Djokovic meets Australian administrative law at the Border

Posted on

The recent case of Novak Djokovic is a classic introduction to Australian administrative law.

It also shows what a mess our Federal system has made of vaccination policies.

Djokovik beats the Australian government's visa cancellation decision
Novak Djokovic is released from Australian detention on 10 January 2022

I have been fascinated to read what the press and the politicians have had to say about Australian administrative law as it has applied to the case of Novak Djokovic v Minister for Home Affairs. It has been difficult to work out what has actually happened from these press releases and political statements alone.

Fortunately, light has now been shed on what has happened. That’s because a Court decision in this case was made yesterday, on 10 January 2022, and can be found here.

I have not been involved in this case, and I have only read the Court documents and some press on the issue. This post is a comment on some of the administrative law aspects of the case. It is also a comment on some of the mandatory vaccination rules applying in Victoria and the Commonwealth.

Federal not Victorian law

Judge A Kelly of the Federal Circuit and Family Court of Australia (FCFCA) was the presiding judge in this case. This was a Federal case, not a Victorian case. It related to a decision made under Commonwealth law, not Victorian law. It applied legislation passed by the Commonwealth Parliament, not legislation made by the Victorian parliament.

The first things to be considered here, are things I constantly explain in my training courses to public servants and bureaucrats across both Federal and State systems (and, yes, these things are relevant to local government decision making too).

Key questions to ask

Q1: Who made what decision which is being complained about?

Q2: What legislation authorised this decision?

Q3: What discretions and constraints applied to the making of the decision? and

Q4: What errors of law were made by the decision maker?

Before we walk through these questions, it is worth clarifying a very important further question.

Q5: What did the judge do?

Q5: What did the judge do about Djokovic’s visa cancellation?

Judge Kelly did not analyse the case and hand down a decision with reasons.

Rather, the parties (Mr Djokovic and the Minister for Home Affairs) came to an agreement, and asked the Judge to make orders which reflected the agreement. These are usually called “consent orders”. The Judge is supposed to be comfortable with making such orders, but it’s not the same as the Judge forming a view about all legal and factual issues in the case.

As noted above, the orders can be found on the Court’s website, through the link here. The orders are summarised here:

  1. The decision of a delegate of the Minister to cancel the applicant’s visa was quashed;
  2. The Minister pays the applicant’s costs; and
  3. The Minister releases the applicant from immigration detention within 30 minutes, and returns his passport and personal effects to him.

That’s it. There are no reasons, because these orders were made by consent.

However, there is an interesting “Notation”.

Judge’s Notation shows that the Minister conceded defeat and Djokovic was treated unfairly

The Notation states that the decision was conceded by the respondent to be unreasonable.

It was conceded to be unreasonable because:

“The respondent concedes that the delegate’s decision to proceed with the
interview and make a decision to cancel the applicant’s visa pursuant to
s 116 of the Migration Act 1958 (Cth) was unreasonable in circumstances
(1) at 5:20am on 6 January 2022 the applicant was told that he could have until 8.30am to provide comments in response to a notice of intention to consider cancellation under s 116 of the Migration Act 1958 (Cth);
(2) instead, the applicant’s comments were then sought at about 6:14am.
(3) the delegate’s decision to cancel the applicant’s visa was made at 7.42am;
(4) the applicant was thus denied until 8.30am to make comments;
(5) had the applicant been allowed until 8:30am, he could have consulted others and made further submissions to the delegate about why his visa should not be cancelled.”

In general administrative law terms, these facts show a breach of natural justice, or procedural fairness. (In the context of the Migration Act, the term used here is “unreasonable”.)

A breach of natural justice is when somebody is treated unfairly in terms of the process, not the outcome. This means that the decision involves an error of law, due to a fundamental breach of fair process.

In this case, the applicant, Mr Djokovic, was told that he had 3 hours to provide comments, and then that promise was ‘removed’ and the opportunity was denied to him. It was so early in the morning that he had no chance to speak to his lawyers or others. He was expecting to have until 8.30 am, but that expectation was not fulfilled.

This is why the Minister conceded that the visa cancellation was a legally flawed decision.

And that is why the Minister told the judge that another visa cancellation might occur shortly. The Judge noted that:

“The Court was informed… that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs may consider whether to exercise a personal power of cancellation pursuant to sub-section 133C(3) of the Migration Act 1958 (Cth).”

Fundamental questions we can ask

So, back to the other 4 questions I posed earlier. These are questions an administrative lawyer asks. They can also be asked by anybody complaining about a decision made by the government:

Q1: Who made what decision which is being complained about?

Q2: What legislation authorised this decision?

Q3: What discretions and constraints applied to the making of the decision? and

Q4: What errors of law were made by the decision maker?

Q1: Who made what decision which is being complained about?

The decision was made by a delegate of the Minister for Home Affairs. It doesn’t really matter what the name of this person was, because the decision is seen as a decision of the Minister. (This is why the Minister becomes the respondent in the case.)

The decision was a decision to cancel a visa granted to Novak Djokovic under the Migration Act before he came to Australia. It was called a subclass GG408 (Temporary Activity) visa.

Q2: What legislation authorised this decision?

An affidavit of Natalie Bannister, solicitor, (an excellent lawyer I used to work with at Blake Dawson Waldron, now called Ashurst), shows that the decision to cancel the visa was ‘purportedly’ made under 116(1)(e)(i) of the Migration Act.

Note that lawyers use terms like ‘purported’ decision to signal that the decision is not a lawful decision, if it contains an error of law. And a breach of natural justice is an error of law.

Q3: What discretions and constraints applied to the making of the Djokovik decision?

It can be seen from the Bannister affidavits (available on the Court website) that there were a number of arguments being put about the discretions and constraints applying to a decision under s 166(1)(e)(i) of the Migration Act.

I will not set all of those arguments here. They might become relevant in a future case if another visa cancellation decision is made.

The statutory provision states that the Minister may cancel a visa for different reasons, including this one:

 (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

 (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii)  the health or safety of an individual or individuals; …

(s 116(1)(e)(i) Migration Act).

So it appears that s 166(1)(e)(i) of the Migration Act is the key statutory provision in the Djokovic case.

Not a Victorian provision.

Nor a policy.

And not a freestanding ‘rule’.

Q4: What errors of law were made by the decision maker?

The errors of law allegedly made by the decision maker are set out in the Bannister affidavits. Ms Bannister comments on the statutory provisions and the delegate’s failure to exercise the right discretions and comply with the necessary constraints.

But these are only allegations, as the matter was resolved by consent on the ‘unreasonableness’ ground alone.

What about the Prime Minister’s tweet that Djokovic had to follow the rules?

It is reported that the Prime Minister, Mr Scott Morrison, tweeted that “Rules are rules”:

“Mr Djokovic’s visa has been cancelled,” Morrison said in a tweet. “Rules are rules, especially when it comes to our borders. No one is above these rules. Our strong border policies have been critical to Australia having one of the lowest death rates in the world from COVID, we are continuing to be vigilant.”

However, there have been quite a few different comments made in the press regarding who made what decision about what, and who was responsible for what, and whether a vaccine exemption was provided or not, and to whom. A compilation of some of these different messages from the PM are set out in this youtube video.

At the end of the day, it is not the public statements of politicians that determine what decisions have been made by whom under what authority.

You need to look at the primary documents.

What about Tennis Australia?

There has been a lot of discussion by the politicians and the press about Tennis Australia. Things were said like “Tennis Australia granted an exemption”.

As an administrative lawyer, I ask myself, what status has Tennis Australia to make decisions or grant exemptions in relation to what?

In terms of entry to Australia, it is not a Commonwealth entity with statutory powers to grant or refuse entry.

In terms of entering or doing things in Victoria, it is not a State Government entity with statutory powers.

According to Tennis Australia’s website, and its Annual Report:


Tennis Australia (TA) is a not-for-profit Company limited by guarantee and registered in Australia. The Company’s purpose is to grow, manage, promote and showcase the game of tennis domestically and represent Australia’s
tennis interests internationally. The Australian Open is owned and organised by TA each year at Melbourne Park. The members of TA are the six state and two territory tennis associations also known as the Member Associations (MAs).

So there you have it. Tennis is extremely important to Victoria and Australia, and the world. But Tennis Australia is a not-for-profit company, not an arm of government.

Therefore any decisions made by Tennis Australia about ability to play or requirements to get injections in the Australian Open only relate to players playing or seeking to play in the Australian Open.

And, of course, Tennis Australia is subject to the laws of Victoria and the Commonwealth, just like any other company in the country.

Tennis Australia’s affidavit and the ‘independent review’ of Djokovic’s claimed exemption

However, Dr Broderick, the ‘Chief Medical Officer’ (not a government title) of Tennis Australia filed an affidavit in the Djokovik case, saying that:

  • she was involved in setting up an independent expert medical review panel for Tennis Australia (note, this is not a government panel);
  • it was put in place in discussion with the Victorian Government’s Department of Health;
  • Tennis Australia’s panel ‘decisions’ were then reviewed by the Department of Health’s independent panel;
  • both panels were reviewing “whether or not the application met ATAGI’s guidelines on medical exemptions to vaccination (ATAGI is the Australian Technical Advisory Group on Immunisation); and
  • both panels agreed that Djokovic should get an exemption.

