The Law

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 19th-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.

22 comments
  • ChrisPer

    What an essay! Thanks for all your work to research and write this, and bring it to us.
    There is another source of customary law, and that is what the citizen chooses to do despite the threat of coercion in law. How willingly people remain in noncompliance, and what wrongs result, what damage to the shared moral fabric occur, are also part of the state of the law, though it can be difficult to read clearly.
    25 years after after the Port Arthur massacre, we still are having Government advertising against unlicensed guns. From 1996 on, the body politic threatened me with sodomy in jail despite my perfect record. A lynch mob were raised by the media to punish the innocent by law, and I have every year a bitter trail of work to comply with a string of arbitrary laws and regulations.
    Human Rights Commission persecutions; clearing bans; attacks on greyhounds, horse racing, fishing, and recreation on public lands as they are locked up in national parks.
    And how are you going getting criminals to comply with drug laws, O sages of the media?
    No, your law is to punish the ideological enemy, like me, not the criminals who corrupt the innocent and induct them to the criminal class.

  • talldad

    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.

    No, it is not the virus which has done that but rather the responses of governments in imposing severe restraints upon our freedoms, purportedly to combat the virus. THAT is why people have withdrawn significant levels of trust from their elected representatives. I reiterate that there are important low-cost treatments which have been deliberately set aside in favour of expensive vaccines and intrusive states of emergency as the primary policy responses to the incursion of a microbe.

  • Stephen Due

    The most important fact concerning these vaccinations is the utter ignorance of the authorities as to their adverse effects. Anyone who witnesses the Premiers and CHOs displaying their many deficiencies of character and intellect in their press conferences, will have serious doubts as to their capacity to formulate sound policy on any aspect of public health, including vaccination.
    The utter ignorance I refer to, however, has nothing specifically to do with the limited mental capacity of the authorities whose delusions of grandeur seem so limitless and so unjustified. It is simply a fact that the adverse effects of the Covid-19 vaccines are unknown to medical science. The vaccines have only been subjected to perfunctory clinical trials. Already from VAERS and other databases there are alarming signals of serious adverse outcomes, including deaths, that ought to stop the vaccine rollout immediately – not because of known effects, but because of known uncertainty.
    Anyone who says they know the likelihood of an injection with one of these vaccines killing the recipient (or causing him or her permanent, serious injury) is either a fool or liar. The authorities are quoting figures for the risk of death from the vaccines that have no sound factual basis whatsoever.
    In addition please note: the risk of death from an infection with SARS-CoV-2 is unknown, and therefore cannot be quoted in justification of a claim that the risk of death from the vaccine (albeit also unknown) is less. There is also a logical error which should be noted. Anyone’s risk of death from a SARS-CoV-2 infection is vastly less than the risk of dying from it if infected, but it is the latter risk that is being quoted to bully people into getting the vaccine.
    In addition there is an important scientific error here. Figures being quoted for the risk of dying from the virus if infected all presuppose one does not receive effective early treatment. The reality is that early treatment practically eliminates the risk of death and serious illness from this virus. For that reason alone a mass vaccination program is both unnecessary and unethical.
    Mass vaccination with these experimental products is shocking enough. Forced mass vaccination with them will be final proof that the authorities responsible are utterly unfit for office. I for one will not be taking any of these vaccines. I do not particularly care whether they ‘work’ or (as is more likely) do not ‘work’, whether they are ‘safe’ or (as is more likely) ‘unsafe’.

  • Daffy

    Great essay. Thanks.

    As I ponder the impact of these matters on the rule of law, and decency toward those who are thrown to the dust of history (casual workers, part time-workers, children, single parents, single parents who must go to work…I ponder the complete feckless passivity of the organised churches. No longer standing up for the weak, the poor, the disadvantaged, but shills for the government, big business, big pharma, and an echo box for the equally negligent media. A chance to recover some traditional credibility, but no. Perhaps they think they’ll be rewarded by the power elite. They won’t because the’ve demonstrated their irrelevance to real issues. They will be tossed like a snot rag into the bin: useful but unimportant.

  • Ceres

    Great reading. Given that we are 15 months into all this and we’re hearing of all sorts of discriminatory action against the unvaccinated and given that in your final considerations you state “any legislation that requires compulsory vaccination, either directly or indirectly, constitutes a form of civil conscription that is constitutionally invalid,”
    Where are the legal challenges from lawyers? SPC seems to be the first to mandate vaccinations for workers or resign, and other Companies are testing the waters. This is such a drastic precedent of indirect medical conscription with Premiers and CMO’s naming specifics that the “lepers” could be excluded from, one would have thought legal eagles would be eager to test this in a Court.

