Vaccinations, Coercion and the Rule of Law

At present, Australian authorities are trying to achieve the goal of full vaccination by scaring and threatening their citizens. For example, the Prime Minister, speaking to the press on Thursday, August 7, 2021, foreshadowed that people who are unvaccinated “will face more restrictions”.^[1] This potentially means that the unvaccinated may no longer have unrestricted access to travel, or may not be allowed to attend football matches, concerts, festivals, even restaurants.

Although it is not feasible to predict what the High Court might were it called upon to consider the constitutionality of vaccination orders, it is possible to indicate what it should do. In such circumstance, the Court, in assessing the constitutionality of mandatory vaccination orders, should consider that the Australian Constitution’s purpose is the establishment of a system of checks and balances capable of restricting arbitrary government and ensuring the realisation of the rule of law.

Australian governments should act within, and in conformity with, the Constitution’s legal-institutional framework, which enshrines our liberal legal tradition of ‘constitutionalism’ and the ‘rule of law’.

 

Government under the ‘rule of law’

It is commonly accepted that the present debate concerning the meaning of the ‘rule of law’ starts with the views developed by Albert Venn Dicey, a 19th-century English constitutional lawyer. He argued that the ideal of legality encompasses three basic elements, namely: (1) supremacy of the ordinary law as opposed to the exercise of arbitrary power; (2) equality of all before the ordinary law that must be administered by ordinary courts; and (3) judicial protection of individual rights that must be guaranteed in practice rather than on paper.^[2]

Since Venn Dicey’s contribution, the ‘rule of law’ has perennially been described as a concept that essentially seeks to protect citizens against unpredictable and arbitrary interferences with their personal interests. Hence, the ‘rule of law’ is designed to minimise political arbitrariness and caprice to ensure that the rights and freedoms of the citizens are properly acknowledged and legally preserved. This requires a delineation of governmental functions whereby the powers of the State are exercised according to clear and generally applicable rules of law, which are stable, enacted in advance, and enforced by an independent and impartial judiciary.

Specifically, the requirement that legal rules be “stable” is central to understanding the debate on the merits and demerits of mandatory vaccination rules. Indeed, if these rules were to change constantly – for example, who can and cannot have a certain vaccine – people would lose confidence in the ability of the ‘rule of law’ to prevent arbitrary decision-making by the authorities. In forestalling the imposition of ever-changing health orders on people – whether they concern face-masking, mandatory vaccination and social distancing, among others – the ‘rule of law’ thus effectively shields people from efforts “to destroy, enslave, or … impoverish” them.^[3]

The aim of legal stability is to facilitate personal planning and to enable a fruitful interaction between free citizens.^[4] Legal stability is necessary for citizens to know the rules that govern their lives and to have confidence in the effectiveness of the constitutional framework. By contrast, constant changes in government directives or commands make it extremely hard, if not impossible, for anyone to plan their lives according to legal standards. Bearing this important fact in mind, the 19^th-century French political theorist and constitutional lawyer, Benjamin Constant, stated:

It is the imprudent multiplication of laws which in some periods has thrown discredit upon the most noble of things, on liberty itself, and made men seek refuge in the most miserable and lowest of them, servitude.[5]

An underlying theme in Western legal theory is thus the notion that the ‘rule of law’ provides at least part of the solution to the problem of arbitrary control over the inalienable rights of the individual.^[6] On this view, the ‘rule of law’ operates as an umbrella concept for legal-institutional mechanisms that protect citizens against the arbitrary power of the State. As aptly remarked by Owen Hood Phillips, who served as emeritus professor of jurisprudence and English public law, “historically, the phrase rule of law was used with reference to a belief in the existence of law possessing higher authority — whether divine or natural — than that of the law promulgated by human rulers which imposed limits on their power”.^[7]

In ongoing debates over the ‘rule of law’, there is also a general perception that the concept is directly related to an aspirational desire of legality, or what the law ought to be. In that way, the concept cannot be disassociated from the moral tradition of the community. In other words, the realisation of the ‘rule of law’ effectively depends on how widely the ideal of legality, known as the ‘rule of law’, is embraced and valued by the general community as an important societal achievement. Hence, as so eloquently stated by Friedrich A. Hayek in The Constitution of Liberty:

