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Covid vaccination mandates under South Australia Judicial Review – Days 1 to 4

In recent months, we have seen a dropping of emergency management directives for the education sector and the police department, but the application for judicial review still continues on the basis of two decisions.

The first is a decision of the Governor to extend the state of emergency under the Emergency Management Act made on 2 March 2022 for a further 28 days.

The second is a direction given by the State Coordinator, the Commissioner of Police, on 4 March 2022 entitled the Emergency Management (Healthcare Setting Workers Vaccination No.7) (COVID-19) Direction 2022 which is described as the Seventh Healthcare Workers Vaccination Direction.

As many South Australians know in March 2020, the State Coordinator, using the South Australia Emergency Management Act, declared a state of emergency due to a stated SARS-CoV-2 viral pandemic.

The Emergency Management Act was written to be used acutely in the case of disasters, natural as in bushfires, earthquake, floods and even pandemics or perhaps man-made such acts of terrorism or hazardous radiation or chemical accidents.

These emergency powers given to the State Coordinator are inherently designed to breach individual rights due to the need for immediate ‘command’ like decisions to be made in time critical situations to normalize conditions and protect the public.

The Emergency Management Act was not written to grant the State Coordinator the ability to make laws in a similar way to an Act of Parliament. However, the directions enforcing mandatory vaccination for groups of people have effectively become mini-Acts of Parliament. It was written to allow orders or directions to be given to individuals to deal with the immediate emergency, not for compelling and controlling groups of people and especially not for a long time periods.

Democracy is there to serve the people. It dictates your elected representatives are required to debate and vote on longer term acts and therefore laws that become legally enforceable.

Wednesday 6 April, 2022, saw the 6 representative ‘applicants’, yes, there were 6, and no it’s not just high profile legacy media favourite Deni Varnhagen alone against the state of South Australia and Grantley Stevens, the Emergency Management State Coordinator.

To set the record straight and even give you the correct spelling of the names of these 6 applicants they are in no particular order:

  1. Deni Varnhagen (healthcare),
  2. Courtney Millington (healthcare),
  3. Craig Bowyer (education),
  4. Kylie Dudson (education),
  5. (Adam) Zacary Cook (police) and
  6. Rosalyn Smith (police).

Firefighters were at one point being considered as co-applicants in the judicial review but the urgency of this legal action and with the precedence that it would set; it had been decided to press ahead with the current 6 applicants above.

At present, despite the dropping of directives for Police and Education, our firefighters of the South Australian Metropolitan Fire Service (SAMFS) are still under the State Coordinator directive mandating the requirement of an up to date vaccination with a provisionally approved COVID-19 vaccine as a condition of workplace attendance. In effect this is preventing close to 6% of the SAMFS workforce from saving your life and financially providing for their families.

Day 1 provided the opening statements of both Mr Ower QC for the ‘applicants’ and Mr Wait SC for the ‘respondents’ (the State of South Australia and Grantley Stevens),

Justice Hughes was being asked to consider:

  • Has the State Coordinator exceeded his powers under the Emergency Management Act by continuing to enforce a state of emergency and use directive powers to prevent groups of society from attending their workplace?
  • Was the approval of the Governor to extend the state of emergency on 4 March itself invalid and therefore any direction that was thereafter imposed no longer of effect?
  • Does the Seventh Healthcare Workers Vaccination Direction use excess of power on grounds that it lacks proportionality based on the purpose under the Act?
  • Is it unreasonable, in a legal sense, that it mandates a control, COVID-19 vaccination that is not needed to control the emergency?
  • Was the Seventh Healthcare Workers Vaccination Direction based upon specific evidence for the risk of Omicron variant? The Omicron variant was almost the exclusive variant from January 2022 onwards. The applicants suggest there was in fact no evidence before the State Coordinator to support his findings that a directive introducing mandatory vaccination was required and could actually provide public protection from onward transmission of the Omicron variant of SARS-CoV-2.

