NSW Premier Gladys Berejiklian recently announced that once 70% of residents in the state have both doses of a COVID-19 vaccination, certain ‘freedoms’ will be handed back to them– including travelling intrastate and attending restaurants, bars, weddings, funerals, gyms, sporting events and theatres, subject to physical distancing and capacity limits.
The Premier made clear that these liberties would not be available to those who have not received both doses of a COVID-19 vaccination.
Many are of the view that while both Prime Minister Scott Morrison and Ms Berejiklian claim that COVID-19 vaccines are voluntary, the fact that many cannot without vaccination continue with their employment, or will soon be prohibited from certain liberties enjoyed by the vaccinated, means that in practical terms, being vaccinated is compulsory for anyone who wishes to live a semi-normal life.
Public health orders
The prohibitions in our state which purport to protect residents against the spread of COVID-19 are primarily made under the Public Health Act 2010 (NSW).
The Act empowers state officials to make a range of enforceable directions and orders with a view to dealing with public health risks, and the discriminatory prohibitions proposed by Ms Berejiklian will be decreed under the provisions of this piece of legislation.
The power to deal with health risks is contained in section 7 of the Act, which provides that where the health minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health, the minister may take such action or give such directions that are necessary to deal with the risk and its possible consequences.
The section makes clear that actions and orders can be made in order to:
- Reduce or remove any risk,
- Segregate or isolate inhabitants, and/or
- Prevent, or conditionally permit, access to areas.
The section says that such an order must be published in the Gazette as soon as practicable after it is made, but that failure to do so does not invalidate the order.
Similar legislation applies in other states and territories.
Section 10 of the Public Health Act provides that a person who, without reasonable excuse, fails to comply with such a direction faces a maximum penalty of 6 months in prison and/or a fine of 100 penalty units, which is currently $11,000.
Any continued failure to comply is punishable by a fine of 50 penalty units, or $5,500, for each day the offence continues.
The Act also empowers ‘authorised persons’, including police officers, to issue infringement notices to those suspected of failing to comply with a public health order.
Current challenges to the Public Health Act
Four separate legal challenges are currently before the Supreme Court of New South Wales which assert that the Public Health Act was never intended to, and does not, give the state’s health minister the power to breach the bodily integrity of individuals by making orders that, for all intents and purposes, mandate vaccines.
Three of the cases are brought on behalf employees who have found themselves unable to fulfil their employment obligations as a result of deciding not to be injected with a COVID-19 vaccination. One of these is a construction worker (Al-Munir Kassam), another is a police officer (Belinda Kay Hocroft) and the third is a person who resides in a Local Government Area of concern (Natasha Henry).
The fourth application is by unrepresented plaintiff, Sergey Naumenko.
Supreme Court Justice Beech-Jones recently joined all four of the cases, and they are listed on 30 September 2021 for determination of an application by the NSW government to summarily dismiss them.
During a recent directions hearing, the barrister for Al-Munir Kassam, Peter King, told the court his client’s case was about a “simple excess of power”.
“It’s a question of the power of the minister to make the actual order under section seven of the [Public] Health Act,” the barrister submitted.
“And we say read consistently, with the principle of legality set out by the High Court, it is not authorised.”
The NSW government is strongly opposing the challenges, with its lead barrister, Jeremy Kirk SC, remarking of one of them:
“There are so many problems with this case it’s difficult to know where to start.”
“There is no named defendant, there is no articulated legal claim. Rather there are just sort of aspirational orders which to a significant extent are entirely misconceived such as, for example, proposed order two that the plaintiff and his immediate family be exempted from microchipping.”
It is unclear whether these challenges will be decided in favour of the workers and, if so, whether the decisions will be narrowly constructed to apply to them only, or to a class of classes of workers, or whether they will contain broader declarations regarding the powers of the health minister generally.
In any event, the unsuccessful party may apply for leave to appeal the Supreme Court decision to the High Court of Australia – which is the highest court in the land.
Challenges to COVID-19 orders to date
It should be noted that all the challenges made in the courts so far against COVID-19 orders and directions have been unsuccessful, with the judiciary finding that there are no constitutional protections, or other common law or embedded rights, which prohibit governments from passing such rules.
For many, these cases highlight the need for constitutional protections and/or a national Bill or Charter of Rights in Australia.
There have also been three challenges in the Fair Work Commission of New South Wales by workers claiming they were unfairly dismissed after refusing to obtain a COVID-19 vaccination. All of these have also been unsuccessful.
