So, in essence, the case was challenging a very broadly worded power that was sufficient to make the orders, and not surprisingly the case was unsuccessful. More than a million people tuned in to the live stream of Kassam v Hazzard; Henry v Hazzard via the New South Wales Supreme Courts YouTube channel over the past couple of weeks, many hoping for a judgement which invalidates public health orders which mandate vaccines for certain industries, such as healthcare, aged care and construction. One of the main grounds of challenges in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who choose to not be vaccinated especially their freedom or right to their own bodily integrity,. Do they (and their lawyers) genuinely think that every individual should be consulted on a public health order? All Rights Reserved. Subscription Information Kassam Henry v Hazzard Ruling. 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. Postscript - 15 October 2021: today, Justice Robert Beech-Jones of the Supreme Court of NSW, somewhat predictably, dismissed legal challenges to the vaccine mandates in NSW in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, concluding that '[a]ll of the asserted grounds of invalidity raised by both sets of plaintiffs have been rejected . So, I can understand why that has left people very concerned about whether the decisions are correct, and whether they have been properly justified. Discrimination against vaccination status now LEGAL. B. Deline & L. A. Kahlor Planned Risk Information Avoidance: A Proposed Theoretical Model. In the judgement published on the NSW Supreme Court website, Justice Robert Beech-Jones remarked that the legislation underpinning the public health orders set out to achieve an abrogation of normal rights in a pandemic, finding that the defendants were doing exactly that with a view to achieving public health outcomes. The hearing in the matters of Kassam v Hazzard and Henry v Hazzard has now concluded. Al-Munir Kassam v Bradley Ronald Hazzard (2021) and Natasha Henry v Brad Hazzard (2021) challenged the provisions of the Delta Order, one of which required a relevant care worker whose place of residence or place of work is in an area of concern "to have at least one (1) dose of a COVID-19 vaccine" or in its absence, to have "been issued with a medical contraindication certificate . In fact, if you look at section 7 of the Act, it says that the section applies if the minister considers on reasonable grounds that a situation has arisen that is a risk to public health. And this led to health measures being imposed throughout Greater Sydney, which placed extreme restrictions on peoples freedoms, especially on those not vaccinated. PO Box 61056, Eglinton/Dufferin RO, Toronto, ON M6E 5B2, Canada. Instead the courts only function is to determine the legal validity of the impugned orders, which includes considering whether it has been shown that no minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences., Ungovernable: Alberta's Quest for Independence. Information about Sydney Criminal Lawyers is also provided. 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 . For example, in Kassam, His Honour accepted that the health orders had an encouraging effect or even a coercive effect but ultimately, found they did not authorise vaccination without the persons consent.6 This will likely be of particular interest in Victoria, where it is alleged that the public health directions are incompatible with human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), which provides that a person must not be subjected to medical treatment without their full consent. 16 votes, 15 comments. So, to simply argue that some pandemic measures rolled out by the NSW government are discriminatory due to their impact solely upon unvaccinated people wasnt a possibility, as his Honour advised that the common law fails to protect against discrimination. Proposed Law Would Make Employers Liable for Injuries Arising from Vaccine Mandates. But these hopes were dashed on Friday, 15 October 2021 . Plaintiffs . (c) was obliged to but failed to afford them natural justice; and Relied on by both sets of plaintiffs, one of the main grounds involved in the case was whether the limitations and restrictions placed on certain workers due to their decision not to get the vaccine led to their right to bodily integrity being infringed upon. The manner in which the health orders were made was unreasonable; The health orders confer powers on police officers that are inconsistent with the, The health orders were made for an improper purpose; and. Ramachandran Nair ICRAF International Council for Research in Agroforestry Nairobi Published in 1987 by the International Council for Research in Agroforestry ICRAF House, off Limuru Road, Gigiri P.O. Remember this cannot be viewed afterwards and do not re-record and distribute. [4] Jennifer Kimber v Sapphire Coast Community Aged Care [2021] FWCFB at [115] - [129]. The NSW Supreme Court has today delivered a strong judgment upholding the validity of public health orders requiring vaccinations in certain workplaces. 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. The Delta Order also prescribes that the workers concerned carry with them proof of their vaccination status. Al-Munir KASSAM v Bradley Ronald Hazzard . For many Australians it was an important test case, given concerns raised over mandated vaccination policies being implemented by both the NSW Government and, in some cases, by private businesses. 