Legal: Vaccine mandate challenges unlikely to succeed
Queensland Teachers' Journal, Vol 127 No 1, 11 February 2022, page no.27
On 11 December 2021, the Chief Health Officer issued a direction titled “COVID-19 Vaccination Requirements for Workers in a High-risk Setting Direction”. For teachers, the direction meant that they were compelled to be double vaccinated before their return to work for the first term of the year.
The direction has caused anxiety, anger and anguish among QTU members who felt that they had legitimate reasons for not wishing to take the vaccines.
Law or direction
One of the first questions we were asked by these members was: “Is the mandatory vaccination requirement a law or just a direction?”
The originating power for the directive comes in the form of the Public Health Act 2005, and on 29 January 2020, COVID-19 prompted a public health emergency to be declared under section 319 of the act.
On 19 March 2020, the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 amended the Public Health Act to include powers for the Chief Health Officer (CHO).
The majority of these new powers are contained in the new part 7A, chapter 8 of the act, and provide that the Chief Health Officer may give a public health direction if they reasonably believe it is necessary to assist in containing, or responding to, the spread of COVID-19 within the community.
Like all directives issued since the amendments came into force, the requirements can be enforced by the police, and any person to whom the direction applies commits an offence if they fail to comply with the direction without a reasonable excuse.
Section 362D of the act provides for a maximum penalty of 100 penalty units ($13,700) or 6 months imprisonment.
The bottom line is that either an employee or their employer can face serious enforcement actions if they choose not to comply with it.
Since mandatory vaccination policies and health orders started coming into force across Australia, there have been hundreds of applications challenging their legitimacy. To date, none have been successful.
In September 2021, Fair Work Commission Deputy President Lyndall Dean delivered a dissenting judgement in an unfair dismissal case involving a woman who was fired from her job at a nursing home for refusing to get a flu shot, likening vaccination mandates to “medical apartheid and segregation” and decrying the concept as “the antithesis of our democratic way of life and everything we value”.
However, it made no difference to the employee, whose dismissal was upheld by the majority. DP Dean was barred from hearing workplace vaccination matters and was excluded from full bench work until she “completed training”.
Across all Australian jurisdictions, there is currently little sympathy for arguments of this type.
When on 10 January the Department of Education asked staff to “show cause” as to why they had not complied with the directive, our advice was that responses containing arguments about human rights, vaccine efficacy, or the proper operation of the Australian Constitution would not assist QTU members.
Many had explanations for why they had been unable to comply – medical conditions that didn’t reach the threshold for a formal medical exemption; family members that had suffered adverse reactions; waiting for Novavax; severe anxiety triggered by the fact that they felt forced to do something they didn’t want to do. And yes, many simply objected on principle. Why should they have to take a vaccine that they did not want to take?
It is a legitimate question, but not one that can be decided upon during a seven-day show cause process in which the content of a response can make the difference between suspension on pay and suspension without pay.
The QTU made the responsible choice to do what it could to assist its members to keep getting paid while the direction is in place.
Our legal advice has been that letters asking for individual risk assessments under the Work Health Safety Act 2011, quoting TGA statistics about the efficacy of vaccines; citing articles of the constitution and relying on human rights might play well in the media, but would achieve nothing for QTU members.