Comment on the Tennis Australia and Department of Health two tier review panel process

This so-called medical exemption appears to have no legal force at all.

As far as Tennis Australia goes, they can, as a company, do what they like in terms of allowing players or not – subject to the laws of Australia and Victoria.

As far as the Department of Health goes, it does not appear that the panel allegedly established or endorsed by public servants in the Department had any legal force at all.

If there is something I do not know (which has not been published), I stand to be corrected.

But on this issue, I do note that the panels only looked at whether the exemption application met with the guidelines of a body (ATAGI) with no statutory force on these questions.

What could be the legal force of that?

What role did Daniel Andrews, the Premier of Victoria, play?

It’s not clear what role the Victorian Premier played in this saga, although I do recall seeing him on television referring to the independent two tier panel review process, described in Dr Broderick’s affidavit. He gave the impression that this was a government exemption decision.

I cannot see how it could possibly have been a government exemption in the sense of relating to any statutory powers of the Victorian government or public servants with statutory powers under any state government statutory regime.

The more relevant question, which I have not seen discussed, is whether Novak Djokovic falls within an exemption category to the applicable mandatory vaccination direction or order which presumably applies to tennis players in Victoria. I have written about some of these mandatory directions last year. If he doesn’t, then it is not clear how he could play.

Without researching this question in detail, I suggest that the relevant direction might be the Pandemic (Open Premises) Order 2022 (No. 2) under the Public Health and Wellbeing Act (Vic).

Has anybody considered that?

No wonder people think there’s a double standard

There’s a lot of press and commentary about double standards here. The question has been put why Novak Djokovic was granted an ‘exemption’ based on having had covid, when maybe other Australians can’t get such an exemption.

There is possibly some point in this argument. But the truth is, Novak Djokovic doesn’t seem to have got any legally-binding exemption.

Unless I’m missing something that hasn’t been reported?

Further, if his visa is cancelled again, it will be based on s 166 of the Migration Act. That doesn’t say anything about exemptions. It talks about public health risk. The decision maker would have to find that Novak Djokovic is a risk to the community.

If he has recently had covid, his risk to the community, based on the science I have read over the last 2 years, is likely to be much less than people with old vaccines whose effectiveness has waned. But that’s a medical argument. Which would no doubt be raised in a future case, together with medical, scientific or statistical analysis and expert witnesses to boot.


I make two conclusions on this rather complicated saga. In fact, it looks as though you could write a book about it.

First, the comments made by the press, Tennis Australia, the Premier, the Prime Minister and other Ministers or ‘leaders’ do not seem to have much if any bearing on what, actually, legally occurred.

Second, the rhetoric about vaccinations in Victoria and Australia (mandatory, voluntary, recommended or whatever else) is wrong and confusing. Whether or not you agree with mandates (and I don’t, by and large), the least our leaders can do is be absolutely crystal clear about what the law is and is not.

Otherwise the complaint of double standards would appear to be at least arguable, because it is being presented to us that different exemption frameworks might apply to different people and for different reasons:

a) A two-tiered ‘review’ process of a ‘non-decision’ to grant an ‘exemption’ from an advisory body’s guideline (as is claimed in the case of Djokovic but has never been heard of before and won’t be applied in the future, because it is meaningless); or

b) a visa cancellation decision which is discretionary and requires consideration of risks to health and safety (which is apparently what is being reconsidered now); or

c) an exemption from a mandatory vaccination requirement to undertake certain activities, as set out in a Victorian government statutory direction (which has not been mentioned in the press at all).

PS More government officers need to learn about administrative law…

PS – If public servants, including members of the Australian Border Force, would like training in administrative law, please contact me! It would be better for us all if more people in power could understand statutory powers and how to exercise them lawfully and transparently.

Pandemic Legislation introduced with false urgency and secrecy

Posted on

The Victorian government led by Daniel Andrews has apparently introduced a bill for new Pandemic Legislation into Parliament today (26 October 2021).

You wouldn’t know it by looking at the Victorian Parliament website. I can’t find the Bill. Only a title page.

Where is the bill?

The press have had a bit of commentary today. They all seem to assume that the Bill has become legislation. Nobody is complaining much. It looks as though the press had advance copies. Did they get a chance to read them?

I had a look at the Parliament website. I couldn’t find a link to access the Bill.

By the time people read this blog post, the link will probably be there. But it’s not there now. Hmm, that doesn’t help the community to know what is going on and engage in debate.

But the community might not be too worried right now, given that Premier Andrews has given us “freedom” (of sorts), and the lockdown is over (kind of). Good timing.

Someone gave me a draft of the Bill

Seeing as I can’t find the Bill on the Parliamentary website, I have had to look at a draft somebody gave me. I presume it is a correct version. It looks quite official.

But really, it’s astounding that something as far reaching as this is not a matter of public record – yet.

Especially as the journalists seem to think this Bill is going to be passed on Friday. That’s in 3 days time. Sorry? How do they know that? And… Why the rush?

People of Victoria, through the sudden introduction of new Pandemic Legislation, the current government does not want you to assess what is about to happen to you, and does not want to give you time to think about it.

Below is the apparent name of the bill. It’s been in the wings for many months. The document I am looking at says it’s the twelfth draft. But the government thinks it’s not worth telling us (the community in Victoria) about it sooner than this.

Why aren’t today’s press reports complaining about this draconian legislation more loudly?

Covid new laws are scarily broad and should frighten Victorians

Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021

Here are a few disturbing provisions in the Bill.

Definition of serious risk to public health is too broad

There’s a definition of “serious risk to public health” in s 3(4). The new definition inserts:

“a pandemic disease or a disease of pandemic potential may pose a material risk of substantial injury or prejudice to the health of human beings, even when—

(a)  the rate of community transmission of the disease in Victoria is low; or

(b)  there have been no cases of the disease in Victoria for a period of time.

Okay, that means that the legislation will say that something may post a “material risk of substantial injury” even when cases are spreading at a low rate, or where there have been no cases “for a period of time”.

What period of time? I don’t know. But this means that the government can pretend something is a material risk even when there are no cases. Say there’s a disease which doesn’t ‘exist’ anymore. Say there haven’t been any cases for decades. This provision says that the disease may still pose a material risk – if someone in power wants to say so.

Premier’s powers are too great

In s 165A(2), the Bill says that the Parliament “intends” that any limitations on human rights protected in the Charter of Human Rights and Responsibilities Act should be demonstrably justified… But what does this mean? It sounds nonsensical. It sounds like “we are about to limit human rights and we intend to justify it”.

Which is a bit self-serving, if the limitations are not, objectively speaking justified.

Like the definition of “serious risk to public health”, which is proposed to cover situations where there is no risk in fact, but someone in power might think or say that there may be.

Section 65AB(1) states:

The Premier may make a declaration under this subsection (a pandemic declaration) if the Premier is satisfied that there is a serious risk to public health arising from—(a) a pandemic disease; or(b) a disease of pandemic potential.

This is a massive shift. Now the Premier, with no health or medical or public health background, can decide on whether there is a serious risk to public health, and make a pandemic declaration. What if he or she has no idea about how to assess whether there’s a serious risk to public health? Sure, they may get advice. But they can also ignore good advice if they want to do so.

Oh, I forgot, he or she doesn’t have to be qualified to make such an assessment. They can just say there’s a risk even when there’s no cases. So they can hypothesise, based on what – cases in Northern Europe? or an island off Northern Canada? or no cases anywhere at all? – that there’s a risk here in Victoria.

Reporting to Parliament on reasons is not enough

Section 165AG states that the Premier must report to Parliament on his or her reasons for the Pandemic Declaration. That’s not enough. That doesn’t create enough transparency or accountability – the Premier could say very little. He or she could make a series of assertions. It’s up to him or her what detail they include.

And anyway, here, as for several previous sections, it says that failure to comply with the Act does not lead to invalidity.

That means the Act says ‘do something like this’ at the same time as saying ‘if you don’t do it like that, it doesn’t matter, what you do will still be valid’.

Groups of people may be targeted

Section 165AK states that a pandemic order might apply to specific groups of people. I have heard some complaints that this will enable targeting on a discriminatory basis that might otherwise be unlawful. It certainly looks like this will be condoned.

But a warning bell in this part should be sounding for all of us (journalists, are you listening?). It says a pandemic order may be focussed on people based on:

(b) their participation in or presence at an event;

(c)  an activity that they have undertaken or are undertaking;

(d)  their characteristics, attributes or circumstances.

Remember when they (apparently the Civil Aviation Safety Authority via a request of Victoria Police) tried to ban filming at the protests? The media appealed this decision successfully. But be warned, if journalists try to cover an event, they could soon be ordered not to do so.

Not to mention the orders which can be made over the many who have sought and are still seeking to protest against various Directions such as mandatory vaccination directions issued in recent weeks. They are presumably going to be ordered not to do so.

Doesn’t that have something to do with free speech? Isn’t that something we should all be worried about?

