Will COVID vaccinations be mandatory for places of worship? It could depend what state you’re in

Renae Barker, The University of Western AustraliaThroughout the COVID-19 pandemic, places of worship in Australia have faced significant restrictions. These have included limits on the number of people who can attend, bans on singing and closure altogether.

This has impinged upon people’s freedom of religion. However, as with other COVID restrictions, religious people have generally accepted these restrictions to protect public health.

Now, there may be light at the end of the tunnel for religious institutions, including allowances for certain numbers of unvaccinated people to attend places of worship. But since the states and territories will set their own re-opening rules for public venues, religious leaders still face uncertainty.

If places of worship remain barred from allowing entry to the unvaccinated in some places, religious leaders may be forced to turn them away, putting them in an uncomfortable position.

This brings up an interesting legal question about how to balance freedom of religion against public health protections.

How are NSW and Victoria handling it?

At 70% full vaccination for adults, places of worship in NSW will be able to open for vaccinated people, with certain restrictions on capacity, and no singing.

Once the vaccination rate reaches 80%, however, the unvaccinated will be able to attend public worship, with the same capacity limitations.

They will not be allowed into other public venues, such as restaurants, stores, hairdressers or gyms, until December 1 at the earliest. And the government has warned businesses may continue to restrict access for those who are unvaccinated.

Victoria has taken a different approach. At the 70% full vaccination rate, places of worship will be able to hold outdoors services with a cap of 50 vaccinated people, at one person per four square metres. If the vaccination status of attendees is unknown, the attendance cap will be 20.

At 80% full vaccination, indoor worship will be permitted for the fully vaccinated with a cap of 150 and social distancing.

Outdoors worship will be allowed for up to 500 vaccinated people. If the vaccination status of worshippers is unknown, the 20-person cap and one-person-per-four-square-metre rule will remain.

It remains to be seen how the other states and territories will handle these decisions when they release their reopening plans.

Why can the unvaccinated go to church but not the footy?

The NSW government has not given an official reason for opening churches, mosques and temples to the unvaccinated, but not entertainment or sports venues.

The likely reason is freedom of religion.

Many religions involve an element of communal worship and public gathering. COVID restrictions have significantly restricted these practices. In fact, public gatherings have been completely banned under strict stay-at-home orders. As a result, many religions have moved to online or streaming-based worship.

Freedom of religion is well recognised in international law as a fundamental human right. Article 18 of the UN’s International Covenant on Civil and Political Rights says freedom of religion includes the right

to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

But there are limits to this freedom. The same covenant says freedom of religion

may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

There is a big question, then, for state premiers as they begin to lift COVID restrictions: to what extent are the restrictions on religion necessary to protect public health?

Because views about which COVID restrictions are necessary to protect public health have varied significantly across states and territories, we should expect different approaches to the re-opening of places of public worship.

Read more:
‘The blood of Jesus is my vaccine’: how a fringe group of Christians hijacks faith in a war against science

Few challenges to vaccination rules

This could cause confusion, but it is unlikely we’d see many legal challenges to different re-opening plans.

In Australia, there are few avenues to challenge restrictions on freedom of religion. The constitution prohibits the federal government from making laws to prohibit the free exercise of religion. However, COVID restrictions are imposed by state and territory governments. The freedom of religion provision in the constitution does not apply.

As such, the main legal protections for freedom of religion in Australia are religious exemptions and anti-discrmination law.

There are a few medical exceptions available for people who cannot get a COVID vaccine, but it is highly unlikely exemptions would be given to those who object to vaccination on religious grounds.

There is currently no religious exception for childhood vaccination programs under the federal “no jab, no pay” and state “no jab, no play” policies. In the case of vaccines, religious freedom is outweighed by the need to protect public health.

Anti-discrmination law is also unlikely to provide an avenue to challenge vaccine mandates, passports or bans on unvaccinated people from places of worship.

In determining whether or not there has been discrimination, the courts will consider what is reasonable in the circumstances. Given the very real and significant public health risk posed by COVID, it is likely restrictions on those who are not vaccinated will be considered reasonable – at least in the short term.

This may change if the health risk posed by COVID changes.

Concern from religious leaders

Some religious leaders have expressed concern about the new rules on reopening places of worship. As Bishop Paul Barker from the Anglican Diocese of Melbourne put it, the rules could turn those who don’t show proof of vaccination into “the lepers of Jesus’ day”.

Religious leaders may be forced to turn the unvaccinated away. Such a position may be theologically very difficult for many religions.

As Archbishop Anthony Fisher from the Catholic Diocese of Sydney explained,

It’s our nature as churches to have our doors open to welcome all people. We have a commitment to that, so we’re talking to the government at the moment about how that’s going to work out.

However, it is important to note that, with a few exceptions, religious leaders have generally be supportive of vaccinations.

What does this say about freedom of religion in Australia?

Australians enjoy a comparatively high level of freedom of religion. In the 2019 Pew Research Centre’s index on global restrictions on religion, Australia scored among the least restrictive group of nations.

This is despite the fact Australia does not have a national bill of rights, nor is discrimination on the basis of religion unlawful at the federal level.

Read more:
Why Australia needs a Religious Discrimination Act

However, this does not mean Australia can be complacent. The lack of laws protecting freedom of religion means it falls to the political process to ensure this. This in turn depends on who is in power and the will of the majority.

In the same Pew report, Australia had a moderate score on social hostility towards religion. This means there is potential for greater legal restrictions to be introduced in the future.

