If the Will Were There to End Vaccine Mandates…

Australian politicians are trying to achieve the goal of full COVID-19 vaccination by scaring and threatening the population. Presently, the states are forcing Australians to get vaccinated or face job losses and the imposition of heavy fines. Some states and Territories have issued “health orders” mandating vaccination for numerous industries or workers. Prime Minister Scott Morrison tacitly endorses these mandatory vaccination orders, despite his earlier insistence that no one would be vaccinated against their will, as evidenced by his refusal to back the introduction of federal legislation that would effectively overturn the states’ ability to impose their will.

Pauline Hanson’s pro-choice bill, recently rejected in the Senate, would have prohibited states, territories and businesses from discriminating on the ground of vaccine status.  In a speech delivered remotely to the Senate, Hanson argued that those who opposed her pro-choice billweare “too bloody gutless to stand up for the people of Australia”.

We find it difficult to disagree. Fortunately, five Coalition senators agreed with Senator Hanson and were willing to cross the floor in order to protect Australians’ basic rights. For the record, these principled senators were Sam McMahon, Gerard Rennick, Matt Caravan, Alex Antic and Concetta Fierravanti-Wells.

We were surprised that Senator Eric Abetz did not cross the floor. In a press release, he argued that that he personally opposes vaccine mandates but had to abstain from voting on the grounds that Hanson’s bill was “clumsy and unlawful in that it is unconstitutional”.[1]

Senator Abetz then explained that, according to him,

the Bill … would seek to over-ride the states and stop funding to them if they mandate in any circumstance. Its constitutionality is highly questionable and the consequences highly disruptive

He also contended that the Federal government does not have power to override the states on vaccine mandates.

If this a problem, it is relatively easy to solve. A new draft bill could make sure the Commonwealth does not stop funding the states. As for his second objection, we are confident that the Commonwealth can rely on its external affairs power (some general background here) to enact legislation that can render state vaccine mandates constitutionally invalid.

The Australian Constitution, in its Section 51 (xxix), says:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… (xxix) External affairs.

The rise and growth of international legal instruments has dramatically increased the significance of the external affairs power.  As the range of topics that can be regulated under s51(xxix) has expanded, this has confirmed the supremacy of the Commonwealth’s legislative powers at the expense of the powers of the Australian states.

Sir Harry Gibbs, a former Australian Chief Justice, explains that “it appears no exaggeration to say” that together with the regular operation of s. 109 (inconsistency) of the Constitution, the external affairs power has the potential to

annihilate State legislative power in virtually every respect.[2]

Section 109 of the Constitution provides that federal laws must prevail over those of a state to the extent of inconsistency. The State law is deemed invalid to the extent of such inconsistency. Situations of conflict between a state law and a federal law arise, for example, when:

(a) the State law cannot be obeyed at the same time as the federal law (Mabo v Queensland (1988) 166 CLR 186); (b) when the federal law permits a certain activity prohibited by a State law (Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151); (c) when a federal law confers a right which a State law seeks to remove (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466).

The Australian government has concluded  innumerable  treaties on a wide range of matters.  In R v Burgess; Ex parte Henry (1936), the High Court made it very clear that the external affairs power is not restricted to the Commonwealth’s power to make laws with respect to the external aspects of the subjects mentioned in s. 51. This approach has allowed Commonwealth powers to be applied in areas never contemplated by the framers.

In this sense, the external affairs’ power have become a major weapon in the Commonwealth armoury. The Australian Treaties Database (ATD), an online resource of treaties signed or actioned by Australia, lists the many treaties Australia has entered into since Federation. As such, writes Professor George Williams, ‘the possible uses of the external affairs power remain enormous. The fact that it can be used to legislate in areas formerly under state control is, according to the long accepted approach of the High Court, irrelevant.[3]

The Federal government has successfully relied upon the external affairs power to support the enactment of a great number of laws over the years. Accordingly, the Morrison government could enact a law that prohibits mandatory vaccines pursuant to Australia’s ratification of several international law instruments thereby giving effect to these instruments. 

