Despite the government's affirmation that taking the COVID-19 vaccine is not mandatory, Qantas announced in late 2020 that to fly with the carrier.
The move sparked debate around the legalities of enforcing such a move. SBS Chinese reached out to Clifford To, a solicitor and a notary public with To & Co Lawyers, to explain how far businesses can go when enforcing a similar move.
Plainly, he says airliners and other businesses have the right to enforce any restrictions on individuals who are seeking their services or entering their premises, as long as they comply with the provisions of Australia's Anti-Discrimination Act.
"In general, shop owners have the right to decide who can or cannot enter the premise, unless such restriction is considered discriminatory," Mr To said.
"When a person is being treated relatively poorer, that is considered as discrimination."
Under Australian law, he states, "It is legally acceptable for shop owners to treat certain people inferiorly, as long as that inferior treatment is not based on people's race, gender, age, sexual orientation, or disability".
"Therefore, a shop owner can generally deny entry or the provision of services to anyone except for the above reasons," he adds.
Open for business. Source: Getty Images/Mixetto
Businesses can impose "reasonable" measures
However, if a person opts out of COVID-19 vaccination - and subsequently is barred from entering a premise or from receiving services - Mr To believes such treatment has the potential to be considered "indirectly discriminatory".
"For instance, there are reports suggesting that certain vaccines may not be suitable for some elderly, and thus most elderly might not be receiving such vaccinations.
"If shop owners deny entry to the elderly who are not suitable to receive the vaccines, they might be engaging in indirect discrimination."
Mr To adds: "Certainly when suing for indirect discrimination, the court will look into whether the measures or restrictions in question are reasonable. If they are reasonable, shop owners might be able to get away with that."
"But of course, whenever there are legal disputes, there is always room for arguments."
For example, he says if Qantas does deny entry to people who refuse being vaccinated, it might be reasonable for the carrier to argue such measures are to, "Protect the health and wellbeing of their crew members and other passengers".
NSW Premier Gladys Berejiklian watches a radiographer get his first COVID vaccination Source: AAP
Is there additional legal protection for those who opt against vaccination?
This aspect is yet to be seen. However, Mr To says some states already have relevant human rights protections.
"For instance, in Victoria, there is the Charter of Human Rights and Responsibilities Act. Therefore, if individual states or territories already have relevant human rights provisions, then public service organisations within those jurisdictions should abide by those human rights protection mechanisms," he says.
"Such human rights include religious freedom. For example, some religions might have opposing views towards certain vaccines, and some may even oppose followers on receiving any vaccine.
"In such a scenario, if some public service organisations refuse to provide services to those religious believers or to refuse their entry, they might be violating the human rights provisions in their states."
But Mr To also emphasises that not all states have human rights protection provisions. Even if they do, the provisions only apply to public institutions, and might not apply to the private business sectors.
