Very few people are willing to say they are anti-vaccination per se, although there’s no law or moral code against being so. Vaccination is just a tool of public health. You can object to bike helmets because they mess up your hair, but being part of a society includes accepting that if the law says you have to wear one for the greater good, you do.
Vaccination is a harder question because it is medically intrusive. However, there’s no universally recognised human right that overrides the social principle that may dictate vaccination if that’s what is necessary.
Necessity is where we’re getting tangled on COVID vaccination, because we simply don’t know if it’s necessary or not. Unfortunately we’re not having the conversation that would provide a clear answer, which is essentially a pragmatic one based on the best available science. Instead we have opposed views which call on incompatible rights (my right to not get COVID, your right to not get vaccinated).
That way lies disaster, as exemplified by Jennifer Kimber and the Fair Work Commission. Kimber, a receptionist at an aged care facility in New South Wales, refused to get an influenza vaccine when that became mandatory for aged care workers last year, and was sacked.
The FWC upheld that outcome, but deputy president Lyndall Dean dissented. The case did not involve COVID vaccination, except to the minor extent that Kimber had also belatedly indicated she might not want to get that either, reinforcing the opinion of the FWC majority that she actually “holds a general anti-vaccination position”. And making her reinstatement pointless, because COVID vaccination is now also mandatory for aged care workers.
Although the case wasn’t about COVID, Dean decided this was as good an opportunity as she was going to get to write 84 paragraphs into her dissenting decision about what she described as “the introduction of a system of medical apartheid and segregation in Australia”. And she went for it.
Dean is not anti-vax, apparently, but she sure isn’t pro-vax either. Her concerns are couched in the language of human rights (such as article 7 of the International Covenant on Civil and Political Rights, which provides that “no one shall be subjected without his free consent to medical or scientific experimentation”).
Whoa. Experimentation? Yes, because the Therapeutic Goods Administration has only ever given provisional approval to the COVID vaccines, which means by definition that they are still experimental and WE ARE ALL PARTICIPATING IN A CLINICAL TRIAL (OK, she didn’t capitalise that bit but it does jump off the page).
To underline which territory we’re in here, there’s a reference to the “Nuremburg code, formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII”.
Next: can employers mandate COVID vaccination on workplace health and safety grounds? No. Why? Because the only risk is from people who have COVID:
There is no risk associated with a person who is unvaccinated and does not have COVID …
Employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.
As for the legal validity of the public health orders, made by state government ministers under legislation, again no:
[Public health orders] cannot lawfully be used in a way that is punitive, and human rights are not suspended during states of emergency or disaster. The current PHOs have moved well past the minimum necessary to achieve public health aims, and into the realm of depravation.
Her word, not mine. Depravation: the state of being depraved or degenerated.
That the governments have gone too far is illustrated by references to the 17,385 people who died in Australia with influenza or pneumonia in 2019 (footnote: only 600 or so died of those diseases); and in the same year, there were 4344 paedophiles on the NSW child protection register who don’t “have to declare that they are paedophiles before entering a business”.
Also: anyone who dismisses an employee or refuses entry on the basis of COVID non-vaccination will breach the Disability Discrimination Act. Quoting as her reference an article in The Spectator by a retired solicitor, Dean repeats an entirely incorrect interpretation of that law to support her case.
Her final comments are epic. Vaccination mandates “are not measures to protect public health” and “do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test.”
Well, not quite. According to the Royal Australian College of General Practitioners, studies have shown a correct positive rate of 40% to 74% in people without symptoms, meaning a pretty substantial proportion of false negatives are likely with rapid antigen tests.
Not that Dean is necessarily wrong about her concerns (apart from the disability discrimination part), although her excursion through most of the tropes of the anti-vax school don’t help her cause in my view.
The problem is that the refusal by governments to address the practical question of mandatory vaccination and legislate the solution (whatever that is) continues to leave the field wide open to crackpots and enthusiasts — and to a judicial officer who has been itching to lay out her thesis, despite its irrelevance to the question she was commissioned to answer.
Random think-pieces and arbitrary decisions are no way to address the biggest public health question in our history.
Thanks for that summary of Fair Work deputy president Lyndall Dean’s dissent.
What are Dean’s qualifications and experience for that role? I ask because the overwhelming impression from her dissent is that she has a shaky understanding of law, a cavalier attitude to picking evidence and entirely lacks the disinterested (not to be confused with ‘uninterested’, that’s quite different) stance that is a basic requirement in a judicial role. On the contrary she argues, incompetently, as an advocate. Not so much a dissent, it instead reads as polemic.
Dean was appointed to the Fair Work Commission by Michaelia Cash in 2016, who said Dean “is highly regarded as a workplace relations lawyer and brings high level analytical, negotiation and conflict resolution skills to this role, as well as a demonstrated capacity for complex decision making.”
Well, now we can see how accurate that is.
Indeed. She seems to lack competence of any sort though she is described as a workplace lawyer. Michaelia Cash appointed her, perhaps that is the trouble.
