September 29, 2021


When two rights make a wrong

By Russell Marks
Image of a protestor holding a placard during the “Wake Up Australia!” march against mandatory vaccinations at Hyde Park in Sydney, on Saturday, May 30, 2020. Image © Bianca De Marchi / AAP Image

A protestor holding a placard is seen during the “Wake Up Australia!” march against mandatory vaccinations at Hyde Park in Sydney, on Saturday, May 30, 2020. Image © Bianca De Marchi / AAP Image

What can be done about anti-vaxxers and the far right’s rights-based critique of vaccination?

Jenny began working as a receptionist at Imlay House, an aged-care facility in Pambula, on the South Coast of New South Wales, in 2013. Imlay House is one of a handful of facilities run by Sapphire Coast Community Aged Care. To protect its residents’ health and safety, Jenny’s employer required her to get an annual flu vaccine, which she did in 2015 and 2016. But that second shot, she said, gave her a “major and debilitating skin inflammation” that “persisted for many months”, and which she claimed affected her internal organs. Jenny refused subsequent vaccinations, and Sapphire Coast let things slide.

Then, early last year, COVID-19 appeared in Australia. The elderly were especially vulnerable. On March 24, Health Minister Brad Hazzard issued a public health order banning aged-care workers from entering facilities if they didn’t have up-to-date flu vaccines. Sapphire Coast’s chief executive, Matthew Sierp, urged his staff to get vaccinated, and invited anyone who’d experienced an anaphylactic reaction in the past to get a letter from their doctor. Jenny gave her managers a letter from her Chinese medicine practitioner, who isn’t medically qualified. Sapphire Coast didn’t accept that as a legitimate basis for Jenny to avoid the flu vaccine. It stood her down at the end of April.

Jenny then gave her managers a new letter, this time from a GP. “Jennifer … has had a severe allergic reaction to the flu shot in the past,” it read, “and has been advised not to have it again.” But there were no specifics. The only evidence for Jenny’s anaphylaxis was her self-report. It wasn’t enough. She sent a follow-up letter to her managers, based on a draft she’d “grabbed from the internet”. “My research has led me to many studies which also support my conclusion that a flu vaccine is not completely safe or effective,” she wrote. “In any civilised country like Australia, I strongly believe that whether to have an invasive medical procedure is a personal decision and I should not be subjected to coercion.” Later, she described her research method: “I google-searched all sorts of stuff.”

On June 30, 2020, Jenny came back to work. Or, she tried to. She entered Imlay House, and was immediately escorted out. She went back to her GP and showed him photos of the rash she’d had in 2016. Hazzard had issued a second public health order in June, which exempted anyone who had their GP complete and sign an Influenza Vaccine Medical Contraindication Form. Jenny’s GP completed the form and attached the photos. But the photos weren’t dated. Sierp couldn’t see that the form was based on anything other than Jenny’s self-report of her anaphylaxis. He dismissed her on July 6.

Jenny then filed for unfair dismissal with the Fair Work Commission. At the hearing in February this year, Sapphire Coast presented an expert witness: Denis Wakefield, a former professor of medicine and now director of immunology and immunopathology at South East Sydney Local Health District. Wakefield said Jenny’s rash was unlikely to have anything to do with immunisation reactions, and it was more likely a chronic skin condition. Wakefield also spoke in dire terms about the “devastating effects” influenza can have on residents at aged-care facilities. Jenny was unable to present any records of her medical treatment in 2016, and didn’t call her GP to give evidence. Commissioner Donna McKenna accepted that Sapphire Coast had acted reasonably and prudently. She dismissed Jenny’s application.

Undeterred, Jenny appealed. And here, at the Fair Work Commission’s full bench, is where things get really interesting.

The three commissioners who comprised the full bench to hear Jenny’s appeal in June this year were Adam Hatcher, Bernie Riordan and Lyndall Dean. Hatcher and Riordan were both appointed by Bill Shorten when he was workplace relations minister in Julia Gillard’s government. Riordan had worked for sparkies’ unions. Hatcher was a union-friendly barrister who had been a Labor candidate at the 1990 federal election. Their appointments had sparked fury among business groups and supporters. “Shorten should be ashamed of himself,” thundered Andrew Bolt. Eric Abetz called them “jobs for Labor’s mates”. Donna McKenna, too, was a Shorten appointment, and had previously worked for a public service union and the Labour Council of New South Wales.

The full bench handed down its decision this week. Both Hatcher and Riordan were comfortable with McKenna’s original decision: Hazzard’s order was valid and necessary; Sapphire Coast did its best to comply with it, and also gave Jenny multiple opportunities to either get vaccinated or present objective evidence of her anaphylaxis. She did neither, so she couldn’t meet the conditions of her employment. The decisions by Sierp, McKenna, and then Hatcher and Riordon were straightforward applications of the law based on Hazzard’s order during a period of global pandemic. Jenny’s individual right to continue working while unvaccinated was trumped by the rights of Imlay House’s residents to avoid being exposed unnecessarily to influenza, when contracting influenza increases an elderly person’s risk of dying from COVID-19.

