SOS From Victoria Australia – Mishka Hudson

Dear Mr Craig Ondarchie MP, Mr Kristian Nelson, Mr Stuart Grimley MP, Stephen Andrew MP, Hon Christian Porter MP, Hon Mark Dreyfus QC MP shadow AG, Josh Frydenberg MP, Dan Tehan MP, Bernie Finn MP, Michael McCormack MP, Senator Sarah Henderson,Michael Sukkar MP, Brendan O’ Conner, et al.,

Good morning,

I would greatly appreciate if you may share this information with the entirety of your office/party.

I speak with great concerns surrounding the Andrews Labor Government plans to extend State of Emergency powers under the Public Health and Well-being Act, (2008), up to 18 months. I thank you for looking closely at the measure to add a further time period to the declaration of a State of Emergency, and appreciate that you may have already considered that it permits a significant erosion of individual freedom.  

The purpose of this correspondence is to detail how;

The Andrews government has created a Rogue State in Victoria through an unlawful application of the State Public Welfare Act, ignorance of section 117 and corresponding intent of due process found in the Biosecurity Act, relevant constitutional conflict requiring 109 scrutiny, and a disregard for the whole of the government response agreed to by the States, Territories and Government, as seen throughout the Australian Health Sector Emergency Response Plan for Novel Coronavirus, (Covid-19). Referred to as the plan throughout this correspondance.

The Andrews government has unlawfully applied the State Act to facilitate unreasonable directives which ignore the definition of quarantine, and are not proportionate to the risk, as defined in the covid response plan.

All attempts to permit the Andrews government to extend the State of Emergency, or make amendments lowering due process or reducing risk assessment, must be blocked, without concession, as there is no necessity due to a measure of low outbreak impact in the plan. It would also be unreasonable and highly inappropriate due to the Andrews government’s record of failures, abuse of power, and disproportionate response, surrounding his decision making around management of covid-19. Please note there is a suggested amendment provided in this correspondence that you may consider, to provide critical oversight with any State of Emergency amendment.

Due to the consistently low measure of infectious impact, as defined in the outbreak impact section of the plan. A stand down trigger must now be discussed with the appropriate body, Communicable Disease Networks Australia and facilitated throughout all levels of government.

I respectfully request your response, and that of your party/department, to significant issues requiring further attention. Please look closely at the additional very concerning further amendments the Andrews government is seeking;

Dan Andrews is hoping to add a single word to the Act sec 199(1B), the word reasonably. At the moment the CHO can make directions when he feels it is necessary. Dan wants to add the word reasonably to necessary, this unacceptably lowers the standard of proof required to give the CHO authority to make a direction. 

I would like your party to consider an offer to include in the proposed amendment, specifically, the wording of “absolutely necessary, on the condition that an individual exhibits an unacceptable risk”. There is nothing stopping yourself from offering more reasonable amendments. I would like this seriously considered please for the protection of your constituents.

You will also find in the exposure draft for the Public Health and Wellbeing Act, (2008), Dan proposes, after section 3(3), his intention to amend the language to insert at 4; “even when the rate of community transmission of Covid-19 in Victoria is low or there have been no cases of Covid-19 in Victoria for a period of time”. This amendment is not reasonable and is certainly not proportionate to the risk, as the Australian Health Sector Emergency Response Plan for Novel Coronavirus demands. 

This plan is issued by the Health dept and is found on their government website see link Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19). This details a whole of government response, (inclusive of appropriate measures), that all States, Territories and Federal agreed and consented to. I will refer to it as ‘the plan’ throughout this correspondence for simplicity.

This plan prioritizes communication with responders and the public, as essential to inform decision making and intended to address public concern. This has not occurred as seen throughout many of Dan Andrews media conferences where he has not addressed various public concerns, in fact he treats anyone who questions his approach as a ‘conspiracy theorist’, without impartially considering the merits of the concern. His banning of the antiviral  HCQ, despite questionable opposing research being retracted by the Lancet, despite many independent specialists supporting its use, (with a higher safety and efficiency record than any proposed vaccine), is just one example. This is unacceptable, poor stewardship and as it has likely caused direct harm, is absolute nonfeasance. 

Why government is not pressing for criminal charges against Dan Andrews is beyond me. Incidentally, there is a strong public perception that Dan Andrews is also guilty a workplace safety regulation breaches surrounding manslaughter. As you represent the public interest, it is my view that a request to facilitate a thorough  criminal investigation into his conduct is appropriate. I digress.

It is clear in the plan that the AHPPC, (Australian Health Protection Principle Committee) are supposed to inform State and Territory Chief Health Officers to facilitate a national coordination, aimed to provide that different strategies across different jurisdictions support each other. They have failed as the Andrews government has endorsed a Rogue State and gone off on their own direction, without considering a uniform national response. This is seen through the quarantine debarkle, and his refusal to accept assistance from the army, unlike other States. The Andrews government has been allowed to issue unreasonable directives and terrorise a whole State, without the checks and balances that this committee was designed to implement. I request that you, as a voice of the people, request oversight from the AHPPC.

In 2008 the AHPPC agreed on an ethical framework to guide public health sector responses. This is inclusive of equity, individual liberty, privacy, proportionality, public protection as a primary focus, trust, transparency, and stewardship where leaders are supposed to make good decisions based on the best available evidence. This has not adequately been considered throughout the decision making process of the Andrews government. One example of a unfounded directive is the 8pm curfew. Decisions that substantially affect human rights, should not be made for fear mongering or ‘messaging’, (another example of messaging is seen regarding the Qld school closures). Decisions should be made on independent verifiable evidence, with continuous review.

