Legal Considerations

Counsel on the legality of vaccine mandates has been sought and opinion delivered.

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Challenging No Jab, No Job

These are very challenging times because government interference has attempted to remove our autonomy. Our right as humans to think for ourselves and make our own decisions around our safety is being controlled at every level. This overreach of power through public health directives has raised many serious concerns around privacy, discrimination, bullying, bodily autonomy and legal liability. Below is an outline of some key points provided by our legal counsel, to help navigate the murky waters of a mandatory vaccination policy.

Disclaimer: The below does not contain legal advice. It does not describe your individual circumstances. It is cast in general terms and contains general legal information that is readily available to the public. 

Important: It is recommended you seek your own legal advice because the government directives are shifting legal liability onto the person enforcing their directives, meaning civil claims may be taken against you on technicalities where other laws are infringed.

Significant Risk of Liability

The vaccination direction forces business owners to implement a government policy that puts them at risk of significant legal liability. Forcing a medication on others is not the job of employers in general, particularly in circumstances where the direction is in breach of several other laws, including the Public Health Act (QLD) itself.

Denies Procedural Fairness, Natural Justice & Breaches Work Health and Safety law and enterprise agreements

The Queensland Government may say that a vaccine mandate is temporary, the act of receiving a vaccine is not. Once a vaccine is administered, it can never be removed. This puts employees and employers in an impossible position.

Some staff may choose to take leave indefinitely until such a power will be unlawful or runs out; others may undergo the vaccination due to a lack of leave entitlements, or an inability to get by without their job in the meantime.

All in all, there is an impression in the community that the Queensland Government has issued Media Publications and Mandatory Vaccination Directions as a means of coercion: to pressure as many people as possible into getting the vaccine before the impending deadlines made out by the Public Health Orders expire. 

Many workers in Queensland have received or will receive a direction[1] from their employer to be vaccinated by a certain date, telling them that they must have a booking for a vaccination by a particular day or they will not be able to work. This is unreasonable and negates informed consent through the threat and loss of employment if the vaccination direction is not complied with.

There are several other issues with the legality of your approach to vaccination.

The Government is asking business owners to breach Work Health and Safety law and enterprise agreements.

Employers cannot make sweeping changes to the workplace, or the requirements their employees are subject to, without notice. Any directions given must also be lawful and reasonable. It is well known that there is “a legal requirement to consult with employees about significant changes in the workplace” and that these “are set out in legislation, awards and enterprise agreements”.[2]

Specifically, in Queensland, s47, s48 and s49 of the Work Health and Safety Act 2011 (QLD) (the WHS Act) implement a duty for employers to consult with employees who are likely to be directly affected when doing any of the following (which clearly applies to the introduction of a vaccine mandate):[3]

(1) Consultation is required in relation to the following health and safety matters—

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking.

(b) when making decisions about ways to eliminate or minimise those risks;

(c) when making decisions about the adequacy of facilities for the welfare of workers;

(d) when proposing changes that may affect the health or safety of workers;

(e) when making decisions about the procedures for—

(i) consulting with workers; or

(ii) resolving work health or safety issues at the workplace; or

(iii) monitoring the health of workers; or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(v) providing information and training for workers; or

(f) when carrying out any other activity prescribed under a regulation for this section[4]

In addition, the WHS Act clearly states the form that this consultation must take, which includes:

(a) that relevant information about the matter is shared with workers; and

(b) that workers be given a reasonable opportunity—

(i) to express their views and to raise work health or safety issues in relation to the matter; and

(ii) to contribute to the decision-making process relating to the matter; and

(c) that the views of workers are taken into account by the person conducting the business or undertaking; and

(d) that the workers consulted are advised of the outcome of the consultation in a timely way.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative. [5]

The Mandatory Vaccination Direction and the assertion within it that the worker must be vaccinated to continue their work completely ignores these provisions. Employers are unable to “share information about the matter” with employees when the matter is a medical procedure. 

Employers are unable to give employees a “reasonable opportunity to express their views”, or to “take into account those views” in circumstances where the government has given employers insufficient notice of the Vaccination Direction, nor has the government consulted with employers before implementing it.

