Danny Jovica

ATO loses JobKeeper test case in the Full Federal Court

A sole trader has been granted access to JobKeeper after the Full Federal Court unanimously ruled that the ATO had erred in its decision not to grant the business more time to establish its eligibility.

“As is made plain by government announcements and the provisions of the legislation, the JobKeeper payment was intended to benefit taxpayers in Mr Apted’s general circumstances,” said Honourable Justice Thomas Thawley.

“The commissioner, in his reasons, did not point to any good reason not to exercise the discretion in s 11(6) in Mr Apted’s favour; it is clear that the real reason for the commissioner’s refusal to exercise the discretion was the lack of ABN registration on 12 March 2020.

“But this was the very thing which lay the foundation for the exercise of the discretion. Of itself, this was not a proper basis to refuse to exercise the discretion.”

Honourable Justice John Logan also pointed out that the Australian Business Registrar —  the Commissioner of Taxation in another guise — had accepted that Mr Apted was carrying on an enterprise before 12 March 2020, giving “pause for thought as to why Mr Apted has been put to so much bother in relation to his eligibility to receive a payment the object of which ‘is to provide financial support directly or indirectly to entities that are directly or indirectly affected by the coronavirus known as COVID-19’.”

“The broader application is that in every decision that the commissioner has made where he has refused to exercise a discretion, he now needs to go back and check it because the Full Federal Court has said you’ve taken a far too narrow approach in exercising the discretion and you need to look at the facts of the taxpayer,” Ms Williamson told Accountants Daily.

“A lot of state relief was based on the fact that you needed to be registered for JobKeeper, so there’s going to be flow-on issues if businesses can now get it.”


JobSeekers’ pay CUT if children not vaccinated

Welfare support recipients risk losing access to Centrelink payments if their children are not vaccinated according to government requirements, a Services Australia official has confirmed.

Children of welfare recipients of up to 20 years old must have the relevant immunisation jabs, Services Australia general manager Hank Jongen said.

 
 

'Dead' man in breach of COVID-19 restrictions rants at magistrate, slapped with $5,000 fine in Kiama court

Asked to identify himself in court Mr Liske claimed he was a "dead entity" and referenced numerous conspiracy theories relating to his arrest in July last year.

"This is not Mr Liske. Mr Liske is dead. He is a dead entity," Mr Liske said.


A nine-month extension to the Victorian government's state of emergency powers has passed parliament with the support of three crossbench MPs.

David Leyonhjelm loses appeal bid, must pay $120,000 for defaming Sarah Hanson-Young

Added a post 

The Doctrine of informed consent operates at common law within Australian Health law.

The Doctrine commenced with the seminal Schloendorff decision, where it was held the need for Informed Consent is a prerequisite to the Doctor-Patient Relationship.  Meaning if you have not provided informed consent to the medical practitioner for a procedure (including vaccinations) then there is no "Doctor-Patient" relationship that exists for that procedure. 

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.”

For further information on Informed Consent please read Contemporary Challenges regarding Informed Consent & Vaccination in Australia.

 

NOTHING IN THIS FORUM IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING FOR EDUCATIONAL PURPOSES, IT IS A CONDITION OF ENTRY INTO THIS FORUM THAT IF YOU INTEND TO ACT UPON ANY INFORMATION YOU FIND IN THIS FORUM THAT YOU BRING IT TO A LAWYER AND SEEK INDEPENDENT LEGAL ADVICE.

COVID-19 vaccinations & the workplace

The Fair Work Ombusdman makes it clear that things are unclear.
 
That in itself creates sufficient uncertainty for employers to want to avoid taking action against employeees who do not wish to be vaccinated.
Added a post 

Following the extension of the Commercial Tenancy Relief Scheme until 28 March 2021, the Victorian Government has launched the Commercial Landlord Hardship Fund Round 2.

Grants of up to $3000 per tenancy are available to eligible small landlords who reduce commercial rent for their tenants under the Commercial Tenancy Relief Scheme.

Full program guidelines and information on how to apply are available at Commercial Landlord Hardship Fund Round 2.

The Victorian Government offers other support for businesses, landlords and tenants. Details are available at Business Victoria COVID-19 business information.

Information on additional land tax relief for landlords can be found at  State Revenue Office Land Tax Relief.

Please share this message with your members and networks who might be interested.


Added a post 
If you are in Victoria and have a Commercial Lease and your business has been affected by COVID Lockdowns then you can apply for Rent Relief.
 
So long as you complete the Rent Relief Application you will receive a proportional reduction in your rent pro-rata to the reduction in your business turnover over the period demonstrated by BAS Statements or other accounting methods.

It is vital that this application for rent relief is completed and compliant with the legislative requirements and so long as you do that the landlord MUST : 
 
  1. Grant a reduction in the rent proportional to the decrease in turnover eg: Turnover dropped 70% means a 70% reduction in the rent.
  2. From that 70% Reduction in Rent 50% of it must be waived by the landlord altogether and the remaining 50% is on a deffered payment.
  3. The Victorian Small Business Commissioner is authorized by the Legislation to make a binding order on parties who do not participate in the process.
For more information visit the Victorian Small Business Commission website.
 

