This is a collection of legislation, articles and correspondence that relate to compulsory vaccination in Australia, including a possibly mandatory Covid-19 vaccination. I’ve taken care to be as thorough as possible, but it’s a work in progress. If I have made any mistakes or misinterpreted something, or there is something I’ve forgotten, please get in touch.
Australia – ultimately it’s about how much punishment you can take
The Biosecurity Act 2015 gives the federal government sweeping powers over the population. Specifically, under s61(f)(ii), vaccination (see s92) is one of the measures that can be prescribed under a human biosecurity control order. Now, under s74, a person only needs to comply with the measure if the person either consents to the measure, or the Director of Human Biosecurity has given a direction for the person to comply in accordance with s72(5)(a) and either: 7 days have passed and the person has not made an application for review of the decision under the Administrative Decisions (Judicial Review) Act 1977 in accordance with s80 of the Biosecurity Act 2015, or the person’s application has been rejected and the Administrative Review Tribunal requires the person to comply with the measure. It’s worth reading the small print to s74. Note 1 says if a person doesn’t comply, they could commit an offence under s107. That section poses a pretty severe threat, with the penalty being 5 years imprisonment or 300 penalty units (currently A$66,600), or both. Note 2 refers to the expenses that occurred in complying with an order (s108), meaning that the government would have to pay for the vaccination. The only solace would come from Note 3, which states that “generally, force must not be used to require compliance with a biosecurity measure (see section 95).” But what does “generally” mean? Well, s95 clearly states that vaccination is a procedure for which “force must not be used against an individual“. The note to this section refers to other measures, so that’s where the “generally” comes in.
In conclusion, ultimately you cannot be physically forced to be vaccinated in times when a biosecurity control order is in place, but the threat of a hefty fine and serious jail time would pretty much twist anyone’s arm. It’s little consolation that a vaccination procedure would have to be carried out “in a manner consistent with” appropriate medical standards and/or appropriate other relevant professional standards (s94), whatever that might mean.
The relevant sections are:
- Biosecurity Act 2015 s61(f)(ii)
- Biosecurity Act 2015 s72(5)(a)
- Biosecurity Act 2015 s74
- Biosecurity Act 2015 s80
- Biosecurity Act 2015 s92
- Biosecurity Act 2015 s94
- Biosecurity Act 2015 s95
- Biosecurity Act 2015 s107
- Biosecurity Act 2015 s108
The Australian Constitution
This tweet by former Victorian Treasury economist Sanjeev Sabhlok, dated 24 Oct 2020, suggests that section 51xxiii(a), which gives the federal parliament specific legislative powers, does not give the Australian federal parliament the power to make vaccinations mandatory.
That might be so, but given the Australian states are all happily riding the COVID-19 band wagon, they could be easily persuaded by the Federal Government to each enact identical state-based legislation.
Department of Health
I wrote to almost all Australian parliamentarians on the issue of compulsory vaccination against Covid-19 in August 2020. On 28 September I received a response from an assistant secretary from the Immunisation and Communicable Diseases Branch. The letter outlined in some detail the requirements for any vaccine to be registered in Australia. The letter concludes:
While the Government supports immunisation, it is not compulsory and people maintain the right to choose whether to receive a vaccination.
Ref MC20-036183
This statement, whilst on its face reassuring, does not mean that the government’s position can’t change in future, nor does it mean that citizens won’t have to suffer negative consequence if they don’t have themselves vaccinated.
Interestingly, mandatory vaccination via the backdoor, using a combination of carrots and sticks, was at least on the table on 20 Aug 2020, when the Deputy Chief Medical officer made this statement.
As of 4 Nov 2020, the Health Minister is still confirming that future COVID-19 vaccination will remain voluntary.
On 13 Nov a media release by Prime Minister Morrison includes references to Australia’s COVID-19 Vaccination Policy, stating that vaccines are “not mandatory, but strongly encouraged.” For obvious reasons, he didn’t want to mention the ”small print“ in that policy. At to bottom of page 6:
While the Australian Government strongly supports immunisation and will run a strong campaign to encourage vaccination, it is not mandatory and individuals may choose not to vaccinate. There may however, be circumstances where the Australian Government and other governments may introduce border entry or re-entry requirements that are conditional on proof of vaccination.
https://www.health.gov.au/sites/default/files/documents/2020/11/australian-covid-19-vaccination-policy_1.pdf
On 4 December Health Minister Greg Hunt, whilst proudly announcing having secured many million additional doses of vaccines from two further manufacturers, once again confirmed that Covid-19 vaccination will be free but not compulsory. He is no doubt banking on a so far world class compliant Australian public in all things Covid-19, the fact that Australia has a very high vaccination rate anyway, and of course he doesn’t have to twist anybody’s arm when industry players are doing that for him.
