WA Injection Mandates Judicial Challenge

Police Commissioner and CHO oppose participating in integral Court process.

At a short hearing on 15 June, the Police Commissioner and the CHO opposed being directed by the Supreme Court to participate in a pre-trial mediation.

Compulsory pre-trial mediation, with the parties present, is a standard process ordered in civil litigation in WA’s Supreme Court. In fact, mediation is considered so important that the Court’s published practice direction describes mediation as being “integral” to the administration of justice.  The practice direction also says that, in general, “no case will be listed for trial without the mediation process having first been exhausted”. 

There has previously been no mediation in the litigation brought by Senior Constable Falconer. The lifting of the mandates that are under judicial review on 10 June fundamentally shifted the goalposts in the dispute.  Senior Constable Falconer, consistent with his obligations as a litigant before the Court, simply asked that the case be brought back before the Court, so that Justice Allanson could turn his mind, before the trial, to whether the usual orders directing pre-trial mediation were appropriate in the changed circumstances of the case.

At the hearing on 15 June, counsel for the Police Commissioner and the CHO, Ken Pettit SC, said that with Mr Dawson’s imminent departure from his position to become WA Governor, he simply would not have the time to attend a mediation session.  Mr Pettit SC also said that a mediation would be “fruitless” and therefore opposed the usual mediation orders being made.  Having said that, Mr Pettit SC informed the Court that the Police Commissioner and the CHO were open to direct negotiations through lawyers and delegates.  Justice Allanson decided not to direct the Police Commissioner and the CHO to attend a Court mediation, noting that effective direct negotiations could still take place before the trial.

The issue now having been clarified by the Court, Senior Constable Falconer’s legal team will press on with preparing the case for the trial, which remains listed for trial on 13-15 July.

We thank our many donors for their support to date.  But this is obviously an expensive exercise and Senior Constable Falconer is facing a very well-resourced and powerful opponent.  We therefore ask everybody to dig deep and continue to support the case, so that the Court can finally make a ruling on whether the police vaccine mandates were made in accordance with the law.

Today, the Premier announced that the government's vaccine mandates will be lifted from 10 June.  The removal applies to most affected WA workers, except for health, aged and disability care workers.

The Premier's announcement, while welcome, does not involve an acceptance that the mandates were unlawful at the time they were imposed.  It also does not mean that the unvaccinated workers whose legal challenges have been supported by funds raised on this site have a right to go back to work or to obtain compensation for their losses.

In reality, all that the Premier has done is to conveniently pass the buck back to employers, both in the public and private sectors.  Early indications are that, despite the Premier's decision, some employers may not be willing to have the unvaccinated back in the workplace and intend to punish them for choosing not to be vaccinated.  The Police Commissioner, for example, has been reported today in the media as saying that despite the Premier's announcement, disciplinary action will continue against unvaccinated police, including Ben Falconer, the applicant for judicial review in the Supreme Court.

So, the fight against the vaccination mandates will continue pending further developments.  The WA judicial reviews against the government and related employer mandates, generously funded by our donors, will continue to be fought vigorously.  The Falconer judicial review against the police mandates is headed for trial on 13-15 July, with judicial reviews in a number of other sectors waiting on the outcome.  Conferral between competing vaccination experts is scheduled for 10 June, coincidentally the day the mandates are lifted.

Also, as previously reported, a second front has opened up with a large number of disability discrimination complaints, across all sectors, being lodged with the Australian Human Rights Commission. These are being separately funded.

It is possible that the government or individual departments may make proposals to settle all or some of the judicial reviews before the trial commences.  In the meantime, the work on the cases on both fronts will continue at full speed.  Any offers will be considered on their merits at the time they are presented.

In summary, the Premier's announcement today does nothing to provide justice for those harmed by the mandates.  The workers who have had their jobs and lives devastated by the mandates ask for your continued financial support to hold the government and employers to account in the courts.

In an exciting new development, a new front has been opened in the fight to help the thousands of West Australians whose lives have been devastated by the vaccine mandates.

