Chapter 2Matters raised in evidence
2.1This chapter discusses the evidence received by the committee relating to the COVID-19 Vaccination Status (Prevention of Discrimination) Bill 2022 (Prevention of Discrimination bill) and the Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Bill 2023 (FWA bill).
2.2The chapter first discusses the general support for the bills in the large number of submissions received from individuals. It then moves to discussing views provided to the committee by organisations and individuals, particularly noting where supporters of the bills proposed amendments that would strengthen their provisions.
2.3In the same way, it then outlines the evidence received by the committee that opposed the bills. This evidence argued that:
the relaxation or removal of most public health and workplace vaccine requirements has made the provisions of the bills unnecessary;
existing provisions of the Fair Work Act 2009 (Fair Work Act) already provide sufficient protections to uphold employment rights, making these bills redundant; and
the provisions of the bills could create potential imbalances between the rights of individuals to refuse vaccines on one hand, against the broader community’s right to good health protections on the other.
2.4This chapter also sets out the committee’s view and recommendation.
Support for the bills
2.5The committee received a significant number of submissions from organisations and individuals in support of the bills, as well as a large volume of correspondence from individuals related to COVID-19 mandates, vaccines and government responses to the pandemic.
2.6This section first outlines the contributions from individuals, which were almost unanimously critical of mandates and vaccine requirements put in place during the pandemic, before looking at more specific issues raised in submissions.
Submissions and correspondence from individuals
2.7The overwhelming majority of material provided to the committee by individuals was highly critical of vaccine requirements in Commonwealth and state and territory health orders, as well as requirements put in place for certain sectors and workplaces. A significant number of individuals did not specifically express support for the bills, or address any of the proposed provisions directly, but some clear themes were apparent:
accounts of the ways in which individuals felt they had been discriminated against or disadvantaged by their employers, businesses, service providers, and communities, including the temporary or permanent loss of employment, often accompanied by feelings of being ‘forced out’ of particular careers;
criticisms of Commonwealth and state and territory governments in the handling of the pandemic, including regarding mandates for particular sectors including health and emergency services, border shutdowns and other measures;
adverse health and mental health conditions, either as a side effect from vaccines, or as an effect of alleged discrimination and exclusion; and
questions raised about the seriousness of the pandemic and/or the efficacy of vaccines to address it, which in turn were used to question the use of mandates for particular sectors and/or activities.
Efficacy of vaccines and value of mandates
2.8The committee received submissions that argued that vaccines were ineffective protections against acquiring and/or transmitting the coronavirus, and therefore vaccine mandates aimed at stemming transmission were not fit-for-purpose.
2.9For example, World of Wellness submitted that:
We now have robust, indisputable and overwhelming evidence that the COVID-19 vaccines are neither safe nor effective in preventing the spread of the SARS-Cov-2 virus and protecting public health. We do not support the government’s efforts to encourage experimental and unproven novel mRNA vaccination. In fact, the evidence proves that it has not protected the community from COVID-19. In fact there is a very large global body of evidence that the vaccines are causing unacceptable harm.
2.10Similarly, the Australian Medical Professionals’ Society (AMPS) suggested that there was no reasonable justification for instigating mandates, as there was insufficient evidence for the effectiveness of vaccines to stop transmission:
There was no evidence the vaccines stopped transmission at the time mandates were legislated. Government [Therapeutic Goods Administration Australian Public Assessment Reports (TGA AusPAR)] reports confirm that the vaccine had no data ‘to show efficacy against asymptomatic infection and viral transmission’. There was no evidence that coercively enforced provisional vaccines could achieve the indication for which they were approved, stopping or reducing the spread. Trial and real-world data show these provisionally approved vaccines do not prevent the spread of COVID-19. There are no reasonable exclusions from anti-discrimination or fair work legislation that justify coercing employees to inject and be injected with an investigational product, bearing known and unknown harms, that fails to fulfil its stated goal.