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. The proceedings were brought against Health Minister Brad Hazzard, Chief Medical Officer Dr Kerry Chant, the State of New South Wales and the Commonwealth of Australia. Why do the plaintiffs keep adding that they weren't consulted about the public health order? Chief Judge at Common Law Beech-Jones explained in his findings that as there is no bill of rights at the federal level and nor at the state level in NSW the rights that may have been infringed upon would have to be those that the common law already recognises. There's another decode opportunity below. One of the main grounds of challenges in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who choose to not be vaccinated especially their freedom or right to their own bodily integrity, said the New South Wales Supreme Court judge during the dismissal. Kassam represents the first major legal decision in Australia in relation to mandatory COVID-19 vaccination requirements for workers. While the plaintiffs made clear that their employment had been impacted by orders requiring vaccination, additional challenges were made against what effectively amounted to travel restrictions imposed on their LGAs. Hi All, I'm pleased to announce our next live stream on the 8th of October at 6pm (AEST) with Greg Dunstan, Mona Vale lawyer, discussing the court cases in t. 6. 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. NSW Supreme Court will hand down its Judgment in the case of Kassam; Henry v Hazzard TODAY 15 October 4:00pm Case raises very serious legal issues surrounding mandates for essential workers & we'll soon see where the NSW Courts stand https:// youtu.be/wqq2AEAz91o His Honour outlined that the imposition of Order No 2 was genuine. View, Charged with drink driving or another traffic offence, get outstanding representation in any NSW court for a fixed fee This debate spilled out onto the streets in the form of freedom protests, as well as into the NSW Supreme Court with the case of Kassam versus Hazzard, which challenged the powers in the Public Health Act 2010 (NSW) (PHA) that permitted numerous orders that affected citizens rights. Orders and directions made under the Public Health Act that interfere with freedom of movement, but differentiate between individuals on arbitrary grounds unrelated to the relevant risk to public health such as on the basis of race, gender, or the mere holding of a political opinion, would be at severe risk of being held as invalid and unreasonable. 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. Even though I am supportive of the need to take proportionate and strong action to protect the community, these actions have not been subject to sufficient scrutiny. 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). 1Simon Harding & Ors v Brett Sutton & Ors (S ECI 2021 03931) and Belinda Cetnar and Jack Cetnar v State of Victoria & Ors (S ECI 2021 03569). "This is one of the grandest thought experiments of our time, a tremendous feat of imaginative reporting!" Bill McKibben, author of Deep Economy and The End of Nature Tel It is possible that it will not be tenable to maintain the employment of health care workers who do not comply with the order and the Health Services Union has certainly raised such concerns in the media. . The court disagreed with every argument presented by the plaintiffs, rejecting all challenges on all grounds. The professor has explained that the pursuit of rights-encroaching antiterror laws following 9/11 was in no way confined to our country. But until we get that, then people are just going to find themselves disappointed in courts arguing for rights that the legal system doesnt protect. Under the order, teachers, aged care workers and health care workers must get vaccinated within specific periods; otherwise, they will not be allowed to enter their places of employment. Scan this QR code to download the app now. Instead, it applies a discriminate, namely vaccination status, and on the evidence and the approach taken by the minister, is very much consistent to the objects of the Public Health Act., ublic Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Delta Order). Sign up so we can always stay in touch. Constitutional Law Professor George Williams. The implementation of this health order has resulted in workers in New South Wales being forced to choose between being vaccinated by the state-given deadline, or losing their jobs. On Wednesday, the court heard the final submissions for two suits that sought to invalidate Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (Delta Order). All on Government sites and with person references. Video: Al-Munir Kassam v Bradley Ronald Hazzard, Directions Hearing of the Supreme Court of New South Wales, 3 September 2021 (start 11:12 mins) . No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted. 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. There is a lack of knowledge about the state of affairs of the trauma treatments in Europe. Mr Larter contended that the public health orders are not reasonable, meaning that it was not legally permissible for Brad Hazzard, the NSW Minister for Health and Medical Research (Minister) to make the orders, having regard to the risk to public health posed by the COVID-19 virus. Kassam v Hazzard 6 January 2022; S3/2022 [2021] NSWCA 299; Eliezer v The . It has not taken long - less than 3 weeks, in fact - for Deputy President Dean's widely-publicised minority dissent in the recent Full Bench decision of Jennifer Kimber v . The plaintiffs. (a) create a form of civil conscription; and One set of proceedings was brought by Al-Munir Kassam and three other plaintiffs against the health minister, the Chief Medical Officer, the state of NSW and the Commonwealth, specifically around whether section 7 of the PHA legitimately or reasonably allowed for the imposition of Order No 2. That the Proceedings be Dismissed. 