Importantly, the government has also not given employers an opportunity to consider the alternative measures which the WHS Act and regulations actually authorise to reduce workplace risk (vaccination not being one of them), which businesses are statutorily obligated to do at risk of significant penalty.

In other words, the government is putting businesses in between a rock and a hard place. They are asking you to choose between:

  • telling staff they must get vaccinated and breaching Queensland Work Health and Safety law as a result;[6] or

  • telling staff they do not need to be vaccinated despite confusing government messaging otherwise.

 

It is also unclear whether a direction an employer makes for their staff to be vaccinated could be “lawful and reasonable”.

 

The WHS Act 2011 forms a comprehensive and exhaustive statutory framework for workplace law in Queensland. The degree of specificity in the WHS Act in particular, which has 324 sections and 5 schedules, indicates that they are clearly intended to cover the field. Those legislative instruments clearly delegate to employers several means of mitigating workplace risk.

 

None of those means contain a requirement for employees to undergo any kind of medical intervention.

 

The issue of whether an employer can direct an employee to attend a medical examination has been explored quite extensively and can provide guidance here, despite the requirement to undergo a medical intervention being a much more onerous one. In particular, in Grant v BHP Coal Pty Ltd,[7]  Dowsett, Barker and Rangiah JJ referred to the ‘principle of legality’, exploring its limits with reference to other authorities.

They said (with emphasis added):

87. In Starr v National Coal Board [1977] 1 All ER 243, Scarman LJ at 249 described a person’s right to personal liberty as a fundamental right which would be infringed by requiring the person to undergo a medical examination. It is settled that statutory provisions are not to be construed as abrogating fundamental rights or important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect: see, for example, Coco v The Queen (1994) 179 CLR 427 at 437; X7 v Australian Crime Commission (2013) 248 CLR 92 at [21], [86] and [158]. That principle is known as the principle of legality.

 

The WHS Act lacks such “clear words or necessary implication”.

It is unclear why the government has taken an approach which seems reckless and ill-thought-out. Inserting government into the employer/employee relationship, as well as the employee/doctor relationship so hurriedly, is inconsistent with the state’s legislative frameworks. The lack of any kind of transitional arrangement or consideration as to the consequences of such a vaccination requirement is reckless, at least. Government is forcing employers to breach the laws they must comply with, without any thought or consideration for that. Employers have no choice but to say no. Under these circumstances, employers have the right not to follow what the Government is telling them to do.

[1] Chief Health Officer Public Health Directions Chief Health Officer public health directions | Queensland Health

[2] Consultation and Cooperation in the Workplace, Fair Work Australia, https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/consultation-and-cooperation-in-the-workplace

[3] Work Health and Safety Act 2011(QLD) s47,s48,s49.

[4] Work Health and Safety Act 2011(QLD) s49.

[5] Work Health and Safety Act 2011(QLD) s48.

[6] Breaching the duty to consult in s47 (1) attracts a Maximum penalty of—200 penalty units, pg 53 Work Health and Safety Act 2011 (legislation.qld.gov.au)

[7] [2017] FCAFC 42 at 87- 88.

Public Health Act being misused

Even if the Government rejects the notion that the Bio Security Act (BSA) excludes and limits the operation of state law in this way, and even if we leave the BSA aside entirely, s362B of the Public Health Act (PH) must be read and understood in the context of the PH Act as a whole. Concerningly, s362B is being used as if it stands alone as some kind of ultimate discretionary executive super power; immune from the checks and balances the remainder of the PH Act carefully imposes on it.

This misinterpretation of the applicability of s362B likely comes from the words of that section, which says that the emergency powers include to “give any other direction the chief health officer considers necessary to protect public health.” However, this must be read in tandem with the various limitations the rest of the PH Act places upon this section, and in tandem with the principles of statutory interpretation in general.

The following principles apply (with emphasis added):

  • The task of construction must begin with a consideration of the text itself. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy;[1] and

  • The context in which the Section is construed includes the context of the wider legislation as a whole. This also applies to delegated legislation (such as Directions made under s362B) which must be read in the context of its enabling legislation, being the PH Act.[2]

 

So, s362B must be read in context with the rest of the PH Act. On this note, it should be said that, on the face of it, it would have been odd for Parliament to draft such a complex legislative framework for the facilitation and regulation of public health in Queensland, with so many checks and balances included, only for the Minister for Health to have the power through s362B to ignore all of that entirely at their sole discretion.