The Australian Government has developed a COVID-19 Vaccination Policy to guide the rollout of safe and effective vaccines across Australia.

This policy sets out the roles and responsibilities of the Australian Government and State and Territory Governments in implementing a COVID-19 vaccination program from early next year.

Should our promising vaccine candidates be found safe and effective, all Australians for which a vaccine is medically suitable will be able to be vaccinated for free.

Read more about the vaccination policy here: www.health.gov.au/n…/covid-19-vaccination-policy-endorsement

  • Miranda Mooney If it is anything like the COVID-19 tests, I’m sure there will be apprehension from some 🤷‍♀️

    The below is from the TGA itself.

    ‘The reliability of COVID-19 tests is uncertain due to the limited evidence base.

    Available evidence mainly comes from symptomatic patients, and their clinical role in detecting asymptomatic carriers is unclear.

    SARS-CoV-2 tests have undergone an expedited assessment by the TGA to enable their legal supply in Australia. These expedited assessments are based on the limited clinical and performance data currently available’ 

    https://www.tga.gov.au/covid-19-testing-australia-information-health-professionals?fbclid=IwAR07fn4BYf-c-OveIx08EmZdM5IhlSG493xdZVHiztRZR56w2ZzDJZGgU6U 


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    • Hardly something inspiring the use of the words "safe and effective".

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    • Phil Burke 'Will be available to" or *will be mandatory* is my concern. What they say is not always what they mean.

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      • Think of the No Jab No Pay/Play policy and now add to it.

        Its never mandatory.

        No Jab - No Job
        - No Travel
        - No [INSERT COMMERCIAL SERVICE]
        eg: Shopping, Sporting Activities

        Essentially NO JAB = NO LIFE

        "While the Australian Government strongly
        supports immunisation and will run a strong
        campaign to encourage vaccination, it is not
        mandatory and individuals may choose not to
        vaccinate. There may however, be circumstances
        where the Australian Government and other
        governments may introduce border entry or
        re-entry requirements that are conditional on proof
        of vaccination."

        Monitored by all things .... AIR

        "The AIR will be the unifying national system to
        monitor both overall immunisation levels and
        individual immunisation status. It will be mandatory
        for vaccination providers to make timely
        recordings of any COVID-19 vaccinations into AIR"

        So there is a national register.

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      Not logged in users can't 'Comments Post'.
      Added a post 

      What Follows below is an excise of the Conversation between myself and Serene Teffaha, with comments of Rufiath


      Danny Jovica Hello Serene Teffaha can you clarify exactly what you believe contravenes s.109 of the Constitution?

      My understanding the Commonwealth Act deals with Commonwealth matters (entry into Australia, interactions between states) and has no jurisdiction on the internal affairs in a State.

      Moreover s.8 provides for any concurrent operation of the Commonwealth and State Legislation.

      Mishka Hudson absent a s.109 conflict there is no basis for a cause of action with merit.

       

      Rufiath Yousuff Serene Teffaha - using examples that pull at the emotions of people is not a valid way of emphasizing your point. Just because vulnerable people ask you to represent them doesn't mean that you are immune from having ulterior motives due to the opportunity presented before you. I really hope you are sincere in your claims and are not exploiting people. Time will tell in relation to that and also the merits of any judicial avenues you are pursuing.

       

      Serene Teffaha Danny Jovica I have explained myself above. Biosecurity Act covers the field- it also deals extensively with management of infectious diseases for humans hence human Biosecurity emergency powers. With no offence to you Danny people are commenting without reading the law. Giving their opinions without understanding anything. Read section 8 carefully. There are no issues subject to States and Territories running concurrently with the Biosecurity Act meaning consistently. Further proof is found in subsection 8(3)and (4) where allowance is provided for setting different penalties and fault elements for breaches. Subsection 8(2) gives a clear preference in emergency times to the Federal Health Minister. So you have to read it properly to understand the context. Clearly the Biosecurity Act widens the field and deals with all matters of quarantine including for human infectious disease. With all due respect- I have detailed my opinion on many platforms and people don’t even bother to read the whole law and still disagree.


      • Serene Teffaha
        Danny Jovica have you read the entire Biosecurity Act 2015? Have you read itsEM? Have read all the regulations? Have you read each and every State and Territory Public Health and Emergency Act?
      •  

      Serene Teffaha Danny Jovica so if you are asked to be detained and examined because you are suspected of COVID-19 despite having no symptoms or contact with COVID-19, wouldn’t you want to be issued a public health order with the appropriate risk assessment and review rights or you don’t mind the Government ordering you what to do without any reason or are you so trusting that you would be happy for the authorities to say that you should be detained based on their suspicions and without being provided all the prescribed contact information?

      Danny Jovica Mishka Hudson There is no inconsistency.

      The misconception here is that the Commonwealth Act is somehow in conflict with the State Act.

      S.485 (5) A direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body.

      Where are there examples of any such thing occurring?

      At this State it is the States who are doing what they want internally which is why you see different responses state-to-state and Victoria accepting an offer of help from the Commonwealth to assist with the Military, however the Military are operating under State Police and officers.

