Thread by @Voice4Victoria

Final day of the NSW Supreme Court case against the mandates starting now.

Watch live here:

From the judge this morning "rest assured I'm not going to write a judgement without mentioning the fact that the orders have been repealed". That's a yikes for the govt side.

Harkness & Clarke off to a nicely cohesive start, laying out which of them will address each of the arguments (there's 6 grounds total) put forward in their case and why.

Harkess came prepared. This is quite a complex and (so far) well structured argument.

Backbone of argument so is asking the court to assess if the Section 7 powers used to make the mandate if they're administrative or legislative powers - they certainly can't be both. Judge following this along nodding.

Laymens: they're arguing the broad powers are being used too broadly and it's causing genuine questions of crossover of legal powers being used that the Minister should not/does not have.
Eg one Minister can't make rules that, by nature, should otherwise go through Parliament.

Essentially questioning if legal processes have been broken.
The importance of upholding these processes was seen when the judge ruled not to release the cabinet documents because he felt the threshold wasn't argued, so you know he takes this seriously.

"Coersion means there can be no consent". This one was very neatly argued about people turning up to get vaccinated for no other reason than they can't afford to lose their job.

Argued that on the legislative list of "vaccine preventable diseases", covid is not listed.

Now he is directly quoting content from the original 'no jab, no play' debate IN Parliament. In my opinion this is a clever addition if you're demonstrating what happens when this topic is actually democratically debated, like he argues it should be.

We're back to NSW!
Arguments by Harkess getting spicy.
Judge "I don't think anyone could argue the orders aren't discriminatory, the question is on what basis".
Questions if Harkess is running this under disability discrimination claims.

Harkess argument "not being vaccinated means you're disabled".

Not going to lie, I laughed. He's managed to find an incredible angle for this. Very entertaining to listen to his arguments and how they're being presented, you can tell there's been serious planning into this.

Harkess argues that getting vaccinated is 'providing a medical service'. Therefore the govt is conscripting the public to provide a service.
This being relevant to the argument around the limits that the govt can conscript citizens.

Listening to this is honestly quite entertaining. The arguments coming up are very interesting how they've chosen to frame them. The govts side rebuttal will be a good watch.

(Heads up tweeting with a 15min delay on the case due to watching VIC briefly)

Bringing up violations of Privacy Act via the mandates. It's a list lol

This one is interesting given this is a Federal law being pitted against a state mandate in terms of if the mandate causes breaches.

Harkess argues that the only powers to mandate vax should lie with Parliament & require anything of that nature to go through proper legislative process, not be a general Ministerial discretion order that has no review & uses powers that doesn't actually specify this ability.

Argues the govt hasn't actually provided proof that, the reverse, the powers do actually allow for this. They're relying on the lack of clarity to say that it hasn't broken anything.
Think this is a valid point. Lack of specificity shouldn't be used to allow unlimited use.

Clarke delivering some softer spoken by straight fire arguments. He's got his points down pat.

Quotes the Minister at a presser who is abusing those not vxd, argues this infers a clear lack of consideration of the individual rights to bodily integrity & lack of consideration of the right to work.

These are obviously things that the Minister must consider.

In addition, Clarke argues the defence (govt) has not provided any sworn statements from either the Minister or their advisors about 'the list of factors that were actually taken into account'. They merely publicly claim multiple factors were.

This seems like a very good point.

There's spice. Clarke is going for the safety data (very factually, he's quoting the manufacturers.).
Assume this is going for the "where there is risk there must be choice" argument.

"Duration of protection has not been established". Ohhh boy.

He is quoting the fact the studies weren't done on the elderly, immunocompromised etc.

Good lord this man is quoting in open court the actual reports from the manufacturers. 👀🔥

"Due to study size, efficacy under the age of 65 has been inferred".
"Carcinogenicity studies have not been conducted".
"There was no studies done about interactions with other medications".

OHHHH BOY. This is wild.

My face watching this safety data tirade in open court right now.

Clarke tying back to their arguments last week that there aren't specific efficacy studies related to transmission & delta that can be relied on by govt.
This isn't arguing there isn't transmission reduction, only that there's no studies on how much in order to justify mandates.

In my opinion, quite a reasonable angle to take. Not arguing saying "it doesn't work" but targets what science was/ must have been relied upon in order to justify widespread mandate in relation to specific efficacy questions on transmission.

Judge telling them no more hyperlinks 🤣 written only.

Ohh Kirk is getting a chance now (govt side). This'll be interesting.

Fascinating to see if Kirk's argument of "it was only this group, not others", can then get used in reverse in VIC when they smashed the mandate on as many people as possible.

Kirk "there is no requirement to be vxd. It's a condition they can take up or not. There is no requirement to be vxd at risk of criminal penalty".

Claims there was no coersion or duress suffered by plantiffs, they made the choice not to get it.

OMG. He's calling it conditional exemption and likening it to having licences 😐

This is SPICY. Kirk "these requirements are temporary. They were until Nov but it's until next Sunday".

He's just confirmed none of the mandates will or ever intended to be permanent. People essentially just got threatened temporarily.

Wow for such a great lawyer his arguments aren't the best. They're not totally awful, he's still very good, but it's heavily relying on the "it's actually a choice".
Absurdly keen on likening this to having a licence.

