Page 3994 - Week 15 - Wednesday, 16 December 1992
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Dr Proudfoot's letter ends with the following:
This seems to me a powerful argument in favour of implementing the law on notifiable diseases in respect of HIV infection, instead of treating HIV infection differently from other notifiable diseases. Do you agree?
I have already tabled a copy of this letter from Dr Proudfoot, entitled "Annexure C".
On 18 September 1991, Mr Russell Bayliss, principal solicitor with the ACT Government Solicitor's Office, prepared the advice Dr Proudfoot had exhorted the Minister for Health to obtain. On 2 December 1991 Wayne Berry wrote to Dr Proudfoot and acknowledged receiving both of the doctor's letters. In his letter, Mr Berry stated that the HIV/AIDS Related Legislation in the ACT Review Committee was reviewing the notification requirements named by Dr Proudfoot. He then wrote:
The intention in the meantime is to amend the Regulations to make all stages of HIV notifiable in coded form, in line with recommendations which will be put forward in the Committee's Discussion Paper. This process of amending the Regulations has commenced.
This provides the answer to our third question. (Extension of time granted)
Was Mr Berry aware of this law, or should he have been? By the very act of acknowledging receipt of Dr Proudfoot's letter, Mr Berry proved that he had been notified of this law, and notified that the law was being broken by his department. He knew. This letter from the Minister completely evades answering the pointed and specific questions posed in Dr Proudfoot's letter of 11 August 1991. It blatantly implies things that are not true and have never been true. For example, it says:
As you are aware there are a number of interpretational problems with respect to the wording of the relevant Regulations ...
The fact is that neither Dr Proudfoot, nor the Health Department's own legal director, nor the Administrative Appeals Tribunal, nor anyone else, has, or could have, an interpretational problem with such clear wording. Indeed, the evidence shows that they were aware of no such thing.
I will show that the only claims that there were interpretational problems with this law came from those people who did not agree with the law, who wished the law was different and who proceeded to ignore these clear legal requirements. The evidence, including the reasons for decision in AAT case C92/17, shows that the Minister and other senior public servants knew the law, were aware that it had been confirmed by the Health Department's own legal director, Mr O'Halloran, but nonetheless chose to ignore the law. Despite the absolute clarity of Dr Proudfoot's questions, the Minister's response does not answer them. Instead, it merely claims that the Attorney-General's advice on the matter suggests that the regulations are unclear. The Minister's letter does not explain which regulations are supposed to be unclear, or how. Thus the Minister failed to disclose the Attorney-General's reading of the law to a doctor who requested crucial information on his legal responsibilities.
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