      As for Serene Teffaha and her response above, with all due respect I do not need to read the entire act(s), regulations and explanatory memoranda as there is insufficient material provided to suggest there is a s.109 conflict.

      Surely it should be as simple as stating S.XXX of Cth vs S.YYY of State? After that if there is a demonstrable conflict on the surface I can read up further.

      In your 25 Page open letter s.109 is mentioned only once briefly.

      So I ask again respectfully where is the conflict being alleged.

      Serene Teffaha Danny Jovica the exemption to give a direction to an officer or employee of the State is not an exemption from the application of the Biosecurity Act to residents who are not carved out of course. Where there is an intergovernmental agreement which there is that exemption will be lifted. Furthermore there is an agreed plan which also ensures that the States and Territories agreed to complement the Biosecurity Act. The inconsistency is in relation to applying directives to groups rather than issuing them public health orders to individuals. So directives made under section 200 being applied instead of the proper processes under section 117 of the Public Health and Wellbeing Act and sections 60 and 61 of the Biosecurity Act 2015. So how about answering the question I asked you?

      Serene Teffaha Danny Jovica TAKE 2- I would love to know your answer to the question here- so if you are asked to be detained and examined because you are suspected of COVID-19 despite having no symptoms or contact with COVID-19, wouldn’t you want to be issued a public health order with the appropriate risk assessment and review rights or you don’t mind the Government ordering you what to do without any reason or are you so trusting that you would be happy for the authorities to say that you should be detained based on their suspicions and without being provided all the prescribed contact information?

       

      Serene Teffaha Danny Jovica of course there are numerous inconsistencies too across all other State and Territories laws with the Commonwealth- eg use of force so Public Health Act 2016 WA use of force at section 161 contradicts no use of force at section 95 Biosecurity Act 2015. There are many other aspects we are challenging too across all the Acts

       

      Rufiath Yousuff Serene Teffaha - which specific detention are you talking about ...s200(1)(a) authorises that in a state of emergency. s117 applies if not in a state of emergency and applies to those who may not yet have it but "has been exposed to an infectious disease in circumstances where a person is likely to contract the disease."

      Also, who is being examined. People are not being forced to take the test, though common sense when there is a pandemic would hopefully prevail and one takes the test.

      Also, as much as you have stated to people in previous posts that this is no less dangerous than the flu, global statistics and scientific evidence isn't as questionable as you have your followers think.

      By the way, I caught segments of one of your Zoom videos and the fact that you want the military to stand up to the government and are asking where is their patriotism...Are you asking for a military coup? It seems baffling that someone arguing government overreach is also asking for another government entity to intervene. Strange logic.

       

      Danny Jovica Serene Teffaha Sorry ....

      When you say

      "So directives made under section 200 being applied instead of the proper processes under section 117 of the Public Health and Wellbeing Act"

      S.200 Covers Emergency powers whereas

      S.117 Covers 117 Chief Health Officer may make public health order

      Whereas the Commonwealth Act

      60 Imposing a human biosecurity control order on an individual
      61 Contents of a human biosecurity control order

      You are comparing Apples with Grapefruits and Bananas here.

      First of all there is still no inconsistency.

      Secondly the Feds are not on the ground in the states enforcing the law.

      You say

      “The inconsistency is in relation to applying directives to groups rather than issuing them public health orders to individuals.”

      What???? They are concurrent powers. The Feds orders are against the person, the State (like it does in Criminal Law) can have its own laws. The two co-exist. There is no order if someone at State level ADHERES TO that will put that person in conflict with the Commonwealth Act.

      You provide a hypothetical example :

      “I would love to know your answer to the question here-

      so if you are asked to be detained and examined because you are suspected of COVID-19 despite having no symptoms or contact with COVID-19, wouldn’t you want to be issued a public health order with the appropriate risk assessment and review rights or you don’t mind the Government ordering you what to do without any reason or are you so trusting that you would be happy for the authorities to say that you should be detained based on their suspicions and without being provided all the prescribed contact information?”

      My answer remains the same, in your hypothetical the Victorian Citizen is subject to State Law, his or her compliance with that State law is not in conflict with a Commonwealth Law, in that if he complied with the State Law, he would breach the Commonwealth Law.

      In other words, the direction of the test that enlivens s.109 it must be a State Law (that if complied with) would cause the same Victorian Citizen to be in breach of a Commonwealth Law. Here the Victorian would be in compliance of both, there is no conflict.

      You give another example :

      “eg use of force so Public Health Act 2016 WA use of force at section 161 contradicts no use of force at section 95 Biosecurity Act 2015.”

      However, this example is burdened by the same flow error. If Commonwealth Law (in so far as the enforcement of an event that the Commonwealth has sought and acquired standing jurisdiction in the matter provides no force be used, that does not prevent the States, from enforcing their own laws (not the commonwealth act) and in doing so have no state Government Agent even acting upon the jurisdiction of the Commonwealth Act.

      In other words there are no Commonwealth Government Agents involved in the above scenario, its not like the Australian Federal Police are making arrests, its all local State police. The State Police are acting upon a State Act which may operate concurrently with the Commonwealth Act and so long as the State Government Agents are acting on State Jurisdiction and the authority derived therefrom there is no conflict. In fact Victoria is acting on an even higher level than State of Emergency but on a dual level of State of Disaster and State of Emergency concurrently.