The recognition of the need for religious freedom in the COVID re-opening roadmap is welcome. However, we must not lose sight of the fact that if the political process does not deliver legislated religious freedom, we have few legal avenues to challenge government restrictions when they do occur.The Conversation

Renae Barker, Senior Lecturer, The University of Western Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Grattan on Friday: Vaccine passports are a better tool than mandating jabs for all jobs

Michelle Grattan, University of CanberraAs the nation proceeds – but still at an agonisingly slow pace – towards the targets of having 70% and 80% of those 16 and over fully vaccinated, the next big debate is about making the jab compulsory in workplaces.

This would give the community greater protection and accelerate the lifting of restrictions and opening the economy.

Dig deeper, however, and it’s a fraught issue, full of political, legal, practical and ethical complexities.

From the start, Scott Morrison has insisted his government would not make taking the vaccine mandatory.

It’s not just a matter of the anti-vaxxers, who are only a small, albeit noisy, minority.

It’s that many in the Coalition’s ranks and, even more important, among its base would be totally against compulsion. A fair number of these have already been angered by the extent of restrictions, believing civil rights have been excessively compromised.

So when individual businesses, notably the food processor SPC, started down the road of requiring workers to be vaccinated, Morrison last week had the solicitor-general brief national cabinet on the confusing legalities. He also said neither the federal government nor any state or territory intended to legislate to give employers the legal safety they would like.

“We are not going to seek to impose a mandatory vaccination program by the government by stealth,” he said this week.

A very hot potato has been left firmly in the hands of individual businesses.

They are in an awkward position. The advantage of having their workplaces vaccinated is obvious. But the legal position is unclear. In the absence of a public health order, they would be relying on directions to employees being judged lawful and reasonable. Inevitably there would be court challenges.

In advice published on Thursday, the Fair Work Ombudsman said: “In some cases, employers may be able to require their employees to be vaccinated against COVID-19. Employers should exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice.”

ACTU secretary Sally McManus doubts the legality, short of public health orders, of employers forcing vaccinations and says support and encouragement for employees is the better way to go.

Even apart from any court challenge, some businesses would face division among their workers, and potential dismissals and voluntary departures. When Western Australia made vaccination compulsory for quarantine workers – surely a very reasonable requirement – it lost some of them.

Simon Longstaff, head of The Ethics Centre, points to the distinction between vaccination being compulsory or a condition for doing something.

Vaccination could be a condition for a person working in a company, just like donning safety equipment is for certain jobs, Longstaff says. “If they are not prepared to accept the condition, then they may choose not to work for an employer imposing such a condition.”

But “conditions” form a continuum. For example, having to be vaccinated to work in a hospital is very different to the jab being required to keep a job that involves minimal risk.

This takes us to the various ways of skinning the cat – and to vaccine “passports”. The government already has the beginnings of a vaccine passport scheme, although it won’t use that name – because its “base” doesn’t like the idea. It calls it a certificate.

The vaccine passport is the iron-fist-in-velvet-glove approach to imposing vaccinations.

Once we reach the 70% or 80%, and people are registered as being vaccinated, evidence of having had the jab will be the gateway to freedoms. Looked at the other way, lack of the passport would restrict what people could do.

A vaccine passport could be as necessary for international travel as a national passport. At a more mundane level, it could be required to eat at a restaurant just as, currently, people are told to sign in. Similarly, it could be needed to attend music or sporting events. Or to enter Parliament House.

Forcing people, directing or indirectly, to have a COVID vaccination involves sometimes competing rights – your right to choose whether to accept a vaccine, my right to be safe in the workplace and the community’s right to protection from a very serious and potentially fatal disease.

It is not as simple as “no jab no pay” for the vaccination of children, which only denies government benefits. In the COVID case we’re talking, in the extreme, about people’s access to jobs and livelihoods.

So where are we left?

When people are dealing with the vulnerable – most obviously in aged care – the rights of those being cared for clearly come ahead of the workers’ right to choose. National cabinet was correct in supporting the mandating of vaccinations of the aged care workforce.

Workers in quarantine, disability, and health care are, or should be, treated similarly by whoever employs them.

There are many other “frontline” workers, including those in supermarkets and hospitality. While this gets us back to the compulsion issue, it could be tackled, especially in occupations where there is high turnover, by giving preference in hiring to the vaccinated. This would be harsh, but less harsh than firing workers.

When everyone eligible has been offered the vaccine, we will have a better idea of the size of the minority of unvaccinated people we’re dealing with.

It’s important during the rollout to minimise this pool – to make sure as many as possible of the apathetic have been motivated and the hesitant persuaded.

The latest government “vaccine sentiment” survey, released on Thursday, had 79% of Australians intending to get vaccinated, or already done. According to rollout chief Lieutenant General J.J. Frewen, of the rest 14% were making up that their minds and only 7% were saying they won’t get vaccinated.

Incentives may be helpful, although they shouldn’t be as expensive or extensive as Anthony Albanese’s $300 for everyone vaccinated. Much better advertising is also needed, including niche campaigns where vaccination is below average.

The Australian community has proved remarkably compliant during COVID. Some hesitancy about AstraZeneca notwithstanding, we are lagging in our vaccination rate not primarily because of the public’s resistance or reluctance but because of the faults in the rollout. With improvements in that, and a combination of the positive and negative incentives of the vaccine passport, we can probably reach a vaccination level high enough to keep the community safe without having to go further down the road of compulsion.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can Australian employers make you get a COVID-19 vaccine? Mostly not — but here’s when they can

Onchira Wongsiri/Shutterstock

Joo-Cheong Tham, The University of MelbourneAustralia’s official policy on vaccines is that they be voluntary and free. But the federal government hasn’t shut the door completely on employers pursuing mandatory policies of their own.

Last week the federal government reiterated it won’t use its powers to give employers a free hand to mandate vaccines. Yet Prime Minister Scott Morrison also said:

Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws.