This plan confirms, and it was unilaterally agreed, that States have powers that must complement the Federal powers. Therefore there State Act must not contradict or conflict with the Federal Act.

The Andrews government is relying on his emergency powers and section 200 of the State Act,  to quarantine Victoria. I refer you to the definition of quarantine as detailed in the response plan;

The limitation of freedom of movement for a period of time of well persons who are LIKELY to have been exposed to the virus, (contact), to prevent their contact with people who have not been exposed.

It is therefore unlawful to quarantine healthy people that do not meet the measure of risk.

In addition Victoria has NEVER reached the level of Outbreak impact as detailed in the plan. For clarity;

Impact severity is determined to be low if most cases experience mild to moderate clinical features. At risk groups and those with co-morbidities experience more severe illness.

Impact severity is determined to be moderate if most cases experience mild to moderate clinical features. At risk experience more severe features.

Impact severity is determined to be high if there is a concern and challenge to healthcare workers based on widespread severe illness.

We are NOT experiencing widespread severe illness, our outbreak impact has not passed the severity level of low as detailed above. Therefore the Andrews government response has already been demonstrated to be highly disproportionate to the risk, unreasonable and an abuse of power. He has lost public trust, and is likely to abuse any power he has available. He must not be provided opportunity to continue his treasonous misconduct.

The plan guides a management approach with agreed measures, (inclusive of the appropriateness of continued measures), between the States,Territories and Federal. It provides that where choices for directives may vary due to jurisdictional context negotiation within the plan process will ensure a coordinated and consistent aligned approach. This has not occurred. The Andrews government has ignored the intent of the plan and has simply relied on his own State power in sec 200, and the emergency provisions, ignoring the due process required in the State Act sec 117 and found in the Biosecurity Act, detailed below. In addition, it is my lay understanding that, where there is a conflict between State and Federal law, Federal law prevails. 

The Andrews government has violated many implied rights under the constitution, through ignoring the proportionality and intent of the whole of government response and cooperation required in the plan.For example, there is an implied right that the government will not make us sick. The mandatory wearing of masks, reduces our oxygen intake and increases our intake of carbon dioxide. It is also a nonfunctional directive as the size of the virus particle can easily pass through a mask. The comparison that medical staff wear these masks during surgery is erroneous, as these rooms often have a higher concentration of oxygen pumped into the theater. I also do not accept false narratives facilitated by medical staff who are not impartial. You do not have to look far to understand the plethora of research supporting that the wearing of masks impairs of immune system and predisposes us to illness. This directive is not fit for purpose and must be urgently reviewed with verifiable independent specialist opinion. Mandatory masks are a symbolic gesture of compliance, and have no place in a democratic society.

I request to know where the government gets authority to tell churches what to do, considering sec 116 of the constitution. Directives have limited attendance, affected funerals and weddings both religious rites. Gov should not prevent the free exercise of religion. The high court states that this is only possible if an infringement suffered by the church is incidental, and applies to everyone. The NSW health order and Victorian directives, specifically mention measures limiting the activities of houses of worship, which is inappropriate and constitutionally invalid.

The response plan provides for a stand-down trigger by the CDNA, (communicable diseases networks Australia), where it is indicated that covid has reached a level where it can be managed under normal healthcare arrangements. As detailed, Australia never reached the plan’s measure in its own definition of a moderate or high outbreak impact and the response in Victoria has been accordingly disproportionate. The public are aware that our hospitals are not overwhelmed. We are aware that all relevant legislation is aimed at effective management NOT eradication. We demand that discussions are facilitated immediately with the CDNA regarding stand-down measures. These discussions should involve community consultation, and disclosed to the public to support good governance. 

I am requesting that the Covid Plan, its measures and agreed understandings as agreed to by States, Territories and Federal is followed immediately. I request that the States request that the Australian government coordinate the stand down of enhanced measures through the CDNA as soon as practical in the interests of public health, (in particular mental health), our economy, and faith in governance.  

In my lay view, there are inconsistencies between State and Federal law covering the same field in relation to health measures and directives The Federal legislation has a widened scope as the constitution has granted the Federal quarantine powers. I question the validity of a contradictory State Public Health and Wellbeing Act, (2008), specifically sec 200, (surrounding detainment), and the due process, (regarding requirements and management of disease control on individuals, requiring a public health order identifying risk) required in section117. The former section broadly permits directives without due process, and the latter requires a measure of individual risk. It is understood that interpretation of an Act is conducted as parts of a whole, and how the sections interact. The necessity to identify that individuals pose a level of risk is echoed in section 60 of the Federal Biosecurity Act, and also where the broad provision given in 478, is limited through it being subject to subdivision B of division 3 of part 3, chapter 2. 

In consideration that the AHPPC has responsibility for national coordination for an aligned management and response, and that States and Territories must complement the Biosecurity Act, (2015), I request that you investigate why this inconsistency in legislation has not been addressed by the AHPPC or government as intended in the plan. Sub-section 478(5), of the Biosecurity Act places limits on interference with States and Territories, unless, the direction is in accordance with an agreement between the Commonwealth and State, Territory or body. An intergovernmental plan as discussed above has been agreed and signed.

I understand that at least one law firm has publicized that they are preparing to launch a challenge inclusive of this legislative conflict, to remedy the inconsistency between the State and Commonwealth, under 109 of the constitution. This firm is also intending to question the reasonableness of directives in addition to proportionality questions and more. I request your position on this matter. I am not requesting advice, merely your position.

I respectfully request that this correspondence is directly considered and replied to by the intended correspondent, and not via a representative.

Kind regards,

Advocacy Title: Ms Mishka Hudson

Australian Paralegal Foundation, Neurobiological Risk Management

Global Goodwill Ambassador Humanitarian