      I’m sorry Serene there is no conflict here, maybe there is another angle to challenge things on but is not a s.109 Constitutional Challenge.

      Mishka Hudson I really would like to help here and I hope that Serene understands I am not here trying to be a smart arse, she will face much stronger arguments than I could put together by the Government lawyers, so she can consider me a punching bag if she likes to practice and hone her arguments.

       

      Serene Teffaha Danny Jovica you are extremely confused. Section 117 and Section 200 are in the same legislation. Put aside completely the Biosecurity Act.

      Section 117 deals with control and management of infectious health risks. Specifically what to do when you identify a risk that needs to be managed through medication treatment detainment etc.

      Instead of using it, the CHO is making group directives under section 200 to detain test examine People who are healthy. This is not appropriate and is in conflict with section 117.

      Section 117 should apply as it specific and covers the issue.

      That is my first point.

      The second point is that the Commonwealth deals with quarantine as per the Constitution and the Biosecurity control orders are used to take quarantine action on individuals. The Biosecurity Act covers the field including dealing with human Biosecurity risk. Victoria introduced section 117 to match those requirements to ensure that people’s rights are protected when the State identifies them as a risk and issue them appropriate public health orders for detainment for purpose of testing treatment examination etc.

      In terms of use of force we are talking the exact same circumstance covered by State and Commonwealth ie testing medicating etc. There is a direct inconsistency- The Federal laws warn against force when medicating and treating.

      However if you are happy to be detained when you are healthy and not be issued public health orders or review rights that is your prerogative. Many people want the proper application of section 117. Section200 does not address medication, examination or treatment. Section 117 does.

      In any case it sounds like you just want to be right rather than actually listen to the logical arguments and avoid answering the question.

      Are you ok with being detained for 14 days in a hotel if you are healthy?

       

      Danny Jovica Serene Teffaha I’m not confused at all, I stand by what I have said and nothing you just said counters it.

      I am not going to get into a slanging match with you, I wish you the best of luck. I will review tomorrow and reply with supporting case law to highlight the strength of my position, cheers.

       

      Danny Jovica Serene Teffaha Let’s do this step by step.

      The Commonwealth BIOSECURITY ACT 2015 “CBA” is the Act you claim the Victorian PUBLIC HEALTH AND WELLBEING ACT 2008 “VPHWA”is in s.109 conflict with.

      In the VPHWA under

      DIVISION 2--EXAMINATION AND TESTING ORDERS AND PUBLIC HEALTH ORDERS

      S.117 provides authority to the Victorian CHO to make public health orders and the circumstances that enlivens such authority are the CHO’s belief a person either has or has been exposed to an infectious disease and provides authority to essentially detain or cause that person to refrain from activity, a public health order must be in writing.

      S.200 Are the emergency powers that authorise the State to detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health, such as what happened with the public towers in Melbourne that had a cluster.

      These powers restrict the movement of any person or group of persons within the emergency area and prevent any person or group of persons from entering the emergency area;

      They also empower other directions to be given to protect public health, affected persons are given an explanation and warn the person(s) refusal or failure to comply is an offence.

      The CHO is notified of any person(s) detained and the reasons why.

      There is no conflict between S.117 and S.200 they are separate and distinct powers.

      You then go on to suggest the above is in conflict with the Commonwealth Act, in particular

      DIVISION 2--IMPOSING HUMAN BIOSECURITY CONTROL ORDERS ON INDIVIDUALS
      Subdivision A--Imposing, varying and revoking human biosecurity control orders
      60 Imposing a human biosecurity control order on an individual
      61 Contents of a human biosecurity control order

      So let’s start with s.60, no there is no conflict as this is specifically for certain Commonwealth Officers as specified in s.60(1).

      As s.61 relates to the actions of authorised officers in s.61 again there is no conflict with State Laws.

      The last section you rely on is Subdivision B--Biosecurity measures that may be included in a human biosecurity control order.

      95 No use of force to require compliance with certain biosecurity measures.

      Again this is irrelevant as it relates to a CBA biosecurity order which can only be enforced by Commonwealth officers as stated in s.601(1).

      Moreover it seems you are entirely ignoring the CBA CHAPTER 8--Biosecurity emergencies and human biosecurity emergencies.

      I say this as currently there is a Commonwealth State of Emergency declared which relates to Commonwealth matters and there is an entirely separate and distinct State based State of Emergency and Disaster which is totally independent of the Commonwealth one (this is why some States do not even have a State of Emergency at all now).

      Finally I will add that Administrative Orders made under the authority of Commonwealth legislation are not treated as laws for s.109 purposes ( Airlines of NSW v NSW (No.1) (1964) 113 CLR 1.

      Thus in your examples there is no s.109 conflict as there is no State law you can show that is passing the conferral of rights test, in otherwords there is no State Law that is altering, impairing or detracting from the Commonwealth Law. (Clyde Engineering v Cowburn (1926) 37 CLR 466 at [478].

       

      Serene Teffaha Danny Jovica fantastic Danny we are now getting a step closer.

