All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. Al-Munir Kassam & Ors. Scan this QR code to download the app now. ICR AF lO th Anniversary 1977-1987 Agroforestry a decade of development Edited by H.A. Bodily integrity is not violated because health orders impair freedom of movement. Should Individuals Be Allowed to Sue the Media for Serious Invasions of Privacy? 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. No one told me I can do BIG bits with the unicorn in CA on MM!!!! We also share information about your use of our site with our social media, advertising and analytics partners who may combine it with other information that youve provided to them or that theyve collected from your use of their services. Theres a range of pretty basic rights that are missing in our system. 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. Please remember this corrupt woman is the expert witness called on to help defend Brad Hazzard yesterday. 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. What this particular clause in the Constitution says is the Commonwealth cannot force doctors to provide services. Judgment: Kassam Henry v Hazzard DISMISSED#mandatoryvaccination health orders issued by #Hazzard for authorised workers ruled LEGAL.Bodily integrity is not violated because health orders impair freedom of movement. 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. Section 51(xxiiiA) of the Australian Constitution prohibits parliament from passing laws in terms of a civil conscription around medical and dental services. 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. In the simplest of terms, the no jab, no job policies left thousands of workers with no option other that to receive approved COVID-19 vaccinations or be unable to attend their workplaces. Brad Hazzard MP, Minister for Health and Medical Research (2021/00259688). 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. Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015. B. Deline & L. A. Kahlor Planned Risk Information Avoidance: A Proposed Theoretical Model. #covid19. The orders requirements effectively make employers a private sector vaccination police force, conscripted by Ministerial order, the plaintiffs said. 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. They have the ability to make decisions that have an extraordinary impact upon our lives especially in terms of the counterterrorism cases that see people being gaoled and yet, we lack even the most basic rights to check and balance them. 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. In some cases, arguably not. Do they (and their lawyers) genuinely think that every individual should be consulted on a public health order? Sydney Criminal Lawyers spoke to the eminent Professor George Williams about the constitutional ground raised in Kassam, the difference a bill of rights could have made to the case, and why, until we get such a law at the federal level, its near impossible to get any traction in such cases. Please enable scripts and reload this page. Queensland also recently had a matter in the Industrial Relations Commission, which was unsuccessful on 22 October 2021. (a) create a form of civil conscription; and 1:02:40 For my case for my, yeah. Justice Adamson clarified that the Court's jurisdiction was confined to determining whether it was open to the Minister, in the exercise of the power granted by the Public Health Act 2010 (NSW) (Act), to make the public health orders, and that it was not a matter for the Court to stand in the shoes of the Minister and decide what public health order could or should have been made. 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. 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. So, are a number of the things that have been put in place really reasonable and proportionate responses to the health crisis? 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. the TPB is that intentions may not be strongly related to actual behaviors (Dixon, Deline, McComas, Chambliss, & Homann, 2014; Webb & Sheeran, 2006). challenged by several workers including one in construction, teaching, and healthcare who have all been required to receive a Covid19 vaccination. The lead vaccine researchers driving all government policy in Australia received $65,330,038 in government grants covering 2020-2021. Proposed Law Would Make Employers Liable for Injuries Arising from Vaccine Mandates. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. BREAKING: from the court filings in the #NSW Supreme Court case on mandatory vaccination. All grounds of contention were dismissed. Indeed, of late, rights issues have been front and centre in Middle Australia, whereas quite often freedoms and liberties have been taken for granted. There's another decode opportunity below. After reviewing the powers conferred by the PH Act and making findings in respect of the Minister's decision-making processes, his Honour rejected all of the asserted grounds of invalidity and dismissed the proceedings. It might have been a more successful argument if there were other restrictions that applied. 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). We will call you to confirm your appointment. Al-Munir Kassam v Bradley Ronald Hazzard. 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). Get the best defence in any NSW Court We dont have strong rights to bodily autonomy. [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).. 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. and that these health orders interfered with fundamental rights and freedoms. It provides addresses and contact details of courts throughout NSW, as well as short videos about the general location and how to get to each court. Applying for a grant of letters of administration, 4. In terms of the reasonableness of orders, especially those having a greater impact upon the unvaccinated, his Honour set out that if the laws differentiated on an arbitrary measures, like race or class, there would be an issue. **Do not ask for legal advice in this subreddit. The Commonwealth said that the enactment of the Public Health Act was in line with its legislative powers, and the enactment of the Delta Order was in line with the power given to Hazzard. Rebel News Network Ltd. 2023. 