‘Kitchen-sink’ challenges to vaccine mandates unlikely to hold water

A pair of Victorians have taken the state government to court to challenge vaccine mandates for teachers. The plaintiffs clearly have very strong feelings against COVID-19 vaccination, and this seems to be driving a “kitchen-sink” approach to the litigation. They make many claims. Most are not on strong legal ground.

At first blush, there are some potentially legally valid claims made about rights in relation to vaccine mandates. But ultimately rights are almost always subject to balancing. A court that is faced with human rights claims will be aware that COVID-19 has caused untold social upheaval, economic catastrophe and – most of all – widespread death and morbidity.

A pair of Victorians have taken the state government to court to challenge vaccine mandates for teachers.Credit:Alex Ellinghausen

We have had more than 1000 COVID deaths in Australia and will certainly have more as the pandemic continues. There is clear evidence that vaccines are protective against disease – not absolutely protective, but very significantly so.

True, there are a few unknowns around the health risks of the new vaccines – though so far serious side effects look very rare. However, there are very clear, and far greater, risks from COVID-19. And these risks present their own potential human rights concerns.

Let’s look at some of the more particular claims made by the plaintiffs.

They assert that “Section 51 (23A) of the Commonwealth Constitution prevents the authorisation of any form of civil conscription”. This only applies to Commonwealth laws. It does not affect the powers of the states. And it has been interpreted by the High Court as applying specifically to the “conscription” of doctors into public medical systems. That’s not what vaccine mandates are about.

In Australia we do not generally allow religious convictions to overrun public health and safety regulations.Credit:iStock

The plaintiffs also say that “The Equal Opportunity Act 2010 (Vic) s.9 refers to a person who imposes or proposes to impose a requirement or condition that is likely to have the effect of disadvantaging persons with an attribute under the Act, such as religious beliefs or values”.

Here the importance of balancing becomes apparent. In Australia, even more than in other countries, we do not generally allow religious convictions to overrun public health and safety regulations.

The plaintiffs also bring in international law and organisations, citing UNESCO, the International Covenant on Civil and Political Rights and the Nuremberg Code. These are not directly binding on the courts in Australia. International law could be a factor that courts consider, but it is far from a trump card. Again the question will be whether on balance the mandates are justified.

In any case, the plaintiffs may find international law gives more support to the Victorian government than it does to their own position. The International Covenant on Civil and Political Rights provides that people with disabilities should have access to education.

That’s an important point: that kids with disabilities or underlying health concerns must be able to go to school. If there is a risk that they will fall severely ill due to vaccine-hesitant teachers, they will stay home. This raises a strong possibility of discrimination on the basis of disability. That point is already appearing in the US courts.

In the plaintiffs’ claims there are also broad assertions about the rule of law that will not impress the court. Indeed, a court will be annoyed at having to bat back claims that have very little detail and evidence to support them.

For instance, the claim that there is insufficient evidence about vaccination efficacy is almost certainly wrong. There is copious evidence and opinion on that from governments around the world, as well as from the World Health Organisation.

Finally, the plaintiffs make claims about why the Victorian measures are not “least restrictive” – meaning that some alternative measure might have achieved the same effect with less impact on human rights. This kind of argument can be persuasive under some circumstances.

Talk of vaccine mandates in Australia has been a constant since at least the start of August.Credit:Daniel Pockett/Getty Images

But the particulars of the plaintiffs’ arguments – such as that they have not had sufficient notice to seek alternative employment – strain credulity. Talk of vaccine mandates in Australia has been a constant since at least the start of August.

The plaintiffs’ claims that vaccine mandates will affect teacher “morale”, as well, seem at best vague and unconvincing.

It is important to note that if Victoria’s measures are found to be inconsistent with any state law, the State Parliament can generally change that law. Even in the very unlikely case of a win for the plaintiffs in this litigation, it would only momentarily delay the Victorian government doing what it wants to do.

The state government wants to protect the population from death and disease, and to end restrictions on movement due to lockdowns – which are significant human rights considerations weighing against the plaintiffs’ position.

Ultimately, the human rights balance to be struck is between the potential lost work of a group of people concerned about vaccines, against the vaccines themselves.

The vaccines are the only clear pathway we have out of lockdowns and widespread death and disease from COVID. This is the balance that will face the court.

It is likely that the court will back the Victorian government, either in whole or in part. Courts particularly tend to defer to governments in times of emergency, much like this one.

Dr Ron Levy is an Associate Professor in law at the ANU.

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