Pandemic Orders are scarily wide

In s 165AM there seem to be very little limitations on what a pandemic oder can do. It’s much, much wider that the current directions that can be made under a State of Emergency (s 200 of the Act). I have already stated that I think some of the recent directions are unlawful because they go beyond the terms of the legislation.

But now, what is proposed has much broader terms.

The control the Premier (and Minister) may wield over the populace – in a very broad range of activities – is quite unprecedented. A system of permits for just about anything is proposed.

“In respect of an activity, a business, an undertaking, a gathering, or movement within or entry into an area.”

It might seem, after so many months of lockdown, that this is just more of the same. But it isn’t.

And the lawfulness of the directions given to date has not fully been tested. That doesn’t mean they have been lawful.

It certainly looks as though this new legislation is doing its best to make sure wide, draconian restrictions which might not be lawful now, soon will be.

Is there scrutiny?

No, there’s no scrutiny. (See s 165AS and 165AT)

Just because you use the word scrutiny, doesn’t mean there is true scrutiny.

There are quite a few convoluted provisions regarding the involvement of a “Scrutiny of Acts and Regulations Committee”. Here are some takeaways.

  • The Committee can report to Parliament after the pandemic order is made if they think it’s unlawful (ie too late);
  • They can recommend it be suspended (how long would this take?);
  • They can send a report to the Minister, Governor in Council, etc recommending suspension and 7 days later it will be suspended (still too little too late, but what happens next?);
  • The Minister can tell the Governor in Council to cancel the suspension and he/she can then cancel the suspension (oh dear, back to the beginning);

I’m only up to page 36. The Bill goes to page 118. I shudder to think what else is in there.

Don’t pass this Bill. It is a bad idea. It gives the Premier and others unprecedented power with little if any accountability. I hope those expected to vote for it do not do so.

Mandatory vaccination directions for workers – Part 5.2

Posted on

I have written 5 blogs on the attempts by the Victorian government to force workers to ‘get the jab’ or ‘lose your job’. In my opinion there are good arguments that these attempts are unlawful.

Not only are they are blunt instrument, there are questions about their compliance with the statutory regime under which they are issued.

Nevertheless, I hear that the government’s attempts are encouraging employers to impose their own mandatory vaccination policies, without regard to proper risk assessments or human rights or the rights of employees. I know of a few examples where this is happening.

It may be that employers feel emboldened to mandate vaccinations, because if the Chief Health Officer can do it, they think they can do it.

What if the Chief Health Officer can’t do it?

And what if some or many of the employers can’t do it, even if the Chief Health Officer can?

Today I post about two things. In Part 5.1, I examine some of the text of the Directions.

Commonwealth Government advice on vaccinations

Here, I look at some of the Commonwealth Government’s advice about the risks of vaccination, including references to people who should not take certain vaccinations.

I argue that the Commonwealth Government’s generic health advice to the public is a valid source of information for those deciding whether to self-vaccinate or not.

Is that so controversial?

And it’s worth noting that a government (like the Commonwealth Government) can be pro-vaccines for society as a whole, but the government can still enable individuals (even if only 10-20% of the population) to make up their own minds and choose not to take a particular vaccine, based on health advice from that same government.

The Victorian Mandatory Vaccination Directions issued today (22 October 2021) contain very limited exceptions for people with very specific medical preconditions. They don’t contain exemptions for religious reasons, conscientious objections, or medical concerns. And they don’t allow the nuances of the Commonwealth government’s advice to be considered by an individual.

But in this post I am just looking at medical concerns.

Some people are worried about losing their jobs
People who are worried about vaccinations have now lost their jobs in Victoria under the State of Emergency

Some people are concerned about the risk of vaccinations

The State government Directions are called CHO Directions (Chief Health Officer).

There are a number of people with genuine health concerns which are not accommodated by the CHO Directions at all. There’s no flexibility. No allowance to consider the real risks of one individual in one workplace remaining unvaccinated. No allowance to enable a person to assess their own risk and decide not to self-vaccinate.

When you look at the Commonwealth Government’s medical advice, you can see that there are real and rational risks that some people may choose to take into account when deciding not to vaccinate. Some of those risks are “theoretically” real, and nobody anywhere can prove that they don’t exist.

If you are vaccinated, and you think people should get vaccinated, that’s fine as a public policy position.

But when you start judging individuals who may well have individual health concerns, that’s another matter.

If we want to judge those who choose not to get the jab, on an individual basis, we should stand in their shoes for a little while, and be prepared to tell them “get the jab, you will be fine, I guarantee it”, or “I’ll compensate you, no matter what happens”.

So when someone tells me they have had a blood clot issue before, or an adverse reaction to a flu shot, or a serious heart condition, and they don’t want to get ‘the jab’, I respect their decision on a personal level.

And when those people go to a GP and ask, “can you personally guarantee I will be fine?” they are likely to be told “no”.

And then, if you choose to self-vaccinate, knowing the risks, then you have voluntarily consented to the process.

And you may well decide that the risks to you personally are outweighed by the benefits to society as a whole, and you then get vaccinated.

But some people are so concerned about their medical situation that they are not prepared to take the risk of getting a vaccination. The Commonwealth Government has recognised that people have a right to choose for many months now.

Here are some real risks that the Commonwealth Government recognises.

Pfizer risks recognised by the Government

Have a look at the Guidance on Myocarditis and Pericarditis after mRNA Covid-19 vaccines. This is an Australian Government publication. It starts: “The following guidance has been developed jointly by the Australian Technical Advisory Group on Immunisation (ATAGI) and the Cardiac Society of Australia and New Zealand (CSANZ).”

It says as follows:

Importantly, myorcarditis is also a possible complication of Covid-19.

ATAGI and CSANZ emphasise that the overwhelming benefits of vaccination using an mRNA vaccine in protecting individuals against COVID-19 and its serious outcomes such as hospitalisation and death as well as the wider benefits of reducing spread of the disease in the community, greatly outweigh the rare risk of myocarditis or pericarditis after vaccination.

There is a theoretical concern that patients with (certain) conditions may be at increased risk of developing myocarditis and/or pericarditis after a dose of an mRNA COVID-19 vaccine, although there is no evidence to confirm this at present.

I highlighted the part in red, to emphasise that the recommendation being given (to get vaccinated) is a recommendation that takes into account the benefit to the whole community – so if people are prepared to take a personal risk for the benefit of society, that is something they are entitled (and encouraged) to do.

But the Guidance document acknowledges risks. It means, according to the Government, and the Cardiac Society, that there are risks of taking the mRNA vaccine which some people may choose to take into account.

Measuring those risks, or proving them, may not be possible at this time.

But a lack of evidence does not mean there is no risk.

And people may choose to follow the Government’s acknowledgment of risk and decide not to get vaccinated.

Astra Zeneca risks recognised by the Government

The Australian Government has published material on the risks of the Astra Zeneca vaccine. It is called Information on Covid-19 Vaccination Astra Zeneca.

It says as follows:

Astra Zeneca appears to be linked with a very rare side effect called Thrombosis with Thrombocytopenia Syndrome (TTS).

TTS involves blood clots (thrombosis) and low levels of blood platelets (thrombocytopenia), and
occurs around 4 to 42 days after vaccination.

It can lead to long term disability or death.

There are other government documents which set out tables showing the risk of getting TTS from AZ vs the risk of dying from Covid. Different age groups and genders have different risk profiles. Some of the tables are here.

ATAGI recommends that some people not get the vaccine. For example, people with history of capillary leak syndrome; or people with specific blood conditions.

ATAGI says:

If you have a bleeding disorder or you are taking a blood-thinning medication (anticoagulant),
tell your immunisation provider. Your immunisation provider can help determine whether it is safe for
you to have an intramuscular injection and help to decide the best timing for injection.

That means that ATAGI acknowledges you might make a decision in consultation with your immunisation provider as to whether it is safe to get an injection.

Chief Health Officer Directions operating from 22 October 2021

I look at the medical exemptions given in the CHO Directions issued today.

They do not reflect all of the risks which are acknowledged by the Commonwealth Government.

That means the Chief Health Officer (Acting) has been happy to dictate mandatory vaccinations – or lose your job – without allowing you to properly assess the Commonwealth Government’s recommendations as to risk profiles for the various vaccines.

And without you being able to discuss with your doctor what is best for you.

How can this be right?

What am I missing here?

Mandatory vaccination directions for workers – Part 5.1

Posted on
Victorian workers are confused by the suddenly urgent mandates
How can employers comply with due dates that have passed?

Today a new set of Mandatory Vaccination CHO Directions were issued on the DHHS website – they mandate vaccines for Covid-19. They are always a ‘fresh’ document, but they can repeat the scheme set out in previous Directions.

Despite months and months of lockdown and encouragement to Victorians to self-vaccinate, the State Government has very recently decided that it’s suddenly urgent to mandate vaccinations for workers across Victoria.

It’s quite sad that Victorians are celebrating the end of lockdown today, at the same time that fundamental human rights are being denied, and hundreds of thousands of people are potentially losing their jobs.

