Treading the Line Between Consent and Coercion:The Legal Treatment of the Right to Bodily Integrity in the Context of COVID-19 Vaccine Mandates in Australia

Superior courts were required to consider what it means to consent to vaccination in the face of mandatory vaccination requirements introduced by Australian states and territories during the COVID-19 pandemic. The concern commonly raised by applicants in these cases was that such policies may be so coercive — given the attendant pressure of making a “choice” that may result in the loss of one’s job, and therefore livelihood — as to undermine consent, or at least limit a person’s right to bodily integrity. In determining such cases, superior courts provided different reasoning as to what it means to consent to vaccination across jurisdictions and legal frameworks in Australia — but is this difference in reasoning justified? Should we not have a common understanding of, or at least a consistent frame of reference for, what it means to consent to vaccination in the face of coercive policies like mandates? This article argues for internal logic and consistency in how the right to bodily integrity in its various legal forms is understood and treated by the law, particularly in the context of mandates and any future public health emergency. This is best achieved in Australia through (1) the introduction of legislation protecting human rights (either at a federal or state and territory level), that provides: (a) a right to refuse medical treatment, rather than a requirement that a person not to be subject to medical treatment without full, free and informed consent; and (b) a direct cause of action for an alleged breach of human rights; and (2) amendments to public health legislation in each state and territory to provide a mandate-specific decision-making framework.