Peter Fam (lawyer) | on Human Rights re: Covid
“In Australia today, in response to a virus where we’re locked in our homes, we’re forbidden from exercise, we’re forbidden from human contact, we are tracked and traced and digitised, we’re forced to accept invasions of our privacy that will never be regressed, and injections into our body that cannot be reversed, if we want to remain a part of functioning society. Even our breathing is restricted, but luckily Liquor Land remains open.” ~ Peter Fam, Human Rights Lawyer, Australia
Rumble | The COVID Inquiry 2.0 is a cross-party, non-parliamentary inquiry held on the 17th August 2022.
Senator Malcolm Roberts :
Our next presenter is Peter Fam, who’s a lawyer on human rights. He’s a human rights specialist and the principal lawyer at Maat’s Method, is that how you pronounce it, Maat’s Method? A human rights law firm in Sydney. He holds a degree in journalism as well. Peter is a defender and advocate of universal law, his aim is to assist restoring truth, justice, and balance to our world. Up until 2019 Peter worked in private practise representing survivors of historical abuse before moving to broader civil litigation work for a large defendant firm. From there Peter was offered a role in the human rights specialist team at Legal Aid New South Wales where he worked for two years. Peter founded Maat’s Method so that he could focus his attention fully on issues which concern the inherent dignity every man and woman holds by virtue of their humanity. He did that because he wasn’t aligned with where his previous employer was.
Since its founding, Peter has been heavily involved in various court cases on the topics of the censorship of medical and other professionals, the right not to consent to unwanted medical procedures, privacy and whistleblower law, and other human rights areas, particularly those enshrined in international law. Peter remains one of the handful of lawyers in Australia working directly in these areas. He travels regularly around Australia to assist First Nations communities with claims for overzealous policing, false imprisonment, and discrimination at the hands of the state. Thank you very much for coming, Peter, and you’ve travelled up from New South Wales as well, so thank you, I appreciate that, you’ve done your cost.
Pleasure, thank you for holding this inquiry. Once upon a time, senators, not too long ago, Australia was a prison colony. Prison officers meted out orders and directions, and convicts carried out their sentences. This is the foundation that the Australia of today lives on, and the people of Australia are conditioned for the most part to be subservient. They look desperately to outsource authority to somewhere else so that they don’t have to make decisions themselves.
As for the authority in this place, they think they can do whatever they want, and for a large part they get away with doing so. Given that dynamic it shouldn’t really surprise us that Australia has a pretty poor track record of defending and even recognising the human rights of its citizens. Our human rights panellists is largely about acknowledging the authority that each of us holds within ourselves. The foundation of human rights law is the principle of self-determination. Part one, article one of the International Covenant on Civil and Political Rights, which Australia was one of the first nations in the world to sign, to become a signatory to, is the principle of self-determination. Self-determination is, in part one article one of the ICCPR, that all people have the right of self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.
Now there’s a reason that the right to self-determination is the bedrock of human rights law. It’s the foundation on which any society which values human rights should be built. Individually it refers to a person’s ability to make choices to manage their own life. Telling people they can’t work in their industry of training or choice, or that they can’t engage freely in society on the basis of either their political opinion or medical status, is a clear aggregation of the principle of self-determination. It’s clearly an abrogation of the right to freely pursue one’s own economic, social, and cultural development. It is an order from prison officer to convict, you do not have the authority to choose what is best for your own life, you don’t even have the authority to choose what is best for your own body, you must do what we tell you or else.
Now we’re here to talk about the doctor patient relationship. In Australia today, a doctor is told to align his or her professional advice with the government messaging about a foreign pharmaceutical corporation’s product which that government has purchased, or else. In Australia today, a cardiologist cannot advise a man with a history of heart conditions not to undergo a provisionally approved medical procedure which might exacerbate those conditions unless his heart condition matches up to a government approved brief list of exemptions.
In Australia today, a woman in Victoria cannot get a heart transplant at a public hospital, and the leading cardiologist at that hospital then publicly bullies her for her personal medical choices. In Australia today, a Northern Territory woman dies after being denied dialysis treatment because she did not want to get a vaccine, and there’s no word about it at all that gets out to the general public. In Australia today, in response to a virus where we’re locked in our homes, we’re forbidden from exercise, we’re forbidden from human contact, we are tracked and traced and digitised, we’re forced to accept invasions of our privacy that will never be regressed, and injections into our body that cannot be reversed, if we want to remain a part of functioning society. Even our breathing is restricted, but luckily Liquor Land remains open.
