A lawyer acting for a group challenging the NSW’s public health orders says letting Covid run rampant should have been considered.
NSW Health authorities failed to consider letting Covid run rampant through the community in an effort to build natural immunity, a lawyer has told a court during a landmark legal challenge to the state’s pandemic response.
The NSW Supreme Court is hearing two civil suits which are asking for the public health orders, which were instituted in response to the latest Covid outbreak, to be overturned.
The two groups are challenging various aspects of the orders including rules requiring aged care workers to get vaccinated and prohibiting unvaccinated workers from leaving an LGA of concern for their jobs.
Construction worker Al-Munir Kassam and three other plaintiffs are asking that the public health orders be declared invalid because, they argue, it forces them to undergo a medical procedure.
Barrister Peter King, acting for Mr Kassam, argued that Health Minister Brad Hazzard failed to consider alternative measures when he signed off on the public health orders earlier in the year, and that they were therefore legally unreasonable.
Mr King argued that those who received a Covid vaccination became “less immune over time”.
He pointed to medical evidence from the United States and England where people who had been exposed to the deadly virus had built up a natural immunity.
“Stop there, are you suggesting the alternative response of the minister was to let the entire nation of Australia acquire natural immunity,” Justice Robert Beech-Jones asked.
“No, what I’m submitting in a legal sense is there should have been an inquiry or investigation into alternatives that had been placed before the minister,” Mr King said.
“But the evidence is that no such thing occurred. There’s only been a one-size-fits-all policy.”
Justice Beech-Jones questioned how Australia could be compared to other countries which have experienced high case numbers and deaths since the start of the pandemic.
Mr Kassam and his fellow plaintiffs are asking that the public health orders be declared invalid, arguing that it violates a constitutional guarantee against “civil conscription” and is inconsistent with the Australian Immunisation Register Act.
They say the rules impugn their “personal liberty” and during his closing submissions, Mr King told the court that the orders violated their right to choose whether or not to receive a vaccination.
“Yes broader health issues might be important but at the end of the day there’s a personal choice and the law respects the personal choice of individuals and upholds their fundamental liberties,” Mr King said.
In their submissions to the court, the state has argued that under the Public Health Act, the protection of the public is its paramount consideration.
It confers on the minister the ability to make the orders if he considers it reasonable that a public health risk has arisen, they argue.
However Mr King argued that the orders were a violation of “bodily integrity” and amounted to a “mandatory vaccination” campaign.
“The effect of the mandate is that unless a person has a jab or is vaccinated, in the way demanded by the order, they cannot work,” he said.
Justice Beech-Jones said that the orders may have an element of encouragement, and that one could argue it amounts to coercion.
But he pointed out that at no point did it criminalise not receiving a jab.
“What you would be charged with would be entering or remaining on a construction site without a vaccination,” Justice Beech-Jones said.
“The offence is not refusing to be vaccinated, it doesn’t authorise anyone to physically – as some laws have done in other countries – physically grab you and shove a needle into you.”
The hearing will conclude on Tuesday.
