The Freeman Delusion – The Organised Pseudolegal Commercial Argument in Australia

By : Robert Sudy

   

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The following is an extract from Volume 1 of the Final Report of the Constitutional Commission 1988.

The report was forwarded to the the then Attorney-General of the Commonwealth of Australia, The Hon Lionel Bowen MP, on 30 June 1988. Authors of the report include Sir Maurice Byers CBE QC, Professor Enid Campbell OBE, The Hon Sir Rupert Hamer KCMG, The Hon E G Whitlam AC QC and Professor Leslie Zines. The Constitutional Commission 1988 report is available at the Mitchell Library in Sydney and should also be available at any other notable library or educational institution.

Effect of independent nationhood

2.129 The sovereign status of Australia resulted in the rejection of earlier colonial restrictions on the interpretation of the powers of the Commonwealth. It has been declared by a number of High Court judges that the Governor-General, as the Queen’s representative, possesses the prerogatives of the Crown relevant to the Federal Government’s sphere of responsibility, which includes, for example, all matters relating to external affairs.[102]

2.130 The development of Australian nationhood did not require any change to the Australian Constitution. It involved, in part, the abolition of limitations on constitutional power that were imposed from outside the Constitution, such as the Colonial Laws Validity Act 1865 (Imp) and restricting what otherwise would have been the proper interpretation of the Constitution, by virtue of Australia’s status as part of the Empire. When the Empire ended and national status emerged, the external restrictions ceased, and constitutional powers could be given their full scope.

2.131 Sir Garfield Barwick has described the result, in relation to the Framers’ purpose in drafting the Constitution as follows:

The Constitution was not devised for the immediate independence of a nation. It was conceived as the Constitution of an autonomous Dominion within the then British Empire. Its founders were not to know of the two world wars which would bring that Empire to an end. But they had national independence in mind. Quite apart from the possible disappearance of the Empire, they could confidently expect not only continuing autonomy but approaching independence. This came within 30 years. They devised a Constitution which would serve an independent nation. It has done so, and still does.[103]


2.132 As a result of federal legislation all appeals to the Privy Council from Australian courts exercising federal jurisdiction were abolished in 1968 (Privy Council (Limitation of Appeals/Act 1968 (Cth)). All appeals from any decision of the High Court (other than those where a certificate might be granted under section 74 of the Constitution) were terminated by the Privy Council (Appeals from the High Court) Act 1975 (Cth).

2.133 The growth to full national status, of course, did not affect the position of the Commonwealth as a community under the Crown. While the preceding events dissolved most of the constitutional links with the British Government, those with the Sovereign remain.

2.134 Indeed the notion of the Crown pervades the Constitution. The preamble recites that the people of the named colonies had agreed to unite in a Federal Commonwealth under the Crown. The Queen is empowered by section 2 of the Constitution to appoint a Governor-General who ‘shall be Her Majesty’s representative’. Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen and declares that it is exercisable by the Governor-General as the Queen’s representative.

2.135 These powers are, of course, consistent with British constitutional practice, exercised on the advice of Australian Ministers (except in those very rare cases which are said to come within the ‘reserve powers’ of the Crown). On those occasions when the Queen acts in her own capacity, such as in appointing the Governor-General, she also acts on the advice of Australian Ministers, rather than British ones, in accordance with the principle established at the Imperial Conference of 1926.

2.136 The position of the Queen as the Sovereign of a number of independent realms was recognised at a conference of Prime Ministers and other representatives of the nations of the Commonwealth in December 1952 where it was agreed that each country should adopt a form of Royal title suitable to its own circumstances. As a result, the legislation of each country of the Commonwealth (other than Pakistan which expected to become a republic) included for the first time a reference in its Royal Style and Titles to the particular country which enacted the legislation.

2.137 The Royal Style and Titles Act 1953 (Cth), therefore, for the first time referred to the Queen as ‘Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith’. As a result of amendments made in 1973 (Royal Style and Titles Act 1973) the present Royal Style and Titles in Australia are ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.’

2.138 The disappearance of the British Empire has therefore meant that the Queen is now Sovereign of a number of separate countries such as the United Kingdom, Canada, Australia, New Zealand and Papua New Guinea, amongst others. As Queen of Australia she holds an entirely distinct and different position from that which she holds as Queen of the United Kingdom or Canada. The separation of these ‘Crowns’ is underlined by the comment of Gibbs CJ in Pochi v Macphee[104] that ‘The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia.’


1) High Court of Australia Decision Sue V Hill

The following is an extract of the High Court decision (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ – Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998) relating to the Henry (Nai Leung) Sue – Petitioner and Heather Hill & ANOR Respondents case in which Heather Hill lost her right to take her place in the Senate post the 1998 Federal election

The High Court confirmed that the Queen of Australia does not act as a foreign Queen. One of the main arguments that was raised by Heather Hill was that the Queen of Australia is the same person as the Queen of the United Kingdom and Northern Ireland. Therefore swearing allegiance to the Queen of Australia was the same as swearing allegiance to the Queen of the United Kingdom and Northern Ireland. This argument was rejected by the Court on the basis that whilst physically it is the same person (Queen Elizabeth II) they are “independent and distinct” legal personalities. This notion is known as the divisibility of the Crown which Justice Gaudron found to be “implicit in the Constitution.”


The full report on this decision can be located via the High Court Website.

74. We turn now to the position of the Crown in relation to the government of the Commonwealth. Section 2 of the Constitution states:


“A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution , such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” (emphasis added)


It has been accepted, at least since the time of the appointment of Sir Isaac Isaacs in 1931, that in making the appointment of a Governor-General the monarch acts on the advice of the Australian Prime Minister [91]. The same is true of the exercise of the power vested by s4 of the Constitution in the monarch to appoint a person to administer the government of the Commonwealth and the power given to the monarch by s126 to authorise the Governor-General to appoint deputies within any part of the Commonwealth.

75. Section 58 makes provision for the Governor-General to reserve a “proposed law passed by both Houses of the Parliament” for the Queen’s pleasure, in which event the law shall not have any force unless and until, in the manner prescribed by s60, the Governor-General makes known the receipt of the Queen’s assent. Further, s59 provides for disallowance by the Queen of any law within one year of the Governor-General’s assent. The text of the Constitution is silent as to the identity of the Ministers upon whose advice the monarch is to act in these respects.

76. As indicated when dealing earlier in these reasons with the former position of the States, provisions in colonial constitutional arrangements for reservation and disallowance had been designed to ensure surveillance of colonial legislatures by the Imperial Government. The convention in 1900 was that the monarch, in relation to such matters, would act on the advice of a British Minister. That advice frequently was given after consultation between the Colonial Office and the Ministry in the colony in question[92]. With respect to the Commonwealth, the whole convention, like that respecting the appointment of Governors-General, changed after the Imperial Conference of 1926[93].

77. As early as 1929, it was stated in the Report of the Royal Commission on the Constitution[94] with reference to the provisions of ss 58 and 59 of the Constitution that “in virtue of the equality of status which, from a constitutional as distinct from a legal point of view, now exists between Great Britain and the self-governing Dominions as members of the British Commonwealth of Nations, and on the principles which are set out in the Report submitted by the Inter-Imperial Relations Committee to the Imperial Conference in 1926”, for “British Ministers to tender advice to the Crown against the views of Australian Ministers in any matter appertaining to the affairs of the Commonwealth” would “not be in accordance with constitutional practice”.

78. Whilst the text of the Constitution has not changed, its operation has. This reflects the changed identity of those upon whose advice the sovereign accepts that he or she is bound to act in Australian matters by reason, among other things, of the attitude taken since 1926 by the sovereign’s advisers in the United Kingdom. The Constitution speaks to the present and its interpretation takes account of and moves with these developments. Hence the statement by Gibbs J in Southern Centre of Theosophy Inc v South Australia[95], with reference to the Royal Style and Titles Act I973 (Cth), that:

“[i]t is right to say that this alteration in Her Majesty’s style and titles was a formal recognition of the changes that had occurred in the constitutional relations between the United Kingdom and Australia”.

79. It remains to consider the provision in s 122 of the Constitution whereby the Parliament may make laws, among other things, “for the government of any territory … placed by the Queen under the authority of and accepted by the Commonwealth”. The requirement of acceptance by the Commonwealth and, earlier in s 122, the reference to the surrender of territory by a State and the acceptance thereof by the Commonwealth serve to confirm the placement “by the Queen” of a territory under the authority of the Commonwealth as being a dispositive act by the Crown acting on other than Australian advice.

