The applicant, a constable appointed under the Police Act 1892 (Western Australia) that has chosen not to be vaccinated against COVID-19, challenged the validity of the directions issued by the Chief of Health Officer under the Public Health Act.
Such directions prohibited any WA Police Force worker from entering or remaining at a WA Police facility unless they were vaccinated against COVID-19. The claimant challenged such measures on the grounds that they violated the precautionary principle and the principle of proportionality, as well as being irrational and beyond power. The applicant deposed, in effect, that there are duties that he and other officers can reasonably perform at home, without the need to attend a WA Police facility. In particular, he said there are a number of essential functions which can be performed using a web-based remote access system.
By decision August 2022, the Supreme Court of Western Australia fully dismissed the claims.
The Court first considered that while the risk was for the time being contained in Western Australia, COVID-19 carried a risk of potential harm to public health that was of a high impact and on a wide scale. COVID-19 was a serious public health risk, as defined in s 4 of the Act. In this regard, the Court found that the precautionary principle, as set out in Section 3(2) of the Public Health Act provides that, 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. Furthermore, decision making processes regarding the adoption of measures should be guided by an assessment of the risk-weighted consequence of the options considered. In light of the above, the Court found that the applicant had not established a realistic possibility that the decision could have been any different had the precautionary principle been considered.
As for proportionality, the Court first considered that, as established in the Public Health Act, 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. Furthermore, when taking a decision, preference should be given to those having the least adverse impact on individuals’ or businesses’ activities. Based on the above, the Court found that, the measures adopted by the Chief of Health Officer were consistent with highly qualified scientific opinion regarding the effectiveness of COVID-19 vaccines. As such, they were reasonably appropriate and adapted to control, preventor abate the serious health risk posed by the pandemic.
Finally, with regard to irrationality, the Court found that the complaint failed to have regard to the several purposes of the measures, including to ensure the continuity of police services, to minimize the number of persons in the community infected by interaction with infected police workers, and to afford particular protection to vulnerable people who may interact with police officers, including at police premises.
