1. There is little controversy about the material facts in this matter as there are extensive contemporaneous documents and the relevant evidence of witnesses was largely uncontroversial. This provides a clear factual basis for the events that are germane to this matter.
2. Mr Ellenberger was employed by the AFP from April 2004 until his employment was terminated in December 2022. He had no behavioural or disciplinary issues during his employment with the AFP prior to his refusal to be vaccinated for COVID19 as required by an AFP mandate. His direct supervisor had no issues with his performance as an AFP officer.
3. On 20 October 2021, the Commissioner of the AFP (the AFP Commissioner) sent an email to all members of the AFP, stating:[3]

I would like to thank you for your ongoing efforts in protecting Australians and Australia's interests in the COVID-19 response. To the 6,176 members who have to date registered the commencement or completion of their vaccination - thank you.

The dynamic nature of the work the AFP undertakes: from policing at airports and the border, at quarantining facilities, and, our many other frontline policing and enforcement activities, means the AFP has been at the forefront of Australia's fight against COVID-19.

The Delta strain of the COVID-19 virus has shown its potential to bring about devastating consequences within the communities we protect and serve. A highly vaccinated population is the greatest protection we have against the virus.

The imminent opening up of Australia to greater domestic and international travel makes it essential for the AFP to take additional measures to continue to protect our people and provide a safe working environment, as well as to protect the community we serve, particularly vulnerable members of the community.

As an operational agency the AFP must be agile and readily deployable as borders open and restrictions lift. It is important the Australian community has confidence and feels safe when interacting with the AFP.

With that in mind, we are consulting with the AFPA, CPSU and other stakeholders about my intention to issue a Commissioner's Order and National Guideline mandating COVID-19 vaccination for all AFP appointees, unless an exemption is in place. This mandate will extend to those who support us in our day-to-day activities such as special members, secondees, consultants or contractors.

The intended Commissioner's Order will require all AFP appointees to:

• receive their first vaccination by 8 November 2021;

• received their second vaccination by 14 February 2022; and

• provide proof to the AFP that their vaccination is complete.

Further information in relation to the proposed Commissioner's Order, including exemptions, will be published in the coming days.

If you are yet to organise your vaccination appointment, visit the COVID-19 Vaccination information page or contact your local health department or GP for assistance in organising an appointment. You are entitled to paid work time to receive your vaccination.

I understand a decision to mandate COVID-19 vaccination may cause concern for some and I encourage you to contact Organisational Health or the Employee Assistance Program (Benestar) for support. Questions or concerns should be directed to your Manager or MandatoryVaccinationQuestions@afp.gov.au.

1. On 29 October 2021, the AFP Commissioner sent an email to all members of the AFP, stating:[4]

Last week I sent an email in regards to my notice of intent to mandate the COVID-19 vaccination. We have seen a significant increase in staff receiving one vaccination with 87.8% of the workforce now reporting that they have received their first vaccination. Our fully vaccinated numbers have also increased making up 83.6% of the workforce. Again, on behalf of the Executive Leadership Committee, thank you for your efforts to keep our workplace safe.

Commissioner's Order 10 and the National Guideline mandating COVID-19 vaccination for all AFP appointees (unless an exemption is in place), can now be found on the AFP Hub.

As previously advised, this mandate will extend to those who support us in our day-to-day activities such as special members, secondees, consultants or contractors, specifically those people who work regularly in our buildings. The Commissioner's Order

• receive and report their first vaccination by 8 November 2021;
• receive their second vaccination by 14 February 2022; and
• provide proof to the AFP that their vaccination is complete.

I am aware that some individuals may be unable to be vaccinated for medical or other exceptional circumstances. The vaccination requirement process for AFP appointees is now available, via the COVID-19 Vaccination information page.

I understand that many of you have submitted enquiries or questions to MandatoryVaccinationQuestions@afp.gov.au. I ask for your patience as Operation Protect works through these enquiries. I encourage you to visit the recently updated FAQ's page for further information.

1. On 29 October 2021, the AFP Commissioner issued 'AFP Commissioner's Order on COVID-19 Vaccination (CO10)' (CO10) under ss 37, 38 and 69C of the Australian Federal Police Act 1979 (Cth) (AFP Act) and r. 79 of the Australian Federal Police Regulations 2018 (Cth) (AFP Regulations).[5]
2. CO10 orders AFP employees to have at least one dose of a COVID-19 vaccine by 8 November 2021, a second dose by 14 February 2022, unless an 'Exempt Appointee'. Exemptions for AFP employees are limited to those on long term leave, medical exemption, exceptional circumstances or those awaiting their application for exemption.
3. On 8 November 2021, Mr Ellenberger made an application to the AFP for 'Other (Non-Medical) Exemption Application' (the Non-Medical Exemption Application), stating for his reasons:[6]

Application to apply for time to obtain informed consent from my family Doctor.

The following sets out my concerns, fears, facts and working towards a reasonable way forward with the AFP's Commissioners orders to mandate Covid vaccines.

On 20 October 2021, an email from the AFP Commissioner Kershaw was circulated announcing intentions to mandate Covid vaccines within the AFP work force. At the time there was an exemption option mentioned but no relevant paper work or guidance was announced. At this time my intention was to explore my options in seeking an medical exemption.

As a result of this email, I attempted to make an appointment with my Doctor. Whilst attempting an online booking for 5 November 2021 another person had filled that spot and we had to make enquiries with the Doctors office direct. We were told that the Doctors appointments were all filled and the next available date would be 24 January 2022, which I booked, due to the Doctor being on leave over the Christmas period. I have been placed on a waiting list should a cancellation occur prior to my date. I am seeking to see this Doctor as I have trust in his knowledge of my medical history.

On 1 November 2021, I noticed the AFP had released documentation and guidance in relation to seeking medical and non-medical exemptions. There were two types of medical exemptions mentioned, permanent and temporary. There was also a non medical exemption.

Due to my family medical history of blood related issues and respiratory concerns, which claimed the life of my father and previously put my mother in hospital, skin issues suffered by my sister after vaccines AND my own skin issue (that I manage), I feel that I should be entitled to seek the guidance of my Doctor and discuss informed consent, in a view of finding the safest way forward for my health and well being.

I feel concerned, anxious and on edge about receiving a Covid vaccination without the trusted guidance of my Doctor for the following reasons:

• The TGA's previous announcement stating that the current vaccines are in an experimental stage until 2023,

• Discussions with medical health workers whom have worked with vaccine injured people after they have had severe side affects,

• Researching online vaccine sites, (which clearly shows a growing data base of reported side affects including, anaphylaxis, thrombosis, coagulation disorders, heart problems such as myocarditis and pericarditis, neurological damage, stroke, paralyses and convulsions, along with hundreds of thousands of deaths all over the world), plus

• The AFP's medical permanent exemption form lists a number of the above mentioned side affects after having a previous dose of the Covid vaccine which indicates to me the AFP have had previous knowledge or advice on these side effects.

I understand that the AFP is looking into measures to protect their workforce and has set a deadline of November 8, 2021. I have made every attempt to comply, but I fear that the accelerated timeline may harm myself and other AFP members who are seeking medical advice. This could put additional strain on the AFP by reducing its staffing capacity.

There are a number of laws, regulations and policies in place to protect the right to informed consent in receiving a vaccine or any medical procedure, including

• The Commonwealth Constitution,

• The Biosecurity Act 2015 (Cth),

• The UNESCO statement on Bioethics and Human Rights,

• The Official Australian Immunisation Handbook, and

Taking in account the above information and the fact that Federal government in August 2021, made it clear that there is no vaccine mandate policy in place in Australia, I feel that I could be medically, psychologically, and financially disadvantaged.

Because the AFP places a strong emphasis on duty of care and protecting its members, I'm seeking their support in granting me the time I've requested to visit my doctor, discuss informed consent, and move forwards from there. I believe I should not be financially disadvantaged during this time, and I am discussing working from home with my current Team Leader in order to protect my fellow AFP workers until my doctor's appointment in January 2022, when I will be in a better position to work within the AFP policy guidelines in relation to Covid 19.