80. For example, what had been the Crown Colony of British New Guinea was by Imperial instruments placed under the authority of the Commonwealth after the Senate and the House had passed resolutions authorising the acceptance of British New Guinea as a territory of the Commonwealth[96]. The procedures adopted for the acquisition of Christmas Island and the Cocos (Keeling) Islands reflected the Statute Of Westminster Adoption Act 1942 (Cth). They involved, as a first step, the passage of the Christmas Island (Request and Consent) Act 1957 (Cth) and the Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth). The Parliament of the Commonwealth thereby requested and consented to an enactment by the Parliament of the United Kingdom enabling the Queen to place the respective islands under the authority of the Commonwealth. There followed the passage of the Cocos Islands Act 1955 (UK) and the Christmas Island Act 1958 (UK)[97].

81. The point is that the reference to “the Queen” in s122 to distinguish the sovereign from “the Commonwealth” indicates within the structure of the Constitution itself a recognition of the involvement of the Crown in distinct bodies politic.

82. Nevertheless, it is submitted for Mrs Hill that the reference in the preamble to the Constitution Act to unification “in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established” and the identification in covering cl 2 to the heirs and successors of Queen Victoria in the sovereignty of the United Kingdom have a special and immutable significance for the construction of s44(i) of the Constitution. This is said to be so notwithstanding, as we have indicated, that in the regal capacities for which provision is made by the constitutions of the Commonwealth and the States, the sovereign acts on Australian ministerial advice.

The meaning of “the Crown” in constitutional theory

83. Accordingly, it is necessary to say a little as to the senses in which the expression “the Crown” is used in constitutional theory derived from the United Kingdom. In its oldest and most specific meaning, “the Crown” is part of the regalia which is “necessary to support the splendour and dignity of the Sovereign for the time being”, is not devisable and descends from one sovereign to the next [98]. The writings of constitutional lawyers at the time show that it was well understood in 1900, at the time of the adoption of the Constitution, that the term “the Crown” was used in several metaphorical senses. “We all know”, Lord Penzance had said in 1876, “that the Crown is an abstraction” [99], and Maitland, Harrison Moore, Inglis Clark and Pitt Cobbett, amongst many distinguished constitutional lawyers, took up the point.

84. The first use of the expression “the Crown” was to identify the body politic. Writing in 1903, Professor Pitt Cobbett[100] identified this as involving a “defective conception” which was “the outcome of an attempt on the part of English law to dispense with the recognition of the State as a juristic person, and to make the Crown do service in its stead”. The Constitution, in identifying the new body politic which it established, did not use the term “the Crown” in this way. After considering earlier usages of the term in England and in the former American colonies, Maitland rejoiced in the return of the term “the Commonwealth” to the statute book. He wrote in 1901[101]:

“There is no cause for despair when ‘the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’. We may miss the old words that were used of Connecticut and Rhode Island: ‘one body corporate and politic in fact and name’; but ‘united in a Federal Commonwealth under the name of the Commonwealth of Australia’ seems amply to fill their place. And a body politic may be a member of another body politic.”

85. The second usage of “the Crown” is related to the first and identifies that office, the holder of which for the time being is the incarnation of the international personality of a body politic, by whom and to whom diplomatic representatives are accredited and by whom and with whom treaties are concluded. The Commonwealth of Australia, as such, had assumed international personality at some date well before the enactment of the Australia Act. Differing views have been expressed as to the identification of that date[102] but nothing turns upon the question for present purposes. Since 1987, the Executive branch of the Australian Government has applied s61 of the Constitution (which extends to the maintenance of the Constitution) consistently with the views of Inglis Clark expressed over 80 years before[103] and the Governor-General has exercised the prerogative powers of the Queen in regard to the appointment and acceptance, or recall, of diplomatic representatives and the execution of all instruments relating thereto[104].

86. In State Authorities Superannuation Board v Commissioner of State Taxation (WA) , McHugh and Gummow JJ said[105]:

“Questions of foreign state immunity and of whether an Australian law, upon its true construction, purports to bind a foreign state now should be approached no differently as regards those foreign states which share the same head of state than it is for those foreign states which do not[106]. This is consistent with the reasoning and outcome in Nolan v Minister for Immigration and Ethnic Affairs [107].”


87. Thirdly, the term “the Crown” identifies what Lord Penzance in Dixon called “the Government”[108], being the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business. As has been indicated, under the Constitution the executive functions bestowed upon “the Queen” are exercised upon Australian advice.

88. The fourth use of the term “the Crown” arose during the course of colonial development in the nineteenth century. It identified the paramount powers of the United Kingdom, the parent state, in relation to its dependencies. At the time of the establishment of the Commonwealth, the matter was explained as follows by Professor Pitt Cobbett in a passage which, given the arguments presented in the present matters, merits full repetition[109]:

“In England the prerogative powers of the Crown were at one time personal powers of the Sovereign; and it was only by slow degrees that they were converted to the use of the real executive body, and so brought under control of Parliament. In Australia, however, these powers were never personal powers of the King; they were even imported at a time when they had already to a great extent passed out of the hands of the King; and yet they loom here larger than in the country of their origin. The explanation would seem to be that, in the scheme of colonial government, the powers of the Crown and the Prerogative really represent, – not any personal powers on the part of the Sovereign, – but those paramount powers which would naturally belong to a parent State in relation to the government of its dependencies; although owing to the failure of the common law to recognise the personality of the British ‘State’ these powers had to be asserted in the name and through the medium of the Crown. This, too, may serve to explain the distinction, subsequently referred to, between the ‘general’ prerogative of the Crown, which is still wielded by Ministers who represent the British State, and who are responsible to the British Parliament, – and what we may call the ‘colonial’ prerogative of the Crown, which, although consisting originally of powers reserved to the parent State, has with the evolution of responsible government, been gradually converted to the use of the local executive, and so brought under the control of the local Legislature, except on some few points where the Governor[110] is still required to act not as a local constitutional Sovereign but as an imperial officer and subject to an immediate responsibility to his imperial masters.[111]”

89. What Isaacs J called the “Home Government” ceased before 1850 to contribute to the expenses of the colonial government of New South Wales[112]. On the grant of responsible government, certain prerogatives of the Crown in the colony, even those of a proprietary nature, became vested “in the Crown in right of the colony”, as Jacobs J put it in New South Wales v The Commonwealth[113]. Debts might be payable to the exchequer of one government but not to that of another and questions of disputed priority could arise[114]. Harrison Moore, writing in 1904, observed[115]:

“So far as concerns the public debts of the several parts of the King’s dominions, they are incurred in a manner which indicates the revenues out of which alone they are payable, generally the Consolidated Revenue of the borrowing government; and the several Colonial Statutes dealing with suits against the government generally limit the jurisdiction of the Court to ‘claims against the Colonial Government,’ or to such claims as are payable out of the revenue of the colony concerned …”


Section 105 of the Constitution provided for the Parliament to take over from the States their public debts “as existing at the establishment of the Commonwealth”[116].

90. The expression “the Crown in right of …” the government in question was used to identify these newly created and evolving political units[117]. With the formation of federations in Canada and Australia it became more difficult to continue to press “the Crown” into service to describe complex political structures. Harrison Moore identified “the doctrine of unity and indivisibility of the Crown” as something “not persisted in to the extent of ignoring that the several parts of the Empire are distinct entities”[118]. He pointed to the “inconvenience and mischief” which would follow from rigid adherence to any such doctrine where there were federal structures and continued[119]:

“The Constitutions themselves speak plainly enough on the subject. Both the British North America Act and the Commonwealth of Australia Constitution Act recognize that ‘Canada’ and the ‘Provinces’ in the first case, the ‘Commonwealth’ and the ‘States’ in the second, are capable of the ownership of property, of enjoying rights and incurring obligations, of suing and being sued; and this not merely as between the government and private persons, but by each government as distinguished from and as against the other this in fact is the phase of their personality with which the Constitutions are principally concerned. Parliament has unquestionably treated these entities as distinct persons, and it is only by going behind the Constitution that any confusion of personalities arises.”

91. It may be thought that in this passage lies the seed of the doctrine later propounded by Dixon J in Bank of New South Wales v The Commonwealth[120], and applied in authorities including Crouch v Commissioner for Railways (Q)[121] and Deputy Commissioner of Taxation v State Bank (NSW)[122], that the Constitution treats the Commonwealth and the States as organisations or institutions of government possessing distinct individuality. Whilst formally they may not be juristic persons, they are conceived as politically organised bodies having mutual legal relations and are amenable to the jurisdiction of courts exercising federal jurisdiction. The employment of the term “the Crown” to describe the relationships inter se between the United Kingdom, the Commonwealth and the States was described by Latham CJ in 1944[123] as involving “verbally impressive mysticism”. It is of no assistance in determining today whether, for the purposes of the present litigation, the United Kingdom is a “foreign power” within the meaning of s 44(i) of the Constitution.

