Vaccine pass and discrimination

The Anti-Discrimination Commission operates within the framework of the Anti-Discrimination Act 1992 (ADA). The ADA sets out what discrimination is against the law in the NT; it does not cover all discrimination people might experience. It is also not a broad human rights law.

Under Northern Territory law, unlawful discrimination requires:

1. You have an attribute under the ADA (e.g. race, age). A person’s vaccination status is not a protected attribute under the ADA.
2. The discrimination alleged must be based on the protected attribute under the ADA. For example, a business refuses to provide services to people unvaccinated. You are unvaccinated. The reason the business refuses you service is because of your vaccine status. The reason you did not get the vaccine may link to an attribute under the ADA, but it is not the reason the business does not serve you. The courts have found it is not enough that you have an attribute, it must be a reason for the treatment you experienced.
3. The discriminatory treatment must occur in an area covered by the ADA e.g. work, while receiving a service.
4. An exemption under the ADA permits the discrimination. There are number of exemptions relevant to the current pandemic permitting discrimination that may otherwise be unlawful including a person complying with legislation.

The Vaccine Pass

A place, business, activity, service or premises covered by Direction COVID-19 (No. 8) 2022 is authorised under section 53 ADA to exclude unvaccinated people (not including those exempted from vaccination or unable to be double vaccinated due to age).

If there is treatment associated with the refusal that links to your attribute such as comments being made or if refusal is being applied selectively to different groups of people, the ADC may have jurisdiction to consider some of these issues.

A place, business, activity, service or premises not covered by Direction COVID-19 (No. 8) 2022, may still be able to restrict customers based on vaccination status without breaching the ADA. However the ADC would need to assess such allegations case by case, considering the factors set out above, including that vaccination status is not a protected attribute.