Some keys points raised were:

  • The level of ‘effectiveness’ of the current provisional approved COVID-19 vaccines and how this effectiveness should be divided into 2 categories that of reducing the risk of developing symptomatic disease and reducing the risk of onward transmission and infection.
  • There were repeated requests of Professor Nicola Spurrier to provide further advice and evidence regarding the necessity to include the third dose in these directions. These requests were initiated by Mr Stuart McLean, Chief Superintendent of SAPOL and COVID-19 Response Coordinator, as of June 2021. Mr McLean’s role was providing support to the Commissioner, as the State Coordinator for the COVID-19 pandemic emergency.
  • The sole medical evidence provided by Professor Spurrier appeared to be in the form of an email or emails with dot points outlining her assertions that a 3rd dose of COVID-19 vaccine was necessary for protection against the Omicron variant. The critical dot point being that it would “reduce the chances of onward transmission in healthcare settings thereby reducing risk to both patients and staff”
  • It appeared that Professor Spurrier, based on materials given to the court, gave no further health or medical advice or evidence in relation to the risks of Omicron and the effectiveness of the COVID-19 vaccines to Mr McClean or the State Coordinator.
  • Mr Wait, for the respondents, argued against the legality and relevance of the subpoena for Professor Spurrier to take the witness stand. Mr Wait suggested the expert evidence of Professor Nikolai Petrovsky, for the applicants, and Professor Steven Wesselingh, for the respondents, would be the appropriate sources of technical evidence for the review.

We started day 2 with the expectation that, South Australian Chief Medical Officer, Professor Nicola Spurrier would be one of the first to give evidence.

Justice Hughes, however, ruled that “there is no relevant evidence that Professor Spurrier could give by reference to the grounds of review asserted”. The exact reasoning for this decision will be made available by Justice Hughes at a later date.

To many lay people present this would become a curious ruling given the nature of the Mr Wait’s concluding opening statements, as you will read below. Mr Wait had a desire for the State Coordinator, Grantley Stevens, not to be reviewed on the basis of the science and absolute facts, retrospectively applied.

We were led to accept that Grantley Stevens, through no fault of his own, had the potential to make critical life changing decisions based on imperfect information or even misleading information but the applicants would not have the pleasure of cross-examining the key person responsible for summarizing and reporting on the public health, science and medical information that Grantley Stevens used in making his decisions.

Mr Wait SC, for the ‘respondents’ concluding opening statements hoped to influence Justice Hughes’ decision on the basis of how the review should be considered.

Should the case be reviewed under the framework of ‘proportionality’, as requested, that seeks to determine if the tools and decisions made are an appropriate way of achieving an end goal. As law scholar Fritz Fleiner famously wrote in 1928, “the police should not shoot at sparrows with cannons”, gives us an extreme sense of the meaning of proportionality. Proportionality also suggests that the decisions of the State Coordinator would be based on a greater threshold of evidence.

Or should this case be reviewed under the framework of ‘reasonableness’ with only the need of ‘merit’ for the decisions of the State Coordinator? Would these decisions be valid when viewed through the eyes of a “reasonable person”.

Mr Wait and the respondents were in favour of using the reasonableness standard for the review.

Other points raised during by Mr Wait, for the respondents, at these opening statements included:

  • The State Coordinator role should not be considered one of an experts or technically skilled, but that of a “common sense” “pragmatic” decision maker. The State Coordinator was to use sensible experience to put in place sensible measures to address an emergency.
  • Expert information or evidence and opinion would have been primarily funneled to Mr Stevens via the Chief Medical Officer, Professor Nicola Spurrier.
  • There was no need to use absolute science or facts to justify his decisions, as these can be influx and changing during the time of the decisions.
  • The State Coordinator should not be subjected to retrospective objective data merit, but only the expert subjective information given to him.
  • The case should not be trialed on scientific objectivity applied retrospectively.
  • While using the review of reasonableness, a high threshold of evidence was still needed.

Justice Hughes also remarked on the potential need for a trigger for Mr Stevens to make further enquiries about the validity of the evidence, whether he needed to refresh his knowledge base before exercising the powers invested in him, whether he was obligated to make an assessment of this advice and whether he should and when he should assess this advice given to him.

