Today’s question comes from a Queensland paramedic who says:
QAS [Queensland Ambulance Service] have stated that all employees must have a flu vaccine. Just wondering if that can actually be enforced?
I referred my correspondent to an earlier post – Discrimination in ambulance employment for refusing a vaccine (January 2, 2017). They came back to me saying
Thank you. Just read the article, however I have been employed by QAS for many years. We received an email a few days ago stating we were ‘expected’ to obtain the vaccine. It has never been a mandatory requirement in the past. Just wondering if it could be legally enforced now ie could we lose our job if we refuse to have the vaccine?
I appreciate that there is a difference between applying for a job and continuing employment but I think my reasoning in that earlier answer still stands and should be read as part of my answer to the question.
I did ask for a copy of the notice to understand exactly what was being said – there’s a difference between ‘we expect everyone will want to get vaccinated’ and ‘we expect you all to get vaccinated’ and I did not want to mis-quote QAS. I have now been provided with Queensland Ambulance Service’s Medical Director’s Circular No. 21/2020 which says:
Annual vaccination strategies are an important and effective measure to protect against seasonal influenza. Each year a new influenza vaccination is developed to protect against the most likely strains of the virus expected to spread and cause illness. This year, more than ever due to the challenges presented by COVID-19, it is important for staff to be vaccinated against influenza to not only protect yourself but also the vulnerable patients within our community.
QAS staff can access a 2020 influenza vaccination from the following options:…
It goes on to list how and where QAS staff can access the vaccine and get reimbursed if there are out of pocket expenses. The circular goes on (emphasis in original):
Importantly, the Federal Government has mandated that all health professionals who enter an aged care facility must be immunized by 1 May 2020. Therefore, we need every frontline operational officer to confirm they have been immunized by that date…
… I ask that all staff take the time to get vaccinated against influenza to not only protect yourself, the patients, your colleagues, your families but also to protect our broader community.
An Australian Government Fact Sheet on Restrictions on entry into and visitors to aged care facilities confirms that ‘everyone entering a residential aged care facility need[s] to be vaccinated’. It also says ‘The state and territory directions include specific requirements in relation to flu vaccinations and are published on websites…’. The Queensland website refers to the Aged Care Direction (No.2) (effective date, 17 April 2020). That direction says (at [6]):
a person … must not enter or remain on the premises of a residential aged care facility in the State of Queensland from the time of publication of this direction until the end of the declared public health emergency if:…
(e) after 1 May 2020, the person does not have an up to date vaccination against influenza, if the vaccination is available to the person.
Example – the vaccination is not available to a person with a medical contraindication to the influenza vaccine
Paragraph 8 says:
Despite paragraphs 6(e), a person may enter and remain on the premises for the period reasonably required to provide an emergency service that is necessary for the effective operation of the residential aged care facility or to protect the health and safety of staff and residents, on the condition that the person must practise social distancing wherever possible, including maintaining a distance of at least 1.5 metres.
Example – A plumber may make emergency repairs if an employee or contractor with an up to date vaccination against influenza is unable to attend.
In my earlier post (Discrimination in ambulance employment for refusing a vaccine (January 2, 2017)) I talked about an ambulance service’s duty to look after both its staff and its patients. If there was a change in policy from recommended flu vaccination to compulsory flu vaccination on the basis that this was a response to risk as required by work health and safety legislation, there would need to be a process of consultation (Work Health and Safety Act 2011 (Qld) s 49). Equally if this represented some fundamental change in the job one was employed to do there would have to processes to amend duty statements and the like.
But that is not the case here; this is a regulatory change. There has been a change in the law that affects whether or not a paramedic can do the essential part of their job. If there was some change in the traffic licensing laws so that a different licence was needed to drive an ambulance, then that is something QAS would have to comply with. They would hope there was a lead in time (as there is here) and they would have to take steps to get their staff up to speed, but it is something they would have to comply with. The requirement to have a vaccination is something imposed on QAS rather than something of their choosing.
