Legal Sabotage: Kassam v Hazzard; Henry v Hazzard [2021]
The class action case against NSW Health Minister Brad Hazzard regarding mandatory vaccination orders was set up for failure. As a result, legal precedence now states that the NSW Covid-19 Public Health Orders are reasonably appropriate.
Summary of Legal Issues
One of the proceedings was brought by Mr Al-Munir Kassam and three other persons. They attempted to sue the Minister, the Chief Medical Officer, Dr Kerry Chant, the State of New South Wales (NSW) and the Commonwealth of Australia. They contended that the Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (“Order (No 2)”), and section 7 of the Public Health Act (PHA), are invalid.
The other proceedings were brought by Ms Natasha Henry and five other persons. They attempted to sue the Minister only. They sought declarations that Order (No 2) is invalid along with the Public Health (COVID‑19 Aged Care Facilities) Order 2021 (NSW) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW).
In summary, both proceedings challenged the validity of the above Public Health Orders (PHO/s) made by the Minister for Health and Medical Research of NSW on the following grounds:
- The PHOs were made outside of the power conferred by section 7 of the PHA; or
- Represents an unreasonable exercise of the power because of its effect on fundamental rights and freedoms;
- The manner in which Order (No 2) was made was unreasonable;
- Orders were made for an improper purpose;
- That in making them the Minister failed to have regard to various relevant considerations;
- Asked the wrong question or took into account irrelevant considerations; and
- Obliged but failed to afford natural justice.
Section 7 of the PHA confers to the Minister for Health the power to make orders amid a specific emergency situation that is going to be or likely be, a risk to public health. However the authority to exercise the conferred power is subject to conditions outlined in the section itself. Conditions subject to the authority to exercise powers include:
- The Minister must “consider” on “reasonable grounds” that a situation has arisen that is or is likely to be, a risk to public health.
- The power is activated by a determination that there is a “risk” to public health and the power is exercised to “deal with the risk and its possible consequences”.
- The power conferred on the Minister by s 7(2) is to take “action” and “by order give direction”.
- the Minister must conclude before exercising the power conferred by s 7(2) is that the relevant action or order is “necessary”.
- An exercise of power under s 7(2) is premised on the Minister “consider[ing]” it “necessary to deal with the risk and its possible consequences”.
Legal Sabotage
There was no contention by either set of plaintiffs that the first condition outlined in section 7 of the PHA was not satisfied. Why not? Wouldn't it have been appropriate to question the Minister about the nature of the risk to public health? Otherwise how else would one ascertain whether the health orders are reasonable if the risk is unknown? Moreover, what impact would the risk have had on public health had it not been for the PHOs? What situation would NSW find it's self in if 80% of the NSW adult population was not vaccinated? These are some of very important questions the plaintiffs legal representatives failed to put forward to the defendants. Instead they raised contentions which the Court does not have the function to adjudicate on.
It is one of the Court's functions to determine whether a decision is so unreasonable that no reasonable person could have made it. However, it is not the Court’s function to determine the merits of the exercise of the power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risks to the public health supposedly posed by the Delta variant. But the legal team representing the plaintiffs did exactly that. Their arguments were primarily based on the premise that the Minister should've at least considered alternative measures for PHOs which don't happen to violate certain human rights. More to the point, there was no point arguing this in Court because judging the merits of Ministerial actions is beyond the Court's functions. If you're a lay reader, separation of government powers is a legal doctrine taught in the first year of law courses, so don't be under the impression that this blunder was an honest mistake. Both these proceedings were set up to fail.
Unhinged Legal Representatives
Yes, the remark about the blue eyed babies is pathetic, especially coming from a lawyer but there is a reason behind him saying that. The effect of the remark is listeners attributing irrelevant information to the case, causing them to form a misconceived perception of what the case was actually about. The main issue concerning the legality of the orders has nothing to do with common law rights but rather the reasonable grounds on which the Minister concluded there is or likely to be a risk to public health.
The issue people should be focussing on is the absence or lack of reason justifying the PHOs, not whether they infringe "common law rights". Since the pandemic began till this day, the Minister for NSW Health of Brad Hazzard has yet to reference any source of scientific information or expert advice which suggested to him that Covid-19 poses a risk to public health.
The next alarming issue shown in the clip is the interviewer Monica Smit falsely claiming that the case was lost because there is no bill of rights, that was absolutely NOT the case. Charlatan Nikolic didn't bother correcting Smit's misconception and by failing to do so again leading listeners to believe another misconception to be true.
Section 51 (xxiiiA) of the Australian Constitution provides that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
"... the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; ..."
I think only Nikolic is the only person shocked over the rejection of the raised constitutional issues. Vaccination mandate orders are not a form of civil conscription, they don't force people to take the vaccine but instead supposedly intended to protect people at most risk of severe Covid-19 symptoms.
Again, Nikolic here is attempting to cause listeners to create the false misconception that vaccination mandate orders are a breach of constitutional rights. I will say it again, the Court did not and does not have the powers to adjudicate on the issues raised, especially in the factual context of the class action.
