Unvaxxed Tasmanian health care workers lose Full Court appeal for halt to ‘no jab, no job’ mandate

Unvaccinated Tasmanian health care workers have been dealt another blow in their fight against a Covid vaccine mandate currently being thrashed out in the courts.

TASMANIAN health care workers fighting a vaccine mandate have been dealt yet another blow – losing a Full Court appeal over a temporary halt on dismissals.

However the workers – who have been precluded since October 31 from entering any Tasmanian health care facility and are currently in the process of having their employment terminated – will continue their fight in a substantive court hearing later this year.

On Friday, a Sydney barrister with a history of fighting Covid vaccine mandates argued the vaccine mandate – made by Director of Public Health Mark Veitch – was an infringement on the workers’ common law right “to be free from bodily injury”.

Barrister Peter King previously acted for construction worker Al-Munir Kassam and a number of other plaintiffs, who failed in their bid for the NSW Supreme Court to declare public health orders be invalid as they forced them to undergo a medical procedure.

Mr King argued that Royal Hobart Hospital surgeon David Dunn had been put in an “extremely untenable position” by Dr Veitch’s direction.

He said the mandate restricted the surgeon’s movement, freedom of association and forced him to “corral his students, his nurses, his junior doctors, to be mandatorily vaccinated without their consent”.

Mr King also argued the direction turned Dr Dunn into a “criminal” for refusing vaccination.

He said Dr Veitch had acted “ultra vires” – beyond the scope of his powers – and that legislation had not provided him with the power to “impair or take away those common law freedoms and rights, in particular the right to be free from bodily injury”.

Associate Professor David Wylie Dunn outside the Supreme Court of Tasmania on Friday. Picture: Nikki Davis-Jones

But the Full Court of the Supreme Court – comprised of Justice Helen Wood, Justice Gregory Geason and Acting Judge Brian Martin – weren’t convinced by Mr King’s arguments.

Paul Turner SC, acting for Dr Veitch, said Chief Justice Alan Blow, who initially rejected the injunction application in late October, made no errors in arriving at his decision.

“Most laws, to some extent, do impinge upon freedoms of people. You can’t drive a car without a seat belt. You can’t ride a bike without a helmet,” Mr Turner said.

He said there was no reason to read the emergency powers outlined in the Public Health Act narrowly, and “every reason to read them widely”.

“While an emergency is in force, the director may take any action or issue any direction, so (it’s) very wide language used,” he said.

“They’re designed to achieve things at a high level, that is to say, for the benefit of us all.

“The applicant has a choice. It might not be particularly palatable to him, but he has a choice.”

Mark Jehne and Paul Turner SC, acting on behalf of Director of Public Health, Mark Veitch. Picture: Nikki Davis-Jones

Justice Wood, in dismissing the appeal, agreed Chief Justice Blow hadn’t made any errors in his initial determination, and the Public Health Act provided the director with “wide power”.

The affected health care workers – many of whom were in the court’s public gallery on Friday – said in a statement that a “no jab, no job” mandate was “heavy-handed and oppressive”.

“ … forcing health care workers to have a vaccine that is still in trial phase, or be terminated, is unethical, coercive and a violation of basic human rights,” they said.

The substantive matter will be held after a fortnight’s time.

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