30th September 2021
DISSENTING DECISION of Lyndall Dean in the Jennifer Kimber v Sapphire Coast Community Aged Care Ltd
The first 61 points reflect the majority decision (of two out of three Commissioners). The Deputy President Lyndall Dean has, however, propounded an EXTREMELY important argument for posterity in her brave decision that disagrees with the majority decision. It is worthwhile noting her decision and the key points she has made.
DECISION OF DEPUTY PRESIDENT DEAN
 Ms Jennifer Kimber was dismissed because of her inability to be vaccinated against influenza in 2020.
 In a decision dated 29 April 2021, Commissioner McKenna determined that Ms Kimber’s dismissal was not unfair and dismissed her application for an unfair dismissal remedy against Sapphire Coast Community Aged Care Ltd (Sapphire) (the Decision) 12.
 Ms Kimber has lodged an appeal, for which permission to appeal is required, against the Decision. Permission to appeal has been refused by my colleagues in the majority (the Majority Decision).
 Never have I more strenuously disagreed with an outcome in an unfair dismissal application. The Decision manifest a serious injustice to Ms Kimber that required remedy. More egregious, however, is that the Majority Decision has denied Ms Kimber the protections afforded by the Fair Work Act in part because of “an inference that she holds a general anti-vaccination position” 13.
 Had I been able to do so, I would have granted permission to appeal, upheld the appeal and quashed the Decision. In re-determining the application, I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position.
 This decision is in two parts. First, I will explain the reasons why Ms Kimber was unfairly dismissed. Second, I will address the Majority Decision as it relates to COVID-19 and vaccine requirements.
PART 1 – MS KIMBER
 The background of this matter was set out in detail in the Decision and the key facts are as follows:
- a) Sapphire operates an aged care residential facility in Pambula on the south coast of NSW.
- b) Ms Kimber was employed to perform general receptionist-type duties on a part time basis on four days per week.
- c) Ms Kimber received the influenza vaccine (flu shot) administered by Sapphire in April 2015 and April 2016.
- d) After receiving the flu shot in 2016, Ms Kimber developed a severe skin inflammation over parts of her body, including her face, and her internal organs were also affected (the Condition). The Condition persisted for ten months. Ms Kimber considered the Condition to be a reaction to the 2016 flu shot.
- e) Ms Kimber chose not to avail herself of an employer provided flu-shot in 2017, 2018 and 2019. She was not asked why she did not have flu shots and no issue was taken by Sapphire in this regard.
- f) In 2020, the Australian Government and the governments of the States and Territories took a range of steps in an attempt to address the COVID-19 global pandemic.
- g) Relevantly, on 24 March 2020 the NSW Government determined to make a Public Health Order (PHO) about matters related to requirements for flu shots concerning persons who worked within, or otherwise attended, NSW residential aged care facilities (the March PHO).
- h) The March PHO reads, in part:
“4 Direction—entering and remaining on premises of residential aged care facility
(1) The Minister directs that a person must not enter or remain on the premises of a residential aged care facility during the relevant period unless—
(d) the person is on the premises in accordance with an exemption given by the Minister, in writing, and complying with any conditions of the exemption.
(2) Subclause (1) is subject to clauses 5 and 6.
5 Direction—persons not to enter or remain on premises of residential aged care facility in certain circumstances
The Minister directs that a person mentioned in clause 4(a)—(c) must not enter or remain on the premises of a residential aged care facility during the relevant period if—
(d) the person does not have an up-to-date vaccination against influenza, if the vaccination is available to the person.
6 Direction—persons aged under 16 years
7 Direction—responsibility of operator of residential aged care facility
The Minister directs that the operator of a residential aged care facility must take all reasonable steps to ensure that a person does not enter or remain on the premises of the facility in contravention of clause 4, 5 or 6.
The Minister may, in writing and subject to any conditions the Minister considers appropriate, exempt a person from the operation of this Order if the Minister is satisfied it is necessary to protect the health and well-being of the residents or staff of a residential aged care facility.”
- a) On 3 April 2020 the Australian Government’s Minister for Aged Care issued a media release (the Media Release) in the following terms:
“Aged care workers must get flu vaccination
Aged Care workers are being urged to get their flu vaccination now ahead of the season in a bid to protect themselves and the Senior Australians they care for.
3 April 2020
Aged Care workers are being urged to get their flu vaccination now ahead of the season in a bid to protect themselves and the Senior Australians they care for.
Minister for Aged Care Richard Colbeck said while every flu season is serious, the spread of COVID-19 means it’s critical every worker is vaccinated.
‘Our Aged Care workers are doing an exceptional job caring for our most vulnerable Australians in very challenging circumstances,’ Minister Colbeck said.
Senior Australians are the most at risk from serious illness from the flu, which is why it is essential that care workers are vaccinated.
“We need our aged care workforce to be fit and healthy as we face this health emergency.
‘This year it is even more important to be vigilant about the flu because of the COVID -19 pandemic.
‘While flu vaccination does not prevent COVID-19, a flu vaccination is critical to protecting the health of Senior Australians, who are more susceptible to contracting influenza.
‘I am urging all care workers who work with older Australians, whether through residential facilities or in-home care, to heed this advice and get vaccinated against the flu.
‘The more people caring for this vulnerable group who have a vaccination will result in less demand on our health care system.’
Every year, Residential Aged Care Providers are required to a free flu vaccination program to their staff.”
Due to the COVID-19 pandemic, the Australian Health Protection Principal Committee (AHPPC), the key medical decision-making committee for health emergencies, has advised that all residential aged care staff and visiting workers should be vaccinated by 1 May 2020.
State and Territories have issued directions to give effect to these requirements. These directions will be enforced and persons who fail to comply could face penalties including fines for individuals and for bodies corporate. Providers should consult their State or Territory Government.
Minister Colbeck said he has received the following advice from the Australian Government’s Chief Medical Officer Professor Brendan Murphy:
‘The only absolute contraindication to flu vaccination is a history of previous anaphylaxis following vaccination, those who have had Guillain-Barré Syndrome following previous flu vaccination and people on check point inhibitor drugs for cancer treatment.’
Prof. Murphy said people who suffer from egg allergies – unless they have anaphylaxis – can be safely immunised.
Minister Colbeck said that we need to do everything we can to reduce the risk of Senior Australians getting other illnesses while COVID-19 remains in our community.
‘Vaccinated people of all ages are less likely to get the flu and if they do, are less likely to have a severe case,’ Minister Colbeck said.
‘It’s critical for our older Australians to reduce their risk of getting other illnesses while COVID-19 remains in our community.
‘Together we can work to protect older Australians and our community,’
Flu vaccinations are free for anyone aged 65 and over.
The latest advice released by the National Cabinet is Australians should self- isolate at home to the maximum extent practicable if they are:
- over 70 years of age;
- over 65 years of age with a chronic medical condition;
- an Indigenous Australian over the age of 50 with a chronic medical condition; and
- somebody with a compromised immune system.
These groups should limit contact with others as much as possible when they travel outside. For more information:
- Residential Aged Care
- Flu vaccination advice for all Australians.”
- b) Sapphire wrote to its employees on 3 April 2020 stating that the flu shot was now mandatory unless a person had a contraindication to the vaccine, which was specified as anaphylaxis after a previous dose of influenza vaccine or any component of an influenza vaccine.
- c) On 9 April 2020, Ms Kimber provided a letter from a Chinese medicine professional confirming that she had been treating Ms Kimber since the end of 2016, and Ms Kimber had had concerns regarding the flu shot and would prefer not to receive it.
- d) On 21 April 2020, Sapphire wrote again to its employees, and in reliance on the Media Release noted that the only exception for staff was “a history of previous anaphylaxis following vaccination, those who have Guillian-Barre Syndrome following previous flu vaccination, and people on check point inhibitor drugs for cancer treatment”.
- e) Sapphire took the view, in light of the March PHO and the Media Release, that there was nothing in the letter provided by Ms Kimber’s Chinese medicine practitioner that would support her refusal to have the flu shot.
- f) Ms Kimber was stood down from her employment by letter dated 30 April 2020 (the stand down letter), because she had been “unable to produce a medical certificate which confirms you are unable to have the flu vaccination” in accordance with the contraindications set out in the Media Release. The stand down letter requested that she provide a medical certificate which referenced the contraindications identified in the Media Release, and further stated once the certificate was received, she would be able to return to her position. She was asked to attend a meeting with the Facility Manager on 4 May 2020, and informed that she may be dismissed if she did not follow what was said to be a lawful and reasonable direction.
