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This paper examines the contemporary challenges with the doctrine of informed consent ‘Doctrine’ and its application in the vaccination program of the Australian Government[1].  In order to understand the challenges, we must first understand the background of the development of the Doctrine.

The Doctrine commenced with the seminal Schloendorff[2]decision, where it was held the need for Informed Consent is a prerequisite to the Doctor-Patient Relationship.

With Justice Cordozo stating “In the case at hand, the wrong complained of is not merely negligence. It is trespass….and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.[3]

In determining what information should be given to clients doctors traditionally used the “Physician-Based Standard"[4], this was the idea that a physician isn’t liable for negligence or malpractice if they followed the consensus of opinion in medical practice.  It was accepted by the English Courts in Bolam v Friern Hospital Management Committee[5] this became known in law as the Bolam Principle[6]

The Australian Experience

In F v. R[7] a woman who wasn’t warned of a 1% failure rate in a medical procedure sued for negligence.  The Doctors argued that the consensus of medical opinion was it wasn’t necessary to warn when failure rate was so low, the Court refused to apply the Bolam principle.

King C.J. said: The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.

King C.J. agreed with the Supreme Court of Canada in Reibl v. Hughes (1980): The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient's right to know what risks are involved in undergoing or foregoing certain surgery or other treatment[8].

Since F v R, the High Court of Australia ‘HCA’ was called upon to answer once and for all whether the Bolam principal applies in Australia in the case of Rogers v Whitaker[9].  In reference to the standard of care the HCA stated it is "not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade"[10].

The HCA in rejecting the Bolam principle provided new guidelines:

"while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life' "[11].

In Rogers v Whitaker there was a consensus of opinion in the medical profession that held disclosure to the patient of the possibility of rare but known risks would only be disclosed to the patient if there was a specific inquiry, since the patient did not ask, the risk was not disclosed.

The HCA Held :

"While the opinion that the respondent should have been told of the dangers of sympathetic ophthalmia only if she had been sufficiently learned to ask the precise question seems curious, it is unnecessary for us to examine it further, save to say that it demonstrates vividly the dangers of applying the Bolam principle in the area of advice and information.

The respondent may not have asked the right question, yet she made clear her great concern that no injury should befall her one good eye. The trial judge was not satisfied that, if the respondent had expressed no desire for information, proper practice required that the respondent be warned of the relevant risk.

But it could be argued, within the terms of the relevant principle as we have stated it, that the risk was material, in the sense that a reasonable person in the patient's position would be likely to attach significance to the risk, and thus required a warning. It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective.[12]"

The Rogers v Whitaker decision saw a move in Australia away from the physician based standard towards a Patient-Oriented Standard: set by what a reasonable patient would want to know.

With this the Medical Board of Australia has developed a code of conduct for medical practitioners to follow Good medical practice: a code of conduct for doctors in Australia[13]
The code covers working with patients[14], treating each patient as an individual[15], encouraging patients to be well informed and to use this information wisely when they are making decisions[16] and ensuring patients are informed of the material risks associated with the vaccine[17].

The Australian Immunisation Handbook ‘AIH’[18] is more than a mere guideline that medical practitioners use when providing vaccination services.  According to the operative section of the No Jab, No Pay policy in A New Tax System (Family Assistance) Act 1999, S.6
Medical contraindication, natural immunity

(3)  The child meets the immunisation requirements if:

(a)  a general practitioner has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook;

The AIH defines valid consent as:

the voluntary agreement by an individual to a proposed procedure, given after sufficient, appropriate and reliable information about the procedure, including the potential risks and benefits, has been conveyed to that individual.

Persons should be given sufficient information (preferably written) on the risks and benefits of each vaccine, including what adverse events are possible, how common they are and what they should do about them (the table inside the front cover of this Handbook, Side effects following immunisation for vaccines used in the National Immunisation Program (NIP) schedule, can be used for this purpose). [19]

It continues with, “For consent to be legally valid, the following elements must be present:

It must be given voluntarily in the absence of undue pressure, coercion or manipulation.

It can only be given after the potential risks and benefits of the relevant vaccine, risks of not having it and any alternative options have been explained to the individual.

The individual must have sufficient opportunity to seek further details or explanations about the vaccine(s).

Consent should be obtained before each vaccination, once it has been established that there are no medical condition(s) that contraindicate vaccination.”

We see that the doctrine of informed consent is well developed in Australia, to the point it is codified in codes of conduct of the medical profession and even in the AIH, so why all the controversy around vaccines?

It is beyond the scope of this paper to go into the efficacies and the Government stance that vaccines are “safe and effective[20]”, instead the issues are examined from a health law perspective.  In contrast to the Australian Government position, the United States Supreme Court case of Bruesewitz Et al. v Wyeth LLC, FKA Wyeth, Inc., Et al[21] stated :

“Indeed, Congress’ principal aim in enacting §22(b)(1) was not to preserve manufacturing and labeling claims (those, too, were already preserved by §22(a)), but rather, to federalize comment k-type protection for “unavoidably unsafe” vaccines.”[22]

Another distinguishing factor they have the The National Childhood Vaccine Injury Act of 1986 [which] created a no-fault compensation program to stabilize a vaccine market adversely affected by increased vaccine-related tort litigation and to facilitate compensation to claimants who found pursuing legitimate vaccine-inflicted injuries too costly and difficult[23].

When examining the Australian policy and legislation in the search for answers as to why Australia has no such system here. The first question is if a Doctor follows the procedure in the AIH, is consent “valid”? Secondly if a patient after considering all available information, isn’t sufficiently satisfied that vaccines are “safe and effective” as claimed by the Government, can they get an exemption for a medical contraindication?

The search for answers starts with the Victorian No-Jab No-Play legislation PHW[24] (which leads back to and relies upon Commonwealth Legislation for its implementation[25]) before a child can be confirmed as enrolled in “early childhood service” ‘care’, an “immunisation status certificate” is required showing the child is up-to-date.

Interestingly S.147 of PHW points to sections 46A and 46B of the Health Insurance Act (Cth) 1973, however, there are no such section(s) in that Act, which can be confusing, that said, assuming a child hasn't been fully vaccinated according to the Victorian Immunisation Schedule[26] then the only way a child can enter care is either be vaccinated or obtain an exemption.

There is only one provision to obtain a permanent exemption before entering care to one or more vaccines, that is section 143B(1)(b) of the PHW[27], which states :

(b)     immunisation of the child with one or more vaccines so that the child is age appropriately immunised would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook within the meaning of section 3(1) of the A New Tax (Family Assistance) Act 1999 of the Commonwealth.

The difficulty with this provision is that the AIH, insofar as contraindications go, provides a narrower scope than the manufacturers provide as contraindications and gives the AIH force of law, suddenly what the manufacturer warns of is no longer relevant. The AIH Section 2.1.4[28] on pre-vaccination screening titled “Contraindications to vaccination” provides a child only one possible contraindication, that is an adverse event to a previous vaccination of anaphylaxis.

Short of a parent already vaccinating a child, who then had an immediate life threatening reaction, as far as the AIH is concerned there is no valid exemption.  This is in stark contrast to the manufacturers own recommendations that are included with the vaccines. The information leaflets have far broader guidelines regarding contraindications, it appears that the AIH over-rides vaccine manufacturers own advice.

For instance, MMR[29] contraindications include hypersensitivity to any component of the vaccine, including gelatin, Anaphylactoid reactions to neomycin[30] and individuals with a family history of congenital or hereditary immunodeficiency, a doctor relying on the AIH would not even need to consider these.

Merck continues with additional warnings that persons with history of cerebral injury, convulsions, live vaccine risks and persons with hypersensitivity to chick embryo cultures may see adverse reactions, they go on to say:

The potential risk to benefit ratio should be carefully evaluated before considering vaccination in such cases. Such individuals may be vaccinated with extreme caution…

Persons who have experienced anaphylactic reactions to neomycin should not receive measles vaccine. Neomycin allergy often manifests as a contact dermatitis, which is a delayed-type immune response rather than anaphylaxis, this is a perfect example of where there may be long term side effects that parents are not warned of.

There are many more warnings listed but it’s beyond the scope of this paper to examine all the contradictions, the above demonstrates clearly the dangers of a Doctor merely following the AIH as commanded by Legislation.

Not only does the AIH not cover issues Merck covers, it goes one step further and dictates to doctors what is or is not a valid contraindication[31].  The contraindications excluded include family history of adverse events following immunisation, history of convulsions, asthma, eczema, atopy, previous infection with the same pathogen (natural immunity) and neurological conditions among other things are not considered valid contraindications.

What is significant about this is the very things that Merck lists as contraindications and warnings are the things that Doctors are told to ignore in the AIH.

What should a doctor follow?  The AIH or Merck’s own contraindications?

The additional warnings and precautions in the Merck document could lead to a medical practitioner making in their own judgment a valid contraindication based on an individual patient’s needs.

This would be in line with the Australian Medical Boards Code of Conduct[32] for doctors in Australia. Examining content of Section 3[33], includes issues of treating the patient as an individual and the requirement of valid informed consent, it appears the legislation and AIH are inconsistent at best and incompatible at worst with the requirements for valid informed consent.

The Government would be asking the doctor to breach their own code of conduct if they are to ignore the manufacturers product information leaflets in lieu of the narrow guidelines in the AIH.

Most significantly looking at the Medical Board of Australia’s Code of Conduct, specifically Section 41.3.6 Children and young people

  1. Caring for children and young people brings additional responsibilities for doctors. Good medical practice involves:
  2. Placing the interests and wellbeing of the child or young person first.

In the case of actions and decisions affecting an individual child, it is the best interests of that individual child which must be taken into account[34].  Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1).

To satisfy the question of what is in the best interests of the child, what first must be examined is what is the risk involved that the vaccine seeks to prevent, take Infanrix hexa[35], a vaccine used to prevent six diseases: diphtheria, tetanus, whooping cough, hepatitis B, polio and Haemophilus influenzae type b.

According to the World Health Organisation[36] there have been 9 Cases of Diptheria in Australia since 2007, there have been Zero cases of Tetanus (Neonatal) and Zero cases of Polio.  Hepatitis B is a blood-borne virus. There’s an insignificant statistical risk of Hep B transmission in a community setting, especially among children who are unlikely to engage in high-risk behaviours, such as needle sharing or sex[37], so is not a relevant or foreseeable risk to an infant unless one of the parents have Hep B themselves as held in Re H [2011] QSC 42711 and Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 (2 September 2008), Hib does not cover the prevalent strains so can’t be considered a significant benefit and finally pertussis is an interesting anomaly in that the more we have vaccinated against it the more it occurs[38] with cases peaking last year at 22,508.

