Flat White

Vaccine mandates breach the Disability Discrimination Act? I’ve lodged a complaint with the Human Rights Commission to see

5 October 2021

4:00 AM

5 October 2021

4:00 AM

A couple of weeks back your correspondent paused his gardening to point out that the Disability Discrimination Act 1992 (Cth) prohibits all sorts of discrimination against people with a disability; which includes people who are, or might be, infected with “organisms capable of causing disease or illness”.

The way “disability” is defined in the Act—to include past, present, possible future and imputed disability—means that everybody is disabled when it comes to contagious “organisms capable of causing disease or illness”.

This week I planted out a large bed of Poa tussock grass, Japanese windflowers, cornflowers and lily—I’m going for a prairie look.

For laughs, I also lodged a complaint with the Australian Human Rights Commission against Daniel Andrews and the State Victoria for their proposal to breach the Disability Discrimination Act by locking Victorians unvaccinated against SARS-CoV-2 out of those areas of public life protected under the Act.

I doubt the Commission is taking me seriously.

The Commission is clearly alive to the potential limitations the Disability Discrimination Act and other anti-discrimination laws create for vaccination passports at both the State/Territory and individual-venue level. On its webpage, COVID-19 vaccinations and federal discrimination law the Commission advises caution and to obtain legal advice.

To be fair, it is not the Commission’s job to tell people what the law is. That is the job of Parliaments and Courts. Technically, lawyers only opine.

To be a little unfair, everything on the Commission’s webpage is just stuff the Commission made up and stuck on the webpage. The webpage has categories including people with medical reasons for not having a vaccine, marginalised groups (whoever they are) and digitally-excluded groups. None of those categories are found in the Disability Discrimination Act. Guidelines, however useful, are not law.

At least one State is aware that vaccination passports may offend the Disability Discrimination Act and is seeking regulatory approval from the Commonwealth to take steps that, absent that approval, might breach the Act.

The crux of is how vaccination passports, in whatever form, intersect, with section 48 of the Disability Discrimination Act. Section 48 provides that where a “disability is an infectious disease”, otherwise illegal discrimination becomes legal if it is “reasonably necessary to protect public health”.

In the blue corner is your correspondent; firmly of the view that being unvaccinated is not a “disability [that] is an infectious disease”—it’s just being unvaccinated—so the exemption in section 48 does not apply.

In the red corner is retired Queensland Supreme Court judge, the Hon. William Carter QC;, who opine (technically it’s not a judgement) in Beattie (on behalf of Kiro and Lewis Beattie) v Maroochy Shire Council [1996] HREOCA 40 that children unvaccinated against measles could be excluded from childcare under section 48.

Rather than jab in the first round with finicky legal arguments, your correspondent will come out swinging. The express written words of the Disability Discrimination Act operates to include disabled people in public life. The Act should have been passed a decade earlier to include Eve van Grafhorst who did have AIDS after a blood transfusion in 1982. It did include gay men who might have had AIDS in 1992. It also includes those unvaccinated against SARS-CoV-2 in 2021.

But for today’s purposes, it does not matter which pugilist lifts the belt. There are only two mutually exclusive outcomes.

First, your correspondent is right: there is essentially a blanket prohibition on vaccine passports for any contagion. In any of the public settings protected by Part 2 of the Disability Discrimination Act you cannot even ask, “Are you vaccinated against [INSERT CONTAGION]?” Though you can still ask that question around the kitchen table at home.

Or, second, your correspondent is wrong. That has happened. Then the Australian Human Rights Commission, the Federal Court and, ultimately, the High Court are going to have to develop a body of guidelines and law—without any real legislative framework—about what vaccinations are “reasonably necessary to protect public health” under section 48 of the Act in respect of each of the public settings protected under Part 2 of the Act.

Just the length of the last sentence tells you the decadal lawyers’ picnic that will be.

As a retired lawyer your correspondent is a big fan of lawyers’ fees: they’re why I’m retired. I am, however, big enough to admit that spending untold tens of millions to chart an uncertain course is not sensible.

There are better options; like a blanket prohibition.

Oh, one last thing. If your correspondent is right—that too has happened—then every individual-venue, State and Territory that imposes any form of vaccination passport might be open to a damages claim for discrimination.

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