Workers’ bizarre constitutional vax defence

Two disability workers sacked for not getting their Covid-19 vaccinations have claimed public health orders requiring they be vaccinated are “inconsistent” with a section of the Australian Constitution, a commission has been told.

The Fair Work Commission slammed the arguments from Shani Southwell and Stephen Prager as “without merit” after the pair filed unfair dismissal applications against their employer New Horizons.

In 2021 the pair were required to be vaccinated against Covid-19 under NSW’s public health orders, but neither provided proof of vaccination.

They were subsequently dismissed from their positions.

Both Ms Southwell and Mr Prager were represented by Alex Smith – a “non-paid representative” who argued that vaccines were part of a “clinical trial” in a separate Fair Work judgment.

Fair Work Commission deputy president Michael Easton said Mr Smith argued for the pair that the orders to be vaccinated were inconsistent with “section s. 51 (xxiiiA)” of the Australian Constitution.

“Mr Smith has run this very same constitutional argument in several proceedings in the Commission and the argument has lost every time,” Mr Easton said.

“The argument itself is without merit and has been so comprehensively rejected by Courts and tribunals that it should not have been raised.”

On the morning of the first hearing, Mr Smith tried to argue that the injection of Covid-19 vaccines was “participation in a clinical trial” by means of “constructive fraud”.

He said the public health orders could not be complied with because no vaccines had “actually been approved”.

Mr Easton said Mr Smith and the applicants had pointed to snippets within documents that “generally” refer to clinical trials, including parts of the Therapeutic Goods Administrations’ website.

Mr Easton said this was “fanciful and defies common sense”.

“If in fact there are no vaccines generally approved by the TGA, and ‘provisional’ approval is only for the limited purpose of clinical trials, the Australian community would expect the TGA to unambiguously say as much in every relevant document it publishes about vaccination,” he said.

Mr Easton said the rest of the pair’s submissions used “many legal phrases and terms” but he said none of them contained any points of substance.

“The proposition advanced by the Applicants is, to borrow phrases usually applied in strike out applications: so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument,” he said.

Mr Easton found the dismissals were not unjust or unreasonable and dismissed the pair’s applications.