So far just two Australian companies — regional air carrier Alliance Airlines and canning company SPC — have declared they will make a COVID-19 vaccination mandatory for their workers.

The reason so few have declared such intentions is because the law isn’t on the employer’s side. There are only limited circumstances where workplace vaccine mandates are likely to be found lawful.

Mandatory vaccines are an exception, not the rule

Safe Work Australia, the federal work health and safety regulator, and the Fair Work Ombudsman, the agency responsible for compliance with federal workplace laws, have both made it clear that most employers can’t make you get a vaccine.

Safe Work Australia’s guidance says “most employers will not need to make vaccination mandatory” to meet their workplace, health and safety obligations.

The exceptions are when public health directions require them to do so. Examples are the New South Wales health order requiring specified classes of quarantine facility, transport and airport workers to have had at least one vaccine shot, and the Queensland order that health service employees in residential aged care be fully vaccinated by October 31.

The Fair Work Ombudsman says an employer needs to have a compelling reason before requiring vaccination of workers. Two conditions stand out:

  1. Employees must interact with people with an elevated risk of being infected with coronavirus. For example, if they work in hotel quarantine or border control.
  2. Employees must have close contact with people who are most vulnerable to the health impacts catching COVID. For example, if they work in aged care.

This second condition aligns with rulings in unfair dismissal cases involving employees refusing influenza vaccinations. In three such cases this year, the Fair Work Commission (Australia’s federal industrial tribunal) said it was reasonable for employers in the aged care and child care sectors to insist on vaccination as a condition of employment.

But overall, the Fair Work Ombudsman said:

In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.

Trampling on worker rights

This legal context could, of course, be changed by the federal parliament amending the Fair Work Act to expressly authorise employer mandates.

Given the composition of the senate, this might prove impossible to achieve. But even if it were possible, there are good reasons to oppose it — even while acknowledging the clear public health benefit of COVID-19 vaccinations.

At stake are fundamental principles of worker rights. In the words of the International Labour Organisation’s 1944 Declaration of Phildelphia, workers have the right to “pursue both their material well-being and their spiritual development in conditions of freedom and dignity”.

Read more:
Can governments mandate a COVID vaccination? Balancing public health with human rights – and what the law says

Any decision to limit fundamental rights is best done through accountable public institutions, rather than private entities motivated by commercial considerations.

Public health orders give the community confidence that such decisions have been informed by expert advice, and that different stakeholders have had a chance to be heard (as employer groups and unions have had with the federal vaccine roll-out).

Opening a can of worms

Unions and employer groups largely agree that, in the limited situations where there are workplace vaccine mandates, they should be backed by public health orders.

Business Council of Australia chief executive Jennifer Westacott says vaccination should be “driven as much as possible through public health orders, not left to individual employers”.

Australian Council of Trade Unions secretary Sally McManus says any mandate “has to be based on the advice of health professionals, not just made up by employers, and workers must be consulted, along with their union”.

Consultation does not appear to have been a feature of the announcements by Alliance Airlines or SPC, whose workers reportedly learnt of the company’s decision through the media.

Read more:
Airline policies mandating vaccines will be a turbulent test of workplace rights

Other companies may be waiting to see the upshot — whether those policies lead to challenges either through the Fair Work Commission, which arbitrates unfair dismissal claims, or through federal courts for breach of workplace laws.

But most — from big employers such as Wesfarmers and Commonwealth Bank to boutique outfits such as Atlassian — will not be waiting. Their emphasis is on carrots, not sticks, for driving up vaccination rates.

If you find yourself out of step with both the Australian Council of Trade Unions and the Business Council of Australia, it’s a sign you are out on a legal limb, and need to consult an industrial lawyer.The Conversation

Joo-Cheong Tham, Professor, Melbourne Law School, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Evidence supports mandatory COVID vaccination for aged-care workers. But we need to make it easier too

Holly Seale, UNSWNational cabinet yesterday announced it will mandate COVID-19 vaccination for residential aged-care workers, with the aim to ensure all aged-care staff have received their first dose by mid-September.

A support package worth A$11 million is intended to facilitate this, by enabling aged-care facilities to provide their staff with paid leave to be vaccinated.

Health department figures released to The Age showed two-thirds of Australian aged-care staff were yet to receive one dose as of last week. Of 263,000 workers, just over 88,000 (33.6%) had received their first shot and about 43,000 (16.3%) had received both doses.

Given the current community transmission across parts of Australia, and the low vaccination rates in this crucial group, it’s perhaps not surprising we’ve seen this policy shift.

Vaccine mandates for Australian health and aged-care workers exist

In Australia, this is not the first time we’ve moved to mandates to improve vaccine uptake among the health- and aged-care sectors.

Many health- and aged-care workers are required to show evidence they’re protected from a range of vaccine-preventable diseases. For example, annual flu vaccines are mandatory for those working in high-risk clinical settings, including staff in NSW Health aged-care facilities. With the introduction of these mandates, we have not documented mass departures of staff.

That said, as Prime Minister Scott Morrison correctly pointed out:

Imposing on a person the requirement to have a vaccine or not be able to work in a particular sector is something that no government would do lightly.

Read more:
Should all aged-care residents with COVID-19 be moved to hospital? Probably, but there are drawbacks too

Did we do enough to get to this point?

While Aged & Community Services Australia, the industry peak body, has welcomed the mandate as “the right decision”, others are questioning whether the government has made sufficient efforts to ensure on-site or priority off-site access to vaccination for aged-care staff across all states and territories.

To support vaccination access for the sector, the federal government announced 13 clinics in multiple locations for aged-care staff. But as of May, only three of these pop-up clinics had been established, all of which were in Sydney (in areas covered by the mass vaccination hubs).

