When governments and health experts call for mandatory vaccination we should be wary. While it is potentially the optimal way to get society moving again and particularly to end the frequency and severity of harmful lockdowns, the requirement for every citizen to have their individual rights trumped by the community interest is a drastic measure in a society supposedly committed to liberal values.
This is not to say that liberalism would oppose the idea of mandatory vaccination. It depends on the detail and whether there is scope for individual cases where mandatory vaccination is opposed to being protected through the legal system.
That the law could provide for a regulatory framework which mandates vaccination and provides incentives for compliance through a combination of penalties and fines is not unprecedented. We do it in the context of road safety. We legislate to ensure all who drive or ride motor vehicles on our roads are properly licenced. Further, we regulate safety standards by making it compulsory to wear seat belts, and through a system of road rules such as giving way to the right or indicating when turning left or right. Noncompliance with these rules means fines, loss of the right to drive through suspension or cancellation of a licence, or even jail if the offence is serious enough or for serial offenders.
In the context of workplaces, there is also a mandatory legal framework in place. All jurisdictions in Australia have an extensive suite of work health and safety laws which mandate practices and types of equipment. Again the incentive to comply is through the mechanism of penalties and inspections by the regulator.
So in this sense mandating vaccination from Covid is unremarkable and it could be said to be consistent with well established liberal principles, particularly John Stuart Mill’s harm principle. Mill’s famous principle forms the basis of the approach that liberals take to whether or not legal intervention is justified to impact an individual’s autonomy.
Mill’s harm principle, set out in ‘On Liberty’, is sometimes truncated and apt to be used to justify a more extreme individualist position. It is in essence, as legal academics Marett Leiboff and Mark Thomas summarise it, “that the only basis on which individual liberty could be curtailed – the only legitimate justification for the state to intrude on an individual’s freedom of action – was to prevent harm to others”.
Importantly, Mill himself also observed; “As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion.”
The Millian formula could be said to be somewhat conjectural given the lack of definition of “harm” and the issue of competing “harms” but as a general principle, it is a useful justification for mandatory vaccination laws. It does however need to be tempered so that the rights of individuals who wish to opt-out of vaccination can do so if there is a reasonable basis for doing so. Again, the term “reasonable” is somewhat slippery but it is not uncommon in legislation to see “reasonable excuse” type provisions where a court or administrator can take into account a number of factors in determining whether the individual meets the threshold.
It is important in the context of the right of each person to bodily integrity and individual autonomy that such opt-out clauses are available in any mandatory vaccination law. Such exemptions might be argued, and the onus would be on the person seeking the exemption, on the basis of medical, religious or philosophical objection. The extent to which one individual’s opt-out would impact on the overall community wellbeing is a factor to be taken into account in deciding such exemption applications.
There is also the issue of discrimination which arises if a law mandates vaccination. If proof of vaccination is a mandatory requirement to enter public settings such as public transport, workplaces, entertainment and cultural institutions, then discrimination is inevitable and real. The UK Equality and Human Rights Commission has rightly observed that mandatory vaccinations laws will “two-tier society whereby only certain groups are able to fully enjoy their rights”. There must be some allowance for discrimination claims to be made by individuals who have not been vaccinated because they have not been able to access vaccines, or have a medical or religious reason for refusing to do so.
Perhaps the strongest argument about a mandatory vaccination is that in Australia privacy rights are not adequately protected and police and security agencies routinely abuse their powers by using data collected from apps to surveil and gather intelligence. An app which provides evidence of mandatory vaccination would enable law enforcement to track the movements of all of us on a daily basis. There would need to be in any law, clear provisions which make the use of any intelligence gathered from such apps by law enforcement inadmissible in any court under any circumstances. There must also be a right to sue for breach of privacy in cases where an individual’s data is obtained for any purpose outside of health data collection.
There is an argument for mandatory vaccination laws but nuance and protections for individual rights should form a key part of any legal framework.
Greg Barns SC is a former National President of the Australian Lawyers Alliance.
Contributions to Pearls and Irritations
Your contribution will fund quality independent comment and analysis in Pearls and Irritations
Contribute
