I’m going to start gathering the political commentary that indicates a perversion of the Chief Health Officer’s role
Politicians perverted the role of the Chief Health Officer. The Chief Health Officer allowed the perversion. The CHO puts his signature to political policies as if they were independently evaluated “emergency management” necessities based on scientific evidence. They are not independent scientific necessities. They are actually political policies.
The Minister for Coordination of Jobs, Precincts and Regions – COVID-19 admitting the Melbourne Cup procedures are a political policy:
The dictates of the Chief Health Officer using his supposely evidence based “emergency use only” powers are in fact simply the “determination” of the government.
The government has displaced democracy and freedom though this process.
The Public Health and Wellbeing Act 2008 at s122 provides for a review by the Victorian Civil and Administrative Appeals Tribunal, VCAT.
It follows s121 which allows for a review by the Chief Health Officer. Although the two are consecutive s122 does not rely on s121. Nevertheless I made a s121 application for review – copy below on 11 October 2020.
Time has come probably to make a s122 application to VCAT.
I don’t know that a cast of thousand of applications would be easy to manage but a few could be ok if people want to be in touch.
Perhaps you want to contribute to the cost. It’s more than a few dollars but not mind boggling either as legal processes go (about $600-700 I think). Again please be in touch.
Mainly I think interesting ways to cast the application as to what flaws you think are present. Add your ideas here. or email me or post them on twitter, etc.
Email sent on 11 October 2020
Dear Chief Health Officer Dr Brett Sutton, I note that you provided advice yesterday to the Minister that I feared you would. The Minister subsequently declared an extension of state of emergency which I say is without a proper basis. Enabled by this I see you have made various declarations that apply to me. If it was not clear in my previous email I make a s. 121 application to you against your directions in their entirety based on the arguments put forward in my email of 11 October 2020 – being in summary that the advice you made which enabled them has no sound basis, for example in evidence or proportionality. I look forward to your response in line with your duty under s. 121 and hope that it will include your retraction of the advice and all the directions that followed. Regards, John Dr John F. Culvenor
On Sun, Oct 11, 2020 at 12:42 AM John Culvenor <john@culvenor.com> wrote:
Attention:
Health Minister, The Hon Martin Foley
Chief Health Officer, Dr Brett Sutton*
Emergency Management Commissioner, Mr Andrew Crisp
Collectively and individually I fear today 11 October 2020 you are about commit malfeasance on an historic scale. If I knew a stronger word, I would use it. We have now entered a perverted state of “presumptive emergency”. Plans are prepared, announcements made, as if it is a done deal, not only in this instance but ongoing. Democracy is in tatters. These extraordinary measures should be used in the smallest of doses based on an overwhelming compelling fact of an emergency, not a hunch, a guess, a convenience or “it might work” speculation of effects. As the Parliament itself acknowledges via its own research, there is a risk of “normalization”.
“As emergency law suspends aspects of the normal distribution of constitutional power, it is a highly contested component of Australia’s legislative system. Emergency laws gain democratic legitimacy because they are provided for by legislation created through the ordinary law-making processes carried out by elected representatives. This legislative approach to emergency powers bears risks. By couching extraordinary powers in ordinary legislation, for example, they have the potential to be normalized”[1].
The definition of emergency in any reasonable sense is currently not met; it has not been for many months. Worse it is not even considered under the state of presumptive emergency. For the Chief Health Officer and Emergency Management Commissioner it will be a repeat falsehood in my opinion if it eventuates as the definition of emergency has not been met for many instances. For the Health Minister it will be your first foray into this perversion of governance. You all can avoid it by acting responsibly, reasonably and proportionality by not participating in this abuse of power.
Whether you think the resultant power is good, helpful, healthy, etc does not matter. You may think it is a good idea for 6.4 million people and 550,000 businesses (what is left) to be under unilateral rule of the Chief Health Officer. I expect there are different views. I happen to think it isn’t. I happen to think the Chief Health Officer’s risk strategy has been astonishingly misguided from the outset. I think it has produced poor risk control, vast side effects and generational-scale financial and social impacts.
But the effect of gaining the power under the state of emergency; be it good or bad, be it useless or helpful, is not the first question. The state of emergency should only be declared if there is an emergency. The state of emergency is being treated like a plaything. It smacks more of an approach of declaring “I want more power” and manipulating the emergency language in order to fit that desire.
An emergency should only be declared if it exists on its merits. That’s it. Full stop. Not because it is convenient. The powers that flow should be a consequence rather than the driving reason. Unfortunately we have seen the “cart put before for the horse”. The desire for executive power seems to be in first place.
There is no emergency. Why does it fail? Consider the emergency concepts of time/transience, consequence and scale.
(a) Time/transience– Now FAILS
There is a time factor. Emergencies by their nature are “emergent”. They are new. They can have elements of surprise. They are transient. A storm, a flood, a fire fits all these things. An emergency comes on quickly, it is intense and passes. The emergency powers are consistent with this theme. They enable a quick fix. Routine problem solving frameworks might not suit – fair enough. But once it goes beyond transience this justification is lost. They are not without their danger and should not be normalize – a point made by Parliament itself. We don’t normally use executive decision making. Why? It does not work very well – and we are seeing the tragic results of a thirst for ineffective executive power. It was sensible for a month. It is now 260 days since the first Victorian case (25 January 2020). Now, the problem is not emergent, it is not a surprise, it is not transient.
(b) Consequences – Now FAILS
Together with scale/exposure the consequences of a hazard combine to form risk. Four days after the Chief Health Officer signed a doomsday style prediction of 120,000 cases per day, the UK Government downgraded the initial assessment of Covid19 out of the high consequence disease category.
“As of 19 March 2020, COVID-19 is no longer considered to be a high consequence infectious disease (HCID) in the UK…. “The Advisory Committee on Dangerous Pathogens (ACDP) is also of the opinion that COVID-19 should no longer be classified as an HCID.”[2]
(c) Scale/exposure – Now FAILS
A compelling shift has been in scale. It is impossible to look away from the figures that invalidate the action you are contemplating. The Chief Health Officer began this process in March foreshadowing 120,000 cases of covid19 PER DAY[3]. The daily figures are now ten-thousand times lower than the prediction. Ten-thousand times smaller. That is 1% of 1%. By any reasonable consideration the scale is obviously no longer present. It is not even close to complying with the duty under s. 9 of the Public Health and Welfare Act 2008 “Proportionality”. Comparison of the figure used to justify the dispensing of democracy in March and that nowadays is like looking at the sun and a match.
Summary
In short, there is no emergency. There is a problem, yes, we have plenty of those and are capable of good responses to a diverse range of challenges, this one included. But emergency, no, it does not exist. The declaration and or the associated advice you make today supporting an emergency will be a dangerous fraud on the Victorian people. It could not possibly withstand any test of logic. I urge you to comply with your responsibility to sound governance and to not recommend and/or declare a further state of spurious emergency. It will be in name only. Someone eventually has to say “No”. Someone has to stand up and say “This is not right”.
Regards, John
Dr John F Culvenor
*Note: Chief Health Officer. If a declaration is made, and orders made from 12 October 2020, please consider this email a request for review of the entire order under s. 121 of the Public Health and Welfare Act 2008. I look forward to your response in line with your duties.
Here’s what we have been desperately missing in Victoria. The Chief Health Officer @victoriancho supposedly has 20,000 traced cases. But we know nothing about when, where, how, why, what circumstances transmission is more or less prevalent. We know nothing from empirical patterns that might guide restrictions. Restrictions have been placed freedoms and activity; ostensibly to reduce transmission risk but without examination of reality. Restrictions on on distance travelled, a curfew, limits on places to attend, work, recreation and faith activities, masks to wear, etc have been put in place without testing whether these risks are real. There has been no attempt by @victoriancho to add to risk factor knowledge. We now have some thanks the United States, Centers for Disease Control.
The Victorian Chief Health Officer @victoriancho conducted a coup of the government in March. He achieved this with a prediction that we were threatened by 120,000 cases PER DAY which he claimed justified him becoming totalitarian ruler. CHO gained totalitarian control and has kept it.