1. On 9 November 2021, Mr Ellenberger attended his then general practitioner, Dr Deepak Singhal (Dr Singhal). Dr Singhal clinical notes state:[7]

Medical Certificate given from 9/11/2021 until 10/11/2021.

1. On 12 November 2021, the AFP wrote to Mr Ellenberger to advise him that the Non-Medical Exemption Application was refused as,

Having carefully considered your application, including any additional supporting information you provided, as well as the advice of the panel, as the Delegate, I am not satisfied your circumstances are exceptional.[8]

1. On 12 November 2021, Mr Ellenberger attended Dr Singhal and his clinical notes state:[9]

Nil delusions/hallucinations/commanding thoughts/thought disorder symptoms

has talked to a work counsellor- doing mindfulness •

Letter written re. GP Mental Health Care Assessment & Plan (2717).

Letter written to Integrated Wellness Clinic re. Ref Letter - Standard test.

Request printed to SNP eOrders: .FBC; .Fasting lipids, Choi, Trig. HDL, LDL; .E/LFT; HbAlc {diagnostic screening};.Iron studies (includes iron, TIBC, transferrin and ferritin); .TSH, TFT if indicated.

Medical Certificate given from 11/11/2021 until 01/12/2021.

1. On 25 November 2021, Mr Ellenberger made an application to the AFP for 'Other (Non-Medical) Exemption Appeal Request', stating:[10]

In response to my request to seeking additional time to obtain informed consent from my family Doctor before accepting any vaccine.

I have received Assistant Commissioner Fiona DRENNAN's reply decision, NOT to grant me temporary exemption to see my family doctor to obtain informed consent in relation to the covid-19 vaccine.

In her response she states, "In accordance with the Commissioners order (section 4), you now have (2) two weeks from the date of notification of this decision to make arrangements to undertake your first vaccination and record proof on AFP systems, after which time if you fail to do this, you will be considered to be in contravention of Commissioner's order 10 and National Guidelines on COVID-19 mandatory vaccination".

Notification date was 15 November 2021, with 2 weeks added on would make compliance date 29 November 2021.

The 29 November 2021 date fall short of my Doctors appointment in January 2022 to seek informed consent and where I would be able to make a decision on whether or not to agree to the above AFP demand. In the absence of been afforded the time to seek information from my doctor, I am unable to make such a decision.

I would be most grateful if I could be provided with the following information, in accordance with statutory legal requirements.

1. Please provide evidence of the approved legal status of any Covid-19 vaccine and if they are provisional and/or experimental.
2. Please provide evidence and a full list of contents of the alleged four safe and effective vaccines already approved for Australian use, as suggested in her response and if they are toxic to my body.
3. Please provide substantive evidence that the same vaccines have been fully, independently and ruinously tested against control groups and the subsequent outcomes of those tests.
4. Please provide evidence of all the adverse reactions associated with the same vaccines, since their introduction.
5. Please provide evidence if the same vaccines you're advocating are not experimental MrNA Gene Altering Therapy.
6. Please confirm that I will not be under any duress from the AFP as my employer, in compliance with the Nuremberg Code.
7. Please provide evidence that, in the event, I be unfortunate to contract Covid-19, what is the likely risk of vitality and the likelihood of recovery, if not vaccinated.
8. Please inform whether or not the AFP will be mandating further medical treatments for other infectious illnesses in the future.
9. Please provide evidence of the risk assessment study undertaken in the workplace to show that an unvaccinated person is;

a) more of a risk to other employees and customers that are vaccinated person. > > b) that Covid 19 is of a significantly higher risk to its staff and customers than other infectious diseases (such as seasonal flu, bacterial pneumonia, etc) for which no vaccine mandate supply. > > c) other options for managing infectious illness have been considered and assessed as an alternative.

10. Please provide evidence that the AFP has the legal authority to demand a person in their employee MUST undertake specific medical procedure to remain in their employee or be permitted on their premises.
11. Please provide evidence that the AFP has the legal right to demand that employees must disclose private medical information (there vaccination status) as a condition of continuing their employment and is not breaching the Privacy Act of 1988 by doing so.
12. Please provide evidence to show that the AFP is in compliance with all Australian laws and International treaties that Australia has signed up to, that guarantee an individual's human rights to informed consent absent of all forms of coercion in regards to medical procedures (in particular ones that are still in the experimental phase of trials).
13. Please provide evidence that the AFP is not in breach of:
    • The Australian Commonwealth Constitution which prohibits civil conscription in medical and dental services (s.51(23A)).
    • The Biosecurity Act 2015 which prohibits vaccination or treatment without meeting the stringent requirements of an individual Human Biosecurity control order (s.92) and prohibits the use of force or coercion for vaccination (s.92).
    • The UNESCO statement on Bioethics and Human rights, which states "Any preventative diagnostic and therapeutic medical intervention is only to be carried out with the prior free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be expressed and may be withdrawn by the person concerned at any time and for any reason, without disadvantage and without prejudice", (Art.6).
    • The Criminal Code Act 1995 (Cth), which relates to interfering with political liberty states "Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise performance, by any person of any political right or duty shall be guilty of an offence" (s.83.4).
    • The official Australian Immunisation Handbook, which states that for consent to be legally valid, "it must be given voluntarily in the absence of undue pressure, coercion or manipulation" (s.2.1.3).
    • The Nuremberg code, which states, "The voluntary consent of the human subject is absolutely essential" (Art.1).

Once I have received the above information in full and I am satisfied that there is NO threat to my health, of receiving the medical treatment. However, I would have certain conditions, namely:

1. You confirm that I will suffer no harm.
2. Following acceptance of this, the offer must be signed by a fully qualified doctor or an AFP representative who will take full legal and financial responsibility for any injury occurring to myself and/or from any interactions by authorised personnel regarding these procedures.
3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my position and that I will not suffer prejudice and discrimination as a result.

In reference to the statement made at the end of her response, "I understand this decision may cause you some concern, I encourage you to contact the following support services if required". This process has actually added to my stress, anxiety and my self-worth. By not being able to attend work and perform my normal duties it is affecting my mental and physical health.

I have and will continue to reach out to internal and external support during this time of uncertainty.

1. On 3 December 2021, Mr Ellenberger attended Dr Singhal and his clinical notes state:[11]

2. Work is supportive & they want him to keep seeing a counsellor & stay off work

1. On 10 December 2021, Mr Ellenberger attended Dr Singhal and his clinical notes state the requirement for a medical certificate.[12]
2. On 16 December 2021, the AFP notified Mr Ellenberger that his appeal of the decision not to grant him a permanent/temporary exemption from the requirements of CO10 had been refused, stating:[13]

In your request for review, you raised a number of concerns about the risks and effectiveness of current vaccines and the risk of harm to yourself outweighs any possible benefits. You raise

concerns about consent, considering vaccination to be a matter of personal choice. I accept that your concerns in this matter are genuine, and that you feel the AFP's vaccination requirements

You have sought assurances and evidence relating to the safety of vaccines and compliance with relevant legal obligations. You also raised some concerns regarding any longer term effects of the COVID-19 vaccines to your health. The AFP has already explained its reasons for mandating vaccines, which is to protect AFP appointees from the risk of serious illness from COVID-19 and to ensure that this illness does not threaten the AFP's ability to perform its policing and protective functions. The medical evidence is very clear that vaccination is the most effective measure to protect appointees from the risks of serious illness, even if it does not eliminate the risk of contracting or transmitting COVID-19. The three vaccines available in Australia have been rigorously tested and reviewed by the Therapeutic Goods Administration and other regulators around the world. Further, these vaccines have been safely used by millions of Australians.

I understand that this response may not satisfy you, or address all your concerns or queries, however, your position does not present exceptional circumstances that mean you are unable to be vaccinated.

Having carefully considered all the above, I am not satisfied your application has established there are factors which distinguish your circumstances as exceptional. As such, I have decided NOT to grant an exemption.

In accordance with section 4 of the Commissioner's Order on COVID-19 Vaccination (CO10) you now have until Monday 10 January 2022 to make arrangements to undertake your first vaccination and record proof on AFP systems, after which time if you fail to do this, you will be considered to be in contravention of CO10 and National Guideline on COVID-19 mandatory vaccination.

