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It’s a question that remains largely untested in Australian courts. As the much-hyped COVID-19 vaccine approaches in 2021, what legal rights do Australians have to refuse a vaccine?

“As mandatory as you can possibly make it.”

That was how Australian Prime Minister Scott Morrison described the much-hyped, forthcoming COVID-19 vaccine. His comments to Melbourne radio station 3AW back in August caused a stir – particularly among human rights and anti-vaccination groups. But just how serious was the PM?

It is a question that has been asked since the middle of the pandemic and is – at this stage – largely untested in Australian courts.

Does the government have legal grounds to make a COVID-19 vaccination mandatory?

“In Australia, the Commonwealth and State governments have extremely broad powers to take action during a public health emergency,” says Alison Choy Flannigan, a partner at Hall & Wilcox and leading expert on health and biosecurity legal issues.

Flannigan points to the orders issued under state and territory Public Health Acts through the COVID-19 pandemic as evidence of the impressive power the government may wield in health emergencies. Many of these orders were unprecedented and extraordinary in their reach; introducing curfews and strict rules for citizens to stay home and not leave except in limited circumstances. The closure in July of the border between NSW and Victoria, for example, represented the first time that border had shut in 100 years.

With this recent history as context, surely a mandatory vaccine is not huge stretch?

“Technically, the Australian federal government has legal grounds to make a COVID-19 vaccine mandatory, however, those powers would need to be subject to limitations,” continues Flannigan.

“For example, arguably, the power can only be used if the vaccine is safe and approved, or subject to an exemption, under the federal Therapeutic Goods Act, and exceptions are made for those people who are allergic to the vaccine.

“The objects of the Biosecurity Act include to manage biosecurity risks and the risk of contagion … Arguably, the exercise of a power under the Biosecurity Act which would cause harm to public health [such as by causing an allergic reaction] would be ultra vires to the powers granted under that Act.”

Flannigan says Australians would have little room to protest if the government did decide to make vaccination mandatory under the federal Biosecurity Act. There are penalties for breaching orders made under the Act – just as there have been penalties and fines for breaches of recent COVID-19 Public Health Orders in NSW.

Anyone who refuses to comply could become subject to a “human biosecurity control order”, which can restrict their movement or behaviour, require them to receive vaccination or treatment, or isolate them from the community for specified periods. If a person goes on to breach the control order, consequences are severe: ranging from detention to being charged with a criminal offence, punishable with up to five years in prison and/or a fine of $63,000.

Is it likely any government would do that?

Flannigan says it is “highly unlikely” an Australian government would use its emergency powers to that extreme extent. Mostly because it would be unpopular among voting citizens.

The experience of the UK parliament in 19th century England, when attempting to legislate for mandatory smallpox vaccination, provides a valuable history lesson. According to Professor Simon Kroll, a Professor of Paediatrics and Molecular Infectious Diseases of the Imperial College of London, the mandatory smallpox vaccination legislation was “fraught with difficulty” and led to the Victorian Anti-Vaccination Movement and the Leicester Riot of 1885, among other outcries.

“After various modifications [the legislation] became, arguably, effectively unenforceable,” Kroll says.

“Objections based on religion, faith or belief may become prominent [regarding COVID-19 vaccines]. So, the time is ripe for airing the issue. History has shown us that education programs and financial incentives are more effective than penalties in encouraging the use of vaccines.”

The more likely situation is the government would encourage Australians to be vaccinated using a carrot, rather than stick, approach.

Vaccination may become a precondition of accessing government-funded services such as education, aged care, public hospitals, or even border protection conditions. Prime Minister Scott Morrison was, after all, the inventor of the “no jab no pay” policy in 2015. This policy requires children to be immunised for their parents to be eligible for family tax benefit payments and the federal childcare subsidy.

Similarly, the NSW Public Health Act introduced “no jab, no play” laws in 2017, preventing parents enrolling their children in childcare or preschool unless they are fully vaccinated for their age or have a certified medical exemption. Federal Health Minister Greg Hunt has suggested welfare recipients may lose access to their payments unless they agree to a COVID-19 vaccination, but details of such a policy remain unconfirmed as the government expects to release a full vaccine strategy early in 2021.

Can an employer direct employees to be vaccinated?

Here is where it gets complicated. Employers have a right to issue lawful and reasonable directions to employees – but what is lawful or reasonable can look very different in different workplaces.

“Where an employee routinely works with at-risk individuals such as children or the elderly, a direction to receive a vaccination may be lawful and reasonable,” Trent Hancock, employment lawyer and principal of Jewell Hancock Employment Lawyers, tells LSJ.

“The Victorian Government earlier this year passed legislation to compel healthcare workers to be vaccinated. At this stage it doesn’t extend to include COVID-19 vaccinations but obviously, when a vaccine rolls around, I expect it will be added to the list of vaccines required for healthcare workers.”

Some jurisdictions may pass legislation to require employees in health or care sectors to be vaccinated. But Hancock believes employers in other sectors may have grounds to ask their employees to be vaccinated.

“Employers have an obligation to provide a safe working environment, and employees have an obligation to assist their employer to provide that safe working environment. A reasonable question to be asked is, ‘Is the working environment safe when we have employees at risk of quite a serious disease being spread?’ You may have elderly or compromised people in that workplace.”

Hancock says he expects a “spate of claims” to hit the Fair Work Commission when the vaccine becomes available next year, because the question over what might be a reasonable vaccination request is currently unresolved.

Relevantly, two unfair dismissal claims were filed in 2020 by employees in childcare centres who were respectively stood down after refusing a free flu vaccination their employers had directed them to receive amid the COVID-19 pandemic. However, both applications were filed out of time and ultimately dismissed, meaning the reasonableness of the direction was not examined.

Deputy President of the Commission Ingrid Asbury did note in one of those cases:

It is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.

We are all loath to carry the word “unprecedented” into 2021. But this is exactly what COVID-19 vaccine legal challenges will be for employers and the Fair Work Commission.