Can you be fired if you elect not to have the vaccine? I’m not an industrial lawyer so I won’t try to answer that question but I think one could conclude that if a paramedic refused the vaccine he or she could not do the job of a paramedic if they were prohibited from entering an aged care facility. The exception for an emergency would not be sufficient as many ambulance calls would not constitute an ‘emergency’ and QAS could send vaccinated paramedics. I would suggest that it would be perfectly reasonable for QAS to say to a paramedic ‘if you are not vaccinated, you cannot do your job’. Whether they would be under some obligation to find the paramedic another job (eg move them into coord or training) I am not prepared to say as I would have to study much more industrial/employment law. Presumably if they could not, or did not have to, find the person another job they could be sacked because, by their own decision, they have made it impossible to do the job they were employed to do.
Conclusion
The question was ‘could we lose our job if we refuse to have the vaccine?’. I think there is a safe answer you could not do your job if you refused the vaccine so QAS would have to do something. That would mean either they would have to find you another job within QAS or if there was no other job, it would seem likely that you could lose your job.
Critically my correspondent has misquoted the circular. It does not say paramedics are ”expected’ to obtain the vaccine’. It does say that the Commonwealth and Queensland governments have mandated that a person cannot enter an aged care facility without up to date flu vaccine. It’s not QAS that are making it mandatory, but QAS and QAS paramedics have to comply if they are to do what I would suggest is a common part of their job and that is enter aged care facilities.
For a related post – see Refusing a paramedic access due to Covid-19 fears (March 28, 2020). That post related to a facility that refused entry to a paramedic with a temperature in excess of 37.2 degrees. The current directions on access to aged care facilities including Aged Care Direction (No.2) now say that a person cannot enter the facility if they have a temperature of, or in excess of, 37.5 (see [6(c)].
Australian Emergency Law 
And then you have folk who want to get the vaccination, but are contraindicated so can’t. Still waiting to see what happens with that one!
Probably a different question but if an employer requires a Flu Vax as a condition of employment is it reasonable to expect the employer to foot the bill?
Yes and if you read the QAS circular it explains where paramedics can get the immunisation for free and how to reclaim out of pocket expenses if they chose to get it from their GP
This is completely unconstitutional. QHealth do not have the right to force people to inject anything into themselves, ever. The cannot circumvent the constitution. This is a workaround clause. However we have been successfully doing our job for decades without issue. I will be happy to take this to the high court. We have constitutional rights, one of those is not to be forced to do any medical procedure we don’t want. You cannot legislate around your human rights. We can still do our jobs safely without a flu vaccine. We have safeguards in place like not coming to work when sick and wearing PPE. This is a slippery slope. Like I said, they can’t lock you up for saying no, but they can take your job… which is the next best thing. Really disappointed you didn’t look into our human rights and constitutional law to answer this.
Whenever people say ‘We have constitutional rights’ I need to ask ‘have you actually read the Australian Constitution?’ In Australia we do not have constitutional rights other than the implied right to take part in political discussion.
It’s true I did not discuss human rights or the Constitution in answer to this question, but I did in other posts – see https://emergencylaw.wordpress.com/2020/03/26/facemasks-beards-and-covid-19/ and https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/.
I look forward to reading the outcome of your application to the High Court of Australia in due course.
Mr Eburn; Thank you for providing those links. It has given me somewhere to continue looking /researching and working towards protecting the rights of individuals. I am concerned about this line “to give the Chief Health Officer expansive additional powers, including the ability to give any direction considered necessary to protect public health.” Obviously not very well thought out… “Any Direction” Seriously? Anyway, Thanks again, I will pursue those lines of inquiry, and thank you for your patient reply given how riled up I was in my original post.
Best Regards.
Firstly, traffic law is not an invasive, risky medical procedure. If you don’t think its risky why has the government made you sign a consent form absolving them of all possible ramifications of the vaccine? If traffic law states you had to cut off a finger to retain your licence as a politician stated it would make you a better driver, would you consider that reasonable and in “public interest”?
Secondly, the PPE guise is ridiculous. Where in any legislation is an invasive, possibly dangerous procedure considered a part of PPE. In relation to PPE there is adequate supplied to protect any pt from you, the vaccine only “protects” (assumed but not guaranteed -read the literature) you.