92. Nearly a century ago, Harrison Moore said that it was likely that Australian draftsmen would be likely to avoid use of the term “Crown” and use instead the terms “Commonwealth” and “State”[124]. Such optimism has proved misplaced. That difficulties can arise from continued use of the term “the Crown” in State legislation is illustrated by The Commonwealth v Western Australia[125]. However, no such difficulties need arise in the construction of the Constitution.

93. The phrases “under the Crown” in the preamble to the Constitution Act and “heirs and successors in the sovereignty of the United Kingdom” in covering cl 2 involve the use of the expression “the Crown” and cognate terms in what is the fifth sense. This identifies the term “the Queen” used in the provisions of the Constitution itself, to which we have referred, as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom. The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

94. There is no precise analogy between this state of affairs and the earlier development of the law respecting the monarchy in England, Scotland and Great Britain. It has been suggested[126]:

“The Queen as monarch of the United Kingdom, Canada, Australia and New Zealand is in a position resembling that of the King of Scotland and of England between 1603 and 1707 when two independent countries had a common sovereign.”


But it was established that a person born in Scotland after the accession of King James I to the English throne in 1603 was not an alien and thus was not disqualified from holding lands in England. That was the outcome of Calvin’s Case[127]. Nor does the relationship between Britain and Hanover between 1714 and 1837 present a precise analogy, if only because there was lacking the link of a common law of succession[128].

IV CONCLUSIONS

95. Almost a century has passed since the enactment of the Constitution Act in the last year of the reign of Queen Victoria. In 1922, the Lord Chancellor[129] observed that doctrines respecting the Crown often represented the results of a constitutional struggle in past centuries, rather than statements of a legal doctrine. The state of affairs identified in Section III of these reasons is to the contrary. It is, as Gibbs J put it[130], “the result of an orderly development – not … the result of a revolution”. Further, the development culminating in the enactment of the Australia Act (the operation of which commenced on 3 March 1986[131]) has followed paths understood by constitutional scholars writing at the time of the establishment of the Commonwealth.

96. The point of immediate significance is that the circumstance that the same monarch exercises regal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s 44(i) of the Constitution. Australia and the United Kingdom have their own laws as to nationality[132] so that their citizens owe different allegiances. The United Kingdom has a distinct legal personality and its exercises of sovereignty, for example in entering military alliances, participating in armed conflicts and acceding to treaties such as the Treaty of Rome[133], themselves have no legal consequences for this country. Nor, as we have sought to demonstrate in Section III, does the United Kingdom exercise any function with respect to the governmental structures of the Commonwealth or the States.

97. As indicated earlier in these reasons, we would give an affirmative answer to the question in each stated case which asks whether Mrs Hill, at the date of her nomination, was a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution. [Back to Menu]


2) Justice Gaudron Extract


164
The first consideration which tells against the United Kingdom not being permanently excluded from the concept of “a foreign power” in s 44.(i) of the Constitution is that the Constitution, itself, acknowledges the possibility of change in the relationship between the United Kingdom, on the one hand, and the Commonwealth of Australia and the Australian States, on the other. Thus, for example, s34 acknowledges that Parliament may alter the qualifications for election so as to eliminate the requirement that candidates be subjects of the Queen. Of greater significance is that, by s5l(xxxviii) of the Constitution, the Commonwealth has power to legislate with respect to “the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia”. It was pursuant to s51.(xxxviii) that the Parliament of the Commonwealth enacted the Australia Act 1986 (Cth), to which further reference will shortly be made.

165. The second consideration is that, It is implicit in the existence of the States as separate bodies politic with separate legal personality, distinct from the body politic of the Commonwealth with its own legal personality. The separate existence and the separate legal identity of the several States and of the Commonwealth is recognised throughout the Constitution, particularly in Ch III[203].

166. Once it is accepted that the divisibility of the Crown is implicit in the Constitution and that the Constitution acknowledges the possibility of change in the relationship between the United Kingdom and the Commonwealth, it is impossible to treat the United Kingdom as permanently excluded from the concept of “foreign power” in s 44(i) of the Constitution. That being so, the phrase is to be construed as having its natural and ordinary meaning.


3) Royal Style and Titles Act 1953


(The Royal Style and Titles Act 1953 was repealed
by the Statute Law Revision Act 1973 (No
216, 1973)
vide the enactment of the Royal Style and Titles Act 1973)

Royal Style and Titles Act 1953
No. 32 of 1953.

An Act relating to the Royal Style and Titles
[Reserved for Her Majesty’s pleasure, 18th March, 1953.]
[Queen’s Assent, 3rd April, 1953.] [Queen’s Assent proclaimed, 7th May, 1953,]

Preamble

WHEREAS it was recited in the preamble to the Statute of Westminster, 1931 that it would be in accord with the established constitutional position of all the members of the British Commonwealth of Nations in relation to one another that any alteration in the law touching the Royal Style and Titles should, after the enactment of that Act, “require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”:

AND WHEREAS the Style and Titles appertaining to the Crown at the time of the enactment of the Statute of Westminster, 1931 had been declared by His then Majesty King George V in a Proclamation in pursuance of the Royal and Parliamentary Titles Act, 1927 of the United Kingdom, and were, in consequence of the establishment of the Republic of India, subsequently altered with the assent as well of the Parliaments of Canada, Australia, New Zealand and the Union of South Africa as of the Parliament of the United Kingdom:

AND WHEREAS it was agreed between the Prime Ministers and other representatives of Her Majesty’s Governments in the United Kingdom, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon assembled in London in the month of December, One thousand nine hundred and fifty-two, that the Style and Titles at present appertaining to the Crown are not in accord with current constitutional relationships within the British Commonwealth and that there is a need for a new form which would, in particular, “reflect the special position of the Sovereign as Head of the Commonwealth”:

AND WHEREAS it was concluded by the Prime Ministers and other representatives that, in the present stage of development of the British Commonwealth relationship it would be in accord with the established constitutional position that each member country should use for its own purposes a form of the Royal Style and Titles which suits its own particular circumstances but retains a substantial element which is common to all:

AND WHEREAS it was further agreed by the Prime Ministers and other representatives that the various forms of the Royal Style and Titles should, in addition to the appropriate territorial designation, have as their common element the description of the Sovereign as “Queen of Her other Realms and Territories and Head of the Commonwealth”:

AND WHEREAS it was further agreed by the Prime Ministers and other representatives that the procedure of prior consultation between all Governments of the British Commonwealth should be followed in future if occasion arose to propose a change in the form of the Royal Style and Titles used in any country of the British Commonwealth:

Be it therefore enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia as follows:-

Short title

1. This Act may be cited as the Royal Style and Titles Act 1953.

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Definition

3. In this Act, “the United Kingdom” means the United Kingdom of Great Britain and Northern Ireland.

Assent to adoption of Royal Style and Titles in relation to Australia

4.
(1.) The assent of the Parliament is hereby given to the adoption by Her Majesty, for use in relation to the Commonwealth of Australia and its Territories, in lieu of the Style and Titles at present appertaining to the Crown, of the Style and Titles set forth in the Schedule to this Act, and to the issue for that purpose by Her Majesty of Her Royal Proclamation under such seal as Her Majesty by Warrant appoints.
(2.) The Proclamation referred to in the last preceding sub-section shall be published in the Gazette and shall have effect from the date upon which it is so published.

Assent to adoption of Royal Style and Titles in relation to other countries of British Commonwealth

5. The assent of the Parliament is hereby given to the adoption by Her Majesty, for use in relation to Her other Realms and Territories, in lieu of the Style and Titles at present appertaining to the Crown, of such Style and Titles as Her Majesty thinks fit, in accordance with the principles that were formulated by the Prime Ministers and other representatives of British Commonwealth Countries assembled in London, as recited in the Preamble to Act.

THE SCHEDULE

The Royal Style and Titles

Elizabeth the Second, by the Grace of God of the United Kingdom, Australia
and Her other Realms and Territories Queen,
Head of the Commonwealth, Defender of the Faith.

