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Employers will have a vaccine-mandate battle because of the Commonwealth Disability Discrimination Act 1992

From our learned friend StephenJ

Hi Michael

I refer to the Commonwealth Disability Discrimination Act 1992 (Cth). 

It's a federal law that overrides state legislation.

I am mightily disturbed by what has been going on with vaccine mandates and threats that people could be sacked for not taking the vaccine.

The Commonwealth Disability Discrimination Act makes it illegal to discriminate against a person in employment because of:

the presence in the body of organisms capable of causing disease or illness;

and includes a disability that: 

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

Morrison can always alter the legislation of course but the position right now is clear.

Steve

 

He's right.

We have the memory of little Eve van Grafhorst to thank for the Commonwealth Disability Discrimination Act 1992.

This article is from the ABC, back when they thought discriminating against people because of diseases and their treatment was not OK.

Screen Shot 2021-09-24 at 9.27.22 am

Eve van Grafhorst was almost three when she was diagnosed with HIV in 1985, early in the AIDS crisis. She was one of the first children in Australia to contract the virus, through contaminated blood transfusions.

The disease would end up killing her, but Eve's battle was not only a medical one — it was also against public panic, hysteria and humiliation.

The three-year-old and her family were shunned, and even forced into hiding, before eventually being hounded from the country.

But Eve was not only a victim — she was also a fighter who became one of the most recognisable faces of the AIDS crisis, as well as an inspiration to others.

This coming Tuesday is the 25th anniversary of Eve's death. Her sister Dana Lee, who spoke to the ABC from New Zealand, can still vividly recall the controversy that surrounded her little sibling's short life.

"When we went back to our home, the neighbours had built a six-foot fence to keep us out, or to keep the AIDS out, I guess," she said.

Local authorities banned Eve, claiming she posed a risk to other children. Eventually they relented, but insisted the little girl had to wear a plastic face mask.

ENDS

Covid is a serious disease, but it has an exceedingly low mortality rate.

We wouldn't let employers discriminate against people in high-risk HIV groups.  It's the law.

We're on a slippery slope if we make an exception for Covid.  

Next step is a discussion about the infectiousness or means of transmission of a disease - and whether it's OK to ostracise or destroy the livelihood of people on the 'wrong' side of that ledger.

ENDS

UPDATE - from reader Philip

Not a lawyer but section 48 seem to say otherwise. 

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That to me means it does not apply as covid is an infectious disease **

ENDS and thanks Philip.

StephenJ suggests we might read this article by lawyer David Porter in The Spectator

He makes a very good point:

Section 48 of the Disability Discrimination Act exempts discrimination “reasonably necessary to protect public health” where a person’s disability is an “infectious disease”. 

Being unvaccinated against any contagion is not an infectious disease—it’s just being unvaccinated—so the section 48 exemption cannot apply purely on the basis of a person’s vaccination status. 

Even if the section 48 exemption did apply there is still the limitation of “reasonably necessary to protect public health”; whatever that might mean in relation to employment, shopping, hospital access, public (including air) transport or a U2 concert. 

ENDS

And StephenJ himself adds in answer to Philip's point:

The basis of the exclusions is absence of vaccination.


In Victoria the press releases justified it on the grounds of potential spread.
However it is acknowledged that being vaccinated does not protect you against acquiring the virus or from passing it to others.


By the way ending up in ICU or dying is not confined to the unvaccinated.
The discrimination therefore can only relate to something you may acquire in the future; however the test is something that is not determinative of this.
If the vaccine prevented the transmission of the disease the exception under the Discrimination Act could be justified as reasonably necessary to protect public health. It doesn't.


For completeness the disability is the potential to acquire the virus and everyone involved (except those with natural immunity in effect) has that disability.

DISABILITY DISCRIMINATION ACT 1992 - SECT 5
Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

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