FALCONER -v- COMMISSIONER OF POLICE [2021] WASC 481 (24 December 2021)

5 First, there was no application for interlocutory relief in the proceedings challenging the enforcement of the directions issued by the Chief Health Officer. Those directions remain in force and must be presumed to be valid unless and until found otherwise. In practical terms, the exclusion of unvaccinated officers and employees of the Police Force (including the applicant) from police premises is not affected by the result of this application.

6 Second, although the applicant framed his relief in terms of 'any employee of the Western Australian Police Force' the proceedings have not been brought in a representative capacity, to the extent that can be done under the procedural rules of this court. I am unaware of any basis upon which I could grant relief other than between the parties to the proceeding.

7 Third, the claim for relief relates to the validity of a direction issued by the Commissioner of Police pursuant to his statutory powers for the governance of the Police Force, and disciplinary proceedings based upon a breach of that direction. The disciplinary proceedings against him do not involve the State of Western Australia, nor any Minister of the State. The State of Western Australia has been named as a respondent to the proceedings and has applied for the proceedings against it to be dismissed.

8 Fourth, at the commencement of the hearing on 23 December 2021, counsel for the applicant referred to further disciplinary proceedings against the applicant based upon his conduct in using his position as a police officer is to solicit gifts in relation to a 'go fund me' page; and in his conduct in 'inappropriately posting on the Yammer Web page'. During the lunch adjournment, the solicitors for the applicant provided by email a proposed amended chamber summons which sought to extend the relief (not confined to the applicant) by adding the words 'or by reason of participation in these proceedings, including the raising of funds'. Counsel supported the amendment by submitting that the bringing of disciplinary proceedings was an interference with the processes of the court. Quite simply, there is insufficient evidence before me to enable me to deal with such an allegation. If the applicant wishes to pursue the relief foreshadowed in the proposed amendment, it should be in a separate summons, if not in separate proceedings. The application to amend the summons will be refused.

9 The chamber summons was supported by an affidavit of the applicant, sworn 15 December 2021, and affidavits of Luke Francis George Swanson, legal practitioner, sworn 21 and 23 December 2021.

10 By chamber summons filed 17 December 2021, the respondent Commissioner applied for summary determination of both applications under O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA), on the ground that they had no reasonable prospect of succeeding.

11 In support of those applications the Commissioner read the following affidavits:

(1) Colin John Blanch, Assistant Commissioner, sworn 16 December 2021;

(2) Kylie Maree Whiteley, Assistant Commissioner, sworn 16 December 2021;

(3) Emily Jane O'Keefe, legal practitioner, affirmed 15 December and 22 December 2021.

12 The applicant is a senior constable in the Western Australian Police Force. He joined the Police Force in 2008 and has served since then.

13 On 20 October 2021, after a series of earlier announcements and directions, the Police Force announced the imminent requirement for all officers and staff to partially vaccinate by 1 December 2021.

14 On 12 November 2021, the Chief Health Officer issued the WA Police Force Worker (Restrictions on Access) Directions.

15 On 24 November 2021, the Commissioner of Police issued the Employer Direction.

16 The applicant has decided that he does not 'at this time' want to be administered with a vaccine for COVID‑19, and does not agree to be vaccinated, particularly in circumstances where it is mandated. He does not claim entitlement to a medical exemption but described his position as 'pro-choice'.

17 On 26 November 2021, the applicant commenced proceedings for judicial review challenging the validity of the directions issued by the Chief Health Officer.[2]

18 On 1 December 2021, the applicant was issued with a standdown notice for his refusal to comply with the Employer Direction.

19 On 2 December 2021, two inspectors from the Wheatbelt District Office attended at the applicant's house and interviewed him. At the conclusion of the interview the applicant was advised he was being formally stood down and was under investigation for failure to comply with the Employer Direction.

20 On 6 December 2021, the applicant commenced these proceedings in which he seeks a declaration that the Employer Direction is invalid, and a permanent injunction restraining the State of Western Australia, alternatively the Commissioner of Police, themselves or by their officers or agents from taking any steps under the Employer Direction. The grounds of review include a collateral challenge to the Directions issued by the Chief Health Officer.

21 On 9 December 2021, the applicant was given notice that disciplinary proceedings had been commenced against him under s 23 of the Police Act 1892 (WA) for an alleged breach of regulation 603 of the Police Force Regulations 1979 (WA).[3]

22 On 13 December 2021, the applicant was ordered to report on 29 December 2021 for Disciplinary Investigation.

23 The applicant gave evidence as to the impact on him of the Employer Direction, and the potential impact of termination from the Police Force.