- g) Ms Kimber, at the meeting on 4 May, confirmed she was not prepared to have the flu shot in circumstances where the March PHO was a temporary measure, and she wanted to wait to see if the requirements would change.
- h) Ms Kimber provided two letters from medical practitioners at this time, one being from Dr Neil Mackay MBBS, general practitioner, from Pambula Medical Centre. Dr Mackay’s letter is in the following terms:
“Letter of Support
I have attended Ms Jennifer Kimber on 27/4/2020.
Jennifer has a medical contraindication to the Influena [sic] Immunization. She has had a severe allergic reaction to the flu shot in the past and has been advised not to have it again.
Dr. Neil Mackay M.B.B.S.”
- i) The second letter from a different doctor supported an application for carers leave for Ms Kimber until 1 June 2020.
- j) Ms Kimber wrote to the CEO of Sapphire on 12 May 2020 and received a reply on 18 May 2020. These letters are set out in the Decision and not repeated here.
- k) On 22 June a second PHO was made (the June PHO) which was in slightly different terms to the March PHO which it replaced. Relevantly, clause 6(1)(d) reads:
“6 Direction—persons not to enter or remain on premises of residential aged care facility in certain circumstances
The Minister directs that a person mentioned in clause 5(1)(a)-(d) must not enter or remain on the premises of a residential aged care facility if:
(d) the person does not have an up-to-date vaccination against influenza unless-
(i) the vaccination is not available to the person, or
(ii) the person presents to the operator of the residential aged care facility a certificate in the approved form, issued by a medical practitioner, certifying that the person has a medical contraindication to the vaccination against influenza.” (emphasis added)
- a) On 29 June 2020, being the last day of Ms Kimber’s carers leave, Sapphire wrote to Ms Kimber directing her to attend a meeting in order that she show cause as to why she should not be dismissed. The letter is set out in the Decision and not repeated here.
- b) On 1 July Ms Kimber attended an appointment with Dr Mackay, who provided her with a letter (the second letter) in the following terms:
Letter of Support
(Patients without current clinical evidence of an illness)
I have attended Ms Jennifer Kimber on 1/7/2020.
The patient suffered a severe allergic reaction to the influenza vaccine 4 years ago. This resulted in severe facial and neck swelling with a wide spread erythematous over her face, chest and arms. This rash lasted 10 months and required oral prednisolone to resolve it. Jennifer has supplied photos of the rash which I have attached as supporting evidence.
In my opinion the history as stated is consistent with the above, and therefore is a medical contraindication to having the influenza vaccine.
I have completed the Influenza Vaccine Medical Contraindication Form from the NSW public health website.
Dr. Neil Mackay
- c) This letter was accompanied by a completed pro forma NSW Government Influenza Vaccine Medical Contraindication Form (the IVMC form). The IVMC form relevantly read as follows:
To whom it may concern
Request for access to a Residential Aged Care Facility (RACF) for reasons permitted under the NSW Public Health (COVID-19 Aged Care Facilities) Order (No 2) 2020 (the Order).
I am a registered medical practitioner.
I certify that, Jennifer Anne Kimber … has the following medical contraindication to this season’s influenza vaccine:
[ ] anaphylaxis after a previous dose of any influenza vaccine
[ ] anaphylaxis after any component of an influenza vaccine
[ ] history of Guillain-Barré Syndrome whose first episode occurred within 6 weeks of receiving an influenza vaccine
[ ] cancer immuno-oncology therapies (checkpoint inhibitors) – The patient has been advised to consult with their treating oncologist about the risks and benefits of influenza vaccination
[X] other medical contraindication; being Severe Facial Swelling and rash lasting 10 months from vaccine
*Note – Fluad Quad and Afluria Quad state that people with egg allergy (non-anaphylaxis) can receive an age-appropriate dose and therefore will not qualify for a medical contraindication
I certify that the above mentioned person has a medical contraindication and is not required to have an up-to-date vaccination against influenza prior to entry into a RACF.” (emphasis added)
- d) Ms Kimber gave the second letter and the IVMC form to Sapphire prior to a telephone meeting between the parties on 2 July 2020.
- e) On 6 July Ms Kimber was advised by telephone that her employment was terminated because she had refused to have a flu shot and would receive a letter to that effect (the Dismissal letter). The Dismissal letter reads:
Re: TERMINATION OF YOUR EMPLOYMENT
We write to inform you that, as of 6/7/20, Sapphire Coast Community Aged Care Ltd has terminated your employment as Clerk Grade 3 Employee.
Despite multiple lawful and reasonable directions to be vaccinated against influenza as per NSW Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 (No 1), clause 5(d) and NSW Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 (No 2) clause 6(1)(d), you have refused to be vaccinated and, as such, you are unable to fulfil the inherent requirements of your role.
The Public Health Order prescribes that a person, including an employee, is not to remain on premises of a residential aged care facility if the person does not have an up- to-date vaccination against influenza.
You attended a meeting with Anne Main on 4/5/20 during which you were offered an opportunity to discuss your refusal to comply with the Public Health Order. During that meeting, you stated words to the effect of “I will await to see if legislation becomes permanent and would consult an immunologist to see if you would likely have another debilitation reaction if you had the flu vaccination”. You were advised at the time and by way of letter (please see attached) that should you choose not to be vaccinated against influenza, you could not lawfully return to work and your employment would be terminated.
You participated in a ‘show cause’ meeting with Anne Main on 2/7/20 via telephone in order to “show cause as to why your employment with Sapphire Coast Aged Care should not be terminated”. This was outlined in a letter sent to you 29/6/20 in relation to inability to fulfil inherent requirements of role of Clerk Grade 3. You advised during the meeting with Anne that “your opinion on having the vaccine has not changed, you would like to know if CEO Matt is seeking an exemption for me”.
Further, we note we received a medical letter of support from you dated 27 April 2020 stating that you have a severe allergic reaction to the flu shot. We advised you that a severe allergic reaction does not qualify as a medical contraindication under the order and therefore the flu vaccination was still available to you. We also requested further information from you [sic] treating doctor. We have now received another medical letter of support from you [Dr MacKay’s Letter of Support dated 1 July 2020] with more information stating that the medical contraindications are severe facial swelling and rash lasting 10mths from vaccine. After considering the advice from the Chief Medical Officer we take the view that your medical contraindication is NOT a qualifiable medical contraindication and therefore Clause 6(1) (a)-(c) of the Order still applies.
Sapphire Coast Community Aged Care Ltd will pay you an amount in lieu of notice in accordance with your entitlements. You will also be paid out any accrued entitlements owed to you which will be detailed in writing under a separate letter. Other documents such as your Group Certificate, Statement of Service and Employment Separation Certificate will also be forwarded to you. Please return all property belonging to Sapphire Coast Community Aged Care Ltd to your supervisor immediately.
Do not hesitate to contact the undersigned, if you have any queries regarding this letter.
Chief Executive Officer
Sapphire Coast Community Aged Care Ltd”
- f) The CEO of Sapphire, in his evidence, said that he had formed the view that the medical contraindication specified by Dr Mackay in the IVMC form did not constitute a medical contraindication in accordance with the Media Release and other information such as the Australian Immunisation Handbook. 14
 After confirming that Ms Kimber was a person protected from unfair dismissal, the Commissioner turned in the decision to whether the dismissal was unfair, and in doing so, addressed the matters required to be taken into account under s.387 of the Act.
 In relation to s.387(a), that being whether there was a valid reason for the dismissal, the Commissioner found as follows:
“ Lawful and reasonable direction to have a 2020 flu shot: The dismissal letter identified that the termination of employment occurred because the applicant had “refused to be vaccinated” despite “multiple lawful and reasonable directions to be vaccinated against influenza” as per clause 5(d) of the March PHO and clause 6(1)(d) of the June PHO.
 I find the respondent did not, at any time, give any within-terms “directions” to the applicant to have a flu shot. The evidence simply does not support a conclusion there was any written or verbal direction given to the applicant in such respects by Mr Sierp, Ms Main or anyone else associated with the management of the respondent (let alone “multiple directions”) and this is so notwithstanding, for example, what the applicant wrote in her letter dated 12 May 2020 to Mr Sierp asserting she had been given such a direction. That is, the applicant wrote in the letter dated 12 May 2020: “I refer to your letter dated 30th April 2020 regarding the recent direction for me to have a mandatory influenza vaccination, …”.
