This post is updated and re-posted with the latest publication date as new information comes to hand.
The executive and legislative powers of government, as well as journalism, have been wiped out by the current mass psychosis called Covid. Will the judiciary re-inject some commonsense and humanity back into our society and halt the slow but steady slide into totalitarianism? This blog post deals with some major legal developments in Australia, starting in September 2021:
- The Australian Vaccination-Risks Network Federal Court case
- The Palmer Queensland Supreme Court case
- The Smit Federal Court case
- The CFMEU v BHP (Mount Arthur) Fair Work Commission case
- The Larter NSW Supreme Court case
- The Harding Victorian Supreme Court case
- The Queensland Nurses Federal Court case
- The Johnston Queensland Supreme Court case
- The Dunn Tasmanian Supreme Court case
- The Cetnar Victorian Supreme Court case
- The Davis NCAT case
- The Kassam/Henry NSW Supreme Court cases
- The Can NSW Supreme Court case
- The Hocroft NSW Supreme Court case
- The Naumenko NSW Supreme Court case
- The Kimber Fair Work Commission case & aftermath
- The LibertyWorks Federal Court case
- The Graffunder Queensland Industrial Relations case
The Australian Vaccination-Risks Network Federal Court case
On 1 Feb 2022 the AVN lodged an application under s39B Judiciary Act 1903 against the Secretary of the Department of Health challenging the secretary’s decision to grant provisional approval to the three Covid ‘vaccines’. On 18 February the Secretary challenged the AVN’s competency to bring these proceedings. The AVN tried to join Mr John Neugebauer to the proceedings on 24 February, and on 8 March tried to file an amended application. On 31 Mar 2022 Justice Perry dismissed the proceedings on various grounds. On 20 Jun 2022 Justice Perry ordered the AVN to pay costs.
The Palmer Supreme Court case
Following the announcement by the Queensland government of vaccine mandates and discriminatory measures against the unvaccinated in Queensland, billionaire Clive Palmer announced on 10 November 2021 he would launch an legal action against the government.
The Smit Federal Court case
Monica Smit from Reignite Democracy, with John Harding, Murat Temel, Antoine Sandroussi, as well as some related businesses on 11 October 2021 commenced an action in the Federal Court against all Australian states and territories. The plaintiffs are represented by Tony Nikolic of Ashley, Francina, Leonard & Associates.
The first case management hearing was on 10 November before Justice Mortimer. In early March hearings were meant to take place, but nothing substantial occurred, and on 27 June Monica Smit and some of the individual respondents were removed from the proceedings and at the same time the entire proceedings were dismissed by Justice Mortimer with the costs issue yet to be decided.
The CFMMEU v BHP (Mount Arthur) Fair Work Commission case
The CFMMEU is challenging the vaccinate mandate issued by BHP against its workforce. On 10 Nov the Fair Work Commission declined to delay the implementation of BHP’s mandate.
The Full Bench of the Commission published its decision on 3 December 2021, with a summary available here. The decision is a partial success for the applicants. The Commission said that employees are obliged to comply with directions by their employer which are lawful as well as reasonable. This depends on the nature of employment, for example. It also decided that BHP had an obligation to consult with the workforce by complying with s47(1) of the Work Health and Safety Act (NSW).
The Larter Supreme Court case
Mr John Larter, a long-standing paramedic, commenced his lawsuit on 24 September 2021 in the Supreme Court of NSW. His lawyer is Robert Macaulay from Pryor Tzannes & Wallis. Mr Larter has received most pre-trial publicity, which is probably not surprising given he’s also a councillor and deputy mayor of Snowy Valleys Council. He has also been present in social media, releasing several video interviews, including this one.
A subpoena to give evidence issued to the first defendant was dismissed on 1 November.
The main hearing took place on 4 and 5 November 2021 before Justice Christine Adamson. The case was limited to questioning the reasonableness of the public health orders relating to health care workers. The science behind the nonsense wasn’t questioned at all. Once again, counsel Mr Shane Prince had an uphill battle, and unfortunately, the plaintiffs had failed to specifically plead the purpose of these orders. Mr Prince cross-examined Chief Health Officer Kerry Chant at length.
The judgment was handed down on 10 November, and the case was dismissed.
On 9 December justice Adamson ordered the plaintiff to pay the defendant’s costs.
The Harding Victorian Supreme Court case
Simon Harding and over 120 others sued Victorian Chief Health Officer Brett Sutton and the state. They seek relief in relation to Victorian directions concerning mandatory COVID-19 vaccinations.