The Directions WA Police Force Worker (Restrictions on Access) Directions: the legislative framework

24 On 25 August 2021, Dr Robertson wrote to the Commissioner regarding mandatory vaccination for police. Dr Robertson advised that there were good public health grounds for mandating vaccination if certain conditions were met, including that there is a serious health risk; the vaccine is safe and effective; and the mandating of the vaccine is proportionate. Dr Robertson stated as the preferred option that vaccination be voluntary.

25 Following that advice, Dr Robertson issued directions restricting access by unvaccinated persons to a specified class of police facilities described as 'mission critical police facilities'. Directions were issued on 16 September, 17 September, and 22 September 2021.

26 On 19 October 2021, Dr Robertson wrote to the Premier regarding the mandatory vaccination of essential and high risk workers in Western Australia. He recommended that mandatory vaccination directions were required for workforces that were at a higher risk of exposure, at a greater potential to transmit to vulnerable populations, or were themselves critical to the functioning of society. At that time, mandatory vaccination for various groups including residential aged care workers and disability support workers, were in different stages of implementation. Dr Robertson advised that public health action was necessary for specified groups of workers: border control and air transport; residential and non-residential community care services; corrective services; remote aboriginal community workers; WA Police Force; Department of Fire and Emergency Services; and abattoir and meat processing workers.

27 In relation to the Police Force, Dr Robertson advised that due to the large workforce, their close interaction with the community, the unpredictable nature of the work they do, the interaction with vulnerable communities and the broader public health impact of that work, there was a strong public health benefit to mandating COVID-19 vaccination for the entire workforce.

28 Dr Robertson discussed relevant considerations including the public health risk, the safety and effectiveness of the vaccine, and his consideration of whether mandating vaccination was proportionate. He advised that the inconsistent uptake of the vaccine left him with limited options where unvaccinated workers were in settings in which exposure was likely and the propensity for outbreaks high, and where vulnerable people may be inadvertently exposed.

29 The Directions, signed by Dr Robertson as Emergency Officer, were issued on 12 November 2021, and stated to be made pursuant to s 157(1)(e), 157(1)(k), 180 and 190(1)(p) of the Public Health Act 2016 (WA).

The purpose of these directions is to put in place some measures to address the unique risks posed by COVID-19 from the WA Police workforce for the purpose of preventing the spread of COVID-19 to vulnerable groups and the general community in Western Australia and to ensure that the WA Police Force can continue to provide critical services to the community.

31 The substance of the restrictions is set out in paragraph 4:

(a) on and from 12:01am on 1 December 2021, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been partially vaccinated against COVID-19; and

(b) on and from 12:01am on 1 January 2022, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been fully vaccinated against COVID-19,

unless the person is present at the WA Police facility solely in a capacity other than as a WA Police Force worker.

32 Paragraph 7 requires a WA Police Force worker to provide evidence of the vaccination status as directed or required.

33 On 15 November 2021, the Commissioner advised the Police Union that he was proposing to separately direct employees to be partially vaccinated before 1 December 2021, to be fully vaccinated before 1 January 2022, and to disclose their vaccination status.

34 On 17 November 2021, Assistant Commissioner Whiteley received a copy of public sector guidelines regarding mandatory vaccination requirements for public sector employees and reviewed those guidelines to consider how to align them with the WA Police Force disciplinary process.

35 On 24 November 2021, the Commissioner issued an Employer Direction, which provided:

All employees, as part of their employment, must be vaccinated against COVID-19, as follows:

• Before 12:01 am on 1 December 2021 - Partially vaccinated (first dose); and
• Before 12:01 am on 1 January 2022 - Fully vaccinated (two doses).

36 The Employer Direction provided for employees to produce evidence of vaccination. Provision was made for medical exemption.

37 The Employer Direction further provided that failure to comply is a breach of discipline which may result in disciplinary action, with outcomes that may vary from a reprimand to dismissal.

38 Assistant Commissioner Whiteley was informed, and states in her affidavit, that, as at 9 December 2021, WA Police Force recorded 177 police personnel as unvaccinated, of whom 34 sworn officers and 15 unsworn staff advised they had no intention to vaccinate. The balance were those who advised they sought medical exemptions, and those on approved leave who advised they were likely to be vaccinated.

39 As at 15 December 2021, the WA Police Force recorded 7,120 sworn officers, 297 Police Auxiliary Officers, and 2,207 unsworn staff.

40 The applicant challenges the Employer Direction on five grounds:

1. The Employer Direction is not authorised by the Public Health Act and/or the Police Act because it has the effect of making a direction which may only be made under s 157(1)(j) and given effect in accordance with s 158 of the Public Health Act.