Lunch break/mental break.
Finally.
Back around 2ish.

We're back 🍿 15k watching online.
Bigger than anything that would ever be possible inside a physical courthouse - all because of the lockdowns. There's some delightful irony in this.

Kirk debating Latin terminology & micro-language used by the prosecution side. Wow this is dense to listen to. Very nitty gritty attacks on arguments presented.

Kirk "we're in a grey area, we accept that".

As long as we're all on the same page here.

Kirk dug up an example of a judge ruling an order was upheld even though it was argued it could be administrative or legislative.
Seems they may to have struggled to find this though. Not the strongest example but it IS valid. This is why judge decisions are so important.

Kirk "This was during the plague of HIV infections". Er yeah not the best choice of words mate.

Basically what's happening is Kirk is micro-attacking the various arguments & evidence that have been presented by both parties - King & Clarke/Harkess.
While it feels like it's very disjointed he's actually doing not badly picking at certain words / arguments used.

Oh he just said the Spanish flu is similar to what we are seeing now. That's.. a bit much.
This is just in context of arguing the govt did somewhat forsee this situation, as one argument by Harkess was against this. So he's right it was somewhat planned for but yikes bad example.

We're going into examples of things that happened during the swine flu outbreak relating to govt using these powers previously.
In sheer scale there's obviously no comparison, but some of the things done eg positive cases get stay at home orders did apparently happen.

Kirk is enjoying the argument that the Minister 'is politically accountable'.
Take issue with this. Other than at an election, none of these decisions are publicly transparent or being made through parl. He's basically arguing the lowest bar of accountability possible for an MP.

Random observation. It's interesting to compare that Clarke/Harkess argue their points in a way that comes across as genuine conviction in what they're saying vs Kirk comes across as very academic.

This is.. oddly flamboyant? Kirk is going to some extreme examples of 'lockdown vs not'.

Judge pulls him back to the key elements of the case not being general lockdown or not, but about things actually getting challenged.

OHH I see it now. Kirk is going for that "iTs A sUiTe Of MeAsUrEs" style argument govt loves.

"The 'claimed rights' of the plantiffs".
"It's all about them and not about the community".

Sweet jesus is he missing one of the main points of the case.

INSANE. Kirk "this one dimensional focus on the rights & beliefs of the plantiffs is quite misguided".

He is quite seriously going for the 'individual rights shouldn't really matter' angle. Mindblown.

This is.. half the bloody point of why the case is even being heard?

Wow Kirk is kind of openly coming across as uppity & dismissive..

Tried to put down the Henry case (Clarke/Harkess) expert witness by saying "they're only hanging their hat on this one bad witness".

Judge interjects "uh they're hanging their hat on a bit more than that"

Kirk basically arguing that because there's different opinions, that doesn't mean they're rational.

Yeahhh that works both ways mate.

Kirk has really warmed into his argument and is letting quite a cocky personality shine through.

Not a lawyer but fairly certain there is an unwritten rule you don't look uppity in front of judges.. they don't really enjoy that.

This is.. weird.
Kirk saying he admits the vx is less efficacious for delta but it still works to reduce it, but the whole argument from Clarke/Harkess was the govt doesn't actually know how much.
Accused them of "revelling in this", but it didn't matter as it's still reduced.

Kirk "one of the problems with covid is you can pass while asymptomatic".

Yeah we all know that, that's why the passports are a braindead concept if you're actually trying to prevent exposure vs rapid testing.

WTF. Kirk is undermining his own arguments?
"We just don't know yet" on exactly how much breakthrough infections occur in vxd from delta. Mate that does NOT support the idea of implementing a widespread mandate.

Kirk "of course you still have some breakthrough infections, so of course in Israel you have more vxd cases than not, but that doesn't mean it doesn't work".

UM. THE FUQ.
This is a terrible way to rebut the Israel point made.

I just know I'm never getting past what a mess that Israel example was.

Kirk "these restrictions absolutely affect common law rights, mental health etc. There's no reason to think these things aren't agonised over by Crisis Cabinet".
Uh, there is.
1. We've never seen these debate docs.
2. They provided NO affidavits confirming they actually do this.

As predicted. Kirk/govt relying on the fact they suddenly put end dates on the mandates prior to the case starting as "but they were only temporary".

Interested to see how the reverse of this argument will go if the VIC cases use Dan publicly doubling down at every opportunity at the public pressers that, according to him, they're here to stay.

Kirk's colleague coming in with way less ego & better rebuttals, even if one is that "the relevant disability is having covid" 😂 this entire line of argument in the case has been very amusing.

Kirk, in final comments "there is technically no mandation. Is there some economic pressure, yes. But there is real choices to be made for what is in reality a temporary measure". 😐😐

According to the govt losing your career is 'some economic pressure' & they're justifying this by hiding behind the idea it was temporary, which was never disclosed to the public until after the deadline passed & they happened to change the mandates just before this case started.

Done for today. Federal response tomorrow & closing arguments from both sides. Will post ETA. After that, the judge goes away to evaluate the arguments & creates the ruling. Guessing 1-2 weeks for case that ran for almost 4 days & will no doubt be heavily publicly scrutinised.