4)5)6)7)8)9)10)11)12)13)14)15)16)17)18)19)20)21)22)23)24)25)26)27)28)29)30)31)32)33)34)35)36)37)38)39)40)41)42)43)44)45)46)47)48)49)50)51)52)53)54)55)56)

57) Notes from Final Report of the Constitutional Commission 1988tooltip({ tip: "#footnote_plugin_tooltip_text_56", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_55", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_54", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_53", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_52", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, 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[102] eg Barton v Commonwealth (1974) 131 CLR 477, 498 (Mason J); Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 406 (Jacobs J); New South Wales v Commonwealth (1975) 135 CLR 337.373 (Barwick C J).
[103] PH Lane, The Australian Constitution (1986) viii.
[104] (1982) 151 CLR 101,109.

58)59)60)61)62)63)64)65)66)67)68)69)70)71)72)73)74)75)76)77)78)79)80)81)82)83)84)85)86)87)88)89)90)91)92)93)94)95)96)97)98)99)100)101)102)103)104)105)106)107)108)109)110)

111) Notes from Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998)

[91] Cunneen, King’s Men – Australia’s Governors-General from Hopetoun to Isaacs , ( 1983) at 173-182tooltip({ tip: "#footnote_plugin_tooltip_text_110", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_109", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_108", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_107", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });tooltip({ tip: "#footnote_plugin_tooltip_text_106", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, 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[92] Inglis Clark, Studies in Australian Constitutional Law , (1901 ) at 323.
[93] Final Report of the Constitutional Commission , (1988), vol 1, pars 2.122-2.123.
[94] at 70.
[95] (1979) 14.5 CLR 246 at 261.
[96] Strachan v The Commonwealth (1906) 4 (Pt 1) CLR 455 at 461-463, 464-465. See also the recitals to the Papua Act 1905 (Cth).
[97] See the recitals to the Christmas Island Act 1958 (Cth) and the Cocos (Keeling) Islands Act 1955 (Cth).
[98] Chitty, Prerogatives of the Crown , (1820), Ch XI, Section III.
[99] Dixon v London Small Arms Company (1876) 1 App Cas 632 at 652.
[100] “‘The Crown’ as Representing ‘the State”‘, (1903) 1 Commonwealth Law Review 23 at 30. See also Hogg, Liability of the Crown , 2nd ed (1989) at 9-13; Law Reform Commission of Canada, The Legal Status of the Federal Administration , Working Paper 40, (1985) at 24-28.
[101] “The Crown as Corporation”, (1901) 17 Law Quarterly Review 131 at 144 (footnote omitted).
[102] Victoria v The Commonwealth (Industrial Relations Act Case ) (1996) 187 CLR 416 at 477-478.
[103] Inglis Clark, Studies in Australian Constitutional Law , (1901) at 65-66.
[104] Instrument dated 1 December 1987, Commonwealth of Australia Gazette , $270, c_) September 1988; see Starke, “Another residual constitutional link with the United Kingdom terminated; diplomatic letters of credence now signed by Governor-General”, (1989) 63 Australian Law Journal 149.
[105] (1996) 189 CLR 253 at 289.
[106] See, generally, Foreign states Immunities Act 1985 (Cth), ss 9-22.
[107] (1988) 165 CLP, 178 at 183-186.
[108] (1876) 1 App Cas 632 at 651.
[109] “The Crown as Representing the State”, (1904) 1 Commonwealth Law Review 145 at 146-147.
[110] Who, legally [represented] the King, but really [represented] the British ‘State’.
[111] As with regard to the reservation of Bills and the exercise of the power of pardon in matters affecting imperial interests.
[112] Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 448.
[113] (1975) 135 CLR 337 at 494.
[114] Federal Commissioner of Taxation v Official Liquidator of E 0 Farley Ltd (1940) 63 CLR 278 at 302-303.
[115] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 357.
[116]Words of limitation omitted in 1910, after a successful referendum: Constitution Alteration (State Debts) Act 1909 (Cth).
[117] Evatt, The Royal Prerogative , (1987) at 63.
[118] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 358. See also Harrison Moore, “Law and Government”, (1906) 3 Commonwealth Law Review 205 at 207.
[119] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 359.
[120] (1948) 76 CLR I at 363.
[121] (1985) 159 CLR 22 at 28-29, 39.
[122] (1992)174 CLR 219 at 230-231.
[123] Minister for Works (WA) v Gulson (1944) 69 CLR 338 at 350-351.
[124] “The Crown as Corporation”, (1904) 20 Law Quarterly Review 351 at 362.
[125] (1999) 73 ALJR 345 at 352-353, 359, 364-368, 387-390; 160 ALR, 638 at 647-649, 656-657, 663-669, 695-700.
[126] Zines, The High Court and the Constitution , 4th ed (1997) at 314.
[127] (1606) 7 Co Rep la [77 ER 377]. Coke’s report of the litigation was “a massive achievement of ponderous learning”: Tanner, English Constitutional Conflicts in the Seventeenth Century 1603-1689 , (1957) at 269.
[128] Nolan v Minister for Immigration and Ethnic Affairs (1988) t 65 CLR 178 at 192-193; In re The Stepney Election Petition; Isaacson v Durant (1886) 17 QBD 54 at 59-60.
[129] Viscount Birkenhead LC in Viscountess Rhondda’s Claim [1922] 2 AC 339 at 353.
[130] Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 at 261.
[131] Commonwealth of Australia Gazette , s85, 2 March 1986 at 1.
[132] Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.
[133] See European Communities Act 1972 (UK), European Communities (Amendment) Act 1986 (UK), European Communities (Amendment) Act 1993 (UK) and R v Secretary of State for Transport; Ex parte Factortame Ltd [1990] 2 AC 85; R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Rees-Mogg [1994] QB 552; R v Employment Secretary; Ex parte Equal Opportunities Commission [1995] 1 AC 1.
[203] See especially ss 75(iii), (iv) and 78.

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References   [ + ]

1. High Court of Australia Decision Sue V Hill

The following is an extract of the High Court decision (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ – Sue v Hill [1999] HCA 30 – 23 June 1999 – S179/1998 and B49/1998) relating to the Henry (Nai Leung) Sue – Petitioner and Heather Hill & ANOR Respondents case in which Heather Hill lost her right to take her place in the Senate post the 1998 Federal election

2. Justice Gaudron Extract


164

3. Royal Style and Titles Act 1953


(The Royal Style and Titles Act 1953 was repealed
by the Statute Law Revision Act 1973 (No

4. ****************************************************

* Notes from Final Report of the Constitutional Commission 1988

5. ***************************************************

* Notes from Final Report of the Constitutional Commission 1988



Those people who think that they can drive without a licence and that somehow the traffic legislation does not apply to them will find that the Courts do not agree.

Case extract from The Supreme Court of New South Wales – Losalini Rainima v Magistrate Freund & Ors (2008/11084)12 September 2008

“It seems that the group holds strong views about the legitimacy of aspects of this State’s traffic legislation. Certainly, the plaintiff does. Whatever the views of the group might be, this appeal turns upon the attitude of the plaintiff as it was articulated by her in the Local Court and, through her representatives, in this Court. Put shortly, as it relates to the present case, it is that the State is under a duty not to impose upon her its driver licensing regime.

The strength of her belief has cost her dearly, leading to her remaining in custody for the period from her arrest for disqualified driving on 15 December 2007 to 14 September 2008, just two days hence. She was granted conditional bail, but refused to enter it.

On 3 March 2008, after a defended hearing, she was convicted of the offence, fined, disqualified from holding a license for a further period, and placed on a five year good behaviour bond. She refused to enter the bond.

Later that day, pursuant to s97 of the Crimes (Sentencing Procedure) Act 1999, she was sentenced to imprisonment for nine months, with a non-parole period of three months, to date from 15 December 2007.


When the non-parole period expired she could not be released because she refused to accept the conditions of parole. Accordingly, she can be released only on the expiry of the nine month sentence.

On an earlier occasion, when the matter was in for mention in the Local Court, the plaintiff foreshadowed that she would be raising a constitutional defence and a challenge to the jurisdiction of the court. She subsequently arranged for the service of a notice, pursuant to s78B of the Judiciary Act 1903 (Cth), that the case involved matters arising under the Commonwealth Constitution or involving its interpretation.

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other.

 

For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not.  If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.


Leave to appeal against the magistrate’s interlocutory order is refused. The appeal against the conviction and sentence is dismissed. If necessary, I shall hear the parties on costs.

I would remind the plaintiff that, notwithstanding the fact that she has served her prison term rather than entering into the good behaviour bond, she remains subject to the period of disqualification of her licence pronounced by her Honour. That period now extends to 19 May 2023. She must be in no doubt that, if she drives a motor vehicle during that period, she could face a further significant term of imprisonment.”

