‘Freedom Incentives’ to Get Vaccinated: Justified or Coercion?

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Astrazeneca injection

Over the past few days, New South Wales Premier Gladys Berejiklian has started to release details about her “pathway forward” for the state.

Part of her plan is to allow those who receive COVID-19 vaccinations to have some of their freedoms back, the first of these freedoms being permission to socialise outdoors for up to an hour in groups of five.

It appears Ms Berejiklian sees vaccination as the most significant component of her plan to  overcome the spread and impact of COVID-19 – a plan which has already led to ‘no jab, no job’ orders for aged care and health care workers, construction workers and now, authorised workers who reside in a Local Government Area (LGA) of concern.

From 6 September 2021, authorised workers who live or temporarily reside in an LGA of concern and do not have at least one vaccination or a medical exemption will be prohibited from working outside their LGA.

The government has also proposed trials of certain other industries in coming months, as a proof-of-concept measure to prepare them to open up and operate in a COVID-safe way.

Push to vaccinate teenagers

Alongside this, the state government is now pushing for young teenagers to be vaccinated, and is currently rolling out its school vaccination programme.

This represents a change of plan, as earlier health advice suggested that children and young people did not need to be vaccinated as they were at an exceptionally low risk of falling seriously ill from COVID-19.

Now, the health message from the Australian Technical Advisory Group on Immunisation is that  “vaccination against COVID-19 is recommended for all individuals from 12 years of age, extending the current recommendation for those aged 16 years and older.”

The government says that vaccinating teenagers is an important step towards re-opening face-to-face learning, as well as community sports and other activities.

It says the change in policy is primarily due to the susceptibility of children to the Delta strain of the virus.

Mandating workplace vaccinations

At a national level, the Fair Work Ombudsman has told businesses they are at liberty to make their own workplace policies regarding the vaccination of employees.

The Ombudsman has qualified this by saying any such policy must be lawful and reasonable. However, the ambiguity of the advice this gives little certainty to employers regarding what they should or should not be doing.

Adding to the concern of employers is Prime Minister Scott Morrison’s recent assertion that, “[b]usinesses have a legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19.”

The statement may be seen as a way to shift the responsibility for workplace vaccinations away from government and onto employers – the implied warning being that employers who do not mandate vaccinations in their workplaces could be legally responsible for any spread of the virus.

Mind you, this is the same PM whose government was recently held to be at least partially responsible for the Ruby Princess disaster, which saw 600 COVID-19 infected passengers disembark from the vessel into the general community.

Bar constantly being raised

Adding to growing frustration, uncertainty and concern is Ms Berejiklian’s ‘moving of goalposts’ when it comes to vaccination levels required before the public can have some of their freedom back.

Shortly after the commencement of the Greater Sydney lockdown on 26 June, the premier stated that magic number to consider ending lockdowns was 70% of vaccinated adults.

She later clarified that this referred to 70% of adults who were “double vaccinated”.

Ms Berejiklian then said the 70% double vaccinated figure would lead to the government handing some of our freedoms back, but would not comment on ending lockdowns.

Recently, she dropped the term ‘adults’ when referring to the 70% figure. This has led to speculation that it may include those who are over the age of 16 years and, given the recent push to vaccinate 12 to 15 year olds, the figure may well be adjusted in the future to encompass everyone the premier says should be vaccinated.

Even more recently, Ms Berejiklian stated that the easing of restrictions on industry, community and the economy would occur at 80% double vaccination levels.

It’s all very uncertain, and the target seems to be changing constantly.

The frustration amongst much of the community is palpable, with no end in sight to restrictions which are destroying the mental health of both adults and children, leading to increased rates of domestic violence offences, and devastating businesses as well as the economy as a whole.

A polarised nation

The debate about vaccines has created tensions and even animosity between friends, colleagues and family members.

Those in favour of making vaccines compulsory in practical terms argue that this is necessary to protect individuals themselves as well those they come in contact with, and to reduce the impact on our public health system.

They point out that governments have made clear that the only way to get out of lockdowns and have our freedoms restored is to mass-vaccinate, and accuse those who don’t want to be vaccinated of being responsible for prolonging lockdowns and thereby causing extended suffering.

They rely on the health advice of governments to support their view that vaccines are safe and effective.

Those against ‘compulsory’ COVID-19 vaccinations assert that individuals should have a choice regarding whether to have a vaccine injected into them, especially one that has only received preliminary approval.

They note that vaccine companies have an enormous financial interest in pushing vaccines, that the federal government has given the companies immunity from liability, has not introduced a vaccine compensation scheme for Australians, and that there has been changing health advice in relation to the efficacy of vaccines.

As to the last point, they note that a number of countries temporarily suspended the use of at least one vaccine (AstraZeneca) over safety concerns.

They are not convinced that COVID-19 vaccines are effective, given that vaccinated people can still be infected and spread the disease.

They are concerned about the long term effects of the vaccines, and believe the side-effects have been understated and even under-reported.

Many of these people cannot understand why those in favour of vaccinations are so intent on everyone else being vaccinated as well, given the information that vaccinated people are far less likely to suffer serious symptoms if infected.

Some MPs are against compulsory vaccinations

There are some MPs within the state liberal party, including Western Sydney MP Tanya Davies, Corrections Minister Anthony Roberts, Wollondilly MP Nathaniel Smith and Riverstone MP Kevin Conolly who are reported to be against on the basis that “a government should be protecting people’s individual rights and circumstances.” and that mandated vaccinations are “an assault on an individual’s freedoms and civil liberties.”

But, under public emergency health rules, Gladys Berejiklian and her emergency cabinet, it seems, can ignore Australia’s democratic foundations.

On the Parliamentary Education Office website, it says that:

A democratic society is one that works towards the ideals of democracy:

  • Respect for individuals, and their right to make their own choices.
  • Tolerance of differences and opposing ideas.
  • Equity—valuing all people, and supporting them to reach their full potential.
  • Each person has freedom of speech, association, movement and freedom of belief.
  • Justice—treating everyone fairly, in society and in court.

And yet, a range of laws have been passed in recent years which have significantly curtailed several of these fundamental freedoms under the guise of protecting against terrorism – with the past 15 or so months seeing the unprecedented removal of civil liberties, ostensibly to protect against COVID-19.

Kneejerk policies based on flawed health advice

Anyone old enough to remember the AIDS epidemic in the 1980s, will also remember the prolific misinformation in the early years, as well as the fear, and the concern about transmission.

AIDS, in the early days, was a guaranteed death sentence, and initially it was thought to be transmitted through contact with any bodily fluid, such as blood or saliva. People were worried about using public toilets, or holding onto handrails on busses, or helping out mates who’d injured themselves.

But, in managing that monumental health crisis, Australia didn’t have public health laws which restricted movement or mandated the use of condoms or other PPE equipment.

The government response focused heavily on education, and Australians were expected to take individual responsibility for their health. Over time, as the panic subsided and money was poured into research, the infection began to be better understood, and treatments became available.

Significantly, AIDS was treated as a national problem, not a state-based one.

As such, Australia developed a national response that was embedded with human rights, creating a collaborative working relationship between government and affected social groups and it was a success. Australia has sustained a low prevalence of HIV compared to many other countries.

Perhaps today’s leaders could do well to take a moment to read the history books and consider a different approach than the one they are currently taking which has alarmingly totalitarian characteristics, is wrecking businesses and the economy, and taking an enormous toll on the people of New South Wales.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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