The NSW Supreme Court has dismissed two legal challenges seeking to invalidate public health orders which require workers in the aged care, construction, education and healthcare sectors to be vaccinated and impose strict lockdown restrictions for residents in areas of concern.
In doing so, the Supreme Court determined the public health orders were valid and consistent with the powers conferred to the NSW Health Minister under the Public Health Act 2010 (NSW) (Public Health Act).
Workers affected by the public health orders commenced proceedings seeking to invalidate the Public Health (COVID 19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), Public Health (COVID 19 Aged Care Facilities) Order 2021 and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW), (together, the Public Health Orders) on the following grounds:
In dismissing the challenges, the Supreme Court held that the Public Health Orders did not violate any right to bodily integrity.
The Supreme Court recognised that the Public Health Orders mandated COVID-19 vaccinations as a condition of work in certain industries and curtailed the freedom of movement, “which in turn affect’s a person’s ability to work (and socialise) in areas of concern”. However, the Public Health Orders do not authorise involuntary vaccination and do not interfere with a person’s right to bodily integrity as pleaded by the plaintiffs.
The Court found that the Public Health Orders' restriction on unvaccinated individuals was authorised under the Public Health Act. The Supreme Court made this finding by:
Despite the arguments put forward by the plaintiffs, the Supreme Court found the differential treatment of people according to their vaccination status was not arbitrary or unrelated to the relevant risk of public health and therefore was consistent with the Public Health Act. To illustrate, the Supreme Court stated public health orders based on arbitrary grounds unrelated to public health, including race, gender, or a political opinion, would “be at severe risk of being held to be invalid as unreasonable”.
Furthermore, the Supreme Court found the plaintiffs’ reliance on the Constitution was misconceived as the relevant section 51(xxiiiA) of the Constitution is directed to the legislative power of the Commonwealth and the Public Health Orders were an exercise of the NSW Government’s legislative power.
It is important to note that the Supreme Court made it clear that the Court’s role was not to assess the merits of the Public Health Orders as a response to the COVID-19 pandemic. Instead, the sole task of the Supreme Court was to determine the legality of the Public Health Orders within the limits of the Public Health Act.
We anticipate the two remaining challenges, insofar as they refer to public health orders under the Public Health Act, will likely also be dismissed, given the challenges are made on similar grounds to these proceedings.
Considerations for employers
The Public Health Orders that formed the focus of this decision operate separately to an employer’s lawful and reasonable directions.
For employers considering whether to mandate COVID-19 vaccinations as a condition of employment or a requirement for returning to work, this continues to remain a question as to whether such a direction is “lawful and reasonable” in the circumstances, including by reference to the employer’s specific industry, the work environment and the type of work performed.
However, in the context of risks to public health, the Supreme Court’s decision highlights two key findings:
These proceedings are among a total of five proceedings seeking to invalidate the NSW Government’s Public Health Orders. One of these proceedings has already been dismissed by consent, and the remaining two proceedings will be heard by the Supreme Court next month.
The Supreme Court's decision of Kassam v Hazzard; Henry v Hazzard  NSWSC 1320 can be accessed here. We will continue to monitor these proceedings and will provide an update in due course.
If you have any questions about this article, or any other workplace issues, please speak to us or contact us here.
Authors: Louise Rumble & Declan Johnston
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.