Navigating the competing interests between public health and human rights in light of a global pandemic: can government force you to take a COVID-19 vaccine?

With COVID-19 vaccines now being administered in Australia, the question arises whether or not government can mandate a COVID-19 vaccine on an individual or population at large.

“As mandatory as you can possibly make it” was the initial take by Prime Minister Scott Morrison on the extent of vaccine enforcement which caused an uproar amidst human rights and anti-vaccination activists across Australia. Inciting the inherent tension between the ethos of the good of the collective and individual rights, the answer to the above question is integral as it firmly challenges the foundational legal principle of bodily integrity and waves a red flag over a myriad of human rights issues.

Public health legislation

At a state level, the wide range of prerogative powers bestowed on state legislatures and governments via respective state and territory Public Health Acts was evidenced through the unparalleled restrictions that came into force during the height of the pandemic. Those restrictions included mandatory curfews, strict occupant capacity, and state border closures. Section 7 of the Public Health Act 2010 (NSW) provides the Minister with the power to commence any action that is considered “necessary to deal with the risk and its possible consequences”. Taking a step further, the Victorian Public Health and Wellbeing Act 2008 (VIC) permits the Chief Health Officer to issue a public health order mandating a person to ‘receive specified prophylaxis, including a specified vaccination’ in special circumstances.

Although a compulsory vaccination executive order does not currently exist at a state level in New South Wales, the 2018 amendment to the Public Health Act 2010 (NSW) to facilitate a ‘No jab no play’ policy makes it clear that public authorities can implement policies which incentivises and make vaccination necessary in certain circumstances. Specifically, the amendment now requires child immunisation for childcare enrolment.

Biosecurity legislation

A compulsory vaccination executive order power does appear to exist at the Commonwealth level. Pursuant to section 92 of the Biosecurity Act 2015 (Cth) (Biosecurity Act) an individual may be required by a human biosecurity control order to receive, at a specified medical facility a specified vaccination in order to manage the listed human disease specified in the order, and any other listed human disease.

A person who fails to comply with such a biosecurity measure within the specified time may commit an offence: section 107 of the Biosecurity Act. Force must not be used against an individual to require the individual to comply with a biosecurity measure: section 95 of the Biosecurity Act, although oddly, Note 3 at section 74 of the Biosecurity Act states that generally force must not be used to require compliance with a biosecurity measure.

If a mandatory vaccination order is issued at a Commonwealth level under the Biosecurity Act, it could be challenged by way of administrative review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR) pursuant to section 61(i)(iii) of the Biosecurity Act. However, causing little public outrage due to little publicity or public commentary, section 80 of the Biosecurity Act only allows a seven-business day period to seek judicial review of a biosecurity order, overriding the usual 28 day’ review window allowed under section 11 of the ADJR. The strict seven day’ window in which to request administrative review of an executive order to receive a vaccination is extraordinarily draconian and unfair in restricting one’s inherent right to access the judicial system. The rigid review period further highlights the competing interests between public health and human rights.

Whilst the power to order a mandatory vaccine in a declared human biosecurity emergency currently exists at a Commonwealth level under the Biosecurity Act, it is unlikely that the Commonwealth would exercise this executive power in the immediate future. The British Vaccination Act of 1840 and its strong opposition is a historic testament to the fierce public protest that might unfold if the government attempted to invade traditional civil liberties including self and bodily autonomy. Instead, the balance between public health and human rights is likely to be maintained through other variations of policy incentives such as ‘No jab no pay’ and ‘No jab no play’, in order to encourage a high vaccination rate in Australia.

With avenues to mandating vaccination currently existing at both Commonwealth and state levels alike, the validity of such orders and possible appeal mediums will likely be the focus of the public attention if and when such a biosecurity measure is ordered.