Magistrate Hidden J.
The Supreme Court of New South Wales – Losalini Rainima v Magistrate Freund & Ors (2008/11084)12 September 2008

http://www.thenewspaper.com/rlc/docs/2008/au-nswrainma.asp

Discussion Points

The definition of a “Driver” in Bouvier’s Law Dictionary, (1914 ed., Pg. 940) is “One employed in conducting a coach, carriage, wagon, or other vehicle.”

The U.S. definition of “Motor Vehicle” (Title 18 USC 31) is “Every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, or passengers and property.”

“Used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other considerations, or directly or indirectly in connection with any business, or other undertaking intended for profit.”

The definition of “Traffic” in Bouvier’s Law Dictionary, (1914 ed., Pg. 3307) is “Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money.”

Those indoctrinated by the OPCA movement are told to use the term “TRAVEL” or “SOJOURN” as opposed to “DRIVE”, and “AUTOMOBILE” as opposed to “VEHICLE” etc. They claim that “driving” is a business term, denoting “For Hire”, and for these reasons the activity doesn’t apply to those using their conveyance just for private use.

Unfortunately for them, these definitions from outdated foreign dictionaries make no difference at all in the eyes of police or magistrates, and they have no obligation to follow these terms at all. Roads and transport are a state matter, and each state has it’s own Roads and Traffic Act, with the glossary of terms included. This is called “Intrinsic evidence”, which is defined as information contained within the definition section of the Act. The use of the Interpretation Acts, and Hansard (a record of debates in parliament concerning that legislation) is called “Extrinsic evidence” which is defined as information which is obtained from outside of the Act.

This is NSW legislation, but you’ll find the other states are similar. This is the definitions NSW Police and the courts are obliged to follow…

LICENCE…

“driver licence” means: (a) a licence (including a conditional licence, a provisional licence and a learner licence) issued in accordance with the statutory rules authorising the holder to drive one or more classes of motor vehicle on a road or road related area, or (b) a driver licence receipt.

“driver licence receipt” means a receipt that: (a) is issued following an application for an Australian driver licence and after payment of any applicable fee, and (b) authorises the holder to drive one or more classes of motor vehicle on a road or road related area.

“learner licence” means a licence or permit issued to a person under a law in force in a State or internal Territory to authorise the person to drive a motor vehicle on a road or road related area for the purpose of learning to drive a motor vehicle.

“probationary licence” means a licence to drive a motor vehicle: (a) issued to a person who applies for a driver licence following a period of disqualification from driving: ordered by a court in Australia, or (b) issued to replace an equivalent licence issued under a corresponding driver law.

“provisional licence” means a licence (other than a learner licence) to drive a motor vehicle, issued under a law in force in a State or internal Territory, that is subject to conditions, restrictions or qualifications.

“provisional P1 licence” means a provisional P1 licence issued in accordance with the statutory rules.

“provisional P2 licence” means a provisional P2 licence issued in accordance with the statutory rules.

“relevant Australian driver licence” means: (a) an Australian driver licence, or (b) a learner licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area.

“restricted licence” means an authority to drive a motor vehicle issued at the direction of a court in Australia that authorises the holder to drive only in the course of the holder’s employment or in other specified restricted circumstances.

“unrestricted driver licence” means a driver licence other than a learner licence or provisional licence.

VEHICLE…

“motor vehicle” means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

“vehicle” means: (a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or (b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or (c) any other description of vehicle prescribed by the statutory rules.

“registrable vehicle” means: (a) any motor vehicle, or (b) any trailer, or (c) any other vehicle prescribed by the statutory rules for the purposes of this definition.

“registered” and “registration” in relation to a vehicle-see section 7.

TRAFFIC…

“traffic” includes vehicular traffic and pedestrian traffic and all other forms of road traffic.

DRIVE/DRIVER…

“drive” includes: (a) be in control of the steering, movement or propulsion of a vehicle, and (b) in relation to a trailer, draw or tow the trailer, and (c) ride a vehicle.

“driver” means any person driving a vehicle, and includes any person riding a vehicle.

http://www.austlii.edu.au/…/n…/consol_act/rta2013187/s4.html

“THE RIGHT TO TRAVEL” IS NOT A RIGHT TO “MOTORISED TRANSPORTATION”…

[I will be researching the equivalent case law in Australia, (and adding it to this post) but the following rulings in U.S. case law are established precedents in that jurisdiction, so I’m quite sure that Australian common law would hold similar findings…]

The U.S. Supreme Court has recognized a protected right to interstate travel, (Saenz v. Roe) and the Sixth Circuit has recognized a protected right to intrastate travel, i.e., “a right to travel locally through public spaces and roadways,” (Johnson v. City of Cincinnati)

Yet, the district court held the protected right to travel does not embody a right to a driver license or a right to a particular mode of transportation, citing Duncan v. Cone, 2000 WL (holding “there is no fundamental right to drive a motor vehicle.”)

John Doe No. 1 v. Georgia Dep’t of Public Safety, observed that “the Circuit Courts have uniformly held that burdens on a single mode of transportation do not implicate the right to interstate travel”

Further, the district court held that the right to travel, whatever its contours, is not infringed by Chapter 778 because a person who receives a certificate for driving is able to operate a motor vehicle just like a person who receives a driver license. (LULAC, 2004) Potential difficulties that may be experienced by one who does not have a driver license to use for identification purposes, were held not to implicate the right to travel.

In Saenz, the Supreme Court identified three components of the right to travel: “It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens in that State.”

“A state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” ~ Attorney General of New York v. Soto-Lopez

Tennessee’s issuance of certificates for driving, which confer all the same driving privileges as driver licenses, is clearly not designed primarily to impede travel and can hardly be said to deter or penalize travel. The state’s denial of state-issued photograph identification to temporary resident aliens may arguably result in inconvenience, requiring the bearer of a certificate for driving to carry other personal identification papers, but this inconvenience can hardly be said to deter or penalize travel. To the extent this inconvenience burdens exercise of the right to travel at all, the burden is incidental and negligible, insufficient to implicate denial of the right to travel.” ~ Town of Southold v. Town of East Hampton

U.S. case law recognises that “even citizens do not have a constitutional right to the most convenient form of travel. Something more than a negligible or minimal impact on the right to travel is required before strict scrutiny is applied.” ~ State of Kansas v. United States

Section 92 Freedom of travel…

Section 92 of the constitution has actually nothing to do with freedom of travel between the states, or some constitutional right to drive unregistered and unlicensed, as Australian Freeman like to imply, but rather, the concept of FREE TRADE between the states…

In the case of Cole v Whitfield, in a unanimous decision, the High Court identified the full extent of s. 92:

“The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries. The expression “free trade” commonly signified in the nineteenth century, as it does today, an absence of protectionism, that is, the protection of domestic industries against foreign competition…”

Accordingly, s. 92 prohibits the Commonwealth and the States from imposing burdens on interstate trade and commerce which: 1. discriminate against it by conferring an advantage on intrastate trade or commerce of the same kind, and 2. are protectionist in character.

POLICE POWERS AND IDENTIFICATION

A common Freeman argument in Australia is that police have no power to ask for identification. The argument seems to be based around DPP v Hamilton [2011] VSC 598 (aka Hemingway v Hamilton or ‘Hemingway’) where the Supreme Court ruled that police have no unfettered right to stop a person arbitrarily.

In the case, Lieutenant Senior Constable Hemingway was on patrol in the Melbourne CBD, and was flagged down by an employee of Taco Bill. The employee informed Hemingway that two men had left the restaurant without paying, and indicated one of them was Hamilton. When Hemingway approached Hamilton, he fled on foot. Hemingway pursued Hamilton in his police car and finally arrested and charged him with resisting arrest.

The court was asked if police had a right to stop a person on a mare suspicion. The case circulated around the common law powers of arrest. A common law arrest requires a belief an offense had been committed, informing the person they are under arrest, why they are under arrest, physical contact and the person understanding why they are under arrest: (see eg George v Rockett (1990) 170 CLR 104; Collins v Wilcock [1984] 1 WLR 1172; ).

Even though Hemingway had been given indication that Hamilton may have committed an offense, only one element of the 5 needed to complete an arrest were fulfilled before the chase began.

