All employers in Australia need to educate themselves and think deeply about their next move.
1. The Right to Work
Article 23 of the Universal Declaration of Human Rights clearly states: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment; everyone, without any discrimination, has the right to equal pay for equal work; everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection; everyone has the right to form and to join trade unions for the protection of his interests”.
Article 6 of the International Covenant on Social and Cultural Rights states that “the States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work”.
Although Article 4 of the same instrument allows rights to be limited in a state of emergency, these limits must have time frames and review dates, stating: “the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”.
Article 7 ensures that certain rights to work and a fair wage cannot be suspended.
The Australian Human Rights Commission affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work while emphasising the importance of work for personal development as well as for social and economic inclusion.
It is unlawful to discriminate against someone based on their medical history or current record. As an employer, you may face a claim against discrimination.
At the time employees signed their contract, there was never consent on the employees’ part to be mandated or to have any form of injection or vaccine at any time after entering into the employment contract. It has been without the consent of the employee to which these new provisions and terms of the contract were introduced.
In fact, if an employer is unable to demonstrate conditional changes to employment arrangements were a “reasonable instruction”, the employee may pursue damages for constructive unfair dismissal against the employer.
All employees should seek specific legal advice for their specific set of circumstances.
Employees are left with some critical key medical, ethical, legal and human rights questions which employers may be held labile for into the future.
2. The Efficacy of an Experimental Vaccine
According to the Australian Law Reform Commission; ‘Informed consent’ refers to consent to medical treatment and the requirement to warn of material risk prior to treatment. As part of their duty of care, health professionals must provide such information as is necessary for the patient to give consent to treatment, including information on all material risks of the proposed treatment.
Failure to do so may lead to civil liability for an adverse outcome, even if the treatment itself was not negligent.”[2]
The vaccines which you require your employees to take are experimental in nature and have not been tested in the required clinical trials to ensure their full safety and efficacy. According to the Therapeutic Goods Administration (TGA), all four COVID vaccines available in Australia have only provisional approval status with the TGA, and the COVID vaccines do not minimise your employee’s chances of getting COVID.
The Biosecurity Act 2015 (Cth) prohibits the use of force for vaccinations under section 95, stating: “Force must not be used against an individual to require the individual to comply with a biosecurity measure”.
The Biosecurity Act 2015 (Cth) also prohibits vaccination or treatment without meeting the stringent requirements of an individual Human Biosecurity Control Order under section 92.
There is a serious question as to the efficacy, safety and quality of the specific vaccinations required to be taken, which is evidenced by the Therapeutic Goods Administration’s own data as to the fact that these vaccines are untested, do not prevent COVID, they do not get rid of the symptoms, and they do not stop contractability. The same government body has recorded hundreds of adverse health reactions to the same vaccines, including deaths.
It can be said with certainty that COVID vaccines are experimental by definition, as data as to the effects of the vaccines are still being collected in ongoing clinical trials.
In fact, Reports such as the “Operation COVID Shield – A Public Interest Report” as well as The Vaccine Death Report lay out the statistics, data and concerns in relation to the adverse health effects of this experimental vaccine.
It is a fact that no long-term safety data exists for these vaccines.
The Australian Charter of Rights in Healthcare, the National Safety and Quality Health Service Standards, the National Framework on Advance Care Directives, publications on communication with patients, the ‘General Guidelines for Medical Practitioners on Providing Information to Patients’ – National Health and Medical Research Council, 2004; the ‘Communicating with Patients: Advice for Medical Practitioners’ – National Health and Medical Research Council, 2004, and the national codes of conduct of health practitioners all enforce your employee’s rights.
In relation to the efficacy of the vaccine, the following questions may, and should be asked:
- Can you please advise me of the approved legal status of any required drug and confirm that it is not experimental; Can you please provide details and assurances that the required drug has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests were publicised for consideration;
- Can you please advise a full list of the contents of the required drug I am to receive, and if any are toxic to the body;
- Can you please fully advise of all the adverse reactions of the vaccine I am required to take since its introduction;
- Can you please confirm that the vaccine you are advocating is not experimental MRNA gene altering therapy;
- Can you please confirm that I will not be under any duress from yourself, as my employers in compliance with the Nuremberg Code;
- Can you please advise me of the likely risk of fatality, should I be unfortunate to contract COVID-19 and the likelihood of recovery.
Once I have received the above information in full, and I am satisfied that there is no threat to my health, I would be happy to accept your offer to receive the treatment, under the following conditions:
- You confirm that I will suffer no harm. Following acceptance, your offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any potential injuries which may occur to myself, or the affect on my family;
- In the event that I should have to decline to take the vaccine you are proposing, please confirm that this will not compromise my employment status, and that I will not suffer discrimination or prejudice as a result of my choice to withhold my consent.