For the remainder of day 2 and the start of day 3 the court then moved on to a robust cross-examination of expert witness for the applicants, Professor Nikolai Petrovsky, Flinders Medical Centre (FMC) Director of Endocrinology, Professor of Medicine and founder and researcher of Vaxine Pty Ltd (a vaccine development company based out of Flinders University).

Cross-examination by Mr Garnaut for the respondents began with a lengthy questioning of his conflicts in terms of:

  • Being personally effected by the vaccine mandates, literally not being able to attend the FMC to undertake any of his clinical work.
  • Needing to take long service leave, therefore drawing down on these entitlements.
  • Being frustrated by his choice to work at the FMC being taken away from him.
  • The trial outcome being of personal interest and gain.
  • His own personal moral objections and ethical problems with these directives and his perceived lack of informed consent.
  • Being a director and family owner of a vaccine manufacturing company with the potential to make profit from the approval and use of his vaccine, COVAX-19.
  • Crowd funding the TGA application and clinical trial costs.

Professor Petrovsky appeared unfazed by this line of questioning of his integrity or conflicts saying his present long service leave had been needed for his current COVID-19 vaccine project, that he was here as an expert in vaccines and virology to serve the court, and that as a long term respected scientist and medico he had not added any personal ‘flavour’ to the science he reported on and will now discuss.

The court then moved on to the critical question of COVID-19 vaccine ‘effectiveness’ and ‘efficacy’ in terms of COVID-19 disease symptom and transmission of infection reduction of the vaccinated compared to the unvaccinated.

Professor Petrovksy critically defined the need for being very specific when talking about protection given from COVID-19 vaccines. Protection can be defined as protection from symptomatic disease i.e. people getting sick or the lessening in the severity of their illness or protection could be defined as protection from infections i.e. transmission which is a very different type of protection.

Professor Petrovsky carefully explained that the phase 3 COVID-19 vaccine clinic trials chose protection from symptomatic disease as their measured outcome. In fact, they measured mostly mild symptomatic disease, and very little was actually seen, even in the placebo group, due to the trial design picking younger healthier people to give the vaccine its best possible effectiveness result. These trial results suggested high levels of relative risk reduction (not to be confused with absolute risk reduction) in the protection from disease symptoms but this didn’t mean infection or transmission protection and it didn’t even mean reduction in hospitalization but merely reduction in disease symptoms from a higher category to a lower category.

Proving the effectiveness of current provisionally approved vaccines against the Omicron variant was critical to the relevance of any evidence because this was the dominant variant at the time of the State Coordinators directives for mandatory vaccination of health care workers.

Mr Garnaut cross-examination primarily focused on 2 key studies cited in Professor Wesselingh, expert witness for respondents:

The Andrews study showed, for the Omicron variant, no disease symptom reduction protection with 2 doses of the AstraZeneca vaccine after 20 weeks and a waning protection of 2 doses of the Pfizer vaccine to as low as 8.8% after 25 weeks. This effectiveness over symptomatic disease was then found to be increased by either Pfizer or Moderna vaccine boosters but was also shown to begin to wane significantly in as little as 5 weeks after the booster vaccination.

By using this study the respondents were trying to suggest the directive to mandate the booster, 3rd vaccination for COVID-19, was a reasonable or proportionate response in protecting people against the Omicron variant.

However, the Andrews study actually only measured symptomatic disease reduction and not onward transmission, so the question still remains – Is it a reasonable or a proportional response to legally require COVID-19 vaccination for an employee to stay in their work role due to some reduction in disease symptoms that is also rapidly waning?

The key question becomes – What effect do the vaccines have on onward transmission?

Professor Petrovksy was clear and unequivocal – the current COVID-19 vaccines do not stop transmission in a ‘material’ way and had not since the Delta variant dominance previously. Prof Petrovsky used an analogy of a ship with many holes, the ship will still sink if you patch up only some of the holes, might take a bit longer but it will still sink.

Unless you have a vaccine such as the ones for small pox or measles that both have extremely high prevention of infection and therefore transmission, so called sterilizing immunity, a vaccine cannot hope to achieve herd immunity and protect people from infection.

