Written on 6 October 2021. On 8 October 2021 a new mandatory vaccination direction was made. This is addressed in Part 3.
In Part 1, I address the week during which Victoria assumed that the Premier’s press release was the law. It wasn’t.
Limits on the Victorian government’s legislative powers to mandate vaccinations for workers.
As a barrister and administrative law trainer, not to mentioned a concerned citizen, I wanted to highlight some legal issues around recent Victorian attempts to “mandate” vaccinations. Part 1 refers to the Premier’s announcement of mandatory vaccinations for over 140 ‘categories’ of workers. I make the point there that there was no law or direction making any such mandate for a week. It was only a press release with no legal effect.
This piece is part 2. Here I make comments about Victorian legislative processes generally, and how the State of Emergency has allowed far reaching but only temporary restrictions on Victorian residents.
And, importantly, it is clear that the Victorian government doesn’t think they can force the whole working population to get vaccinated via directions, if at all. Instead, they are trying to force employers to keep records and prevent entry to workers.
Victorian Parliament’s ‘normal’ legislative powers to mandate vaccinations
Normally, the Victorian Parliament only passes legislation after going through certain hoops. I say ‘normally’ to refer to the usual state of affairs when there is no State of Emergency Declaration on foot.
Whether the Victorian Parliament can mandate vaccinations as a general rule through permanent legislation is seriously open to question. It will no doubt be the subject of much analysis, and is beyond the scope of this article.
For a start, it is hard to see how it wouldn’t be incompatible with the Victorian Charter of Human Rights and Responsibilities Act 2006. When Parliament passes an Act in Victoria, the relevant MP has to prepare a statement of compatibility on whether the Bill is compatible with human rights, and if so, how.
Or whether it is incompatible with human rights.
The Charter explicitly provides for fundamental human rights in addition to any common law rights already in existence in Victoria. The most relevant statutory right in the Charter here is: “A person must not be subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent” (s 10).
That’s what the Victorian Parliament enacted in 2006. That’s part of the permanent landscape that exists now, and must be considered if legislation is to be passed when the State of Emergency ends.
Victorian (and Australian) employers’ ‘normal’ abilities to mandate vaccinations
Just briefly, before continuing on with the Victorian government’s arguable powers to mandate vaccines, a word about the ability of employers to mandate vaccines for workers.
This is covered in this article by the law firm Justitia. And in this circular by the Australian Public Service Commission (with regard to Commonwealth employees). The consensus here is that mandatory vaccinations will not be required by the Commonwealth government, and cannot be required as as matter of course by employers. While high-risk groups (like Aged Care) are facing mandatory vaccinations now, that does not mean that all workers should equally face such mandates. A range of factors like the contact between that worker and members of the public must be considered.
State of Emergency powers
In contrast to the ‘normal’ state of affairs, we in Victoria are now living under a declared “State of Emergency”. That means that emergency powers may be exercised by one individual without any public consultation or parliamentary scrutiny. This is set out on the Parliament’s website here.
The State of Emergency is declared under the Public Health and Wellbeing Act 2008. The declaration was made by the Minister for Health on 16 March 2020 and has been extended many times. Its current version is due to end on 21 October 2021.
It will probably be extended again. But we don’t know that yet. Because each time it is extended a person with statutory authority is supposed to make an assessment that it is justified.
But it can’t go on forever.
Under the Public Health and Wellbeing Act, a Declared State of Emergency was only ever meant to be for a short time. It was not meant to be an ongoing state of affairs. The Parliament extended the period for such a State of Emergency from the normal 6 months limit to 21 months “in respect of the Covid-19 pandemic”.
21 months from 16 March 2020 takes us to a potential expiration date (if they keep extending the State of Emergency) of 15 December 2021.
That means that the State of Emergency can’t go past 15 December 2021. Unless Parliament sits and amends the legislation again, it will end.
Then the ‘normal’ state of affairs will continue on.
How broad are the powers of authorised officers under the State of Emergency?
Because of the State of Emergency, authorised officers may be authorised by the Chief Health Officer under s 199 of the Act, to exercise certain powers. The emergency powers are described in s 200.
That section has been used for many of the Directions that have severely restricted Victorians in the last 18 months.
But the particular clause relied on in s 200 for many of the Directions has been s 200(1)(d).
It’s worth looking at all of s 200(1). It reads (with my italics):
(1) The emergency powers are—
(a) subject to this section, detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;
(b) restrict the movement of any person or group of persons within the emergency area;
(c) prevent any person or group of persons from entering the emergency area;
(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.
It would likely take several lawyers many hours to unpack the meaning of s 200(1)(d). I cannot do so here. But there are a few glaring points that can currently be made.