The Directions I look at in this post are called:

Directions from Acting Chief Health Officer in accordance with emergency powers arising from declared state of emergency COVID-19 Mandatory Vaccination (Workers) Directions (No 5)
Public Health and Wellbeing Act 2008 (Vic)

There are other directions mandating vaccines, but I am not discussing them here.

I wrote previously about the need for the person who makes such directions to comply with the law, and to form the required statutory intention under s 200 of the Public Health and Wellbeing Act 2008. In fact, I teach administrative law to public servants and have done so for over 15 years. This is what I teach every single time I run a training course.

I realise that it is hard to follow the law sometimes, but when you are exercising statutory power over others – affecting their rights and entitlements – you really need to be careful to get it right. As far as you can.

And if you are affecting hundreds of thousands of people, you’d probably be wise to get legal advice before you sign off on such directions.

You know, ordering people to get vaccinations, or make bookings, or else they lose their job. That’s kind of pretty significant stuff to happen in Australia.

I commented in Part 3 of this series, that there were flaws with the previous set of Directions, because they required people to make appointments for a date in the future which was not covered by the period of the Directions themselves. How could you say it was an emergency to force someone to make a booking for something in the future that you couldn’t require them to follow through?

So I was interested to see what sorts of timelines and requirements were in these fresh Directions.

What do the current Directions say about timelines – things coming up that you have to comply with?

Put simply, the thought gone into these directions issued today is way less than I would have expected. The decision maker hasn’t even thought through the timeline in relation to what they are demanding. They refer to “due dates” which have passed. How is this possible?

Sadly, the lack of accuracy in the drafting of these Directions shows that the Chief Health Officer and/or staff have better things to do than be clear about what is being demanded from employers and workers in Victoria. Which makes it hard to understand how everybody’s health (including mental health) is being promoted.

What really are the risks posed now by the few unvaccinated workers that are left in Victoria? (Given that the vaccination rates have gone gangbusters on a voluntary basis.)

What really is the risk of one worker being unvaccinated in an environment where they have no contact with customers or even staff?

How really are these directions necessary?

It also suggests that the lack of media interest on this issue (or perhaps the quelling of dissent) is encouraging the government to think less and less about the lawfulness of such Directions.

As a simple legislative drafting exercise, it’s not really a pass mark in my view.

Key drafting issues in the Directions

I won’t summarise the whole Directions. Here are a few quotes from the Directions, to make my point:

These directions commence at 11:59:00pm on 21 October 2021 and end… on 18 November 2021 (clause 3).

If the employer collects information that a worker is unvaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive, by the first dose deadline, a dose of the Covid-19 vaccine…(clause 4(3)).

An employer must comply with the obligations in subclauses (1) to (3) as soon as reasonably practicable after the commencement of these directions (clause 4(4)).

Despite subclause (1), an employer of a worker may, between the relevant date and the first dose deadline, permit a worker who:
(a) is unvaccinated; and
(b) has a booking to receive, by the first dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated, to work for that employer (clause 5(3)).

The Directions say that the “relevant date” is 15 October 2021. That’s a week ago. Sorry, that date is long gone. Why refer to it? The Directions of 22 October 2021 mandate something to be done with respect to a date that has expired: 15 October 2021.

How can you set up an emergency direction now (urgent, urgent) enabling or requiring things to be done by reference to a date which expired a week ago? It’s quite confusing.

And the “first dose deadline” is 22 October 2021. That’s today. So employers are expected to gather information about bookings for vaccines today? And that will allow the worker to work? Is that meant to apply just to today?

It’s not a reasonably practical requirement on an employer. It’s confusing for employers and employees – and should not be in this Direction.

Exceptions in the Directions

There are a few exceptions in these Directions which enable people to get out of the ‘no jab no job’ rule (albeit a temporary rule). One of them relates to medical certificates (clause 8(5)).

A person is an excepted person:
(a) if the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication; or
(b) if the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to an acute medical illness (including where the person has been diagnosed with SARS-CoV-2).

I don’t know what acute medical illness means. I guess it’s up to a doctor to decide, which is a problem in itself. What if your doctor thinks your condition is bad but not ‘acute’? But it sounds like it might not cover many underlying serious conditions. Or that doctors will be confused about what it means.

Medical contraindication is defined in clause 10(9). It’s not a broad definition. It’s very specific. It states:

medical contraindication means one of the following contraindications to the administration of a COVID-19 vaccine…

The list of contraindications is mostly reactions to a dose of the vaccine already taken.

Commonwealth Government advice on risks of vaccinations

It does not include the whole list of risky conditions identified by the Commonwealth government.

Out of interest, we need to compare these State Government limited exceptions to the advice from the Commonwealth Government, to see whether the State Government is allowing people to follow the advice of the Commonwealth Department of Health. I look at some of the Commonwealth government’s vaccination advice in Part 5.2.

And there is a clear disconnect between the Commonwealth’s health advice and the Victorian draconian mandatory vaccination directions.

A fundamental issue, as I have said in previous posts, is the right to consent to medical treatment, as enshrined in the Charter of Human Rights and Responsibilities Act. It is not featuring at all in these “urgent” CHO directions.

And if a person is supposed to have the right to make a risk-based decision (taking into account Commonwealth Government advice about risk, if they like), why does the State Government suddenly – on the transition into ‘freedom’ from lockdown – think that they can take away those rights?

How has the Acting Chief Health Officer formed the requisite statutory intention before making the Directions?

How is it possible for the decision maker on these Directions to have decided that they are “reasonably necessary to protect public health” as required by the Act? Why didn’t any Chief Health Officer do anything like this prior to the beginning of October, even though vaccines have been available for some time?

In my previous post, I said:

It’s impossible to have an urgent emergency direction that requires someone to do something in the future after the direction expires.

So when the direction ‘mandates’ a booking for a first jab by 22 October 2021, and a second jab by 25 November 2021; it shows the overreach here. How can you mandate that someone book a medical procedure for a date which falls outside the ambit of the direction?

Now the Directions are partially focussed backwards. How does that make sense? How does that deal with the “emergency”? And how are they necessary?

And today Victoria’s lockdown ends.

Yay, freedom!

Except for the thousands – hundreds of thousands – of workers, who have lost their jobs despite the State’s vax targets being reached.

How can that possibly fulfil the statutory preconditions for these Directions?

Mandatory vaccination directions for workers – Part 4

Posted on
Where are the Covid Mandatory Vaccination directions heading?
As Victoria heads out of lockdown, why are workers suddenly forced to get vaccinated?

Where are we up to with the mandatory vaccination directions?

I thought I would look at the DHHS website to see if they had posted a new set of directions for mandatory vaccinations of workers, given that the ones imposed less than two weeks ago were due to expire.

As I said in Part 3 of this post, I think there were significant legal flaws in the previous Directions no 3.

There’s a new one – it popped up yesterday and expires tomorrow

I was surprised to see another Direction, no 4, which was only made yesterday, and expires tomorrow.

That’s a Direction, under the State of Emergency, that’s only there for 2 days.

That means that the Chief Health Officer was supposed to form the requisite statutory intention, as I described in Part 2, that the direction was “reasonably necessary to protect public health”, for those two days.

The Directions, called the “Covid-19 Mandatory Vaccination (Workers) Directions (No 4)” are 28 pages long.

I can’t see anything substantially different in them, except for a reference to oral examinations and the IB program. But I haven’t done a line by line comparison.

There should be consultation and transparency about how we are governed

When legislation is made, as I have mentioned in this series, there is a process which includes consultation and explanation to Parliament and to members of the public.

An Act might be passed which amends a previous Act. It’s quite easy to trace back and work out what has happened. The Amending Act will say something like “section 2 is amended to include section 2(1)…” And then the poor lawyers, citizens and others will be able to know what has changed. They won’t have to read a long document and try to find out what has changed. It will be obvious.

That’s good, in a democracy, to have a certain level of transparency when legislation is made or amended.

But that’s one difference between legislation and these CHO directions.

In those 28 pages, how are we supposed to know what has changed? Was there any consultation or explanation?

I realise that these are supposed to be emergency powers, and that we have been in an almost constant state of panic for over 18 months in Victoria. But surely the public has a right to know what is different between the constantly changing sets of directions.

Especially when you are imposing obligations to get mandatory vaccinations – an apparent breach of or incompatibility with the Charter of Human Rights and Responsibilities Act.

And the same questions will arise when the next Directions are issued.

Mandatory vaccination directions for workers – Part 3

Posted on
Can Dan Andrews require workers to be sacked?
Victorian workers are being told they have to jab or lose their jobs. But legal questions abound.

Today, on 8 October 2021, new so-called “mandatory vaccination” directions were made.

I have set out the statutory framework for these types of directions in Part 2.

I commented in Part 1 on the 7 days during which no directions had been made, but everybody took the Premier’s press release as law. It wasn’t.

The new directions are called the: Covid-19 Mandatory Vaccination (Workers) Directions under the Public Health and Wellbeing Act 2008 (Vic)

The Directions apply to some 140 categories or sub-categories of workers in Victoria.

Some of those categories have already fallen away. The Spectator reports in the article “Will someone please explain to Dan Andrews he can’t sack a judge who isn’t double jabbed.” that judges and other court-related ‘workers’ will be ‘exempt’ from the mandate. Whoops.

