Pauline Hanson’s COVID-19 vaccine mandates bill has come and gone, but it served both her and Prime Minister Scott Morrison’s political purposes and they’ll be well pleased.
Since Parliament won’t be having an intelligent debate on the subject, perhaps we should. There is a serious issue here, with most of the population vaccinated but a significant rump refusing or unable to do so. Given the epidemiological mechanics of COVID, unprecedented social dilemmas present for resolution.
The simple fact is that an unvaccinated person is a public health risk. That’s easy to say. It’s equally easy to say, as many do, that it’s a free country. But what they mean by that is not so simple.
Hanson’s bill answers the question with one of the two available over-simplifications: by making it illegal to discriminate against unvaccinated people, full stop. Her law would prohibit employers and businesses from asking for a person’s vaccination status, and from employing or serving them based on that status. No more showing your vaccination certificate to the bouncer outside the pub. No more vaccination mandates for health and aged care workers — or anyone else.
The other over-simplification is this: nobody’s being forced to get vaccinated. If you freely choose not to, there are consequences because your choice endangers others. Their human right to not get sick is more important than your human right to not put a vaccine in your body.
Example: Morrison’s “no-jab, no-play” policy for childcare facilities (which he has conveniently forgotten in the past week). Sure, the logic goes, don’t vaccinate your kids if that’s your choice, but the price is that they don’t get to play with ours.
If you’re not a didactic ideologue, you can immediately see the problem here. We’re talking about competing and incompatible rights. To reconcile them is impossible; therefore as a society we must undertake the hard work of finding the best compromise position and then legislate that as a new social norm.
One merit of Hanson’s bill is that it flushes out an issue which many ignore: there are and will be a significant number of people whose unvaccinated status will be by necessity, not choice. For various medical reasons, for some it is simply not an option. Their hypothetical risk of catching or transmitting COVID will be the same as that of an anti-vaxxer, but it’s very hard to find an ethical justification for saying they should be the victims of permanent discrimination (for example, never being able to fly).
That problem can be solved by moving that cohort from the unvaccinated side to the vaccinated one, by creating exceptions for people with certified medical contraindications (as is the case under most states’ public health orders for many purposes).
Still, it’s an exception to a rule, and therefore uncomfortable. If we accept that some unvaccinated people will be given full freedom with the attendant risk to everyone else, the rationale that the discrimination is purely protective takes a hit. Are we, at least in part, punishing the refuseniks for being antisocial?
To be justified as a matter of both legal and ethical theory, lawful discrimination must serve a higher social good which overrides the rights being infringed. The highest human right is self-possession: the right of agency over what happens to your body. The second highest, arguably, is equality. One or the other is infringed by the public health dictates of COVID, either by mandating vaccination or restricting freedoms for those who refuse.
As independent Senator Jacquie Lambie said in opposing Hanson’s bill: “You have freedom to make a choice, but those choices have consequences.” Her argument, using the analogy of exceeding the speed limit by driving, was that choosing to not get vaccinated is choosing to endanger others, which is fine, but those others (the rest of us) can react as we choose. That, she said, is not discrimination.
But actually that is the definition of discrimination. The real point is that some discrimination we treat as a social evil (racial or gender discrimination, for example) and make unlawful; other discrimination (on the basis of political opinions, for example) we do not. An employer can lawfully choose to not hire someone because of the way they dress or the suburb in which they grew up. We frown on that, but not enough to outlaw it.
So, in fact, as a society, what we have is a choice. One choice it to treat discrimination on the basis of vaccination status as a very bad thing, so bad that we make it illegal. That’s a stretch. The other is to conclude that while it’s hardly optimal to be shutting people out of freedoms because of a lawful choice they made (that’s where Lambie’s speeding analogy falls down: speeding is a crime), we have to do it for the pragmatic imperative of protecting the population from a deadly disease. If so, precisely which freedoms should we be taking away?
I think anyone who could but hasn’t already been fully vaccinated is a selfish, dangerous idiot. I’m not as supremely sure as most people seem to be (one way or the other) about how we should be responding to their intransigence.
