Larter v Hazzard (No 2) [2021] NSWSC 1451

On 26 August 2021 the Health Minister Brad Hazzard made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021, pursuant to the powers under section 7 of the Public Health Act 2010 (NSW). It required health care workers to be vaccinated by particular dates as a condition of being permitted to provide health care services. John Larter was employed as a paramedic by the Ambulance Service of New South Wales, and challenged these public health orders. Larter v Hazzard [2021] NSWSC 1411 dealt with preliminary procedural issues, setting aside a subpoena which required the Health Minister to attend and give evidence, and a notice to produce documents which were not relevant to the alleged legal unreasonableness or otherwise of the orders, and directed the plaintiff to serve his proposed further amended summons.

Click to access Larter-v-Hazzard-2021-NSWSC-1411.pdf

By further amended summons, in Larter v Hazzard (No 2) [2021] NSWSC 1451 the plaintiff sought declarations that the public health orders are invalid, on the sole ground of legal unreasonableness.

Justice Adamson initially reminded the plaintiff that the Court’s only role is to determine whether the power in section 7 authorised the making of public health orders in the terms in which they were made, and that is not for the Court to stand in the shoes of the Minister and decide what public health order could or should have been made, since Parliament has determined that this is a matter for the Minister.

The plaintiff alleged that the orders are broader than necessary in that they cover persons who do not pose a sufficient risk to warrant the prohibition, that it is unreasonable to require the very small percentage of conscientious objectors within NSW Health to be vaccinated while at the same time failing to require a larger group comprised of health practitioners, such as private general practitioners and pharmacists, to be vaccinated, and that the order was invalid because it purported to address consequences which would ensue beyond the 90-day period of the order, providing for permanent consequences in circumstances where they are only permitted to operate for 90 days.

The plaintiff further alleged the orders contravene the International Covenant on Civil and Political Rights (ICCPR) and are therefore invalid in that they unduly interfere with the right to work of those who, for religious reasons, have a conscientious objection to vaccination. He described himself as a practising Catholic, who has decided not to be vaccinated as he believes that the AstraZeneca vaccine may be the product of research, testing and production processes developed from cell lines derived or sourced from the foetus of an aborted child and abortion is against his religious beliefs. He believes that the Pfizer and Moderna vaccines may have been developed using stem cell research, to which he has a similar objection.

The Court accepted that the orders did not infringe any of the articles of the ICCPR, even had it been implemented and formed part of Australian law (which it was common ground that it had not and did not, having not been implemented). Article 17(1) of the ICCPR (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”) did not apply because, as Beech-Jones CJ found in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (at 271), the orders did not provide for compulsory medical treatment by way of vaccination, article 18 of the ICCPR, which provides for freedom of religion and religious expression, is subject to an exception in article 18(3) that the freedom may be subject to limitations which are necessary to protect public health, and similarly with article 19 (which protects freedom of thought and expression), and article 26 (which prevents discrimination on the grounds of religion, race and sex). In any event, Australia has an obligation under article 12 of the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics, as addressed in Kassam (at 199). The Court also referred to a publication in which the Pope authorised Catholics to be vaccinated with COVID-19 vaccines, and concluded his objections to the vaccine derive from his own conscience as opposed to his Catholic faith.

As the plaintiff had failed in each of the grounds, the further amended summons was dismissed.

Click to access Larter-v-Hazzard-No-2-2021-NSWSC-1451.pdf

In Larter v Hazzard (No 3) [2021] NSWSC 1595 the Court directed that the applicant pay the costs of the State of New South Wales, the only active defendant in the proceedings.

Click to access Larter-v-Hazzard-No-3-2021-NSWSC-1595.pdf

ABC: “NSW paramedic John Larter loses COVID vaccination exemption bid in Supreme Court“:

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