What do the Directions from Acting Chief Health Officer dated 8 October 2021 mean?

The Directions issued today are in my view likely unlawful, and are certainly temporary. 

They do not force people to get vaccinated. They put pressure on employers to keep records and keep unvaccinated people out of the workplace.

It’s very extreme, a clear breach of human rights, and completely unjustified as a ‘State of Emergency’ ‘urgent’ step. After more than 18 months of Covid, and many months of voluntary vaccination, it’s totally untenable to see mandatory vaccination (or coercion to that effect) as an urgent emergency.

They only operate from midnight 7 October until midnight 21 October 2021. 

The State of Emergency currently expires on 21 October 2021.  If it is extended, new Directions have to be made.  It cannot be extended beyond 15 December 2021.

The Directions require an employer to collect, record and hold vaccination information about a worker.  (clause 4(1)).

If the worker tells an employer that they are unvaccinated, the employer must collect, record and hold information about whether the worker “has a booking to receive” a first dose by 22 October 2021.  (clause 4(3)).

That means a worker could tell the employer that they have a booking to receive a first dose by 22 October 2021.

Therefore the Directions do not require a worker to be vaccinated by any date prior to the expiration of the directions.

Vaccination information “is information about a person’s vaccination status”.  It could be information that the worker tells the employer.  It  “includes information that is derived from a record of information…” but it does not state whether the information must be derived from a record of any kind.  It doesn’t require an app or a certificate or a vaccine passport (clause 8(7)).

Therefore the Directions do not require a worker to be vaccinated, but require a worker to provide information, including orally, about their vaccination status (or their booking information).

Despite the above, an employer is not required to comply with clauses 4 and 5 if an exceptional circumstance exists.  For example, “to continue essential operations due to an emergency situation or a critical unforeseen circumstance” (clause 6(2)(b)).

“Critical unforeseen circumstance means a circumstance that the employer could not reasonably have foreseen nor planned for which results in a critical need for staff” (clause 10(3)).  That could include the unforeseen circumstance of this Direction itself, which could have the effect of suddenly decimating the workforce.

What is the time-reach of the Directions?

The Directions expire on 21 October 2021.

That’s it. They can’t be extended. It is speculation as to whether another set of Directions may be made after that.

These Directions only relate to the period for which they exist. Not a future date.

As to the so-called vaccination due dates (first jab, second jab), some of these dates fall outside the ambit of the directions.

It’s impossible to have an urgent emergency direction that requires someone to do something in the future after the direction expires.

So when the direction ‘mandates’ a booking for a first jab by 22 October 2021, and a second jab by 25 November 2021; it shows the overreach here. How can you mandate that someone book a medical procedure for a date which falls outside the ambit of the direction?

The authorised officer might think that the directions are going to continue. But under the Statute, each set of directions has to be considered on its own, not with a speculative view to the future. Each and every time, the authorised officer has to form the requisite statutory intention (as described in Part 2 of this series.)

Penalties in this Direction do not refer to the worker’s provision of information to an employer. It’s all imposed on the employer.

Really? Do employers need more red tape covering all their workers when the majority of the population were happy to get vaccinated anyway?

After the State of Emergency ends, as I have said in Part 2, this kind of Direction won’t be able to be made. I appreciate that some workplaces have specific issues, like aged care residences, because of the close contact required with vulnerable people. But it’s not the same for all workplaces in Victoria.

It is hard to imagine any lawful or ethical basis on which ongoing vaccination status can be a requirement of working in most jobs when our normal governing framework resumes. Therefore, these mandatory vaccination directions can only be a short-term knee jerk reaction to the anticipated political panic that the government presumably fears at the end of lockdown.

They have nothing to do with legal, humane and ethical ongoing management of Covid as part of our society going forward.

Mandatory vaccinations for workers in Victoria – Part 2

Posted on
Melbourne protestors considering lockdowns and mandatory vaccinations
Do Victorians have a right to ponder lockdowns and the right to self-vaccinate?

Written on 6 October 2021. On 8 October 2021 a new mandatory vaccination direction was made. This is addressed in Part 3.

In Part 1, I address the week during which Victoria assumed that the Premier’s press release was the law. It wasn’t.

Limits on the Victorian government’s legislative powers to mandate vaccinations for workers.

As a barrister and administrative law trainer, not to mentioned a concerned citizen, I wanted to highlight some legal issues around recent Victorian attempts to “mandate” vaccinations.  Part 1 refers to the Premier’s announcement of mandatory vaccinations for over 140 ‘categories’ of workers.  I make the point there that there was no law or direction making any such mandate for a week.  It was only a press release with no legal effect.

This piece is part 2.  Here I make comments about Victorian legislative processes generally, and how the State of Emergency has allowed far reaching but only temporary restrictions on Victorian residents.

And, importantly, it is clear that the Victorian government doesn’t think they can force the whole working population to get vaccinated via directions, if at all. Instead, they are trying to force employers to keep records and prevent entry to workers.

Victorian Parliament’s ‘normal’ legislative powers to mandate vaccinations

Normally, the Victorian Parliament only passes legislation after going through certain hoops.  I say ‘normally’ to refer to the usual state of affairs when there is no State of Emergency Declaration on foot.

The Parliament’s website sets some of these steps out on its webpage, “How a law is made”.  Or you might like a flowchart.

Whether the Victorian Parliament can mandate vaccinations as a general rule through permanent legislation is seriously open to question.  It will no doubt be the subject of much analysis, and is beyond the scope of this article. 

For a start, it is hard to see how it wouldn’t be incompatible with the Victorian Charter of Human Rights and Responsibilities Act 2006.  When Parliament passes an Act in Victoria, the relevant MP has to prepare a statement of compatibility on whether the Bill is compatible with human rights, and if so, how. 

Or whether it is incompatible with human rights.

The Charter explicitly provides for fundamental human rights in addition to any common law rights already in existence in Victoria.  The most relevant statutory right in the Charter here is: “A person must not be subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent” (s 10). 

That’s what the Victorian Parliament enacted in 2006.  That’s part of the permanent landscape that exists now, and must be considered if legislation is to be passed when the State of Emergency ends. 

Victorian (and Australian) employers’ ‘normal’ abilities to mandate vaccinations

Just briefly, before continuing on with the Victorian government’s arguable powers to mandate vaccines, a word about the ability of employers to mandate vaccines for workers.

This is covered in this article by the law firm Justitia. And in this circular by the Australian Public Service Commission (with regard to Commonwealth employees). The consensus here is that mandatory vaccinations will not be required by the Commonwealth government, and cannot be required as as matter of course by employers. While high-risk groups (like Aged Care) are facing mandatory vaccinations now, that does not mean that all workers should equally face such mandates. A range of factors like the contact between that worker and members of the public must be considered.

State of Emergency powers

In contrast to the ‘normal’ state of affairs, we in Victoria are now living under a declared “State of Emergency”.  That means that emergency powers may be exercised by one individual without any public consultation or parliamentary scrutiny. This is set out on the Parliament’s website here.

The State of Emergency is declared under the Public Health and Wellbeing Act 2008.  The declaration was made by the Minister for Health on 16 March 2020 and has been extended many times. Its current version is due to end on 21 October 2021. 

It will probably be extended again.  But we don’t know that yet. Because each time it is extended a person with statutory authority is supposed to make an assessment that it is justified.

But it can’t go on forever.

Under the Public Health and Wellbeing Act, a Declared State of Emergency was only ever meant to be for a short time.  It was not meant to be an ongoing state of affairs.  The Parliament extended the period for such a State of Emergency from the normal 6 months limit to 21 months “in respect of the Covid-19 pandemic”. 

21 months from 16 March 2020 takes us to a potential expiration date (if they keep extending the State of Emergency) of 15 December 2021. 

That means that the State of Emergency can’t go past 15 December 2021.  Unless Parliament sits and amends the legislation again, it will end. 

Then the ‘normal’ state of affairs will continue on.

How broad are the powers of authorised officers under the State of Emergency?

Because of the State of Emergency, authorised officers may be authorised by the Chief Health Officer under s 199 of the Act, to exercise certain powers.  The emergency powers are described in s 200. 

That section has been used for many of the Directions that have severely restricted Victorians in the last 18 months.

But the particular clause relied on in s 200 for many of the Directions has been s 200(1)(d).

It’s worth looking at all of s 200(1).  It reads (with my italics):

(1)   The emergency powers are—

(a)   subject to this section, detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;

(b)   restrict the movement of any person or group of persons within the emergency area;

(c)   prevent any person or group of persons from entering the emergency area;

(d)   give any other direction that the authorised officer considers is reasonably necessary to protect public health.

It would likely take several lawyers many hours to unpack the meaning of s 200(1)(d).  I cannot do so here.  But there are a few glaring points that can currently be made.

The emergency powers don’t mention coercive medical procedures

Nothing in s 200(1) talks about coercive medical procedures of any kind. 

The list of specific provisions in (a), (b) and (c) refer to restrictions on the movement of people. And they are immediate and temporary restrictions at that. 