Aged care provider peak bodies Leading Age Services Australia and Aged & Community Services Australia had previously called for more on-site vaccination for aged-care staff, as opposed to having staff members seek vaccination appointments via mass clinics or their GP.

In the aged-care sector, the delivery of vaccination is complicated by variations in staff working hours. Providing the COVID vaccine at their place of work can potentially addresses issues around access to vaccination.

Seeing coworkers getting vaccinated may also help build confidence in those who are sitting on the fence.

Studies have found workplace provision of vaccination plays an important part in the decision to immunise among aged-care workers, with higher vaccination rates in facilities providing on-site vaccination.

Read more:
It’s crucial we address COVID vaccine hesitancy among health workers. Here’s where to start

What we can do alongside the mandate

To support the introduction of this policy, it’s critical we support conversations within aged-care facilities to ensure staff members understand why the shift in policy has occurred, to address any misinformation and to support them to take up the vaccine.

Importantly, Australia’s aged-care workforce reflects the make-up of the broader Australian population. So English may be a second language for a portion of workers.

While efforts have been made to ensure information sheets are available in other languages, booking systems, including the one used to support the pop-up vaccination clinics in Sydney, are only available in English.

We need to be mindful to adopt best practice to support engagement with vaccine services for people from culturally and linguistically diverse communities. Information sessions should be held which allow for questions, and staff should have the opportunity to talk to an immuniser who speaks the same language if needed.

Previous surveys of aged-care staff have also identified some workers have limited computer skills, which may be a barrier to using online booking systems. Support should be available to assist those staff in booking their appointments.

An aged-care worker with an elderly woman.
Research has shown workplace provision of vaccination makes aged-care staff more likely to immunise.

Concerns have also been raised about the level of funding allocated to support staff members to to take leave to have the vaccine. Australian Nursing and Midwifery Federation federal secretary Annie Butler calculated the A$11 million would give each unvaccinated worker about $A30 per dose.

As Butler noted, this would be nowhere near enough to support time off from work. So this issue needs to be addressed immediately to ensure aged-care workers can take time off if needed to access off-site vaccination appointments, and ideally to recover if they experience any adverse reactions.

Mandates work

The introduction of this mandate aligns with what has been recommended previously to improve influenza vaccination of aged-care staff. Internationally, mandates have been shown to increase vaccine coverage for health workers including for influenza.

It also aligns with our past research on mandatory vaccination of aged-care staff, where we found positive support from stakeholders, including those responsible for developing policy and delivering vaccination programs to aged-care staff.

Read more:
Mandatory COVID vaccines for aged- and health-care workers could increase uptake, but we need to exhaust other options first

Beyond aged care, there may be a need to extend mandatory COVID vaccination policies to other health workers including those working in community or disability care, or to staff in hospitals.

However, it’s critical we understand the coverage levels for each of these groups before moving forward, as other strategies including the opportunity for paid time off to receive a vaccine or incentives may assist here, before we need to consider further mandates.The Conversation

Holly Seale, Associate professor, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can my boss make me get a COVID vaccination? Yes, but it depends on the job

Bernat Armangue/AP

Cecilia Anthony Das, Edith Cowan University and Kenneth Yin, Edith Cowan University

As Australia prepares to roll out a national vaccination program – aiming for a 95% uptake rate – big questions remain for employers and employees.

Employers have a clear incentive to want employees vaccinated, to protect clients and co-workers as well as to avoid legal liabilities of potential workplace COVID transmissions.

But can an employer insist on vaccination as a condition of employment?

That’s an ambiguous legal question, as indicated by two recent unfair dismissal cases taken to the federal Fair Work Commission. Both involve employers in 2020 making an influenza vaccination a requirement, and employees losing their jobs for refusing.

The bottom line from both cases is that an employer can make vaccination a condition of working – but with significant caveats. It depends on “balancing” the employer’s duty of care to others with the employee’s reason for refusal, and the circumstances of the work they do.

Employers have a duty of care

The first relevant case is the Fair Work Commission’s ruling in November 2020 on an unfair dismissal claim by child-care worker Nicole Arnold against Goodstart Early Learning, Australia’s largest early learning provider.

In April 2020 Goodstart made a flu vaccination a condition of employment, though allowing exceptions on medical grounds. Arnold objected. In correspondence with her employer she cited the Bible, the Nuremberg Principles and the Universal Declaration of Human Rights. But she gave no medical reasons. She was dismissed in August 2020.

The commission dismissed Arnold’s application to have her case heard on the basis Goodstart’s vaccination policy was arguably reasonable to satisfy its duty of care to children, while Arnold’s refusal was arguably unreasonable.

Commissioner Ingrid Asbury ruled:

While I do not go so far as to say that [Arnold’s] case lacks merit, it is my view that it is at least equally arguable that [Goodstart’s] policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.

It was, Asbury said, a matter of balancing an employer’s duty of care with the needs of employees who may have reasonable grounds to refuse to be vaccinated. She saw no exceptional circumstances to rule Arnold was unfairly dismissed.

Read more:
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Work circumstances count

The second case involves an unfair dismissal claim by care assistant Maria Glover against Queensland aged and disability care provider Ozcare, for whom she had worked since 2009.

Ozcare provides free flu vaccinations to employees annually. Glover, 64, had previously declined to get the shot due to allergies and her understanding she had an adverse reaction to a flu shot as a child.

In April 2020, Ozcare introduced a policy making influenza vaccinations mandatory for all employees in its residential aged care facilities or having direct client contact in its community care services. Its reason was the risk to clients who caught the flu and then contracted COVID-19.

