Phone call with a lawyer at Caxton Legal Centre

January 20, 2021

Phone call with a lawyer at Caxton Legal Centre

Introduction

This is the first of my briefings on this blog. I have set the blog up as a response to what I believe is a profound shift in the COVID crisis response from the Queensland government. While Queensland was minimally impacted by the first wave and experienced no second wave, a new lockdown and a first ever mask mandate was implemented on the basis of what has been identified as the UK variant known as B117. This variant is regarded widely as 70% more virulent than previous variants on the basis of a pre-print publication of modelling and analysis done using “whole genome sequence data”(1). This blog will include my notes, briefings and any other postings that are relevant to my complaint or any other related endeavour to which I may make a contribution.

Legal Advice

Yesterday, January 19, 2021, I spoke for an hour with a lawyer from Caxton Legal Centre based on a recommendation from the Queensland Human Right Commission. Caxton Legal Centre are public interest lawyers and both the lawyer and I acknowledged that my interest is in mounting a public interest case in order to open up a discourse or ‘conciliation’ with Queensland Health. Effectively I am seeking to force a discourse that Queensland Health has not initiated under the auspices of Queensland Human Rights Commission and with reference to human rights as they are enacted in Queensland.

Sections

In the following sections I will provide notes based on the advice given to me over the phone and after consideration of the central role played by genomic sequencing in providing a trigger for new mask mandates and lockdowns.

Key Questions. Science Categories. Queensland Legislation. Human Rights and Vaccination.

Key Questions

I prepared 3 general questions for the phone call. I was glad to get a clear answer to 2 of them.

1. How do the relevant state and federal acts work together?

I left this question till the end of our session. The Biosecurity Act 2015 didn’t come up in relation to any of our previous discussion of legislation. The lawyer indicated that federal legislation and it’s interaction with state legislation was not in their area of expertise.

2. Are our human rights limited/under partial suspension under this health emergency?

Yes. The Chief Health Officer has broad emergency powers to give directions that impact on liberty, privacy, freedom of assembly and freedom of movement.

3. Are necessity and proportionality the 2 pillars of human rights legislation?

Yes. Public entities like Queensland Health are bound to give consideration to the impact on human rights when planning and developing any policy/action.

Science Categories

I prepared 6 key categories or science problems in order to target any questions about the science behind public health policy decisions. In each category the scientific basis of public policy is being contested in public discourse, and through legal, civil and judicial processes. Each category reinforces the others to varying degrees.

The least understood and most influential category is genomic sequencing. Unlike the other categories for which there is a thorough and rather marginalised discourse, the role played by genomic sequencing and the discovery and characterisation of new variants is yet to be fully interrogated.

1. Isolation – genomic sequencing – UK variant B117

It became clear upon reflection on how crucial ‘in silico’ (in a computer) genome sequencing is to the implementation of the first mask mandate in Queensland(2). In silico genome sequencing is where a best-fit ‘whole’ genome is assembled using software and genome data bases. Samples are first put through a PCR test which is either positive or negative, then the samples are sent for genomic testing which we are told can detect the variant for which the person has tested PCR positive.

2. Testing – PCR – diagnosis? - asymptomatic spread

Testing feeds the genomic sequencing project. The less testing there is, the smaller and less robust the data set acquired. PCR positives combined with contact tracing compel otherwise healthy people to go into quarantine often at their own expense. Without the contested notion of asymptomatic spread large scale PCR testing as a diagnostic tool applied to healthy people could not be justified.

3. Modelling – privatised data – inaccurate

Claims of higher virulence of the UK variant are based on modelling of privatised data including genome sequencing data. Without access to the complete data sets for the general public there exists no opportunity to analyse and understand the real impacts of lockdown. Modelling has proven to be an unreliable tool in determining the nature of the pandemic(3).

4. Mask mandates – new public health measure – requires scientific evidence

The impetus for implementing Queensland’s first mask mandate was not the appearance of illness, but rather the appearance of the UK variant through genomic testing. Queensland masking policy and advice has no demonstrable basis in science. For the first 6 hours of the mask mandate it was advised by Queensland Health that a scarf or bandana will do as a “last resort”(4).

