William Bay Slays a Lesser Smaug and the Mysterious Judicial Time Machine

A Christmas Letter to Friends

Re Bay v Australian Health Practitioner Regulation Agency

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2024/315.html

When William Bay tossed his medical texts in the bin, lamenting he would never again practice medicine, my second thought was hoping it was into the recycling bin. But I must confess that my first thought was that he was probably right, and career was likely over. Thankfully my hypothesis was as incorrect as Williams own in his darker hour. All of us in the medical dissident community celebrate his unexpected victory over AHPRA and the medical board on (of all the inauspicious days) Friday 13th December 2024. It was on this day Anne Tonkin crossed paths with the black cat whilst walking under a ladder. But not Bay. For the sin of publicly claiming that covid vaccines are harmful, Friday 13^th would be a day of good fortune.

Causes for celebration are several fold. Principally it’s that a still relatively young person trying to establish a career manages to exit 2 years and 2 months of persecution in the wilderness of unrequited justice and affective pain, to say nothing of lost income in an ever-inflating world. The macro/micro managerialist circuitry of the medical board will not find itself able to compute the phenomenology of suffering in the human species. Or perhaps they will get a glimmer. Not out of shame or guilt or contrition will they feel anything for Bay. Rather some of their number might suffer the egoistic pain of Bay rubbing their nose in the proverbial you know what. From their own self-interest, they might be more cautious next time.

Be that as it may, there are undigested black pills to be found amongst the white. Herein I’ll present my own commentary on Bay vs the machine, where there is victory and where there isn’t and where there is something in between.

The first point to make is that Bay rubs not merely the nose of AHPRA and the medical board in the proverbial. Bay succeeded also in embarrassing the legal profession. In being essentially self-represented and having solo formulated his defence towards his much-deserved victory, Bay takes a torch to the old adage “the man who represents himself has a fool for a client”. Put another way, if Bay is the fool of the adage, how greater is the foolishness of lawyers who ought to be a little humbled post Bay, and a little less inclined to appeal to the fallacy of authority. “You don’t understand because you are not a lawyer”. I’ve heard this a hundred times, and Bay probably more (usually by lawyers who lose). Any fool it seems can parse the language of the law. And where the law is opaque, this is the fault of a legal profession that cannot communicate clearly. Only if communicated clearly can law fairly apply to a laity that must observe it. If not, law might as well be arbitrary. Before obedience must come knowledge of what to obey and why.

The second point is the strange grammar in the order of the court on the opening page and the final disposition on the last, these sections bookending the document

The final disposition reads

[136] The Order of the Court should be as follows: (a) The decision of the Board under sections 156(1)(a) and (e) of the National Law (Qld) to take immediate action by suspending Dr Bay’s registration as a medical practitioner is set aside from 16 August 2022.

(b) The decisions of the Board under section 160 of the National Law (Qld) to commence investigations of notifications 00502227, 00502429, 00503368, 00505504, and 00505600 are set aside from 16 August 2022.

(c) The decision of the Board under s 193B of the National Law (Qld) to refer matters about Dr Bay, which were the subject of investigation of notifications 00502227, 00502429, 00503368, 00505504, and 00505600, to QCAT is set aside from 13 December 2024.

(d) The application by the Board and AHPRA to dismiss Dr Bay’s application for review, filed on 10 February 2023, is dismissed.

(e) The Board and AHPRA are to pay Dr Bay’s costs of the proceeding.

(f) The Board and AHPRA are to pay the State’s costs of the proceeding.

Now I’ll put it to you, how is it possible for a judge to “set aside” an event in the past (the suspension of Bays registration and commencement of investigations 16^th August 2022) when the only agency the judge has is in the present-day 13 December 2024.

You might well say “but this is just the judges turn of phrase, an overturning in the present of an act made in the past”.

If so, why does Judge Bradley set aside one matter 13^th December 2024, when that matter refers to events of the past as described in 136.c? And why does the judge refer to an event in the past (the filing of an application to dismiss 10 February 2023), dismissing it on the day of delivering the final disposition (13 December 2024 136.d?

In ordinary grammar, if I set aside some eggs yesterday for use today, the act is time bound to yesterday. Only from the time something is set aside can it be said to be set aside. I cannot enter the kitchen today with intent on making an omelette and then claim to be setting aside the eggs “from yesterday”, even if setting them aside yesterday would have been the wisest course of action. “From this day forth” applies to today not the past.