It is not “perfectly reasonable” that if not vaccinated you cannot do your job. The big question is does the legislation cover absolutely everybody who enters a nursing home or only health care professionals. I believe health care professionals are more aware and careful in this situation than relatives, general public, delivery drivers, groundskeepers, cleaners etc.. The color of law is not law. Lex iniusta non est lex (English: An unjust law is no law at all), is a standard legal maxim. if this law does not encumber ALL who enter nursing homes, then it is ineffective, discriminatory, and therefore NOT reasonable or enforceable.
Any one who sacks a paramedic will be open to individual personal civil litigation as ignorance is no excuse and being told to do it is not acceptable in law.
Here is an interesting excert from the qld criminal code:
CRIMINAL CODE 1899 – SECT 543
(1) Any person who conspires with another to effect any of the purposes following, that is to say—
…
(b) to cause any injury to the person or reputation of any person, or to depreciate the value of any property of any person;
(d) to injure any person in the person’s trade or profession;
(e) to prevent or obstruct, by means of any act or acts which if done by an individual person would constitute an offence on the person’s part, the free and lawful exercise by any person of the person’s trade, profession, or occupation;
An injection causes an injury (b). By enforcing the inability to perform our trade or profession (d), and (e) is self explanatory.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 51
Legislative powers of the Parliament [see Notes 10 and 11]
(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (BUT NOT AS SO AS TO AUTHORIZE ANY FORM OF CIVIL CONSCRIPTION), benefits to students and family allowances; (Emphysis added))
This is a form of civil conscription that is authorized. Totally against the constitution. Being forced or lose you job which causes INJURY to you and your family. Having the vaccine can cause physical injury as well.
I hope you post this under freedom of speech.
lorinzo, My traffic law example was to make the point this is a regulatory change that QAS has no option but to comply with. If you think the regulation is unreasonable take it up with the regulator (Queensland Health) not an agency that has to comply with it.
One can always draw extremes to make a straw man argument. No I don’t think it would be ‘reasonable and in “public interest”’ to require a driver to ‘cut off a finger to retain your licence’ but I don’t think getting a flu vaccine is akin to cutting off a finger. You might, in which case you see a parallel.
Vaccines are required as a condition of employment in many jobs particularly in the health sector as various commentators on this blog have pointed out. So, it follows that this is considered part of PPE. Further my understanding is that the idea of the vaccine is to ensure that people entering aged care facilities are not carrying the influenza virus so the aim is to protect those residents, not necessary the person who has had the vaccine. You’re free to make the assessment that the risk posed by flu is less than the risk posed by the vaccine, but others caring for the residents have made an alternative assessment.
The Aged Care Direction (No.2) (quoted in the post) says (at [6]) ‘a person … must not enter or remain on the premises of a residential aged care facility … if:…(e) after 1 May 2020, the person does not have an up to date vaccination against influenza…’ so yes it applies to ‘absolutely everybody’.
The argument “Lex iniusta non est lex (English: An unjust law is no law at all)” may be a good philosophical argument used by people who deliberately ignore the law or engage in civil disobedience, but it is no legal defence. Laws are passed and enforced every day that someone thinks is unjust either on its terms or in its particular application. If this was a defence then law would be based on consent – ie you would only be bound by laws that you believe are just. But justice, like beauty, is in the eye of the beholder. Many people would think it unjust that you could enter an aged care facility without a flu vaccine when others cannot, just because of your personal view of the risk. If there was a rule that said you could exercise a conscientious objection some would see that as ‘unjust’ and if your quoted maxim was true, that could not be a law and they could resist your decision to enter because any legal right you claim would be defeated by the very same maxim.
With respect to the Criminal Code 1899 (Qld) s 543 I’m not sure who you think the conspirators are but their aim is not to cause ‘an injury’ and I think you would have trouble convincing a jury that an injection was an injury particularly when the injection can only be given with consent. You may object to that but you do have a choice to refuse the vaccination. If you do, however, you cannot enter an aged care facility and that may affect your ability to do your job. It’s your call. In any event s 543(2) says ‘A prosecution for an offence defined in this section shall not be instituted without the consent of the Attorney-General’ and I suspect the AG would not give that consent.
