A legal challenge to South Australia's COVID-19 vaccine mandate for healthcare workers has been dismissed by the Supreme Court in Adelaide.
Nurse and inactive AFLW player Deni Varnhagen led the challenge against the mandate after she lost her nursing jobs last year because she was not vaccinated against the virus.
Ms Varnhagen and fellow nurse Courtney Millington initially challenged the mandates that were legislated by the Emergency Management Act, and as their case was coming to an end, the state government revoked the laws in May this year.
Instead, the government enforced the vaccine mandate on healthcare workers by making changes to the South Australian Public Health Amendment Act.
In her judgement, Justice Judy Hughes said that the proceedings were "confronted with a significant event" because the laws underpinning the challenge no longer existed.
The following week, the government and Police Commissioner Grant Stevens applied to the court for the case to be thrown out because it "ceased to have utility" as the mandate was no longer enforceable under the Emergency Management Act.
It prompted lawyers for the two nurses to argue that shifting the vaccine mandate to fall under public health laws was constitutionally "invalid".
But Justice Hughes allowed the government's application for the case to be dismissed, agreeing it lacked utility, which meant the constitutional issue could not continue.
"[Ms Varnhagen and Ms Millington] have not established that the Amendment Act is invalid," Justice Hughes found.
Lawyers for the nurses said they would appeal the decision to the Court of Appeal.
"This was no decision about the strength or otherwise of our application," lawyer Stuart Lindsay said outside court.
"… [The] hearing of our application has ended because the state government, in May of this year, brought in legislation which I say was designed to close these proceedings down.
"We're into uncharted water here."
Ms Varnhagen said the fight continued.
"It's not over yet, that for sure," she said.
Nurses had to stop working
Ms Varnhagen, who has been a registered nurse for seven years, was working in the intensive care unit at Flinders Medical Centre and as an anaesthetic and recovery nurse at the Glenelg Day Surgery.
In an affidavit, Ms Varnhagen told the court she was not able to make an informed decision about getting vaccinated in relation to the effectiveness of or safety of the vaccines.
She made mention of her "personal circumstances as a healthy, young female of child-bearing age".
"I believe that I am being coerced into doing so [getting vaccinated] in order to keep my employment," she said.
Her fellow applicant — Ms Millington — has been a registered nurse for 17 years and was working at the Women's and Children's Hospital and with Healthcare Australia.
After she was told she had to be vaccinated to continue working, she had one COVID-19 vaccine dose, but said she experienced pain and sought an exemption to the mandate, but it was not granted.
Varnhagen's time on Adelaide's inactive list was extended in June after she fell pregnant.
A spokesperson said the government "did not change the law based off this legal challenge".
"The change was made to ensure COVID-19 protections remained in place and end the major emergency declaration," they said.
