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Byron Shire
September 21, 2021

Navigating through laws around business lockdowns

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Myth versus fact: a simple & practical guide for businesses to thrive during uncertain times

This is the full version from the edited down July 28, 2021 Echo print edition:

A flyer circulating within the community is making claims against the government’s COVID-19 powers, and provides supporting legislation, claiming the information provided is to ‘inform businesses like you about your legal rights and your entitlements’.

As reported by The Echo, some local business owners have placed signs outside their shops stating if you are not wearing a mask, ‘We will assume you’re exempt’.

It’s entitled Myth versus fact: a simple & practical guide for businesses to thrive during uncertain times. Case studies and links to scientific studies are supplied to support the claims made.

Topics covered include QR Codes, Staying open, and The Biosecurity Act 2015. The document does not come with an author’s name, but comes with an emphasis on ‘Natural Law and Common Law’ and lists websites related to that topic.

Retired local magistrate, David Heilpern, has described the six page document as being in the realm of ‘la la land’, which misrepresents case law and legislation.

He provided The Echo with his analysis, which in turn has been challenged by a prominent proponent of the movement, Tom Barnett.

While Mr Barnett told The Echo he did not author the document, his website is listed as a source. He describes himself as a ‘holistic health practitioner and mindset coach, covering diverse topics from law, culture and sociology to human health and spirituality’.

Within the intro, the flyer reads, ‘…Government mandates and directives are not law. State and federal mandates and directives can often contradict each other AND you have more basic rights than what you think (for example under natural laws)’.

Mr Heilpern told The Echo, ‘With this document, it is hard to know where to start, as you could write 50 pages of analysis on where this information is in the realm of la la land. Instead, I have chosen four key examples – the first is applying the wrong law, the second is misreading cases, the third is telling half the story, and the fourth is sweeping generalisations that simply have no basis’.

Mask wearing

On July 24, the NSW government has required proof of exemption from the normal legal requirement to wear a mask.

According to www.nsw.gov.au/covid-19/rules/face-mask-rules, sufficient proof would be: ‘a medical certificate or letter signed by a registered health practitioner (such as a doctor) or a registered NDIS provider, or a statutory declaration’.

The following exchange regarding masks was received prior to the proof of exemption laws being introduced on July 24:

‘The document suggests business owners can’t enforce mask restrictions’, Mr Heilpern says.

‘It bases this conclusion on two Acts, the Cth Privacy Act, and the Disability Discrimination Act’.

‘As to the Commonwealth Privacy Act, this Act does not override state laws. Sometimes Federal laws can override state laws; however, there are several preconditions for that to occur. First, there must be an inconsistency. There is none’.

Mr Barnett replied, ‘By ‘none’, does Mr Heilpern mean that there is no active Federal mandate, rule, act, legislation, bill or law around masks? Doesn’t the absence of such a law or directive constitute an inconsistency?  If not, how so?  There is a principle of law known as expressio unius est exclusio alterius.  It essentially means that the explicit mention of one thing is the exclusion of the other.  Therefore, if there is no mention of mask mandates at a Federal level, how is that not an exclusion and how is that not inconsistent with the State?’

Mr Heilpern continued, ‘Second, it must be an area where the Cth has been granted exclusive domain. Privacy is not such an area, and that is why the Cth Privacy Act does not apply to State governments’. 

Mr Barnett replied, ‘Does that then make a private business exempt from State privacy laws? Do they have a privacy statement to collect or ask for people’s private information? For a third party no less? Is there a Federal or State law that allows people’s medical information to be freely obtained by someone other than a qualified medical professional, with or without their consent?

Mr Heilpern continued, ‘The Disability Discrimination Act provides that conduct which may be discriminatory is lawful if the requirement or condition is reasonable, having regard to the circumstances of the case. Asking someone if they have an exemption or refusing them entry would be found reasonable in most circumstances, would excite the defence and exclude criminal liability.

Mr Barnett replied, ‘No mention of civil liability?’

Mr Heilpern continued, ‘The simplest solution is to carry a document that confirms the exemption from a medical or disability practitioner’.

Mr Barnett replied, ‘Mr Heilpern says “most”.