Now there’s talk of “waves”. What if we get a Third Wave? Oh no a tsunami! CHO insists on maintaining executive power to prevent this hypothetical threat of a tsunami. I’m surprised they haven’t started saying tsunami.
I’m not convinced that we had a first wave or second wave. It’s impossible to see compared to the scale of threat which we were supposed to be avoiding.
I found this very difficult to illustrate as the ripples are so tiny. Below is an Excel plot of actual Victorian daily cases from https://www.covid19data.com.au/.
You might just see some ripples on the X axis if you squint. That’s the corona chaos. That is the scale of manufactured corona chaos that has caused Victoria to be the most locked city in the world compared to the threat level CHO used to justify dismantling democracy (120,000 cases PER DAY). It’s ripples – or maybe that’s too big? Vibrations? But not waves.
No first wave, no second wave, can’t be a third wave.
In Victoria we have now entered a perverted state of “presumptive emergency”. Plans are prepared, announcements made, as if it is a done deal, not only in this instance but ongoing. Democracy is in tatters. These extraordinary measures should be used in the smallest of doses based on an overwhelming compelling fact of an emergency, not a hunch, a guess, a convenience or “it might work” speculation of effects. As the Parliament itself acknowledges via its own research, there is a risk of “normalization”.
“As emergency law suspends aspects of the normal distribution of constitutional power, it is a highly contested component of Australia’s legislative system. Emergency laws gain democratic legitimacy because they are provided for by legislation created through the ordinary law-making processes carried out by elected representatives. This legislative approach to emergency powers bears risks. By couching extraordinary powers in ordinary legislation, for example, they have the potential to be normalized”[1].
The definition of emergency in any reasonable sense is currently not met; it has not been for many months. Worse it is not even considered under the state of presumptive emergency. Whether you think the resultant power is good, helpful, healthy, etc does not matter. You may think it is a good idea for 6.4 million people and 550,000 businesses (what is left) to be under unilateral rule of the Chief Health Officer. I expect there are different views. I happen to think it isn’t. I happen to think the Chief Health Officer’s risk strategy has been astonishingly misguided from the outset. I think it has produced poor risk control, vast side effects and generational-scale financial and social impacts.
But the effect of gaining the power under the state of emergency; be it good or bad, be it useless or helpful, is not the first question. The state of emergency should only be declared if there is an emergency. The state of emergency is being treated like a plaything. It smacks more of an approach of declaring “I want more power” and manipulating the emergency language in order to fit that desire.
An emergency should only be declared if it exists on its merits. That’s it. Full stop. Not because it is convenient. The powers that flow should be a consequence rather than the driving reason. Unfortunately we have seen the “cart put before for the horse”. The desire for executive power seems to be in first place.
There is no emergency. Why does it fail? Consider the emergency concepts of time/transience, consequence and scale.
(a) Time/transience– Now FAILS
There is a time factor. Emergencies by their nature are “emergent”. They are new. They can have elements of surprise. They are transient. A storm, a flood, a fire fits all these things. An emergency comes on quickly, it is intense and passes. The emergency powers are consistent with this theme. They enable a quick fix. Routine problem solving frameworks might not suit – fair enough. But once it goes beyond transience this justification is lost. They are not without their danger and should not be normalize – a point made by Parliament itself. We don’t normally use executive decision making. Why? It does not work very well – and we are seeing the tragic results of a thirst for ineffective executive power. It was sensible for a month. It is now 260 days since the first Victorian case (25 January 2020). Now, the problem is not emergent, it is not a surprise, it is not transient.
(b) Consequences – Now FAILS
Together with scale/exposure the consequences of a hazard combine to form risk. Four days after the Chief Health Officer signed a doomsday style prediction of 120,000 cases per day, the UK Government downgraded the initial assessment of Covid19 out of the high consequence disease category.
“As of 19 March 2020, COVID-19 is no longer considered to be a high consequence infectious disease (HCID) in the UK…. “The Advisory Committee on Dangerous Pathogens (ACDP) is also of the opinion that COVID-19 should no longer be classified as an HCID.”[2]
(c) Scale/exposure – Now FAILS
A compelling shift has been in scale. It is impossible to look away from the figures that invalidate the action. The Chief Health Officer began this process in March foreshadowing 120,000 cases of covid19 PER DAY[3]. The daily figures are now ten-thousand times lower than the prediction. Ten-thousand times smaller. That is 1% of 1%. By any reasonable consideration the scale is obviously no longer present. It is not even close to complying with the duty under s. 9 of the Public Health and Welfare Act 2008 “Proportionality”. Comparison of the figure used to justify the dispensing of democracy in March and that nowadays is like looking at the sun and a match.
Summary
In short, there is no emergency. There is a problem, yes, we have plenty of those and are capable of good responses to a diverse range of challenges, this one included. But emergency, no, it does not exist. The declaration is a dangerous fraud on the Victorian people. It could not possibly withstand any test of logic.
On 15 March 2020 the Victorian Chief Health Officer @victoriancho perpetrated what has essentially been a coup. CHO remains to today in totalitarian control of the state of Victoria Australia; CHO writes a rule using “emergency” powers under the Public Health and Wellbeing Act 2008, it’s instantly a rule, and police have been vigorously enforcing the rules. CHO’s power relies on the Minister for Health being convinced and making a declaration of “State of Emergency”. The minister obliged and has done several times since.
To achieve the coup CHO made a doomsday prediction on 15 March 2020. CHO scared everyone with a forecast of 120,000 cases PER DAY in Victoria. What happened? Daily cases never reached 1%. Cases today are 12. That’s right 12; twelve.
The cases today are 10,000 times smaller than the doomsday prediction. This is electron microscope small. Even this tiny number “recorded” might not be real owing to false positives.
Four days after CHO’s doomsday prediction Covid was downgraded on 19 March 2020 by the UK Government OUT of high consequence infectious disease category.
In summary:
The incidence is tiny compared to the initial reasoning – 10,000 times smaller – and even that may be over-measured. Plus the disease is not categorized as severe as when the initial reasoning was made.
The science says it’s time to back off. Relinquish totalitarian rule.
In March 2020 the Victorian Chief Health Officer @victoriancho grasped power by telling the Minister 120,000 people PER DAY would be infected with coronavirus without emergency powers.
15 March 2020
Estimate coronavirus infections in Victoria could peak at 120,000 / day
Must DECLARE EMERGENCY
Sounds scary. No doubt that caused Minister Mikakos to react. She agreed with CHO, Declared the State of Emergency. this made CHO effectively a totalitarian ruler of the state. He has been since remains so.
After the initial declaration (the day after the 120,000 scare) there has been seven more declarations.
What actually happened? Not much by comparison to the forecast. But it kept on being an “emergency”, one after the other regardless of the data.
The most daily cases at any time was 686 or 0.6% of the daily estimate.
The figures at the declarations were never more than 0.3% of the estimate.
For CHO, it’s always an EMERGENCY. The numbers don’t seem to matter. At no time did the daily figures even reach 1% of his scary estimate.
Ok. But did the great work prevent the bad estimate? No. Sweden with a low impact approach and similar population never recorded more than 1500 or 1.3% of CHO’s fake estimate.
When you make a safety rule those who break the rule should be less safe. Otherwise the rule is fake.
Let’s say you have a rule, don’t keep redback spiders in your bed. The aim is to reduce redback spider bites. If the rule is valid people who are found with redback spiders in their bed should get more bites than others. Otherwise the rule is not a valid rule. If breaking it means you are no less safe than those who obey the rule then the rule does not make sense.
The Victorian Chief Health Officer powers under the Public Health and Welfare Act 2008 have been used to make literally hundreds if not thousands of provisions in the last six months. CHO became an executive rule maker; a totalitarian ruler. This power enables bureaucrats to write rules without reference to parliament or even a minister. They are enforced instantly by dystopian Authorized Officers. Victoria Police have been so designated. There might be some doubt about when they were designated and I’ll get to that another time. But they have issued 23,000 fines. This began in March with the declaration of emergency.
There are multiple reasons why the rules might be illegitimate. But let’s start with one concept. CHO can only make rules if they are based on evidence (s5) and proportionality (s9) and he must be accountable (s8). CHO has not once released a statement of evidence relating to individual provisions – flying in the face of the accountability provision. And there have been hundreds if not thousands of provisions.