Against this back drop of seemingly little statistical basis to arouse a parent to fear that their child is at risk, the adverse events associated with Infanrix ought to be considered.

Infanrix Hexa according to the product leaflet published by the TGA[39] states it should not be administered to subjects with known hypersensitivity to the active substances or to any of the excipients or residues[40], this is in conflict with the AIH guidelines.

In examining data reports of adverse events released by the TGA[41], since January 1st 2014 there have been 2,575 adverse reactions associated with Infanrix, which include death in two reported cases.

The TGA admits there’s no data or studies comparing vaccinated vs unvaccinated children to see if there are any trends in health outcomes of those vaccinated against children who are not[42].

CONCLUSION.

A risk at common law is one that’s real and foreseeable, but not “far-fetched or fanciful”[43], here it’s clear there are real and foreseeable risks that an adverse reaction to a vaccine may occur, it is neither farfetched nor fanciful and a parent ought to consider the manufacturers warnings and the potential risk to benefit ratio should be carefully evaluated before considering vaccination in cases where a child is suspected to be hypersensitive to  adjuvants in the vaccines or potentially affected by one or more of the contraindications and warnings.

If a Doctor merely follows the AIH guidelines it is questionable whether there is sufficient information provided to constitute valid informed consent.  On the other hand, if according to guidelines a parent sought an exemption, the legislative provisions are not reasonable for the patient to seek what is defined as a valid exemption.  It would appear vaccination policy places a parent seeking an exemption into a position where they, even if uncomfortable with the decision are coerced to vaccinate to get child care, which may invalidate informed consent.

Whether the consent is granted under the AIH guidelines or coerced under Government policy, unfortunately it falls under the normal rules of negligence, which means no harm no foul, even with invalid informed consent there is no medical malpractice unless there is harm done, short of anaphylaxis, where the adverse reaction is severe and immediate, a parent will not know for some time if there are any long term negative impacts on the child’s health.

This gives Doctors confidence in vaccines even if they know that it’s not really valid informed consent, if the adverse reaction is minor (not permanent or long lasting) then there is no claim for malpractice[44] if the adverse event sets on gradually over time, then causation is impossible to prove, it would appear the Government along with the Medical Profession is sidestepping informed consent in favour of the Bolam Principle that the High Court Rejected.

 

 

References

[1] Immunise Australia Program, Department of Health, accessed here 5/02/2017 at 11.18am http://immunise.health.gov.au/internet/immunise/publishing.nsf/Content/about-the-program.

[2] Mary E. Schloendorff v The Society of the New York Hospital, 05 N.E. 92, 211 N.Y. 125, New York Court of Appeals.

[3] Ibid.

[4] Barry Furrow et al., ed., Health Law, 2015, p. 123

[5] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

[6] Ibid.

[7] F v. R.(1983) 33 S.A.S.R. 189.

[8] Ibid.

[9] Rogers v Whitaker (1993) 67 ALJR 47.

[10] Rogers v Whitaker (1993) 67 ALJR 47 at 48-49.

[11] Ibid at 51.

[12] Ibid at 53.

[13] Good medical practice: a code of conduct for doctors in Australia, accessed 03/02/2017 at 5.05pm   http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx

[14] Ibid at S.3.

[15] Ibid at S.3.2.2.

[16] Ibid at S.3.2.5.

[17] Ibid at S.3.3.6.

[18] The Australian Immunisation Handbook 10th Edition,  accessed 03/02/2017 at 7.58pm http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home

[19] Ibid at S.2.1.3

[20] Immunise Australia Program, Department of Health, accessed here 5/02/2017 at 11.18am http://immunise.health.gov.au/internet/immunise/publishing.nsf/Content/about-the-program.

[21] BRUESEWITZ ET AL. v. WYETH LLC, FKA WYETH, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

[22] Ibid at pg.18.

[23] Ibid at pg.1 para 1.

[24] Public Health and Wellbeing Act 2008 (Vic).

[25] A New Tax System (Family Assistance) Act 1999, S.6.

[26] Immunisation schedule Victoria 2016, accessed here on 3/2/2017 at 9.29pm https://www2.health.vic.gov.au/public-health/immunisation/immunisation-schedule-vaccine-eligibility-criteria/immunisation-schedule-victoria

[27] Public Health and Wellbeing Act 2008 (Vic), S.143B(1)(b).

[28] The Australian Immunisation Handbook, accessed here on 3/2/2017 at 10.09pm  http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home~handbook10part2~handbook10-2-1#2-1-4

[29] M-M-R® II (MEASLES, MUMPS, and RUBELLA VIRUS VACCINE LIVE), Manufactured by Merck, Product leaflet accessed here on 3/2/2017 http://www.merck.com/product/usa/pi_circulars/m/mmr_ii/mmr_ii_pi.pdf

[30] Wikipedia, Neomycin is an aminoglycoside antibiotic found in many topical medications such as creams, ointments, and eyedrops. https://en.wikipedia.org/wiki/Neomycin

[31] The Australian Immunisation Handbook, Table 2.1.4: False contraindications to vaccination.

[32] Australian Medical Boards Code of Conduct, accessed here on 3/2/2017 at 11.01pm http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx .

[33] Ibid.

[34] Australian Human Rights Commission, Human Rights Brief No. 1, The Best Interests of Child http://www.humanrights.gov.au/publications/human-rights-brief-no-1 accessed 29.11.2016 at [4.54pm]

[35] Department of Health, Therapeutic Goods Administration, Infanrix Hexa, https://www.tga.gov.au/alert/infanrix-hexa-vaccine accessed 29/11/2016 at [4.55pm].

[36] World Health Organisation, Global Summary, Australia http://apps.who.int/immunization_monitoring/globalsummary/incidences?c=AUS accessed 29.11.2016 at [4.56pm].

[37] Tetyana Obukhanych, An open letter to legislators http://thinkingmomsrevolution.com/an-open-letter-to-legislators-currently-considering-vaccine-legislation-from-tetyana-obukhanych-phd-in-immunology/ accessed 29.11.2016 at [4.57pm]

[38] World Health Organisation, Global Summary, Australia, http://apps.who.int/immunization_monitoring/globalsummary/incidences?c=AUS accessed 29.11.2016 at [4.58pm].

[39] Infanrix Hexa Product leaflet, Therapeutic Goods Administration accessed at 05/02/2017 https://www.ebs.tga.gov.au/ebs/picmi/picmirepository.nsf/pdf?OpenAgent&id=CP-2010-PI-06624-3&d=2016112916114622483&d=2017020516114622483

[40] Childrens Medical Saftety Research Institute, Dirty Vaccines: New Study Reveals Prevalence of Contaminants,  http://info.cmsri.org/the-driven-researcher-blog/dirty-vaccines-new-study-reveals-prevalence-of-contaminants accessed 10/02/2017 at 12.04am.

[41] Department of Health, Therapeutic Goods Administration, INFANRIX Database search from 1/1/2014 to 17.8.2016 accessed at [5.04pm] here http://apps.tga.gov.au/PROD/DAEN/daen-report.aspx

[42] Email from TGA – Marked as Annex “A”

[43] Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, per Mason J. at p 47. See also Gala v. Preston [1991] HCA 18; (1991) 172 CLR 243, at p 253)

[44] Wrongs Act 1958 (Vic) s.48(l).

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This paper examines the plausibility of a legal challenge to the government’s “No Jab, No Pay” policy from an Administrative Law perspective.  Unlike Constitutional Law which examines the validity of legislation according to the Constitution, Administrative law assumes the legislation is constitutionally valid and examines the decision making process of the executive; either on its merits or by judicial review.

MERITS REVIEW

Merits review is either conducted through internal mechanisms provided by the executive or by legislative provisions to access inferior courts such as the Administrative Appeals Tribunal ‘AAT’. Additionally, Administrative law provides for judicial review of the decision making process which will not examine the case on its merits, but on an error in law, and whether or not the source of authority has acted lawfully in accordance with the power conferred upon it in statute.

JUDICIAL REVIEW

Administrative decision makers (when making decisions) often turn to practices within their institutions, guidelines, procedures, manuals, policy documents and directions from ministers that might distract from the relevant provisions, but must not be allowed to do so.[1] Where a decision maker’s power to make a decision depends on the existence of a particular fact (a ‘jurisdictional fact’) and he or she wrongly determines the fact exists, the courts will quash that decision[2].

Decisions are reviewable, as is the conduct in reaching that decision.  Reviewable conduct involves the issue of a notice of intention to exercise statutory powers[3] and a direction to provide evidence in support of an application by a specified date[4]. In relation to conduct, a complaint could be that the process of decision making was flawed in such a way as to involve a denial of natural justice[5].

When a statute empowers a public official to adversely affect a person’s rights or interests, the rules of procedural fairness regulate the exercise of the power unless excluded by plain words[6]

“…if an officer of the Commonwealth exercising power conferred  by statute does not accord procedural fairness and if that Statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to afford procedural fairness, the officer exceeds jurisdiction, in a sense necessary to attract the prohibition under s75(v) of the Constitution[7].”

MATTER FOR THE COURTS

What is needed is a matter for the Court to decide.  There needs to be a controversy in order to create a matter for the Court.  This means that you would need to have a scenario where a decision has been made by a Commonwealth official regarding your case, in order to invoke any of the remedies discussed here.

In this case with the No Jab, No Pay legislation ‘NJNP[8] , the Government has made it difficult to have a matter.

The NJNP legislation targets conscientious objectors[9] and their children.  It creates an automated system where a child who is not immunised in accordance with Government guidelines, the family loses certain entitlements[10].  The system places the onus of proof of compliance on the parents. Previously, a conscientious objection would be valid.  However with the NJNP legislation, there is little room for the Doctor to help you now, as even if you find something you object to medically (like a side effect) this is no longer a sufficient justification.

It is up to the parent to show that they comply with the legislative guidelines.  Failing this, the parent must have a valid medical contra-indication according to the Australian Immunisation Handbook[11]AIH’ or, show that their child has natural immunity or is participating in a vaccine study.

CONTRA INDICATIONS

If a concerned parent were to examine the contra indications of an individual vaccine and find one that affected their child, all they would need to do is ask their doctor for a statement confirming the particular contra-indications affecting their child. For example with the Gardasil vaccine, a hyper allergy to yeast is a contra-indication for vaccination according to the Manufacturers guidelines[12] and is also included in the AIH list of contra-indications[13].    This could be the basis of a challenge.

AUSTRALIAN IMMUNISATION HANDBOOK

The specifications included in the AIH  are what the Doctors must follow[14].  The AIH is created by the Executive arm of the Government through their Immunisation Advisory Bodies[15].  This is then approved by the Executive Government via the National Health and Medical Research Council.

This AIH is not legislation but the NJNP legislation gives it force of law[16].

