No Jab, No Job, No Basis in Law

The recent ruling of the Supreme Court of Queensland to declare vaccine coercion unlawful is a decision in the right direction. On 27 February, the Court delivered its long-expected judgment in three lawsuits brought by 86 parties against the Queensland Police and Queensland Ambulance services for directions to workers issued in 2021 and 2022. These directions required emergency service workers to receive Covid-19 vaccines and booster shots or face disciplinary action, including termination of employment.

Justice Glenn Martin of the Supreme Court of Queensland found that such directions breached a section of the state Human Rights Act. As a consequence, Covid-19 vaccines mandates for the Queensland police and ambulance services were made unlawfully because such directions limited the human rights of workers who were required to undergo a medical procedure without full consent. Justice Martin stated that non-compliance had “life changing consequences” for the applicants and ordered the police commissioner and the director-general of Queensland Health be restrained from enforcing the directions or continuing any disciplinary proceedings against the applicant parties.   

However, the judgment did not make a ruling, or attempt to decide, about the health risks or efficacy of Covid-19 vaccines. Apparently, the workers only won because both the commissioner and the health director-general did not appropriately consider the human rights advice they received. Besides, the Court also (quite ominously) found that, although each of the directions limited the rights under s17 of the Human Rights Act because each had the effect of requiring an employee to undergo medical treatment (a vaccination) without the employee’s full consent, the limit was reasonable in all the circumstances.[1]

So, if they had been able to prove that the advice received was carefully considered, these public officials would have been given the green light. Accordingly, Queensland Health Minister Shannon Fentiman says the government is now even considering appealing the court’s decision. She argues that the court’s decision was merely technical as it did not explicitly mention that Covid-19 vaccine mandates were contrary to the state Human Rights Act, since the ruling was in relation to how the directives were made, not the directives themselves.[2] “His Honour did find the limit on people’s human rights to have healthcare imposed on them without consent was justified because of the pandemic”, Fentiman told reporters.[3]

An appeal from this decision may eventually lead to a final and authoritative decision by the High Court of Australia, which, under special leave, would then have the ability to decide on the constitutionality of vaccine mandates. This matter, of course, has been carefully considered in our book entitled Emergency Powers, Covid-19 Restrictions & Mandatory Vaccination: A Rule-of-Law Perspective (Connor Court Publishing, 2022).

Any assessment of the legality of vaccine mandates, understandably, should start with a review of the relevant section of the Australian Constitution. Section 51(xxiiiA) stipulates that “the Parliament shall … have power to make laws for the peace, order and good government of the Commonwealth with respect to … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription).” This section was included in the Constitution following a successful referendum, held in 1946.

The High Court first considered the concept of “civil conscription” in 1949 in British Medical Association v Commonwealth.⁴ The Court ruled that requiring doctors to comply with professional standards to receive Medicare payments did not amount to civil conscription. But the Court also decided that legislation requiring that medical practitioners use a particular Commonwealth prescription form was invalid as a form of civil conscription. In the opinion of Chief Justice Latham, civil conscription included not only legal compulsion to engage in specific conduct, but also the imposition of a duty to perform work in a particular way. Justice Williams, in his judgment, stated that “the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical service.”⁵

In 2009, in Wong v Commonwealth; Selim v Professional Services  Review Committee,⁶ Chief Justice French and Justice Gummow held that ‘civil conscription’ is a “compulsion or coercion, in a legal or practical sense, to carry out work or provide services.”⁷ Hence, a government directive, addressed to the medical profession to mandatorily vaccinate people, would constitute an unconstitutional civil conscription. Such directive would interfere with the relationship between the doctor and the patient – a relationship which is based on contract and trust.

Importantly, the jurisprudence of the High Court indicates that the prohibition of civil conscription must be construed widely to invalidate any law requiring such conscription expressly or by practical implication. This point is particularly addressed in a comment of Justice Webb in British Medical Association v Commonwealth:

If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance (emphasis added).^8.

In other words, no law in Australia can impose limitations on the rights of citizens that directly or indirectly amount to a form of civil conscription. If governments cannot constitutionally force everyone to be vaccinated, they certainly cannot indirectly create a situation whereby everybody would be forced to take the vaccine. Therefore, from a constitutional point of view, the jurisprudence of the High Court indicates that what cannot be done directly, cannot be achieved indirectly without violating s51 of the Constitution.

There are two constitutional challenges to overcome when attempting to interpret section 51(xxiiiA) as allowing vaccine mandates: (i) the construction of the section as granting a constitutional right to patients to refuse vaccinations, and (ii) the applicability of the section to the states.

