• CMI Legal

Vaccination and Human Rights: Should COVID-19 Vaccination be Mandatory?

As New South Wales (NSW) and Australia continue to progress towards having as much of its population fully vaccinated, the debate continues regarding whether vaccination should be compulsory.

There seems to be no plan to mandate vaccination for the general population, at least in NSW since the local government has announced that everyone can participate in the freedom starting 1st December, vaccinated or not. However, as with other states, employees belonging to certain industries are required to be vaccinated before continuing work.

Under NSW public health orders, education, construction and care workers must be vaccinated. Care workers include agreed care workers, healthcare workers, disability and in-home workers, airport workers and quarantine workers. A similar list applies in Victoria, but with more workers added including agriculture and forestry workers, entertainment and function workers, marriage celebrants and public sector employees. Queensland is also reinforcing the approach of NSW and Victoria.

In a recent Supreme Court decision, NSW Justice Robert Beech-Jones dismissed the appeal by 10 workers who argued that the vaccination mandate infringes their rights and hence should be overturned. The case was brought by a construction worker, a Byron Bay aged care worker, and eight others, who claimed that the public health order contravenes various rights including the right to bodily integrity and right to freedom of movement.

Regarding the right to bodily integrity, Justice Beech-Jones said that the mandate does not violate such right as it does not permit involuntary vaccination. Workers are ultimately allowed to decide whether to be vaccinated by giving consent. As far as the freedom of movement is concerned, His Honour said that the extent to which a person is allowed movement depends on his/her vaccination status. Hence, such limitations “are the very type of restrictions that the Public Health Act clearly authorises.

The Court’s stance regarding consented vaccination seems to soften human rights based arguments. So is mandatory vaccination a human rights issue? According to human rights law professor Kanstantsin Dzehtsiarou, “[it] is 100 percent a human rights issue related to the right to privacy and the right to bodily integrity”. However, the Professor added that such rights are not absolute, which means that governments can reasonably interfere with them when necessary, and can do so proportionately to achieving a goal – in this case, the wellbeing of the greater population.

With the NSW decision being the first of many to arise in Australia and internationally, there are plenty of room for twists and turns pertaining to the issue of mandatory vaccination and human rights. As the legal system is only starting to find its footing, it would be interesting to see how the law and legal approach will play out. In the meantime, let the debate continue.