Vaccine order really a movement law: judge

·3-min read

Laws requiring aged care workers, teachers and some construction workers to be vaccinated before returning to work are valid, the NSW Supreme Court has ruled.

Sydney construction worker Al-Munir Kassam, Byron Bay aged care worker Natasha Henry and eight others mounted a multi-pronged attack on the public health orders, arguing their rights to bodily integrity and freedom of movement were being impinged.

But Justice Robert Beech-Jones said the legislation underpinning the orders set out to achieve an abrogation of normal rights in a pandemic.

The right to bodily integrity was not violated as the orders didn't authorise the involuntary vaccination of anyone while the degree to which the freedom of movement was impaired differed depending on whether a person is vaccinated or unvaccinated, he said.

"Curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the Public Health Act clearly authorises," Justice Beech-Jones said.

He also dismissed claims Health Minister Brad Hazzard acted outside his powers, by not asking the right questions or failing to take into account relevant considerations.

The case was the first in a series across Australia challenging various limitations on unvaccinated people.

The court's decision deals a blow to another NSW case to be heard in November, involving paramedic and regional deputy mayor John Larter.

Mr Kassam, an occupational health and safety officer for a construction site supplier, had told the court his own research made him believe COVID-19 vaccines do not lessen transmission rates.

Ms Henry said she believed she had "basic human right in Australia" to bodily integrity while Nambucca Heads aged care worker Selina Crowe said she'd remain unvaccinated "until such time as there is sufficient clinical data and years of testing" on side effects.

The judge accepted the 10 plaintiffs strongly opposed being vaccinated and were being honest about their concerns.

But he sided with evidence of NSW infectious diseases specialist Professor Kristie Macartney and other experts called by NSW.

"The weight of proper scientific opinion ... suggests that the COVID-19 vaccines reduce the risk of acquiring an infection and then transmitting the disease once infected, although the vaccines are less effective against the Delta variant," the judge found.

One of the experts called by Ms Henry was a United States high school teacher who completed a PhD in molecular biology in 1999.

"The difference between her qualifications to opine on vaccine effectiveness and Professor Macartney was vast," the judge said.

Health authorities have repeatedly stated each of the three vaccines approved for use in Australia is highly effective at preventing severe disease.

More than 20,000 people tuned into the judgment of the case that has heralded a new era for Australian courts.

Hearings broadcast by the court have been watched 1.4 million times on YouTube, with the audience peaking at 58,000 during a directions hearing in early September and nearly 390,000 watching parts of day one of the full hearing.

"The Court's use of YouTube to accommodate the increased public interest in these cases is indicative of the Court's principle of open justice," a spokeswoman told AAP.

Professor Rick Sarre said he could see more court hearings being streamed in future, suggesting judicial explanations for sentencing would be far better off being broadcast.

But the decision was best left in the hands of each judge, the University of South Australia adjunct professor of law told AAP.

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