Australia, New South Wales Court of Appeal, 29 March 2023, [2023] NSWCA 57
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Civil Court
- Criminal Court
- Constitutional Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Education
- Vaccination
- Health and freedom of association/public gathering/religion
- Health, right to information and freedom of expression
Outcome of the decision
Link to the full text of the decision
General Summary
The Applicant was a nursing student and had her clinical placements cancelled in a hospital due to her scepticism about the safety of COVID-19 vaccination. In addition to this action, her conduct was the subject of an internal university disciplinary review. The main rights involved freedom of speech, freedom of religion, and discrimination based on political or religious beliefs. The Applicant sought a declaration that the University’s conduct was in breach of section 35 of the Western Sydney University Act 1997 (WSU Act) and sought orders for the University to arrange further clinical placements for her. The Applicant also sought orders restraining the University from any further disciplinary action against her or giving effect to the sanctions in place. The Court at first instance found in the Applicant’s favour and held that the cancellation of the clinical placements was in breach of the Act and it was unlawful.
APPEAL: The University appealed on three issues namely: a) that Ms T.’s views were not “political” within s35 of the WSU Act; b) that the decision to cancel Ms T.'s enrolment was “because of” her views on vaccination and COVID-19; and c) that the University was denied procedural fairness in the court’s finding that the disciplinary sanctions contravened s 35 as this was not contained in Ms T.’s original or amended summons and no cross examination of the university’s decision maker was conducted. The appeal was successful, with the original orders of 21 June 2022 set aside and the amended summons of the Applicant dismissed with costs.
Facts of the case
The Applicant was a nursing student at the university and was required at the completion of her studies to undertake 800 hours of clinical placement. The Applicant’s placement was cancelled by the Director of Clinical Placements on the basis of the Applicant’s perceived views on the safety of COVID-19 vaccination and her refusal to be vaccinated. The Applicant was then vaccinated against COVID-19 and placements were resumed. The Applicant attended upon a further placement and continued to express views about the safety of the vaccine. The placements were again cancelled on the basis of misconduct. The University took internal disciplinary action against the student and the outcome was that the Applicant was required to write a 1500 word “appreciation” on how her conduct was a “breach of her professional obligations’. The Applicant sought a declaration that the University was in breach of section 35 of the Western Sydney University Act 1997 which prohibits the University from discriminating against students on the ground of religious or political views or beliefs. The Court concluded that in cancelling further clinical placements of the Applicant the University had contravened section 35 and that this was unlawful. In terms of the Orders sought restraining the University from giving effect to the internal disciplinary sanctions, the Court stated that the position was not clear whether the Declaration was sufficient to cover this as the sanctions were not linked to the denial of progression within the University. The Court was of the view that the formal recording of the sanctions on the Applicant’s University record did attract section 35 and were unlawful but in terms of the actual sanctions, and if the University decided to pursue enforcement of them then the Applicant was directed to continue to pursue a remedy via the internal appeal.
APPEAL The University appealed on three issues: 1. Whether Ms T.’s views on COVID-19 and vaccinations were “political” within the meaning of the WSU Act (s35) (the political belief issue) 2. Whether the decision to cancel her enrolment and disciplinary sanctions were imposed “because of” Ms T.’s views or beliefs (the causation issue) 3. Whether the making of a declaration that the disciplinary sanctions contravened s 35 of the WSU Act involved a denial of procedural fairness. (the procedural fairness issue) The Court of Appeal allowed the appeal by the University with costs, set aside the original judgment of 21 June 2022 and dismissed the original amended Summons of the Applicant.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
PublicDefendant(s)
Private individual
Type of procedure
Reasoning of the deciding body
The University appealed on three issues namely the political belief issue, the causation issue and the procedural fairness issue as outlined above in the facts of the case. Regarding the “political belief” issue the Court of Appeal held: 1. The word “political” as used in s 35 of the WSU Act was not so broad as to apply to all views or beliefs connected with public debate about affairs of government, or the conduct of public affairs. [110]-[113]. 2. While a person’s anti-vaccination views may in some circumstances be “political”, the nature of Ms T.’s opposition to vaccination was medical and scientific and not political.[124]-129], [133]-[136]. Regarding the “causation” issue, the Court of Appeal held: 1. The primary judge erred in holding that the cancellation decision was made because of Ms T.’s views and beliefs. The cancellation decision was made because of an apprehension that there was a risk that Ms T would share misinformation with patients about vaccination against COVID-19. Paras [146]-[151]. 2. The disciplinary sanctions were also not imposed because of Ms T.’s views or beliefs, but because of a “well-founded” concern that Ms T. would express those views and beliefs in a manner that would result in danger to patient health. [154]-[159]. Regarding the “procedural fairness” issue: In making a declaration that the disciplinary sanctions contravened section 35 of the WSU Act, the Trial Judge committed a denial of procedural fairness. Ms T. had not put forward such an argument to the court in oral or written submissions, nor made any such allegation, therefore the university decision maker was not cross examined about her reasons for imposing disciplinary sanctions. [160]-[166]
Conclusions of the deciding body
The Court of Appeal found that the conduct of the University did not contravene s35 of the WSU Act, Ms T.’s views or beliefs on COVID-19 and vaccination were not “political” and the University was denied procedural fairness in relation to the issue that the disciplinary sanctions contravened s 35 of the WSU Act. The appeal was successful, with costs awarded against Ms T.
