No Jab, No Pay/Play Challenge.



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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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.



23 thoughts on “No Jab, No Pay/Play Challenge.

  1. I have no legal background and maybe that’s a good thing, since I’m not preoccupied with legal precedence. It seems to me that the govt wants parental consent and is prepared to offer financial incentives to that end. The ethics of the medical profession is tied to “informed consent”, quite a different (but similar) thing. I don’t see how parents (or doctors for that matter) anywhere in the world can give (or expect) informed consent when the dealings of the avenue of compensation in terms of injury (The Vaccine Court) are not available for public scrutiny. That would be like having just a diet of Fox News and no ABC. It appears that the only way to access identity redacted transcripts of cases appearing before the Vaccine Court is through FOI, although I could be wrong about even that. So we have a situation where parents cannot possibly give ‘informed consent’ and doctors very likely are equally pushing an industry generated view, expecting parents to roll over and surrender to the powers that be. It’s clear that the firewalls between corporations and users have failed on the govmt level, the medical provider level and the final legitimate firewall standing is the parent. Perhaps we should collectively demand the answers before making important decisions like this one on behalf of the next generation. My 2c.

  2. could you write out a simple legal form that parents could take to their doctors, when they ask for medical exemptions. If the doctor refuses, he would need to sign a form saying he accepts full responsibility for anything bad that occurs because of the vaccine. I would guarantee the doctor will refuse to sign, therefore he/she would have no choice but to give medical exemptions.
    The government is trying to shift the blame of adverse reactions, from vaccine manufacturers, to the doctors, and doctors are not so silly as to accept being sued, surely?

    1. Angela the issue here is not about the Doctor having “no choice but to give the medical exemptions”; in fact quite the opposite if you read the paper above carefully you will note the Doctors hands are tied and has virtually “no choice” but to refuse to give you a medical exemption. Which is why the paper examines the plausibility of this being civil conscription which is prohibited by the constitution.

      Having said that I am working on a solution which unlike the above that involves a constitutional challenge, it appears there may be a way in Administrative Law where the individual can take action themselves in a relatively simple way to be able to challenge the legislation, but I will not be ready to publish that at least for another 4 weeks.

  3. Thanks to the Australian Paralegal Foundation. Now, how does one go about mounting a challenge to the legislation and do any of us have deep enough pockets? I might say here that I have no young children or grandchildren as yet but I feel deeply that the No Jab, No Pay is an abomination with consequences for our society going way beyond the stated intention of this law. I do like the idea of Angela Eisenhauer’s, to present the doctor with a form to sign in which he accepts responsibility for any adverse health outcomes resulting from the vaccination procedure. After all they pay enormous sums in professional indemnity insurance each year for just such events. Given the “first, do no harm” part of the Hippocratic Oath, one wonders how on earth they square their consciences when it comes to delivering vaccines to people who are only there because they would be financially disadvantaged if they refused. If that’s not force I don’t know what is. If there’s a bad reaction I suppose you just do what it is reported the medical profession in America does: you tell the patient that their vaccine reaction isn’t a vaccine reaction. Problem solved!

    1. The answer to your question is somewhat similar to the answer provided to Angela Eisenhauer below and lays in Administrative Law which can give an individual the ability to challenge the decision, a paper on that along with a template should be ready in the coming weeks.

  4. Has any body looked at this piece of Criminal Legislation (The Government Can not Break the Law and the Current Legislation matches perfectly with Extortion) It a very easy read all has to do with Coercion and detriment both physically and Financially .

    Why is everyone skirting around the obvious parliamentary privilege does not give them the right to break the law

    CRIMINAL CODE – SECT 415
    415 Extortion

    (1) A person (the demander) who, without reasonable cause, makes a demand

    (a) with intent to

    (i) gain a benefit for any person (whether or not the demander); or

    (ii) cause a detriment to any person other than the demander; and

    (b) with a threat to cause a detriment to any person other than the demander;

    commits a crime.

    Maximum penalty

    (a) if carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offender life imprisonment; or

    (b) if carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise) life imprisonment; or

    (c) otherwise 14 years imprisonment.

    (2) It is immaterial that

    (a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or

    (b) the threat does not specify the detriment to be caused; or

    (c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or

    Example

    a threat to cause a detriment to the public or any members of the public

    (d) the detriment is to be caused by someone other than the demander.

    (3) A reference to making a demand includes causing someone to receive a demand.

