14 December 2022
Spectator Australia readers will recall an application for judicial review of the mandatory vaccination orders in Western Australia in that state’s Supreme Court by Senior Constable Ben Falconer was dismissed by Justice Jeremy Allanson last August.
Since then the judgments in Falconer and Finlay v Commissioner of Police and Falconer v Chief Health Officer matters have been reviewed, and grounds of appeal have been filed in the WA Court of Appeal in the Commissioner of Police matter. Grounds of appeal will be filed soon in the Chief Health Officer matter.
Following the judicial review outcome in August, WA’s new Police Commissioner, Col Blanch, commenced proceedings to dismiss Ben Falconer and more than 30 of his colleagues who did not want to be forced to choose between their jobs and the Covid jab. This is despite the relevant mandatory vaccination orders being revoked in late April, before the challenge was even heard.
Therefore, on November 28 last, Ben Falconer’s solicitors sought an interlocutory injunction to restrain the Commissioner of Police from taking further disciplinary action or dismissing Senior Constable Ben Falconer before the judicial review appeal outcome was known. Following a hearing before two Justices of the WA Court of Appeal, an injunction was granted, thus protecting Senior Constable Ben Falconer’s employment until judgment on the appeal is handed down. A further order was made that the costs for seeking the injunction are to be met by the Commissioner of Police.
In his judgment Murphy JA stated:
‘We are satisfied that the appeal has reasonable prospects of succeeding in the relevant sense.’
And when commenting on a particular ground of the appeal he stated:
‘… it is arguable that the Police Act, and regulations made under that Act, do not authorise an order requiring a member of the Police Force to undertake a medical procedure to which that officer does not consent.’
Further comment was made by their Honours regarding Ben Falconer’s willingness to work, yet he and his colleagues being prevented from doing so, despite record numbers of resignations from the force.
While a date has not been set for the appeal, it is anticipated that it will be heard in the first half of next year.
Further information on Ben’s challenge can be found here.