After hearings in early November, Richards J handed down a judgment on 11 November, saying the court has no power to suspend the operation of the Public Health and Wellbeing Act 2008, and an application for interlocutory relief was dismissed.
On 29 November, the judge published an order relating to expert evidence from the parties which is to address the questions in relation to vaccine efficacy, vaccine safety, and public health measures. The experts must constrain their evidence to their area of expertise, and the evidence must be filed by 15 December.
The trial will take place on 15 March 2022. Updates here.
The Queensland Nurses Federal Court case
QNurses First Inc. and Ms Angela Kallista, represented by Fwel Pty Ltd (Fair Work Employment Lawyers), on 22 Oct 2021 filed for an injunction against Monash Health to prevent mandatory vaccination.
An interlocutory hearing took place on 3 November before Justice Snaden. The case was based on s340(1) of the Fair Work Act. The judgment was handed down on 5 November and the applicants’ case was dismissed.
On 8 March 2022 the defendant filed an affidavit and the plaintiffs filed its submissions, but on 24 March Justice Mortimer granted the plaintiff leave to discontinue the proceedings with no orders as to costs, saying the case was not doomed to fail.
The Johnston Queensland Supreme Court case
This case comprises two matters, one involved seven police officers, the other involving one nurse and twelve ambulance officers. Both sets of applicants, represented by Alexander Law, challenge health orders mandating Covid vaccination.
On 26 October 2021, Justice Jean Dalton granted the applicants a temporary reprieve, pending a 3-day trial in December. The decision is Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275.
The case may eventually be referred to the Queensland Industrial Relations Commission.
The Dunn Tasmanian Supreme Court case
On 28 October, retired surgeon David Dunn launched an action in the Tasmanian Supreme Court against the vaccine mandate for healthcare workers that commenced on 31 October. The barrister acting for Mr Dunn and hundreds of other health workers is Raymond Broomhall. They argue the mandate is an abuse of power, breaches the State Services Act and the Public Health Act.
Tasmanian Supreme Court Chief Justice Alan Blow refused an injunction against the vaccine mandate. He said the case did not have sufficient chances to be successful, and called the arguments brought “remarkably weak”.
The Cetnar Victorian Supreme Court case
Belinda Cetnar and Jack Cetnar, both teachers, sued the State of Victoria, Chief Health Officer Professor Brett Sutton, Acting Chief Health Officer Associate Professor Deborah Friedman and Department of Health Secretary Professor Euan Wallace. On 28 October the proceedings were discontinued by the consent of the parties, but the couple joined the Harden proceedings.
Updates are available here.
The Davis NCAT case
Nurse Danielle Davis applied for administrative review on 23 September 2021. The application challenging the vaccine mandate for health staff was heard on 28 September. She was represented by E Turner. The respondents were the NSW Minister for Health and the Northern NSW Local Health District. Ms Davis was unsuccessful. Tribunal member L Pearson referred to the Kassam decision, and also stated ther Tribunal would not have jurisdiction to review a public health order. The decision of this case is available here.
The Kassam/Henry Supreme Court cases
Mr Al-Munir Kassam and three other plaintiffs commenced a lawsuit in the NSW Supreme Court on 10 September 2021. There are actually 4 plaintiffs in the Kassam case: a construction worker, a tradie, and two healthcare workers (one employed by Laverty Pathology and the other a private patient officer at Bankstown Hospital). The lawyer is Tony Nikolic from AFL Solicitors.
Ms Natasha Henry and 5 other plaintiffs started a lawsuit in the NSW Supreme Court on 10 September. The six plaintiffs in this matter include a special education teacher, an aged care worker, and a car salesman. The lawyer is Nathan Buckley from G&B Lawyers.
These matters are heard together because they cover similar legal and factual issues. The “lawsuit” links above take you to the available court documentation which shows what the plaintiffs’ case is, including their submissions and the defendant’s submissions.
Essentially, the plaintiffs question the legality of the Public Health Orders that effectively make vaccination mandatory for the plaintiffs, making various legal and factual arguments as to why the minister’s orders are illegal.
Throughout September there was some argy-bargy about the production of various pieces of evidence.
On 24 September the trial judge, Justice Robert Beech-Jones, threw out a subpoena by the plaintiffs that sought for the NSW Government to release documents that presumably would have had to be available to the premier Ms Gladys Berejiklian and formed the basis of a statement she made on Channel 9’s Today Show on 1 September: “Well firstly, we weren’t able to make the vaccines mandatory, it’s not in our power to do that.”
