In your letter, you have stated that if our client chooses not to be vaccinated, this will be considered “refusal to comply with a reasonable and lawful direction” and a “breach of the law” and that her employment may be terminated on these grounds. 

The PHO does not require you to terminate your employees and in our view, you do not have the grounds to do so.  In addition, the PHO is in conflict with laws that protect the rights of our client and the PHO may not in fact be determined in a Court as a reasonable and lawful direction. For example, numerous laws, regulations and policies protect the right of informed consent in receiving a vaccine or any medical procedure, including:

• The Commonwealth Constitution which prohibits civil conscription in medical and dental services (s.51(23A)).
• The Biosecurity Act 2015 (Cth) which prohibits vaccination or treatment without meeting the stringent requirements of an individual Human Biosecurity Control Order (s.92), and prohibits the use of force for vaccination (s.95).
• The UNESCO Statement on Bioethics and Human Rights, which states “Any preventative diagnostic and therapeutic medical intervention is only to be carried out with the prior free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason, without disadvantage and without prejudice” (Art.6).
• The Criminal Code Act 1995(Cth), which relates to interfering with political liberty states “Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person of any political right or duty shall be guilty of an offence” (s.83.4).
• The official Australian Immunisation Handbook, which states that for consent to be legally valid, “It must be given voluntarily in the absence of undue pressure, coercion or manipulation.” (s.2.1.3).
• The Nuremberg Code, which states “The voluntary consent of the human subject is absolutely essential” (Art.1).

We ask that you consider your duty of care to your employees, the risk of liability to your business and your personal liability if you choose to require our client to be vaccinated as a condition of her employment.  It may not be a defence for you to rely on a PHO which is found to be unlawful, particularly where there is a risk of harm, injury or death involved.

We would like to provide you with some direct evidence, which you may or may not be aware of, so you can carefully consider your response.  The COVID vaccines have “provisional” approval for emergency use as new medicines. There has been no independent efficacy, safety and quality testing.  Both Pfizer and AstraZenca have not made claims that their products prevent transmission or COVID disease/infection, but only that they may lessen symptoms. 

Page 34 of TGA’s Public Assessment Report sets out the limitations of the data that was relied upon for TGA to make its “provisional” approval and it says: 

⁃      It is not yet known whether the vaccine prevents viral transmission.  The TGA has confirmed this in Parliament hearings and question time.

⁃      It is not yet known whether the vaccine is safe when combined with other vaccines in the body. This is also confirmed in the Pfizer Product information sheet “Interaction with other vaccines and other medications has not been studied.”

⁃      It is not yet known whether the vaccine provides protection from infection (Where it says a “correlate of protection has yet to be established” and immunogenicity cannot be considered protective at this stage – this means that yes the vaccine triggers an immune response, but it is not yet confirmed that the immune response triggered by the vaccine actually protects from infection).