    (4) A reference to a threat to cause a detriment to any person other than the demander includes a statement that gives rise to a threat of detriment to the other person.

    (5) A prosecution for an offence in which it is intended to rely on a circumstance of aggravation mentioned in paragraph (a) or (b) of the penalty can not be commenced without the consent of the Attorney-General.

    (6) In this section

    threat includes a statement that may reasonably be interpreted as a threat.

    1. Vince this would not apply. The first line states “without reasonable cause” in the first instance and secondly No Jab No Pay is Legislation authorized by Parliament for the Government to implement. It’s good you are thinking and looking at possibilities but this is not one.

  5. Thankyou! Amazing work! Just when I read it, I picked up it says ‘it goes to reason’, should it be ‘stands to reason’, not ‘goes to reason’? Here….

    ……”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.”

    Anything I could do to help I will. I am moving my family interstate so my son can enrol in childcare and go to kinder. Taking my four children from their home and moving interstate because we’ve been backed into a corner by this legislation. This government is horrifying. Thankyou.

  6. The internationally recognized right of Informed Consent must be given proper consideration in this matter. I’ve written a general brief on the issue here: http://drrimatruthreports.com/a-brief-for-informed-consent/ which covers the Nuremberg Code and civilized nations’ obligations there under.

    The “no jab no pay” policy directly contravenes the UN Convention on Bioethics and Australia’s international obligations. It is an “unconstitutional imposition” — a government may not condition the receipt of a public benefit on the surrender of a human right, in this case, to Informed Consent.

    Let the Australian PM here your voice on this matter here: http://tinyurl.;com/NoForcedVaxAustralis

  7. According to the Immunise Australia Program, (as at December 2015) there were 30.092 recorded vaccination conscientious objections in Australia and 6.441 in Victoria. These people should continue to have a CHOICE if this country should continue have a ‘Democratic Government’. This is really a matter of protecting the parents right to choose (or not) a medical treatment for their children without being harassed with social benefits denial or punished by having their kids excluded from preschools.

    Hence, those who think it’s “OK” to give the state the right to forced vaccination are basically giving the government the power to choose medical treatments for their children – in their place. One day, they might wake up not being able to choose medical treatments for themselves neither if the “Representatives Of The People” continue to pa$$ those Unlawful and Unconstitutional federal/state laws like “No Jab, No Pay”/”No Jab, No Play”. Eventually, next would be “No Jab, No School”, “No Jab, No Social Security” and “No Jab, No Job”, perhaps? .

    Maybe those of us (who object the vaccine scheme/scam) should start a class action together? Would that qualify? I see no other way since going alone to the Victorian Civil and Administrative Tribunal based on the ‘Victorian Discrimination Law’ or claiming the ‘Equal Opportunity Act’ Protected Attributes (education access) at the Victorian Equal Opportunity and Human Rights Commission would probably bear no fruits – since in Australia, Human Rights are being explicitly ignored for so long (in so many other areas, like the immigration/refugee’s, etc.) that it wouldn’t make any difference but cost us lots of resource$, time and further drain our energies.

    We are being affected financially, socially, emotionally and having our children excluded from the (educational) SYSTEM – THAT WE ALSO PAY FOR with our taxes, like anyone else who consent to vaccines. So, to just complain in forums online won’t change a thing… or to wait for the “politicians” to do it on our behalf is really to be naive.

    What I’m asking here is for SOLUTIONS, maybe a legal solution while we wait for a “High Court Challenge” that might take years to come to an end… Meanwhile, what are we going to do? The state bill “No Jab No Play” affects thousands of citizens in Australia, specially in Victoria, hence, should be subject to a collective action – it seems. Thoughts on a LEGAL SOLUTION (maybe a CLASS ACTION?) would be much appreciated.

    Some inspiring quotes:

    “When we give government the power to make medical decisions for us, we, in essence, accept that the state owns our bodies.” – Ron Paul.

    “If a law is unjust, a man is not only right to disobey it, he is obligated to do so.” – Thomas Jefferson.

    “Just look at us. Everything is backwards; everything is upside down. Doctors destroy health, lawyers destroy justice, universities destroy knowledge, governments destroy freedom, the major media destroy information, and religions destroy spirituality.” – Dr. Michael Ellner.

    “In a time of universal deceit – telling the truth is a revolutionary act.” – George Orwell.