Note also s 282 that says:
A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, … medical treatment of a person … if … providing the treatment is reasonable, having regard to all the circumstances of the case.
You may not think giving a flu vaccine is reasonable in all the circumstances but clearly lots of people do, including those advising the government and doctors and other health professionals who are administering the vaccines.
Note also s 205 that says:
(1) Any person who without lawful excuse, the proof of which lies on the person, disobeys any lawful order issued by … any person authorised by any public statute in force in Queensland to make the order, is guilty of a misdemeanour, unless some mode of proceeding against the person for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
That does not compel you to have the vaccine but it could be used to punish you if you disobey the order and enter the aged care facility save that it would be more appropriate to use the ‘mode of proceeding against the person for such disobedience is expressly provided by’ the Public Health Act.
What it shows however is that you can find all sorts of sections and point to them, without context, in the hope that some help advance your argument. But context is everything.
Equally your reference to the Constitution is irrelevant. The relevant order here has been made by the State of Queensland under the Public Health Act 2005 (Qld). It is not part of the Social Security Act 1991 (Cth) and is not related to the payment of allowances. In Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 French CJ and Gummow J said (at [60]):
The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase “(but not so as to authorize any form of civil conscription)” which treats “civil conscription” as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth; it also may be for the benefit of third parties, if at the direction of the Commonwealth.
Kirby J said (at [140]):
in arriving at an understanding about the express prohibition on “any form of civil conscription”, stated in s 51(xxiiiA) it is necessary to accept that detailed provisions for the implementation of the services, and for their regulation and proper deployment, would not, of themselves, amount to “any form of civil conscription “[168]. In so far as such regulation is necessary to, and inherent in, the provision of a wide range of “medical and dental services”, and reasonably proportionate to the grant of power for that purpose, the stated constitutional prohibition would not, without more, be breached.
You may not agree that the requirement for a vaccine is ‘reasonably proportionate’ (and see [153]) to any risk but that is not your call.
To paraphrase Hayne, Crennan and Kiefel JJ (at [226]):
To adopt and adapt what Dixon J said in the BMA Case, “[t]here is no compulsion to serve as a [paramedic], to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently”.
Heydon J (dissenting) said (at [263]):
… among the things which in 1946 were seen as examples of “industrial conscription” were the following:
(a) a law compelling an individual to work;
(b) a law compelling a worker to work in a particular industry;
(c) a law compelling a worker to work for a particular employer, or compelling a particular employer to accept a particular worker;
(d) a law compelling a worker to work in a particular place; and
(e) a law preventing a worker from leaving his employment (ie a law compelling a worker not to leave his current employment).
This is unlikely to be an exhaustive list…
A law requiring everyone to have a flu vaccine before entering a residential aged care facility does not have that type of compulsion. It does not stop someone practising paramedicine other than in an aged care facility. IF QAS can fnd other work for them they can remain employed. But QAS is not obliged to keep employing someone if they cannot do the work that QAS requires them to do; but they are free to set up their own business or work with another employer if they can find one.
As noted the requirement for a vaccine is being imposed by Queensland, not the Commonwealth (even if Queensland is acting in lock step with the Commonwealth and it is a mutual agreement that the states will impose that restriction). Further the restriction has nothing to do with the payment of allowances. It follows that s 51(xxiiiA) of the Australian Constitution is irrelevant, but even if it were not, this is not ‘civil conscription’ of paramedics or others.
Of course me saying all this is not going to persuade someone with firm views particularly views of the risk v benefits of the influenza vaccine. Even if I agreed with the views expressed it would not help, the law says you cannot enter an aged care facility in Queensland without a flu vaccination. If you want to challenge that, make your application to the Supreme Court of Queensland – see https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/
I find your early comments to the ‘Straw Man’ interesting. I had to look that up.
Whether you thought the traffic reply I stated was acceptable, I did state if it was legislated and a requirement to maintain.
In relation to your last comment of challenging it in the Supreme court, isn’t it interesting we were only given 2 weeks to challenge (impossible even during normal times). It was implemented in the middle of lock down so courts are closed and getting legal assistance almost impossible. Courts, when they eventually open will have a large backlog ensuring delayed time to get in. In the mean time, you have lost your employment and are starved of the ability (finances) to fight ensuring you are unable to question their authority.