Your SES Manager has been advised of this decision and the relevant time frames. They will work with you to implement any necessary adjustments to your working arrangements to ensure there is a safe workplace for all.

I understand this decision is not the outcome you were hoping for and will be upsetting. I encourage you to engage with your own general practitioner for support and medical advice and also encourage you to contact the following supports services if required:

1. On 10 January 2022, Mr Ellenberger attended a medical consultation with Dr Edward Osborne (Dr Osborne), general practitioner. The clinical notes relevantly state:[14]

Normal sleep. No early morning wakening. Normal self esteem. Depressed mood. Anxious. Stress at work. Relationship problem. Financial problems. Recent bereavement. Irritability. No irrational fears. Panic attacks. Compulsive behaviour. No delusions. No auditory hallucinations. No visual hallucinations. Suicidal thoughts. No suicide attempts. No substance abuse.

1. On 10 January 2022, the Australian Government Immunisation Register recorded in a COVID-19 digital certificate that Mr Ellenberger had a medical contraindication to COVID-19 vaccines, such certificate valid from 10 January 2022 to 10 July 2022.[15]
2. On 13 January 2022, Mr Ellenberger made an application to the AFP for 'COVID-19 Vaccination Medical Exemption Request', (the Medical Exemption Application).[16]
3. On 17 January 2022, Dr Stuart Le Marseny, a psychologist, wrote to Dr Singhal, stating:[17]

Mr Ellenberger presented with, extreme levels of Anxiety and Stress, which has caused impaired decision making, high levels of agitation and difficulty in sleeping.

Mr Ellenberger's current presentations are caused by a perceived ethical dilemma where Mr Ellenberger believes what he is being asked to do in is employment as an officer in the Australian Federal Police (AFP) is contradictory to the core function and mandate of the AFP.

Whilst treatment has been initiated, and it is expected that it will be successful, progress will be slow initially, and overall treatment to a satisfactory outcome, will take considerable time.

It should be noted that Mr Ellenberger's presentation is directly related to his work, and therefore Mr Ellenberger returning to the work environment where the ethical dilemma will be enacted should be avoided for the foreseeable future.

This does not preclude Mr Ellenberger undertaking tasks for the AFP that will not cause the ethical dilemma to be enacted, such as working from home undertaking procedural tasks.

1. On 21 January 2022, Mr Ellenberger attended Dr Singhal and his clinical notes state:[18]

He will need MC till he sees the counsellor next time

Medical Certificate given from 18/01/2022 until 15/02/2022.

1. On 25 January 2022, Dr Douglas Randall, performing the role of Chief Medical Officer of the AFP, wrote to Mr Ellenberger to advise him that his application for an exemption to wear a mask at AFP offices was refused because Mr Ellenberger did not supply any evidence of a medical condition for Dr Randall to consider.[19]
2. On 7 March 2022, Dr Osborne provided a letter to 'To whom it may concern' stating:[20]

This is to certify that lngo has a raised homocysteine, such that he has double the average person risk of clotting and coronary artery disease, we are currently undertaking a treatment plan for this which we envisage will likely take between 3-9 months.

1. On 7 April 2022, Mr Ellenberger made a claim for 'adjustment disorder' to Comcare (the Claim).[21]
2. On 14 April 2022, Dr Le Marseny, provided a report to Comcare, stating that he diagnosed Mr Ellenberger as having 'major depressive disorder', 'generalised anxiety disorder' and 'acute stress disorder' due to:

experiencing the ongoing stress and trauma associated with the management/mis-management of the workplace situation involving the Australian Federal Police (AFP) requiring Mr Ellenberger to be vaccinated for Covid-19, and Mr Ellenberger having a medical condition that prevents him from being safely vaccinated.[22]

1. Dr Le Marseny opined as to when Mr Ellenberger first suffered from clinically identifiable symptoms of the claimed condition was when Mr Ellenberger presented to him on 17 January 2022 with 'extreme levels of Anxiety and Stress, and very evident depression, which has caused impaired decision making, high levels of agitation and difficulty in sleeping'.
2. On 19 May 2022, Comcare determined it was not liable to pay compensation to Mr Ellenberger in respect of 'adjustment disorder, pursuant to s 14 of the SRC Act (the Primary Determination).[23] In making that decision, Comcare, stated that:

(a) It was satisfied that Mr Ellenberger suffered from an adjustment disorder.

(b) It was satisfied that Mr Ellenberger's employment significantly contributed to his adjustment disorder.

(c) The reasonable administrative action of the AFP in requiring Mr Ellenberger, pursuant to the 'COVID-19 vaccine mandate (CO10)' (the COVID Mandate), to be vaccinated, and his failure to comply, was an exclusion under the SRC Act.

1. On 11 July 2022, Mr Ellenberger requested reconsideration of the Primary Determination.[24]
2. On 5 August 2022, Comcare affirmed the Primary Determination (the Reviewable Decision).[25]

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

1. Mr Ellenberger provided a written statement, dated 25 September 2024. The Tribunal has put the statement in full as it provides Mr Ellenberger's point of view as to how he contends the AFP actions were unreasonable:[26]

On 29 October 2021 the AFP Commissioner issued Commissioner's Order 10 (CO10). The effect of this was to mandate all staff to submit to vaccination against Covid 19 (the mandate).

Sometime after the 29 October 2021, I submitted a Temporary Non-Medical Exemption application, as I have had a family history of medical issues including the death of my father with blood clotting (pulmonary embolism), I wanted to make sure that I did not have a hereditary medical issue and discuss with my doctor which vaccine would be most appropriate for me.

On 9 November 2021, I commenced a period of sick leave as the introduction of CO10 excluded me from attending any Australian Federal Police (AFP) work premises as I had not yet been vaccinated for Covid -19.

On 9 November 2021, I attended Caloundra Health Hub and was diagnosed with Anxiety, Stress, Impaired decision making, agitation, and insomnia. Doctor Deepak referred me to the Integrated Wellness Clinic for Psychological assessment.

On 12 November 2021, I made an appointment to attend the Integrated Wellness Clinic for psychological assessment.

On 12 November 2021, the AFP responded to my Temporary Non-Medical Exemption and did not support an extension of time to be assessed by my medical Doctor about my concerns. The AFP indicated that "It is not considered reasonable to wait". The AFP indicated that I had 2 weeks to comply with the CO10 mandate. I then appealed the AFP's decision requesting to be assessed by my Medical Doctor and for advice.

On 16 December the AFP again responded and once again did not support my application to be assessed and obtain advice from my medical Doctor. The AFP indicated that I had until 10 January 2022 to comply with the CO10 mandate.

On 10 January 2022, I attended Doctor Edward OSBORNE's clinic, Lotus Holistic Medicine. There, after a physical assessment and the consequential results from my blood tests, revealed that I was suffering from a medical condition known as raised Homocystine levels. With this medical condition the chances of contracting coronary artery disease or blood clotting (pulmonary embolism) would be twice as likely compared to the average person. With both coronary artery disease and blood clotting (pulmonary embolism) listed as side effects in the Pfizer study, page 32 & 36 highlighted in green. my father having passed away due to blood clotting (Pulmonary embolism) and the possibility of the disease being hereditary. My doctor was of the opinion that at this time a temporary medical exemption was appropriate. A treatment plan to lower my Homocystine levels, anticipated to take between 3 and 9 months was implemented. This temporary medical exemption was registered with the Australian Immunization Registry (AIR) and appears in my, my Gov account. The certificate for this was forwarded to the AFP as evidence and to allow them to upload to the HUB, (computer database).

On 17 January 2022, I attended the Integrated Wellness Clinic and met with Psychologist Stuart Le Marseny in relation to stress, anxiety, causing impaired decision making, agitation and difficulty sleeping. With his help a continuous treatment program was implemented.

I supplied the AFP with the Psychologist report, treatment plan and waited for a response.

On 15 February 2022, I submitted a workplace incident report, Number 29310 in relation to my mental and physical welfare. This would later become unsupported by comcare, even after evidence including Doctor reports, Psychologist report, comcare psychiatrist report and Freedom of Information (FOI) documents**.**

Mid-February 2022, I had a conversation with my team leader at NOSSC Northern, D/Sgt Tim MURPHY and in consultation with AFP management, it was decided that I was to work from home as I did have a current temporary medical exemption lodged with the Australian Immunization Registry and working from home would risk manage my duty of care towards my fellow work colleagues.

