Australia’s Constitution Clashes With Vaccine Mandates

September 9, 2021


Although it is not feasible to predict what the High Court of Australia—the nation’s apex legal body—would do if it were called upon to consider the constitutionality of vaccine mandates and emergency declaration orders, it is still possible to argue what it should do.

The Australian Constitution must be interpreted in a manner that promotes its purposes, values, and principles, while advancing the “rule of law” and the fundamental rights of the citizen.

The idea of mandatory vaccination—which is now steadily underway in Australia to combat the spread of COVID-19—sits uncomfortably with this jurisprudence.

The Constitution expressly limits the exercise of government power to protect the rule of law. This limitation reduces the incidence of unrestrained power, which is closely connected to achieving human freedom and happiness.

Accordingly, the Constitution allocates legislative power over certain health services to the federal government (or Commonwealth), with these powers being exclusive or concurrent to those wielded by the Australian states.

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A St John Ambulance staff member takes the temperature of a client arriving at a COVID-19 Vaccination Centre in the CBD in Sydney, Australia, on July 19, 2021. (Lisa Maree Williams/Getty Images)

However, Section 51 (xxiiiA) of the Australian Constitution, which was added following a referendum in 1946, provides that the Commonwealth Parliament can make laws with respect to: “The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.”

It is the provision around any form of civil conscription that brings into question vaccine mandates.

The concept of “civil conscription” was first considered by the High Court in 1949 in the case British Medical Association v Commonwealth.

In the opinion of Chief Justice John Latham, civil conscription included a legal requirement to engage in specific conduct and the imposition of a duty to carry out particular work.

The validity of this argument was later confirmed by another two Chief Justice of the High Court, Robert French and  William Gummow, in 2009, in Wong v Commonwealth and Selim v Professional Services Review Committee.

French and Gummow argued that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services.”

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A general view of the High Court of Australia in Canberra, Australia, on Nov. 5, 2020. (AAP Image/Lukas Coch)

When this understanding of the law is taken into consideration with Section 51 (xxiiiA) of the Constitution, which “invalidates all legislation which compels medical practitioners … to provide any form of medical service,” this provision could be construed as providing an implied right for a person to refuse the services of a doctor or health professional.

Further in the cases Wong v Commonwealth; and Selim v Professional Services Review CommitteeJustice Michael Kirby found that such an implied right existed because the relationship between a medical practitioner and the patient was contractual in nature and was born from an intention of both parties to work together.

For Kirby, the test of whether civil conscription had been imposed was whether laws or regulations by their “details and burdens” intruded into the “private consensual arrangements between the providers of medical and dental services and the individual recipients of such services.”

Under this conclusion—which is also based on existing implied constitutional limits in Section 51 (xxiiiA)—even state Parliaments could not mandate the vaccination of their citizens without violating the Constitution.

Thus the jurisprudence of the High Court indicates that the prohibition of civil conscription must be construed widely to invalidate any law which, directly or indirectly, mandates compulsory vaccinations.

Considering all of this, it is plausible that if governments cannot constitutionally mandate compulsory vaccination, they certainly also cannot indirectly create a situation whereby people might be forced to take a vaccine.

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A person walks past posters encouraging people to get vaccinated in Melbourne, Australia, on Aug. 31, 2021. (William West/AFP via Getty Images)

It is a point that has already been addressed in the case of the British Medical Association v Commonwealth where the judge, Justice William Webb, ruled:

“If Parliament cannot lawfully do this directly by legal means, it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance (emphasis added).”

Furthermore, compulsory vaccination adversely affects the democratic principle of equality before the law.

According to the case of Leeth v Commonwealth, Justice William Deane and Justice John Toohey argued that the Preamble of the Constitution supported the view that equality was a principle embedded in the Constitution.

They argued that equality of all persons under the law and before the courts “has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.”

The deliberate exclusion then of unvaccinated Australian citizens from certain “freedoms” discriminates against them based on their “vaccine status.”

Of course, relying on a vaccine status would create an apartheid-type situation, with benefits and burdens distributed across society on these grounds.

More importantly, making coercive statements to force people to get vaccinated would effectively amount to an indirect form of mandatory vaccination, the constitutionality of which is doubtful at best.

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Gold Coast residents are seen with their backs turned to the Gold Coast City Council during a ‘Silent Protest’ at Bundall on the Gold Coast, Australia, on Aug. 31, 2021. “Pro-Choice” protests have been carried out in dozens of locations in all states and territories, borne out of opposition towards mandatory vaccinations for authorised workers – including truck drivers – from 12 local government areas in Sydney. (AAP Image/Dave Hunt)

Indeed, as Justice Webb reminded us, from a constitutional point of view, the jurisprudence of the High Court indicates that such a move would violate Section 51 of the Constitution.

Of course, governments should also be aware that legally they should avoid relying on what is termed “parens patriae” doctrine that grants the state the power to protect a person who is legally unable to act on their own behalf (and is normally reserved for minors).

Such a move would be a textbook example of the “nanny state” in full swing, removing any sense of individual responsibility and human dignity.

Further, there is a danger of excessive state control when citizens cannot make personal decisions about their own medical treatment.

Lord Justice Michael Mustill also noted this danger in the legal case Airdale National Health Service Trust v Bland:

Mustill ruled that: “If the patient is capable of making a decision on whether to permit treatment and decides not to permit it, his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue.”

It is also worth approaching the matter from the perspective of international human-rights legislation as well.

“Informed consent” is the bedrock principle of ethical standards in medicine.

Informed consent can be defined as the voluntary agreement by an individual to a proposed medical or pharmaceutical treatment, given after sufficient and appropriate information about potential risks and benefits, including on possible adverse effects and how common they are, and what they should do about them.

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Australian Prime Minister Scott Morrison (centre), together with State Premiers Annastacia Palaszczuk (left), Daniel Andrews and Gladys Berejiklian, address the media in the Main Committee Room at Parliament House, in Canberra, Australia, on December 11, 2020. Sam Mooy/Getty Images)

According to Article 6 of the Universal Declaration on Bioethics and Human Rights (2005): “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information.”

In this context, Rocco Loiacono, senior lecturer at Curtin University, said:

“For any government either by itself or via corporate proxy to attempt to mandate vaccines in circumstances where there has not been adequate testing and analysis of risks as well as benefits would constitute not only a violation of the principle of informed consent … but a violation of Australia’s obligations under international law with respect to medical experimentation.”

So if the law explicitly prohibits any form of compulsion subjecting citizens to medical or pharmaceutical services, including mandatory vaccination, then any legislation that requires compulsory vaccination, either directly or indirectly, constitutes a form of civil conscription that is constitutionally invalid.

Similarly, indirectly forcing vaccination under threat of losing rights (including employment or “freedoms”) is not voluntary consent.

If governments cannot force something that is directly unconstitutional, such as forcing everyone to be vaccinated, they “cannot lawfully do it indirectly by creating a situation … in which the individual is left no real choice but compliance.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Augusto Zimmermann
Dr. Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian Legal Theory Association, editor-in-chief of the Western Australian Jurist law journal, and a former law reform commissioner in Western Australia.
Gabriël Moens
Professor Gabriël A. Moens AM is an emeritus professor of law at The University of Queensland, and served as pro vice-chancellor, dean, and professor of law at Murdoch University. He has published a novel about the origins of the COVID-19 disease, “A Twisted Choice,” and recently published a short story, “The Greedy Prospector,” in an Anthology of short stories, “The Outback” (Boolarong Press, 2021).

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