Grattan on Friday: Vaccine passports are a better tool than mandating jabs for all jobs

As the nation proceeds – but still at an agonisingly slow pace – towards the targets of having 70% and 80% of those 16 and over fully vaccinated, the next big debate is about making the jab compulsory in workplaces.

This would give the community greater protection and accelerate the lifting of restrictions and opening the economy.

Dig deeper, however, and it’s a fraught issue, full of political, legal, practical and ethical complexities.

From the start, Scott Morrison has insisted his government would not make taking the vaccine mandatory.

It’s not just a matter of the anti-vaxxers, who are only a small, albeit noisy, minority.

It’s that many in the Coalition’s ranks and, even more important, among its base would be totally against compulsion. A fair number of these have already been angered by the extent of restrictions, believing civil rights have been excessively compromised.

So when individual businesses, notably the food processor SPC, started down the road of requiring workers to be vaccinated, Morrison last week had the solicitor-general brief national cabinet on the confusing legalities. He also said neither the federal government nor any state or territory intended to legislate to give employers the legal safety they would like.

“We are not going to seek to impose a mandatory vaccination program by the government by stealth,” he said this week.

A very hot potato has been left firmly in the hands of individual businesses.

They are in an awkward position. The advantage of having their workplaces vaccinated is obvious. But the legal position is unclear. In the absence of a public health order, they would be relying on directions to employees being judged lawful and reasonable. Inevitably there would be court challenges.

In advice published on Thursday, the Fair Work Ombudsman said: “In some cases, employers may be able to require their employees to be vaccinated against COVID-19. Employers should exercise caution if they’re considering making COVID-19 vaccinations mandatory in their workplace and get their own legal advice.”

ACTU secretary Sally McManus doubts the legality, short of public health orders, of employers forcing vaccinations and says support and encouragement for employees is the better way to go.

Even apart from any court challenge, some businesses would face division among their workers, and potential dismissals and voluntary departures. When Western Australia made vaccination compulsory for quarantine workers – surely a very reasonable requirement – it lost some of them.

Simon Longstaff, head of The Ethics Centre, points to the distinction between vaccination being compulsory or a condition for doing something.

Vaccination could be a condition for a person working in a company, just like donning safety equipment is for certain jobs, Longstaff says. “If they are not prepared to accept the condition, then they may choose not to work for an employer imposing such a condition.”

But “conditions” form a continuum. For example, having to be vaccinated to work in a hospital is very different to the jab being required to keep a job that involves minimal risk.

This takes us to the various ways of skinning the cat – and to vaccine “passports”. The government already has the beginnings of a vaccine passport scheme, although it won’t use that name – because its “base” doesn’t like the idea. It calls it a certificate.

The vaccine passport is the iron-fist-in-velvet-glove approach to imposing vaccinations.

Once we reach the 70% or 80%, and people are registered as being vaccinated, evidence of having had the jab will be the gateway to freedoms. Looked at the other way, lack of the passport would restrict what people could do.

A vaccine passport could be as necessary for international travel as a national passport. At a more mundane level, it could be required to eat at a restaurant just as, currently, people are told to sign in. Similarly, it could be needed to attend music or sporting events. Or to enter Parliament House.

Forcing people, directing or indirectly, to have a COVID vaccination involves sometimes competing rights – your right to choose whether to accept a vaccine, my right to be safe in the workplace and the community’s right to protection from a very serious and potentially fatal disease.

It is not as simple as “no jab no pay” for the vaccination of children, which only denies government benefits. In the COVID case we’re talking, in the extreme, about people’s access to jobs and livelihoods.

So where are we left?

When people are dealing with the vulnerable – most obviously in aged care – the rights of those being cared for clearly come ahead of the workers’ right to choose. National cabinet was correct in supporting the mandating of vaccinations of the aged care workforce.

Workers in quarantine, disability, and health care are, or should be, treated similarly by whoever employs them.

There are many other “frontline” workers, including those in supermarkets and hospitality. While this gets us back to the compulsion issue, it could be tackled, especially in occupations where there is high turnover, by giving preference in hiring to the vaccinated. This would be harsh, but less harsh than firing workers.

When everyone eligible has been offered the vaccine, we will have a better idea of the size of the minority of unvaccinated people we’re dealing with.

It’s important during the rollout to minimise this pool – to make sure as many as possible of the apathetic have been motivated and the hesitant persuaded.

The latest government “vaccine sentiment” survey, released on Thursday, had 79% of Australians intending to get vaccinated, or already done. According to rollout chief Lieutenant General J.J. Frewen, of the rest 14% were making up that their minds and only 7% were saying they won’t get vaccinated.

Incentives may be helpful, although they shouldn’t be as expensive or extensive as Anthony Albanese’s $300 for everyone vaccinated. Much better advertising is also needed, including niche campaigns where vaccination is below average.

The Australian community has proved remarkably compliant during COVID. Some hesitancy about AstraZeneca notwithstanding, we are lagging in our vaccination rate not primarily because of the public’s resistance or reluctance but because of the faults in the rollout. With improvements in that, and a combination of the positive and negative incentives of the vaccine passport, we can probably reach a vaccination level high enough to keep the community safe without having to go further down the road of compulsion.