Introduction

Across the globe, governments and corporations have struggled to overcome vaccine hesitancy in respect of COVID-19 vaccination.[1] Experts, including Australia’s Chief Medical Officer Paul Kelly, have proposed using incentives to entice Australians to receive the vaccine.[2] This is not a novel concept. New York’s Governor Andrew Cuomo starting a vaccine lottery, where individuals will be vaccinated on-site, and receive a free lottery ticket to potentially win $5 million USD.[3] In Thailand, vaccinated citizens can win a cow every week for 24 weeks, worth $318.78.[4] These initiatives can lead to significant potential public health policy benefits: in New York 339 per 100,000 people died from COVID-19.[5]

Paying people to be vaccinated, however, creates ethical concerns as vaccination disproportionately incentivises or targets poorer citizens that may have genuine concerns about the COVID-19 vaccine and potentially less ability to have their questions answered or respected.[6] There are also privacy and consumer law concerns with corporations exploiting vaccination incentives for short term or relative commercial gain. All of these concerns are discussed below against a critical backdrop of whether universal vaccination really represents a singular choice for countries and the world based on current WHO opinion.

Incentives to vaccinate in Australian aviation

In Australia, QANTAS announced that it will offer incentives to vaccinated individuals. These include:

  • 1,000 QANTAS Points
  • Flight vouchers
  • Credits
  • Entry to win one of 10 Mega Prizes Across Australia, including a year’s worth of unlimited travel for a family of four across the QANTAS and Jetstar network, and free accommodation with Accor Hotels.[7]

The author discloses that he is a QANTAS Frequent Flyer member, and anecdotally acknowledges that such prizes/incentives would likely be well received by other Australian flyers.  Such incentives are designed to promote vaccination uptake, in parallel with the “vested interest”[8] that QANTAS has in increasing vaccination uptake to assist in removing reasons for the borders to remain closed, and thus allowing it to recommence international operations. In a recent Today show interview, QANTAS CEO Alan Joyce explicitly connected a positive vaccination rollout with tourism facilitated by QANTAS flights, including to the United States and the United Kingdom, and conveyed his hopes that vaccination rates would allow for increased international travel.[9]

The view that vaccination uptake is linked to recommencing international air travel

The point of view that high or effectively complete vaccination rates will facilitate or permit the reduction of restrictions in international air travel is a worryingly commonplace presumption in the public narrative about air travel and COVID-19. It is not a concept that has (through usual diplomatic means) been agreed as between states in the international aviation community as the priority or sole method of reopening air travel.  That is, no Convention or similar instrument has been concluded to that effect although conceptually the idea has implicit presumed community support and underpinned cooperative efforts thus far to work towards reopening aviation.[10]

Travel internationally is uniformly based on concepts of safeguarding the efficiency and safety and security of transport – it is typically expressed in the annexes to the Chicago Convention 1944 and related sources – including the International Health Regulations 2005 that apply to international aviation – that this efficiency should not be tampered with lightly. Exceptions include public health emergencies like a pandemic but, even then, responses to restrict travel by inbound and outbound states should be proportionate to the risks and not otherwise burden travellers and trade.

The implicit presumption that vaccination is the way to “get back our freedom” is a concept being used by governments and those associated with them as if it is the only way forward of opening up travel, and without regard to the unusual circumstances of the COVID vaccines (ie, their still being in testing phases though deployed worldwide with great speed in various patent forms). The vaccines recommended or advised in the circumstances of restricting or limiting travel currently, and in the past, have never been those that are still in the early stages of development or trials and used under emergency or similar authorisations by public health agencies.[11]

Evidence that this presumption is informing policy debate on a multilateral scale is found in the recent Carbis Bay G7 Summit Communique (13 June 2021) which at paragraph 23 implies that mandatory vaccination (to travel) is a likely and foregone conclusion. It provides:

