Is the Australian government illegally using data collected and held by the Australian Immunisation Register to deny entitlement to means-tested family benefits?

The following post is reblogged with permission kind permission of a brand new blog – tyrannical times which will definitely be a page to follow – make sure you subscribe! There are so many ways in which the Australia government, bless their little souls, have breached the constitution and federal legislation through recent No Jab No Pay legislation. This blog has raised just one more in a long line of issues – how can the government use information held by the ACIR for a purpose that was never intended and how that breaches our right to privacy. Were the drafters of this legislation really so arrogant they did not even consider this angle?

The question of the legality of the so-called No Jab No Pay law has never been far from my mind since the prospect of abolishing belief exemptions for childcare and family tax benefits first emerged in February last year, following the release of a Productivity Commission report containing such a recommendation.

However, notwithstanding the utter moral repugnancy of linking means-tested welfare payments to vaccination without provision for belief exemptions, it was always going to be a bridge-too-far to prevent this law from being passed using logical or moral reasoning, for reasons which I will not document here (readers familiar with the topic will already be aware of those reasons).

Consequently, the burden was always going to fall on pro-choice advocates to find a legal antidote to this poisonous, tyrannical law.

An obvious and critical aspect of the No Jab No Pay law is that it is dependent for its operation on the use of vaccination status data collected and held by the Australian Childhood Immunisation Register during the past 20 years.

I have always objected to the government collecting information about my children’s vaccination habits – or rather non-vaccination habits – however, like most, I was never inclined to investigate further the legality of it doing so, for the fact that belief exemptions have been permitted since a vaccination requirement was first used to regulate eligibility to child care payments.  There was simply no need – at least that’s what I thought before last year.  No Jab No Pay is a potent lesson in why we should only permit the government to collect information about us on a need-to-know basis, otherwise, some day, in some way, it will eventually be used against us, as is being done now.

Contrary to what nanny-state proponents would have us believe, information privacy is something everyone should be concerned about!

“If you’ve done nothing wrong then you shouldn’t care about what information the government is collecting about you” they proclaim.

Well, up until 31 December 2015, conscientious objectors to vaccination weren’t doing anything wrong, yet from January 01 2016 we are now being denied entitlement to child-care and family tax benefits.

Privacy

The passage of No Jab No Pay necessitates a closer examination of the validity of the register itself, as well as the validity of the purposes for which the government is collecting and using information held by the register against a percentage of its citizens.

Just because the government has been collecting individual vaccination status information about our children for 20 years, doesn’t mean it has been doing so lawfully!

The register, the extent of personal information collected, and how information held by the register may be legally used should be a key focus for any lawyer charged with examining ways to restore our rights.  The register law may present an easier avenue by which to achieve this end than the actual No Jab No Pay legislation itself.

History and use of the Register

The Australian Childhood Immunisation Register was constituted by regulation in 1995, and subsequently incorporated into legislation in 1996, by amendment to the Health Insurance Act 1973.  The parliamentary digest for this amendment provides an overview of the proposed, narrow uses of information collected by the register.  Importantly, from its inception up until commencement of the Child Care Payments Act 1997, vaccination status data collected by the register did not include non-vaccination, nor could it be used for the purpose of regulating eligibility to child care or family payments.

Secondly, between late 1997 and 2015 – whilst vaccination status data collected by the register was used to regulate eligibility to certain child care and family payments following enactment of the Child Care Payments Act, and subsequently A New Tax System (Family Assistance) Act – the data was collected and used on the basis that belief exemptions were in force during this period.  No Jab No Pay proposes to use vaccination status data collected for this earlier purpose (inclusive of the right to belief exemptions), for a broader purpose, namely, enforcement of a vaccination requirement without belief exemptions.

Get all the information

In other words, the government has been deceptively collecting vaccination status data about our children for the last 18 years on the basis that collection and use of that data for regulating eligibility to child care and family payments included an entitlement to register a belief exemption, but now intends to use the information collected to date for a broader purpose not inclusive of a right to register a belief exemption.  A classic bait and switch.

Evil bastards.

Constitutional bases purporting to authorise the immunisation register

The Australian Immunisation Register Act 2015 passed late last year, purports to provide authority for the government to continue to keep an immunisation register, and in fact extends the children’s register to include those “children” up to 20 years of age.  Yes, adult “children”, and later in 2016, the register will become a whole-of-life immunisation register.  Are you feeling the warmth of that nanny state blanket yet?

Section 13 of the new Immunisation Register Act provides a list of constitutional bases (as found in section 51) on which the immunisation register may be authorised and as much as I would like for the immunisation register to be dead and buried altogether, have little doubt that one or more of those bases would support the constitutional validity of the immunisation register itself.  After all, a sufficient connection between the register law and one of those powers is all that’s required for the Commonwealth to have the necessary power to legislate in that area.