And you say it is a choice, not forced or compulsory?? The fact you and your family will be financially injured for a occupation you have studied years for and now is being taken from you under a flawed instrument. What can you do? I know, loose your home or starve and pack shelves as there is no other way of earning money with your qualifications. you are being punnished for not toeing the line. But you can ‘consent’ and keep what you worked hard for. This type of consent is under extreme duress or coercion.
Interestingly the QFRA does not require global immunization under threat of job loss, nor does the QPS. Each will have to attend age care facilities. Once again ‘all’ does not mean ALL. Lets see them try in those services.
Lorinzo, Whether you say your thought experiment of being required to ‘cut off a finger to retain your licence’ was legislated or not, it’s still a straw man. It’s an extreme example that has no science behind it. In situations where proportionality is a relevant considerations it is necessarily disproportionate to any perceived benefit. But on a sliding scale where we can say ‘that is too far’ it is then an easy argument to say ‘and this is no different’. But flu vaccines are different and if you think flu vaccines carry the same risk of permanent physical injury as chopping your finger off (a 100%) with the same benefit (ie zero) then you have the entire weight of medical science against you. Whereas I suggest a requirement to ‘cut off a finger to retain your licence’ would have the whole weight of medical science against that.
And your assertion that such a rule would not be reasonable just because ‘a politician stated it would make you a better driver’ is also a straw man. We can knock it down on that basis but the need for a vaccine did not arise because ‘a politician’ woke up one day and thought ‘that would be a good idea’. The response to COVID is being led it appears by health professionals who are advising the government. There can be professional disagreements on the nature of the advice but given the worldwide response has been similar (and when have we ever seen such consensus of action) the implication that the vaccination requirement arose because ‘‘a politician stated it would’ reduce risk is to ignore all the science that appears to be leading this response.
As for challenging the direction, you could challenge it now. The court’s registries are open and there would be a duty judge available to hear an urgent application for an injunction (see for example Northridge v Central Sydney Area Health Service [2000] NSWSC 1241). There are lawyers in chambers who for the right fee would no doubt take the matter on. The thing that might stop lawyers acting in the matter or the court responding urgently would be that the arguments are, legally, non-sense not that the Court is not available to react if it needs to. And what stops you is that it costs too much.
Choices have consequences and costs; so like every choice you have to weigh up the costs and benefits. What is the cost of having a vaccine v the cost of not having it? You might think you are ‘being punished for not toeing the line’, others might think you are being ‘punished’ for refusing to put the interests of the elderly and vulnerable ahead of your own when your interest by not having a safe flu vaccine. There are risks in everything. Do you think you would be ‘punished for not toeing the line’ if you said that you were not prepared to accept the risk of attending car accidents or treating people who had overdosed on drugs – so you are happy to be a paramedic but will not go to those cases? In the same way should the ambulance service accommodate you if you say ‘I’ll still practice as a paramedic, just don’t send me to an aged care facility’?
The problem here is you want to define what is an acceptable risk both for you and for others. Queensland health want to do the same – they say it is not an acceptable risk to the elderly to have people come in without a flu vaccine and it is an acceptable risk to require people to choose to have that vaccine or not enter the facility. The risk they are thinking about is the risk to those in the facility and the risk to the health service if there are too many people requiring hospitalisation. You are thinking about whatever risk you believe comes with a flu vaccine and the risk to your livelihood if you choose not to have it. And you’re downplaying the risk to the residents by your claim that the vaccine is only for ‘your’ benefit and that PPE is sufficient. You’re also failing to take into account issues of enforcement. If the rule said someone could come in if they were a medical professional with appropriate PPE, then someone at the door has to make that assessment. If you list the PPE then someone will object that they don’t think the list is comprehensive enough or goes too far. If you have a simple rule – do you have a current vaccination? – then it’s an easy ‘yes/no’ answer and the people who have to enforce the rule can do so. In the same way that a rule that says you must not exceed the speed limit may catch people who are ‘speeding safely’ (if there is such a thing) but it avoids the argument. A rule that says ‘you can come in if you reasonably believe you are not posing a risk’ is unhelpful because how does the person at the door decide if your belief is ‘reasonable’? You are downplaying (or ignoring) that because you think you can judge the matter of what’s an acceptable risk and that it’s your judgement that should count.