  • J. Vernau

    “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”
    *
    Indeed, and therefore S51 precludes anyone being compelled or coerced into administering a vaccine. It is a bit of a stretch to see how it protects anyone from receiving one from a willing vaccinator, particularly if the patient has chosen to be vaccinated, perhaps for entry to a football match where vaccination is required by the owner of the venue.

  • RB

    We will have no choice if we wish to engage in normal activities.
    Bedwetters and politicians looking to save us all will ensure that.
    If I wish to eat and feed my family and those whom I employ I have to travel.
    And so, Jab number 1 yesterday, sore arm not much else.
    I want to punish someone for forcing this on me but it appears my vote and therefore my view counts for little in the PRC.

  • pgang

    RB that is the sad reality. You can’t fight City Hall, as they used to say in the movies. Have power; shall wield it. This is now the law of the jungle and legal niceties are becoming irrelevant.

  • STJOHNOFGRAFTON

    Current data from countries like Gibraltar, Iceland and Israel where the majority are vaxxed shows conclusively that the vaxxed are not protected from what they’re vaxxed against and thet they still obviously can transmit the virus. In Gibraltar, at 98% vaxxed, the unvaxxed, obviously, are not the problem. It is the vaxxed! That fact alone makes the notion of vaxxine travel permits a monumental farce.

  • STD

    John, you will be barred from the cocktail party circuit- you can’t do that- speaking ones mind is now considered, luxuriant behaviour.

  • Lewis P Buckingham

    Well I hope you are right in that ‘end of life decisions’ must be a free act not mandated by some State Government either directly or indirectly.
    However the medical and so health ‘problem’ is not simply a matter of rights.
    As discussed above the vaccines are still undergoing the equivalence of massive field trials and are not perfect.
    Once a ‘better mousetrap’ vaccine is developed, then a lot of the reasons for resistance to it will dissolve.
    Apart from this, although few, the high majority who are not vaccinated and end up dead when entering icu and ventilation, send a salutary reminder to those who are aged or immunosuppressed who are hesitant about vaccination.
    There has been a lot said about alternative remedies on these pages.
    The situation in Brazil, with now over half a million dead, is reflecting on the administration that did not vaccinate and advocated novel but untested mass drug treatments.
    https://catholicherald.co.uk/brazilian-church-leaders-increasingly-critical-of-brazils-bolsonaro/
    Perhaps vaccination is the devil we have come to now know.
    The praxis is vaccinate quickly or perish.
    By extension we are talking personally and community.
    I think there is a case for mandating vaccination in many of the work places.
    There already is anyway.
    In my area tetanus, hepatitis B. Q fever, pertuss, rabies are go to requirements in many work places.
    A child died of hooping cough in the same class as one of my children.
    As grandparents, the siblings demand hooping cough vaccination before visiting the new born.
    It is in that area that fruitful discussion can take place.
    As often these debates are framed as a rights issue.
    However there always is the catch, the obligation issue.
    As a public health matter should carriers of salmonella work as cooks?
    If they do their clients can die.
    Is a carrier of hiv/aids acting lawfully if he has ‘unprotected’ anal sex and does not tell the unfortunate recipient?
    When these things happen, then the health problem is loaded onto the unfortunate sufferers of these negligent actions and the health/hospital system itself.
    As different areas of the world fail to control this pandemic, new varieties will arise.
    Note I am not an expert, but it follows the present track.
    Eventually we will all have to pay the money and take our chances.
    This will mean being vaccinated with the best available vaccine if we can.
    The question as to how far we are able to make informed choices and have the freedom to do so, is hopefully given in our present constitutional framework.
    Mandating vaccination in high risk industries would seem reasonable and already done.
    The question then remains at the local, not government level.
    Can high risk environments such as aircraft be allowed to screen and mandate passengers be vaccinated?
    Do we have a fundamental human right to enter and travel on aircraft?
    Where vaccination is not 100%, do we have a right to infect others or leave them open to greater risk?
    Or are we also obligated to protect others even at out own risk, by not vaccinating, however foolishly taken?