This fact, the lack of protection for onwards transmission, was not controversial and was the scientific consensus. This question of being controversial or debated in the scientific community was repeatedly asked of Prof Petrovksy and we continually received the same reply that it was NOT controversial and it was established consensus.

This was summed up by Prof Petrovsky when he told the court “the effectiveness of the COVID vaccines is really restricted to their ability to reduce symptoms and severity of disease but, unfortunately, the vaccines have been poorly effective, if at all effective, against infection and that’s particularly relevant to the new variants, including Delta and Omicron, and that’s – I believe that’s accepted in scientific circles at the level of WHO, the World Health Organisation, the National Institutes of Health (NIH), who I also attend meetings, that’s the general consensus.”

This is also why the legacy media and government messaging around the world quickly moved to only talking of vaccine effectiveness in terms of disease severity reduction and reduced hospitalization and death, but that needs a completely different discussion to discover the underlying science behind those statements.

Prof Petrovksy further highlighted the alarming whole country data from the UK government – ‘UK Health Security Agency COVID-19 Vaccine Surveillance Report – Week 12′, dated 24 March 2022.

“……..all the current UK data is based on Omicron and that data is, as I say, giving worrying signals that in terms of infection, the vaccines are not working.” Professor Nikolai Petrovsky

This data was available prior to the State Coordinator directive, showing no risk reduction in infection rates from vaccine use, in fact the week 12 data was showing a 300% increased rate of the vaccinated being infected compared to the unvaccinated. This does not necessarily mean the vaccines were causing an increase in infection but there was a real correlation and the correlation was getting stronger. The most recent UK data showing a greater than 400% increase in rate of getting infected if vaccinated compared to the unvaccinated.

There are a variety of theories as to why the vaccinated are showing greater infection rates but the fact that this rate is ever increased over time strengthens the theories, including that of vaccine immune enhanced disease, that vaccines themselves have something to do with this increase of infection.

In practical terms, this would mean the unvaccinated may in reality pose less risk of transmitting COVID-19 disease to others. It also means the vaccinated pose the greater risk of transmitting COVID-19 because they are getting infected at much higher rates.

This is not an isolated trend only seen in the UK data but seen in other whole country data, including from Sweden, Denmark, Israel and Scotland.

The preprint study by Lyngse et al. (Dec 2021) was the only potential piece of evidence that the vaccine booster, i.e., the 3rd dose of Pfizer COVID-19 vaccine may have an effect on transmission.

However, the effects were measured after a small time period after the booster dose, therefore the rapid waning effects of the vaccine protection had not yet appeared, as Professor Petrovksy asserts “………. it’s a single non-peer reviewed paper, and the effect is, you know, in vaccine terms, what we would probably call immaterial, in the context of transmission.”

Mr Garnaut, for the respondents, countered asking if there would be debate as to the reduction of risk but Petrovsky response was a decisive–“NO…………..when we are modeling transmission I think you have to think about it in the analogy of a parachute. So if a parachute worked 50% of the time, no-one would be arguing that that was a usable parachute. And similarly with vaccines and transmission, that successful vaccines, if they are going to prevent transmission, they have to prevent it like the measles vaccine, at incredibly high levels of 97, 98%. Because if you don’t stop transmission, the virus keeps spreading, and therefore reducing that by 20% doesn’t change the outcome”

From Petrovsky’s evidence we had also continued to learn that there may well have been other methods not reviewed by Professor Wesselingh, that could have been used that didn’t infringe on the liberties of SA citizens, namely the use of RAT (Rapid Antigen Testing) and PPE (personal protective equipment) that potential had the same if not better effectiveness in slowing onward transmission.

The continuation of day 3 saw the Professor Steven Wesselingh, expert witness for the respondents, take the stand.

Professor Wesselingh is the inaugural Executive Director, South Australian Health and Medical Research Institute (SAHMRI); Professor Flinders University; Dean of the Faculty of Medicine, Nursing and Health Sciences, Monash University.

Professor Wesselingh with the collaboration of a PhD qualified researcher employed by SAHMRI had undertaken a scientific literature review in relation to each of the questions asked by the Crown Solicitors Office with regard to the scientific evidence and therefore justification for the critical need to mandate a booster vaccination for healthcare workers.

