Vaccine mandates contravene Victorias human rights charter lawyers argue

Lawyers for a group of Victorian workers who are challenging vaccine mandates have argued that the directions contravene the state’s human rights charter as they coerce people into medical treatment without their “full, free and informed consent”.

Workers, including nurses, other healthcare professionals, teachers and emergency services responders, are among 130 plaintiffs who are challenging Victoria’s COVID-19 vaccine mandate in the Supreme Court.

Simon Harding is the lead plaintiff in the challenge against mandatory vaccinations in Victoria.Credit:Chris Hopkins

They have accused Chief Health Officer Brett Sutton and his colleagues of failing to give proper consideration to the state’s Human Rights Charter when they imposed vaccine mandates over several industries, in what is in effect a no jab, no work policy.

The mandate requires authorised workers to prove they’d had their first COVID-19 vaccination by October 15 and would have a second by November 26.

The group wants the legal challenge heard in the Supreme Court as soon as possible, and on Wednesday, barrister Marcus Clarke, QC, applied for an interlocutory injunction, which would result in some mandatory vaccination directions being suspended for a number of the plaintiffs until the matter is finalised.

Mr Clarke told the court the injunction would allow the plaintiffs who hadn’t lost their jobs to go back to work. Those who were still employed had agreed to undergo regular testing if they were allowed to return, he said.

He argued that it would ensure the plaintiffs would not have their employment terminated before the outcome of the legal challenge, which he said had “a high chance of success”.

Mr Clarke said the vaccine mandates limited the rights set out in Victoria’s Human Rights Charter, in particular the section that specified that a person must not be “subjected to medical or scientific experimentation without his or her full, free and informed consent”.

“We say it’s clear there is coercion that’s contained in ... these two directives which means that there is not full, free, informed consent to medical treatment,” he said.

“If you’re threatening someone to be terminated or not go to a place of work and lose their job, we say that is quite clearly a limitation that’s imposed and is not compatible with full, free and informed consent.”

He also said the mandates limit people’s right not to have their privacy “unlawfully or arbitrarily interfered with” by requiring employers to collect information about a employee’s vaccination status.

However, prosecutor Rowena Orr argued the health directions did not contravene the charter.

“There is nothing in either of these directions that subjects any person to medical treatment. Our position is that right is not limited by these directions. The effect of the directions is to require employers not to permit unvaccinated people to work at their premises,” she said.

Ms Orr said it was also important to consider the rights of third parties, for example co-workers or colleagues of these employees or members of the public who came into contact with them through their job.

“They will, for some cohorts, include particularly vulnerable third parties affected by the making of this order. In the education sector that includes children who are unable to be vaccinated, they are a vulnerable cohort exposed to people chosen not to be vaccinated. In a healthcare setting it includes vulnerable patients,” she said.

“We ask your honour to place considerable weight on interests of third parties in assessing where the balance of convenience lies in relation to the injunction.”

Justice Richards said she would hand down a decision about the injunction at noon on Friday.

The court also heard the lawyers for the plaintiffs wanted to call three expert witnesses from overseas for a trial.

Justice Richards said the questions they wanted to ask these experts were too wide-ranging and “needed considerable confinement”. Ms Orr also said she held reservations about whether one of the experts â€" a doctor based in Texas who has treated coronavirus patients â€" was capable of giving relevant evidence about vaccines.

The original statement of claim against the mandate was filed by relief teacher Belinda Cetnar and her partner, horticulturalist Jack Cetnar, who claimed the policy contravened the constitution, the Biosecurity Act, the Fair Work Act and the Nuremberg Code.

They have since been replaced as lead plaintiff by G4S corrections officer Simon Harding, who was placed on unpaid leave on October 15 after not receiving the vaccine. He said he was not anti-vaccination, but chose not to take the COVID-19 vaccination over concerns about potential side effects and the lack of long-term safety data.

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Simone Fox Koob is a crime and justice reporter for The Age. Most recently she covered breaking news for The Age, and before that for The Australian in Melbourne and Sydney.Connect via Twitter or email.

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