It required supporting evidence for a medical exemption. Glover did not do so. This resulted in Ozcare no longer rostering her for work from May. She filed her unfair dismissal claim in October.

Aged care worker with elderly man.
Ozcare made influenza vaccinations for workers mandatory due to the risk for clients getting the flu and then COVID-19.

A final ruling by the Fair Work Commission is still pending. The case was complicated by Ozcare’s lawyers arguing Glover had not been dismissed. But a preliminary decision on January 18 – in which Commissioner Jennifer Hunt ruled Glover had been dismissed – included observations relevant to the merits of future cases involving vaccination refusals.

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Hunt considered a future scenario (in November 2021) when employers of men playing Santa Claus in shopping centres may be required to have a flu vaccination “and if a vaccination for COVID-19 is available, that too”. In such a situation, where social distancing is impossible, a vaccination might become an “inherent requirement” of the job. In the court of public opinion, Hunt said, this might not be considered unreasonable. But a court or tribunal would need to consider the context.

In particular, Commissioner Hunt noted:

In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.

What this all means

What these two rulings boil down to is that an employer can make a vaccination an inherent requirement of employment, and dismiss a worker for refusing – even if they have a legitimate reason. But it depends on the role and exposure risks.

But if risks to others can be minimised through social distancing and other measures – say, for instance an employee works from home – dismissing an employee for refusing to get vaccinated could be ruled unfair. Particularly if they have a good reason – that is a medical condition, not a pseudo-legal objection. It depends on the balance of the employer’s duty of care to others against the employee’s claims.

So it’s not clear-cut. As things stands it is risky for employers to adopt a blanket policy to make COVID-19 vaccinations compulsory.

Read more:
The Oxford vaccine has unique advantages, as does Pfizer’s. Using both is Australia’s best strategy

Bringing greater clarity

Employer groups would like a more straightforward legal landscape. As the head of the Council of Small Business Organisations Australia, Peter Strong, has noted:

There is the issue of vaccinated employees refusing to work with non-vaccinated employees. Where does the employer stand, legally and practicably, in that situation? Where does the employee stand?

In the US the Equal Employment Opportunity Commission (which enforces federal laws against workplace discrimination) has ruled employers can require all employees – with some religious or disability-related exemptions – to get vaccinated to enter a workplace.

Australia’s federal industrial relations minister Christian Porter has reportedly told employers the government will not mandate vaccines in workplaces.

That means making the legality of workplace vaccination policies more “black-and-white” will need to come from the state and territory governments, using their regulatory powers under their work health and safety acts.The Conversation

Cecilia Anthony Das, Lecturer, Edith Cowan University and Kenneth Yin, Lecturer in law, Edith Cowan University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The old news business model is broken: making Google and Facebook pay won’t save journalism

Amanda Lotz, Queensland University of Technology

The federal government is talking tough about making Google and Facebook pay Australian news businesses for linking to, or featuring, these publishers’ content.

The digital platforms have been talking equally tough. Facebook is threatening to remove Australian news stories and Google says it will shut off search to Australia if the government pushes ahead with its “mandatory bargaining code”.

The code is meant to help alleviate the revenue crisis facing news publishers. Over the past two decades they have made deep cuts to newsrooms. Scores of local print papers have become “digital only” or been shut down completely.

Read more:
Digital-only local newspapers will struggle to serve the communities that need them most

If legislated, the code will require the platforms to negotiate payments to news publishers, as well as disclose changes in algorithms affecting traffic to news sites.

But the code is unlikely to do much to fix the crisis faced by journalism in the internet age. It isn’t even a band-aid on the problem.

The traditional commercial news business model is broken beyond repair. If the government wants to save the social benefit of public-interest journalism, it must look elsewhere.

Newspapers didn’t sell news, but readers

To understand why the commercial news model is so broken, we first need to recognise what the primary business of commercial news media has been: attracting an audience that can be sold to advertisers.

Newspapers attracted readers with news and feature journalism that provided public value, but also information of interest such as weather forecasts, sports scores, stock prices, TV and radio guides and comics. Readers even sought out papers for their advertisements – in particular the “classifieds” for jobs, cars and real estate.

Before the internet the newspaper was the only place to access much of this information. This broad bundle of content attracted a wide range of readers, which the economics of newspapers – particularly the cost of producing the journalism – required.

Why the business model is broken

Internet technologies introduced two changes that have dismantled the newspaper business model.

They offered new and better ways to connect buyers and sellers, pulling advertiser spending away from newspapers. More than 70% of revenue for a typical daily newspaper came from advertising. Before 2000 print media attracted nearly 60% of Australian advertiser dollars, according to an analysis for the Australian Competition and Consumer Commission’s Digital Platforms Inquiry. By 2017 it was just 12%.

Australian advertising expenditure by media format and digital platform

Internet technologies also provided better ways to access the non-journalism information that had made the bundled paper valuable to a mass of readers.

Readers also now access news in many other places, through news apps, aggregators and social media feeds such as Twitter, Reddit, Apple News, Flipboard and many others, including Facebook and Google. Research by the University of Canberra’s News and Media Research Centre published in 2019 found just 30% of Australian news consumers accessed online news directly from news publishers’ websites.

The bargaining code doesn’t solve the main problem

If Google and Facebook are “to blame” for news publishers’ malaise, it is not in the way the bargaining code suggests. Separate from their linking to, or featuring, these publishers’ content, the digital platforms are just more effective vehicles for advertisers seeking to buy consumers’ attention. They serve ads based on consumer interests or in relation to a specific search.

The simple fact is news publishers’ core content is not that important to the platforms’ profitability.

Research by the Reuters Institute for the Study of Journalism during the 2019 UK general election – tracking 1,711 people aged 18-65 across mobile and desktop devices for six weeks – found news took up just 3% of their time online (about 16 minutes and 22 visits to news sites a week).

So if stories from Australian news outlets disappeared from Facebook or Google search results, it would barely make a scratch on their appeal to advertisers.

Read more:
It’s not ‘fair’ and it won’t work: an argument against the ACCC forcing Google and Facebook to pay for news

Save journalism, not commercial publishers

The Australian Competition and Consumer Commission’s Digital Platforms Inquiry has rightly noted the revenue crisis has crippled commercial provision of public-interest journalism “that performs a critical role in the effective functioning of democracy at all levels of government”.

But the core of the problem is that funding such journalism through advertising is no longer viable. Other solutions are needed – locally and nationally – to ensure its survival.

Read more:
Web’s inventor says news media bargaining code could break the internet. He’s right — but there’s a fix

Commercial news organisations no longer offer value to advertisers. Instead of searching for ways to make an obsolete business solvent, efforts should focus on alternative ways to fund public-interest journalism.

More funding for independent public broadcasters is one solution, and incentives for philanthropic funding and non-profit journalism organisations are proving successful in other countries.

It’s a global problem. To solve the crisis in Australia will require focusing on the core problem and thinking bigger than a bargaining code.

For transparency, please note The Conversation has also made a submission to the Senate inquiry regarding the News Media and Digital Platforms Mandatory Bargaining Code.The Conversation

Amanda Lotz, Professor of Media Studies, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

If Google does pull its search engine out of Australia, there are alternatives


Gianluca Demartini, The University of Queensland

The Australian government’s push to make Google pay news organisations for linking to their content has seen the search giant threaten to pull out of Australia.

Google Australia’s managing director Mel Silva said if the government’s proposal goes ahead, “we would have no real choice but to stop making Google Search available in Australia”.

Prime Minister Scott Morrison pushed back saying he won’t respond to “threats”. Even the Council of Small Business Organisations Australia says Google needs “strong and stringent” regulation because of its monopoly on searching the web.

What if Google pulls out?

Google’s proposal to make Google Search unavailable in Australia means we would need to search the web using other systems and tools. If this really happens, we could no longer go to google.com and google.com.au to search the web.

Read more:
It’s not ‘fair’ and it won’t work: an argument against the ACCC forcing Google and Facebook to pay for news

It is important to note that Google is not just web search. Google’s parent company Alphabet Inc also runs key web portals such as YouTube, and productivity tools such as Gmail, Google Calendar, Google Docs and Google Maps (which actually started in Australia). Those services are not going to be removed from the Australian market, even if web search does get pulled out.

Online advertising is another sector in which Google is the market leader and where it makes money. Pulling Google web search out from Australia does not mean businesses would no longer be able to advertise using Google’s services.

But with no Google Search here, those adverts would no longer appear ahead of any other search results and be visited by Australian users.

A Google Search result showing an ad for The Conversation ahead of any search results.
Google Search places paid advertising ahead of any search results.

Businesses would still be able to put their adverts on other Australian websites that use the Google Ads service.

The issue with this scenario is that Google’s key competitive advantage is the ability to access data from people using its search services. Pulling web search out from the Australian market would mean Google missing out on that data from people in Australia.

The alternatives to Google

Google is the dominant search engine in Australia — it has 94% of the web search market in Australia — but there are other search services.

The second most popular search engine in Australia is Bing, developed by Microsoft and often integrated into other Microsoft products such as its Windows operating system and Office tools.

Another less popular search option is Yahoo, which also offers its own news and email service.

Other alternatives include niche search engines that offer unique tools with special features.

For example, DuckDuckGo is a search engine that has recently risen in popularity thanks to a commitment to protecting its users’ privacy.

The DuckDuckGo homepage
DuckDuckGo is gaining support.
DuckDuckGo/Screen shot

Contrary to the web search products from Google and Microsoft, DuckDuckGo does not store its users’ search queries or track their interactions with the system.

The quality of DuckDuckGo’s search results has improved over time, and is now comparable to that of the most popular search engines.

It says it now processes a daily average of more than 90 million search queries, up from just over 51 million the same time last year.

Despite not drawing on users’ data to refine its search algorithms, the technology behind DuckDuckGo and other smaller players is based on the same machine-learning methods that others are using.

Search the web, save the planet

Another interesting and recent proposal of an alternative web search engine is Ecosia. This system is unique as it focuses on sustainability and positive climate impact.

Its mission is to reinvest the income generated by search advertisements (the same business model Google Search is using) to plant trees in key areas around the world.

So far, it says it has 15 million users and has contributed to planting more than 100 million trees, about 1.3 every second.

Will Google really abandon Australia?

Tim Berners-Lee, widely regarded as the inventor of the web, has pointed out that the idea of asking web platforms to pay to post links runs counter to his fundamental concept.

Read more:
Web’s inventor says news media bargaining code could break the internet. He’s right — but there’s a fix

That said, it is also unfair for a search engine to make money using content that others have created.

It is also true that most of Google’s revenue already comes from asking others to pay for links on the web. This is how Google’s online advertising works: Google Ads makes advertisers pay for every impression users get or click users make to navigate to the advertised web page.

If users end up buying the advertised product, Google gets an even higher payment.

More likely than Google pulling out of the Australian market, the government and the search giant should diplomatically find a compromise in which Google still provides its web search product in Australia and there will be a return to news organisations for Google making use of their content.The Conversation

Gianluca Demartini, Associate professor, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can the government, or my employer, force me to get a COVID-19 vaccine under the law?

