Justin Abi-Daher, Marrickville Legal Centre
Recently, we were made aware of a residential complex in Sydney that is requiring that all persons entering the building must be vaccinated, which raised the question can an owners corporation mandate vaccination for residents of an apartment building (owners and tenants)?
Vaccination is an essential public health measure in the fight against Covid-19. Covid-19 vaccines have proven safe and effective in providing protection for individuals, and significantly reducing spread of the virus in the community.
In Australia vaccination has generally been voluntary, and the vaccine made freely available for those who choose to be vaccinated.
As we shift out of lockdown in NSW, and open up across Australia, the issue of vaccine mandating is proving to be complex new legal territory for many sectors.
Can an owners corporation legally mandate vaccination in a strata community?
An owner’s corporation (once called the ‘body corporate’) is the governing entity of all the individual owners of the units in a strata title building. The owners corporation is responsible for the maintenance, repair and overall management of the common property.
Whether or not an owners corporation would be permitted to introduce a vaccine mandate for residents of a building would be subject to a variety of factors.
The NSW Government has introduced vaccine mandates in certain contexts, for example for health workers, and in residential aged care facilities, but currently, there is no specific law (such as a public health order) which requires tenants, owners or occupiers in an apartment building to be vaccinated and to provide their medical information to the owners corporation.
Without a relevant public health order mandating this - to have any validity - a vaccine mandate from an owners corporation would likely need to be underpinned by a ‘by-law’.
An owners corporation or strata committee is unable to introduce ‘house rules’ that are not registered as by-laws.
By-laws are the rules for managing the strata scheme and certain steps must be followed before an existing by-law can be changed, or a new by-law can be introduced. A special resolution by the owners corporation is required (75% of the vote in favour based on unit entitlements), and new by-laws must be registered with NSW Land Registry Services within a 6-month period before enforcement is possible.
Once a by-law is in operation, it can also be challenged and subsequently invalidated by a property owner, for example, on the basis that the by-law is ‘harsh, oppressive and unconscionable.’ This could be argued if for example, people were not able to access their own property, or to have visitors as a result of the by-law. Currently, a tenant does not have standing to challenge a by-law themselves, but a tenant can ask their landlord to do this on their behalf.
Under the Residential Tenancies Act 2010 (NSW), tenants are entitled to reasonable peace, comfort and privacy in using their premises. Under the tenancy agreement, it is the landlord’s obligation not to cause or permit interference with the tenant’s entitlement. So, if a tenant thinks that the owners corporation is interfering with their reasonable peace, comfort and privacy then tenants should ask their landlords to take steps to ameliorate the situation.
There are also other areas of law which are relevant to this issue, and which need to be closely considered and investigated. For example: privacy law and discrimination law.
Owners corporations are not in the business of keeping medical records and would need to consider the ramifications of requesting medical information. Legislation such as the Health Records and Information Privacy Act 2002 (NSW) and the Privacy and Personal Information Protection Act 1998 (NSW) govern how personal and medical information can be collected and handled. Individuals who have concerns regarding their privacy being breached under these laws can notify the Privacy Commissioner.
Commonwealth and NSW anti-discrimination law applies to prevent discrimination in relation to certain protected characteristics for example, to prevent discrimination against physical or mental disability, ethnic origin, race and pregnancy. If refusal to be vaccinated is linked to a ‘protected characteristic’, it is possible that a blanket mandatory vaccination rule could be construed as discriminatory in some individual cases.
Additionally, the scope of any vaccine mandate and how it is enforced in practice is an important consideration. Owners corporations must separately consider the legal implications for owners, tenants, employees, contractors and visitors to the building such as under work, health and safety laws.
They must also consider the practicalities of any new rules they impose, for example: a blanket refusal to enter the building for non-vaccinated people living in the building would be unreasonable, however ensuring appropriate safety measures such as facemasks and imposing restrictions around the use of certain non-essential common amenities (such as a gym or pool) may be more reasonable.
What does this all mean?
The fact of the matter is that we do not yet have specific laws or Court decisions on this point and in this context in relation to the COVID-19 pandemic. These are complex issues, without simple solutions. For now, we can say, that without a relevant law such as a public health order or a valid by-law there would be no legal basis for an owners corporation to mandate vaccination among its residents.
Disclaimer: This resource is intended as a guide to the law and should not be used as a substitute for legal advice. It applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia and is subject to change.
 At the time of publication Covid-19 vaccination is mandatory for all providers of residential and in home aged care in NSW. Covid-19 vaccination has also been mandated in other areas including for: all quarantine workers, certain healthcare workers, transportation workers, airport workers, authorised workers leaving an area of concern for work, all employees at schools and NSW Police. The evolving NSW Public Health Orders on vaccine requirements can be found here: https://www.health.nsw.gov.au/Infectious/covid-19/Pages/public-health-orders.aspx