Matters for consideration by Channel 9
118 It was clearly proper for Channel 9 to adopt policies directed at the profitability and continuity of its business. Several issues were potentially relevant to any direction Channel 9 might give to its staff and contractors in relation to vaccination for COVID-19.
119 First, if an employee or contractor became infected with COVID-19, Channel 9 had a legitimate interest in that employee or contractor not becoming seriously ill and being unable to work for an extended period. That was particularly so if the infection should occur in the workplace, where Channel 9 had legal and moral obligations to try to minimise harm to its workers. It was notorious that in rare cases COVID-19 infection had debilitating after effects that made people unable to live normal lives for months if not permanently. The risk of a worker being incapacitated for a long period could be reduced by giving that worker every possible incentive to be vaccinated. This would be so even if the Provisionally Approved Vaccines did little or nothing to prevent infection, so long as they had efficacy in reducing the seriousness of illness.
120 Secondly, soundings taken by Channel 9 had shown strong support among its workforce for vaccination and for a vaccination mandate. Many if not most of its workers did not want to be in the workplace alongside people who were not vaccinated. It was reasonable for Channel 9 to take the view that it needed to consider the wishes of its workers if it wanted their ongoing commitment.
121 Thirdly, the Channel 9 group was a large and prominent national media organisation whose public profile and reputation were obviously important to it. It had taken a public stance that was strongly in favour of members of the Australian community being vaccinated using the Provisionally Approved Vaccines. It had produced and broadcast promotional videos, featuring members of its stable of "personalities" (presenters, journalists and performers), promoting vaccination. Having decided to throw its weight behind the campaign to increase vaccination rates, there was clearly a virtue from the group's point of view in being seen to act consistently with that position in dealing with its own workforce.
122 Each of these was a reason why it was rational for entities in the Channel 9 group to direct those of their employees and contractors who needed to come in to the workplace to be vaccinated. This is so at least in circumstances where the vaccines had been through testing processes to confirm their safety (and were being put forward by responsible government entities as safe to use), and exceptions were made for people who had medically certified reasons not to be vaccinated.
123 Of course, as observed above, the evidence does not show the extent (if at all) to which senior management of the Channel 9 group actually considered any of these factors. The point is not that these factors were given any particular weight, but that they were part of the surrounding circumstances that made Channel 9's position objectively reasonable.
124 The case mounted by the applicants against the reasonableness of requiring vaccination revolves around a proposition that the Provisionally Approved Vaccines had little or no efficacy in preventing infection by the COVID-19 virus or transmission of the virus to other people. Thus, it was said, an unvaccinated worker would have roughly the same chance of becoming infected, and infecting their co-workers, as one who was vaccinated. There were other measures, such as requiring masks and social distancing, that were equally or more effective in preventing transmission of the virus. Furthermore, if an unvaccinated worker were to infect their co-workers, those co-workers would likely be vaccinated and would not become seriously ill. Meanwhile, vaccination with the Provisionally Approved Vaccines involved certain identified health risks, and the longer term effects of the viruses on the human body were not known.
125 The first articulation of this case can be seen in SOC [17], which is set out at [28(e)] above. This articulation has the obvious defect that it pleads the relevant propositions as to effectiveness and risk as objective facts, seemingly to be proved by scientific evidence, and not by reference to what was known or should have been known to Channel 9 at the time of the relevant decisions. SOC [17] did not limit the broader allegation in SOC [16] and therefore was ultimately a distraction.
126 Before turning to the issue of the efficacy of vaccines, two short points should be made about the applicants' case on reasonableness.
(a) The case did not grapple with the other considerations supporting a vaccination requirement which I have noted at [119]-[121] above.
(b) The availability of other measures to limit infections does not advance matters. It was not suggested that any combination of these other measures could have eliminated the risk of workers infecting each other.
127 Both the applicants and Channel 9 filed expert reports, and the experts were cross-examined.
(a) The applicants called Professor Nikolai Petrovsky, who holds senior appointments in endocrinology and diabetes and is the director of a company (Vaxine) that has developed a COVID-19 vaccine.
(b) Channel 9 called Associate Professor Paul Griffin, who is Director of Infectious Diseases at the University of Queensland and has extensive experience in clinical trials of novel vaccines.