The Australian Government Immunisation Handbook is clear: “[vaccines] must be given voluntarily in the absence of undue pressure, coercion or manipulation”.
The Nuremberg Code, an ethics code (1947) has as its first principle the willingness and informed consent by the individual to receive medical treatment or to participate in an experiment: “The voluntary consent of the human subject is absolutely essential. This means the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, whoosh the intervention of any element of force, fraud, deceit, duress, overarching, or other ulterior forms of constraint or coercion’s and shoaled have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision”.
3. Liability – whose is it?
The Occupational Safety and Health Act 1984 in Western Australia, under the duties of employers in Section 19 clearly states that: “An employer shall, as far as is practicable, provide and maintain a working environment in which the employees of the employer are not exposed to hazards”.
A mandated experimental vaccination of any sort may fit into the definition of “hazard” if any side effects ensue after your employee takes the vaccine.
Can you guarantee to your employee that they will not be harmed by taking this experimental vaccine, and, should something go wrong, are you willing to be held liable?
Section 35A of the Occupational Safety and Health Act in WA prevents employers from discriminating against a worker for raising safety concerns or carrying out their role as a health and safety representative, stating: “An employer or a prospective employer must not cause disadvantage to a person for the dominant or substantial reason that the person is performing or has performed any function as a safety and health representative; and detrimentally alters the person’s employment position; or detrimentally alters the person’s pay or other terms and conditions of employment”.
Being put into a position to choose between taking a medical intervention that may not be safe or losing a job directly fits into the description of economic coercion.
I am concerned as to the lack of liability either the pharmaceutical companies and our politicians are taking for this experimental drug. Will you be taking the liability, should anything go wrong?
Compensation and damages are a legal right of all those experiencing adverse health effects from medical experimentation.
4. Medical Human Rights
Your employee’s inalienable rights are reserved.
Your employee has a right to bodily autonomy and informed medical consent.
There is a strong legal precedent that protects bodily autonomy, protects your employee from coercion and duress, and protects their right to make an informed medical decision with full consent.
The Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights produced by the United Nation’s Economic and Social Council explicitly state that:
“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 to recognition as a person before the law, and freedom of thought, conscience and religion. These rights are non-derogable under any conditions even for the asserted purpose of preservation the life of the nation.”
The United Nations Human Rights Committee has explicitly emphasised that the restrictions that the Covenant places on Courts such as Australia’s “underlines the great importance of nonderogable rights”.[3]
The fundamental importance of protecting these inalienable rights to boldly autonomy and full medical consent is affirmed by international and national courts.
Article 6 of the Universal Declaration on Bioethics and Human Rights (2005) states: “Any preventative, diagnostic and therapeutic medical intervention is only to be carried out with the proper, free and informed consent of the person concerned, based on adequate information”.
According to the Australian Human Rights Commission, “if there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. The need for vaccination should be assessed on a case-by-case basis, taking into account the nature of the workplace and the individual circumstances of each employee.
There are medical reasons why some people may not be able to receive a COVID-19 vaccination or may choose not to in their circumstances, including because of protected attributes such as pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for certain COVID-19 vaccinations at all, or for shorter periods of time than older Australians.
The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in employment. ‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities.
A strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA.
In Australia, our Constitution ensures that vaccines cannot be mandated.
This has been settled in case law.
Civil conscription was first considered by the High Court in 1949 in British Medical Association v Commonwealth,[4] with Justice Webb noting: “When parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, the doctor shall render the patient a special service unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription”.
Chief Justice French and Justice Gummow, in the Hight Court case Wong v Commonwealth; Selim v Professional Services Review Committee[5] held that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services”.
Willingness and the exercise of choice have been defined in case law clearly in Australia.
In the matter of Bowater v Rowley Regis Corp,[6] Lord Justice Scott notes: “…. A man cannot be said to be truly ‘wiling’ unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but in the absence from his mind of any feeling of restraint so that nothing shall interfere with the freedom of his will”.
The highest Court in Australia has recognised that Parliament cannot lawfully or indirectly create a situation where vaccines are mandated:
Justice Webb in British Medical Association v Commonwealth noted: “If parliament cannot lawfully do this [mandate vaccines] directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no choice but compliance”. [7]
The High Court has acknowledged the equality of all persons under the law before the courts.
JJ Dean and Toohey in Leeth v Commonwealth (1992) 174 CLR 455 at 8 referred to the Preamble to the Constitution to support their view that the principle of equality is embedded impliedly in the Constitution. They argue that “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government”.
On this basis, those choosing not to take the vaccine cannot be discriminated against.
