Victorian judges and magistrates will not be forced to release the COVID-19 vaccinations under public health directives overnight.
But the vaccination rate is still “extremely high,” Supreme Court Justice Anne Ferguson said in a statement recently. Prime Minister Daniel Andrews announced last week that the mandate would apply to all Victorians who are authorized workers.
The Supreme Court said in a statement this afternoon that the instructions do not apply to judicial officials and staff in courts and tribunals.
“Nevertheless, internal investigations have already shown that they have extremely high vaccination levels,” Chief Justice Ferguson said.
The instructions state that the policy does not apply to Commonwealth employees and people working in litigation, as well as public servants employed by Court Services Victoria.
Victorian treasurer Tim Pallas said the exemption from the mandatory vaccination direction for court staff and judges was due to “a matter of separation of powers”. The chief physician, Professor Bretton Sutton, said the exception to the mandate was based on the Advocate General’s advice that there were constitutional issues and “other legal protections”.
Court Services Victoria, which employs court staff, is likely to introduce its own policy of requiring staff attending court to be vaccinated after consultation with staff. But the mandate applies to lawyers. The reasons for the exceptions for certain court staff and officials are not yet known.
Chief Justice Ferguson said each jurisdiction would continue to minimize the number of people physically participating in courthouses by continuing to conduct a large portion of cases online.
“Once the lockout is lifted, the courts and VCAT will continue to operate through a mix of remote and personal hearings,” she said. “The courts and VCAT encourage all those who attend our locations to be vaccinated.”
The heads of the courts have stepped cautiously in their public statements on the issue because there is a legal challenge to the mandate of the Supreme Court, brought by a Victorian auxiliary teacher and her husband.
In a statement last week, Chief Justice Ferguson said of the legal challenges: “These issues will be heard and settled according to law. The courts and VCAT will therefore not comment on or respond to inquiries that directly or indirectly address questions of legality of the instructions. “
Operational changes, she said, “should not be taken as expressing a legal view on legal issues in the courts.”
Pallas said the same issues of separation of powers also applied to MPs, meaning politicians could not be required to meet the public health requirements to get the vaccine either. Nevertheless, parliament would make its own rules to require MPs to get a vaccine, he said.
“We do not apply a rule to Victorians who are mandated to behave in a certain way and do not apply the same rigor and responsibility to MPs,” he said. “It is not only reasonable, it is a moral necessity that what the state asks of society applies to members of parliament for themselves.”