The Magistrate struck the charge out for three reasons:

1. The arrest occurred after the chase had finished, not before it started. He cannot have been resisting arrest if the arrest had not been completed in the first place.
2. Police were relying on information from the Taco Bill employee and not their own investigation, this does not satisfy ‘belief’.
3. While a person 1)on foot2) has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligationtooltip({ tip: "#footnote_plugin_tooltip_text_4319_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Freemen argue this case provides a blanket immunity from being stopped by police for identification, even when driving, but miss two crucial elements:

– Hamilton was on foot, not in a car.
– Police didn’t have sufficient grounds for ‘belief’.

CAN POLICE ‘STOP’ A PERSON AND ASK FOR ID AT ANY TIME?

Generally speaking no. Unless you are driving a car, in a designated search area, believed to have committed an offense or know something about a serious offense police have no legal grounds to ask for ID.

However, this is not a blanket protection and does not prevent police from pulling you over. Driving a car is a potentially dangerous task. This is why it is regulated; cars are big metal things full of explosive liquid traveling at speed, it’s a good idea to check if the person is allowed to do it.

A similar argument in centres around Kaba v DPP, in which the magistrate ruled that police do not have an unfettered right to stop a vehicle. While this is true to a certain extent, OPCA theorists seem to disregard the fact that Kaba was not the driver, and also that the decision was overturned on appeal regarding s 59(1) of the Road Safety Act.

http://www.austlii.edu.au/…/…/consol_act/rsa1986125/s59.html

as affirmed in the Victorian Supreme Court decision of DPP v Kaba [2014] VSC 52 (18 December 2014)

at 486 “For the reasons given in this judgment, the ruling of the magistrate will be quashed because his Honour committed an error of law upon the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act. Contrary to his Honour’s interpretation, police do have a power of random stop and check under that provision.

Credit to author : The contents of this Article are from the research of Robert Sudy and published on his Facebook Freeman Delusion Page.



References   [ + ]

1. on foot* has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligation
2. has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligation


The Australian Paralegal Foundation has made a submission to the Parliamentary inquiry into a better family law system to support and protect those affected by family violence.

Parliamentary inquiry into a better family law system to support and protect those affected by family violence

Parliamentary inquiry into a better family law system to support and protect those affected by family violence

Here is the link to the Government Website where the our submission was published, if you scroll down  it is number 8 on the list of submissions.

Its also an opportunity to examine the other submissions.

 

 





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).

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.

 





It is clear already there is a legal requirement to advise patients of all material risks associated with vaccines[1] and to obtain valid informed consent[2]. However, there is an equally a legal duty to disclose a suspected adverse event which has occurred in the course of treatment.  If a parent brings a child in for a vaccine, and afterwards the child develops symptoms of problems, the Doctor has a duty of care to investigate. One Australian case has directly dealt with this issue.

Failing to disclose potential adverse event

In Wighton v Arnot [2005] NSWSC 637[3], the patient had an adverse event during a procedure which caused nerve damage but the doctor did not advise the patient of his suspicion that this had occurred.  Moreover, the doctor didn’t test for it and did not initiate an investigation into the adverse event.  In that case by the time the patient saw a neurosurgeon for ongoing pain and by the time the nerve injury was diagnosed, it was too late for remedial medical treatment.

The adverse event in itself was not negligence.  The question was whether the doctor breached a duty of care to inform the patient, investigate the suspected injury and provide an opportunity for any remedial treatment.  The court held that there had been a breach.

Duty to disclose potential adverse event

The Court in holding that a duty to disclose existed, considered the relevance of that failure to disclose to the medical outcome, meaning, if the Doctor had informed the patient and investigated the matter, that there was potential to treat the condition and/or mitigate the damage caused.

The Court held that the exercise of due care required of the defendant was that he take reasonable steps to determine whether an adverse event had occurred and moreover that the patient had a right to know about the adverse event.

This decision recognised that there is a duty to disclose adverse event injuries and investigate them.  The key issue here is that the Court will consider is whether as a result of the failure to disclose and/or investigate the adverse event in a timely manner had a negative impact on the health outcome of the patient.

Most significantly the decision means that a doctor’s duty of care when administering vaccines to a legal requirement that a doctor, most especially if a parent is alarmed or raises concerns about a potential adverse reaction, not only to attend a post-procedure consultation, but that the doctor take reasonable measures to investigate and inform the patient of the adverse event.

This means it is vital that a doctor not only examine a parents concerns with a sufficient level of care, they must also inform a patient of any suspected adverse reaction from the vaccine and take reasonable measures to investigate and confirm diagnosis of the suspicions, once more the key issue is that if diagnosed early, remedial medical treatment can be undertaken in a timely manner to avoid further damage.

 

[1] Wrongs Act 1958 (Vic) s.50 (even where obvious – S.54).

[2] 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

[3] Wighton v Arnot [2005] NSWSC 637.

 

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.





The Family Court Act1 provides that the Court must consider the best interests of the Child at all times, when exercising this legislative authority, s.60CA2 the Act states: In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. How a court determines what is in a child’s best interests is outlined in Section 60(CC)3, this paper will examine the position of the Court when it acts as a parent, therefore 60(CC) Sub Section 2(b)4 is not invoked, meaning that there is no suggestion in this scenario of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, just an ordinary loving home, perhaps with parents who can not agree on this issue and need the Court to decide.

best_interests

Examining the Courts role in exercising parental responsibilities.

The United Nations Convention on the Rights of a Child does not explicitly define a child’s best interests. The term is ‘imprecise, but no more so than the “welfare of the child” and many other concepts with which the courts must grapple’, said the High Court majority in Marion’s Case5.

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 account6. Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1) but, if they fail to make the child’s best interests a basic concern, the State may intervene to protect those interests (see article 9.1 for example)7.

In common law the process the Court follows when answering such questions is not subjective but objective. The Court in effect invokes jurisdiction by Parens patriae, taking on the role of the parent.

When it comes to decisions that involve the Doctor-Patient relationship, at Common law this relationship does not exist without informed consent.

In the case of the Family Court of Australia exercising Parens patriae jurisdiction over the child, to ensure the child’s best interests are met, the Court must take the position of the reasonable man, or as the case may be the reasonable parent, it should take the role as a parent exercising and granting informed consent.

As such the Court must consider the question whether it is in the best interests of the Child to be vaccinated.

On one hand there is a preponderance of evidence produced by the Big Pharmaceutical Companies that demonstrate the safety and efficacy of Vaccines generally to the satisfaction of the Government authorities that regulate this area. It is widely acknowledged the benefits vaccines have brought to society over the decades we have been using them and the Governments objectives of increasing vaccination rates, for alleged herd immunity and the greater good of society as a whole.  These are really irrelevant considerations, when considering the individual, and their best interests, the greater good may not be what is best for the child.

In the first instance, the Doctor-Patient relationship can only exist with informed consent, this in turn involves full disclosure, especially when sought by a parent. Secondly the Doctor must consider each patient as an Individual when assessing whether or not the medical treatment proposed is in the best interests of the Child.

To answer this question the Court needs to examine firstly what is the risk involved that the vaccine seeks to prevent.

INFANRIX

Infanrix hexa is a vaccine used to prevent six diseases: diphtheria, tetanus, pertussis (whooping cough), hepatitis B, poliomyelitis (polio) and Haemophilus influenzae type b (Hib)8.

According to the World Health Organisation9 there have been 9 Cases of Diptheria in Australia since 2007, there have been Zero cases of Tetanus (Neonatal), there have been Zero cases of Polio.  Hepatitis B is a blood-borne virus. It does not spread in a community setting, especially among children who are unlikely to engage in high-risk behaviors, such as needle sharing or sex10, 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 not be considered a significant benefit and finally pertussis is an interesting anomaly in that the more we have vaccinated against it the more it occurs12 with cases peaking last year at 22,508.

It is worthy to note that acellular pertussis (aP) vaccine (the final element of the DTaP combined vaccine), replaced the whole cell pertussis vaccine in the late 1990s, which was followed by an unprecedented resurgence of whooping cough [similar to what we see in Australia].

An experiment with deliberate pertussis infection in primates revealed that the aP vaccine is not capable of preventing colonization and transmission of B. pertussis13. The FDA has issued a warning regarding this crucial finding14.

Against this back drop of seemingly little scientific basis to arouse a reasonable parent to fear that their child is at risk, we must now examine the adverse events associated with Infanrix.

In Duke-Randall & Randall15 the Family Court ordered a child be vaccinated, however in that case there was no evidence before the Court of risk of harm to the children in being immunised.

One in Ten children given Infanrix Hexa will experience appetite loss, irritability, abnormal crying and restlessness with very common pain, redness, local swelling at the injection site, fever 38°C, and fatigue16.

