A Bill for an Act to prevent discrimination in relation to COVID‑19 vaccination status, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act is the COVID‑19 Vaccination Status (Prevention of Discrimination) Act 2022.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Definitions
In this Act:
authority:
(a) of the Commonwealth—includes a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); and
(b) of a State or Territory—includes a local council.
business includes a not‑for‑profit business.
COVID‑19 means the coronavirus commonly known as COVID‑19 (including any subsequent variants of that coronavirus).
COVID‑19 vaccination means a vaccine approved by the Therapeutic Goods Administration for the purpose of immunising persons against COVID‑19 infection.
current COVID‑19 vaccination exemption: a person has a current COVID‑19 vaccination exemption if:
(a) a medical practitioner has certified that, in their professional opinion, the person has a medical contraindication to COVID‑19 vaccinations; and
(b) if the certification is for a specified period—that period has not ended.
Note: A medical contraindication will include mental health issues related to the provision of a COVID‑19 vaccination.
discriminates: see section 4.
employment includes:
(a) part‑time and temporary employment; and
(b) work under a contract for services.
frontline health or care work means:
(a) practising a health profession (within the meaning of the National Law), in close proximity to persons who are likely to be particularly vulnerable to the health effects of a COVID‑19 infection; or
(b) providing care or treatment to patients of a hospital, in close proximity to those patients; or
(c) providing care to persons who are aged care consumers (within the meaning of the Aged Care Quality and Safety Commission Act 2018), in close proximity to those persons; or
(d) providing care to persons with disabilities, in close proximity to those persons.
medical practitioner means a person who is registered under the National Law in the medical profession.
National Law means:
(a) for a State or Territory (other than Western Australia)—the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), as it applies (with or without modification) as a law of the State or Territory; or
(b) for Western Australia—the Health Practitioner Regulation National Law (WA) Act 2010 (WA), so far as that Act corresponds to the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).
premises includes:
(a) stadiums and other sporting facilities; and
(b) theatres, concert halls and other performance venues; and
(c) places of business.
provision of goods or services includes:
(a) the provision of accommodation, including:
(i) residential accommodation (but not including the provision of residential accommodation in premises if the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises); and
(ii) business accommodation; and
(b) the provision of education at a school, university or other institution; and
(c) the provision of goods or services whether for reward or otherwise.
services includes the following:
(a) services relating to banking, insurance and the provision of grants, loans, credit or finance;
(b) services relating to entertainment, recreation or refreshment;
(c) services relating to transport or travel;
(d) services of the kind provided by the members of any profession or trade;
(e) services of the kind provided by a government, a government authority or a local government body.
voluntary body means:
(a) an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit; or
(b) without limiting paragraph (a)—a volunteer firefighting service, volunteer emergency service or similar organisation.
4 Meaning of discriminates
Discrimination by requiring proof of COVID‑19 vaccination
(1) Without limiting when a person discriminates against another person on the basis of whether the other person has received a COVID‑19 vaccination, the first person discriminates against the other person on that basis if the first person:
(a) requests or requires the other person to produce proof of having received a COVID‑19 vaccination; or
(b) discriminates against the other person on the basis of whether the other person has proof of having received a COVID‑19 vaccination.
Discrimination by unfavourable treatment
(2) Without limiting when a person discriminates against another person on the basis of whether the other person has received a COVID‑19 vaccination, a person (the first person) discriminates against another person (the second person) if the first person treats the second person less favourably than, in circumstances that are the same or are not materially different, the first person treats or would treat a person who has received a COVID‑19 vaccination.
Discrimination on multiple bases
(3) A reference in this Act to discriminating against a person on the basis of whether the person has received a COVID‑19 vaccination includes a reference to discriminating against the person on 2 or more bases that include that basis, whether or not that basis is the dominant or substantial reason for the doing of the act.
5 Binding the Crown
This Act binds the Crown in each of its capacities.
6 Extension to external Territories
This Act extends to every external Territory.
Part 2—Prohibition on discrimination on basis of vaccination
7 Commonwealth must not discriminate on basis of COVID‑19 vaccination
(1) The Commonwealth must not discriminate against a person on the basis of whether the person has received a COVID‑19 vaccination.
Note: Discrimination by the Commonwealth will include discrimination in relation to application of, or funding provided under, any Commonwealth program.
(2) Subsection (1) does not apply to discrimination against an officer or employee (including a prospective officer or employee) of the Commonwealth if:
(a) the duties of the officer or employee involve frontline health or care work; and
(b) the officer or employee has not produced to the Commonwealth, in relation to the office or employment, proof that the officer or employee has a current COVID‑19 vaccination exemption.
Commonwealth authorities
(3) A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth.
8 States must not discriminate on basis of COVID‑19 vaccination
(1) A State must not discriminate against a person on the basis of whether the person has received a COVID‑19 vaccination.
