Can the Australian Government force mandatory vaccinations against COVID-19?
In recent times legal issues regarding human rights to do with lockdowns and vaccinations have been consistently seeping into the media. It is becoming increasingly difficult to define the legal framework for those who oppose vaccinations. Some European countries, as well as the United States and Australia, are active supporters of compulsory vaccinations. Of course, compulsory vaccination does not apply to all categories of people. Some front line workers face mandatory vaccinations such as healthcare workers, quarantine workers, and residential aged care workers with vaccinations remaining voluntary for the rest of the population.
A few states and regions have likewise given general wellbeing orders commanding immunisation for specific ventures or laborers. For instance, Queensland has a general wellbeing request set up ordering immunisation for wellbeing administration representatives who are probably going to experience and treat individuals with COVID-19.[1] It is not unknown that by order of the Australian Government the Paralympians participating in the Tokyo Olympics were subjected to compulsory vaccination because unvaccinated individuals posed a threat to society.[2]
Given the growing vaccination statistics, the issue of universal vaccination is not on the agenda yet, however, it is interesting what legal approach there will be to this issue. Law is a changing and evolving field over time. New challenges such as the Covid Pandemic are creating new regulations in our legal system. Compulsory vaccination is linked to the definition of fundamental human rights because on the one hand, the practice interferes with some clauses such as article 8 and Article 9 of the European Convention on Human Rights. The right to respect private and family life and Freedom of thought, conscience and religion. On the other hand, human rights give all people the right to be protected from harm. Fundamental human rights and freedoms are not fixed in time, the law is dynamic and evolves in response to challenges that are ambiguous. In order to frame the jurisprudential thesis for compulsory vaccinations, it is essential to weigh up the public importance of getting “the jab” juxtaposed against the individual approach to self-determination.
Human beings have the ability to control their own behavior in society, to make decisions independently and to be responsible for their own actions, and to determine for themselves the possibility of manipulating their own body. Generally speaking, one may currently refuse “the jab” for personal, ideological, or religious reasons
Article 8 includes the obligation of the government not to interfere in the private life of its citizenry. According to the case of Kroon and others vs the Netherlands (1994) it was held that private life incorporates both physical and mental integrity, and the physical aspect may be in conflict if an individual is required to be vaccinated by law. [3]
On the other hand, as was mentioned earlier, all people have the right to be protected from harm. Human rights are not unrestricted in nature, except in some categories. It is therefore important to maintain a rational balance between personal rights and the public interest. From an ethical point of view, one may imagine that one should be allowed to engage in life’s activities so long as one does not harm other people. There is therefore a logical argument for the imposition of compulsory vaccinations.
Recently, the European Court of Human Rights has set a global precedent for compulsory vaccination in the case of Solomakin v. Ukraine[4]. In this judgment, the Court held that compulsory vaccinations do constitute an interference with human rights, which violates Article 8 of the Convention, but nevertheless in the Court’s opinion that interference with the applicant’s physical integrity could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region (paragraph 36).
Authorities must differentiate between people when implementing mandatory vaccination. This would include the logical proposition that people who have a serious health problem, for example, a high probability to being susceptible to having a severe allergic reaction should not be required to get the vaccine.
It would appear, therefore, that as countries evolve their legal frameworks in the battle again covid-19, that the public interest and safety will be given primacy against traditional human rights which are mainly designed to prevent deliberate acts of bad faith.
[1] https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law
[2] https://www.reuters.com/article/paralympics-2020-australia-vaccination-idUKL3N2NC2GL
[3] https://hudoc.echr.coe.int/eng?i=001-57904
[4] https://hudoc.echr.coe.int/eng#{%22docname%22:[%22SOLOMAKHIN%22],%22itemid%22:[%22001-109565%22]}