At the end of the day you get to make the decision for you. If you think the costs of having the vaccine are too high, don’t have it. Queensland Health has to make the decision for the benefit of the people it’s considering. They think the cost of letting people in who are not vaccinated except ‘for the period reasonably required to provide an emergency service that is necessary for the effective operation of the residential aged care facility or to protect the health and safety of staff and residents, on the condition that the person must practise social distancing wherever possible, including maintaining a distance of at least 1.5 metres’ is too high. But that’s their call, not yours. Queensland health do not have to put your interests first. And then QAS have to decide how to manage that in their business which includes providing non-emergency treatment and which can also provide for planning for an emergency response (remembering an emergency for the patient should not be an emergency for QAS).
I note that there is no mention in the QAS document that I cited about job losses. That was the question put to me. It may be that QAS can accommodate people who object to the flu vaccine in which case great. As for QPS and Queensland Fire and Rescue, the directive applies to them as to everyone else. How those agencies manage that is a matter for them.
Mr Eburn,
Unfortunately, the arguments here are now embedded in back and fro legal jargon and what has become lost in it all, is the simple, basic right of people to make a choice about what they allow themselves to be injected with. It’s that simple. Your argument that QLD paramedics do have a choice is in my opinion flawed, as when the consequence to that ‘choice to refuse vaccination’ is the impossible alternative to lose one’s job, it is no longer a choice, but coercion. It’s assault.
Only choices that are made with informed consent and without coercion are true choices.
To compare the vaccine with PPE is ridiculous. PPE you put ON your body and vaccines you put IN your body. PPE you can take off, has no side effects, does not impede on anyone’s rights and is also more effective than a flu vaccine. So, really?
Being injected with a substance can also not be compared with other types of new, non-invasive work directives. We are talking about the right to decide over what medical treatment you receive, not a new skill or safety regulation.
To say that the paramedic can no longer perform in his or her job because of a choice THEY made is turning the situation around. Instead, they are not allowed to perform in their jobs anymore, despite the fact they are perfectly capable to do so, because of a choice somebody else made about something that breaches their basic rights making it impossible for them to comply.
What is also a concern to me, is what could be next. As the government can now coerce us into being injected with the flu vaccine, it sets the scene for a slippery slope for other undesirable forced medical treatments or conditions breaching our human rights. Is the next thing to be forced to receive a Covid vaccine? Where will it end?
I get from the general line of conversations here that you have absolute trust in the producers of vaccines and their motives and those who promote its mandate. For you to refer to the flu vaccine as ‘effective’ shows me it is unlikely you have delved into the statistics which show an at best, 30-60% effectiveness rate of the vaccine in any given year (if lucky).
You also seem to trust the medical authorities to have recorded immediate and delayed adverse reactions honestly, thoroughly and correctly.
To add to my argument; there’s no guarantee one will not transmit the virus even if effectively vaccinated, so the argument we definitely protect others is debatable.
And if the vaccine is as effective as one claims, those who desire protection can protect themselves by vaccination, without impeding on others’ rights.
And vaccinated persons may be acting under the possible illusion they are immuun and be less careful with infection control measures than would be wise.
And the aged are still allowed to go shopping, visit family and friends, go on outings etc, where there would be plenty of unvaccinated individuals around.
So… it it really worth forcing people into a vaccination, with so many viral loopholes that remain uncovered? Is coercion justified?
It also find i suspicious that if a government claims to go for the greatest good for the greatest number scenario, ignoring individual rights, then why don’t they apply this to, for example, the 20,000 yearly deaths caused by smoking and smoking related illnesses in Australia? Beats the flu! Why not make it mandatory for government workers, social security recipients and parents to become non-smokers? And if they don’t comply and fail the nicotine breath test, you make them lose their jobs, deny them a pension or cease family benefits. Just imagine the uproar! The pharmaceutical companies will make a lot less money… No, they rather force people into having an injection. Wonder why? The Covid fear set the perfect base…
Let me deal with some issues that you raise, and others I’ve raised before.