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If a man who knows he has HIV, has sex with another person, he can be charged. He does not have a right to do as he pleases. Surely when there is a serious public health issue the community can assert it’s rights over the rights of the individual. No-one is being forced to have a COVID vaccine. The community is simply establishing some conditions, such as where and how you work and socialise, for those who choose not to have a vaccine.
This is why Michael is wrong when he says “that’s where Lambie’s speeding analogy falls down: speeding is a crime”. Because if you’re knowingly Hep C positive and spit on someone, or using your example Alasdair, HIV positive and knowingly infect another, my understanding is we do classify that as assault.
The uncomfortable part about continuing this principle to apply to COVID-19 is that the range of potentially infecting behaviours is much broader than spitting or sex: breathing, walking past someone, using a supermarket trolley, etc.
I wonder how many people have considered that Hanson’s failed Bill was probably not even Constitutional? The states have sovereignty re public health. I suggest any future attempts to bring in such a Federal law would be shot down by the High Court.
As for whether the deliberately unvaxxed ( versus the medically unable) are selfish twats – yep.
Next.
Knowing Hanson, if she had been there she probably would have voted against her own Bill anyway.
Well, the proposer was absent and couldn’t vote on it- did Hanson propose it herself? The minute it didn’t pass- and it was never going to pass- PHON hit the great unwashed up for party donations. It was a fundraiser- on the public’s purse and time- with Morrison’s assistance and blessing. We don’t have a Coalition, we’ve got a threesome.
The constitution gives precedence to federal law whenever it collides with state or territory law, and the High Court has a long (and not very glorious) record of doing all it can to find or invent reasons why federal law should stand even in areas where the states have not given away their sovereignty.
I doubt very much Hanson gives a monkey’s elbow whether her bill is constitutional. It’s a notable feature of the right-wing parties in particular to ignore or even take pride in proposing and where possible passing unconstitutional legislation. It’s good theatre for them, it pleases their base, it stokes the divisions they need, and if it becomes law it can often do mischief for years before the High Court or whoever strikes it down. It is entirely routine politics in the USA at both state and federal level.
It is weird that there are no penalties or sanctions on elected representatives for deliberately putting forward unconstitutional bills. There’s a video clip of US Senator Orrin Hatch from years ago proposing a bill and frankly telling the room that he believes his bill is unconstitutional but wants it voted into law anyway. He, and the rest of his colleagues, have all sworn an oath that explicitly requires them to uphold their country’s constitution. The equivalent oaths in Australia are not as clear, but even so, requiring some respect for our constitution does not seem unreasonable.
It was obviously theatre, however, though I take your point re Federal precedence, this is one area of Constitutional law that the states could very easily challenge. The division of powers in the Federation is is quite clear in this regard. Even Morrison conceded that at the time when states began imposing restrictions. I suggest a decent Constitutional silk would demolish it.
Michael, I appreciate your attempts to have a sensible debate regarding the pros and cons of vaccine mandates.
However, in doing so you risk introducing much arcane, esoteric and abstruse legal argument into a debate that needs to be dealt with urgently. Not only is it a public health issue it is potentially a matter of ‘life and death’ for some.
It has not taken me very long to reach the conclusion that vaccine mandates are, without doubt, a vital necessity in our fight to minimize the spread of the SARS-CoV-2 virus, overloading the health care system and deaths. We cannot, and must not, allow an ignorant, ill-informed minority (at this stage at any rate) to set the public health agenda for the rest of us.
What these anti-vax, anti-mandate hillbillies and troglodytes want to do is to expose the rest of our community to the risk of infection because of some half-baked notion of ‘personal freedom’. What utter selfish, nonsensical balderdash!!
I find it hard to contain my absolute contempt and loathing for these nescient individuals when I write about them. I know that some, perhaps many of them, have personality problems and/or mental health issues. I am in little doubt that the vast majority of them have little or no background in science or medicine. Most seem to have been influenced by dangerous conspiracy theorists. Michael why should we even take the views of such people seriously, as you appear to do in your essay? When we start to allow people like this to set the agenda then we are in serious trouble. We are heading down the path to Trumpism where reality is whatever we want it to be.