8:45 am. Supreme Court New South Wales Case Name: Kassam v Hazzard; Henry v Hazzard Medium Neutral Citation: [2021] . Save pages and articles youre most interested in to read later on. The Supreme Court issued its decision of Larter v Hazzard (No 2) [2021] NSWSC 1451, concerning an application filed by a NSW paramedic, John Larter, to have two public health orders1 declared invalid. So, for example, some of the very severe travel restrictions that prevent Australians even exiting the country, let alone citizens returning home from overseas. He ruled that the right to bodily integrity was not violated as the orders did not authorise the involuntary vaccination of anyone, while the degree to which the freedom of movement was impaired differed depending on whether a person is vaccinated or unvaccinated. The Minister for Health and Medical Research, Bradley Hazzard (, The health orders are either outside of the power conferred by the. Then, one would hope that the trail would have to cease. The problem for the case is that firstly, it only applies to Commonwealth laws and not state laws. 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. We have been lacking those things. As his Honour explained, Kassam consisted of two proceedings brought against NSW health minister Brad Hazzard, around restrictions upon "authorised workers" to leave "areas of concern" and the prevention of some from continuing to work in the construction, aged care and education industries. By Paul Gregoire and Ugur Nedim p 28128 Category: Principal judgment Parties: Proceedings 2021/249601 Al-Munir Kassam (First Plaintiff) George Nohra (Second Plaintiff) . One set of proceedings was . His Honour makes clear that in deliberating upon these issues, it was not the courts function to consider the merit in the minister having imposed certain rules or to pass judgement on the efficacy of medical treatments, both those rolled out and those that remain unapproved. Our team is actively monitoring and considering the implications of legal and regulatory developments in response to the COVID-19 pandemic. Across the road from Justice Precinct carpark, Kassam v Hazzard Was Bound to Fail: An Interview With Professor George Williams. But these hopes were dashed on Friday, October 15, when the court . But we dont. It is also not the courts function to conclusively determine the effectiveness of some of the alleged treatments for those infected, or the effectiveness of Covid19 vaccines especially their capacity to inhibit the spread of the disease. - the government is in full social-destruction mode; this is the attitude that gets us 'Alice Springs' today. Save (2) Please login to bookmark Username or Email Address Password Remember Me A judge has found three lawsuits contesting compulsory COVID-19 vaccination orders by [] 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. 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.. All grounds of contention were dismissed. If Australia had a bill of rights, for example, which guaranteed bodily autonomy or freedom of movement. [LINK to full judgment] I have to say I am both impressed and dismayed by this critically important case heard before the full board of the Fair Work Commission, especially given the significant legal losses in Kassam v Hazzard, Larter v Hazzard, Can v NSW and Davis vs Sapphire Aged Care (leave a comment if you want links to any of those cases).. . Can Police Enter My Residence to Check Compliance With a Public Health Order? These have eroded the rights of all Australians, often in ways that are not fully understood. The Supreme Court of New South Wales recently published a decision that found the NSW public health orders mandating COVID-19 vaccination for some workers were not unlawful. The NSW Supreme Court has ruled that Health Minister Brad Hazzard's vaccination rules for workers are legal. [67] Second, the passages relied on and passages to similar . The Judge rejected the constitutional argument regarding civil conscription and an asserted inconsistency with the immunisation register act, finding no constitutional basis for these submissions. So, the contention that the vaccine mandates are unconstitutional as they breach this prohibition is unfounded, as the ban relates to those administering a treatment and not people receiving any such medical procedure. More than a million people tuned in to the live stream of Kassam v Hazzard; Henry v Hazzard via the New South Wales Supreme Court's YouTube channel over the past couple of weeks, many hoping for a judgement which invalidates public health orders which mandate vaccines for certain industries, such as healthcare, aged care and construction. The verdict went on to explain that,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. 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. In other words, it was a matter for the Minister to determine whether reasonable grounds existed for the making of the order. Has an ultra vires argument ever worked in Australian law? 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. By rejecting non-essential cookies, Reddit may still use certain cookies to ensure the proper functionality of our platform. To deal with the larger problem you need the political solution, hence the call for a bill of rights a charter of rights that actually puts something within our legal system that provides respect and protection of these rights. Nor did you have the public seeing the debate and scrutiny that would give them confidence that the right actions were being taken. Another key issue surrounding the case is that neither the Commonwealth nor NSW has a bill protecting citizens rights in law. Kassam represents the first major legal decision in Australia in relation to mandatory COVID-19 vaccination requirements for workers. You may be trying to access this site from a secured browser on the server. Supreme Courts Rules COVID Fines Invalid as the Penalty Notices Did Not Specify the Offence, Young Man Acquitted of Murder, After Key Witness Exposed as a Police Informant, Prosecution Must Prove Date of Alleged Criminal Offence.
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