  1. We recognise the importance to the global economy of safely restarting international travel, by land, air and sea, and multilateral efforts to achieve this, including new public health guidance on international travel by the WHO, International Civil Aviation Organisation and International Maritime Organisation. We recognise that this will need a set of common standards for travel including interoperability and mutual recognition of digital applications, testing requirements, recognition of vaccination status including exemptions and comparable criteria for when responsive measures may be required. We welcome G7 Transport and Health Ministers’ ongoing discussions and ask them to deepen cooperation to support a safe reopening.[12]

Emphasis added

The G7 Communique represents one of the first instances of the term “vaccination status” being used in the context of high-level multilateral policy consideration of responsive measures to facilitate an international common standard for travel. Without preamble, the implied conclusion is that vaccination status will be a controlling or unifying feature of border control restrictions, at least for G7 nations.

Likewise, the IATA has been working on and trialling with 50 airlines, including QANTAS, a Travel Pass app solution for facilitating proof of identity and vaccination status/COVID test results. IATA’s guidance on the Travel Pass app provides:

  1. How will IATA Travel Pass help the reopening of international travel?

IATA Travel Pass will help give governments the confidence to reopen borders without quarantine. To reopen borders without quarantine, governments need to be confident that they are mitigating the risk of importing COVID-19. Testing, or proof of vaccine, is the solution. IATA Travel Pass will manage and verify the secure flow of testing or vaccination information between governments, airlines, laboratories and travelers which will guarantee the traveler’s COVID-19 status.[13]

Emphasis added

The influence of IATA, while not a regulatory agency or government, cannot be underestimated – it represents the interests of the majority of the world’s flag and private airlines, and undoubtedly is well placed to manage or mediate the reopening of borders with any policy or legal based (vaccine or otherwise) related requirement for travel, in the same way it assists in the secure flow of other traveller information in air transport of cargo and passengers. The reference to “without quarantine” repeatedly appeals to readers’ annoyance with the inconvenience and expense of quarantine requirements that presently hamper travel movements around the world, and offers a comparatively convenient solution (should the majority of states agree to pursue it, and the WHO endorse it). At present the WHO’s position is antithetical to any industry-backed and much desired commercially focused option to reopen borders. The WHO Interim position paper: considerations regarding proof of COVID-19 vaccination for international travellers states:

At the present time, it is WHO’s position that national authorities and conveyance operators should not introduce requirements of proof of COVID-19 vaccination for international travel as a condition for departure or entry, given that there are still critical unknowns regarding the efficacy of vaccination in reducing transmission.[14]

Thus, the statement that “proof of vaccine” is “the solution” is highly laden with an industry-focused suggested policy direction for governments. However, it must be recalled that it is not the only solution though it may well be part of one potentially better solution.

Proof of vaccination status is just one way forward, that is, mandatory vaccine; but other policy directions remain to be investigated and implemented perhaps in conjunction with vaccination or complementarily or in replacement of it – such as proof of negative test result and/or better understanding of how proof of immunity due to past infection (such as through demonstration of recent immunoassay blood test results for IgA and IgM for COVID). In a recent WHO scientific brief about natural immunity from COVID it was concluded:

Current evidence points to most individuals developing strong protective immune responses following natural infection with SARSCoV-2.

…available tests and current knowledge do not tell us about the duration of immunity and protection against reinfection, but recent evidence suggests that natural infection may provide similar protection against symptomatic disease as vaccination, at least for the available follow up period.[15]

Another related method is not to rely wholly on vaccination (which has to date only been made mandatory in any serious way for Yellow Fever and only to certain destinations). All encompassing restrictions on entry, like mandatory vaccination have never before been anticipated nor implemented. Another methodology is to give the rightful scientifically based prominence to new and emerging treatments for COVID as part of the risk analysis of reopening borders. Controversially, this element of pandemic response has not been highlighted in the public WHO documents about COVID responses, and has been criticised by legal associations and doctors worldwide for the deflection or minimisation of important COVID treatment response measures by the WHO, in the absence of a well established and proven vaccine program worldwide. 