  • padraic

    After reading this instructive essay I was put in mind of a comment in the 60s by, I think, Bishop Fulton Sheen who was of the opinion that one could not use science to prove there was a god and nor could one split the atom using theology. Equally you cannot defeat a virus directly through legal means but you can through medical means. But the reality is that you need one to complement the other and that is what the current debate is about. The Civil Conscription case in the High Court in 1949) (Federal Council of the British Medical Association in Australia v. Commonwealth) was about a requirement in The Pharmaceutical Benefits Act 1947-49 that a medical practitioner could only write a prescription for a drug on the Pharmaceutical Benefits Scheme on a form supplied by the Commonwealth. The Court did not see this as a form of civil conscription within the meaning of s.(xxiiiA) and further held that the prohibition in this paragraph – “but not so as to authorize any form of civil conscription” – applies only to medical and dental services. That clause had been incorporated into s.(xxiiiA) through pressure from the medical profession because in both Britain and Australia the NHS legislation was intended to have urban GPs working as State employees (as were doctors in public hospitals). This was opposed by the profession in both countries after the WW2 in 1945. In Britain the 1942 Beveridge cross-party report established the principles of the NHS which was implemented in Britain by the Labour Government in 1948, with GPs there working for the government. The profession in Australia managed to avoid that, by having the civil conscription clause inserted in the section that went to a successful referendum in 1946.
    On the basis of the above I have difficulty accepting the view expressed in the essay that “Section 51(xxiiA) could thus also be regarded as an implied constitutional right of individual patients to refuse vaccinations”, given that it applies only to “medical and dental services”. The Commonwealth has the constitutional head of power over the Pharmaceutical Benefits Scheme but not “Health” as such which is the prerogative of the States. The States run the hospitals, register the various health professionals and so on – that is their responsibility. So the question is “Do the States have the power to enforce compulsory vaccination?” Prior to Federation the States legislated for Health. In 1854 Victoria passed (and enforced) the Compulsory Vaccination Act and earlier in Tasmania the State government passed (but failed to consistently enforce) an “Act for the Prevention of Small-Pox by rendering Vaccination Compulsory in certain cases” (17Vic, No 20). This was following the example set in Britain not long before with a compulsory Act. A similar Act for compulsory smallpox vaccination was passed in Ireland in 1863, with beneficial results. For information I have reproduced a part of the brief Tasmanian Act of 1853:
    AN ACT for the Prevention of Small-pox by rendering Vaccination compulsory in certain Cases. [6th October, 1853 ] WHEREAS there is Reason to apprehend the Introduction of Small-pox into this Colony, and it is expedient to adopt Means to avert the Ravages which would be caused amongst the Inhabitants by that fearful Disease, and for that Purpose to promote the Practice of Vaccination by rendering the same compulsory in certain Cases; Be it therefore enacted by His Excellency SIR WILLIAM THOMAS DENISON, Knight, Lieutenant-Governor of the Island of Van Diemen’s Land and its Dependencies, with the Advice and Consent of the Legislative Council thereof, as follows :- The Parent of any Child above the Age of Six Months and under the Age of Fourteen Years, who on and after the First Day of April next shall not have caused such Child to be vaccinated, shall, in respect of every such Child, be deemed guilty of an Offence against this Act, and shall for every such Offence forfeit and pay a Penalty not exceeding Five Pounds; unless such Parent shall show, to the Satisfaction of the Justices, before whom the Complaint shall be heard, reasonable Cause or Excuse for not having caused such Child to be vaccinated.
    I suppose the main question about this issue of compulsory vaccination from a legal viewpoint is whether the civil conscription clause in s.(xxiii) applies only to medical and dental services subject to legislation based on the Commonwealth Constitution or whether the States have the power to enforce compulsory vaccination as was the case prior to Federation. If the civil conscription clause in s.(xxiiiA) covers all medical services, including those provided by the States, does that mean doctors in the States are exempt from State legislation compelling them to carry out services related to euthanasia?

  • STD

    No jab – now the fat cat politicians run the real risk of no job – follow the lefts media numbers. That’s not to say that indeed a vaccine is indeed required. TGA medicines are required to be safe and efficacious.
    I will wait and let others go first, as is their want , nothing wrong with that is there!

  • pgang

    ‘Oh, Great Leader’ has locked down the entire state of NSW for another week. Coz you know, it’s a precaution. Her very word. Her arbitrary reason for locking up the entire state. Precaution.

  • STD

    PS, I like Gladys, it’s a political problem that even the left do not want , ask Dan of Victoria.

  • lbloveday

    RB,
    I’m looking like deciding to also have the 2 jabs and hope that it goes well – I’ll have to if I am to see my nonagenarian mother before she dies.
    .
    The figures the politicians and bureaucrats quote about the incidence of adverse consequences are averages which they then incompetently imply are the same for every individual. Surely a person who has had full-time, un-medicated Atrial fibrillation for 12 years must have a much higher probability of a blood clot resulting than a vegan marathon runner.
    .
    When I explained that saying I have whatever the current “official” risk figure indicates is equivalent to saying I weigh 66kg because that is the average weight of a human, the pub “doctor” screamed that I sound like an anti-vaxer!

