I'm reading through the whole thing, because I'm curious about the actual legal argument around the public health orders, so I've got some thoughts and questions. 16 votes, 15 comments. Section 7 of the Act states that, "if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health", then the Minister "may by order give such directions as the Minister considers necessary to deal with the risk and its possible consequences". In Kassam v Hazzard and Henry v Hazzard. In particular, issue was raised around the stipulations in Public Health (COVID19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Order No 2), which presiding Justice Robert Beech-Jones, stated is likely the mostly widely read legal instrument in the history of NSW. October 15, 2021. You may be trying to access this site from a secured browser on the server. Tony Nikolic from AFL solicitors told Monica Smit of Reignite Democracy he disagreed with the dismissal of the cases, but he was also an advocate for a bill of rights. But these hopes were dashed on Friday, 15 October 2021, when the court delivered its judgement dismissing the cases. When all is said and done, the proper analysis is that the impugned orders curtailed freedom of movement, which in turn affects a persons ability to work and socialise. The plaintiffs are all persons who have refused to be vaccinated against COVID-19 but are required to be vaccinated under the health orders in order to perform their work, either because of the sector they worked in or because they resided in one of the identified local government areas of concern. Al-Munir Kassam v Bradley Ronald Hazzard. But give Goverment employees an exemption. Broadly, what we have seen in response to terrorism, and now in response to the pandemic, is how powerful our governments are and how few checks and balances they have. NSW Supreme Court Justice Robert Beech-Jones delivered his ruling on the Kassam versus Hazzard case, which raised close to a dozen grounds contesting the validity of public health order restrictions, as well as vaccine mandates, which have recently been imposed in this state. Arguments were presented regarding the infringement of public health orders on the rights to bodily integrity and privacy, asserting that they amounted to civil conscription, represented a breach of natural justice and were made by Health Minister Brad Hazzard without clear legislative authority. Copyright 2023 KM Business Information Australia Pty Ltd, Workplace relations and health and safety, MinterEllison, Holding Redlich, Piper Alderman highlighted in Best Lawyers Australia 2024, HSF launches free digital law course for APAC university students, Former Lander & Rogers finance head named CBP CFO, HFW assists on COVID-19 vaccine acquisition bid for Philippine consortium, NSW Supreme Court approves $28.5m Provident class action settlement, Former NRF insolvency star jazzes up Lander & Rogers commercial disputes practice, Piper Alderman assists PharmaLexs merger with specialist consultancy, Disney slams DeSantis with five causes of action. (a) failed to have regard to various relevant considerations; B. Deline & L. A. Kahlor Planned Risk Information Avoidance: A Proposed Theoretical Model. Thirdly, and perhaps most importantly, Australia urgently needs a Bill of Rights to protect the fundamental democratic freedoms of us all.. Across the road from Justice Precinct carpark. The Court's role is to adjudicate on the legality of the administrative action and not the merits of the decision. These proceedings were brought against the Health Minister only. Discrimination against vaccination status now LEGAL. [4] Jennifer Kimber v Sapphire Coast Community Aged Care [2021] FWCFB at [115] - [129]. and that these health orders interfered with fundamental rights and freedoms. Thats the bedrock problem. But for those who were focused on rights issues prior to the COVID era, the fact that there is no broad protection for a range of citizens freedoms and liberties at the federal level is a well understood issue, which is usually neatly swept under the carpet. Kassam v Hazzard; Henry v Hazzard (NSWSC) - public health - administrative law - . In a public letter to Hazzard, he wrote that a competent adult patient has the right to refuse medical treatment for whatever reasons, rational or irrational.. Beech-Jones J's judgement is a very strong judicial endorsement that compliance with Public Health Orders is non . I'm a law student and I've got some questions about the Kassam v Hazzard case. terms invalidating consent and effectively compelling individuals to submit to vaccination under coercive, directions. On Friday 15 October 2021, two challenges to the NSW public health orders, restricting activities of residents who had not been vaccinated against COVID-19 (including their ability to work in certain industries) were dismissed by Justice Robert Beech-Jones in the NSW Supreme Court. New comments cannot be posted and votes cannot be cast. The public health orders in question prohibit a person from working as a health care worker (which included paramedics) in New South Wales if that person has not received at least one dose of a COVID-19 vaccine by 30 September 2021, and two doses by 30 November 2021. Please enter your email address below