No, the judge could have written into the final disposition “the suspension commenced 16 Aug 2022 is revoked as of today 16 December 2024” or similar turn of phrase, making clear that his only claim to agency is in making an action in the present that has its reality in a past that cannot be changed or set aside “from” a past date. Or are we to believe that the judge has placed himself in a DeLorean, returned to August 2022 and set aside “from” the day of suspension? If that be the case, Bay ought to have been working this past 2 years. He would not been lost in the wilderness. There would be no proceedings for the judge to resolve anything. And what is ole Billy complaining about. You know Marty, it’s the time space continuum.

Rather than an incongruent application of grammar applied to time and agency, here one style and there another - and rather than the physical impossibility of time travel also - I think that the judges turn of phrase reveals another more covert legitimization of the machine. In setting aside an event in the past without changing the past, the judge seeks to cleanse the system of its original sin against Bay. It is a reset. It a ritual cleansing of what cannot be cleansed. But our grammar ought to reflect the stains of the past that cannot be washed clean so easily. In a hypertime reference frame, the past always is.

It also behoves me to remind you drear reader of what Gary Fettke warns us re AHPRA and disciplinary action, that “the process is the punishment”. Most people are governed by cowardly self-interest. The fact of the Bay case signals to the majority that dissent is not worth the price paid. That is how it will be coded into the unconscious from which their future motivations will be geared towards compliance. His quantum of suffering is larger than the medical board, and his victory is less than theirs. They won the war over mass influence. As individuals they also won the war. Bays opponents did not suffer 2 years of lost income. They would not have experienced anything approaching the psychological traumata metered out on their mark. Whilst it is true that AHPRA was ordered to pay Bays legal costs and that of the state, no individual within AHPRA receives the invoice to their personal address and none have it extracted from their personal account. And despite the insanely large amount this debt might be, AHPRA own insane cash flow can easily absorb it. As of last census, there’s >136,000 registered medical practitioners in Australia. In order to practice, AHPRA extorts over $1000 per year every year from each of them. That’s more than 136 million dollars flowing annually into AHPRA coffers! No research and development cost. No massive mining equipment to maintain. Stone cold pure cash extraction with minimal overhead. Be assured the amassed capital in AHPRA won’t deter them passing on the financial wounds inflicted by Bay onto their practitioner captives come registration renewal season Sept 2025. The fees will go up and AHPRA operatives will never be flying economy class. Bay himself will pay money back into his enemies’ coffers. Sure, Bay might sue for lost income, compounding AHPRA financial wound that will be passed onto all practitioners. Isn’t life ironic?

All this is to point out that the fundamental hierarchy remains unscathed (more on this later) and we continue pay our tribute to the machine. AHPRA board members, unlike Bay and myself, did not have skin in the game. And office sociopaths extract what they can from organisations. Any personality dynamic that fails to empathise with Bay is unlikely have organizational loyalty. Without personal accountability and disincentive, AHPRA will cycle in more of the same, lacking the same disincentives, resulting in similar outcomes.

Moreover, the fact the Friday 13^th Bay ruling is soon preceded by the resignation of the former head of the Australian Medical Board is not at all a victory. Dr Anne Tonkin AO has had a very long and ostensibly distinguished career. Her tenure as chair of the Board was 6 years, hardly an atypically foreshortened time compared with her predecessor Joanna Flynn (who chaired for 9 years). Everyone must retire sometime. For some strange reason, every resignation is perceived by the “freedom movement” as a mortal blow against the machine. But look at the post resignation fate of the covid era premiers, chief ministers and prime ministers of Aus/NZ and elsewhere. Same with the covid era TGA lead and former state chief health officers. Without exception they all fail upwards into cushy corporate and NGO roles plus minus continued government appointments and Queens (now Kings) birthday honours. When my nonviolent wife was violently arrested and thrown in the back of a police wagon for violating lockdown, the police did this in the name of the chief health officer of Queensland. This same chief health officer has since been rewarded with the title of state governor. For her crimes against humanity, she has not and will not spend a single hour in the police watchhouse. This strange phenomenon of dissidents imagining false victories reaches its most delusional in the retirement of Anthony Fauci. The man is so old he is technically pre boomer. But don’t we all have to retire some time? Tyranny can exhaust even the tyrant, and the covid era stimulated us all into different kinds of transition. Returning to the Australian medical board, Anne Tonkin is succeeded by Susan O'Dwyer. Joanna to Anne to Susan. So much for gender equity. Dr O’Dwyer was hardly known as a staunch libertarian during covid. Nor is she drawn by sortition from the common sense world of clinical practice into the role of reluctant leader. At least Tonkin was by trade a physician specialist in pharmacology. O’Dwyer is a career administrator, a pure distillation of the managerialist class. She has been working her way up the food chain for decades. She will not be sending Bay a Christmas card. The machine is learning.

