In Western Australia, any resident who now leaves the State for New South Wales and is seeking to return “can apply to do so on compassionate grounds, subject to the following conditions … Have received at least one dose of a COVID-19 vaccine…”, an August 19th Facebook post from Premier Mark McGowan reads.
Section 51(xxiiiA) of the Australian Constitution states that no medical or pharmaceutical treatment can be imposed on anyone without his or her informed consent. This view is supported by the Nuremberg Code – an ethics code relied upon during the Nazi doctors’ trials in Nuremberg in 1947. This Code has as its first principle the understanding that “the voluntary consent of the human subject is absolutely essential”.
Vaccination passports also directly violate section 92 of the Constitution. Section 92 is written in relatively simple language to describe a basic concept that any trade, commerce and intercourse among the States shall be “absolutely free”.
Of course, when it comes to a purposive interpretation of section 92, surely there is no better source than John Quick and Robert Garran’s The Annotated Constitution of the Australian Commonwealth (1901). In this seminal work, Quick and Garran authoritatively stated:
[A]bsolute freedom of trade, commerce, and intercourse may be defined as the right to introduce goods, wares, and merchandise from one State into another, the right to sell the same, and the right [of citizens] to travel unburdened by State restrictions, regulations, or obstructions.
It goes without saying that vaccination passports undeniably violate the democratic principle of equality before the law. In Leeth v Commonwealth (1992), the High Court held that this principle is embedded impliedly in the Australian Constitution. To conclude: vaccination passports are constitutionally invalid. They grossly violate the democratic principle of equality before the law as well as the free movement of Australian citizens within their own country.
Professor Augusto Zimmermann was a Law Reform Commissioner in WA from 2012 to 2017.