 Although no directions were given by the respondent to the applicant to have a flu shot, equally, the respondent nonetheless firmly communicated to the applicant (and to its employees generally) that having an up-to-date flu shot was necessary for attendance for work at Imlay House. The communications from Mr Sierp referred, for example, to the directions given by the NSW Minister for Health in the PHOs rather than the respondent itself giving directions to have a flu shot. That is, the PHOs, within terms, refer to various directions, i.e. “The Minister directs that …”. The expectation or implicit requirement of the respondent that the applicant (and other employees) should receive the 2020 flu shot was couched in terms which referred (initially) to the NSW Government’s March PHO and (subsequently) to the June PHO; and (after 3 April 2020) to the CMO Advice as set out in the Media Release.
 Given the respondent did not, in fact, give any direction to the applicant to have a 2020 flu shot, I find the respondent’s reliance in the dismissal letter upon its purported “multiple lawful and reasonable directions to be vaccinated against influenza” was a misstatement. Nonetheless, the practical import of the communications was effectively to indicate that the respondent expected or required the applicant (and other employees) to have a flu shot unless there was a medical contraindication as described in the CMO Advice.
 Putting aside my finding that the respondent did not give any directions to the applicant to have a flu shot, there was sharp contest in the proceedings about whether the respondent could give a lawful and reasonable direction to the applicant to have a flu shot – relevantly in the context of the applicant’s attendance at work and/or continuation of employment at the Imlay House residential aged care facility at a time when the PHOs were in place. Certainly, the respondent could not physically compel the applicant to have a flu shot against her own personal wishes. Regardless of any direction by an employer (whether described in terms of being lawful and reasonable, or described in other similarly-pitched terms), an employee is entitled to make his or her own personal choice about whether to have a flu shot. Be that as it may, that is not the end of the matter. If an employee makes a personal choice not to have a flu shot, then an employer which provides residential aged care services and which is subject to a PHO has its own obligations under that PHO. Here, specific obligations were imposed upon the respondent by the March PHO and then the June PHO. In the complexity of NSW Government and Australian Government interactions, requirements and pronouncements about aged care facilities that were occurring in 2020, the respondent was not only trying to adhere as best it could to the NSW Government’s PHOs, it also was trying to listen to, and apply, what was being communicated at an Australian Government level (and by Mr Sierp’s reading of the Australian Immunisation Handbook). The approach adopted by the respondent was to apply the CMO Advice as to absolute contraindications rather than allow for other categories of contraindications, as appears to be contemplated in the IVMC Form.
 It seems to me that if a direction in fact had been given by the respondent to the applicant to have a flu shot, any such direction would not only have been lawful it would have effectively reflected what in fact was the law as it applied in 2020 concerning employees working within NSW residential aged care facilities (subject to the exemptions within the PHOs); as a corollary, any such direction would not only have been lawful, but also reasonable.
 Inability to perform the inherent requirements of the job: The dismissal letter indicated that, as the applicant had not received a 2020 flu shot, the applicant was “unable to fulfil the inherent requirements” of her role.
 The applicant was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at Imlay House absent having an up-to-date flu shot. That is, if the applicant could not enter Imlay House, she could not perform the (principally) receptionist role and other clerical inherent requirements of her position. Moreover, although the applicant mentioned in her cross-examination that she could have worked from home, there was no evidence the applicant made any application to the respondent to perform from home any of the other clerical and/or administrative aspects of her job (and nor was there any evidence the respondent considered non-receptionist duties on a work-from-home basis as an option). The applicant’s case was that she could attend work at Imlay House to perform the inherent requirements of her job but was prevented from doing so by the respondent – and later unfairly dismissed by the respondent – based upon the erroneous failure of the respondent to accept Dr Mackay’s first Letter of Support, Dr Mackay’s second Letter of Support and, particularly, the IVMC Form with Dr Mackay’s certification. The applicant’s case contended for a conclusion by the Commission that as the applicant had provided to the respondent the IVMC Form the exclusion of the applicant from her Imlay House workplace was without a proper foundation and the dismissal lacked a valid reason – but I have accepted the submissions for the respondent in such respects in preference to those for the applicant.
 Flu shot requirement: I find that the respondent, principally through Mr Sierp, acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imaly House absent an up-to-date flu shot. I accept the submissions for the applicant that Mr Sierp did not have a detailed knowledge of the Australian Immunisation Handbook (indeed, Mr Sierp himself professed only to be “familiar” with it), but I find he acted on his best understanding of it, conditioned particularly in the context of the CMO’s Advice as set out in the Media Release. To recap, the Media Release identified matters including the following:
- “While flu vaccination does not prevent COVID-19, a flu vaccination is critical to protecting the health of Senior Australians, who are more susceptible to contracting influenza.”
- “Due to the COVID-19 pandemic, the Australian Health Protection Principal Committee (AHPPC), the key medical decision-making committee for health emergencies, has advised that all residential aged care staff and visiting workers should be vaccinated by 1 May 2020.”
- “State and Territories have issued directions to give effect to these requirements. These directions will be enforced and persons who fail to comply could face penalties including fines for individuals and for bodies corporate.”
- “Minister Colbeck said he has received the following advice from the Australian Government’s Chief Medical Officer Professor Brendan Murphy:
‘The only absolute contraindication to flu vaccination is a history of previous anaphylaxis following vaccination, those who have had Guillain-Barré Syndrome following previous flu vaccination and people on check point inhibitor drugs for cancer treatment.’
Prof. Murphy said people who suffer from egg allergies – unless they have anaphylaxis – can be safely immunised.”
 True it is, as the applicant submitted, the Media Release had “absolutely no force at law”, but it would have been foolhardy indeed for Mr Sierp to purport to put his own gloss on, or ignore, what was said by the CMO and, for example, to substitute his own opinion/s for those of the CMO as to matters concerning contraindications to influenza vaccination – whether based on his own reading of the Australian Immunisation Handbook, or based on the reading for which the applicant contended in the hearing, or otherwise. Counsel for the applicant described Mr Sierp’s adherence to the CMO Advice within the Media Release as “pig-headed”. I reject that regrettable characterisation of Mr Sierp, a CEO who was making his best endeavours in relation to the operations of the residential aged care facility in what was undoubtedly a very difficult period of time within the aged care sector, for example, in relation to the multiple deaths at Sydney’s Newmarch House. An extract of the transcript of the cross-examination of Mr Sierp is illustrative as to the cautious approach in his reliance on the CMO Advice. The questions posed by counsel for the applicant are reproduced in plain text and Mr Sierp’s answers are in italicised text in the following extract:
“That is Dr Mackay’s influenza vaccine medical contraindication form? Do you – you received that on or about 1 July 2020? Yes.
You saw that it was an official New South Wales government form? Yes.
And you saw on that form that there were other medical contraindications written on that form apart from anaphylaxis – did you see that? Yes.
Did that cause you to doubt the completeness of the Minister’s attribution to Professor Murphy about that being the only genuine contraindication? No.
Why not? Because we had always followed what the Minister and Professor Murphy utilized as their definitions.
So I don’t want to be rude but did you think the department and the state minister were just waffling in the air when they added all those other boxes to be ticked? No.
What did you think they were doing? I didn’t write the form.
Doesn’t – can I just put to you that that form indicates that the narrow advice or part of advice from – that was quoted in the Minister’s press release is just that narrow and only part of the advice about what are accepted medical contraindications to the influenza vaccine? Did that cause you to think that? It didn’t tie in with Professor Murphy or the Minister’s – – –
Yes, precisely, so it didn’t tie in with what you understood Professor Murphy to be saying through the Minister’s press release and did that cause you to doubt what – what was the appropriate definition of a medical contraindicator to the influenza vaccine for the purposes of Ms Kimber’s case? It wasn’t challenging the contraindications.
Sorry? Did it cause you to doubt that Professor Murphy’s statement was complete? No.
You just thought those extra boxes about the cancer and those things were – they were just there for no reason, did you? Did you? No.
What reason did you think they were there for? Like a number of forms that are produced it did not tie in with this contraindication. As the provider, we’re allowed to challenge the information that we receive.