Mr Barnett said, ‘Most’ is not all, therefore there are many reasons that refusing entry would be unreasonable.  If someone is belligerent or appears intoxicated or aggressive, there would be cause.  Cause constitutes ‘reasonable’ in ‘most’ circumstances.  However, how does that apply to refusing entry to someone who cannot wear a mask?  How is that not discrimination?  What about someone that cannot walk, or cannot speak or see?  Are we suggesting here that we all carry around our papers (protected by privacy, considering the medical nature), like Nazi Germany?  What is the world coming to?  The government’s own guidelines do not state that a medical exemption must be produced.  The guidelines clearly state the reasons people do not need to wear a mask, which include skin conditions, difficulty breathing, past trauma or any kind of distress caused by wearing a face covering.  Any one of those reasons makes someone exempt from wearing a mask.  At no stage does any government guideline state that a medical exemption must be produced.  Take note that being exempt and having an exemption are two different things.  The government guidelines do not stipulate needing an exemption.  Asking for confidential medical information (by police or a shop owner or worker), must surely be against a law of some kind. Can they ask?  Of course.  Can they enforce?  It would be wise to differentiate between working for government and private business, and what gives someone authority to enforce anything.  I can imagine it would be best not to put oneself in that position, as claiming false authority carries hefty penalties’.

QR Codes

Mr Heilpern says, ‘The document states that requiring QR Code check-in can land you in prison for five years, and the author bases this on s94H of the Privacy Act. This section only applies to the COVIDSafe App, not to QR codes. You remember that App? It seems to have died like the monorail. It has absolutely nothing to do with NSW Government requirements regarding businesses and QR codes. There is simply no crime anywhere for enforcing the mandatory QR Code in NSW. The claims are mischievous in the extreme, and show either a failure to read the legislation, or deliberate misrepresentation’. 

Mr Barnett replied, ‘Why refer to an older app as if it’s water under the bridge?  The ‘Covid Safe App’ was anything but safe.  Service NSW made people’s driver license information public, and the number of people affected was not insignificant.  That kind of breach should not be referred to as ‘died like the monorail.’  Are we obliged to believe that the new app is safe? Wasn’t the last one, that turned out to be anything but safe, guaranteed to be safe?
As stated by Mr Heilpern, the covid safe app and QR app guidelines are different.  Is it a law to download and use a QR scanner, or even to own and carry a smart phone?  If it is, I can’t find it, and believe me I’ve searched high and low’. [Ed note, Mr Heilpern suggests the applicable fine is contained in Section 113 of the Public Health Act NSW]

‘Why does Mr Heilpern make sweeping generalisations while failing to state the actual law? Is that because there isn’t one perhaps?  And since he mentioned requirements, why has he not mentioned the difference between mandates, recommendations, ‘requirements’ and laws?  What is required to enact a law?  Have these steps been followed? Is there not a Federal law that governs the collection of personal information?  And is there not then an inconsistency between Federal and State laws regarding privacy?’

Staying open

Regarding businesses staying open, Mr Heilpern said, ‘The pamphlet states: “There always has to be reasonable grounds to close a business, as outlined in the 1990 George v Rocket case in the High Court of Australia”.’

‘That case has nothing at all to say about closing a business. It was a case about the meaning of reasonable suspicion in the application of a search warrant. Even there, the level of suspicion is really low – “an inclination of the mind towards assenting to, rather than rejecting, a proposition”. The case is certainly no authority for the proposition in the pamphlet that you can put your own interests before government restrictions’.
‘Interestingly, the glossy photo of a person that they use as a case study on “staying open”, Nick Patterson, is facing 20 criminal charges including violence for “standing up for his rights”. Great example’. 

Mr Barnett replied, ‘I’m not familiar with this case or its application to the flyer.  If you’re not savvy with legal terms, ‘consent’ means a conscious decision to agree.  For example, if you were asked to put on a hat or face a penalty, you could consent (agree) to that, or non-consent, meaning you don’t agree to the terms and therefore are not party to the terms.  ‘Assent,’ mentioned here, is an unconscious decision to agree.  In practical terms, if someone offered for you to wear a hat or face a penalty, and you remained silent (most often the case), then you would be deemed to have agreed to the terms of the offer (assented).  In other words, your consent is absolutely essential’.
‘With regard to Nick Patterson, let me set the record straight.  Nick became known for standing up for his rights.  He did that by following the law while keeping his business running during a lockdown.  This is evidenced by keeping more than 20 police officers and a heath official from trespassing his premises.  You don’t do that unless you are following the letter of the law.  When that is shown to people who were never taught their rights, the system has to set an example.  After demonstrating peaceful non-compliance in the city, and following the law, Nick was brutally attacked after following a directive to disperse, which can be read as follows:

“Man stands for his rights under law, disperses after being given a directive, is ambushed on his way home by police that appear to be a foreign occupying force, is violently assaulted, attempts to defend himself and is now facing assault charges”.