128 Professor Petrovsky was asked to opine on a series of questions concerning the nature of COVID-19, the situation in Australia as at October 2021-January 2022, the effect of the Provisionally Approved Vaccines in relation to the important COVID-19 variants at that time, and the risk of medical conditions arising from receiving those vaccines. Those questions invited hindsight to a significant degree, although Professor Petrovsky in his report largely confined himself to information that was available in the identified period. Associate Professor Griffin, on the other hand, was asked to opine on a series of questions concerning the "prevailing medical opinion" in Australia at the relevant time. These questions came closer to the real issues in the proceeding, but Associate Professor Griffin did not always confine himself to them. He (perhaps understandably) responded to Professor Petrovsky's views concerning the objective merits of the vaccines, and sometimes did so by reference to material published after the relevant period.
129 The expert evidence was ultimately of very limited utility. The reasonableness of the Condition of Entry Policy is to be assessed according to the circumstances that faced Channel 9 at the time of the relevant decisions, including the information that it had or should reasonably have had at that time. The standard is that of a reasonable employer. It was not suggested that that standard required Channel 9 to bring to bear the knowledge and expertise of a medical scientist keeping abreast of the latest publications in the field. In an environment where COVID-19 and the merits of vaccination were the subject of fairly regular statements by public health authorities, it was not unreasonable for Channel 9 to be guided by those statements in forming a policy with respect to the vaccination of its workers. The cross-examination of the experts provided a vehicle for some of these statements to be tendered and discussed. However, the Court does not require the assistance of expert evidence to understand what these statements said, or how a reasonable employer should have understood them.
130 I therefore discuss the expert evidence very briefly. Professor Petrovsky advanced the view that there was no proper basis, in the literature available in late 2021, to conclude that vaccination with any of the Provisionally Approved Vaccines had any worthwhile effect on the likelihood of a person becoming a vector for the transmission of any of the then-significant variants of COVID-19. Associate Professor Griffin opined that there were some indications in the published studies that, by reducing the severity of infection, vaccination could make a person somewhat less likely to transmit the virus to others. Professor Petrovsky emphasised the truncated nature of the clinical trials that the vaccines had undergone before being made available for public use and the numbers of cases where adverse effects (including death) had been linked to their use; Associate Professor Griffin emphasised that the reported cases of adverse effects constituted a miniscule percentage of the doses administered and observed that, from a societal point of view, use of the vaccines was overwhelmingly positive.
131 To the extent that it is necessary to resolve the difference of view between the experts, I prefer the evidence of Associate Professor Griffin. This is for three reasons. First, Associate Professor Griffin's main areas of professional activity appear to be more closely connected to the subject matter of their disagreement. Secondly, some of the scientific papers available in late 2021 (to which Associate Professor Griffin was taken in cross-examination) did indicate that a vaccinated individual who became infected with COVID-19 was somewhat less likely than an unvaccinated person to infect others (although this effect was limited, waned over time and seemed to be less significant in respect of newer variants of the virus). Of course, from a public health point of view, this was not the main reason why governments encouraged as many people as possible to be vaccinated and many businesses (including, as noted above, the Channel 9 group) supported those campaigns.
132 Thirdly, I came to the view that Professor Petrovsky is not sufficiently disinterested to be relied on as an expert witness in this area. My reasons for taking this view are as follows.
(a) Professor Petrovsky is the sole director of Vaxine (which he owns jointly with his wife and entities controlled by them). Vaxine has been involved in the development of a COVID-19 vaccine which, if approved, would be an alternative to those currently provisionally approved. Its vaccine (COVAX-19 or Spikogen) is a recombinant protein vaccine, and thus works differently to the Provisionally Approved Vaccines (which are mRNA or viral vector vaccines). Vaxine obtained a modest amount of government funding for the development of its vaccine in mid 2021, which Professor Petrovsky described as small and inadequate. It was not able to obtain any further funding, and has not managed to have its vaccine approved for use in Australia (it is approved and used in one overseas country). Vaxine was issued with an infringement notice by the TGA for advertising an unapproved vaccine, which it did not contest. Professor Petrovsky is thus a would-be competitor of the manufacturers of the Provisionally Approved Vaccines, with strong reasons to be frustrated with the TGA.
