OPINION
Augusto Zimmermann
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate law dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. He is the co-author with Gabriël Moens AM of Emergency Powers, Covid-19 Restrictions & Mandatory Vaccination: A Rule-of-Law Perspective (Connor Court Publishing, 2022).
The recent ruling of the Supreme Court of Queensland to declare vaccine coercion unlawful is a decision in the right direction. Last week the Court delivered its long-expected judgment in three lawsuits brought by 86 parties against the Queensland Police Service and Queensland Ambulance Service for their directions to workers issued in 2021 and 2022. These directions required emergency service workers to receive Covid-19 vaccines and booster shots or face serious disciplinary action, including termination of employment.
Justice Glenn Martin of the Supreme Court of Queensland found that such directions breached a section of the state Human Rights Act. As a consequence, Covid-19 vaccines mandates for Queensland police and ambulance service were made unlawfully because such directions limited the human rights of workers who were required to undergo a medical procedure without full consent. Justice Martin stated that non-compliance had “life changing consequences” for the applicants, and ordered the police commissioner and the director-general of Queensland Health be restrained to take steps to enforce the directions or continue any disciplinary proceedings against them.
However, the judgement did not make a ruling or attempt to make a decision about the health risks or efficacy of Covid-19 vaccines. Indeed, the workers only won because both the commissioner and the health director-general did not appropriately consider the human rights advice they received. Besides, the Court also (quite ominously) found that:
Although each of the directions limited the rights under s17 of the Human Rights Act because each had the effect of requiring an employee to undergo medical treatment (a vaccination) without the employee’s full consent … The limit was reasonable in all the circumstances.
So, if they could prove that the advice received was properly considered, apparently these public officials would have given it the green light. Hence, the Queensland Health Minister, Shannon Fentiman, says the government is now even considering appealing from the court’s decision. She argues that the court’s decision was merely technical as it did not explicitly mention that Covid-19 vaccines were contrary to the state Human Rights Act, since the ruling was in relation to how the directives were made, not the directives themselves. “His Honour did find the limit on people’s human rights to have healthcare imposed on them without consent was justified because of the pandemic”, Fentiman told reporters.
An appeal from this decision may eventually lead to a final and authoritative decision by the High Court of Australia, which, under special leave, would then have the ability to decide on the constitutionality of vaccine mandates. This matter, of course, has been carefully considered in my book entitled Emergency Powers, Covid-19 Restrictions & Mandatory Vaccination: A Rule-of-Law Perspective (Connor Court Publishing, 2022), which I have co-authored with Emeritus Professor Gabriel A. Moens AM, one of our leading constitutional law academics in Australia. As stated in our book, the implementation of mandatory COVID-19 vaccination sits uncomfortably with the High Court’s jurisprudence.
An historical view
In 1946 the Australian Constitution was amended in a referendum to include section 51 (xxiiiA), which explicitly says that no law with respect to the provision of pharmaceutical or medical treatment can be imposed on the citizen as a form of civil conscription. This provision allows for the granting of various public services but not to the extent of authorising any form of civil conscription. Thus, nobody can be compelled by the government to be subject to mandatory medical or pharmaceutical services such as vaccinations.
The concept of “civil conscription” was first considered by the High Court in 1949 in British Medical Association v Commonwealth. The Court ruled that requiring doctors to comply with professional standards to receive Medicare payments did not amount to civil conscription. But the Court also relevantly decided that legislation which required that medical practitioners use a particular Commonwealth prescription form as part of a scheme to provide pharmaceutical benefits was invalid as a form of civil conscription. In the opinion of Chief Justice Latham, civil conscription included not only legal compulsion to engage in specific conduct, but also the imposition of a duty to perform work in a particular way. Justice Williams, in his judgment, stated that:
the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical service” (emphasis added).
The idea of all legislation which compels medical service is constitutionally invalid results in the prohibition of both federal and state governments to impose mandatory vaccination. Hence, if any person is directed to mandatorily be vaccinated, such a direction comprises a constitutionally invalid form of civil conscription. Such direction would interfere with the relationship between the doctor and the patient – a relationship which is based on contract and trust. Of course, medical doctors who freely perform their medical service do not create conscription. However, as Justice Webb explicitly mentioned:
When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription.
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 (1944), Lord Justice Scott explained that consent to treatment, including vaccination, is needed to proceed with the treatment:
… a man cannot be said to be truly “willing” unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but in the absence from his mind of any feeling of restraint so that nothing shall interfere with the freedom of his will.
In 2009, in Wong v Commonwealth; Selim v Professional Services Review Committee, 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”. In summary, 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.
‘An egregious violation’
Naturally, the “no jab, no job” health order of the government in Queensland constituted an egregious violation of a fundamental right of the citizen. In this context, Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, which entered into force on 3 January 1976, stipulates that, “The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”
Importantly, the jurisprudence of the High Court indicates that the prohibition of civil conscription must be construed widely to invalidate any law requiring such conscription expressly or by practical implication. This point is particularly addressed in a comment of Justice Webb in British Medical Association v Commonwealth:
If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance” (emphasis added).
In other words, no law in Australia can impose limitations on the rights of citizens that directly or indirectly amount to a form of civil conscription. If governments cannot constitutionally force everyone to be vaccinated, they certainly cannot indirectly create a situation whereby everybody would be forced to take the vaccine. Therefore, from a constitutional point of view, the jurisprudence of the High Court indicates that what cannot be done directly, cannot be achieved indirectly without violating section 51 of the Constitution.
Furthermore, compulsory vaccination adversely affects the democratic principle of equality before the law. If unvaccinated Australians were to face serious restrictions of rights and these restrictions would violate the democratic principle of equality before the law. The deliberate exclusion of unvaccinated Australians from participation in certain activities discriminates against them on the ground of vaccine status. Accordingly, in Leeth v Commonwealth (1992), 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.”
Self-determination
It is also worth approaching the matter from the perspective of the self-determination of individuals. This was highlighted in Airdale National Health Service Trust v Bland (1993), when Lord Justice Mustill expounded on this danger with the following clarity:
If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even it if is plain to all, including the patient, that adverse consequences and even death will or may ensue.
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.
This goes without saying that the right to refuse vaccination is explicitly 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.
It is precisely the experimental nature of the Covid-19 vaccines and the widespread disagreement about the capacity of vaccines to provide protection against a virus that is responsible for the lack of confidence in their effectiveness. The unvaccinated, in relying on health implications for the purpose of refusing the vaccine, may thus ironically invoke the same argument used by proponents of vaccinations, who also rely on health grounds to promote the vaccine. Indeed, in a climate of uncertainty, characterised by a demonstrable lack of confidence, as is amply demonstrated by the vaccine hesitancy in Australia, a programme of mandatory vaccination cannot be regarded as consensual. Hence, the refusal to be vaccinated may be based on the ground that these vaccines are still experimental and their long-term effects and safety on its recipients are unknown.