‘I feel that Mr Heilpern’s sentiments are echoed by the legal industry itself, and I can’t help but wonder about conscience.  I also find myself asking, if it weren’t for my say on the matter, would The Echo have allowed this comment to pass without due diligence?’

Biosecurity Act 2015

Mr Heilpern says, ‘Under the heading of the Biosecurity Act 2015, the pamphlet states:

Remember, mandates and directives from the Government or any other authority are NOT LAW. Our natural rights are actually enshrined within Natural Law and Common Law which have been used to govern and keep peace in communities since earliest civilisation. Bodily sovereignty is one of these rights”

‘This statement is not a legal argument, but a rejection of the legal system in its entirety’.

Mr Barnett replied, ‘That’s quite a claim. Is Mr Heilpern suggesting that we do not have rights, and that bodily autonomy is not one of those rights?  What evidence is he providing?’

Mr Heilpern continues, ‘It asserts a parallel authority, which has no foundation and is not recognised by our legal system in any way’.

Mr Barnett replied, ‘Is Mr Heilpern suggesting our legal system does not protects our rights?  Doesn’t case law and the Nuremburg Code have at least something to do with our rights and consent? Who has authority over us and our body anyway?  I feel I’m not the only one asking these questions.  Is Mr Heilpern asserting that there is no other way the legal system works?  Why have people like me had several matters dismissed in court?  What of Equity?’

Mr Heilpern continues, ‘In short, this is a form of contempt for the law as it works in reality’.

To characterise this as a political or legal position is ridiculous, it is nothing more than an infantile fantasy. Section 113 of the Public Health Act NSW makes it an offence not to comply with a direction. The directions as to masks, QR codes, closing businesses and isolation override any common law or natural law rights or bodily sovereignty (whatever they are)’.

Mr Barnett replied, ‘And does that direction not require a specific premise?  Is it not a State Act?  Have we not already established that Federal and State cannot conflict within or between one another?  Why have Service NSW and NSW Police confirmed by phone call that there’s nothing they can enforce? Of course, there are some fines being handed out.  ‘Some’ meaning a handful at best.  But if these directives aren’t enforceable without meeting the right criteria, why are even a handful of statutory penalties (important term) being handed out? I wonder if Mr Heilpern can tell everyone how many Covid-19 related offences have stuck in a court room?’

Mr Heilpern continues, ‘In conclusion, any small business who actually believes and acts on this material is subjecting themselves to prosecution.

Mr Barnett replied, ‘That is categorically untrue.  I have only seen businesses facing prosecution.  I don’t know of any patrons being prosecuted as Mr Heilpern threatens, yet can give at least three first hand examples of anything covid-related being thrown out by a court before getting started.  I wonder why that is?’

Mr Heilpern continues, ‘And instead of going to the websites suggested in the pamphlet, a grab-bag of right-wing Christian nonsense, perhaps instead look at the Freeman Delusion website.
‘Rob Sudy has dedicated years to dispelling the freeman sovereign citizen delusion. On the other hand, the author of this diatribe won’t even put his name on it. I wonder why?’

Mr Barnett replied, ‘As far as I’m aware there is a maxim of law that states that whoever makes the claim bears burden of proof.  I’m still not sure why Mr Heilpern would refer to something as ‘diatribe’ and expect that he would not have to provide evidence to support his claim.  As to the author, why would he assume that it was ‘an’ author?  And why assume it was a ‘he?’  It certainly wasn’t me.  As to his website reference, if I refer to a website, as in, just one, that was curated by a man in his basement who spent years dispelling the Star Wars ‘delusion,’ is that now the gold standard of evidence?’

OPCA influence
While there is no author attached to the document, www.solutionsempowerment.com is listed as one of the weblinks ‘to learn your rights’.

The Echo asked www.solutionsempowerment.com founder and Tweed Shire resident, Mark Pytellek, if he had any involvement in creating the flyer.

Mr Pytellek replied that he was not directly involved, but ‘possibly indirectly’.

‘We have many free signs on our website, which list legislative sources and maxims of law. Often these sources are used by folks to draft their own.

‘The key is to drive massive volumes of people to the websites listed in that poster so as to educate folks’.