They do not specifically refer to any power to direct that a person be injected with any substance.

The emergency powers focus on movement of people in an “emergency area”

The first three categories of emergency power refer to “the emergency area”. That’s because Parliament envisaged a true, short and sharp, emergency, focussed on a particular area.

They do not refer to the ability to ban people from all workplaces – which are not, by any stretch of the imagination, ’emergency’ areas that need urgent attention.

The emergency powers prevent or restrict movement of people immediately

There is nothing in the emergency powers that enables broad directions to do things in the distant future.

That, of course, is backed up by the fact that the State of Emergency has limited duration too.

That means, importantly, that Directions can’t order people to do things in future, after the State of Emergency is due to expire.

It does not appear that authorised officers can order vaccinations during a State of Emergency

It does not appear as though the apparently broad powers of authorised officers allow them to direct people to be vaccinated.

Which makes sense. If you have an emergency, you have to act fast to fix the emergency and remove the danger.

That’s nothing like ordering people to have medical procedures that might or might not have a particular lasting effect.

Mandatory vaccination directions no 5

The latest and current (at the time of writing) directions regarding mandatory vaccination were made on 1 October 2021 and are called the Covid-19 Mandatory Vaccination Directions (No 5). (This post does not comment on the directions made on 8 October 2021. That is discussed in Part 3.)

The mandatory vaccination directions of 1 October 2021 were made pursuant to s 200(1)(d): “any other direction that the authorised officer considers is reasonably necessary to protect public health”. 

The wording of the Covid-19 Order no 5 confirms my view that s 200(1)(d) of the Act does not allow officers to direct people to be vaccinated.  It suggests that the Victorian Government thinks this too. (Order no 5 relates to a few industries only, not the 140 categories announced in the Premier’s press release of 1 October 2021).

Order no 5 is actually a direction to employers to seek information from workers (as to their vaccination status) and to prevent their entry to a workplace if they do not provide certain information about their vaccination status.

It is a back-door, twisted way of dealing with things.  To direct employers to refuse people work, rather than directing employees to get vaccinated.  It is a way of attempting to coerce workers to get vaccinated, because refusal to do so will result in them losing their jobs. 

What has to be done before a mandatory vaccination direction can be made or extended?

So there are good arguments that s 200(1)(d) does not authorise mandatory vaccination.  Whatever it does authorise, an authorised officer has to form a certain opinion before issuing a direction under s 200(1)(d). 

The authorised officer must first form the view that the direction is “reasonably necessary to protect public health”.  The authorised officer needs to consider relevant facts and “consider” that the direction is “reasonably necessary”.

And the officer should first consider the concept of an “emergency area” as described in s 100(1)(a), (b) and (c).  While the term isn’t found in (d), there’s an argument to say that the particular restraint of movement of persons has to relate to an “area”.  Such as the workplace, in the case of workers (if that could possibly be seen as an emergency area!).

The Premier can’t make directions under s 200(1) of the Act.

If the Premier makes an announcement that vaccinations will now be mandatory for a cohort, he is not making a statutory decision under s 200 of the Act.  His announcement has no legal force.

What does an authorised officer have to do before making a direction?

Unless an authorised officer forms the requisite view under s 200(1)(d), then no so-called mandatory vaccination direction should be made.

No authorised officer should be dictated to by the Premier or anyone else, before making a statutory direction.  The authorised officer has to make up their own mind.  When officers act under dictation, the Courts call this an unlawful exercise of statutory power.

The authorised officer would need to form the requisite view for each and every group of workers proposed in the direction, that a mandatory vaccination direction right now in relation to each of them and their workplaces was reasonably necessary to protect public health.

Authorised officers must follow the Charter of Human Rights when making directions.

Oh, and by the way, the officers have to follow the Charter of Human Rights too.  Section 38 of the Charter states in part: “it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.”

Which means, the right to make up our own minds about medical procedures is relevant to any officer making a direction as an exercise of ‘emergency powers’.

It is very difficult to see how a breach of the Charter could be justified for a 2 or 3 week period in a direction, when vaccination rates have been going quite nicely on a voluntary basis.

The State of Emergency will end.

The State of Emergency in Victoria will not last forever.  At some stage the Victorian Government will have to let it go.

And when the State of Emergency goes, all of the directions under s 200 go too.

Which means any mandatory vaccination directions, whether they were lawful or not, will then disappear.

As the philosophers say: this too shall pass.

Part 1 and Part 3 of this news piece are here: Part 1, Part 3.

Mandatory vaccinations for workers in Victoria – Part 1

Posted on
Daniel Andrews announced workers to lose jobs without jabs
Are workers really out in the cold?

Written on 6 October 2021 (updated 8 October 2021)

People don’t seem to understand enough about government powers in Victoria.

Premier Andrews suddenly announced (on 1 October 2021) that over 1.4 million employees in Victoria must receive vaccinations or lose their jobs.  People and industries in the ‘list’ include: interpreters, marriage celebrants, broadcasting performances, retail goods workers, MPs, waste management services, Judges, some lawyers, journalists, factories, mining, drivers, and certain admin staff.

It’s a massive list.  I counted over 140 categories.

But it turns out there was no legal force to this announcement.

It wasn’t the law.  It was just a press release.  Call it a ‘wish list’ on the part of the Premier.

There are a number of legal requirements to be applied before a Direction (which has temporary legal force) can be made. I talk about them here. And I mention a few key issues regarding the temporary Direction which was ultimately made on 8 October here.

In contrast to the Premier’s September construction worker mandate, there have been no reports that this broad list of over 1.4 million people are all flouting the law.  No reports of high Covid transmission.  No explanation, discussion or analysis as to why members of each of these groups suddenly need to be forced to vaccinate or lose their jobs.

I specialise in administrative law at the Victorian bar, and I train government decision makers in how to make lawful decisions. I looked for the statutory document mandating vaccinations for this long list of people.

There was no broad vaccination mandate for a week.

There wasn’t one on 1 October 2021.  There wasn’t one every day I looked until 8 October 2021.  That’s a week of misrepresentation and confusion about the law. And for that week, most of the news and media outlets that I saw were publishing the story that this was the law.

We shouldn’t be misrepresenting the legal position to vulnerable people, or to anyone.

But people were being told that vaccinations were mandatory, when they were not.  Employers were being told there’s a legal requirement, when there wasn’t.  And employers were telling their employees it’s a legal requirement, and it wasn’t.

That means employers were misleading their staff about their legal rights.  And demanding vaccinations and vaccination certificates which they were not allowed to demand.

That’s not the way a government should treat citizens.  It’s not the way an employer should treat their employees.  Apart from being untrue, and apart from being a dangerous coercion of medical procedures through false representations, it’s a breach of privacy to demand medical information without authority.

Now you might say it was only a week, so who cares? 

We should all care.  Because a system which allows untrue statements to prevail, and acts as though something is law, when it isn’t, is a broken system.

What mandatory vaccination direction was made on 1 October 2021 in Victoria?

There was a limited mandatory vaccination direction made on 1 October 2021.

On 1 October 2021, the Acting Chief Health Officer did give directions under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic).  These directions require operators of some facilities to effectively demand vaccination of their staff.  It applies to residential aged care facilities, construction sites, healthcare facilities, and education facilities.

Just those places.  Not a long list of 140 categories.

Those directions end on 21 October 2021.  The same date that the Declaration of a State of Emergency expires.  It’s very important to keep this in mind when we consider their lawfulness.

I thought we were on track.  Why the sudden announcement?

While the goal of voluntary vaccinations is being met, Premier Andrews justified his sudden announcement this way: “On the advice of our public health team, all workers… on the Authorised Worker list will require their first… dose by Friday 15 October… (and) fully vaccinated by 26 November.”  He also referred to “more pressure on our health system than we ever have.”

If any authorised officer were to make a direction along the lines of the Premier’s wish, it must be done lawfully, in accordance with the Act.  (I say more about this below and in Part 2 of this piece.) But if the Premier’s comments are relevant, it is worth having a quick look at them.

What has the Victorian government done to alleviate predicted pressure on the health system?

Turning back to the Premier’s press release.  He refers to pressure on the health system.

Surely an authorised officer who decides to make such a direction will have to consider what exactly is the existing and predicted pressure on the health system, how might it be alleviated, and how would any so-called ‘mandatory vaccination’ direction be relevant to the health system, exactly?

And surely they’d have to consider every single category in the proposed massive list, before making their decision?

Out of interest, what happened to the $1.3 billion injection promised on 1 April 2020 by Premier Andrews “to quickly establish an extra 4,000 ICU beds as we respond to the coronavirus pandemic and protect Victorian lives”, to “secure the ICU equipment, staff and space we need”?

Any direction made to deal with “urgent” or “emergency” issues under the Declared State of Emergency should involve consideration of the reality of the impact of the direction for the life of the direction.  Which in this case, can only be as long as the State of Emergency itself, ie until 21 October 2021.

In other words, what will be the impact on the hospital system of the people who wouldn’t otherwise choose to self-vaccinate in the 13 days between now and 21 October 2021?  And is a mandatory vaccination direction – which forces some people to lose their jobs – a necessary step in order to save hospital beds?

