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Human rights considerations for vaccine passports

Rights Rights and Freedoms
Father and small child at airport, looking out the window at waiting planes. Both are wearing covid masks.

Currently there are no ​federal public health orders or laws that make COVID-19 vaccine passports mandatory in Australia.

The Commission understands the Federal Government is considering the matter. We will update the information on this page if the government proposes to introduce legislation to mandate vaccine passports.

 

This page provides general information on the human rights considerations for vaccine passports and gives guidance on the most frequently asked questions we are getting on this topic.

The information reflects current anti-discrimination legislation, relevant court decisions, and guidance issued by government agencies.

This information is intended as a guide only. Individuals, businesses, and service providers are encouraged to obtain legal advice about their own specific circumstances.

What are 'vaccine passports'?

Vaccine passports show verified proof of someone’s COVID-19 vaccination status or COVID-19 status (which can be a ‘passport’, or, in some cases, an alternative verifiable form of proof) that is then used as a condition of entry or service.

They are currently being trialled in locations overseas but are yet to be introduced to Australia.  

Examples of overseas approaches

The use of vaccine passports overseas varies widely. In some countries, vaccine passports are being trialled only to allow overseas travel, in other jurisdictions they have wider use in the community as a condition of entry to buildings, or to access goods and services.

Vaccine passports may be imposed by governments, but in some countries, they have been proposed by businesses or other institutions. For example, several airlines are reportedly already trialling or using vaccine passports, including Qantas, Qatar Airways, Air New Zealand, Emirates and Etihad Airways.

  • The European Union

    The European Union (EU) has introduced a ‘Digital COVID Certificate’ designed to facilitate free movement across the EU. It is digital proof that a person has either been vaccinated against COVID-19, received a negative test result, or recovered from COVID-19. It is available in all EU member states to all EU-citizens and residents. It can be used in a smartphone app or in paper form.

    Information published by the European Commission during the ‘phase-in’ period in early August 2021 says that individuals who have the certificate should be exempted from travel related testing or quarantine when traveling in the EU. The certificate works through a QR code with a key unique to where the individual’s vaccine information is stored (e.g., a health authority).

    The European Commission has built a gateway through which all certificate signatures can be verified across the EU. The user’s personal data remains on the certificate and does not pass through the gateway to protect a person’s privacy. It is not stored or retained where it is verified.

    The European Commission has told member states that they ‘should refrain from imposing additional travel restrictions on the holders of [the certificate] unless they are necessary and proportionate to safeguard public health’.

  • United Kingdom

    The United Kingdom has developed the ‘NHS Covid Pass’. As at early August 2021, it can be used as proof of COVID-19 status when travelling abroad and has also been trialled at a series of large events in England.

    The government has indicated the NHS COVID Pass will not be made mandatory for businesses, but it has nonetheless encouraged the use of the pass in facilities or events where people are likely to be near a large number of people for a sustained period of time, including nightclubs, music venues, music festivals and sporting events.

    The NHS COVID Pass covers people who have been vaccinated, have proof of antibodies or have had a recent negative COVID-19 test. It is used in an app but can also be printed and used in paper form (with an expiry date).

    It shows an individual’s vaccination/COVID-19 status in the form of a barcode, which doesn’t display users’ other personal health data.

    The NHS app which hosts the NHS Covid pass also contains information about a user’s personal health records. This has raised privacy concerns about future expansion of functionality, as the privacy policy of the app indicates the potential for data use and sharing for a broad range of purposes.

  • New York State

    In the United States vaccine passports are not federally mandated and individual states are taking their own approaches. In June 2021, New York State's mandatory COVID-19 restrictions were lifted as 70% of adult New Yorkers had been vaccinated.

    As at early August 2021, proof of vaccination or a negative COVID status is required to enter large-scale indoor events of more than 5,000 persons. Individual businesses may choose to require proof of vaccination or take other precautions. Proof can be used as an alternative to social distancing and masks indoors.

    To facilitate this, New York has launched the Excelsior Pass, which is an app developed by IBM that provides digital (or printed) proof of vaccination or COVID-19 status. The pass uses blockchain technology so that neither IBM nor the business can access the user’s health information.

    Along with the pass, individuals are required to show a photo ID that includes their name and birth date to verify that the pass belongs them.

    Individuals are not required to exclusively use the Excelsior Pass in New York – official vaccination cards and paper proof are also being accepted where vaccine passports are in place.

    Other private companies, including Walmart, are also piloting their own vaccination pass schemes.

What are the human rights principles for vaccine passports?

The Australian Government has not introduced vaccine passports so the Commission is unable to provide any specific assessment. However, the guiding human rights principles for considering measures taken to advance public health are:

  • They must be reasonable, necessary, and proportionate.
  • They must take into account the potential for discrimination.