The cross-examination of Professor Wesselingh, was undertaken by Mr Ower QC for the applicants, and was in stark contrast to the testimony of Professor Petrovsky. They covered the same research studies but Professor Wesselingh appeared to be a man under pressure to defend his expert evidence.

The cross examination didn’t discovery any other relevant evidence that would shed light as to why the directive was justified.

Day 4 began and ended with State Coordinator and Police Commissioner Grantley Stevens taking the stand to give evidence. Unfortunately the closing statements from the legal teams are now scheduled for the 26 April, 2022 starting at 10.15am.

There were many important dates of emails and conversations that are relevant in that they occurred before the signing of, on 4 March 2022, the directive entitled the Emergency Management (Healthcare Setting Workers Vaccination No.7) (COVID-19) Direction 2022 or later described as the Seventh Healthcare Workers Vaccination Direction.

Commissioner Stevens reported he made no notes of conversations or meetings between himself, Professor Spurrier, Chief Superintendent Stuart McLean (SAPOL and COVID-19 Response Coordinator), Dr Chris McGowan (Chief Executive, Department for Health and Wellbeing), Dr Chris Lease acting Chief Medical Officer during times of absence of Professor Spurrier or other SA health officials.

Commissioner Stevens answered many questions with “Do not recall”, “No recollection”, “No specific recollection” or other variants to the same effect. He had a more general recollection from ongoing and frequent conversation with Professor Spurrier and SA Health about the efficacy of the vaccine’s third dose and the need for a third dose. We also heard confirmation of the emails and dot point assertions from Professor Spurrier that the third dose was effective in preventing transmission were the only written advice received on this area of concern. This further written evidence from Professor Spurrier was requested on numerous occasions, but any further written evidence was never received or presented to the Commissioner Steven or Chief Superintendent Stuart McLean. There was also no further discussion between Professor Spurrier and Commission Stevens about the meaning and interpretation of those critical dot points.

Another key part of the cross-examination involved the discrepancy in the dropping of the directives for mandatory COVID-19 vaccinations for the police staff, in lieu of masks and daily RAT testing, but the need for further booster vaccination for all Health care workers. Critically these decisions were made by the same person, Grantley Stevens, during the same time periods. So, why was the information used differently? We will have to wait to see whether Justice Hughes accepts the rationale that they different risk environments, police had 98.5% vaccination rates and would be able to manage their operational needs due to these low unvaccinated numbers.

There are also many elephants in the room that will not be discussed or evidence given in this judicial review.

There is no mention of vaccine related adverse events including permanent injury and death that is clearly documented in the published peer reviewed literature; of the inadequacies of modeling that only uses one metric that of COVID-19 infection; of the harm of lockdowns to health, families and businesses; of human rights for people to choose their medical interventions and not be subject to coercion and no mention of improving your health, scientific and medical censorship, lack of early outpatient treatments and the banning of ‘off label’ use of prescription medication such as ivermectin and hydroxychloroquine that have been shown to be effective adjuncts in combating COVID-19.

AFIPN will leave you with some more of Professor Nikolai Petrovsky’s classic quotes and analogies:

Petrovsky in response to a question over valued judgment as to what the COVID-19 vaccines were designed to achieve:

“No, I think the FDA and WHO very early on, because they know again the effectiveness a vaccine needs to be to stop the spread of a virus, and they all agreed that a minimum of 50% effectiveness was the absolute bare minimum, and therefore if you’re talking about a 20%, or less effect, then obviously that is not going to materially effect the ability to stop the virus spreading through the community. And, you know, that was agreed, you know, in advance of the vaccines being developed. That if they were going to being effective against transmission it had to be extremely high, or it really has no effect.”

