The Menace of Medical Censorship in Australia

Augusto Zimmermann

On October 12, Queensland’s Labor Government – with support from the LNP opposition – passed The Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022. This law fundamentally reshapes the relationship between doctors, patients and health regulators by allowing bureaucrats to name and shame doctors, a move that the AMA’s Vice-President Dr Chris Moy properly describes as “incoherent zealotry”.[1] In their joint submission to the Queensland parliament’s Health and Environment Committee, the Australian Medical Professionals Society and Nurses Professional Association, comment: 

This is yet another discretionary legislative amendment that our members feel could be used to publicly shame non-compliant practitioners, without the presumption of innocence, causing severe financial and permanent reputational damage, while regulators are provided with liability protection for any harms or damage caused. These … powers also serve to conveniently silence voices of expertise that wish to correct health authorities, which may and has counter-productively prevented necessary information and communications from entering the public sphere.[2]

Under its section 90AA (1)(b), discretionary powers are given to public servants to coerce health professionals into full compliance with government narratives. Any health professional who dares to question or challenge public policy directives will be publicly named, shamed and blamed. Furthermore, subsections (3) (a), (c) and (4D) seek to pre-empt inquiry outcomes and appeal outcomes by allowing the ombudsman to deem the health professional the subject of an investigation or action as guilt prior to conclusive investigation findings and before any potential appeal has been lodged. 

Section 59 (5) of the Act subjects health practitioners to the threat of immediate suspension of their license for contradicting public health directions and government public health messaging. These powers will be used to control health practitioners by enabling a wide discretion for enforcement actions supporting public health directives, “that completely override notions of natural justice and the presumption of innocence, let alone any proper consideration of evidence put forward by highly qualified health practitioners possessing views in opposition”.[3] 

This appalling legislation may result in further amendments to the relevant legislation in other states, to ensure a uniform “national law” that will affect every single Australian to the detriment of their personal health. “If this bill passes nationally and the government becomes the single authority on all health advice”, says Kara Thomas, Secretary of the Australian Medical Professionals Society (AMPS), “then unquestioning compliance becomes the new accepted standard of good medical practice”.[4]  Of course, questioning the official narrative of the State regarding public health is already a conduct being subject to investigation and disciplinary action, including immediate suspension of medical registration.[5] As Ms Thomas properly reminds us,  

In July 2021, as Australians were being mandated through coercive techniques to get vaccinated with poorly tested provisionally approved gene-based vaccines that our Health bureaucrats and politicians repeatedly told us had been proven safe and effective, the TGA was amending the Therapeutics Goods Regulation Act to further reduce the safety and efficacy requirements for any medicine that is for the treatment or prevention of Covid. Not only do manufactures have six years to provide the government with safety and efficacy data on these provisionally approved jabs, they also no longer have to demonstrate they could provide a great benefit than other available medicines or that the medicine is likely to provide a major therapeutic advance. [6]

So now it is official. Health professionals are no longer allowed to question the ‘secret health advice’ without losing their registration to practice. “They have outlawed opinions”, says Ramesh Thakur, emeritus professor at the Australian National University’s Crawford School of Public Policy and a former UN assistant secretary-general. According to him,

For health bureaucrats and regulators to claim a monopoly on scientific truth is scandalous. The effort to shut down legitimate debates on pain of excommunication from the medical profession represents a clear and present danger to public health. I certainly have more confidence in my consultant’s professional advice based on training, qualifications, experience and knowledge of my medical history, free of pressures to conform to the zeitgeist from bureaucrats and regulators, the latter often with compromising links to industry. [7]

Some Ancient History

Free speech can be traced back to the ancient Greeks. The Greek word for free speech is parrhesia, which implies one’s ability to express opinions without fear of reprisal. In classical times, parrhesia was regarded as essential to the equalitarian nature of democracy.[8] The Greeks believed that only slaves could not speak freely, although all free citizens could.[9] What made the trial of Socrates so unusual is that this was “the only case in which we can be certain that an Athenian was legally prosecuted not for an overt act that directly harmed the public or some individual – such as treason, corruption or slander – but for alleged harm indirectly caused by the expression and teaching of ideas”.[10] Socrates became a martyr for the cause of free speech when he was put to death for posing a threat to the established order.