2.11Other submitters also questioned whether vaccines had been shown to effectively reduce the transmission of coronavirus. For example, Coverse submitted:
…it has emerged that clinical trials for the COVID-19 vaccines never assessed the products for their effect on curbing transmission, and public data since the rollouts indicates that such effect is minimal. Nevertheless, the entire basis for implementing mandates was that a highly vaccinated population would significantly reduce community transmission of the virus. This was clearly a misplaced ideology, unfounded in the science. Hence all justification for workplace vaccine mandates and vaccine passports were ‘wishes’ as opposed to robustly supported scientific facts. Put simply, Australians were misinformed by the Government, public health experts and commentators on the need for vaccine mandates in order to curb community transmission of the virus. Many of those whose health has been significantly impacted as a result of these measures have been placed in this situation through ‘official misinformation’.
COVID-19 vaccines and adverse health outcomes
2.12Some argued that vaccine mandates should not have been imposed, due to the alleged scale and risks of adverse health outcomes from COVID-19 vaccines.
2.13For example, Coverse submitted that the number of vaccine-related adverse reactions and injuries had been far greater than admitted by governments, drug regulators and manufacturers. In arguing against mandates, it said that:
Despite claims of COVID-19 vaccine products to be both safe and effective, a diverse list of life-changing adverse reactions emerged during the clinical trials and the global rollout that have not been acknowledged by drug regulators.
While some of these adverse reactions (such as thrombosis, myocarditis and pericarditis) have since been acknowledged by governments, there remain a large number of people suffering from a clear constellation of other adverse reaction illnesses that have not been recognised by drug regulators or governments, and who receive no assisted treatment or compensation.
2.14Some participants noted that COVID-19 vaccines have been linked to a number of deaths in Australia.Ms Deborah Hamilton, whose daughter, Natalie, died after being vaccinated with the Moderna vaccine, gave evidence to the committee in a submission and at a public hearing. Her submission told the committee that:
I believe people have the right to make their own decisions on their medical rights and should not be discriminated against and forced to have any further Covid-19 vaccines if they do not wish to. There is no way any of my family members or friends will be having any further vaccines with what happened to Natalie. Why should we be mandated to have more vaccines and have to lose our jobs if we don’t?
Does the government and Fair Work Australia have the right to force vaccines on people especially now knowing that the vaccine has caused deaths and also many injuries? No government should have the power to make decisions on an individual’s health especially on a vaccine that is only provisionally approved.
2.15AMPS claimed that, alongside a number of adverse physical reactions to COVID-19 vaccinations, vaccine mandates had created a very large mental health burden for many Australians:
There is now a large body of peer-reviewed scientific evidence to support the psychological and physical adverse effects of COVID-19 vaccine mandates. The threat of loss of income, livelihood, career, reputation, social interaction and access to health care, all created through vaccine mandates, imposed a substantial psychological burden upon the population.
2.16The Australian Firefighters Alliance described how mandates had affected its members who had been stood down because of their stance on vaccines:
Financial and Psychological impacts have been immeasurable, long term and without end, affecting families, spouses, relationships, loss of homes and assets, incredible loss of livelihood and the ability to experience joy and the enrichment of their family’s lives – their lives and those of their families have been on hold, and they’ve suffered adjustment disorders, severe depression anxiety and stress; all as a result of the imposed mandates and adverse actions.
The immoral and unethical mandate decisions from respective fire service Employers, as well as State, Territory and Commonwealth Governing bodies has resulted in an immeasurable toll on our members; this is in the forms of acute and chronic psychological injuries and extends into physiological damages and social impacts.
We have members, and are also aware of an extensive array of Firefighters, sustaining life-altering and life-altering injuries and illnesses from the mandated vaccines, including Myocarditis and/or Pericarditis, Rheumatoid arthritis, Blood clots and more.
2.17Coverse noted that many individuals had sought exemptions from being vaccinated, as they considered it a risk to pre-existing health conditions, or were worried about potential adverse effects. It was suggested these individuals faced significant barriers to obtaining exemptions, including:
a reluctance of doctors to link COVID-19 vaccinations to adverse health effects experienced by patients;
doctors’ fear of potential repercussions from going against the set position on vaccines held by ‘health profession regulators’;
health authorities rejecting exemptions issued by medical professionals; and
exemptions being temporary, even for individuals with permanent health conditions.
2.18Mr Jay Vidanage, a lawyer representing many individuals in vaccination-related cases, claimed that vaccine mandates had created staff shortages in crucial sectors, including allegedly the current ‘dangerously understaffed public health system’.
