The Covid vaccine rollout has boosted the optimism of many who pin hope of a rapid recovery from the pandemic on the medication’s efficacy. But it is raising important questions around whether it should be mandatory for some — or all — of the public.
Conspiracy theories aside, medical experts are in any case warning us not to expect the vaccine to eradicate Covid-19. Health officials say vaccination is certainly a key element in the battle; but the goal is protection, not eradication.
This poses key moral questions about the way to achieve maximal levels of community protection.
New research suggests that vaccination is unlikely to confer immunity to Covid-19 but might impede transmission. If that is the case, an argument can be made for vaccinating any who may transmit the virus to vulnerable people such as the elderly.
Indeed, a flu needle is already mandatory for those working in aged care facilities, so it could make sense to add a Covid needle to the list of jabs those — and similar — staff need to have.
But imposing mandatory vaccination is a thorny issue that threatens to conflict directly with the established common law right to refuse medical treatment.
Accordingly, Safe Work Australia (SWA) has issued guidelines for employers on discharging work, health and safety obligations to employees. While vaccination remains voluntary — for now — SWA urges employers to encourage vaccination as part of a wider effort to promote public health and safety in the community.
Businesses may begin to make the supply of their services conditional on proof of vaccination. Airlines, for example, could require passengers to be vaccinated, confident that demand for the service will outweigh lingering concern about vaccination. But this might be riskier for other businesses, such as shops, whose customers may defect to competitors.
The situation is more complex when it comes to employees who may feel their workplace safety at work depends on all colleagues being vaccinated.
The ACTU has already urged that priority vaccination should be given to those working in high–exposure risk jobs, such as schools and public transport. However, SWA guidelines currently leave it to employers to determine vaccine policy. Of course, this exposes bosses to the risk of legal action – either if some workers resist vaccination or if the vaccine causes an adverse health reaction.
No wonder small business is lobbying governments to bring clarity by setting rules about vaccines.
Alongside the already established practices of social distancing, mask-wearing, and hand sanitising, promoting vaccination becomes one more element of our response to the pandemic. And it stops well short of making vaccination compulsory — something that could be difficult to enforce. But adoption of any voluntary practice is bound to be inconsistent.
One response to this inconsistency is to make it compulsory. And, indeed, the Biodiversity Act 2015 already provides for ‘human biosecurity control orders’ that can be issued to mandate a specified vaccination or form of treatment to manage the outbreak of disease. The Act also provides for an extensive regime of enforcement.
With one hand, the state thereby confers rights and freedoms; and with the other, it can withdraw them if the greater public good demands it. Yet the federal government has stopped short of invoking the Act’s enforcement option; instead preferring to encourage public acceptance.
In 2020, vaccine rollout was the much-anticipated dawn promising to dispel the gloom and isolation of lockdown. But the arrival of the jab now presents another series of legal and moral challenges; including affording sceptics their right to freedom of speech and their right to refuse treatment.
Low community transmission in Australia means many may not regard vaccination as essential for tackling the pandemic. Hence, the government should hesitate to press the mandatory button because it could quickly inflame vigorous opposition.
Even so, Australians need to accept that without vaccination, it is likely that travel, commercial, and other restrictions will remain in place for much longer — indeed, some medical experts are already talking about 2023 instead of 2022 — thereby postponing early resumption of anything like normal life.
We will not resolve these issues easily or quickly. But they cannot be ignored, because of the imperative to weigh competing claims about the rights we bear as citizens and the duties we owe one another in preserving the common good.
Peter Kurti is Director of the Culture, Prosperity & Civil Society program at the Centre for Independent Studies, and Adjunct Associate Professor of Law at the University of Notre Dame Australia.
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