Essential workers challenge Victoria and NSW vaccine mandates in court | Health


A casual relief teacher is taking Victorian health officials to court over mandatory Covid vaccines, arguing there is no legal or ethical justification for making workers get the jab.

Separately, in New South Wales, a group of essential workers has argued in court that state’s health orders regarding vaccines are an attempt to coerce them into being inoculated.

Belinda Cetnar and her husband, Jack Cetnar, have filed a case against the state of Victoria arguing that forcing all childcare and school staff to have a first dose of a vaccine by 18 October is discriminatory and a breach of their human rights.

Belinda Cetnar is a casual relief teacher while Jack Cetnar is a horticulturalist employed by Crest Education.

“The proposed directives to mandate Covid-19 vaccines for school or childcare staff is not a proportionate response to the Covid-19 pandemic in circumstances where there is a 99.9% survival rate and children mostly suffer mild effects from the disease,” she said in court documents.

Belinda Cetnar said the blanket mandate did not consider the human rights of those it was imposed on and there had been a failure to consider less restrictive means to achieve the intended purpose, including rapid antigen tests and PPE.

She represented the couple during a supreme court hearing on Tuesday and said they were trying to find a barrister to help with the case.

They had asked for an injunction to stop the vaccine mandate being introduced but that happened before the case came to court. They now have until 12 October to put together a new case. A trial is scheduled for 25 October.

Justice Melinda Richards said the pair had a well-developed argument under Victoria’s human rights charter but questioned other aspects of the case.

Their current written case refers to civil conscription in the constitution, the commonwealth Biosecurity Act and the Nuremberg Code.

“It does appear to me it could do with an experienced lawyer’s eye and perhaps some refinement of the grounds on which you challenge the directions,” the judge said on Tuesday.

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Belinda Cetnar argued she would lose her livelihood if she failed to get vaccinated while her husband could lose his too. Both roles cannot be done off-site, she said.

“Schools and childcare centres will face a loss of valued staff members which cannot be remedied by damages,” she said.

Richards will proceed straight to a final decision in the trial on 25 October, a move welcomed by the state’s barrister, Sarala Fitzgerald.

It is expected that the acting chief health officer, Ben Cowie, who signed off on the directions, will be added as a defendant to the case.

“Prof Cowie is trying to steer this shop over the next three months, through goalposts, to have us in our homes with 30 people by Christmas,” Fitzgerald said.

“There is a lot on all these public health experts’ plates and I just ask the court to be mindful all these people, whose time I will be demanding, are also trying to do something else incredibly important.”

The Victorian premier, Daniel Andrews, has said young children are still unable to get vaccinated. “So why anyone would want to be in a school community contributing to the spread of this virus – it makes no sense to me.”

Belinda Cetnar was contacted for comment.

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Meanwhile, in NSW, lawyers for the health minister, Brad Hazzard, have told the supreme court a public health order requiring certain people to be vaccinated if they want to go to work is not really a vaccine mandate.

A group of 10 people is trying to overturn orders that require NSW teachers and aged care workers to be vaccinated against Covid before they go to work.

They’ve also challenged a separate order that prevents authorised employees from leaving Sydney’s coronavirus hotspots for work unless they can prove they’ve received the jab.

Lawyers for the plaintiffs on Tuesday told justice Robert Beech-Jones the orders were an attempt to coerce their clients into receiving a vaccination. They say the orders discriminate against a minority group and Hazzard had no power to sign them.

But Hazzard’s barrister, Jeremy Kirk SC, told the court the case wasn’t about vaccine mandates. He said the rules were a temporary restriction on movement, which the plaintiffs could avoid if they decided to get vaccinated.

“There is no requirement for vaccination,” Kirk said. “There is a condition on the exception [to the stay-at-home orders] which people can take advantage of or not.”

Kirk said the state probably did have the power to force people to be vaccinated if “some terrible disease” like Ebola was threatening society.

But, he said, the judge “doesn’t have to decide [that]”.

The plaintiffs’ lawyers launched an attack on the efficacy and safety of Covid vaccines.

But Kirk said Hazzard had no duty to listen to the opinions of people who were anti-vaccination when there was a large body of evidence supporting the policy behind the public health orders.

The plaintiffs, who include aged care workers and a teacher, say their “fundamental rights” were being violated.

“Is there economic pressure? Yes,” Kirk replied. “But … there are real choices to be made. The fact there are real choices to be made is illustrated by the 10 plaintiffs who’ve made that choice.”

Teachers and care workers in NSW must be vaccinated by 8 November, or they won’t be allowed on the premises of educational facilities. Aged care workers need to have received at least one dose before the end of the month. Health care workers have until the end of November to get both doses.

The supreme court will continue hearing closing submissions in the case on Wednesday.



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