Thursday, August 04, 2022

Ex-prime minister RIPS into 'fundamentally wrong' Aboriginal Voice to Parliament - and why his opposition is a grim prospect for Anthony Albanese's referendum

Referenda in Australia are normally lost if there is substantial opposition to them so Abbott has just killed Albo's referendum stone dead. Many Australians will rightly be appalled to have racial discrimination enshrined in our constitution

Tony Abbott has argued against the proposed Indigenous Voice to Parliament, claiming the current plan is 'fundamentally wrong' and imploring the Liberal Party to oppose it.

The former Prime Minister voiced his opinion over the issue in a piece he penned for The Australian on Wednesday, saying the body was racially divisive, risked upturning our system of governance, and would do nothing to fix the problems of Aboriginal communities.

'I'm all in favour of recognising Indigenous people in our Constitution, but not if it means making a race-based body part of our parliament and not if it means changing our system of government,' he began.

Mr Abbott claimed the 'problem' with an Indigenous Voice to Parliament is that it makes 'race an element' in who qualifies to sit on a body which will have broad powers to alter laws.

He also said that it 'changes the way our government works' by replacing or rivalling parliament as the peak body for deciding the nation's laws and regulations.

Added to the potential danger is that the powers of the body will remain undefined leading up to a referendum on whether it should be established, because the government does not want that plebiscite to fail due to disputes over fine detail.

Mr Abbott said that meant the Voice would have 'an unspecified say over unspecified topics with unspecified ramifications'.

Mr Abbott applauded Anthony Albanese for 'wanting to do the right thing by Aboriginal people' but wrote that it was not lack of legislative power that gave rise to the problems that afflict indigenous communities.

'We all lament the ugly fact Indigenous people, on average, die younger and live worse than the rest of us. But it's no mystery why this is so.

'People with much worse educational outcomes, with much lower prospects for employment and living far away from the services most Australians take for granted are always going to have shorter, poorer lives than those in better circumstances.'

Anthony Albanese attended the Garma Festival last weekend, where he revealed the possible question that could be asked in a referendum for a Voice to Parliament. The potential question was: 'Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander Voice?'

The early response from the Liberal opposition is that it will broadly support the proposal, but Mr Abbott has implored his former party colleagues in Canberra to oppose it.

Mr Abbott's public opposition to the change would cause some concern among proponents of the Voice, as he had past success at rallying support against a referendum. In 1999, the staunch monarchist led a successful campaign against Australia becoming a republic.

Mr Abbott asserted that close consultation with Indigenous elders and leaders through representative bodies 'has been happening for decades', but enshrining a new body with constitutional power that may override parliament was excessive and dangerous.

'If this body really is, in the Prime Minister's words, to 'end 121 years of Commonwealth governments arrogantly believing they know enough to impose their own solutions on Aboriginal people' it's obviously going to have something approaching a veto over decisions the parliament might otherwise make.'

'How would this additional mechanism improve the final outcome or, indeed, add anything to the 11 Indigenous voices that are already present in the parliament?

'What it would certainly do, though, is make the legislative process more complicated and invite judicial interventions on how much weight might be given to the view of the Voice versus that of the parliament; and on what matters might (or might not) be relating to Indigenous peoples.'

The former Prime Minister said having a rival body to parliament that represented the interests of indigenous people would divide the population on racial grounds rather than bringing them together.


Freedom of speech for the medical profession is under threat in Australia

No one wants to believe that they have been misled by people in positions of trust.

This is especially true when politicians, health bureaucrats, and regulatory bodies have forced compliance to medical mandates rather than leaving risk as a matter of personal choice. There is growing evidence from around the world that information has been withheld from public view and that doctors have been pressured out of questioning policy and data related to the pandemic.

In 1633, the authorities tried and condemned Galileo Galilei to house arrest, until his death in 1642, for publishing evidence that the planets revolved around the sun. They tried to silence open scientific debate. Ultimately, it didn’t work but did create a lot of suffering and misery for a few brave scientists in the meantime.

This kind of behaviour by powerful bodies is not confined to the past.

The newly formed Australian Medical Professionals Society (AMPS), operating as an alternative to the Australian Medical Association (AMA), is standing up for medical transparency, to protect our patients, and ensure open scientific debate.

Our AMPS members are refusing to be silent, even under threats to our registrations. We are fighting for law reform to provide our patients with evidence-based care rather than uncritical politically driven health practice.

Does the Australian public know that the government regulator, AHPRA, has warned health professionals, including doctors and nurses, not to publicly question government public health directives, including those related to Covid – effectively gagging them? This is done by threatening their registration.

Many have been disciplined or suspended for challenging the public health messaging even if they believed that they had scientific evidence to support their professional view.

