NSW vax law disputes to be heard together

·3-min read

A police officer challenging the rationality of a vaccine mandate has had her case delayed due to two other similar challenges before NSW courts.

Belinda Hocroft, a senior constable in NSW Police Force's mounted unit, has asked the NSW Supreme Court to invalidate a law preventing her from working outside her local council area before she has one dose of a COVID-19 vaccination.

The public health order, affecting thousands of authorised workers in designated hotspots, came into effect on Thursday.

Only unvaccinated authorised workers with a vaccination booking on or before September 19 or with a medical contraindication certificate are exempt.

The police officer says she is concerned about the vaccines' long-term effects and wants to wait for further information.

She claims Health Minister Brad Hazzard couldn't rationally have been satisfied the order was necessary given earlier orders allowed authorised workers to move about as long as they'd had a negative test.

The exemption for people with upcoming vaccine bookings also has "no rational connection" to the risk of COVID-19 transmission.

While acknowledging Senior Constable Hocroft cannot currently work and was ready to run her case, Justice Robert Beech-Jones declined to list the matter for hearing before September 30.

That was to allow it to be heard in a two-day sitting with two other, broader challenges to the health minister's public health orders.

"Hocroft could be heard at an earlier time, but I note the public interest in not having competing judgments in the scope of section 7," the judge said on Thursday, referencing the minister's power to make health orders.

"I don't think that matter can be avoided."

The other challenges - by Al-Munir Kassam and Natasha Henry - attack other elements of vaccine mandates.

Common between all three cases is a claim that parliament would not have intended to give the health minister "the powers to breach bodily integrity" without clear legislative indication, the court was told.

The Henry and Kassam cases will also attempt to show the laws are for an improper purpose, breach privacy, breach natural justice and that that the minister considered irrelevant matters when writing the laws.

Mr Hazzard is defending each case and plans to tender statements from a deputy chief health officer in support of his public health orders.

More than 50,000 people watched the directions hearing on the court's YouTube channel after the link was shared heavily on Telegram channels, including one for supporters of Senator Malcolm Roberts and another run by anti-lockdown Victorian campaigner Monica Smit.

Mr Kassam's barrister, Peter E King, proposed having the Court of Appeal answer three questions of law, as occurs in some insurance matters.

One goes to the validity of Mr Hazzard's orders in light of an express prohibition in the Australian constitution on the use of medical services powers "to authorise any form of civil conscription".

But Justice Beech-Jones was unsatisfied answers would resolve the cases at hand.

The court also heard of a fourth case, brought by a self-represented plaintiff, Sergey Naumenko.

"There are so many problems with this case it's difficult to know where to start," Jeremy Kirk SC, for NSW, said.

"There is no named defendant, there is no articulated legal claim. Rather there are just sort of aspirational orders which to a significant extent are entirely misconceived such as, for example, proposed order two that the plaintiff and his immediate family be exempted from microchipping."

NSW's application to dismiss Mr Naumenko's case will be heard on September 30.

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