Your rights under Victoria’s ‘authorised worker’ vaccine mandate: an expert explains

Daniel Pockett/AAP

Giuseppe Carabetta, University of SydneyRacing to hit vaccination targets and lift the restrictions making Melbourne
the world’s most locked-down city, the Victorian government has announced plans to
make COVID19 vaccinations mandatory for an estimated
1.25 million of the state’s 3.5 million workers.

The proposed order will apply to all “authorised providers” and “authorised workers” whose work requires contact with others. By October 15 they must show proof they have received or booked their first vaccination, or have a medical exemption from a authorised practitioner. Anyone without an exemption must be fully vaccinated by November 26.

Separate deadlines apply for those subject to Victoria’s existing mandatory vaccination directions covering health care, construction workers and teachers.

Who are the ‘authorised’ providers and workers?

An authorised provider or worker is any business or person exempt from the orders to shut or work at home during lockdown.

The “authorised providers” list includes supermarkets, restaurants and cafes providing takeaway services, bottle shops, banks, post offices, news agencies, petrol stations, child care services, schools and mobile pet-grooming services.

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The “authorised workers” list covers more than 70 categories. It includes health practitioners, emergency workers, essential services workers, those who work in courts or the administration of justice, manufacturing, public transport, professional athletes, zoo workers, faith leaders, actors and parliamentarians.

In short, if your work can’t be done from home, your job is most likely on the list.

Will there be any exemptions?

The mandate is yet to be finalised, so the precise scope of
exemptions is unclear.

However, the government has said
there will be an exemption for those unable to be vaccinated on medical grounds, as determined by the Australian Technical Advisory Group on Immunisation.

The list of accepted medical reasons is short. Any exemption must be certified by an authorised medical practitioner.

How will the mandate become law?

The state government has the power to make public health directions including mandating vaccines under Victoria’s Public Health and Wellbeing Act and associated state-of-emergency powers.

It is the same mechanism by which vaccinations for sectors such as construction have been mandated.

Prior to the COVID pandemic, similar provisions have enabled the Department of Health to direct hospitals and health providers to require workers to be vaccinated against diseases such as influenza and hepatitis B.

This was achieved through amendments to Victoria’s Health Services Act and Ambulance Services Act.

Doesn’t this conflict with the Fair Work Ombudsman’s advice?

No. The Fair Work Ombudsman has previously issued guidance on the conditions that make it “lawful and reasonable” for an individual employer to require that employees be vaccinated.

That guidance includes “tiers” of work to help assess if vaccination was justifiable. But these aren’t relevant if a direct law – in this case a public health direction – mandates vaccination.

Is there any legal recourse?

There is a legal challenge currently before Victoria’s Supreme
Court. This has been lodged by couple Belinda and Jack Cetnar. Their core
argument is that mandates are discriminatory and contravene human
rights.

One difference between this challenge and those being made in the NSW Supreme Court against the NSW government’s vaccine mandates is that Victoria has a Charter of Human Rights and Responsibilities.

At the hearing setting the trial date for the Cetnars’ challenge, Justice Melinda Richards noted the Cetnars had grounds to argue their case under the charter but queried other arguments they presented in their written documentation.

These included the mandate contravening the Commonwealth Biosecurity Act and the Nuremberg Code.

So what about discrimination and human rights?

Vaccination status is not a prohibited ground under discrimination law, so the mandate cannot be challenged as unlawful discrimination on this basis.

Adverse treatment on the basis of health or disability may amount to unlawful discrimination in other circumstances, but the new rules allow for this.

Human rights law allows for limitations on human rights where necessary to protect public health and the fundamental right – to life. However, such restrictions must be necessary and proportionate to the risk and balanced against individual rights.

This principle is reflected in Victoria’s Charter of Human Rights and Responsibilities, and in the position of bodies such as the World Health Organization.

In December 2020, at press conference, WHO’s immunisation director Kate O’Brien said the organisation didn’t favour vaccine mandates.

However, a WHO policy brief published in April notes vaccine mandates “can be ethically justified, as they are crucial to protecting the health and well-being of the public”. This comes with important caveats:

While interfering with individual liberty does not in itself make a policy intervention unjustified, such policies raise a number of ethical considerations and concerns and should be justified by advancing another valuable social goal, like protecting public health.

Ultimately it may be necessary for the courts to determine whether the new
rules strike an appropriate balance.

However, it seems unlikely any
court will overturn such a mandate, given vaccination is
effective, the mandate will be temporary, apply only to onsite
work, provide medical exemptions, will alleviate pressure on the
health system and help ease existing restrictions (which also
infringe on individual liberty).

Who will be responsible for enforcing these rules?

Workers covered by the proposed mandate will be required when working to carry an authorised worker permit confirming they have been vaccinated. Businesses will be responsible for issuing these permits, and for ensuring all employees onsite have a permit.

If an authorised officer attends a workplace and finds workers without a valid permit, both employers and employees can be fined.

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The penalties are the same as other breaches of restrictions or directions. On-the-spot fines of up to $1,817 can be issued to individuals and up to $10,904 for businesses for not having a permit.

