On December 24, Senior Constable Ben Falconer was given an earnestly hoped-for Christmas present. Following a hearing the previous day, Justice Jeremy Allanson of the Supreme Court of Western Australia granted an injunction against Police Commissioner Chris Dawson, preventing him from dismissing Senior Constable Falconer for failing to comply with the Commissioner’s direction to be vaccinated. The injunction will remain in place until the matter is determined following trial.
In the hearing, counsel for Senior Constable Falconer, Shane Prince SC, stated that there was no evidence those who had not received the jab posed a threat to anybody and that ‘people who are unvaccinated are not diseased’. He added that power held by authorities needed to be exercised reasonably, and the dismissal of Falconer amounted to punishment for dissent. Mr Prince also argued that it was an abrogation of the common law right to bodily integrity.
In his judgment granting the injunction, Justice Allanson said that by doing so, the court was not predicting the result of any trial. Quoting specifically from the judgement:
‘The Commissioner relies entirely on Section 5 of the Police Act by which he has “general control and management of the Police Force”. There is, in my opinion, an arguable question whether and to what extent that general control and management is limited, in this case, by the right to bodily integrity […] On that limited basis there is, in my opinion, an arguable case that the direction is not authorised by the Police Act.’
Thus, Justice Allanson concluded, the ‘balance of justice required restraint’ adding that the trial needed to be held as soon as possible, preferably in the first quarter of next year.
This conclusion does not say anything about the lawfulness of the direction made by the Chief Health Officer, which is also being challenged by Senior Constable Falconer. Unless set aside, that direction remains in place and Falconer, along with others in his position, will not be able to attend or remain at police premises. That notwithstanding, the outcome of this judgement is significant.
Following the granting of the injunction, Senior Constable Falconer’s solicitors made representations to the Police Commissioner on behalf of other unvaccinated police officers, requesting that he undertake not to dismiss any of those officers until after the determination of the case. The Police Commissioner agreed to give these undertakings, thus the jobs of over 30 officers will be preserved well into 2022, when until now most of those officers were facing disciplinary hearings and dismissal over Christmastime. A directions hearing has been set down for 12 January 2022, which will not affect the injunction and undertakings.
What is more, this decision may have implications for other industries, since it emerged during the hearing that all WA public sector mandatory vaccine directions are the same as that for the WA Police Force.
Such a positive outcome would not have been possible without the generous support of so many donors, which will be even more critical as the matter heads to trial. If you have not yet donated to support Ben Falconer’s action and wish to do so, once again here is the link to the 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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