Senior Constable Ben Falconer and Police staff member Les Finlay lost their appeals in the WA Court of Appeal against the WA Commissioner of Police’s directive that they be vaccinated against Covid as a condition of their employment.
The bench, in a unanimous decision delivered on April 30, decided that, while the powers the Commissioner has under the Police Act are coercive and do infringe on the right to bodily integrity, they nevertheless allow such directions to be made.
Relevantly, in reaching this conclusion, the court reasoned that whether a mandatory vaccination order infringes or impairs the right to bodily integrity, the focus must be on the relevant measure’s impact on the person’s consent, which requires close consideration of the legal and practical operation of the measure.
Quoting directly from the judgment:
A person may have a real or genuine choice as to whether to vaccinate even though his or her freedom of choice is curtailed.
By contrast the Employer Direction unequivocally compelled Police Force members or employees to be vaccinated. In the present appeals the appellants focused on the requirement to be vaccinated or else face an adverse consequence in the form of disciplinary action.
The threat of disciplinary action is undoubtedly coercive in effect as it may be expected to have a tendency to compel a person to do something that he or she might not otherwise be willing to undertake.
In our view, in the prevailing circumstances in which the Employer Direction was issued, the legal and practical operation of the Employer Direction in its application to a police officer in the position of Mr Falconer went beyond mere pressure or an element of coercion. In its legal and practical operation the Employer Direction precluded the exercise by the police officer of a real or genuine choice as to whether to become vaccinated.
We are satisfied that […] a police officer in the position of Mr Falconer (was deprived) of a real or genuine choice as to whether to vaccinate. The Employer Direction operates in effect by way of compulsion in a manner that is incompatible with the right to bodily integrity.
Having found that there was indeed coercion and an infringement of the right to bodily integrity, the Court nevertheless found that the Police Act allowed the Commissioner to do so in the manner provided for by the Employer Direction. This reasoning is based on the inherent nature of a police force as a ‘hierarchical and disciplined’ body. Quoting again from the judgment:
Necessarily, viewed objectively in the context of the important law enforcement duties and functions undertaken by the Police Force, submission to the Commissioner’s control and management will entail a degree of interference with personal rights, freedoms and immunities that will not otherwise arise and to which persons other than sworn police officers will not be subject.
Moreover, the Court held that the content of the power under section 5 of the Police Act (the section relied upon by the Commissioner in making the mandatory vaccination orders) is ambulatory. In other words, it can change over time and depending on the circumstances.
The subject matters to which the power extends vary and alter from time to time as the Commissioner must deal with the day-to-day exigencies of controlling and managing the Police Force so as to preserve peace and order throughout Western Australia. The power enables the Commissioner to deal with general or specific emergency situations as well as the changing demands and community standards of law enforcement over time.
In the Court’s view, the emergency declaration in relation to Covid was such a situation.
In relation to Les Finlay, the Court reasoned with sophistry that he did have a choice.
The choice might be, as put above, a choice between either remaining in one’s current employment and getting vaccinated or resigning from that employment and remaining unvaccinated. But it is nevertheless an available choice – and one which, in our view, represents a real or genuine choice.
In the view of this correspondent, the WA Court of Appeal has engaged in a similar kind of exercise seen in the High Court judgment on Peter Ridd’s dismissal from James Cook University, where five judges waxed lyrical with empty virtue-signalling platitudes about academic freedom before making sure his ability to speak out against poor research and keep his job lost out to university code of conduct rules about confidentiality.
In Falconer and Finlay’s case, yes, we agree your rights were curtailed but, sorry, you lose because the rules of your job require unquestioning discipline.
As Falconer said immediately after the judgment, ‘Sadly our legislation is riddled with such dormant threats to our individual liberties.’
Falconer, along with around 20 others, now expects rapid dismissal from the force. We are left to wonder if the current Commissioner will wish to make an example of these courageous officers.
However, presently I would have thought he should have other priorities. A record 1,000 police officers have resigned from the WA Police over the last two years. That covers the tenure of the Commissioner and his predecessor (the now WA Governor) Chris Dawson, who made the mandatory vaccination orders. One can guess in what direction crime rates are going as a result.
As for challenges to mandatory vaccination orders, where to from here?
A very interesting decision was handed down by the Victorian Supreme Court last week on the nature of mandatory vaccination directions for Covid for the Victoria Police. There, Justice Michael McDonald said a clause in the Victoria Police Manual set out ‘requirements’ as opposed to ‘directions’ for all employees to receive a dose of the Covid vaccination.
Therefore, he said non-compliance with the requirements did not render an employee liable to disciplinary action.
Watch this space.