It didn’t tie in with what Professor Murphy had said, did it? That’s your evidence? In which question?
The matters on the form didn’t tie in with what Professor Murphy had said about medical contraindications to influenza vaccine, did it? It didn’t tie in with the public health order and the fact that the exemption – – –
Sorry, I’m asking you it didn’t tie in with what Professor Murphy had said, did it – or what you understood him to have said? The other box didn’t coincide with Professor Murphy’s.
But that didn’t cause you to doubt what Professor Murphy had to say, did it? No.”
 The respondent did not accept what was put forward by the applicant in relation to her refusal to have a flu shot and, in such respects, I find Mr Sierp took an objectively prudent and appropriate approach in his reliance on what was said by the CMO as identified by the federal Minister for Aged Care in the Media Release titled “Aged care workers must get flu vaccination”. Although the applicant submitted that the CMO Advice as set out within the Media Release amounted only to “hearsay” and that “the minister’s press release is really just some sort of throw-away”, it seems to me it carried greater weight than that; I did not find the submissions as to hearsay persuasive in as much as those submissions sought to diminish the significance of the advice of the CMO, albeit as set out in a media release. The March PHO was succeeded by the June PHO, which operated from 23 June 2020 (with an anticipated cessation on 21 September 2020). There was no evidence of any change in the associated advice from the CMO on the matter of contraindications in the time following the Media Release to the date the applicant was dismissed.
 Given my acceptance of Mr Sierp’s reliance on the CMO Advice as being objectively reasonable, I find there was a valid capacity-related reason for the dismissal given the applicant chose not to have an up-to-date flu shot in 2020. The respondent determined, appropriately I consider, not to allow the applicant to enter Imlay House to work without an up-to-date flu shot. As I found earlier, if the applicant could not enter Imlay House, she could not perform the inherent requirements of her job.
 Although the submissions for the applicant proceeded, in part, to suggest the applicant’s dismissal may have involved a contention about serious misconduct, it is unnecessary to consider those submissions. No aspect of the respondent’s case contended the applicant had misconducted herself or had been dismissed for misconduct, let alone serious misconduct, in not having a flu shot.”
 In summary, the Commissioner found that it was ‘objectively reasonable’ for Sapphire to rely on the ‘advice’ in the Media Release, and accordingly found that there was a valid capacity-related reason for Ms Kimber’s dismissal given she “chose not to have an up-to-date flu shot in 2020”. The Commissioner went on to find that “the respondent determined, appropriately I consider, not to allow the applicant to enter Imlay House to work without an up-to-date flu shot. As I found earlier, if the applicant could not enter Imlay House, she could not perform the inherent requirements of her job”.
 The findings made by the Commissioner in relation to s.387(b)-(g) do not need to be recited.
 In relation to s.387(h), the Commissioner considered a number of matters including that there was “a paucity of medical evidence about a connection between the 2016 flu shot and the Condition”. 15 As a result of the lack of evidence, the Commissioner was not satisfied that the Condition resulted from the 2016 flu shot, notwithstanding the two letters from Dr Mackay and the IVMC form completed by him16.
 The Commissioner at paragraphs 77 and 78 of the Decision said the following in relation to Dr Mackay:
“ As to Dr Mackay’s two Letters of Support and the IVMC form, it is reasonably clear that Dr Mackay did not personally examine the applicant in 2016-17. Rather, Dr Mackay appears to have proceeded only on what the applicant stated to him as having occurred in 2016-17 – as indicated in the signed certification by the applicant at the foot of each Letter of Support. It is unclear on the evidence what actually was before Dr Mackay, other than two undated photographs of the applicant and what the applicant recounted to him (i.e., see the applicant’s own certification as recorded within each of Dr Mackay’s two Letters of Support). There is nothing arising from Dr Mackay’s two Letters of Support to indicate he had access to and/or reviewed any medical records relevant to 2016-17. The basis upon which Dr Mackay determined to certify in the IVMC Form that the applicant had a medical contraindication to the (“up-to-date”) 2020 vaccination against influenza is also unclear on the evidence. For instance, the evidence in the respondent’s case indicated there are presently six types of influenza vaccines and there was no evidence of any referral of the applicant by Dr Mackay to a specialist, such as an immunologist, for consultation before Dr Mackay completed the IVMC Form with his certification concerning the applicant. Rather, the applicant attended an appointment with Dr Mackay on 1 July 2020 and that was the same date on the second Letter of Support and the IVMC Form.
 The certification by a medical practitioner in an IVMC Form concerns a serious public health matter. It is also a matter with serious legal significance – given that, absent such certification (or an exemption from the NSW Minister for Health), it would have been an offence under the June PHO (with associated penalties of potential imprisonment and fines) to fail to comply with the ministerial direction not to enter an aged care facility without having had an up-to-date vaccination for influenza if it was available to the person.”
 The Commissioner also accepted the evidence and opinions of Professor Wakefield, a specialist immunologist, who was called by Sapphire to give expert evidence. She noted in particular the following evidence in his report:
“Based on the information available to me it is not on the balance of probability likely that the rash that Mrs Kimber suffered from was related to prior influenza vaccination and there was no other evidence of a contraindication to her having influenza immunisation. The presence of an allergic reaction to the influenza vaccine could be tested by skin prick testing using the influenza vaccine and/or challenge with the vaccine in a hospital environment to ascertain if the subject has an allergic or severe reaction to the influenza vaccine.” 17
 The Commissioner stated that her conclusion that Ms Kimber did not establish the Condition was a reaction to the 2016 flu shot favoured the correctness of the stance taken by Sapphire and its adherence to the ‘advice’ in the Media Release concerning contraindications to the vaccine.
Why is the Decision wrong?
 In answering this question it is only necessary to consider the finding that there was a valid reason for Ms Kimber’s dismissal.
 The Commissioner’s findings in relation to valid reason are set out earlier. Essentially, she found that:
- a) Despite what was stated in the Dismissal letter, Sapphire did not give a lawful and reasonable direction to have a 2020 flu shot to Ms Kimber. However if such a direction were given, the Commissioner found that it would have been both lawful and reasonable;
- b) Ms Kimber was unable to fulfil the inherent requirements of her role because she was not properly permitted to enter or remain at Imlay House without having had an up-to-date flu shot; and
- c) Sapphire acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imaly House absent an up-to-date flu shot.
Lawful and reasonable direction
 I agree with the Commissioner’s findings that Sapphire did not actually give a direction to Ms Kimber to have the flu shot in 2020. To this extent, the reasons provided in the Dismissal letter were both wrong and misleading.
 To the extent that the Commissioner found that Sapphire could direct Ms Kimber to be vaccinated and this would have been a reasonable and lawful direction, I fundamentally disagree. As set out in more detail below, Ms Kimber had a valid exemption from the requirement that arose under the June PHO to have the flu shot. This was evident from the second letter from Dr Mackay and the properly completed IVMC form. There was no basis in which a lawful and reasonable direction could have been given to Ms Kimber to have the flu shot in these circumstances, and such a direction would have been contrary to her medical advice. The Commissioner erred in so finding.
Unable to fulfil inherent requirements because unable to enter workplace
 It was not open for the Commissioner to find that Ms Kimber was unable to perform the inherent requirements of her role because she was not permitted to enter her place of work without having an up-to-date flu shot. There was no legal impediment to Ms Kimber entering her workplace by operation of the June PHO. This is because she had a valid exemption under clause 6(d)(ii) of the June PHO.
 The exemption provision contained within the June PHO is clear, in that all that is required to be satisfied is that:
“the person presents to the operator of the residential aged care facility a certificate in the approved form, issued by a medical practitioner, certifying that the person has a medical contraindication to the vaccination against influenza.” 18
 This is exactly what Ms Kimber did, prior to her dismissal. There is no dispute that the approved form was used, that being the IVMC form. It was issued by a medical practitioner, that being Dr Mackay. He certified that Ms Kimber had “a medical contraindication” as was required by the exemption provision. Dr Mackay specified what the medical contraindication was.
 The IVMC form, set out earlier in this decision, does not limit the possible contraindications to those mentioned in the Media Release. In this regard I note the following:
- a) The Media Release references only the ‘absolute’ contraindications to the flu shot. Given the employment background of the CEO, he ought to have been aware that contraindications can be absolute or relative.
