Heres why no jab no entry is not discrimination

September 20, 2021 â€" 3.30pm

Mandatory vaccination is a key feature of the Victorian government’s newly announced roadmap out of lockdown. To be able to go to pubs, restaurants and cafes in Victoria, you will need to be vaccinated against COVID-19.

Some people claim that vaccine mandates are discriminatory. They are wrong. “No jab, no entry” policies do not constitute discrimination. Here’s why.

Fully vaccinated Victorians will have more restrictions lifted.Credit:Jamie Brown

It is true that distinctions are being made about access to certain venues on the basis of vaccination status. But not every distinction is “discrimination”.

We make legitimate distinctions between people daily, especially based on individual choices and actions. An employee with a good work ethic may get promoted over a person who does not have a good work ethic. No one would consider this to be discrimination.

Rather, our discrimination laws prohibit distinctions based on particular protected attributes. These attributes are largely traits that we cannot change, which have historically been used to justify the marginalisation of entire communities.

This includes women, Aboriginal and Torres Strait Islander peoples, and the queer community. And that is why our discrimination laws prohibit discrimination based on sex, race, and sexuality and gender identity.

A mass vaccination centre in Melbourne. Credit:Jason South

There is no protected attribute for choosing not to be vaccinated against COVID-19. So, where does the discrimination law argument arise?

Businesses are generally entitled to set whatever conditions of entry they want. Patrons agree to enter on those conditions.

“No thongs, no singlets” is a common rule for pubs, while nightclubs refuse entry to those who are too intoxicated.

Businesses already have restrictions imposed on would-be customers.Credit:Simon Schluter

The main limitation to a business owner’s discretion to set entry conditions is that these conditions cannot breach discrimination laws.

Discrimination laws prohibit two types of conduct. Direct discrimination is where a person is treated unfavourably because of their protected attribute. This could occur where a female employee is not offered a promotion because she is a woman.

Indirect discrimination is where a policy or requirement is applied equally to everyone, but this has the effect of disadvantaging some people because of their protected attribute. An example would be a restaurant requiring all patrons to enter through a set of stairs, which would disadvantage people who use wheelchairs.

Vaccine mandates apply to all, so we are in the field of indirect discrimination. A requirement to be vaccinated to enter a cafe might disadvantage people with a disability, if they are unable to be vaccinated for health reasons, and people who have religious beliefs against certain vaccines. These are protected attributes in most Australian discrimination laws.

However, it is a defence to indirect discrimination if the requirement is ‘reasonable’ in the circumstances. In deciding what is reasonable, courts generally consider the purpose, proportionality and consequences of the requirement.

A “no jab, no entry” policy is almost certainly reasonable, and therefore lawful. There is widespread community transmission in many parts of Australia right now, and you are more likely to catch COVID-19 in indoor venues. Even outside of Victoria, NSW and the ACT, the risk of COVID-19 crossing borders is ever-present.

Vaccines have been proven to reduce death, hospitalisation, illness and transmission for COVID-19. Vaccine mandates would significantly reduce health risks in hospitality venues.

Businesses may actually be breaking the law if they do not have a “no jab, no entry” policy. Work health and safety laws require employers to take steps to reduce workplace risks, to both workers and customers. The best way to protect hospitality workers and patrons from catching COVID-19 and getting sick is through vaccines. Complying with work health and safety laws is also a defence to any discrimination claim.

There are, though, three caveats to a “no jab, no entry” policy that business owners should consider.

First, flexibility is needed for those who cannot be vaccinated for genuine medical reasons. This is a very small number of people. They could instead be required to provide a negative test result, especially if rapid testing becomes available.

Second, kids under 12 years â€" who are not yet eligible for any vaccine â€" should also be exempt. Third, mandates should not be imposed until everyone has had the opportunity to be vaccinated.

Finally, discrimination laws usually include a catch-all defence for any conduct that is done in compliance with other laws. Assuming the Victorian and NSW vaccine mandates are put into public health orders, and the same in other states and territories, this will provide protection for all businesses that apply the mandate.

People can choose not to get vaccinated against COVID-19. But businesses are equally free to choose not to permit them entry.

Liam Elphick is a discrimination law expert at the Monash University Faculty of Law.

Liam Elphick is a discrimination law expert at the Monash University Faculty of Law.

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