      Indeed Section 200 is restricted to detainment powers during an emergency however it does not deal with detainment for containment of an individual’s infectious risk and for the purpose of testing, medicating and treating. The directives are being issued under section 200 to a group of people rather than identifying the individuals as required under section 117. So if you are crossing a border and you are healthy you are expected to be detained in hotel quarantine without being issued any orders under section 117. This is inappropriate as there needs to be appropriately issued public health orders identifying the person’s risk and whether it is necessary to detain them. You can’t just detain anyone on suspicion.

      Guidance here is taken from the Biosecurity Act specifically when a declaration of human Biosecurity emergency is made. First preference is given to the Health Minister as per 477(5) and 478(4) and secondly the emergency powers do not override the requirements to provide individuals Biosecurity control orders to impose Biosecurity measures on them. This is to ensure that there are proper processes applied.

      The federal legislation has widened the scope of what it deals with and indeed it now covers the field. As you would know the Constitution has specifically granted the Commonwealth quarantine powers.

      Section 200 was never intended to allow the States to do as they wish ignoring other specific sections that deal with elimination of infectious disease as it impacts individuals.

      You erroneously think that the Commonwealth laws do not apply to the residents of the States and Territories that is completely incorrect. That restriction is to employees and officers only noting that there is an intergovernmental agreement and plan that ensures that States and Territories must complement.

      In terms of inconsistency I agree with you fully that directives made cannot form the basis of the inconsistency. We are looking at legislative inconsistencies between States and Territories such as the use of force in similar circumstances, removal of children from parents and now the definition of what is a serious public health risk as proposed in Victorian legislation. These are direct inconsistencies.

      In any case, you still have not directly responded to my question- Do you agree with being detained for 14 days in a hotel even though you are healthy?

       

      Serene Teffaha Danny Jovica if you did not know also the Omnibus changes extended the powers of delegation in relation to the Biosecurity Control orders but that’s the problem when giving opinions in the absence of reading the entire legislation.

       

      Serene Teffaha Danny Jovica I also find it odd that you think a similar law that applies in a similar circumstance at both the Federal and State levels is made irrelevant simply by the fact that a different authorising officer is carrying it out. So the federal legislature says you can’t use force when treating and medicating people but the State legislature says you can use force and in your opinion there is no inconsistency because a different officer is authorised under the law to do so. You are splitting hairs now! And I think you are desperate to try and find anything to disagree with.

      Danny Jovica Serene Teffaha No you are mistaken here.

      s.200(1)(a) provides for "subject to this section, detain any person"

      It is not for you to decide what is appropriate, that is a matter for the authorised officer of the State :

      "authorised officer" means a person appointed—

      (a) by a Council to be an environmental health officer under section 29; or

      (b) by the Secretary to be an authorised officer under section 30; or

      (c) subject to section 31, by a Council under section 224(1) of the Local Government Act 1989 to be an authorised officer for the purposes of this Act;

      There is NO GUIDANCE inferred from the Commonwealth Act, s.477 refers to Commonwealth Ministerial powers s.477 "Health Minister may determine emergency requirements during human biosecurity emergency period"

      Nothing to do with the operation of the State Act, more over I refer you back to the Airlines case and how Administrative Orders are not legislative instruments to enliven s.109.

      Your question is irrelevant, whether I agree or like it oro not it is the law we are talking about not my personal opinion on whether I agree with it or like it, that is an irrelevant consideration in a High Court challenge.... or do you intend on informating the High Court Justices that "Danny Jovica doesn't agree .... lol"

       

      Danny Jovica Serene Teffaha No the Federal Legislation says a Commonwealth authorised officer can not use force in enforcing the commonwealth law.

      The States are not enforcing commonwealth law, they are enforcing State Law, in particular under a State of Emergency and a State of Disaster at this time, nothing to do with the Commonwealth law and certainly not interfering with an authorised commonwealth officer doing their job.

       

      Danny Jovica Serene Teffaha There is no splitting hairs here really and my argument has remained consistent from the start in that the Commonwealth Act primarily focuses on Biosecurity at a Commonwealth level (Entry into Australia, Intercourse between States) and not so much in-side a State.

      Therefore the Commonwealth Act is very explicite who is authorised and even goes one step further in s.546(2) The Director of Biosecurity must not authorise an officer or employee of a State or Territory body to be a biosecurity officer unless an arrangement is in force under section 547 in relation to the officer or employee.

      Then it puts in a qualification to say even if such an agreement existed, and was acted uppn
      S. 547 provides that "An arrangement under subsection (1) is not a legislative instrument." and therefore any such arrangement, which at this stage you have not proven exists, but even if it did it does not enliven s.109 as its not a legislative instrument.

      So for the record, I am not splitting hairs here, this is explicitely provided for in the CBA.

       

      Serene Teffaha Danny Jovica the Biosecurity Act deals with Biosecurity Human Emergencies and it widens its scope of application through section 8. Clearly the Omnibus provisions have now extended the powers under the Biosecurity Act to authorised officers of the States and Territories. https://www.aph.gov.au/.../Delegation_by_the_Director_of...

