The Power in Understanding Your Rights
By Staff Reporter
This document helps us understand our rights with the mandate in Queensland.
Firstly, mandates are not law or lawful. The word mandate usually describes a policy, doctrine, theory a plan and so on, but mandates are not a law. The reason mandates are not lawful is because a Chief Health Officers Directives have not been debated and passed by Parliament nor have they been given Royal Assent by the Governor General and they are not enforceable. Both the Federal and State Governments cannot enact legislation in relation to a vaccine mandates because they would have to amend seven (7) pieces of federal and state legislation. Secondly, there is no existing Public Health Direction for the “Restrictions for unvaccinated people”. There is a current Public Health Direction for “Workers in a Health Care Setting” up until the expiration of the public health emergency which expires on 26 December 2021, unless extended.
This information is from the Qld Government website, Questions and answers about the upcoming changes to restrictions in Queensland. Note the language.
How will these mandates be given effect?
They will be brought into force by a Chief Health Officer public health direction.
Do I need to show my vaccination status when entering a business?
Yes. The owner or staff of a non-essential business (i.e. one to which restrictions for unvaccinated persons applies) may ask to see your vaccination status. The onus will be on the person entering to show proof of their vaccination status.
We ask that everyone respects the staff at businesses. If they ask to verify your vaccination status, they are only doing their job and taking reasonable steps to enforce the restrictions.
I am the owner of a non-essential business (i.e. one to which restrictions for unvaccinated persons applies). How can I enforce these restrictions?
You need to take reasonable steps to enforce these restrictions.
This means:
display the vaccination rules at your business premises
ask for evidence of vaccination from your customers at the time of check-in
if a customer cannot or refuses to provide evidence, ask the person to leave the premises
if the person refuses to the leave the premises, call the police.
The onus will be on the person entering to show proof of their vaccination status.
We don’t expect business owners or staff to be the police. If there are customers refusing to comply, call the police. Penalties for people refusing to comply are $1378.50 for an individual (100 penalty units).
s362B(3) of the Public Health Act (Qld) states that:
“A public health direction must state—
(a) the period for which the direction applies; and
(b) that a person to whom the direction applies (does not) commit an offence if the person has a reasonable excuse not to comply with the direction.
What is a reasonable excuse? This section of the legislation, to my knowledge, has not been tested.
You do not consent to participating in a clinical trial. See TGA website
You do not want to contravene the following eight (8) international, federal and state laws:
International Covenant on Civil and Political Rights which was entered into force on 23 March 1976 and signatory on 16 December 1966 ([1980] ATS 23)
Article 1 –
1. In no case may a people be deprived of their own means of subsistence (food and shelter).
Article 7 – no one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.
Article 9
1. No one shall be deprived of his liberty except on grounds established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.
1.The Commonwealth of Australia Constitution Act 1900 (Cth)
s 51(xxiiiA) provides that Parliament may make laws for “the provision of medical and dental services (but not so as to authorize any form of civil conscription)”.
s 92 provides that “trade, commerce and intercourse amongst the States (whether by land or sea) shall be absolutely free”.
s109 provides that “When a law of a State is inconsistent with the law of the Commonwealth, the latter (the law of the Commonwealth) shall prevail and the former (the law of the State) shall, to the extent of the inconsistency be invalid”
s 117 provides that a “resident in any State, shall not be subject in any other State, to any disability or discrimination which would not be equally applicable to him if he were a resident in any such other State”.
2. The Disability Discrimination Act 1992 (Cth)
s4(1) Disability in relation to a person means:
(d) the presence in the body of organisms capable of causing disease or illness
s 5 Direct disability discrimination and s 6 Indirect disability discrimination
People with any organisms capable of causing disease or illness, like being HIV positive are not discriminated against, but anyone with the potential of carrying Covid is able to be discriminated against? The proposed Public Health Direction for the “Restrictions for unvaccinated people” is discriminatory under this section, whether it is direct or indirect discrimination.