(a)  the provision of pharmaceutical benefits; or

(b)  the provision of medical services (without any form of civil conscription); or

(c)  census or statistics; or

(d)  external affairs, including:

(i)  giving effect to an international agreement to which Australia is a party; or

(ii)  addressing matters of international concern; or

(e)  a Territory or a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970 ); or

(f)  the implied power of the Parliament to make laws with respect to nationhood; or

(g)  the executive power of the Commonwealth; or

(h)  matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.

However, it’s one thing for the Commonwealth to have the necessary legislative power to create and keep an immunisation register, but quite another to collect and use personal medical information for expedient purposes in excess of its authorised powers.

For example, under the census and statistics power, it would be entirely possible to argue that the collection and use of vaccination status data about individuals – identifiable by name, date of birth, address, and Medicare number – is well beyond the scope of that power.

It remains to be seen whether or not the Commonwealth has the necessary power to collect vaccination status data about individuals with a level of identifying information sufficient to regulate entitlement to means-tested welfare payments.  If it doesn’t, then it will lose the only effective carrot it has ever had by which to lift immunisation rates, and it will only have itself to blame for enacting such a draconian law.

Only time will tell.

Did NSW Fair Trading Illegally Leak Private AVN Information?

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In November 2013, the Administrative Decisions Tribunal affirmed that the NSW Office of Fair Trading (OFT) may lawfully order us to change our name. Then, in December, our attempt to process the new name was thwarted when that name was somehow leaked to outside parties. This happened within hours of our payment failing due to an unauthorized access on our credit card. This enabled them to ‘get in first’ and register the name for themselves.

(Note: individuals can register business names immediately, whereas incorporated associations have to wait for OFT to register an official name on their behalf.)

This was not the first time we suspected sensitive information had leaked from OFT. Just one month prior, members of ‘Stop the AVN’ publicised the decision regarding our forced name change (mentioned above) before we ourselves were aware of it. At the time, the only parties with access to this information were OFT and the Tribunal itself. The event in December galvanised our suspicions.

Our contact at the OFT undertook to investigate the alleged leak, but despite this promise, it appears that no investigation has taken place and all communication with our contact has been cut off by the OFT without explanation.

During the past six months, many of our members have asked about the progress of this investigation. Each time, we have had to reply that we were still waiting. To date, we have had no adequate response nor any indication that an investigation has or will take place.

On May 15th of this year (six weeks ago) we issued the Commissioner with a statement of events, and asked for confirmation of its accuracy. We indicated the statement would be used to brief our members about what had occurred thus far.

We have been asked to sit tight ever since while a response could be prepared. And we have, until now. Our final deadline to OFT passed five days ago. The Committee has now decided to go ahead and release the statement.

Below is the letter, complete with the statement and an outline of our concerns. In addition, you will find subsequent correspondence between OFT and AVN.

——————————————————–

May 15, 2014

The Commissioner,
NSW Fair Trading

Ref: Your correspondence of 14/3/2014
by email to commissioner@finance.nsw.gov.au

Dear Commissioner,

Regarding the possible leakage from your office of sensitive information concerning our organisation.

Please read the following document and advise as to whether any of the information in the enclosure or the summary (below) is inaccurate. We request your response in writing no later than the close of business on Thursday, May 29, 2014. Should you require more time to respond, please contact us. In response to queries from our members regarding this issue, we intend to inform them using the information in the summary and full-text letter below. If we do not hear from you within this timeframe, we will presume that you agree with these statements and will proceed accordingly.

In summary:

1- No formal investigation took place. It is clear that sensitive information provided by the AVN, somehow flowed from NSW Fair Trading to third parties. Despite the disturbing nature of this situation, NSW Fair Trading has neglected to conduct an investigation.

2- Ms Lunney, our contact at the department, expressed deep concern about what had occurred. We were surprised then to be told that she was unavailable to speak with us subsequently.

3- It seems that someone within NSW Fair Trading did indeed release information to a third party. However, instead of treating this situation with the seriousness it deserved, a carefully-worded letter was sent to the AVN by Mr Stowe, the Commissioner of Fair Trading, giving us assurances of things we hadn’t alleged whilst avoiding those we had.

Kind regards,
Greg Beattie,
President
Australian Vaccination-skeptics Network Inc

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Is the NSW Office of Fair Trading leaking privileged information?

Members of Stop the AVN have obtained information that was not in the public arena at least twice in recent months.