From the fact that the ‘rule of law’ is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator … The ‘rule of law’ is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy, this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestionably accepted by the majority. It is this fact that makes so very ominous the persistent attacks on the principle of the ‘rule of law’ … But if it is represented as an impracticable and even undesirable ideal and people cease to strive for its realization, it will rapidly disappear. Such a society will quickly relapse into a state of arbitrary tyranny.[8]

Hayek’s incisive statement reveals that societal ‘confidence’ “in the moral tradition of the community” is essential to maintain a stable society of free and responsible individuals. Accordingly, Trevor Allan, professor of public law and jurisprudence at Cambridge University, comments that the realisation of the ‘rule of law’ depends on the general acceptance of, and compliance with, certain legal standards and aspirations that “encompass traditional ideas about individual liberty and natural justice and, more generally, ideas about the requirements of justice and fairness in the relations between governors and governed”.^[9]

According to Professor Allan, the ultimate meaning of the ‘rule of law’ consists in the “equal dignity between citizens”.^[10] He also explains that, in a rule-of-law system, the fundamental rights of the citizen must be protected by an independent judiciary with enough courage and authority “to invalidate legislation if necessary”.^[11] As a result, the concept encompasses an effective realisation of “constitutional justice”, meaning that “the law is to constitute a bulwark between governors and governed, shielding the individual from hostile discrimination on the part of those with political power”.^[12] He concludes:

In the mouth of a British constitutional lawyer, the term ‘rule of law’ seems to mean primarily a corpus of basic principles and values, which, together lend some stability and coherence to the legal order. It expresses his commitment to a scheme of ideas regarded as legally fundamental. They help to define the nature of the constitution, reflecting constitutional history and generating expectations about the conduct and character of modern government … Allegiance to the ‘rule of law’ is not, therefore, a technical (or even ‘lawyerly’) commitment; it is necessarily allegiance to a political philosophy — albeit a practical philosophy grounded in existing constitutional tradition.^[13]

As can be seen, the ‘rule of law’ requires a constitutional regulation of the sphere of governmental action, thus controlling and guiding the exercise of legislative power. Central to this concept is a proper conviction that establishing a system of limited government comprises “a critical aspect of every system of government which hopes to combine efficiency and the greatest possible exercise of personal freedom”.^[14] The idea rests upon the central premise (and historical truth) that whenever the power of the State is too much concentrated in the hands of a few politicians, then the risk of arbitrariness and political tyranny increases as a natural consequence.

Washington University law professor Brian Z. Tamanaha comments on the rationale for limiting government action according to the ‘rule of law’:

Freedom is enhanced when the powers of the government are divided into separate compartments — typically legislative, executive, and judicial (horizontal division), and sometimes municipal, state or regional, and national (vertical division) … This division of powers promotes liberty by preventing the accumulation of total power in any single institution, setting up a form of competitive interdependence within the government.^[15]

This effectively means that the concept of the ‘rule of law’ stands in opposition to extemporary decisions expressing the momentary will of politicians and their unelected advisers.

 

WHEN the political establishment fails to adhere to the ‘rule of law’, power rests not so much on objective rules as on the voluntary will of those who are in power.^[16] Politicians who are unwilling to subject themselves to the ‘rule of law’ exercise power per leges (by law) but never sub leges (under the law).[17] In this context, “law is transformed into an instrument for repression or at least top-down direction of subjects, and nothing more”.^[18] When this occurs, of course, ‘law’ effectively becomes no more than a “vehicle (and at times equally useful camouflage) for the exercise of unrestrained and uncivilized power’”^[19]

However, this understanding of the ‘rule of law’ is gradually becoming obsolete and overturned by “progressive” ideas that incorporate a myriad of statist considerations which seriously disregard the liberal-democratic legal traditions upon which Australia was founded. As a consequence, the level of general confidence in this ideal of legality is demonstrably declining, although, in the long run, as noted by the late Philip Selznick, the ‘rule of law’ can only be preserved by means of

a culture of lawfulness, that is, of routine respect, self-restraint, and deference … Furthermore, the ‘rule of law’ requires public confidence in its premises as well as in its virtues. The premises include a dim but powerful understanding that positive law is always subject to correlation by standards of truth and justice. In a rule-of-law culture, positive law does not have the last word.^[20]

Selznick’s assertion that “the ‘rule of law’ requires public confidence in its premises as well as in its virtues” is apposite to a discussion of the constitutionality of mandatory vaccination rules in Australia. But, anticipating a discussion of this issue, it is first necessary to review the relationship of the ‘rule of law’ to the concept of ‘constitutionalism’ in Australia’s constitutional framework.

 

The ‘rule of law’ in Australia: understanding ‘constitutionalism’

Like the traditional view or perception of the ‘rule of law’, the concept of ‘constitutionalism’ implies a system of constitutional government that involves separation of powers and, accordingly, limitation of the state’s arbitrary power. In this sense, it would be erroneous to employ the term ‘constitutional government’ with reference to arbitrary government, or an elected dictatorship.

Commenting on ‘constitutionalism’, Suri Ratnapala, emeritus professor at the University of Queensland, states: 

A Constitution in the [traditional] sense is a constitution of a particular type. It limits the powers of rulers by subordinating them to enduring rules that they themselves cannot abrogate. Such a constitution is inextricably associated with the ideal of the ‘rule of law’, which seeks to ensure that people are not at the mercy of the momentary will of a ruler or a ruling group, but enjoy stability of life, liberty and property.^[21]

The liberal legal tradition of ‘constitutionalism’, or ‘constitutional government’, laid the basis for representative democracy and the constitutional protection of citizens against arbitrary power. Under this tradition, to be under the law presupposes the existence of constitutional rules and principles serving as an effective check on government. As stated by professor C.L. Ten,

Constitutionalism and the ‘rule of law’ are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism usually refers to specific constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly constitutive of a liberal democratic system of government … The requirements of constitutionalism are derived from a political morality which seeks to promote individual rights and freedoms, and not directly from values that are supposed to be implicit in the very idea of [positive] law itself.^[22]

In this sense, it appears particularly relevant to consider that the requirements of constitutional government are directly associated with Australia’s liberal-democratic traditions of government under the law, which seek to provide effective protection to individual rights and freedoms.  As stated by Justice Gaudron in Australian Capital Television Ltd v Commonwealth, “the notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and … freedom of speech generally”.^[23] 

Furthermore, it is entirely reasonable to assume that any legislative command which directly violates these fundamental freedoms is not law properly so called. In Nationwide News Pty Ltd v Wills, Justice Brennan explicitly stated: “Where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of government”.^[24]  In other words, once it is judicially recognised that a system of representative democracy is constitutionally prescribed, then the preservation of these fundamental rights and freedoms is “essential to sustain it as firmly entrenched in the Constitution as the system of government which the Constitution explicitly ordains”.^[25]

In this sense, it is self-evident that Australians are endowed with important constitutional protections which are directly derived from the notion espoused by the High Court that we are a free society governed in accordance with the principles of democratic parliamentary government. If this is so, a failure to protect this essential aspect of our constitutional framework would transform the Australian Constitution into a less reliable document when it comes to restricting arbitrary power and ensuring the operation of constitutional government. In this context, Giovanni Sartori, an Italian political scientist, would properly describe such a constitution as no more than a “façade”.^[26]

 

Vaccination orders: what the Constitution says

The Constitution must be interpreted in a manner that promotes its purposes, values and principles, advancing the rule of law and the fundamental rights of the citizen. To implement the ‘rule of law’ and ‘constitutionalism’, the Australian Constitution expressly limits the exercise of governmental powers. In drafting the Constitution, the framers deliberately sought to design an instrument of government intended to distribute and limit the powers of the State.

This distribution of, and limitation upon, governmental powers was intentionally chosen because of the proper understanding that unrestrained power is always inimical to the achievement of human freedom and happiness. Anthony Murray Gleeson, a former Chief Justice of the High Court, describes the Constitution’s feature of express limitation on governmental powers as follows:

… no one is above the law. Thus government officials must exercise their powers according to law. If they do not then, in the last resort, the High Court may order them to do so. The Constitution … itself declares that the government must obey the law, and gives the High Court the jurisdiction to compel such obedience. That jurisdiction cannot be removed or modified except by constitutional amendment. Parliament, if acting within the limits of the powers assigned to it by the Constitution, may change the law. But the executive government must obey the law.[27]

Accordingly, the Constitution allocates the areas of legislative power to the Commonwealth primarily in sections 51 and 52, with these powers being variously exclusive or concurrent with the Australian States. The Constitution was amended in a referendum in 1946 to include section 51(xxiiiA). This provision determines that the Commonwealth parliament, among others, can make laws with respect to: 

The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.