Accordingly, implementing these instruments through the external affairs power would be the basis on which the federal government could defend the constitutional validity of its pro-choice legislation if this was eventually challenged in the High Court. In this case, the Court would be able to decide that the relevant federal legislation is a constitutionally valid law with respect to the external affairs power. 

In 2009, in Wong v Commonwealth; Selim v Professional Services Review Committee,^[4] Chief Justice French and Justice Gummow held that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services”.^[5] Justice Kirby opined that the purpose of prohibiting this conscription was to ensure that the relationship between medical practitioner and patient was governed by contract where that is the intention of the parties. For him the test whether civil conscription has been imposed is “whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of medical and dental services and the individual recipients of such services.”^[6]

This view is supported by an international instrument, the Nuremberg Code, which is an ethics code relied upon in 1947 during the Nazi doctors’ trials in Nuremberg. This Code has as its first principle the willingness and informed consent by the individual to receive medical treatment or to participate in an experiment. However, it has been argued in an AAP FactCheck that an attempt “to apply the code to COVID-19 vaccines is incorrect and misleading.”^[7] It notes that the Nuremberg Code only addresses human medical experimentation and does not apply to “approved vaccines”.

The AAP FastCheck analysis turns on the fact that COVID vaccines do not officially involve human experimentation, but instead have been approved – in Australia by the Therapeutic Goods Administration – for emergency use. However, it is precisely the experimental nature of the vaccines and the widespread disagreement about the capacity of vaccines to provide protection against the virus that is responsible for the lack of confidence in their effectiveness. Indeed, in a climate of uncertainty, characterised by a demonstrable lack of confidence, as is amply demonstrated by the vaccine hesitancy in Australia, a programme of mandatory vaccination cannot be regarded as consensual. The unvaccinated, in relying on health implications for the purpose of refusing the vaccine, may thus ironically invoke the same argument used by proponents of vaccinations, who also rely on health grounds to promote the vaccine. In this context, legal academic Dr Rocco Loiacono states:

For any government either by itself or via corporate proxy to attempt to mandate vaccines in circumstances were there has not been adequate testing and analysis of risks as well as benefits would constitute not only a violation of the principle of informed consent … but a violation of Australia’s obligations under international law with respect to medical experimentation.^[8]

One of the most frustrating things surrounding the contentious vaccine debate is the existence of many different and inconsistent opinions and advice. A person may be told by one specialist doctor that AstraZeneca is a potentially unsafe vaccine, compared with the Pfizer or Moderna vaccines. Other professionals may point to the negligible risk of taking the AstraZeneca jab compared with its huge potential benefits. Clearly, if the medical advice given is not consistently conveyed by the medical fraternity, it is no wonder that people lose confidence in the effectiveness of these vaccines and exhibit vaccine hesitancy.

This lack of confidence is exacerbated when one considers the standards that vaccines should exhibit but fail to meet. There are at least five medical requirements that need to be met: (i) the vaccine must result in a measurable reduction in the number of sick people afflicted with the COVID-19 virus, (ii) the vaccine must be capable of protecting recipients for a significant time, thereby possibly avoiding booster shots, (iii) the vaccine should have few negative side effects, (iv) the vaccine must be effective against newer variants of the virus, and (v) the vaccine must substantially reduce transmission rates. There are four logistical requirements: (i) a low cost to produce the vaccine, (ii) the vaccine can be produced quickly on the required scale, (iii) the vaccine can be efficiently distributed, and (iv) it is easy to administer. Perhaps the most important, and final, requirement is that the public, medical professionals, and politicians confidently trust the vaccine.

It goes without saying that compulsory vaccination adversely affects the democratic principle of equality before the law. Australians are facing serious restrictions of rights and freedoms that violate the democratic principle of equality before the law. In Leeth v Commonwealth,^[9] Justice Deane and Justice Toohey referred to the Preamble to the Australian Constitution to support their view that the principle of equality is embedded impliedly in the Constitution. They argued that “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.”^[10]

It is also worth approaching the matter from the perspective of the dignity and privacy of individuals. Governments should avoid relying on the parens patriae doctrine according to which government will decide what is good for people as this would remove any sense of individual responsibility (and human dignity). This governmental approach violates international human rights law; it certainly contradicts the United Nations Universal Declaration of Human Rights. Elaborated under the auspices of Eleanor Roosevelt and her commission, when she summed up the attitude of the framers, Roosevelt explained that this historical piece of international legislation was based on the expectation that everyone must have freedom in which to individually develop their “full stature and through common effort to raise the level of human dignity”.^[11]