The first instance occurred on the 25th of November. When the Administrative Decisions Tribunal (ADT) decision was handed down in the case of the AVN against NSW Fair Trading, members of Stop the AVN issued tweets about our loss before we ourselves were informed and before this information was public knowledge. We confirmed with the Registrar at the ADT that the only person who had knowledge of this decision at the time the tweets were issued was the solicitor for NSW Fair Trading.

The second instance occurred in December of 2013.

At 11:36 AM on the 20th of December, Meryl Dorey faxed and emailed a copy of a Form A1 (application to reserve a name) as well as a credit card payment form to the Department of NSW Fair Trading.

Unfortunately, due to an unauthorised access of the AVN’s credit card, the payment was rejected on December 24th.

1- Within hours of the payment failure, members of Stop the AVN had registered the exact same name we had tried to reserve as well as three variations of that name with ASIC.

2- On Boxing Day (December 26th), the AVN’s President, Mr Greg Beattie, received a call from Mr Rick Morton, a journalist with the Australian newspaper, who asked him why our name registration had failed. At this point, we ourselves were unaware of any problem with the payment and Mr Beattie told him as much.

3- On January 2nd, Mr Morton published an article (Appendix A) stating that the AVN had failed to register the name Australian Vaccination-Sceptics Network. The only time that name (including the hyphen) had been written down was on the paperwork the AVN had submitted to the Department on the 20th of December.

4- That same day, January 2nd, the AVN was made aware of a blog post from Mr Dan Buzzard (the text of which was later posted to the AVN’s PO Box in Bangalow). (Appendix B). Mr Buzzard stated that on the 24th of December, his “investigators” notified him that we had attempted to register the name Australian Vaccination-Sceptics Network.

5- Also on the 2nd of January, the following online comment was posted on the website of the Northern Star newspaper in response to their story about the AVN’s ‘failure’ to register our name.

Sandra_Harvey of Ocean Shores wrote:

“So to reserve a name without paying for it until their hand is forced once again by NSW Fair Trading has backfired. Dan Buzzard registered the name Australian Vaccination Sceptics Network with ASIC. If they had simply paid up like any sane person who wanted to register a name, they would have nothing to complain about”

All of these events took place well before we ourselves were aware of the failure of our payment and at a time when our name reservation should not have been public knowledge.

When ASIC reopened in January, the AVN enquired as to whether any of the above information might have been available to the public on their database. We were informed that name reservations do not appear on the database until they have been registered with the relevant state authorities. In fact, they themselves don’t have access to name reservations from the various states so nobody could have found out about this from them.

On Monday, January 6th, Mr Beattie spoke with Ms Robyne Lunney, our contact at Fair Trading, to inform her of Mr Buzzard’s claims and the article published in the Australian newspaper. Ms Lunney was disturbed by these events and said she would investigate and get back to Mr Beattie. She requested more details which were provided later that day by email. [Appendix C]

On trying to follow up with Ms Lunney, Mr Beattie was twice told by Fair Trading that she was not available and would no longer be available to speak with him.

On the 11th of February, Mr Beattie sent an email to Ms Lunney asking how the investigation was progressing. [Appendix D].

He received a response on the 13th of February, but not from Ms Lunney. Instead, Ms Christine Gowland was the correspondent.
Her only response to Mr Beattie’s question about the ‘investigation’ was:

“A response to the other issues raised in that email and your earlier email regarding events following your name reservation will be provided shortly under separate cover.”

After having no other contact with the Department regarding this matter, Mr Beattie sent the following request to Ms Gowland on March 3rd, 2014:

Dear Ms Gowland

I understand from the last sentence in your email (below) that the matter of sensitive information falling into the hands of a third party is still being investigated by your office. Can you please advise me of the name and contact details of the branch or person conducting this investigation so that [I] may ask further questions directly?

[It is our understanding that proper procedure for such an investigation is that it be conducted by a separate branch and that the party requesting the investigation (in this case, the AVN) be informed of these details.]

Ms Gowland did not respond to Mr Beattie’s request for further details about this investigation. Instead, the next correspondence from her was received by the AVN on the 12th of March 2014. It was a letter informing him that the AVN had 5 days in which to comply with the order to ensure that our name was changed on all documents and on our website.

On March 13th, Mr Beattie wrote to Ms Gowland acknowledging her advice regarding our name change and reminding her that he had yet to receive a response to his request from the 5th of March for details on the internal investigation.

Ms Gowland responded on the same day as follows:

“A formal response will soon be provided to you regarding issues raised in regards to information surrounding the new name.”