This provision allows for the granting of various services by the federal government but not to the extent of authorising any form of civil conscription.^[28] The concept of “civil conscription” was first considered by the High Court in 1949 in British Medical Association v Commonwealth.^[29] Legislation which required that medical practitioners use a particular Commonwealth prescription form as part of a scheme to provide pharmaceutical benefits was declared 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” (emphasis added).^[30]

The idea, that constitutional provisions protect fundamental legal rights, plays a prominent role in the understanding of these express limitations and, indeed, of the implied constitutional limitations derived from them. Accordingly, the “no conscription” requirement to be found in that constitutional provision amounts to an explicit limitation on mandating the provision of medical services, for example compulsory vaccination, which remains governed by the contractual relationship between patients and doctors. Section 51(xxiiA) could thus also be regarded as an implied constitutional right of individual patients to refuse vaccinations.

Hence, if the medical profession were directed by the government to mandatorily vaccinate people, such direction would constitute 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, a doctor who freely performs his or her medical service does 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.” ^[31]

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. In Bowater v Rowley Regis Corp, Lord Justice Scott explained that consent to treatment, including vaccination, is not properly prescribed:

… 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.[32]

In 2009, in Wong v Commonwealth; Selim v Professional Services Review Committee,^[33] 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”.^[34] Justice Kirby opined that the purpose of prohibiting such 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.”^[35]

This view is 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.

Recently, it has been argued in an AAP FactCheck that an attempt “to apply the code to COVID-19 vaccines is incorrect and misleading.”[36] It notes that the Nuremberg Code only addresses human medical experimentation and does not apply to “approved vaccines”. However, the FactCheck analysis turns on the fact that COVID-19 vaccines do not involve human experimentation, but instead have been approved – in Australia by the Therapeutic Goods Administration – for emergency use. 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.

Hence, people’s refusal to be vaccinated may be based on the ground that the COVID vaccines are still experimental and their long-term effects and safety on its recipients are largely unknown. Indeed, the ‘rule of law’ would be undermined if mandatory vaccination were mandated in circumstances where constant government changes undermine the confidence of people in the efficient administration of the vaccine roll-out and the effectiveness of the vaccines. In this context, 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.[37]

Nevertheless, Australian chief medical officers and their political handlers have embarked on a campaign to cajole people to vaccinate and attempted to rehabilitate the AstraZeneca vaccine as a suitable COVID-19 jab. The debate on the suitability of the AstraZeneca vaccine provides a good explanation for the demonstrable lack of confidence in the effectiveness of vaccines in Australia. The AstraZeneca vaccine lost much of its reputational shine when media disclosed that several deaths from blood clots occurred after the deceased had been vaccinated with this vaccine. This blood-clotting event involves a thrombosis with thrombocytopenia syndrome (TTS). The campaigners point out that the risk of blood clotting is only one out of 250,000 AstraZeneca jabs, whereas it is one out of 1,000 for women of child-bearing age who take the contraceptive pill. Thus, the rate of blood clotting from AstraZeneca compares favourably with the rate of blood clotting from the contraceptive pill. Professor Adam Taylor concludes that:

With this in mind, it’s worth remembering that while there is a small risk of clotting in some individuals who take the AstraZeneca vaccine, this clotting risk is much less than with many other things, including contraceptive pills – and significantly less than the risk of clotting after a COVID-19 infection.[38]

The question should be asked why people distrust AstraZeneca but not the contraceptive pill. An answer may be that many people, especially seniors, have come to believe that there are more suitable, and possibly better, vaccines available, namely Pfizer and Moderna. Although these vaccines, like any other vaccines, also have possible side effects, they do not seem to engender the blood clotting problems of the AstraZeneca vaccine.

More importantly, a comparison between the blood-clotting side effects of AstraZeneca and the contraceptive pill involves the making of a logical error. The error lies in comparing two treatments which are not comparable: one is a vaccine, the other is a pill, used for entirely different purposes. But in the case of vaccines, since they are used for the same purpose of inoculating people against the COVID-19 virus, it is possible to compare the performance of the three available vaccines with each other. Surely, the lack of confidence would not exist if the AstraZeneca vaccine were the only available vaccine on the market.

Hence, many people regard Pfizer as the gold standard in the COVID-19 jungle. Nevertheless, senior lecturer at Curtin University’s law school Rocco Loiacono reports that, “Data from the Israeli Minister of Health released on July 22 declared that the effectiveness of the Pfizer … vaccine at preventing COVID-19 has plummeted from 90 percent to only 39 percent, coinciding with the spread of the Delta variant in the country.”[39]

 

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 exhibit vaccine hesitancy. Also, it does not help that the shambolic rollout of the vaccines in Australia is a textbook example of how it should not be done. The damage caused by this lack of confidence to the ‘rule of law’ is palpable and results in it losing its characteristic of stability.