But that’s not how Lyndall Dean, the third member of the full bench, saw it. “Never have I more strenuously disagreed with an outcome in an unfair dismissal application,” she wrote emphatically. Dean was appointed by Michaelia Cash in May 2016. She’d been an employers’ lawyer, and when she and five others with employer backgrounds were made vice presidents two years later, against the recommendation of president Iain Ross, Labor and the unions accused the Morrison government of stacking the FWC.

Dean didn’t think anyone had the right to question the GP’s signed contraindication form: at law, she said, it was form that mattered, not substance. “It is not for the Commission to decide whether a medical practitioner has a reasonable basis for forming a medical opinion,” she wrote. (At law, this is arguable: much legislation that creates a role for expert certificates explicitly says that the certificate is the evidence. However, NSW’s Public Health Act doesn’t say that, so the other commissioners were probably right to point out that there was no substantive evidence to support the GP’s certificate.)

Dean then seemed to forget that Jenny’s case was about the influenza vaccine. She observed that the Morrison government, the ACTU, the Business Council of Australia and the Fair Work Ombudsman had all supported the voluntariness of COVID-19 vaccines for “most” workplaces. COVID vaccines aren’t designed to stop COVID, she wrote. Most people who die from COVID are old (which doesn’t seem irrelevant in an aged-care setting). Most people who get COVID recover. And the COVID vaccines being used in Australia are only provisionally approved (though influenza vaccines are fully approved). And she repeated the fallacy – one spreading wildly throughout the internet – that mandating a COVID-19 vaccine is in breach of the Nuremburg Code, formulated in 1947 after revelations of Nazi medical experiments. (The code doesn’t apply to any of the vaccines available in Australia, because they’ve been provisionally approved by independent regulators following clinical trials.)

It’s unclear why Dean spent so much time talking about COVID-19 vaccines in a case about influenza vaccines. She editorialised further. The risk that Australians will die of COVID, she wrote, is small compared with their risk of dying from cancer or heart disease or strokes or suicide or, most relevantly in Jenny’s case, influenza and pneumonia. She went even more tangential. “Each and every single day, around 8000 children die around the world from starvation, which of course is completely preventable.” There were more than 4000 registered paedophiles in NSW in 2019, but there are no blanket rules that prevent them from participating in society. “It is now time to ask”, Dean concluded, “whether the ‘cure’ is proportionate to the risk.” Her decision could be straight out of Andrew Bolt’s playbook.

Lyndall Dean’s excoriation against mandatory COVID-19 vaccines, while irrelevant to the case she was deciding, points to a broader cleavage that has emerged in Australia. We’re often in unfamiliar territory. In Jenny’s unfair dismissal case, three Labor-appointed commissioners with union backgrounds upheld an employer’s right to sack a worker for not complying with the employer’s mandatory vaccination regime. A Coalition-appointed commissioner with a business background emphasised the worker’s human right to work.

The same split is reflected throughout Australia. Labor premiers Mark McGowan, Annastacia Palaszczuk and especially Dan Andrews have been much more supportive of temporarily sacrificing individual liberties in defence of public health goals, while Gladys Berejiklian and Scott Morrison have prevaricated on mandatory vaccinations, “vaccine passports” and preventive lockdowns.

In Australia, it’s the pro-restriction position that is in the ascendancy. Because it’s seen as backed by public health evidence, it’s endorsed by Labor, the Greens, Guardian Australia and the ABC, and by many unions (including, as we saw in Melbourne last week, the CFMEU). Generally, those groups also endorse a minority rights position. But in relation to lockdowns and mandatory jabs, it’s a minority who don’t accept the public health evidence, or who don’t want their freedoms restricted by its application. So the rights-based critique is being prosecuted by the far right: Sky After Dark shock-jocks, Murdoch tabloids, politicians like Craig Kelly, Pauline Hanson and George Christensen, and a growing fringe of so-called “independent” internet commentators including Avi Yemini (of the Canadian-based Rebel News) and Rukshan Fernando. Their views are held by a small minority of Australians, but it’s a significant minority with a growing sense of its own righteousness.

Should the pro-restriction “establishment” be taking more seriously the far right’s rights-based critique? In her minority decision at the FWC, Lyndall Dean wrote that “research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the healthcare industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility.” Dean believes that a more democratic approach to addressing vaccine hesitancy involves better education, taking the time to address specific concerns, and promoting informed consent. “It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation.”

