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Senior Constable seeks urgent injunction on vaccine mandate

6 December 2021

9:00 AM

6 December 2021

9:00 AM

In Western Australia, like other jurisdictions, police officers were required to have their first Covid vaccine dose by December 1 or be stood down.

Last week, lawyers for Senior Constable Ben Falconer applied for a judicial review of the mandatory vaccination direction in the WA Supreme Court. It came ahead of the deadline, arguing that mandatory vaccination is ‘disproportionate or not rationally connected to its stated aim’.

Despite assurances given by the WA Police Union that the threat of immediate loss of pay had been dropped for officers still not vaccinated by the December 1 deadline, the Commissioner for Police/Vaccine Commander Chris Dawson (may as well be Commandant Harris from Police Academy) has been standing down or suspending all unvaccinated police officers and staff. He has also commenced investigations into alleged breaches of discipline for not being vaccinated.

By doing so, the Commissioner of Police has placed police officers and staff under direct threat of being sacked for not being vaccinated, which is a continuation of the pattern of bullying behaviour by Commissioner Dawson (which I wrote about in these pages back in July).

Matters will soon come to a head, and, as often is the case in legal disputes, much hinges on the drafting of the direction and whether the action taken by Dawson goes beyond what is stipulated in the direction.

Under Section 4 of the WA Police Force Worker (Restrictions On Access) Directions, police officers and staff have not been directed to be vaccinated. Rather, the directions only prohibit police officers and staff from attending a WA Police facility without being vaccinated.

As outlined on the GoFundMe page to support the legal challenge, the Commissioner of Police was notified that unvaccinated police officers and staff were willing to continue to work, however, the Commissioner refused to grant this request and continued with disciplinary action. Dawson took it upon himself to issue his own direction mandating vaccination, which goes beyond the provisions made in the direction.

The legal grounds for Senior Constable Falconer’s urgent application are that under the Public Health Act 2016 (WA) it was solely a matter for the Chief Health Officer, and not the Commissioner of Police, to decide whether to mandate that all police officers and staff must be vaccinated. By issuing the employer direction to that effect, the Commissioner of Police, acting without any medical advice, usurped the Chief Health Officer’s authority, rendering the disciplinary action being taken against unvaccinated police officers and staff unlawful.

In the humble opinion of this correspondent, it is unclear what effect, if any, the Fair Work Commission’s declaration that BHP’s mandatory vaccination policy was unlawful would have on these proceedings in WA, given that was a challenge to a direction made by a private company.

When ruling on a challenge by the Construction Forestry Maritime Mining and Energy Union to BHP’s mandatory vaccination policy, the commission said the most telling factor against a finding that the policy was ‘unlawful’ or ‘unreasonable’ was the failure by BHP to reasonably consult with the employees.

What is clear is that Commissioner/Commander Dawson failed to consult with officers such as Senior Constable Falconer, allowing them to be lumped into the category of ‘crazy anti-vaxxers’, which, of course, is clearly not the case. In the words of WA Police Minister Paul Papalia, ‘The extent of some behaviour has been extraordinary.’ Yes, the actions of the Commissioner, and the government of which you are a minister have indeed been extraordinary – pernicious, in fact.

If Senior Constable Falconer’s action is successful, it will have significant implications pursuant to the wide-ranging mandatory vaccination policy instituted by WA Premier Mark McGowan. Other directions, such as Section 5 of the Community Care Services Worker (Restrictions On Access) Directions (No 2), have been similarly worded. Again, this direction provides that employees will only be prohibited from entering work premises if they have not been vaccinated, not stood down or sacked. This potentially means that employees who are able and wish to do so can work from home.

This correspondent understands many such requests are being made and then refused by employers.

If Spectator Australia readers wish to support Senior Constable Falconer’s action, they can do so at this GoFundMe page.

The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.

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