       

      Serene Teffaha Danny Jovica I appreciate your contributions but it only bolsters my confidence in my arguments. You clearly have not read the widening scope of the application of the Biosecurity Act thinking that it only restricts itself to certain things and NOT to a human Biosecurity emergency. You clearly do not care to provide a response to the preference given to the Health Minister’s directions and emergency requirements under 477(5) and 478(4) and you insist that because an authorised Officer is a Commonwealth Officer that means that there is NO relationship between the States and Territories and every law and every section is independent of the other and everything is legislated in silos. This is not proper statutory interpretation. Anyway I have provided you the Omnibus change. I don’t think you can add anything constructive to my arguments. Wish you well and thanks for the interchange.

       

      Serene Teffaha Danny Jovica there is a process called judicial review where we can challenge administrative decisions under the law. It appears that you believe that if an authorised Officer says something that that cannot be challenged. If you think it is appropriate to detain a healthy individual in hotel quarantine in the absence of either contact tracing or having direct symptoms, then most of my clients do not agree with you.

       

      Danny Jovica Serene Teffaha Not at all, there is nothing clear about that at all nor does any of it contradict what I have said and in particular to this s.109 Constitutional question because of the operation of s.547.

      No where have I suggested the CBA is not about Human Biosecurity, it obviously is.

      Now we are down to s. 477 Health Minister may determine emergency requirements during human biosecurity emergency period.

      What specific determinations by the Health Minister do you refer to? Where is the written Instrument you rely upon here giving that Directive you rely upon now?

      As it is only that written directive that 477(5) and 478(4) gives force to.

      As for the judicial review process please do not assume anything about me I am very familiar with this process in Migration Law and Administrative Law.

       


      Serene Teffaha
       Danny Jovica it is really disappointing when you have been shown that your argument was incorrect that you do not graciously concede. The Commonwealth can now delegate its powers to the States and Territories officers when issuing Biosecurity control orders. You were stuck on that to make your argument and now I have shown you that is not the case. I will not engage any further because you are now going around in circles and getting personal. I wish you the best.

       

      Serene Teffaha Danny Jovica and a note please do read all the legislation, EM’s and academic writings before you engage in a debate.

      Danny Jovica Serene Teffaha What? Where have you shown my argument is incorrect?

      You think splashing the word "omnibus" and linking to a general information page negated my argument? Are you for real?

      I was not "stuck" on anything of the sort, in fact you are still stuck with the limitations of 547 and nothing in 577 takes away from that ... I am still waiting to see the Ministerial Directive you rely upon that even invokes 477(5) or 478(4) as that is all you have left now.

      Also its very poor form of you to start to resort to adhoms and belittling inferences, please do stick to the merits of your argument which I see has totally fallen apart which is why all you have left is to try and use adhoms now.

      That won't get you far in the High Court.

       

      Serene Teffaha Danny Jovica

      You stated earlier: ‘Therefore the Commonwealth Act is very explicite who is authorised and even goes one step further in s.546(2) The Director of Biosecurity must not authorise an officer or employee of a State or Territory body to be a biosecurity officer unless an arrangement is in force under section 547 in relation to the officer or employee.’

      I have provided you the Omnibus legislative change to the law itself that extends that power to an authorised State and Territory Officer.
      Something that you clearly were not aware of.

      You have used that argument to demonstrate there cannot be an inconsistency in terms of the no use of force as per section 95 of the Biosecurity Act and State legislation that allows for force because you argue that different officers are authorised to do that. I have shown you now that the Commonwealth has authorised the states.

      Yet you cannot concede this point. Do you at least see the section 109 inconsistency now between laws that do not allow use of force and laws that do?

       

      Danny Jovica Serene Teffaha

      You say:

      "I have provided you the Omnibus legislative change to the law itself that extends that power to an authorised State and Territory Officer.
      Something that you clearly were not aware of."

      I say there is nothing in the Omnibus Act that affects the operation of s.546 and you are drawing erroneous conclusions.

      For sake of clarity here is the Omnibus Act ...happy for you to point out where it affects s.546.

      https://www.legislation.gov.au/Details/C2020A00022

      You have not shown any such thing and even granting gratia arguendo if there was an agreement it is not a legislative instrument and doesn’t affect the act.

      There is no inconsistency and the only thing you have left in your argument is a mystery ministerial directive you rely on which presumably overrides all Australian law.

      Waiting for that one ... all I hear is *crickets*

       

      Serene Teffaha Danny Jovica So under section 60 a human biosecurity Officer May impose a Biosecurity control order.

      Serene Teffaha Danny Jovica section 563 allows a delegation of a human Biosecurity Officer to an employee of State and Territories’ health services.


      Serene Teffaha
       Danny Jovica sections 545-547 deal with Biosecurity officers and Biosecurity enforcement officers. It is separate to Part 5 which deals with human Biosecurity officers. Under the law, the Director has delegation to indeed provide that an officer of the State and Territory may impose a human Biosecurity control order. That delegation was increased to other SES officers under the Omnibus provisions who can now also appoint human Biosecurity officers from States and Territories pursuant to section 563

       

      Serene Teffaha Danny Jovica you citing sections 546 and 547 is not directly relevant. As you can read, officers in States and Territories can be human biosecurity officers and impose biosecurity control orders. Given this do you still think that there is no inconsistency between use of force by States versus no use of force by Federal legislature?