One in a Hundred will experience upper respiratory tract infection, Respiratory, thoracic and mediastinal disorders such as Bronchitis and rhinitis, vomiting, diarrhoea, enteritis and gastroenteritis17 along with Pruritus and local swelling at the injection site over 5cm in size on an infant with fevers reaching 39.5°C, injection site reactions, including induration.

Less common reactions include somnolence, convulsions, bronchospasm, laryngitis, stridor, cough, abdominal pain, constipation, dermatitis, urticaria, conjunctivitis and diffuse swelling of the injected limb, sometimes involving the adjacent joint18.

Additionally in somewhere between 1/1000 and 1/10,000 cases it is associated with blood and lymphatic system disorders, lymphadenopathy, thrombocytopenia Immune system disorders and allergic reactions (including anaphylactic and anaphylactoid reactions) and nervous system disorders including convulsions, collapse or shock-like state (hypotonic hyporesponsive episode) with Respiratory, thoracic and mediastinal disorders apnoea1)[see Warnings and Precautions for apnoea in very preterm infants (≤ 28 weeks of gestation)]

Skin and subcutaneous tissue disorders like angioneurotic oedema and general disorders and administration site conditions including extensive swelling reactions, swelling of the entire injected limb and vesicles at the injection site19

The list of adjuvants and residues in Infanrix Hexa include aluminium hydroxide, aluminium phosphate, lactose, sodium chloride (salt), Medium 199, potassium chloride, formaldehyde, glycine, sodium phosphate, dibasic dehydrate, potassium phosphate, monobasic, neomycin sulphate, polymyxin B sulfate, polysorbate 20 and 80.

There is no conclusive science to support a position that the above adjuvants and residues have no long term lasting negative effect on humans, in particular the Court ought to consider studies that have linked things like Aluminum to degenerative brain conditions. In a study of Aluminum Neurotoxicity in pre-term infants receiving intravenous-feeding solutions containing aluminum it was associated with impaired neurologic development, brain damage in infants20.

In this case Infarix Hexa contains 0.5mg of aluminium hydroxide 0.32 mg of aluminium phosphate and where in the above study the dosage of 5ug/per kg of body weight was the maximum before noticeable impaired neurologic development, brain damage in infants occurred. The dosage being administered intra-muscularly in vaccines exceeds this limit by 500 times.

There is a Positive Association found between Autism Prevalence and Childhood Vaccination uptake across the U.S. Population21

Moreover there is no conclusive science provided to the TGA in regards to testing on the long term effects of using combinations of vaccines in one dose for convenience.

However we do have reports of adverse events to consider which are released by the TGA22, since January 1st 2014 to now (less than 2 years) there have been 2,575 adverse reactions associated with Infanrix, which include death in two reported cases.

With the TGA Performance statistics report: July 2015 to June 2016 citing some 36,290 adverse events being recorded against vaccines, which when considered against the latest available data of some 3,937,876 vaccines administered in Australia, it represents a 0.93% chance of you or your child experiencing an adverse reaction due to a vaccine.

The TGA also admits there is no data or studies done comparing vaccinated vs unvaccinated children to see if there are any trends in ill-effects of those that are vaccinated against children who are not23.  

The above data and information is all sourced from Government reports, the Manufacturers disclosures and Scientific Journals, there can be no suggestion of bias or cherry picking data, as the entire data-sets are used.

The Court is now in the position to examine the question having invoked its common law jurisdiction of Parens patriae to weigh the information before it, and answer the question from the perspective of the reasonable parent whether on the balance of probabilities that it is in the best interests of the Child to be immunized.

Given the special relationship that exists in the Doctor-Patient relationship which is only created by informed consent (absent consent, it is assault and/or medical malpractice) and the vital public importance of public confidence in the Health System and the maintenance of existing standards of consent as required by law, the Court in light of this needs to consider the individual interest of the child in question.

From the available evidence, there is no reasonably foreseeable risk in the first instance for the diseases being vaccinated against, since 2007 to now there is a statistically insignificant amount of people contracting the diseases, moreover if we do a comparison of the numbers contracting the disease versus the numbers experiencing adverse reactions, we have more adverse reactions than the disease itself.

Against the backdrop of the chances of the child contracting the disease against the adverse reactions reported, is the rights of the child here. The Court exercising its Parens patriae responsibilities weighing the interest of the child, when the child is with a loving, caring and responsible parent to monitor the child’s health and protect it from harm, the Court cannot now order on the balance of probabilities that the child would be better off than not being vaccinated.

The Court can not exercise its responsibilities of the reasonable parent and now order the parents right to informed consent be over-ridden and that any damage done to the child is an acceptable risk. This under no circumstances can be argued as being in the best interests of the Child.

In Rogers v Whitaker25 the High Court considered the position of informed consent, in that case there was less than a 1% chance of an adverse reaction, just as we have here statistically with the vaccines.

In the judgement text of GAUDRON J we can seek guidance in what the Court must consider when weighing the medical risks of a procedure in the best interests of the Child.

Duty of Care

  1. There is no difficulty in analysing the duty of care of medical practitioners on the basis of a “single comprehensive duty covering diagnosis, treatment and the provision of information and advice, provided that it is stated in terms of sufficient generality26.

  2. The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practicing in the area concerned. To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners. And, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk27.

Accepted Practice is not a Consideration at law

  1. Accordingly, even in the area of diagnosis and treatment there is, in my view, no legal basis for limiting liability in terms of the rule known as “the Bolam test”. This test derives from the charge to the jury by McNair J. in Bolam v. Friern Hospital Management Committee (1957) 1 WLR, at p 587) which is to the effect that a doctor is not guilty of negligence if he or she acts in accordance with a practice accepted as proper by a responsible body of doctors skilled in the relevant field of practice. That is not to deny that, having regard to the onus of proof, “the Bolam test” may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such, it may have some utility as a rule-of-thumb in some jury cases, but it can serve no other useful function28.

Duty to provide all information when asked

  1. Diagnosis and treatment are but particular duties which arise in the doctor-patient relationship. That relationship also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the information to be provided will depend on the individual patient concerned. In other cases, where, for example, no specific enquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient29.

The Individual Patient Perspective

  1. Whether the position is considered from the perspective of the individual patient or from that of the hypothetical prudent patient and unless there is some medical emergency or something special about the circumstances of the patient, there is simply no occasion to consider the practice or practices of medical practitioners in determining what information should be supplied. However, there is some scope for a consideration of those practices where the question is whether, by reason of emergency or the special circumstances of the patient, there is no immediate duty or its content is different from that which would ordinarily be the case.

There is no EMERGENCY

  1. Leaving aside cases involving an emergency or circumstances which are special to the patient, the duty of disclosure which arises out of the doctor-patient relationship extends, at the very least, other matters identified as being within the duty of disclosure were the duty to alert the patient to bodily abnormality, the failure of the patient’s ailment to respond to the doctor’s ministrations, limitations to be observed for his or her welfare, precautionary therapy for the future and the need for or desirability of alternative treatment promising greater benefit.), to information that is relevant to a decision or course of action which, if taken or pursued, entails a risk of the kind that would, in other cases, found a duty to warn.

A RISK IS REAL AND FORESEEABLE BUT NOT FAR FETCHED AND FANCIFUL THAT AN ADVERSE REACTION TO A VACCINE WILL OCCUR.

A risk is one of that kind if it is real and foreseeable, but not if it is “far-fetched or fanciful”30. Certainly, the duty to warn extends to risks of that kind involved in the treatment or procedures proposed.

  1. And as at present advised, I see no basis for any exception or “therapeutic privilege” which is not based in medical emergency or in considerations of the patient’s ability to receive, understand or properly evaluate the significance of the information that would ordinarily be required with respect to his or her condition or the treatment proposed.

Finally as there is no Medical Emergency to justify the Court intervening in the Parent-Child and Doctor-Patient relationships, there is no basis for the Court to order a Child be vaccinated against the express wishes of a parent, when the Court exercises its Parens patriae jurisdiction and acts as a Parent would in the best interests of the Child, the data is in, and no matter what the science says that the benefits may outweigh the risks to the community and society as a whole, in this case the onus is on the Court to consider the Child’s best interests individually and here there is no reasonably foreseeable risk that we are protecting the child from and there is an appreciable risk of harm.

SPECIAL NOTE : This post is not to be considered legal advice, Family Law matters are particularly sensitive and we urge any parent reading this and interested to consult your lawyer for legal advice on whether this argument could assist your case.

Edits :
The following paragraph has been removed from the above text as the paper has been pulled by the Journal.

