Australia News & Commentary

Relief Is Coming for the Hesitant

"Freely given consent to any medical treatment, particularly in the context of a clinical trial, is not optional. Coercion is completely incompatible with consent, and denying a person the ability to work and participate in society if the person does not have a COVID vaccine will unquestionably breach this fundamental and internationally recognised human right. Can COVID vaccinations be mandated by employers on health and safety grounds? The short answer to this question, in almost every case, is no."
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By Tim Grant, Matthew Littlefield, and Giuliano Bordoni

The last two years have been a wild ride, one that most of us wished was over, but we suspect it still has some twists and turns to come.  However, it is important that we continue to confront a disturbing aspect of these last two years: the shunning, mocking, and condescending discussions aimed at the covid curious and covid vaccine-hesitant and the quickness with which many want to override the consciences of such people. 

Rather than seeking to understand this portion of society, many Aussies, including church leaders, have fallen into lockstep with mainstream media personalities and politicians who have demeaned them. To say this is counterproductive is an understatement. It has been causing serious fractures in our society which have filtered through to workplaces, community halls, churches, and families. Those in agreement with the majority’s position only needed to do one simple thing; acknowledge that those who were concerned about the trajectory of our society have valid reasons for their concerns. Many leaders struggled to even do that. Many who held a contrarian opinion remained silent, for fear that they would be labelled as “anti-vax,” or “right-wing,” or “conspiracy theorists,” etc, etc. 

The speed with which our society has overridden long-held norms should have given many people cause to be considerate with those who are uncomfortable with the changes. It is especially incumbent on church leaders to walk in an understanding way with such people. We are taught about the wisdom of consultation and relationships when seeking to bring change in our congregations, and we know the dangers any community group can face, when change happens too fast, and people feel like they are losing any say. It causes fractures that are unnecessary. 

However, relief is coming for the hesitant. While this relief is building slowly, it is important to note that there are people in positions of power who are acknowledging that the hesitant should not be coerced. We had hoped the Church could lead on this front, but this, unfortunately, hasn’t happened. Instead, leadership has come from the Fair Work Commission in the person of Deputy President Lyndall Dean. Even though Dean wasn’t in the majority in this particular decision, she stated

Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.

This call for justice should’ve initially come from those who know the goodness and truth of Jesus. But, to paraphrase the Biblical author in this particular context, if those who should cry out in favour of the truth won’t do their job, God will raise other voices to uphold his justice, even the voice from the cold stone of the law of the country (Luke 19:40). 

One of the most fascinating things about Australian society is that not only has much of the nation forgotten its Christian roots but so has much of the Church. But to a large degree our laws still reflect these influences. Those who know our western history know how much the considerations of conscience were an important concern of medieval theologians and Protestant Reformers, and how these traditions combined to make the West so great. The West learnt, through long struggles and many difficulties, that it was better to convince people’s consciences, rather than coerce them. This is very significant since there is much in our law which reflects these lessons. 

Here are some of the assessments of the Deputy President Dean’s dissenting decision in this recent case dated 27 September 2021, and taken word for word from her dissenting ruling:

Mandatory vaccination cannot be justified

[110] COVID vaccinations, in accordance with the Australian Government’s policy, must be freely available and voluntary for all Australians.

[113] Before turning to a consideration of these reasons, it is important to set the context with some information that is publicly available and should be uncontroversial:

a. Unlike many other vaccinations such as those used to stop the spread of tetanus, yellow fever and smallpox, COVID vaccinations are not designed to stop COVID. They are designed to reduce the symptoms of the virus, however a fully vaccinated person can contract and transmit COVID.

b. The science is clear in that COVID is less serious for those who are young and otherwise healthy compared to those who are elderly and/or who have co-morbidities. In other words, the risk of COVID is far greater for those who are elderly or have co-morbidities. Around 87% of those who have died with COVID in Australia are over 80 years old and had other pre-existing illnesses listed on their death certificates.

c. The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.

d. The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial 20.

e. There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.

f. The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.

Consent is required for participation in clinical trials

[114] 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.

[115] 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.

