It is often said that the pandemic has changed many of our daily habits — for example, getting used to working from home, and getting Australians accustomed to scanning QR codes. Scanning to check-in before entering a shop has become second nature, and taking advantage of this trend Australia’s major supermarkets are about to roll out QR-code payments. On the international travel front, Australia has already launched the international vaccine passport, which is also a QR code. It is easy to imagine that for some time to come, people who have received two doses of the vaccine and those who have not will have parts of their daily life and work separated from one another. For this reason, Australia’s domestic vaccine passport (or vaccine certificate) has been raised repeatedly.

Federal Level: A Surface-Level Consensus Reached

— The domestic vaccine passport, or vaccine certificate, was first proposed in the Covid-19 vaccination policy released in November 2020: vaccination is voluntary but strongly encouraged,  “however, in certain circumstances, the Australian Government and other government agencies may require proof of vaccination as a condition of border entry or re-entry.”

— In July 2021, National Cabinet agreed to a four-phase reopening plan, including that once a 70% full vaccination rate is achieved, states and territories may “ease restrictions on vaccinated residents (TBD)”, and at 80% the federal government will “remove all restrictions on outbound travel for vaccinated Australians”.

Since then, it has been made clear that proof of vaccination status will also be required for certain activities within the country.

— In late September 2021, a National Cabinet meeting agreed that all states and territories will integrate the vaccine certificate into their respective regional check-in apps. The apps will be used “as required by the public health orders of the states and territories”. No uniform or model health order has yet been agreed.

State Government Level: Also Conflicted

NSW had previously been trialling the vaccine certificate on Service NSW in remote areas including Dubbo, for a period of 2 weeks.

ACT has made clear that, owing to human rights concerns, the extremely high vaccination rate within the territory, and the rapid progression from 70% toward 80%, there is no need to use a vaccine passport locally.

QLD as of early September had not disclosed whether it would use a vaccine passport.

TAS Premier said he was not opposed to the idea, but that a vaccine passport would not be implemented until every Tasmanian had had the opportunity to be vaccinated.

WA Premier stated: “You’ll need a vaccine passport to do certain things,” including flying overseas, interstate travel, and possibly attending sporting events.

SA Premier: supportive, but hoping the federal government will work to coordinate.

Can Businesses Require Customers to Be Vaccinated Before Entering?

In early August Morrison said the Attorney-General had stated that requiring customers to be vaccinated was “unlikely” to breach discrimination law, but that it is ultimately the business’s own decision. Discrimination law expert Liam Elphick agreed, pointing out that “choosing not to be vaccinated against Covid-19” is not a “protected attribute” under discrimination law. By the same token, people can choose not to receive the Covid-19 vaccine, but businesses are equally free to choose not to allow them to enter.

The Australian Human Rights Commission has stated that the guiding human rights principles for measures considered in relation to vaccine passports to promote public health are:

– They must be reasonable, necessary and proportionate.

– They must take into account the potential for discrimination.

– Vaccine passports may have significant impacts on privacy and autonomy, freedom of movement and association, and equality and discrimination, particularly in relation to access to everyday goods and services.

Although the vaccine take-up rate in Australia is already very high, each of us may have one or two friends or family members around us who, for religious, health or other reasons, have not yet been or are unwilling to be vaccinated. Going forward, this may affect not only outbound travel but potentially even their everyday life. And as vaccination rates in each state and territory climb ever higher, the small minority who are unvaccinated will gradually become a very small minority and then an extremely small minority. How to protect their lawful rights and freedoms should not be overlooked.

That said, for now whether and how to use vaccine passports remains fairly contentious across the states.