Analysis: mandatory vaccinations are unconstitutional in Australia

Last month, a video by Sen. Malcom Roberts of One Nation went viral.  In that video, he argued that mandatory vaccinations are unethical but unfortunately legal under the current law. We beg to differ, and thankfully we are in good company.

Constitutionally Inoculated to Resist Coercion

The title of this paragraph is taken from a very detailed article that Dr Augusto Zimmermann published on Quadrant a few days after Sen. Roberts' video was released.  In that article, Dr Zimmermann argues that

"[...] no Australian government, either federal or state, or those acting on its behalf, is constitutionally authorised to force any individual to take medicament against his or her own will, or force them or their children to be, among other things, compulsorily vaccinated." 

Is this just the personal opinion of a brilliant professor of constitutional law[1]? Hardly so. Dr Zimmermann, in fact, cites a 1949 case in the High Court of Australia, where two of the justices stated that

"[...] the expression invalidates all legislation which compels medical practitioners [...] to provide any form of medical service"

and

"If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance"

Finally,

"When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription."

"To conclude", writes Dr Zimmermann,

"the Australian Constitution explicitly prohibits any form of legal compulsion upon the medical profession to carry out any form of medication, including vaccination. In fact, no government, either federal or state, can impose compulsory vaccination in this country, or prevent medical practitioners from remaining entirely free to choose whether or not to provide certain medical services, including vaccination."

In the current climate, it is certainly refreshing and encouraging to remember that the Australian Constitution affords a good degree of protection to the unalienable rights of the individual, including of course bodily autonomy.  Perhaps it is time that some of our politicians have a look at it?

We highly recommend our members to read the entire article by Dr Augusto Zimmermann on Quadrant:  Constitutionally Inoculated to Resist Coercion


1. Dr Zimmermann is Professor and Head of Law at the Sheridan Institute of Higher Education in Perth and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus.
He has been chair and professor of constitutional law at Murdoch University for ten years, from 2007 to 2017.
He is also a former Law Reform Commissioner in WA (2012-2017) and President of the Western Australian Legal Theory Association (WALTA).

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