State government lawyers say Deni Varnhagen’s vaccine mandate challenge is futile after new Covid laws

Futile or unconstitutional? Deni Varnhagen’s vaccine mandate challenge is in doubt because of SA’s new Covid laws.

Nurse and AFLW footballer Deni Varnhagen’s vaccine mandate challenge has been rendered “futile” by the state’s new Covid laws and should be dismissed, a court has heard.

On Thursday, counsel for the state government asked the Supreme Court to end Varnhagen’s long-running challenge, saying it had been overtaken by the new laws.

They argued the transitional provisions in the new laws meant any challenge to the previous mandate was “no longer a relevant question” for the court.

However Simon Ower QC, for Varnhagen, said that issue was best decided by referring the case to the state’s highest jurisdiction – the Court of Appeal.

He said the construction and interpretation of the new law ought to be decided by that court once, rather than be the subject of costly appeals from any Supreme Court decision.

The law may amount, he said, to a direction to a court – a concept traditionally considered unconstitutional by the High Court of Australia.

“Our concern is (also) one of resources … my clients have limited resources,” he said.

“It’s clear (if the case stays in the Supreme Court) either party will appeal … our preference would be the matter be heard once before the Court of Appeal.”

Nurse and AFLW player Deni Varnhagen leaves the District Court with her partner Jarrad Duthie. Picture: NCA NewsWire / Brenton Edwards.

Varnhagen, fellow nurse Courtney Milligan, teacher Craig Bowyer, childcare worker Kylie Dudson and police officers Zacary Adam Cook and Rosalyn Smith challenged the mandate.

They claimed authorities failed to exclude all “obvious, alternative, compelling, reasonably practicable” alternatives that do not affect “common law rights or freedoms to bodily integrity”.

Varnhagen was also benched by the Crows – a decision that was not part of the legal challenge – and is tipped to be eyeing a return to football with Port Adelaide.

As the repeatedly-delayed trial reached its conclusion, parliament passed new laws that overtook the emergency mandate, while adopting some of its language.

Varnhagen and her co-litigants asked for time to consider whether they would press on with their existing challenge, amend it to incorporate the new laws, or abandon it altogether.

On Thursday, counsel for the government said a Court of Appeal hearing was one of several ways of resolving the case.

Others included dismissal following legal argument in the Supreme Court.

Justice Judy Hughes said she could not refer the case to the Court of Appeal simply to expedite the process.

“Sometimes new legislation is referred, but I have to know more about what the issue is before I’m satisfied an (interpretation) about which the parties disagree is suitable for referral,” she said.

“At the moment, I don’t even know what the scope of the argument is.”

She ordered the parties to file further documentation ahead of a further hearing later this month.