A court can impose a fine of up to $21,808 on individuals and $109,044 on employer for issuing worker permit to an employee not meeting the permit requirements.

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Correction: this article has been updated to clarify the vaccine mandate has not yet been passed into law.

Giuseppe Carabetta, Senior Lecturer, Sydney University Business School, University of Sydney

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

COVID-19 Vaccine Rights Ownership

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

Giuseppe Carabetta, University of SydneyAirlines want you vaccinated. They want as many people as possible vaccinated. The sooner that happens, the sooner borders open and they can get back to profitability.

They also have reasons to want to protect both customers and staff from COVID-19. Qantas staff, for example, have been considering legal action over workplace transmissions.

Qantas has dangled the carrot of extra frequent flyer points for fully vaccinated passengers, plus ten “mega prizes” of a year’s free travel for familes. Virgin Australia has similar plans. It also has a scheme to encourage its workers to get vaccinated. This will reportedly include the chance to win extra annual leave.

Could they go further and mandate vaccines? This is something Cathay Pacific is doing, telling its Hong Kong-based flight crews they must be vaccinated by August or their employmnet will be reviewed.

Qantas chief Alan Joyce signalled in November that once vaccines are widely available it will require international travellers to be vaccinated. This implicitly suggests it will require the same from international flight staff.

But the legal ground in Australia for employers to insist that employees be vaccinated remains murky.

Whether Qantas or Virgin – or indeed any other company – do so may depend on the case of Queensland regional carrier Alliance Airlines, the first employer in Australia to insist all employees be immunised.

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A question of common law

Alliance Airlines specialises in flights to and from mining sites. It is 19.9% owned by Qantas, and collaborates with both Qantas and Virgin Australia.

It announced its mandatory policy for both influenza and COVID-19 vaccinations in late May. Its stated reason is to fulfil its duty to employees and passengers. But unions have questioned the policy’s lawfulness, arguing it is beyond the airline’s powers.

In Australia, there has been no general government guidance on whether employers can insist on employees getting COVID-19 vaccinations.

This differs to the United States, where the federal Equal Employment Opportunity Commission ruled in December 2020 that employers could (with some exemptions for medical and religious reasons) require employees to be vaccinated.

The Queensland and Western Australian governments have passed legislation mandating workers be vaccinated, but only in certain health and quarantine workplaces.

Whether Alliance Airlines’ policy is lawful therefore depends on a general common law “test” for determining the validity of workplace policies.

This test asks if a policy or direction is “lawful and reasonable” given the circumstances. These include:

• the nature of the job, especially where it requires regular interactions with colleagues, clients and suppliers
• if the work can be done remotely, or other reasonably practical precautions exist
• the effectiveness or success rates of the vaccine
• any guidance or directives from government and medical experts
• the circumstances of individuals employee, such as whether they have reasonable grounds to refuse vaccination.

Unfair dismissal cases

Australia’s Fair Work Commission has demonstrated the balancing act needed to apply these factors in its most recent ruling in an unfair dismissal case involving a refusal to get an influenza vaccination.

The claim was brought by Maria Corazon Glover, a 64-year-old community care assistant, against Queensland aged and disability care provider Ozcare, her employer since 2009.

In May 2020, public health orders in Queensland required influenza vaccinations for entry into aged care facilities. Ozcare went “above and beyond” those requirements, mandating the flu vaccine for all its aged care workers, even those who did not work in facilities. Glover, a home-care provider, refused. She said she believed she would suffer an allergic reaction, based on what she understood had happened to her as a child. She was ultimately dismissed.

Commissioner Jennifer Hunt upheld her dismissal despite Ozcare’s policy exceeding the relevant public health orders and Glover’s concerns. Hunt ruled those factors were outweighed by the vulnerability of Ozcare’s clients, the frequency with which care workers visited clients’ homes (and their potential to become “super-spreaders”), and the employer’s “prerogative” to make a decision considered necessary to safeguard its clients and employees “so far is practicable to do so”.

Individual circumstances do count

Perhaps the most important takeaway from Glover v Ozcare is that it was decided on its particular facts. Employers must carefully assess employees’ situations to decide if a mandatory vaccination policy is justifiable.

An airline might reason that cabin crew interact with people in environments with a higher risk of COVID-19 transmission and where social distancing is impossible.

But an employee might counter that, unlike aged or disability care workers, they have much less close contact with high-risk, vulnerable individuals.

The case-by-case nature of the reasonableness test means any generalised “all in” vaccination policy is problematic. Even more so if there is employee resistance.

Discrimination may be valid

Employees who are dismissed for refusing to vaccinate might also argue it amounts to discrimination on prohibited grounds such as disability or pregnancy, where COVID-19 vaccination may be unsafe or pose medical risks.

Under the Fair Work Act, however, employers have a valid defence for discriminatory action if a policy or decision is based on the “inherent requirements” of the job.