A question of law already arises in that the AIH, which now has the force of law, cannot contradict or violate the legislation that empowered it.  . Subsection 6 (3) of the ‘NJNP’ states that “The child meets the immunisation requirements if;

a general practitioner has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook.

The question is: Are the contra indications outlined in the AIH consistent with the ones provided by the manufacturer?  The Australian Technical Advisory Group on Immunisation ‘ATAGI’ makes recommendations on contra indications throughout the AIH but do these recommendations consider the rules of Natural Justice and the Rule of Law?  If not, the discrepancy would cause the legislation to become unenforceable as the manufacturers’ latest contra-indications published and pertaining specifically to the medicine, must prevail, as there is no authority granted in the NJNP to ATAGI to overrule the Manufacturers warnings.

The legislative intent could not have been that a Government agency decides what contra-indications are valid over the advice provided by the manufacturer from their years of research.  A law so inflexible that it forces deliberate harm based on the latest contra-indications published by the manufacturers, would be invalid and unenforceable.[17]

Further, it is clear from 6(3) (b) that a general practitioner can certify “in writing that the child does not require immunisation because the child has contracted a disease or diseases and as a result has developed a natural immunity.” The legislative intent is to give the General Practitioner authority to certify in writing, that the child has developed natural immunity. This legislative authority granted to  doctors is not subject to the conditions of the AIH otherwise it would be clearly stated as in S (6)(3)(a).

However, the AIH does in fact exert coercive influence over doctors in how this decision is to be made[18] which may be considered a violation of the NJNP legislation, contrary to the intent of Parliament as well as possibly, unconstitutional “medical conscription.[19]

Whether it is a contra-indication or a medical opinion on natural immunity all that is required is a certificate from the doctor, detailing the medical decision against the immunisation which needs to be presented to a Centrelink office.  If Centrelink reject the documentation provided because it (the natural immunity) is not included in the AIH as a consideration, a controversy has developed into a legal matter to be determined by the Court.

Legislation is not meant to override fundamental rights and freedoms unless expressly stated[20].  It can be argued that although the Government has the right to introduce policy regulating immunisation, encourages immunisation with their “Carrot and Stick”[21] approach,  it cannot be so inflexible as to create a legal error where a decision maker cannot take into consideration relevant factors that create a controversy.

CONSENT

One of the things that the AIH could not remove, was the need for free and prior informed consent[22], which can be another potential “trigger” to initiate a matter.   A patient may request that the doctor provide full explanation of the associated risks with any vaccine.  Consent provided by the patient following such explanation, is therefore informed.

If the patient is not satisfied with the doctor’s explanation and cannot accept the risks outlined, the patient cannot be forced into granting consent.  Further, there is a difference between conscientiously objecting and not consenting.

In not granting consent, the patient is not refusing the treatment nor objecting to it, they are merely considering the information and deciding that the benefits do not outweigh the risks.  The patient cannot be forced, nor should they be punished for refusing consent; doing so would violate the rules of natural justice.  This would also render the decision maker negligent in not following the procedures outlined in the AIH.

The AIH states under 2.1.3 “The individual must have sufficient opportunity to seek further details or explanations about the vaccine(s) and/or its administration.”

Thus, the decision maker would be creating a controversy in making a decision to revoke Family Tax and Child Care entitlements, as this can be considered ‘punishment’ for refusing consent to the vaccine., This would amount to a jurisdictional error and would be an improper exercise of power conferred, resulting in  an error of law.

This may also invoke the Administrative Decisions (Judicial Review) ActADJR’ S 6: “Applications for review of conduct related to making of decisions”

(a)  that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur;

(b)  that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(c)  that the person who is engaging in the conduct does not have jurisdiction to make the proposed decision;

(d)  that the enactment does not authorize the making of the proposed decision;

(e)  that the making of the proposed decision would be an improper exercise of the power;

(f)  that an error of law had been, is being, or is likely to be, committed in the making of the proposed decision.

FRAUD        

The ADJR Act states in S 6(g) that [IF] fraud has taken place, is taking place, or is likely to take place, in the course of the conduct; and S 5(g) that [IF] the decision was induced or affected by fraud (for example if the parent is examining the risks and seeking information to see if any fraud was done by the pharmaceutical companies in their submissions for approval[23]), then a decision relying on or induced by fraud is contrary to law.

Since there is a question of fraud before the US Courts, then you may seek a writ of prohibition suspending a decision of the Government to cut your entitlements, pending judicial review of the matter and result on the fraud case in the US as a prejudicial question.

NO EVIDENCE

When considering a matter, the decision maker must consider the evidence at hand in each case, they cannot merely rely on inferences drawn from statistics for their decision[24].

Similarly, if someone were to claim that their child has acquired natural immunity which is supported by a written statement from their doctor (evidence of natural immunity), Centrelink cannot deem their non-compliance with the NJNP as invalid as there is no evidence to negate it.  A Tribunal that were to decide a question of fact without evidence in support of the finding, would make an error of law[25].

A decision maker cannot for instance make a decision that your child is NOT naturally immune without evidence to support that conclusion. Their power to make that decision is grounded on Legislation which requires evidence (Jurisdictional Fact) which the existence of their power depends[26], without it they have not acquired jurisdiction.

At common law, a decision under statute is invalid if there is no evidence or a lack of evidence to support it[27].

This issue is dealt with under ADJR s.1 (h) “that there was no evidence or other material to justify the making of a decision which is conditional upon 5(3)

(a) that the person was required by law to make the decision only if a particular matter was established and there was no evidence to support that decision and

(b) that the decision was on the existence of a particular fact and that fact did not exist.

In this precondition of s.5(3)(a), if a decision is in truth, based on a particular fact for which there is no evidence, (for instance natural immunity) and that fact does not exist (the child is naturally immune), then the decision is flawed.

However s.5(3)(a) places the onus on you to prove the fact relied upon,  so in the above example you would need to show proof the child had natural immunity.

At common law there needs to be proof (evidence) to sustain a decision[28]

UNREASONABLENESS.

The decision maker (in this case the Secretary of the Department of Social Security –cannot consider irrelevant evidence when making the determination; for instance if a parent were  previously a conscientious objector, that fact cannot be taken into account now to the parent’s prejudice.  The decision must be made on logical reasoning and would be an error of law if it lacks an evident and intelligible justification[29]. Any decision needs to be reasonable, rational and logical[30].

The decision maker cannot decide for a person, when to do something to fit in with the legislation.  This relates particularly to issues of reasonableness and availability[31].     Also there is the long standing notion of “Wednesbury Unreasonableness” in which a decision maker cannot make a decision lawfully, if the decision is irrational or illogical.

FAILING TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS.

According to the AIH Table 2.1.4, false contra indications to vaccination; things like a family history of any adverse events following or even previous illness with measles, rubella, mumps, varicella, herpes zoster or meningococcal disease (where you may have developed natural immunity) are not acceptable reasons not to immunise.   This, although outlined in the AIH, may be argued to be outside the scope of the legislative power and the intent of Parliament.  Nothing in the NJNP confers such power (to decide for Doctors what is a valid contra-indication) to the Contributors of the AIH.

BREACH OF INTERNATIONAL OBLIGATIONS UNDER TREATIES & LEGITIMATE EXPECTATIONS.

According to the Statement of Compatibility with Human Rights (‘statement’) attached to the NJNP l, the legislation invokes the International Covenant on Economic, Social and Cultural RightsICESCR’ and the United Nations Convention of the Rights of the ChildCRC

“Extending the immunisation requirements engages article 12 of the ICESCR

However the statement fails to consider article 10.3 of the ICESCR: Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation.

It can be argued that targeting conscientious objectors is a form of discrimination against the parents for their views and the result of the government’s is a form of economic and social exploitation.

This conflicts with the government’s statements that – “The right to social security - Article 9 of the ICESCR recognises the right of everyone to social security, and article 26 of the CRC recognises the right of every child to benefit from social security.

This Bill engages these rights by removing eligibility to receive child care benefit, child care rebate and family tax benefit Part A supplement for vaccine objectors.

However, this limitation is necessary and proportionate to the legitimate aim of promoting the right to physical and mental health. ”

Similarly, article 24 of the CRC recognises the right of the child to the enjoyment of the highest attainable standard of health and measures ‘to diminish infant death and child mortality’ and to ‘combat disease’.

However the statement, in acknowledging it violates Article 26, fails to mention it may also violate Articles 12[32], 14[33] and 16[34] of the CRC.

According to the Human Rights (Parliamentary Scrutiny) Act 2001 (Cth) s8:

(4)  A statement of compatibility prepared under subsection (1) is not binding on any court or tribunal.

If that statement was now found to be incompatible with the human rights engaged in the CRC or ICESCR or the Human Rights and Equal Opportunity Commission Act 1986 (Cth) the matter would be a justiciable question of law.

Furthermore, not only are these rights enshrined in Australian domestic legislation and invoked by the statement,  in Administrative Law it has been held that to violate such a treaty (CRC/ICESCR) would be contrary to law[35].

Moreover, it could be argued that the government using social security benefits as a “Carrot and Stick” in violation of article 26 of the CRC, also violates the right of legitimate expectations as recognised in Salemi v MacKellar (No 2)[36] where “at its centre is the concept of legality, that is to say, it is a lawful expectation”.  A person would have a legitimate expectation that their benefits would not be cut off due to legal errors or without consideration for natural justice and the rule of law.

INITIATING LEGAL ACTION IN ADMINISTRATIVE LAW

Now that the framework of the matter has been identified, ss 6(6) and (7) of NJNP needs to be invoked by written request for internal review by the secretary.   The legislation provides that the secretary can decide if a child meets the immunisation requirements, but this decision must comply with any decision-making principles set out in a legislative instrument made by the minister for the purposes of this subsection. To remind, the legislation must be explicit if it is intended to override fundamental rights and freedoms.  Policy that is inconsistent with legislation, as in this case, the secretary must follow the decision-making principles. However, if they are so inflexible as to not allow a decision without violating fundamental rights, then the decision will not be lawful nor reasonable[37].

When there is a matter, a complaint can be filed with the AAT.  If a statute is silent on the issue, then no merits review is possible.   So when a complaint is filed in the AAT, it will be both on merits (as there is an arguable case on merits), and also in the alternative[38] under 39(b) of the Judiciary Act 1903 and S (8) of the ADJR.

This tactical approach provides both an administrative remedy under the ADJR and/or a common law remedy; both of which the AAT has legislative jurisdiction to hear.  Thus, we can also invoke the common law remedies and Constitutional Writs of Prohibition, Mandamus, Injunction and Certiorari in S.75(v)[39] of the Commonwealth Constitution.