I commenced working from home on the 21 February 2022, which was part of my Psychology plan to integrate back into the AFP work force, regain confidence and ease my mental health issues. This seemed to work well as I was able to engage with work members and feel like I was contributing again. After this process I was contacted by a member of the AFP rehabilitation case manager-Shield people & culture command, where it appeared that they were unaware of my situation and being on sick leave prior, but supportive of being able to work from home. I successfully continued working from home, which was both beneficial to myself and my work area.

On 1 March 2022, I received an email from Commander Andrew DONOGHOE stating, 'that I had not given the AFP any evidence of my vaccination status and accordingly I was in breach of CO10'. Even though I had forwarded my temporary medical exemption certificate to the AFP, they still deemed me as not complying with CO10.

On 2 March 2022, I spoke with Commander DONOGHOE via phone, where I was urged to supply a medical report from my doctor to support the doctor's issue of the temporary medical exemption.

I contacted Doctor OSBORNE and although advised that I did not have to supply any medical information to a third party due to confidentiality laws, I asked my doctor to write a report supporting the decision for the temporary medical exemption. Dr OSBORNE wrote 'This is to certify that Ingo has a raised homocysteine level, such that he has double the average person risk of clotting and coronary artery disease, we are currently undertaking a treatment plan for this which we envisage will likely take between 3-9 months.' On the 7 March 2022, I submitted to the AFP Dr OSBORNE's report along with my temporary medical exemption certificate and continued working from home.

On 16 March 2022, I received a response to Dr OSBORNE's Report and temporary medical exemption certificate from AFP employee Alison MONEY. Dr MONEY's email information suggested that my medical condition was not a contraindication to any COVID-19 vaccine in Australia and declined to support my Temporary Medical exemption.

On 17 March 2022, Commander DONOGHOE phoned me to make sure that I had received Dr MONEY's email and directed me to comply with CO10 by the 30 March 2022. At this time, I was still working from home, but struggled mentally to adapt to all this information and pressure, suggesting that I had not complied with CO10, and my temporary medical exemption was not supported.

With my anxiety levels raised, I found sleeping that night very difficult as conflicting information kept going through my mind, such as,

• Should I go against my doctor's advice and get vaccinated, and possibly risk suffering from serious life-threatening injuries or death?

• How would my family cope if I passed away?

• Should I not get vaccinated, and risk losing my job and means to support my family?

• Why does the AFP not show a duty of care and treat each individual and their health condition separately?

• Why does the AFP not care about my health and support my treatment plan for the time suggested, until future tests?

• Are the AFP suggesting I play Russian roulette with my health?

• Why all this pressure coercing me into a procedure, where there is the existence of a medical condition that could harm my health?

All these questions and conflicts going through my mind were causing me stress and anxiety.

On 21 March 2022, in consultation with my doctor and the continual struggle dealing with concentration issues, stress and anxiety, I commenced a new period of sick leave. I continued my medical treatment plan to lower my Homocystine levels; to put myself in a better physical and medical position, should I require vaccination in the future. I also continued my psychological plan to improve my mental health.

On 5 April 2022, I received an email from AFP Manager Peoples Strategies, People and Culture Command, Brooke EVERETT, informing me that the AFP were considering my termination from employment for not complying with CO10. I was required to show cause why I should not be terminated.

On 21 April 2022, Industrial relations acknowledged the receipt of my "Show cause notice".

On 6 May 2022, Industrial relations notified me that my application is being considered by a delegate.

On 3 June 2022, Industrial relations notified me that my application is currently being considered.

On 20 June 2022, I emailed an update on my medical circumstance to Industrial relations, which they acknowledged.

On 7 July 2022, Industrial relations informed me to submit a non - medical exemption under another AFP option.

On 8 July 2022, I emailed Industrial relations to seek clarification under what basis would I apply for a non - medical exemption.

On 8 July 2022, Industrial relations replied indicating that the AFP have allocated another pathway for medical exemptions to be considered under non-medical exemption.

On 11 July 2022, I submitted my non - medical exemption application to Industrial relations.

On 12 July 2022, Industrial relations acknowledged receipt of my application and advised that it has been forwarded to the SHIELD team. Where it would be adjudicated on by a member of the AFP.

On 15 August 2022, I received a text from my work team leader D/Sgt Murphy, informing me that he had heard about my non -medical exemption outcome.

On 16 August 2022, I contacted D/Sgt Murphy, where he told me that on 8 August 2022, he received notification that a decision had been recommended on my non - medical exemption. This information was sent to my work area and my work email, which I had not viewed as I was on leave. As a result, I was not aware of this decision.

On 16 August 2022, I accessed my work emails and viewed the non-supportive response by Jason Kennedy. His determination based on the Delta and Omicron COVID 19 strains, protecting our people (AFP members) and providing a safe workplace, as well as protecting the community we serve.

As stated in the "Show cause notice", I supplied evidence, studies and information supporting that a vaccinated persons would be no more of a threat to work colleagues, or the general public then vaccinated persons. I was also prepared to work from home as per previous work agreement.

As a result of my condition In July 2022, I had further blood tests to update my condition.

On 22 August 2022 I attended Doctor OSBORNE's office where I was informed the results from my blood test were being analysed.

On 29 August 2022, I spoke to Dr OSBORNE who explained to me my blood test results. There had been a slight improvement in most of my blood markers since my original diagnosis, this indicates the treatment plan I am undertaking, was slowly working. The Doctor believed at this time, some markers were still higher than he would like and would still put me in the high-risk category for side effects from a vaccine. He advised me that I should continue the treatment plan for another 4 months, where again I would be assessed to view my progress. This would make my next medical assessment time January/February 2023. Medically and psychologically, I was advised to continue my treatment plan in an attempt to lower my blood markers to a safe manageable level before considering which vaccine to take.

On 30 August 2022, I addressed an email to IR setting out my circumstances and the Doctors advice. I also asked if the AFP could facilitate a discussion between myself and their then AFP Doctor Randell.

On 2 September 2022, I received an email response, stating that IR had received my information, and the delegate is considering my employment suitability. They would supply me with an update when available. They did not respond to my request to facilitate audience with the AFP Doctor.

On 7 December 2022, I received an email informing me that I had been terminated from employment with the AFP.

I had previously initiated a Comcare (AFP insurer) claim due to the stress I had experienced since the beginning of this process. The way I have been treated, coerced, discriminated against during this process concerning the vaccine mandate and other continued stresses showed a complete lack of duty of care to me as an employee.

Comcare was aware of my mental state (adjustment disorder) as described by the Doctor, and agreed it was brought on by the workplace.

Comcare arranged for me to see their AFP selected Psychiatrist on 5 October 2023, Dr Kovacevic. He too found that my condition was brought on and exacerbated by the workplace and suggested I continue psychological treatment. Stating, In the context of the loss of employment, Mr Ellenberger has developed a variety of psychological symptoms. At the time of the interview, he presented with signs of depression and anxiety. He appeared to meet the diagnostic criteria for an adjustment disorder with depressed mood and anxiety (I could not rule out the diagnosis of a major depressive disorder) in the context of the loss of employment and the lack of purpose and direction. "It is my opinion that Mr Ellenberger would benefit from a more extended psychological treatment" (general counselling and CBT in weekly to fortnightly intervals)

I was open with communication to both the AFP and Comcare offering to work from home to mitigate any perceived risk to work colleagues and the public. I also requested an audience with the AFP Doctor, where I was prepared to be assessed by them, in case they did not believe my doctors diagnosis.

I believe during this complete process (Comcare incident report, February 2022) with the AFP and Comcare, I have been cooperative and supplied as much evidence as required to support my case. I feel that the AFP and Comcare have prolonged my psychological condition by not supporting my, doctors, psychologist and the AFP psychiatrist professional opinions in relation to my medical diagnosis. Their actions have been negligent in their duty of care towards my psychological welfare. At the request of my family, I facilitated my own psychological welfare by engaging a psychologist and implementing psychological management plan, as I struggled to deal with family and everyday life. Comcare appeared to have little concern about assisting me with my welfare.

