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Towards a non-discriminatory Covid-19 risk assessment policy

12 July 2021

6:00 PM

12 July 2021

6:00 PM

In Australia, a Covid zero infection rate is still fervently pursued by the Commonwealth and states and territories. But the last eighteen months have shown that this goal is not likely to be achieved and will lead to an interminable cycle of lockdowns, restrictions, face-masking, and social distancing. 

Several states have now extended and intensified their contact tracing capacity. People are required to use an app on their mobile phone to enter shops, even food stores like Coles and Woolworths. Although these apps facilitate the tracing capacity of state health bureaucrats by automating labour-intensive tasks, their use restricts people’s civil rights and impacts their privacy. While there are repeated assurances that the information stored on the app will only be used for tracing purposes, there is evidence that it has already been used to monitor businesses’ activities. 

There is anecdotal but strong indication that the rules requiring people to check-in when going to a shop, are disregarded. Widespread defiance is common, and some people have even advocated civil disobedience. One wonders whether the government is happy to rely on voluntary compliance or will place the onus on shops to ensure that people comply with the check-in requirement. However, if the app is underused, it could be expected that government will impose an obligation on shops to become app-enforcers. Alternatively, there is always the daunting prospect that police may be stationed at shops to enforce these check-in rules. One might also ponder whether this requirement is merely a temporary measure or will become a permanent distraction, instituted to please a bloated health bureaucracy. 

The use of tracing apps is complemented by government-sponsored pleas to Australians to get vaccinated. Vaccinations are marketed as a passport to freedom from restrictions and the opening of domestic and international travel. However, at present, only 2.1 million out of 25 million Australians are fully vaccinated, which is 8.3% of the population. This places Australia near the bottom of OECD countries that have embarked on a population-wide vaccination program. Only developing countries are doing worse than Australia (India: 5.1%, Indonesia: 5.4%, and Pakistan: 1.6%).  

The obvious question to ask in this context is this: if the restoration of our civil rights depends on the nation’s vaccination rate, how come the uptake is so slow?   

The National Cabinet’s approach to the rollout is problematic because persons’ eligibility to receive a particular vaccine depends on their age. The relevant directions with regards to the age groups that are eligible to receive a particular vaccine have constantly been revised. At first, AstraZeneca would be the saviour vaccine for all Australians. But when disturbing reports were received about blood clotting, it was decided that the under-50s should only get Pfizer, and the over-50s — the older and presumably most vulnerable Australians, AstraZeneca. Lately, National Cabinet decided that people under 60 could get Pfizer, but people older than 60 would still have to accept AstraZeneca.   

If people over 60 were to be coerced to accept the AstraZeneca vaccine, they would be victims of a discriminatory government risk assessment policy. This assessment policy is problematic because the over 60s age group would receive a vaccine which, according to many medical reports, is inferior in its performance to the Pfizer vaccine, and the government rules on the distribution of vaccines would condone age discrimination by depriving people of the opportunity to choose their preferred vaccine. It leads to the creation of a two-class Australian society, where the interests of one group are served at the expense of another group that is goaded into accepting what is arguably a less-effective vaccine.   


There is anecdotal evidence that relevant government vaccination rules are also inflexibly administered, and older Australians are only offered AstraZeneca even if they, or their GPs — based on medical opinions — prefer them to have the Pfizer vaccine.

I have firsthand experience of this treatment. I presented myself for vaccination at the Royal Brisbane and Women’s Hospital after receiving an email stating that “the current recommendation as per the Australian Technical Advisory Group on Immunisation (ATAG) would be for you … to proceed with the AstraZeneca vaccine”, but that “we are happy to accept and review emails/referrals from your GP or specialist doctor and vaccinate you based on their recommendation.” I had also secured a letter from my GP outlining my medical history. However, I was told by an attendant who manned the reception desk that, in accordance with the applicable government rules, I am not entitled to the Pfizer vaccine, but should accept the AstraZeneca vaccine – or just leave without having been vaccinated.

In my experience, it is difficult to negotiate a preferred outcome with people, who slavishly and inflexibly implement rules without considering their impact on people. I left the vaccination clinic, unvaccinated and frustrated. 

In this context, medical officers have been hammering the message that AstraZeneca is completely safe and that the benefits far outweigh the risks of remaining unvaccinated.  

Admittedly, the rollout would not necessarily be more successful if the National Cabinet were to adopt a non-discriminatory freedom of choice policy which would enable all people, regardless of their age, to choose their preferred vaccine. This is because such a policy, at present, would not result in the vaccination of more people. Indeed, if people over 60 were allowed to choose any vaccine, they would probably be competing for the same limited amount of the Pfizer vaccine, while essentially leaving the AstraZeneca stockpile untouched. 

Such a situation could lead to fewer people being vaccinated since the limited supply of Pfizer would soon be exhausted. In such a case, Australia would have to wait for new deliveries, which would result in delaying the projected timeframe for vaccination. In this scenario, the substantially increased demand for the Pfizer vaccine would outstrip the amount available for use in Australia.   

Certainly, governments may well have to change their eligibility requirements for receipt of a vaccine from time to time, considering that risks change. Indeed, the government is always involved in risk assessment when it decides on the conferral of benefits and the imposition of burdens on people. But although risks change, these changes need to be addressed in a consistent manner which, as far as is practicable, avoids age discrimination. Thus, governments, when deciding on benefits and burdens need to be consistent in their risk assessment to ensure that no group in society is unnecessarily disadvantaged.  

For example, in the pandemic context, the National Cabinet has recently decided that people under 40 can now have the AstraZeneca vaccine because the risk of getting blood clots is negligible. It should therefore also accept the corollary, namely that there are seniors in the over 60s category who are at higher risk because of their vulnerability to blood clotting and other complications: these people should be allowed to access Pfizer as their preferred vaccine. It should be left to GPs to determine whether their patients are prone to health complications; their assessment and professional opinion and integrity should be respected. 

It is well-known that the Australian vaccination program suffers from an inadequate supply of vaccines. However, it is fair to say that most of these problems are the consequence of unwise government decisions to purchase huge stockpiles of a single vaccine, rather than buying enough of each available vaccine – a practice which would have minimised the risk that has materialised with the AstraZeneca vaccine. In putting all its eggs in one basket, the government effectively committed itself to marketing the AstraZeneca vaccine.  

A review of the government’s risk assessment policies should result in greater freedom of choice for Australians. It would remove age discrimination and go a long way to speed up, and even possibly rescue, the present vaccination program.  

Perhaps, in such a scenario there would be no need for defiance to the intrusive contact tracing apps that has turned Australia into a country that has the hallmarks of a police state. 

Emeritus Professor Gabriël Moens AM is an Emeritus Professor of Law at The University of Queensland. He served as Pro Vice Chancellor, Dean, and Professor of Law at Murdoch University. He is the author of novel on the origins of the Covid-19 pandemic, entitled A Twisted Choice and a short story, The Greedy Prospector, in an Anthology of Short Stories: The Outback, both published by Boolarong Press).  

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