Vaccine passports may have significant implications for privacy and autonomy, freedom of movement and association, equity and discrimination, particularly when it comes to accessing everyday goods and services.

Vaccines are effective in saving lives and the right to life is a human right so any vaccine passport should be designed in a way that doesn’t discourage people from being vaccinated.

Vaccine passports are more likely to be consistent with human rights when they are used as a tool to ease existing restrictions and improve public health outcomes.

Rather than becoming a further requirement on top of existing restrictions, vaccine passports should generally operate in place of them.

  • Is the Commission concerned that vaccine passports could result in discrimination?

    The Australian Government has not introduced vaccine passports so the Commission is unable to provide any specific assessment. However, we can provide some general guidance about potential discrimination issues that will need to be considered.

    General guidance

    Until everyone in Australia has access to a vaccine, vaccine passport models should include exemptions for those that do not have access to, or cannot receive a vaccination. 

    If and when a vaccine passport is introduced, its use would 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 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 would be at risk of discrimination through an inflexible approach to the use of vaccine passports include:

    • Individuals with valid medical reasons for not getting vaccinated, including people with disabilities. 
    • Depending on the timing of a vaccine passport rollout, young people who are last in line to receive the vaccine. 
    • 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).

    People with disability and young people are protected groups under federal discrimination law. They may be subject to indirect discrimination if they required to comply with a general requirement or condition (such as use of a vaccine passport), 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 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 proposal to ensure this information is not used for discriminatory purposes, including in the employment context.

    Those responsible for checking vaccine passports and determining whether exemptions apply would need to have appropriate protections in place to ensure compliance with privacy and discrimination laws associated with the collection of sensitive personal information about exemptions.

  • Is the Commission concerned that vaccine passports could result in inequity and human rights concerns?

    The Australian Government has not introduced vaccine passports so the Commission is unable to provide any specific assessment. However, we can provide some general guidance about potential equity issues and human rights concerns that will need to be considered.

    General guidance

    Until everyone in Australia has access to a vaccine, vaccine passport models should include exemptions for those that do not have access to, or cannot receive a vaccination. 

    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 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 as this may have unintended consequences.

    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. 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.
  • What would the Commission consider in assessing a vaccine passport proposal?

    The Australian Government has not introduced vaccine passports so the Commission is unable to provide any specific assessment. However, we can provide some general guidance about the matters we would consider in an assessment of a vaccine passport proposal.

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

    1. Proposed usage of the passport:

    The justification for vaccine passports will vary depending 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 vaccine passports in uses such as:

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

    The case for vaccine passports in other areas of public life, including by small entertainment venues, pubs and restaurants, may be less reasonable and should be assessed on a case-by-case basis.

    There are strong reasons against using vaccine passports as a condition for access to essential services and activities, such as social services, healthcare, employment, or education, as this would significantly affect the enjoyment of key socio-economic rights.

    2. Alternatives to vaccination: 

    If the purpose of the vaccine passport is to minimise the risk to others of acquiring COVID-19, then it would be reasonable to allow a person to demonstrate this in different ways. Demonstrating that the person has been vaccinated is one way, but it may not be reasonable to refuse a person entry or service based on a vaccine passport that is limited to vaccination status alone. As noted in the international comparisons described above, alternative methods of demonstrating health status may include proof of a negative COVID-19 test or an antibody test. These may be reasonable alternatives even when vaccines become more widely available.

    3. Location and time limits:

    Vaccine passports should be limited in accordance with location (high-risk areas), subject to regular review, and time limited in accordance with the emergency posed by COVID-19.

    4. Consistency:

    If Australian states and territories, and private businesses, develop their own approaches to vaccine passports, this could result in variable standards across Australia. Further, if there are different digital systems with different privacy protections there may be difficulties in interoperability. 

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

  • Does the Commission have privacy concerns about digital vaccine passports?

    The Australian Government has not introduced vaccine passports so the Commission is unable to provide any specific assessment. The Office of the Australian Information Commissioner (OAIC) would lead on any privacy assessments of vaccine passports. The OAIC has provided useful guidance on this issue (which is also general in nature as the Australian Government has not introduced vaccine passports) and you can read this on their website.

    However, we can provide some general guidance about human rights considerations for digital vaccine passports, such as:

    • Vaccine passports require individuals to provide sensitive health information demonstrating vaccination or COVID-19 test status, as a condition of entry and/or service. This engages the right to private life because it requires people to reveal personal information and makes their ability to take part in activities conditional on revealing this information.
    • Vaccine passports 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 would need 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.