In November 2020, Fair Work Deputy president Ingrid Asbury noted that vaccination against influenza was likely to be an inherent requirement for a position involving caring for young children, and so could be justified for child-care employees.

However, outside high-risk contexts such as child and health care, this defence may be limited and will turn on the employee’s role and the organisational context.

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Looking for safe ground

The Fair Work Commission’s rulings on influenza vaccines give a fair indication of the principles it will apply to any case involving COVID-19 vaccines.

But given the different circumstances, whether it will give a green light to a general policy like that of Alliance Airlines remains up in the air.

Qantas and Virgin might be on safer ground because of their international operations, if proof of vaccination becomes mandatory for other destinations.
However, I think the issue of employee vaccinations for the airline industry will ultimately be resolved via government intervention.

In other sectors, owing to the complexities in determining whether mandatory policies are “legal”, many employers will likely stick with the safer route of voluntary “incentive schemes” to encourage vaccinations.

Giuseppe Carabetta, Senior Lecturer, Sydney University Business School, University of Sydney

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

What is “upskirting” and what are your rights to privacy under the law?

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Rick Sarre, University of South AustraliaQueensland federal MP Andrew Laming has been accused of taking an inappropriate photograph of a young woman, Crystal White, in 2019 in which her underwear was showing. When challenged about the photo this week, he reportedly replied:

it wasn’t meant to be rude. I thought it was funny

Inappropriate photography is a criminal offence in Queensland. Whether or not Laming’s behaviour amounted to an offence for which he could be charged is a matter for the police to determine. (White is reportedly considering taking her complaint to police.)

So, what do the laws say about this kind of behaviour, and what rights to privacy do people have when it comes to indecent photographs taken by others?

What can ‘upskirting’ include?

A new term has entered the lexicon in this regard: “upskirting”. The act of upskirting is generally defined as taking a sexually intrusive photograph of someone without their permission.

It is not a recent phenomenon. There have been incidents in which people (invariably men) have placed cameras on their shoes and photographed “up” a woman’s skirt for prurient purposes. Other instances have involved placing cameras under stairs where women in dresses or skirts were likely to pass by.

The broader category of “upskirting” can also include indecent filming of anyone without their knowledge, including photographing topless female bathers at a public beach, covertly filming women undressing in their bedrooms, or installing a camera in a dressing room, public toilet or a swimming pool changing room.

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With every new electronic device that comes on the market comes the possibility of inappropriate use and, thus, the creation of new criminal offences.

We saw that with the advent of small listening devices. With this technology, it was now possible to record private conversations, so legislators had to create offences under the law to deal with any inappropriate use.

The same thing happened with small (and now very affordable) drones, which made it possible to capture images of people in compromising positions, even from a distance. Our laws have been adjusted accordingly.

And in recent years, lawmakers have been faced with the same potential for inappropriate use with mobile phones. Such devices are now ubiquitous and improved technology has allowed people to record and photograph others at a moment’s notice — often impulsively, without proper thought.

How have legislators responded in Australia?

There is a patchwork array of laws across the country dealing with this type of photography and video recording.

In South Australia, for instance, it is against the law to engage in “indecent filming” of another person under part 5A of the state’s Summary Offences Act.

The term “upskirting” itself was used when amendments were made in 2007 to Victoria’s Summary Offences Act. This made it an offence for a person to observe or visually capture another person’s genital region without their consent.

In New South Wales, the law is equally specific in setting out the type of filming that is punishable under the law. It outlaws the filming of another person’s “private parts” for “sexual arousal or sexual gratification” without the consent of the person being filmed.

Queensland’s law, meanwhile, makes it an offence to:

observe or visually record another person, in circumstances where a reasonable adult would expect to be afforded privacy […] without the other person’s consent

Interestingly, the Queensland law is more broadly worded than the NSW, Victorian or South Australian laws since it makes it an offence to take someone’s picture in general, rather than specifying that it needs to be sexually explicit.

The maximum penalty for such an offence in Queensland is three years’ imprisonment.

What would need to be proven for a conviction

Just like any criminal offence, the prosecution in a case like this must first determine, before laying a charge, whether there’s enough evidence that could lead to a conviction and, moreover, whether such a prosecution is in the public interest.

Once the decision to charge is made, a conviction will only be possible if the accused pleads guilty or is found guilty beyond reasonable doubt. (Being a misdemeanour, this could only be by a magistrate, not a jury.)

The role of the criminal law here is to bring offending behaviour to account while also providing a deterrent for the future conduct of that person or any other persons contemplating such an act.

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As with any criminal law, its overarching purpose is to indicate society’s disdain for the behaviour. The need to protect victims from such egregious and lewd behaviour is an important consideration too.

Any decision by a Queensland magistrate to convict a person alleged to have taken an indecent photo would hang on three facts:

• whether the photo was taken by the person accused
• whether the victim believed she should have been afforded privacy
• and whether she offered no consent to have the photo taken.

Other mitigating factors might come into play, however, including whether the photograph was impulsive and not premeditated, whether the image was immediately deleted, and whether the alleged offender showed any regret or remorse for his actions.