1. Your right that this is all about the legal jargon, this is a law, not a science blog so I’m not going to debate the merits of vaccines.
2. What’s been lost during the COVID-19 response, and the war on terror, and in many other responses are ‘simple, basic rights’ (see https://emergencylaw.wordpress.com/2020/05/17/common-law-rights-v-parliaments-legislation/). But that does not make the law, that deprives us of what we thought were our ‘rights’ unlawful.
3. Where a threat reaches a level of coercion will be a debatable point. Every choice has costs and we make choices all the time knowing that those choices will have implications. Lots of choices have elements of coercion, you may chose not to drive in excess of the speed limit because of the threat of punishment, even if you think there is no risk.
4. I don’t know if the QAS response to people who don’t have a vaccination will be terminate their employment but let us assume for the sake of the argument that is the consequence. If we assume that the cost of refusing a vaccine is a loss of job, that does not make the act of receiving a vaccine an assault. An assault is a threat of or (battery) the actual application of force without consent. Reluctant consent can still be consent. No-one is saying that paramedics are going to literally forced – ie held down and injected – despite a protest that they would rather lose their job. (And, having said that, it’s been recently brought to my attention that under the Public Health Act in WA the Chief Health Officer could order mandatory vaccinations). It may be that ‘Only choices that are made with informed consent and without coercion are true choices’ but the question of when being told what the consequences of your choices are becomes coercion will be a matter of debate.
5. It may be true that ‘there’s no guarantee one will not transmit the virus even if effectively vaccinated’ but there’s no guarantee anywhere. It may be a risk mitigation measure but that doesn’t guarantee it will reduce the risk to zero. There is no requirement that all risk mitigation must have a guaranteed 100% success rate to be justified.
6. You ask ‘is it really worth forcing people into a vaccination, with so many viral loopholes that remain uncovered? Is coercion justified?’ That is the very question I cannot and do not attempt to answer. The question I have tried to answer is can they lawfully make that call, my conclusion to that question is ‘yes’.
7. If you think the requirement from QAS that paramedics must have a flu vaccine is disproportionate to the risk I think you have got the wrong question. In my post I referred to the Aged Care Direction (No. 2) (effective date 17 April 2020). That has been replaced by the Aged Care Direction (No. 4) (Effective from: 21 May 2020). The current direction still says that a person, including a person who is providing emergency care, ‘must not enter or remain on the premises of a residential aged care facility in the State of Queensland … if:… (e) after 1 May 2020, the person does not have an up to date vaccination against influenza, if the vaccination is available to the person.’
QAS have to respond to that. The question you have to address, if you want to challenge the QAS direction, is what alternative do they have? No matter what argument you have about flu vaccine and that vaccinating the residents or wearing PPE would be more effective is irrelevant. QAS cannot send a paramedic into an aged care facility unless that person has ‘an up to date vaccination against influenza’. You have to have a vaccine, or you cannot enter an Aged Care Facility. QAS has to consider what alternatives it has given that direction is in force. Sending a paramedic who is not vaccinated even if that paramedic has a firm and consistent conscientious objection and is wearing PPE that they can guarantee will be 100% effective at protecting both them and the patient is still not complying with the direction.
8. The arguments made here may be relevant if you want to take the matter up with the Chief Health Officer but are irrelevant to QAS who have to comply with this direction. As for arguing the matter with the Chief Health Officer she is no doubt getting advice and not from you, or me, or any of my correspondents. The advice she is getting is, we can infer, that this is a reasonable and proportionate response to the risk. If you want to challenge that direction see https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/.
