Into the vaccine-mandate vacuum flows confusion, exemplified by this statement from a Sydney pizza shop owner, as reported — without contradiction — by The Sydney Morning Herald this week:
I can’t be filtering customers based on their status. There are anti-discrimination laws in place that I’d be breaking if I did that.
His main concern was commercial. He said he won’t be checking customers for their COVID vaccination status because he can’t afford to turn anyone away — but he had a clear legal justification in mind.
It’s perfectly understandable that he doesn’t know the law, and is taking matters into his own hands accordingly. Unfortunately, so far as the current law goes, he’s entirely wrong.
We are rushing headlong towards a fundamental reworking of the balance of our rights, in a vacuum. That’s been obvious for a while, since businesses started announcing unilateral decisions around mandatory vaccination for their workforces.
It was underlined by NSW Premier Gladys Berejiklian in her Monday press conference, which one suspects she called in part to scotch a suggestion her deputy had been feeding: that the extra “freedoms” fully vaccinated people have been promised when the state hits 70% double-dose will be available to the unvaccinated as well when it gets to 80%.
Berejiklian was explicit: nobody should make any such assumption. The threat, not subtle, is that if you stay unvaccinated, you may not be getting into the pub any time soon. Maybe ever.
For politicians, it’s sleight of hand. Prime Minister Scott Morrison has been playing the same game, saying we’ll never mandate vaccination while slipping away from questions about the practical realities of a world in which a medical status will be determinative of the exercise of freedoms we used to universally take for granted. Like walking into a shop or taking a seat in a restaurant.
That’s the vacuum. For all businesses and organisations like churches, clubs, sporting associations and so on, there is no choice but to confront the questions: can we and should we place restrictions on how individuals will be allowed to interact with us based on whether or not they’ve been vaccinated?
The law so far as the business-customer relationship is concerned, is clear: there is no law preventing a business from declining to deal with a customer, including by denying them entry to the premises on the basis that they are unvaccinated.
Australia’s anti-discrimination laws are a mish-mash of state and federal legislation, but the basic design is common: discrimination is unlawful only with respect to certain protected attributes, such as gender, race, age, pregnancy, disability. If the reason a person is not vaccinated is because of a protected attribute (such as disability or, in some states, religious conviction), a business might break the law by discriminating against them on that basis. The relevant factor will be the protected attribute, not their vaccination status.
Apart from that, business proprietors can rely on their fundamental common law right to deal with, or not deal with, whoever they choose. So far as they operate physical premises, they have a legal right to exclude anyone from entry.
As freedom warriors like to say, it’s a free country, a point the sovereign citizens insisting on their right to go maskless into Bunnings tend to miss: in Bunnings, they’re in Bunnings’ country.
Some might argue there’s no difference between the mask mandates which, after some initial turmoil, have become no big deal, and a vaccination mandate. But there really is. Ask any anti-vaxxer who keep emailing me wanting to join the class action we will never run.
Crazy or not, a significant proportion of the community will never get vaccinated. That presents a practical problem for each business because there is enormous and constantly growing pressure in line with the manic desire to “open up”, to offer a basic guarantee to the vast majority: you can shop here and everyone you encounter — staff or fellow customers — will have been vaccinated just like you. The freedom to not get COVID has entered our list of assumed human rights, and high up.
The pizza shop owner has indicated his choice, and some religious groups have too — their doors won’t be closed to anyone. Other businesses will go the other way, picking up on the broad hints Morrison and Berejiklian have been laying out, requiring us to show our vaccination passports at the door.
If NSW opens up in mid-October on the basis announced — that is with the returned freedoms reserved for those holding a passport — then the mould will have been fully set. I expect most businesses will follow that lead, whether the then-current public health orders require them to or not.
The step we are missing is the conversation about whether this new balance will be the right one for a society living in a COVID world. A responsible government, preferably federal but at least state, would lead that conversation and then change the law to support the outcome it concludes is most desirable.