In 2024, I requested and received Freedom of Information statistics (FOI) that showed the AFP were aware of both minor and serious adverse reactions from the Covid vaccine between 2020 and 2024. This highlights a lack in their duty of care toward my situation. The AFP and Comcare were aware of adverse reactions yet were happy to put my welfare at risk by not supporting my temporary medical exemption requests and pressuring me to be vaccinated before being medically cleared by my doctor**.**

1. During cross examination by Ms Brady, Mr Ellenberger agreed that the AFP Act and AFP Regulations applied to him and that he was required to comply with lawful directions.
2. Mr Ellenberger also stated that he was challenging the lawfulness of CO10.

1. The clinical notes of Mr Ellenberger's attendance during the relevant period to his general practitioners and his psychologist are summarised above. These practitioners were not called to give evidence and no adverse inference from them not giving evidence was contended or found.

1. On 23 October 2023, Dr Velimir Kovacevic (Dr Kovacevic), a consultant psychiatrist, provided a report that relevantly states:[27]

It would seem that Mr Ellenberger suffers from a chronic adjustment disorder with anxiety and depressed mood, as well as some issues with excessive drinking.

This disorder is a reaction to stress experienced due to the circumstances of his employment termination. The precipitating stressor is clearly identifiable, and the response is of clinical significance and requires a clinical intervention. The stress has now become chronic and the patient has difficulty moving on.

As a differential diagnosis, a major depressive disorder with significant anxiety should also be considered, given the extent and duration of depressive symptomatology.

It would appear that Mr Ellenberger started experiencing symptoms of an adjustment disorder with anxiety and depressed mood during the second half of 2021, and in the context of the workplace vaccination mandate.

The main factors that have impacted on the development of Mr Ellenberger's condition are employment related. In addition to the vaccination mandate, Mr Ellenberger was also under some pressure due to the role change and the fact that he was placed with a different team following his return from medical leave in 2021.

There were no signs of any pre-existing psychological condition or personal stressors unrelated to work, including the relationship or financial problems preceding the termination.

Mr Ellenberger did however acknowledge that in the context of his knee injury, he experienced some lowering in mood in 2021, and that he occasionally felt overwhelmed having been placed in a new work area, and later denied the opportunity to work from home.

However, the principal stressor that led to the development of Mr Ellenberger's condition was the vaccination mandate and the denial of his medical exemption, with the associated threat to his employment, and the eventual termination. Therefore, the factors that made significant contribution to the condition were all employment related.

He said he was disappointed that the AFP did not listen to medical evidence that he had presented, and regretted he had not been given an extension, or some extra time to be reassessed medically.

1. Dr Kovacevic was prepared to give evidence at the hearing, but as Mr Ellenberger accepted Dr Kovacevic's opinions contained in his report and did not require him to be available and subject to cross examination.

1. On 1 July 2022, Dr Singhal, general practitioner provided a letter to Comcare[28], opining that Mr Ellenberger's mental health condition had a clinical onset of early November 2021. Dr Singhal noted that Mr Ellenberger had seen him on 9 November 2021 and provided a mental health care plan on 12 November 2021.

1. Mr Ellenberger's contentions were intertwined with his statement[29].
2. His primary contentions as can be ascertained by the Tribunal were that the AFP acted unreasonably by:

(a) Issuing CO10 on the basis that it was unlawful.

(b) Refusing his Non-Medical Exemption Application by not allowing him time to see the doctor of his choice (Dr Osborne).

(c) Refusing his Medical Exemption Application by not accepting that the opinion of Dr Osborne that he had a medical contraindication to the COVID19 vaccines.

(d) Not providing him the opportunity to discuss his concerns with an AFP medical officer (Dr Randall).

(e) Not allowing him to work from home whilst he was unvaccinated.

(f) Not applying the AFP Association (AFPA) document dated 9 April 2021[30] that provided that agreeing to be vaccinated was voluntary and members could be re-assigned duties if they did not agree.

(g) Not considering any other medical studies than the Australian Technical Advisory Group on Immunisation (ATAGI) provided in their guidelines.

(a) Comcare conceded that Mr Ellenberger had the Condition, and that condition was significantly contributed by his employment with the AFP.

(b) Comcare, relying on the evidence of Dr Kovacevic, Dr Singhal and the Claim, contended that the date of injury was 9 November 2021.

(c) Citing Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 (Reeve) at [30] and [33]:

It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.

In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer.

(d) The issuing of CO10 was administrative action that applied to all AFP employees and was not properly characterised as operational in nature.

(e) Comcare contends that CO10 was lawful, for the reasons found in Wilson v Australian Federal Policy (on behalf of the Commonwealth) [2024] FWC 18, which were as follows:

(a) AFP officers are declared to be a member of the AFP when they receive written recommendation by the Police Commissioner, and they undertake an oath before serving, as stipulated in the Australian Federal Police Regulations 2018 and its predecessor, the A_ustralian Federal Police Regulations 1978_ (AFP Regulations).

(b) The Applicant made an undertaking pursuant to s 36(3) of the A_ustralian Federal Police Act 1979_ (AFP Act) on 18 November 2004, which under the 1978 AFP Regulations was to undertake to comply with the provisions of the AFP Act, the Regulations made under that Act and the General Orders and General Instructions issued by the Commissioner under s 14 of the AFP Act.

(c) Under s 37 of the AFP Act, the Commissioner has the general administration of, and the control of the operations of, the AFP, and pursuant to s 38 may, by writing, issue orders with respect to the general administration of, and the control of the operations of, the AFP.

(d) It is pursuant to this power that CO10 was issued.

(e) Section 39 of the AFP Act requires that a member of the AFP (such as the Applicant) is required to comply with the Police Commissioner's orders, and s 40 provides that a member of the AFP must not disobey or fail to carry out a lawful direction, instruction or order, whether written or oral, given by, amongst others, the Commissioner.

(f) The provisions of the AFP Act and the AFP Regulations provide a fundamental term of the employment relationship that the Applicant must comply with a Police Commissioner's Order.

(g) CO10 was made pursuant to legislative provisions which give the Police Commissioner power to make any Order it sees fit.

A key issue raised by the Applicant in this matter was that it was not reasonable for the AFP to introduce its vaccine mandate. In order to assess reasonableness in this context, Comcare contends that it is necessary to examine the prevailing state of affairs at the time that CO10 was made. Those prevailing conditions, and the advice about the precautions that should be taken in response to COVID-19 that was being provided at that time, are set out in the ATAGI Clinical guidance on use of COVID-19 vaccine in Australia (ATAGI Guidelines).

Comcare contends that the word "reasonable" allows the possibility that there may be more than one way of doing things "reasonably", and the judgment required is not whether the thing could have been done more reasonably. Comcare contends that CO10 was one reasonable response to the prevailing COVID-19 conditions at the time having regard to the ATAGI Guidelines.

The Applicant relies on Johnston & Ors v Carroll [2024] QSC 2, in which vaccine mandates imposed by the Queensland Commissioner of Police were found to be unlawful because the Police Commissioner failed to give proper consideration to the relevant human rights that would be affected by the mandates. That is, they were invalid because of the process undertaken in developing the mandates, not that there was anything unlawful about the mandates themselves.

Insofar as the Applicant further says that CO10 was inconsistent with the Privacy Act, and the Human Rights Act 2019 (Qld), and he relies on a number of decisions to support an argument that CO10 was therefore unlawful/unreasonable, Comcare contends as follows:

(a) Whilst the mandate limited the right not to be subjected to medical treatment without full, free and informed consent (s 17(c) of the Human Rights Act 2019 (Qld)), that limitation was "reasonable and demonstrably justified" in the context of the COVID-19 pandemic. The decision stands as authority for the proposition that it was acceptable for policy makers to place limits on the consent to vaccination in the face of other considerations created by the pandemic, and policy makers had to weigh up the risk of infection for their populations, including the risk of being infected by those providing essential services, and how best to keep their health and governance systems functioning, against the requirement that consent be full, free and informed. The decision does not stand as authority that all vaccine mandates are inconsistent with the Privacy Act, and the Human Rights Act 2019 (Qld), and does not assist the Tribunal in determining the application before it.