Panellists, I’m a human rights lawyer, which means I’m a proponent and defender of universal law. I believe that human rights are not something that men and women of Australia are owed, they are not external to the men and women of Australia, they’re not something that can be taken away from the men and women of Australia, they are the rights the citizens of Australia hold by virtue of their humanity, not by virtue of their citizenry.
Now, Australia, in the solemn shadow of the greatest human rights abuses since 1788, where millions were killed in the two World Wars, made the noble decision that is natural to any well meaning society, which is signing the International Covenant on Civil and Political Rights, and the six other major international human rights treaties and covenants that Australia is a signatory to. And when Australia did that, and was one of the leaders in the world in doing so, Australia said that the human rights of our citizens exist by virtue of their humanity, not by virtue of their citizenry, and Australia promised to uphold the rights and principles contained in those covenants and treaties.
Now, lawyers and their government clients love to say that those treaties and covenants are powerless, that they’re lacking in utility, that they’re not enforceable because they’re not enshrined in our domestic legislation. That is partly true, but it’s a convenient oversimplification of the truth. So I’m going to run through some of the protections that exist, and then I’m going to explain why they do hold some power, and why it’s important that more people are aware of the rights protections that exist for Australian citizens.
So there’s the right to self-determination, I already talked about that, it’s very important that that right is acknowledged as the bedrock of human rights law, because it is acknowledged in that way, and always has been. There are more specific rights, a lot of people know about part three article seven of the ICCPR, which is to do with free consent. It says that, “In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” I sometimes get people up in knots when I refer to Pfizer, Moderna, AstraZeneca, Novavax as medical and scientific experimentation.
But it is, they’re provisionally, approved medical treatments, they’re still in clinical trial, that is the very nexus of medical and scientific experimentation. In terms of free consent, free consent is consent absent social or economic pressure. It is not a principle that has any controversy as to its meaning, it’s always been accepted that free consent is consent at any duress, any coercion of any kind. There is nobody in Australia who over the past two years underwent COVID vaccination and freely consented to that procedure because the coercion permeated every aspect of society, economic, social, and so on.
So even if they wanted it, they were coerced through propaganda or conditioning.
I would say that they did not freely consent because yes-
And they weren’t made aware of the danger, so therefore it’s not free consent.
Yes, yes. There’s also the right to privacy, the right not to be discriminated against. These rights are pretty actually well protected in domestic legislation. We have a Federal Privacy Act, and we have both federal and state discrimination statutes. All of those statutes have so far not really adequately responded to the novel issues that COVID 19 has thrown up. I’m going to explain one of the main reasons for that soon. Now freedom of thought and freedom of expression, probably of most relevance to the topic of this inquiry, articles 18 and 19 of the ICCPR enshrine those rights, and in particular the right to hold opinions without interference.
Now many of the speakers today have talked about the restriction on particularly health professionals, such as doctors, there’s this quote that’s been read out that AHPRA said that, “Any promotion of health advice which seeks to actively undermine the national immunisation campaign is not supported by national boards and maybe in breach of codes of conduct and subject to investigation and possible regulatory action.” That’s a stunning and continuing breach of articles 18 and 19 of the ICCPR. There’s also rampant censorship, targeted censorship on social media, and in a land where the corporate media is already bought and sold that makes free speech and expression tenuous at best known.
Noam Chomsky said, “That the smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum.” So clearly the conduct of state and territory governments, as well as public and private companies in Australia, have breached the principles within the ICCPR and other international human rights covenants and treaties, something that international law does, which goes against general principles of jurisprudence. So in jurisprudence, in the general philosophy of law, there are no exceptions to human rights, they preexist and postdate any exception that could be meted out onto them, and that’s quite important.
But in international law there are exceptions to create situations where human rights can sometimes be put to the side, and that’s one of the defences that state and territory governments in Australia, as well as the Human Rights Commission, will talk about in a minute, have relied on to justify breaches to these principles. However, part two article four of the ICCPR is very precise about the strict circumstances in which state parties can take measures derogating from their obligations under the ICCPR, and they are only in, “A time of public emergency which threatens the life of the nation, and only to the extent strictly required by the exigencies of the situation.”
So maybe for a couple of months in 2020, where COVID 19 was an unknown, uncertain thing, we could have reasonably thought that it may threaten the life of the nation, but it became very clear that it did not meet anywhere near that description very soon after that. And even if it did, and even if somebody wants to argue that it still does, then rights derogation still must only be made to the extent strictly required by the exigencies of the situation. That means that decisions need to be evidence based, they need to be careful, they need to be transparent, they need to be explained to the public. If ministers, politicians, governments care at all about human rights, or want to pretend to care about human rights, they have a duty to clearly explain to the populace the reasons for any decision they make which delegates from human rights principles.