Recently a Queensland man, Justin McGufficke, pleaded guilty to upskirting offences in NSW after he took pictures up the skirts of teenage girls at a zoo while they were looking at animals.

In another case, a conviction for upskirting was deemed sufficient to deny a man permission to work with children in Victoria.

In a moment of impulsivity — and with the easy access of the mobile phone — anything can happen in today’s world. Poor judgements are common. Women are invariably the targets.

The laws on filming, recording and in some cases distributing the images of another person are clear — and the potential consequences for the accused are substantial. One would hope that any potential offenders are taking note.

Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia

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

The big barriers to global vaccination: patent rights, national self-interest and the wealth gap

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Ilan Noy, Te Herenga Waka — Victoria University of Wellington and Ami Neuberger, Technion – Israel Institute of Technology

We will not be able to put the COVID-19 pandemic behind us until the world’s population is mostly immune through vaccination or previous exposure to the disease.

A truly global vaccination campaign, however, would look very different from what we are seeing now. For example, as of January 20, many more people have been immunised in Israel (with a population less than 10 million) than in Africa and Latin America combined.

Notwithstanding recent questions about the effectiveness of the initial single dose of the vaccine, there is a clear disparity in vaccine rollouts internationally.

That is a problem. As long as there are still existing reservoirs of a propagating virus it will be able to spread again to populations that either cannot or would not vaccinate. It will also be able to mutate to variants that are either more transmissible or more deadly.

Counterintuitively, an increase in transmissibility, such as has been found with the new UK variant, is worse than the same percentage increase in mortality rate. This is because increased transmissibility increases the number of cases (and hence the number of deaths) exponentially, while an increase in mortality rates increases only deaths, and only linearly.

Evolutionary pressure on the virus will inevitably favour mutations that make the disease more transmissible, or the virus itself more vaccine-resistant. It is clear, therefore, that every nation’s interest is in universal vaccination. But this is not the trajectory we are on.

Fast roll out: a busy coronavirus vaccination station in Israel in mid-January.
GettyImages

Politics and profits

Fortunately, in the countries already vaccinating, the vaccine is (mostly) not allocated by wealth or power, but by prioritising those facing the highest risk. At a country level, however, national wealth is determining vaccine roll out.

Yet in the past we have managed to eradicate diseases worldwide, including small pox, a viral infection with much higher death rates than COVID-19.

There are two barriers that prevent us from rapidly pursuing a similar goal for the current pandemic:

• big pharma is profit-driven and therefore keeps a tight lid on the intellectual property it is developing in the new vaccines

• countries find it difficult to see beyond their national interest; not surprisingly, politicians are committed only to their own voters.

At this point, we don’t have a global system to confront either of these problems. Each vaccine’s patent is owned by its developer, and the World Health Organisation (WHO) is too weak to be the world’s Ministry of Health.

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The polio vaccine model

Overcoming big pharma’s profit motive has been achieved before, however.

In 1955, Jonas Salk announced the development of a polio vaccine in the midst of a huge epidemic. The news initially met with scepticism. Even employees of his own laboratory resigned, protesting that he was moving too fast with clinical experimentation.

When a huge placebo–controlled clinical trial involving 1.6 million children proved him right, however, he declared that in order to maximise the global distribution of this lifesaving vaccine his lab would not patent it. Asked who owned the patent, he famously replied:

Well, the people I would say. There is no patent. Could you patent the sun?

In an echo of the current moment, Israel (then a new state) was also experiencing a rapidly spreading polio epidemic. Efforts to purchase vaccines from the US were unsuccessful, as not all American children were yet vaccinated. So a scientist named Natan Goldblum was sent to Salk’s laboratory to learn how to make the new vaccine.

No lawyers were involved and no contracts signed. The young Dr Goldblum spent 1956 setting up manufacturing facilities for Salk’s vaccine in Israel and by early 1957 mass vaccination was underway.

Could you patent the sun? Dr Jonas Salk and a nurse administer a polio vaccine in Pennsylvania in the 1950s.
GettyImages

Suspend patent rights

Israel, a small and relatively poor country in the 1950s, became the third country in the world (after the US and Denmark) to produce the vaccine locally and eventually eradicate polio. It took a handful of scientists, a modest budget and, most importantly, no patenting.

Like Salk, Goldblum was aware viruses have complete disregard for political borders. He was also involved in a very successful Palestinian polio vaccination campaign in Gaza.

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More recently, a highly successful international campaign in the early 2000s saw AIDS treatments distributed in poorer countries. Pharmaceutical companies that owned the patented drugs were forced to supply them at cost or for free, not at market prices set in the rich countries. This was achieved through public pressure and the willingness of governments to support the required policies.

A temporary withdrawal of the patenting rights to the successful COVID-19 vaccines, with or without compensation for the developers, seems a small price to pay for an exit strategy from this global and incredibly costly crisis.

Act local, think global

Overcoming national interest is perhaps more complicated. Clearly, countries have an interest in vaccinating their most vulnerable populations first. But at some point, well before everyone is vaccinated, it becomes more efficient for countries to start vaccinating their neighbours (the countries they are most exposed to through movements of people and trade).