Ever since, free speech has been acknowledged as a basic right of every free person. This right works as a mechanism to avoid the concentration of power in the hands of a few.[11] Of course, the established order in Australia has a vested interest in preserving the status quo by suppressing any reasonable dissent. In other words, the ruling classes may attempt to suppress any speech that might be construed as a threat to their hegemonic discourse. Since the exercise of free speech threatens so much the established order, as it risks exposing the hidden agenda of some privileged groups, the focus of government authorities may not be on protecting the speech of everyone but only that of a few selected individuals.

It is not difficult, therefore, to understand why the established order appears so anxious to reduce any threat to their hegemonic discourse. Of course, free speech can provoke real embarrassment, especially when a certain agenda is advanced that is contrary to the best interests of society.[12] If members of the established order consider themselves superior to everybody else, it follows that it becomes “wrong” to criticise them openly. To preserve their vested interests, such individuals are naturally tempted to create the means by which free speech can be more easily abrogated. This is generally motivated not by an authentic desire to advance the common good, but a desire to obtain undue advantages and secure the hierarchical social order.  

What the Constitution Says

Fortunately, the drafters of our Constitution generally endorsed the traditional common-law approach to the basic legal right of every single person. Accordingly, our legal system, inherited from England, traditionally recognises free speech as a basic right of the individual that no one, not even the elected legislator, can constitutionally abrogate. As noted by law professor Anthony Gray, “free speech is necessarily inherent in a democratic nation which our founding fathers clearly intended Australia to be. The founders viewed freedom of speech as a common law right”.[13] In Attorney-General (SA) v Corporation of the City of Adelaide (2013) Chief Justice French of the High Court stated: “Freedom of speech is a long-established common law freedom…linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information”.[14]

Under our Constitution, sovereignty ultimately resides in the people of Australia.[15] The concept of representative government developed by the drafters of our foundational legal document is a constitutional imperative intended,  “to make the legislature and executive branches of the Commonwealth ultimately answerable to the Australian people”.[16] As a sovereign people, Australians must be free to communicate about social and political matters fully and frankly, because this is critical to holding all the branches of government accountable to the people.[17] This important notion of popular sovereignty, according to U.S. constitutional law professor James Weinstein,

… creates a very powerful right of free speech. If the people are the ultimate source of political authority, they must be able to speak to each other about all matters within the scope of this authority, that is, on all matters of public concern. If, to the contrary, the government were able to prohibit speech on the ground that it will persuade the populace to formulate erroneous public policy, then that government, not the people, would be the ultimate sovereign. As James Madison argued over two centuries ago, a logical consequence of a commitment to popular sovereignty is that ‘the censorial power is in the people over the government and not in the government over the people’.18]

In this sense, it is entirely reasonable to assume that any command by the State which directly violates these fundamental freedoms is not law properly so called and certainly not a valid law from this constitutional perspective. Indeed, in Nationwide News Pty Ltd v Wills (1992) Justice Brennan said

… where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of government”.[19]  In other words, once it is judicially recognised that a representative democracy is constitutionally prescribed, then the preservation of fundamental rights and freedoms is “essential to sustain it as firmly entrenched in the Constitution as the system of government which the Constitution explicitly ordains.[20]

Of course, in a free society the primary function of the judiciary is to protect basic rights of the individual. In Huddart, Parker & Co Pty Ltd v Moorehead (1909), Sir Samuel Griffith, Australia’s first Chief Justice, explained that “the words ‘judicial power’ as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property”.[21] This is the classic definition of judicial power in Australia’s jurisprudence, from which numerous judicial decisions have proceeded. For example, in the Australian Capital Television case, in 1992, Justice Gaudron referred to “a free society governed in accordance with the principles of representative parliamentary democracy” as entailing “freedom of movement, freedom of association and, … freedom of speech generally”.[22]

And there is even more to say about the unconstitutionality of any legislation that undermines some basic rights of the individual. The Australian Constitution allocates the areas of federal legislative power in sections 51 and 52, with these powers being variously exclusive or concurrent with the Australian States. Accordingly, the Constitution was amended in a referendum in 1946 to include section 51(xxiiiA), which stipulates that the Commonwealth Parliament, among others, can make laws with respect to:

The provision of … pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.