(b) The Applicant relies on an unidentified 2024 South Australian Supreme Court decision, which Comcare has been unable to locate. However, a South Australian Employment Tribunal decision of Teague & Ors v Department for Health and Wellbeing [2023] SAET 80 found that a COVID-19 mandatory vaccination policy for healthcare workers was valid.

(c) The Applicant relies on an unidentified 2024 New South Wales Court of Appeal decision. Comcare has located Secretary, Department of Education v Dawking [2024] NSWCA 4, in which the New South Wales Court of Appeal declined to disturb a finding that Ms Dawking was entitled to compensation in relation to psychological injury she suffered on receipt of an email that advised of an expected announcement that mandatory double doses of the COVID-19 vaccine would be required for all public school and pre-school staff from 8 November 2021. The Department had defended the claim for compensation at first instance on the basis that, amongst other things, Ms Dawking's psychological injury had been wholly or predominantly caused by reasonable action taken by the Department in relation to the discipline of workers. There was no analysis of the reasonableness or validity of the mandate itself by the Court of Appeal. The decision does not assist the Tribunal in determining the application before it.

(d) The Applicant relies on Shearer v Chief Commissioner of Police [2024] VSC 181, in which Mr Shearer was charged with a breach of discipline for failing to comply with the vaccination requirements of the Victorian Police, found guilty and reprimanded. The question before the Supreme Court of Victoria was whether there had been a denial of procedural fairness in the process that had been undertaken in respect of the vaccination requirements, and it was found that there had. The decision does not assist the Tribunal in determining the application before it.

(g) The Applicant initially sought a non-medical exemption from complying with CO10 by email dated 8 November 2021, on the basis that he wanted to consult with his doctor and that doctor's next available consultation date was on 24 January 2022. Comcare contends that the refusal of this non-medical exemption was reasonable, for the following reasons:

(a) The Applicant attended Dr Singhal of Caloundra Health Hub for treatment on 9 November 2021, and he was therefore able to access medical advice prior to the advised date of 24 January 2022.

(b) CO10 provided that a non-medical exemption was only available in "exceptional circumstances". The National Guideline specifically noted that a refusal to be vaccinated on philosophical or ideological grounds was not exceptional circumstances.41 Likewise, Comcare contends that it was not exceptional to wish to speak to a medical practitioner about the available COVID-19 vaccines and any medical contra-indications to having the vaccine, particularly in circumstances where the Applicant had been on notice of CO10 since 29 October 2021, and had been able to access medical advice on 9 November 2021.

The Applicant subsequently sought a medical exemption, premised on the fact that he had raised homocysteine levels, and that the chances of contracting coronary artery disease or blood clotting following COVID-19 vaccination would be twice as likely compared to the average person, and that together with his family history, Dr Osborne considered that a temporary medical exemption was appropriate. Comcare contends that the refusal of this request for a medical exemption was reasonable, for the following reasons:

(a) The National Guideline set out that the grounds for medical exemptions are based on guidance provided by ATAGI, and in particular stated that a medical exemption may be issued if there is a potential for the AFP appointee to suffer a serious adverse health effect as a result of taking the vaccine, due to existing medical conditions.

(b) The Deputy Chief Medical Officer declined the Applicant's application for a medical exemption on the basis that the Applicant had not submitted any evidence that he met any of the eligibility requirements for a medical exemption. This was reviewed by the Chief Medical Officer, and by email dated on 16 March 2022, she informed the Applicant that there was no evidence to suggest that raised homocysteine was associated with adverse outcomes in the context of any COVID-19 vaccination available in Australia, and that it was not a contraindication to any COVID-19 vaccine available in Australia in accordance with ATAGI Guidelines. She also referred to the increased clotting risk associated with the Astra Zeneca vaccine and noted that it related to a different physiological clotting pathway, not that associated with homocysteine.

(c) When the Applicant's medical circumstances are analysed against the ATAGI Guidelines, it is clear that he did not meet any of the medical exemption criteria.

(d) Comcare further refers to the blood test undertaken by the Applicant on 19 January 2022, which showed that his homocysteine level was 11.8 μmol/L and that the normal range for homocysteine levels is under 15 μmol/L. Therefore, it appears that the Applicant did not, in fact, have raised homocysteine levels. It is therefore not clear on what basis Dr Osborne noted on 2 March 2022 that the Applicant had raised homocysteine levels. He certainly did not identify raised homocysteine levels in his records of consultation dated 7 February 2022.

(e) In the Applicant's Response - Duty of Care Evidence Letter, the Applicant stated that he applied for a medical exemption on the basis of fearing inflammatory cardiac illness within the past six months (such as myocarditis, pericarditis, endocarditis, acute rheumatic fever or acute rheumatic heart disease) or acute decompensated heart failure. However, the exemption did not apply in relation to a fear of these conditions, but rather to actually suffering one of them in the previous six months. The Applicant therefore did not meet this criterion.

For these reasons, Comcare contends that the decisions to refuse the Applicant a non-medical exemption and a medical exemption were reasonable.

Insofar as the Applicant may contend that termination of his employment contributed to his ailment, Comcare contends that, if the termination of his employment was a significant contributing factor to the Applicant's ailment (which is disputed), the termination was reasonable administrative action having regard to the Applicant's non-compliance with CO10.

For completeness, Comcare contends that the administrative action undertaken by the AFP pursuant to CO10 was taken in a reasonable manner. The communication between the AFP and its workforce, including the information available on its intranet and Hub, in relation to CO10 was regular and thorough. Despite his assertions to the contrary, advice and support was provided to the Applicant at every opportunity, particularly by Detective Sergeant Tim Murphy and the offering of EAP support. There was an appeal process in place, and the Applicant was afforded natural justice in making submissions in respect of that process.

Insofar as the Applicant may contend that termination of his employment contributed to his ailment to a significant degree (which is disputed), the termination was taken in a reasonable manner.

Did Mr Ellenberger suffer an 'ailment or an aggravation of such an ailment'?

1. In Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [49], the High Court explained that the first task the Tribunal must undertake under the SRC Act is to consider the facts to determine if the employee is suffering a 'disease' or an 'injury'.

1. The Tribunal is reasonably satisfied on the uncontested medical evidence that Mr Ellenberger has the 'disease' of '_adjustment disorde_r'.

1. For the purposes of the SRC Act, s 7(4) provides that 'an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a) the employee first sought medical treatment for the disease'.
2. The clinical onset of the Condition has variously been addressed by Dr Kovacevic as being 'in the second half of 2021' or by Dr Singhal as 'early November 2021'. Dr Le Marseny says that Mr Ellenberger presented with symptomology of the Condition on 17 January 2022.
3. Mr Ellenberger was seen by Dr Singhal on 8 November 2021 and prescribed anxiety medication on that day with a mental health plan subsequently provided on 12 November 2022.
4. The Tribunal is reasonably satisfied that the date of injury of the Condition, as required under s 7(4) of the SRC Act, was no later than 17 January 2022, because on that day Mr Ellenberger presented to Dr Le Marseny with clinical symptoms of anxiety disorder and that treatment for that condition was initiated.
5. The Tribunal preferred that date over a date in November 2021 as it was on 17 January 2022 that Mr Ellenberger consulted a mental health specialist for the first time who diagnosed him on that day with a mental health condition and not generalised anxiety symptoms.
6. That is not to discount the evidence of Dr Singhal or opinion of Dr Kovacevic, but it was not until 17 January 2022 that Mr Ellenberger received treatment for the Condition, rather than medication for an unspecified anxiety symptoms when seeing Dr Singhal in the period leading up to that date.

Was Mr Ellenberger's ailment contributed to a significant degree, by his employment so as to constitute a 'disease'?

1. Comcare concedes that Mr Ellenberger's ailment was contributed to a significant degree by his employment with the AFP, in particular in the circumstances of the application of CO10 for Mr Ellenberger to be vaccinated and meets the requirement of s 5B of the SRC Act.
2. The Tribunal is reasonably satisfied that the Condition was contributed to a significant degree by his employment with the AFP as required by s 5B of the SRC Act because of the medical evidence of Dr Kovacevic and Dr Le Marseny.[32]

Reasonable Administrative Action - Principles

1. Where 'reasonable administrative action' as defined in s 5A(2) of the SRC Act is found, then liability for a 'disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment' excludes liability.
2. The plurality of the High Court in Comcare v Martin [2016] HCA 43 (Martin) at [45] stated in respect to the exclusion for 'reasonable administrative action':

When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.

