By students of the ANU law social justice program
As the first licensed Covid-19 vaccines were administered in the United Kingdom and approved in the US and Canada, the public, governments, the World Health Organization and drug regulators were watching to know not only when our vaccines will be available but whether this one will prove effective enough to bring an end of this pandemic.
If the vaccine does prove effective, our thoughts will inevitably turn to how strongly our governments, employers and travel operators will push vaccination, and even if it will be made mandatory.
Before the candidate vaccines passed Phase II (safety) and Phase III (safety and efficacy) clinical trials, the Australian Prime Minister, Scott Morrison, suggested his Government would make a vaccine ‘as mandatory as you can possibly make it’. However, these sentiments were quickly retracted in the face of public outrage as to the ethics and justifiability of such actions.
Australians support population vaccination generally with herd immunity remaining a strong measure to protect the community against infectious diseases. The Covid-19 pandemic has seen increasing complications with extreme needs for effective and fast solutions and governments, individuals, corporations and communities have had to adapt continually throughout 2020.
Yet mandatory vaccination raises significant human rights and ethical concerns. Instead, a more limited, protective ‘ring’ method of immunity may be more realistically enforced through private law which requires certain groups receive vaccination, especially those working with vulnerable people. Such vaccinations must also be considered in the complex context of the vast economic, social and cultural changes and impacts that have been faced worldwide during the pandemic.
This paper outlines the ethical, social and political influence on such considerations through a human rights and private law lens.
Ethical-rights for mandatory vaccination generally, children in particular
As debates over previous vaccinations campaigns have demonstrated, vaccinations can elicit strong responses. Standards of ethics and medical rules in Australia establish that vaccination be voluntary, informed by the common law under which a person cannot be subject to medical treatment without consent (ie ‘an assault’) unless it falls under relevant state and territory exceptions such as ss 116 and 117 of Victoria’s Public Health and Wellbeing Act.
Additional applicable medical exemptions apply to those who have experienced anaphylaxis after a previous dose of the vaccine, anaphylaxis after any dose of any component vaccine, or those who are significantly immunocompromised or have natural immunity.
For example, children are at the forefront of the debate about vaccination as they are both perceived as a vulnerable group and receive a number of vaccinations over the course of their childhood, as part of a government-funded immunisation ‘schedule’. The question of balance arises between the rights of an individual child and the rights of children as a collective group.
A further consideration is a parent’s right to decide for their child as, in the normal course of events, a child’s parent has to decide whether they receive the injection. Mandatory vaccines would override a parent’s decision to opt-out of such procedures but may be justified as opt-outs reduce the potential for herd immunity substantially.
In Australia the rights of the individual child will always be prioritised over the community’s interest given the Family Law Act’s focus on the ‘best interests of the child’ as ‘the paramount consideration’.
Where there is a conflict between a government policy of mandatory vaccination and the wishes of a parent, a court could apply this test to authorise the vaccination of the child as being in their ‘best interests’. In reaching this decision a court would likely have regard to Covid-19’s high infection rate, potentially devastating consequences, and widespread effects (including exposing immune-compromised members of the child’s family to the virus).
In such an instance, a court may feel that, perhaps, they ought to decide in the interests of the previously discussed collective group rather than the individual child.
Moreover, human rights concerns often play a part in such considerations. Critics of mandatory and specific group vaccination programs often point to the rights concerning individual liberty and choice as a defence against government-mandated vaccination.
However, human rights such as the right to freedom and association, rights to education and work and the right to privacy are not absolute and have already been restricted in Australia’s Covid-19 response to protect the right to life, which on balance takes priority over the former rights. As such, most human rights allow the imposition of restrictions in a set of limited circumstances, including to preserve public health, provided a necessity and proportionality test can be met. Furthermore, there are circumstances in which medical testing, treatment and control measures have been made mandatory, such as for those diagnosed with HIV, although this was, and remains, highly controversial.
There is also significant encouragement of vaccination prior to overseas travel. However, the WHO Director General cautioned that “all countries must strike a fine balance between protecting health, minimising economic and social disruption, and respecting human rights”.
In Australia, this balance is difficult to enforce due to the lack of federal bill or charter of rights and other human rights infrastructure.