The lawyers acting for Senior Constable Falconer, Hotchkin Hanly, who currently act for over 250 other workers in a diverse range of industries, who have been either stood down or sacked in WA for refusing COVID-19 vaccinations, will shortly commence filing individual complaints with the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth). The first group of complaints will be brought by healthcare workers, and the police (including Senior Constable Falconer).These will number over 100.  Broadly speaking, the first group of complaints will argue that not being vaccinated is a disability under the Act.  For a more detailed explanation of this arguement, we recommend David Porter's pieces published in The Spectator, both here and here.

The Act stipulates a six month time limit from the date of any alleged discrimination for lodging any complaints. If any supporters are aware of anyone who wishes to legally challenge a stand down or dismissal, they should contact WAIRactionALL@protonmail.com

Once the first group of complaints have been lodged, later this month, Hotchkin Hanly will lodge a second group of individual complaints of disability discrimination on behalf of their remaining clients who have been sacked or stood down for not being vaccinated. The second group will cover a diverse range of occupations, including but not limited to fire and emergency services, corrections, education, construction and mining. The total number of complaints to be lodged in the second group is growing daily and may ultimately number in the many hundreds. After the Australian Human Rights Commission has completed any inquiry into the complaints, it is planned to run a test case, or test cases, in the Federal Court of Australia which will be heard in advance of the other complaints, and which will decide the legal issues without the need for multiple Federal Court proceedings.

The important aspect to note about the actions under the Disability Discrimination Act is that, if successful, they provide a platform for sacked or disciplined workers to be reinstated, have sanctions removed or be compensated, as the case may be, since these are remedies that are explicitly available to be awarded by the Federal Court under the Act. This contrasts with the judicial review process as in the Falconer case. While it is hoped that, upon Judicial Review, the Supreme Court will find that the imposition of the mandates was unlawful, this may not necessarily translate into reinstatement or compensation for sacked or stood down employees. It may be open to employers to argue that they were only following the law as it was at the relevant time.

Therefore, the opening up of a new front in the fight against vaccine mandates under the Disability Discrimination Act represents a crucial development. 

Falconer Case

In our most recent update, we reported on an urgent hearing on the evening of Monday, March 28, the day before the trial of Senior Constable Ben Falconer's challenge to the WA Police vaccine mandate was due to start. At that hearing, Ken Pettit SC, counsel for the state's Chief Health Officer, Dr Andy Robertson, tried to force the trial on, despite the surprise withdrawal of the Chief Health Officer as a witness in the case late in the afternoon of the previous Friday.

As previously reported in our updates, at the urgent hearing Senior Constable Falconer's counsel, Shane Prince SC, argued that Dr Robertson's withdrawal had deprived his client of the opportunity to cross-examine Dr Robertson on an affadavit filed in early March, and so the trial would not be fair if it proceeded in the way proposed by Mr Pettit SC.

In a major breakthrough, at the hearing the following day (29 March), the day the trial had been due to commence, Supreme Court Justice Jeremy Allanson accepted Mr Prince SC's submissions and adjourned the trial. Justice Allanson said in his oral reasons:

"I'm not satisfied that the trial should proceed in the manner proposed by [the Chief Health Officer and the State of WA]. I'm not satisfied that it would be fair and that it would be seen to be fair".

Thus, Justice Allanson re-opened the possibility of expert evidence being called by Senior Constable Falconer, which he had previously refused, and directed the parties to confer about the calling of expert evidence by both parties at the trial.

Previously, the Chief Health Officer had strenuously opposed either party leading expert evidence. Following Justice Allanson's ruling on 29 March, to the effect that it would now be unfair to Senior Constable Falconerif he could not lead expert evidence, the Chief Health Officer did a total about face, and agreed to both parties being allowed to lead expert evidence. The parties' agreement about expert evidence was endorsed by Justice Allanson on 12 April, and at the same time Justice Allanson set new trial dates for 13-15 July.

Expert Evidence

Under the court's directions, Senior Constable Falconer was granted leave to rely upon at the trial affadavits sworn by Professor Nikolai Petrovsky of Flinders University in early March.  Professor Petrovsky's evidence will mirror his evidence given in judicial reviews in both New Zealand and South Australia, in which he verified the ever-increasing evidence that COVID-19 vaccines do not prevent transmission. As such, Professor Petrovsky's evidence at trial will call into question the scientific credibility of the WA Government's decision in October of last year to impose vaccination mandates on a large proportion of WA's workforce. His evidence was a crucial factor in the judicial review by the High Court of New Zealand, where Justice Francis Cooke struck down the police and defence force vaccine mandates.