3. The Biosecurity Act 2015 (Cth)
s 60 – 64 deals with imposing human biosecurity control orders on individuals only, not groups of people. A control order must be given by biosecurity officers be in writing from the Director of Biosecurity, a copy given to the individual and the biosecurity officers must be satisfied that you have one or more symptoms of a listed human disease, or you have been exposed to the listed disease or exposed to someone who has symptoms of the listed disease
4. The Privacy Act 1988 (Cth)
s 6(c) of the Privacy Act excludes small business operators which is defined as a private business with a turnover of $3,000,000 or less. There are some exemptions as small businesses can opt in as a to the Privacy Act and the Australian Privacy Principals.
It is criminal offence for someone to require you to download the CovidSafe app to your phone
94H Requiring the use of COVIDSafe
(1) A person commits an offence if the person requires another person to:
(a) download COVIDSafe to a communication device; or
(b) have COVIDSafe in operation on a communication device; or
(c) consent to uploading COVID app data from a communication device to the National
COVIDSafe Data Store. Penalty: Imprisonment for 5 years or 300 penalty units, or both.
Australian Privacy Principal 3 – Collection of solicited personal information 3.3 and 3.4 – an entity or organisation cannot collect sensitive (health) information unless the individual consents and the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities.
5. Criminal Code 1899 (Qld)
s 245 provides that if a person “strikes, touches, moves or otherwise applies force of any kind to, the person of another, directly or indirectly, without the others person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the persons purpose, is said to assault that other person and the act is called an assault.”
Private Prosecution
In Queensland, if a person (including a corporation) is a victim of a criminal offence, that person can commence a private prosecution against the offender. This means that the person (or corporation), rather than the state, prosecutes the offender.
Arndt v Rowe {2011] QDC 313.
In 2006 a homeless man, Bruce Rowe aged 65 and of slight build, was charged with offences against peace and public order and obstructing police. Mr Rowe was found guilty and convicted in the Magistrates Court, he appealed to the District Court and the appeal was dismissed in August 2007. He appealed to the Supreme Court and his convictions were quashed.
The Police Ethical Standards Command and Crime and Misconduct Commission found there was insufficient evidence to charge any of the police over the incident.
Bruce Rowe brought a private criminal prosecution in the Magistrates Court charging Constable Benjamin Arndt with assault. The assault was by way of force applied on four occasions of “knee strikes” to which Mr Rowe did not consent.
Constable Arndt was found guilty and fined $1,000 with no conviction recorded. Arndt appealed against the verdict to the District Court and the appeal was dismissed therefore, the fine was upheld. Arndt v Rowe {2011] QDC 313.
Brian Shaw and Derek Bareogh are very active in this space and very experienced. Brian has brought charges against Dan Andrews for Misprision of Treason and Fraud and Dan Andrews is due to face Myrtleford Magistrates Court on 15 December 2021. In the last two weeks, 6 Labor MP’s have resigned, but not before the Pandemic Bill passed.
6. Anti -Discrimination Act Qld 1991
s 7 Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of (h) impairment;
Impairment discrimination relates to the presence in the body of organisms capable of causing illness or disease, such as hepatitis, AIDS and HIV positivity.
A person may do an act that is reasonably necessary to protect public health, for example, not allowing a person with the measles to enter a public place.
7. Human Rights Act 2019 Qld
s 17 Protection from torture and cruel, inhuman or degrading treatment
A person must not be—
(c) subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent.
s 22 Peaceful assembly and freedom of association
(1) Every person has the right of peaceful assembly.
S 64 and 65 Who can make a human rights complaint and the requirements for making human rights complaint to the Human Rights Commissioner
If police attend your workplace, they will likely do so based on a Public Heath Direction. You can ask the officers to show you the public health direction and what is the period of the public health direction, and you may provide them with your reasonable excuse. If the police ask for your name and address details, you can ask them under what legislation are they asking, or what criminal offence they suspect you of committing. You have the right of silence.
