Judge dismisses call for her to stand down in no jab, no work challenge

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The judge who will hear the legal challenge to Victoria’s COVID-19 vaccine mandate has dismissed a call for her to excuse herself from the case after lawyers representing about 130 plaintiffs raised questions over a perception of bias.

Workers including nurses, other healthcare professionals, teachers and emergency services responders have accused Victoria’s Chief Health Officer, Brett Sutton, and his colleagues of breaching the state’s Human Rights Charter by imposing vaccine mandates over several industries, in what is in effect a no jab, no work policy.

Simon Harding is the lead plaintiff in the challenge against mandatory vaccinations in Victoria.Credit:Chris Hopkins

Lawyers say some members of the group have already lost their jobs under the mandate, which required authorised workers to prove they’d had their first COVID-19 vaccination by October 15 and will have a second by November 26. The group wants the legal challenge heard in the Supreme Court as soon as possible.

But in a directions hearing on Wednesday, barrister Marcus Clarke, QC, for the plaintiffs, called on Justice Melinda Richards to excuse herself from overseeing the trial.

The application was based on Justice Richards’ refusal on October 22 to schedule an urgent hearing to decide the case and her previous occupation as Crown counsel for Victoria between 2015 and 2018, when she advised and appeared as a barrister for the state government and took part in a review of the Human Rights Charter.

Mr Clarke said those factors had the potential to create the perception the judge would not act impartially.

“It’s quite clear that a number of people will, on the orders themselves, lose their employment – and some have – if they don’t become double vaccinated,” he said.

But after a one-hour adjournment to consider the request, Justice Richards dismissed the application, confirming she would continue overseeing the case. The trial is set to start in either late November or early December.

In her ruling, Justice Richards said she decided not to schedule an immediate hearing because at the time the plaintiffs’ case lacked supporting evidence, so she set a directions hearing.

Justice Richards also said there was “no logical connection” between her decision on the case and her past role. She said she would decide the case and other questions of law on their merits. The case was allocated to her because she could hear it before the end of the year.

Casual relief teacher Belinda Cetnar (right) and her husband Jack (left), who also works at a school, are among those have challenged Victoria’s vaccine mandate.

Victorian Solicitor-General Rowena Orr, QC, for the state, earlier said it was up to the plaintiffs to persuade the judge to stand down.

After her ruling, Justice Richards discussed with the parties pre-trial issues, including lodging documents, expert evidence and both sides’ preference to hear the trial this year. Another directions hearing will be held next week.

The workers opposing the no jab, no work policy claim Professor Sutton acted “unlawfully” by overriding several fundamental freedoms protected by the Human Rights Charter, and that he and acting chief health officers acted under the “direction and at the behest” of Premier Daniel Andrews.

The original statement of claim against the mandate was filed by relief teacher Belinda Cetnar and her partner, horticulturalist Jack Cetnar, who claimed the policy contravened the Constitution, the Biosecurity Act, the Fair Work Act and the Nuremberg Code.

They have since been replaced as lead plaintiff by G4S corrections officer Simon Harding, who was placed on unpaid leave on October 15 after not receiving the vaccine. He said he was not anti-vaccination, but chose not to take the COVID-19 vaccination over concerns about potential side effects and the lack of long-term safety data.

The group’s case runs contrary to public health advice across Australia, which insists vaccination rates above 80 per cent are the best way to prevent serious illness from COVID-19.

In a separate case, solicitor Jonathan Andrews appeared before the court on Wednesday in his challenge against restrictions and the reliability of COVID-19 testing. Lawyers for the government argue the case is bound to fail and will argue for its dismissal on December 7.

With Cameron Houston, Tammy Mills

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