Under the agreed court decisions, the Chief Health Officer now has until May 25 to file his expert evidence in response to Professor Petrovsky's evidence.

Until then, as we have seen in WA (and in other states), while vaccine passports are being removed (in the shadow of the federal election), workplace mandates remain, and many thousands of workers across numerous industries are either still stood down or being stood down.

In a major breakthrough, at a hearing this afternoon Justice Allanson accepted submissions made by Senior Constable Ben Falconer’s counsel, Shane Prince SC, and indicated he would consider allowing expert evidence at the trial.  Justice Allanson, therefore, adjourned start of the trial, to allow the Chief Health Officer to make enquiries regarding expert witnesses, and directed the parties to confer about if and if so how expert evidence will be received at the trial.   Written reasons will not be published of today’s ruling by Justice Allanson.

There will be a directions hearing in 2 weeks’ time, at which time Justice Allanson will consider whether to allow expert evidence, and to set a new trial date.  Justice Allanson advised the parties that he will not be available until July to hear the case, although it is possible another judge could be allocated. 

Today’s outcome leaves open the possibility that Senior Constable Falconer will be able to lead evidence in the State’s highest court from Professor Nikolai Petrovsky of Flinders University.  Professor Petrovsky’s report calls into question the scientific credibility of the WA government’s decision in October of last year to impose vaccination mandates on a large proportion of WA’s workforce.  

Before today, Justice Allanson had ruled against Senior Constable Falconer on 2 occasions, finding that no expert evidence would be allowed at the trial, but reversed his position in today’s oral judgment, due to the surprise withdrawal of the Chief Health Officer as a witness in the case on Friday, citing the unfairness to Senior Constable Falconer not having the opportunity to test the reasons for the vaccine mandates on cross-examination. 

Professor Petrovsky is an internationally-acknowledged vaccine expert, and gave expert evidence in the recent case in the High Court of New Zealand, which struck down as illegal the NZ government’s vaccine mandates applying to the police and defence forces. 

In a body blow for open justice in this State, Justice Allanson of the Supreme Court this afternoon sent an email to Hotchkin Hanly, the lawyers acting for police applicants, Ben Falconer and Les Finlay, stating that the Court will not make an order to live-stream the trial, which starts on Tuesday morning.  The email did not contain the reasons for Justice Allanson refusing the application. It merely stated that the Judge will provide written reasons, without giving a timeframe for publication of those reasons.

In another last-minute development, the lawyers acting for the Chief Health Officer, Dr Andrew Robertson, have today advised that his position has changed, and he will no longer be called to give evidence at the trial.  Dr Robertson was to be called to verify an affidavit he swore and filed earlier in the month in accordance with court directions.  After receiving the affidavit, the legal team for the police applicants had notified Dr Robertson that he would be required to attend court for cross-examination on his affidavit.  That cross-examination will not now take place.  No reasons have been given by the Chief Health Officer’s legal team for his last-minute change of position, either to the applicants’ legal team or to the Court.

The police applicants had previously sought leave from Justice Allanson to file an affidavit by vaccine expert, Professor Nikolai Petrovsky of Flinders University, in response to the scientific issues raised in Dr Robertson’s now-withdrawn affidavit.  An urgent hearing was held yesterday on that issue, at which time the Chief Health Officer’s legal team did not indicate to the Court that they intended to subsequently withdraw his affidavit.  At the hearing, Justice Allanson refused the application for Professor Petrovsky to give evidence, giving verbal reasons.  The last-minute withdrawal of Dr Robertson’s affidavit means that not only will Professor Petrovsky’s evidence not be heard in open court, but the applicants’ counsel will not have the opportunity to cross-examine Dr Robertson publicly on the content of Professor Petrovsky’s report.

Professor Petrovsky is an internationally-acknowledged expert, and gave expert evidence in the recent case in the High Court of New Zealand which struck down as illegal the NZ government’s vaccine mandates applying to the police and defence forces.

