NSW challenge to public health orders requiring vaccinations in certain workplaces dismissed

Article by Jennifer Holdstock

The NSW Supreme Court has today delivered a strong judgment upholding the validity of public health orders requiring vaccinations in certain workplaces.

In the cases of Kassam v Hazzard and Henry v Hazzard [2021] NSW SC 1320, all grounds of challenge were dismissed. The full decision is available here: Kassam v Hazzard; Henry v Hazzard – NSW Caselaw

The various plaintiffs worked in the construction, education and aged care fields, and were subject to public health orders requiring them to have double vaccinations against COVID-19 in order to attend their workplaces.

Mr Kassam is an occupational health and safety worker employed by a construction company.  The construction company is run by his co-plaintiff, Mr Nohra.

Among the grounds argued in the Kassam case, were:

1. No active consideration – that the Government failed to properly consider the effect of the public health orders;
2. Scope of power – that the State Government did not have the power to make such orders;
3. Unreasonableness – that the effect of the public health orders was unreasonable;
4. Inconsistency with LEPRA – that the public health orders are inconsistent with the Law Enforcement (Powers and Responsibility) Act 2002 (NSW)
5. Constitutional ground – civil conscription
6. Australian Immunisation Register Act 2015

In the Henry case, Natasha Henry and Selina Crowe are aged care workers and Julie Ramos is a teacher.  Similar grounds were raised, such as:

1. Ultra vires – illegality
2. Improper purpose
3. Irrelevant considerations
4. Wrong question
5. Natural justice
6. Unreasonableness

Importantly, the Court found that the public health orders were properly made, do not infringe the constitution, or any personal rights such as right to freedom of movement and bodily integrity.

The Court said it was not its place to make findings as to the most effective treatment options or vaccine options for the management or prevention of COVID-19, and accordingly did not do so.  However, the Court was satisfied that there was a need for public health orders to be made, to protect the health of the public in the face of the global pandemic.