Section 51(xxiiiA) allows for the granting of medical services but not to the extent of authorising any form of civil conscription.[23] The concept of civil conscription was first considered by the Court in 1949 in British Medical Association v Commonwealth.[24] The High Court ruled that requiring doctors to comply with professional standards to receive Medicare payments did not amount to civil conscription. But the Court also relevantly decided that legislation which required that medical practitioners use a particular Commonwealth prescription form as part of a scheme to provide pharmaceutical benefits was invalid as a form of civil conscription. In the opinion of Chief Justice Latham, civil conscription included not only legal compulsion to engage in specific conduct, but also the imposition of a duty to perform work in a particular way. Justice Williams, in his judgment, stated that “the expression invalidates all legislation which compels medical practitioners or dentists to provide any form of medical service”.[25]

We should interpret this invalidation of “all legislation” as invalidating any law, either federal or state, “which compels medical practitioners or dentists to provide any form of medical service”. Indeed, health practitioners who freely perform their medical service do not create conscription. However, as Justice Webb pointed out: “When Parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, that the doctor shall render the patient a special service, unless that service is waived by the patient, it creates a situation that amounts to a form of civil conscription”. [26]

Justice Webb’s statement indicates that, even if the health practitioner were compelled to provide a medical service, the patient has a right to waive that service. In other words, no person in this country shall be in any way coerced into any medical treatment and no medical practitioner may be compelled to provide mandatory services, for example, vaccinations. Accordingly, in Wong v Commonwealth; Selim v Professional Services Review Committee (2009),[27] Chief Justice French and Justice Gummow held that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services”.[28] Hence, if the health practitioner were directed to prescribe a compulsory medical treatment, such direction would constitute an invalid form of civil conscription because this would directly interfere with the relationship between the doctor and the patient – a relationship which is based on contract and trust.  

The purpose of prohibiting civil conscription in section 51(xxiiiA) is to ensure that the relationship between medical practitioner and patient is entirely governed by contract where that is the intention of the parties. Hence, in Wong v Commonwealth; Selim v Professional Services Review Committee (2009),[29] Justice Kirby explained that the test whether such conscription has been imposed is “whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of medical and dental services and the individual recipients of such services.”[30]

Justice Kirby’s point reveals that compulsory medical treatment destroys the contractual relationship between doctors and patients and, therefore, it imposes an impermissible obligation on people to accept a procedure which they can refuse on constitutional grounds. Section 51(xxiiiA) could thus also be regarded as an implied right to refuse coercive medical treatment. This section, while it prohibits civil conscription, does not limit the right of medical practitioners to offer medical services to their patients, who want to avail themselves of these services. In that case, the provision of medical services is based on the contractual relationship between doctors and patients. By contrast, if this provision were to be interpreted as allowing mandatory vaccination, then the contractual relationship between doctor and patients would be effectively abolished because the patients’ ability to voluntarily enter a contract for the receipt of medical services would be non-existent.

The right to informed consent basically implies the person’s voluntary agreement to a proposed medical treatment, given after sufficient and appropriate information about potential risks and benefits, including possible adverse effects, how common they are, and what they should do about them. In Bowater v Rowley Regis Corp (1944), Lord Justice Scott of the King’s Bench argued that consent to medical treatment, including vaccination, is needed in order to proceed with the treatment. As his Honour pointed out, “A [person] cannot be said to be truly ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but in the absence from his mind of any feeling of restraint so that nothing shall interfere with the freedom of his will”.[31]  As such, a medical treatment which is imposed upon a person without his or her informed consent is a trespass upon that person. Taking the same line of argument, Lord Judge Goff remarked in that same case, at 866:    

“[I]t is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so: To this extent, the principle of sanctity of human life must yield to the principle of self-determination”.