There is no right answer to the mandatory vaccination question, and it is too important to be left to every pizza seller to come up with on their own.
There are so many other public health requirements already mandated – seatbelts, drink driving, smoking, motorcycle helmets…the list goes on an on. It seems bizarre that this one has become such a polarised discussion when the community benefit (ie harm/protection of other people) is at least as clear. Should we all be able to drive at 150km pissed through a built up area – or is that also an ‘infringement of liberties’?
We should all be able to drive at 150km pissed through a built up area – otherwise it is an ‘infringement of liberties’. I think that about summarises the policy position of libertarians – at least in the USA.
By the way, that insanity is coming here. Has anyone else seen Clive’s latest yellow media outing – the giant posters saying “Freedom, Freedom, Freedom – Vote UAP. Definitely a health (and wealth) hazard in my view.
This country has stopped being free since this Government came to power.
Just look at what has been imposed on us in regards to new laws implemented by mein fuhrer Dutton, laws thst Scum Mo has pushed forwards.
Yet his Government has been one of the main law breakers in this country.
Everything this Go ernment has done has been underhand, deceitful along with rorts.
Yepp! we have not been a free country in a long time.
Fans of the Gillard govt say how wonderful she was because of how much legislation was passed. Fair enough, but what was that legislation. Some of it was taking away the rights of disabled by preventing them access to Centrelink support. Other legislation was privacy and security legislation, which in this country means removing citizens rights at the behest of national security. The last 20 years of Labor has seen them allow new anti-democratic legislation go through when in opposition. Our eroding democracy is not all down the spiteful people who currently reside in Canberra.
Vaccination should be compulsory (with valid medical exemptions of course, but not religious ones) in a pandemic.
Morrison is not concerned about societal health, just his own electoral health.
Spot on regarding the lack of leadership. Hard decisions, taking action, being accountable, Morrison doesn’t do those.
Re the mandates and businesses, the nub will actually be the practicalities, as it already is with check-ins and masks. Businesses and staff dealing with the public are not geared up for it and find it difficult. Some have stronger incentives and deeper pockets so they will for example put security on the door. Licensed premises often already have security and because regulated have strong incentives to police. However, will still be piecemeal enforcement. Can make comparisons with no smoking when that came in but with that it was obvious someone was transgressing.
The willfullly unvaccinated, if there are enough of them, do have the capacity to clog the hospital system as they fall sick. Risking and costing the lives of innocent people. Another act of leadership will be to triage them lower on intensive care lists compared to others with claims on those beds. This may include taking them off ventilators when someone who is vaccinated needs one and would otherwise miss out.
“ in Bunnings, they’re in Bunnings’ country.” Indeed they are. They can be sovereign citizens in their own homes, but once they go outside they are in other peoples territory.
The religious exemption sounds difficult to apply given that the Pope has stated that getting a vaccine is not only permissible. That leaves fringe Baptist and Pentecostal style churches. Perhaps there will be a bunch of new recruits at a few fringe churches. I note that Brian Houston was reported in yesterday’s Crikey as saying it is a matter of personal choice, so no religious exemption to that group. I would imagine that the exemption on the basis of religion would have to be based on an explicit direction from the top of that church group, and the conscientious objection based on vaccines peripherally produced from aborted foetus material from 50 year ago wouldn’t apply as the mRNA vaccines have no such lineage.
Surely it would be best for the NSW government to issue a public health order requiring businesses to exclude the unvaccinated. The pizza shop guy is probably a poor example as they can have takeaway without entering the premises, but for eat in the vax status would need to apply. That would require leadership however. I’d be disappointed if the free riders gained the same freedoms as the responsible members of society, now approaching 4 out of ever 5, and soon enough to be 9 out of 10.
Easy, Remove their tax free status unless they advocate vaccination. A win win situation for the populous. If they refuse we the taxpayers save money.