The recent mandatory vaccination “announcement” had no legal backing for a week.
Written on 6 October 2021 (updated 8 October 2021)
People don’t seem to understand enough about government powers in Victoria.
Premier Andrews suddenly announced (on 1 October 2021) that over 1.4 million employees in Victoria must receive vaccinations or lose their jobs. People and industries in the ‘list’ include: interpreters, marriage celebrants, broadcasting performances, retail goods workers, MPs, waste management services, Judges, some lawyers, journalists, factories, mining, drivers, and certain admin staff.
It’s a massive list. I counted over 140 categories.
But it turns out there was no legal force to this announcement.
It wasn’t the law. It was just a press release. Call it a ‘wish list’ on the part of the Premier.
There are a number of legal requirements to be applied before a Direction (which has temporary legal force) can be made. I talk about them here. And I mention a few key issues regarding the temporary Direction which was ultimately made on 8 October here.
In contrast to the Premier’s September construction worker mandate, there have been no reports that this broad list of over 1.4 million people are all flouting the law. No reports of high Covid transmission. No explanation, discussion or analysis as to why members of each of these groups suddenly need to be forced to vaccinate or lose their jobs.
I specialise in administrative law at the Victorian bar, and I train government decision makers in how to make lawful decisions. I looked for the statutory document mandating vaccinations for this long list of people.
There was no broad vaccination mandate for a week.
There wasn’t one on 1 October 2021. There wasn’t one every day I looked until 8 October 2021. That’s a week of misrepresentation and confusion about the law. And for that week, most of the news and media outlets that I saw were publishing the story that this was the law.
We shouldn’t be misrepresenting the legal position to vulnerable people, or to anyone.
But people were being told that vaccinations were mandatory, when they were not. Employers were being told there’s a legal requirement, when there wasn’t. And employers were telling their employees it’s a legal requirement, and it wasn’t.
That means employers were misleading their staff about their legal rights. And demanding vaccinations and vaccination certificates which they were not allowed to demand.
That’s not the way a government should treat citizens. It’s not the way an employer should treat their employees. Apart from being untrue, and apart from being a dangerous coercion of medical procedures through false representations, it’s a breach of privacy to demand medical information without authority.
Now you might say it was only a week, so who cares?
We should all care. Because a system which allows untrue statements to prevail, and acts as though something is law, when it isn’t, is a broken system.
What mandatory vaccination direction was made on 1 October 2021 in Victoria?
There was a limited mandatory vaccination direction made on 1 October 2021.
On 1 October 2021, the Acting Chief Health Officer did give directions under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic). These directions require operators of some facilities to effectively demand vaccination of their staff. It applies to residential aged care facilities, construction sites, healthcare facilities, and education facilities.
Just those places. Not a long list of 140 categories.
Those directions end on 21 October 2021. The same date that the Declaration of a State of Emergency expires. It’s very important to keep this in mind when we consider their lawfulness.
I thought we were on track. Why the sudden announcement?
While the goal of voluntary vaccinations is being met, Premier Andrews justified his sudden announcement this way: “On the advice of our public health team, all workers… on the Authorised Worker list will require their first… dose by Friday 15 October… (and) fully vaccinated by 26 November.” He also referred to “more pressure on our health system than we ever have.”
If any authorised officer were to make a direction along the lines of the Premier’s wish, it must be done lawfully, in accordance with the Act. (I say more about this below and in Part 2 of this piece.) But if the Premier’s comments are relevant, it is worth having a quick look at them.
What has the Victorian government done to alleviate predicted pressure on the health system?
Turning back to the Premier’s press release. He refers to pressure on the health system.
Surely an authorised officer who decides to make such a direction will have to consider what exactly is the existing and predicted pressure on the health system, how might it be alleviated, and how would any so-called ‘mandatory vaccination’ direction be relevant to the health system, exactly?
And surely they’d have to consider every single category in the proposed massive list, before making their decision?
Out of interest, what happened to the $1.3 billion injection promised on 1 April 2020 by Premier Andrews “to quickly establish an extra 4,000 ICU beds as we respond to the coronavirus pandemic and protect Victorian lives”, to “secure the ICU equipment, staff and space we need”?
Any direction made to deal with “urgent” or “emergency” issues under the Declared State of Emergency should involve consideration of the reality of the impact of the direction for the life of the direction. Which in this case, can only be as long as the State of Emergency itself, ie until 21 October 2021.
In other words, what will be the impact on the hospital system of the people who wouldn’t otherwise choose to self-vaccinate in the 13 days between now and 21 October 2021? And is a mandatory vaccination direction – which forces some people to lose their jobs – a necessary step in order to save hospital beds?
While there is a narrative around vaccinated people (the good ones) avoiding hospital, and unvaccinated people (the bad ones) taking up hospital beds, the international experience does not bear this out. Vaccination does not bring about a black and white result. In Israel, for example, despite high vaccination rates, about 60% of people hospitalised with severe COVID-19 had received two doses of Pfizer.
So it makes no sense to blithely state that mandatory vaccinations are needed in Victoria, right now, for under 2 weeks, to alleviate pressure on our health system.
What about Covid treatments?
There are other things that will relieve the pressure on hospitals. Like Covid treatments.
For example, an authorised officer (who is exercising statutory or government powers) should surely consider the Covid-19 treatment the TGA approved by 20 August 2021 – 6 weeks ago. It’s an intravenous antibody treatment called sotrovimab. Around 1 October 2021, 15,000 doses actually arrived in Australia.
It sounds like the one my Aunt had in the U.S. She’s 85. She got covid. They said “we’ll give you these antibodies and you’ll be right in a couple of days”. And she was.
This treatment reduces hospitalisation and death by 79% in adults with mild to moderate Covid-19, who are at risk of developing severe Covid-19.
So that’s around 80% of at-risk people being kept out of hospital and kept alive.
Again, this is surely a relevant factor to the impact of a small percentage people remaining unvaccinated in the next 13 days.
This isn’t an anti-vaxxer rant.
Many of us are pro-vaccinations and pro-choice. That’s because we value our democracy. And we value human rights like those in the Charter of Human Rights and Responsibilities Act 2006 (like the right to choose medical treatment).
That’s why the governments in Australia (including Victoria, until today), have been content to aim for 70-80% vaccination on a voluntary basis.
We might have different views on vaccination, but at the end of the day, we either honour people’s ability to choose such things in our democracy, or we don’t. We don’t want to jail people who don’t want to get vaccinated, so we support them in making their choice, whether the majority agree with that choice or not.
The State of Emergency will end.
We have lived with Covid for over 20 months now. And for most of that time, most of us have not suffered the loss of our jobs if we chose not to vaccinate ourselves.
As the Premier says, we are nearly ‘there’ (by which he means he will lift the longest lockdown in the world over our troubled State).
Since the Premier’s announcement a week ago, employers seem to have happily taken up the cudgel and told their employees it’s the law – they have to get vaccinated or go on the dole.
Even though, between 1 and 7 October 2021, it was not the law.
That means people were being coerced to get vaccinated under a false apprehension.
Isn’t that wrong? For a government to give employers the impression something is the law, when it isn’t? For employers to tell employees something is mandatory, when it isn’t?
Press releases certainly give the impression that Premier Andrews is a lawmaker. But he isn’t. We are entitled to transparency and the truth on something so significant.