As an Australian, I have been fed a steady diet of anti-discrimination doctrine for many years. It’s a common thread throughout the online media, TV, films, and print.

I even studied anti-discrimination law at the Australian National University in Canberra.

There is discrimination on the basis of gender – which has now been extended to ‘perceived’ or ‘claimed’ gender. Discrimination on the basis of sexual orientation – which is said to be ‘none of your business’ as an employer or educator. And discrimination on the basis of race – which is supposed to be completely unacceptable. Then there is religious discrimination – the subject of the recently-failed attempt to enact new legislation on the part of the Coalition government.

More recently, I have encountered age discrimination (on behalf of my parents and others), in the form of paternalistic government health bureaucrats and Aged Care Providers. Residents of Aged Care Facilities are not allowed to decide for themselves who they can socialise with or what risks they might choose to take in their last years. And they have no control over when they are allowed to leave their tiny, often cave-like rooms. They are ‘too old’ to be allowed to make these decisions.

Nobody amongst our political leaders can see that this is age discrimination.

What about the world of the young in the education system (although I recognise that older people can become students)?

I had the impression that universities were quite careful about avoiding claims of discrimination against students.

That is until the federal government approved Covid vaccines on a provisional basis (provisional, because the long-term side effects remain unknown).

A bunch of universities and TAFE colleges have leapt at the chance to ban people from campuses, including enrolled students, unless they are double vaccinated – presumably that means ‘triple vaccinated’ by now.

The mandate applies to people who were 75 per cent or 90 per cent through their courses. Suddenly, without consultation or warning, these students have been ‘cancelled’. How many have suffered this indignity? It’s not clear, but there is no doubt a significant number. You’d think that with universities and TAFE colleges bleeding money during Covid they’d want to keep every student they could. Not so.

You can look through university websites to see the platitudes and unjustified claims that they make. These are our academic institutions – you know – the leading ‘thinkers’ of our society.

Claims are made like: ‘A fully vaccinated student body and workforce will reduce disease transmission rates, reduce the severity of any breakthrough infections and reduce the likelihood of severe disease and admission to hospital.’

Or: ‘To ensure we are protecting the health and safety of our community, all students, staff and visitors must be fully vaccinated against Covid or hold a valid medical exemption to attend any campus or facility.’

There’s plenty of evidence out there at this point to show that vaccination does not prevent transmission of Covid. The extent to which banning unvaccinated students ‘will reduce disease transmission rates’ is highly questionable. To take just one article from the Lancet, in Jan 2022, ‘This study showed that the impact of vaccination on community transmission of circulating variants of SARS-CoV-2 appeared to be not significantly different from the impact among unvaccinated people.’

And, of course, when over 90 per cent of the community is vaccinated, the alleged risk of unvaccinated people transmitting Covid (even if it were a higher risk than that of vaccinated people) is limited to the size of the cohort.

So, that’s that argument… Perhaps the academic Institutions would like to look at the science on transmission?

But what about the argument about reducing the severity of infections, severe disease, or hospital admission? This involves the universities making personal medical treatment decisions on the part of their students. Forget about having a doctor. Forget about getting information about risks and benefits of one treatment (vaccine) over others (preventative measures, or treatments after contracting Covid so as to minimise the effect of the disease). 

You now have a university to decide for you.

‘Sorry, you can’t finish your degree or certificate, because we have decided that you need to reduce the risk of potential transmission of a disease to you, personally. And we have decided how you should do it.’

Why pick on Covid vaccines, dear universities? Why not tell students they should stop smoking, or drinking, taking drugs, or eating junk food? Aren’t these things bad for their health? Aren’t those things going to increase their likelihood of getting sick or ending up in hospital? Perhaps you should cancel those students too…

Most interesting of all is the fact that universities and TAFE colleges seem to be unable to consider the principles of discrimination. Discrimination on certain grounds in the provision of education is unlawful. Have any of them heard of the Disability Discrimination Act? It’s a Commonwealth Act. It’s been around since 1992 – about 30 years. So, universities have had time to read it and consult their lawyers.

There’s a section in the Act that prevents direct discrimination on the grounds of disability. It also means that a university needs to make reasonable adjustments so as to avoid discriminating. And here’s the interesting part. A disability includes a disability that’s imputed to a person, and it includes a disability that may exist in the future.

It’s pretty clear to me. If you say to your students that you have to cancel them, because you think that the absence of an injection or two, or three, makes them more like to get sick in the future, then you are discriminating against them.

And that’s against the law.

It’s too much to expect our federal government to pick up on this issue and tell the academic institutions and the state governments issuing vaccine mandates to ‘back up’. This is even though the Prime Minister has repeatedly said that he opposes vaccine mandates and thinks people should be able to make their own choices, and that Universities and TAFEs receive Federal funding.

There is one heartening example of forward thinking announced on February 15, 2022. University of Adelaide Vice-Chancellor and President Professor Peter Høj AC, wrote to the university community on the decision to not pursue a vaccination mandate at this time. He consulted with people. He considered the science and the facts. He decided to let the minority choose not to vaccinate, and to embrace their desire to pursue further education. Quite right, I would say. Sensible, and correct.

Perhaps our academic institutions could cease mumbling platitudes, stop pretending to be students’ doctors, and let students make their own decisions about what medical treatment to use on their bodies? Students are supposed to make their own decisions about vaccines, just as they are about sex, gender, or religion – even if those decisions might be perceived as less than optimum by others. 

Isn’t that what an enlightened academic institution should encourage in a student body of future leaders? Independent thinking?

Fiona McKenzie is a Barrister and trainer – adminlaw.com.au

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