Unvaccinated rehabilitation nurse Danielle Davis, who has been on unpaid leave from her position within Ballina Hospital since September 30, applied for an administrative review of the legal validity and merits of the public health order on September 23.

The order, made under section 7 of the Public Health Act 2010 (NSW) in August by NSW Health Minister Brad Hazzard in response to the outbreak of the highly-contagious Delta variant of the coronavirus, mandated COVID-19 vaccinations for all NSW Health staff, with the first vaccination required by September 30.

In a judgment handed down on Monday, Principal Member Linda Pearson said the appropriate course was to dismiss the action given the administrative review jurisdiction conferred on it by the Public Health Act did not allow it to review the making of the order.

The Tribunal said the function of determining the legal validity of the order was for the Supreme Court to discharge, as the court has been tasked with in the recent cases brought by construction worker Al-Munir Kassam and aged-care worker Natasha Henry against Hazzard. Supreme Court Justice Robert Beech-Jones dismissed those challenges on October 15, declaring Hazzard was within his rights to make the controversial call, as it did not breach workers’ rights to bodily integrity.

Davis claimed her challenge differed because she did not question Hazzard’s power to make the order, but rather contended, by reference to the NSW Health Consultation Paper, that the Tribunal had the power to review “the actions taken by the minister and the directions given by the minister” given the order was of an administrative, rather than legislative, character.

“Ms Davis submits that the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 25 of the Administrative Appeals Tribunal Act 1975 (Cth), case law, and extrinsic materials support her contention that this unregulated and parliamentary unscrutinised order is reviewable by the Tribunal,” the Tribunal said.

The nurse argued the public health order was administrative in character because it presumed it was unsafe for the subsection of health care professionals who remained unvaccinated against COVID-19 to remain in their positions, rather than making a “regulation reviewable based on findings regarding the … virus and its management”. Justice Beech-Jones’ judgment did not definitively determine whether the public health orders were of an administrative or legislative character, deciding it was not necessary to determine that question.

Davis said the order should be reviewed on nine grounds, arguing it breached the rules of natural justice, was not justified by the evidence and was based on “a particular fact which did not exist”.

In letters sent from Davis to the director of the Northern NSW Local Health District, Richard Buss, she stated “she was not satisfied with the information received to make an informed decision and therefore be able to provide informed consent for the vaccine and requested further clarification of the outcome of not submitting to the request for COVID-19 vaccination.”

The Tribunal also dismissed Davis’ application made under s 60 of the Administrative Decisions Review Act 1997 (NSW) for a stay of the order on October 8.

A “third wave” of challenges to the state vaccination order will be heard by the NSW Supreme Court in early November, as paramedic and deputy Mayor of the Snowy Valleys Region in southern NSW, John Edward Larter, plans to raise a “distinct issue as to what constitutes a reasonable excuse for non-compliance with the orders and a large factual question about whether the plaintiff has such an excuse”.

Davis was represented by E Turner. The Minister for Health and the Northern NSW Local Health District were represented by Zelie Heger, instructed by Crown Solicitor.

The case was Davis v Minister for Health [2021].

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