It must be remembered that if only a common law approach is taken, then the government is under no legal obligation to give reasons for a decision,[40] so the key here is this mixed approach to get the merits considered in the AAT and if a satisfactory result is not yet achieved, have it available to the Federal Court to consider the reasons for a decision as part of the error of law review.

For instance, a decision that violates the rules of natural justice; that is a fair hearing and providing  procedural fairness is appealable as an error of law[41],  for instance if a policy is applied inflexibly without regard to individual merits, the decision would be appealable as an error of law.

In conclusion, this paper set out to examine the plausibility of a legal challenge to the No Jab, No Pay legislation of the Federal Government. It is my view that it has successfully outlined not only the plausibility, but also the method to initiate a viable legal challenge using the remedies available in administrative law.

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NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.

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Footnotes

[1] Referred to as ‘soft law’ these are ‘rules’ that have no binding force but are intended to influence conduct: Robyn Creyke, “Soft Law” and Administrative Law : A New Challenge (2010) 61 AIAL Forum 15,15.

[2] Government Accountability – Australian Administrative Law, Judith Bannister, Gabrielle Appleby & Anna Olijnyk, Cambridge Press 2015.

[3] Telstra Corporation Ltd v Australian Competition and Consumer Commission (No.2) (2007) 240 ALR 135.

[4] Somnomed Ltd v Commissioner of Patents [2006] FCA 765.

[5] Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321, 342

[6] Annetts v McCann (1990) CLR 596 at 598.

[7] Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at 101 [41].

[8] Social Services Legislation Amendment (No Jab, No Pay) Act 2015, which under schedule 1 amends A New Tax System (Family Assistance) Act 1999 ‘NJNP’

[9] ‘No Jab No Pay’ and other immunisation measures Accessed here http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/Vaccination on 27/01/2016 at 11.38am.

[10] From 1 January 2016, immunisation requirements for Family Tax Benefit (FTB) Part A end of year supplement, Child Care Benefit (CCB), and Child Care Rebate (CCR) will be extended to include children of all ages up to, and including, 19 years of age.

[11] Australian Immunisation Handbook 10th Edition, Available here http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/7B28E87511E08905CA257D4D001DB1F8/$File/Aus-Imm-Handbook.pdf

[12] http://www.merck.com/product/usa/pi_circulars/g/gardasil/gardasil_ppi.pdf Accessed 28/01/16 at 2.49pm

[13] Australian Immunisation Handbook http://www.health.gov.au/internet/immunise/publishing.nsf/content/7B28E87511E08905CA257D4D001DB1F8/$File/Aus-Imm-Handbook.pdf

[14] NJNP 6 (3)  The child meets the immunisation requirements if: (a)  a general practitioner has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook;

[15] Australian Technical Advisory Group on Immunisation, National Immunisation Committee, Advisory Committee on the Safety of Vaccines.

[16] A New Tax System (Family Assistance) Act 1999 S.6(3)(a).

[17] Salemi v Mackellar (No 2) [1977] HCA 26.

[18] AIH Table 2.1.4: False contraindications to vaccination

[19] No Jab, No Pay Challenge, By Danny Jovica accessed here http://para-legal.org.au/general/no-jab-no-payplay-challenge/ accessed 28/01/2016 at 9.47pm.

[20] Coco v R 612 [1994] HCA 15; (1994) 179 CLR 427

[21] ‘No Jab No Pay’ and other immunisation measures Accessed here http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/Vaccination on 27/01/2016 at 11.38am.

[22] Australian Immunisation Handbook 10th Edition Section 2.1.3 Valid Consent.

[23] United States v. Merck & Co., was brought by former Merck scientists alleging, “Merck fraudulently misled the government and omitted, concealed, and adulterated material information regarding the efficacy of its mumps vaccine in violation of the FCA [False Claims Act].”  The second, a class action suit, Chatom Primary Care v. Merck & Co., leans heavily on evidence provided by whistle-blower’s. The suit contends Merck fraudulently monopolized the mumps market.

[24] Tisdll v Webber (2001) 193 FCR 260 at [86]

[25] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.

[26] The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 HCA

[27] Ibid

[28] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231.

[29] Minister for Immigration v Li [2013] HCA 18.

[30] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

[31] Curragh Queensland Mines Lltd v Daniel (1992) 34 FCR 212 ALD 181.

[32] CRC Article 12. Children have the right to say what they think should happen when adults are making

decisions that affect them and to have their opinions taken into account.

[33] CRC Article 14.  Children have the right to think and believe what they want and to practise their religion,

as long as they are not stopping other people from enjoying their rights. Parents should guide children on these matters.

[34] CRC Article 16. Children have the right to privacy. The law should protect them from attacks against their

way of life, their good name, their family and their home.

[35] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841; 153 ALR 490

[36] [1977] HCA 26; (1977) 137 CLR 396 at [19]

[37] Green v Daniels (1977) HCA 18.

[38] ABT v Bond; Griffith University v Tang both test whether the decision is justiciable under the ADJR.

[39] Commonwealth of Australia Constitution Act

[40] Osmond v Public Service Commission HCA 1986.

[41] Craig v State of South Australia HCA 1995.

  • Like

This paper examines the legality and enforceability of the new Australian Government “No Jab, No Pay/Play” Legislation with the view of potential aspects to challenge the validity of this new law.

Starting with an examination of the legislation[1] and its intent, the Explanatory Memorandum states  "the Bill will ensure children fully meet immunisation requirements before their families can access child care benefit, child care rebate or the family tax benefit Part A supplement, [‘patient compulsion factor’]."

Brief Background

The Government expects the measure will result in savings of $508.3 million over five years. Exemptions will be granted only for medical reasons and Media reports suggest around 10,000 families will lose eligibility for payments in 2016–17[2].

The Budget measure is primarily targeted at conscientious objectorsthe target’ who allegedly make up 1.77% of the population who “should be” vaccinated, but will affect all those who receive child care subsidies or the FTB-A supplement and whose children’s vaccination records are not up-to-date.

To try and justify this the Government cites the overall rate of immunisation required to achieve herd immunity for measles at 95 per cent[3].

No Jab, No Pay but only a "Good Doctor" can certify?

In reading the explanatory memorandum of the new Social Services Legislation Amendment (No Jab, No Pay) Bill 2015, there is the following explanation for changing the definition of a doctor.

"The current definition of medical practitioner in subsection 3(1) of the Family Assistance Act would include a broader range of medical professionals than the definition of general practitioner in the Health Insurance Act 1973."

Looking at the original definition of "medical practitioner" in the Family Assistance Act it states:

"medical practitioner” means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.

The Government now no longer accepts this "kind" of doctor but only one as defined in the Health Insurance Act of 1973, in which there is no real clear definition of a "general practitioner" but there is reference to "Recognised Fellows of the Royal Australian College of General Practitioners"

It would appear that your doctor needs to be recognized by this "Royal Australian College of General Practitioners” ‘ARCGP Factor’ to be able to get a medical certificate of exemption and even then only by using FORM : IM011.1512 ‘Form Coercion’[4].

Then in the Federal Budget paper on this issue the government states:

There is also $26.4 million over four years to improve immunisation coverage rates, particularly in children and adolescents. The Government intends to:

  • Make an incentive payment to doctors ‘economic compulsion factor’ and other immunisation providers when they identify a child who is overdue for vaccination and call them in for a catch up.

  • Fund an awareness campaign to promote the NIP and address parents’ concerns regarding immunisation.

The above appears to coincide with an unprecedented advertising campaign by the Royal Australian College of General Practitioners labelling themselves as the “Good Doctors” which by implication suggests if your Doctor is not a member they are “bad doctors”[5].

So when it comes time for you to obtain an exemption certificate it would appear only the “Good Doctors” of the ARCGP Factor are able to certify that your child is exempt. In pursuit of this the Government has gone to the lengths of tying the hands of the “Good Doctors” of the ARCGP Factor by only accepting certification on a Government prescribed form [Form Coercion Factor] and only on reasons provided for in the Australian Immunisation Handbook[6]AIH Coercion Factorproduced by the Executive.

Even when it comes to allowable “contraindications” the Government through AIH coercion factor controls the Doctors decision making process and for instance even if you had a family history of adverse reactions to vaccines, this would NOT be a valid reason for exemption.

Appeals to the Secretary are possible but these are also limited to compliance “with any decision making principles set out in a legislative instrument made by the Minister”[7].

The Government is also introducing the ‘Australian School Vaccination Register[8]’ to monitor vaccination of all school children up to the age of 20 years.  Through these efforts to improve coverage rates, coupled with financial penalties for non-compliance with immunisation schedules, the Government believes that it is taking a ‘balanced “carrot and stick” approach’ to encouraging vaccination.

Civil Conscription as a basis for a legal Challenge – It’s the Vibe

It must be remembered that Section 51(xxiiiA) was added to the Constitution by the people of Australia through a referendum.

It is clear from the referendum debates that Australians, while accepting that social, pharmaceutical, dental and medical benefits provided by the Government were important for the collective good, they also recognised the importance of both the right to professional independence held by medical and dental practitioners, and the right to personal autonomy in a doctor-patient relationship. Section 51 (xxiiiA) guarded against the possibility of the reduction of these rights by the Federal Government[9].

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51

(xxiiiA)  the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

"The reference to "Civil Conscription" ...at the very least, it means that the Commonwealth cannot force doctors to provide medical and dental services or, probably, to provide them in a particular way"[10]

The General Practitioners[11] case held that federal legislation involving the practical, economic compulsion of medical practitioners would offend the prohibition, but suggested that a compulsion which merely relates to the manner in which non-conscripted work should be done would not breach s 51(xxiiiA).

In other words, a doctor who freely volunteers to perform a medical service does not become a conscript simply because federal legislation requires her or him to perform that service in a way that is safe or complies with other widely accepted professional standards[12].

Here the No Jab, No Pay goes beyond requiring a doctor to “perform a service in a way that is safe or complies with widely accepted professional standards.  There is a practical compulsion [ARCGP Factor] along with Form Compulsion together with an economic compulsion factor.

The Federal Court had earlier held in Selim[13]:

To the extent that there is a practical compulsion for general practitioners to participate in the Medicare Scheme, what is compelled is not service of the Commonwealth. Rather, it is that they conduct their practices with the care and skill that would be acceptable to the general body of practitioners. Such a condition is “clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA)”. The Act does not authorise civil conscription.

In contrast the No Jab, No Pay/Play legislation has a patient compulsion factor with the target forced to see a Doctor under the ARCGP Factor who is under an economic compulsion factor and forced form coercion under the AIH Factor, all of which distinguishes the current situation from Selim.

In determining the meaning of “any form of civil conscription”, French CJ and Gummow J endorsed remarks made by Aickin J in General Practitioners at 571:

“Civil conscription” is not a technical expression with a settled historical meaning. It is no doubt used by way of analogy to military conscription but the use of the words “any form of civil conscription” indicates to my mind an intention to give the term a wide rather than a narrow meaning, the precise extent of which cannot be determined in advance.