Recently the national air carrier Qantas confirming that international passengers will have to be Covid-19 vaccinated. Whether they can legally do so is another question, but that extra scare factor should get most travel-starved people to quickly roll up their sleeve.
What will definitely become compulsory though is the registration of your Covid-19 vaccination in the Australian Immunisation Register. Legislation to that effect was introduced into the House of Representatives on 3 December.
Victoria – Vaccination can be made compulsory for healthcare workers
The Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 was passed by parliament on 17 March 2020, received royal assent on 24 March 2020, and the provisions commenced on 25 March 2020.
The provisions allow the Secretary of the Department of Health and Human Services to direct certain health workers to undergo compulsory vaccination. Institutions that fail to comply risk their registration being suspended or revoked.
So ultimately, for the individual health worker it depends on how much your job means to you.
The relevant new sections are:
- Health Services Act 1988 s42(1)(ca)
- Health Services Act 1988 s42(2B)
- Health Services Act 1988 s100(1)(da)
- Health Services Act 1988 s101(1)(da)
- Health Services Act 1988 s102(1)(da)
- Health Services Act 1988 s105A
- Ambulance Services Act 1986 s10(4)(ca)
- Ambulance Services Act 1986 s10(4A)
New South Wales – Uncertain whether a person can be forcibly vaccinated in an emergency situation
The situation in NSW appears unclear at this point in time. The Biosecurity Act 2015 allows the Secretary of the Department of Industry, Skills and Regional Development to declare an emergency, and they can authorise an officer to “require a person to undergo any treatment measures or require treatment measures to be carried out in relation to a person”, but only in the case of an emergency. The definition of ‘treatment measure’ includes vaccination. However, section 53(1) explicitly, even when emergency order is in place, can only require an “external treatment measure”, in other words, not a vaccination.
It appears the powers and limitations under Part 5 Emergency orders contradict Part 9 which relates to biosecurity directions, so the situation seems unclear.
- Biosecurity Act 2015 s7
- Biosecurity Act 2015 s134(1)(b)
- Biosecurity Act 2015 s51(e)
- Biosecurity Act 2015 s53(1)
- Biosecurity Act 2015 s122
- Biosecurity Act 2015 s112(1)(c)
Western Australia – Any person (including children) can be forced to be vaccinated under serious public health incident and emergency powers
The relevant provisions of the Public Health Act 2016 commenced on 20 September 2017, and they equip a relevant officer with very wide “serious public health incident powers”, including the power to “direct any person to undergo medical observation, medical examination or medical treatment or to be vaccinated, as specified by the officer”, without a warrant being necessary to enter premises or vehicles to carry out the procedure. And “an authorised officer or police officer may use reasonable force to ensure that the direction is complied with”. This includes the forced removal of a person’s clothing, including underwear. There is no definition of “reasonable force” in the Act.
The relevant sections are:
- Public Health Act 2016 s157
- Public Health Act 2016 s158
- Public Health Act 2016 s184
- Public Health Act 2016 s185
The situation around the world
As of 9 December 2020, the Swiss Government states vaccinations will be free but not compulsory.
Articles and documents from Australia and around the world
Below are additional articles that may be of interest.
Making vaccination truly compulsory is well intentioned but ill conceived, Aug 2015 (since 1 Jan 2016 there are financial penalties for parents who refuse to vaccinate their children)
Potential COVID-19 Vaccine Won’t Be Compulsory, Australian Government Says, 20 Aug 2020
Could the Government make a COVID-19 vaccine mandatory in Australia?, 16 Sep 2020
Australia signs two more COVID-19 vaccine agreements, SMH 4 Nov 2020
B23-0171 – Minor Consent for Vaccinations Amendment Act of 2019, Council of the District of Columbia (bill introduced 5 Mar 2019)
Report of the New York State Bar Association’s Health Law Section Task Force on COVID-19, New York State Bar Association 13 May 2020 (see Chapter VI, p60: Precedent cases are mentioned that would allow for mandatory vaccination in interest of public health)
New York State Bar Association Health Law Section Covid-19 Report, revised 20 Sep 2020 (see Chapter VI, pp64-65)
New York State Bar Association House of Delegates: Revised Covid-19 Resolutions, actioned 7 Nov 2020
Health Ministry may recommend mandatory coronavirus vaccine law, The Jerusalem Post 10 Nov 2020 (Israel’s Health Ministry director-general Prof. Hezi Levy is quoted as saying he “would like to push forward a law like this and to require people for whom there isn’t a health risk to get vaccinated.”
US OSHA’s Q&A regarding Covid-19 vaccine (As at 21 May 2021 the website states that if an employer makes vaccination a condition of employment, than any adverse reaction to the vaccine is work-related.)