“, however there is a recent study of 415 mothers who provided data on 666 children, of which 261 (39%) were unvaccinated. Vaccinated children were significantly less likely than the unvaccinated to have been diagnosed with chickenpox and pertussis, but significantly more likely to have been diagnosed with pneumonia, otitis media, allergies and neurodevelopmental disorders24.”


Footnotes

1 FAMILY LAW ACT 1975 (Cth).

2 Ibid at S.60(CA).

3 Ibid at S.60(CC).

4 Ibid at S.60(CC), 2(b).

5 Marion’s Case: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

6 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]

7 Ibid.

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

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

11 Re H [2011] QSC 427.

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

13 Warfel et al. (2014) Acellular pertussis vaccines protect against disease but fail to prevent infection and transmission in a nonhuman primate model. Proc Natl Acad Sci USA 111:787-92http://www.ncbi.nlm.nih.gov/pubmed/24277828 accessed 29/11/2016 at 10.57am.

Baboons vaccinated with aP were protected from severe pertussis-associated symptoms but not from colonization, did not clear the infection faster than naïve [unvaccinated] animals, and readily transmitted B. pertussis to unvaccinated contacts. By comparison, previously infected [naturally-immune] animals were not colonized upon secondary infection.”

14 U.S. Food and Drug Administration, FDA study helps provide an understanding of rising rates of whooping cough and response to vaccination http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm376937.htm accessed 29/11/2016 at 10.58am.

15 Duke-Randall & Randall [2014] FamCA 126 (12 March 2014)

17 Ibid.

18 Ibid.

19 Ibid.

20 New England Journal of Medicine, Aluminum Neurotoxicity in Preterm Infants Receiving Intravenous-Feeding SolutionsNicholas J. Bishop, M.D., Ruth Morley, M.B., B.Chir., J. Philip Day, Ph.D., and Alan Lucas, M.D.

N Engl J Med 1997; 336:1557-1562May 29, 1997DOI: 10.1056/NEJM199705293362203 http://www.nejm.org/doi/full/10.1056/NEJM199705293362203 accessed 29.11.2016 at [5.02pm]

22 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

23 Email from TGA – Marked as Annex “A”

24 Vaccination and Health Outcomes: A Survey of 6- to 12-year-old Vaccinated and Unvaccinated Children based on Mothers’ Reports http://journal.frontiersin.org/article/10.3389/fpubh.2016.00270/abstract accessed 28/11/2016 at [4.47pm].

25 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992)

26 Rogers v Whitaker [1992] HCA 58 at [2]of Guadron J

27 Ibid at [3].

28 Ibid at [4].

29 Ibid at [5]

30 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)

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.



References   [ + ]

1. [see Warnings and Precautions for apnoea in very preterm infants (≤ 28 weeks of gestation)]

Skin and subcutaneous tissue disorders like angioneurotic oedema and general disorders and administration site conditions including extensive swelling reactions, swelling of the entire injected limb and vesicles at the injection site19



A beautiful summary of how the Court views evidence that you submit.

evidence

I often hear people complaining how the Police did not act on their complaints or some other authority did not act or did not accept their complaint.

The problem often comes down to the quality of your evidence…will your evidence pass this test?

“The defendant’s case imputed serious dishonesty to the plaintiff and it was required to prove its case on the balance of probabilities in accordance with s 140 of the Evidence Act (NSW). The court noted that in order to satisfy the onus,…

the defendant must adduce proofs that raise a “more probable than not” inference in favour of what it urges; there must be a reasonable and definite inference available on the whole of the evidence; there must be something more than conflicting inferences of equal degrees of probability. And in assessing whether the defendant has satisfied its obligation, the Court must take into account the gravity of the matters alleged….

This case above was an Insurance case where the person had to prove that it was not a fire that was deliberately lit.

The plaintiff claimed on the policy. The defendant refused to pay on the basis that the claim was fraudulent. It alleged that the fire was lit deliberately; the plaintiff had a financial motive for setting the fire; and the plaintiff made false statements to the defendant and its agents in connection with, and to induce payment of, the claim.

The issues for determination were whether the plaintiff caused or connived at the setting of the fire and whether the plaintiff knowingly made false misrepresentations to the defendant to induce it to pay the claim, therefore excluding the plaintiff from cover under the policy.

The court inferred that the fire was set deliberately, by someone other than the plaintiff, who had knowledge of the alarm code and who may have had a key to the property. However, the court could not conclude that access to the property was obtained by someone whom the plaintiff had entrusted a copy of the key for the purpose of setting the fire. To the contrary, the court observed that the plaintiff’s financial interests would have been best served by prompt completion of the building works and sale of the property thereafter. Although the court acknowledged that the plaintiff’s statements to the defendant were inconsistent from time to time, it did not accept that the statements made by the plaintiff were with knowledge that they were false and with the intention of misleading the defendant into accepting and paying the claim.

Considering and weighing the evidence as a whole, and bearing in mind the gravity of the finding for which the defendant contended, the court was not satisfied, on the balance of probabilities, that it was the plaintiff who caused the fire to be set (or that the plaintiff connived at its being set). The court therefore concluded that the defendant failed to discharge its onus of proving that the plaintiff was relevantly responsible for setting the fire.

A Verdict was entered for the plaintiff for $991,946 plus interest.

Implications for you

For an insurer to successfully deny an insurance claim for fraud, the standard of proof that the insurer must meet is the standard of balance of probabilities, requiring thorough investigation and consideration of all of the evidence.

Rolleston v Insurance Australia Ltd [2016] NSWSC 1561

Source : Barry Nillson Law

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.





Case : Cheng v Farjudi [2016] NSWCA 316

canvictims

The Crime

The appellant and the respondent were involved in an altercation in the gaming room at the Parramatta Leagues Club. The respondent suffered a fracture to the right orbit and psychiatric injury in the form of post-traumatic stress disorder. The appellant was the subject of criminal charges in relation to the assault on the respondent. He entered a guilty plea and had a good behavior bond imposed pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Civil Case for Damages

After admitting guilt in the Criminal trial, the victim now initiated a Civil Claim for damages.

This time he denied that he had struck the respondent and pleaded, in the alternative, that he had acted in self-defence within the meaning of s52 of the Civil Liability Act 2002 (NSW). He claimed he had been acting in defence of his wife. The appellant further pleaded that any award of damages ought to be limited by the operation of s 53 of the Civil Liability Act.

The issues for determination on appeal were:

(i) Whether the respondent was entitled to damages at all and whether, if that were the case, they should have been limited pursuant to s 53 of the Civil Liability Act 2002 (NSW);

(ii)   Whether the award of exemplary damages was properly made; and

(iii)   Whether the award for future out-of-pocket expenses was justified on the evidence.

HELD : Awarded damages in the following amounts:

(1) General damages: $100,000

(2) Past out of pocket expenses: $2,500

(3) Future out of pocket expenses: $28,009 (corrected to $18,181)

(4) Past domestic assistance: $40,824

(5) Future domestic assistance: $20,594

 

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.





Without consent there is no “Doctor-Patient” relationship in law.

doctor

The Informed Consent Doctrine is the cornerstone of the Doctor-Patient relationship.   It has altering the attitudes of a new generation of Doctors towards their patients, and its requirements are now reflected in consent forms that heath care institutions require patients to sign upon admission and before various procedures are performed.

Setting the Boundaries for the Doctor-Patient Relationship.

You can only give valid permission  if you are provided with all the information that is necessary to make a decision about the proposed medical treatment.
It is not acceptable if the Doctor just asked if he has your permission to perform the procedure.
You must be able to understand the reasonable and foreseeable consequences of giving permission for consent or not giving permission for the procedure.
It is generally accepted in order to provide proper permission for medical treatment your doctor must explain :
1) The Nature of the Proposed Medical Procedure.
2) The Reasonable Alternatives to the medical procedure.
3) The Risks, Benefits, and uncertainties.
Your permission may be expressed in words or actions, but for your protection you ought to insist on it being in writing.
For example when undergoing a procedure your doctor will usually get you to sign a consent form to confirm your permission,  but he may want to avoid it, to create uncertainty and make it difficult for you to prove you did not give consent.
Any medical procedure that is performed without proper informed consent is deemed to be an assault, the Doctor who performed the procedure will be responsible for any injury as a result of that medical procedure.
It is critical for you to insist on the consent to be in written form and the process by which it was granted (if at all) recorded.
Particularly you should have written notes of the above three points using them as respective headlines.
Source : http://www.mckigganhebert.com

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.