2. The Employer Direction is not a lawful and reasonable direction given by the Commissioner of Police as an employer under the Police Act and/or Regulations made thereunder and/or the contract of employment.

3. The Employer Direction is ultra vires because the Commissioner was not authorised to make the Employer Direction under the Public Health Act) and/or the Police Act in that:

1. The Employer Direction misconstrues the Public Health Act by proceeding on the basis that the WA Police Force Worker (Restrictions on Access) Directions (the CHO Direction) is a valid direction under the Public Health Act when it is not for the reasons set out in the Application for Judicial Review in proceedings CIV 2286 of 2021;

2. The Employer Direction misconstrues and goes beyond the terms of the CHO Direction; and/or

3. The Employer Direction is not reasonably appropriate and adapted or proportionate to the implementation of the CHO Direction in its terms; and/or

4. To the extent that the Commissioner of Police purports to exercise power under the Public Health Act to make the Employer Direction, he is not an authorised officer or emergency officer authorised to make the Employer Direction in accordance with the Public Health Act; and/or

5. The Employer Direction is not within the scope of authority to give directions conferred on the Commissioner by the Police Act or any regulations made thereunder.

4. Further and in the alternative, neither the Commissioner nor any officer appointed by the Commissioner for that purpose is authorised by s 23 of the Police Act to take action to terminate the employment of a Member of the Police Force, police auxiliary officer, cadet or liaison officer by reason of apprehended bias arising from public statements of prejudgment by the Deputy Commissioner of Police on or about 24 November 2021.

5. Further and in the alternative, the Employer Direction is ultra vires the Police Act in that it is legally irrational.

41 The challenge to the Direction of the Chief Health Officer asserts, in substance, that, on its proper construction, the Public Health Act does not authorise the making of the Direction, alternatively, the Chief Health Officer erred in making the Direction so that the Direction is not legally valid.

Principles on an application for interim restraint

42 The court has power under s 25(9) of the Supreme Court Act 1935 (WA) to grant an interlocutory injunction in all cases in which it appears to be just or convenient that the order be made. The remedy is discretionary, but the discretion is not at large.

43 First, it is necessary to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought.[4] The court may grant the injunction if it is necessary to maintain the parties' existing position until the determination of those rights at trial. In the present matter the applicant seeks public law remedies. The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases.[5]

44 Second, the considerations to which the court should have regard in an application for the grant of an interlocutory injunction are well established. The court addresses itself to two main inquiries:

(1) whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a sufficient likelihood that at the trial of the action the plaintiff will be held entitled to relief;

(2) whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused, outweighs or is likely to be outweighed by the injury which the respondent would suffer if an injunction was granted.[6]

45 The applicant does not need show it is more probable than not that he will succeed at trial. It is sufficient if he shows a sufficient likelihood of success to justify, in the circumstances, the preservation of his rights pending trial. The 'governing consideration' is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought.[7]

46 Third, the court does not conduct any form of preliminary trial. The task of the court is not to seek to predict the result of a later trial based upon incomplete and untested materials. The court's function, applying these principles, is to decide what, in all the circumstances, is the correct balance of justice between the parties pending trial.

The relevant legislation Police Act 1892 (WA)

47 The Police Act provides in s 5 for the Commissioner of Police to be 'charged and vested with the general control and management of the Police Force'. Section 9 specifically provides for the Commissioner, with the approval of the Minister, to frame rules, orders and regulations for the general government of the member of the force. The power is general and extends to 'all such other rules, orders and regulations relative to the Police Force... and the control, management and discipline thereof...'

48 The Commissioner's position before the court was that the Employer Direction was not made as standing orders or rules under s 9 but was made under s 5.

49 Section 23 provides for disciplinary offences, including how they are to be dealt with. Relevantly, the procedure in s 23 was followed with the applicant examined by officers appointed by the Commissioner who determined that the applicant had committed an offence against the discipline of the Police Force. The applicant is liable to be discharged or dismissed from the force: s 23(b). Such a penalty must be confirmed by the Commissioner and is subject to appeal to the Police Appeal Board under Pt IIA of the Act. The Commissioner undertook to not exercise the power to confirm the dismissal of applicant until the application for interlocutory relief had been determined.

50 The applicant contends that the Employer Direction is not authorised because it has the effect of making a direction which may only be made under s 157(1)(j) and given effect in accordance with s 158 of the Public Health Act.

51 Section 157(1)(j) empowers an authorised officer to 'direct any person to undergo medical observation, medical examination or medical treatment or to be vaccinated, as specified by the officer'. Such a direction can be enforced under s 158, including by apprehending and restraining the relevant person and vaccinating that person. In the absence of such a provision authorising enforcement, the vaccination would be unlawful if done without consent.