Ratifying an international agreement allows the Commonwealth government to legislate domestically to incorporate anti-mandatory vaccination under the external affairs power. The legislation would have to meet the specificity and conformity requirements. However, Australia entering an international agreement is all that is necessary to meet this requirement. In the Tasmanian Dam Case^[12] and subsequent cases, the High Court has stated that “[t]he existence of international character or international concern is established by entry by Australia into the Convention or treaty”.^[13] 

As can be seen, the very fact that Australia has ratified a treaty or international legal agreement will be sufficient to satisfy any requirement of “international character”. What is more, in Pape v Federal Commissioner of Taxation, Justice Heydon  observed that “[t]he treaty or commitment need not have the precision necessary to establish a legally enforceable agreement at common law, but it must avoid excessive generality”.^[14]

In the Preamble of the World Health Organisation’s Constitution, the word “health” is conceptualised as a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. However, to fight the coronavirus the Australian governments have adopted measures that have caused millions of people to endure deeply stressful and traumatic situations, including home confinement, job losses, financial ruin, and a whole host of mental illnesses.

These measures are unlawful under international law because they affect non-derogable rights and freedoms, including freedom of speech, association, movement, expression, and privacy. Of course, international law recognises that, during extraordinary circumstances, the states may enact emergency powers that suspend ordinary rule-of-law protections. However, there are “non-derogable rights” and the inalienability of these rights has been acknowledged by the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (‘Siracusa Principles’). A document produced by the American Association for the International Commission of Jurists, the Siracusa Principles, declares that

No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude … the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.^[15]

Australian governments are now starting to impose vaccination mandates that treat the vaccinated differently to the unvaccinated. In practice, this means that unvaccinated individuals have less opportunities to get a job, to travel and to socialise , and even to go to a cafeteria. This segregationist approach creates an atrocious two-tier society that is unsupported by the Nuremberg Code.

Informed consent is the voluntary agreement by an individual to a proposed medical treatment, given only after sufficient information about potential risks and benefits, including possible adverse effects, are provided. From the perspective of public international law, informed consent is the bedrock principle of ethical standards in medicine. According to Article 6(1) of UNESCO’s Universal Declaration on Bioethics and Human Rights (2005):

Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.

As can be seen, international law instruments prohibit the removal of non-derogable rights even in situations of an alleged “emergency”, including the right to informed consent when it comes to vaccination. This prohibition encompasses any form of compulsion subjecting individuals to mandatory medical or pharmaceutical service, including vaccination.

While the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), contains no definition of health, the United Nations’ Committee on Economic Social and Cultural Rights communicates that the right to health contains both fundamental freedoms and entitlements. These freedoms include ‘the right to control one’s health and body’, and “the right to be free from interference non-consensual medical treatment and experimentation”.[16]  

Under article 2(1) of ICESCR, Australia must take the necessary steps ‘to the maximum of its available resources, with a view to achieving progressively the full realisation’ of the fundamental rights recognised in the Convention. Article 2(1) of the ICESCR states:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

The United Nations’ Committee on Economic Social and Cultural Rights has determined that Article 2 (1) ‘must be read in the light of the overall objective of the Covenant which is to establish clear obligations for states parties in respect of the full realization of the rights in question’. This provision, ‘thus imposes an obligation to move as expeditiously and effectively as possible towards that goal’. Furthermore, in its Article 4, the ICESCR declares:

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. [17]

The United Nations’ Committee on Economic Social and Cultural Rights emphasises that the Covenant’s limitation clause to be found in Article 4, “is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States”. As also noted by the Committee, “issues of public health are sometimes used by states as grounds for limiting the exercise of other fundamental rights”.[18] That being so, any state that, for example, restricts the movement of, or incarcerates, persons or refuses to allow doctors to treat persons believed to be opposed to a government, is acting in a manner that is ‘incompatible with the nature of the rights protected by the ICESCR’.[19] Furthermore, Article 12.2. of the ICESCR acknowledges that the right to health embraces a wide range of fundamental rights which allows people to have a healthy life, such as employment rights and freedoms to movement and association.