Despite her errors of emphasis, does she have a point? Canadian philosopher Maya Goldenberg, author of the 2021 book Vaccine Hesitancy: Public Trust, Expertise and the War on Science, says the problem is more fundamental than a lack of education about science. The problem is that there’s now a significant minority in Western countries that doesn’t trust medico-scientific institutions and their research. As in other places, vaccine hesitancy in Australia was “slowly ticking upwards” well before the COVID-19 outbreak. Simply providing more information endorsed by the CSIRO, universities, drug companies and governments doesn’t address this problem, which has the same roots as much of the opposition to the scientific consensus on climate change. “Against the huge body of literature supporting the scientific consensus view,” Goldenberg writes, “opponents pick out selective, and often disreputable, counter-evidence.”

Australians are lining up on one side or the other of the policy debates around COVID-19 based on the degree to which they trust the institutions of mainstream science. As can be seen in Jenny’s FWC case, this is even more determinative than our positions on workers’ rights. It also explains why anti-vaxxers are also likely to be climate change deniers, and why they prefer conspiracy theories and other “alternative facts” on YouTube to public health messaging.

While the form of protests against lockdowns and mandatory vaccinations – petitions, street marches, civil disobedience – looks similar to that used by other civil rights movements, its substance is ultimately quite different. Whereas workers, women, people of colour, students and LGBTIQ people have campaigned for equal access to civil rights enjoyed by others, these protesters simply want to do what they like, emboldened by what Malcolm Knox – in his brilliant reflection on the Israel Folau free speech controversy, Truth is Trouble – calls “up yours” commentators: Bolt, Alan Jones, Mark Latham. They have much more in common with the white parents who shouted abuse at 6-year-old Ruby Bridges when she began attending the William Frantz Elementary School in 1960, or with the angry convoy of white drivers who followed Charles Perkins’ Freedom Riders out of Walgett in 1965, than they do with people protesting for asylum seeker rights or for climate justice. It’s unlikely the anti-lockdown protesters we’ve seen in recent months have ever had very much to say in favour of anyone else’s human rights.

This isn’t to say we shouldn’t question restrictions, as The Age editorial famously did on September 1 (though The Age hardly occupies a moral high ground, with Nine’s newspapers in receipt of Clive Palmer’s ad dollars until they bowed to public pressure a fortnight ago). Current public health orders mandating COVID vaccines are against the advice of the Australian Health Protection Principal Committee, which as recently as June 29 said “mandating vaccinations … could have unintended consequences, including on the availability of the workforce”. In her decision, Lyndall Dean said – rightly – that restrictions that “deny people their fundamental right to work” or “operate to ‘lock them out of society’” must be “proportionate and necessary to manage the risk”. But this language seems overblown given the context. All that’s being required of people is that they receive two simple jabs in the public interest as a way of containing a global pandemic. We can also construct arguments that being coerced to drive on the left, or to wear seatbelts, or to pay taxes are inexcusable incursions on our civic freedoms. We already live with many mild restrictions on our individual freedoms, precisely so that others can also maximise their participation in the community.

Can vaccine hesitancy be overcome, as Lyndall Dean suggests, by better information and addressing concerns? I tried this while I worked briefly for a union earlier this year. But the members I spoke to who didn’t want mandatory vaccines just didn’t want vaccines, full stop. They didn’t want to seek medical advice from their GPs, because their GPs didn’t have “the right information”. They weren’t open to public health arguments. They had their own evidence base, sourced from Google and Facebook and YouTube. They were outraged. They demanded their rights under the Nuremburg Code. I could have talked to them for a week or a month and they wouldn’t have budged.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

From the front page

Image of Anthony Albanese

How to be a prime minister

The task ahead for Anthony Albanese in restoring the idea that governments should seek to make the country better

Image of the Kiama Blowhole, New South Wales

The edge of their seats

Lessons from Gilmore, Australia’s most marginal electorate

Image of Peter Dutton and Sussan Ley

The future of the Liberal Party

Peter Dutton doesn’t just have a talent problem on his hands

Image of Australian Army Cadets on parade. Image via Alamy

Ghosts in the war machine

Does the military attract violent misanthropists, or are they forged in murky theatres of war?

Online exclusives

Image of Australian Army Cadets on parade. Image via Alamy

Ghosts in the war machine

Does the military attract violent misanthropists, or are they forged in murky theatres of war?

Composite image showing John Hughes (image via Giramondo Publishing) and the cover of his novel The Dogs (Upswell Publishing)

A dog’s breakfast

Notes on John Hughes’s plagiarism scandal

Image of Erin Doherty as Becky Green in Chloe. Image supplied

App trap: ‘Chloe’

‘Sex Education’ writer Alice Seabright’s new psychological thriller probing social media leads this month’s streaming highlights

Pablo Picasso, Figures by the sea (Figures au bord de la mer), January 12, 1931, oil on canvas, 130.0 × 195.0 cm, Musée national Picasso-Paris. © Succession Picasso/Copyright Agency, 2022. Photo: © RMN - Grand Palais - Mathieu Rabeau

‘The Picasso Century’ at the NGV

The NGV’s exhibition offers a fascinating history of the avant-garde across the Spanish artist’s lifetime