2021-09-04 07:43:42
Vaccine passport restrictions are constitutionally invalid. Here’s why
Australian governments are now starting to impose vaccination orders as the way out of lockdowns. They have decided that people who choose to not get vaccinated will have their basic rights restricted, including in their freedom of movement and association.
Prime Minister Scott Morrison has indicated that the unvaccinated must be treated differently to the vaccinated. Announcing a “four-phase” plan, he says that “special rules” for the unvaccinated will be applied.
In practice, this means that the unvaccinated will have fewer freedoms to travel and to get together with their loved ones, or even to go to restaurants and attend football matches.
In Western Australia, any resident who leaves the State for New South Wales and is seeking to return “can apply to do so on compassionate grounds, subject to the following conditions … Have received at least one dose of a COVID-19 vaccine…”, an August 19 Facebook post from Premier Mark McGowan reads.
Clive Palmer has recently announced that he will be launching another High Court challenge to WA’s border control policy on the grounds that it is constitutionally invalid.
He apparently argues that the actions of the WA Premier breach section 117 of the Australian Constitution according to which “[a] resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject … resident in such other State.”
However, this does not appear to be the relevant provision because the WA border control policies do not involve the type of discrimination that section 117 prohibits.
The discrimination prohibited by s 117 is thus discrimination on the basis of residence of a different State. However, the WA authorities have determined that the vaccine requirement applies equally to non-residents and residents of the state alike, thus creating a considerable hurdle in proving a breach of section 117.
In other words, when it comes to violating fundamental legal rights, these local authorities make no discrimination. They are “equal opportunity” providers.
Curiously, Palmer has already challenged the WA border control restrictions.
Section 92 of the Constitution informs that interstate trade, commerce, and intercourse “shall be absolutely free”. However, in Palmer v Western Australia (2021), Chief Justice Kiefel and Justice Keane controversially stated that the guarantee of absolute freedom in that provision “is not really absolute” and it should “not be taken literally”.
But returning to the issue of vaccination passports, instead of relying on section 117, the relevant provision appears to be section 51(xxiiiA) of the Constitution. This section indicates that no medical treatment should be imposed on anyone without their informed consent.
Of course, subjecting the unvaccinated citizen to travel bans violates the democratic principle of equality before the law. In Leeth v Commonwealth (1992), Justice Deane and Justice Toohey argued that the principle of equality is embedded impliedly in the Constitution.
According to them, “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government.”
The classic definition of judicial power, from which numerous court decisions have proceeded, is found in the 1909 case of Huddart, Parker & Co Pty Ltd v Moorehead.
There the nation’s first Chief Justice, Samuel Griffith, explained that the words ‘judicial power’ as used in section 71 of the Constitution mean the power of the courts to protect fundamental rights related to life, liberty or property.
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