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.

Obviously, the vaccines on offer do not meet this final requirement of trust. Although ‘trust’ is often based on a misperception, a rational discussion just might save the reputation of the vaccination campaign. But right now, even members of the medical fraternity are bewildered and do not know what to think; they disagree with regards to the advice they give to their patients.

The virus certainly struck a blow at democracy by undermining the ‘rule of law’ and confidence that people have in the vaccination process. It has also fatally compromised the rights and freedoms of people and wrecking the economies of the free world. In such an environment, it is no wonder that people have come to distrust the proposed remedy to the problem of COVID-19 infection, the origins of which are still totally obscured. 

Importantly, the jurisprudence of the High Court clearly indicates that the prohibition of civil conscription must be construed widely to invalidate any law requiring such conscription expressly or by practical implication. 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. This point is also 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).^[40]

Furthermore, compulsory vaccination adversely affects the democratic principle of equality before the law. If unvaccinated Australians were to face serious restrictions of rights and freedoms – as suggested by medical officers and the Prime Minister – these restrictions would violate the democratic principle of equality before the law. Accordingly, in Leeth v Commonwealth,^[41] 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.”^[42]

The deliberate exclusion of unvaccinated Australian citizens from participation in certain activities discriminates against them on the ground of vaccine status. Of course, vaccine status is not one of the accepted grounds in any anti-discrimination legislation and, therefore, it would be possible for governments to defeat a claim that compulsory vaccination violates the anti-discrimination principle. However, reliance on vaccine status would still create an apartheid-type situation since benefits would be conferred and burdens imposed on this ground. But, more importantly, the making of coercive statements to force people to get vaccinated would effectively amount to an indirect form of mandatory vaccination, the constitutionality of which is doubtful at best. Indeed, 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 s. 51 of the Constitution.

Finally, it is 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: it would be a textbook example of the operation of the Nanny State that removes any sense of individual responsibility (and human dignity). In fact, such 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”.[43]

There is seriously a danger of excessive state paternalism when citizens are not allowed to make personal decisions about their own medical treatment, including the decision of whether to take a COVID vaccine. This was highlighted in Airdale National Health Service Trust v Bland, 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.[44] 

 

 Final Considerations

The Constitution prohibits any form of compulsion, which would subject citizens to medical or pharmaceutical services, including mandatory vaccination. They should remain free to decide whether they wish to receive certain medical treatments, including vaccination, and they should not be disadvantaged by any government on the ground of their own voluntary decisions.  

Of course, the Australian Constitution must always be interpreted in a manner that promotes its purposes, values and principles, advancing the rule of law and the fundamental rights and freedoms of the citizen. As a consequence, any legislation that requires compulsory vaccination, either directly or indirectly, constitutes a form of civil conscription that is constitutionally invalid. On this view, unvaccinated Australians remain decent members of society and cannot be treated as lower class citizens.

 

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also adjunct professor of law at the University of Notre Dame Australia (Sydney campus), president of the Western Australian Legal Theory Association, editor-in-chief of the Western Australian Jurist law journal, and a former law reform commissioner in Western Australia. He is the co-editor of Fundamental Rights in the Age of COVID-19, a book with contributions from leading legal academics and policymakers in the field.

 

Gabriël A. Moens AM is emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean of law at Murdoch University. He is the co-author of The Constitution of the Commonwealth of Australia Annotated (9thEd., LexisNexis, 2016). He has also published a novel about the origins of the COVID-19 virus, “A Twisted Choice” (Boolarong Press, 2020) and recently published a short story, “The Greedy Prospector” in an Anthology of short stories, The Outback (Boolarong Press, 2021). 

 

[1] Yeni Safak, ‘Unvaccinated People in Australia to Face Harsher Restrictions’, July 29, 2021, at https://www.yenisafak.com/en/world/unvaccinated-people-in-australia-to-face-harsher-restrictions-3577427.

[2] A.V. Dicey, Introduction to the Study of the Law of the Constitution [1885] (Liberty Fund, 1982), 120-21.

[3] John Locke, Second Treatise on Civil Government [1689], Section 135.