Human rights
2.19Some stakeholders considered that the bills represented a positive step in supporting and strengthening human rights in Australia, suggesting that mandates had curtailed the rights of many individuals to not be vaccinated.
2.20For example, the AMPS understood the bills to be ‘prioritising the individual’s human rights before the interests of the state with the goal of defending and protecting individuals’ human and workers’ rights’.
2.21World of Wellness commented that the bills were ‘consistent with the principles of medical ethics and human rights’, and so represented:
…important steps towards ensuring that individuals are not discriminated against based on their vaccination status. They recognise that vaccination is a personal choice and that individuals should not be penalised for choosing not to be vaccinated, especially if there is strong evidence of a lack of safety and efficacy. Where preventive and early treatments are available, as is the case with Covid but denied to Australians, common sense and the precautionary principle dictate that these should be promoted as a priority over an experimental vaccine.
Proposed amendments to the bills
2.22Some submissions in favour of the bills proposed amendments to broaden or strengthen their provisions, including extending protections to all medical and health professionals, and addressing some potential unintended consequences.
More robust protections for health workers
2.23Some evidence argued that the bills did not make sufficient provisions to protect the rights of workers in the health sector. For example, the AMPS commented:
…the drafting of these bills appears to allow broad discrimination by vaccination status through the exclusion of all Commonwealth, State and Territory employees, all frontline health and care workers and anyone deemed by an employer to require vaccinations as inherent for their employment. It is difficult to understand how these bills would affect vaccine health mandates and directives for AMPS members now or in future.
2.24Coverse expressed concern that the Prevention of Discrimination bill makes exceptions ‘for certain employment settings (i.e. frontline health or care work)’. It explained that:
…it has been common for workers in such settings, who have been injured by a mandated vaccination, to not receive adequate medical care or financial assistance (including worker’s compensation). It is also almost impossible for these employees to receive exemptions. Understanding that the social and political environment surrounding vaccination harms is discriminatory towards those who have been impacted is an essential component of determining the validity of mandates.
2.25AFL Solicitors noted the bills would not provide specific protections for health workers. Moreover, it argued that the FWA bill did not protect individuals that chose not to be vaccinated, should an employer deem vaccination as an ‘inherent requirement’ of their job. Accordingly, AFL Solicitors proposed amendments to both bills, so that:
the Prevention of Discrimination bill includes provisions ‘to protect Commonwealth, State and Territory employees, including all frontline health and care workers from COVID-19 vaccination status discrimination’; and
the FWA bill includes a clear definition of ‘the term “inherent requirements” [and that this is] noted as a high threshold requirement in the Act to ensure no ambiguity causes mischief in the Fair Work Commission’.
Unintended consequences of focussing on COVID-19 vaccines only
2.26Coverse noted that the FWA bill provisions would specifically add protection against discrimination based on COVID-19 vaccination status, suggesting that this may ‘be rendered wholly obsolete within a short period of time’. The bill should, it was argued, include a broader protection of ‘vaccination status’, to ensure protection for any similar discriminatory issues stemming from refusal of any mandated vaccine in the future, not just those for COVID-19.
2.27This position was also articulated by the Children’s Health Defence:
Broadening the scope would ‘future proof the legislation so as to encompass discrimination based on as yet unknown, yet probable, other medical treatments promoted to persons for some new and purported threat to their health… [by] the following wording to be inserted in Section 4 wherever ‘Covid-19 vaccination’ occurs:..‘a Covid-19 vaccination or any other medical treatment’.
2.28On this matter, the Department of Employment and Workplace Relations (the department) confirmed it would be hard to predict the consequences of the restricted protection of the bills as currently drafted. Ms Sharon Huender, the Assistant Secretary of the WR Strategy Branch, explained:
…if you were to put in a protection specifically around the COVID-19 vaccination it would result in an anomaly where an employer could dismiss an employee for refusing another vaccination—for example, a flu shot if an employee works in an aged-care environment where they may have those are mandated. It throws up some anomalous outcomes there.