The directive states:

‘Any promotion of anti-vaccination statements or health advice which contradicts the best available scientific evidence or seeks to actively undermine the national immunisation campaign (including via social media) is not supported by National Boards and may be in breach of the codes of conduct and subject to investigation and possible regulatory action.’

Brett Simmonds, Pharmacy Board Chair and co-chair of the Forum of NRAS Chairs, said of Covid vaccination programs:

‘National Boards support the vaccination program and encourage all registered health practitioners to get vaccinated unless medically contraindicated.

‘The codes of conduct for each of the registered health professions explain the public health obligations of registered health practitioners, including participating in efforts to promote the health of the community and meeting obligations on disease prevention.

‘There is no place for anti-vaccination messages in professional health practice, and any promotion of anti-vaccination claims including on social media, and advertising may be subject to regulatory action.

‘If you’re a registered health practitioner or student, the best thing to do is to read our joint statement. It explains the National Boards’ expectations of registered health practitioners about receiving, administering, and sharing information about Covid vaccination. It’s important you understand these expectations so that patients and communities are best protected against the novel coronavirus that causes Covid.’

AHPRA chief Martin Fletcher rejected the claim, saying:

‘In essence, AHPRA and National Boards expect health practitioners to use their professional judgment and the best available evidence in practice. This includes when providing information to the public about public health issues such as Covid and vaccination.

‘Any promotion of anti-vaccination statements or health advice that contradicts the best available scientific evidence or seeks to actively undermine the national immunisation campaign (including via social media) is not supported by National Boards.

‘It may be in breach of the codes of conduct and subject to investigation and possible regulatory action.’

It is a statement that appears to confirm, not deny, the complaints of medical professionals.

Never before have government bodies demanded compliance with domestic law that we believe breaches our codes and oaths to ‘first, do no harm’ and ‘I will not use my medical knowledge to violate human rights and civil liberties, even under threat’.

Is it widely known among practitioners and the public that the government changed laws to give manufacturers 6 years to provide comprehensive clinical data on safety and efficacy for provisionally approved Covid treatments?

The comparative lack of vital long-term data (present for other vaccines and medical treatments) is lacking in Covid vaccines – making it difficult to justify statements such as proven safe and effective. ‘Assumed to the best of our knowledge’ would be more accurate.

This problem is highlighted by changing promises related to Covid vaccines, which began as ‘you won’t get sick and it will stop transmission’ but now manufacturers and medical bodies have had to admit, due to overwhelming physical evidence in patients, that Covid vaccines do not stop transmission and many people still get sick and die. These revelations call into question the validity of extraordinary measures placed on people for over two years.

In Australia, we have a serious problem. Government excesses of power created through emergency legislation have been allowed to violate our freedoms and liberties. They were justified by largely unscientific and refutable claims. Fear was wrongly employed by political leaders, who also took steps to keep health advice secret from the public by the re-classifying of National Cabinet after Freedom of Information requests were approved by the court.

Public Health Laws gave Chief Health Officers (CHO) unprecedented powers to do almost anything they thought was reasonable during a pandemic – which can be declared on opinion, not evidence – without having to justify their decisions. They are no better than the authorities in Galileo’s time.

Queensland Doctors are taking the Qld CHO to court to gain access to the scientific evidence used to justify mandates that contradict historical experience and scientific consensus. Public confidence should never be coerced through government-mandated compliance to political directives.

We believe our code of conduct requirements demand we exercise our right to political communication to respectfully debate scientific evidence, risk/benefit analysis of therapeutics, and provide informed consent. But to do so we risk losing everything.

If we are forbidden by the government to adhere to our codes and make our patients our primary concern, then this is the end of medicine and the death of science.

AMPS cannot allow such government intrusion to stand. We are fighting back against new laws recommended by the Queensland government that allow public naming and shaming of doctors under investigation.

‘New legislation introduced in Queensland, the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022, will greatly enhance the government regulator’s powers for censoring doctors in Queensland,’ said Steven Andrews MP for Marani QLD.

Even the AMA described these new laws as ‘incoherent zealotry’. The cost for patient advocacy will be public humiliation and potentially career-ending reputational damage. With this unchecked power of AHPRA, fear-based compliance to public health directives will become the primary concern of practitioners.

AMPS has been calling for a Royal Commission into the government response to Covid, while advocating strongly for law reform needed now to allow practitioners to advocate for their patients as their primary concern. Click here for more information. We cannot stay silent while adherence to public health messaging becomes the new accepted standard of good medical practice. Our patients, not politicians, are who we serve, no matter the personal cost.

Galileo said, ‘Two truths cannot contradict one another.’ The pressure on medical professionals to hide their true opinions should be rescinded and doctors allowed to openly debate all Covid measures and be able to have all tools at their disposal to treat patients.