The 4th appointee by Shrew Cash to the FWA Commission. There will be no more unpleasant 8 page reports on wage theft and slavery of visa holders from the Ombudsman if the appalling Michaelia Cash has her way.
15 October 2020
The Fair Work Ombudsman’s 2019-20 Annual Report reveals a record sum of money recovered for underpaid workers across the country during the past financial year.
In total, $123,461,548 was recovered for 25,583 employees, which included $90 million in underpayments that were self-reported by employers.
More than $56.8 million was back-paid following extensive investigations and Enforceable Undertakings negotiated with the FWO.
Fair Work Ombudsman Sandra Parker said that significant underpayments from large corporate entities had been a new challenge for the FWO over the past year and the trend continues.
“The prevalence and the scale of big corporations underpaying their workers is extremely disappointing and concerning. We have established a dedicated taskforce within the Fair Work Ombudsman to investigate these matters,” Ms Parker said.
“I strongly encourage the CEOs and boards of Australia’s largest corporations to ensure they are complying with workplace laws and to advise us immediately if they identify significant underpayments.”
The FWO had 72 matters before the courts as of 1 July 2020, in many cases alleging exploitation of vulnerable workers.
There were 54 new litigations filed – more than double that of last year – and 50 per cent of those involved businesses in the fast food, restaurant and café sector.”
So you can see how vital it is to stack the courts.
Nice response, SSR, to Michael’s excellent piece. Thank you. And your query in relation to Dean’s qualifications and experience is spot on!
Yes. Astonishing really. “Analytical skills”?? The right against involuntary medical experimentation is based on cases such as Nazi doctors freezing people to see whether they could recover by having sex, or by being given pathogens to see what effect these had. Experimentation with drugs occurs in drug trials. Provisional TGA approval does not make a drug that has been trialled “experimental” it makes its approval subject to subsequent withdrawal if it’s effects are shown to be unacceptable, as in the case of Thalidomide. A person with analytical ability would recognise the difference.
As to knowledge of law, we can only be thankful that this “highly qualified” person has never presided over a dangerous driving case. She would dismiss any case unless someone were actually injured. Being a danger to patients and fellow medical workers does not require that you actually infect them with Covid but that there is an unacceptably high risk that you will infect them with Covid. The vaccination is required of medical workers to lower, though not eliminate the risk of infection, from an unacceptable level, just as reducing your speed in a car might be required to lower, though not eliminate, the risk of injuring someone as a result of your driving from an unacceptable level. To understand this also also requires analytical skills.
My question is: how can we accept a government that makes such incompetent appointments to positions of public responsibility?
I don’t know if you spotted it, but Michaelia Cash made that appointment the day before the Government went into caretaker mode prior to the 2016 election. The timing tends to smell of being a political appointment, rather than in the public interest or the interests of the commission itself, but that might just be my take on it.
That explains a lot SSR. A late, day before caretaker mode appointment also explains muchly. The AAT is also filled with such appointments.
This judgement seems to place the views of a poorly informed judge above the medical profession.
My response to what she says is from a private/ public health rather than a legal perspective. She must be too young to remember the kids with legs in calipers from polio, the children born with physical and mental infirmities as a result of their mother having rubella during pregnancy, not to mention that smallpox, a major killer and disfigurer of people is now regarded as eradicated due to vaccination around the world. An aged care home that let an unvaccinated person into the home to potentially spread flu amongst a vulnerable population would rightly be given a very hard time.
When I did (clinically related) research work in hospitals, I certainly had to have a TB inoculation (at least, that’s what I recall). Nothing new in some mandated health measures for vulnerable populations afaik. Wouldn’t be surprised that WorkSafe legislation will back up vaccination requirements in certain industries/positions.
The community care nurse who looked after an aged family member was required to have an annual flu shot as a condition of employment, but not required to have a Covid vaccine.
Yet
Thanks again Michael for your article, as usual very informative. I really like the last two paras:
The problem is that the refusal by governments to address the practical question of mandatory vaccination and legislate the solution (whatever that is) continues to leave the field wide open to crackpots and enthusiasts — and to a judicial officer who has been itching to lay out her thesis, despite its irrelevance to the question she was commissioned to answer.
Random think-pieces and arbitrary decisions are no way to address the biggest public health question in our history.
When her Coalition farcical appointment is finished, maybe she could be parachuted into a safe seat in some Liberal electorate. As per 2019 where Crikey reported that the Coalition government had appointed 17 former LNP state and federal parliamentarians, 6 unsuccessful party candidates and at least 28 Liberal staffers to the AAT.
Is this woman related to Rowan Dean, Sky After Dark fact-challenged shock jock? They both seem to share the same conspiracy theories and disregard for impartiality.
Wow- wouldn’t it be wonderful if we had a government that stuck their neck out for the good of their citizens and spoke loudly enough to drown out the dissenters. Do nothing Morrison won’t stand up for anything but will rely on Murdoch to talk down Labor enough for him to win the next election.