The judicial reviews of the police vaccine mandates by the WA Supreme Court are listed for hearing for 3 days before Justice Allanson next Tuesday, 29 March through to Thursday, 31 March.  The cases are against Chief Health Officer, Andy Robertson and the Commissioner of Police, Chris Dawson.  The applicants are Senior Constable Ben Falconer, and police radio operator, Les Finlay. 

A number of further Judicial reviews have been commenced against vaccine mandates in fire and emergency services, health, education, corrections, construction and Western Power.  All of these cases have been deferred by the Supreme Court pending the outcome of the police judicial reviews.  The jobs of a significant number of unvaccinated essential services workers hinge on the outcome of the police judicial reviews.

There have been two significant developments in the lead up to the police trial.

First, in the interests of open justice, and given the enormous public interest in the cases, the police applicants, through lawyers Hotchkin Hanly, have made a formal application for the trial to be live-streamed.  It is common practice for superior courts throughout Australia, including the WA Supreme Court, to live-stream cases of public interest.  Live-streaming of the NSW vaccine mandate cases last year was embraced by the NSW Supreme Court and attracted significant public interest.  Despite this, the Commissioner of Police and the Chief Health Officer through their lawyers have formally opposed live-streaming.  Justice Allanson will rule on the issue after reviewing written submissions to be filed later this week.

The second significant development concerns expert evidence.  In a recent judicial review by the High Court of New Zealand, Justice Francis Cooke struck down the police and defence force vaccine mandates.  In deciding that the vaccine mandates were unlawful, Justice Cooke considered expert evidence given by Professor Nikolai Petrovsky of Flinders University in SA, concerning the effectiveness of vaccination in reducing transmission of the Omicron variant.  In the judicial reviews to be heard next week, the police applicants have filed an affidavit by Professor Petrovsky in response to an affidavit filed by the Chief Health Officer, Andy Robertson.  The Chief Health Officer, however, through his lawyers, has formally opposed the court considering Professor Petrovsky’s answering affidavit. 

The question of whether or not the court will allow into evidence Professor Petrovsky’s report regarding the effectiveness of the available vaccines to reduce community transmission, will be ruled upon by Justice Allanson at an urgent hearing to take place on Thursday, 24 March.

The commencement of four further actions on 2 March in the Supreme Court of WA brings the total number of the WA government\'s vaccine mandates currently under formal judicial review to seven.

In addition to the original challenge to the police mandate started last Novermber by Senior Constable Ben Falconer, the Supreme Court now has before it formal legal challenges to the vaccine mandates for most of the State\'s essential public services: health, fire and emergency services, corrections, education and critical electricity infrastructure.  In addition, there is a challenge to the mandate covering one of the State\'s key industries: construction.

The applicants in the six additional challenges, all of whom have either lost their jobs or are under threat of losing their jobs, were motivated to start the proceedings by the growing public opposition to the vaccination mandates, and support for those standing up for medical choice.

One of the cases, brought by Mark Oehlman, a Senior Firefighter employed by the Department of Fire and Emergency Services, was before the Court on 2 March 2022.  Judge Jeremy Allanson, who is hearing the Falconer case on 29-31 March, was persuaded to defer Mr Oehlman\'s case until after he makes a decision in the Falconer case after the hearing at the end of March.  Judge Allanson also said that all other judicial reviews will also await the outcome of the Falconer action.

If the police challenge succeeds and their mandate is struck down, then it is likely that all of the other vaccine mandates under challenge will follow suit, given the similarities between the mandates across the various industries.  Given that the mandates for most key industries or public services in the State are now under challenge, the stakes have been substantially raised for the Premier, whose already falling popularity is likely to take another hit if his much-vaunted mandatory vaccination strategy is found by the Court to have been unlawful from the start.

In another blow for the Government, last month, in the Falconer proceedings, Judge Allanson rejected an attempt by the CHO\'s lawyers to prevent Senior Constable Falconer from obtaining discovery of documents.  The documents sought by Senior Constable Falconer\'s legal team was internal communications between the Chief Health Officer and the executive government, relating to the medical advice and the decision to roll out the mandatory vaccination in October 2021.  At the hearing, the CHO\'s lawyers argued strongly that the documents should not be discovered, but were overruled by Judge Allanson.

The discovery has now been given, and is being analysed by Senior Constable Falconer\'s legal team for the trial commencing in just under 4 weeks time.