On a national level all new legislative instruments and bills must be accompanied by a statement of compatibility with international human rights law due to the Human Rights (Parliamentary Scrutiny) Act 2011. However, public health is primarily a responsibility of the states and most Covid-19 related measures have consequently been introduced without much scrutiny. In ACT, Victoria and Queensland, which have their own respective human rights legislation, mandatory vaccination programs may be unworkable.
However, it cannot necessarily be dismissed as the federal government could use other measures to enforce a quasi-mandatory vaccination program, such as by making access to a number of income and welfare grants conditional on proof of vaccination. Despite this, the norm is that vaccination and medical procedures, with some exceptions, are voluntary, thus placing the onus on the government to prove otherwise.
Gaps and biases in our knowledge
One consideration which has recently arisen is the collection and use of data on ethnicity in testing processes. The question arises as to whether such measures will similarly be adapted into not only the effects of this virus on particular ethnic groups regarding symptoms and recovery times, but also on the vaccination effectiveness and potential effects.
There is concern that with such data collection, there may be paternalistic and racist effects. This must be kept in mind when considering such policies. Data must not be used to disadvantage certain communities.
Is a protective ring the answer?
Achieving herd immunity is the safest way to ensure that we can return to some form of post-Covid-19 normalcy within Australia. However, it is contentious within scientific communities as to what constitutes a such standard, especially with a novel virus such as the current coronavirus. This is also particularly difficult given the asymptomatic and varied symptom nature of Covid-19. Moreover, with such a virus as Covid-19 much is unknown about the effects of a vaccination and whether it stops symptom development yet allows for transmission and how long a person may remain immune.
Currently herd immunity is estimated to require approximately 60% of the population to become vaccinated and consequently ‘immune’. However due to the high demand and limited supply of vaccines this is unlikely to become a reality in the short term.
Thus, it is possibly more effective to aim for a protective ring through enforcement of particular groups of people, especially those working with immunocompromised people and those who have been established to be most likely to be seriously affected by this disease, to receive such vaccination. Such ‘specific group’ vaccination schemes create a ‘ring fence’ effect around vulnerable groups consequently limiting chains of transmission. This may include healthcare workers, those working with the elderly and infants, and international travellers.
Alternatively, ‘ring vaccination’ could be implemented based upon geographic and social contacts to positive cases as was utilised to combat Ebola. This vaccinates people at the greatest risk such as border workers and security guards in quarantine facilities and also their immediate families.
The other circumstance that may arise, is that the vaccination may aid in reducing symptoms. If rigorous testing is undertaken, such as paediatric clinical trials (which is unlikely to be prioritised in such a time-crunch) and it is found to lessen the symptoms of this virus, such people should actually be first in line for the vaccine.
There may also be a circumstance which allows for certain groups to be excluded from vaccination. There is potential for vulnerable people such as immuno-compromised, children or those with severe mental or physical disabilities to be exempt from mandatory vaccination. This allows for mandatory treatment with the ability to gain exemption, in specific circumstances.
However, it will likely be most effective to have specific groups who are directly interacting or have a heightened risk of being infected having a vaccination to ensure a protective fence is achieved.
Potential for enforcement through private law and policy
State governments may request individuals or specific groups, such as health care workers, to be vaccinated. Under the Constitution, the states are primarily responsible for the implementation of public health policy to ensure that all members of the community are protected. Moreover, this may be enforced in private law with many childcare centres advocating for ‘no jab, no play’.
In other words,private operators may deny access to a facility or service if an individual is not vaccinated. Such private law approaches can target activities such as travel, workplace attendance and other areas.
If this were to emerge as a trend, there would need to be consideration of the consequences of not adhering to such requirements to ensure that those who chose to abstain from the vaccination were not being discriminated against.
One example here may be higher education. Universities are a site of incredible diversity, with many students travelling long distances from home to attend.
For example, the Australian National University has a large number of students from overseas and around the country. Many who travel to Canberra live communally in colleges and shared accommodation. It is no secret that Universities have been among the most affected Australian organisations and have struggled economically. The effects have been asserted to be long-lasting and detrimental to many course and subject options.