Queensland birth certificates changes to recognise trans, gender diverse people coming to parliament

Major changes that would better recognise trans and gender diverse people on Queensland birth certificates are expected to come before parliament later this year.

Attorney-General Shannon Fentiman on Wednesday also confirmed the Palaszczuk government was considering allowing transgender people who have not undergone gender-affirming surgery to change their gender on the certificate.

Reforms to the Births, Deaths and Marriages Registration Act were expected last year however Ms Fentiman told her Budget Estimates hearing that there had been “some further feedback” from LGBTIQA+ stakeholders.

“There is now an exposure draft of the Bill where we are directly consulting with stakeholders and I hope to be able to introduce a Bill in the next few months - certainly before the end of the year,” she said.

The Attorney-General said the key purpose of the Act’s review was to ensure the state’s registration services remained “relevant, responsive and contemporary.”

“And that includes the consideration of arrangements which will allow trans and gender diverse people to have their gender identity accurately reflected in a birth certificate,” she said.

“And I do acknowledge this is such an important issue to many Queenslanders and consideration has been given to reforms that have happened in other states and the reforms as considered will bring Queensland into line with pretty much every other jurisdiction.”

Asked by Greens MP Michael Berkman whether these changes would include removing the surgery provision, Ms Fentiman said the government wanted Queenslanders’ lived identity to match their legal identity.

“Queensland is one of the only jurisdictions in the country that does require people to undergo gender reassignment surgery before changing that on their birth certificates and certainly that is one of the key reforms that we are continuing to consult on for this Bill,” she said.

The Attorney-General also confirmed that consideration was being given to how the Act could better recognise non-binary people as well.

“We are doing a lot of consultation on that issue and we are looking at the reforms in other jurisdictions, particularly Victoria and Tasmania, and that’s the work we’re doing now on the draft Bill, and we are continuing to work with stakeholders on those issues,” she said.


Justice warriors in the dock

Bettina Arndt

What a nasty shock. Campus administrators in charge of America’s kangaroo courts thought they could get away with running roughshod over the legal rights of young men accused of sexual assault. For years they’ve been doing just that, but now they’ve been put on notice that they might be in the firing line when it comes to legal action against the universities.

A series of judicial decisions have issued a warning to justice warriors who use their positions as campus officials to throw young men under the bus. One example involved officials from Lincoln-Sudbury high school, in Massachusetts, who weren’t happy when an investigation into sexual assault allegations reached inconclusive results. Rather than put this on the record, they revised the report and inserted a finding of guilt.

Campus administrators can no longer assume they can’t be sued for such biased behaviour. Courts are now saying that officials who undermine due process place themselves at risk of the loss of qualified immunity.

The recent legal judgments are part of a welcome trend for judges to disallow immunity defenses in these Title IX lawsuits, leaving campus officials thoroughly exposed.

Australia’s kangaroo courts are run by Sexual Assault and Sexual Harassment (SASH) committees that have license to derail the education of accused young men. But some of these officials are now wondering if they too might face legal risks from playing God in these quasi-judicial decision-making bodies.

There’s an interesting little publication called Campus Review that is circulating to over 200,000 people in higher education. Earlier this year, an article appeared entitled Lessons from the sexual assault and harassment committee: what could go wrong?

It was written by Alan Manly, who is CEO of Group Colleges Australia representing the private higher education colleges, and Emeritus professor Greg Whateley, Deputy Vice Chancellor of the group. They wrote of a case involving a doctor from overseas who was helped by my Campus Justice lawyers, where we achieved a settlement from a major university.

The authors point out that in that case, the student moved on – the doctor is now studying for graduate medical entry to work in Australia. But Manly and Whateley ask what would have happened if that student had been well-funded and bent on revenge? The suggestion then is that he might have chosen to target the SASH committee for the appalling way he had been treated. They have great fun spelling out what that might mean for individual committee members:

‘Good practice would suggest that all committee members should seek their own legal advice… Committee members would have to pay for this legal advice. The affidavits would be done and then they would come back for more details, more evidence to support your assertion.

‘More time, more worry, more personal legal expense and you haven’t got to court yet.

‘A few sleepless nights will be had by committee members.’

Imagine the worry of knowing such affidavits could expose potential unfair treatment of an accused student.

No wonder campus officials have been caught out shredding relevant documents, as was revealed in a recent scathing US court decision against Dordt University in Iowa which talked about officials violating ‘community standards of decently, fairness or reasonableness’.

Manly and Whateley first plant the seed of doubt, and then in June follow up with another article that appears to be aimed at the SASH committees: Quasi-judicial committees vs state courts: opinion.