9. The argument that what we believe are our basic rights are being overridden is, as the many posts here show, fairly irrelevant. Parliaments can do that (https://emergencylaw.wordpress.com/2020/05/17/common-law-rights-v-parliaments-legislation/) and can authorise others, like the Chief Health Officer to do that but there can be arguments that legislation that overrides historical rights cannot stand where the action is disproportionate to the risk. That is true in Queensland where there is Human Rights legislation. As I said in my earlier post:
If you think that the laws do not meet those thresholds ie that they are not ‘reasonable and proportionate’ you would have to do something about it. And here let me make it clear that yelling into the wind (ie writing to me, or your MP, or posting on Facebook) is not doing something about it. You could complain to a human rights watchdog such as the Australian Human Rights Commission but that Commission, like those in Victoria, the ACT and Queensland, cannot declare legislation ‘invalid’ because it breaches human rights. They can make a report to the Minister or Parliament or a court may rule that an Act is inconsistent with human rights. The Parliament may or may not chose to amend the law, but a law that is a contravention of those international obligations remains a law (even if you want to describe it as a bad law) (Australian Human Rights Commission Act 1986 (Cth) s 29; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31; Human Rights Act 2004 (ACT) s 32; Human Rights Act 2019 (Qld) s 43)).
In conclusion you think the claim that vaccines are an effective and reasonable risk mitigation measure are wrong. I make no comment on that, you maybe right, what would I know. You are right that I have not ‘delved into the statistics’. But you think the claim is wrong, the Chief Health Officer presumably thinks the claim is right and that is why she’s issued these directions. Again to quote my earlier post:
If you were to try to get a remedy from a Supreme Court, or the High Court of Australia, you would need to do more than assert your belief that governments are not acting for that purpose or that the restrictions go beyond the ‘just requirements of … the general welfare in a democratic society.’ You may think those things are true but no doubt the government would have evidence to say that is exactly their purpose, they want to restrict our movement not only to protect us but to protect others from us, ie to secure the right to life of those particularly vulnerable to COVID-19. As for what is acceptable in a democratic society it would be very hard to argue that the restrictions we face are exceptional given that they are consistent with what is happening in nearly every other country including those that would be accepted as ‘democratic’…
Remember that those advising governments will no doubt be aware of and have studied for years, other pandemics and diseases. Mere assertions that you think they should do something else will no way persuade a court that this is true. If you wanted to challenge the government’s decisions you need to be privy to and address their evidence and advice, not merely present your own.
Thank you for your comprehensive reply. It has given me some direction to work with. As a Tasmanian Paramedic, I am not forced into anything (yet), but this gives me something to focus on and investigate further. Just in case… The mandate certainly got my blood pressure rising :(.
Regards
Lidwien
QAS gave staff a lot more than 2 weeks notice. Paramedics have a lot more interaction with nursing homes than fire and police. If fire go to a nursing home, interaction with residents is generally zero. A lot different to paramedics. If you have a legitimate reason to be exempt from getting the flu vaccine, you will be given an exemption and going to a nursing home will be risk managed as required.
This is the point though, those that cannot receive the vaccine can work around it with PPE etc… there are other options to risk manage without forcing people to vaccinate against their will, in order to keep their job. I agree with above, removing our choice here on a ?inconsequential flu vaccination lays the groundwork for further mandated therapies. I am not anti-vaccination, however I am pro-choice and I am concerned that the government has seen it appropriate to change laws in relation to our choices regarding invasive treatments.
A paramedic that does not get the flu vaccine (among other vaccines) are a danger to their patients and a danger to their colleagues. Therefore if a paramedic does not get their flu vaccine then they should be fired, end of story.
These are obviously old timer paramedics that began back when they weren’t even required to have a Hep B vaccine. They are also the paramedics that don’t like change and improvement in the healthcare industry, “this is how we’ve always done it” is the most toxic sentence in the healthcare industry and it fits right with ‘we’ve never been forced to have the flu vaccine before’, yeah that’s because in the past the flu has spread, well, like the flu, to your patients, your co-workers and the public. Flu vaccines should have been mandatory (unless you physically aren’t able to have it) a long time ago, it’s apart of doing the best for our patients.
I also put into question the education of these paramedics if they are refusing the flu vaccine. These old paramedics would find it extremely difficult going through university today (mainly because they probably haven’t done any tertiary education), now days, you can’t even complete a Bachelor of Paramedical Science without getting the following vaccines or showing serology to: Hep B ( and sometimes A), Varicella, Pertussis, tetanus, Measles, mumps, rubella plus of course the flu vaccine, not to mention you have to get a TB and MRSA screening .
Get the flu vax or retire