5. Lockdown – new public health measure – requires scientific evidence

Genomic sequencing and the appearance of the UK variant was also the trigger for the second lockdown in Queensland. Despite extremely low mortality and hospitalisation figures Queensland’s south east region was put into a harder lockdown than any time in 2020. Lockdown did not exist as a pandemic response measure before 2020(5).

6. Vaccines – must be properly tested – must be effective – must be free from compulsion

I highlighted the risk of compulsion by circumstance to the lawyer and asked at which point do the accumulated requirements for vaccination as a passport to civic life form a framework of compulsion. I referred to statements given to Paul Karp at Sydney Morning Herald by the Australian Human Rights Commissioner regarding recent statements made by the NSW premier. The companies rapidly developing mRNA vaccines are effectively tech start-ups funded to wait in the wings fine tuning their delivery system. The lawyer indicated that since we do not know how vaccine roll out will happen in Queensland we’ll just have to wait and see(6).

Queensland Legislation

1. Public Health Act 2005(7)

This act determines that the Chief Health Officer is responsible for making directions once the minister has declared a public health emergency. Therefore they are ultimately responsible for decisions made that impact on limits or abuses of human rights.

This act also outlines police and emergency officer powers. Most often police are automatically made emergency officers.

Section 345 outlines police powers. Under the January 8 to 11 lockdown and mask mandate police/emergency officers had the power to fine anyone, anywhere but in their own home or a friend’s home for not wearing or accepting and then wearing a free mask. They did not and do not have the power under the January 11 to 22 mask mandate to demand proof of an exemption. They do always have the power to demand proof of name and address due to a ‘reasonable suspicion’ clause.

2. Public Health and Other Legislation (Public Health Emergency) Amendment Bill 2020 (8)

This bill amended the Public Health Act 2005 and was passed on March 18. Clause 36 of the bill confers special powers to the Chief Health Officer to limit freedom of movement and freedom of association under the public health emergency or ‘COVID 19 emergency’ declared on January 31, 2020.

3. Human Rights Act 2019 (9)

This act is the primary guide to framing a complaint to Queensland Health for the purposes of bringing a complaint to the Queensland Human Rights Commission. All questions and inquiries need to be framed around what considerations were made about any limitations of human rights deriving from an act or decision such as a direction given by the Chief Health Officer.

Section 13 of the act contains the key phrase “demonstrably justified”.

A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

It is my contention that the Queensland Health have not shared enough information on the science behind their public health policies. Neither Queensland Health nor the Chief Health Officer have provided evidence of the nature of their deliberations regarding the health, economic or human rights implications of their actions in light of the robust science that must inform their decisions and directions given to the public.

The process of bringing a conciliation with Queensland Health under the auspices of the Queensland Human Rights Commission will create the conditions for Queensland Health to demonstrably justify the necessity and proportionality of the directions given by the Chief Health Officer in concert with Queensland Health and the Queensland government working with the National Cabinet.

Human Rights and Vaccination

I’ll leave the last word to the Australian Human Rights Commissioner Edward Santow who made a recent statement in relation to the proposal by NSW premier Gladys Berejiklian that vaccination be compulsory for travel, some businesses and some government services(6).

In some situations, a requirement to vaccinate might be permissible, provided this requirement is genuinely necessary for the protection of public health and the requirement is proportionate to the risk and operates in a non-discriminatory manner,

References

(1) ‘Transmission of SARS-CoV-2 Lineage B.1.1.7 in England: Insights from linking epidemiological and genetic data’

https://www.medrxiv.org/content/10.1101/2020.12.30.20249034v2

(2) ‘in silico’ adjective Computationally, as opposed to in vitro or in vivo.

https://medical-dictionary.thefreedictionary.com/in+silico

(3) ‘RAMESH THAKUR. The rise and fall of coronavirus modelling’

https://johnmenadue.com/ramesh-thakur-the-rise-and-fall-of-the-coronavirus-models/

(4) ‘Face masks — coronavirus (COVID-19)’, Queensland Health – 09/01/21, 00.09 webpage snapshot

https://webarchive.nla.gov.au/awa/20210108130900/http://pandora.nla.gov.au/pan/181010/20210109-0000/www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/protect-yourself-others/face-masks.html

(5) ‘What They Said about Lockdowns before 2020’

https://www.aier.org/article/what-they-said-about-lockdowns-before-2020/

(6) ‘NSW considers giving businesses power to make Covid vaccination requirement for entry’