Yet, through their discussion of legislative history and the genesis of s 51(xxiiiA), French CJ and Gummow J ultimately support a construction which treats civil conscription as involving some form of legal or practical compulsion or coercion[14].

This construction extends to prohibiting any compulsion to carry out work or provide services for the Commonwealth itself, a statutory body which is created by the Parliament for the purposes of the Commonwealth, or a third party (whether private or governmental in nature) if at the direction of the Commonwealth (at [60]). In this case, the provisions of the Health Insurance Act challenged by Drs Wong and Selim were held only to condition the enjoyment of membership, rather than amounting to practical compulsion to perform a professional service (at [68]) and French CJ and Gummow J dismissed their appeal.

If we compare this to the No Jab, No Pay/Play Legislation, a significant difference is here the Doctors are in fact experiencing an economic compulsion factor and the form coercion along with AIH coercion factor to comply.

Kirby J used an interpretive approach in Wong[15] to hold that the words “medical and dental services” also include, of necessity, the patients who are the recipients of the provision of such services [patient compulsion factor].

Given this extended wider meaning (Stemming from French CJ, Gummow J and Kirby J above) it goes to reason that the prohibition on civil conscription extends to the patients as well,  adding to the AIH Coercion factor and economic compulsion factor we have the patient compulsion factor to consider in this equation.

Kirby continues (at [125], [126]-[127]):

The purpose of incorporating a prohibition on “civil conscription” in the provision of such services is thus to preserve such a contractual relationship between the provider and the patient, at least to the extent that each might wish their relationship to be governed by such a contract.

In this sense, the prohibition is expressed for purposes of protection, including a protection extending to the patient [prohibiting patient compulsion factor]. It is designed to ensure the continuance in Australia of the individual provision of such services, as against their provision, say, entirely by a government-employed (or government-controlled) healthcare profession.

... [T]he prohibition on “any form of civil conscription” is designed to protect patients from having the supply of “medical and dental services”, otherwise than by private contract, forced upon them without their consent.

[A] law pretending to be one to uphold the lawfulness and integrity of financial expenditures but which, instead, was properly to be characterised as one intruding into the individual relationship between providers of “medical and dental services” and recipient patients, might attract constitutional invalidation.

So might a law which was so detailed and intrusive as to impose coercive requirements and restrictions on the provider of such services, disproportionate to any legitimate federal interest, financial or otherwise.

Similarly, to enact laws imposing blanket rules affecting the individual relationship between providers of “medical and dental services” and their recipients, whether for reasons of cost minimisation or for the achievement of particular administrative outcomes in terms of medical or dental practice, could risk invalidation. They might do so either as falling outside the primary grant of legislative power or as falling within a prohibited “form” of “civil conscription”[16].

Here we have the government openly admitting that this no jab no play/pay legislation is “primarily targeted at conscientious objectors” [the target] despite their numbers being only 1.77% in order to save of $508.3 million over five years by bribing Doctors with $26.4 million over four years to improve immunisation coverage rates,  when the Government knows factors affecting vaccine immunisation coverage to achieve their 95% alleged herd immunity figure are more geographical and other factors[17].

The test for attracting the prohibition contained in s 51(xxiiiA) is whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of “medical and dental services” and the individual recipients of such services. It is this consensual feature of those arrangements which the head of power postulates will be undisturbed.

Most obviously, any such disturbance would happen in the unlikely event of an attempt by the Parliament to revive the nationalisation of the healthcare professions or to force their members into full-time or part-time work for the federal government or its agencies. It would also occur where a conclusion was reached that the true purpose of the law was not the regulation of the legality and financial integrity of such benefits but an unjustifiable intrusion into the conduct of medical and dental practice (AIH Coercion Factor), inconsistent with, or travelling significantly beyond, the ordinary standards generally observed by such professions in Australia[18].

The guarantee [against civil conscription], they held, would be breached by federal legislation requiring doctors to treat a particular class of patients [the target] or to perform a particular service [AIH Coercion Factor, Economic Compulsion Factor] (whether or not on behalf of the Commonwealth)[19].

Heydon J agreed with the other members of the High Court that civil conscription “is not limited to ideas about compelling doctors to work for the Commonwealth[20]:

While the legislation does not make medical practitioners servants of the Commonwealth, medical practitioners are engaged in the compulsory provision of services for third parties as directed by the Commonwealth.

The expression “civil conscription” extends to the very extensive intrusions effected by the….scheme into the relationships between doctor and patient through which doctors supply their services in circumstances where it is not in a practical sense possible for doctors to decline to provide the services [Form Coercion, AIH Coercion Factor].

One of the most detailed descriptions of the types of federal legislation prevented by the guarantee in s 51(xxiiiA) was provided by Aickin J in General Practitioners Society v Commonwealth (1980) 145 (2009) 17 JLM 196 201

CLR 532 at 565-566:

No doubt a legal obligation to perform particular medical or dental services [AIH Coercion Factor]…..would be clear example of civil conscription.

An equally clear example would be the prohibition of the performance of medical or dental services by particular qualified practitioners [ARCGP Factor].

Other forms of “practical compulsion” are easy enough to imagine, particularly those which impose economic pressure [economic compulsion factor] such that it would be unreasonable to suppose that it could be resisted.

The imposition of such pressure by legislation would be just as effective as legal compulsion, and would, like legal compulsion, be a form of civil conscription.

To regard such practical compulsion as outside the restriction placed on this legislative power would be to turn what was obviously intended as a constitutional prohibition into an empty formula, a hollow mockery of its constitutional purpose.

The High Court decision in the PSR[21] case supports the view that the civil conscription prohibition over federal legislation on medical and dental services in s 51(xxiiiA) of the federal Constitution provides (as then Opposition leader RG Menzies intended, on inserting it and as basic principles of contemporary constitutional interpretation confirm), a very broad guarantee against federal legislation practically compelling professionals to perform medical or dental services either for it or a private employer.

The provision thus operates in practical terms, according to the reasoning of all judges in the PSR case, as a guarantee that providers of Australian medical and dental services (a class of persons necessarily broader than registered medical practitioners and dentists) must be protected from federal legislation that erodes their choice of employment [ARCGP Factor]. As Kirby J most specifically identified, it ensures that providers of medical and dental services are entitled, if they wish, to become independent business people forming their own direct contracts with patients[22].

In BMA[23] the requirement of using the government prescription form [Form Coercion was discussed], irrespective of whether the drugs were being prescribed from the Formulary or not, amounted to a form of civil conscription.

Williams J said that whenever medical or dental 'services are provided whether as services exclusively or in the course of providing some other benefit, the law must not authorize any form of civil conscription of such services.[24]'

SCOPE OF LEGISLATIVE POWER UNDER 51(xxiiiA)

 Latham CJ delivered the leading judgment. His Honour first discussed the issue of the nature and scope of the legislative power granted to the Federal Parliament under the amendment.

He stated that as a consequence of the introduction of the words 'the provision of' at the beginning of s 51 (xxiiiA), the new power given to the Commonwealth 'relates only to provision of medical services by the Commonwealth, and not by ... doctors in private practice.[25]'

While the Commonwealth Parliament can validly make laws with respect to the provision of the benefits and for medical and dental services, it is not authorised to make laws 'providing for the complete control of medical services rendered by any person to any other person. [AIH Coercion Factor][26].'

Noting that physicians earn their living by practising medicine, his Honour commented that in determining whether there is compulsion [economic compulsion factor], the court should consider 'not only the bare legal provision but also the effect of that provision in relation to the class of persons [the target] to whom it is applied in the actual economic and other circumstances of that class[27].'

Latham CJ stressed the importance of the words 'any form' in the prohibition, and said that '[t]hey show that the Parliament intended that any service to which the limitation applied should be completely voluntary and not procured by compulsion [economic compulsion factor] of law[28].'

His Honour discussed the 'broad purposive construction' approach to interpretation, noting that: The object of conferring power upon the Commonwealth Parliament to make laws …under a scheme which should involve no compulsion of service by any person, which would leave every person, according to his own will, and not by reason of the exercise of the will of Parliament or of any other person, at liberty to take part in the execution of the scheme or to stand outside the scheme altogether, whether as doctor, as chemist or as patient[29].

With regard to patients, the constitutional objective was to safeguard the right to be free from governmental interference in making choices about one's health care, which John Stuart Mill regarded as a fundamental civil right[30].

Consequently each adult person of sound mind 'is the proper guardian of his own health, whether bodily, or mental or spiritual[31].'  The majority's view that the central area of power under s 51(xxiiiA) concerns the provision of medical and other services by the Commonwealth, not private medical practice, would suggest that the prohibition would apply to Commonwealth laws regulating private practice enacted under other heads of power, not only the amendment[32].

A wide distinction exists between on the one hand a regulation of the manner in which an incident of medical practice is carried out, if and when it is done, and on the other hand the compulsion to serve medically or to render medical services[.] 49 The latter is within the prohibition, but the former is not[33].

When it comes to the “No Jab, No Play/Pay” Legislation the question of law now is whether this is a “compulsion to serve medicinally or render medical services” and as discussed the multiple factors of AIH Coercion, Economic Compulsion, Form Coercion, the Target and  ARCGP Factor all add up to the only possible conclusion that this Legislation is prohibited constitutionally.

“The regulated incident of practice that is financial and administrative, rather than medical or dental, falls outside the prohibition[34].”

Again with the No Jab No Pay/Play we can distinguish it in that the regulated incident is medical in nature not administrative or financial regulation.

Consequently, according to Dixon J, unlike the compulsion to serve medically or to render medical services[35], the regulation of the manner in which financial and administrative incidents of medical practice are carried out - such as using government forms for writing out prescriptions - does not infringe the prohibition[36].

Once more we can distinguish the BMA case in that the Form Coercion here with the No Jab, No Pay is not merely a prescription form that a Doctor completes,  but this Form attached here as ANNEX ‘A’ is clearly restrictive and coercive especially when considered together with the economic compulsion factor involved and the AIH Coercion factor.

In General Practitioners[37] Gibbs J delivered the leading judgment. His Honour reiterated the principle that there is no explicit head of power under which the Federal Parliament can regulate private medical practice, in the sense of the physician-patient relationship.

"The Commonwealth's powers are limited to regulation of those financial and administrative incidents of practice that pertain to provision by the Commonwealth of medical and pharmaceutical benefits."

Once more we can distinguish this judgment and compare with the No Jab, No Pay where the Government may have exceeded their authority in reaching into the physician-patient relationship with their coercive (AIH) and economic compulsion factors.