On 28 September at a directions hearing, Justice Beech-Jones was to decide on whether three NSW Cabinet documents Ms Henry’s lawyers had requested from the defendants would have to be produced. These documents were an email chain and two reports that presumably formed the basis for the NSW Health Minister’s decisions to impose all the Public Health Orders that effectively makes vaccination mandatory for certain people. The Cabinet documents were of course secret and there is some caselaw that suggests such documents could only be revealed in the most exceptional circumstances. In relation to some emails between departmental lawyers, the judge decided against admitting them into evidence as they were privileged documents. The judge understandably excused himself from ruling definitively on the other two documents, named “13” and “14”, because in the event he would have to read the relevant documents and they were then deemed inadmissible, it would compromise his position as the trial judge. Fair enough, after all, you can’t very well un-know something! His solution was to ask the duty judge to rule on the admissibility of the documents the next day.
On 29 September 2021, duty judge Richard Cavanagh was asked to determine whether or not the defendants had to produce these documents. In the end, the judge decided not to allow these documents into evidence. The key paragraph in this judgment reads as follows:
71. No doubt circumstances existing in our society at the present time might be viewed as exceptional.
72. However, in my view the plaintiffs have not identified why in the circumstances in this case the public’s interest in the proper administration of justice would outweigh the public interest in maintaining confidentiality of Cabinet documents.
Henry & Ors v Hazzard (No 2) [2021] NSWSC 1235
So it appears that had the plaintiffs actually had a chance to get these documents into evidence but simply failed to bring convincing arguments. I listened to the arguments by counsel for the plaintiffs and thought they were pretty convincing, but perhaps even more emphasis should have been placed on the potential for this entire vaccination saga to go horribly wrong and turn into a public health disaster far greater than any virus could have been, and so knowing precisely what the government knew at the time the vaccine mandates were issued would be essential for addressing this at the main hearing. In fact, it would seem to me that to protect the public from irresponsible government action as we have seen over the last 18 months demands that all the facts are put on the table. Governments have been hiding enough behind smokescreens and outright lies.
The morning of the hearing of 30 September was spent with Justice Beech-Jones going through the various evidentiary materials, mostly witness affidavits and related reports, and determining which witnesses were to be examined before the court.
Quite a few of the witness affidavits/reports submitted by the plantiffs were rejected for lack of relevancy to the proceedings. Especially troubling is the fact that the affidavit of Ms Ulrike Kämmerer was rejected. Last year, Ms Kämmerer and about 20 other scientist had cast significant and in my view convincing doubt on the usefulness of the Covid PCR tests on which the entire scamdemic is built. But of course, if the plaintiffs’ cases are not specifically addressing this issue and can’t make the connection to the main issue of compulsory vaccination, then it’s no surprise the judge throws out the evidence. So that wasn’t a good start, in my view.
In the afternoon, two defendants’ witnesses were examined. First, Professor Kristine Macartney, who is one of the main advisors to the government and the senior editor of the Australian Immunisation Handbook. She could not be shaken. Counsel for the plaintiffs drew her attention to various scientific articles, but she waved them all off for either not being peer-reviewed, or explained why on the whole they don’t change her view that vaccines are effective, even against the Delta variant. She admitted there will always be some level of uncertainty about the safety of Covid vaccines, and she acknowledged there were some rare but severe side-effects, but she still stated there is an “enormous body of safety data”, which to me seems an exceedingly bold assertion, considering these substances have been circulating in populations only for a few months. I was generally not impressed with either counsel for the plaintiffs. Where was their chutzpah, the fighting spirit, the conviction? Were they not well enough prepared? The fact that much time was wasted trying to point the witness to specific pages of specific documents is an indication that things were not as organized as they should have been. In fact, I admired the judge’s patience. I know it’s easy for me to say, but I would have expected at least this obvious question: the Delta variant appears to be more transmissible, but is it not also clearly less virulent and lethal, looking at data from around the world?
The second witness was Dr Marianne Gale, the state’s deputy chief health officer. The cross-examination of this defendants’ witness was rather unspectacular and short.
The second hearing day on 1 October 2021 began with a cross-examination of another defendant’s witness, Danus J Everett, who has stewardship over the Australian Immunisation Register. Not much seemed to come out of that.
