Vaccine Mandates for School Teachers Are Unlawful, Human Rights Commission Asserts

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Vaccine Mandate

Although the pandemic panic has subsided somewhat, case numbers remain high and “no jab, no job” vaccination mandates remain in place for millions of workers across Australia. 

In some cases the definition of being ‘fully vaccinated’ – which once meant having two doses of an approved Covid vaccine could be about to change, meaning that people will be required to have  three doses of the vaccination.

Vaccination mandate outside Chief Health Officer’s powers

But the Queensland Human Rights Commission (QHRC) has delivered hope for school teachers and early childhood workers across the sunshine state, ruling the current vaccination mandate is outside the State Health Chief’s power, under the Queensland Public Health Act. 

Submission to Supreme Court

The QHRC has made the assertions in a submission to the Supreme Court, as three groups of suspended teachers and early childhood workers challenge an earlier decision by Justice Jean Dalton who determined that the Chief Health Officer’s vaccine directions were legislative and not administrative decisions, not requiring explanation. 

The challenge relates to a direction made earlier this year by the Queensland Chief Health Officer (CHO) Dr John Gerrard enacted a vaccination direction which prohibits unvaccinated workers in early childhood, primary and secondary schools and kindergartens from entering or working in “high-risk settings’’.

Queensland’s Human Rights Act

Counsel for the QHRC says the direction fails to comply with section 58(1) of the Queensland Human Rights Act 1999 which makes it unlawful for a public entity to act or make a decision in a way that is incompatible with a human right. 

“On the present evidence … the limits on human rights imposed by the current CHO direction are not demonstrably justified and so, the direction was outside of power,’’ the QHRC submission says.

The QHRC further states there was apparent failure by the CHO to consider the voluntary vaccination rates of teachers by February 4, when the direction was made.

The QHRC submission also says that Queensland’s Health Chief also appeared to have failed to consider the effectiveness of the prescribed course of available vaccines against the Omicron variant and showed a lack of consideration of less restrictive alternatives in this latter phase of the pandemic and an absence of any time frame for considering revoking the direction.

But the QHRC submission also notes that the direction does not identify the number of unvaccinated teachers, in order to consider alternatives such as more individualised exemptions or unvaccinated staff wearing masks or having daily or thrice-weekly RAT testing. 

Living with COVID-19 

Health experts have long recognised that the various variants of Covid are here to stay and while vaccination mandates may have had a role to play at the height of the pandemic, its valid to keep questioning, as the situation keeps changing, whether such draconian measures are still necessary or valid. 

This is particularly in light of Australia’s high overall vaccination rate across the population aged 16 and over, as well as the fact that vaccinations are now available for children as young as five years old if their parents choose for them to have it. 

Initially, health experts suggested that most young children would cope with catching Covid-19 and there were arguments to suggest that actually getting it may boost their immunity over the long term. Of course, there have been a significant number of deaths, some of them children, and, as we know, Covid-19 is a particularly insidious virus. 

So, while there needs to be a balance between the rights of teachers and the health and wellbeing of students, families and the community, the QHRC has provided a voice of reason at this time.  

Decision will only impact on Queenslanders

If indeed the Supreme Court rules in favour of the teachers and early childcare workers, then the decision will only impact those working in Queensland. 

Unfortunately, we are still experiencing the adverse long-term effects of adhoc and inconsistent state-by-state health policy decision making and are likely to for some time to come. 

Similar challenges to workplace and industry vaccination mandates in New South Wales were unsuccessful during the pandemic, notably because New South Wales does not have a Charter of Human Rights which would offer better protection for all citizens.

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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.

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