Fundamental Right(s) involved
- Freedom of expression
- Freedom of information
- Political rights
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court of Appeal reviewed section 35 WSU Act with reference to equivalent university Acts in Australia. Upon a consideration of the Explanatory Memorandum and the Second Reading Speech to Parliament, the Court of Appeal concluded that the most significant matter to come from this review was what was not protected by s 35. It held that there was no evidence that the section implied a freedom of opinion or expression, nor was there a prohibition upon discrimination in relation to race or sex. In fact, this section of the WSU Act was considerably narrower than some of its counterparts in Australia. The Court concluded that s35 restricted action by the university on the basis of a person’s affiliations, views or belief but not their conduct. Section 35 was not to be interpreted so broadly as to protect or guarantee free speech and was not a guarantor of free speech to protect the expression of views or beliefs about scientific or medical matters. Upon a consideration of the Applicant’s conduct and statements about COVID-19 and vaccination, the Court of Appeal concluded that such views were not political but rather medical and scientific views and not protected by s 35. In relation to the cancellation decision, the Court of Appeal concluded that the reason for the decision was not due to the Applicant’s views on COVID-19 (although it conceded that these views underpinned the cancellation decision and formed part of the background to it) but it was primarily made on the risk the Applicant posed to patient safety in that she was unable to provide “safe information and education as to the benefits of vaccination to patients.” [148]
Other notes
On the type of Court (material scope): the Court of Appeal is a State Court of general jurisdiction
Pn the type of measure challenged: State Government legislation in the Western Sydney University Act 1997
Follow up of
Australia, Supreme Court of New South Wales, 10 June 2022, [2022] NSWSC 760
Case ID
Decision date
Deciding body (English)
Type of body
Country
Type of Court (material scope)
- Civil Court
- Criminal Court
- Constitutional Court
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Non-discrimination
- Education
- Vaccination
- Health and freedom of association/public gathering/religion
- Political/religious discrimination
Link to the full text of the decision
Outcome of the decision
General Summary
The Applicant was a nursing student and had her clinical placements cancelled in a hospital, and later a vaccination clinic, due to her skepticism about the safety of COVID-19 vaccination. In addition to this action, her conduct was the subject of an internal university disciplinary review. The main rights involved were freedom of speech, freedom of religion and discrimination based on political or religious beliefs. The Applicant sought a declaration that the University’s conduct was in breach of section 35 of the Western Sydney University Act 1997 and sought orders for the University to arrange further clinical placements for her. The Applicant also sought orders restraining the University from any further disciplinary action against her or giving effect to the sanctions already in place. The Court found in the Applicant’s favour and held that the cancellation of the clinical placements was in breach of the Act and was unlawful.
