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Why vax mandate is delicate

Are we jumping the gun on compulsory vaccines for authorised workers? Dr Bruce Chen explores this tricky question.

This piece was originally published in the Herald Sun Monday 4 October 2021. Reproduced with permission.

It was only August the Prime Minister declared ‘we do not have a mandatory vaccination policy’. The recent announcement by Victoria’s Premier mandating vaccination for all authorised workers and providers has put paid to this for many people.

Vaccinations save lives. I am pro-vaccine, but I am also pro-choice – where the risk settings are manageable.

The latest vaccine mandate, which will be made by direction of the Chief Health Officer or his delegates, is extremely wide-ranging. It covers politicians, judges and lawyers, the media, supermarket and market workers, professional sports people, emergency service workers, farmers, maintenance workers, personal trainers, religious leaders, retailers and so on – who cannot work from home.

Our Charter of Human Rights and Responsibilities Act 2006 protects the human right to protection from medical treatment without ‘full, free and informed consent’.  It also protects the human right to privacy, which is broad and covers bodily integrity and personal autonomy.

While it might be said that no-one is physically holding down a person to vaccinate them – and so there is no issue of consent – that is too narrow a view to take.  The effect of the mandate is that those who don’t wish to be vaccinated are unable to earn their livelihood.  For certain individuals, that is a difficult choice for personal reasons – involving a form of compulsion. The right to protection from medical treatment without consent is limited.

But human rights are generally not absolute and can be limited in certain circumstances. The question is whether this is reasonable, justified and proportionate – balanced against the public health objectives. We need to ask: what is the evidence base for the mandate; and are there any less restrictive means reasonably available. 

Victoria is on track to achieve 80% fully vaccinated rates of those eligible. What purpose is there to be served by imposing a mandate on such a large group of workers?  While it is understandable that certain work environments are high risk (for example, hospitals, aged care and child care), it is unclear why some of these new environments have been mandated. Indeed, some authorised workers can only work if (or by the nature of their work) they are outdoors and socially distanced.

From a human rights perspective, vaccine mandates should be a matter of last resort. Public health policy experts and behavioural scientists have said the same.  Public messaging is key.

One problem is that the public doesn’t have this kind of human rights analysis to hand. It is being done behind the scenes.  It needs to be made transparent and accountable.

Dr Bruce Chen, Senior Lecturer, Deakin Law School and former human rights adviser.

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