The court ruled that it did not have the power to suspend the Public Health Act's operation
The Victorian Supreme Court’s common law division has dismissed an application to suspend the state’s mandatory vaccination policy.
In a judgment handed down last Thursday, the court decided in favour of the state’s health officials and said that it does not have the power to suspend the operation of the Public Health Act, which gave effect to the disputed directions.
In Harding v Sutton, Simon Harding and 128 others had challenged the lawfulness of several directions made by Chief Health Officer Brett Sutton and other officials in response to the COVID-19 pandemic. The plaintiffs disputed the exercise of Sutton’s emergency powers under the Public Health Act concerning mandatory vaccination.
The officers issued several workers directions and facilities directions that applied to employees across all industries, including healthcare, construction, education and corrections. One of the directions “obliged an employer to collect, record and hold vaccination information about a worker who was, or may be, scheduled to work outside the worker’s ordinary place of residence.”
The direction also stated that an employer was “prohibited from permitting a worker who was unvaccinated to work outside the worker’s ordinary place of residence.”
The plaintiffs argued the directions were “unlawful and invalid,” and that they were “incompatible with various human rights protected by [the state’s] charter.” Thus, Harding and others applied for interlocutory relief under the court’s inherent jurisdiction “to supervise executive decision-making by way of judicial review.”
In its decision, the court said that “many of these directions have intruded on freedoms that most Victorians have previously been able to take for granted.” However, it said that “no statutory power is available to support the orders sought.”
The court explained that if the case was brought under the state’s Administrative Law Act, it would have the power to suspend the operation of an administrative decision “in order to prevent irreparable damage pending judicial review.”
Employers and self-employed individuals also joined the case as plaintiffs.
