Compulsory vaccination for COVID-19
In late November, South Australia reopened its borders to Victoria and New South Wales.
Many employers have introduced a compulsory vaccination policy in response to this development to mitigate the impact of the inevitable presence of COVID-19 in South Australia.
A standard exemption to compulsory vaccination is when an employee cannot be vaccinated for medical reasons, which was discussed in our article, published on 20 October 2021.
The other less commonly raised objection to compulsory vaccination is a religious belief, which was recently considered by the Supreme Court of New South Wales.
We discuss the issue of religious belief reasons as a ground of objection to compulsory vaccination below.
The Court’s approach towards religious objections to compulsory vaccination
Last month, the Supreme Court of New South Wales handed down its decision of Larter v Hazzard (No 2)  NSWSC 1451 in relation to an application brought by John Larter (a paramedic) to have two Public Health Orders declared invalid.
The Public Health Orders prohibited a person from working as a health care worker in New South Wales if they were not fully vaccinated against COVID-19 by 30 November 2021.
John Larter, a paramedic with 25 years experience, who also serves as the deputy mayor of the Snowy Valley Council, refused to comply with these Public Health Orders.
Lawyers for John Larter submitted before the Supreme Court of New South Wales that he challenged the Health Orders issued on the following grounds:
- The Public Health Orders are broader than necessary in that they cover persons who do not pose a sufficient risk to warrant prohibition.
- In the alternative to (1), the Public Health Orders, before it was amended, was too broad, as is evident from the need for amendment.
- It is unreasonable to require the very small percentage of conscientious objectors within NSW Health to be vaccinated while at the same time failing to require a larger group comprised of health practitioners, such as private general practitioners and pharmacists, who are not employed by NSW Health and who do not work in its health facilities, to be vaccinated.
- The Public Health Orders were invalid because it purported to address consequences which would ensue beyond the 90-day period of the Order.
- The Public Health Orders are invalid because they provide for permanent consequences in circumstances where they are only permitted to operate for 90 days.
- The Public Health Orders contravene the International Covenant on Civil and Political Rights (ICCPR) and are therefore invalid in that they unduly interfere with the right to work of those who, for religious reasons, have a conscientious objection to vaccination.
A ground of John Larter’s application to challenge the Public Health Orders was that the requirement to be vaccinated interfered with the right to conscientiously object to vaccination on religious grounds.
Lawyers for John Larter submitted that he was an adherent to the Roman Catholic faith and considered himself to be a political conservative, and it is his religious, moral and political views that make him feel that he is unable to take the vaccine because he finds it morally repugnant.
Specifically, John Larter had decided not to be vaccinated as he believes that the AstraZeneca vaccine was the product of research, testing and production processes developed from cell lines derived or sourced from the fetus of an aborted child, and abortion is against his religious beliefs.
John Larter also expressed similar opposition in relation to the Pfizer and Moderna vaccines.
The decision of the Supreme Court of New South Wales
The Supreme Court accepted that John Larter’s religious beliefs were genuinely held in its decision.
Justice Adamson went on to closely consider the position of the Catholic Church to determine its view towards vaccination against COVID-19.
She considered material about COVID-19 vaccination disseminated by the Catholic Church, paying particular regard to the following note of the Pope about the topic:
“The fundamental reason for considering the use of these vaccines morally licit is that the kind of cooperation in evil (passive material cooperation) in the procured abortion from which these cell lines originate is, on the part of those making use of the resulting vaccines, remote. The moral duty to avoid such passive material cooperation is not obligatory if there is a grave danger, such as the otherwise uncontainable spread of a serious pathological agent—in this case, the pandemic spread of the SARS-CoV-2 virus that causes COVID-19. It must therefore be considered that, in such a case, all vaccinations recognized as clinically safe and effective can be used in good conscience with certain knowledge that the use of such vaccines does not constitute formal cooperation with the abortion from which the cells used in production of the vaccines derive. It should be emphasized, however, that the morally licit use of these types of vaccines, in the particular conditions that make it so, does not in itself constitute a legitimation, even indirect, of the practice of abortion and necessarily assumes the opposition to this practice by those who make use of these vaccines.”
The Supreme Court held that although John Larter’s beliefs were genuine, they departed from the position of the Catholic Church, as evidenced by the public statements made by the Church concerning COVID-19 vaccines.
Justice Adamson also considered whether the Health Orders contravened the ICCPR, which provides for freedom of religion and religious expression.
It was held that the freedoms provided for within the ICCPR might be subject to limitations that are necessary to protect public health.
She held that irrespective of the ICCPR, Australia has an obligation under the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics.
In short, the Supreme Court held that the requirement under the Public Health Orders to be vaccinated did not interfere with the right to conscientiously object to vaccination on religious grounds.
Justice Adamson did not accept any of John Larter’s other grounds for challenging the validity of the Public Health Orders.
Consequently, the Supreme Court ultimately found that the Public Health Orders were valid.
Employers planning to introduce a COVID-19 vaccination policy will need to consider the need for exemptions.
The New South Wales Supreme Court’s rejection of John Larter’s objection to vaccination on religious grounds will provide employers with comfort that an employee cannot avoid the need to comply with a compulsory COVID-19 vaccination policy based on religious beliefs even if they are genuinely held.
In summary, the primary exemption employers will need to consider in preparing their COVID-19 vaccination policy is a medical exemption that is limited for the reasons discussed in our earlier article.
If you require assistance to prepare your compulsory vaccination policy or in assessing an exemption application for medical reasons, please get in touch with one of our employment law experts
A requirement also existed that a person had received their first dose of the vaccination by 30 September 2021.