While there is a narrative around vaccinated people (the good ones) avoiding hospital, and unvaccinated people (the bad ones) taking up hospital beds, the international experience does not bear this out.  Vaccination does not bring about a black and white result. In Israel, for example, despite high vaccination rates, about 60% of people hospitalised with severe COVID-19 had received two doses of Pfizer.

So it makes no sense to blithely state that mandatory vaccinations are needed in Victoria, right now, for under 2 weeks, to alleviate pressure on our health system.

What about Covid treatments?

There are other things that will relieve the pressure on hospitals.  Like Covid treatments.

For example, an authorised officer (who is exercising statutory or government powers) should surely consider the Covid-19 treatment the TGA approved by 20 August 2021 – 6 weeks ago.  It’s an intravenous antibody treatment called sotrovimab.  Around 1 October 2021, 15,000 doses actually arrived in Australia.

It sounds like the one my Aunt had in the U.S.  She’s 85.  She got covid.  They said “we’ll give you these antibodies and you’ll be right in a couple of days”.  And she was.

This treatment reduces hospitalisation and death by 79% in adults with mild to moderate Covid-19, who are at risk of developing severe Covid-19.

So that’s around 80% of at-risk people being kept out of hospital and kept alive.

Again, this is surely a relevant factor to the impact of a small percentage people remaining unvaccinated in the next 13 days.

This isn’t an anti-vaxxer rant.

Many of us are pro-vaccinations and pro-choice.  That’s because we value our democracy.  And we value human rights like those in the Charter of Human Rights and Responsibilities Act 2006 (like the right to choose medical treatment).

That’s why the governments in Australia (including Victoria, until today), have been content to aim for 70-80% vaccination on a voluntary basis.

We might have different views on vaccination, but at the end of the day, we either honour people’s ability to choose such things in our democracy, or we don’t.  We don’t want to jail people who don’t want to get vaccinated, so we support them in making their choice, whether the majority agree with that choice or not.

The State of Emergency will end.

We have lived with Covid for over 20 months now.  And for most of that time, most of us have not suffered the loss of our jobs if we chose not to vaccinate ourselves. 

As the Premier says, we are nearly ‘there’ (by which he means he will lift the longest lockdown in the world over our troubled State). 

Since the Premier’s announcement a week ago, employers seem to have happily taken up the cudgel and told their employees it’s the law – they have to get vaccinated or go on the dole. 

Even though, between 1 and 7 October 2021, it was not the law.

That means people were being coerced to get vaccinated under a false apprehension.

Isn’t that wrong?  For a government to give employers the impression something is the law, when it isn’t?  For employers to tell employees something is mandatory, when it isn’t?

Press releases certainly give the impression that Premier Andrews is a lawmaker.  But he isn’t.  We are entitled to transparency and the truth on something so significant.

(See part 2 and part 3 of this news piece on this site here: Part 2, Part 3.)

Sexual misconduct investigations and criminal offences

Posted on
Universities need disciplinary processes to address misconduct allegations

A university case highlights the need to investigate sexual misconduct allegations regardless of the criminal process.

In January 2020 I wrote a short piece on this website on the case of Y v University of Queensland [2019] QSC 282. This is a case in the vexed world of university student sexual misconduct: where disciplinary proceedings can and sometimes do intersect with the criminal law.

That case was subsequently taken to the Queensland Court of Appeal, whose decision was handed down in October 2020 (University of Queensland and Anor v Y [2020] QCA 216.

What’s Y’s case about?

Y, a student, obtained judicial review in the Supreme Court of a decision of the University of Queensland (and the Disciplinary Board of the University of Queensland).

After the injunction was granted by the primary judge, the University appealed to the Court of Appeal. But Y graduated before the appeal could be heard.

Was the primary judge right to grant the injunction? And could the disciplinary matter resume given that Y was no longer a student of the University?

The Court of Appeal

1. The student had graduated – it was too late.

The Court of Appeal agreed with Y that he was no longer subject to the disciplinary processes of the University, and that the appeal by the University should therefore be dismissed.

This conclusion was based on an analysis of the University’s disciplinary rules (in the form of policies and procedures); and consideration of other disciplinary cases (including disciplinary cases involving public servants, solders, architects, engineers and doctors).

The Court found that the policies were not worded in such a way to give the University jurisdiction to discipline people who were no longer students. One of the reasons for this was that the applicable “penalties” only applied to students.

Take away?

One key take away for Universities or other institutions writing disciplinary proceedings, is to be as clear as possible about the jurisdiction that is being asserted: if it is sought to continue disciplinary proceedings against former students (or former employees, etc) then the language of the disciplinary proceedings needs to be very clear.

In saying this, I am not commenting on whether there can ever be jurisdiction to discipline people who are no longer studying with or engaged by a University or other institution. That is a question for another analysis.

2. The University could have disciplined the student if he was still studying there.

The University succeeded in arguing that the primary judge should not have granted the injunction preventing the disciplinary process.

The primary judge had concluded that the University “only has jurisdiction in relation to criminal acts of a sexual nature where the alleged offence is proven (in Court)” (at para [82] of the Court of Appeal judgment, quoting from the primary judge at para [68]). The Court of Appeal disagreed with her.

The Court of Appeal cited the High Court in the case of Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352. The High Court (a majority of five judges) in that case found:

“…it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.” (at [33]).

In Y’s case, the Court of Appeal found that the University could not decide criminal responsibility, but it could determine whether sexual misconduct had occurred, even if no criminal offence had been prosecuted and proven.

Take away?

A University can discipline a student for misconduct which might also amount to a criminal offence.

3. Natural justice warning.

Finally, the Court of Appeal was concerned that procedural fairness be accorded in the handling of misconduct cases which might also constitute potential criminal offences. Should the student be allowed to have a lawyer? Should their lawyer be allowed to cross examine a complainant?

These things were not answered by the Court of Appeal; it was enough that it found that jurisdiction to continue the disciplinary proceedings would have existed (if the student had not graduated).

But these issues may require analysis by other Universities and Tertiary Institutions nationally.

Take away?

Universities and other Tertiary Institutions – indeed any potential disciplinary body operating in a legislative framework – should review the way in which procedural fairness is accorded in disciplinary proceedings, particularly where criminal processes might also arise from the same events that led to the disciplinary proceedings.

PS Now, in March 2021, the case of the Attorney General requires consideration.

In January 2020 I wrote for the previous version of this article:

“It’s common for criminal acts, or allegedly criminal acts, to be part of a disciplinary investigation. Or part of the landscape of a disciplinary investigation. This can happen in the public service, or in a university, or anywhere, really.

You are an employer, or university, or some sort of regulator. But you are not the police, and you can’t lay criminal charges. How are you supposed to work out what to do?”

How is the Prime Minister supposed to work out what to do?

In March 2021, the Prime Minister of Australia has been asked whether he will arrange for an inquiry into allegations of rape made against our Attorney General.

Sadly, the woman who made the allegations died last year, and the NSW Police have recently announced that they will not proceed with any criminal investigation into the matter.

Prime Minister Scott Morrison said a few days ago at a press conference:

““It is the police, in a country where you’re governed by the rule of law, that determine the veracity of any allegations of this nature… It is the police. My office, I do not have the people or others who are trained or competent or authorised to investigate matters of this nature.

“The police are the ones who do that and the police have had these matters referred to them, the individual involved here has vigorously rejected these allegations, and so it’s a matter for the police and in my discussions with the commissioner, there was nothing immediate that he considered that was necessary for me to take any action.”

I disagree with the Prime Minister. I do not understand why he made these comment. The rule of law is not confined to the criminal process. One only has to look at the OJ Simpson case to understand this.

Inquiries and disciplinary proceedings involving potential criminal matters in many walks of life occur without criminal proceedings having been even commenced, let alone concluded to a successful conviction.

As Prof Kim Rubenstein wrote in the Guardian:

“If the Prime Minister really cares about the Rule of Law, he will hold an inquiry.”

PS. Since writing this article on 11 March 2021, the Prime Minister has now obtained legal advice from the Solicitor-General. This may affect whether he decides to take any action regarding Christian Porter’s ongoing role as Attorney-General.

The government needs to stop illegal detention of older people

Posted on

It is 2020. This year I tried to get my parents out of jail many times. It was very hard to do and went on for months. In the end, it was only when my Dad started dying that things really changed.

Mum and Dad were in an aged care facility where management would not let them leave, detained them in their rooms, forced them to have COVID tests, and would not let them have visitors for weeks at a time.

Mum and Dad in illegal detention in Aged Care
Mum and Dad during a “window” visit. Dad is not impressed – the wheelchair hurts, he can’t hear me, and he can’t see me through the glass. Mum is complaining about the breakfast. How about soft boiled eggs for a change?

My Dad, aged 90, died in September. Mum, 92, died in October. COVID-19 had nothing to do with their deaths. But fear of COVID-19 had lots to do with how they were treated by their aged care provider in the months before they died.

I want to say thank you to the staff for looking after Mum and Dad and doing their best to support our family, especially in the last few weeks. And I acknowledge that this provider was great on infection control – to my knowledge no resident there was infected.