 

More recently the Indian Bar Association served a Legal Notice on the Chief Scientist of the WHO for inter alia, allegedly running a disinformation campaign against the potential adaptation to COVID treatment of Ivermectin, in the following terms:

 

… by deliberate suppression of effectiveness of drug Ivermectin as prophylaxis and for treatment of COVID-19, despite the existence of large amounts of clinical data compiled and presented by esteemed, highly qualified, experienced medical doctors and scientists…

 

[i]ssuing statements in social media and mainstream media, thereby influencing the public against the use of Ivermectin and attacking the credibility of acclaimed bodies/institutes …[16]

 

The legal notice pointed to tweets made by the Chief Scientist of the WHO which downplayed the significance of scientific literature to date on the efficacy of ivermectin in the prophylaxis and treatment of COVID and which led to alteration of (up to that point effective) treatment regimes using ivermectin with success in the recent wave of COVID cases in India.

It is clear from the present position that if even the WHO, as a strong proponent of COVID vaccination, is not ready to recommend universal COVID vaccination to control movement across borders, then individual states should not necessarily agree to it either (yet) nor endorse private companies from incentivising vaccination as a means by which to stimulate such a domestic governmental policy response.

Australian arrangements permitting incentives to reward COVID vaccination

On 7 June 2021, the Therapeutic Goods Administration (‘TGA’) implemented new arrangements[17] so that businesses are able to offer practical rewards and incentives to encourage individuals to be vaccinated.  The organisations’ informational messages must be consistent with government messaging, and not allow references to a specific vaccine, statements that COVID-19 vaccines do not cause harm or do not have side effects, or give false and misleading statements. The TGA provides the example of frequent flyer points as an acceptable form of incentive.[18] The TGA arrangements commenced on 4 June 2021, after QANTAS had announced its incentive scheme, indicating some consultation may have occurred between the airline and TGA prior to public announcement of the scheme.

Clarifications on how the arrangements work were published on 16 June 2021 including an example[19]:

              Compliant examples

Business

Fly Away offers a 10% discount on flights to all ‘Fly Away Club’ members who have been fully vaccinated under the Government’s national COVID-19 vaccination program. The offer is open to any club member on the provision of validated vaccination status. The offer includes a statement that it is only valid for vaccinations undertaken on the advice of a health practitioner.[20]

There is a concern at the speed at which these communication arrangements were made and concluded, and in particular the fact that there has been no (published or referenced) consideration by competition and consumer agencies like the Australian Competition & Consumer Commission (ACCC) on the potential discriminatory nature of so incentivising compliance with the Australian Government COVID vaccination program.[21]

Potential Issues Regarding QANTAS Incentives

  1. Australian Consumer Law

The issue with QANTAS incentives raises issues with requirements under Australian Consumer Law. Under s 18 of the Australian Consumer Law,[22] businesses engaging in trade and commerce activities must not engage in misleading or deceptive conduct. Misleading or deceptive conduct is highlighted by case law to be conduct that has the capacity to cause error.[23] Here, representations made to secure the incentives may fall under misleading or deceptive conduct provisions depending on how they are enacted or implemented. Using the recent ACCC action of ACCC v Google[24] comparisons may be drawn to potential legal issues with QANTAS incentives.

In ACCC v Google, the Federal Court of Australia found that Google misled consumers about the collection and use of location data, including a default sharing setting. The ACCC alleged that Google misrepresented to Android users that Google would not retain data when Location History was turned off, which was not the case.[25] The Federal Court of Australia held that Google’s conduct may not have misled all reasonable users that were interested in privacy management, but regular uses of Google would be misled. Therefore, the matter was partially successful.[26] This will build a precedent for the ACCC’s action against Facebook, where the ACCC alleged that its representation to Facebook users that the software application that protects data instead used the data for Facebook.[27]

These decisions may give rise to concerns with QANTAS’s incentive program if confidential medical history, including the vaccination status of multiple people, is used for other purposes than for the provision of advertised incentives. For example, joint programs with Accor may involve the sharing of personal information if not shared with customer consent, or may be collected and used for the purpose of informing policy arguments by the airline and/or IATA about uptake of vaccination by air travellers, broken down by demographic, location of customer, destination and travel habits. Information, including that the individual is willing to receive the vaccine, is commercially valuable information for governments and marketers that an individual may not want to share with other companies, just because they choose to wish to receive an airline incentive.