- b) The Media Release, issued by the Commonwealth Minister for Aged Care, acknowledges that it is the responsibility for States and Territories to give effect to the requirements of the Australian Health Protection Principal Committee (AHPPC).
- c) In NSW, the NSW Government relevantly made the June PHO which provided the exemption provisions and provided the template IVMC form.
- d) The IVMC form clearly and unambiguously gives power to a registered medical practitioner, of which Dr Mackay is one, to certify that a person has a medical contraindication.
- e) In addition to the specific (and absolute) contraindications listed, the IVMC form recognises and allows for the medical practitioner to certify a different contraindication (ie. ‘other’) and specify what that contraindication is.
- f) The IVMC form then provides for the medical practitioner to certify that the person is not required to have an up-to-date vaccination against influenza prior to entry into a residential aged care facility, which is exactly what Dr Mackay did.
- g) There is no basis for reading into the exemption provisions of the June PHO requirements (such as a requirement to consult a specialist immunologist for example) that are not there.
 The Dismissal letter clearly relies on the June PHO and the Media Release to decide that Ms Kimber was unable to fulfil the inherent requirements of her role. The reference to ‘advice’ from the CMO is only a reference to the Media Release, not actual medical advice.
 The Dismissal letter also makes clear that despite the second letter from Dr Mackay and the completed IVMC form, Sapphire took the view that her medical contraindication did not qualify as a contraindicator based on the Media Release, and as such the exemption provisions did not apply. In doing so, Sapphire disregarded the medical opinion of a registered medical practitioner and instead replaced it with its own opinion based on the Media Release.
 The Commissioner endorsed the approach adopted by Sapphire to apply the ‘advice’ in the Media Release as to absolute contraindications rather than accept other categories of contraindications, as was clearly contemplated in the IVMC Form. To rely on a Media Release as medical ‘advice’ to base a decision to dismiss an employee in these circumstances is simply wrong. The Commissioner, having acknowledged that the Media Release had “absolutely no force at law”, went on to find that “it would have been foolhardy indeed for Mr Sierp to purport to put his own gloss on, or ignore, what was said by the CMO and, for example, to substitute his own opinion/s for those of the CMO as to matters concerning contraindications to influenza vaccination – whether based on his own reading of the Australian Immunisation Handbook, or based on the reading for which the applicant contended in the hearing, or otherwise”. However this is exactly what the CEO of Sapphire did with respect to the medical advice provided by Dr Mackay. He ignored the medical advice he had been provided with and instead substituted his own opinion based on a Media Release.
 If this approach were to be correct, the effect is that it is open for employers to simply disregard the professional opinion of a medical practitioner and instead make their own unqualified medical diagnoses, or form their own views about circumstances in which medical conditions may or may not be contraindications to a vaccine. Sapphire did not act in accordance with the medical advice that was provided by Ms Kimber, nor did it obtain any medical advice to counter what was provided by Dr Mackay. The result of the Majority Decision in part is that it undermines the validity and reliability of medical advice received from a medical practitioner.
 It is also relevant to highlight that Professor Wakefield confirmed that patients should follow the advice of their medical practitioner, which is exactly what Ms Kimber did. She was advised by Dr Mackay that she had a medical contraindication to the flu shot and should not have the flu shot. She prudently and appropriately followed his advice.
 The Commissioner was critical of the lack of evidence as to the basis for Dr Mackay’s professional opinion that Ms Kimber had a medical contraindication. With respect, it is not for the Commission to decide whether a medical practitioner has a reasonable basis for forming a medical opinion, particularly where was no suggestion that the letters from Dr Mackay or the IVMC form were either a sham or fraudulent. There was no evidence to suggest that Dr Mackay was not fit or qualified to arrive at the opinion he reached. The Commissioner erred in deciding to reject the IVMC form.
 Further, the Commissioner erred in finding that Ms Kimber was required to establish that the Condition (ie the medical condition she said she suffered after the 2016 flu shot) was caused by the 2016 flu shot. Again, all that was required of Ms Kimber to be exempt from the June PHO was a properly completed IVMC form. In any event, Dr Mackay provided a clear and unequivocal medical opinion that her allergic reaction was a reaction to the vaccine in the second letter when he said:
“The patient suffered a severe allergic reaction to the influenza vaccine 4 years ago. This resulted in severe facial and neck swelling with a wide spread erythematous over her face, chest and arms. This rash lasted 10 months and required oral prednisolone to resolve it. Jennifer has supplied photos of the rash which I have attached as supporting evidence.
In my opinion the history as stated is consistent with the above, and therefore is a medical contraindication to having the influenza vaccine.”
 The Majority Decision is critical of Ms Kimber because of what she did not do, in that she did not take time off work in 2016 when the Condition commenced, did not inform Sapphire at that time that she had had an adverse reaction to the flu shot, and did not provide evidence that she sought medical treatment at that time. With respect, this criticism misses the point. There was no requirement for her to do any of these things because the flu shot was not mandatory at the time, and whether she had the flu shot was not relevant to her ongoing employment. All Ms Kimber had to do was to decline to have the flu shot, which is what she did, and there was no issue taken by Sapphire in this regard.
 Further, Ms Kimber’s opinion of whether she had a medical contraindication is, on one view, completely irrelevant. It was for a medical practitioner to form an opinion as to whether she had a medical contraindication, which is what Dr Mackay had done.
 The Majority Decision also expressed criticism of Dr Mackay. At paragraph 14 the inference is drawn that “the entire basis for Dr Mackay’s assertion that Ms Kimber had previously suffered an adverse reaction to the influenza vaccination was what Ms Kimber had told him”. With respect, this inference is properly able to be drawn. There was photographic evidence of the Condition which Dr Mackay had before him. There is no basis to conclude that he did not have access to her medical records, given medical records are normally able to be accessed by all doctors who practise in a particular medical centre. If any inference can be drawn, it is that she did attend a medical practitioner at the time because she was treated with a prescription-only medication, being prednisolone. Dr Mackay was not required to justify his medical opinion in either the IVMC form or the first and second letters, and so this criticism of him is unfounded and inappropriate.
 Finally, in my view it is extremely unlikely that any medical practitioner would certify that a patient had a medical contraindication by completing an IVMC form and providing the letters if they did not genuinely believe that the patient actually had a medical contraindication, as doing so would be fraudulent and would jeopardise the practitioner’s ability to practise medicine.
 The Majority Decision is critical of the contents of Ms Kimber’s letter dated 12 May 2020, which is extracted in part at paragraph 16 of the Majority Decision. I consider that Ms Kimber is correct in saying that the flu shot is not completely safe for everyone. So much is abundantly clear by the undeniable fact that there are medical contraindications to the flu shot, as there is with most medications. I disagree with the Majority Decision that the letter demonstrates that Ms Kimber “held a broader anti-vaccination position”. It is not in dispute that Ms Kimber did have the flu shot prior to the Condition. It is also not in dispute that an appropriately qualified medical practitioner advised her that she did in fact have a medical contraindication and that she should not have the flu shot. To label her an anti-vaxxer in these circumstances is highly inappropriate.
 Both the Decision and the Majority Decision relied heavily on the evidence of Professor Wakefield, however his evidence was by no means definitive. He considered that the Condition would have been an uncommon reaction and ‘more likely than not’ unrelated to the flu shot, but he did not rule it out as an option. He also gave evidence in cross examination that it is appropriate that a patient follow the advice of their medical practitioner, which is what Ms Kimber did.
 In summary, it was not reasonably open on the facts for the Commissioner to find that Ms Kimber was unable to perform the inherent requirements of her role, because she was able to enter her workplace as a result of her valid exemption from the June PHO. In doing so, the Commissioner made a significant error of fact by finding that Sapphire “acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot, in reliance on the Media Release.” 19
 The Majority Decision also raises the question of Ms Kimber’s willingness or otherwise to have the COVID vaccine, and this is relied on as a reason for refusing to grant permission to appeal. During the appeal hearing, the Vice President asked Ms Kimber whether she would comply with a requirement to have the COVID vaccine. Ms Kimber’s response was that she would consider the terms of any PHO that might be made (given at the time no such PHO had been made) and obtain the advice of her medical practitioner. It is hard to see what criticism could reasonably be levelled at Ms Kimber for this response, but the Majority Decision states that this response “supports the inference that she holds a general anti-vaccination position”.