Opposition to the bills
2.29The committee considered evidence opposing the bills on several grounds, including that:
the majority of public health orders and workplace requirements regarding vaccines have been relaxed or removed, rendering the protections proposed by the bills redundant;
the Fair Work Act already includes sufficient protections for workers rights; and
changes proposed in the bills could entrench an imbalance between community and individual rights.
2.30In discussing the relaxation and removal of vaccine requirements, this section also briefly sets out evidence for the safety and effectiveness of vaccines, given that so many stakeholders in favour of the bills raised questions on these matters.
Relaxation or removal of vaccine requirements
2.31The department’s submission noted that all Australian jurisdictions had instated some form of health orders in response to the pandemic, but that most of these have been subsequently ‘relaxed or entirely removed’. Given this, the department suggested that the amendments proposed by the bills were ‘unnecessary’:
In the absence of public health orders setting COVID-19 vaccine mandates in the workplace, the way in which the risk of COVID-19 in the workplace is managed becomes a matter for each individual workplace to determine, accounting for relevant workplace relations, discrimination, work health and safety, and privacy laws.
This will result in COVID-19 vaccination requirements in the workplace being treated in the same way as other vaccination requirements, such as for the flu or other infectious diseases, which are common requirements for some roles in industries such as aged care, childcare, healthcare, and roles with close contact with animals or animal products.
The department’s view is that COVID-19 vaccinations should be treated in the same way as other vaccinations and that the amendments proposed by this Bill are therefore unnecessary.
2.32The department noted at the time it made its submission, that the Australian Capital Territory (ACT), Victoria and Queensland still required COVID-19 vaccination for workers in some high-risk settings, such as aged care.
Safety and effectiveness of COVID-19 vaccines
2.33The committee was interested in considering evidence relating to the safety and health protections of COVID-19 vaccines. This was particularly because some stakeholders questioned the benefits of mandates and health orders based on vaccines, if those vaccines did not completely prevent transmission–as set out earlier in this chapter.
2.34On the safety of vaccines, Professor Anthony Lawler, the Deputy Secretary of the Health Products Regulation Group of the Therapeutic Goods Administration (TGA), told the committee:
The TGA undertakes a number of actions to ensure the safety, efficacy and quality of the medications that are entered on to the Australian register of therapeutic goods. These include, obviously, premarket assessment… [including] the provisional approval pathway undertaken for these vaccines. We also undertake significant pharmacovigilance activities in the post market surveillance. This includes being fully aware and apprised of literature of varying levels of scientific rigour and incorporating them into our post market surveillance, as we search for signals. It also includes our significantly well-developed and well-subscribed reporting of adverse event process in Australia.
2.35The TGA regularly publishes a Covid-19 vaccine safety report. The most recent report notes 68.5million doses of COVID-19 vaccines have been administered in Australia, with just under 140 000 adverse effects reported. Most adverse effects were mild and transient symptoms, such as headache, muscle pain, fatigue and nausea, or skin reactions of swelling, redness and/or rash. However, the report noted that some adverse effects could be more serious, including ‘14reports where the cause of death was linked to vaccination from 996 reports received and reviewed [with] no new vaccine-related deaths identified since 2022’, and no deaths of children or adolescents linked to vaccines.
2.36Reflecting on the adverse effects of COVID-19 vaccines, Professor Lawler told the committee:
To 23 July 2023, there have been 139,270 adverse event reports for COVID-19 vaccines, which gives us a rate of two per 100,000. I think it is important to note that a number of features do hamper our ability to take those numbers as overall evidence of serious adverse events that are vaccine related. These include such issues as reporting capture. Obviously, it goes to the inclination of individuals to report those events. I want it to be very clear, Senator, that at the TGA we very much encourage the reporting by consumers or health professionals of adverse events that they believe follow a vaccination whether there is evidence or not that they are actually caused by the vaccine.
2.37Dr Krishan Thiru, the Country Medical Director of Pfizer Australia, told the committee that the findings of the TGA were consistent with those of other regulators globally:
This benefit-risk ratio of vaccination in all age groups in all populations continues to be strongly positive. Vaccination continues to be encouraged by health authorities globally, including in Australia. The most common adverse events that are seen are local reactions—a painful arm, some redness or swelling, some muscle aches and pains, maybe a fever or some fatigue or tiredness. We take all reports of adverse events seriously. We collect that information. We analyse that information. We communicate it to regulatory agencies such as the TGA. They’ve pooled that data from the safety data that they receive from other sources, be it from health care professionals, patients directly or state departments of health. Their conclusion is very consistent with conclusions of other regulatory agencies around the world. That is, that the benefit-risk ratio for vaccination remains strongly positive in all indications and all age groups for which it has been approved.