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. The problem for the case is that firstly, it only applies to Commonwealth laws and not state laws. And the Fair Work Commission has made a judgment on Jennifer Kimber v Sapphire Coast Community Aged Care Ltd. 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. UNSW Law Professor George Williams has long argued the need for rights protections to be enacted at the federal level. Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the PHA clearly authorises, explained the justice, who then knocked down the argument that this then violates the right to work, as common law doesnt protect this right. The court disagreed with every argument presented by the plaintiffs, rejecting all challenges on all grounds. The courts function, he further outlines, was to determine the legal validity of the impugned orders, including whether any of the grounds reveal that no reasonable minister could have considered them necessary to deal with the identified health risk and its possible consequences. Before judgement, Order (No 2) was repealed, but the other orders remain in force. Directions: Al-Munir Kassam v Bradley Ronald Hazzard Directions: Natasha Henry v Brad Hazzard Directions: John Edward Larter v The Hon Brad Hazzard Directions: Ibrahim Can v State of NSW. But a relevant point relating to the so called mandatory jab the judge made in Kasam V Hazzard was that Hazzard didn't inject anyone but he encouraged people by making them believe it was . Visit, Public Health (COVID19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), View all posts by Sydney Criminal Lawyers, Hi there can bail be put on a person after first mention at court if not on bail conditions from the police. In response to the reliance by the plaintiffs on the dissenting judgement of Deputy President Dean in Jennifer Kimber v Sapphire Coast Community Aged Care [2021] FWCFB 6015, his Honour also noted that the function of determining the validity of the health order is for the court to discharge and the function of determining whether it should have been made is for the political process.7, One of the main grounds of challenge concerned the effect of the health orders on the rights and freedoms, especially in respect of the bodily integrity of persons choosing not to be vaccinated. The Minister did not give evidence directly, despite being the relevant decision-maker. 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. These people were from the health, aged care, construction and education industries and Kassam v Hazzard: NSW Supreme Court - Challenging the . Another key issue surrounding the case is that neither the Commonwealth nor NSW has a bill protecting citizens rights in law. But there are a number of measures that may well be problematic. Supreme Court of New South Wales, Beech- Jones CJ, 15 October 2021 . But these hopes were dashed on Friday, 15 October 2021, when the court delivered its judgement dismissing the cases. It was not successful firstly, because the NSW Health Act provides a very broad and open-ended power for the government to make public health orders. All NSW Courts 5Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356. All of the asserted grounds of invalidity raised by both sets of plaintiffs have been rejected, Justice Beech-Jones ruled in mid-October. Sign up so we can always stay in touch. 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,. 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.. Kassam represents the first major legal decision in Australia in relation to mandatory COVID-19 vaccination requirements for workers. 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. 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 New comments cannot be posted and votes cannot be cast. 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. And secondly, there is no compulsion upon doctors to provide vaccinations. Despite this, both sets of . Instead, the court's function is to determine the legal validity of the orders, which includes considering whether no Minister acting reasonably could have considered the health orders necessary to deal with the risk to public health and its possible consequences. So far as the right to bodily integrity is concerned, it is not violated as the impugned orders did not authorise the involuntary vaccination of anyone. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 . The findings released by Justice Beech-Jones provide a detailed explanation of the consideration he gave to each of the close to a dozen separate grounds raised against the health measures, as well asthorough reasons as to why each of them didnt stand. By effectually compelling individuals to be vaccinated, their right to bodily integrity is violated. The plaintiffs also argued that Hazzard exceeded the scope of the powers granted to him by the Public Health Act. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [70]. That the Proceedings be Dismissed. Those matters are for the decision-maker (that is, the Minister). The court heard the final submissions for two suits against the health minister on Wednesday. You can find our COVID-19 collection here. 1:02:25 I want to get a summary judgment which outline in the document called order judgment so I'm claiming those reliefs. One set of proceedings was . Is the hybrid work model the best of both worlds? 