The Courier Mail has reported that the Human Rights Commission (Commission) has sensationally intervened in the Supreme Court challenge brought by educators – believing the CHO has gone too far. According to reports, the Commission claimed the vaccine mandate for teachers and childcare workers was outside the Chief Health Officer (CHO) John Gerrard’s powers under the Public Health Act 2005. The Commission further stated that the right of the CHO to give such directions was conditional based on reasonable and demonstrably justifiable limits upon human rights and that based on the present evidence, the CHO’s mandates were not justified.
The intervention comes after Justice Dean Dalton ruled the CHO did not have to provide justification for his decisions as vaccine directions were legislative, not administrative in nature.
Although this intervention is welcome news, some on social media believe the Commission should have acted much earlier. Facebook posts have suggested the Commission is attempting to improve their image after failing to step in during the early stages of the mandates. Others believe this is more gaslighting by a government struggling to maintain control of a crumbling narrative.
Tweets in response to the Courier Mail article about ‘bombshell intervention in teacher vaccine challenge’ show just how unpopular these mandates are. One person tweeted ‘about time none of the mandates are justified’ and another said ‘and so it unravels’. There is a rising belief across social media that the ‘vaccine mandates are political not health related’. This sentiment could be justified given mandates ‘didn’t stop transmission’. People are frustrated over the mandates, stating ‘our schools are in crisis but not from covid. Because of the useless mandates. Let teachers work!’
According to the Australian Human Rights Commission, it can be unlawful to require an employee to be vaccinated and that ‘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’.
It goes on to say that the Commonwealth Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and Age Discrimination Act 2004 makes it unlawful to discriminate on the grounds of pregnancy, disability, and age, including employment – with disability broadly defined as including past, present, and future disabilities. Strict rules or conditions that impose mandates on these groups may result in ‘indirect discrimination’.
One key test to reasonableness about imposing mandates is whether alternative methods can be used to achieve the same goal. It also seeks to determine whether an ‘unjustifiable hardship’ would be placed on the employer.
The Queensland Human Rights Commission holds concerns about the impacts of vaccine mandates and other measures on human rights but does not have the power to direct government to change decisions – only make recommendations. These recommendations include those provided in response to the controversial extension of the Public Health and Other Legislation (Extension of Expiring Provisions) Amendment Bill 2022. The Commission called for the Queensland Government to replace the Bill with more transparent, accountable, and human rights compatible legislation. It also recommended that the Bill should not be extended given insufficient justification to continue to limit human rights.