The first challenge relates to the construction of section 51(xxiiiA) as conferring a constitutional right on individuals to refuse vaccination. If that section were to be interpreted as allowing mandatory vaccination, then the contractual relationship between doctor and patient would be effectively abolished because the ability of patients to enter a contract for the receipt of vaccination services would be fatally compromised. Yet, Justice Michael Kirby opined in 2009, in Wong v Commonwealth; Selim v Professional Services Review Committee,⁹ that the purpose of prohibiting the civil conscription in section 51(xxiiiA) was to ensure that the relationship between medical practitioner and patient was governed by contract. 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”.¹⁰

Justice Kirby’s point reveals that compulsory vaccination destroys the contractual relationship between doctors and patients and, therefore, it imposes an impermissible obligation on people to accept a medical procedure which they can refuse on constitutional grounds. Section 51(xxiiiA) could thus be regarded as an implied constitutional right of patients to refuse vaccinations. Hence, a medical treatment which is imposed upon a person without his or her informed consent is a trespass upon that person. In Bowater v Rowley Regis Corp (1944),¹¹ Lord Justice Scott explained that consent to treatment, including vaccination, is needed to proceed with the treatment:

… a man cannot be said to be truly ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but in the absence from his mind of any feeling of restraint so that nothing shall interfere with the freedom of his will.

The second challenge relates to the applicability of section 51(xxiiiA) to the Australian states. Although a state government can institute its own public health orders, any component of such order cannot impermissibly intrude into any matter which may be regarded as coming within the sole legislative authority of the Commonwealth Parliament. When this occurs, of course, the state must make application to the Commonwealth to enact that specific component of the health order. Accordingly, the issue of vaccine mandates is not whether an Australian state can issue a public health order, but rather whether such state is constitutionally authorised to issue a public health order which unreasonably intrudes into a matter that comes within the sole purview of the Commonwealth.

This foray into the interpretation of section 51(xxiiiA) reveals that, if a person is directed to be mandatorily vaccinated, such direction comprises an unconstitutional civil conscription. Such direction would interfere with the relationship between the doctor and the patient – a relationship which is based on contract and trust. Of course, medical doctors who freely perform their medical service do not create conscription. However, as Justice Webb explicitly mentioned:

When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription. ¹²

Justice Webb’s statement also indicates that, even if the doctor were compelled to provide a service, the patient would have the right to waive that service. In other words, no citizen shall be in any way coerced into any medical treatment whatsoever, including vaccination. A medical treatment which is imposed upon a person without his or her informed consent is a trespass upon that person.

Naturally, the “no jab, no job” health order of the government in Queensland constituted an egregious violation of a fundamental right of the citizen. In this context, Article 6(1) of the International Covenant on Economic, Social and Cultural Rights, which entered into force on 3 January 1976, stipulates that, “The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

Furthermore, compulsory vaccination adversely affects the democratic principle of equality before the law. If unvaccinated Australians were to face serious restrictions of rights, these restrictions would violate the democratic principle of equality before the law. The deliberate exclusion of unvaccinated Australians from participation in certain activities discriminates against them on the ground of vaccine status. Accordingly, in Leeth v Commonwealth (1992),¹³ Justice Deane and Justice Toohey referred to the Preamble to the 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.” ^14.

It is also worth approaching the matter from the perspective of the self-determination of individuals. This was highlighted in Airdale National Health Service Trust v Bland (1993), when Lord Justice Mustill expounded on this danger with the following clarity:                     

If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even it if is plain to all, including the patient, that adverse consequences and even death will or may ensue.¹⁵ 

Similarly, in that same case Lord Judge Goff remarked:

 [I]t is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so: To this extent, the principle of sanctity of human life must yield to the principle of self-determination.¹⁶

The right of an individual to refuse vaccination is also supported by the Nuremberg Code – an ethics code – relied upon 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. And it is precisely the experimental nature of the Covid-19 vaccines and the widespread disagreement about the capacity of vaccines to provide protection against a virus that is responsible for the lack of confidence in their effectiveness. 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. 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. Hence, the refusal to be vaccinated may be based on the ground that these vaccines are still experimental and their long-term effects and safety on its recipients are unknown. Of course, vaccine mandates also adversely affect the employment rights of people because it gives the government and employers an enormous amount of invasive power over their lives.

Regrettably, the deep unease and fear that saturate Australia’s society created a population disposed to governments whose insatiable thirst for power and control leads to authoritarian measures. To avoid the growing concern of human rights violations and outright suppression of the constitutional order, the political establishment has learned about the importance of manipulating public perceptions to win support of what normally would be rejected as arbitrary and oppressive measures.