Disappointingly, rich countries today behave as though they will reach 100% vaccination rates before they give away a single dose, with many having bought well in excess of what is needed for 100% coverage.

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The COVAX plan to distribute vaccines in poorer countries has so far been an under-funded effort that has not yet delivered a single dose of vaccine. Even if COVAX were to be fully funded, it mostly aims to donate an insufficient number of vaccine doses to the poorest countries, rather than really bring about a universal vaccination programme.

Nevertheless, overcoming the profit-maximising interest of big pharma and the national focus of governments is not a pipe dream. The world has done it before.

Ilan Noy, Professor and Chair in the Economics of Disasters and Climate Change, Te Herenga Waka — Victoria University of Wellington and Ami Neuberger, Clinical Assistant Professor, Technion – Israel Institute of Technology

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

Barnaby Joyce declares the COVID parliament curbs democratic rights

Michelle Grattan, University of Canberra

Former Nationals leader Barnaby Joyce has condemned the slimmed down, part-virtual COVID parliament as living “in a half life” and compromising democratic rights.

“No disease in 2020 should interfere in your parliamentary democratic rights. Parliament in a half life is not a parliament, it is merely a rather large building, kind of a new age palace in Canberra.”

Under rules agreed for the current sitting fortnight MPs can participate in parliament remotely and ask questions and speak but cannot vote.

The prohibition on remote voting reflects not just technological challenges but a desire to preserve the integrity of votes, represented by the tradition of the chamber doors being locked when votes are counted.

There are some differences in rules between the House of Representatives and the Senate – senators can move amendments remotely.

The House numbers in the chamber at any one time are limited not just to comply with social distancing but to avoid ACT health rules that would apply if the number was above 100. The parties have rosters. Numbers are managed to reflect the balances between the parties.

Writing on Facebook, Joyce said he was in Canberra but every second day he did not have a seat in the parliament to do his job.

“This is all very epidemiologically responsible but also a dangerous intrusion into your democratic rights.”

Legislation passed on a majority vote, but if he was “rostered off” on the day of a vote, how did the people in his New England seat have their wishes represented?

“On that day New England is disenfranchised and there is merely the presumption that their wishes are the same as the executive.

“It is difficult to be responsible for something I had no vote on and I don’t want to explain how I didn’t actually support something but … that was my RDO”.

Joyce said to bring on a private member’s bill required more than half of the actual 151 members of the House, posing a big problem when many members were not there.

“Nothing will be brought on against the wishes of the executive and don’t the ministers in the executive love that.”

He gave the example that the Senate might soon vote to restore the Northern Territory’s two lower house seats (one of which has been abolished due to population loss) but in present circumstances there would be no way to bring the bill on in the House unless the executive agreed.

“Our parliament can’t work on the presumption of the benevolence of the boss being all good. Whether right or wrong it is just too North Korea.”

“I am sure the PM and cabinet are doing the right thing, I don’t see them
as bad people, but if they went off the reservation then there is little or rather vastly less than there should be, to check them.

“This must stop because when the malady is hard to diagnose it is easy to cure, however when it is easy to diagnose – well it is then too late.”

Questioning why MPs could not vote remotely, Joyce said “a person can transfer millions of dollars back and forth in bank accounts but apparently it is too dangerous for a member of parliament to press ‘y’ for yes or ‘n’ for no, check that they have registered on the correct side for how they intend to vote and then press ‘enter’.

“Apparently it is too difficult to declare the empty public gallery, to allow social distancing, as being part of the chamber, so if you are in Canberra, you can vote responsibly.”

Michelle Grattan, Professorial Fellow, University of Canberra

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

Giving your details to restaurants and cafes: your rights, their obligations and privacy concerns

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Mahmoud Elkhodr, CQUniversity Australia

While lockdown restrictions have eased in many places, the coronavirus threat isn’t over yet. The number of cases globally has surpassed 9 million, and infections have slowly crept back for Victoria.

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Restaurants, pubs and cafes have been among the first places to which people have flocked for some respite from social isolation. In many cases, diners must provide their personal details to these venues for potential contact tracing later on.

Unfortunately, there’s a lack of clarity regarding what the best options are for businesses, and many aren’t following official guidelines.

Keeping records

In the rush to reopen while also abiding by government requirements, many businesses are resorting to collecting customer information using pen and paper.

This entails sharing the stationery, which goes against the basic principles of social distancing. Your written details can also be seen by other diners and staff, triggering privacy concerns.

You wouldn’t normally leave your name, phone number, email, address or any combination of these on a piece of paper in public – so why now?

Businesses collecting personal information from customers must abide by the Australian Privacy Principles under the Privacy Act 1988. This requires they “take reasonable steps to protect the personal information collected or held”.

The federal government has also released an updated guide to collecting personal information for contact tracing purposes. Establishments must use this guide in conjunction with individual directions or orders from certain states and territories. See some below.