8. Public Health Act 2005 (Qld)
362B Power to give directions
(1) This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.
(2) The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions—
(a) a direction restricting the movement of persons;
(b) a direction requiring persons to stay at or in a stated place;
(c) a direction requiring persons not to enter or stay at or in a stated place;
(d) a direction restricting contact between persons;
(e) any other direction the chief health officer considers necessary to protect public health.
(3) A public health direction must state—
(a) the period for which the direction applies; and
(b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.
The penalty is 100 penalty units, or 6 months in prison. 1 penalty unit is $137.85
9. Police Powers and Responsibilities Act 2000 (Qld)
The Right to Silence
In Queensland, a person’s right to refuse to answer questions is protected, unless they are required under legislation to answer. The burden of proving an accused’s guilt beyond a reasonable doubt falls on the Crown and an accused cannot be compelled to self-incriminate.
s397 Right to remain silent not affected
Nothing affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act.
s40 Person may be required to state name and address
s41 Prescribed circumstances for requiring name and address
The prescribed circumstances for requiring a person to state the person’s name and address are as follows—
(a)a police officer finds the person committing an offence;
(b)a police officer reasonably suspects the person has committed an offence, including an extradition offence;
If there is no lawful Health Direction, no offence is committed
s 791 Offence to contravene direction or requirement of police officer (direction to give information)
(1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction.
(2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.
(4) Unless otherwise expressly provided, it is a reasonable excuse for a person not to comply with a requirement or direction to give information if giving the information would tend to incriminate the person.
If you are issued with a fine, you can dispute the fine in court. If the fine is upheld, you can apply to the Magistrate for a Fine Option Order. A fine option order allows a person to perform unpaid community service instead of paying the fine imposed for an offence ($22 per hour). A court may only make a fine option order if the court is satisfied that you are unable to pay the fine, you or your family would suffer economic hardship due to payment of the fine and you are a suitable person to perform community service under a fine option order (s 57 Penalties and Sentences Act).
When Police Can Enter Premises (Qld)
Police are generally not allowed to enter private properties without the consent of the occupier. However, there are some circumstances when police can enter premises without consent. These situations are limited and clearly set out in legislation. Under the Police Powers and Responsibilities Act (2000), police can enter private property without the consent of the occupier in certain situations. To investigate a suspected criminal offence, serve documents in order to effect service of court documents, eg, a DVO, to arrest or detain someone if they reasonably suspect that the person is in the dwelling or to execute a search warrant covered by the warrant.
What can you do when police seek to access your property?
If you believe that police do not have grounds to enter your property without your consent or without a warrant, simply tell them clearly that you are not inviting them in and you do not consent to them remaining on any part of your land or property.
Decline to do business or enter a Contract with the Police
Alex Smith from De Cline (search on Facebook) will assist any person who would like to learn how to decline to enter a contract or engage with Police.Sarah from the New Earth Café advised the Police Officer “I choose not to do business with you today” and declined their offer to contract. She was arrested, but all charges were later dropped. I have personally been with Alex when he declined the offer of contract with the Police, he also was arrested, and the DPP have adjourned his matter to April 2022.
What should you do if you are dealing with Police, or you are being discriminated against?
1. You must record everything or have someone record for you, take detailed notes. It is your right to video record in any public place.If you are arrested, the contents of your phone may be searched and copied.
2. If you have been discriminated against by not being given entry or service at a business, you can lodge a Human Rights commission complaint. The form is very easy to complete, request an amount of monetary compensation for the considerable hurt, indignation and humiliation suffered. There is a 12-month limitation period, so it must be lodged within 12 months of the incident.
3. Have a no trespass sign on the front of your home and/or business if you don’t have customers that you would offend. Legally you can ask anyone, including Police to leave your property.