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. Save pages and articles youre most interested in to read later on. So, that itself is highly problematic: that you would have such extraordinary powers exercised without the protections needed to ensure that they are proportionate. No matter what the outcome is, we keep looking forward. However, as the Henry plaintiffs sought to rely on the reasoning it is necessary to record why that judgment is of no assistance. 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. [66] First, the relevant parts of the decision relied on by the Henry plaintiffs do not address the case law concerning consent to a medical treatment. (d) acted unreasonably; The health orders are inconsistent with the Constitution, in that they: Some are talking about the announcement that Queen Lizzie has left this realm. Its hard to imagine a broader power than that. (b) are inconsistent with the. 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. The plaintiffs also sought to rely upon the dissenting judgment in Jennifer Kimber v Sapphire Coast Community Aged Care [2021] FWCFB. This is a subreddit for Australians (or anyone interested in Australian law) to discuss matters relating to Australian law. 2021/252587 . To support the challenges, evidence was presented about concerns regarding the efficacy of COVID-19 vaccinations including that they are ineffective against the contracting or spread of the disease, and the insufficiency of data regarding both short and long term potential side effects. All of the plaintiffs had refused to be vaccinated despite it being a requirement for them to do so in relation to continuing their employment at least during the lockdown under the terms of various public health orders, with a range of reasons being raised around coming to an informed choice. In terms of the contention as to whether a power in Order No 2 that required police officers to check a persons documentation if they were exempt from the mask mandate was inconsistent with the powers contained in the LEPRA, this assertion was again dismissed. These are all matters of merits, policy and fact for the decision maker, and not the court. 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. We dont have a general freedom of speech. 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. But these hopes were dashed on Friday, 15 October . Can Police Enter My Residence to Check Compliance With a Public Health Order? 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. 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. By Paul Gregoire and Ugur Nedim Even following the staunch decision delivered by His Honour in Kassam there can be no doubt that with hundreds of plaintiffs still currently before Australian courts and tribunals, and millions of others affected by the public health orders in place across the country, the issue of COVID-19 vaccinations will continue to dominate the employment law landscape in the coming weeks and months. 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) . Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the Public Health Act clearly authorises, Justice Beech-Jones found. Defendants . (b) asked the wrong question or took into account irrelevant considerations; Vaccine Mandates: Recent Case Law. Posted October 26, 2021 by Sydney Criminal Lawyers & filed under Criminal Law, NSW Courts. judgment of the Court or to be used in any later consideration of the Court's judgment. Th. We will call you to confirm your appointment. The Henry and Kassam cases will also attempt to show the laws are for an improper purpose, breach privacy, breach natural justice and that the minister considered irrelevant matters when writing the laws. 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. The Supreme Court has dismissed the proceedings in Kassam v Hazzard and Henry v Hazzard and has published its reasons. 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. . Weve had law by decree in NSW, and indeed, at the federal level for some time. Significance of the Kassam decision. Or perhaps the fall of London Bridge . 1:02:40 For my case for my, yeah. (a) failed to have regard to various relevant considerations; He also dismissed claims Health Minister Brad Hazzard acted outside his powers, by not asking . 4 Communication Theory 00 (2019) 1-23. fM. Both plaintiffs refused to be vaccinated and claimed that various Public Health Orders requiring vaccination were invalid. Save pages and articles youre most interested in to read later on. Your businesses, like every business, exists deeply intersecting with environmental, social, and governance (ESG) concerns. Mandatory vaccination health orders issued by the NSW Chief Health Officer have been upheld. Get updates on Rebel News coverage in Australia delivered straight to your inbox so you never miss a story! Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (on Caselaw) saw the Court dismiss two proceedings which in substance sought orders that certain Covid 19 public health orders were invalid.Justice Beech-Jones, the Chief Judge at Common Law, stated at [9] - [11]: 9 Although it was contended that the impugned orders interfere with a person's right to bodily integrity and a host of other . 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. We have been lacking those things. Thats the bedrock problem. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. 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[4] Jennifer Kimber v Sapphire Coast Community Aged Care [2021] FWCFB at [115] - [129]. 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.. 8:45 am. 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. Exclusive Interview with Tony Nikolic from AFL solicitors explains today's judgment in Kassam & Henry v Hazzard. Get business, like every business, is deeply intertwined with environmental, social, the administration (ESG) affairs. Although it was contended that the impugned orders interfere with a persons right to bodily integrity and a host of other freedoms, his Honour explained, the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a persons ability to work.