On March 14th, Mr Beattie sent the following email to Ms Gowland:

Dear Ms Gowland

Thank you for your email. I must ask why you have neglected to identify the party conducting the investigation. Surely we are entitled to make enquiries to this party regarding time-frames and other issues. Is it a formal investigation? I ask because these are the questions being asked of me by our members.

I look forward to your response.

Kind regards
Greg Beattie
President
Australian Vaccination-skeptics Network Inc.

On the 21st of March, the AVN received a letter by postal mail from Mr Rod Stowe, Commissioner of NSW Fair Trading. This letter [Appendix E], was signed on March 14th but not posted until March 19th. The letter simply stated that Mr Stowe assured the AVN that NSW Fair Trading had not disclosed any details regarding the name Australian Vaccination-Sceptics Network to the media or in any public forum.

The use of this language is interesting. Whilst members of the media were clearly privy to this information, the AVN has never alleged that NSW Fair Trading had released it directly to them. Why then did Mr Stowe use these words? The fact is that information which was not in the public domain and was sent by us to NSW Fair Trading under current privacy legislation, somehow made it to these parties. The question is – how did this happen?

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From: <commissioner@finance.nsw.gov.au>
Date: Wed, May 21, 2014 at 5:02 PM
Subject: Re: Correspondence from Australian Vaccination-skeptics Network     Inc.

Dear Mr Beattie

Thank you for your further correspondence on this issue, which is currently being considered. A formal reply will be forthcoming following careful consideration of the points raised.

I will shortly provide you with an updated reference number for this matter.

Regards,
XXXXXXXX
Office of the Commissioner | NSW Fair Trading

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From: <commissioner@finance.nsw.gov.au>
Date: Mon, May 26, 2014 at 10:05 AM
Subject: Ref: FTMIN14/1376 – Correspondence from Australian     Vaccination-skeptics Network Inc.

Dear Mr Beattie

I write again to further acknowledge your latest correspondence.

The reference number for this matter is FTMIN14/1376.

Unfortunately, the Commissioner will not be able to meet your stated deadline for a response to the issues raised, especially due to the fact he has only just today returned from overseas leave. However, please be assured the matter is under consideration and a response will be forthcoming as soon as possible.

Regards,
XXXXXXXX
Office of the Commissioner | NSW Fair Trading

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From: Greg Beattie
Date: Fri, Jun 13, 2014 at 2:00 PM
Subject: Re: Ref: FTMIN14/1376 – Correspondence from Australian Vaccination-skeptics Network Inc.
To: commissioner@finance.nsw.gov.au

Dear XXXXXXXX

Your ref: FTMIN14/1376

Please be advised that our committee intends to commence preparing the information for our members after close of business next week (June 20). We request that the Commissioner notify us before that date if he feels that any of the information in the timeline we sent him is inaccurate or otherwise not in order. We presume the Commissioner is familiar with the issue, having previosly considered the allegations. If any substantial inaccuracies can be identified before the time mentioned above, we will be happy to delay informing our members to allow further time for investigation.

Please ensure a copy of this email is forwarded to the Commissioner.

Kind regards

Greg Beattie
President
Australian Vaccination-skeptics Network Inc.

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From: <commissioner@finance.nsw.gov.au>
Date: Mon, Jun 16, 2014 at 11:38 AM
Subject: Re: FTMIN14/1376 – Correspondence from Australian     Vaccination-skeptics Network Inc.

Dear Mr Beattie

Thank you for this latest e-mail, which will be considered in the preparation of the Commissioner’s response to your previous correspondence on this issue (FTMIN14/1376).

Regards,
Office of the Commissioner | NSW Fair Trading

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Date: Fri, Jun 20, 2014 at 7:17 AM
Subject: Re: FTMIN14/1376 – Correspondence from Australian Vaccination-skeptics Network Inc.
To: commissioner@finance.nsw.gov.au

Dear XXXXXXX,
Thank you for your email. It has now been more than five months since this matter was raised. Despite its concerning nature (something clearly acknowledged by your own representative) we still have not had an adequate response. I reiterate that our committee intends to prepare the information for members after close of business today (June 20, 2014). We will also consider whether further action is warranted.
Please ensure the Commissioner receives this email.
Thank you for your assistance.
Yours sincerely
Greg Beattie
President
Australian Vaccination-skeptics Network Inc.

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From: <commissioner@finance.nsw.gov.au>
Date: Fri, Jun 20, 2014 at 2:35 PM
Subject: Re: FTMIN14/1376 – Correspondence from Australian Vaccination-skeptics Network Inc.

Dear Mr Beattie

I acknowledge your email and have made the Commissioner aware of it.
We are expediting the Commissioner’s response and hope to send it to you today.
Regards,
XXXXXXXX
Office of the Commissioner | NSW Fair Trading