Furthermore, the inclusion in the PH Act of s21-23 demonstrates the intention of the legislature to mirror the requirement within the federal BSA to issue a biosecurity control order at the state level by authorising the issuance of a public health order to individuals on a similar basis. Below is an extract of the entire section, because it clearly institutes a comprehensive and carefully constructed decision making process for the decision maker; the reason being a recognition that the restriction of a person’s liberty is something which should only be approached with extreme caution.

21)  What public health order may require

(1) A public health order may require a person to do something at a place that is—

(a) reasonably necessary to remove or reduce the risk to public health from a public health risk, or prevent a risk to public health from recurring; and

(b) appropriate in the circumstances having regard to the nature and seriousness of the risk to public health at the time the order is made.

 

(2) Without limiting subsection (1), a public health order may require a person to do any of the following at the place—

(a) clean or disinfect the place, or part of the place, or a structure or other thing at the place, in the way stated in the order;

(b) carry out insect or pest control at the place in the way stated in the order;

(c) demolish stated structures or other property at the place in the way stated in the order;

(d) remove stated material or items from the place to another place stated in the order in the way stated in the order

(e) dispose of stated material or items at the place in the way stated in the order, for example, by burying the material or items;

(f) destroy animals at the place or remove animals from the place for destruction at another place in the way stated in the order;

(g) stop using the place, or part of the place, for a stated purpose, within a stated period or until stated steps are taken.

 

(3) A public health order must—

(a) be in writing; and

(b) state a period within which the person to whom it is given must comply with the order.

 

(4) The period stated under subsection (3)(b) must be reasonable having regard to the risk to public health from the public health risk.

23 Public health orders

(1) If an authorised person reasonably believes that a person is responsible for a public health risk at a place, the authorised person may give a public health order to the person (the recipient).

 

(2) The public health order must state—

(a) the name and address of the recipient; and

(b) the nature of the public health risk; and

(c) the address of the place of the public health risk; and

(d) the steps the recipient must take, or action the recipient must stop, at the place to remove or reduce the risk to public health from the public health risk, or prevent the risk to public health from recurring; and

(e) the period within which the steps must be taken or the action must be stopped; and

(f) the name of the authorised person; and

(g) the name, address and contact details of the issuing authority; and

(h) that it is an offence for the recipient not to comply with the order, unless the recipient has a reasonable excuse; and

(i) that if the order is not complied with an application may be made to a magistrates court for an enforcement order.

 

(3) The public health order must also set out, or state the effect of, sections 387 and 388.

 

(4) The recipient must comply with the public health order, unless the recipient has a reasonable excuse

 

With specific regard to the requirement for a citizen to undergo vaccination, s125 notes that the person to whom a behavioural order applies and must comply with any of the following as specified in the order and subject to any of the conditions that the Magistrate considers are appropriate:

 

125 1) A magistrate may make a behavioural order for a person if the magistrate is satisfied—

(a) the person has a controlled notifiable condition; and

(b) either of the following may constitute an immediate risk to public health—

(i) the person’s condition;

(ii) the person’s condition and likely behaviour; and

(c) the person needs to do, or not do, stated things to avoid the person’s condition, or the person’s condition and likely behaviour, constituting a risk to public health; and

(d) the person has been counselled, or reasonable attempts have been made to counsel the person, about the condition and its possible effect on the person’s health and on public health.

(2) However, subsection (1)(d) does not apply if it is not practicable to counsel the person.

 

126 What behavioural order may provide

(1) A behavioural order for a person may provide that the person do any or all of the following for the period stated in the order—

(a) undergo counselling by a stated person or persons;

(b) refrain from stated conduct;

(c) refrain from visiting stated places;

(d) submit to supervision and monitoring by another person.

 

(2) For subsection (1)(d), the order may specify that the supervision and monitoring—

(a) be by a particular person or a person nominated by the chief executive; and

(b) be done in a stated way.

(3) Also, the order may be made subject to the conditions the magistrate considers appropriate.

