Testing times

A Fair Work Commission ruling on vaccines has implications far beyond the workplace. By Nick Cater.

The freedoms we have surrendered to the state in this pandemic are not trivial. They include the freedom of association, the freedom of movement, the freedom to peacefully protest, the freedom of worship, freedom of commerce and the freedom of Australians to enter or leave their country without hindrance. 

Now some leaders are toying with another precious freedom: the freedom of bodily integrity. It is a right that became recognised out of the bitterest of experiences: the forced medical experimentations carried out by the German Nazi government until 1945. 

We should be grateful for the Prime Minister’s leadership on the issue of compulsory vaccinations. It is not a measure any Liberal government could even contemplate. 

Yet we are moving perilously close to compulsion when we deny the unvaccinated basic rights, like the freedom to earn a living or congregate in their own homes. The unvaccinated are not criminals, and we deny them the liberal expectation of equal dignity if we treat them like second-class citizens.

I made some of these points, possibly a little too passionately, when I was talking to Sharri Markson on Sky News Australia. Others will come to a different judgement on where the boundary lies between encouragement and coercion. Yet we can surely agree as Liberals that we would prefer businesses to decide who they should serve or who they should employ rather than the state. That way it can be tested in court.

Given the importance of this debate, it is surprising that there has been little media coverage of a decision handed down by the full bench of the Fair Work Commission on Monday that is utterly germane. The commission had been asked to rule on a claim for unfair dismissal by a receptionist at an aged care home in NSW who had refused to be vaccinated against the flu.

Two of the three commissioners hearing the case, vice president Adam Hatcher and commissioner Bernie Riordan, concluded that the woman’s dismissal was not unreasonable. Among the grounds they offered for dismissing the case was that it would be against the public interest to grant the right of appeal. “We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.”

The commission’s deputy president Lyndall Dean disagreed, however. In a lengthy dissenting judgement, she says that decisions to mandate vaccinations are a “lazy and fundamentally flawed approach”. 

“All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value,” Dean writes.

One doesn’t have to agree with Dean’s conclusions to recognise that she touches on issues of fundamental moral importance. Her dissenting opinion is an important contribution to a vital debate we are doing our utmost not to have. Paragraph 60 of the Fair Work Commission’s majority ruling says, in effect, that it is in the public interest that civic discussion should be discouraged.

The majority decision that there are no legal grounds to justify an appeal may well be right. Yet even the least vaccine hesitant among us must surely dissent to the notion that public discussion on the matter should not be encouraged.

Since the media have shown so little interest in covering the case, the best advice I can offer is to read the ruling for yourself. Here is Dean’s dissenting judgement in part:

“The fundamental starting point here is the answer to the question – ‘what is the risk?’ The risk of spreading COVID only arises with a person who has COVID. This should be apparent and obvious. There is no risk associated with a person who is unvaccinated and does not have COVID, notwithstanding the misleading statements by politicians that the unvaccinated are a significant threat to the vaccinated, supposedly justifying ‘locking out the unvaccinated from society’ and denying them the ability to work…

“There is nothing controversial in stating that vaccines do not eliminate the risk of COVID, given that those who are vaccinated can catch and transmit COVID…

“What is clear, however, is that the vaccine is not an effective control measure to deal with transmission of COVID by itself.”

Dean refers to the advice on the Safe Work Australia website that also makes the point that employers cannot rely on a vaccinated workforce to minimise the risk of exposure to COVID in the workplace.

She continues: “Critically, there is another alternative to vaccines to assist employers in meeting their WHS obligations, that being testing. 

“Testing is now widely used around the world as a risk control for the spread of COVID. There is absolutely no reason why it cannot be widely used in Australia.”

Dean goes on to consider the human rights dimension to mandatory vaccinations. It examines the relevance of the 1947 Nuremberg Code and the 1948 Universal Declaration of Human Rights, which recognised the right to bodily integrity.

I won’t attempt to summarise the arguments here, but I invite you to read paragraphs 113 to 129 of the judgement. 

I will, however, highlight one paragraph that has broader relevance to the handling of the pandemic, beyond the issues of vaccinations. Dean quotes from the section on Non-Derogable Rights in the Siracusa Principles:

“No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.”

These are weighty matters indeed, but the wording in the Siracusa Principles restores a sense of proportion to our present concerns. It demonstrates that the degree of freedom we have so far surrendered to the cause of fighting this pandemic are relatively slight compared to the freedoms denied in some other countries, like China for example.

We would be wise to re-acquaint ourselves with the sentiment best articulated by the Irish orator, John Philpot Curran, in 1790: 

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance."