The giant loophole in Australian law that means you are liable if a government department gives you fishy advice.
A rank injustice
In November 1998 a Carnarvon commercial fisherman named Jeffrey Palmer went into the Fremantle office of the Fisheries Department twice and asked for the rock lobster fishing season regulations. The office lady told him they didn’t any copies the first time, but the second time he went in she photocopied the office copy of the regulations and a bunch of other brochures and notices.
Unfortunately none of the documents mentioned that commercial fishing is forbidden at Quobba Point, about 60 km north of Carnarvon, which is where Mr Palmer was going fishing.
In February 1999, Jeffrey Palmer set 54 pots in the exclusion zone at Quobba Point.
Fisheries officers who were watching him set the pots out at the time did not point out his mistake.
Mr Ostrowski, one of the officers, charged Jeffrey Palmer with fishing for rock lobster in a marine life protection zone on the Point Quobba reef.
A Carnarvon magistrate found Palmer guilty, and he was fined over $28,000 including Court costs. The magistrate mentioned part 22 of the criminal code, which says that ignorance of the law does not afford an excuse for an act or omission which constitutes an offence, and he said in his decision that part 22 overrides part 24, which says that a person who does an act under an honest and reasonable but mistaken belief in the existence of the state of things is not criminally responsible.
Jeffrey Palmer appealed to the State Supreme Court of Western Australia, and they overturned his conviction. Ostrowski then appealed to the High Court, which is the highest court in Australia.
In reinstating Palmer’s conviction on 16 June 2004 Chief Justice Gleeson and Justice Kirby cited the well known dictum, “ignorance of the law is no excuse”, and while Justices Callinan and Hayden said that “It is impossible not to sympathise with [Palmer]. On any fair and objective view he was not culpable in any way. To the contrary he was most diligent…. Be that as it may, it is the task of this court to apply the law."
Justice McHugh said Palmer did not have a defence regardless of the mistaken advice given to him, because “to find otherwise would be too expansive and would undermine the rule that ignorance is no defence.”
How many injustices has this pathetically legalistic decision spawned since then?
This decision is well known in legal circles and might well be the reason government departments are often extremely lackadaisical about the advice they give. I once rang the tax office three times, and got three different answers to my question, in fact, every possible answer. At the time I didn’t know that there are absolutely no consequences either for the individual involved or the whole department if they give you the wrong advice; the person who received the wrong advice bears all the consequences.
It is a good thing to be aware of this, in any dealings with government departments, as it certainly makes you take your rose coloured glasses off.
What does this have to with us today?
What I have to wonder is if this immunity to legal consequences has been a very useful comfort to organisations like AHPRA and the State and Federal Governments, which imposed mandates during the coronavirus which possibly had no legal force
I saw many indications at the time in the careful wording of public pronouncements that the Federal government was intentionally abnegating their responsibility to govern health matters and were turning a blind eye to the States doing what they couldn’t — and it is my belief that Scott Morrison, the Prime Minister at the time, was well aware that he was washing his hands of the responsibility to regulate the States which were acting outside their area of responsibility.
And I suspect that the government lawyers know all about how “Ostrowski versus Palmer” makes doctors and employers and citizens liable even when the government gave them incorrect advice. Even if the government consciously gave them bad advice.
I wonder if the legal situation they presumed was something like this: if the States without any proper legal authority to do so commanded businesses to coerce people into receiving an experimental medical treatment, and if following this advice turned out to be a criminal action, then in the end whatever else happened it was the business that was breaking the law, despite the dodgy government advice.
Nuremberg Code
What we must remember is that German law at the time of the Nazi rule made everything they did legal; they wrote laws that allowed all their wrongdoing. The thing is, this didn’t stop the worst of the offenders and the Nazi leaders from being tried in an international court and hung for their crimes. And the legal principle there was, following orders is no excuse.
But even if there is never any accountability in this world or this age for those leaders and government authorities who led the coercion, there is a higher court than this one.
There is one God and He is above every authority, and He sees everything.
References
https://ro.uow.edu.au/lawpapers/106/
https://www.smh.com.au/opinion/between-a-rock-lobster-and-a-heartless-place-20040618-gdj5cl.html
https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2004/hca30-2004-06-16.pdf
https://quadrant.org.au/opinion/public-health/2022/01/liberty-sinks-slowly-in-the-west/
Thank you!