  1. Federal Discrimination Legislation

Another area of concern is the way in which vaccine incentives may constitute indirect discrimination on the grounds of disabilities. Indirect discrimination is defined under the Disability Discrimination Act 1992 as where a person is a discriminator who requires or proposes a condition upon an aggrieved person who cannot comply with the condition or requirement due to their disability.[28] QANTAS’s incentive program may appear to be discriminating against those vulnerable individuals with disabilities who may not realistically have a choice to participate with requirements or conditions to secure the incentives. Hence, there is a negative result for those individuals with a disability who may not be able to take the vaccine (for reasons related to health, unsuitability, or even religious conviction or conscientious objections) which are likely to constitute discrimination as such individuals cannot comply with a mandate on the basis of a disability but, perhaps more importantly, would end up paying relatively more for travel than those who meet the incentive’s vaccination status requirements.

Conclusions

The fact of COVID-19 vaccination presents one of several related opportunities for Australia to mitigate local health concerns during this pandemic and to open up its borders and restart the international leisure and business air transport markets. Therefore, using incentives may be an effective way to promote vaccination uptake and address some aspects of vaccine hesitancy.

However, without monitoring these incentives to ensure that these measures are implemented in line with Australian Consumer Law and Federal Discrimination Legislation, these initiatives may take advantage of vulnerable individuals and unwittingly produce a class of privileged travellers based only on their decision to accept a COVID vaccination, and simultaneously relegate those who cannot or do not wish to receive a vaccine to pay higher fares or be restricted from travelling altogether.

While Australian Government policy remains, at the time of writing, to not financially penalise those citizens who do not wish to be vaccinated against COVID, it seems anomalous that private businesses are permitted to create the same kind of inequality commercially that would result if the Government chose to disincentivise COVID vaccination by withdrawing government pecuniary support.[29]

In addition, ensuring that captured data is stored and protected effectively against additional unintended use or distribution will protect all individuals from misleading and deceptive conduct and accusations that the aviation industry appears to be unlawfully and indirectly or directly discriminating against certain categories of individuals with in a self serving attempt to return to pre-pandemic international business and profitability.

 

[1] Noni MacDonald states that vaccine hesitancy “is complex and context specific, varying across time, place and vaccines.” See Vaccine 2015 Aug 14;33(34):4161-4 doi: 10.1016/j.vaccine.2015.04.036. Epub 2015 Apr 17, available at https://pubmed.ncbi.nlm.nih.gov/25896383/

[2] Emily Baker, ‘Million-dollar cash prizes and free eggs offered to encourage COVID-19 vaccinations’ ABC News (Article, 24 May 2021) <https://www.abc.net.au/news/2021-05-24/australia-covid-19-incentives-to-encourage-vaccinations/100161624>.

[3] Andrew Cuomo, ‘Governor Cuomo Announces New ‘Vax & Scratch’ Program Providing Lottery Tickets for Prizes Up to $Million’ (Press Release, 20 May 2021) <https://www.governor.ny.gov/news/governor-cuomo-announces-new-vax-scratch-program-providing-lottery-tickets-prizes-5-million>.

[4] Reuters, ‘Get a COVID-19 vaccine in this town and you could win a live cow’ CNN World (Article, 21 May 2021) < https://edition.cnn.com/2021/05/20/asia/thailand-covid-vaccines-cows-intl-hnk-scli/index.html >.

[5] NYC Health, ‘COVID-19 Data: Total Data’ (Website, 15 June 2021) <https://www1.nyc.gov/site/doh/covid/covid-19-data-totals.page>.

[6] Christopher Robertson, ‘Paying people to get vaccinated might work – but is it ethical?’ The Conversation (Article, 19 May 2021) <https://theconversation.com/paying-people-to-get-vaccinated-might-work-but-is-it-ethical-160959>.

