Compulsory vaccines possible but unlikely, says law professor

State governments can, but will unlikely, impose compulsory COVID-19 vaccines — even if uptake is low — said law professor Cameron Stewart, from the University of Sydney.

“States can essentially do whatever they like with their public health powers,” he told Hospital + Healthcare. “Outside of Victoria, Queensland and the ACT, there are no human rights restrictions — and even those wouldn’t prevent states from passing such a law.”

Meanwhile, the federal government does not currently have authority to impose mandatory health treatments, except in the context of border control — in which case, it could call upon its ‘quarantine power’ to mandate a vaccine.

‘Nationhood powers’ — discretionary executive functions that can be used to protect national wellbeing — might also be exercised for this reason. However, these are typically reserved for extreme circumstances, Prof Stewart said.

So far, the government has maintained that, while it supports immunisation, “it is not mandatory and individuals maintain the option to choose not to vaccinate” — but that everyone who can vaccinate against COVID-19 should.

In place of a mandate, the Department of Health is staging evidence-based information campaigns and “actively considering the factors that may contribute to acceptance, hesitancy, or refusal”. It is also in regular discussion with social media platform providers to combat the spread of misinformation.

Vaccine mandates were introduced in Australia during the small pox epidemics of the 19th century. However, it is argued that uptake of this vaccine would have been high, regardless, given the severity of the disease and its impact on the Australian population. Higher vaccine reticence is expected for COVID-19, given the lack of severe disease prevalence on Australian shores. The percentage of Australians willing to be vaccinated has fallen from 74.4 to 66.2 percent this year, research has shown.

“Perhaps a detriment of our success in dealing with this pandemic in Australia is that comparatively fewer people have had direct experience with the virus. Direct experience of a disease often leads to rapid vaccination uptake,” Prof Stewart said.

While it may be too early to tell what the uptake figures will be, the Department of Health said in a statement, “Any decisions regarding the availability of a potential COVID-19 vaccine and related policies will be based on the advice of the Australian Technical Advisory Group on Immunisation and other experts […]”

Whatever the government’s intention, Prof Stewart believes a mandate should be the “final instrument” in its quest to roll out a vaccination program.

“You can get most people vaccinated by simply asking them — as long as you put a good case forward,” he said. “As soon as you force things on people they tend to become non-compliant. In my view, information campaigns are the way to go,” he concluded.

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