Australian courts have acknowledged that treatments are subject to choice and consent are to be respected, and that doctors have no right to object to such a response.
Lord Justice Mustill in Airdale National Health Service Trust v Bland [1993] AC 789 at 889 stated: “If the patient is capable of making a decision on whether to permit treatment and decides not to permit, his choice must be obeyed, even if on an 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 may ensue”.
In addition to these rights and liberties afforded to me under the law, please be advised that in the matter of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd (C2021/2676), Deputy President Dean expressed her dissenting judgment by ruling for the applicant by acknowledging the validity of medical exemptions for the flu shot for staff working in an aged care facility at 81-82, and related it’s application to the COVID vaccine, noting that mandatory COVID vaccinations impinges on other laws, liberties and rights that exist in Australia at [102].
Deputy President Dean related the significance of her ruling to the COVID vaccine noted that mandatory COVID vaccinations impinges on other laws, liberties and rights that exist in Australia at [102]. She goes on to note: “Consent is required for all participation in a clinical trial. Consent is necessary because people have a fundamental right to bodily integrity, that being autonomy and self-determination over their own body without unconsented physical intrusion. Voluntary consent for any medical treatment has been a fundamental part of the laws of Australia and internationally for decades. It is legally, ethically and morally wrong to coerce a person to participate in a clinical trial.
Coercion is not consent. Coercion is the practice of persuading someone to do something using force or threats. Some have suggested that there is no coercion in threatening a person with dismissal and withdrawing their ability to participate in society if that person does not have the COVID vaccine. However, nothing could be further from the truth.
All COVID vaccines in Australia are only provisionally approved, and as such remain part of a clinical trial.”
“All COVID vaccines in Australia are only provisionally approved, and as such remain part of a clinical trial” [at 116] The Nuremberg Code (the Code), formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII, is one of the most important documents in the history of the ethics of medical research.
The first principle of the Code is that “The voluntary consent of the human subject is absolutely essential”. The Code goes on to say that “This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or another ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision….”
Informed and freely given consent is at the heart of the Code and is rightly viewed as a protection of a person’s human rights.
Deputy President Dean also states in her dissenting judgement at 110 that “COVID vaccinations, in accordance with the Australian Government’s policy, must be freely available and voluntary for all Australians” … and that “Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia” [at 111].
5. Government Powers as to Mandated ‘Orders’ or ‘Directions’
In the case of Patrick v PMC AAT 5 August 2021, the National Cabinet, which is the entity making decisions in relation to COVID was deemed unlawful. Therefore, all decisions made by the National Cabinet in relation to COVID, lockdowns, quarantines and vaccines are unlawful and violates parliamentary due process and delegated authority as to Federal and State powers.
Therefore, the decisions made within the national Cabinet are null and void.
Further to this, currently, as of Monday, 25th of October 2021, Public Health Orders only exist for the following industries: Aged Care Facilities; Health Care Workers, Quarantine Facility Workers and Port Workers. These Orders have been triggered by the Public Health Act 2016 WA sections 157 (1)(e) and 157(1)(k) as well as sections 180 and 190(1)(p).
Section 180 deals with powers relating to movement and evacuation.
Section 190(1)(p) gives rise to public health incident powers.
Section 157 deals with serious public health incident powers, and subsections (e) and (k) speak about requiring information for the purposes of investigations and to take actions to prevent, control or abate a serious public health risk respectively.
It is actually section 157(j) which directs a person to undergo a medical treatment or be vaccinated. This is not listed within the Orders as one of the powers used.
Therefore the Order to ‘mandate’ vaccines are null and void.
Section 83.4 of the Criminal Code Act 1995 (Cth) realties to interfering with political liberties states: “Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person any political right or duty shall be guilty of an offence”.
Any government mandates that allow forced vaccinations are unconstitutional under section 51(xxiiiA) of the Australian Constitution, despite any purported authority under Commonwealth, State, or Territory Laws.
The above provides the legal, human rights and other evidence and provisions to support employees from not complying with vaccine mandate ‘orders’.
Yours sincerely,
Employees of Western Australia.
This document does not constitute legal advice for your specific personal legal circumstance.
[1] Andrea Tokaji is a Legal Academic, a Human Rights Advocate and a refugee from Communism.
[2] Rogers v Whitaker (1992) 175 CLR 479.
[3] Human Rights Committee General Comment No. 24; Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or to the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant, 52nd sess, Un Doc CCPR/C/21/Rev.1/Add.67 (4 November 1994), para 10.
[4] (1949) 79 CLR 201 [at 295].
[5] (2009) 236 CLR 573 at 62.
[6] [1944] KB 476 at 479.
[7] (1949) 79 CLR 201 at 293.
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