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No discrimination
People can choose not to get vaccinated … businesses are equally free to choose not to permit them entry .
Why ‘ no jab , no entry ’ mandates are not discriminatory .
By Wade Zaglas
A
Monash University expert in discrimination law and tort law has said that so-called “ no jab , no entry ” policies do not constitute discrimination , despite some claiming the contrary .
Liam Elphick , an associate lecturer in the faculty of law at Monash , says current discrimination laws do not cover mandated COVID-19 vaccinations .
“ Discrimination laws prohibit distinctions based on particular attributes , which are largely traits we cannot change and have been used to justify the marginalisation of entire communities – such as sex , race , disability and sexuality ,” Elphick said .
“ There is no protected attribute for choosing not to be vaccinated against COVID-19 .
“ Work health and safety laws require employers to take steps to reduce workplace risks . The best way to protect hospitality workers and patrons from COVID-19 is through vaccines .
“ While people can choose not to get vaccinated against COVID-19 , businesses are equally free to choose not to permit them entry .”
In an opinion piece published in The Age , Elphick unequivocally states that vaccine mandates are not discriminatory , arguing that although “ distinctions are being made about access to certain venues on the basis of vaccination status ”, not all examples of distinction are discriminatory .
“ We make legitimate distinctions between people daily , especially based on individual choices and actions . An employee with a good work ethic may get promoted over a person who does not
Photo : Flavio Brancaleone / NewsWire
have a good work ethic . No one would consider this to be discrimination ,” Elphick said .
“ Rather , our discrimination laws prohibit distinctions based on particular protected attributes .
“ This includes women , Aboriginal and Torres Strait Islander peoples , and the queer community . And that is why our discrimination laws prohibit discrimination based on sex , race , and sexuality and gender identity .”
BUSINESSES ’ VS INDIVIDUALS ’ RIGHTS
The Monash expert also addressed businesses ’ rights to set conditions of entry , to which patrons are obliged to agree . For example , he cites that pubs commonly ban singlets and thongs , as well a nightclubs refusing entry to intoxicated individuals .
However , businesses are not completely given carte blanche to set their own entry conditions – they must not , for example breach discrimination laws .
“ Discrimination laws prohibit two types of conduct . Direct discrimination is where a person is treated unfavourably because of their protected attribute . This could occur where a female employee is not offered a promotion because she is a woman .
“ Indirect discrimination is where a policy or requirement is applied equally to everyone , but this has the effect of disadvantaging some people because of their protected attribute . An example would be a restaurant requiring all patrons to enter through a set of stairs , which would disadvantage people who use wheelchairs .”
Where it becomes complicated , however , is when protected attributes are at odds with the vaccine mandate . Elphick refers to examples such as people who may not be able to be vaccinated for health reasons and others whose religious beliefs do not accept “ certain vaccines ”.
The academic says the examples above are “ protected attributes in most Australian discrimination laws ”, leaving the reader to question : who can lawfully avoid mandatory vaccination ?
In the opinion piece Elphick states that “ it is a defence to indirect discrimination if the requirement is ‘ reasonable ’ in the circumstances ”. He adds that courts will normally consider the “ purpose , proportionality and consequences of the requirement ” in determining what is reasonable .
Elphick argues that a “ no jab , no entry policy ” is “ almost certainly reasonable , and therefore lawful ” for businesses to enforce .
“ Vaccines have been proven to reduce death , hospitalisation , illness and transmission for COVID-19 ,” he says .
“ Vaccine mandates would significantly reduce health risks in hospitality venues .”
Importantly for businesses , the Monash discrimination law expert said that businesses could be at risk of breaking the law if they do not implement “ no jab , no entry policies , citing Work health and safety laws requiring “ employers to take steps to reduce workplace risks , to both workers and customers ”.
THREE CAVEATS TO KEEP IN MIND However , despite the broad protection for businesses , Elphick asserts there are three main caveats to the “ no jab , no entry ” policy that businesses should keep in mind .
For instance , there are a small number of people who cannot be vaccinated for legitimate medical reasons , in which case a rapid antigen test may be an acceptable alternative if they become widely available .
Also , children under 12 have to be exempt , given they are not yet eligible for the vaccine . The third caveat relates to accessibility , with Elphick stating that “ mandates should not be imposed until everyone has had the opportunity to be vaccinated ”. ■
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