In the US, some National Basketball Association (NBA) players have recently emphasized their right to privacy over their COVID vaccination status. The discussion of vaccine passports in Australia has also highlighted the issue.
We value the idea that our medical information is private and subject to special protection and that our doctor cannot freely share it with others. Yet suddenly, it seems that we may be asked to hand over information about our vaccination status in many different situations.
It may happen that we continue to do our job, go to shops and restaurants or travel. This can make us uncomfortable. But can we refuse to disclose our vaccination status to others on the basis of confidentiality? What does the law in Australia say about who can ask for it, and why, and what can they do with it?
Read more: ‘Are you double dosed?’ How to ask friends and family if they have been vaccinated, and how to handle it if they say no?
which we have already disclosed
Vaccination and medical exemptions are recorded in the Australian Immunization Register run by the federal government.
The information from the register is used to generate vaccination history details and COVID digital certificates. This information can then flow through check-in apps so that we can prove our vaccination status when asked.
It makes sense to think that our health information should be secret – kept between us and our doctor. But legislation – primarily the Australian Privacy Act and health records law in many states – allows it to be collected by others if certain conditions are met. And it’s not just the doctor’s clinic and other health services where this information is allowed to move around.
For example, the no jab, no play law in Victoria, which is designed to increase vaccination rates among young children, means that a child must be provided with proof of their immunization status before reaching kindergarten.
Adults must disclose information about medical conditions and disabilities to organizations such as VicRoads in order to obtain a driver’s license. We may also tell our employer about the health condition so that “appropriate adjustments” can be made to help us continue working.
So there are many examples of doctors disclosing health information beyond the walls of the clinic, and all of them are provided for by law.
Read more: Health workers are hesitant about the COVID vaccine. Here’s How We Can Support Them Safely
Our vaccination status is classified as “Health Information” under Australia’s privacy laws.
Health information falls into a large category of “sensitive information” – information that requires the most extreme caution. The Australian Privacy Principles (APP) in our Privacy Act sets out the rules for how this information may be collected, used and disclosed.
The APP states that a business or employer (the APP entity) may collect sensitive information such as our vaccination status only under certain conditions. An example is if the information is reasonably necessary for the activities of the business and we give our consent.
For this consent to be valid it must be freely given. People cannot be bullied or bullied into disclosing their vaccination status.
Employers can mandate vaccination — as some businesses are doing — if it is “lawful and appropriate.” In this situation, an employee who refuses to disclose their vaccination status would likely be in violation of a valid and reasonable directive by their employer. Any consequences will be covered by the terms of their employment contract.
Read more: 9 psychological barriers that lead to hesitation and denial of a COVID-19 vaccine
Public Health and Outcomes
The collection of our vaccination status may also be permitted by other Australian laws, such as Public Health Orders and Directives. The mandatory collection of vaccination status in the aged-care sector is a good example.
Where proof of vaccination becomes a requirement to enter a campus or work in a particular job, we may choose to keep that information private, but not without consequence. Our privacy is not completely protected – the trade-off could be that we are denied entry or denied employment.
Information about a person’s vaccination status may only be collected by “lawful and fair” means, such as asking them directly, but not collecting it fraudulently or without them knowing.
Separate rules say what can then be done with the information. Generally, it cannot be used for any other purpose, unless it is collected or shared with other people or organizations, unless an exception applies.
Although private sector employers’ handling of employee records are exempt from Australian privacy principles, they must store this information securely and ensure that it is not used and unnecessarily disclosed. is not done.
Read more: If privacy for My health record data is on the rise, it should apply to all medical records
But isn’t privacy a human right?
Privacy is recognized as a fundamental human right in the Universal Declaration of Human Rights and other international human rights documents.
Australia is a signatory to the International Covenant on Civil and Political Rights, which states: “No one shall be subjected to arbitrary or unlawful interference with his privacy” (Article 17.1).
But this right is not absolute and can be limited by national measures “in times of public emergency” (Article 4.1). On the other hand, any requirement to disclose vaccination status is shaped by human rights principles so that the requirement is fair, proportionate and necessary.
It should also take into account the risk of discrimination. Our Human Rights Commission has outlined how some people may be at particular risk of discrimination related to sharing their vaccine status. They may have difficulty using technology or may not have access to it. Therefore, even people who have been vaccinated may find it difficult to provide proof.
The World Health Organization says people who do not disclose their vaccination status should not be denied participation in public life.
Although health information is protected under Australian law, the law also allows this information to be collected, used and shared when appropriately required.
Privacy is not absolute. The COVID emergency limits some privacy protections in favor of public health goals. We need to be mindful of trade-offs and potential discrimination – especially when access to jobs and services depends on disclosure of vaccine status.