1. The statutory purpose of the exclusion was described in Martin, by reference to the explanatory memorandum at [46]:

[to] ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation" and as including, in particular, to prevent claims "being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of" such action.

1. In Comcare v Martinez (No 2) [2013] FCA 439 (Martinez), Robertson J, stated at [83]:

I also agree with Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 where his Honour said, in a context much closer to the present legislation:

Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

Relevant Administrative Actions up to date of injury

1. As the Tribunal has made a finding that the date when Mr Ellenberger suffered his injury was 17 January 2022, then consistent with Martin and Martinez, then the relevant administrative action by the AFP as it pertains to Mr Ellenberger must be confined to the period up to the date he was injured.
2. Put another way, as Mr Ellenberger was injured on 17 January 2022, the administrative actions of the AFP after that date are not relevant, unless the Condition was aggravated, to determining the AFP's liability for Mr Ellenberger's injury. There is no evidence of aggravation, nor was that contended.
3. As such, much of the evidence that was put to the Tribunal at the hearing becomes irrelevant and the Tribunal will not consider the administrative actions of the AFP in respect to Mr Ellenberger after 17 January 2022.
4. That applies also to consideration of the witnesses who gave evidence about matters that fell outside the relevant period for administrative action. That is not to detract from the contents of their evidence, simply to note that it does not assist the Tribunal to make the correct or preferable decision.
5. The administrative actions taken by the AFP in respect to Mr Ellenberger prior to the date of injury are:

(a) The email from the AFP Commissioner on 20 October 2021 telling Mr Ellenberger (and all the members of the AFP), that he intended to issue a directive in respect of the requirement of AFP members obtaining a COVID19 vaccination.

(b) The issuing of CO10 by the AFP Commissioner on 29 October 2021.

(c) The AFP requirement for Mr Ellenberger to apply for a medical or non-medical exemption from CO10 prior to 8 November 2021.

(d) The AFP direction to Mr Ellenberger not to attend any AFP work premises from 8 November 2021 unless vaccinated for COVID19.

(e) The AFP not providing Mr Ellenberger access to and AFP doctor to discuss the vaccination requirements under CO10.

(f) The AFP refusal to delay its consideration of Mr Ellenberger's Non-Medical Exemption Application so that he could obtain a medical appointment with the doctor of his choice (Dr Osborne) at his first earliest availability on 24 January 2022.

(g) The AFP decision to refuse Mr Ellenberger's Non-Medical Exemption Application.

1. Mr Ellenberger challenged the lawfulness of CO10 by reference to the decision of Johnston & Ors v Carroll [2024] QSC 2 (Carroll).
2. In Carroll, Martin SJA dealt with directions made to members of the Queensland Police Service (QPS) and the Queensland Ambulance Service (QAS) to be vaccinated for COVID19 and whether that direction was invalid or unlawful. To determine the matter his honour had to consider whether the directions were compatible with the Human Rights Act 2019 (Qld) (HRA).
3. In finding the QPS and QAS directions unlawful under the HRA, Martin SJA, found that the commissioners had not given 'proper consideration' to the human rights affected by their respective decisions to issue a direction.
4. The Supreme Court of Queensland's power to make such a finding derived from the application of the Judicial Review Act 1991 (Qld).
5. Carroll has no application to the present circumstances. It does not consider CO10 or the lawfulness of the AFP Commissioner to issue CO10.
6. Mr Ellenberger's evidence was that he had not challenged the validity or lawfulness of CO10 outside of his contentions in these proceedings. Mr Ellenberger was unable to point to an authority that determined CO10 was unlawful.[33]
7. The Tribunal has no jurisdiction or power at large to determine the lawfulness of CO10.
8. As such, the Tribunal is reasonably satisfied that CO10 was a lawful direction under the AFP Act and AFP Regulations and that Mr Ellenberger, as a sworn AFP officer, was bound to comply, unless he had a reason to be exempted (medical or non-medical).
9. The AFP direction to Mr Ellenberger not to attend AFP premises unless vaccinated from 8 November 2021 was not contended by Mr Ellenberger as unreasonable administrative action by the AFP. In any event, the Tribunal is reasonably satisfied that such direction was reasonable because it formed part of CO10 which was lawfully made.
10. Mr Ellenberger contends that he was not reasonably afforded an opportunity to talk to Dr Randall, deputy chief medical officer of the AFP, about his concerns of vaccination like the opportunity afforded to fellow AFP officer, Mr Kim Wilson.
11. The circumstances for Mr Wilson were not analogous to Mr Ellenberger. Mr Wilson was on long term leave at the time of the AFP Commissioner issuing CO10 and his interview with Dr Randall was in June 2022. Further, Mr Ellenberger did not make any request to see Dr Randall, or any other AFP medical officer during the period before the date of injury.
12. The remaining administrative actions for consideration fall between 8 November 2021 and 17 January 2022 and are centred on the application by Mr Ellenberger to be temporarily exempted from complying with CO10 because he wished to see a doctor about being vaccinated.
13. In Mr Ellenberger's Non-Medical Exemption Application, he raises his concern regarding his family history of 'blood related issues and respiratory concerns, which claimed the life of my father and put my mother in hospital' inter alia as the basis for his 'entitlement to seek the guidance of my Doctor and discuss informed consent, in a view of finding the safest way forward for my health and well being'.
14. Mr Ellenberger sought an exemption 'to see my family Doctor on 24 January 2022, to obtain informed concent [sic] in relation to the possible side effects, if any that the covid vaccine may pose to my personal health, given my family medical history' with a period of exemption sought from 8 November 2021 to 24 January 2022.
15. Mr Ellenberger says that as a result of the AFP Commissioner's email of 20 October 2021, he 'attempted to make an appointment with my Doctor' and after enquiries the earliest he could obtain was 24 January 2022 whilst being put on a waiting list for an earlier opportunity.
16. He stated that 'I am seeking to see this Doctor as I have trust in his knowledge of my medical history'.
17. On its face the request of Mr Ellenberger to be granted time to seek guidance from his doctor to discuss his personal circumstances does not seem to be unreasonable.
18. However, at the time of submitting his Non-Medical Exemption Application, Dr Osborne was not Mr Ellenberger's regular treating general practitioner. In fact, Mr Ellenberger had never met with or had a medical consultation with Dr Osborne prior to 8 November 2021. Dr Osborne had been suggested to Mr Ellenberger by his wife.
19. As at 8 November 2021, Dr Osborne had no knowledge of Mr Ellenberger's medical history.
20. On 9 November 2021 Mr Ellenberger commenced sick leave.
21. On 12 November 2021, the AFP refused Mr Ellenberger's application for a non-medical exemption on the basis that his circumstances were not 'exceptional' and advised him that he had two weeks to undertake his first vaccination, or he would be considered to be in contravention of the CO10.
22. On 25 November 2021, Mr Ellenberger sought review of the AFP refusal stating that the two weeks provided for to get vaccinated was before his appointment with his family doctor in January 2022 and 'in the absence of being afforded the time to seek information from my doctor, I am unable to make such a decision'.
23. On 16 December 2021, the AFP refused Mr Ellenberger's review of the decision not to exempt him from vaccination on the basis that Mr Ellenberger had not established exceptional circumstances and gave him until 10 January 2022 to undertake a vaccination.
24. On 13 January 2022, Mr Ellenberger submitted his Medical Exemption Application to CO10.
25. The refusal by the AFP of Mr Ellenberger's Medical Exemption Application to CO10 occurred on 25 January 2022, after the date of injury, and therefore not relevant for the Tribunal to consider.
26. The AFP contends that it was not unreasonable to expect to Mr Ellenberger to see a doctor earlier than more than 2 months away (8 November 21 to 24 January 2022) to get advice on vaccination and points to Mr Ellenberger seeing Dr Singhal on several occasions in November and December 2022 (including on 9 November 2022).
27. This expectation is in the context that Mr Ellenberger was not able to be at AFP premises from 8 November 2021 unless vaccinated and on his own evidence he understood that he needed to seek medical advice on his personal circumstances from 29 October 2021 when the AFP Commissioner issued CO10.
28. Mr Ellenberger had access to a medical practitioner on 9 November 2021 when he attended Dr Singhal and also on 12 November, 3 and 10 December 2021.
29. It is incongruous that Mr Ellenberger maintains that it was unreasonable that he was not provided an opportunity by the AFP to see his doctor of choice (Dr Osborne) in refusing his non-medical exemption application in circumstances that he attended on Dr Singhal on 4 occasions, including to discuss his anxiety surrounding CO10 and obtain medical certificates to have sick leave from 9 November 2021.
30. There was no evidence that Dr Osborne had expertise or specialisation in COVID-19 vaccinations or knowledge of Mr Ellenberger's family medical history prior to Mr Ellenberger presenting to him on 10 January 2022.
31. The evidence was that Mr Ellenberger's strong preference was to see Dr Osborne rather than consult with the medical practice and doctors such as Dr Singhal that he attended during the relevant period as a matter of personal choice rather than for any other objective reason.
32. Mr Ellenberger provided the Tribunal with a list of medical articles. When asked their relevance to his application for review, his answer was that he considered them relevant to his request for medical exemption for vaccination.
33. During cross examination of Dr Money, he asked her questions in respect to that issue.
34. Dr Money's evidence was that the AFP relied on the Australian Technical Advisory Group on Immunisation (ATAGI) for its guidance on the medical science behind the efficacy of the vaccinations and their risks in respect to medical conditions. Dr Money said that when applying the ATAGI guidance, there was no basis for providing Mr Ellenberger a medical exemption to CO10.
35. Mr Ellenberger did not call a medical expert in respect to the provided medical articles, or Dr Osborne.
36. The Tribunal is reasonably satisfied that the medical articles provided by Mr Ellenberger were not relevant to determining the issues in the proceeding and has not considered them.
37. The Tribunal is not reasonably satisfied that any of the other cases relied upon by Mr Ellenberger have any application to assisting the Tribunal in determining liability under the SRC Act. [34]

