The power to order Covid-19 vaccinations already exists

A woman is given a dose of the Pfizer-Biontech Covid-19 vaccine in Vienna, Austria, as the European Union began its rollout. Picture: AFP

Australians must be vaccinated if the pandemic is to end. Scientific experts have made it clear there is no other viable means of preventing community transmission. They have estimated that herd immunity will be reached if two-thirds of the population receive a vaccine that is 90 per cent effective. Our governments must ensure Australia meets this target in 2021. But how far will they go in using their powers to achieve this?

Judges have long recognised that people are entitled to their bodily integrity, and so can refuse medical treatment. This can be taken to extreme lengths. In 2009 the courts dealt with the case of Christian Rossiter, who had become a quadriplegic and was unable to undertake any basic human functions. He instructed his carers to remove a feeding tube from his stomach so he would starve to death.

Rossiter’s carers were concerned they might be charged with murder if they accepted his request. They took the issue to court. Western Australian Chief Justice Wayne Martin upheld Rossiter’s right to refuse food to the point of death. The judge applied the principle that every competent person can consent to or refuse medical treatment. Rossiter died soon after.

This precedent recognises that every person can refuse medical treatment, including vaccination. However, this principle can be overturned by parliament. In Victoria, for example, the Public Health and Wellbeing Act permits the Chief Health Officer to impose a public health order on a person exposed to an infectious disease. This can mandate everything from remaining at home to receiving a vaccination.

The federal parliament also provided for compulsory vaccination in 2015 in the Biosecurity Act. It removes our right to refuse medical treatment during a pandemic. The law permits government officials to impose human biosecurity control orders on a person who has a symptom of COVID-19 or has been exposed to any other person with a symptom. Other powers go even further in enabling governments to impose medical treatment on any person.

A person subject to a human biosecurity control order can be confined to their home, forced to wear a mask and required to undergo a medical examination and provide body samples. Lest there be any doubt about vaccination, section 92 says: “An individual may be required by a human biosecurity control order to receive … a specified vaccination.” The law does not permit a person to be restrained and forcibly immunised. Instead, they face jail for up to five years if they refuse to comply.

Parliament could not have been clearer in its intent. It anticipated a pandemic might occur and set rules to enable government officials to override a person’s right to bodily integrity in favour of compulsory vaccination. The question for the Morrison government is whether it is prepared to use this power. After first suggesting that vaccination “should be as mandatory as you can possibly make it”, the Prime Minister has wisely backed away.

Compulsory vaccination is legally possible but is not manageable. Those with a conscientious objection will be prone to civil disobedience, and few Australians want people jailed for failing to submit to invasive medical treatment. A heavy-handed government could fuel conspiracy theories about vaccination, prompting greater pushback.

There are better ways to achieve the result we need. One is to trust that people will do the right thing to protect their families and the community. There is every reason to believe this will be the case. Vaccination rates are high in Australia. The immunisation rate of five-year-olds sits at just below 95 per cent. Australians have also accepted draconian lockdowns to head off community infection. They are likely to accept vaccination as a small price to pay for the common good.

A positive community response can be supported by measures that nudge people in the right direction. These include preventing children from attending childcare and adults from accessing government benefits if they have not received a vaccine. Travel can also be restricted. Greg Hunt has kept open the idea of immunisation being mandatory for overseas arrivals Unvaccinated people might be prevented from attending sporting events or entering libraries and other public places.

The private sector will also play its part. Qantas chief executive Alan Joyce says Qantas will make vaccination compulsory for passengers boarding overseas flights. Restaurants and cinemas may also deny entry to unvaccinated people. Hospitals and aged-care facilities could deny employment to unvaccinated people. These measures will be justified as protecting the health of their customers and employees.

Australians can expect a choice in 2021 about whether to be vaccinated. Most people will readily fall into line. Others will resist, but they will find life difficult and may need to live the life of a hermit if they are to avoid vaccination against COVID-19.

George Williams is a Deputy Vice-Chancellor and Professor of Law at the University of NSW.