The prime minister has warned businesses moving to make Covid vaccinations mandatory for their staff to be careful, with neither the federal government nor the states and territories prepared to create special laws to enforce vaccine mandates.
Instead, employers will have to navigate existing workplace laws, which include “reasonable” directions to staff, if they wish to proceed with vaccine mandates, although Scott Morrison warned that would still be open to court challenges.
Australian canned goods giant SPC announced it would be mandating the vaccine for its employees earlier this week, and other major employers, including Qantas, have previously indicated they would look at a vaccine directive for staff.
Morrison, speaking after the latest national cabinet meeting, said it was up to employers to make their own decisions, but they would have to be made within the existing legal framework and public health directions.
“We do not have a mandatory vaccination policy in this country,” he said.
“We do not have that. We’re not proposing to have that. That is not changing. But an employer may make a reasonable directive to staff and if they do so, they will have to stay consistent with the law and particularly in dealing with a situation where an employee may be in direct contact, potentially become infected and acquire the virus.”
Public health directives do explicitly allow vaccine mandates in some high-risk environments, including healthcare, working with vulnerable people, hotel quarantine, in a frontline service, or airlines when staff could come into contact with people carrying the virus.
“You see, in our country, everyone has choices and they have choices that are supported by the rule of law, and I am simply making the point that those choices have to be exercised and are consistent with the rule of law,” Morrison said.
“But in terms of the commonwealth government or the state governments making mandatory or issuing public health orders or taking some statutory approach, then well, except in the areas I’ve already nominated – in the areas of quarantine and aged care – the commonwealth and the states are not making any moves in that area, otherwise the rule of law applies as it normally does.”
On the flipside, someone wanting to claim discrimination over their vaccine status at work would also only have existing discrimination laws within which to work, and someone denied service or entry to a business based on whether they had been vaccinated would be privy to property law, which does allow refusal of entry.
The New South Wales premier, Gladys Berejiklian, on Thursday indicated that Covid vaccination could be required for employees in some industries to return to work as the state endures an extended lockdown due to the Delta outbreak.
“We do want to incentivise people for getting the jab, in terms of occupations that might be able to go,” Berejiklian said. “So potentially, if someone that’s providing a service is vaccinated and their client is vaccinated, we feel much more comfortable in relaxing that restriction on 29 August.”
Meanwhile, Morrison said his government was still weighing up whether it challenges an Administrative Appeals Tribunal decision that found the national cabinet was not a sub-committee of the federal cabinet, and therefore its records could be accessed under the freedom of information regime.
The government had previously refused to release documents from national cabinet deliberations, ruling it was subject to the same cabinet-in-confidence rules as the federal cabinet and therefore exempt. National cabinet was borne out of the previous council of Australian governments, which had not been bound by the same cabinet rules imposed when it was rebranded as the national cabinet.
Morrison said it was up to the commonwealth government to decide whether it would appeal the decision, but made the point that the national cabinet members, which included the states and territories, wanted to be able to continue its secret deliberations.
“I can tell you the national cabinet is very, very sure that it wants to be able to operate in the environment it has regarding the security of the documents that it works on, like any other cabinet,” he said.
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“This cabinet has operated highly effectively. There has been a great candour and security about our discussions and the material that we’ve had access to and to be able to make important decisions and we think that’s incredibly important to the ongoing operations of the national cabinet.”
Morrison said the post-national cabinet press conferences were “living proof” of its transparency.
“This doesn’t happen with any other cabinet, I should stress,” he said. “When I hold a federal cabinet meeting or many sub-committees, we don’t hold a press meeting. The national cabinet, it has been our practice to be transparent by setting out what was agreed and what was discussed and what were the matters that came up.
“As a national cabinet, we have got the balance right. We have got the balance right on transparency, in terms of letting the country know, the issues we’re focusing on and the decisions we’re taking and the decisions we hope to take in the future, but so we will be looking at the issue of the AAT.”
In making his decision, Justice Richard White had found the national cabinet documents sought by senator Rex Patrick, who had brought the case to the AAT after he was refused access under cabinet confidentiality, would “result only in the disclosure of the formal outcomes of the discussion and deliberations without any revelation of the proposals or discussion which preceded it”.