1. The Tribunal is satisfied that the administrative actions of the AFP in respect to Mr Ellenberger suffering the Condition are reasonable because:

(a) Pursuant to s 7(4) of the SRC Act, the Tribunal finds that the date of injury for the Condition is 17 January 2022.

(b) CO10 was a lawful direction of the AFP Commissioner and Mr Ellenberger as a sworn AFP officer was obliged to comply with the direction.

(c) The direction that from 8 November 2021, Mr Ellenberger was not allowed to attend any AFP premises unless he was vaccinated was a lawful direction made under CO10.

(d) There was no reasonable basis for Mr Ellenberger to claim on 8 November 2021 that Dr Osborne, a general practitioner, was his 'family' doctor or that Dr Osborne had knowledge of his family history such that Dr Osborne was in a special position to provide the requisite advice on the effects of vaccination on Mr Ellenberger.

(e) Mr Ellenberger attended Dr Singhal, a general practitioner, on 4 occasions between 9 November and 10 December 2021 to treat his anxiety arising from his concerns about complying with CO10 and for the purpose of obtaining medical certificates for sick leave.

(f) It was not unreasonable for the AFP on 12 November 2021 and 16 December 2021 to deny Mr Ellenberger an extension of time to 24 January 2022 for him to seek medical advice in respect of an exemption for vaccination because Mr Ellenberger had the period from 29 October 2021 to obtain medical advice and could have obtained that advice from Dr Singhal at any time until 9 January 2022, prior to Mr Ellenberger's appointment with Dr Osborne.

(g) Mr Ellenberger was on sick leave from 9 November 2021 until the date of injury.

(h) At no time during the period 29 October 2021 to 17 January 2022 did Mr Ellenberger have a medical exemption to CO10, consideration of such an exemption occurring outside that period and not relevant to the date of injury for Mr Ellenberger's Condition.

(i) As at the date of injury, the AFP had not refused Mr Ellenberger's application for a medical exemption under CO10.

1. The Tribunal decides to affirm the decision under review.

Application for review, dated 26 September 2022 (T1)

Comcare Workers' Compensation Claim, dated 7 April 2022 (T64)

Initial Decision and Reasons, dated 19 May 2022 (T97)

Request for reconsideration, dated 11 July 2022 (T110)

AFP Commissioner's Order on COVID-19 vaccination (CO10) (T39)

AFP Risk Assessment and Treatment Plan, dated 7 October 2021

COVID-19 Vaccination - Other (Non-Medical) Exemption Application, dated 8 November 2021 (T15)

COVID-19 Vaccination - Other (Medical) Exemption Application, dated 13 January 2022 (T30)

AFP National Guideline on COVID-19 mandatory vaccination, undated (JHB Vol 3 - pp115-128)

Email from Dr Money to Applicant, dated 16 March 2021 (T50)

Email from Dr Money to Andrew Donoghoe, dated 16 March 2021 (T51)

Email from Dr Money to Applicant, dated 17 March 2021 (T55)

Email from Applicant to Dr Money, dated 17 March 2021 (JHB - Vol 3 - p64)

Witness statement of Detective Sergeant Tim Murphy, dated 21 February 2024 (JHB - Vol 3 - pp152-405)

Witness statement of Commander Andrea Quinn, dated 15 February 2024 (JHB - Vol 3 - pp107-151)

Witness statement of Commander Andrew Donoghoe, dated 12 February 2024 (JHB - Vol 3 - pp25-44)

Witness statement of Dr Alison Money, dated 12 February 2024 (JHB - Vol 3 - pp45-106)

Independent Medical Report of Dr Kovacevik, dated 23 October 2023 (JHB - Vol 3 - pp7-24)

Email from AFP Commissioner dated 20 October 2021 (T7)

Email from AFP Commissioner dated 29 October 2021 (T9)

AFP Decision Notification - Temporary Non-Medical Exemption Request, dated 12 November 2021 (T16)

Other (Non-Medical) Exemption Appeal Request, dated 25 November 2021 (T18)

AFP Decision Notification - Appeal - Temporary Non-Medical Exemption Request, dated16 December 2021 (T23)

Email from Chief Medical Officer AFP to Applicant, dated 25 January 2021 (T32)

Statement of Mr Ellenberger, with annexures (excluding transcript between Dr Randall and Mr Wilson at A2), dated 25 September 2024 (JHB - Vol 2 - A2)

Applicant's Clinical Notes - Dr Osborne - Lotus Holistic Medicine, commencing 10 January 2022 (JHB - Vol 4 - pp35-43)

Applicant's Clinical Notes - Dr Singhal - Caloundra Health Hub, commencing 10 January 2022 (JHB - Vol 4 - pp22-24)

Applicant's COVID-19 digital certificate, dated 10 January 2022 (T26)

Applicant's blood test results, Sullivan Nicolaides, dated 20 January 2022 (T94)

Statement of Matthew Kim Wilson paragraphs 1-5 only (excluding paragraphs 5(a) and following and attachments) (JHB - Vol 1 - A1.3)

AFPA Member Update, dated 9 April 2021 (JHB - Vol 1 - A1.1)

COVID-19 Updated Vaccination Requirements, dated 29 October 2021 (ST122 pp643-650)

Report of Dr Le Marseny, dated 17 January 2022 (T31)

Report of Dr Le Marseny, dated 14 April 2022 (JHB Vol 4 pp4-7)

Letter from Dr Singhal, dated 1 July 2022 (JHB Vol 2 pp55-56)

[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

[31] Respondent's Statements of Facts, Issues and Contentions, dated 13 December 2024.

[32] See test Comcare v Power [2015] FCA 1502 at [93]- [94].

[33] See Wilson v Australian Federal Police (on behalf of the Commonwealth) [2024] FWC 18.

[34] Teague & Ors v Department for Health and Wellbeing [2023] SAET 80; Secretary, Department of Education v Dawking [2024] NSWCA 4; Shearer v Chief Commissioner of Police [2024] VSC 181