This time they focused on the most famous case in this territory, involving a medical student at the University of Queensland who went to the Supreme Court and successfully argued that universities had no jurisdiction to determine sexual assault cases. Judge Ann Lyons said that the university could not adjudicate criminal matters and was very critical of SASH procedures:

‘It would indeed be a startling result if a committee comprised of academics and students who are not required to have any legal training could decide allegations of a most serious kind without any of the protections of the criminal law.’

Manly and Whateley point out that the SASH committee was named as the second respondent in this case, so when the university lost and had to pay the accused’s costs as well as their own, they were also potentially liable. ‘Members of the Quasi-Judicial Committee may be well advised to review the meaning of the word “quasi” – “having some, but not all of the features of,”’ suggest the authors.

They add:

‘The feature that may be keeping some members of the Quasi-Judiciary Committee awake at night could well be the costs for a hearing in a Supreme Court with lawyers and barristers on full fee.’

The Campus Review authors are clearly stirring the possum, particularly given that such committees are likely to have ‘vicarious liability’, which means the university carries the legal can. But senior lawyers advise me that failure to provide natural justice for the accused person could create a personal liability that won’t always be indemnified by the university. And it is hardly good for career advancement to be the cause of an expensive lawsuit attracting adverse media attention for your employer.

The University of Queensland appealed the Supreme Court decision and won with the judgment stating universities are allowed to deal with sexual misconduct after an offence is proven in criminal court. But it came with a warning for the universities, that they can expect to have their disciplinary decisions subject to judicial scrutiny if they fail to ensure their internal processes are suitable – meaning they must ensure procedural fairness. Here the university’s lawyers, Minter Ellison, outline the implications for the sector.

Critically, the medical student escaped their clutches because he had graduated in the preceding year. The appeal judgment determined students who were no longer enrolled could not be subject to kangaroo courts.

The university was clearly not happy, despite this apparent win. The whole saga probably set them back with some hefty legal costs (Minter Ellison doesn’t come cheap), plus they’d attracted negative publicity over the case in the same year as UQ was receiving negative media coverage over legal battles with student activist Drew Pavlou, who had been suspended for calling out the university’s alleged ties to Beijing.

Big wigs at UQ sprang into action and conducted a review of the management of sexual misconduct cases, which decided to rein in the SASH committee, which was now relegated to the role of an advisory committee reporting to the Vice Chancellor. University regulations were reviewed to ensure ‘principles of procedural fairness’ were applied – and many other universities followed suit.

It would not surprise me if there was a more cautious mood in the higher education sector, with only one remaining member left from the original 7-person SASH group at TEQSA, the higher education regulator which pushed universities into setting up kangaroo courts.

The speculation in Campus Review about legal liability for SASH members certainly doesn’t hurt and following a number of recent expensive legal cases and significant compensation payouts, the fervour for witch-hunts against accused male students may be starting to wane.

But there are still examples of dubious university behaviour, like the case involving Andrew, the pharmacy student, which I wrote about in June. According to the Minter Ellison advice, universities are allowed to conduct disciplinary proceedings provided the case has been proved in criminal court. Andrew was found not guilty, so why did the university proceed with their inquiry? And where’s the procedural fairness in withholding his degree to ensure he remained in their clutches rather than allow him to graduate and leave the university?

We are considering our options but would love to find serious legal firepower to take this one on. Our concern is less about compensation than about exposing the inherent inconsistencies in the way the kangaroo courts are operating.

More importantly, there are critical legal issues that deserve a public airing. Like:

In law, sanctions for sexual assault have never included the disqualification of students from the academic success they have achieved.

A criminal conviction is not a bar to studying at university or being granted a degree. How then can universities lawfully withhold degrees from students accused or even convicted of sexual assault?

If an applicant for a job in the public service is found to have a criminal record, this has to be relevant to the actual job before denying the job offer. Similarly, the only misconduct that should disbar a person from their degree is plagiarism or other misbehaviour impinging on their studies.

The entire regulatory apparatus is justified by creating a safe environment for students – but by providing ‘safety’ for one group of students, universities have jeopardised the safety of accused students by using what appear to be unfair procedures which deny their legal rights.

Our universities’ SASH regulations usually deny accused students access to lawyers, let alone the right to cross-examination of witnesses and other basic legal protections which Trump imposed on campus tribunals and Biden now seeks to remove. None of our universities come close to offering the required procedural fairness demanded by the Queensland appeal judgment.

Please spread the word amongst your legal contacts and other heavy hitters who might help us tackle this ongoing injustice. The tide is turning and sooner or later, Australia is going to see a university being held accountable for these witch-hunts. When that time comes – and it’s a question of when, not if – universities will pay a heavy price.




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