52 The Commissioner submitted that the Employer Direction does not rely upon, and is not a purported exercise of, the power to direct a person to be vaccinated under the Public Health Act. The Commissioner further submitted that the existence of a power under the Public Health Act to direct a person to be vaccinated cannot be regarded as, in some sense, covering the field so as to exclude the power of employers or others to require vaccination as a condition of employment, or as a condition of exercising some other rights or liberties (such as unrestricted travel or entry to public venues) which would normally be enjoyed.

53 The submission of the Commissioner, in my opinion, is clearly correct. The existence of a power under the Public Health Act, which may be exercised by specified persons in specified circumstances, cannot be regarded as covering the field. For example, the power in s 157(j) includes the power to direct a person to undergo medical observation or examination. The power to require medical examination is also found, for example, in pt VII of the Workers' Compensation and Injury Management Act 1981 (WA) . This court, under O 28 r 1, may require a party to submit for medical examination.

54 For similar reasons, ground 3(d), which contends that the Commissioner is purporting to exercise power under the Public Health Act when not an authorised officer or emergency officer is without merit. The Employer Direction is not an exercise or purported exercise of power under the Public Health Act and it stands or falls on the powers of the Commissioner under the Police Act.

55 These grounds are more generally expressed in alleging that the Employer Direction is not a lawful and reasonable direction under the Police Act and not within the scope of authority to give directions conferred on the Commissioner by the Police Act or any regulations made under it.

56 In considering these grounds, it is necessary to properly characterise what the Employer Direction requires. First, the direction refers to the Chief Health Officer direction by which Police Force workers must not enter or remain at police facilities unless vaccinated. It states that the Commissioner had advised that he proposed to separately direct employees to be vaccinated against COVID-19 and to provide evidence of vaccination, and having considered feedback and available information issued the Employer Direction. Second, the direction sets out the requirement to be vaccinated and provide evidence of vaccination in the terms I have set out earlier in these reasons. Third, it provides a schedule of vaccination requirements and evidence requirements. Fourth, it states that failure to comply is a breach of discipline which may result in disciplinary action, with outcomes that may vary from reprimand to dismissal.

57 It is unsurprising that the question of mandatory vaccination has arisen before, including in other States which have had to directly confront the risks attending the COVID-19 pandemic being realised in their communities.

58 The Commissioner referred to cases where industrial tribunals had considered the lawfulness of dismissal for failure to comply with mandatory vaccination in the employment context. In my opinion, at least arguably, this case raises different considerations. As both parties apparently accepted, the relationship between the Commissioner and a member of the Police Force is not strictly an employment relationship and is not governed by contract. What the court is concerned with is the exercise of authority which the Commissioner holds by reason of his statutory power of governance of the force. That leads to consideration of what limits might be imposed upon that power either by the Act which confers it or by the common law. Those limits are determined by the proper construction of the statute.

59 It follows, for the avoidance of doubt, that these reasons should not be taken as expressing any view on the lawfulness of termination of employment where, by reason of an employee being unvaccinated, the employee is unable to carry out the duties of their employment.

60 I have been assisted by the reasons in Kassam v Hazzard [2021] NSWSC 1320. The court was there concerned with challenges to a series of orders which imposed restrictions:

(1) on persons living in specified local government areas from leaving the area except as 'authorised workers', which required a person to have had at least one dose of a vaccine or been issued with a medical certificate (Order No 2);

(2) on persons from specified areas entering or remaining on a construction site unless vaccinated;

(3) on unvaccinated workers entering or remaining on the premises of residential aged care facilities (the Aged Care Order); and

(4) on education and care workers carrying out specified work unless vaccinated (the Education Order).[8]

61 The primary judge dismissed the claims. In upholding that decision on appeal, Bell P said:

[95] The primary judge held that the common law recognised a right to bodily integrity, and so much may be accepted. Such a right is supported by Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218; [1992] HCA 15 and, as was observed in the joint judgment in that case at 253, it is a right which "underscores the principles of assault" in both civil law (the tort of battery) and criminal law. As already noted, however, the primary judge held at [9] that this right was not infringed or impaired by any of the Impugned Orders. None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated.

[96] The Impugned Orders proceed on the basis that there will be citizens who choose not to be vaccinated. Under Order (No 2), if such a worker was an authorised worker, he or she was unable to leave his or her local government area unless vaccinated to the extent specified in cll 4.3 and 5.8. So, too, under the Aged Care Order and the Education Order, a relevantly qualified worker was not able to enter particular facilities or schools unless vaccinated to the level specified in each of those Orders. As explained above, this was (and could only be) a temporary measure as each of the Orders had a maximum 90‑day life pursuant to s 7(5) of the Public Health Act. The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area (in the case of Order (No 2)) or to enter a particular place, under the Aged Care and Education Orders.