Current state of the law
As a result, it can be said there is has been no judicial finding which expressly prevents the NSW state government from making public health orders which essentially discriminate between those who are vaccinated and those who are not – including those relating to entering specific categories of businesses.
There is also no general prohibition against a person who owns or manages a business from refusing entry to a prospective patron.
However, the above is subject to the outcome of the pending challenges, as well as exceptions contained in legislation which prohibit certain forms of discrimination in our state, and indeed nationally.
The Ant-Discrimination Act 1977 is the main piece of state legislation which prohibits certain forms of discrimination in New South Wales.
The heads of discrimination that are unlawful under the Act are:
- Racial discrimination,
- Sexual harassment,
- Transgender status,
- Marital or domestic status,
- Responsibilities as a carer,
- Compulsory retirement on grounds of age,
- HIV/AIDS vilification, and
These heads cover discrimination in a range of areas, including employment, education and the provision of goods and services, and the Act contains a range of exceptions which make it lawful to discriminate in certain circumstances.
Disability discrimination under the Anti-Discrimination Act 1977
The most relevant proscribed head of discrimination for present purposes is disability.
In that regard, there is an argument that a person for whom a COVID-19 vaccination is inappropriate for medical reasons would be discriminated against on grounds of disability if the person were to be refused entry to a premises on grounds of being unvaccinated.
So, on its face, there is an argument that a person who is medically exempt from having a COVID-19 vaccine could not be refused the ‘freedoms’ afforded to those who are vaccinated, such as the ability to enter premises.
However, this argument may be rebutted by section 49P of the Act, which is titled ‘Public Health’ and provides that:
“Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health.”
This exception gives rise to an argument that a person with a COVID-19 vaccination exemption could potentially be refused entry to a premises if this were considered necessary to protect the health of those within the premises.
And here’s where it gets hairy.
Is discrimination against those who are medically exempt lawful?
Health experts concede that those who receive COVID-19 vaccinations are able to both contract and spread the disease.
Advocates of vaccination focus, instead, on findings that vaccinated persons are less likely than those who are unvaccinated to experience severe symptoms.
That being the current state of the (ever-changing) advice, there is an argument that those who do not receive a COVID-19 vaccination are no more likely to pose a risk to others than those who are vaccinated.
If that argument is accepted, it appears that businesses would fall foul of the law if they were to refuse entry to persons who hold COVID-19 vaccination exemptions, if the refusals were based on the persons not being vaccinated.
A contrary, and perhaps tenuous, argument is that it is generally necessary for the population to receive COVID-19 vaccinations in order to reduce the impact on the public health system of those suffering from severe symptoms, and it may therefore be permissible for business owners to refuse entry to persons who are not vaccinated, despite their medical exemptions.
But, again, this is a tenuous argument which, taken to its limits, could result in enabling conduct which undermines the objectives of the Act itself.
Another potential contrary argument, for which the medical evidence is unclear, is that those who are not vaccinated are more likely to contract and/or spread the virus to others.
But, again, the evidence for this is unclear. In fact, there is an argument that because those who are vaccinated are less likely to be symptomatic, or at least less visibly or severely symptomatic, they could be more likely to spread the virus as they are less likely to be aware they have it, and are therefore more likely to venture out.
On the balance, the stronger argument appears to be that business owners who refuse entry to those with a medical exemption would be acting in contravention of the Act, if that refusal were on the grounds of being unvaccinated.
It should be noted that the ventilation of these arguments inside a courtroom would require the adducing of medical evidence, and we are certainly not medical experts.
Disability Discrimination Act 1992
The main piece of legislation which prohibits discrimination on grounds of disability across Australia is the Disability Discrimination Act 1992 (Cth).
There is some overlap between this Act and the New South Wales legislation.
Under the Commonwealth Act, it is unlawful to directly or indirectly discriminate against a person on grounds of disability in a broad-range of areas including access to premises, employment, goods, services, facilities and accommodation.
Like the New South Wales Act, the Commonwealth legislation contains a public health-type exception. However, the exception in the latter is considerably more narrow.
That exception is contained in section 48 of the Act. It is titled ‘Infectious Diseases’ and provides that:
“This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person’s disability if:
- The person’s disability is an infectious disease; and
- The discrimination is reasonably necessary to protect public health.”
The exception makes clear that discrimination may only be lawful if it is reasonably necessary to protect public health in circumstances where the person who is discriminated against suffers from an infectious disease.
As it cannot be said that a person suffers from COVID-19 simply because he or she is not vaccinated for it, a business owner would be acting unlawfully if he or she were to refuse entry to a person with a COVID-19 vaccination exemption, if that refusal were on the grounds of not being vaccinated.