  • Rebekah Meredith

    There are so many people for whom it will be extremely hard NOT to get the jab–those who want to visit family, those who work in an ever-expanding field of industries and simply want to support themselves. Even for someone like me, who rarely travels far, it’s not a nice feeling to know that I CAN’T–that I’m literally trapped here, and am not permitted to see my family in America. But every person who doesn’t want the vaccine, but gets it anyway, drives another nail in the coffin of vaccine refusal. Surely the possibility of freedom-to choose lessens even more as our numbers shrink away.

  • RB

    lbloveday
    I am in no position to posit anything on the risk relating to taking the jab, I made my own assessment based on my personal health position and the responsibilities I hold.
    I can only recommend you do the same based on your circumstance having taken on board the information.
    Your questioning of the “official” figures is entirely sane and so is choosing to take the jab when the rest of your life would collapse if you didn’t.
    I resent being forced into that position and I will take it out via the ballot box, not sure on who but my irritation won’t go away, is being reinforced every time I hear a politician claim they are helping me by locking me up, keeping me away from my kids and grandkids, make policies that make keeping my staff and their families fed increasingly difficult ~ near on impossible.
    No, I am not happy but it is the sad reality.
    I can’t help but notice the whole news was covid and global warming last night, even the furry animal story got the boot in favor of their alarmist droolings.

  • Stephen Due

    padraic. As regards your example of smallpox vaccination, it should be noted that smallpox vaccination was perfect, providing complete protection and stopping transmission. In addition by the time compulsory vaccination was introduced it was known to be safe after multiple decades of voluntary use.
    These new genetic vaccines are known to be leaky. They cannot prevent infection in every instance. They cannot prevent transmission. This is not only a problem for public health at that level. Because in addition the result is that the vaccines are driving the evolution of the virus into forms that evade the vaccines. This was not true of smallpox, which is why it was possible to eliminate smallpox with vaccination.
    Furthermore, these vaccines, unlike smallpox vaccines, are already known to cause serious disease, permanent disability and death in some recipients. Nobody today knows the extent of the risk.
    My point is that not all vaccines are the same. Just calling a biological agent a ‘vaccine’ does not sanctify it. These products based on novel gene technologies are significantly different from the smallpox vaccines. Finally it should be noted that smallpox had a very high fatality rate. The fatality rate of this disease is minimal with the correct medical treatment (currently being withheld from the Australian public).

  • padraic

    Stephen Due – Thanks for the comment but my earlier post and discussion was meant to address the legal aspect whereby the clause in s. 51 (xxiiiA) – initially intended to prevent conscription of doctors and dentists into the PBS – could possibly be the basis for individual citizens to refuse vaccination as if they were covered by the clause as well – a point that I thought was made in the article. There was no intention to discuss the efficacy or otherwise of vaccines. The example of the use of compulsory vaccination of smallpox by State governments was only intended to pose the question of who does what when it comes to vaccination policy in Australia, in terms of constitutional responsibility.

  • Lewis P Buckingham

    SD :Smallpox vaccine is not ‘safe’ and when, as an advisory, was to be given to frontline workers in case of bioterrorist attack, most refused.
    https://en.wikipedia.org/wiki/Smallpox_vaccine.
    Theoretically the virus has been wiped out, but there are probably stores of it in ‘safe’ biosecurity labs, hence the perceived need to vaccinate against a weaponised pox virus.
    So when the Tasmanian Government legislated to use such a vaccine, its not clear that it was ‘safe’ and effective, even then, as there is a trade off between using a low virulence vaccine, such as derived from cowpox, and its effectiveness.
    The immune suppressed will always suffer, just as they do very badly with the real disease.

  • STD

    State sanctioned rules. Nursing and medical codes of conduct and ethics- these professions are governed by standards and rules that seek to foster community trust, by not bringing the profession into disrepute – a conduct of ethical behaviour is the gold standard. COVID vaccination that has been indemnified against the possibility of prosecution is not a safe proposition for immunisation, which is what the administering of a vaccines is meant to do and achieve with high efficacy.
    The government in Democratic free societies cannot force people to consent , let alone withdraw their rights. Nurses and Doctors are bound by the ethics of informed consent and the right and power of consent rests solely and squarely on the shoulders of the patient- they cannot be coerced , that is the inference in law. I would have thought for the government to discriminate against a citizens legal right to informed consent ,consent , with vaccine passports ,is unreasonable , unethical and unlawful.
    The mere fact that people are balking at Astra Zeneca vaccination implies that this vaccination route has breached people’s trust in its efficacy and is therefore a tacit withdrawal of consent.

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