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

MERITS REVIEW

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

JUDICIAL REVIEW

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

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

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

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

MATTER FOR THE COURTS

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

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

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

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

CONTRA INDICATIONS

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

AUSTRALIAN IMMUNISATION HANDBOOK

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

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

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

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

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

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

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

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

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

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

CONSENT

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

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

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

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

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

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

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

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

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

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

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

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

FRAUD        

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

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

NO EVIDENCE

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

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

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

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

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

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

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

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

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

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

UNREASONABLENESS.

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

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

FAILING TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS.

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

BREACH OF INTERNATIONAL OBLIGATIONS UNDER TREATIES & LEGITIMATE EXPECTATIONS.

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

“Extending the immunisation requirements engages article 12 of the ICESCR”

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

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

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

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

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

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

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

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

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

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

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

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

INITIATING LEGAL ACTION IN ADMINISTRATIVE LAW

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

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

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

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

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

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

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

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Footnotes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[18] AIH Table 2.1.4: False contraindications to vaccination

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

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

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

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

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

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

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

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

[27] Ibid

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[39] Commonwealth of Australia Constitution Act

[40] Osmond v Public Service Commission HCA 1986.

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