[4] Martin Krygier, ‘The Grammar of Colonial Legality: Subjects, Objects, and the Australian ‘rule of law’’, in G. Brennan and F. G. Castles (eds.), Australia Reshaped: 200 Years of Institutional Transformation (Cambridge University Press, Cambridge, 2002), 234.

[5] Benjamin Constant, Political Writings (Cambridge University Press, 1988), 195.

[6] Suri Ratnapala, Welfare State or Constitutional State? (Sydney: Centre for Independent Studies, 1990), 19.

[7] O. H. Phillips and P Johnson, O Hood Phillips’ Constitutional and Administrative Law, (Sweet & Maxwell, 1987), 37.

[8] Friedrich A. Hayek, The Constitution of Liberty (The University of Chicago Press, 1960), 205.

[9] T. R. S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism, (Clarendon Press, 1993), 21.

[10] T. R. S. Allan, Constitutional Justice: A Liberal Theory of the ‘rule of law’ (Oxford University Press, Oxford, 2001), 2.

[11] Jeffrey Goldsworthy, ‘Homogenizing Constitutions’ (2003) 23 Oxford Journal of Legal Studies 483, 505.

[12] Allan, above n 9, 44.

[13] Ibid., 21-2.

[14] M. J. C. Vile, Constitutionalism and the Separation of Power (2nd ed, Liberty Fund, 1998), 261.

[15] Brian Z. Tamanaha, On the ‘rule of law’: History, Politics, Theory (Cambridge University Press, 2004), 35.

[16] Max Weber, Theory of Social and Economic Organization, (New York: MacMillan, 1948), 215.

[17] For a complete understanding of principles and elements leading to the realisation of the ‘rule of law’, see: Augusto Zimmermann, Murdoch University Journal of Law ‘’The ‘rule of law’ as a Culture of Legality: Legal and Extra-Legal Elements for the Realisation of the ‘rule of law’’ (2007) 14(1) Murdoch University Journal of Law 10, 17-23.

[18] Krygier, above n.4, 225.

[19] Ibid.

[20] Philip Selznick, ‘Legal Cultures and the ‘rule of law’’ in M Krygier and A Czarnota (eds), The ‘rule of law’ after Communism, Ashgate, Dartmouth, 1999, 37. Selznick was professor of sociology and law at the University of California, Berkeley.

[21] Suri Ratnapala, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 2002), 7.

[22] C.L. Ten, ‘Constitutionalism and The ‘rule of law’’, R.E. Goodwin and P. Pettit (eds.), A Companion to Contemporary Political Philosophy (Cambridge/MA: Blackwell: 1993). Chin Liew Ten is Emeritus Professor of Philosophy and former Head of the Philosophy Department at the National University of Singapore. 

[23] (1992) 177 CLR 106, at 212 (Gaudron J.)

[24] (1992) 177 CLR 1, at 48 (Brennan J.)

[25] Ibid.

[26] Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 American Political Science Review 853., 861.

[27] Murray Gleeson, The Rule of Law and he Constitution (ABC Books, Sydney, 2000), 67-68.

[28] See: 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].

[29] (1949) 79 CLR 201; [1949] HCA 44.

[30] (1949) 79 CLR 201, at 287 (Williams J).

[31] (1949) 79 CLR 201, at 295 (Webb J).

[32] Bowater v Rowley Regis Corp [1944] KB 476, at 479 (Scott LJ).

[33]  (2009) 236 CLR 573

[34] Ibid at [62].

[35] Ibid at [151].

[36] AAP FactCheck, ‘The Nuremberg Code doesn’t apply to COVID-19 vaccinations’, June 9, 2021.

[37]  Rocco Loiacono, ‘Most Covid patients at Israeli hospital fully vaccinated? What does this mean for 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/.

[38] Adam Taylor, ‘Blood clot risks: Comparing AstraZeneca vaccine and the contraceptive pill’, The Conversation, April 10, 2021, at https://theconversation.com/blood-clot-risks-comparing-the-astrazeneca-vaccine-and-the-contraceptive-pill-158652.

[39] See above n 37.

[40] (1949) 79 CLR 201, at 293 (Webb J).

[41] (1992) 174 CLR 455.

[42] Ibid at [8].

[43] ‘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.

[44] Airdale National Health Service Trust v Bland [1993] AC 789, at 889. (Mustill LJ). Similarly, in that same case Lord Judge Goff remarked at 866:    

[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.