My personal opinion is that any politician who chooses to insult and patronise the population rather than to provide a cogent and evidence based reason for a decision, especially a decision that takes away from the human rights of their populace, is not fit for public office. The people of Australia aren’t stupid, and they deserve much more than that, but they must also demand much more than that as well.
So Australia has agreed to uphold all of these rights, obviously they haven’t, does this mean the naysayers are right that these international covenants and treaties are indeed powerless? Not quite. Part two article two of the ICCPR obligates any nation state that’s signed it to implement domestic mechanisms of enforceability. If you’ve signed that covenant, you have to provide a mechanism by which a citizen of any country can pursue and defend any human right that has been breached. And Australia has done that, and the way that we did that was in 1986 Federal Parliament passed the Australian Human Rights Commission Act. That is a federal piece of legislation whose main function is to bring into being the Australian Human Rights Commission.
The Australian Human Rights Commission’s job is to defend and advocate for human rights in this country. And when I say that’s their job, I’m not just pontificating about their job, or assuming that based on their name, the statute is very clear about the statutory duties and functions of the Australian Human Rights Commission, and the statutory duty of the Human Rights Commission is this, that the functions of the Commission are performed with regard for the invisibility and universality of human rights. Now the definition of human rights in the Australian Human Rights Commission Act is any right or protection that is protected in the ICCPR, or the other international treaties and covenants. Now something a lot of people don’t know is that the Australian Human Rights Commission Act actually includes in its schedules the various international treaties and covenants such as the ICCPR.
So there is a piece of Australian domestic law which includes those treaties and covenants within it, it’s not quite the same as enshrining those treaties and covenants in our domestic legislation, but it’s a lot closer than most people realise. And why is that important? Because if we look at the functions of the Australian human rights commission, now when I say functions, these are the statutory functions of the commission, it’s their reason for existing, these are obligations and duties that they have, and I’m going to point out three in particular.
First, to inquire into any act or practise that may be inconsistent, may be inconsistent with, or contrary to any human right, and in particular any human right enshrined in the same legislation that brings the human rights commission into existence. So if this Australian human rights commission thinks that there may be any act or practise in Australia today that might constitute a breach of any of the international covenants and treaties, their statutory responsibility is to hold an inquiry into that act or practise.
The second function, to inquire into any act or practise which might inhibit equal opportunity in employment. Now the key here is that the definition of discrimination in the Australian Human Rights Commission Act includes discrimination on the basis of medical record, ie., discrimination on the basis of vaccination status. People love to say that discrimination on that basis is not discrimination because it’s not one of the protected attributes, that’s a different set of laws. The Australian Human Rights Commission Act includes discrimination on that basis as within the definition of discrimination, and if the Human Rights Commission thinks that there’s any act or practise in Australia today that might inhibit equal opportunity based on vaccination status, which obviously is rampant in the public sector and the private sector, they have a statutory function of holding an inquiry into that practise.
Now the third function is to examine laws for the purpose of ascertaining whether those laws could breach our international human rights obligations. So all of these public health orders and directions, Australian Human Rights Commission has has a statutory duty and a statutory function to hold an inquiry into those laws as well. So in a country without a charter or a bill of rights, and I know that the panellists have advocated for such a thing as well, the Human Rights Commission has an absolutely critical function, it’s the only body in Australia which includes international human rights law in its own enacting legislation. It’s the only body in Australia which of its own accord can hold an inquiry into human rights breaches in this country.
Why is an inquiry important? Because it will force the decision makers to provide in a public transparent forum the evidentiary basis for their decisions that have breached the human rights of Australian citizens. On top of that, if ministers, for example, foresee that an inquiry might happen before they make a decision, they’ll be a lot more careful to make sure those decisions are evidence based and that they are carefully explained that they might actually achieve the purpose that they’re purported to achieve. If there’s no accountability, and there’s no risk of accountability, careless, non-evidence based decisions can be made.
So there are other mechanisms of human rights protection in Australia, the separation of powers is intended to ensure that government ministers don’t act beyond the scope of the law, but if ministers can make autonomous sweeping decisions unchallenged, you have to begin to question the practical efficacy of that mechanism. There’s also some domestic legislation, so I talked about the federal privacy act, the state and federal discrimination statutes, they haven’t so far been able to respond to the novel issues of COVID 19. The reason for that, I think, we can take from something Justice Michael Kirby once said, a previous High Court Justice, he said that, “Laws are often applied in a manner of consistent with the sensibilities of the time.” How I take that is if a citizenry is slow to stand behind their principles, the law probably won’t do it for them.