 Finally, the last paragraph of the Majority Decision cannot pass without comment. To suggest that Ms Kimber had a “spurious objection to a lawful workplace vaccination requirement” in circumstances where she had been advised by her medical practitioner that she did indeed have a medical contraindication to the flu shot, advised she should not have a flu shot, and had provided a properly completed IVMC form, is a terrible mischaracterisation of her and the circumstances in this case.
PART 2 –VACCINE REQUIREMENTS IN RELATION TO COVID
 The Majority Decision raises the issue of COVID vaccinations and their requirement in workplaces. It forms part of the reasoning for refusing to grant permission to appeal and accordingly provides the opportunity in this decision to deal with this important issue.
 There can be absolutely no doubt that vaccines are a highly effective tool for protection against a variety of diseases. The focus of this decision, however, is not the pros and cons of vaccination. It is about the extent to which mandatory COVID vaccinations can be justified, as to do so impinges on other laws, liberties and rights that exist in Australia.
Vaccinations should be voluntary
 It has been widely accepted that for the overwhelming majority of Australians, vaccination should be voluntary.
 The commonly accepted definition of voluntary includes acting of one’s own free will, optional or non-compulsory. This is the opposite of the definition of mandatory, which is something that is compulsory, obligatory or required. Something that is mandatory must be done.
 The stated position of the Australian Government is that the vaccine is voluntary. On 21 July 2021, the Prime Minister in a media conference stated that “people make their own decisions about their own health and their own bodies. That’s why we don’t have mandatory vaccination in relation to the general population”.
 On 13 August 2021, the Australian Council of Trade Unions (ACTU) and the Business Council of Australia (BCA) issued a joint statement on mandatory COVID vaccinations in which it acknowledged the Australian Government’s COVID vaccination policy that the vaccine is voluntary, and confirmed the views of the BCA and ACTU that “for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination”. (emphasis added)
 The Fair Work Ombudsman has publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”. (emphasis added)
 Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”. (emphasis added)
 Despite this, many employers are declaring they will mandate COVID vaccines for their workers, and PHOs are being made by State Governments, in circumstances where there is no justification for doing so.
Mandatory vaccination cannot be justified
 COVID vaccinations, in accordance with the Australian Government’s policy, must be freely available and voluntary for all Australians.
 Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia. While there are numerous reasons for this, this decision will focus on:
- a) the requirement for freely given and informed consent for medical procedures;
- b) denying an unvaccinated person the ability work on health and safety grounds, whether at the initiation of an employer or as part of a PHO; and
- c) the requirements to comply with disability discrimination laws.
 There is of course a degree of overlap with the reasoning applicable to the inability to justify mandatory vaccination whether at the initiative of employers or as part of a PHO, however I have not repeated the reasons under each separate heading.
 Before turning to a consideration of these reasons, it is important to set the context with some information that is publicly available and should be uncontroversial:
- Unlike many other vaccinations such as those used to stop the spread of tetanus, yellow fever and smallpox, COVID vaccinations are not designed to stop COVID. They are designed to reduce the symptoms of the virus, however a fully vaccinated person can contract and transmit COVID.
- The science is clear in that COVID is less serious for those who are young and otherwise healthy compared to those who are elderly and/or who have co-morbidities. In other words, the risk of COVID is far greater for those who are elderly or have co-morbidities. Around 87% of those who have died with COVID in Australia are over 80 years old and had other pre-existing illnesses listed on their death certificates.
- The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
- The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial 20.
- There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
- The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.
Consent is required for participation in clinical trials
 Consent is required for all participation in a clinical trial. Consent is necessary because people have a fundamental right to bodily integrity, that being autonomy and self-determination over their own body without unconsented physical intrusion. Voluntary consent for any medical treatment has been a fundamental part of the laws of Australia and internationally for decades.
It is legally, ethically and morally wrong to coerce a person to participate in a clinical trial.
 Coercion is not consent. Coercion is the practice of persuading someone to do something using force or threats. Some have suggested that there is no coercion in threatening a person with dismissal and withdrawing their ability to participate in society if that person does not have the COVID vaccine. However, nothing could be further from the truth.
 All COVID vaccines in Australia are only provisionally approved, and as such remain part of a clinical trial 21. This is not part of a conspiracy theory. It is a fact easily verifiable from the website of the TGA, Australia’s regulatory authority responsible for assessing and registering/approving all COVID vaccines before they can be used in Australia.
 The requirement for consent in this context is not new and should never be controversial. The Nuremburg Code (the Code), formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII, is one of the most important documents in the history of the ethics of medical research.
 The first principle of the Code is that “The voluntary consent of the human subject is absolutely essential”. The Code goes on to say that “This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision….”
 Informed and freely given consent is at the heart of the Code and is rightly viewed as a protection of a person’s human rights.
 The United Nations, including through the Universal Declaration of Human Rights, first proclaimed in 1948, has long recognised the right to bodily integrity.
 The Declaration of Helsinki (the Declaration), made in 1964 by the World Medical Association, is also a statement of ethical principles for medical research involving human subjects. Under the heading of “Informed Consent”, the Declaration starts with the acknowledgement that “Participation by individuals capable of giving informed consent as subjects in medical research must be voluntary”.
 Australia is a party to the seven core international human rights treaties, including the International Covenant on Civil and Political Rights.
 The Australian Human Right Commission Act 1986 (Cth) gives effect to Australia’s obligations under the International Covenant on Civil and Political Rights, which provides in Article 7 that “…no one shall be subjected without his free consent to medical or scientific experimentation”.
 In 1984, the American Association for the International Commission of Jurists (AAICJ) held an international colloquium in Siracusa, Italy, which was co-sponsored by the International Commission of Jurists. The focus of the colloquium was the limitation and derogation provisions of the International Covenant on Civil and Political Rights, and the outcome is a document that is referred to as the Siracusa Principles 22.
 The introductory note to the Siracusa Principles commences in the following terms:
“It has long been observed by the American Association for the International Commission of Jurists (AAICJ) that one of the main instruments employed by governments to repress and deny the fundamental rights and freedoms of peoples has been the illegal and unwarranted Declaration of Martial Law or a State of Emergency. Very often these measures are taken under the pretext of the existence of a “public emergency which threatens the life of a nation” or “threats to national security”.
The abuse of applicable provisions allowing governments to limit or derogate from certain rights contained in the International Covenant on Civil and Political Rights has resulted in the need for a closer examination of the conditions and grounds for permissible limitations and derogations in order to achieve an effective implementation of the rule of law. The United Nations General Assembly has frequently emphasised the importance of a uniform interpretation of limitations on rights enunciated in the Covenant.”
 Paragraph 58 of the Siracusa Principles under the heading of Non-Derogable Rights provides:
No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not be be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation. (emphasis added)
 This is consistent with Article 4 of the International Covenant on Civil and Political Rights.
 Australia’s National Statement on Ethical Conduct in Human Research 23 confirms that consent is a fundamental requirement for participation in any clinical trial, and that “no person should be subject to coercion or pressure in deciding whether to participate” in a clinical trial. Further, the Australian Government’s Consumer Guide to Clinical Trials24 also confirms that participation in a clinical trial is voluntary, and states “it is important that you never feel forced to take part in a trial”.
 Freely given consent to any medical treatment, particularly in the context of a clinical trial, is not optional. Coercion is completely incompatible with consent, and denying a person the ability to work and participate in society if the person does not have a COVID vaccine will unquestionably breach this fundamental and internationally recognised human right.
Can COVID vaccinations be mandated by employers on health and safety grounds?
 The short answer to this question, in almost every case, is no.
 The fundamental starting point here is the answer to the question – what is the risk? All risk controls are (or should be) designed to address an identified risk. The risk needs to be a real risk and not a perceived risk. The real risk for employers is that a person who has COVID will spread COVID to others within the workplace.
 The risk of spreading COVID only arises with a person who has COVID. This should be apparent and obvious. There is no risk associated with a person who is unvaccinated and does not have COVID, notwithstanding the misleading statements by politicians that the unvaccinated are a significant threat to the vaccinated, supposedly justifying “locking out the unvaccinated from society” and denying them the ability to work.
 The primary duty of care for employers under health and safety law requires the employer to ensure health and safety so far as is reasonably practicable by eliminating risks to health and safety, and if this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.
