The New South Wales government says that despite yet another variant of the COVID-19 virus, labelled Omicron, finding its way onto Australian shore, the ‘freedoms’ returned to the state’s residents will remain in place and that, from 15 December 2021, those who have chosen not to be fully vaccinated will be on the same footing as those who have.
And while most long-struggling businesses are expected to welcome unvaccinated persons from that date, the question remains as to whether businesses will be able to legally refuse entry based on vaccination status.
The short answer to the question is: a business owner has the legal right to refuse entry to a person based on vaccination status (whether on grounds of being vaccinated or unvaccinated), but cannot refuse entry on that basis to an unvaccinated person who holds a valid medical contraindication (exemption).
The expected return of ‘freedoms’ to unvaccinated persons will not change this – the only change will be that certain premises will no longer be required to turn away those who are unvaccinated and not medically exempt.
In Australia, there is no general prohibition against a business owner refusing entry to a prospective customer or patron.
However, this general rule is subject to exceptions contained in legislation which prohibits certain forms of discrimination.
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 entry to premises, the provision of goods and services, employment and education.
Vaccination status is not a proscribed form of discrimination.
Disability discrimination under the Anti-Discrimination Act 1977
However, discrimination based on disability is prohibited under the Act.
In that regard, it would appear 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 based on being unvaccinated.
However, this argument is subject to section 49P of the Act, which is titled ‘Public Health’.
The section 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 a business owner to consider this necessary to protect the health of those within the premises.
And here’s where it gets a little hairy.
Is it legal to discriminate against those who are medically exempt?
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 to experience severe symptoms.
That being the current state of the (ever-changing) health 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, refusing entry to a person who holds a COVID-19 vaccination exemption would be unlawful, if the refusal is based on being unvaccinated.
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.
So, in a nutshell:
- A business owner is able to refuse entry to a person who is vaccinated on the basis that the person is vaccinated, and
- A business owner is able to a refuse entry to a person who is not vaccinated on the basis that the person is unvaccinated, unless the person holds a valid medical exemption.
How a business owner might legally ascertain vaccination status once COVID check-ins are done away with is entirely another matter.