Mandatory vaccination directions for workers – Part 5.1

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Victorian workers are confused by the suddenly urgent mandates
How can employers comply with due dates that have passed?

Today a new set of Mandatory Vaccination CHO Directions were issued on the DHHS website – they mandate vaccines for Covid-19. They are always a ‘fresh’ document, but they can repeat the scheme set out in previous Directions.

Despite months and months of lockdown and encouragement to Victorians to self-vaccinate, the State Government has very recently decided that it’s suddenly urgent to mandate vaccinations for workers across Victoria.

It’s quite sad that Victorians are celebrating the end of lockdown today, at the same time that fundamental human rights are being denied, and hundreds of thousands of people are potentially losing their jobs.

The Directions I look at in this post are called:

Directions from Acting Chief Health Officer in accordance with emergency powers arising from declared state of emergency COVID-19 Mandatory Vaccination (Workers) Directions (No 5)
Public Health and Wellbeing Act 2008 (Vic)

There are other directions mandating vaccines, but I am not discussing them here.

I wrote previously about the need for the person who makes such directions to comply with the law, and to form the required statutory intention under s 200 of the Public Health and Wellbeing Act 2008. In fact, I teach administrative law to public servants and have done so for over 15 years. This is what I teach every single time I run a training course.

I realise that it is hard to follow the law sometimes, but when you are exercising statutory power over others – affecting their rights and entitlements – you really need to be careful to get it right. As far as you can.

And if you are affecting hundreds of thousands of people, you’d probably be wise to get legal advice before you sign off on such directions.

You know, ordering people to get vaccinations, or make bookings, or else they lose their job. That’s kind of pretty significant stuff to happen in Australia.

I commented in Part 3 of this series, that there were flaws with the previous set of Directions, because they required people to make appointments for a date in the future which was not covered by the period of the Directions themselves. How could you say it was an emergency to force someone to make a booking for something in the future that you couldn’t require them to follow through?

So I was interested to see what sorts of timelines and requirements were in these fresh Directions.

What do the current Directions say about timelines – things coming up that you have to comply with?

Put simply, the thought gone into these directions issued today is way less than I would have expected. The decision maker hasn’t even thought through the timeline in relation to what they are demanding. They refer to “due dates” which have passed. How is this possible?

Sadly, the lack of accuracy in the drafting of these Directions shows that the Chief Health Officer and/or staff have better things to do than be clear about what is being demanded from employers and workers in Victoria. Which makes it hard to understand how everybody’s health (including mental health) is being promoted.

What really are the risks posed now by the few unvaccinated workers that are left in Victoria? (Given that the vaccination rates have gone gangbusters on a voluntary basis.)

What really is the risk of one worker being unvaccinated in an environment where they have no contact with customers or even staff?

How really are these directions necessary?

It also suggests that the lack of media interest on this issue (or perhaps the quelling of dissent) is encouraging the government to think less and less about the lawfulness of such Directions.

As a simple legislative drafting exercise, it’s not really a pass mark in my view.

Key drafting issues in the Directions

I won’t summarise the whole Directions. Here are a few quotes from the Directions, to make my point:

These directions commence at 11:59:00pm on 21 October 2021 and end… on 18 November 2021 (clause 3).

If the employer collects information that a worker is unvaccinated, the employer must also collect, record and hold information about whether that worker has a booking to receive, by the first dose deadline, a dose of the Covid-19 vaccine…(clause 4(3)).

An employer must comply with the obligations in subclauses (1) to (3) as soon as reasonably practicable after the commencement of these directions (clause 4(4)).

Despite subclause (1), an employer of a worker may, between the relevant date and the first dose deadline, permit a worker who:
(a) is unvaccinated; and
(b) has a booking to receive, by the first dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated, to work for that employer (clause 5(3)).

The Directions say that the “relevant date” is 15 October 2021. That’s a week ago. Sorry, that date is long gone. Why refer to it? The Directions of 22 October 2021 mandate something to be done with respect to a date that has expired: 15 October 2021.

How can you set up an emergency direction now (urgent, urgent) enabling or requiring things to be done by reference to a date which expired a week ago? It’s quite confusing.

And the “first dose deadline” is 22 October 2021. That’s today. So employers are expected to gather information about bookings for vaccines today? And that will allow the worker to work? Is that meant to apply just to today?

It’s not a reasonably practical requirement on an employer. It’s confusing for employers and employees – and should not be in this Direction.

Exceptions in the Directions

There are a few exceptions in these Directions which enable people to get out of the ‘no jab no job’ rule (albeit a temporary rule). One of them relates to medical certificates (clause 8(5)).

A person is an excepted person:
(a) if the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication; or
(b) if the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to an acute medical illness (including where the person has been diagnosed with SARS-CoV-2).

I don’t know what acute medical illness means. I guess it’s up to a doctor to decide, which is a problem in itself. What if your doctor thinks your condition is bad but not ‘acute’? But it sounds like it might not cover many underlying serious conditions. Or that doctors will be confused about what it means.

Medical contraindication is defined in clause 10(9). It’s not a broad definition. It’s very specific. It states:

medical contraindication means one of the following contraindications to the administration of a COVID-19 vaccine…

The list of contraindications is mostly reactions to a dose of the vaccine already taken.

Commonwealth Government advice on risks of vaccinations

It does not include the whole list of risky conditions identified by the Commonwealth government.

Out of interest, we need to compare these State Government limited exceptions to the advice from the Commonwealth Government, to see whether the State Government is allowing people to follow the advice of the Commonwealth Department of Health. I look at some of the Commonwealth government’s vaccination advice in Part 5.2.

And there is a clear disconnect between the Commonwealth’s health advice and the Victorian draconian mandatory vaccination directions.

A fundamental issue, as I have said in previous posts, is the right to consent to medical treatment, as enshrined in the Charter of Human Rights and Responsibilities Act. It is not featuring at all in these “urgent” CHO directions.

And if a person is supposed to have the right to make a risk-based decision (taking into account Commonwealth Government advice about risk, if they like), why does the State Government suddenly – on the transition into ‘freedom’ from lockdown – think that they can take away those rights?

How has the Acting Chief Health Officer formed the requisite statutory intention before making the Directions?

How is it possible for the decision maker on these Directions to have decided that they are “reasonably necessary to protect public health” as required by the Act? Why didn’t any Chief Health Officer do anything like this prior to the beginning of October, even though vaccines have been available for some time?

In my previous post, I said:

It’s impossible to have an urgent emergency direction that requires someone to do something in the future after the direction expires.

So when the direction ‘mandates’ a booking for a first jab by 22 October 2021, and a second jab by 25 November 2021; it shows the overreach here. How can you mandate that someone book a medical procedure for a date which falls outside the ambit of the direction?

Now the Directions are partially focussed backwards. How does that make sense? How does that deal with the “emergency”? And how are they necessary?

And today Victoria’s lockdown ends.

Yay, freedom!

Except for the thousands – hundreds of thousands – of workers, who have lost their jobs despite the State’s vax targets being reached.

How can that possibly fulfil the statutory preconditions for these Directions?

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