But I am concerned about the position that head office took and steadfastly held for months to overly restrict the lives of the residents – far beyond state government directive requirements.

From what I can see, illegal detention, false imprisonment and even the tort of battery have been “business as usual” across Australia under the reign of COVID-19. Even when nobody in a facility had the virus, or there was no real risk of transmission.

Even in the case of outbreaks, the spread of COVID in aged care was usually due to transmission from staff or poor infection control, not from residents, and not due to visitors.

Governments and regulators need to take simple steps to stop these unlawful restrictions across the aged care sector immediately.

Somehow the COVID reign ushered in a new world where we pretended the law didn’t exist, at least for older people. But fear of an infectious disease does not suddenly give property managers the right to detain people, ban them from seeing their families or prohibit them from getting exercise or fresh air.

Those who think that COVID changed our fundamental legal system are delusional. I am a barrister. I’ve done aged care legal work and I also train public servants in what is called ‘administrative law’. I teach people about legislation and where to find statutory power. I know from many years of training government that there is a widespread tendency to favour policies, codes and guidelines over the law. It’s wrong, but it’s common.

During my parents’ lives, we took for granted basic human rights that are an integral part of the Australian way of life, such as freedom of movement and the right to socialise.

Mum and Dad when they were free to walk around.  Before their illegal detention.
Mum and Dad in happier times of freedom – before they went into a Facility.

But our aged care providers, governments and regulators don’t seem to really care about these rights. They took them away, stood by watching, or encouraged their removal.

Providers can’t just sweep away these rights. They don’t have authority. They are just property managers who provide care to people. They are not lawmakers. Nor prison wardens. In Australia, if somebody detains you or imprisons you without lawful authority, they will be committing a tort or even a crime. They can be sued, and ordered to pay significant sums to the falsely imprisoned person.

Jeremy King, a solicitor who has sued the police for false imprisonment, has seen a court award $30,000 for 30 minutes of false imprisonment. He says: “In addressing the health concerns of COVID-19, it was imperative that a balance be struck between combating the virus and ensuring an individual’s basic civil liberties were protected. If those in aged care were simply locked away without lawful justification and/or without reference to the statutory health restrictions at the time, this is prima facie a case of false imprisonment.”

What would a provider have to pay in damages if they were sued for false imprisonment? What if they locked you up for two weeks? Or 66 days?

Providers have been locking up thousands of people and banning them from social contact – even when no rational threat of COVID existed in those homes. Residents have lost health and mobility. They haven’t been allowed to walk around the corridors or step out into the garden. They have become depressed. They have wanted to die. In fact, how many of them have actually died because of this inhumane and illegal treatment?

Let’s be clear. I am not raising issues about state government health directions made under legislation. I am only raising issues about providers locking people in their rooms and banning visitors with no statutory government directions. Fear of COVID-19 does not create the power to detain.

It’s simple. We don’t need to overcomplicate things. Let’s just read the law. Commonwealth legislation says that aged care residents have rights to “move freely both within and outside the … service without undue restriction”, to “select and maintain social and personal relationships with anyone else without fear, criticism or restriction”. Providers have to protect these rights.

But the Aged Care Quality and Safety Commissioner’s letter to “approved providers” on December 7 does not highlight these legislative rights. Nor does the Industry Code for Visiting Residential Aged Care Homes during COVID-19, an “agreed industry approach” with input from government. Sorry, but you can’t “agree” amongst yourselves to imprison people. You can’t use terms like “balancing risk”, “best practice” or “escalation tiers” to avoid the clear imperatives of the law.

I don’t want to live in a country where we treat elderly people differently, trample on their rights, and ignore the law when we feel like it. I realise nobody wants to die from COVID-19. Nor does anyone want their aged care facility to be slack about hygiene.

But that doesn’t justify unlawful detention or banning visitors at a provider’s whim. If a provider claims: “I’m caring for you”, “I have the best intentions”, “I’m balancing risk” or “I don’t have enough staff to handle visitors”, it doesn’t mean they have the power to lock you up.

Providers need to follow the law. Regulators and governments need to enforce it. Clearly, succinctly, and swiftly. There’s one clear message for providers that regulators need to say now: “You cannot detain people or prevent visitors to them unless you have statutory authority. If you do this without authority, you could be sued for false imprisonment, and you will certainly be sanctioned.”

Fiona McKenzie is a Melbourne barrister and a trainer in administrative law.

This article was published in The Age and the The Sydney Morning Herald on Monday 14 December 2020.

If you want to know more about admin law, sign up to our list or let us know about your training needs here.

Hotel Quarantine Covid Decision Making

Posted on

Covid 19 has brought unprecedented times to Australia and the world.  Is this sometimes an excuse for lack of transparency by government?  What does our administrative law lens tell us?

administrative law training
Group Think Tank

Sometimes the community gets more passionate about administrative decision making than other times.

If that decision making appears to have led to illness and death, the community becomes more interested.  Like now.  We have a Hotel Quarantine Inquiry in Victoria, because the view has been taken that bad decisions led to many more Covid cases in Victoria than should have happened.

I said in my last post that administrators should be transparent about their decision making.  And they should also be transparent about who the decision makers are.  It is better for everyone.  More transparency in my view maximises the chances that administrators will make sure that their actions are lawful.  They will know that they are going to be called to account for any decision they make, because their name will be on the decision, and the community will be told who they are.  

As I sent my previous “Covid” post, Victorian Premier Daniel Andrews was being questioned in the Covid 19 hotel quarantine inquiry about who made any decision regarding the hiring of security guards for people in hotel quarantine in May.  This inquiry is important because failures in this quarantine process have been found to have led to almost all of the Covid cases in Victoria after that time. It’s been called a “second wave”.

The Premier agreed in sworn testimony on Friday 25 September 2020 that it looked as though “collective decision making” – where no decision maker is identified and where a group somehow forms a view together – had occurred.  He didn’t agree with it.  He said “My understanding of collective decision making does not remove accountability”. Jenny Mikakos, former Health Minister, has since resigned, even though she did not make the key decision or decisions regarding management of the Hotel Quarantine.

It’s all very well to put our collective sins onto a scapegoat, but what are the fundamental problems here? While scapegoats are being identified, nobody has come forward to claim key decisions as their own.

Individuals in government make administrative decisions.

When I run training seminars for government decision makers, I always emphasise that administrative decision making – particularly where it affects a person or two – is an individualistic activity in our democratic system.

We have Acts of Parliament which give powers (statutory powers) to individuals.  Those individuals might delegate those powers to other individuals.  But it is an individual who gets those powers – not a “team” or a “unit”. If the Act says an individual can make a decision to intrude on the rights of a citizen, or to take away an entitlement, or other things of this nature; then generally speaking it is only a named individual who can make those decision.

What we have is a terrific system of law that requires decision makers to “make up their own mind”, to exercise their own individual judgment, and to be accountable for their decisions.  Accountability means that those decision makers might be challenged by the citizen.  It’s part of our democratic rule of law.

Group Meeting
Group Meeting

Group think tanks are not accountable and can be unlawful.

Collective decision making by some kind of ESP process, or series of meetings and emails, without identification of a decision maker, or of a date on which a decision was made, is sometimes adopted in government departments. I get the impression that it is seen as a good thing by some consultants who have some odd view about “risk”.  They seem to think that group decision making is risk averse.  If everybody “agrees”, then we will avoid the risk of an individual “getting it wrong”.

Group decision making like this isn’t risk averse.  It’s risky. Particularly if you are restricting the rights of citizens. And especially if you are exercising powers under a statute. It’s risky because decisions made under a statute are often required to be made by one individual. Parliament determined that this was the way to do it when they passed the statute.  

A “risk” analyst should be taking into account the risk of making unlawful decisions which are contrary to the statutory regime.

But often they don’t.

Group decision making is also risky because it doesn’t allow the community to identify when a decision is made, who is accountable for it, and how it could be challenged, or how it could have been avoided.
It’s risky because, in the end, a collective “decision” or forming of a view, with no documentation evidencing it, does not allow for monitoring of that position, or testing of it against either rule of law or the risk of certain outcomes.

Scapegoating someone isn’t enough to change the system.

In government, people should be very careful about the group think tank approach.  They should get training in administrative law rather than relying on consultants who don’t know about the law, and who have some kind of limited view of “risk”.

In the current hotel quarantine inquiry, one or more scapegoats are being sent out into the wilderness.  Job done.

But what about the faulty decision making processes adopted within government – the ones that seem to be so favoured and so entrenched?
What about the cultural norms regarding so called “risk averse” group think tanks – which are so risky?

Get some admin law training!

If you think your organisation needs a cultural shift – something to edge it towards lawful and transparent decision making, and away from collective avoidance of accountability and risk – they can certainly get some administrative law training.  We’ll be happy to help. 

Let’s not be afraid of being accountable, it will make all our lives better.

admin law
Group Decision

If you need to know more about administrative law sooner rather than later, you can purchase access to our videos and do our quizzes online.  Or sign up to our next online course coming up soon. There are a couple in November.

Keep in touch via email updates

Keep in touch with our newsletters