Court Upholds COVID-19 Vaccine Mandate for WA Police, Disciplinary Action to Follow

A medic prepares two vials of COVID-19 vaccines. Hazem Bader/AFP via Getty Images

Western Australian (WA) police will continue disciplinary action against staff and officers who refused to take the vaccine following a court win.

This decision comes after the WA Supreme Court of Appeal dismissed the appeal of Senior Constable Ben Falconer and staff member Leslie Finlay, who were appealing against a COVID-19 vaccine mandate direction.

The appellants challenged the Commissioner of Police’s employer direction from November 2021, requiring police officers and employees to take the COVID-19 vaccine.

A spokesperson for WA Police confirmed to the Epoch Times that multiple police officers and staff would now face disciplinary action.

“The Falconer and Finlay appeal against the WA Police Commissioner’s direction to be vaccinated has been dismissed,” a spokesperson for WA Police told the Epoch Times.

“The court confirmed the direction to get vaccinated, which was given to police officers and police staff, was lawful.

“Disciplinary action against 12 serving police officers and 5 police staff will now resume.”

What Were the Reasons for the Judgement?

The court considered whether the Commissioner of Police’s vaccine mandate direction infringed on the right to bodily integrity and whether the commissioner had the authority to make the employer’s direction.

The majority of the court concluded that the employer’s direction “infringed the right to bodily integrity in its application to a sworn police officer in the position of Mr. Falconer.

“However, the court held unanimously that the employer direction was valid in that the Commissioner of Police was empowered by s5 of the Police Act 1892 (WA) to make the employer direction,” according to the judgement.

In addition, the court concluded the employer’s direction “did not infringe the right to bodily integrity in its application to a police force employee in the position of Mr. Finlay.

Further, the court found that section 202 (3) of the Public Health Act did not have the effect of invalidating the employer’s direction.

The court noted in its reasons that the Commissioner of Police’s direction was made in the “extraordinary circumstances of the COVID-19 pandemic.”

“The employer direction is properly to be described as an extraordinary measure that dealt with those extraordinary circumstances,” the court noted.

In the reasoning, the court noted that the appellants’ contention of the nature and effect of the commissioner’s power under section 5 of the Police Act raised “matters of general and significant public importance” and were “reasonably arguable,” despite failing in their case on this matter.

However, the court spared Mr. Falconer and Ms. Finlay an order on costs, given the exceptional nature of the appeals.

“In our opinion, these appeals are of an exceptional nature and justify a departure from the general rule that the unsuccessful party should be ordered to pay the successful party’s costs,” the judgement states.

“The appropriate order in each of the appeals is that there be no order as to costs.”

Following the result, Mr. Falconer took to social media to share his thoughts. Mr. Falconer said “We the people” need to reflect on “where this leaves us.”

“The purpose of this litigation was to discover the rights WA employees have over their own bodies in the workplace.

“The government and judiciary have formed a perspective on that.”

Result Differed From Victoria

The news comes after a senior constable in Victoria who faced charges for not taking the COVID-19 vaccine won his case in the Supreme Court of Victoria.

The case in Victoria considered whether the requirement to provide evidence of vaccination status necessitated receiving a dose of the COVID-19 vaccine.

Plaintiff Constable Simon Peter Shearer had been charged with a breach of discipline for failing to comply with the COVID-19 vaccination requirements outlined in the Victoria Police Manual.

However, the officer’s decision not to receive any dose of the COVID-19 vaccine by Aug. 16, 2022, led to an internal disciplinary inquiry initiated by the Victorian Police chief commissioner.

In a win for the constable, Victorian Supreme Court Justice Michael McDonald concluded this charge was unjust and should be quashed.

“The plaintiff’s failure to receive a dose of COVID-19 vaccine by 16 August 2022 did not constitute a breach of the Victorian Police Manual,” Judge McDonald said.

“Consequently, the DIO [disciplinary inquiry officer] did not have power to reprimand the plaintiff for a breach of discipline.”

The judge said the plaintiff was denied procedural fairness for two reasons.

“First, the charge did not provide adequate notice of the case the plaintiff was required to meet,” Judge McDonald found.

“Second, the DIO failed to disclose to the plaintiff issues critical to his decision to find the charge proven.”

Commenting after the win, principal lawyer Irene Chrisopoulidis described the result as a significant win for the plaintiff and the individuals and families affected by such policies.

“The lives of these employees and their families, impacted by such organisational policies and decisions, resulted in lifelong effects,” Ms. Chrisopoulidis said.

Meanwhile, in Queensland, the Supreme Court ruled that vaccine mandates were unlawful in a judgement handed down on Feb. 27.

The court found the police commissioner failed to give “proper consideration” to human rights when making decisions related to the vaccine mandate directions.

Further, the court found that the former Department of Health Director-General did not establish the COVID-19 vaccine mandate as a condition of employment for Queensland Ambulance Service staff.

However, the judge did not address the vaccine’s transmissibility or efficacy in the ruling.