 There is nothing controversial in stating that vaccines do not eliminate the risk of COVID, given that those who are vaccinated can catch and transmit COVID. By way of one example, a report issued by the Centres for Disease Control and Prevention (CDC) in the United States on 6 August 2021 25 looked at an outbreak of COVID in Massachusetts during July 2021. Of the 469 COVID cases identified, 74% were fully vaccinated. Of this group, 79% were symptomatic. In total, 5 people required hospitalisation and of these, 4 were fully vaccinated. This is not an anomaly – the data from many countries and other parts of the United States provides a similar picture, although obtaining similar data from the United States will now be problematic given the decision by the CDC on 1 May 2021 to cease monitoring and recording breakthrough case information unless the person is hospitalised or dies. What is clear, however, is that the vaccine is not an effective control measure to deal with transmission of COVID by itself.
 In order for an employer to meet its duties under health and safety laws, it will need to minimise the risk of exposure to COVID in the workplace, which will require employers to apply all reasonably practicable COVID control measures.
 As noted earlier, Safe Work Australia, in relation to whether employers need to include mandatory vaccination as a control measure to comply with WHS duties, has advised that “it is unlikely that a requirement for workers to be vaccinated will be ‘reasonably practicable’”.
 The Safe Work Australia website also includes the following advice to employers:
“Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.
……… However, while this is a decision you will need to make taking into account your workplace, most employers will not need to make vaccination mandatory to comply with the model WHS laws.
A safe and effective vaccine is only one part of keeping the Australian community safe and healthy. To meet your duties under the model WHS laws and minimise the risk of exposure to COVID-19 in your workplace, you must continue to apply all reasonably practicable COVID-19 control measures including physical distancing, good hygiene and regular cleaning and maintenance and ensuring your workers do not attend work if they are unwell.” 26
 It is very clear that a range of control measures will need to be implemented by employers to meet their health and safety obligations. In addition to the measures noted above, controls (based on a proper assessment of the risk in a particular workplace) might include appropriate air ventilation and filters, personal protective equipment including masks, staggered meal breaks, increased use of outdoor areas etc. The simple act of requiring people to stay at home if unwell and symptomatic will no doubt have a significant impact on the spread of all coronaviruses (whether a cold, flu or COVID).
 Critically, there is another alternative to vaccines to assist employers in meeting their WHS obligations, that being testing. Given there is no doubt that those who are fully vaccinated can catch and transmit the virus, testing (whether rapid antigen or otherwise) will provide employers with a level of comfort that a worker does not have COVID and therefore will not transmit COVID to others (that being the risk that is to be managed) in the workplace.
 Testing is now widely used around the world as a risk control for the spread of COVID. There is absolutely no reason why it cannot be widely used in Australia.
 Testing is arguably a better control measure compared to vaccines in meeting health and safety obligations.
 Vaccines have not been broadly mandated on health and safety grounds in most countries. For example, despite what has been reported in Australia, most of the European Union (EU) and the Scandinavian countries have not actually mandated vaccinations for travel purposes. EU citizens can travel freely now if any one of three options are satisfied, that being a vaccine, a negative COVID test, or evidence of having recently recovered from COVID (in recognition of the natural immunity that comes with having recovered from having COVID). The EU have provided these options so that people who are not vaccinated will not be discriminated against when travelling across the EU. In other words, all those who are not vaccinated can get tested for COVID and travel freely 27.
 In a scientific brief prepared by the World Health Organisation (WHO) dated 10 May 2021 on COVID natural immunity, the WHO found that “within four weeks following infection, 90-99% of individuals infected with [COVID] virus develop detectable neutralising antibodies….”. Further, “available scientific data suggests that in most people immune responses remain robust and protective against reinfection for at least 6-8 months after infection (the longest follow up with strong scientific evidence is currently approximately 8 months)”.
 The science is clear that those who have recovered from COVID have at least the same level of protection from COVID as a person who has been vaccinated. There can be absolutely no legitimate basis, then, for mandating vaccination for this group of people.
 In short, there is no justifiable basis for employers to mandate COVID vaccinations to meet their health and safety obligations when other options are available to appropriately manage the risk.
 Finally, it should be clearly understood that employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.
Use of Public Health Orders to mandate vaccinations
 I will focus on the law as it applies in NSW given that is the jurisdiction applicable to Ms Kimber.
 The Public Health Act 2010 (NSW) (PH Act) provides broad powers with respect to protecting the health and safety of the public.
 Section 7 of the PH Act, used to make PHO’s in NSW, is in the following terms:
- This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.
- In those circumstances, the Minister—
- may take such action, and
- may by order give such directions,
as the Minister considers necessary to deal with the risk and its possible consequences.
- Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary—
- to reduce or remove any risk to public health in the area, and
- to segregate or isolate inhabitants of the area, and
- to prevent, or conditionally permit, access to the area.
 PHOs have been made in NSW mandating COVID vaccinations for anyone who lives in a local government area of concern and wishes to work, and those who are airport workers, aged care workers or health care workers among others.
 In making blanket rules in PHOs which deny people their fundamental right to work or operate to “lock them out of society”, and which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise. In other words, decisions taken to restrict or remove basic liberties must be proportionate and necessary to manage the risk and must be the minimum necessary to achieve the public health aims.
 The Australian Health Protection Principal Committee (AHPPC) is Australia’s key decision making body for heath emergencies and public health emergency management. It has issued a number of public statements on minimising the potential risk of COVID 28, the purpose of which is to provide advice on the appropriate management of COVID in certain industries or occupation groups.
 A statement on COVID vaccination requirements for aged care workers it issued on 4 June 2021 29 commences with the following:
“AHPPC does not recommend compulsory COVID-19 vaccines for aged care workers” (emphasis added)
 Notwithstanding this advice, a PHO has been made mandating COVID vaccinations for aged care workers.
 The AHPPC statement on minimising the potential risk of COVID transmission in schools, made on 26 July 2021, does not recommend compulsory COVID vaccines for school staff either.
 Notwithstanding there is no advice from the AHPPC to mandate vaccinations for school staff, the NSW Government has also made a PHO requiring that all workers in NSW schools be vaccinated, which extends to volunteers. Those without a COVID vaccine will not be able perform any work at a school after 8 November 2021 (unless a medical exemption applies). On the face of it, this will prevent a parent from attending their child’s school to assist with reading, or prevent a volunteer from occasionally helping out with maintenance or gardening at a school. What risk does a person pose that needs to be controlled by vaccination who mows the lawns of a school on a weekend? Of course, there is no risk that requires a vaccination.
 The vaccine mandate for NSW schools is strongly opposed by many, with over 65,000 people recently signing a petition organised by teachers and school staff to record their opposition for such a mandate.
 There have now been many studies around the world that have looked at the rate of transmission of COVID in schools. One of the largest studies on COVID transmission in schools in the United States, undertaken by Duke Clinical Research Institute, looked at more than 90,000 students and teachers in North Carolina over a 9 week period 30. Given the rate of transmission in the community at that time, it was expected that there would be around 900 cases in the schools, however when researchers conducted contact tracing to identify school-related transmissions, they identified only 32 cases. This is one of many publicly available studies that have found similar results, that being that transmission in schools is lower than community transmission in the community in which the school is located.
 Teachers and school staff more generally continue to work in the EU without a COVID vaccination and can instead participate in regular testing. What, then, is the basis for mandating the vaccine for all school staff? There is no justification for doing so when other measures are available and are widely in use across the world. Such a mandate will not be the ‘minimum necessary’ to achieve public health aims.
 Further, the necessity and reasonableness of the denial or restriction on basic liberties must be weighed against a variety of other serious flow on consequences such as the significant increase in mental health issues and domestic violence, and against the serious economic damage that has been caused and will continue to be caused by the existing measures found in the PHO’s.
 The Great Barrington Declaration (GB Declaration) 31, a statement by infectious disease epidemiologists and public health scientists, recommended an approach called Focused Protection. The GB Declaration includes the following:
“Current lockdown policies are producing devastating effects on short and long-term public health. The results (to name a few) include lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings and deteriorating mental health – leading to greater excess mortality in years to come, with the working class and younger members of society carrying the heaviest burden. Keeping students out of school is a grave injustice.
….We know that vulnerability to death from COVID-19 is more than a thousand-fold higher in the old and infirm than the young. Indeed, for children, COVID-19 is less dangerous than many other harms, including influenza.
