In September 2021, a three-member appellate panel from the Australian Labour Board dismissed the appeal of Jennifer Kimber, a worker at a nursing home. Kimber claimed unfair and wrongful dismissal. She claimed that in 2018 she suffered an adverse reaction to a flu shot and sought an exemption from any further vaccinations.
Even though Kimber offered medical proof of her condition, the Appeal Board was not impressed. In dismissing the appeal, the majority said, “We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.’
In a withering attack on the majority’s opinion, Lyndall Dean, the dissenting judge, made perfect sense. In a final comment, he said, ‘Mandating vaccines for everyone is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.’
Judge Dean argued:
‘Research in the context of COVID-19 has shown that many who are vaccine-hesitant are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. A far safer and more democratic approach to addressing vaccine hesitancy, thereby increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.
The statements by politicians that those who are not vaccinated are a threat to public health and should be locked out of society and denied the ability to work, are not measures to protect public health. They are not about public health and are not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the public health authorities is genuinely to reduce the spread of COVID-19, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until they have recovered.
Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
‘All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.
‘Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if a person is not allowed to question it.
“Finally, all Australians, including those who hold or are suspected of holding ‘anti-vaccination sentiments,’ are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.”
In a thoughtful and wide-ranging review of the literature, Dean cited the Great Barrington Declaration, a statement by infectious disease epidemiologists and public health scientists, which recommended an approach called Focused Protection. The GB Declaration includes the following:
Current lockdown policies are producing devastating effects on short and long-term public health. The working class and younger members of society carry the heaviest burden. Keeping students out of school is a grave injustice.
We know that vulnerability to death from COVID-19 is more than a thousand-fold higher in the old and infirm than the young. Indeed, for children, COVID-19 is less dangerous than many other harms, including influenza.
The most compassionate approach that balances the risks and benefits is to allow those at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while better protecting those at the highest risk. We call this Focused Protection. Adopting measures to protect the vulnerable should be the central aim of public health responses to COVID-19.
Those who are not vulnerable should immediately be allowed to resume life as normal. Simple hygiene measures, such as hand washing and staying home when sick, should be practised. Schools and universities should be open for in-person teaching. Extracurricular activities, such as sports, should be resumed. Young low-risk adults should work normally rather than from home. Restaurants and other businesses should open. Arts, music, sport and other cultural activities should resume. People who are more at risk may participate if they wish, while society as a whole enjoys the protection conferred upon the vulnerable by those who have built up herd immunity.”
Since the GB Declaration was first made, over 860,000 scientists and health professionals have signed the GB Declaration.
Judge Dean also cited documents produced by the United Nations Office of the High Commissioner for Human Rights, which said:
“Governments have to make difficult decisions in response to COVID-19. International law allows emergency measures in response to significant threats — but measures that restrict human rights should be proportionate to the evaluated risk, necessary and applied in a non-discriminatory way. This means having a specific focus and duration and taking the least intrusive approach possible to protect public health.’
“Concerning COVID-19, emergency powers must only be used for legitimate public health goals, not used as a basis to quash dissent, silence the work of human rights defenders or journalists, deny other human rights or take any other steps that are not strictly necessary to address the health situation.”
Judge Dean makes the profoundly simple point, “Science is no longer science if a person is not allowed to question it… Mandating vaccines for everyone is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.’’
We could not agree more.
This Plain Talk reprint from October 21, 2021, makes even more sense today.