[7] Georgia Hitch, ‘Qantas to offer rewards for COVID-vaccinated travellers, says other businesses should do the same’ ABC News (Article 31 May 2021) <https://www.abc.net.au/news/2021-05-31/qantas-rewards-covid-vaccine-travellers-incentives/100177720>.

[8] Ibid.

[9] Traveller, ‘Qantas vaccine incentives: CEO Alan Joyce reveals ‘mega-prize’ for vaccinated passengers’ (Article, 31 May 2021) <https://www.traveller.com.au/qantas-vaccine-incentives-ceo-alan-joyce-reveals-megaprize-for-vaccinated-passengers-h1w6ju>.

[10] See ICAO-WHO Joint Statement on COVID-19 accessible here: https://www.icao.int/Security/COVID-19/PublishingImages/Pages/Statements/Joint%20ICAO-WHO%20Statement%20on%20COVID-19.pdf (last accessed 18 June 2021).

[11] US use of COVID vaccines is under FDA emergency authorisation – https://www.fda.gov/regulatory-information/search-fda-guidance-documents/emergency-use-authorization-vaccines-prevent-covid-19; Australian use of COVID vaccines is under TGA approval set out here, based on emerging pharmaceutical company provided information: see https://www.tga.gov.au/media-release/tga-provisionally-approves-pfizer-covid-19-vaccine and also the recent agreement to “fast track” the development and approval of vaccines to cover variants of COVID: see https://www.tga.gov.au/tga-adopts-access-consortium-guidance-fast-tracking-authorisations-modified-covid-19-vaccines-variants (last accessed 17 June 2021)

[12] See https://www.g7uk.org/wp-content/uploads/2021/06/Carbis-Bay-G7-Summit-Communique-PDF-430KB-25-pages-3.pdf

[13] See https://www.iata.org/contentassets/2b02a4f452384b1fbae0a4c40e8a5d0c/travel-pass-faqs.pdf

[14] See https://www.who.int/news-room/articles-detail/interim-position-paper-considerations-regarding-proof-of-covid-19-vaccination-for-international-travellers (last accessed 18 June 2021).

[15] See https://www.who.int/publications/i/item/WHO-2019-nCoV-Sci_Brief-Natural_immunity-2021.1 (last accessed 18 June 2021).

[16] See https://indianbarassociation.in/legal/

[17] Therapeutic Goods Administration, ’New regulatory arrangements support businesses and health professionals to communicate and incentivise COVID-19 vaccination’ (Web Page, 7 June 2021) <https://www.tga.gov.au/media-release/new-regulatory-arrangements-support-businesses-and-health-professionals-communicate-and-incentivise-covid-19-vaccination>.

[18] Ibid.

[19] See https://www.tga.gov.au/communicating-about-covid-19-vaccines

[20] Ibid.

[21] The Permission made by the Secretary of the Department of Health is available at https://www.tga.gov.au/advert-exempt/therapeutic-goods-restricted-representations-covid-19-vaccines-permission-2021

[22] Competition and Consumer Act 2010 (Cth) sch 2 s 18.

[23] Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40.

[24] Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367.

[25] Ibid 9-10.

[26] Ibid 17.

[27] ACCC, ’ACCC alleges Facebook misled consumers when promoting app to ’protect’ users’ data’ (Press Release. 16 December 2020) <https://www.accc.gov.au/media-release/accc-alleges-facebook-misled-consumers-when-promoting-app-to-protect-users-data>.

[28] Disability Discrimination Act 1992, s6.

[29] As at 17 June 2021 the Australian Government Department of Health website states that “If you choose not to have a COVID-19 vaccine, your eligibility for Government payments won’t be affected.” See https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/getting-vaccinated-for-covid-19 (last accessed 17 June 2021).

 

Directly contact Joseph Wheeler at jwheeler@ialpg.com if you need assistance or advocacy for yourself or a relative.