(2) Subsection (1) does not apply to discrimination against an officer or employee (including a prospective officer or employee) of the State concerned.
State authorities
(3) A reference in this section to a State includes a reference to an authority of a State.
9 Territories must not discriminate on basis of COVID‑19 vaccination
(1) A Territory must not discriminate against a person on the basis of whether the person has received a COVID‑19 vaccination.
(2) Subsection (1) does not apply to discrimination against an officer or employee (including a prospective officer or employee) of the Territory if:
(a) the duties of the officer or employee involve frontline health or care work; and
(b) the officer or employee has not produced to the Territory, in relation to the office or employment, proof that the officer or employee has a current COVID‑19 vaccination exemption.
Territory authorities
(3) A reference in this section to a Territory includes a reference to an authority of a Territory.
10 Other entities
Employment
(1) A person (the first person) must not discriminate against another person (the second person), in relation to the first person employing the second person, on the basis of whether the second person has received a COVID‑19 vaccination.
Penalty: 100 penalty units.
(2) Subsection (1) does not apply if:
(a) the particular employment involves frontline health or care work; and
(b) the second person has not produced to the first person proof that the second person has a current COVID‑19 vaccination exemption.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
Businesses
(3) A business must not discriminate against a person, in relation to any of the following, on the basis of whether the person has received a COVID‑19 vaccination:
(a) providing goods or services to the person;
(b) giving the person access to business premises.
Penalty: 1,000 penalty units.
Voluntary bodies
(4) A voluntary body must not discriminate against a person, in relation to any of the following, on the basis of whether the other person has received a COVID‑19 vaccination:
(a) the person’s membership of the voluntary body;
(b) permitting the person to participate in the activities of the voluntary body;
(c) providing goods or services to the person;
(d) giving the person access to premises of the voluntary body.
Penalty: 100 penalty units.
11 Vaccination of children under 18
(1) This section applies where a COVID‑19 vaccination is to be administered to a child who is under 18.
(2) A COVID‑19 vaccination must not be administered to a child without the consent of:
(a) a parent of the child; or
(b) a guardian of the child; or
(c) a person who, under a parenting order, has responsibility for the child’s long‑term or day‑to‑day care, welfare and development.
Penalty: 1,000 penalty units.
12 This Part overrides other laws
This Part has effect despite any other law of the Commonwealth, a State or a Territory (whether passed or made before or after the commencement of this section) that requires or permits discrimination on the basis of whether a person has received a COVID‑19 vaccination.
Part 3—Miscellaneous
13 Constitutional basis of this Act
(1) This Act gives effect to Australia’s international obligations, particularly under:
(a) the International Covenant on Economic, Social and Cultural Rights, particularly article 12; and
(b) the International Covenant on Civil and Political Rights, particularly articles 7, 17 and 26.
(2) In this Act:
International Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights, done at New York on 16 December 1966, as in force for Australia from time to time.
Note: The Covenant is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
International Covenant on Economic, Social and Cultural Rights means the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as in force for Australia from time to time.
Note: The Covenant is in Australian Treaty Series 1976 No. 5 ([1976] ATS 5) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
14 Additional operation of sections 8 and 10
(1) In addition to section 12, sections 8 and 10 also have effect as provided by this section.
Trade and commerce
(2) Sections 8 and 10 also have the effect they would have if a reference to discrimination were expressly confined to discrimination undertaken in the course of:
(a) trade or commerce between Australia and places outside Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories.
Communications
(3) Sections 8 and 10 also have the effect they would have if a reference to discrimination were expressly confined to discrimination undertaken using a service to which paragraph 51(v) of the Constitution applies.
Insurance
(4) Sections 8 and 10 also have the effect they would have if a reference to discrimination were expressly confined to discrimination undertaken in the course of insurance to which paragraph 51(xiv) of the Constitution applies.
Corporations
(5) Sections 8 and 10 also have the effect they would have if a reference to discrimination were expressly confined to discrimination undertaken by a corporation to which paragraph 51(xx) of the Constitution applies.
Territories
(6) Sections 8 and 10 also have the effect they would have if a reference to discrimination were expressly confined to discrimination undertaken in a Territory.
15 Review of operation of the Act
(1) The Attorney‑General must cause a review to be conducted of the operation of this Act.
(2) Without limiting the matters that may be considered when conducting the review, the review must:
(a) consider whether the operation of this Act is appropriate and effective; and
(b) identify any unintended consequences of this Act; and
(c) consider whether amendments to this Act are necessary to:
(i) improve the operation of this Act as contemplated under paragraph (a); or
(ii) rectify unintended consequences identified under paragraph (b).
(3) The review must start as soon as practicable after the end of 12 months after this Act commences.
(4) The person who conducts the review must give the Attorney‑General a written report of the review within 6 months of the commencement of the review.
(5) The Attorney‑General must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Attorney‑General receives the report.