    “A Nation of Sheep will beget a Government of Wolves” – Old saying.

    “It takes a female to have a baby,
    It takes a woman to raise a child,
    It takes a mother to raise them correctly,
    It takes a warrior to show them how to change the world.”- Shannon L. Alder

    “Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).” – Ayn Rand.

  8. Vaccines and injections are not the best options for those who know how to keep themselves healthy plus understand of Law, Politic$, Economy and have researched the History of Vaccines. Furthermore, most who ‘Conscientiously Object Vaccination’ acknowledge the damage done by the overload of toxins accumulated in developing bodies in an ever crescent number of doses of this invasive medical “treatment” which triggers (in a short, medium and long term ) crescent adverse reactions that cause damages in disguised of DNA mutation, syndromes of all kind, allergies, immunodeficiency, speech pathology problems, lower IQs, aggressive behavior, autism, ADHD, SIDS and the list goes on…

    Not mentioning what is explicitly expressed in the ‘Appendix 6: Definitions of adverse events following immunisation’ in the Australian Immunization Handbook: Abscess, Acute flaccid paralysis [diagnosis must be made by a physician], Allergic reaction (generalised), Anaphylaxis, Arthralgia, Arthritis, Brachial neuritis, Death, Disseminated BCG, Encephalopathy [diagnosis must be made by a physician], Encephalitis [diagnosis must be made by a physician], Extensive limb swelling, Injection site reaction (severe), Intussusception [diagnosis must be made by a hospital physician], Lymphadenitis (includes suppurative lymphadenitis), Meningitis [diagnosis must be made by a physician], Nodule, Orchitis, Osteitis, Osteomyelitis, Parotitis, Rash, Screaming (persistent), Seizure, Sepsis, Subacute sclerosing panencephalitis [diagnosis must be made by a physician], Syncope, Thrombocytopenia, Toxic shock syndrome [diagnosis must be made by a physician], Vaccine-associated paralytic poliomyelitis, Vasovagal episode (syncope, faint).

    Any wonder why the Vaccine Lobby/Politician$ are “Targeting” the minority of parents (30.092 in Australia as at December2015, Immunise – ACIR – National Vaccine Objection Data) who conscientiously object this poison??? Maybe we KNOW something the rest of the parents who obediently and diligently follow the vaccination program don’t know!!! And, by the way, will never be told about by the powers that be. Well, I never tried to convince anyone to vaccinate or not – UNTIL NOW! And that’s exactly what every person that knows the truth should start to do since “they” are giving us no other option! Good Job “No Jab, No Pay/Play” team!!! Bad strategy though… It’s going to fire back against you 😮 🙂

    Now, before researching and asking for an ‘ Exemption Conscientious Objection Form’ signed by a midwife (when I had my first daughter in the hospital and until her last vaccination when she was 6 months old), all they gave me before “jabbing” my baby was the vaccine pamphlets (full of vaccine propaganda) at the hospital and at the GP’s clinic not even that. Is that “Informed Consent”? Why no one never ever showed me the ‘Australian Immunization Handbook ‘instead of’ Vaccination Propaganda’? Now “they” tell us that our acquired right with this valid exemption to not vaccinate in not recognized by “law” anymore so we can now take our children to a program catch up” in order to access kindergarten and childcare facilities with “informed consent” still? And the Local Council staff tell us that we still have the choice to not vaccinate? Well, yah! Not with a gun on our heads (yet)! Sorry, I must be missing something here… Since when is vaccination compulsory in this country? Besides, there are not even ONE Vaccine Injure Court here (opposed to the USA). Are we in a COMMUNIST STATE already and we haven’t realized? Surely this is NOT the Australia that I want to leave to my children!

    And that’s what the “Immunize Australia Program” offers to “Protect” the Australian Population via a “Whole of Life” Register. The so called “Australian Government” creepily wants to IMPOSE vaccination from the Cradle to the Grave of each Citizen – even AGAINST THEIR WILL. This is clearly happening to the families “jabbing” their children not necessarily because they think they are doing what is best for their health, but because they Need the Benefit$ to Pay the Rent, Eat and also to have their kids not “PROHIBITED BY LAW” to go Kinder and Day Care so they can continue to work and have a roof over their heads. Is that CONSENT to VACCINATION??? Maybe in Hitler’s and Stalin’s dreams 😉

