Australian governments are now starting to impose vaccination orders as the way out of lockdowns. They have decided that people who choose to not get vaccinated will have their basic rights restricted, including in their freedom of movement and association.
Prime Minister Scott Morrison has indicated that the unvaccinated must be treated differently to the vaccinated. Announcing a “four-phase” plan, he says that “special rules” for the unvaccinated will be applied.
In practice, this means that the unvaccinated will have fewer freedoms to travel and to get together with their loved ones, or even to go to restaurants and attend football matches.
In Western Australia, any resident who leaves the State for New South Wales and is seeking to return “can apply to do so on compassionate grounds, subject to the following conditions … Have received at least one dose of a COVID-19 vaccine…”, an August 19 Facebook post from Premier Mark McGowan reads.
Clive Palmer has recently announced that he will be launching another High Court challenge to WA’s border control policy on the grounds that it is constitutionally invalid. According to a UAP press release, he apparently argues that the actions of the WA Premier breach section 117 of the Australian Constitution according to which “[a] resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject … resident in such other State.”
However, this does not appear to be the relevant provision because the WA border control policies do not involve the type of discrimination that section 117 prohibits.
“[T]he discrimination prohibited by s 117 is thus discrimination on the basis of residence of a different State”. In other words, discrimination based on residence in another Australian State would need to be established in order to prove a breach of section 117.
However, the WA authorities have determined that the vaccine requirement applies equally to non-residents and residents of the state alike, thus creating a considerable hurdle in proving a breach of section 117.
Therefore, when it comes to violating fundamental legal rights, these local authorities make no discrimination. They are “equal opportunity” providers.
Curiously, Palmer has already challenged the WA border control restrictions. Section 92 of the Constitution informs that interstate trade, commerce, and intercourse “shall be absolutely free”. However, in Palmer v Western Australia (2021), Chief Justice Kiefel and Justice Keane controversially stated that the guarantee of absolute freedom in that provision “is not really absolute” and it should “not be taken literally”.
But returning to the issue of vaccination passports, instead of relying on section 117, the relevant provision appears to be section 51(xxiiiA) of the Constitution. This section indicates that no medical treatment should be imposed on anyone without his or her informed consent.
This view is supported by the Nuremberg Code – an ethics code – relied upon during the Nazi doctors’ trials in Nuremberg in 1947. This Code has as its first principle the idea that “the voluntary consent of the human subject is absolutely essential. 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”.
Of course, subjecting the unvaccinated citizen to travel bans violates the democratic principle of equality before the law. In Leeth v Commonwealth (1992), Justice Deane and Justice Toohey argued that the principle of equality is embedded impliedly in the Constitution. According to them, “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.”
The classic definition of judicial power, from which numerous court decisions have proceeded, is found in the 1909 case of Huddart, Parker & Co Pty Ltd v Moorehead. There the nation’s first Chief Justice, Samuel Griffith, explained that the words ‘judicial power’ as used in section 71 of the Constitution mean the power of the courts to protect fundamental rights related to life, liberty or property.
Chief Justice Griffith’s definition referred to three basic elements of the judicial function: controversy; impact on individual rights; and conclusiveness of the decision. That so being, one of the primary goals of the judicial function is to protect citizens against any adverse impact on their enjoyment of fundamental legal rights, including freedom of movement and freedom of association. Indeed, in the ACT case in 1992 Justice Gaudron referred to “a free society governed in accordance with the principles of representative parliamentary democracy” as entailing “freedom of movement, freedom of association and freedom of speech”.
One would expect the present Court to acknowledge its own precedent, as well as that border restrictions on the grounds of vaccination, are a profound violation of the Australian Constitution. However, that ruling in the first Palmer case revealed that the judicial elite is unlikely to challenge the illiberal political establishment.
Be this as it may, we should have no doubt that these “vaccine passport restrictions” unconstitutionally impinge on the democratic principle of equality before the law and the free movement of Australian citizens within their own country.
Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. Dr Zimmermann was professor of constitutional law at Murdoch University from 2007 to 2017. He is also President of the Western Australian Legal Theory Association (WALTA), a former Law Reform Commissioner in WA (2012-2017), and co-editor of “Fundamental Rights in the Age of Covid-19” (Connor Court / The Western Australian Jurist, 2021).