Evidence should exist before the rule is made. In contrast to the evidence principle the rule-making has had the character of being whimsical, spasmodic, thought-bubbles. But maybe there was evidence and it was just kept secret? I doubt it, but in any case the merit of the rules should now be evaluated empirically.
Now the rules have been put in place we can see if they are evidence based. All the identities of the alleged rule-breakers are known. All the identities of the positive cases are known. With data matching, or just by survey of the alleged rule breakers we could know if they have experienced greater coronavirus transmission than the broader population.
There should be more than 72 cases in teh 23,000 alleged rule-breaker group
To make it more subtle it should be refined. Most likely not too many fine recipients are in institutions (disability/aged care, etc). Therefore removing institutions from the population rate would make the comparison more valid. Those sorts of refinements should be made.
The study should be done by CHO. He has the legal responsibility to ensure evidence-based work and accountability. There’s no sign that there is much passion for science. In the absence of that, it makes for an interesting safety study in rule-validity and also basis for a legal challenge to $36 million dollars of fines.
I think it would be reveal that the rule-breaker group do not have a different infection rate to the population and the rules are invalid. My reasoning behind that is the absence of evidence up front and obvious spurious nature of many. The rule making has a random characteristic pointing to not much likelihood that they are valid.
Total population
Population 6.4 million
Positive cases 20,100
Case rate 3.14/1000 population
The alleged rule breakers
Population: 23,000
Expected positive cases if the same rate: 3.14 x 23 = 72 cases
What needed to be done about coronavirus is the 99% the same as with other hazards. Use the existing capability, add some new things, contribute to knowledge, and target assistance.
The Victorian Chief Health Officer displays no grasp of risk control systems. His only preventative measure is a broad brush hide mentality. And aims to deliver this with the bogus messages and police model of safety.
Why don’t 1000 other hazards run amok? Because all people and enterprises have a responsibility to navigate risk. They develop systems to do that. For individuals it’s informal. Enterprises have formal systems for risk control.
The CHO was on 3AW a week or so ago. It was put to him. “Bunnings say they serve 1 million customers per week but don’t cause coronavirus blowouts?”*
Response of tunnel-vision CHO: “You can’t know that for sure”.*
Wait a minute. You’re the bloke who says you’ve traced 18,000 cases! And it is a staggeringly large test. No, no interest. Don’t care. I’ll just keep closing businesses and blindly trudging forward dragging everyone down with me.
Suggested response of a scientifically-minded, inquisitive CHO:
“That’s interesting. That’s a massive test. If Bunnings were getting it wrong, we’d notice the outbreaks for sure. So how do they go about it? Could others learn from Bunnings experience? Maybe the things I closed didn’t need to be closed? Perhaps they could have done it too?”
1 Allow normal risk systems to work
2 Provide focused intense assistance where risks were highest, aged care, this was known in March from Italy. Boost the normal risk systems in those places
3 Add new hazard-specific unique services: testing, tracing, quarantine, etc
4 Build knowledge, contribute to science
@victoriancho’s scoreboard:
1 Fail
2 Fail
3 Fail
4 Fail
Almost none of the right strategic approach required “power” (perhaps quarantine to an extent). CHO’s power was toxic. With a big hammer and no skill everything looked like a nail. He has hammered society. What we need was integration, nuance and navigation. Police weren’t needed. A dangerous, foolhardy and very costly error began and persists. It has been a child-like strategic blunder. I can’t see anything properly focused; actions were either absent, wrongly applied or badly executed. But why would you do any of these thing? The systemic cause is a flawed concept about safety. it guides everything the wrong way. The flawed concept still flows though every approach we see. CHO was fixated and remains fixated on an the avoidance strategy to be achieved by the safety hoax of messages and police.
In Victoria “safety” concepts are dominated by images, slogans, messages, blaming, cajoling, cheering and heavy handed policing (The exact TAC model. It’s effect has been poisonous by misguiding coronavirus safety concepts).
What we needed – and still need – is plain old boring ethics, substance, service and integration with robust safety systems.
(*) Not exact quotes, illustrative of the content.