The barrister for the plaintiff in the Kassam matter, Peter King , then spent the rest of the day making his final submissions. Justice Beech-Jones asked him a lot of questions for clarification. In a way, it was quite fascinating to see this performance of intellectual gymnastics. As I’m writing this I have not yet read the full written submissions by the plaintiffs. One of Mr King’s main arguments was that health minister Brad Hazzard had before him nothing more than a draft of the Public Health Order in contention when he rubber-stamped it. In other words, as far as the evidence shows, he never took into consideration, as he should have on the construction of section 7 of the Public Health Act , so much important evidence that he should have considered, before making such a huge decision that affects so many people who are now effectively being coerced into getting a vaccine or lose their jobs. Mr King impressed on the judge that governments sometimes over-reach, and on this occasion, the line has been crossed. Well, I’ve been saying just that for 18 months.
Mr King expressed his frustration that the defendants did not use witnesses of any real weight, which probably goes some way towards explaining why so little came out of the oral witness examinations. The witnesses simply didn’t know. And documents that would assist are behind the veil of Cabinet. This was always going to be an uphill battle.
Another argument was that it’s unreasonable to impose a mandatory vaccination scheme, as there is no black and white outcome. It is known that the Covid vaccines don’t protect from infection, and transmissibility is only inhibited, not prevented. Not to speak of the side effects. If people are losing their jobs over an outcome of a procedure that has so many uncertainties, then that is unreasonable. I couldn’t agree more.
Mr King then brought up the famous section 51(xxiiiA) of the Australian Constitution. The few legal people who are on the side of Covid realists have cited this section as our saviour from these horrible vaccine mandates. After I did my own research on this, I knew this was probably not going to cut it, and sure enough, the judge said exactly what I predicted. The purpose of the section has nothing to do with mandatory vaccination or the patient/doctor relationship as such, and the two High Court judges in the matter of Wong who gave the section a wide interpretation were in the minority, and so their opinion has no weight. Sure, Mr King’s subsequent attempts to somehow link this section to this case were admirable, but the judge challenged Mr King every step of the way. Mr King closed his submissions by saying that unreasonableness is ultimately a question of proportionality, and these orders are disproportionate. Again, I couldn’t agree more.
On 5 October 2021, the plaintiffs’ submissions continued, with the other counsel, Dr Jason Harkness and Marcus Clarke spending some time elaborating on their written submissions. They tried to make it clear that whilst the PHOs in question did not explicitly discriminate against the unvaccinated plaintiffs, the effect was nevertheless the same. To me, it seems plainly absurd for several politicians to acknowledge and explicitly state that vaccination is not mandatory, only for whole groups of people to be faced with no other choice than to either get vaccinated or lose their jobs, through the actions of other politicians. Overall, the plaintiffs attempted to show how disproportionate and unreasonable the Public Health Orders made are, especially in light of the uncertainties that exist in the science around Covid and the Covid vaccines, given there are also treatment options available.
After lunch, Jeremy Kirk SC and Thomas Prince argued the defendants’ case. They focused mainly on the legal aspects of the case. Sure, nothing in the Public Health Orders explicitly says vaccination is mandatory. However, the perverse effect of these orders is still that without saying as much, vaccination is compulsory for those who want to keep their jobs. I have a dear friend who felt compelled to undergo this procedure against her will.
On the 4th and last day of hearing, 6 October 2021, Mr King made a lengthy statement in reply. He had another crack at the constitutional s51(xxiiiA) argument, and he did come up with some interesting reasons for why the section should be interpreted more broadly, but I’m not convinced the judge will agree. Mr King also appealed to the human aspect of this case, pointing out that for people like the plaintiffs, this is, after all, an impossible dilemma.
So then, do we live in a society where bodily integrity still means something, where individual freedoms and human rights are respected, where citizens can make their own responsible choices about their own health, where policies are made on the basis of commonsense and a sense of proportionality? Or do we already live in a heartless, collectivist society where the individual means nothing, where the state can dictate willy-nilly about our lives, without having to give so much as a reason; a totalitarian society, where plainly the greed-driven market interests of a few powerful corporations, hand in glove with corrupted governments, outweigh all other considerations and are at the same time passed off as solidarity and even philanthropy; a society where we are supposed to be nothing more than soulless consumers, and dispensable slaves to the technocrats elite that are relentlessly driving a distinctly anti-human agenda?
Justice Beech-Jones handed down his judgment on 15 October 2021 at 4pm. Unsurprisingly, both cases were dismissed on all grounds.
On 30 November, and appeal case was heard. Justices Bell, Meagher and Leeming published a judgment on 8 December dismissing the appeal unanimously.
