The Covid vaccine is voluntary in Australia. But will some people be required to get one?

Paul Karp
·5 min read
<span>Photograph: Anadolu Agency/Getty Images</span>
Photograph: Anadolu Agency/Getty Images

Last week Scott Morrison said that although Covid-19 vaccines are voluntary, some people may be required to get one in some circumstances that are yet to be decided.

Employer groups including the Council of Small Business Organisations of Australia have asked for clarity about whether they can require employees to get a vaccine, after several employment law experts argued they could.

So who – if anyone – could be required to get a Covid-19 vaccine?

Vaccines are voluntary – in general

Australia’s Covid-19 vaccination policy states:

While the Australian government strongly supports immunisation and will run a strong campaign to encourage vaccination, it is not mandatory and individuals may choose not to vaccinate. There may however, be circumstances where the Australian government and other governments may introduce border entry or re-entry requirements that are conditional on proof of vaccination.

The Australian government has opened the door to one potential exception to vaccines being voluntary: they could be required as a condition of entry to Australia; or even to an individual state or territory.

The Qantas chief executive, Alan Joyce, has suggested vaccination could become a requirement to travel.

He said Qantas was considering asking passengers for proof of vaccination before boarding flights to and from Australia, and he expected other airlines would take a similar approach.

Public health orders may require some to be vaccinated

Morrison has said that states and territories will need to devise nationally consistent public health orders to determine “where if in any cases there is a requirement to have that vaccine”.

He later explained that vaccines may be required for public health reasons in particular workplaces such as frontline health workers and aged care workers, as occurs now for flu and measles vaccines.

Related: Vaccine deniers are a minority in Australia, but a successful rollout hinges on facts and honesty | Tom Aechtner

The chief medical officer, Paul Kelly, has said that this could be required for visitors as well to protect the vulnerable. This could have application beyond visiting a relative in hospital or in aged care, potentially to larger geographical areas with a high proportion of vulnerable people.

A spokesperson for the Northern Territory health minister, Natasha Fyles, has said “the Territory has a vulnerable population – decisions made locally regarding the roll-out will be made with the health and safety of Territorians in mind; in line with our leading clinical advice”.

In addition to public health orders, some existing laws such as Victoria’s Public Health Act give the government the power to compel people to undergo treatment – but there is no indication these would be used.

Employers have powers to direct employees

Employers have a responsibility in work health and safety law to do what is reasonably practicable to create a safe workplace, and a power in common law to give employees “lawful and reasonable” directions.

Employment law experts including barrister Ian Neil, RMIT professor Anthony Forsyth and Adelaide University professor Andrew Stewart have argued this power could extend to ordering employees to get vaccinated.

No court has definitively ruled on the question, although in November the Fair Work Commission deputy president Ingrid Asbury said it was “at least … arguable” in the context of a childcare centre directing staff to get the flu vaccine.

Related: Why the delay? The nations waiting to see how Covid vaccinations unfold

Stewart told Guardian Australia it was “fairly easy” to argue that an employee needs a vaccine because otherwise they are “threatening the ongoing operation of the workplace”.

He said that could depend on the circumstances of the workplace, including “to what extent there is close contact with fellow workers, and customers”.

“If you’re in a back-office role, and it’s possible to maintain social distancing, or teaching university online the argument could be made: there are other ways of safeguarding against the risk of infection … so the employer should reasonably accommodate a preference not to get vaccinated.”

It may also depend on the employee’s reason for refusing. “It may very well be reasonable for a general policy of immunisation but not be reasonable to apply it without exceptions,” Stewart said.

Employers say not everybody will

The Australian Chamber of Commerce and Industry acting chief executive, Jenny Lambert, said Australia’s current laws “do allow” employers to direct employees to be vaccinated “in some cases” although the laws provide “a risk-based framework, not definitive [answers]”.

“Like all matters relating to work health and safety, employers need to manage the risk to their workers and those that enter their workplaces including customers and those under care,” she said.

“Every employer will need to assess the role that a vaccine can play in managing the risk of Covid-19 and for some, but by no means all workplaces, this may be requiring their workers to be vaccinated.”

Lambert noted that given the need to distribute the vaccine to priority groups and limited availability “workplace risk will need to continue to be managed by employers in a range of other ways”.

The Australian Council of Trade Unions has reportedly written to the government offering to work with them on the vaccine rollout to avoid a divisive debate about whether the vaccine should be compulsory in some workplaces.

The ACTU said its preference was for the vaccine to be voluntary with a mass public education campaign to maximise take-up.