A COVID-19 vaccine is coming, so what does the law say?

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Debate continues to bluster along at breakneck speed as talk of a COVID-19 vaccine being available in early 2021 dominates headlines.

Prime Minister Scott Morrison made waves on radio in September when he suggested that a COVID-19 vaccine would be “as mandatory as you can possibly make it”, before later clarifying that there would be exemptions in relation to any COVID-19 vaccine on medical and other grounds.

From a legal perspective, there are differing views on whether or not the Commonwealth has the power to impose a mandatory vaccine. Australia has not been in a position in its modern history whereby a pandemic the likes of COVID-19 has required such a significant intervention on the rights of individuals by the government.

Why anyone would not want to vaccinate themselves against a virus that has killed millions and torn apart the global economy is anyone’s guess, however it is a complex area of law that intersects the need for the government to make decisions in the interests of public health and a person’s right to bodily autonomy.

The issue of whether or not the Commonwealth can enforce a mandatory vaccine is made more difficult by the fact that public health, in Australia, is generally the responsibility of States and Territories.

There does not appear to be any Commonwealth legislation currently in place that would specifically enable the Federal Government to enforce a population wide vaccine, however it appears that the States and Territories may have said powers pursuant to their varying emergency public health laws.

Western Australia’s public health legislation imposes power on authorised health officials to direct a person to be vaccinated during a public health state of emergency. Victoria’s corresponding legislation provides that the Chief Medical Officer can issue a public health order requiring persons to receive a specified vaccination in a public health emergency. New South Wales and Queensland also appear to have similar powers in their respective pieces of public health legislation.

Public health legislation is what has been relied upon by each State and Territory in the nation to impose many of the restrictions that have seen the near elimination of the COVID-19 virus in Australia.

A further issue for governments is how a mandatory vaccination program would play out in the Courts if challenged. An added complication for jurisdictions like Victoria, Queensland and the ACT is that each has a Charter of Human Rights, which may be incompatible with a mandatory vaccination program and give rise to challenges at law on the basis that a mandatory vaccine would constitute a breach of human rights.

We have previously seen governments get creative when combating anti-vaxxers. In New South Wales for example, legislation exists requiring children to be vaccinated in order to attend childcare.

It remains to be seen whether State and Federal governments try to induce people to be vaccinated by blocking things like welfare payments as a means to ensuring people get the jab.

What is clear is that articles posted online by conspiracy theorists about vaccines causing all manner of other illnesses are entirely unhelpful in the face of a pandemic that has killed millions and ravaged entire economies. Australia’s medical regulations are sufficiently robust to ensure that any vaccine will be safe and effective for the vast majority of recipients.

Daniel McKinnon

Since graduating with two degrees in Law and Commerce from the University of Wollongong, Daniel’s spent over ten years solving a wide range of legal problems for the people of Western Sydney.

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