And that’s the key here, present rights protections cannot be ignored or manipulated by those in authority if the populace knows their rights and protections, and they’re willing to advocate for them. In my opinion, the major political parties in Australia are demonstrably driven by self-interest. They are existential, and their policies are based on securing and maintaining parliamentary seats. That’s obviously not ideal, but it does mean that they remain beholden to the interest of the public that they serve. As a human rights lawyer I have today touched on why I believe that many of the actions of the past two years constitute clear and unjustifiable human rights breaches. There are bodies such as the Human Rights Commission whose clear job it is to do more, but ultimately it is up to us to do more.
If all of the doctors who are presently dissatisfied with the current state of affairs stood up in unison, then the whole thing would change immediately. And this of course goes for everybody, there are a lot more convicts than there are prison offices. And of course we are not convicts, we are human beings, our rights as humans, our self-determination, our sovereignty, our autonomy always remains ours. We are powerful beyond measure, we choose what we are and what we are not okay with, we choose the kind of society that we want to live in, and we choose those who are to be given the sacred duty of leading their fellow man and woman in a position of societal leadership. It does remain to be seen, panellists, what choice the individual and collective Australia will make. Thank you.
Thank you very much. We don’t have time for many questions, but I’m imagining George Christensen’s probably got at least one, is that right George?
Look, I do have one, thank you very much Malcolm.
I thought so.
And the question is that we heard from human rights commissioners during this pandemic, and yeah sure, to a degree there was some criticism, but it seemed to me that the institutions that we appointed in Australia, or we have an Australia, that are supposed to safeguard human rights, failed to do so, they failed to even offer some stinging criticism of some of the most egregious human rights abuses that we saw during the pandemic. So what is your proposal out of all of that observation? Do we need a bill of rights, or is something needed to be done to beef up the human rights institutions that we have?
A bill of rights would be nice. I think as a smaller step, if enough pressure could be placed on the Human Rights Commission to hold an inquiry, any kind of public inquiry where decision makers are forced to present the evidence behind their reasoning will be a big step forward, whether it’s a Royal Commission, or the little brother to that, which is an inquiry that the Human Rights Commission has the power and the function of holding. If enough lawyers, for example, got on the Human Rights Commission’s case, and enough of the citizenry, then things might shift.
I saw that Commissioner Lorraine Finlay, who’s the Australian Human Rights Commissioner, recently made a submission to the COVID inquiry that’s currently going on, where she agreed that much of what happened in the past two years constituted human rights breaches. And she also said, and I’ll quote what she said, actually, she said that, “It is essential that Australia’s pandemic response is fully and formally reviewed in terms of its impact on human rights, and that future emergency planning incorporates human rights considerations as a priority.“
Well, I explained in a letter to Ms. Finlay that it is the very statutory function of the Human Rights Commission to hold an inquiry, so the review that she agrees is necessary, she has the power to put on, and generally, if there’s enough public pressure and enough sentiment and advocacy within the community, public bodies will do what the community demands. So I think that would be a meaningful step in the right direction. Ultimately a bill or charter of rights would solve the problem of everybody disagreeing about what human rights are in Australia, which makes things very difficult.
Before I ended my term as a member of Parliament I actually wrote to the Human Rights Commission asking for exactly that sort of inquiry to be done by the Human Rights Commission, but I didn’t receive any response.
Okay, we’ll have to call it an end there. I’ll just make a personal point, I’m not convinced of a bill of rights, because it then tends to, we have a history in this country, getting lawyers here, looking at me, a history in this country of judges exceeding their authority and codifying and implementing very strict judgements on codes, rather than on what is actually the intent behind the law. So I’m yet to be sold on the bill of rights, but I am sold on… And I’m also not to be sold on the IC, what is it? ICPPR? ICCPR, yeah, because it’s a UN body, but that doesn’t take away the fact that what you are talking about really, Mr. Fam, is that these are universal rights.
Peter Fam: Yes.
Peter Fam: Yes.
I don’t care if the UN’s involved or not, these are universal.
The ICCPR and the other human rights treaties and covenants do a pretty good job of enshrining universal human rights principles that existed before that, and have existed since humans existed, because they’re human rights. I like the international treaties and covenants because they at least give us a foundation to work from which everybody can agree on, so you don’t get this relativistic approach where everybody starts disagreeing about what human rights are. There are problems with the international laws because they do have exceptions in them, which on a pure jurisprudential approach is not how human rights actually work. You cannot have exceptions to human rights, they exist by virtue of our humanity.
Right, but one of the chief pillars of exemptions from human rights is the United Nations, time and time again. So I go back to your point, universal law.
Peter Fam: Yes, yes.
These are not up for grabs.
That’s what I believe.
Thank you so much for coming up and making a presentation.
My pleasure, thank you for holding this inquiry, much appreciated.
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