Even Gibbs J who had a very narrow interpretation of civil conscription,

In his judgment defined the phrase 'civil conscription' as denoting 'the calling up of persons for compulsory service other than military service.' He argued that the term civil conscription encompassed any compulsion of law requiring that physicians should engage in a particular occupation, or perform particular work[38].

We can distinguish this with No Jab, No Pay in that the Physician is in fact through the economic compulsion factor along with the ARCGP Factor, AIH coercion Factor and Form Coercion compelled into performing particular work.

Gibbs J continues and states ‘However, this term does not extend to the requirement by the Commonwealth that they perform work in a particular way [ARCGP Factor, AIH coercion Factor and Form Coercion], if that requirement is merely incidental to, and intends to regulate the manner in which administrative and financial incidents of their medical practice are carried out, and did not oblige the physicians to perform a medical service[39].

In retrospect, it appears that the concerns of the majority in BMA, criticised by Gibbs J in General Practitioners, were well-founded. Once restraints imposed by the Constitution upon the legislative powers of the Commonwealth are attenuated through wide judicial interpretation of incidental powers, it becomes difficult for the courts to confine these amorphous powers so as to restrain the Commonwealth from going too far in a coercive direction[40].

The question here it seems is when we have a new provision in our constitution that was ratified by a referendum of the people, we should consider the debates and discussions at the time to discover the intentions of the addition of the words ‘civil conscription’ and ask the Court whether it is too late to now constrain the Commonwealth from going too far in this coercive direction as to make the will of the people mute and academic.

 Aickin J confirmed that the words 'but not so as to authorize any form of civil conscription' were designed to impose an important limitation on legislative power, and that this limitation extends to practical as well as legal compulsion[41].

His Honour pointed out that imposition by legislation of economic pressure [economic compulsion factor] that is difficult or unreasonable to resist would be just as effective as legal compulsion, and would, like legal compulsion, be a form of civil conscription. To regard such practical compulsion as outside the restriction placed on this legislative power would be to turn what was obviously intended as a constitutional prohibition into an empty formula, a hollow mockery of its constitutional purpose[42].

Murphy J stated that practical compulsion, as distinct from legal compulsion, is enough to satisfy the concept of 'civil conscription' in s 5 1(xxiiiA)[43].

The No Jab, No Pay Legislation is a direct attack on the Ethical tradition going back to the Hippocratic Corpus[44].  With the ARCGP Factor, AIH coercion Factor and Form Coercion requirements it goes far beyond the regulation of merely administrative or financial aspects of medical private practice[45], and strikes at the core of the therapeutic relationship.

It has been recognised by law that the medical practitioner's ethical duty of confidentiality is pivotal to the patient-doctor relationship[46].

The interest in maintaining professional duties of medical confidence, originally embodied in the Hippocratic Oath[47], is today regarded as an important public interest based upon the principle that it is in the interest of public health to encourage patients to truthfully disclose personal information without fear of embarrassment, stigma or incrimination that such disclosure may otherwise generate[48].

Here we have a Government that is trying to impose its will on both Doctors and Patients alike and directly interfere with their relationship.  A Conscientious Objection is no longer sufficient from the Patient, the Doctors medical independent opinion no longer carries weight [ARCGP Factor] he must do as he is told and through Form Coercion and AIH Coercion Factors force disclosure from the patient.  The Hippocratic Oath and Hippocratic Corpus are all but dead and buried with the only hope left is the High Court draws a line in the sand and says enough is enough, this is civil conscription and goes against the very heart of the rule of law and rules of natural justice.

The professional duty of confidentiality can be enforced through the law of equity[49], the common law[50], professional codes of ethics[51] and statutory provisions in a number of Australian States and Territories such as the Australian Consumer Laws which prohibit, inter alia, exclusive dealing, the offence of exclusive dealing is broadly defined under the Act as involving one person who trades with or provides services to another imposing restrictions on the other's freedom to choose with whom, or in what, to deal.

In the medical context, the proscription of exclusive dealing and the absolute prohibition of third line forcing means that a private physician commits an offence under the Act if he or she carries on practice in accordance with the principles of medical ethics. The doctor's primary ethical obligation is to further the well-being of patients, as expressed in the Latin maxim primum (or saltem) non nocere (above all, at least do no harm)[52], which encapsulates the fundamental principle of the Hippocratic tradition in medicine[53].

The more precise original Greek formulation of the Latin maxim 'help, or at least not to do harm'[54], focuses on the doctor's engagement to the provision of benefit, rather than to the mere avoidance of harm.

A country general practitioner who directs a drug-addicted patient to obtain methadone from the sole accredited pharmacy in the town commits an offence of third line forcing[55].

This kind of indirect economic pressure imposed by the legislation might come within the Definition of 'civil conscription' prohibited by s 51(xxiiiA) of the Commonwealth Constitution, as defined by Latham CJ in BMA[56] and reaffirmed by Barwick CJ, Murphy and Aickin JJ in General Practitioners.

The question that must be answered by the High Court of Australia is whether it is legally valid for the States and the Commonwealth to sterilise a constitutional guarantee by indirect legislative means.

In Georgiadis v Australian & Overseas Telecommunications Corporation, Mason CJ, Deane and Gaudron JJ observed that: It is often said in relation to constitutional guarantees and prohibitions that 'you cannot do indirectly what you are forbidden to do directly' ... That maxim is, in fact, an important guide to construction, indicating that guarantees and prohibitions are concerned with substance not form[57].

If the Constitution is to be amended by removal of the guarantee, then this should be done not through complex covert arrangements, but by putting the question openly to the people in a referendum.

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NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.

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Footnotes:

[1] Social Services Legislation Amendment (No Jab, No Pay) Act 2015

[2] Australian Government Budget 2015

[3] Hansard : Public+Health+and+Wellbeing+Amendment+No+Jab,+No+Play+Bill+2015

[4] FORM : IM011.1512 found here http://www.humanservices.gov.au/spw/health-professionals/forms/resources/im011-1512en.pdf accessed 22/12/2015 at [1.17pm].

[5] Youtube Video of Advertising Campaign https://m.youtube.com/watch?autoplay=1&v=VD_xh428Fq0 accessed 29/12/2015 at 10.11am.

[6] Australian Immunisation Handbook 10th Edition accessed here http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home on 29/12/2015 at [10.14am].

[7] Social Services Legislation Amendment (No Jab, No Pay) Bill 2015 - C2015B00161, Under  A New Tax System (Family Assistance) Act 1999, Secretary’s decision (7); Accessed here https://www.comlaw.gov.au/Details/C2015B00161 on 29/12/2015 at [10.20am].

[8] Budget Review - ‘No Jab No Pay’ and other immunisation measures Para.9 accessed here http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/Vaccination on 29/12/2015 at [10.24am]

[9] DEVALUATION OF A CONSTITUTIONAL GUARANTEE: THE HISTORY OF SECTION 51(xxiiiA) OF THE

COMMONWEALTH CONSTITUTION by DANUTA MENDELSON.

[10] The Australian Annotated Constitution, Constitutional Centenary Foundation, Third Edition 2000, Cheryl Saunders.

[11] General Practitioners Society v Commonwealth (1980) 145 CLR 532

[12] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 197

[13] Selim v PSR Committee (2008) 167 FCR 61 at [50]

[14][14] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 198

[15] Wong v Commonwealth of Australia [2009] HCA 3 at [124]

[16] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 200

[17] Victorian Council for Civil Liberties - Policy on “No Jab, No Play” provisions in Victoria accessed here https://libertyvictoria.org.au/sites/default/files/No-jab-no-play-vic-bill-policy-final20151113_0.pdf on 22/12/2015 at [12.25pm].

[18] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 200

[19] Wong v Commonwealth of Australia [2009] HCA 3 at [209]

[20] Ibid at [278]

[21] Selim v PSR Committee (2008) 167 FCR 61

[22] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 203

[23] British Medical Association v Commonwealth [1949] HCA 44.

[24] Ibid at [287].

[25] Ibid at [247].

[26] Ibid at [242].

[27] Ibid at [253].

[28] Ibid at [250].

[29] Ibid at [253].

[30] In his influential essay On Liberty (1859) reproduced by Gerard Dworkin (ed.) Morality, Harm and the Law (1994) 9

[31] Ibid 11

[32] Cf McMillan, ‘The Constitutional Power of the Commonwealth in Public Health’ above n.9 120

[33] British Medical Association v Commonwealth [1949] HCA 44 at [278]

[34] Melbourne University Law Review Vol 23 Page 318 of Devaluation of a Constitutional Guarantee by Danuta Mendelson (1999).

[35] Ibid at [262]

[36] Ibid at [278]

[37] General Practitioners (1980) 145 CLR 532, 560 (Gibbs J).

[38] Gibbs J agreed with the majority view in BMA that the effect of the expression 'any form of civil conscription' is not limited to compulsory service which is performed full-time, or regularly, but is intended to prevent any form of compulsion to perform particular services: ibid 556.

[39] Gibbs J determined that the constitutional prohibition applied solely to a compulsory service of a medical or dental kind: ibid 557.

[40] Devaluation of a Constitutional Guarantee by Danuta Mendelson (1999) at Page 329.

[41] General Practitioners (1980) 145 CLR 532, 556.

[42] Ibid at [556].

[43] Ibid at [565]

[44] Corpus Hippocraticum refers to the collection of about 60 medical treatises, a set of aphorisms, and writings on ethics and professional etiquette included in the Oath, the Canon, On Decorum and the Precepts. Some of the treatises and aphorisms were written by Hippocrates himself (born c 460 BCE). However, the Corpus as a whole is the work of a large number of medical writers of ancient Greece compiled between 430 and 300 BCE, with later interpolations. The Corpus can be found in W H S Jones (trans), Hippocrates (4 vols, 1923-31), while selected works within it are available from the internet at <http://classics.mit.edu/cgi-bin/search.cgi>.

[45] In General Practitioners (1980) 145 CLR 532, 546, Gibbs J acknowledged that the Federal Parliament has no general power to regulate private medical practice, in the sense of the physician-patient relationship. The Commonwealth's powers are limited to regulation of those financial and administrative incidents of practice that pertain to provision of Commonwealth medical and pharmaceutical benefits; for instance, having to write prescriptions on appropriate forms, and sign undertakings promising compliance with the provisions of the Health Insurance Act 1973 (Cth) and of the regulations made thereunder.

[46] Within the doctor-patient relationship, the patient has an obligation to disclose all factors which may be relevant to the diagnosis, prognosis and treatment of his or her complaint or condition, and the medical practitioner has a concomitant responsibility to exercise professional skill. According to Dawson and Toohey JJ in Breen v Williams (1996) 186 CLR 71, 93: A doctor is bound to exercise reasonable skill and care in treating and advising a patient, but in doing so is acting, not as a representative of the patient, but simply in the exercise of his or her professional responsibilities. No doubt the patient places trust and confidence in the doctor, but it is not because the doctor acts on behalf of the patient; it is because the patient is entitled to expect the observance of professional standards by the doctor in matters of treatment and advice and is afforded remedies in contract and tort if those standards are not observed and the patient suffers damage.