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QLD	Must keep contact information about all guests and staff including name, address, mobile phone number and the date/time period of patronage for a period of 56 days. More details here.
ACT	Businesses should ask for the first name and contact phone number of each attendee. More details here.
SA	Only real estate agents, wedding and funeral businesses should collect personal information from customers. But not restaurants. More details here:
NSW	Keep the name and mobile number or email address for all staff and dine-in customers for at least 28 days. More details here.

The guide also outlines how businesses should handle customers’ contact information. The relevant parts are:

1. you should only collect the personal information required under the direction or order

2. you should notify individuals before you collect personal information

3. you should securely store this information once you have collected it.

One point specifically notes:

Do not place the names and phone numbers or other details in a book or on a notepad or computer screen where customers may see it.

Thus, many establishments are clearly not sticking to official guidance. So could you refuse to give your details in such cases?

Venues are required by law to collect the necessary details as per their state or territory’s order. Venues can deny entry to people who refuse.

What would a comprehensive solution look like?

For contact tracing to work effectively, it should be implemented systematically, not in a piecemeal way. This means there should be a system that securely collects, compiles, and analyses people’s data in real time, without impinging on their privacy.

It’s perhaps too much to ask hospitality businesses to take the lead on this. Ideally, government agencies should have done it already.

The COVIDSafe app could have provided this service, but with it being optional — and contact tracing by businesses being mandatory — it’s not a viable option. That’s not to mention the issues with the running of the app, including Bluetooth requirements, battery life drainage, and history of problems with iPhones.

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Nonetheless, there are some free technologies that can offer better alternatives to the manual collection of customers’ details. These include:

• Google Forms
• Microsoft Forms
• Cognito Forms and
• Survey Monkey.

All these tools have a similar set up process, and provide similar services. Let’s take a look at one of the most popular ones, Google Forms.

Using Google Forms

Google Forms is a tool that comes free with a Google account. The “contact information template” is a good starting point for businesses wanting to make a secure log of visitor details.

In Google Forms, you can create a workable contact tracing form within minutes.

Once you create a form to collect customers’ information, you just have to share a URL, and customers can fill the form on their own device.

You can generate a shareable URL for your Google form.

Data gathered via Google Forms is stored securely on the Google Drive account and can only be accessed through the same login that was used to create the form. The transmission of data from the customer’s device to Google Drive (where the data is then stored) is also secure.

Or use a QR code

If you want to make the whole process even easier, and not use a clunky URL, then using a QR code (linked to the URL of your Google form) is a great option. For this, you can use any free external QR code generator. These will generate a QR code which, when scanned by a smartphone, will direct the user to your URL.

This code can also be printed and hung on a wall, or stuck to tables where it’s easy to access without any human-to-human contact. A comprehensive guide to creating and accessing Google Forms can be found here.

QR code created using the website https://www.qr-code-generator.com/

That said, although the process of setting up and using such tools is very simple, there may still be people who are too mistrusting of the way their data is used, and may refuse to hand it over.

Mahmoud Elkhodr, Lecturer in Information and Communication Technologies, CQUniversity Australia

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

Aged care visitor guidelines balance residents’ rights and coronavirus risk – but may be hard to implement

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Yun-Hee Jeon, University of Sydney

One in four Australians who have died from COVID-19 is from an aged care facility.

These deaths show how fatal and fast the spread of the infection can be, and the extreme challenge of containing the virus once a positive case appears in aged care homes.

But there is also community pressure to ease social distancing rules for aged care residents and, for facilities that banned visits, to start allowing family members and friends to see their loved ones again.

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To address these concerns, on Friday the aged care sector and consumer advocacy organisations released a draft visitor access code. The code aims to meet the needs of residents to see their families and friends while minimising any risk of spreading COVID-19.

But putting the code into practice will require more staff time to implement them. And while additional funding is on its way, existing workforce shortages may mean a delay to boosting the front-line workforce.

Rights and responsibilities of residents and visitors

According to the code, visitors should be provided with regular updates and information about what’s happening in the facility.

They should also have the option to talk to their loved one via video conference or telephone calls to supplement in-person visits.

But they can’t visit while they have cold or flu symptoms. They must also have had their flu vaccination, wash their hands, remain in the resident’s room or designated area, and to call ahead before visiting. They may also have their temperature taken on arrival.

The code says residents should have access to video conferencing or phone calls.
Georg Arthur Pflueger /Unsplash

Each facility will create its own guidelines about where residents can have guests visit – whether it’s in a dedicated room, the resident’s room, a visiting window or something else.

Most visits should be brief. But residents in their final weeks of life and those with an established pattern of care from a family member or friend, for example to help them eat, should be allowed longer and/or more frequent visits.

The code states residents can continue to use public spaces in the facility, including outdoor spaces. But if there is an outbreak, they will need to be confined to their rooms.

Rights and responsibilities of providers

Facilities have the right to refuse entry to someone for a justifiable reason, and to move to lockdown if there is an outbreak.

They have a responsibility to ensure all staff have their flu shots, to facilitate video conferencing or phone calls with family and friends, and enable in-person visits.