and click on Sign Up for daily newsletters from Australasian Lawyer. Visit, Charged with drug possession or supply? The NSW Supreme Court has today delivered a strong judgment upholding the validity of public health orders requiring vaccinations in certain workplaces. The second proceedings were raised by aged care worker Natasha Henry and five other plaintiffs, solely against Hazzard in relation to vaccine mandates contained within the impugned orders, which included Order No 2, and two other orders relating to age care and education workers. It looks like your browser does not have JavaScript enabled. ICR AF lO th Anniversary 1977-1987 Agroforestry a decade of development Edited by H.A. Subscribe to our FREE newsletter service and well keep you up-to-date with the latest breaking news, cutting edge opinion, and expert analysis affecting both your business and the industry as whole. The intense public interest led Supreme Court Justice Robert Beech-Jones to take the extraordinary step of warning the public not to contact him with the court reporting that over 1800 emails had been received from concerned members of the public. The Kassam plaintiffs also questioned whether the police powers created by Order No 2 were inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), as well as whether the order is rendered invalid by section 51(xxiiiA) of the Australian Constitution. . These people were from the health, aged care, construction and education industries and Kassam v Hazzard: NSW Supreme Court - Challenging the . In some cases, arguably not. We use cookies to personalise content and ads, to provide social media features and to analyse our traffic. Our team is actively monitoring and considering the implications of legal and regulatory developments in response to the COVID-19 pandemic. So, the freedom infringements raised had to relate to those rights protected in common law, which ruled out discrimination as this body of law doesnt specifically protect against it. In response, questions were raised around whether the government could legitimately restrict people from continuing to turn up to their places of employment to work unless they sought to get the COVID-19 vaccine, and whether this requirement infringed upon their basic rights. Justice Adamson cited the recent decision of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (learn more about the decision here), which has become a leading case in respect of the validity of public health orders made regarding the COVID-19 pandemic. Scan this QR code to download the app now. judgment for plaintiff in sum of $1,273,125 Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 (NSWSC) - planning and development - Appeal Panel upheld decision of Tribunal that No one told me I can do BIG bits with the unicorn in CA on MM!!!! Where the ground of legal challenge is unreasonableness as it was in this case, some investigation of the merits of the decision is necessary but the limitation in the Courts ability to review the merits is extremely confined. Leaving aside the constitutional challenge raised by the plaintiffs in the Kassam proceedings, in considering the grounds of challenge raised in both proceedings, it is important to note that it is not the courts function to determine the merits of the exercise of the powers by the minister to make the impugned orders much less for the court to choose between plausible responses to the risk to public health posed by the Delta variant. In his judgement, Justice Beech remarked that while the plaintiffs sought to deploy the principle of legality which is a rule of statutory construction to the effect that, in the absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or abrogate fundamental rights. Applying for a grant of administration with the Will annexed, 3. The highly contagious Delta variant of the COVID-19 virus entered NSW in mid-June. The courts reading of the restrictions found that those affected by the imposed requirements around vaccinations didnt force them to undergo the treatment and thereby encroach upon bodily autonomy, but rather, if they chose not to get the jab, their freedom of movement was restricted. There is a strong petition on this at Change.org. But we dont. View, Charged with drink driving or another traffic offence, get outstanding representation in any NSW court for a fixed fee Justice Adamson cited the recent decision of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (learn more about the decision here), which has become a leading case in respect of the validity of public health orders made regarding the COVID-19 pandemic. 1 The public health orders challenged were the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) and Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW). YOUR GUIDE | Access the CyberSight 360 hub for the latest cyber security news, information and resources. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 . One set of proceedings was . However, this country does not have a bill of rights, and thus, important as the principle of legality is, it is only a rule of construction. There are multiple defendants, including the Minister for Health and Medical Research (who issued the health orders), the Chief Health Officer, the state of New South Wales and the Commonwealth (Defendants). However, his Honour showed that the civil conscription ban actually targets the passing of laws that would require medical professionals to do something against their will. Both proceedings must be dismissed.. (c) was obliged to but failed to afford them natural justice; and Section 51(xxiiiA) of the Australian Constitution prohibits parliament from passing laws in terms of a civil conscription around medical and dental services. No. said the New South Wales Supreme Court judge during the dismissal. Plaintiffs . The decision concerns two legal challenges to the health orders by multiple plaintiffs including, among others, aged care workers, a paramedic, a high school special education teacher and a construction worker (Plaintiffs). In that decision, the Court concluded that to impugn public health orders on the grounds of legal unreasonableness, it was necessary to show that no Minister acting reasonably could have considered it necessary (i.e. All grounds of contention were dismissed. To start to fill in this gap, key persons from seven European countries-Georgia, Germany, Lithuania, the Netherlands, Poland, Switzerland, and Turkey-accepted the invitation to give their expert opinion on the state of affairs in their country at an invited panel discussion at the XIV 2015 ESTSS . So how does one Prove beyond a doubt, that it is a trial? []. Nair Agroforestry decade of development Edited by Howard A. Steppler and P.K. By accepting all cookies, you agree to our use of cookies to deliver and maintain our services and site, improve the quality of Reddit, personalize Reddit content and advertising, and measure the effectiveness of advertising. 'assault occasioning'! His Honour confirmed that there was no duty to afford procedural fairness, and that any production of vaccination information to an employer does not vitiate consent. On that basis, Justice Adamson dismissed Mr Larter's application. Education and care workers must be fully vaccinated by 8 November, while workers at residential aged care facilities must have already received their first dose by 17 September. #covid19. Please enable scripts and reload this page. In the cases of Kassam v Hazzard and Henry v Hazzard [2021] NSW SC 1320, all grounds of challenge were dismissed. (d) acted unreasonably; The health orders are inconsistent with the Constitution, in that they: Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 (on Caselaw). Privacy Policy. For example, this could be forcing them to administer the COVID-19 vaccine to others. 1:02:40 For my case for my, yeah. The following matters will be live streamed TOGETHER on 30 SEPTEMBER and 1 OCTOBER from 10 AM: Hearing: Al-Munir Kassam v Bradley Ronald . Natasha Henry and five other citizens have launched legal action against Health Minister Brad Hazzard in a bid to overturn rules requiring aged care workers to get the Covid-19 jab or face losing . Sydney construction worker Al-Munir Kassam, Byron Bay aged care worker Natasha Henry and eight others mounted a multi-pronged attack on the public health orders, arguing their rights to bodily integrity and freedom of movement were being impinged. There are also a range of articles designed to inform and ease the stress of those who are going to court. . Sign up so we can always stay in touch. To the contrary, Part 15 of LEPRA suggests that it applies to regulate the exercise of powers conferred by various laws including the making of requests.. The plaintiffs in Henry added that the restrictions in place upon refusing the mandatory vaccinations would exclude [them] from participating in a significant aspect of social life. The plaintiffs said that the implementation of the order would deny them the right to continue working in their chosen vocation at their current place of employment, as well as the ability to earn a living and sustain themselves and their families as they only presently know how.. Supreme Court Ruling live today Australian time 15 October 2021 local time 16:00. So, are a number of the things that have been put in place really reasonable and proportionate responses to the health crisis? Authors: Sally Moten, Partner and Jessica Miral, Lawyer. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [70]. - the government is in full social-destruction mode; this is the attitude that gets us 'Alice Springs' today. Using the adverse reactions as another tool. The case was initiated by members of a number of industries and sectors affected by the mandate. One of the proceedings was brought by Mr Al-Munir Kassam and three other people, whose legal team argued that they had made an informed choice not to be vaccinated, that the choice should be respected on grounds of among other things protecting bodily integrity, and that the state has exceeded its power by making order which, in practical terms, amount to a vaccine mandate. More than a million people tuned into the live stream of Kassam v Hazzard; Henry v Hazzard via the NSW Supreme Court's YouTube channel over the past couple of weeks, many hoping for a judgment which invalidates public health orders which mandate vaccines for certain industries, such as healthcare, aged care and construction.

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