Constitutional Arguments Against Compulsory Vaccination in Australia, By Ian Wilson LL.B

 While Australia lacks a comprehensive Bill of Rights, several constitutional and legal principles provide potential grounds for challenging compulsory vaccination mandates, if made in the future. Unlike the United States, Australia's Constitution contains few explicit rights protections, but the High Court has recognised both implied constitutional rights and fundamental common law principles that may limit government power to mandate medical procedures. This analysis examines the constitutional case that could be made against compulsory vaccination under Australian law. There has not as yet been a High Court challenge, so this essay is speculative, presenting the case that could be made in the future.

The Principle of Bodily Integrity Under Common Law

The right to bodily integrity is a fundamental legal principle in Australia. This means a person cannot be subject to medical treatment without consent. This principle, deeply embedded in Australian common law, establishes that any medical intervention requires voluntary, informed consent. The High Court has consistently recognized that the common law protects individuals from unwanted medical procedures, making vaccination mandates constitutionally problematic.

The principle of bodily integrity is not merely a policy preference but a fundamental legal doctrine that predates and underlies constitutional government. Any law compelling vaccination must overcome this basic presumption in favour of individual autonomy over medical decisions affecting one's own body.

Section 51 and Limited Federal Powers

Australia's Constitution operates on the principle of enumerated federal powers under Section 51. The Commonwealth Parliament can only legislate within specific heads of power, and vaccination mandates must find constitutional support within these limitations. While the Commonwealth may have power over quarantine (s51(ix)) and certain aspects of health funding, direct mandates for vaccination may exceed constitutional authority.

State governments possess broader police powers over public health, but even state powers are not unlimited. However, there are exceptions to this under state and territory public health laws. These exceptions must still comply with constitutional limitations and fundamental legal principles.

Implied Constitutional Rights

The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia's form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for political communication and participation.

The doctrine of implied rights could extend to protect medical autonomy as essential to democratic participation. If individuals can be compelled to undergo medical procedures against their will, this fundamentally undermines their capacity to participate as free citizens in democratic society.

The Implied Right to Political Communication

The implied freedom of political communication, established in cases like Lange v Australian Broadcasting Corporation, protects the ability of citizens to participate in democratic discourse. Vaccination mandates that condition employment, education, or public participation on medical compliance may indirectly burden this constitutional right by excluding citizens from full democratic participation.

Institutional Integrity

The separation of powers doctrine and institutional integrity principles established by the High Court may limit the power of governments to exercise quasi-judicial or coercive powers without proper procedural safeguards. Vaccination mandates that impose penalties without adequate due process may violate these constitutional principles.

Section 116 and Religious Freedom

Section 116 of the Constitution provides: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion." While this provision has been narrowly interpreted, it provides some protection for religious objections to vaccination.

In Kruger v The Commonwealth, a majority of High Court judges emphasised that a law would only be invalidated by section 116 of the Australian Constitution if its purpose was to prevent the free exercise of religion, but laws with the effect of burdening religious practice may still face constitutional challenge, particularly where less restrictive alternatives exist.

Many Australians hold sincere religious beliefs that preclude vaccination, whether based on doctrines about bodily purity, concerns about foetal cell lines, or beliefs about divine healing. Vaccination mandates that fail to accommodate these beliefs may violate s116's protection of religious exercise.

The Acquisition of Property on Just Terms (Section 51(xxxi))

Section 51(xxxi) requires that any acquisition of property by the Commonwealth must be on "just terms." This provision could apply to vaccination mandates that effectively confiscate employment, educational opportunities, or professional licenses based on vaccination status.

If vaccination becomes a condition of retaining employment or professional registration, the government may effectively be acquiring valuable property rights (employment, professional status) without just compensation. This novel argument could challenge mandate systems that impose severe economic consequences for non-compliance.

Charter of Rights Jurisdictions

The ACT Human Rights Act and Victorian Charter of Human Rights and Responsibilities Act provide stronger protections that may limit vaccination mandates in those jurisdictions:

Right to Privacy and Bodily Integrity

Both instruments protect privacy and bodily integrity, requiring that any limitation be demonstrably justifiable in a free and democratic society.

Right to Freedom of Thought, Conscience and Religion

These charters provide explicit protection for conscientious and religious objections that may be broader than s116 of the Constitution.

Right to Equality and Non-Discrimination

Charter protections against discrimination may challenge mandate systems that create different classes of citizens based on vaccination status.

Due Process and Procedural Fairness

Australian law recognises strong principles of procedural fairness and due process. Vaccination mandates that impose serious consequences without adequate procedural protections may violate these principles:

Right to be heard before adverse action.

Right to present evidence and arguments.

Right to independent review of decisions.

Many current mandate systems fail to provide adequate procedural safeguards, potentially rendering them legally invalid.

The Doctrine of Proportionality

Australian constitutional law increasingly recognizes proportionality as a limiting principle on government power. Any limitation on fundamental rights must be proportionate to the government objective sought to be achieved. Courts must consider:

1.Whether the objective is sufficiently important.

2.Whether the means are rationally connected to the objective.

3.Whether less restrictive alternatives exist.

4.Whether the impact on rights is proportionate to the benefit achieved.

Vaccination mandates may fail this test, particularly where:

Natural immunity provides equivalent protection.

Individual risk profiles vary significantly.

Less restrictive public health measures could achieve similar objectives.

The mandate applies broadly without individual assessment.

Limits on Executive Power

The separation of powers doctrine limits the ability of the executive to exercise legislative or judicial functions. Vaccination mandates implemented through executive orders or administrative directions may exceed constitutional authority, particularly where they impose penalties resembling criminal sanctions without proper legislative authorisation.

Arguments Based on Democratic Principles

Australia's constitutional system rests on democratic governance and the rule of law. Vaccination mandates that exclude significant portions of the population from democratic participation may violate fundamental constitutional principles:

Equal participation in democratic processes.

Access to public services and employment.

Freedom of movement and association.

Right to earn a livelihood.

International Law Obligations

While international law doesn't directly override Australian law, Australia's treaty obligations may inform constitutional interpretation. The International Covenant on Civil and Political Rights, to which Australia is a party, protects:

Right to liberty and security of person.

Freedom of thought, conscience and religion.

Right to privacy and family life.

Right to work and participate in public life.

These obligations may influence how Australian courts interpret constitutional limitations on vaccination mandates.

Conclusion

While Australia's constitutional protection of individual rights is more limited than in jurisdictions with comprehensive bills of rights, several arguments could potentially challenge compulsory vaccination mandates:

1.Fundamental common law principles protecting bodily integrity and informed consent.

2.Implied constitutional rights necessary for democratic participation.

3.Religious freedom protections under s116.

4.Procedural fairness and due process requirements

5.Proportionality principles limiting government power.

6.Charter rights in ACT and Victoria.

7.Separation of powers limitations on executive authority.

Governments cannot force vaccination on individuals who chose to refuse it, as acknowledged in the Australian COVID-19 Vaccination Policy. However, they can effectively punish people for refusal through various coercive measures.

The constitutional case against compulsory vaccination in Australia may be more limited than in other jurisdictions, but it is not non-existent. Success would likely require demonstrating that mandates violate fundamental principles underlying Australia's constitutional system, even where explicit rights protections are absent. The key would be establishing that bodily autonomy and medical consent are so fundamental to human dignity and democratic participation that they cannot be overridden without the most compelling justification and appropriate procedural safeguards. I believe that such a case can be made.