These changes require more staff

All of these changes require additional staff to facilitate better communication, video conferencing and increased visits during the pandemic.

Use of new technologies requires a significant amount of staff time. Many residents would need help holding the phone or dialling the number, or using Zoom or Facetime and maintaining a video conversation online. For some residents, such technologies may be a whole new world of experience.

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Taking bookings for visit times and screening visitors for temperature, flu vaccination status and hand sanitising takes considerable staff time. As does escorting visitors to the room and back out of the facility while ensuring they’re keeping physical distance throughout.

Staff increases will take time to implement

Residential aged care has long experienced workforce problems, including high staff turnover, failure to attract staff with sufficient qualification and training, and leadership issues, to name a few.

A timely and effective response to the COVID-19 outbreak is likely to be hampered by the sector’s existing challenges.

Implementing the guidelines will take up more staff time.
Shutterstock

The Australian government, as the primary funder and regulator of the aged care system, has promised to inject more than A$850 million into the aged care sector in response to the COVID-19 pandemic to:

• address workforce issues, through staff up-skilling, boosting numbers and helping to retain staff
• support new services such as telehealth and the use of technologies to help residents and their families and friends communicate
• continue to improve quality and safety.

However, it’s likely to take some time to see the real effect of this funding on the ground and across the whole sector.

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The draft code is a positive step in addressing some confusion around social distancing measures in aged care homes. Many providers have already been implementing the principles in the code, and beyond. But some haven’t.

Hopefully the code will be more broadly and consistently practised by all aged care providers.

Public consultations about the code are underway and close 3pm Thursday May 7. If you are a family member or friend of someone living in aged care, or you’re an aged care provider or staff member, you can raise concerns or views about the code here. The code is due to be finalised on May 11.

Yun-Hee Jeon, Susan and Isaac Wakil Professor of Healthy Ageing, University of Sydney

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

Ideas of home and ownership in Australia might explain the neglect of renters’ rights

People should be able to feel at home regardless of whether they own the place they live in.
Halfpoint/Shutterstock

Bronwyn Bate, Western Sydney University

In Australia, when we think of home, we think of ownership. This normalisation of home ownership is reflected in the “Great Australian Dream”, the belief that it’s the best way to achieve financial security. This “dream” is based on the premise that if you work hard you will one day be able to buy a home. Home ownership is an important goal for many Australians. Home ownership implies success.

Linked to the importance of home ownership are our conceptions of home – what home means and the ways home can and should be made. Popular understandings of home suggest that feelings of home are most easily created between a house and the person who owns it.

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What is home?

So ingrained is this relationship between home and ownership that in my recently published paper I argue that research rarely considers the ways non-owners make and think about home. This is problematic, given recent housing trends.

Recent changes in housing, particularly the increased cost of home ownership and curbing of public housing, have created a greater demand for rental housing. As a result, there is an undersupply of privately rented housing in Australia.

Australian tenancy laws add to the insecurity of the private rental sector. Tenancy laws and policy reflect cultural norms in Australia, where private renting is seen as a form of short-term, transitional housing.

Recently, significant media and public attention has been directed at the impact of state-based tenancy legislation. It is argued that tenancy laws need to be changed to reflect current housing trends and the needs of many tenants to have long-term, secure housing.

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Rental insecurity is a persistent source of stress for many tenants. It’s a key reason that many tenants struggle to feel at home in their rental property. A person’s ability to identify feelings of home with their dwelling has been shown to impact psychological health and overall well-being.

My research findings suggest that while tenancy law affects the ways we understand and make home, likewise, our meanings of home affect how we shape and understand tenure and policy. Australian tenancy law reflects broader cultural values that associate the meaning and making of home with home ownership.

While researchers and policymakers focus on how tenancy law can negatively affect or restrict renters within their homes, the actual practices of home-making by renters are often overlooked. Current understandings of home typically reference what home means to home owners. My research points to the importance of understanding the ways private renters make home – and make home meaningful – so that any changes to tenancy law reflect the needs of tenants.

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Life as an older renter, and what it tells us about the urgent need for tenancy reform

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Is having a home a right or a privilege?

While there is no doubt that small changes are being made, perhaps the lack of consideration for tenants in tenancy laws and policy is indicative of our larger beliefs about what it is to “feel” at home and make a home. The “Great Australian Dream” is based on the belief that hard work will eventually lead to home ownership. Yet owning a home is becoming impossible for many people, irrespective of how hard they work.

If we understand home to be a basic right, then we will have policies that reflect this. If we understand home to be a privilege, reserved only for those who manage to achieve home ownership, then we will forever live in a country where tenure security and a feeling of being “home” are reserved for those who are able to buy a house. Consequently, our policies will continue to support the idea that, ultimately, a rental property cannot be “home” to a tenant.

The question then remains: do we consider home a right or a privilege? This issue is at the very heart of Australia’s housing crisis. Until we change our meaning of home by separating it from ownership, we will never be able to “fix” Australia’s housing crisis.