       

      Danny Jovica Serene Teffaha

      Re:

      "Given this do you still think that there is no inconsistency between use of force by States versus no use of force by Federal legislature?"

      Yes because of the repeated qualification in those sections eg: s.547(2) and throughout the CBA of the term:

      "An arrangement under subsection (1) is not a legislative instrument." (you can search for those words exactly and find the repeated references to that exact sentence.

      The fact the Commonwealth Parliament repeatedly used those words throughout the act is demonstrating the intent that those actions are NOT to be contrued as legislative instruments and there is an important reason for those exact specific words as it has been held by the High Court (cases cited above already) that if you are not dealing with a Legislative instrument you can not enliven a s.109 Constitutional challenge.

      Having said that I will drop out of this discussion as I feel I am upsetting you and your supporters with what I am saying with you even endorsing a defamatory imputation with a like.

      "Paul Bourke Serene Teffaha he’s wasting your time"

      I will bow out and wish you all the best and all I can say is I hope you are right and I am wrong as I am sure you are well aware of the consequences otherwise.

      Cheers.

       

      Serene Teffaha Danny Jovica you are not upsetting me at all. In fact, I have thanked you for your contributions. I have also outlined to you that you are relying on section 547 being arrangements made outside the scope of the legislation. These arrangements apply in relation to Biosecurity officers and Biosecurity enforcement officers. In relation to Human Biosecurity Officers it is acknowledged at law both at section 563 and section 60 that States and Territories officers may issue those Biosecurity control orders under written permission.

      I note here the Australian Health Sector Emergency Response Plan that had been agreed to by all parties and provides that the Australian Department Of Health through the AHPPC has responsibility for national coordination. And that the States and Territories must complement the Biosecurity Act 2015.

      I note here that my argument is about proportionality. And the judicial review considerations do not rely solely on section 109. That is merely an aspect of what we are arguing. We believe due process should be followed and section 117 sets out due process. Statutory interpretation does not work in silos. Any measure that is taken against the person must be accompanied by a public health order. This is the Australian democratic way. The legislation does not allow for fascism where the State can do anything to you without any question or ability for you to have review rights. Anyone promoting this really needs to consider the whole body of human rights laws that must be preserved in our democracy.

      I wish you all the best.

       

      Serene Teffaha Danny Jovica one more note - I have a few people helping me with liking comments so please don’t think your comments are not appreciated.

       

      Danny Jovica Serene Teffaha It’s hard to not comment when you tag and insult me. I am not wrong.

      That underwriting you refer to is not able to be used to justify a s.109 challenge so it’s a mute point.

      The agreements you rely upon also can not be used to support a s.109 challenge, even the National Cabinet agreement signed between the Fed and State governments explicitly states it’s an unenforceable agreement. It’s a show.

      S.117 does not help you, it’s a State of Emergency, s.200 applies.

      The rest of what you said are marketing points, not points of law.

      Please let’s leave it at that, I don’t want to argue here or upset anyone.

      The merits of your case will soon be tested, let’s see how far it gets in Court and let the judges decide who is right please.

      Let’s leave it as us agreeing to disagree, I came here invited by someone to look, a person I respect and out of respect to that person I don’t want to cause a scene.

      I wish you well. Cheers.

       

      Serene Teffaha Danny Jovica yes you are wrong- we are relying on subsection 8 which you clearly have glossed over in terms of the meaning of ‘that is capable of operating concurrently’ and as fettered by subsections 8(2), 8(3) and 8(4) of the Biosecurity Act. It is excellent that the agreements concur with that application given that the DHS at Federal level has carriage as well as the States and Territories needing to complement what the Federal legislature does. So now everything that does not agree with your interpretation becomes irrelevant. It is preposterous to suggest that section 117 is switched off when it applies to containment of infectious disease on an individual who needs to be tested, treated and examined. Section 200 gives additional powers in an emergency but at no point does it abrogate proper procedure and in no way does it switch off the other parts of the Act. That is not how you interpret law. There are public health powers and procedures and there are additional powers provided for in an emergency under section 200. That does not mean procedure is written off. You clearly can’t provide one provision that says the rest of the Act is switched off in an emergency and the only section that applies is section 200. Such an argument is nothing short of absurd. All the best

       

      Danny Jovica Serene Teffaha Since you insist on pursuing me, even though I have respectfully asked you leave me out of it, I will reply tomorrow why you got it wrong again. Cheers. Good night.

       

      Serene Teffaha Danny Jovica I shall look forward to what provision you can point me to that allegedly switches off the entire Public Health and Wellbeing Act 2008 in an emergency save for the additional emergency provisions. Goodnight

       

      Danny Jovica Serene Teffaha Quite frankly you are starting to embarrass yourself.

      First of all Rufiath Yousuff has already pointed out your error here with her analogy in Criminal Law and I have also pointed it out above.

      s.117 falls under

      PART 8--MANAGEMENT AND CONTROL OF INFECTIOUS DISEASES, MICRO‑ORGANISMS AND MEDICAL CONDITIONS
      DIVISION 2--EXAMINATION AND TESTING ORDERS AND PUBLIC HEALTH ORDERS

      So s.177 states the Chief Health Officer may make public health order pursuant to Examination and Testing Orders and Public Health orders made under Division two specifically which falls under Part 8 Management and control of Infectious Diseases..

