Although it is not feasible to predict what the High Court of Australia—the nation’s apex legal body—would do if it were called upon to consider the constitutionality of vaccine mandates and emergency declaration orders, it is still possible to argue what it should do.
The Australian Constitution must be interpreted in a manner that promotes its purposes, values, and principles, while advancing the “rule of law” and the fundamental rights of the citizen.
The idea of mandatory vaccination—which is now steadily underway in Australia to combat the spread of COVID-19—sits uncomfortably with this jurisprudence.
The Constitution expressly limits the exercise of government power to protect the rule of law. This limitation reduces the incidence of unrestrained power, which is closely connected to achieving human freedom and happiness.
Accordingly, the Constitution allocates legislative power over certain health services to the federal government (or Commonwealth), with these powers being exclusive or concurrent to those wielded by the Australian states.
In the opinion of Chief Justice John Latham, civil conscription included a legal requirement to engage in specific conduct and the imposition of a duty to carry out particular work.
French and Gummow argued that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services.”
When this understanding of the law is taken into consideration with Section 51 (xxiiiA) of the Constitution, which “invalidates all legislation which compels medical practitioners … to provide any form of medical service,” this provision could be construed as providing an implied right for a person to refuse the services of a doctor or health professional.
For Kirby, the test of whether civil conscription had been imposed was whether laws or regulations by their “details and burdens” intruded into the “private consensual arrangements between the providers of medical and dental services and the individual recipients of such services.”
Under this conclusion—which is also based on existing implied constitutional limits in Section 51 (xxiiiA)—even state Parliaments could not mandate the vaccination of their citizens without violating the Constitution.
Thus the jurisprudence of the High Court indicates that the prohibition of civil conscription must be construed widely to invalidate any law which, directly or indirectly, mandates compulsory vaccinations.
It is a point that has already been addressed in the case of the British Medical Association v Commonwealth where the judge, Justice William Webb, ruled:
Furthermore, compulsory vaccination adversely affects the democratic principle of equality before the law.
They argued that equality of all persons under the law and before the courts “has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.”
The deliberate exclusion then of unvaccinated Australian citizens from certain “freedoms” discriminates against them based on their “vaccine status.”
Of course, relying on a vaccine status would create an apartheid-type situation, with benefits and burdens distributed across society on these grounds.
More importantly, making coercive statements to force people to get vaccinated would effectively amount to an indirect form of mandatory vaccination, the constitutionality of which is doubtful at best.
Indeed, as Justice Webb reminded us, from a constitutional point of view, the jurisprudence of the High Court indicates that such a move would violate Section 51 of the Constitution.
Of course, governments should also be aware that legally they should avoid relying on what is termed “parens patriae” doctrine that grants the state the power to protect a person who is legally unable to act on their own behalf (and is normally reserved for minors).
Such a move would be a textbook example of the “nanny state” in full swing, removing any sense of individual responsibility and human dignity.
Further, there is a danger of excessive state control when citizens cannot make personal decisions about their own medical treatment.
Lord Justice Michael Mustill also noted this danger in the legal case Airdale National Health Service Trust v Bland:
Mustill ruled that: “If the patient is capable of making a decision on whether to permit treatment and decides not to permit it, his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue.”
It is also worth approaching the matter from the perspective of international human-rights legislation as well.
“Informed consent” is the bedrock principle of ethical standards in medicine.
Informed consent can be defined as the voluntary agreement by an individual to a proposed medical or pharmaceutical treatment, given after sufficient and appropriate information about potential risks and benefits, including on possible adverse effects and how common they are, and what they should do about them.
“For any government either by itself or via corporate proxy to attempt to mandate vaccines in circumstances where there has not been adequate testing and analysis of risks as well as benefits would constitute not only a violation of the principle of informed consent … but a violation of Australia’s obligations under international law with respect to medical experimentation.”
So if the law explicitly prohibits any form of compulsion subjecting citizens to medical or pharmaceutical services, including mandatory vaccination, then any legislation that requires compulsory vaccination, either directly or indirectly, constitutes a form of civil conscription that is constitutionally invalid.
Similarly, indirectly forcing vaccination under threat of losing rights (including employment or “freedoms”) is not voluntary consent.
If governments cannot force something that is directly unconstitutional, such as forcing everyone to be vaccinated, they “cannot lawfully do it indirectly by creating a situation … in which the individual is left no real choice but compliance.”
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