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Bronwyn Bate, PhD Candidate, Urban Research Program, Western Sydney University

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

How will Indigenous people be compensated for lost native title rights? The High Court will soon decide

William Isdale, The University of Queensland and Jonathan Fulcher, The University of Queensland

Today, the High Court of Australia will begin hearing the most significant case concerning Indigenous land rights since the Mabo and Wik native title cases in the 1990s.

For the first time, the High Court will consider how to approach the question of compensation for the loss of traditional land rights. The decision will have huge implications for Indigenous peoples who have lost their land rights and for the state and territory governments responsible for that loss.

For Queensland and Western Australia in particular, the outcome will likely provide clarity on the significant amounts of compensation they may be liable for in the future.

Western Australia, for example, has areas of determined native title that are collectively larger than the entire state of South Australia. Within those boundaries, there are a number of potential native title claims that could be compensable in the future.

In 2011, the state’s attorney-general, Christian Porter, reportedly described potential compensation claims as a “one billion dollar plus issue”.

Background on native title

The Mabo decision first recognised, and the Wik decision later clarified, how Australia’s common law acknowledges and protects the traditional land rights of Indigenous peoples. Following some uncertainty and political clamour caused by both of those decisions, the Native Title Act 1993 provided a legislative structure for the future recognition, protection and compensation of native title.

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The act provides a right of compensation for the “impairment and extinguishment” of native title rights in a range of circumstances. However, it provides little guidance on what compensation means in practice. Parliament decided to leave the details to the courts.

Surprisingly, it was not until the end of 2016 that the first-ever compensation claim wound its way to the point of judicial determination – in the Timber Creek decision.

The Timber Creek decisions

The case coming before the High Court today is an appeal following two earlier decisions by the Federal Court.

In Griffiths v Northern Territory (the first Timber Creek decision), Federal Court Justice John Mansfield made the first-ever award of compensation for loss of native title rights.

Mansfield awarded the Ngaliwurru and Nungali peoples AU$3.3m in August 2016 for various acts of the NT government going back to the 1980s. These acts included grants of land and public works affecting areas totalling 1.27 square kilometres near the remote township of Timber Creek.

Mansfield approached the compensation award in three steps:

• Firstly, he worked out the value of the land rights in plain economic terms. He did this by looking to the freehold market value of the land, but discounting it by 20% to reflect the lower economic value of the native title. This is due to the fact its use is limited to rights under traditional law and custom, such hunting and conducting ceremonies, but does not include a right to lease the land, for example.

• Secondly, he considered how to compensate for the loss of the non-economic aspects of native title, such as cultural and spiritual harm. This involved having to:

…quantify the essentially spiritual relationship which Aboriginal people … have with country and to translate the spiritual or religious hurt into compensation.

• Thirdly, he gave an award of interest to reflect the passage of time since the acts of the NT government occurred.

The decision was quickly appealed to the Full Court of the Federal Court, which corrected a few errors and reduced the award to just over AU$2.8m. But in broad terms, it approved the three-step approach Mansfield used to calculate the award.

Whether the High Court will follow the same path remains to be seen. A number of new parties, including various state governments, have now become involved in the proceedings, each with their own barrow to push.

The challenge of valuing native title

The challenge is that conventional methods for valuing land may not be suitable to reflect the unique nature of native title rights and the significance of those rights to Indigenous peoples. New principles, or adapted versions of old ones, may be needed.

For example, in most cases where a piece of land is resumed by a government for an infrastructure project or some other purpose, the principal measure of compensation is the market value of the land.

But in the case of native title rights, there is no market to value the land. Native title cannot be sold, mortgaged or leased. Further, native title is different in every case, with no uniform content. Native title rights can include everything from a right to exclusive possession of land to a very limited right to conduct traditional ceremonies on a piece of land.

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Whether the Federal Court has taken the right approach – or whether a new approach should be adopted – will be the subject of debate in the High Court.

The Ngaliwurru and Nungali people contend the correct approach would have seen them awarded roughly AU$4.6m. The NT government is arguing, however, that the amount should be no more than about AU$1.3m.

The politics of Timber Creek

Just as Mabo and Wik resulted in political furore, so, too, may Timber Creek.

One sore point is between the federal government and the states and territories over who will pay any compensation. Under both the Keating and Howard governments, the Commonwealth undertook to pay 75% of the compensation a state or territory may be required to pay in future claims (with some exceptions).

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But in 2011, Porter tabled in the WA parliament a letter from Prime Minister Julia Gillard renouncing any Commonwealth obligation “for the cost of native title compensation settlements”.

Porter may now find himself on the opposite side of the table, having shifted from state supplicant to his new position as a Commonwealth purse holder.

Just how much political friction there will be will depend on the High Court’s approach to determining compensation and the potential cost if hundreds of other native title groups pursue compensation claims in the future.

William Isdale, Postgraduate Research Student, T.C. Beirne School of Law, The University of Queensland and Jonathan Fulcher, Program Director, Energy & Resource TC Beirne School of Law, The University of Queensland

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