Australian Vaccination-Risks Network Incorporated v Secretary, Department of Health [2022] FCA 320

FEDERAL COURT OF AUSTRALIA

Australian Vaccination-Risks Network Incorporated v Secretary, Department of Health [2022] FCA 320 File number(s): NSD 52 of 2022

Judgment of: PERRY J

Date of judgment: 31 March 2022

Catchwords: CONSTITUTIONAL LAW – application for orders requiring the Secretary to consider whether to cancel or suspend provisional registration of three COVID-19 vaccines under the Therapeutic Goods Act 1989 (Cth) (TG Act), commonly known as the Pfizer, AstraZeneca, and Moderna vaccines, and/or declaratory relief to similar effect (Mandamus Case) – application for orders to set aside the Secretary's decision to grant provisional approval with respect to the Pfizer COVID-19 vaccine for use among children aged 5 to 11 years (Children Decision) and any determination pursuant to s 22D of the TG Act to the effect that an indication of "the proposed Pfizer vaccine" was the treatment, prevention or diagnosis of a life-threatening or seriously debilitating condition for children between 5 to 11 years of age (s 22D Determination) (Judicial Review Case) – whether applicant has standing to seek relief and there is a "matter" in the constitutional sense – whether the applicant is a "person aggrieved" for the purposes of ss 5 and 7 of the Administrative Decisions (Judicial Review) Act (Cth) 1977 (ADJR Act), and the proceedings are therefore competent – consideration of relevant principles – application dismissed on the grounds that the applicant lacked standing and there was no "matter", and the applicant was not a "person aggrieved" for the purposes of the ADJR Act PRACTICE AND PROCEDURE – application for joinder with respect to the Mandamus Case – where joinder applicant's employment as a disability support worker was terminated in circumstances where he refused to be vaccinated in accordance with a requirement imposed by a direction under the Emergency Management Act 2004 (SA) – where joinder applicant's real complaint is with the termination of his employment and the advantage he seeks by prosecuting the Mandamus Case is reinstatement of his employment – where any decision to suspend or cancel provisional registration of the three COVID-19 vaccines could operate only prospectively – where the interest relied upon in support of the joinder application could not be affected by the grant of relief sought PRACTICE AND PROCEDURE – application for joinder with respect to the Judicial Review Case – where joinder applicant alleged that his interests were adversely affected by the Children Decision and any s 22D Determination because he is a foster parent of a young child – where the child is under the guardianship of the Chief Executive of the Department for Child Protection (DCP) who has authority to make decisions regarding vaccinations on the child's behalf – where DCP required that the foster child receive the Pfizer COVID-19 vaccination – where joinder applicant does not support the child receiving the Pfizer vaccine and holds concerns that the child may be at risk of harm if administered the Pfizer vaccine – where requirement for the Pfizer vaccine to be administered to the foster child is imposed by a decision under State law which is not challenged – where interest in seeking to be joined in respect of the Judicial Review Case is properly characterised as emotional in nature and its connection with the subject-matter of the Judicial Review Case is too remote – application for joinder dismissed