Mr Pytellek promises, through paid webinars, to ‘Free yourself from slavery’ by providing ‘you with information, resources and templates to help you tackle the ever increasing burden of financial debts and liabilities, banking issues, fines, court appointments, driving offences, taxation obligations and other matters including suveran rights and vaccinations’.

Within the legal profession, the movement is known as Organised Pseudolegal Commercial Arguments (OPCA).

Mr Heilpern summarised his view of the flyer as thus: ‘I have always believed that people should challenge unfair or discriminatory laws, and watch for unreasonable legal encroachmentbut not with misleading, inaccurate or plainly wrong references to irrelevant legislation and cases all based on a deluded ideology’.

‘Because the poor buggers who follow that advice will be the ones to suffer the legal sanctions be they fines, shut-down orders or even imprisonment. This is not a hypothetical thesis. Make no mistake, people get jailed for their adherence to sovereign citizen garbage’.

Mr Barnett replied, ‘Yes, I absolutely agree. This is another example of giving half the story and leaving out pertinent details.  People who think they are sovereign citizens are absolutely misled, can be fleeced of their livelihood and locked up, despite causing no harm or loss I might add.  But why assert the term ‘sovereign citizen,’ which I don’t believe is used in the flyer? ‘Sovereign citizen’ is an oxymoron used only by Mr Heilpern.  Further, why do people who respectfully reserve their rights continually succeed in discharging liabilities for debts and having all kinds of matters dismissed by courts?  Is Mr Heilpern claiming that no one ever successfully does this? Where is his evidence?’

Mr Heilpern continued, ‘It is no wonder that there are no lawyers supporting this gobbledegook. They would be struck off. If this were a law assignment, it would be a serious, irredeemable “fail” with no re-sit’.

Mr Barnett replied, ‘I wonder if a law student would pass their bar exam by writing ‘gobbledegook,’ ‘la-la-land,’ ‘infantile fantasies’ or ‘a grab-bag of right-wing Christian nonsense,’ on their test. I also wonder if lawyers serve us, or do they serve the bar and law society to which they swear allegiance?  Where then is their conscience?’

Mr Barnett continued, ‘Out in the real world, which doesn’t appear to be visible from ivory towers, it’s hard.  It always has been but now it’s even harder.  These business essentials packs have been a breath of fresh air (pun intended) for many businesses and patrons alike.  Fear is most certainly a virus, and we don’t need misinformation scaring people in uncertain times.  Again, calls made to police and Service NSW affirm what is in the flyer. Has Mr Heilpern bothered to make the same calls?  Has The Echo for that matter?
This reminds me of the likes of Mark Swivel and Mandy Nolan, who continue unchallenged. Mark Swivel has dodged my friendly challenges even with the offer of $5,000 to prove his stance, and Nolan’s response to my challenge is to refer to me as an “idiot”.  I’m still curious as to what qualifies her giving health advice. Where is the accountability? I’m thankful for The Echo being honourable in giving a right of reply on this matter’.

Despite Mr Barnett’s claims, legal expert and academic at UNSW, Professor George Williams, says the consequences of the Biosecurity Act 2015 were foreseen and intentional.

He told The NSW Council for Civil Liberties last week, ‘The parliamentary Statement of Compatibility on the Biosecurity Bill noted that ‘some provisions of the Bill would appear to infringe personal rights and freedoms’, particularly in the case of any outbreak of a listed human disease where individuals ‘may be required to comply with certain biosecurity measures’. Nonetheless, the Parliamentary Joint Committee on Human Rights, having considered the provisions, was ‘satisfied that they are reasonable and proportionate to the risk to human health’.

And regarding whether the UN Charter of Human Right would ‘provide rights inconsistent with these lockdowns’, he said, ‘In the absence of a federal Charter of Rights, these [human rights] are only enforceable at the international level, and not within Australian law’.

Claims of court wins/dismissals

Mr Sudy, author of the Freeman Delusion website, told The Echo, ‘OPCA groups like Solutions Empowerment often claim “wins” as some sort of evidence of the validity of their claims, but finding these decisions is very difficult, and of the cases I’ve read the judgments of, were dismissed or withdrawn for completely irrelevant reasons. For example, when one gets a fine or charge, the police generally rely on the defendant pleading guilty, and when they don’t, the matter is then handed to the DPP to handle’.