Thus, it may be considered that a subsequent wave in could be devastating economically to many Universities and thus a heighten the need for students to be protected, resulting in demands that returning students receive the vaccination to ensure that Universities are economically sustainable.
In Australia, despite heavy media focus on ‘anti-vaxxers’, the vast majority of the population are supportive of the vaccination, as Australia’s 92% childhood vaccination rates attest. This suggests that the likelihood of a vaccine refuser crisis is less likely than the public attention it has received. Of the remaining 8% of unvaccinated children, only 2% are recorded as having parents who refuse to vaccinate, with the other 6% unable to receive it circumstantially.
Therefore, legal difficulties aside, a mandatory vaccination policy may not be required to defeat Covid-19. Currently, a combination of masks, social distancing and short-term lockdowns have been employed as the first defence against the spread of the coronavirus. These have been effective in reducing Covid-19’s spread in Australia, particularly when contrasted to the lack of uniform restrictions in the USA and Sweden.
However, recent outbreaks have raised concerns that such measures may not be enough to prevent the spread of Covid-19 within Australia, especially should more contagious variants of the virus emerge. South Australia had not had any community transmission cases for seven months when Covid-19 was spread via employees at the medihotels sending the state back into lockdown. While such lockdowns are useful for lessening the severity of the spread of a second or third wave, a vaccination would still allow for a faster return to pre-Covid-19 normalcy in Australia.
However, a mandatory vaccination for almost the entirety of the Australian population is not only difficult to legally and ethically justify but may also be counter-productive to its aims. Thus, it would be more effective and realistic to enforce specific group vaccination through private law to mitigate the risks of other outbreaks as have occurred in South Australia, Victoria and NSW in recent months.
Moreover, changes to mandatory testing, such as mandatory testing and quarantine three days prior to an international or interstate flight rather than at the destination airport, may be more effective in reducing future outbreaks. France, which experienced a significant second wave, is currently employing this method for international travellers from certain countries, including the US, with boarding being denied to anyone who has not received a negative test results within 72 hours before the flight.
It is also clear that this disease influences far more than the health of an individual.
Its rapid spread and has affected economies, jobs, political discourse and every aspect of our world. It is evident that a support network needs to be developed both outside and inside health care. For example, for treatment, systems such as Medicare must be adapted to cater for ongoing issues related to infection.
There is also discussion of the importance of such considerations as has been evident in both Victoria and South Australia, outbreaks can happen despite low (or even no) levels of transmission. Victoria’s case establishes further consideration of quarantining facilities both in terms of location and staff. Issues such inadequate pay, enhancing the likelihood of having a second job and increasing transmission, must also be addressed.
Similarly, as such places are often located in central urban hubs, it is being proposed that they should be moved to rural areas. Economically this would provide jobs in much needed small towns and decrease risk of mass transmission due to low population density. However, such approaches must consider the impact if an outbreak did occur and the ability of country hospital systems to cope with such occurrences.
All of us have been putting our hopes on a safe and successful Covid-19 vaccination program. This requires a consideration of prioritisation and its fair distribution globally. Its use must also be considered alongside Australia’s international (if not necessarily domestic) human rights obligations, laws and the imperatives of medical ethics.
Given the difficulties and ethical concerns with establishing a universal mandatory vaccination program, it is worth considering the equally effective strategy of creating a protective ring through specific groups having mandatory vaccination. This would primarily target those working with the most vulnerable, and may be enforced by state jurisdictions through a mixture of public and private law.
Overall, the majority of Australians have asserted that they would likely voluntarily receive the vaccination and thus, it seems that this may not create the public unrest and resistance that has been recently publicised. The broad and devastating effects of Covid-19 must also be considered not only in terms of the medical impacts but economically, socially and culturally, with the ability to adapt quickly to respond to the constantly changing nature of this virus.
Organised by Civil Liberties Australia in conjunction with the Law Reform and Social Justice students at ANU. Student contributors:
Written by: Lily Cox and Shannon McGarry
Edited by: Jessica Hodgson, Jess Honan and Jeffrey Weng
NB: The content and expressions in the essays do not necessarily reflect the position of CLA.