Episode 38 16 September 2021
The lawfulness of mandates
Principal lawyer, Geraldine Grace | Host, New Earth lawyer podcast
I answer a recent question asked of me - what do I do if I am required to get vaccinated? I explain the legal considerations around vaccine mandates in Australia: government mandates; employment mandates and conditions for service imposed by businesses.
I am an experienced corporate lawyer, using the law to build purposeful, human-centred, Earth-friendly legal enterprises & ecosystems, for happier humans and a better planet.
I am also the founder and host of the New Earth lawyer podcast.
I am based in Melbourne, Australia, and an expert in enterprise governance, purpose, business & human rights and modern slavery. I established my own law practice Geraldine Grace in 2020, focussing on enterprises seeking purpose, and actors in the impact economy.
I am a legal advisor to not-for-profits with a national reach in impact and purpose. I work with Boards to optimise performance and help enterprises embed purpose and integrate human rights into their business.
I have over 20 years' experience practising law in Australia, the UK, Hong Kong and mainland China. I have worked for large global and Australian law firms and was a partner of a top-tier Australian law firm for several years.
I sit on the peak governing body of Australia's largest university.
[1:30] There are no general mandates issued in Australia requiring people to get vaccinated, without conditions. Public health is an issue for State parliaments in our Federal system. At State and Territory level, public health legislation grants broad powers to senior health officials.
[3:08] The Federal Parliament has passed a Biosecurity Act which gives the Federal Health Minister powers to act in a public health emergency.
[4:33] Factors to consider as to the legality of a general mandate requiring vaccines include reasonableness, acting within powers, and constitutionality.
[5:53] When it comes to employment mandates, the main considerations are whether it's an inherent requirement of the job to be vaccinated, or whether it's a lawful and reasonable direction to be vaccinated, and whether the employee has a valid reason to refuse to be vaccinated.
[9:06] There aren't any cases yet to go on that deal with COVID vaccinations although there are a handful of flu vaccination cases that offer guidance as to when dismissal of an employee who refuses to be vaccinated is going to be lawful.
[9:50] Generally speaking, businesses may impose certain terms of service on their customers that may include vaccination. A person might be able to challenge that on the grounds of discrimination and this will depend on the reasonableness of the circumstances of refusal of service.
[11:06] The real choice for us here is how we conduct ourselves in exercising choices and making decisions. Are we acting out of anger and fear, or with courage, trust and love? This particular issue can divide us if we let it when we should be choosing unity.
New South Wales Public Health Act 2010
Northern Territory Public and Environmental Health Act 2011
Queensland Public Health Act 2005
South Australia Public Health Act 2011
Tasmania Public Health Act 1997
Victoria Public Health and Wellbeing Act 2008
Western Australia Public Health Act 2016
Commonwealth Biosecurity Act 2015
Kimber v Sapphire Coast Community Aged Care Ltd  FWC 1818 (decision regarding aged care facility receptionist held to be lawfully dismissed due to not meeting inherent requirements of the job)
Maria Corazon Glover v Ozcare  FWC 2989 (decision regarding early learning care assistant held to be lawfully dismissed for failing to comply with a lawful and reasonable direction without a valid reason)
Barber v Goodstart Early Learning  FWC 2156 (decision regarding early learning lead educator held to be lawfully dismissed for failing to comply with a lawful and reasonable direction without a valid reason)
Hi, everyone, welcome to the New Earth lawyer podcast. My name is Geraldine Johns-Putra. I'm your host. I'm a lawyer based in Melbourne, Australia. I am coming to you from Boonwurrung country, and I wish to pay my respects to their Elders past, present and emerging.
I've been asked a question recently, after I put out an episode talking about freedom to consent to medical treatment, I've been asked about what a person can do if they're required to be vaccinated. This is not an easy question, I am going to say that there are a few types of vaccine mandates that we could be talking about. And I'm going to keep things very general, I can't give specific legal advice. Every situation is going to have its own unique set of circumstances. And if you are in a situation where you need legal advice, please reach out to a lawyer and discuss your specific situation. Everything I say in this episode, this video, is going to have to be guidance only and very general.
So first, let me say that there are no general mandates that have been issued in Australia requiring people unconditionally to get vaccinated. Okay, no government, whether State or Federal has done this in Australia, you know, saying, oh, you have to get vaccinated, full stop. Would such a mandate even be lawful? Well, there are so many questions to be considered. We have public health legislation in each of the States and Territories and the Parliaments have given very broad powers to senior health officials like Health Ministers or Chief Health Officers in this arena of public health to deal with public health risks, and they include the powers to issue public health directions where the senior official believes the action is necessary to deal with a public health risk. Some legislation requires that the health official needs to have reasonable grounds, reasonable belief that the action is necessary. Others are silent on that. Some of the public health legislation mentions that the power to require someone else, a member of the public, to receive a certain medical treatment expressly includes vaccines. Some are silent on that. Some public health legislation requires officials to have regard to principles like minimising adverse impacts to the public or proportionality of the actions. And some do not.
The State Parliaments have these powers to legislate with respect to health generally. The federal government, as I've explained, actually, in previous episodes, its legislative powers, the Federal Parliament are all set out, listed in the Constitution of Australia. The Federal government has a Biosecurity Act. That's an Act passed by the Federal Parliament. And it gives powers to the Health Minister, the Federal Health Minister to act in in the case of an emergency, a public health emergency, but it's questionable whether that Act constitutionally would give the Federal Health Minister the power to issue a general mandate requiring Australians to be vaccinated. So suffice to say I can't tell you in a vacuum whether a general mandate requiring vaccination would be legal or not. There are many considerations, it comes down to reasonableness, the need for officials to act within the powers that have been given to them by the responsible parliament, whether that Act itself is constitutional, a certain power invoked under that Act.