      Then in comparison s.200 falls under PART 10--PROTECTION AND ENFORCEMENT PROVISIONS
      DIVISION 3--EMERGENCY POWERS

      So s.200 Emergency Powers are exercised pursuant to the authority in Division 3 of Part 10.

      s.200 is not dependent on any preconditions other than those in Division 3, Part 10 of the Act.

      In fact s.200 has nothing to do with "a public health order" and what requirements there are for a valid one.

      s.200 Emergency powers
      (1) The emergency powers ===> are— <====

      (a) ====> subject to this section <====, (and give authority to ====> detain any person <==== or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;

      Nothing at all to do with a public health order under Div.2, Part 8.

      It goes on in s.200 to explain :

      (2) Unless subsection (3) applies, before any person is subject to detention under subsection (1)(a), an authorised officer must briefly explain the reason why it is necessary to detain the person.

      (3) If in the particular circumstances in which the power to detain the person is to be exercised, it is not practicable to briefly explain the reason why it is necessary to detain the person before the power is exercised, the authorised officer must do so as soon as is practicable.

      Nothing to do with a public health order and its requirements, what is being exercised is NOT a public health order but in fact Emergency powers pursuant to PART 10 - PROTECTION AND ENFORCEMENT PROVISIONS of DIVISION 3 Emergency Powers.

      Similarly s.200 is not subject to

      PUBLIC HEALTH AND WELLBEING ACT 2008 - SECT 143
      Annual report to include information about orders
      (1) The Chief Health Officer must include information about—

      (a) the number of orders made by the Chief Health Officer under each of section 113, 117 and 134;

      (b) the reasons for the making of those orders—

      Which falls under the same Part and Division as s.117 as you see in s.143(1)(a) above.

      I urge you to seek legal advice Serene from a suitably qualified Barrister or Q.C. as a matter of urgency.

      In the meantime I once again respectfully ask you to leave me out of this, if you still do not realise your mistakes lets just agree to disagree.

      Once more I wish you well. Cheers.

       

      Rufiath Yousuff Danny Jovica - the Victorian Bar has already put their position on the interactions between the various legislations in their Guide to Covid-19 Pandemic Declarations, Directions and Determinations for Victoria:

      https://www.vicbar.com.au/news-events/victorian-bar’s-guide-covid-19-pandemic-declarations-directions-and-determinations

      They have on page 9 stated Part 8 doesn't apply to public health risk powers and emergency powers under Part 10.

      So it will be quite interesting to see which Victorian Barrister, QC or otherwise will contradict VicBar's position.

      The President of the Victorian Bar, Wendy Harris QC has stated “This thorough and useful guide has been put together by Dr Michael Taylor, a member of the Victorian Bar who practises in public law and with specialist expertise in health law and in regulatory policy, based on his knowledge, experience and exhaustive research of this legislation and current governments directives. We trust this guide will give the community certainty and a clear understanding as to how our public health is being protected in the context of the COVID-19 pandemic, and the legislative foundations on which these measures are based."

       

      Danny Jovica Rufiath Yousuff Thank you, much appreciated, that confirms what you and I have said all along on this question.

      The link you provided didn't work so here is the complete link for those following.

      https://www.vicbar.com.au/.../victorian-bar%E2%80%99s...

       

      Danny Jovica Rufiath Yousuff

      Also it clarifies further that the "least restrictive measures" also does not apply in a State of Emergency Mishka Hudson (from the video you shared this morning that question was raised).

      "A further set of principles apply to the management and control of infectious diseases (PHWA s 111) under Part 8 of
      the PHWA, and a specific principle (s 112) for least restrictive measures in relation to use of compulsory orders. These
      principles are specific to Part 8 and do not apply to the public health risk powers and emergency powers (contained in
      Part 10 – Protection and Enforcement Provisions)."

      Direct Link to the document

      https://www.vicbar.com.au/.../Victorian%20Bar%27s%20Guide...

       

      Added a post 

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

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

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

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

      The Australian Experience

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

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

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

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

      The HCA in rejecting the Bolam principle provided new guidelines:

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

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

      The HCA Held :

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

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

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

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

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

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

      (3)  The child meets the immunisation requirements if:

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

      The AIH defines valid consent as:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      CONCLUSION.

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

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

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

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

       

       

      References

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

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

      [3] Ibid.

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

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

      [6] Ibid.

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

      [8] Ibid.

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

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

      [11] Ibid at 51.

      [12] Ibid at 53.

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

      [14] Ibid at S.3.

      [15] Ibid at S.3.2.2.

      [16] Ibid at S.3.2.5.

      [17] Ibid at S.3.3.6.

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

      [19] Ibid at S.2.1.3

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

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

      [22] Ibid at pg.18.

      [23] Ibid at pg.1 para 1.

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

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

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

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

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

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

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

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

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

      [33] Ibid.

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

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

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

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

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

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

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

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

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

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

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

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