    I have no words to describe how IMMORAL this is. Obviously, this is NOT about Health AT ALL. These “No Jab, No Pay/Play” are so UNREASONABLE, UNJUST, UNETHICAL and TOTALLY WRONG that they scream out loud “This is Not about People’s Health, this is Plain Busine$$”. Here is some of what is planned For Us from the “Factsheet Immunization Registers Expansion” (http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/67D8681A67167949CA257E2E000EE07D/$File/Factsheet-%20Immunisation-Registers-Expansion-23102015.pdf):

    “From 1 January 2016, the Australian Childhood Immunisation Register (ACIR) will broaden to
    capture immunisation information for young individuals under the age of 20 years, enabling
    implementation of the Australian Government’s No Jab, No Pay measure. The ACIR currently
    records vaccinations given to children aged less than seven years.
     From September 2016, the ACIR will expand further to become the Australian Immunisation Register
    (AIR) to capture all vaccines administered throughout a person’s life (birth to death), given through
    General Practice and community clinics. This will include all vaccines funded under the National
    Immunisation Program, as well as private vaccines given through general practice.
     This whole of life register will be ready to support the zoster virus vaccine being available on the
    National Immunisation Program (NIP) for 70 year olds (including a catch up programme for 71-79
    year olds), which is planned for November 2016. Other vaccines funded for adults under the NIP,
    which include seasonal influenza vaccine and pneumococcal vaccine, will also be captured by the
    AIR.
     From the 2017 school year, the HPV Register will be expanded to become the Australian School
    Vaccination Register (ASVR), which will capture all adolescent vaccinations given through school
    programmes. Vaccines to be recorded include varicella (chickenpox), the diphtheria, tetanus and
    pertussis (whooping cough) booster, and the HPV vaccine. This will provide tools such as recall and
    reminder systems to improve adolescent vaccination rates.”

    Unbelievable.

    After calling the legal “aid” available and sending my ‘Conscientious Objector’ MUM’s Letter to almost every local/state/federal politician I know and even to the Local Newspaper – to no avail – here is my say on the “No Jab, No Pay/Play” shame:

    “I read the paper (attached) setting out the policy position of Liberty Victoria on the “No Jab, No Play” provisions in Victoria. I’m grateful that this institution is standing up for the children’s right to education in Victoria. However, I must say that not giving up my parent’s right to not vaccinate is not being “unethical”. Vaccination is only one of the medical treatments available (however, it is the governments’ favorite world wide, no doubt about that… maybe because it has the large$t lobbying? Just a guess). There are much better non invasive medical and non medical treatments that far exceed the benefits of vaccinations without adverse reactions of all sorts.

    What is most disturbing: How can the “Government” cut benefits and block children’s access to preschool since in Australia vaccination is Not Compulsory and there are No Vaccine Injury Courts? How on Earth could the federal and state “Representatives Of The People” pa$$ Unconstitutional Bills like No Jab, No Pay/Play then? Finally, how can the Latrobe City Council close it’s eyes to this injustice and ‘enforce’ these Bad (to say the least) Policies at all? Those are the questions that must be answered and addressed to the Citizens by the politicians in general but specially by the ‘Local Governments’, so called Local Councils or “service providers”.

    For a better comprehension on this matter, attached is the Australian Vaccination-skeptics Network Inc. submission to the Scrutiny of Acts and Regulations Committee Parliament of Victoria referent to the Public Health and Wellbeing Amendment (No Jab, No Play) Bill 2015.

    I’m Ethically choosing what is best for myself and for my family’s health – and that’s my Untransferable Responsibility and Ownership. “Unethical” is to let the so called “Australian Government” decide what is best for each one of us – In Our Place. “Unethical” is to blackmail and exclude (discriminate) healthy, clever children of healthy, wise, loving and decent families from the education and social system. This is not only a matter of Human Rights, but a matter of Democracy. No Democratic Government have the right to decide for it’s citizens – that’s why we have a Constitution and it’s Referendum, after all: “When we give government the power to make medical decisions for us, we, in essence, accept that the state owns our bodies.” – Ron Paul. I will never give up my Rights as a Parent to decide on my daughter’s options to medical or non medical treatments and to education and social access. For me this is Truly about Health and Not about Profit. Nevertheless, unfortunately, I can’t expect the same from the “authorities” behind these Unlawful Laws.”