[116] All COVID vaccines in Australia are only provisionally approved, and as such remain part of a clinical trial 21. This is not part of a conspiracy theory. It is a fact easily verifiable from the website of the TGA, Australia’s regulatory authority responsible for assessing and registering/approving all COVID vaccines before they can be used in Australia.

[117] The requirement for consent in this context is not new and should never be controversial. The Nuremburg 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.

[118] 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 other 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….”

[119] 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.

[129] Freely given consent to any medical treatment, particularly in the context of a clinical trial, is not optional. Coercion is completely incompatible with consent, and denying a person the ability to work and participate in society if the person does not have a COVID vaccine will unquestionably breach this fundamental and internationally recognised human right.

Can COVID vaccinations be mandated by employers on health and safety grounds?

[130] The short answer to this question, in almost every case, is no.

Deputy President Dean finishes with some final comments that are helpful in shifting perspectives on the ‘vaccine hesitant,’ along with the attitudes and systems of coercion that are causing the hesitant to feel isolated and alienated from society:

[179] Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. 37 A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.

[180] The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they 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. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.

[181] Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.

[182] 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.

[183] Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.

[184] Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.

This assessment is a brilliant example of the grace behind Romans 14, and its honouring of the importance of the human conscience, and how we should navigate this subject in both the Church and society. It also brings to mind Romans 2:13-15a: 

13 For it is not the hearers of the law who are righteous before God, but the doers of the law who will be justified. 14 For when Gentiles, who do not have the law, by nature do what the law requires, they are a law to themselves, even though they do not have the law. 15 They show that the work of the law is written on their hearts, while their conscience also bears witness…” 

It is as though this Fair Work Deputy President has read these words of God; perhaps she has. Her ruling is an example of the New Testament commands to love thy neighbour by honouring the conscience of those with whom we disagree. This is all the writers of the Ezekiel Declaration were asking for, and this is exactly what this Fair Work commissioner has upheld as of vital importance. 

Deputy President Dean should be commended for maintaining a Biblical ethic in regards to her position on mandated ‘clinical trial’ vaccines, on the vaccine-hesitant, and on vaccine passports. Whether or not Dean has a faith, she has arrived at conclusions that are consistent with a Biblical worldview.

First, she acknowledges that it is “morally wrong to coerce a person to participate in a clinical trial.” She references the “Nuremberg Code” as defence of her conclusions, but the assessment of Dean and the Nuremberg Code are both reflections of Biblical wisdom.  It is wise not to be hasty or forceful on important matters (Proverbs 21:5; Proverbs 13:16).  

Second, she acknowledges that the “’vaccine-hesitant’ are often well educated, work in the healthcare industry and have genuine concerns and questions which cannot be adequately answered at this stage. Is it not legitimate to afford understanding to people when we are in this situation? We cannot know what we do not yet know.  Again such a position reflects the wisdom of Proverbs: “The heart of him who has understanding seeks knowledge” (Proverbs 15:14).  

Christians are implored to arrive at an understanding through seeking knowledge, a process that may include waiting for completed medical trial results, or a vaccine not developed using aborted fetal cells, for example. All of which would take longer than the current arbitrary deadlines to be vaccinated. 

Third, and final, Dean identifies vaccine passports for the divisive system that it is, “an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.” We stand by this position and strongly believe Dean is correct. History will likely not look favourably on those who support such measures. 

Would not a vaccine passport system put a believer at odds with the teaching of Romans 14, Galatians 2:11-14, Colossians 3:11 and James 2:1-7?  Dean argues that a vaccine passport system is the antithesis of our democratic way of life.  Would it not also be the antithesis of the gospel, since, as already argued above, much of the laws that support our democracy have the word of God as its very foundation? 

God’s means of grace in raising a prominent voice for the voiceless minority of vaccine-hesitant Australians has regrettably not come primarily through the churches, but through a dissenting decision from a Deputy President of the Fair Work Commission.

Our prayer is that God will continue to raise up many other Lyndall Deans who are not afraid to speak the obvious truth that many in positions of power have avoided: that people should not be coerced. We trust that politicians, mainstream media, and ministers of the gospel would take note of the important outcomes in this document and be encouraged to start to speak up in their sphere of influence. The justice, mercy and grace of the minority assessment of Deputy President Lyndall Dean should be the majority assessment of the church. 

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