By AAP FactCheck, expert commentary by Maria O’Sullivan and others
WHAT WAS CLAIMED
COVID-19 vaccination mandates are at odds with the 1986 Human Rights Commission Act
False. Experts say the legislation in question does not have any relevance to vaccine mandates in Australia.
Queensland Liberal National Party (LNP) senator Gerard Rennick says there are human rights laws protecting Australians from being coerced into receiving COVID-19 vaccinations under state mandates.
However, experts have told AAP FactCheck the human rights laws to which Senator Rennick refers have no implications for vaccine-related mandates in Australia.
Speaking on the Chris Smith Tonight program on Sky News on November 21, Senator Rennick said: “I think there’s a number of federal laws that protect against coercion of vaccinations. In particular there’s the Immunisation Handbook itself, (which) says you can’t give vaccinations without consent. There’s also Section 51 23A of the Constitution that says that doctors and nurses can’t be forced against their will to give a medical procedure. There’s also Schedule 7 of the 1986 Human Rights Act that says people can’t be forced into a medical procedure.” (podcast mark 9min 34sec)
When contacted by AAP FactCheck, Senator Rennick clarified the legislation to which he referred was the Australian Human Rights Commission Act 1986. Schedule 2, Article 7 of that Act states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
The wording of Article 7 comes from the International Covenant on Civil and Political Rights (ICCPR), a multilateral United Nations treaty that is formally recognised in Schedule 2 of the Australian Human Rights Commission Act.
Senator Rennick told AAP FactCheck his focus was on the first sentence of Article 7, regarding cruel and inhuman treatment.
He says it is “intolerably cruel” to tell someone who has had a bad reaction to a first dose of a COVID vaccine that they have to have a second shot.
Professor Sarah Joseph, a human rights law expert at Griffith University, told AAP FactCheck the schedules listed at the end of the Australian Human Rights Commission Act give the Australian Human Rights Commissionpowers to perform functions in regard to various treaties and charters, including the ICCPR.
However, the ICCPR is not an enforceable part of Australian law and Article 7 has no direct relevance to COVID-19 vaccines, Prof Joseph said.
“Article 7 is designed to combat the most extreme of bad treatment, with the worst form of banned treatment being ‘torture’,” she said in an email.
“In any case, no one is being ‘forced’ to have a vaccine. People are being excluded from certain jobs or scenarios (e.g. restaurants) if they refuse to get vaccinated. That is a level of coercion, arguably, but it is not nearly enough to constitute a breach of Article 7 in terms of a breach of the right to be free from torture, inhuman and degrading treatment.”
Prof Joseph said overall the senator’s claim was “completely inaccurate”.
“I don’t believe that Article 7, which is not a part of Australian law anyway, is relevant to vaccine mandates and lockouts in Australia.”
Associate Professor Maria O’Sullivan, a deputy director at the Castan Centre for Human Rights Law at Monash University, agreed the “very high” thresholds of the ICCPR mean Article 7 would be unlikely to apply to Australian vaccine mandates.
“The sorts of actions which have been recognised as meeting this threshold are things like forced sterilisation,” Dr O’Sullivan told AAP FactCheck in an email.
“I would contrast that to a workplace or public place vaccine requirement which does not reach that high coercive threshold.”
Dr O’Sullivan added that, in the context of vaccines and mental distress, it is important to differentiate between people who have a genuine medical reason for not getting a COVID vaccine and those who feel anxious or have a mild reaction.
“Those with a genuine, recognised medical reason will be exempt,” she said.
“Those with a mild reaction or some anxiety about it, or (who) feel coerced into getting the vaccine, may feel mental distress but I do not believe that this would be sufficiently severe in order to meet the threshold of mental harm that has been established by case law on this issue.”
Senator Rennick’s reference to the Immunisation Handbook as being “federal law” is also misplaced, according to Associate Professor Fiona McDonald, the co-director of the Australian Centre for Health Law Research at QUT.
“The Immunisation Handbook is, as it states in the introduction, focused on providing clinical guidelines for the provision of immunisations in Australia,” Dr McDonald told AAP FactCheck in an email.
“Clinical guidelines may be used as evidence of best practice in a legal proceeding but to date the courts in Australia have not considered them determinative of best practice in and of themselves.”
The handbook says that for a person to legally consent to receive a vaccine, consent “must be given voluntarily in the absence of undue pressure, coercion or manipulation”.
Dr McDonald says it is possible vaccine mandates could mean a person feels coerced into receiving a jab but that would be “unlikely” to meet the legal threshold for coercion given they retain the ability to refuse to be vaccinated.
AAP FactCheck has previously investigated the claim the Australian Constitution prevents healthcare workers from being “forced” to give a medical procedure. The claim relies on Section 51 (xxiiiA) of the Commonwealth of Australia Constitution Act, which says the government has the power to make laws about medical and dental services but “not so as to authorise any form of civil conscription”.
Luke Beck, an associate professor of constitutional law at Monash University, told AAP FactCheck in July that section 51 (xxiiiA) was added to the constitution in 1946 to allow the Commonwealth to fund various social services schemes such as Medicare and the pharmaceutical benefits scheme but has no relevance to vaccine mandates.
“There’s nothing in the constitution that would prevent a law making COVID vaccination mandatory. We have had mandatory vaccination rules for some professions for a long time in respect of other vaccines,” Dr Beck said.
Claims that Australians are protected from vaccine mandates by the Nuremberg Code have also been debunked by AAP FactCheck.
The claim that Schedule 2, Article 7 of the Human Rights Commission Act 1986 offers protection to people who feel covered into received COVID-19 vaccinations is false. Multiple experts told AAP Fact Check that Article 7 was not an enforceable part of Australian law and had no direct relevance to vaccine mandates.
False – The claim is inaccurate.
Dr Maria O’Sullivan is an Associate Professor and the Deputy Director (Research) of the Castan Centre for Human Rights Law at Monash University.