‘At that point they have to re-evaluate the strength of the charge and whether there is evidence to prove it beyond reasonable doubt. Often they find administrative errors or simply a lack of evidence, so they withdraw to save the unnecessary expense and embarrassment of a frivolous prosecution. The OPCA adherent then takes this as some sort of proof of their ridiculous claims, when it is in fact completely irrelevant.

‘In reality, the higher courts are where these matters of law are determined, and the decisions on that particular point of law are then binding on the lower courts. When one looks at these decisions, it is obvious that a mere magistrate cannot allow such a defence, let alone uphold it’.
He added, ‘For example, the Solutions Empowerment website coaches adherents to use the “strawman” argument, expecting that the lower courts will uphold the contention as a valid defence. Whereas in Mark (formerly Borleis) Pytellek’s own case before the Queensland Supreme Court in Borleis v Wacol Correctional Centre [2011] QSC 232, the contention itself was rejected as having no basis in law. “Mr Borleis, who was brought to Court from the prison today, was allowed to make some submissions himself. He submitted that the Magistrate had no authority to deal with him. He seemed to distinguish between himself as a man in two different capacities and suggested that the law did not bind him in one of those two capacities. This rather esoteric and spiritual argument does not find any reflection in any provision of our law.”
This same situation regarding the “strawman” argument is identical with other promoters such as Mike Palmer’s “Know Your Rights Group”, having been rejected in DCT v Palmer [2019] VCC 1401“Michael accepted that he was a “living breathing man” and, although he preferred to be called Michael or “Michael of the family Palmer” in Court, referred to himself on many occasions in his written submissions as “Michael Palmer”. As I understand this aspect of his submissions, he contended that: a) he was not a “person” within the meaning of the relevant legislation; and b)    the DCT was not suing him, but a “corporation” created either by the issuing of a birth certificate or by the creation of a tax file number. It is well accepted that “person” includes “natural person” or (to use Michael’s terminology) a “living breathing man”. On the face of the Writ and Statement of Claim, the DCT appears to be suing a natural person by the name of Michael Gareth Palmer rather than a corporation. Further, Michael also swore an affidavit dated 17 May 2019 which commenced: “I, Michael Palmer, a subject of the Crown of the United Kingdom of Great Britain and Ireland, a de jure solemn et natural, living, breathing man, make oath and say as follows: I am listed as the Defendant in these proceedings…” On the evidence before me, I am satisfied that Michael is the named defendant to these proceedings.”

‘One would have to question the general integrity and conscience of these promoters, coaching gullible, often desperate people to pursue a certain remedy before the courts, when that same remedy had been rejected in their own cases. This is especially the case when they are charging these people money for initiating their inevitable failure’.


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4 COMMENTS

  1. The Shopping Centre and Coles I frequent have not and do not supervise QR check-in or mask wearing and if that’s okay for big business it’s okay for small retail…….. to hang a sign stating… “if you are not wearing a mask we will assume you’re exempt”…. is polite, honest and reasonable.
    Shopkeepers are not enforcers.

    Legal fluff distracts from reality.

  2. Good reporting Hans!

    I have been advised by the Small Business COVID Helpline that business is under no obligation to enforce the laws on their customers. A business is required only to follow its COVID Safe Plan, including only to make sure that their customers know that it is their customer’s obligation to wear a mask and check in. There is a good reason that the government hasn’t made it the obligation of business to enforce the laws on customers: they are not trained in confrontation, de-escalation or the law, and shouldn’t try to play cops.

    You wouldn’t chase a speeder down and demand that they follow the laws, that would be gross over-reach and would be likely to lead to confrontation, aggression and maybe even violence.

    Of course people who do not wear masks shouldn’t try to press their opinions on others, it is wrong and in many occasions arrogant, but also, shopkeepers and restaurateurs shouldn’t become little health directive Nazis either.

    Both sides need to see that they are adding to the conflict and mind their own obligations and requirements and not try to enforce their opinions on others. Both sides appear to be over-stepping the mark and contributing to the conflict while doubling down and not being able to see their own role in the divide and the conflict. Unless you are a cop, or you are dealing with your own staff, then don’t pretend the government requires you to confront, exclude or abuse anyone else, masked or maskless. And for Mother Earth’s sake, if you do decide to act like a vigilante, don’t blame the other for your choices, take some responsibility for your part in the divide and the conflict.

  3. I have cancelled all advertising with the Echo.

    I suggest anyone else that finds the disingenuous parroting of mainstream provid propaganda consider doing the same.

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