(4) An authorised person may enforce the order with the help, and using the force, that is reasonable in the circumstances.

Again, such a requirement is therefore subject to the other stringent requirements above. It simply does not make sense for the PH Act to go to such lengths to protect the rights of an individual against an unfair or unjust requirement to be vaccinated in the context of a public health order, but for those same checks and balances not to apply to blanket directions made under s362B of the same Act. This is a misuse of the Act, potentially for the purposes of avoiding said checks and balances. The intention of the Minister in this regard is irrelevant; good intentions do not render actions lawful.

So, after all of that, here we are, being asked to implement a Government mandate for staff to be vaccinated which seems to be based only on an ill-thought-out Mandatory Vaccination Direction.

Even if there was a public health order or direction for staff to be vaccinated made on the basis of s362B of the PH Act, that direction flies in the face of both;

  • The primary piece of federal health legislation (the BSA), which it is inconsistent with; and

  • The enabling legislation itself (the PH Act); the checks, balances and safeguards in which it completely ignores.

 

In addition to these issues, there are further statutes which the Government is asking employers to breach on its behalf.

 

[1] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[2] Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 [19] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefell JJ).

Ignoring the Doctrine of Informed Consent

The Queensland Human Rights Act 2019 (QLD) contains the following provision relevant to informed consent:

 

17 Protection from torture and cruel, inhuman or degrading treatment

 

A person must not be—

(a) subjected to torture; or

(b) treated or punished in a cruel, inhuman or degrading way; or

(c) subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent.

 

The Australian Human Rights Commission Act 1986 (Cth), which among several international human rights covenants and treaties which it attaches via schedules, attaches article 7 of the International Covenant on Civil and Political Rights (ICCPR), being:

 

Article 7

 

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation The Therapeutic Goods Administration notes that the currently approved vaccines for Covid-19 in Australia are in Phase IV trials.  The vaccines are in experimental phase IV trials.

 

Trials are incomplete and approvals were given without complete safety and efficacy data being available. The TGA says the following about the vaccines’ current “provisional approval”; [1]

 

“With rolling submissions, collaboration with international regulators, and proactively working with sponsors, it is expected the evaluation of COVID-19 vaccines will be significantly expedited without compromising on our strict standards of safety, quality and efficacy. However, the timeframe for the evaluation of each vaccine will ultimately depend on when the complete data package is provided by sponsors. We have not yet received a full data package from any company.


It is very difficult for employers to implement a Government Mandatory Vaccination Direction in circumstances where our employees rightly tell us that they are concerned about the rushed approval and long-term safety implications of the vaccines, and when we ourselves do not have the expertise or training to reassure them. This is particularly problematic when we are only indemnified for adverse reactions or deaths if we facilitate vaccination in the workplace itself (which we elaborate on below).

Nonetheless, it is clear that the vaccines remain a novel technology, and many business owners are uncomfortable directing their employees to receive it at short notice, at the expense of their informed consent.

Breach of Privacy, Discrimination and other laws

If employers ask or coerce their staff to get vaccinated against their will, they are very likely to find themselves in breach of both privacy and discrimination statutes.

Privacy

There is an interplay of the Mandatory Vaccination Direction with the Privacy Act 1988 (Cth). Specifically, Australian Privacy Principle 3 only allows for the collection of “solicited personal information”, which includes private medical information such as vaccination status, in very limited circumstances. This information must only be collected by lawful means, where it is reasonably necessary for the organisation’s functions or activities.

In this regard, there is a question of law as to whether it is lawful for employers to collect employees’ private medical information (their vaccination status) in circumstances where neither the Human Rights Act 2019 (HR) or the PH Act 2005 include vaccination or any other form of medical procedure within their ambit, where the business is not a medical body. A business is not a proxy for Government public health laws.

With regards to whether it is “reasonably necessary” for employers to collect employees’ vaccination status, businesses have fulfilled their duties throughout the pandemic thus far without mandating vaccination. It is therefore difficult to argue that enforcing vaccination is “reasonably necessary” for a business to continue the job it has been doing successfully for almost two years, particularly given that, on the account of both the data and Government messaging, the worst of the pandemic (attributed mostly to an initial lack of familiarity and predictability with an increasingly better understood virus) has passed.