To conclude, the Morrison government surely has the power to override state “health orders” that mandate vaccination.^[20] Given that Australia has entered into innumerable international law instruments, the external affairs power could be used for the enactment of federal legislation forbidding mandatory vaccination, according to the long accepted approach of the High Court. To be constitutionally valid, this pro-choice bill would have to rely on the external affairs power, pursuant to Australia’s entry into the afore-mentioned international legal instruments, thereby giving effect to these instruments. This reliance on international law should be evident from the Preamble to the pro-choice bill overturning the ability of the Australian states to create “health orders” imposing these vaccine mandates.

Augusto Zimmermann LLB, LLM cum laude, PhD, CIArb, DipEd, is Professor and Head of Law at Sheridan Institute of Higher Education and President of the Western Australian Legal Theory Association (WALTA). From 2012 to 2017, he served as a Law Reform Commissioner in Western Australia. While teaching constitutional law as a tenured academic at Murdoch University, Professor Zimmermann was awarded the 2012 Vice Chancellor’s Award for Excellence in Research, as well as two Law School Dean’s Research Awards, in 2010 and 2011. He is the author of numerous academic articles on the Rule of Law, contributing, inter alia, for a seminal book on the subject edited by the President of the American Bar Association: The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (Springer, 2014). Professor Zimmermann is also the co-editor of Fundamental Rights in the Age of Covid-19 (Connor Court Publishing, 2021).

Gabriël A. Moens AM, JD, LLM, PhD, GCEd, MBA, MAppL, FCIArb, CIArb, FAIM, FCL, FAAL is emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean of law at Murdoch University. Professor Moens is the author/co-author of numerous academic books, including The Constitution of the Commonwealth of Australia Annotated (9thEd., LexisNexis, 2016) and Jurisprudence of Liberty (2^nd ed, LexisNexis, 2011).  He has also published a novel about the origins of the COVID-19 virus, “A Twisted Choice” (Boolarong Press, 2020) and recently published his second novel, “The Coincidence” (Connor Court Publishing, 2021)  

[1][1] ‘Abetz Abstains on Mandatory Vaccine Bill’, 22 November 2021, at  https://abetz.com.au/news/abetz-abstains-on-mandatory-vaccine-bill

[2] Sir Harry Gibbs, ‘The Decline of Federalism?’ (1994) 18 University of Queensland Law Journal 1, 4.

[3] Andrew Stewart and George Williams, Work Choices: What the High Court Said (Sydney: Federation Press, 2007), 10

[4]  (2009) 236 CLR 573

[5] Ibid at [62].

[6] Ibid at [151].

[7] AAP FactCheck, ‘The Nuremberg Code Doesn’t Apply to COVID-19 Vaccinations’, June 9, 2021.

[8]  Rocco Loiacono, ‘Most Covid patients at Israeli hospital fully vaccinated? What does this mean for Australia?’, The Spectator Australia, August 12, 2021, at https://www.spectator.com.au/2021/08/most-covid-patients-at-israeli-hospital-fully-vaccinated-what-does-this-mean-for-australia/.

[9] (1992) 174 CLR 455.

[10] Ibid at [8].

[11] ‘Statement by Mrs Franklin D Roosevelt’, Department of State Bulletin (December 1948) 751. Quoted in Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing: Oxford, 2009), 103.

[12] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (‘Tasmanian Dam Case’).

[13] Ibid 125 (Mason J). 

[14] [2009] HCA 23; (2009) 238 CLR 1, 162 (Heydon J) (‘Pape’).

[15] United Nations Economic and Social Council, United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the LImination and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/ (1984) [58].

[16] ‘Right to Health: Public Sector Guidance Sheet’, Australian Government, Attorney-General Department.

[17] U.N. Economic and Social Council – Committee on Economic, Social and Cultural Rights, General Comment No.14. (11 August 2000)

[18] Ibid.

[19] Ibid.

[20] (1949) 79 CLR 201, at 293 (Webb J).