A Systematic Analysis of Australian Superior Court Decisions in Cases Involving Challenges to Vaccine Mandates

Abstract

The Australian federal government’s COVID-19 Response Inquiry Report (‘Inquiry Report’) was highly critical of vaccine mandates, which were singled out in the Inquiry Report as having the largest negative impact on trust in government and medical science. Participants in the Inquiry Report noted feeling disempowered by mandates, and a community input survey found that 38% of respondents would either not get a vaccine during a future public health emergency or were undecided. Those who tried to challenge vaccine mandates through the judicial system in Australia expressed similar sentiments to little end — legal mechanisms for challenge proved largely ineffective, responding to procedural errors in the decision-making process and demonstrating the influence of the precautionary principle in times of emergency. This article maps the legal response to vaccine mandates in Australia, providing a background against which to analyse the limited role courts have played. The restricted operation of the principle of legality as an interpretive aid and implicit deference (in a non-doctrinal sense) to public decision-makers during the COVID-19 pandemic speaks to the emerging importance of human rights legislation as a means of providing adequate legal scrutiny of decision-making during public health emergencies.