I also wonder too, Michael, how many of this anti-vaccination crowd willingly introduce substances such as nicotine, alcohol, illegal drugs and copious quantities of junk food into their bodies on a regular basis without ‘batting and eyelid’?
Finally Michael, if we want to talk about ‘freedom’ at the personal level, then I want to express my desire to be free from having to put my health at an increased level of risk by being wittingly or unwittingly in the presence of unvaccinated cranks. And as far as I am concerned, my right to do everything that I possibly can within reason to stay virus free overrides their right to spread the virus (and their insane ideas) around in society.
I’m with you, brother. If you want to be part of a society, you need to accept rules. Even anarchy has necessary conventions. No society can function if we all individually do whatever we feel like doing. Even arbitrary rules (I’m not allowed to drive on the right side of the road) often serve a useful social purpose. If you want absolute freedom (including the freedom to die if you fall sick), then go and live by yourself on some deserted island.
Michael, I agree with your point that nothing is absolute, not rights and not obligations. But those who have no medical reason to refuse vaccination, and do so on the basis of some bullish*t freedom argument, are saying they do not want to fully participate in a decent society. They have made a choice to endanger others with their lawful refusal. So they should not expect the same social licence as those who have opted for decent society.
As for those with genuine medical reasons to not be vaccinated, then it should be mandated that they wear masks everywhere, although I recognise that policing that mandate is not easy outside premises, public transport etc. If they cannot protect others by being vaccinated, then they must take reasonable steps to protect others.
As for the idiot refuseniks, I am entirely comfortable with them choosing to be subject to social consequences, in employment, entertainment, travel and dining and carousing in public. In my view, there has to be a consequence for what is ignorant and selfish antisocial conduct.
No carousing for anti vax! 🙂
Thank you Michael, this article has given me much food for thought. I would be very interested to get an idea of the actual proportion of the cant vaxes and the won’t vaxes. I have seen quotes from various medical experts suggesting the proportion of cants among the total population is very small – although small numbers do not make small injustices. In some ways I think of the wont vaxes (or vax bludgers) in the same way as I think of tax evaders; they want the benefits of living in our community without paying their fair share.
Perhaps we need to look at preventive and retributive measures…
Then there is…
3. Vax-hesitant – you want to get vaccinated but you want to use a vaccine using a technology with proven safety like the flu jab. Something like Novavax that has been sitting in the TGA approval process for months. Or Covax-19. And you’re wondering why AZ and Pfizer with historically unproven technology could be fast-tracked but Novavax isn’t.
Spot on – but nobody wants to look at this, just want to hate on people
Novavax as a company is as far from “historically proven” as you can possibly get.
They have existed for decades and never once actually sold a vaccine.
No wonder the TGA are having a good hard look at them!
They’ve literally never done this before!
Yes, sometimes the simplest explanation is the most correct-
AZ uses the same technology as the flu vacc. It isn’t a more modern mRNA vaccine. Who knows what the ‘won’t-vac’ will believe about Moderna. But I’m not sure they will rush for anything at all
Rather what they believe about novovax.
Why don’t we make that step really, really simple. By asking the experts. Therapeutic Goods Administration? That’s expert enough for me.
Why on earth would you want to second guess such a complex process?
Can I please receive compensation from filthy smokers polluting my air, particularly in places they are NOT allowed to smoke!
That principle of tort should apply to the atmosphere, water & planet in general.
Instead they are treated as the garbage dump of the wealthy – which is how they became wealthy, avoiding responsibility, privatising profits and socialising losses.
Should that be the case we would have a big bill to pay. If we agreed on the principle that those who most profited should pay the largest share of the clean up bill, perhaps most of us would not find the burden too onerous. Even so, we might have to consider giving up a few extravagances; nuclear submarines comes to mind, as does negative gearing for housing investment loans, private health insurance or massive subsidies for exclusive private schools. Oh, and did I mention massive subsidies of fossil fuel extractors?
Consider me onboard.
Sounds fair.
The relative numbers of “can’t” and “wont” vaxxers are certainly relevant to the mandate question. It seems unlikely that the proportion of “can’t vaxers” would be high enough to prevent herd immunity and mandates for everyone else might enable this to be achieved.
Sure that letter is “a”?
There is another vowel that would be more appropriate Don!