Lisa Maree Williams/AAP/Getty Images AsiaPac

Maria O’Sullivan, Monash University

Prime Minister Scott Morrison took many people by surprise this week when he said a COVID-19 vaccine would be “as mandatory as you could possibly make it”.

Although he later backtracked on the use of the word “mandatory”, he made clear the government is aiming for a 95% vaccination rate in Australia.

There appears to be strong community support for the vaccine, but it is not yet clear there will be enough people willing to take it voluntarily to reach that target. Therefore, it is likely there will have to be some sort of incentive or compulsion by the government to ensure nationwide compliance.

What, then, are the legal limits to compelling people to be vaccinated? There are myriad questions that could be raised, such as:

  • can workplaces require that workers take the vaccination as a condition of employment?

  • can airlines require an immunisation certificate to permit people to travel?

  • should people be able to claim a non-medical exemption, such as a conscientious objection to vaccines or on religious grounds?

This is an important debate we need to have about how to balance the rights of the community versus those of the individual in a public health emergency and how the law should be used to ensure the efficacy of a COVID-19 vaccine.

Can the government mandate vaccinations?

The right to bodily integrity is a fundamental legal principle in Australia. This means a person cannot be subject to medical treatment without consent.

However, there are exceptions to this under state and territory public health laws. For instance, sections 116 and 117 of the Victorian Public Health Act permit public health orders to compel people to undergo a medical examination, testing and treatment without consent if it is required to address a public health issue.

There may be a legal argument here that a vaccination is not “treatment”. But that could be dealt with via an amendment to the legislation.

Can workplaces and businesses require vaccines?

There is a strong case for requiring particular workers (for example, those in aged care facilities) to be subject to mandatory vaccinations. However, many other workplaces in Australia may also require COVID-19 vaccination certificates under Occupational Health and Safety policies.

The legal dynamics here are different to a government-mandated vaccination if it is required as a condition of employment (which is a private law matter).

There is precedent for this: some states and territories have adopted a mandatory vaccination policy for staff working in close contact with patients or infectious materials. In the ACT, for example, all ACT Health staff are subject to an “occupational assessment, screening and vaccination procedure”, which requires them to be immunised against diseases including influenza, diphtheria and hepatitis B.

A potential COVID-19 vaccine has shown positive results during phase one human trials in Adelaide.

Similarly, businesses could require an immunisation card to be presented as a condition of entry. This could include airlines requiring proof of vaccination as evidence of “fitness to fly”.

There are more complex legal questions when it comes to requiring vaccines for students to be admitted to schools or universities.

This was hotly debated in those states that introduced a “no jab, no play” mandatory vaccination regime for access to child care services, as well as the federal “no jab, no pay” policy.

Despite differing rules around the country, all states and territories have fairly consistent rates for childhood vaccinations — with a nationwide coverage rate of 91%. Whether the same rate could be reached for a COVID-19 vaccine remains to be seen.

Would this infringe on people’s human rights?

Challenges could be made to any compulsory COVID-19 vaccination policy under the human rights charters in Victoria, Queensland and the ACT, which aim to protect rights such as freedom of expression, thought, conscience, religion and belief.

Here, much will depend on who is requiring the vaccination (a public body or private business) and whether there are punitive measures in place for non-compliance (for example, the use of fines or imprisonment).

If there are punitive measures for non-compliance, these may be deemed as disproportionate by a court — even if it could be argued compulsory vaccines are necessary and reasonable for public health reasons.

The use of compulsory vaccination programs also has specific implications for children’s rights. The UN Convention on the Rights of the Child provides that every child has the right to “the enjoyment of the highest attainable standard of health”.

However, children also have the right to an education. Therefore, punitive measures to compel parents to vaccinate their children against COVID-19, such as keeping them out of school, could violate the core principles of this convention.

Can people argue for a vaccine exemption?

There is no recognised right to conscientious objection to vaccinations under Australian law. Therefore, any person who is not willing to be vaccinated cannot merely argue an “objection” to it.

A religious body, however, may be able to argue a federal compulsory vaccination policy interferes with the freedom of religion protections under the Australian constitution, but that is a complex legal question.

One religious group did successfully claim an exemption to mandatory childhood immunisations — the Christian Scientists. This “conscientious objection” exemption was removed in 2016, but it does provide an example of how such an exemption could be dealt with under the law.

The federal government has invested $5 million in the University of Queensland’s COVID-19 vaccine development.
Glenn Hunt/AAP

How to create good law during a crisis

Governments clearly have an obligation to protect the public’s health and welfare and vaccinations are an important means of ensuring this.

But while punitive legal measures such as fines may be effective in compulsory mask usage, they are not necessarily going to be effective when it comes to something much more invasive like a vaccine.

Serious thought must not be given just to what the law can do to achieve a high COVID-19 vaccination rate, but also what good law is. That is, we must pursue measures that will be sufficiently accepted by the community.The Conversation

Maria O’Sullivan, Senior Lecturer, Faculty of Law, and Deputy Director, Castan Centre for Human Rights Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government orders mandatory code of conduct for Google, Facebook

Michelle Grattan, University of Canberra

The government has told the Australian Competition and Consumer Commission to develop a mandatory code of conduct to address bargaining power imbalances between media companies and digital platforms such as Facebook and Google – and the question of payment for content.

Earlier the ACCC was directed by the government to facilitate a voluntary code. But slow progress and the impact on the media of the coronavirus have convinced the government of the need for more urgent and compulsory action.

In its Digital Platforms Inquiry report of last year, the ACCC identified a bargaining power imbalance between news media organisations and these large digital platforms, and recommended codes of conduct to govern commercial relationships.

