Vacccine Mandate in Employment & Human Rights
My letter to the Human Rights Commission asking for clarification as to exactly what human rights Australians have in their own country.
If the Human Rights Commission won’t stand up for civil liberties who will?
10 May 2022
Dear Ms Finlay,
RE: Vaccine Mandates and Human Rights
I write to you regarding mandatory vaccination requirements and how they interact with human rights law.
Human Rights Law
The Australian Human Rights Commission Act 1986 gives effect to Australia’s obligations under several international human rights treaties that we are signed on to. One of these is the International Covenant on Civil and Political Rights which states in article 7 that “no one shall be subjected without his free consent to medical or scientific experimentation.” How is a vaccine employment mandate not an infringement of this right?
Further, Article 4 of the treaty provides that during times of public emergency there may be some derogation of rights but there are some rights than are non-derogable, including article 7. A suspension of this right is not in line with human rights law.
The public emergency argument is no longer valid since the Federal Government lifted the State of Emergency on April 17th, 2022. It has become apparent as the pandemic has progressed that the severity of Covid-19 is relatively low, especially amongst the healthy working-age population.
It has also become apparent that the Covid-19 vaccines are not fit for purpose. They have failed to provide immunity, stop transmission or hospitalisations.
The Covid-19 vaccines have, however, resulted in a large number of vaccine injuries, especially amongst the working-age population. This is another reason why employers should not mandate Covid-19 vaccines as they do not have the right to subject their employees to the risk of vaccine injury.
Disability Discrimination Act
The Disability Discrimination Act 1992 makes it illegal to discriminate against anyone based on a disability, including when it comes to employment. The definition of disability in section 4(c)(d), includes the presence in the body of organisms causing or capable of causing disease or illness.
This definition of disability is extended under section 4(j)(k) to include anything that may exist in the future or is imputed to the person, such as a disease. Therefore, it is not possible to lawfully discriminate against an unvaccinated person who is imputed to have Covid.
No one should be treated differently because of a disease they do not have.
Section 48(b) of the Act provides an exemption for discrimination if it is reasonably necessary to protect public health. But as explained above, this no longer applies as the State of Emergency has been lifted by the Federal Health Minister on the advice of the Chief Medical Officer.
What is the Human Rights Commission’s position on employers enforcing vaccine mandates on their employees? Are employers in breach of the Australian Human Rights Commission Act 1986 or the Disability Discrimination Act 1992?
I look forward to your reply.
LNP Senator for Queensland
CC: Commission President Prof. Croucher AM
Disability Discrimination Commissioner Dr Gauntlett
Download the letter Vaccine Mandates Letter to Australian Human Rights Commission.
REPLY FROM HUMAN RIGHTS COMMISSION:
10 June 2022
Dear Senator Rennick
Re: Vaccine Mandates and Human Rights
Thank you for your correspondence dated 10 May 2022 regarding vaccine mandates and human rights.
As the Human Rights Commissioner I have regularly sought to highlight the significant impact that the COVID-19 pandemic response has had on a range of individual rights and freedoms. While governments are able to legitimately restrict many human rights in response to a public health emergency, these restrictions always need to be justified, non-discriminatory and proportionate. In the case of vaccination mandates this would require any mandates imposed to, inter alia, be targeted to risk and to be reviewed as the assessment of the public health risk changes.
While mandatory vaccination requirements impact individual rights, it should also be recognised that the high vaccination rates in Australia have been a critical feature of Australia’s pandemic response. I note your view that the COVID-19 vaccines are not fit for purpose and have resulted in a large number of vaccine injuries. However, in my view, significant weight should be placed on the conclusion reached by the Therapeutic Goods Administration that ‘vaccination against COVID-19 is the most effective way to reduce deaths and severe illness from infection. The protective benefits of vaccination continue to far outweigh the potential risks’.
The question is ultimately one of determining the lawful and appropriate balance to be struck between individual rights and responsibilities. The position of the Australian Human Rights Commission with respect to vaccination mandates and workplace rights has been outlined at . The information provided here also considers the application of federal discrimination law, including the Disability Discrimination Act 1992 (Cth). Ultimately – as the relevant case law to date has shown in both Australia and overseas – the lawfulness of any specific vaccination mandate will depend on the particular facts of each case, with questions of reasonableness and proportionality being central to that assessment.
Human Rights Commissioner