SA Judicial Review

South Australian Emergency Powers Court Challenge

Update: “The Trial has now been adjourned to Tuesday, 5th April for three consecutive days with the Friday of that week also reserved to ensure the matter will complete in that week.”

What is the case about?

In March 2020, the SA Police Commissioner declared a state of emergency about COVID-19 in South Australia under the South Australia Emergency Management Act. This granted him very large and extensive powers to make orders relating to COVID-19. The state of emergency has been continued since that time.

These emergency powers are ordinarily only used when there is a natural disaster, like a flood or earthquake. They are meant to be temporary to restore the status quo. For this reason, these powers are not granted to the Premier, any Ministers, or even any member of Parliament. As a matter of law, they are granted solely to the Police Commissioner, who is not required to even consult with the Government of the day about them.

Under those powers, the Commissioner has now made laws requiring mandatory COVID-19 vaccinations for police officers, health care workers, teachers and now firefighters.

The case challenges the continuation of the state of emergency and the Commissioner’s power to continue to make these laws. The applicants ask the Supreme Court of South Australia, the highest Court in the State, to declare them unlawful.

What are the legal arguments in the case?

There are four arguments against the lawfulness of the actions of the SA Police Commissioner.

The first is that the state of emergency effectively suspends our elected representatives’ role in making laws while there is an emergency. The applicants argue, however, that the true effect of the Emergency Management Act is that it cannot be used to declare an emergency of any longer than 30 days without the matter going back before both Houses of the South Australian Parliament. This has not occurred, and the continuation of the emergency is therefore unlawful.

The second is that, even if the continuation of the emergency is legal, the Emergency Management Act does not grant the Police Commissioner to make laws in a similar way to an Act of Parliament. This is what the vaccination mandates directions look like and effectively are – mini-Acts of Parliament. Instead, the Emergency Management Act only allows him to give orders or directions to individuals to deal with the immediate emergency. It is then up to the elected representatives to debate and make longer term laws. The mandates (and any other “law”) made by the Commissioner are illegal.

The third argument is that the Commissioner has stated that one of the purposes of the vaccine mandates is to prevent the transmission of COVID-19 from unvaccinated persons to vulnerable people. However, the applicants say that, because of the number of vaccinated people in South Australia, there are different ways to prevent the spread of COVID-19 for hospital workers, teachers and so on that are just, if not, more effective than mandating vaccination. Many people (like the applicants) have strong beliefs about being made to have this type of vaccine against their will. It is argued that the Commissioner could implement the other effective ways to protect all people without infringing those beliefs of those who do not want to be vaccinated. The applicants allege that, because of the effect on people who do not consent, the Commissioner was required as a matter of law to consider any other effective other way and did not do so, and therefore the directions were not lawfully made.

The fourth argument also relates to that purpose of the mandates. The applicants argue the Commissioner is relying upon outdated science, that refers to the original strains of the virus, in making these decisions. The applicants argue that the science shows that the COVID-19 vaccines do not, in fact, affect the spread of the virus, particularly the Delta and Omicron strains. They say that the Commissioner’s decision to mandate vaccines for that purpose is only valid if there is a logical and reasonable basis for it, and it cannot be logical and reasonable if the state of the science today says there is no effect on transmission of vaccination.

But isn't that argument against the weight of scientific evidence?

The applicants have retained Professor Nikolai Petrovsky of Flinders University to give expert evidence on their behalf. Professor Petrovksy is a world leading expert on vaccines and has developed his own protein-based vaccine against COVID-19 for which he is seeking approval from the Australian authorities. Professor Petrovksy has written a report for the case stating that, on the state of scientific evidence as at January 2022, there is no scientific evidence or data to support the vaccines stopping or reducing the transmission in respect of the Delta or Omicron strains. This is reflected in the position beginning to be taken in England, Denmark, Ontario and some of the states of America.

Aren't you then saying that the Commissioner is acting in bad faith?

The Commissioner is acting upon the legal advice and scientific material presented to him. He is doing what he thinks is in the best interest of the State based on that material.
However, the process of making these directions is entirely secret. One of the issues of the case will be to examine, in a public and open forum, just how these decisions are made and whether, in fact, they are being made according to the law.

Haven't these sorts of cases already been ruled against in other States?

There have been unsuccessful challenges to mandatory vaccination laws in New South Wales. However, those decisions were made based on the different laws of that State and different evidence presented to the Court. Importantly, none of the unsuccessful cases to date have sought to bring forth scientific evidence regarding the effect of vaccines on transmission. None of them have addressed the laws of South Australia concerning the Emergency Management Act.

Who are the applicants?

The case is a test case.

Each of the applicants is a representative of a class of people who are affected by the continuation of the state of emergency, e.g. a nurse, a teacher, and a police officer.

If the Court declares the continuation of the emergency unlawful, or declares the mandates unlawful, then this will affect everyone in the entire State. All of the directions will be unlawful and not enforceable against anyone in South Australia.

When is the case next in Court?

The proceedings came before the Supreme Court on 17 2 22. All of the Applicants were present. Simon Ower QC for the Applicants told the Court that it seemed that the Police Commissioner was not intending to give evidence and neither was Ms. Spurrier. Instead the Crown had filed an affidavit of another police officer who serves under Stevens which attempts to describe was what before Stevens when he made his vaccine -mandate Directions.

Much of it is hearsay and will be the subject of objection by the Applicants. Simon Ower told the Court about the paucity of information the Crown had provided to date.

The trial will now commence on 17th March and continue on the 18th and the 24th March.

Importantly, following the hearing the Crown have consented to Protective Costs Order sought by the Applicants which caps the costs that can be awarded against them if they are unsuccessful in an amount of $50,000.

This is the first time such an order has been made in South Australia and provides the Applicants with great peace of mind in these important proceedings brought in the public interest.

Mr. Ower also told the Court that the applicants would seek that arrangements be made to livestream the trial.

Money is still desperately needed to enable the Judicial Review to proceed. Please donate as much as you can to my Judicial Review Trust Account. 

How are the applicants paying for the costs of the case?

The case is being crowdfunded by donations. Most of the lawyers involved are being paid on ordinary rates, with no mark up or bonuses. The rest are acting pro bono. The crowdfunding is being raised not only to pay these fees, but to meet any order that the applicants pay the Commissioner’ s legal costs if the case is unsuccessful.

All donations towards legal fees are paid to the solicitor for the applicants, and then being held in a trust account. Like all trust accounts, this account is supervised by the Law Society of South Australia.

The applicants are also seeking procedural orders from the Court prior to the trial of the case regarding legal costs to ensure the fairness and transparency of the use of the crowdfunding in the case.

Can I donate?

Yes! Please contact us to discuss.

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