Can my Employer require me to have the COVID-19 Vaccine

Last year a COVID-19 vaccine became more of a reality and countries scrambled to work through approval processes. The Therapeutic Goods Administration has now officially approved the Pfizer/BioTech as well as the AstraZenica COVID19 vaccine for use in Australia. This has officially indicated these vaccines have met strict standards for safety, quality and efficacy and has triggered a timeline for implementation with states announcing their plan for the vaccination rollout.

In NSW most Healthcare workers (working in locations with a higher risk of exposure to, and transmission of COVID-19, such as emergency departments, COVID-19 testing clinics, and COVID-19 wards), staff working in designated quarantine facilities, and residents and staff of residential aged and disability care facilities have now been the first to be vaccinated. The rollout to the general population has now begun.

With the vaccine now a reality, many Australians are now strongly reflecting on the comments made in August last year by Prime Minister Scott Morrison. He advised on a Melbourne radio station 3AW that the vaccine will be “as mandatory as you can possibly make it.” This comment caused concern for many Australian Human Rights Organisations and amongst citizens uneasy about the approval process or vaccinations in general.

The question in many minds, is just how mandatory will this vaccine be?

What powers does the Government have?

At the start of the COVID-19 pandemic, the Commonwealth and State Governments declared a Public Health Emergency. This gives the governments broad powers, by virtue of the relevant Public Health Acts. Since the declaration of a Public Health Emergency/State of Emergency, State and Commonwealth governments have made declarations, known as public health orders, taking action to protect citizens during health emergencies. Many of the orders made have been unprecedented and wide reaching. Examples of these powers in action have been stay at home orders, introduction of curfews and limits on public and private gatherings, mandatory face masks, and border closures that, in the case of the NSW and Victorian border, had not occurred in over 100 years.

The Federal Government powers in relation to this are found in the Biosecurity Act 2015 (Cth) in conjunction with the National Health Act 1953 (Cth).

The Biosecurity Act 2015 (Cth) allows a decision maker to make a decision or impose a biosecurity measure on an individual in order to manage the risk of contagion of a listed human disease; or a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

Technically this legislation permits the Government to mandate a vaccine if the Minister deems it necessary. However, the legislation would need to be exercised reasonably and such a direction is subject to particular limitations. For example, the orders or decisions made pursuant to the Biosecurity Act 2015 (Cth) must not interfere in the urgent or life threatening medical needs of the individual (i.e. allergies).

Further, there are a number of things the government must consider before making any orders, directions or decisions. These include being satisfied that imposing the particular measure is likely to be effective in, or to contribute to, managing the risk, that the situation is sufficiently serious to justify the action taken, that such action or measure is no more restrictive or intrusive than is required in the circumstances.

Focusing on NSW specifically, the Public Health Act 2010 (NSW) applies where a situation has arisen that is, or is likely, to pose a risk to public health. The wording of these provisions permit the Minister, to take such action, by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences.

This legislation also provides that an order may declare the state or part of the state to be a public health risk area. In that event, the orders may contain such directions that include reduce or remove any risk to public health in the area, to segregate or isolate inhabitants of the area, and to prevent, or conditionally permit, access to the area.

Conclusion

Where powers are properly exercised, and where a COVID-19 vaccine is deemed safe and approved by the Therapeutic Goods Administration, technically, the government is in a position to declare the COVID-19 vaccination is mandatory. In these circumstances, if the government did decide to mandate the COVID-19 vaccine, there may be little room for citizens to object.

However, many experts have already weighed in on this issue and are of the view that whilst the government does have the power to mandate a COVID-19 vaccine, it is unlikely to do so.

Written by Amelia Hatton.

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