Australia, Supreme Court of Western Australia, 23 August 2022, Falconer v. Chief Health Officer [No 3] [2022] WASC 270
Case overview
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Decision date
Deciding body (English)
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Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
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Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
On 12 November 2021 Directions were published under the Public Health Act which prohibited any Western Australian Police Force worker from entering or remaining at any Western Australian Police facility unless they were vaccinated against COVID-19. The Applicant challenged the validity of the Directions. The Applicant sought declarations that the Directions were beyond power as legally irrational. The application was dismissed.
Facts of the case
On 12 November 2021 Directions were published under the Public Health Act which prohibited any Western Australian Police Force worker from entering or remaining at any Western Australian Police facility unless they were vaccinated against COVID-19. The Applicant was a Police Officer and challenged the validity of the Directions on four grounds:
- The Chief Health Officer failed to take into account the precautionary principle;
- The Chief Health Officer failed to take into account the principle of proportionality;
- Disproportion to the stated purpose of the Chief Health Officer in making the Direction; and
- The Directions are beyond power because they are legally irrational.
The Applicant’s argument included that his duties could be carried out at home or with the use of web-based communication methods. The Court clarified the issue being whether, on the information available to the Chief Health Officer, it was open to him to consider that the exclusion of unvaccinated officers from Police facilities was reasonably necessary to prevent, control or abate the public health risk posed by the pandemic. It was not necessary for him to consider whether they could work from home.
The Court found that none of the grounds were established and the application was dismissed.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The court considered the precautionary principle as outlined in the Public Health Act 2016 (WA). The Court summarised it at para [89]: if there is a public health risk, lack of scientific certainty should not be used as a reason for postponing measures to prevent, control or abate that risk. Paragraph (2) states matters by which decision-making should be guided in the application of the principle, including an assessment of the risk-weighted consequence of the options.
The Applicant’s argument relied on the Chief Health Officer’s failure to have regard to a statement of reasons when making their decision. The Court disagreed with this argument as it reversed the onus of proof and concluded that it was up to the Applicant to show that the Chief Health Officer did not guide his application of the precautionary principle by assessment of the risk-weighted consequences. The Applicant had not done this and therefore this ground was not upheld.
The Court then considered the principle of proportionality. The Court summarised the principle of proportionality in s 3(2) of the Public Health Act 2016 (WA) at para [98]: First, there is the statement of principle: decisions made and actions taken to prevent, control or abate a public health risk should be proportionate to the public health risk sought to be prevented, controlled or abated. Paragraph (2) provides that decision making and action should be guided by the aim that where measures that adversely impact on an individual's or business's activities or a community's functioning are necessary, measures that have the least adverse impact are taken before measures with a greater adverse impact.
This required identification of the action taken and the public health risk sought to be controlled or abated. The action taken was preventing non vaccinated police officers to attend their place of work and the risk was the spread of COVID-19 within the community. This ground was not made out and the Court was careful not to exceed its role by substituting its judgment of what is reasonably necessary for that of the qualified official designated under the Act.
In terms of irrationality, the Court concluded that the Directions were directly related to the identified risk being the spread of COVID-19 within the community. This ground was not upheld.
The Court concluded that at best, the Applicant’s argument was that the Directions were in place longer than necessary.
The Application was dismissed.
Conclusions of the deciding body
Application was dismissed.
Fundamental Right(s) involved
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to work
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. right to work
General principle applied
- Proportionality
- Reasonableness
- Precautionary
Balancing techniques and principles (proportionality, reasonableness, others)
The Court considered the precautionary principle and principle of proportionality as contained in the Public Health Act 2016 (WA). The Court held that the action taken of preventing unvaccinated police officers to attend their place of work was proportionate to the risk being the spread unabated of the COVID-19 virus in the community. In relation to the precautionary principle, the Court considered the variety of information made available to the Chief Health Officer in making his decision and was satisfied that although he did not specifically refer to the precautionary principle, he turned his mind to the matters he was required to consider.