This authoritative judicial interpretation was particularly highlighted in Airedale National Health Service Trust v Bland (1993), when Lord Justice Mustill expounded on the dangers to the health of a patient by medical treatment being imposed on him or her without his or her personal consent, with the following clarity:

If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even it if is plain to all, including the patient, that adverse consequences and even death will or may ensue.[32] 

What International Human Rights Law Says

The judicial views mentioned about are entirely supported by the Nuremberg Code—an ethics code—relied upon during the Nazi doctors’ trials in Nuremberg in 1947. This code has as its first principle the willingness and informed consent by the individual to receive medical treatment or to participate in an experiment. This principle, in its relevant part, reads as follows:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

The fundamental legal right to informed consent before receiving medical treatment is deemed the bedrock principle of “ethical standards in medicine”. Article 6(1) of UNESCO’s Universal Declaration on Bioethics and Human Rights (2005) declares: “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice”. Nevertheless, in July 2021, as AMPS Secretary Kara Thomas reminds us,

As Australians were being mandated through coercive techniques to get vaccinated with poorly tested provisionally approved gene-based vaccines’, the government was amending the Therapeutic Goods Regulation Act ‘to further reduce the safety and efficacy requirements for any medicine that is for the treatment or prevention of Covid’.

As a result, ‘not only do manufacturers have six years to provide the government with safety and efficacy data on these provisionally approved jabs, they also no longer have to demonstrate they could provide a greater benefit than other available medicines or that the medicine is likely to provide a major therapeutic advance. [33]

Under Article 12.2. of the International Covenant on Economic, Social and Cultural Rights (1976), the right to health embraces a wide range of individual rights which allows people to have a healthy life, such as employment rights and freedoms of movement and association. These rights also include “the right to control one’s health and body’, and ‘the right to be free from non-consensual medical treatment and experimentation”.[34] For some Australian politicians, however, their own peculiar view of “public health” trumps even these basic rights of the individual, although the Preamble to the Constitution of the World Health Organisation (WHO) explicitly states that the meaning of “health” in these international law instruments encompasses a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.

“Seriously, one more comment about human rights … it’s about human life”, complained Victoria’s Premier Daniel Andrews when journalists dared to question him the human rights implications of draconian lockdowns and “public health” orders, in July 2020.[35] Those measures unambiguously breached the U.N. Universal Declaration of Human Rights, particularly Article 30:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Concluding Comments

Recently enacted by the Government of Queensland, the Health and Practitioner Regulation National Law and Other Legislation Amendment Act 2022 is constitutionally invalid. It impermissibly legislates national medical censorship to ensure public confidence in usually controversial government health directives. Of course, health practitioners have the democratic right to question the safety and efficacy of any medical treatment without losing their registration to practice. And yet, this law which is supposed to be adopted across all Australian jurisdictions, suppresses freedom of political communication by censoring and punishing dissenters through serious threats to career and livelihood, as a means to undemocratically control public debate and general perception through enforced medical censorship. If passed by other jurisdictions, such legislation will, in the words of Professor Thakur, “fundamentally reshape the relationship between doctors, patients and health regulators”. Above all, if successful, such a “national law” would spell “the end of medicine and the end of science”[36] in this nation, to the detriment of the health of all.

This is an edited paper presented at “Stop Medical Censorship WA”, a symposium held on November 17 by the Australian Medical Professionals Society (AMPS), Perth/WA, 17 November 2022

Augusto Zimmermann PhD, LLB, LLM, CIArb is professor and head of Law at the Sheridan Institute of Higher Education, in Perth. Zimmermann is also a former commissioner with the Law Reform Commission of Western Australia, and a former Associate Dean (Research) at Murdoch University’s School of Law. He is the author/editor of numerous law books, including Legal Theory: History, Concepts and Perspectives (LexisNexis Butterworths, 2013); Fundamental Rights in the Age of Covid-19 (Connor Court Publishing, 2021); and Foundations of the Australian Legal System: History, Theory and Practice (LexisNexis Butterworths, 2023 – forthcoming)

[1] Siobhan Calafiore, ‘AHPRA one step closer to naming and shaming doctors’, AusDoc, 6 July 2022, at https://www.ausdoc.com.au/news/ahpra-one-step-closer-naming-and-shaming-doctors/

[2] J Gillespie, K Tomas & Dr A McIntyre, ‘Submission for the Australian Medical Professionals Society and Nurses Professional Association to the Health and Environment Committee – Inquiry into the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022, 1 June 2022, p 2.

