Flat White

Limiting access for the unvaxed to public places will likely breach the Disability Discrimination Act

23 September 2021

4:00 AM

23 September 2021

4:00 AM

Your correspondent is a retired lawyer who these days prefers gardening to litigating. Spring in the Victorian High Country is glorious and my garden is just coming to life after a winter of heavy frosts and a little bit of snow. The crab-apples are in blossom. 

Despite new botanical life in the garden; life is about to become much harder for Victorians unvaccinated against Covid-19. 

Two weeks back Daniel Andrews, Premier of Victoria, announced, “I think if you are not vaccinated, and you could be, then the chances of you booking a ticket at a sporting event, going to a pub, going to all manner of different places, will be very, very limited.” 

There is uncertainty about how lockout laws will be implemented in Victoria. No legislation, subordinate legislation or legislatively authorised bureaucratic orders have been announced or made available for public comment. Will the lockout laws last only as long as the state of emergency under the Public Health and Wellbeing Act 2008 (Vic)? 

The position in the rest of Australia is even less certain. 

John Barilaro, deputy premier of New South Wales, said that “At 70% [vaccination], it’s a level of freedom, maybe some businesses won’t take that up, maybe individuals won’t take it up but the reality is there will be a point in time – at 80 to 85% possibly – that we will then expand on those freedoms even for the unvaccinated.” 

Gladys Berekjiklian, premier of NSW, howled down her deputy saying that “We have not yet put out our plans for 80%; we’re still formalising them. Government might say it’s up to business to decide whether or not they accept unvaccinated patrons … but we have not come to those conclusions yet. We all have choices and if it’s your choice not to be vaccinated, well that might mean you cannot participate in things that (the) fully vaccinated do.” 

Your correspondent has no idea what the other Australian States and Territories intend to do with their unvaccinated. Throw them to the thylacines, possibly. 

But whatever any of the States and Territories intend to do with their unvaccinated; they all face a legal limitation: the Disability Discrimination Act 1992 (Cth). 

Way back in the early 1990s; when the human immunodeficiency virus (HIV) was a new thing and the HIV-infected toddler Eve van Grafhorst was denied daycare unless she wore a muzzle; the Commonwealth of Australia determined to pass a law that prohibited certain types of discrimination against people infected with, or who might be infected with “organisms capable of causing disease or illness”. 

Unfortunately, it is necessary to get down and dirty with some legislative text. Section 4 of the Disability Discrimination Act defines “disability”, relevantly, as follows: 

“disability”, in relation to a person, means:

(d) the presence in the body of organisms capable of causing disease or illness;

and includes a disability that: 

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

If you could be bothered to read the explanatory memorandum to the Act you will see that the definition of “disability” is: 

[B]roadly defined and is intended to include physical, sensory, intellectual and psychiatric impairment, mental illness or disorder, and provisions relating to the presence in the body of organisms causing or capable of causing disease. These provisions have broad application, for example, they are intended to ensure that persons with HIV/AIDS come within the definition of disability for the purposes of this Bill.

Odd as it is to write; the statutory definition of “disability” means that, in relation to contagious “organisms capable of causing disease or illness”, everybody is disabled. Everybody falls into the category of people of who have had, do have or may in the future have influenza. 

The Act does not discriminate between pathogens. All previous, present, possible future or imputed “organisms capable of causing disease or illness” are treated the same way. 

Gay men were the prime target for protection under this part of the definition of disability but it was not just gay men at elevated risk from HIV. Haemophiliacs before HIV-screening of donated blood and intravenous recreational drug users were also at very serious risk of acquiring HIV. Then there were the unlucky: plenty of people who were not in any risk group were infected with HIV. Like Eve van Grafhorst. 

The Disability Discrimination Act prohibits some types of discrimination against all of them and everybody else who may in future be infected with HIV. 

What discrimination does the Disability Discrimination Act prohibit?

Australian discrimination laws do not prohibit discrimination in the general sense because humans discriminate all the time. Vanilla, strawberry or chocolate? Blonde or brunette? Tall or short? Science, art or humanity? Mac or PC? Human discrimination is endless. 

Only some types of discrimination are prohibited by law in some situations. 

The Disability Discrimination Act prohibits discrimination against a person with a disability in relation to employment, education, access to public premises, accommodation, the sale of land, membership of clubs and participation in sporting activities. There is also a prohibition on seeking information about a disability in order to discriminate. 

For the same legal reason that a publican cannot say, “Gay men are not allowed into my pub because they might be infected with HIV” a publican also cannot say, “Unvaccinated people are not allowed into my pub because they might be infected with measles”. 

Nor is it valid for a State or Territory to pass a law to that effect—the Act binds them too. 

What about public health? 

Section 48 of the Disability Discrimination Act exempts discrimination “reasonably necessary to protect public health” where a person’s disability is an “infectious disease”. 

Being unvaccinated against any contagion is not an infectious disease—it’s just being unvaccinated—so the section 48 exemption cannot apply purely on the basis of a person’s vaccination status. 

Even if the section 48 exemption did apply there is still the limitation of “reasonably necessary to protect public health”; whatever that might mean in relation to employment, shopping, hospital access, public (including air) transport or a U2 concert. 

Why stop at Covid-19? 

Some businesses have already announced an intention to refuse access to patrons unvaccinated against Covid-19.  

Having recently reread Viruses, Plagues and History (1998) by Michael B. Oldstone of the Scripps Research Institute; your correspondent would be more concerned about patrons unvaccinated against SARS-CoV-1, measles, all of the haemorrhagic fevers, polio, bubonic plague, yellow fever, hantavirus and smallpox—they’re terrifying. There aren’t vaccines for some of them. 

Measles is much more contagious than Covid-19, about as deadly and complications can be profound. Before a measles vaccine in 1963 it killed 2,500,000+ million people a year and permanently disabled more; mostly aged under 5. Though off a historically very low base, measles deaths have increased by 50% since 2016. To protect the children only patrons vaccinated against measles should be permitted. 

Yellow fever is more deadly for people not of African genetic origin. It is only reasonably necessary to ban Caucasian and Asian people unvaccinated against yellow fever. That follows the science. If the section 48 public health exemption did apply, it would also follow the law.. 

Smallpox is eradicated, so nobody is vaccinated against that these days, but some bodies buried in thawing permafrost may still harbour the virus. You cannot be too safe when it comes to something that nasty. 

Now add the overlay of millions of venues making these decisions. Some will overreact having read Professor Oldstone; others will take their vaccinology from Nicky Minaj. 

Then there is the provincialism displayed by the States and Territories during the pandemic. Any vaccination passport scheme must have legislative backing. That might be legislatively-backed bureaucratic orders; which may require a permanent state of public health emergency. 

Intra- and inter-jurisdictional day-to-day compliance with State and Territory vaccination passports will be complex. Luckily, there will be an app for that in each jurisdiction. No; I do not know who will access the app database in each jurisdiction now or in the future. 

In a federal system the legal problems are mind-boggling. 

Somebody will have their day in Court 

So far as your correspondent is able to tell—and keep in mind these days I’m more interested in gerberas than germs—no State or Territory has thought through their proposed breaches of the Disability Discrimination Act when it comes to SARS-CoV-2. 

No doubt some lawyer more interested in germs than gerberas will fight this out in the courts. 

For the moment though, keep in mind that some of the State and Territory laws and some restrictions applied by individual venues which limit access for unvaccinated people to public places will likely breach the Disability Discrimination Act. 

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