The despicable violations of human rights occurred when the NSW citizens were forced to stay home and threatened with hefty fines to who does not comply. Tony Nikolic, Monica Smit and those alike within the so-called freedom movements have made you forget the REAL issues stemming from all that's transpired in the second half of 2021. Why didn't Nikolic and his team of charlatans feel the need to question the reason behind enforcing the most restrictive PHOs that world's ever seen on resident's living in the greater Western Sydney area?
What's more concerning? A vaccine that you're not forced to take? Or the government putting boundaries on your liberties? Can you begin to see how Nikolic is attempting to shift the public's attention away from the government's actual undue influence on people's livelihood? The hysteria surrounding the vaccine is deliberately perpetuated to cause the effect of smoke and mirrors.
Evidence Of Potential Risk to Public Health
Source: 22 June 2021 NSW Daily Covid-19 Update Conference
From watching the above video, one can gather that Brad Hazzard's understanding of the Delta variant's transmissibility is that it is a long jump gold medallist. The Health Minister has yet to disclose the scientific evidence or public health expert advice that gave him the impression that the Delta Variant is a long jump gold medallist. What everyone wants to know is what or who gave the Health Minister that impression? The plaintiff's legal representatives did not bother asking Brad Hazzard to explain himself in that regard. A long jump gold medallist? In all seriousness, is that supposed to be sufficient enough grounds to justify implementing the PHOs?
Source: 23 June 2021 NSW Daily Covid-19 Update Conference
Brad Hazzard can be seen in the above video saying that mask wearing and checking in using QR codes wherever and whenever necessary is a proportionate and sensible response to the Delta variant. What difference in information or advice made it apparent to Bradley Hazzard that it was necessary to implement the most restrictive PHOs the world's ever seen in Greater Western Sydney? Nonetheless, the PHOs did swipe away any apathy or tiredness towards compliance in Western Sydney that's for sure.
Source: 06 August 2021 NSW Daily Covid-19 Update Conference
"Delta doesn't understand borders, it doesn't understand boundaries. We are dealing with a different strain and unless you have literally a police officer outside every single household in NSW or on every single road, a ring of steel does not prevent Delta from seeping out". If the NSW government at the time understood that anything less than an officer outside every household won't prevent the spread of Delta, then what was the point of implementing lesser measures for example extending the means for exercising police powers and increasing police presence?
Counter-Narrative Shills
Tony Nikolic, Monica Smit, Avi Yemini, Joel Jammal, Ricardo Bosi, Christian "Mack" Marchegiani and the likes at the forefront of "freedom movements" are serving no other purpose than to distract you from the real issues of concern. One of them is actually a self-confessed murderer, Avi Yemini. He prances around Melbourne claiming to be exposing police over excessive use of force and intimidation tactics against protestors when in fact he has been sighted hiding behind police during protests, like a coward. He is a liar, a manipulator, a murderer and a pathetic disgrace. For those who don't know, Rebel News is considered as mainstream media just like Channel 7, Channel 9, Channel 10, ABC and Sky News etc, and this explains why police officers refrain from responding to his displays of utter disrespect. Police officers are instructed not to restrict agents of authorised credited mainstream media outlets from doing their jobs.
Pay attention to his facial expression when the police officer mentions Rebel News being mainstream media, it went from smug to a look that says "how dare you?". Subsequently after comes my personal favourite moment from the clip when the police officer brings attention to Yemini's "security fellow". That is absolutely hilarious. Why does he need a security guard?. I mean look at the bravery and courage he displays in seeking an apology from the police officer, very admirable. Actually in reality, Yemini has security to protect him from the same people he proclaims to be the voice of. Like I said, Avi Yemini is a liar and a coward, just like Tony Nikolic.
Opinion
Since the outbreak began, I have been critically monitoring the NSW government's response to the Delta variant and I can say for a fact that I have gathered enough evidence to suggest beyond reasonable doubt that the NSW government has been acting on furthering underlying agendas rather than limiting risk of the pandemic. I'm not necessarily saying this to convince readers into believing anything mentioned in this article, on the contrary I think most people already see the facade behind the Covid-19 narrative. Also neither am I under the impression that people don't see utter ridiculousness in all thats transpired this year. However, what I want to know is, why do people allow the known ridiculousness dictate their way of life? I appreciate every person having differing circumstances and as well the feeling of being compelled to adhere just so to prevent chaos from entering their lives. But still, the fear of chaos is inexcusable. What kind of life has the fear of chaos led you to form for yourself? How many lies is it going to take before people begin to realise that society's standards for a purposeful life is nearing rock bottom? Yes rock bottom, don't kid yourself, lies won't elevate life's purpose closer towards righteousness. Self-righteousness untainted by lies will help people reflect a righteous existence of their own into the world. Unlike politicians, I think all are capable of that.
Article by Adham Tebbie
Click or Tap on Opinions for more articles by Adham.
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