Courts uphold health orders, generally churches calmly follow them

The latest in a series of court cases about vaccine mandates brought against state governments and health authorities went down to defeat this week in the NSW Supreme Court. These cases have received campaign support from very conservative Christian media sites.

John Larter, an ambulance officer from Tumut in southern NSW, and a devout Catholic, sought a declaration that public health orders made by the Health Minister’s public were invalid.

“The effect of the orders was to require health care workers (as defined) to be vaccinated by particular dates as a condition of being permitted to provide health care services in New South Wales,” in  Justice Christine Adamson’s judgment. “It was common ground that the plaintiff was a health care worker to whom the orders applied.”

Justice Adamson ruled that not only is the public health order requiring Larter and all other health workers to be vaccinated valid – made according to law – but also that international human rights instruments often cited in this sort of case do not apply.

Dr Kerry Chant, the NSW Chief health officer gave detailed evidence on how NSW Health balanced risk against measures like social distancing and vaccination. “The consequences of outbreaks in health facilities are particularly dire: first, the people in those facilities were likely to include those in the most vulnerable group who could not be effectively protected by a vaccine against the virus; second, the staff employed at the facility could become infected and transmit the virus to patients and to the wider community; and third, such outbreaks would lead to the need to quarantine staff, deep-clean facilities and transfer staff from other areas in order to make sure that the re-opened facility could continue to operate.”

Larter’s religious objection is based on the use of cell lines originally derived from aborted fetuses in the testing or some part of the production of the vaccines used in Australia. His objections which Adamson notes “are genuinely held, would appear to depart from public statements made by the Catholic Church in response to the pandemic. He was, aptly, described by his counsel as a ‘conscientious objector’”.

Ambulance officer Larter’s case included his suspension by the Paramedicine Council of New South Wales on the basis of complaints that he has made a number of public statements about vaccination. The council responded that they agreed “Mr Larter’s commentary, made as a registered healthcare professional and sometimes conspicuously in uniform as a paramedic, would undermine public confidence in the vaccination campaign in the Riverina region.”

Professor Neil Foster, who runs the authoritative Law and Religion Australia blog says “As much as I sympathise, and as I think it would have been a good idea to include a ‘religious objection’ exception to the rules, I think the decision was legally correct.

“The Health Minister’s decision was within the bounds of a reasonable exercise of power given to him by Parliament in a health crisis. The court does not have the power to overrule the order unless it was irrational. An argument about the application of religious freedom under ICCPR [International Covenant on Civil and Political Rights] article 18 was rejected on the basis that (1) it has not been implemented by local legislation here in Australia, and (2) even if it had, article 18(3) says that religious objections can be over-ridden on the grounds of ‘public health’, which fits this situation. In my view, there would be a point at which governments crossed the line into irrational restrictions on religious practice, but I don’t think we are there in NSW.”

A string of cases has seen similar results. For example, a case brought by 90 nurses at Monash Health a large provider in Victoria lost a case in the Federal Court against a public health order that they sacked for refusing vaccination.

A further two cases brought by two groups of people, one by Natasha Henry and other aged care workers, and the other by construction worker Al-Munir Kassam, were dismissed by Justice Robert  Beech-Jones in the NSW Supreme Court in course of one afternoon in mid-October.

These cases had tens of thousands following them on the court video feed. Support for these cases has been encouraged by very conservative Christian websites – each time suggesting a breakthrough would happen.

The Kassam case introduced material about alternate medical treatments – which was rejected by the court.

Parallel to the public health orders being upheld by the courts, the general approach of churches has been to follow the orders too. In NSW the short period of vaccinated-only attendance has passed without incident. In Victoria, where smaller church meetings of 30 people with mixed vaccine status are allowed with larger meetings for vaccinated, churches have worked within the regulations, some under protest.

The “non lockdown” states are likely to avoid this issue for churches – following the Queensland example of no separate meetings being required for churches  – but not avoid similar  court cases.