[97] Nothing in any of those Orders required, still less coerced, aged care workers or educational professionals, authorised workers or workers in the construction industry, to be vaccinated. ... Nothing in the Orders forced them to do so and the Orders contained no sanction for exercising what each of the Plaintiffs in the Henry Proceedings described on oath as the exercise of their own free will in deciding not to be vaccinated.[9]

62 On comparison with the Employer Direction, it is immediately apparent that the Employer Direction requires police officers to be vaccinated on threat of the sanction of disciplinary proceedings, and possibly dismissal.

63 The Commissioner relies entirely on s 5 of the Police Act by which he has 'general control and management of the Police Force'. There is, in my opinion, an arguable question whether and to what extent that general control and management is limited, in this case, by the right to bodily integrity. To take an extreme example, I doubt that a power of control and management could be said to permit corporal punishment.

64 On that limited basis there is, in my opinion, an arguable case that the direction is not authorised by the Police Act.

65 This conclusion does not say anything about the lawfulness of the direction made by the Chief Health Officer. Unless set aside, that direction remains in place and the applicant, and others in his position, will not be able to attend or remain at police premises.

66 Ground 3(a) relies upon a collateral challenge to the direction made by the Chief Health Officer. I will be separately dealing with the respondent's application for summary dismissal of that application and will not address it now.

67 Grounds 3(b) and (c), which are directed to the construction of the Chief Health Officer's direction and its implementation, should also best await that consideration.

68 By this ground, the applicant asserts apprehended bias arising from public statements, which he alleges amount to pre-judgment, by Deputy Commissioner Blanch. He seeks to restrain action to terminate his employment by the Commissioner or any officer appointed by the Commissioner for the purpose of s 23 of the Police Act.

69 The ground is fundamentally flawed. Even if the comments of Deputy Commissioner Blanch could be construed as pre-judgment, that could not affect the independent exercise of discretion by another officer or the Commissioner himself.

70 The final ground alleges, in the alternative, that the Employer Direction is legally irrational. Counsel for the applicant submitted that questions of legal rationality and proportionality are 'nuanced' and can be dealt with only on all of the evidence at trial.

71 In order to determine the present application, I do not need to consider whether ground 5 has reasonable prospects of success.

72 If not restrained, the disciplinary process based on breach of the Employer Direction could result in the dismissal or discharge of the applicant from the Police Force. There is no doubt that he suffers prejudice.

73 The potential risk to public health is managed by the continued operation of the direction issued by the Chief Health Officer; that is, the applicant may not lawfully enter or remain upon police premises.

74 There is, undoubtedly, prejudice to the Commissioner in the applicant being unable to carry out his duties as a member of the Police Force due to the operation of the direction of the Chief Health Officer. The evidence currently before me does not enable a finding as to whether that prejudice may be adequately managed by, for example, the applicant using leave entitlements, or being stood down, or in some other way. The best way of dealing with that uncertainty is to give liberty to apply so that either party may bring the matter back before me, particularly should there be delay in bringing it to trial.

75 While any disciplinary proceedings against the applicant would be subject to appeal under the provisions of the Act, it was not argued that the availability of an appeal should result in the court, at this stage, exercising its discretion against the applicant.

76 In my opinion, the balance of justice requires restraint. That restraint must, in the circumstances, be for a limited time. The questions raised by this action must be heard and determined quickly. I will list the matter for directions hearing immediately following the court recess. The action should be heard in the first quarter of 2022.

77 I will grant an interlocutory injunction restraining the Commissioner, until further order, from dismissing the applicant in reliance on the applicant's failure to comply with the Employer Direction.

78 I will separately determine and publish reasons on the Commissioner's application for summary determination of the grounds other than grounds 2 and 3(e).

79 I will also separately determine and publish reasons on the application by the Chief Health Officer and the State of Western Australia for summary determination of the proceedings brought against them in relation to the directions of the Chief Health Officer.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] Reg 603 provides: A member shall not disobey a lawful order and shall not, without good and sufficient cause, fail to carry out a lawful order.

[4] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199.

[5] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 153.

[6] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622 ‑ 623; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65] ‑ [71].

[7] Australian Broadcasting Corporation v O'Neill [71].

[8] See Kassam v Hazzard [2021] NSWSC 1320.

[9] Kassam v Hazzard [2021] NSWCA 299 [95] - [97].