Significantly, the political class has not acted alone, relying on so-called “chief health advisers” who then become the de facto rulers over the people as the establishment’s effective enablers. Providing discretionary directions, these health advisers are perfectly positioned to function as the mastermind behind most of the government’s extra-constitutional schemes. Part of such a master plan, of course, involves dismantling the rule of law. Paradoxically, the nation’s political class has managed to undermine the rule of law through legal means. The success at sustaining legitimacy to arbitrary rule and maintaining a façade of legality arises out of a narrow positivistic justification used to shroud otherwise unconstitutional exercises of power that violate the most elementary principles of the rule of law.

Without the protection of civil liberties, a government cannot call itself truly democratic and under the rule of law. To avoid the growing concern of outright suppression of basic human rights, the political class has learned about the necessity of manipulating public perceptions to win support of what normally would be rejected as unconstitutional measures. Government propaganda, which is disseminated by the mainstream media, has been successful in justifying these arbitrary measures, thus making the media an effective means of censoring anti-establishment messages. Without an alternative view, of course, the public tends to view reports of human rights violations merely as “excesses” or “collateral damage” – the price to fight a “deadly virus”.

Although it is not feasible to predict what the nation’s highest court, the High Court of Australia, might do if it were called upon to consider the constitutionality of coercive vaccination, it is still possible to ascertain how the Australian Constitution should be interpreted. Of course, the Constitution must be interpreted in a manner that promotes its purposes, values, and principles. The High Court, in assessing the constitutionality of these vaccine mandates, should consider that the primary purpose of having a constitution, one based on the principles of liberal democracy and representative government, is the establishment of a system of checks and balances capable of limiting arbitrary power and ensuring the realisation of the principle of legality, known as the ‘rule of law’.

It is understood that criminal charges should be laid against those involved in this gross violation of human rights. We are therefore sympathetic to the opinion of Campbell Newman, the former premier] and mayor of Brisbane, who correctly stated: 

All the officials involved in the disgraceful policy of vaccine coercion should be held to account for their actions. None of them should escape “facing the music” for their unlawful decisions and the misery they inflicted on so many people. None at all. You should all resign now.¹⁷

We couldn’t agree more. As constitutional law academics, we hope that the Queensland government “dares” to challenge the decision just made by the Supreme Court of Queensland, thus eventually providing the High Court an opportunity to make a final and authoritative decision on these important legal/constitutional matters. As mandatory vaccination sits uncomfortably with the jurisprudence of the High Court, one would expect the Court to acknowledge its previous jurisprudential approach, thus deciding that vaccine coercion constitutes not only a gross violation of basic human rights but also a violation of the letter and the spirit of the Australian Constitution.

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.  Zimmermann and Moens are the authors of Emergency Powers, Covid-19 Restrictions & Mandatory Vaccination – A Rule-of-Law Perspective (Connor Court Publishing, 2022), available at https://www.connor[1]courtpublishing.com.au. Their most recent book is entitled The Unlucky Country (Locke Press, 2024)

[1] Johnston v Carroll (Commissioner of the Queensland Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2, at https://www.queenslandjudgments.com.au/caselaw/qsc/2024/2.

Summary at https://www.sclqld.org.au/caselaw/14152

² Talissa Siganto, ‘Mandating COVID-19 vaccines for some Queensland frontline workers found to be unlawful, judge rules’, ABC News, 27 February 2024, at https://www.abc.net.au/news/2024-02-27/qld-vaccine-mandate-police-paramedics-frontline-workers/103515692.

³ ‘Police service, health department bungled vaccine mandates, judge finds’, Brisbane Times, 27 February 2024, at https://www.brisbanetimes.com.au/national/queensland/police-service-health-department-bungled-vaccine-mandates-judge-finds-20240227-p5f85p.html.

⁴ (1949) 79 CLR 201; [1949] HCA 44.

⁵ (1949) 79 CLR 201, at 287 (Williams J).

⁶ (2009) 236 CLR 573

⁷ Ibid at [62]. See also Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, at 279; 69 ALR 631; Halliday v Commonwealth (2000) 45 ATR 458; [[2000] FCA 950 at [11].

 ⁸ (1949) 79 CLR 201, at 293 (Webb J)

⁹  (2009) 236  CLR 573

¹⁰ Ibid.: [151].

11. Bowater v Rowley Regis Corp [1944] KB 476, R 479 (Scorr LJ).

¹²  (1949) 79 CLR 201, at 293 (Webb J).

¹³ (1992) 174 CLR 455.

¹⁴ Ibid at [8].

¹⁵ Airdale National Health Service Trust v Bland [1993] AC 789, at 889. (Mustill LJ).16

¹⁶ Ibid at 866.

¹⁷ Campbell Newman, 27 February 2024, at https://twitter.com/CampbellNewman/status/1762318197142007827