    Now, after ‘speaking up’ and openly opposing this tyranny (basically as a self help emotional release since I knew it wouldn’t change anything), I’d kindly suggest to the parents suffering this injustice: do something about it yourself – now! And together with others that are going through the same ordeal, since WE are the ones “interested” in fighting this fight – not others that may “sympathize” but are not being directly affected (yet!) by this Unlawful and Unconstitutional Laws. Therefore, not willing to make the efforts necessary to win this cause…

    I gave up trying to “spread the word” expecting that people would suddenly wake up from their ‘mass vaccination propaganda hypnotic state’ and realize the real threat not only tho their health but to democracy in Australia that these kind of BAD (to say the least) legislation imposes – and how it is EASILY PA$$ED by the “Representative$ of the People (?)” nowadays… Which means it’s going to happen again to further limit the Citizen’s “Rights” – parent or non parent, consenting or not consenting, young or old… as the “WHOLE OF LIFE” vaccination program was already advertised in this very same local newspaper that accepts weekly ad$ from the Local Council but not a single letter from a distressed MUM that had her child “prohibited” to go to preschool by this private “$ervice provider” with local direct political and legal powers over our lives as “Local Government”…

    Finally, I find strange that some parents who object vaccination prefer to remain “anonymous”… Hey, if you don’t stand up for your rights, who will? We’re Lawfully and Ethically acting on our own behalf and children’s and no one can take this responsibility and ownership from us. Nevertheless, those who HIDE behind these unlawful laws, engaging in criminal activities against their fellow citizens only to ‘enforce’ “laws” that should be Morally and Legally REJECTED – these “public” servant$ should be ASHAMED and run from publicity – not ourselves! Moreover, they should be prosecuted by the real politicians, judges, lawyers and citizens that knows and understand what’s really going on “down under”.

    This way, only by standing up for Our Rights TOGETHER can we overcome laws that were made to limit our rights to our own bodies by “Dividing and Conquering” the Parents while taking away our options to medical (or non medical) treatments.

    My question to the PARA LEGAL team (and any serious/honest lawyer, judge or legal expert) then: would a CLASS ACTION by the parents affected by the “No Jab, No Pay/Play” Bill be the best possible SOLUTION?

    Here, an interesting though for those parents who may feel unempowered by this grand scheme:

    “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has. – Margaret Mead.

    1. Thank you Soraya.

      The answer to this question :

      “My question to the PARA LEGAL team (and any serious/honest lawyer, judge or legal expert) then: would a CLASS ACTION by the parents affected by the “No Jab, No Pay/Play” Bill be the best possible SOLUTION?

      is in my opinion after studying in considerable depth both the Constitutional Law and Administrative Law aspects of it a Class Action is not going to work.

      What is needed is the opposite a Mass Action which is a calculated and coordinated Mass attack.using Admin Law … Using people power to overwhelm them. At little cost to any individual but at massive expense to the Government to the point the legislation is “void in futuro” due to it being utterly unenforceable.

      1. Thank you for your reply Danny. Would you please answer the following:

        1) Why would a Class Action not going to work?

        2) At least the areas of ‘Discrimination’ and ‘Human Rights’ would be covered with a potential for Australian claimants to bring proceedings in Foreign Jurisdiction instead of being tied to the “Victorian Civil and Administrative Tribunal” which may be compromised(?) to impartially judge claims against the state legislation “No Jab No Play”, don’t you think? It’d be like playing according to their ‘unfair rules’ and with a good chance of failing if via Administrative Laws we were to only examine the “decision making process of the executive” (reinforcing their power to limit our Rights).

        3) We’re going to the High Court to challenge the Draconian federal legislation “No Jab No Pay” from which the Victorian State Legislation “No Jab No Play” is based on. This way, by using Administrative Law we’re “assuming” that this very legislation is “constitutionally valid” – is there a contradiction here? And if they are successful don’t you think that this legislation instead of being “void in futuro” would be even more enforceable once “assumed” constitutional – which obviously it is not…

        4) Wouldn’t that be equivalent to TACITLY give up our uppermost Constitutional Guarantees of Political, Medical an Religious Freedom plus the Constitutional Prohibition to Civil Conscription in order to receive welfare or childcare benefits? Not mentioning the breach of International Human Rights Laws to which Australia is signatory: the Universal Declaration of Bioethics and Human Rights states that any preventive diagnosis and/or therapeutic medical intervention is only to be carried out with prior Free and Informed Consent of the person concerned based on Adequate Information – which was and is never the case here in Australia.

