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Australia Vaccine mandate challenge expands to more than 100 plaintiffs

05:21  23 october  2021
05:21  23 october  2021 Source:   theage.com.au

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A legal challenge to Victoria's COVID-19 vaccine mandate launched by a teacher and her husband has been dramatically expanded to include more than 100 plaintiffs from a broad range of occupations, including one who works for vaccine manufacturer CSL.

22/10/21 Simon Harding is the lead plaintiff in a new legal challenge to the vaccine mandate in Victoria. Photograph by Chris Hopkins © Chris Hopkins 22/10/21 Simon Harding is the lead plaintiff in a new legal challenge to the vaccine mandate in Victoria. Photograph by Chris Hopkins

Revised documents filed in the Supreme Court of Victoria accuse Chief Health Officer Brett Sutton and other senior health bureaucrats of breaching the state's Human Rights Charter when they imposed vaccine mandates across several industries, including health, education and construction.

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The case runs counter to public health advice across the nation, which insist vaccination rates above 80 per cent are the best way to prevent serious illness from COVID-19. Trials of vaccines in adults, each with tens of thousands of participants, showed they were both safe and effective and tended, depending on the product and study, to provide between 80 and 95 per cent protection against serious disease.

22/10/21 Simon Harding is the lead plaintiff in a new legal challenge to the vaccine mandate in Victoria. Photograph by Chris Hopkins © Chris Hopkins 22/10/21 Simon Harding is the lead plaintiff in a new legal challenge to the vaccine mandate in Victoria. Photograph by Chris Hopkins

Previous legal challenges to public health orders across the nation have been largely unsuccessful, other than a temporary injunction granted to a group of Queensland police officers who refused the vaccine.

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Another case also went before the courts on Friday, with the Nurses' Professional Association of Queensland lodging action against Monash Health in the Federal Court to prevent the organisation from sacking nurses who refuse to get the jab.

But unlike NSW, where a similar bid to overturn vaccine mandates was unsuccessful last week, Victoria's Human Rights Charter Act enshrines civil, political and cultural rights and to an extent protects them from being curtailed by government.

The new case to upend the Andrews governments' no jab, no work policy claims that Professor Sutton acted "unlawfully" by overriding several fundamental freedoms protected by the charter.

Professor Sutton and acting chief health officers Deborah Friedman and Benjamin Cowie, are also accused of acting "under the direction and at the behest" of Premier Daniel Andrews, according to the originating motion for judicial review filed by firm NOH Legal on October 21.

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The original statement of claim against the vaccine mandate was filed in early October by casual relief teacher Belinda Cetnar and horticulturist Jack Cetnar, who claimed the policy contravened the Constitution, the Biosecurity Act, the Fair Work Act and the Nuremberg Code.

The couple have been replaced as lead plaintiff by G4S corrections officer Simon Harding, who was placed on unpaid leave on October 15 after not receiving the vaccine.

Mr Harding says he is not anti-vaccination, has received vaccinations as an adult and had his children vaccinated, according to an affidavit.

"However, I have consciously chosen not to take the COVID-19 vaccination at this present time because I am concerned about the potential short-term and long-term side effects and the current lack of long-term safety data.

"I am unable to provide informed consent," Mr Harding said in the affidavit.

The father of three says he will lose his job if he remains unvaccinated.

In total, 112 plaintiffs have joined the case, including 52 authorised workers, more than 20 employer groups and 17 healthcare workers.

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Several nurses, a police officer, a Department of Justice bureaucrat and a surgeon have sworn affidavits and are named as plaintiffs.

Another plaintiff, Andrew Sticca has been employed as a biotech manufacturing associate with CSL since 2017 and has spent the past 18 months working on the production of the AstraZeneca vaccine.

Mr Sticca is yet to receive a single jab of any vaccine because he claims they have not been rigorously tested, according to an affidavit.

"I have asked CSL to provide me with any data or reports available to them to inform my consent to have the vaccine. However, in substance, other than a generic letter dated the 11 October 2021, I have not been provided with any meaningful information or advice," Mr Sticca said in an affidavit.

He was stood down by CSL on October 15, but continues to receive full pay.

"The only reason why I even contemplate taking the COVID-19 vaccine is under direct threat of losing my employment, which will result in my family not being provided for. I find it most upsetting that I am faced with such coercion," Mr Sticca said in court documents.

The case will be led by barristers Marcus Clarke QC, Dr Jason Harkness and Vanessa Plain, who were involved in the recent challenge against NSW public health orders that restricted the activities of residents who have not been vaccinated against COVID-19 - which failed in the state's Supreme Court on October 15.

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More than $100,000 has already been raised for the case via a GoFundMe page.

Senior lecturer at Deakin Law School and former human rights adviser Dr Bruce Chen said the court would assess whether an appropriate balance was struck against the public health objectives and other human rights.

"Human rights under the Victorian charter are not absolute. They can be subject to restrictions which are reasonable, justified and proportionate in the circumstances," Dr Chen said.

Dr Chen said the government is likely to have strong arguments in defence of mandates for health and aged care, given the exposure to vulnerable cohorts who have the right to life, and plausible arguments could be made regarding teachers.

The mandates regarding other authorised workers might be more contentious, depending on the circumstances, Dr Chen said.

The NSW Supreme Court dismissed a challenge to the mandate last week, noting it was "misconceived" or "misplaced" to directly rely on human rights because of the lack of a national or state charter in NSW, Dr Chen said.

Dr Chen said generally speaking, there are stronger human rights claims in Victorian proceedings because of the existence of the state charter.

Victoria University law lecturer Dr Bill Swannie said courts were often reluctant to interfere with decisions of government, particularly concerning public health issues.

"The question is whether the [public health directions] are demonstrably justified, and whether proper consideration was given to Charter rights in making the directions. Ultimately, this will depend on the evidence presented to the court."

In a statement, a Department of Health spokesperson said: "We stand by our plans to make vaccination a requirement for all essential workers, particularly those who can't work from home."

The revised court action in Victoria is expected to place further pressure on the Andrews government to release documents relating to the human rights assessments and health advice it received before introducing the vaccine mandates, which were requested by Liberal Democrats MP David Limbrick on October 5.

Mr Limbrick told The Age that the government needed to answer questions about how vaccine mandates can be justified according to the Victorian Human Rights Charter.

"The government cannot complain about conspiracy theories if they refuse to tell the public how they make their decisions," Mr Limbick said.

"The only independent investigation into human rights during the pandemic so far was by the Victorian Ombudsman who found clear breaches of the charter during the lockdown of public housing towers in Melbourne last year."

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