Scott Morrison has said that pubs/cafes having a no jab no entry policy would be lawful under discrimination laws. 💉
As a discrim law expert, I’ve been asked to look into the claim.
It’s rare for me to say this, but: I agree with the PM. A short thread on why👇 #auslaw #auspol
As a discrim law expert, I’ve been asked to look into the claim.
It’s rare for me to say this, but: I agree with the PM. A short thread on why👇 #auslaw #auspol
Generally businesses are entitled to set contractual conditions for entry or use of facilities. This is done through contract law - you agree to enter on the basis of certain conditions.
A major limitation on this is that such conditions cannot breach discrimination laws. 🙅🏻♀️ /2
A major limitation on this is that such conditions cannot breach discrimination laws. 🙅🏻♀️ /2
A requirement to be vaccinated to enter a pub/restaurant might disadvantage some groups who have a protected attribute - eg disability, religion, political view.
This likely can’t be direct discrimination, as it applies equally to all, but *might* be indirect discrimination.❓/3
This likely can’t be direct discrimination, as it applies equally to all, but *might* be indirect discrimination.❓/3
BUT it’s a defence to indirect discrimination if the requirement is ‘reasonable’ in the circumstances.
A court would take into account the disadvantage caused to the person in question, the reason for the requirement, whether the means are proportionate to the ends, etc. ⚖️ /4
A court would take into account the disadvantage caused to the person in question, the reason for the requirement, whether the means are proportionate to the ends, etc. ⚖️ /4
I think it is almost certain that a no jab no entry policy would be ‘reasonable’, & therefore lawful.
Given the known risks of covid and the known impact of covid vaccines in reducing death, hospitalisation, illness & transmission, it is the best way to reduce such risks. ✅ /5
Given the known risks of covid and the known impact of covid vaccines in reducing death, hospitalisation, illness & transmission, it is the best way to reduce such risks. ✅ /5
Work health and safety laws actually obligate employers to actively take steps to mitigate workplace risks. Covid is a known workplace risk. The best way to protect employees and others at work from covid is vaccines. Complying with WHS laws is also a defence in discrim law. 🛡/6
There are three caveats to this:
1) Exemptions/alternatives needed for the very small no. of people who cannot be vaccinated for genuine medical reasons. 😷
2) Exemptions needed for those <12yo. 👶
3) Everyone must have had the opportunity to be vaxxed - probably Oct. 🗓 /7
1) Exemptions/alternatives needed for the very small no. of people who cannot be vaccinated for genuine medical reasons. 😷
2) Exemptions needed for those <12yo. 👶
3) Everyone must have had the opportunity to be vaxxed - probably Oct. 🗓 /7
What is less clear is whether a business that EXCLUDES those who are vaxxed would breach discrimination laws.
This comes down to whether such business owners are imputing that vaxxed people are carrying a live virus - if so, it’s an imputed disability and likely unlawful. 🚫 /8
This comes down to whether such business owners are imputing that vaxxed people are carrying a live virus - if so, it’s an imputed disability and likely unlawful. 🚫 /8
An important update today: the Victorian govt has effectively imposed a vaccine mandate on hospitality workers and patrons.
Assuming this is enshrined in public health orders, this provides a full defence to Vic discrimination claims for all venues who apply this mandate. 📝 /9
Assuming this is enshrined in public health orders, this provides a full defence to Vic discrimination claims for all venues who apply this mandate. 📝 /9
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