[47] The penultimate clause of the Hippocratic Oath imposes upon each medical practitioner the following injunction: 'What I see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about': Ludwig Edelstein, Ancient Medicine (1967) 6.

[48] Rose J explained the public interest principle of medical confidentiality in X v Y [1988] 2 All ER 648, 653 in the following way: In the long run preservation of confidentiality is the only way of securing public health. Otherwise doctors will be discredited as a source of education, for future individual patients 'will not come forward if doctors are going to squeal on them'. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care. In this case, Rose J granted a permanent injunction restraining a reporter of a national newspaper from publishing any information which would disclose the identity of two medical practitioners who were treated in hospital for AIDS. The reporter obtained the confidential information from an employee of the hospital. For further discussion of the medical duty of confidentiality, see: Danuta Mendelson, "'Mr Cruel" and the Medical Duty of Confidentiality' (1993) I Journal of Law and Medicine 120; Alister Abadee, 'The Medical Duty of Confidentiality and Prospective Duty of Disclosure: Can They Co-Exist?' (1995) 3 Journal of Law and Medicine 75.

[49] Stephens v Avery [1988] 2 All ER 477, 482 (Lord Browne-Wilkinson V-C). In Breen v Williams(1996) 186 CLR 71, 107-8 Gaudron and McHugh JJ observed that: Patients ... invariably confide intimate personal details about themselves to their doctors. In some circumstances, the dependency of the patient or the provision of confidential information may make the relationship between a doctor and patient fiduciary in nature. But that does not mean that their relationship would be fiduciary for all purposes. As Mason J pointed out in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 98 a person may stand in a fiduciary relationship to another for one purpose but not for others.

[50] Furniss v Fitchett [1958] NZLR 396; Wv Egdell [199012 WLR 471, 488-9 (Bingham U).

[51] Medical boards throughout Australia have tended to interpret breach of confidentiality strictly, and regard it as misconduct in a professional respect: S Barnes, 'Breach of Confidentiality: A Case Study' (1989) 1 Australian Medicine 337.

[52] The Latin version probably comes from Claudius Galen, c 130-c 200 AD, a Greek physician

[53] Ruth Faden and Tom Beauchamp, A History and Theory of Informed Consent (1986) 10.

[54] Edelstein, above n 144, 14, citing Epidemiae I, [XI], which can be found in Jones (trans), above n 139, vol 1, 164, as well as from the intemet at <http://classics.mit.edu/Hippocrates/epidemics. 1.i.html>.

[55] DEVALUATION OF A CONSTITUTIONAL GUARANTEE: THE HISTORY OF SECTION 51(xxiiiA) OF THE COMMONWEALTH CONSTITUTION DANUTA MENDELSON

[56] (1949) 79 CLR 201, 249, 253.

[57] Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297, 305.

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Corona Virus, Vaccination, Bio-Security & Public Health Law

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Normally this wouldn’t get through ethic approval in Australia, but now this is acceptable under public health emergency laws? Is there legal any way of getting scrutiny of current decisions being made?

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Peter Dutton pushes for overseas police to tap Australians’ phones

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My Employee Cannot Return to Australia Because of Coronavirus. What Can I Do?

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If your employees are restricted from returning to Australia because of the current outbreak of coronavirus (COVID-19), your business may be affected. If your employee can only perform their role from Australia, you may face the challenge of filling their position in their absence. This article sets out how to manage employees who cannot return to Australia due to coronavirus and whether you can quarantine employees returning from overseas.

 

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Australians will be 'detained' if they refuse to comply with COVID-19 measures

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WA Police has flagged possible legal action against a company which provided new-generation speed cameras that led to dozens of incorrect speeding fines while deployed on state roads.

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Section 18 of the ACL does not of itself prevent a competitor from copying the product of a rival.

A manufacturer does not contravene s 18 of the ACL merely by copying an existing product, provided that it does not represent that its product is the original.

No representation of this kind will be made provided the manufacturer has adopted an adequate branding strategy to identify the product as its own.

Thus, the mere copying of another’s product will not of itself mislead consumers, provided that the imitation product is sufficiently differentiated from the original through pricing, branding and branding positioning, promotional strategies and retail supply:


Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd
(1981) 149 CLR191;

Dr Martens Australia Pty Ltd v Rivers (Aust) Pty Ltd [2000] ATPR ¶41-734;

Moroccanoil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823.

In fact there are businesses out there to help you get it right (and this is not an endorsement of that business, it just serves as example, I have never had contact with them nor examined their products in any way).


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Conduct that contravenes s.18 of the Australian Consumer Law's (which prohibit misleading and deceptive conduct) may give rise to a private proceeding commenced by individual consumers who are seeking an award of damages, compensation (s.236) and refunds (s.237).



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For instance you have a contract with FARM A to haul their organic tomatoes every year to market, but this year the neighboring farms pesticides affect the crop of FARM A and they lose their organic certification and therefore experience economic losses.

FARM A can sue in negligence but can the truck driver?

Indeterminacy of liability becomes the issue, meaning FARM B does not know what contracts FARM A has with whom and for how much for there to be a direct liability to the truck driver what is required is knowledge.   Perre v Appand (1999) 198 CLR 180.

If however the truck driver had put neighboring properties on notice that they had the contract with FARM A and perhaps offered their trucking services to neighboring properties on the basis of economies of scale (since you are in the area anyway) then even if FARM B did not accept your services they were aware of them and that you would be affected if they did something negligently that caused damage to FARM A.  Marsh v Baxter (2015) WASCA 169.





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NSW police treated millions in damages for misconduct as ‘cost of doing business’

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Canterbury Bankstown Council successfully defended a claim by a plaintiff pedestrian who suffered a fall as a result of a crack which formed around a Telstra pit. The plaintiff was unable to establish the risk of harm was not insignificant, and the Court also explored the protections offered to roads authorities under section 45 of the Civil Liability Act 2002 (NSW) (‘CLA’).

In Issue

The key issues for determination by the Court were:

  1. whether the defendant Council breached its duty of care to the plaintiff by failing to repair a crack in the footpath; and

  2. even if negligence was established, did the protections offered by section 45 of the CLA apply?

The Background

On 27 February 2016, the plaintiff was walking on a footpath, accompanied by her son, when she tripped on a crack which had formed around a Telstra pit.

The plaintiff alleged the defendant Council owed her a duty of care to ensure the pit and its surroundings were maintained in such a matter as to not create a hazard for pedestrians walking in the area including the plaintiff.

The Decision at Trial

His Honour found in favour of the defendant, concluding that “the risk of harm was not only not significant, but insignificant”. That finding was based on the plaintiff’s evidence concerning the fall, the photograph of the crack and the distinct lack of expert evidence about the physical properties of the crack.

Notwithstanding the finding that the Council was not negligent, his Honour took the opportunity to review section 45 of the CLA, which provides special non-feasance protection for “roads authorities”, such as the Council. Section 45 provides that a roads authority cannot be found liable for harm arising out of a failure to carry out road works, or to consider carrying out road works, unless at the time of the alleged failure the roads authority had actual knowledge of the particular risk that materialised.

His Honour found that even if negligence had been established, the Council had no actual knowledge of the particular risk of harm, and therefore the immunity conferred by section 45 CLA applied. His Honour further held that even if the crack was a significant risk, the immunity would still apply, as section 45 CLA covers a failure to inspect.

Implications for you

The decision reinforces the protections that section 45 CLA offers roads authorities, including Councils, in claims that arise out of injuries sustained on public footpaths and roads..

El-Kak v Canterbury-Bankstown Council [2019] NSWDC 768


Source : Barry.Nilsson. Lawyers - Mitch King

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CASE NOTE

Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega

This case involved the tort of injurious falsehood with an application for an interlocutory injunction to prevent further publications pending the final hearing on the matter. The Defendants are 2GB radio and Ray Hadley their broadcaster who made a number of representations about the plaintiff’s plumbing business on his radio show and the issue is whether there was a prima facie case that those representations were made maliciously and/or with a reckless indifference to the truth or without belief in the truth of the allegations. With an absence of evidence to support the allegations made by the defendants a prima facie case was established with the balance of convenience test strongly favouring the plaintiff.

Facts


The plaintiff for the last 30 years has operated a service company primarily providing rapid response plumbing, electrical and air conditioning services in the Greater Sydney region employing over 80 staff1. The Defendants radio station and website (where they post articles and audio snippets) published materials over 4 consecutive days starting 29th of October 2019 based on consumer complaints, however fell into trouble when they added their own commentary and opinions which they could not support on the available evidence.

Issues and Arguments

In the tort of malicious falsehood and the question of whether to grant an interlocutory injunction, the plaintiff must establish that the defendants made a false statement about their business and that it was published maliciously.

The defendants made no submission on the question of falsity, however instead contested on the basis that there was no disclosed malice.

 


Therefore, much of the case was in relation to what constituted malice. It was argued that the defendants knowledge that what they said was false is ordinarily conclusive evidence of malice, the recklessness in the published comments amounted to wilful blindness on the part of the defendants which the law equates with knowledge, however the plaintiff needed to prove more than just that the defendant could not have had a positive belief in the truth of what they said the plaintiff needed to prove it was actuated by an improper motive for there to be malice (Omega at [15-17]).

To prove malice the intention of the defendants must be examined and whether there was a direct or indirect motive to cause injury to the plaintiff, however malice may exist without an actual intention to injure and must often be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed” and the knowledge of falsity is “almost conclusive evidence” that the defendant had some improper motive in publishing the material and that it actuated the publication (Omega at [18]).

 

In response to a letter of demand at [29], solicitors for the defendants asserted that the evidence did not disclose any prima facie case establishing malice. They rested on the argument that the material broadcast was substantially accurate and based on information obtained from several sources. Despite this they indicated a willingness to take down and not republish the broadcast and articles (Omega at [32]).

As the argument was about what constituted malice, the plaintiff argued that the broadcasts and publications went beyond merely publishing a news story but when words like “bloke who duds the elderly” and “charging them 10, 20 and 30 times more than a job's worth” were used it went beyond the facts and evinced malice. The plaintiff argued that many comments were made without basis or were knowingly false such as the statement that the plaintiff was not a member of the Master Plumbers Association, coupled with this was the extrapolation of a few complaints to assert general wrongdoing (Omega at [33]).

