Prime Minister Scott Morrison holds a vial of AstraZeneca vaccine during a visit to the CSL serum lab to inspect COVID-19 Immunoglobulin being produced in Parkville, Melbourne, Friday February 12, 2021. (AAP Image/POOL, David Caird) NO ARCHIVING

Constitutional clause doesn’t ban vaccine mandates in Australia

AAP FactCheck July 26, 2021

The Statement

Social media posts claim the Australian Constitution’s ban on “civil conscription” means that mandated or coerced vaccinations are illegal.

A July 8 Facebook post from Jason Miles, who is identified as being a candidate for minor political party the Great Australian Party, encourages workers to refer to the constitution if threatened with losing their jobs for refusing COVID-19 vaccinations.

The post claims the constitution “expressly prohibits the coercion of medical and dental services in circumstances that amount to any form of civil conscription”.

“This includes the coercive and punitive ‘No Jab’ laws, and the laws that compel private medical information to be conscripted onto the Australian Immunisation Register,” it states.

“S51(xxiiiA) provides an express constitutional protection against forced medication.”

Similar claims have been shared by several Australian Facebook accounts, including by the main page for the Great Australian Party and other accounts sharing the text of an article published in the Spectator Australia.

A Facebook post including the claim
 Posts claim the Australian constitution includes a clause that effectively bans mandatory vaccines. 

The Analysis

While the Australian Constitution may prevent the federal government from forcing medical practitioners to provide services – such as administering COVID-19 vaccines – it does not bar the government from introducing vaccination requirements.

In June, the Australian government announced that COVID-19 vaccinations would be mandatory for all residential aged care workers by mid-September. Quarantine workers are also subject to vaccination mandates, however vaccinations remain voluntary for the general population.

However, the posts claim such measures are unconstitutional, pointing to section 51(xxiiiA) as proof.

This section states the parliament has the power to make laws for “with respect to the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances” (emphasis added).

Luke Beck, an associate professor of constitutional law at Monash University, told AAP FactCheck in an email that this section was added to the constitution in 1946 to “allow the Commonwealth to fund various social services schemes” such as Medicare, the pharmaceutical benefits scheme and payments available through Centrelink.

However, Dr Beck called the claim in the post “pseudo-legal nonsense”, saying the civil conscription limitation only prevents the federal government from forcing people to do work as doctors and dentists – it did not grant people individual “rights”.

The High Court dealt with the clause in 2009, when it ruled that requiring doctors to comply with professional standards in order to receive Medicare payments did not amount to civil conscription, he pointed out.

“There’s nothing in the constitution that would prevent a law making COVID vaccination mandatory. We have had mandatory vaccination rules for some professions for a long time in respect of other vaccines,” Dr Beck added.

Amelia Simpson, an associate professor at the Australian National University (ANU) who specialises in discrimination and equality principles in constitutional law, said the claim was “far-fetched” and “highly unlikely to be accepted by any court”.

She told AAP FactCheck in an email the prohibition on civil conscription was included to prevent the “forced enlistment of medical personnel to work for the government”.

“It was a response to the fears of the medical profession in Australia at the time (70 years ago) that their profession may be nationalised and their ability to work in private practice restricted,” Dr Simpson said.

“It has got nothing to do with coercive immunisation of citizens, then or now.”

Scientia professor George Williams, the deputy vice-chancellor and former dean of law at UNSW, told AAP FactCheck the clause could be used to prevent the Commonwealth – although not the states – from compelling doctors to take part in mass immunisation programs.

“On the other hand, it would not prevent the Commonwealth from requiring citizens to be vaccinated,” he said in an email.

Legal experts also noted that the section of the constitution only relates to the Commonwealth’s power and does not cover responsibilities of the states.

Ron Levy, an associate professor with expertise in constitutional law at the ANU College of Law, told AAP FactCheck that even if a person somehow convinced a court to re-read the section to bar mandatory vaccination, that decision would not apply to any laws of the states.

Under the constitution, the Commonwealth is responsible for national health policies such as Medicare, whereas the states look after public hospitals and deliver preventative services such as immunisation programs (page 2).

Similar claims about the constitution’s civil conscription clause barring forced or coerced vaccinations have previously been debunked on the Freeman Delusion website. AAP FactCheck has also debunked misleading claims that those refusing COVID-19 vaccines could be jailed under the Biosecurity Act.

Prime Minister Scott Morrison holds a COVID-19 vaccine dose.
 Prime Minister Scott Morrison holds a COVID-19 vaccine dose. 

The Verdict

The Australian Constitution’s “civil conscription” clause does not render mandatory COVID-19 vaccines illegal, although no such mandate has been introduced in the country for the general population.

Legal experts say this section only prevents the government from forcing doctors and dentists to undertake tasks against their will and it does not apply to the broader public.

False – Content that has no basis in fact.

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