OPEN LETTER TO WA EMPLOYERS from a Human Rights Lawyer Advocate

Today, the 31st of December, more people will be losing their jobs.

Why?

Because they have been medically discriminated against and denied the right to medical choice and freedom. A sad reality for what I thought was a Free Constitutional Democracy.

Earlier in 2021, as vaccine mandates were first rolled out, I published the below open letter to WA employers in Cauldron Pool here as a tool for many to use as a conditional acceptance, but mostly as a document used to negotiate the terms of mandates with their employers, and as an educational tool for the workplace as a whole.

Although we have come a fair way since these initial arguments and points of negotiation in the last two months, I think that they are still relevant for your knowledge and preparation, and the basis of why mandates are illegal, unconstitutional discriminatory, and violate contract terms.

Use this if this if you can ....

Date

Name

Address

To Employer X

I have received your request for me to obtain the vaccine according to the public health order.

I am currently seeking legal advice on this matter, and considering whether it is a medically appropriate treatment for me. As it currently stands, it is illegal for you to seek to impose a medical outcome upon me, without my full and informed consent.

As I understand it, the vaccines which you require me to take are experimental in nature and have not been tested in the required clinical trials to ensure its full safety and efficacy.

In relation to the efficacy of the vaccine,

1. Can you please advise me of the approved legal status of any required drug and confirm that it is not experimental;

2. Can you please provide details and assurances that the required drug has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests were publicised for consideration;

3. Can you please advise a full list of the contents of the required drug I am to receive, and if any are toxic to the body;

4. Can you please fully advise of all the adverse reactions of the vaccine I am required to take since its introduction;

5. Can you please confirm that the vaccine you are advocating is not experimental MRNA gene altering therapy;

6. Can you please confirm that I will not be under any duress from yourself, as my employers in compliance with the Nuremberg Code;

7. Can you please advise me of the likely risk of fatality, should I be unfortunate to contract COVID-19 and the likelihood of recovery.

Once I have received the above information in full, and I am satisfied that there is no threat to my health, I would be happy to accept your offer to receive the treatment, under the following conditions:

• You confirm that I will suffer no harm. Following acceptance, your offer must be signed by a fully qualified doctor who will take full legal and financial responsibility for any potential injuries which may occur to myself, or the affect on my family;
  

• In the event that I should have to decline to take the vaccine you are proposing, please confirm that this will not compromise my employment status, and that I will not suffer discrimination or prejudice as a result of my choice to withhold my consent.

According to the Australian Law Reform Commission; “‘Informed consent’ refers to consent to medical treatment and the requirement to warn of material risk prior to treatment. As part of their duty of care, health professionals must provide such information as is necessary for the patient to give consent to treatment, including information on all material risks of the proposed treatment. Failure to do so may lead to civil liability for an adverse outcome, even if the treatment itself was not negligent.”

The Australian Charter of Rights in Healthcare, the National Safety and Quality Health Service Standards, the National Framework on Advance Care Directives, publications on communication with patients, the ‘General Guidelines for Medical Practitioners on Providing Information to Patients’ - National Health and Medical Research Council, 2004; the ‘Communicating with Patients: Advice for Medical Practitioners’ - National Health and Medical Research Council, 2004, and the national codes of conduct of health practitioners all enforce my rights.

I advise that my inalienable rights are reserved. I have a right to bodily autonomy and informed medical consent, and I require full rights to compensation or damages, should the vaccine that you, as my employer, wish me to take, is found to be unsafe for me or my family.

I request that you permit the Court to determine the issue as to whether or not it is lawful for me to be subjected to a mandatory vaccination that is experimental in nature, before you seek to enforce this measure upon me.

I look forward to revising this issue with you when the outcome of the Court proceedings concludes with the Supreme Court Judgement.

There is strong legal precedent which protects my bodily autonomy, protects me from coercion and duress, and protects my right to make an informed medical decision with full consent.

The Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights produced by the United Nation’s Economic and Social Council explicitly state that:

“No State party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude …. The right to recognition as a person before the law, and freedom of thought, conscience and religion. These rights are non derogable under any conditions even for the asserted purpose of preservation the life of the nation.”

The United Nations Human Rights Committee has explicitly emphasised that the restrictions that the Covenant places on Courts such as Australia’s “underlines the great importance of non-derogable rights”.

The fundamental importance of protecting these inalienable rights to boldly autonomy and full medical consent is affirmed by international and national courts.

Article 6 of the Universal Declaration on Bioethics and Human Rights (2005) states: “Any preventative, diagnostic and therapeutic medical intervention is only to be carried out with the proper, free and informed consent of the person concerned, based on adequate information”.

The United Nations, including through the Universal Declaration of Human Rights, first proclaimed in 1948, has long recognised the right to bodily integrity.

The Declaration of Helsinki made in 1964 by the World Medical Association, is also a statement of ethical principles for medical research involving human subjects. Under the heading of “Informed Consent”, the Declaration starts with the acknowledgement that “Participation by individuals capable of giving informed consent as subjects in medical research must be voluntary”.

The Australian Government Immunisation Handbook is clear: “[vaccines] must be given voluntarily in the absence of undue pressure, coercion or manipulation”.

According to the Australian Human Rights Commission, “if there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. The need for vaccination should be assessed on a case-by-case basis, taking into account the nature of the workplace and the individual circumstances of each employee.

