Action – Read & Share: Are Local Councils normalising discrimination?
Have Local Councils considered the damaging effects and legality of implementing Chief Health Officer directives?
Background
- The Open Premises Directions (No. 5) (Directions) issued by the Chief Health Officer on 18 November 2021 implement the State Government’s “vaccine economy” objective by restricting access to certain premises to people who have not received a Covid-19 vaccine. These Directions extend to:
- community premises such as community halls, youth centres and public libraries; and
- indoor and outdoor physical recreation premises including fitness centres, sports courts and swimming pools (except for unstaffed outdoor physical recreation premises).
This means that access to these premises are subject to the exception discussed below relating to “community sport”, now off limits to all unvaccinated people over the age of 12 years and 2 months.
- Although children under 12 are currently exempt from the requirement to be vaccinated to access community facilities under the Directions, unvaccinated parents are rightfully concerned that their children are now effectively excluded from these facilities because they are not allowed to accompany them.
- The implementation of these directives by Local Governments to exclude unvaccinated children over 12 and adults is concerning enough, for the reasons we will discuss in this Bulletin. But the notion that children can also be excluded from important learning, community and recreational facilities due to the vaccination status of their parents is even more worrying.
- Children have already missed out on so many opportunities to develop physical activity skills over the last 2 years of repeated lockdowns and restrictions. 2 years is a long time in a child’s development and depriving them of opportunities to develop important physical skills is not just a matter of their health and wellbeing but a safety issue as well. According to The Age Newspaper, Emergency Management Victoria’s draft Water Safety Strategy has revealed an alarming spike in drowning statistics in the past 12 months which demands a response. The Age articles states that Victoria saw a 20-year high in fatal drownings for the 2020-21 period with 61 deaths recorded. Additionally, the number of primary school students receiving the Victorian Water Safety Certificate dropped from 26,717 in 2019 to only 3,501 in 2020 (Carey, 2021).
- Preventing children from accessing community facilities may also disproportionately affect children from low-income families who may not be able to afford to buy books, computers, Wi-Fi access or sporting equipment for their children and therefore rely on community provided facilities such as libraries and recreation centres.
The Community Sport Exception
- Although the Directions prohibit unvaccinated persons over the age of 12 from accessing community recreational facilities, this prohibition oddly does not apply where those facilities are being used for the purposes of conducting a “community sport activity”. This means that an unvaccinated child or adult can access indoor and outdoor community recreational facilities when participating in or spectating at a membership-based team sport, but not otherwise.
- For parents this means that although they cannot enter an indoor or outdoor public swimming pool to take their child to a swimming lesson if they are not vaccinated, they could enter those same premises as a spectator at a swimming club training day or competition.
Can Local Councils Discriminate?
- Local Governments are obligated under the Local Government Act 2020 (Vic) to provide services and facilities for the benefit and wellbeing of their municipal communities. Section 106 of that Act requires Councils to abide by certain service performance principles. These principles include, amongst other things, that:
- services should be provided in an equitable manner, responsive to the diverse needs of the community; and
- services should be accessible to members of the community.
- Local Governments are clearly, therefore, in a very different position to the private businesses being required to implement the Directions, as they are under a statutory obligation to provide accessible services in an equitable manner. And unlike private businesses, who will themselves lose income from the patronage they exclude, Local Councils will continue to collect rates from the residents within their municipality, both vaccinated and unvaccinated. The funding Local Councils receive from rates contribute more than half of their total revenue (Municipal Association of Victoria, 2018).
- Not only is excluding unvaccinated residents of its municipality likely a breach of a Local Council’s statutory obligations, it is also arguably discriminatory. Imagine that a Local Council decided to implement a policy excluding people with certain physical attributes, such as being overweight or having tattoos, for example, from using community facilities. This would be a clear contravention of the Equal Opportunity Act 2010 (Vic), which prohibits the unfavourable treatment of a person due to certain attributes, including “physical features”. Section 4 of the Act defines “physical features” to mean a person’s height, weight, size, or other bodily characteristics. Surely the presence or absence of vaccine induced antibodies could be considered a “bodily characteristic”, therefore making the exclusion or unfavourable treatment of people based upon that characteristic discrimination?
- Excluding unvaccinated parents from accompanying their children to community facilities is also arguably indirect discrimination against those children based on their age (section 9 of the Act). Age is a protected attribute under the Act and if a child is too young to attend a community facility by themselves and cannot attend with their parent due to a requirement that their parent be vaccinated, then this would have the effect of disadvantaging that child because of their age.
- Of course, Local Councils are likely to counter these assertions by saying that the Local Government Act obliges them to consider the needs of all members of the community, and that the Equal Opportunity Act permits all discrimination where this is necessary to protect public health or safety (s 86) and indirect discrimination where this is reasonable (section 9). However, if the exclusion of unvaccinated people from community facilities is to be justified as reasonable and necessary to protect the health and safety of the community, then how can the exception for community sports be explained? Surely the risk profile for transmission of the virus in a recreational facility is the same, regardless of whether a club organised sporting event is taking place or not? Arguably the risk profile could be higher for club organised events, due to participation numbers for team sports, than for individual recreational use.
Issues
- Do the Directions of an unelected health official allow Local Councils to exclude unvaccinated people from community facilities even though this contradicts Council’s obligations under other legislation and their own governance and service principles?
- Are Councils entitled to discriminate on the basis of the bodily characteristic of the presence or absence of vaccine induced Covid-19 antibodies? What about if people have naturally occurring antibodies?
- Are Councils entitled to discriminate against children too young to use community facilities on their own by preventing their parents from accessing the facilities with them? Have Council’s considered the health and safety implications of excluding children, including the health aspects of exclusion from physical activities, safety aspects of exclusion from water education, and potential disadvantages to children from low socio-economic backgrounds? Is it a good enough excuse for Councils to say they are just following State Government orders?
- If unvaccinated community members are to be excluded from community facilities, should they be entitled to a Council rates rebate?
- When booster requirements are introduced, will double vaccinated community members also be excluded?
Skip Australia Local Councils Initiative
As Local Councils begin to enforce Chief Health Officer directives relating to community sport and activities, they also present members of the public a legitimate avenue to challenge these directives at the community level.
Skip Australia requests that along with sending this bulletin to elected representatives, readers also participate in our Accountable Councils Initiative. To take action go to “Local Councils Initiative”.
We also request that you forward this Bulletin to as many people as possible so that they can do the same. We understand that these topics are highly emotive, but we request that you remain civil in all correspondence.
References
Carey, A. (2021, October 11). Almost six million swimming lessons missed in pandemic. Retrieved from The Age: https://www.theage.com.au/national/victoria/almost-six-million-swimming-lessons-missed-in-pandemic-20211007-p58y3r.html
Municipal Association of Victoria. (2018). Vic Councils Rating Principles Explained. Retrieved from Vic Councils Creating better communities: https://www.viccouncils.asn.au/__data/assets/pdf_file//Principles-of-Rates.pdf
Current as at 20 November 2021