The emergency powers don’t mention coercive medical procedures
Nothing in s 200(1) talks about coercive medical procedures of any kind.
The list of specific provisions in (a), (b) and (c) refer to restrictions on the movement of people. And they are immediate and temporary restrictions at that.
They do not specifically refer to any power to direct that a person be injected with any substance.
The emergency powers focus on movement of people in an “emergency area”
The first three categories of emergency power refer to “the emergency area”. That’s because Parliament envisaged a true, short and sharp, emergency, focussed on a particular area.
They do not refer to the ability to ban people from all workplaces – which are not, by any stretch of the imagination, ’emergency’ areas that need urgent attention.
The emergency powers prevent or restrict movement of people immediately
There is nothing in the emergency powers that enables broad directions to do things in the distant future.
That, of course, is backed up by the fact that the State of Emergency has limited duration too.
That means, importantly, that Directions can’t order people to do things in future, after the State of Emergency is due to expire.
It does not appear that authorised officers can order vaccinations during a State of Emergency
It does not appear as though the apparently broad powers of authorised officers allow them to direct people to be vaccinated.
Which makes sense. If you have an emergency, you have to act fast to fix the emergency and remove the danger.
That’s nothing like ordering people to have medical procedures that might or might not have a particular lasting effect.
Mandatory vaccination directions no 5
The latest and current (at the time of writing) directions regarding mandatory vaccination were made on 1 October 2021 and are called the Covid-19 Mandatory Vaccination Directions (No 5). (This post does not comment on the directions made on 8 October 2021. That is discussed in Part 3.)
The mandatory vaccination directions of 1 October 2021 were made pursuant to s 200(1)(d): “any other direction that the authorised officer considers is reasonably necessary to protect public health”.
The wording of the Covid-19 Order no 5 confirms my view that s 200(1)(d) of the Act does not allow officers to direct people to be vaccinated. It suggests that the Victorian Government thinks this too. (Order no 5 relates to a few industries only, not the 140 categories announced in the Premier’s press release of 1 October 2021).
Order no 5 is actually a direction to employers to seek information from workers (as to their vaccination status) and to prevent their entry to a workplace if they do not provide certain information about their vaccination status.
It is a back-door, twisted way of dealing with things. To direct employers to refuse people work, rather than directing employees to get vaccinated. It is a way of attempting to coerce workers to get vaccinated, because refusal to do so will result in them losing their jobs.
What has to be done before a mandatory vaccination direction can be made or extended?
So there are good arguments that s 200(1)(d) does not authorise mandatory vaccination. Whatever it does authorise, an authorised officer has to form a certain opinion before issuing a direction under s 200(1)(d).
The authorised officer must first form the view that the direction is “reasonably necessary to protect public health”. The authorised officer needs to consider relevant facts and “consider” that the direction is “reasonably necessary”.
And the officer should first consider the concept of an “emergency area” as described in s 100(1)(a), (b) and (c). While the term isn’t found in (d), there’s an argument to say that the particular restraint of movement of persons has to relate to an “area”. Such as the workplace, in the case of workers (if that could possibly be seen as an emergency area!).
The Premier can’t make directions under s 200(1) of the Act.
If the Premier makes an announcement that vaccinations will now be mandatory for a cohort, he is not making a statutory decision under s 200 of the Act. His announcement has no legal force.
What does an authorised officer have to do before making a direction?
Unless an authorised officer forms the requisite view under s 200(1)(d), then no so-called mandatory vaccination direction should be made.
No authorised officer should be dictated to by the Premier or anyone else, before making a statutory direction. The authorised officer has to make up their own mind. When officers act under dictation, the Courts call this an unlawful exercise of statutory power.
The authorised officer would need to form the requisite view for each and every group of workers proposed in the direction, that a mandatory vaccination direction right now in relation to each of them and their workplaces was reasonably necessary to protect public health.
Authorised officers must follow the Charter of Human Rights when making directions.
Oh, and by the way, the officers have to follow the Charter of Human Rights too. Section 38 of the Charter states in part: “it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.”
Which means, the right to make up our own minds about medical procedures is relevant to any officer making a direction as an exercise of ‘emergency powers’.
It is very difficult to see how a breach of the Charter could be justified for a 2 or 3 week period in a direction, when vaccination rates have been going quite nicely on a voluntary basis.
The State of Emergency will end.
The State of Emergency in Victoria will not last forever. At some stage the Victorian Government will have to let it go.
And when the State of Emergency goes, all of the directions under s 200 go too.
Which means any mandatory vaccination directions, whether they were lawful or not, will then disappear.
As the philosophers say: this too shall pass.