(b) Whether for this or some other reason, Professor Petrovsky now has a strong ideological antipathy to vaccine mandates. I use the term "ideological" to convey that he opposes such mandates for ethical or political reasons, and not (or not only) as a function of conclusions he has reached as a scientist concerning the effect of vaccines on the human body. I note the following points.
(i) In August 2021 Vaxine published a video on its YouTube channel entitled "Efficacy of COVID-19 vaccines". The video asserted (apparently in relation to vaccines generally) "you are safe", and concluded with the statement "it's good to care about the efficacy rate, but what matters more is to get vaccinated as soon as possible". This was a time when Professor Petrovsky was seeking funding for the development of Vaxine's COVID-19 vaccine. In an expert report that he wrote in January 2022 (more or less contemporaneously with the decisions by Channel 9 that are in issue here), Professor Petrovsky accepted that vaccination might modestly reduce infection and transmission.
(ii) More recently, Vaxine's social media pages have taken a strong line against Australian health authorities, accusing the TGA of corruption and lauding Professor Petrovsky for exposing "the false and misleading claims being made by the State and Federal Health Departments". Through Professor Petrovsky's wife, Vaxine has sought public funding through GoFundMe. Its pitch for public donations included statements such as that the Health Department and the TGA "are effectively acting as the marketing department of Pfizer", and that Vaxine was being attacked because it was "challenging the New World Order". Professor Petrovsky sought to distance himself from these statements (and from the video mentioned above). However, given his role in Vaxine, it is implausible that he was not aware of them and did not at least acquiesce in their being made.
(iii) The GoFundMe page mentioned above also contained a link to the video, published online, of an interview in which Professor Petrovsky participated around April 2023. He agreed that his statements in the interview reflected his honest views at the time. He spoke at length concerning vaccine and mask mandates, which he said were scientifically unjustified and an infringement of civil rights. He suggested (in summary) that responses to the pandemic in Western countries involved a "coordinated" program aimed at "mind control and behavioural control". The behaviour of scientists (other than Professor Petrovsky himself) came in for heavy criticism: he regarded his peers as constantly competing for resources and the ear of government.
(iv) Since 2022 Professor Petrovsky has given expert evidence in at least 8 other proceedings in Australia and New Zealand in support of individuals attempting to challenge vaccine mandates. It would be inappropriate to canvass how his evidence has been received in other cases and I have not done so. It should also be said that there is nothing intrinsically wrong with being in demand as an expert witness. However, this level of activity suggests commitment to a cause. In one of these proceedings, Professor Petrovsky's Telegram account ("Team Petrovsky") was used to raise funds for the applicant. This is inconsistent with the disinterestedness that is to be expected from an expert witness.
(v) In 2021 Professor Petrovsky was not permitted access to the Flinders Medical Centre, where he held an appointment, because of a public health order which required him to be fully vaccinated. He said, perplexingly, that he "didn't see the need" to receive one of the Provisionally Approved Vaccines after having received a dose of his own vaccine and tested his blood. This was a strange characterisation of a situation which led to Professor Petrovsky needing to take leave for an extended period as a result of his refusal to do a very simple thing. This episode, and some inconsistencies in how Professor Petrovsky had described it, were advanced by Channel 9 as a further reason to be sceptical about his opinions. However, later in his evidence, Professor Petrovsky said that he had made a judgment about receiving a Provisionally Approved Vaccine based on the risks and benefits as he saw them. If that is the explanation, it suggests a degree of fear about the potential consequences of the particular vaccines rather than an overarching objection to vaccine mandates. I therefore do not regard this particular episode as standing in the way of acceptance of Professor Petrovsky's evidence.
(vi) Professor Petrovsky's ideological position was apparent in some aspects of his evidence. For example, his first report included a section arguing that vaccine mandates are destructive of public trust and therefore intrinsically counterproductive, even though this was not within the scope of his expertise or the question he had been asked. In his oral evidence he expressed the view that, as a clinician, he would not administer a vaccine to somebody who asked for it in order to comply with a requirement imposed by their employer, because he would not regard that person as giving informed consent to the procedure.