The Defence

The defence argued at [33] that revisiting the issue over a number of days did not evince malice as it was not with an intent to injure and that an enthusiastic belief in what is being published is insufficient to amount to malice, moreover they argued as the company was given opportunity to respond to allegations in such circumstances an inference of malice could not be drawn in contradistinction to situations where there was knowledge of falsity, wilful blindness, or even reckless indifference.

The defence continued at [34-37] arguing that making comments with evidence of complaints could not constitute malice nor was it reckless to assert there were problems with the company, even their expression of disgust in the company was not evidence of malice and they had no evidence to suggest the complaints were false to imply reckless indifference. They argued that their legitimate desire to stop the misfeasance by a company was not with a motive of ruining the company, but one of protecting consumers, they also argued against an injunction on the basis it would prevent them and other media outlets reporting on the outcome of the Fair Trading Investigation.

The Courts analysis at [40] commenced with the premise that the test on an interlocutory injunction is whether there is a prima facie an arguable case that the publications were made maliciously. The difficulty was that the plaintiff at this early pre-trial stage did not establish that the defendant published material they knew to be false, therefore with the case resting on the question of malice, it was insufficient for there to be just recklessness, it would need to be wilful blindness citing Gross (Omega at [52]).

The Court then considered at [41] that malice could be inferred, if, without evidence to support a positive belief in the truth, by the comments “grossness and falsity of the assertions and the cavalier way in which they were expressed” citing Joyce v Sengupta [1993] 1 All ER 897 at 905-6.

The Court then went on at [42-51] with 5 examples of malice it had identified, starting with the statement
“to the extent that the Master Plumbers Association give them a wide berth” in that it was false to imply that membership of the association was linked to ripping off customers and prima facie amounted to malice.


Secondly, the claim that the company went by a number of names was “done to dupe people”, there was no complaint or evidence to support that position and “in that sense the assertion that the various names were used by the plaintiff to dupe people was made without any belief in the truth of the statement”.



Thirdly the Court equated puffery with malice, where it found that despite one listener being quoted 10 times the price of another plumber, the statement that the public were dealing with a person “who duds the elderly and charges them 10, 20 and 30 times more than a jobs worth” was again unsupported by any belief in its truth or evidence, with the Court distinguishing a quote (which was not accepted) from being actually invoiced an amount.



Fourthly the allegation that the company was targeting “affluent immigration communities” and “immigrant families in wealthy areas who don’t have English as their first language” along with targeting elderly was not supported by any evidence to the point that there was no evidence to even consider where such a claim originated.

Fifthly claims of deposits being paid twice and statements that the plaintiff to give disgruntled customers all their money back “because you did bloody nothing” were again unsupported by any evidence to suggest that the company had taken money and did nothing and that “they were thieves”. Without evidence to support those statements it was held they were made without a positive belief in their truth and absent that positive belief it would be malice, relying on Brereton J in AMI at [32]:

Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”.

HELD:

The specific portions of the broadcast transcripts the Court highlighted became the foundation for the determination of malice due to being unsupported by facts and ipso facto an injurious falsehood.


On the question of an injunction the Court applied the “balance of convenience” test holding that free speech is outweighed in cases of injurious falsehood where there is no dispute concerning the prima facie case on falsity, and where it is found a prima facie case exists in relation to malice, the balance of convenience strongly favours the plaintiff, with the Court deciding to frame the injunction in a way that would allow publication of findings by Fair Trading.

In conclusion, had the radio station stuck with the facts that their listeners were alleging and resisted the urge to ad-lib with commentary, commentary that they could not substantiate or support with the facts, they might not be facing this situation as the case rested on the issue of malice, malice that was inferred due to the shock-jock style radio broadcasts that the station is known for that sensationalise events with grossness and falsity in a cavalier way to bring in the ratings.



1 Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega’, 2.

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In what would later be described by the full bench of the Family Court as an "affront to justice", a man was sentenced to twelve months jail after walking into a property settlement hearing.

Will, whose name cannot be used for legal reasons, was unable to provide all the documents he had been ordered to produce and was sentenced for contempt of court.

He had no criminal history, but the judge told Will during the hearing he hoped "he brought his toothbrush."

Only three days into his sentence at the Brisbane watch house, Will began to think he wouldn't survive behind bars.

"It is the worst possible place on earth," he told Background Briefing.

"Being fed through a hatch with my room-mate who is an ice and heroin addict, who was s---ing and vomiting and we have no toilet paper and realising that there's no way I'm getting out."

Will said on that third night he reached the point where he considered ending his life. He decided against it when he heard a distant radio playing George Ezra's Shotgun, which was his daughter's favourite song.

After seven days in custody, including three nights in maximum security prison, Will's conviction was overturned.

His conviction was "a gross miscarriage of justice", according to the full bench of the Family Court.

The court found the judge in Will's case took on the role of prosecutor, prejudged Will's case and decided from the outset Will would be going to jail.

That judge, Salvatore Vasta, has had a string of cases overturned on the grounds of procedural fairness.

For the first time, three people who were on the end of Judge Vasta's decisions have spoken to Background Briefing about their experience.

Who is Judge Salvatore Vasta?

As a prosecutor Mr Vasta carved a reputation for himself by putting some of Queensland's worst criminals behind bars.

Appointed as a judge of the Federal Circuit Court by then-Attorney General George Brandis QC in 2015, the Law Council of Australia has officially complained about his inappropriate behaviour in a number of cases in recent years.

Nine of Judge Vasta's decisions were heavily criticised by appeal court judges before being overturned on appeal between May 2018 and December 2019.

Their findings about Judge Vasta ranged from him making gross errors in law, to denying procedural fairness and intimidating people who come to court without a lawyer.

The former President of the Law Council of Australia, Arthur Moses SC, has written to Chief Judge William Alstergen about Judge Vasta's conduct which has been criticised by appeal courts, including intimidating some unrepresented litigants.

"The conduct of Judge Vasta here — and I'll be plain about it — were examples of bullying behaviour in a courtroom," he said.

"I certainly think the conduct that has been engaged in by the judge is conduct that would constitute misconduct by the judicial officer."

In response to the Law Council's concerns Chief Judge Alstergren announced that Judge Vasta would receive mentoring.

How do you end up in jail over a property settlement case?

Will is planning to sue Judge Vasta for compensation over the decision to jail him in 2018, according to his lawyer Lisa Flynn from Shine Lawyers.

Lawsuits against judges are extremely rare, the doctrine of judicial immunity usually prevents civil action against judges.

Ms Flynn said they will need to prove exceptional circumstances, "showing that Judge Vasta was acting outside of his jurisdiction when he made the order to imprison our client."

When Will attended court to settle a property dispute with his ex-wife in December 2018, Will was relatively at ease.

"I just had faith in the legal system that I could go through this process and at the end of the day the referee would decide what was fair. And I was happy with that," he said.

Will had been ordered to bring documents to court to show what he owns, how much he earns, and what companies he had investments in, so the court could decide how to divide the assets equally.

But he said he couldn't access some of the documents in time, as they were held by third parties.

Judge Vasta sentenced him to 12 months for contempt of court.

The full bench of the Family Court overturned the sentence on appeal.

"It is difficult to envisage a more profound or disturbing example of pre-judgement and denial of procedural fairness," the court said.

Dispute over a scholarship application leads to sentence

Another case involved single working mother Sam, whose real name cannot be used for legal reasons, who Judge Vasta convicted of contempt of court for going against parenting orders by allowing her son to audition for a music scholarship at a school.

Sam's ex-husband told the court he believed the scholarship application was a breach of their parenting agreement, but she insisted the application was not a breach and she was only trying to provide opportunities for the child.

During the hearing, Judge Vasta told Sam her arguments were "pure rubbish" and the application to enrol her son was "an act of spite by [Sam] to the father".

Judge Vasta sentenced Sam to seven days in jail, wholly suspended for two years.

Sam told Background Briefing the experience had made her doubt the integrity of our justice system.

"I said to my children that if you don't do anything wrong, you've got nothing to fear. I don't actually believe that anymore," she said.

The conviction was later overturned by the full Family Court, with the three appeal judges agreeing Sam never contravened court orders and that she was, in fact, acting in the best interests of her children.

The judges also said that Judge Vasta made substantial errors in law, reasons for his judgement were plainly inadequate and the sentencing was entirely arbitrary. They criticised his, at times, intimidating manner and disparaging comment he made about Sam.

Federal Circuit Court appearance in a case against Fair Work Ombudsman leads to jail

Cairns tour operator Leigh Jorgensen was convicted of contempt of court and sentenced to ten days in jail, after being found to have breached a freezing order on his companies' bank accounts.

"You're scared right, you're very vulnerable," he said.

"I guess I was petrified."

Mr Jorgensen spent two days in jail, then managed to get out until his appeal could be heard but he had to surrender his passport and check in with Cairns police twice a week until his appeal was concluded.

In July 2019, the Federal Court overturned the conviction, saying Judge Vasta was frequently critical, dismissive, disparaging or sarcastic towards Mr Jorgensen during the hearing.

The full bench also remarked that Mr Jorgensen's behaviour before Judge Vasta was not impressive, saying that he appeared evasive at times, or unwilling to answer questions clearly.

It said that Judge Vasta's excessive interventions were "an egregious departure from the role of judge."


In a statement, a spokeswoman from the Federal Circuit Court said Judge Vasta has had an "extremely heavy workload" since his appointment in 2015.

"His Honour has delivered 1306 judgments," it said.

Judge Vasta is currently receiving mentoring from a retired judge to assist and support him to fulfil his duties.

He declined to comment on this story when contacted by the ABC.

Who watches the judges?

While he was president of the Law Council, Mr Moses questioned whether workload is an acceptable reason for judges providing a lack of procedural fairness or engaging in inappropriate conduct.

"It may be an explanation but then raises the question, is that person somebody who is incapable of holding office because they're unable to deal with the stress of the job? So is it an incapacity issue?" Mr Moses said.

To maintain the independence of the judiciary, judges in Australia can't be sanctioned and removing a judge from office usually takes an act of Parliament.

The only Australian judge since federation to be removed in this way is Angelo Vasta, Salvatore Vasta's father. His removal was unrelated to his judicial work.

Mr Moses stopped short of saying Judge Vasta's behaviour warrants removal from office, but believes judges need to be held to a higher standard.

He has called for an overhaul of judicial oversight generally, including the introduction of a federal judicial commission.

An independent body with powers to investigate complaints against judges, according to Mr Moses, should also be able to impose sanctions when necessary.

"And when that occurs, then there should be the ability to investigate these matters carefully and independently."

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Canberra has become the first city in Australia to legalise cannabis for personal use. 

Canberrans over 18 will be allowed to possess 50g of cannabis and grow two plants. 

A household can only have four plants total and hydroponic growing will remain illegal, The ABC reported

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