So I've said in previous episodes also that the freedom to consent to medical treatment is a fundamental human right. But I also want to stress and I have also said this, that it's not a constitutional guarantee. And it's possible that a valid Act of Parliament or an executive order that's validly made under an Act of Parliament can override freedom to consent to medical treatment. One thing you can count on though if such a general unconditional mandate was issued by any government, or any official in Australia, there would be lawyers crawling all over it to see if it was lawful or not.
Now, the New South Wales government has said that it's going to issue directions allowing those who have been fully vaccinated to access certain freedoms. So they're not going to be subject to restrictions of movement that unvaccinated people are. Anyone who wants to challenge that sort of direction, they'd have to challenge whether the New South Wales Health Minister has the power to issue that direction under the wording of the New South Wales Public Health Act. He has broad powers under that Act. So as to whether such a challenge would be successful, it's by no means certain.
There's a second broad type of mandate that people ask about a lot and that's employment policies. Mandatory vaccination policies. Can my employer forced me to be vaccinated? Currently, there are well known cases of employers requiring this. SPC a manufacturer based in Victoria is one such. There are also examples in healthcare and aged care, emergency services and aviation.
For most employees in an employment setting, the issue is going to come down to whether it's an inherent requirement of the job to be vaccinated, or whether it's a lawful and reasonable direction to be vaccinated, and whether the employee has a valid reason to refuse to be vaccinated. Now, I'm going to speak generally again, right as a guide. Remember, always consult a lawyer if you've got specific questions and you find yourself in a specific difficult situation with respect to your situation.
As a guide, if your employer requires you to be vaccinated, and you refuse, and it is an inherent requirement of the job that you should be vaccinated, then you can be lawfully terminated because you're not capable of doing your job. Even if you have a valid reason for refusal, like health grounds or religious grounds, the fact that you cannot do the job will usually mean that the dismissal will be lawful. There is an example of a receptionist in an aged care facility in New South Wales. The government orders were that anyone entering the facility had to be vaccinated. This was for flu. And by refusing to be vaccinated, she just couldn't perform the inherent requirements of the job. That's what the Fair Work Commission held. And so her dismissal was lawful.
If your employer requires you to be vaccinated, and you refuse, and it's not an inherent requirement of the job, it still could be a lawful and reasonable direction. And if you refuse, you could be guilty of misconduct, for failing to follow the direction and the consequences could ultimately lead to termination. However, if you have a valid reason for refusing, like health grounds or religious grounds, then your employer will usually have to consider that because otherwise dismissing you, for refusing to follow the direction could be discrimination. And it could be a breach of anti discrimination laws. And they usually have to find alternate ways to accommodate your health issue, or your religious beliefs. But you do have to show the grounds. And there have been cases before the Fair Work Commission where employees haven't been able to show solid reasons for the claims like medical issues. And that's been part of the reason for their failing to show that they were unfairly dismissed.
There aren't any cases yet to go on that deal with COVID vaccinations. But there are a handful of the flu vaccination cases that are giving us guidance as to when a dismissal of an employee who refuses to be vaccinated is going to be lawful or not. The upshot is, if you're in a situation, discuss it with a lawyer, I'm not giving specific legal advice here. In some industries, you can talk to your union if you're a member, they may be able to give you general help and advice and support. The Fair Work Ombudsman is another avenue that you can drive for support and advice of a general nature.
Finally, another kind of mandate. As a rule of thumb, businesses may impose certain terms on their customers, terms of entry that may include vaccination. And that can include restaurants, sporting venues, airlines. And once again, a person might be able to challenge that on the grounds of discrimination. And whether the business can legally refuse service will come down to the reasonableness of the circumstances of refusing the service to a particular group.
As you can see, there are so many legal considerations here. So I'm speaking in generalities. I'm telling you like any lawyer often does, it depends. But I'm giving you a steer on what the considerations are, right? I have my personal views, and I've raised them before. And my personal views are that I do believe people have the right to decide for themselves as to whether they will consent to medical treatment, and I do believe it's unethical for people to be coerced. But as a lawyer, I have to tell you that it's more complicated than that.
What I will say is, again, speaking personally, I believe that our basic freedom to make a choice here comes with a corresponding higher duty to honour other people's choices. If we say that we should be given a choice, then we also correspondingly should be honouring the choices that other people make. I don't criticise people for making choices for themselves about whether they're going to accept a certain treatment, medical treatment or not. For me, the real choice is how I conduct myself in exercising a choice. If a person is faced with a situation where conditions are imposed on them, if they make a certain choice or not, then what's their reaction? Is it anger? Is it fear? Is it something that's non peaceful, non loving? Or do they react with courage, with trust, with resilience, with serenity, with honouring themselves and the people around them and realising that at a higher level, they have set up the situation for themselves. To me, that's the choice. And that's really where I think we are right now. How do we conduct ourselves.
Like anything, this particular issue can divide us if we let it and I say choose unity, choose compassion, choose to honour and accept a point of view, even if it's different from yours, choose love. That's the real test that we're finding ourselves in, in these times. So thank you for listening. And I will see you next week.