2.38On the benefits of vaccination in the reduction of transmission, DrAndrewPengilley, Medical Officer 5 of the Medicines Regulation Division of the TGA, told the committee that:
You can look at transmission broadly in two ways. You can look at it as the effectiveness of the vaccine in preventing somebody getting COVID; if you do that, then you’ve prevented transmission to that person. Both in the clinical studies that have been submitted for registration and moreover in the literature now, there is an abundance of evidence that vaccination has the ability to prevent people from acquiring an infection of COVID however that is defined, whether you define it with symptomatic infection, serious infection or [not getting the disease]…
2.39Dr Thiru of Pfizer outlined the value of vaccines in fighting COVID-19 transmission and effects:
Let me just say that the primary purpose of vaccination, the approved product label and the regulatory approvals in Australia and around the world were to prevent infection, prevent severe disease and prevent hospitalisation. That is what our clinical trial program sought to demonstrate. That is what was demonstrated. That was the evidence that was evaluated by regulatory agencies and by health authorities. That was the strong, robust clinical evidence that led to the approvals that were received in Australia and in many other countries.
2.40Dr Rachel Dawson, Moderna’s Executive Director of Medical Affairs, Respiratory Vaccines, commented that:
…COVID-19 vaccines were primarily designed to protect individuals from COVID-19 infection, so the disease, hospitalisations and deaths. They have actually very effectively done so. However, I can add that the COVE study, which was our large phase 3 study used for licensure of Spikevax early in the pandemic, demonstrated that vaccination with the primary series not only helped to prevent severe infections and mortality but also prevented milder and even asymptomatic infection. The importance of that is that prevention of asymptomatic infections can make an important contribution to reducing viral transmission.
Existing Fair Work Act provisions
2.41Some evidence drew the committee’s attention to existing protections in the Fair Work Act, arguing that these were already fit-for-purpose.
2.42This was most comprehensively set out by the department’s submission, which observed that, although discrimination falls primarily under Commonwealth and jurisdictional anti-discrimination laws, the Fair Work Act already contains:
protections against discriminatory conduct on the grounds of protected attributes, namely: race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin; and
a prohibition on discriminatory terms in modern awards and enterprise agreements, and on the termination of employment for discriminatory reasons.
2.43The New South Wales Council for Civil Liberties (NSWCCL) also considered that current protections are sufficient:
In our view, section 351 of the [Fair Work Act] in its current form adequately affords protection to unvaccinated people (when balancing the right to be unvaccinated against the rights of the broader community), making the proposed FW Amendment Bill redundant.
2.44Mr Josh Pallas of the NSWCCL drew out this theme, telling the committee he considered the bills unnecessary. He explained:
The status quo of work health and safety laws and employment laws are sufficient as they are. Employees are already protected, to a proportionate extent, from discrimination based on vaccination status if it’s due to disability or to religious or political views.
2.45The department provided evidence that the addition of further protected attributes would add complexity to anti-discrimination laws, and therefore make them more difficult to navigate for employers and employees:
…the addition of COVID-19 vaccination status as a protected attribute in the FW Act… would be likely to increase what is already a complex area of law.
In addition, the proposed amendments could cause confusion for employers as to whether they can use COVID-19 vaccination mandates as a control measure to manage the risk of COVID-19 in the workplace and meet their duty of care under work health and safety laws.
2.46Additionally, it was noted that the bills may cause some discrepancies between Commonwealth and jurisdictional anti-discrimination frameworks.
2.47For example, the NSWCCL’s submission expressed concern that the bills would ‘override other laws’ of the Commonwealth, and states and territories’, and would be contradictory to the current anti-discrimination framework.
2.48Mr Stephen Still, the Assistant Secretary of the Employment Standards Branch noted that the FWAbill’s amendments would be ‘unusual’ and unpredictable in its potential effects:
…ordinarily, the prohibition against discrimination in section 351(1) is limited by circumstances that are not unlawful under a state or territory law. That exemption applies to all of the existing protected attributes. The proposal in this bill is that it not be included. The result of that is that the protected attribute for COVID-19 vaccination would have many fewer exemptions. One of the consequences of that is it’s difficult to know whether the prohibition will always apply in appropriate circumstances. By the same token, the prohibition will have some of the features of the existing protection. For example, the prohibition would include the existing exemption for inherent requirements of the job. In the context of some of the disputes that have arisen about COVID-19 vaccination it has frequently been the case that the Fair Work Commission has found dismissals were justified because vaccination was an inherent requirement of the role. It’s very difficult to say precisely what the impact of the provisions would be. To be honest, it’s a little bit unpredictable. It would certainly be the first time we’ve put in place a protective attribute that is so narrow in scope.
A potential ‘imbalance’ in human rights
2.49The NSWCCL submitted that it supports the right of individuals to choose whether to receive a vaccine, and acknowledged there were valid reasons for vaccine refusal, including medical and religious reasons. However, it noted that the broader community is ‘deserving of the greatest level of health and wellbeing available’, including that:
employers and businesses–being able to provide safe workplaces under federal and jurisdictional work health and safety laws;
employees and other workers–having the right to safe workplaces under the same laws; and
the vulnerable and at-risk (including immunocompromised)–being protected from infection and adverse health effects of COVID-19.
2.50The bills would, the NSWCCL argued:
…allow an imbalance between the important task of protecting the choice to be unvaccinated and protecting the wider community from infections of COVID-19. Where human rights may come into conflict or become restricted, consideration must be given to whether that restriction is reasonable, necessary and proportionate.
In our view, the importance of the rights of the broader community (ie right to life, right to health) outweigh the individual’s rights that the proposed Bills are seeking to protect.
2.51The NSWCCL concluded that:
…the Bills unreasonably and disproportionately protects the unvaccinated at the expense of the rights of other members of the community. Based on the generally accepted medical science, the Bills are incompatible with human rights.
Committee view
2.52The committee recognises that the COVID-19 pandemic has been very difficult for many Australians, and expresses its appreciation to the individuals that shared their experiences in submissions, as well as the organisations and individuals that took the time to provide evidence at hearings.
2.53However, the committee has serious reservations about these bills on several grounds, not only that they seem unnecessary, but also that they would not enhance existing Australian laws protecting workplace and human rights.
2.54The committee notes that most of the health and workplace restrictions that were put in place over the pandemic have now been relaxed or removed by governments and workplaces. On this ground alone, it seems to the committee that the provisions of the bills are unnecessary.
2.55The committee also considered the safety and effectiveness of COVID-19 vaccines, in particular the evidence set out by the TGA on the benefit of vaccinations to both individuals and the community more broadly. This reassured the committee that vaccines were a necessary tool to reduce transmission of the disease, as well as the mitigation of its severity.
2.56On the potential effects of the bills, the committee considers that the implementation of their provisions would not enhance the health and workplace protections currently available to all Australians, as they could weaken our current workplace anti-discrimination protections, and risk existing Commonwealth and jurisdictional human rights frameworks.
2.57In particular, the committee noted the anti-discrimination provisions already included in the Fair Work Act, which provides protection from discrimination based on vaccination status resulting from a disability or religious views, among other protections.
2.58The committee also notes that some evidence, including from the department, highlighted potential areas of uncertainty between Commonwealth and jurisdictional workplace frameworks that could be created by implementation of the bills, including the ‘unusual’ and ‘unpredictable’ provisions of the FWA bill.
2.59Even supporters of the bills were concerned about the bills enshrining an imminently redundant protected attribute in the Fair Work Act for COVID-19 vaccine status.
2.60Lastly, on the bills’ potential effects on human rights, the committee concurs with the view of the NSWCCL that the bills could cause an ‘imbalance between the important task of protecting the choice to be unvaccinated and protecting the wider community from infections of COVID-19’.
2.61On these grounds, the committee recommends that the Senate not pass the bills.
2.62It is recommended that the Senate not pass the bills.
Senator Tony Sheldon
Chair