133 A reasonable employer considering whether to require its workers to be vaccinated for COVID-19 would have had regard to statements by government health authorities and advisory groups (which can also be taken to represent prevailing medical opinion in Australia at the time, if that is the relevant test). Various statements concerning vaccination for COVID-19 were published during 2021 by the Australian Technical Advisory Group on Immunisation (ATAGI), a group of 15 experts responsible for consulting relevant organisations and advising the Commonwealth Minister for Health. They canvassed information concerning the small number of known cases of severe adverse effects of vaccination and stressed the need for individuals to weigh the risks for themselves, but were uniformly supportive of vaccination.
134 A statement by ATAGI published on 13 July 2021 said in part:
The benefits to the individual of being vaccinated include avoiding severe COVID-19 outcomes, such as hospitalisation, intensive care unit admission and death, as well as chronic post-COVID-19 conditions ('long COVID'). Other benefits of vaccination including [sic] reducing the risk of passing the virus to close contacts including family, friends and work colleagues, and the potential to help reduce community spread of the virus. In outbreak settings, the benefits of COVID-19 Vaccine AstraZeneca are increased compared with non-outbreak settings. When the virus is spreading in the community it is critical that as many people as possible are vaccinated as quickly as possible.
In both outbreak and non-outbreak situations, ATAGI considers the benefits of COVID-19 prevention to outweigh the small risk of adverse events including TTS in those 60 years or older. ATAGI therefore reinforces the benefits of vaccination with COVID-19 Vaccine AstraZeneca in these individuals.
In outbreak settings, such as that currently occurring in Sydney, the benefits of vaccination are greater. Given the changes to the risk-benefit equation, ATAGI recommends adults under 60 years who do not have immediate access to Comirnaty (Pfizer) should re-assess the need for vaccination with AstraZeneca given these greater benefits.
(Emphasis added.)
135 ATAGI issued detailed clinical guidelines for the three Provisionally Approved Vaccines on 8 October 2021. Under the heading "Vaccine effectiveness against SARS-CoV-2 transmission", the guidelines referred to data from studies in the UK and Finland which "showed" or "suggested" that each of the Provisionally Approved Vaccines was effective in preventing onward transmission of the virus to close contacts in cases of breakthrough infections. In a statement canvassing vaccination of children for COVID-19 issued in December 2021, ATAGI said that it had taken into account "the benefits that vaccinating this age group would have for the broader community through reduced transmission levels and greater protection for older and more vulnerable Australians" - an observation that clearly envisages vaccination having an effect on the likelihood of transmission of the virus. A statement issued later in December 2021, addressing the Omicron variant, said in part:
The effectiveness of a booster dose to prevent onward transmission of Omicron from infected persons, and the duration of protection afforded by a booster are currently unclear. It is expected a reduction in symptomatic infection will parallel a reduction in transmission.
136 The Australian Health Protection Principal Committee (AHPCC) was chaired by the Commonwealth's Chief Medical Officer and had as its members all of the State and Territory Chief Health Officers. It also published several statements on responses to the pandemic in 2021. A "statement on recommendations for managing COVID-19 health risks" published on 12 October 2021 said, in part:
It is important to remember that regardless of age or medical conditions, COVID-19 vaccination reduces an individual's risk of severe COVID-19. In addition, the risk of exposure to COVID-19 is reduced as more people in the community are vaccinated against COVID-19.
(Emphasis added.)
137 A reasonable employer might also have had regard to guidance for employers issued by the Australian Chamber of Commerce and Industry. A guide issued by that body in August 2021 suggested "key messages" to communicate to employees, including:
• Vaccines are the way out of this pandemic. Vaccines are the best way to protect yourself and those around you from the virus.
• The COVID-19 vaccine has already saved thousands of lives by preventing the spread of the virus.
• Vaccinated people are far less likely to get symptoms from COVID-19 … There's growing evidence that vaccinated people are also less likely to pass the virus to others.
138 There was thus a reasonable basis, in October 2021, for the Channel 9 group to take the view that requiring its staff and contractors who attended its workplaces to be vaccinated for COVID-19 would help to reduce the scope for transmission of the virus to other workers. That understanding remained a reasonable one at least up to January 2022, when Channel 9 decided to terminate the Services Agreement for the reason (among others) that Mr Tredrea had not been vaccinated or shown any inclination to do so.