Treasurer Josh Frydenberg and Communications Minister Paul Fletcher have said in a statement the timeframe needs to be accelerated.

“The Australian media sector was already under significant pressure – that has now been exacerbated by a sharp decline in advertising revenue driven by coronavirus,” the ministers say.

“At the same time, while discussions between the parties have been taking place, progress on a voluntary code has been limited, according to recent advice provided by the ACCC”.

The ministers say the ACCC considers it unlikely any voluntary agreement would be reached on the key issue of payment for content.

The code will cover data sharing, ranking and display of news content, and the monetisation and the sharing of revenue generated from news. It will also include enforcement, penalty and binding dispute resolution mechanisms.

The ACCC will release a draft before the end of July, and the government wants the code finalised soon after that.

The University of Canberra’s 2019 Digital News Report said the majority of surveyed consumers who access news online get this news via indirect methods, such as social media, news aggregators, email newsletters and mobile alerts.

According to Nielsen Panel Data for February 2019, Google search had a unique audience of 19.7 million in Australia, and Facebook had a unique audience of 17.6 million.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Scott Morrison announces mandatory self-isolation for all overseas arrivals and gives up shaking hands

Michelle Grattan, University of Canberra

Chief Medical Officer Brendan Murphy was still shaking hands on Sunday morning. But when that afternoon Scott Morrison announced the latest coronavirus measures, including compulsory self-isolation for overseas arrivals, the Prime Minister said he and other cabinet members wouldn’t be shaking hands anymore.

Only on Friday Morrison had been thrusting his hand at a notably wary Gladys Berejiklian.

Confusing signals.

On the other hand, this isn’t just a fast-moving situation, but one in which even experts have differing takes (the advice from the federal-state medical officers panel may be unanimous but it’s understood there are disputes in their deliberations), and politicians struggle with responses, even as they follow the medical recommendations. For example, the NSW government has appeared more forward-leaning than the feds.

While members of the public understandably seek certainty, on some fronts there will be no absolutes, just scales of assessment, probability, and risk.

That’s not to say the federal government should not have been clearer at times, and its mass media advertising campaign, which started at the weekend, was inexplicably slow to materialise.

The Australian tally of cases approached 300 and the death toll rose to five at the weekend. Only history will show definitely whether Murphy and the government are right in their claims Australia is keeping “ahead of the curve”, or the critics vindicated in arguing it is behind it.

Morrison in particular has wanted to put the most optimistic gloss on things, not least because he hoped to minimise economic disruption. Despite the constant flow of news conferences over recent weeks, the government avoided dwelling on how bad things could get.

Read more:
Morrison’s coronavirus package is a good start, but he’ll probably have to spend more

By Sunday Morrison’s tone had changed. He had a graph to illustrate the need to flatten the curve of infection to enable the health system (notably the intensive care facilities) to cope. “Slowing the spread, you free up the beds,” he said.

Federal Department of Health

Stark and unfolding realities were starting to prevail – though not entirely – over the prime ministerial desire to keep the lines upbeat.

And compulsion and the law were replacing choice and advice, in the measures Morrison outlined following Sunday’s meetings of cabinet’s national security committee and the new “national cabinet” of federal and state leaders (and after Morrison spoke at the weekend with Britain’s Boris Johnson and New Zealand’s Jacinda Ardern).

Like New Zealand, Australia will now insist all arrivals self-isolate for a fortnight. The only exceptions will be Pacific Islanders who are transiting to their home countries. Morrison said this measure would be effective in “flattening the curve”.

As foreign travellers dry up, most incoming traffic will be Australians returning home.

Foreign cruise ships are to be stopped from arriving for 30 days in what will be a rolling ban.

The cessation of non-essential gatherings of 500 or more has moved from advice on Friday to a formal prohibition, which will be backed by state law. Morrison flagged the threshold could soon be lowered.

On the enforcement side he said: “the states and territories wisely are not going to create event police or social distancing police … But the legislation impact would mean that if a person did fail to observe the 14 day self-isolation or if an event was organised, that would be contrary, once those provisions are put in place, to state law”.

Berejiklian was quick to say NSW already had the powers to enforce self-isolation, emphasising what was involved “is a matter of life and death”. This recalled her strong language of a few days ago when she said the situation was “not business as usual”.

Work is underway on restrictions on visits to nursing homes and arrangements for indigenous communities as well as further restrictions on enclosed gatherings, which is likely to cut the 500 number. The “national cabinet” will review the position on Tuesday night.

Read more:
VIDEO: your coronavirus and COVID-19 questions answered by experts

As for federal cabinet, it will be “social distancing” with “no more handshakes”, more meetings by video conferences, and less travelling. Morrison has already cancelled some engagements.

So far schools generally are not being closed (though some individual schools are shutting down). It’s said closing schools could promote community transmission, with children out and about. Many would be left with grandparents who would be in the most vulnerable age group. Also, if parents had to stay at home to care for their kids, this could deplete the health work force.

But the question of schools remains in the frame.

Arrangements for next week’s parliament are still being worked on, and the presiding officers have had talks with Murphy. The sitting is likely to be kept as short as needed to get through the legislation necessary for last week’s $17.6 billion stimulus package.

Opposition leader Anthony Albanese in his Sunday night national address promised “a spirit of bipartisanship. We will be constructive. We will support the government to protect the health of Australians, but also to protect their jobs and our economy.”

The package was all about trying to head off a recession by keeping growth positive in the June quarter. As things are going, that looks like it could require a miracle as well as the package. Many small businesses will collapse, despite the help the government is offering.

Almost certainly, a lot more stimulus will be needed, with the question only the amount.

But a measure of how deep the crisis is becoming is that at the moment, the national conversation is mostly about health, not economics.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.