff in cases like mine hopes its their case that will push through, however each unfavourable decision has strategic value and builds up a body of case law to guide future litigation and eventually wrestle back the individual’s right to make their own health decisions.

‘Without any hesitation I would do it all over again from the beginning even if I knew loss would be the outcome, all West Australians have a duty to disobey unjust laws.’

Further information on Ben’s challenge, and how to support it, can be found here.