Facts of the case
The Applicant was a nursing student at the university and was required at the completion of her studies to undertake 800 hours of clinical placement. The Applicant’s placement at St George Hospital, commencing 30 August 2020 was cancelled by the Director of Clinical Placements based on the fact she had been sent home, by hospital staff, after expressing concerns about the safety of the COVID-19 vaccination, refusal to be vaccinated, and refusal to undergo COVID testing due to perceived cancer risk. The Applicant was then vaccinated against COVID-19 and was allocated a placement at Macquarie Fields Vaccination Hub on 25 October 2020. At that placement, the Applicant continued to express views of the safety of the vaccine to another Registered Nurse. The placement was again cancelled on this basis. The University took internal disciplinary action against the student and the outcome was that the Applicant was requested to write a 1500 word “appreciation” on how her conduct was a “breach of her professional obligations’, before any further placements were scheduled. Submissions were made on behalf of the Applicant that the internal action has been pre-decided based on the Applicant’s perceived ‘anti-vax’ stance, and not on the facts at hand. The Applicant sought a declaration that the University was in breach of section 35 of the Western Sydney University Act 1997 which prohibits the University from discriminating against students on the ground of religious or political views or beliefs.
Type of measure challenged
Measures, actions, remedies claimed
Claimant(s)
Defendant(s)
Type of procedure
Reasoning of the deciding body
The Court considered the relevant section of the Western Sydney University Act 1997 namely section 35 which provided:
No religious or political discrimination
A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University.
The Judge concluded that the refusal to organize clinical placements was a clear denial of “progression within the University” and it also constituted a denial of a “benefit, advantage or privilege” of the University. The Judge considered freedom of speech and freedom of thought as it related to section 35 and stated at [147]-[149]:
It is true that s 35 is not a guarantee of free speech as such. But free speech may be tied up with freedom of thought. Even in circumstances where there is no right of free speech, freedom of conscience will still protect the citizen from being required to make an affirmative profession of belief. Furthermore, a citizen’s speech is usually taken as a guide to that person’s thought. Action against the citizen merely for expressing a thought, when no countervailing interest is engaged, is an indirect attack on the citizen’s freedom to hold it... The theory behind s 35 is that this is an objective process and the personal beliefs, whether religious or political, of those involved, are, or should be, irrelevant.
The Judge found that the representatives of the Respondent had taken the view that the Applicant was an anti-vaxxer because of questions asked by her as to the efficacy of the vaccine and that there was a risk she would give false information to patients. Further, the Respondent’s representatives, in their internal investigation, were not ‘concerned to enquire exactly what Ms Thiab had said to have been labelled as a spreader of “misinformation”’.
It was found that internal action taken against the Applicant was ‘a travesty’. There was no intent to correlate the Applicant’s behaviour with alleged breaches of either the Nursing and Midwifery Board of Australia Code of Conduct, or the International College of Nurses Code of Ethics for Nurses.
The Judge found that opposition to vaccination may be based on genuinely held political beliefs; however the “cogency” of such beliefs are irrelevant in this context. The Judge went on to say that public health is a social science requiring a balance between people’s individual freedoms and a government taking action to restrict the spread of a disease in the collective interest. The Judge concluded that this is a politically controversial situation in any person’s view. In questioning the safety of the COVID-19 vaccine, the Applicant was effectively criticizing government policy and this statement is political in nature. The University in cancelling the Applicant’s placements were taken because of beliefs that were political in nature and were contrary to section 35 and the decision was therefore unlawful.
The Judge found that the Respondent’s University’s actions in cancelling the Applicant’s clinical placements on 25 October 2021, after she had been vaccinated and in later imposing sanction 4, which prevented any further placements being allocated, contravened s 35.
Conclusions of the deciding body
The Court concluded that the University in cancelling the Applicant’s placements had breached section 35 of the Western Sydney University Act 1997.
Individual / collective enforcement
Fundamental Right(s) involved
- Freedom of expression
- Freedom of information
- Political rights
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Non-discrimination
- Due process
Balancing techniques and principles (proportionality, reasonableness, others)
The Court undertook a brief historical analysis of the genesis of the section in question and discussed the progression of the legislation as it related to freedom of religion, freedom of thought and freedom of expression. The Court ultimately concluded that the University, in taking an action on the basis of the Applicant’s beliefs on vaccination was an attack on her right to hold that belief. Given that the belief was political in nature as it disagreed with government policy on vaccination then by cancelling the Applicant’s placements, the University prevented the Applicant from progressing within the University and breached section 35.
