Solid legal basis for NSW vaccine mandates to enter businesses, expert says

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<span>Photograph: Jenny Evans/Getty Images</span>
Photograph: Jenny Evans/Getty Images

Business owners vowing to ignore the New South Wales government’s push to require people to be fully vaccinated to enter shops, bars or restaurants are unlikely to find the law on their side, an expert says.

On Wednesday, the NSW premier, Gladys Berejiklian, reaffirmed her commitment to the double-dose vaccination requirement in the government’s reopening roadmap.

The plan, released last week, suggests fully vaccinated people will be able to attend venues that have been forced to close during the state’s lockdown, including bars, gyms and sporting events, once 70% of the adult population is fully vaccinated.

“At 70%, if you’re not vaccinated, it will be a health order and the law that if you’re not vaccinated, you can’t attend venues on the roadmap,” the premier said. “You can’t go into a hospitality venue. You can’t go to ticketed events unless you are vaccinated. We made that very clear.”

Berejiklian has also not ruled out restrictions on unvaccinated people once NSW hits an 80% double-dose rate, warning vaccine-hesitant residents they will not be able to “let everybody else do the hard work and then turn up” for equal freedoms.

“What I also said that day is that we’re considering what 80% double dose looks like because, then, what we need to consider is not only what the unvaccinated population could do to our hospital system but the rate at which disease can still spread if too many people are unvaccinated,” she said on Wednesday.

But the proposal has faced some backlash from business owners online and among the minority of vaccine-hesitant residents opposed to receiving the jab.

On social media, anti-vaccination groups have pushed the idea of non-compliance, while Guardian Australia has also reported concerns from some business owners who say making them responsible for enforcing a vaccine mandate places an unfair burden on staff.

Berejiklian was pushed by reporters on Wednesday on whether the NSW government had obtained advice both on the legality of mandating vaccinations and on the requirement for businesses to enforce any rules.

The premier said the government would “need to seek legal advice”, saying it was in “uncharted territory”.

“We receive advice from a myriad of sources every step of the way and what people choose to do individually is on them in terms of legal issues, but I will say this – our job is to provide certainty and safety to the community but also to see both patrons enjoying their freedom,” she said.

Related: NSW businesses may face bumps on the ‘roadmap to freedom’ out of lockdown

But experts have said the government would be on solid ground in its attempts to mandate vaccinations for certain freedoms.

While the NSW government is currently facing legal challenges to some of its public health orders, including rules requiring police officers and healthcare workers to be vaccinated, Dr Ron Levy, as associate professor at the Australian National University’s college of law, said the legal prospects for people opposed to vaccine mandates was “quite poor”.

“I just don’t see a lot of limits, legally speaking,” he said. “People want to find them because they might strongly believe their freedoms are being constrained, but legally speaking they’re not going to find what they’re looking for.”

While some groups, including the Australian Human Rights Commission, have raised the prospect of discrimination laws affecting vaccine mandates, Levy said they could only apply in extremely limited cases since personal opposition to vaccines was not a form of discrimination.

“In very rare cases people might not able to have a vaccination for medical reasons so there could be an argument of discrimination on the basis of disability, but what is very, very likely is that any order or law is going to have exemptions for those sorts of people, anyway,” he said.

The legal landscape was less complicated in NSW, Levy said, because the state does not have a Human Rights Act. In the states and territories that do – Victoria, the ACT and Queensland – legislators would have to consider the human rights implications of any rules which limited access to places on the basis of vaccine status.

The Australian Human Rights Commission for example has warned that vaccine passports “may have significant implications for privacy and autonomy, freedom of movement and association, equity and discrimination, particularly when it comes to accessing everyday goods and services”.

But Levy said courts would always conduct a balancing act when it came to people’s rights, using the saying “your freedom to swing your fist ends where my nose begins”.

“That’s what this is all about … you have the freedom to not put something in your blood or muscle but on the other hand if you want to go out into society with other people who are immunocompromised or disabled or just don’t want to potentially die from Covid, those peoples interests are also important.

“So that’s the balancing act that needs to be done. There are almost no absolute rights other than torture and genocide most rights are definitely just the starting point of the discussion.”

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