As immunity builds in the population, the risk of infection to all – including the vulnerable – falls. We know that all populations will eventually reach herd immunity – i.e. the point at which the rate of new infections is stable – and that this can be assisted by (but is not dependent upon) a vaccine. Our goal should therefore be to minimize mortality and social harm until we reach herd immunity.
The most compassionate approach that balances the risks and benefits of reaching herd immunity, is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while better protecting those who are at highest risk. We call this Focused Protection.
Adopting measures to protect the vulnerable should be the central aim of public health responses to COVID-19. By way of example, nursing homes should use staff with acquired immunity and perform frequent testing of other staff and all visitors. Staff rotation should be minimized. Retired people living at home should have groceries and other essentials delivered to their home. When possible, they should meet family members outside rather than inside. A comprehensive and detailed list of measures, including approaches to multi-generational households, can be implemented, and is well within the scope and capability of public health professionals.
Those who are not vulnerable should immediately be allowed to resume life as normal. Simple hygiene measures, such as hand washing and staying home when sick should be practiced by everyone to reduce the herd immunity threshold. Schools and universities should be open for in-person teaching. Extracurricular activities, such as sports, should be resumed. Young low-risk adults should work normally, rather than from home. Restaurants and other businesses should open. Arts, music, sport and other cultural activities should resume. People who are more at risk may participate if they wish, while society as a whole enjoys the protection conferred upon the vulnerable by those who have built up herd immunity.” (emphasis added)
 The authors and first signatories to the GB Declaration were Dr. Martin Kulldorff, professor of medicine at Harvard University, a biostatistician, and epidemiologist with expertise in detecting and monitoring infectious disease outbreaks and vaccine safety evaluations, Dr. Sunetra Gupta, professor at Oxford University, an epidemiologist with expertise in immunology, vaccine development, and mathematical modelling of infectious diseases, and Dr. Jay Bhattacharya, professor at Stanford University Medical School, a physician, epidemiologist, health economist, and public health policy expert focusing on infectious diseases and vulnerable populations.
 The qualifications held by the list of 44 co-signatories to the GB Declaration is impressive 32, and since the GB Declaration was first made, over 860,000 scientists and health professionals have signed the GB Declaration.
 It should be abundantly clear that there are other, far less restrictive and less intrusive ways in which we can ensure public health and appropriately address the risk of COVID without resorting to the extreme measures currently in place.
 In an article published by Monash University’s Castan Centre for Human Rights Law, the author, Professor the Hon Kevin Bell AM QC 33, considered the COVID guidance issued by the United Nations Office of the High Commissioner for Human Rights for introducing COVID response measures consistent with human rights. He provided the following summary:
- “Governments have to take difficult decisions in response to COVID-19. International law allows emergency measures in response to significant threats – but measures that restrict human rights should be proportionate to the evaluated risk, necessary and applied in a non-discriminatory way. This means having a specific focus and duration, and taking the least intrusive approach possible to protect public health.
- With regard to COVID-19, emergency powers must only be used for legitimate public health goals, not used as a basis to quash dissent, silence the work of human rights defenders or journalists, deny other human rights or take any other steps that are not strictly necessary to address the health situation.
- Governments should inform the affected population of what the emergency measures are, where they apply and for how long they are intended to remain in effect, and should update this information regularly and make it widely available.
- As soon as feasible, it will be important for Governments to ensure a return to life as normal and not use emergency powers to indefinitely regulate day-to-day life, recognising that the response must match the needs of different phases of the crisis”.
 In an article recently published by two Senior Lecturers from the Faculty of Law at Monash University entitled “Wars, Pandemics and Emergencies What can history tell us about executive power and surveillance in times of Crisis?” 34, the authors concluded that “in an emergency, we must be particularly vigilant to protect civil liberties and human rights against incursions that are more than the absolute minimum necessary to combat the crisis…..”
 The Australian Financial Review, in an article published on 8 September 2021 entitled “The 17,000 flu linked deaths no one is talking about” 35, notes that modelling by the Doherty Institute says about 600 people die each year of influenza and there are about 200,000 cases annually, but in 2019, influenza and pneumonia were the underlying cause of 4124 deaths in Australia. While the vast majority of these deaths are people over the age of 80, there is an annual average of 5 infants under the age of one, 13 children aged 1-14, and 48 people aged 25-44 that died of flu or pneumonia in 2019.
 The article goes on to note that about 17,385 people died with flu and pneumonia in 2019, where flu and pneumonia was either the underlying cause or an associate cause of death, according to the Australian Bureau of Statistics. In Sweden, doctors in one county analysed all their COVID deaths and found that COVID was the chief underlying cause of death in only 15% of cases. In 70% of cases COVID was an associated cause of death, and in the remaining 15% of cases it was irrelevant.
 To put all of this further in perspective, Australia is ranked 118th in the world for COVID deaths. Broadly speaking, Australia has had around 56,000 cases of COVID with around 1,000 deaths. Of the deaths in Australia, only 1% were under the age of 50. In the same time period as the 1,000 COVID deaths, around 200,000 Australians have died for other reasons, including around 70,000 from cancer, 19,000 from heart disease, 17,000 from respiratory illnesses (not COVID), 13,000 from strokes and 4,500 from suicide.
 Each and every single day, around 8,000 children die around the world from starvation, which of course is completely preventable.
 As at 2019, there were 4,344 paedophiles in NSW on the Child Protection Register. There are no blanket rules which prevent these people from working or participating in society, nor do they have to declare that they are paedophiles before entering a business or a school.
 The initial predictions of a 60% infection rate from COVID with a 1% death rate thankfully did not materialise. It is now time to ask whether the ‘cure’ is proportionate to the risk, and the answer should be a resounding no. When deciding now what is actually reasonable, necessary and proportionate in terms of any response to COVID, governments and employers should actively avoid the hysteria and fear-mongering that is now so prevalent in the public discourse, and which will cloud rational, fact based decision making.
 In summary, the powers to make PHOs cannot lawfully be used in a way that is punitive, and human rights are not suspended during states of emergency or disaster. The current PHOs have moved well past the minimum necessary to achieve public health aims, and into the realm of depravation. It is not proportionate, reasonable or necessary to “lock out” those who are unvaccinated and remove their ability to work or otherwise contribute to society. PHOs, by their nature, are designed and intended for short term use in the event of an emergency or crisis. They are not intended to be an ongoing vehicle to enforce significant depravations of our civil liberties. The COVID pandemic started over 20 months ago. The time is fast approaching where the reliance on PHO’s will no longer be justified on public health grounds, particularly where there is such a significant intrusion on individual liberties.
 It is highly likely that the dismissal of an employee who fails to have the COVID vaccine will breach the Disability Discrimination Act 1992 (DD Act). The DD Act makes it unlawful to discriminate against a person, including in employment and in accessing services, because of a disability.
 The definition of disability in s.4 of the DD Act includes “the presence in the body of organisms capable of causing disease or illness”. It includes a disability that presently exists, or previously existed but no longer exists, or may exist in the future, or is imputed to a person.
 The Explanatory Memorandum to the DD Act discusses the definition of disability as being:
“…intended to include physical, sensory, intellectual and psychiatric impairment, mental illness or disorder, and provisions relating to the presence in the body of organisms capable of causing disease. These provisions have broad application, for example, they are intended to ensure that persons with HIV/AIDS come within the definition of disability for the purposes of this Bill.”
 As a recent article has highlighted, 36 gay men were the prime target for protection under this part of the definition of disability because of a perception they were at a greater risk from HIV. In this situation the DD Act works to prohibit all types of discrimination not only against gay men but everyone who may in future be infected with HIV. The author notes that “for the same legal reason that a publican cannot say ‘gay men are not allowed into my pub because they might be infected with HIV’, a publican also cannot say ‘unvaccinated people are not allowed into my pub because they might be infected with measles. Nor is it valid for a State or Territory to pass a law to that effect – the Act binds them too.”
 Section 48 of the DD Act provides an exemption for discrimination that is necessary to protect public health where a person’s disability is an infectious disease, however being unvaccinated is not an infectious disease. What logically follows is that an employer who dismisses a person because they do not have a COVID vaccine will breach the DD Act.
 Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. 37 A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.
 The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.
 Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
 All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.
 Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.
 Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.