Petrovksy on transmission and infection:

“…. so I think we have to look at ‘transmission’ and I guess this is the important thing, because transmission is not a linear phenomena, unlike protection against infection, where you either protect an individual against infection or you don’t. That doesn’t apply to transmission. So, transmission is a phenomena where, for instance, if you go into a room with 20 people and there’s two infected people in that room with Omicron, they will probably infect most of the people in that room, and again I’ve cited studies of actual real life examples where that’s happened. If you reduce the transmission by 50%, so now you say there’s one infected people in that room of 20, all 20 people are still going to get infected. So we have a 50% reduction in transmission, but we still have 100% transmission; and that’s the problem here, that transmission is not linear. So a reduction in transmission is often ineffective. Even if it’s found impressive, we’ve had a 20% reduction in transmission, in truth, everyone is still going to get infected, it will just take 20% longer. So the only way a vaccine can prevent transmission is if it completely shuts it down, that’s why it has to be 95, 98% effective, as we discussed before with Measles vaccine, that’s why it works in that way. So the COVID vaccines, even if they have an effect on transmission, it’s so low that it doesn’t change the fact that everyone will still get exposed to the infection and that’s the problem.”

Petrovsky on vaccine effectiveness on transmission at a population level:

“The vaccine effectiveness measures do tell you something about reducing the risk that a doctor or a health care worker may infect, the risk of infection passing to, for example, a vulnerable patient.

Again you have to flip it on its head and look at it from an institutional level. So don’t look at it at the individual level, look at it at the institution, say Flinders Medical Centre, which has 5,000 staff. So the question here should be, is the vaccine going to reduce the risk of an outbreak at Flinders by 50%, if at the individual level it may reduce the individual’s risk of transmission by 50%? The answer is at the institutional level it won’t change the outcome, there will still be outbreaks at Flinders Medical Centre. Because what you’re looking at individual data, but here you have to look at population data; because transmission is not a linear phenomena. So I think that – I know it’s hard to get your head around, but that’s – it’s a bit like if you have a ship with 5,000 holes in the hull and you plug half of them, 50%, so you reduce the number of holes in the hull by 50%. The ship’s still going to sink, it will just sink a little bit slower. So when you’re impacting on transmission, unless you completely stop transmission, you don’t actually stop infections, you’re just actually spreading them out over a slightly longer period of time. So you can’t look at transmission at the individual level. It’s basically a population level phenomena, not an individual level phenomena.”

Petrovksy on COVID-19 PCR tests and Rapid Antigen tests (RATs):

“……if you put a large number of replication cycles on (COVID-19) PCR (test), we know that everyone starts to turn up positive.”

“The point of a RAT test is, because it’s slightly less sensitive than PCR, it tells you the people who are shedding virus and, of course, those people are the people who are most infectious”

“So that’s really the reason we’ve moved to RAT testing in terms of, say, screening staff at Flinders rather than a PCR, is if we want to identify the people who are potentially infectious, the RAT test is actually much better to do that because there will be less false positives. Whereas if we’re using PCR, we will have a lot more false positives. Yes, we will have slightly less false negatives.”

“I think the consensus, you know, globally is that RAT tests – when you’re trying to prevent transmission, a RAT test, if it’s positive, it’s much more likely to indicate that person is shedding infectious virus and that’s the person you need to take out of the workplace if you want to stop transmission. So it’s not just about convenience. It is actually about the utility of the RAT test is greater than the utility of the PCR test.”

“So, as I say, with a PCR test, if you turn up its sensitivity, you’ll identify everyone who has been in contact with the virus, almost whether they’re infected or not. So, in other words, they can have a viral dead particle on their cheek someone’s coughed there. They’re not infected but the PCR test will show up positive.”

Petrovsky on whether vaccines have worked in healthcare facilities:

 “In other words the countries have invested in vaccination in health care facilities in the hope that that would stop infection in the health care facilities have been very disappointed, because they haven’t. Whereas the countries that have invested more on the other side in PPE and RAT testing and identifying people who are infected and removing them from the environment, actually have shown more success.”

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4 COMMENTS

  1. I still don’t understand why the CMO was not interviewed. It would seem a single email drove the implementation of mandates that cost people their jobs and others their health (potentially). I don’t believe that was the only advice received and even if we had to accept that, we are forced to ask if it is criminally incompetent to base such massive overreach on a single (incorrect) email. Lies and cover ups.

  2. Excellent piece of true journalism, condensing four days of legal proceedings into a well written, easily understandable article. Thank you.

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