There are medical reasons why some people may not be able to receive a COVID-19 vaccination, or may choose not to in their circumstances, including because of protected attributes such pregnancy or disability. Additionally, at present, many younger Australians have not been eligible for certain COVID-19 vaccinations at all, or for shorter periods of time than older Australians.

The Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA) make it unlawful to discriminate on the grounds of pregnancy, disability and age in many areas of public life, including in employment. ‘Disability’ is broadly defined in the DDA and includes past, present and future disabilities, as well as imputed disabilities. A strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in the SDA, the DDA and the ADA.

In Australia, our Constitution ensures that vaccines cannot be mandated.

This has been settled in case law.

Civil conscription was first considered by the High Court in 1949 in British Medical Association v Commonwealth, with Justice Webb noting: “When parliament comes between patient and doctor and makes the lawful continuance of their relationship as such depend upon a condition, enforceable by fine, the 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”.

Chief Justice French and Justice Gummow, in the Hight Court case Wong v Commonwealth; Selim v Professional Services Review Committee held that civil conscription is a “compulsion or coercion in the legal and practical sense, to carry out work or provide [medical] services”.

Willingness and the exercise of choice has been defined in case law clearly in Australia.

In the matter of Bowater v Rowley Regis Corp , Lord Justice Scott notes: “…. A man cannot be said to be truly ‘wiling’ 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”.

The highest Court in Australia has recognised that Parliament cannot lawfully or indirectly create a situation where vaccines are mandated:

Justice Webb in British Medical Association v Commonwealth noted: “If parliament cannot lawfully do this [mandate vaccines] directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no choice but compliance”.

The High Court has acknowledged equality of all persons under the law before the courts.

JJ Dean and Toohey in Leeth v Commonwealth (1992) 174 CLR 455 at 8 referred to the Preamble to the Constitution to support their view that the principle of equality is embedded impliedly in the Constitution. They argue that “the essential or underlying theoretical equality of all persons under the law and before the courts is and has been fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government”.

On this basis, those choosing not to take the vaccine cannot be discriminated against.

Australian courts have acknowledged that treatments are subject to choice and consent are to be respected, and that doctors have no right to object to such a response.

Lord Justice Mustill in Airdale National Health Service Trust v Bland [1993] AC 789 at 889 stated: “If the patient is capable of making a decision on whether to permit treatment and decides not to permit, his choice must be obeyed, even if on an objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death may ensue”.

In addition to these rights and liberties afforded to me under the law, please be advised that in the matter of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd (C2021/2676), Deputy President Dean expressed her dissenting judgment by ruling for the applicant by acknowledging the validity of medical exemptions for the flu shot for staff working in an aged care facility at 81-82, and related it’s application to the COVID vaccine, noting that mandatory COVID vaccinations impinges on other laws, liberties and rights that exist in Australia at [102].

Deputy President Dean noted: “Ms Kimber had a valid exemption from the requirement that arose under the June PHO to have the flu shot ….. There was no basis in which a lawful and reasonable direction could have been given to Ms Kimber to have the flu shot in these circumstances, and such a direction would have been contrary to her medical advice. …. The exemption provision contained within the June PHO is clear, in that all that is required to be satisfied is that: ‘the person presents to the operator of the residential aged care facility a certificate in the approved form, issued by a medical practitioner, certifying that the person has a medical contraindication to the vaccination against influenza.’(Clause 6(d)(ii)) of June Public Health Order).

The Media Release, issued by the Commonwealth Minister for Aged Care, acknowledges that it is the responsibility for States and Territories to give effect to the requirements of the Australian Health Protection Principal Committee (AHPPC).

On 13 August 2021, the Australian Council of Trade Unions (ACTU) and the Business Council of Australia (BCA) issued a joint statement on mandatory COVID vaccinations in which it acknowledged the Australian Government’s COVID vaccination policy that the vaccine is voluntary, and confirmed the views of the BCA and ACTU that “for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination”.

The Fair Work Ombudsman has publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.

Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”.

Deputy President Dean also states in her dissenting judgement at 110 that "COVID vaccinations, in accordance with the Australian Government’s policy, must be freely available and voluntary for all Australians” [at 110] … and that “Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia" [at 111].

The Australian Human Right Commission Act 1986 (Cth) gives effect to Australia’s obligations under the International Covenant on Civil and Political Rights, which provides in Article 7 that “...no one shall be subjected without his free consent to medical or scientific experimentation”.

The Safe Work Australia website also includes the following advice to employers: “Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.

......... However, while this is a decision you will need to make taking into account your workplace, most employers will not need to make vaccination mandatory to comply with the model WHS laws.”

In a scientific brief prepared by the World Health Organisation (WHO) dated 10 May 2021 on COVID natural immunity, the WHO found that “within four weeks following infection, 90- 99% of individuals infected with [COVID] virus develop detectable neutralising antibodies....”. Further, “available scientific data suggests that in most people immune responses remain robust and protective against reinfection for at least 6-8 months after infection (the longest follow up with strong scientific evidence is currently approximately 8 months)”.

In short, there is no justifiable basis for employers to mandate COVID vaccinations to meet their health and safety obligations when other options are available to appropriately manage the risk.

There are also pending matters before Courts in other jurisdictions, including the International Criminal Court which are considering the same matter of the legality of mandatory vaccinations on legal, medical, scientific and ethical grounds.

For this reason, I am currently considering all of my options in relation to this matter, and seeking further legal advice.

Please respect my right to choose.

Yours sincerely,

Full Name

Position/title at work

Signature and Date

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