Laws requiring workers in aged care and some in construction to be fully vaccinated against COVID-19 remain valid in NSW after an urgent appeal was rejected.
Byron Bay aged care worker Natasha Henry and Sydney construction worker Al-Munir Kassam had their case rejected again by Court of Appeal president Justice Andrew Bell, and Justices Anthony Meagher and Mark Leeming on Wednesday.
Both submitted they should not pay for the legal proceedings if they lost, due to the case raising “human rights” issues and its “public importance” in the context of a global pandemic.
But they were ordered to pay costs due to the “benefit of a detailed, comprehensive judgment of the primary judge and no error was demonstrated on appeal,” nor any new arguments advanced, the court found.
In September the two challenged health minister Brad Hazzard’s public health orders along with eight others, arguing their rights to bodily integrity and freedom of movement were being impinged.
But Justice Robert Beech-Jones in October rejected the claim saying the legislation underpinning the orders did not violate bodily integrity, as the orders didn’t authorise the involuntary vaccination of anyone.
He also dismissed claims Hazzard acted outside his powers, by not asking the right questions or failing to take into account relevant considerations.
A fast-tracked appeal application was heard on November 29 and 30, and all grounds were dismissed, besides those which involved the proper construction of section seven of the Public Health Act.
The state conceded these orders have ongoing significance due to the continuing Education Order, and the fact that the COVID-19 virus continues to mutate and risk the public’s health.
But nothing in any of the orders requires, let alone coerces, aged care workers, educational professionals, and those in the construction industry to be vaccinated, the court concluded.
And while notions of “consent,” “free choice,” and “coercion” were deployed in distinct contexts throughout the appeals, all failed to gain any more traction in the second instance.
Kassam, an occupational health and safety officer for a construction site supplier, in October said his own research led him to believe vaccines did not lessen the transmission of COVID-19.
Henry said she believed she had “basic human right in Australia” to bodily integrity and the right to earn a living.
But Justice Beech-Jones found evidence of NSW infectious diseases specialist Professor Kristie Macartney and other experts more compelling.
“The weight of proper scientific opinion … suggests that the COVID-19 vaccines reduce the risk of acquiring an infection and then transmitting the disease once infected, although the vaccines are less effective against the Delta variant,” the judge found.