[3] Ibid. p 4.

[4] Kara Thomas, ‘Confidence through censorship: The (medical) Ministry of Truth’, The Spectator Australia, 25 October 2022, at https://www.spectator.com.au/2022/10/confidence-through-censorship-the-medical-ministry-of-truth/

[5] Ibid.

[6] Ibid.

[7] Ramesh Thakur, ‘Health disgrace: bureaucrats in bid to silence our doctors’, The Australian, 7 October 2022, at https://www.theaustralian.com.au/inquirer/health-disgrace-bureaucrats-in-bid-to-silence-our-doctors/news-story/78f92a5c92bb900b5c497ba0f47ec3b3

[8] Anthony Gray, Freedom of Speech in the Western World – Comparison and Critique (Lexington Books, 2019) 6.

[9] Chris Berg, In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt (IPA & Mannkal, 2012) 8.

[10] ‘The Athenian Ideal of Free Speech’, Encyclopaedia Britannica <http://www.britannica.com/EBchecked/topic/551948/Socrates/233637/The-Athenian-ideal-of-free-speech>.

[11] Alexander Tsesis, ‘Free Speech Constitutionalism’ (2015) (3) University of Illinois Law Review 1021, 1042-43.

[12] Wojciech Sadurki, Freedom of Speech and its Limits (Kluwer International Publishers, 1999) 28

[13] Gray, above n.8, 119.

[14]  Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, 43.

[15] Unions NSW [2013] HCA 58; (2013) 252 CLR 530, 548 [17] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See also McCloy [2015] HCA 23, [45] (French CJ, Kiefel, Bell and Keane JJ), [215] (Nettle J), [318] (Gordon J).

[16] Wills [1992] HCA 46; (1992) 177 CLR 1, 47 (Brennan J). Brennan J did note that the intention for representative and responsible government was ‘imperfectly effected’.

[17] Unions NSW [2013] HCA 58 [28]-[29] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); ACTV [1992] HCA 45; (1992) 177 CLR 106, 138 (Mason CJ).

[18] James Weinstein, ‘Extreme Speech, Public Order and Democracy: Lessons from The Masses’, in Ivan Hare and James Weinstein (eds) Extreme Speech and Democracy (Oxford University Press, 2009) 26.

[19] (1992) 177 CLR 1, at 48 (Brennan J.)

[20] Ibid, at 49.

[21] Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, at 357

[22] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, at 212

[23] See Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, at 279; 69 ALR 631; Halliday v Commonwealth (2000) 45 ATR 458; [2000] FCA 950 at [11].

[24] (1949) 79 CLR 201; [1949] HCA 44.

[25] (1949) 79 CLR 201, at 287 (Williams J).

[26] (1949) 79 CLR 201, at 295 (Webb J).

[27] (2009) 236 CLR 573

[28] Ibid at [62].

[29] (2009) 236 CLR 573.

[30] Ibid at [151].

[31] Bowater v Rowley Regis Corp [1944] KB 476, at 479 (Scott LJ).

[32] Airedale National Health Service Trust v Bland [1993] AC 789, at 889. (Mustill LJ).

[33] Thomas, above n.4.

[34] ‘Right to Health: Public Sector Guidance Sheet’, Australian Government, Attorney-General Department.

[35] Janine Graham, ‘The Informer: ‘Seriously, One More Comment About Human Rights…’, Says Daniel Andrews’, The Canberra Times, 27 July 2020, available at https://www.canberratimes.com.au/story/6851881/seriously-one-more-comment-about-human-rights/

[36] Thomas, above n.4.

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I am interested in writing short stories for my pleasure and my family's but although I have published four family books I will not go down that path again but still want what I write out there so I will see how this goes

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