When a judicial officer goes rogue …

The dissenting judgment of Fair Work Commission Deputy President Lyndall Dean in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, a Full Bench appeal decision which upheld the dismissal of an employee at an aged care facility over their refusal to receive the influenza vaccine, which was mandated in early 2020 by the NSW Government for employees in aged care facilities, to protect the vulnerable residents of such facilities, has certainly caused a stir.

As a disclaimer, I should note that I’m fully vaccinated against both the influenza and COVID-19. For COVID-19 I received two doses of the AstraZeneca vaccine, and one dose of the Pfizer vaccine.

In respect of my COVID-19 vaccinations, I have personally read the published results of all preliminary animal and subsequent human clinical trials for the vaccines currently approved in Australia, and all related materials published by the Australian Therapeutic Goods Administration, together with their relevant guidelines and processes for approving therapeutic goods in Australia, including vaccines, and also discussed the vaccines with my GP. Consequently, I am satisfied with the overall safety and effectiveness of those vaccines.

As for the dissenting judgment of Deputy President Dean which has been described in various media outlets as ‘extraordinary’, and demonstrating an ‘ideological divide’ when it comes to vaccination, I would say that I find the dissenting judgment ‘extraordinary’ alright, but largely because while the majority judgment is based on the facts of the case and, what I would consider, solid legal reasoning, the ‘dissenting’ judgment reads more like a pseudo-legal collaboration between Pete Evans, Craig Kelly, George Christensen, and any garden-variety conspiracy website … come to think of it, that’s actually more embarrassing than ‘extraordinary’.

The author of the dissenting judgment has likely succeeded only in creating legal infamy, a valuable future teaching moment in law schools and, arguably, even bringing the judiciary into disrepute with this highly questionable ‘contribution’ to jurisprudence.

Granted, the dissenting judgment does reveal an ‘ideological divide’, but no one should mistake that ideological position for good science, or good jurisprudence.

In fact, the dissenting opinion takes a strong ideological position in the opening paragraphs, and then throws everything at it to justify it, including the kitchen sink, and then goes off on a COVID-19 vaccine tangent which is entirely irrelevant to the case before the Commission, further highlighting the highly ideological nature of the dissenting opinion in the process.

The sad thing is that there will be a certain minority section of the community that will now latch on to these dissenting words, and will be quoting them as some kind of ‘authority’ for their various misguided, and highly uninformed, opinions.

However, at the end of the day it is only a ‘dissenting opinion’, and not the judgment of the Commission. Nevertheless I suspect that those who would usually rail against so-called ‘activist judges’ and ‘activist judgments’ will find a way to welcome what can only be considered an activist, but at the same time deeply regressive, opinion.

Postscript – 15 October 2021: today, Justice Robert Beech-Jones of the Supreme Court of NSW, somewhat predictably, dismissed legal challenges to the vaccine mandates in NSW in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, concluding that ‘[a]ll of the asserted grounds of invalidity raised by both sets of plaintiffs have been rejected. Both proceedings must be dismissed.’

In that judgment His Honour slapped down, hard at [64-70], the controversial and highly questionable pseudo-legal musings of the Fair Work Commission’s Deputy President, including noting that ‘the Deputy President’s judgment concludes with a number of clarion calls imploring “all Australians” to do things such as “vigorously oppose the introduction of a system or medical apartheid and segregation” (at [182]) and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID” (at [183]). Political pamphlets have their place but I doubt that the Fair Work Commission is one of them. They are not authorities for legal propositions.’

Postscript – 27 October 2021: it would appear that my concerns were shared widely enough within the legal profession, as it was reported today that the Deputy President has now been instructed to undertake professional conduct training, has been excluded from appeal cases until the completion of said professional conduct training, and also disqualified herself from workplace vaccination cases on the ground of bias. Fair Work Commission President Iain Ross reportedly informed Attorney-General Michaelia Cash of these developments.

These action came after the Deputy President was also revealed by the media to have ‘endorsed a social media post likening public-health measures tackling the coronavirus to ‘Chinese-style totalitarian social control’, and suggesting the world is on a path to a Holocaust-like catastrophe.’

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