Human rights considerations for vaccine passports and certificates

General guidance

Mandatory vaccination policies, and the accompanying use of vaccine passports and vaccine certificates, should include exemptions for those that do not have access to or cannot receive a vaccination. 

Their uses need to be flexible enough to ensure that people who are unable to be vaccinated do not face discrimination, particularly in accessing essential goods and services.

The Commission has provided separate guidance about COVID-19 vaccination policies in the context of employment and the provision of goods and services. That guidance notes that, if not required by law, individuals, businesses, and service providers should carefully consider the position of vulnerable groups in the community before imposing any blanket COVID-19 vaccination policies or conditions. 

These may have unintended consequences, particularly for some people with disability, and may also breach federal discrimination law.

Groups that may be disadvantaged by an inflexible approach to the use of mandatory vaccination policies, vaccine passports and vaccine certificates include:

• Individuals with valid medical reasons for not getting vaccinated, including people with disabilities. 
• Marginalised groups that are traditionally harder to reach for government agencies, for example migrant groups.
• Those with difficulties using technology (including some older people and some people with disabilities), if vaccine passports or vaccine certificates are only available digitally.

People with disability are a protected group under federal discrimination law. They may be subject to indirect discrimination if they are required to comply with a general requirement or condition (such as use of a vaccine passport or certificate), and they are unable to do so because of a protected attribute. The relevant considerations are discussed in more detail in the Commission’s guidance referred to above.

Vaccine passports and certificates may also lead to the revelation of private health information about an individual beyond their vaccination status if they are subject to an exemption (e.g. by revealing that they have health issues or a disability).

Clear guidance should accompany any vaccine passport or certificate use to ensure this information is not used for discriminatory purposes, including in the employment context.

Those responsible for enforcing mandatory vaccination polices, including through vaccine passports and certificates, and determining whether exemptions apply, should have appropriate protections in place to ensure compliance with privacy and discrimination laws associated with the collection of sensitive personal information about exemptions.

General guidance

In addition to the groups who may face a risk of discrimination under federal discrimination law (discussed above in the section ‘Is the Commission concerned that vaccine passports could result in discrimination?’) there are other, potentially overlapping, groups that may face inequity or human rights breaches from vaccine passports and certificates. These include:

• Digitally excluded groups, including those without access to smart phones or printers, and those with difficulties using technology (including some older people and some people with disabilities).
• People who have been vaccinated but object to their health information being shared widely with government and third parties. 
• Members of marginalised groups who may be vaccinated but have difficulties in showing proof of that. For example, homeless people may not carry proof of vaccination or other forms of identification with them.

In addition to the human rights principles explored above, the Commission would consider the following:

1. Proposed usage of the mandatory vaccination policy, passport or certificate:

The justification for mandatory vaccination policies, vaccine passports or certificates depends on the sector and associated COVID-19 risks, the kinds of activities and work being conducted in specific contexts, and the purposes for which they are used.

There may be stronger arguments for mandatory vaccination policies, vaccine passports or certificates in uses such as:

• In the international travel sector, where they are designed to enable the relaxation of strict restrictions on travellers.
• In higher risk sectors, where it is required for the protection of vulnerable community members, such as the aged care sector.
• To enable public events that would not otherwise be able to take place.

There are strong reasons against using mandatory vaccination policies, and accompanying vaccine passports or certificates , as a condition for access to essential goods and services, as this would significantly affect the enjoyment of key socio-economic rights.

2. Alternatives to vaccination: 

If the purpose of mandatory vaccination policies, and the accompanying vaccine passport and vaccine certificate programs, is to lower the risk of transmission of COVID-19 in the community, then it may be reasonable to look beyond vaccination and allow a person to demonstrate their lower risk in different ways. For example, depending on the circumstances, it may be appropriate for a person to rely upon rapid antigen test results, proof of recent COVID-19 infection or COVID-19 antibody test results. 

3. Review and time limits:

Mandatory vaccination policies, vaccine passports and certificates should be subject to regular review, and time limited in accordance with the emergency posed by COVID-19.

4. Consistency:

Australian states and territories have developed their own approaches to mandatory vaccination policies, vaccine passports and certificates, and this has resulted in variable standards across Australia. Further, as there are different digital systems with different privacy protections there may be difficulties in consistency between jurisdictions. 

This may cause confusion and result in a lack of clarity around expectations and appropriate uses.

The Office of the Australian Information Commissioner (OAIC) is responsible for assessing privacy concerns relating to vaccine passports and certificates. The OAIC has provided useful guidance on this issue that you can read on its website.

The Australian Human Rights Commission can provide some general guidance about human rights considerations for digital vaccine passports and certificates in relation to privacy, such as the following:

• Where the use of vaccine passports and vaccine certificates is mandated, this requires individuals to provide sensitive health information demonstrating vaccination or COVID-19 test status, often as a condition of entry and/or service. This engages the right to privacy because it requires people to reveal personal information and makes their ability to take part in activities conditional on revealing this information.
• Vaccine passports and certificates operate as a de facto digital ID card, because a person’s identity must be verified against the proof of vaccination/COVID-status. For this to be acceptable, any digital/smartphone app needs to be reliable and effective and have stringent privacy safeguards in place. This is essential to ensuring public trust in such measures.
• The least intrusive approach should always be taken to verifying identity and data collected should only be used for clearly defined, limited purposes, and only when it is necessary to do so. Safeguards should include:
  • data security measures
  • transparency about how the systems operate
  • guarantees that information will be used for its intended purpose and retained only as long as necessary
  • genuine consent processes and the ability to opt out
  • accountability measures for breaches.
• In particular, it is essential that ‘function creep’ is avoided and data is used only for the narrowly confined purpose of verifying COVID-status and vaccination status, and does not permit other uses such as location tracking.