Small victory for 'pro-choice' police officer

A WA constable who took the police commissioner to court challenging mandatory vaccination rules has had a win, earning the right to stay on the payroll until a decision on his appeal.  

Ben William Falconer – who has described himself as ‘pro-choice’ on vaccinations -  lost his fight against Western Australia’s vaccine mandates in the Supreme Court in August, but took his campaign to the Court of Appeal after his case was thrown out.  

All employees in the WA Police Force were required to provide proof of vaccination before December 1 2021 per directions from then police commissioner Chris Dawson, based on health advice from chief health officer Andy Robertson.

But Mr Falconer was on Tuesday granted an interlocutory injunction, meaning he will get to keep his job and stay on the force’s payroll pending the outcome of his appeal.

In his decision, Justice Mitchell concluded that there could be difficulties reinstating Mr Falconer to his position if the appeal was granted after he had already been dismissed.

“It is not clear whether the court would have power to order the appellant's reinstatement, and issues could arise as to the appellant's entitlements continuity of service and seniority if he were dismissed and then reinstated as a member of the Police Force,” he said.

“There may also be reputational damage if the appellant is dismissed, which cannot be fully remedied by orders made on appeal.”

Justice Mitchell also resolved that any payments made to Mr Falconer from then on would have been a result of the police commissioner’s decision to stand him down while the disciplinary process was underway.

WA Police will also need to foot the bill for Mr Falconer’s appeal costs.