Following the ‘Delta’ Covid-19 outbreak in NSW in the second half of 2021, the Government introduced a ‘Delta outbreak’ specific Public Health Order, which prohibited certain forms of travel, and work activities unless the person had received one or more vaccinations for Covid-19.
In response to this Public Health Order, a vocal minority of the population claimed that their rights were being infringed upon by what was effectively a statutory vaccine mandate.
Perhaps buoyed by the ongoing debate surrounding the Federal Government’s religious discrimination bill, many of those in the religious community who were opposed to the vaccination requirements in the Delta outbreak Public Health Order pressed for exemptions based on religious belief.
The Public Health Order made clear that a Covid-19 vaccination will not be required for those who can provide a Medical Contraindication Certificate which was to be completed by a medical health professional. However, the Public Health Order provided no exemptions for those opposed to vaccination on ideological, religious or other grounds.
In response, the Australian Human Rights Commission published general guidance relating to religious belief as a basis for refusing a Covid-19 vaccine. Amongst other things, this guidance noted:
- that there are very limited avenues for people to make complaints on the grounds of religion or religious belief under federal discrimination law; and
- that although the Australian Human Rights Commission can hear complaints about discrimination based on religious belief, the Federal Court and Federal Circuit Court have no jurisdiction to hear and determine claims relating to religious discrimination.
In November 2021, the NSW Supreme Court handed down its decision in the case of Larter v Hazzard (No 2) [2021], where the Applicant (who was a senior ambulance officer), refused to comply with a Public Health Order requiring him to be vaccinated on the basis of his religious and personal beliefs.
Specifically dealing with the question of Mr Larter’s religious beliefs, the Court held that while such beliefs were genuinely held, the beliefs were inconsistent with the Catholic Church’s public statements in support of vaccination, meaning that Mr Larter was considered to be more of a ‘conscientious objector’ and not a strict adherent to an accepted religious doctrine.
Action Items:
Although this decision is related to a vaccination mandate imposed under a Public Health Order, it is nevertheless instructive for employers and businesses who wish to implement their own mandates via workplace policy or reasonable and lawful directions.
Accordingly, in order to minimise the risk of employee disputes and claims, employers should:
- clearly communicate the operational and WH&S basis for a mandatory vaccination requirement, and make clear that the requirement constitutes a reasonable and lawful direction;
- show compassion and understanding towards employees who are hesitant to become vaccinated on religious or other grounds, but make clear that statutory WH&S obligations take priority over these grounds;
- only recognise legitimate medical grounds as a basis to resist mandatory vaccination requirements (supported by a medical contraindication certificate); and
- enforce any mandatory vaccination requirement fairly and equitably.