On 2 December Justice Beech-Jones heard the parties on the costs. He delivered a judgment on 10 December ordering the plaintiffs to pay 60% of the NSW defendants, and in the case of Kassam 100% of the Commonwealth’s cost, seeing the plaintiffs were crowd-funded and so it was not unjust for the plaintiffs to pay the defendants’ costs.
The Can Supreme Court case
Mr Ibrahim Can filed a summons against the State of NSW in the Supreme Court on 16 September 2021. His lawyer is Osman Samin from Australian Criminal and Family Lawyers.
The matter is next listed on 19 October with a hearing on 4 and 5 November.
The Hocroft Supreme Court case
A lawsuit was commenced in the NSW Supreme Court on 10 September 2021 by a policewoman, Ms Belinda Hocroft. This matter was also to be joined with the Kassam and Henry matters, but Ms Hocroft discontinued her matter on 15 September. Her solicitor, Charly Tannous, himself stated that she simply was not prepared to continue, because she loved her job too much.
The Naumenko Supreme Court case
Mr Sergey Naumenko also launched a lawsuit against compulsory vaccination in the Supreme Court of NSW, around the same time as Kassam and Henry, and the proceedings were all going to be heard together. However, Mr Naumenko was self-represented and apparently out of his depth at the first directions hearing. On 30 September, at the beginning of the hearings, the plaintiff agreed to have his proceedings dismissed. Luckily, Justice Beech-Jones did not order costs against Mr Naumenko.
The Kimber Fair Work Commission case & aftermath
On 27 September 2021, the full bench of the Fair Work Commission handed down its decision in relation to an unfair dismissal claim by an aged care worker, Ms Jennifer Kimber, who had already lost her case at first instance on 29 April 2021.
The panel of three commissioners decided 2:1 against the applicant – in other words, the dismissal of Jennifer Kimber stands. She could now appeal to the Federal Court, and according to her lawyers is likely to do so.
This case was really not about just Covid vaccines. Ms Kimber refused to get her flu shot back in April 2020, when the New South Wales Minister for Aged Care announced all aged care workers are to get vaccinated, due to the increased risks caused by Covid-19. Ms Kimber argued she had previously had a severe allergic reaction to a flu shot, but her reaction did not fall under one of the exceptions listed by the minister. She refused to take the flu vaccine and was stood down from her job. She then sued for unfair dismissal in the Fair Work Commission. She lost that case. And on 27 September she lost her appeal to the full Commission, with two of the three commissioners agreeing with the original ruling.
However, one commissioner, deputy president Lyndall Dean, wrote a very well-reasoned dissenting ruling, explaining in great detail why she considered the decision to be a “serious injustice” to Ms Kimber. Her ruling begins at paragraph 62 and is well worth reading in full. Starting at paragraph 110, she outlines methodically why mandatory vaccination cannot be justified in almost every workplace in Australia. She focuses on the issues of the requirement of freely given and informed consent, denying an unvaccinated person the ability to work on health and safety grounds, and the requirements to comply with disability discrimination laws.
I’m just highlighting the final comments of her minority ruling:
[179] Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.
[180] The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.
[181] Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
[182] All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.
[183] Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.
[184] Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015
At least one legal decision-maker in this country could see through the Covid madness.
The aftermath: On 27 October 2021 it emerged during a Senate Estimates hearing that Ms Lyndall Dean was excluded from full bench work of the Fair Work Commission, and the president, Iain Ross, had requested her to attend anti-bias training. Also, she won’t be hearing future workplace vaccination disputes. This is ostensibly not because she wrote that opinion, which no doubt her colleagues didn’t appreciate, but because she allowed herself to be pulled into the social media maelstrom, where she posted and liked comments that revealed her opinions on Covid very clear and so she can no longer be perceived as unbiased on this issue.
The LibertyWorks case in the Federal Court
LibertyWorks challenged the validity of the Health Minister’s order that prevents Australians from leaving the country, in particular the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth).
On 1 June 2021, Justices Katzmann, Wigney and Thawley in their joint decision rejected the plaintiff’s construction of s477(6) of the Biosecurity Act, taking into account the explanatory memorandum which emphasised the focus if the powers was to enable a fast and effective response. The court also said article 12 of the ICCPR expressly allows for restrictions by law to protect public health. The restraints on power are in s477(4) of the Act requiring the minister to to satisfied that the restrictions are necessary and proportionate. The Human Rights Law Centre commented.
The Graffunder Queensland Industrial Relations case
A Queensland Industrial Relations Commission confirmed a decision by Queensland Health to suspend Ms Graffunder for failing to get vaccinated after her exemption request to comply with Health Employment Directive No. 12/21 was refused by her employer.