Bullying and Harassment

 

There are concerns that a mandatory direction issued by an employer to their employees that they receive a vaccination by a certain date could be construed as bullying or harassment, particularly if an employee is continually reminded, or pressured, to receive such vaccination.

If employees who have not been vaccinated are subject to separation, mistreatment or ostracisation, this is also likely to amount to causes of action for affected employees.

Discrimination

The Mandatory Vaccination Direction potentiates liability for employers in actions of discrimination and victimisation, particularly given that it does not give them appropriate time to consider medical exemptions, nor employees time to obtain them.

Both the HR Act (QLD) (the HR Act), the Anti-discrimination Act 1991 (QLD) as well as the Federal discrimination statutes, including the Age Discrimination Act 2004 and the Disability Discrimination Act 1992, are intentionally broad in their ambit, particularly with regards to both ‘indirect discrimination’ and ‘victimisation’. It is very possible that employees who are unwilling to receive a Covid-19 vaccination, and are treated differently from vaccinated staff as a result, could fall within these definitions.

 

The Queensland Human Rights Commission and the Australian Human Rights Commission each offer no-cost forums for the resolution of complaints of discrimination. Businesses are likely to be inundated with such complaints by employees if they are to mandate vaccination.

To illustrate this issue, we draw your attention to the definition of “disability” within the Disability Discrimination Act 1992 cth;

disability means—

(c)  the presence in the body of organisms causing disease or illness; or

(d)  the presence in the body of organisms capable of causing disease or illness; or

….

(j)  may exist in the future (including because of a genetic predisposition to that disability); 

 

So, if an employee is treated differently because they are not vaccinated, and therefore because of the idea that as a result of this, there exists “the presence in the body of organisms that may cause disease”, or even that they may in future have such organisms in their body, they have a valid claim of disability discrimination under the Act.

We also direct your attention to s106(g) of the WHS Act (QLD), which specifically prohibits discrimination by employers against employees. “Discrimination” under this section includes dismissing or terminating the worker, or treating them less favourably because, among other reasons, they:

…………

(g) assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or

(h) raises or has raised or proposes to raise an issue or concern about work health and safety with—

(i) the person conducting a business or undertaking; or

(ii) an inspector; or

(iii) a WHS entry permit holder; or

(iv) a health and safety representative; or

(v) a work health and safety officer who is not the person conducting the business or undertaking; or

(vi) a member of a health and safety committee; or

(vii) another worker; or

(viii)any other person who has a duty under this Act in relation to the matter; or

(ix) any other person exercising a power or performing a function under this Act; or

…………

So, as a result of this section, an employee who seeks to raise an issue or concern about the safety implications of receiving a vaccine which their employer has made mandatory, and is treated differently to other employees as a result, is a victim of “discriminatory conduct” under this division.  It is quite clear that a direction to receive a medical procedure at risk of termination is a form of economic duress, and so, employers are at risk of breaching the WHS Act prohibitions on discrimination also.

On a broader level, it is also concerning that the Mandatory Vaccination Direction applies to some workers, but not others. There has been a carve-out of certain groups, such as the judiciary, on constitutional grounds, but it has not been specified the grounds on which that carve-out has been made. The idea that judges can avoid such a direction, but that many ordinary citizens can’t, is unfair and troublesome.

Workers Compensation

Whilst the Queensland Government, is forcing the hand of employers to regulate this Public Health Order mandating the vaccines, they are not directly providing employers with an indemnity should the vaccine result in any injury and/or death to one of our employees. This means that business owners are completely exposed to direct liability from our employees should they become harmed through this process, including mental harm.

Given the insufficient time given to businesses before their staff must be vaccinated, it is not possible for them to subsidize or facilitate vaccination. Most employers are simply directing their staff to undergo vaccination under the false assumption that they will not be held liable for adverse events. But the Government is not indemnifying employers directly, and neither is WorkSafe. As a result, there is no insurance, thereby placing employers at significant risk of catastrophic liability.

Work Health and Safety Act 2011 Work Health and Safety Act 2011 (legislation.qld.gov.au)

Template for Business to send to Queensland Government