        The imposition of the “No Jab, No Pay/Play” also breaches ‘ Human Decency’ and ‘Australian Consent Laws’. From this point on, I have little expectations of “decency” from the Australian Government and it’s Judicial Systems concerning “fair process and judgement” since this kind of ABSURD LAWS are clearly only the start of a Pharmaceutical Vaccination Driven Medical Monopoly Legal State as we see in the USA – at least there, those poor parents of those vaccine assassinated or injured children had at least a chance to fight in Vaccination Injury Courts.

        5) But in Australian, these children are not even given the adequate diagnostic of the real cause of their death or injury (with some parents even being accused of their babies death by the same doctors who vaccinated them in SIDS cases, for instance). There is not even ONE Vaccination Injury Court in Australia. Are the “Andrew Government” politicians in power in Victoria ready to be personally legally and financially responsible if any of these Conscientious Objectors children are injured or killed because their parents have been forced to vaccinate under duress ? Specially when there’s no vaccine injury compensation scheme in this country?

        This is NOT ACCEPTABLE! And JUSTICE must be MADE against these politician$ and public servant$ who engage in criminal activities behind Unlawful Laws in Australia – if we are not to became a COMMUNIST FACIST PLUOTOCRACY . Hence, there’s little room for justice to be made under their own political lobbying dutifully managed by government departments, I guess.

        6) Finally, are you aware that in 1979 the Victorian Parliament altered it’s constitution to include Section 74A which inserts Local Government UNLAWFULLY since it should only be done by the People of Australia by means of the Section 128 (Referendum) of the Commonwealth Constitution? This way, would you still think that an Administrative Challenge would be preferable than a Class Action?

  9. I just signed this Petition at Change.org which already has 2.256 supporters and it only needs more 244! All of you who are PRO CHOICE, support this cause and share it please. Thank you so much:

    “Petitioning Premier of Victorian State Government
    THE HON. DANIEL ANDREWS MP
    Remove NO JAB NO PLAY Victorian Legislation or
    Restore Conscientious Objection Option
    To Comply With Our Human Rights

    By simon shields Newington, Australia

    https://www.change.org/p/australian-victorian-state-govt-must-remove-no-jab-no-play-victorian-legislation-or-restore-conscientious-objection-option

  10. Unfortunately from my own legal research, the legal definition of ‘civil conscription’ refers to forcing the public to work. It doesn’t cover forcing them to get medical treatment but vaccines are in fact a ‘medical treatment’ and the code of ethics allows us to make an ‘informed decision’. My informed decision is to never blindly trust the medical industry and always to ask questions. If they can’t answer those questions, then I am legally entitled to refuse. The catch is that the benefits provided by government are exactly that, benefits, meaning it’s a privilege, not a right.

    1. Zane Cosgrove:

      But are vaccines a ‘medical treatment’?
      They do not require safety studies as other medical treatments/products do.
      And there is no quality control at the manufacturing level as is strictly with medical products.
      Vaccines do contain contamination from manufacturing process.

  11. Something needs to be done. As a sole parent with four children, two are adults who both had reactions. I chose to not vaccinate my younger two because of this, and because I too had reactions. When the No jab policies came in I was six months out of finishing my Bachelor of Justice. The ONLY option I had was to move away from Australia so that I could continue to have my right to work. As a sole parent, my family support is little and I would rely on child care to be able to work. So my rights to employment have been taken away from me.

    I am now estranged from my family and feel I have no other option but to stay away if I am going to give my younger children a chance to live outside of poverty. HOw is a this ok? Where are the basic human rights? Rights to employment, the right to make parental choices? To state they are not forcing us to vaccinate our children is a lie, it is about choosing between having work or not having work, having support or not having support if we do not “comply” to the vaccine schedule.

    I know I want to one day be compensated for the loss of income in Australia, the loss of a home, loss of my property as i had to get rid of it all to afford to move to New Zealand where my degree is not really recognised as well. My loss of family and ability to even meet my only grandchild.

    Much suffering has come to our family because of this legislation. I am merely one person who has had a legally binding document signed (conscientious objection) which has meant nothing now because of the dictatorship of the Australian government. There is no democracy. These no jab policies need to be thrown out the door, an investigation into the media (mainly Murdoch) needs to be done also as the bias has contributed to much discrimination within Australia. Where do we start and when? I have no money but I would research and learn and stand alone if I had to to change this.

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