Could a French-style vaccine mandate for public spaces work in Australia? Legally, yes, but it’s complicated – .

Could a French-style vaccine mandate for public spaces work in Australia? Legally, yes, but it’s complicated – .

Several jurisdictions abroad have introduced vaccine requirements for entry into public and private spaces such as schools, restaurants, public places, and for domestic travel. Attention turns to whether these policies would work in Australia and when they could be introduced.

An important consideration is whether the warrants seek to protect people from the transmission of COVID in key sectors or spaces, or whether governments are using them as leverage to increase immunization rates in the general population. While the two may be legitimate, they are different political goals and governments must be transparent about which they are pursuing.

Israel, the first jurisdiction to introduce a vaccine passport, has used this measure intermittently, depending on the risk of transmission and coverage rates. This suggests that the government has used it as a strategy to increase overall immunization coverage.

EU countries also use vaccine passports, but they have encountered design and implementation challenges.

Despite ongoing protests against the measures in France, and to a lesser extent in Italy, surveys show that the majority of people in both countries approve of the measures. They have also led to a rapid increase in reservations for vaccinations.

New York City has also made vaccination mandatory for certain public spaces – the first U.S. government to do so. There is a legal basis for doing so: the Supreme Court ruled in 1905 that states can require residents to be vaccinated against smallpox or to be fined.

Can it be done here legally?

Australian governments have the option of requiring a similar “vaccine passport”.

It is important to keep in mind that this type of warrant is very different from forced vaccination (where an individual is forcibly vaccinated). Rather, mandates create a set of negative consequences for non-compliance.

The most obvious example in Australia is that of “No Jab No Play” policies that restrict access to child care in most states for children who are not fully immunized.

In the same vein, COVID-19 vaccination could be made mandatory for specific purposes, such as access to certain public or private spaces, travel or certain types of jobs, such as the vaccine requirement in waiting for elderly caregivers.

Proof of vaccination is displayed in a San Francisco bar.
Haven Daley/AP

From a legal perspective, the main limitation of government mandates relates to discrimination. The warrant should not discriminate, and therefore exemptions should be available for those who cannot be vaccinated for medical reasons.

However, Australian law offers no protection against “discrimination” against those who oppose vaccination on the basis of their personal beliefs.

Countries like France and Italy have faced vaccine denial by allowing people to show evidence of a recent negative COVID test as a measure to ‘waive’ the vaccination mandate. This is good behavioral science because it makes the option available – albeit more burdensome – than failing to vaccinate.

Read also: Can Australian employers get you vaccinated against COVID-19? Definitely not, but this is where they can

Private sector immunization mandates are also achievable in Australia for COVID-19 and other diseases. These mandates can apply to workers, clients, or both, as long as they comply with existing employment and consumer laws.

Unlike the United States, where many large companies mandate COVID vaccines for employees, the measure is still presented in Australia as a possible exception to the general rule.

However, this could become more prevalent in Australia after the Fair Work Commission has ruled in several cases this year that it is reasonable for employers in the elderly care and childcare industries to insist that the staff get the flu shot.

Unsurprisingly, it appears that the Fair Labor Ombudsman is open to a tiered system of employment mandates.

How public and private mandates differ

Mandates may be easier to establish and implement in the private sector because companies are generally subject to less control and accountability than governments. They can also rely on arguments about their duty of care to workers and customers.

International research also shows that the private sector enjoys great confidence, which can be a useful anchor if companies ask their employees or customers to get vaccinated. (There is of course a difference between providing vaccines in a workplace or asking employees for it, and requiring it!)

Read also: Vaccination warrants are not the only – nor the easiest – way for employers to force workers to get vaccinated

In addition, private companies do not have some of the constraints that governments face. Government vaccine mandates should be linked to other conditions for which governments are responsible and accountable, such as the available vaccine supply. An expanded government mandate in the absence of an adequate supply could be subject to legal challenge and risk political suicide.

In contrast, private entities do not share the same level of responsibility for the provision of vaccines when promulgating such mandates on clients. In the case of employee vaccine mandates, however, the obligation to provide vaccines is much higher.

As a result, it’s encouraging that companies introducing employee mandates are taking steps to ensure their employees have easy and funded access to vaccines. It would be great to see more companies doing this without introducing mandates first.

Despite the fact that private sector mandates may be easier to introduce, the complexity of exemptions and enforcement leads us to prefer government mandates.

Would Australians support vaccination mandates?

Our research shows Australians broadly support vaccination warrants, and our recent unpublished work indicates that they prefer vaccine passports to other types of warrants (such as sanctions or financial incentives).

Also read: Would Australians support mandates for COVID-19 vaccine? Our research suggests that most

However, the high levels of support for government mandates that we saw in our survey last year may not be the same now, given public perceptions of government failure to roll out vaccines. Australians may have less trust in government and, therefore, less support for government-mandated vaccinations.

This shows that the obstacles to the introduction of vaccine passports are not only legal, but highly political.

To appear legitimate, a warrant must serve clearly defined public health objectives and be proportionate. (In particular, it must be effective, reasonable, and with no less invasive alternatives available.)

Mandates can be good public policy when they are appropriately designed and ethically and epidemiologically defensible. These attributes are largely under government control.

However, when governments do not take enough action to respond to community hesitation, it can create the conditions that make mandates appear attractive or necessary. Our research shows that this was the case in Italy with childhood vaccines.

The danger here is that all roads automatically lead to mandates, without governments first exhausting other important strategies to encourage vaccinations. Excellent public communications targeting specific groups and making access to vaccines as easy as possible are two obvious facts.


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