In a media release dated 1 October 2021, the Victorian Premier Daniel Andrews announced that all workers on the authorised worker list will be required to be vaccinated against COVID-19 in order to be able to work onsite. All authorised workers need to receive their first vaccine dose by 15 October and will need to be fully vaccinated by 26 November.
An extremely long list of “authorised workers” are now required to be vaccinated, including marriage celebrants, personal trainers, emergency service workers, public sector employees, religious workers, and many others. All authorised workers who do not comply with the vaccination requirement will not be permitted to attend their place of employment but will have to work from home or lose their jobs.
This requirement has potentially severe consequences for the human rights of workers in Victoria.
Human rights issues
Human rights are supposedly protected in Victoria by the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Charter Act lists a number of human rights that the Victorian Parliament seeks to protect and promote, which are largely based on the rights enshrined in international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR).
So what are the rights enumerated in the Charter Act that are relevant to mandatory vaccination?
Section 10(c) states that a person must not be subjected to medical treatment without his or her full, free, and informed consent. Because vaccination is a medical procedure, forcing a person to be vaccinated against his or her will is a clear violation of this right.
Section 12 states that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live. Requiring that a person may not travel to his or her place of employment without being vaccinated limits this right.
Section 13 states that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. Requiring a person to disclose his or her vaccination status to an employer or a government agency potentially limits this right.
Section 14 states that every person has the right to freedom of thought, conscience, religion, and belief, and that a person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in observance or practice. Conscience is a person’s conviction as to what is right and wrong. Some people may object on political grounds, believing that it is not the proper role of government to force people to be vaccinated, even if they do not object in principle to vaccination. Some people are genuinely concerned that receiving a vaccination poses a substantial risk of physical injury or harm. Some people may object on religious grounds to being vaccinated — for example, because tissue or cells from aborted foetuses have been used in the development of the vaccines. For all these categories of people, forcing a person to be vaccinated violates that person’s freedom of conscience or religious beliefs, or forces them to do something they believe is potentially harmful.
Underlying all the rights protected by the Charter Act is the concept of autonomy and dignity. Each person has the right to determine for himself or herself matters of bodily integrity including whether to be vaccinated.
Can the infringement on rights be justified?
It is true that many rights are not absolute, and that rights may be limited in some circumstances to take account of the rights and freedoms of others, or to achieve important policy goals for the public benefit. According to the well-worn trope, my right to swing my fist ends where another person’s nose begins. There are good reasons, however, to consider that bodily autonomy is a special right that cannot be abrogated to take account of other rights or interests. In this regard, it is worth noticing that the Charter Act is significantly out of step with international human rights law.
Section 7(2) of the Charter Act states that human rights are subject to reasonable limits, taking into account all relevant factors such as the nature of the right, the limitation on the rights, and any less restrictive means reasonably available to achieve the purpose. In other words, all of the rights contained in the Charter Act are potentially subject to limitation.
However, this is not the position under international human rights law, especially the ICCPR on which the Charter Act is based. Article 4(2) of the ICCPR states that certain ICCPR rights are non-derogable, even in a time of public emergency which threatens the life of the nation — that is, the rights cannot be limited under any circumstances. Non-derogable rights include the right not to be subjected to medical experimentation (contained in article 7). In other words, there are no countervailing rights or considerations which would make it legitimate to force someone to undergo medical experimentation or treatment without their consent.
Thus, it would not be consistent with human rights law to force a person to undergo medical experimentation in order to discover a remedy which could potentially cure many other people. This is an indication that the right not to be subjected to medical treatment is a fundamental right and cannot be set aside in the interests of other policy goals.
While there are no non-derogable rights in the Charter Act, this is relevant to the interpretation of the Charter Act — particularly the scope of the right not to be subjected to medical treatment without consent listed in section 10(c). This is because section 32(2) of the Charter Act states that international law (like the ICCPR) relevant to a human right may be considered in interpreting a statutory provision such as section 10(c).
Therefore, although an international treaty cannot override the interpretation of domestic legislation, international law provides a strong indication that the right not to be subjected to medical treatment is an absolute right that cannot be limited. This ought to set a very high bar on any attempt to mandate forms of medical treatment — including vaccination.
Two additional points should be made about human rights and the Charter Act. First, it is true that the Charter Act has had very little substantive impact on Victorian law, notwithstanding all the money and effort expended in litigating human rights claims since its enactment. Nevertheless, the Charter Act represents the Victorian Parliament’s public commitment to protect and uphold the rights listed in it. The Charter Act is therefore best understood as a strong political statement and commitment that Victorian public agencies will uphold human rights.
The right not to be subjected to medical treatment recognises each person’s autonomy: that every person’s body is not a disposable object to be subjected under the perceived common good. Imposing mandatory vaccination on every Victorian worker needs to be recognised as a clear breach of this commitment to uphold rights. It is troubling that the rights supposedly protected by the Charter Act can be so easily overridden.
Second, while rights may be limited, it is clear from the terms of the Charter Act that rights may only be limited in exceptional cases. Section 7(2) provides that a human right may be subject under law “only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors.” The infringement of rights should be regarded as exceptional, something that is only legitimate where there are no less restrictive means available to achieve the purpose.
Frequent COVID-testing is a readily available means of determining whether a person is infected with COVID-19, and presents a much less restrictive (and potentially more effective) means of ensuring public health and safety than mandating vaccination.
Possible implications of mandatory vaccination
Mandatory vaccination has significant implications for human rights and the nature of government power which need to be clearly understood. For a start, it has implications for the nature of consent, which is the centrepiece of our society’s public sexual morality. This norm dictates that sexual activity must only be engaged in with each party’s free and willing consent. Section 10(c) of the Charter Act mirrors this by stating that a person must not be subjected to medical treatment without his or her full, free, and informed consent.
Despite this clear requirement for free consent, the foreshadowed vaccine mandate means any person working in Victoria will need to be vaccinated, regardless of their personal views, subject to the threat of losing one’s livelihood if a person fails to comply. This arguably poses an alarming precedent. Does this mean that reluctant compliance given under sufferance is now sufficient to constitute consent? Does consent now include compliance under the threat of harm?
Bodily autonomy is another highly important value in the modern West. The concept of autonomy dictates that all people are free to deal with their bodies as they wish, free from control or coercion by another, and underlies such things as abortion and transgender rights. However, if a person can be forced against his or her will to be vaccinated for the common good, does this signal an erosion of bodily autonomy?
Mandatory vaccination signals that there is no area of life exempt from political and governmental control. Even fundamental questions of human autonomy and bodily integrity are now subject to regulation by the state — in this case, by executive order.
Finally, compulsory vaccination treats the decision as to whether to be vaccinated or not as a decision that needs to be made on our behalf by others. Every problem in society is a technocratic problem for governments and experts to solve. This effectively infantilises the population, treating people as if they cannot be trusted to make responsible decisions. And yet democracy is predicated on the principle of popular sovereignty, the idea that parliamentarians and the government are elected by and accountable to the people. We can be trusted to determine who will govern us but not fundamental questions of our own bodily integrity.
Many will agree with compulsory vaccination, but this sets a precedent of government control which is unlikely to stop with vaccination.
Benjamin Saunders is a Senior Lecturer at Deakin Law School.