NSW Supreme Court strikes down latest challenge to vaccine mandate public health orders

What's the latest?

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.

The public health orders in question prohibit a person from working as a health care worker (which included paramedics) in New South Wales if that person has not received at least one dose of a COVID-19 vaccine by 30 September 2021, and two doses by 30 November 2021.

The role of the Court

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. Mr Larter argued that the orders were legally unreasonable as they were not "logically targeted" and were "not proportionate to the risks they purport to mitigate".

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.

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. In that decision, the Court concluded that to impugn public health orders on the grounds of legal unreasonableness, it was necessary to show that no Minister acting reasonably could have considered it necessary (i.e. appropriate and adapted) to deal with the identified risk to public health and its possible consequences by making the orders.

Power granted under the Public Health Act

Section 7 of the Act states that, "if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health", then the Minister "may by order give such directions as the Minister considers necessary to deal with the risk and its possible consequences".

Accordingly, Justice Adamson drew a distinction between the requirement for the Minister to consider "on reasonable grounds" that a situation has arisen that could become a risk to public health, and what Mr Larter alleged is a requirement that such order made by the Minister be reasonable.

In other words, it was a matter for the Minister to determine whether reasonable grounds existed for the making of the order. The Court's role is to adjudicate on the legality of the administrative action and not the merits of the decision. Where the ground of legal challenge is unreasonableness as it was in this case, some investigation of the merits of the decision is necessary but the limitation in the Court’s ability to review the merits is “extremely confined”.

Public health orders validly made

Justice Adamson ultimately found, upon the evidence presented by Dr Kerry Chant, the NSW Chief Health Officer, that it was open to the Minister to accept Dr Chant's advice regarding the public health risk of the COVID-19 virus and the necessity of vaccine mandates for health care workers, and to make the orders recommended by Dr Chant.

On that basis, Justice Adamson dismissed Mr Larter's application.

Is an appeal on the cards?

Mr Larter has not yet confirmed whether he will appeal Justice Adamson's decision. According to media reports, Mr Larter had crowdfunded nearly $250,000 to contribute to his legal expenses so far, which he said did not cover the full costs of the three barristers and two paralegals commissioned to represent him.

What might happen next?

It remains to be seen what will happen to health care workers who do not comply with the requirement to be double vaccinated by 30 November 2021. It is possible that it will not be tenable to maintain the employment of health care workers who do not comply with the order and the Health Services Union has certainly raised such concerns in the media.

¹ The public health orders challenged were the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) and Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW).