Chapter 1Introduction
1.1On 9 February 2023, 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) were referred to the Education and Employment Legislation Committee (committee) for inquiry and report by 21 June 2023.
1.2Although this reference to the committee was for the bills to be considered together, the bills were initially introduced into the Senate separately:
the Prevention of Discrimination bill by Senator Pauline Hanson on 29 November 2022; and
the FWA bill by Senators Matthew Canavan, Alex Antic, and Gerard Rennick on 8 February 2023.
1.3On 15 June 2023, the Senate agreed to extend the committee’s reporting date to 25 August 2023.
Background to the bills
1.4During the COVID-19 pandemic in Australia, the Commonwealth and state and territory governments sought to manage the spread of the virus through several measures, including social distancing, increased awareness of hygiene, wearing of face masks, lockdowns, and the provision of free vaccinations against COVID-19.
1.5The Department of Health and Aged Care (Department of Health) website sets out some general information on vaccines:
COVID-19 vaccines are free for everyone in Australia. This includes people without a Medicare card, overseas visitors, international students, migrant workers and asylum seekers.
Getting vaccinated will help protect you, your family and your community from COVID-19.
The Australian Government has not made vaccination mandatory and you can choose not to get vaccinated against COVID-19.
1.6This website also states that:
Some state and territory public health orders can mandate vaccination in certain circumstances. For example, for some types of employment and for some community activities.
1.7According to the submission made by the Department of Employment and Workplace Relations (the department), all Australian jurisdictions have had some form of vaccine mandate in place over the last few years for certain cohorts, such as workers in the health and aged care sectors. The department stated that the majority of these mandates have since been relaxed or removed:
New South Wales, South Australia, Western Australia, the Northern Territory, and Tasmania have removed all public health orders mandating COVID-19 vaccination.
The Australian Capital Territory, Victoria, and Queensland still require COVID-19 vaccination in some high-risk settings, such as for aged-care workers.
1.8More generally, the department noted that:
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.
Purpose of the bills
Prevention of Discrimination bill
1.9Senator Hanson stated in the Second Reading Speech introducing the Prevention of Discrimination bill that it would serve ‘not only to prevent discrimination against people who choose not to receive vaccination against COVID-19, but in defence of basic principles which serve as essential foundations of Australian democracy’.
1.10The bill’s Explanatory Memorandum (PoD bill EM) notes that it ‘supports the inalienable rights and freedoms of all Australians, acts to minimise interference in our daily lives and aims to reduce the interference imposed by unnecessary, restrictive bureaucratic red tape’.
1.11The PoD bill EM states that the provisions of the bill would establish a new Act that prohibits the Commonwealth, states and territories, and other government and non-government entities from discriminating based on whether a person has had a COVID-19 vaccination, in the provision of goods, services and facilities and in employment, education, accommodation and sport. It also seeks to prevent any interference of free movement between and within the states and territories.
1.12A previous version of the Prevention of Discrimination bill was introduced on 21 October 202l, but lapsed at the end of the 46th Parliament on 25 July 2022. The Prevention of Discrimination bill currently being inquired into by the committee is substantially the same as the 2021 version of the bill.
FWA bill
1.13In his Second Reading Speech introducing the bill, Senator Canavan stated that the intention of the bill ‘is to protect those employees who choose not to receive a COVID-19 vaccination and acknowledge those thousands of people who lost their jobs when this was made a condition of their ongoing employment’.
1.14The Explanatory Memorandum to the bill (FWA bill EM) states that:
This Bill seeks to reinforce workers’ rights to refuse a workplace direction where it is not a reasonable and justified requirement of the job. It leaves no doubt for employees and employers that vaccine mandates must not be in place unless it is an inherent requirement of the position they hold and the tasks they undertake in that position.
1.15The FWA bill would amend the Fair Work Act 2009 (Fair Work Act) by adding ‘COVID-19 vaccination status’ as an attribute protected from discrimination. In doing this, the FWA bill seeks to provide that a person’s COVID-19 vaccination status cannot be used by an employer to take adverse action—such as not hiring, dismissing, or altering the position—against an employee.
Key provisions of the bills
Prevention of Discrimination bill
1.16As noted above, the Prevention of Discrimination bill seeks to establish a new Act that would prohibit the Commonwealth, states and territories and other government and non-government entities from discriminating based on whether a person has had a COVID-19 vaccination.
1.17Clause 4 of the bill seeks to establish the meaning of ‘discriminates’ in the context of the proposed legislation. Clause 4 proposes that requesting or requiring a person to provide proof of having received a COVID-19 vaccination or unfavourable treatment based on whether a person has not received a COVID-19 vaccination is discrimination.
1.18Clauses 7, 8, and 9 of the bill seek to prohibit the Commonwealth, states and territories from discriminating based on whether a person has received a COVID-19 vaccination, except in relation to frontline health or care workers employed by the Commonwealth.
1.19Clause 10 seeks to prohibit COVID-19 vaccination discrimination by other entities and introduce financial penalties as follows:
Employment—discrimination based on a person’s vaccination status—100 penalty units.
Businesses—must not refuse the provision of goods or services or refuse access to business premises on the basis of a person’s vaccination status—1000 penalty units.
Voluntary bodies—must not refuse membership, participation in the body’s activities, provision of goods or services, or refuse access to the premises based on a person’s vaccination status—100 penalty units.
1.20Clause 11 of the bill seeks to establish that COVID-19 vaccination must not be administered to a child under the age of 18 without the consent of a parent or guardian and introduces a penalty of 1000 penalty units.
1.21Finally, clause 15 of the bill seeks to require that a review of the operation and consequences of this Act is to be undertaken as soon as possible after 12 months from the commencement of the Act, with a report to be presented and tabled in the Parliament within six months of the review commencing.
FWA bill
1.22The FWA bill seeks to amend the Fair Work Act by adding ‘COVID-19 vaccination status’ as an attribute protected from discrimination. The bill defines COVID-19 vaccination status as:
…the status of a person relating to whether, and to what extent, the person has been vaccinated against the coronavirus known as COVID-19 (including any subsequent variants of that virus’.
1.23By including this definition, the bill seeks to provide that a person’s COVID-19 vaccination status cannot be used by an employer to take adverse action—such as not hiring, dismissing, or altering the position—against an employee. The bill specifies that modern awards and enterprise agreements should also not include terms that discriminate against employees due to their COVID-19 vaccination status.
1.24Further, the bill seeks to insert a new section 789HC into the Fair Work Act which would extend the anti-discrimination rules provision to cover state public sector employers and employees.
1.25More specifically, subsections 789HC(4) to (7) would extend the protection against discrimination on the basis of COVID-19 vaccination status under section 351 of the Fair Work Act to employers and employees that otherwise would not be covered, and in particular would extend the protection to state public sector employers and employees even where there is no referral by a state in relation to this.
1.26The bill also specifies that it would not apply retrospectively; rather, it would only apply to actions taken after its commencement.
1.27The Explanatory Memorandum to the bill confirms that the amendments proposed do not change the effect of the Fair Work Act, which specifies that it is not considered discrimination against an employee ‘if the reason for the discrimination is the inherent requirements of the particular position held by the employee’.
Consideration by other parliamentary committees
1.28When examining a bill, the committee considers any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.29In relation to the Prevention of Discrimination bill, the Scrutiny Committee raised concerns in relation to subclause 10(2), noting that the provision may raise scrutiny concerns under principle (i) in relation to the reversal of the evidential burden of proof. The Scrutiny Committee also noted that it may request further information from the bill proponent should it proceed to further stages of debate.
1.30In relation to the FWA bill, the Scrutiny Committee stated that it had no comment.
1.31The Human Rights Committee made the following statement in relation to each of the two bills:
The committee notes that this private senators’ bill appears to engage and may limit human rights. Should this bill proceed to further stages of debate, the committee may request further information from the senators as to the human rights compatibility of the bill.
1.32The FWA bill EM states that the bill is compatible with human rights because:
…it seeks to reinforce, for employees and employers, on anti-discrimination grounds, that vaccine mandates must not be in place unless it is an inherent requirement of the position they hold and the tasks they undertake in that position. An employer will not be in breach of the anti-discrimination grounds where the employer can prove that COVID-19 vaccination is an inherent requirement of the position.
1.33Similarly, the PoD bill EM states the bill is compatible with human rights as it ‘does not engage any of the applicable rights or freedoms in a negative manner. It has a positive impact with regard to human rights in that it ensures that discrimination cannot occur because a person has had, or not had, medical intervention to prevent COVID-19 infection’.
Conduct of the inquiry
1.34The committee advertised the inquiry on its website, issued a media release and wrote to a number of stakeholders directly to invite submissions by 24 March 2023.
1.35The committee received 132 public submissions, which are listed at Appendix 1 of this report and all available in full on the committee’s website. The committee accepted 281 confidential submissions, where there were concerns over the privacy of submitters.
1.36The committee also considered two form letter campaigns (with 2 and 22 examples respectively), with examples of both published on the committee’s website.
1.37The committee also held two public hearings in Canberra, on 2 May 2023 and 3 August 2023. A list of witnesses who gave evidence at the hearings is included at Appendix2, and a full Hansard transcript of evidence is available on the committee’s website.
Acknowledgement
1.38The committee thanks those individuals and organisations who contributed to this inquiry by making written submissions and giving evidence at the public hearings.