Second point is this. Various members of the Australian freedom movement have shaken enormous amounts of air about AHPRA, the Medical Board and their collective behaviour as violating the constitution. It (i.e. the freedom movement) has claimed that AHPRA is illegitimate given its strange poorly localised place in relation to Commonwealth and state law and the executive. Dissidents have questioned the legitimacy of a health practitioner regulatory law that is nominally “national” yet passed only in the state of Queensland (a state without an upper house senate), then extended and mirrored in other states and territories. To the extent Justice Bradely addressed these questions, he found no problem whatsoever with the structures and tangled cooperative relationships as they are. These questions are comprehensively dealt with in sections 118-127 and won’t be cited here. He dismissed Bays case against the state, ordering the states costings be paid by AHPRA. We have to reality test here. AHPRA is not on the ropes.

Third point. Bay vs the State and APHRA/Medical Board was a judicial review, not a case in tort law from which we might claim precedent is set. Justice Bradleys scope of review was towards procedural fairness and to assess if the actions of the board were congruent with their allowed authority. In citing former chief Justice Brennan (with whom I presumably share Kilkenny clan ancestry), justice Bradley was not there to rule against the state either, or comment on the merits of Bay taking issue with the biological risks of the covid vaccine and the social risks of mandates. Much of the 27 pages consists of dissecting just how egregious was the procedural lack of fairness and apprehended bias against Bay. Justice Bradley writes

“[115] It might be difficult to characterise the conduct of the Board and AHPRA as anything less than profoundly unsatisfactory. The Board and AHPRA submitted that the Board made the suspension decision “in the context of an extraordinary period of history.” This is true. However, I reject their submission that that “it cannot be suggested” that the Board, AHPRA and the Board chair “were not acting diligently in accordance with a genuine belief that action was required to protect the public.”

Problems were manifold here. Bays cardinal sin, inter alia, was gate crashing and torpedoing the AMA National Conference Sydney on 29 July 2022, chanting anti-covid vax rhetoric. Keynote speakers included Tonkin, Raina McIntyre, Brendan Murphy and the arch dark wizard himself Dr Anthony Fauci. The conference programme now pulled from the net was all about globalization and digitalization and the brave new world of totalitarian medicine, plus some woke themes of course. Good for him to have brought it to a premature close. I’d venture to speculate that AHPRA’s animus towards Bay is not so much about the alleged demerits of covid vaccines so much as Bays aesthetic. He does not pen his protests to The Spectator class of liberal voting castrati (spectator. noun. “a person who watches at a show, game, or other event”). Bays protest style and entourage is more energetic and not upper class enough for their tastes. He’s too Queenslander.

What followed was collusion between AMA and AHPRA to take out Bay, using in house (and biased) complainants, inappropriate use of the mandatory notification process, failing to properly furnish Bay with information as to his “offences” and generally stone walling his road to justice. He was accused of offences against both law and code of conduct without the board pointing out exactly what these offences were

The fifth (and final) compliant, obviously biased writes

““Dr Bay aggressively interrupted the AMA National Conference being attended by 400 doctors. I am the chairperson of the conference. While management of the COVID-19 pandemic was being discussed Dr Bay was livestreaming to followers outside the conference. Dr Bay yelled at conference attendees to: ‘Stop forcing these vaccines on the people of Australia who are getting killed by them.’ He yelled at the Commonwealth CMO: ‘Professor Paul Kelly is a liar and is gaslighting you.’ He made false claims by yelling ‘Natural immunity has been proven to give 97.3% immunity for life against all variants.’ A number of doctor attendees were intimidated by his actions and vacated the conference as a result.”

In the show cause letter, they write to Bay that his offence was essentially disobedience against authority and a failure to conform

““Your public commentary, opinion, and actions contravene the position that local, state and federal government and health authorities have provided in a global pandemic. …

[You are] advocating adverse views in relation to the COVID-19 vaccine and its efficacy, which runs contrary to public health directives, which are designed to protect public health and safety. The Board considered that knowledge of your profession may lend credibility to your position which is in contrast with and has the potential to undermine public health directions.”

And

“may erode the intrinsic trust that the public has in medical practitioners … and is highly likely to adversely impact public opinion of the medical profession and its regulation and is likely to have a material or lasting negative effect on the profession’s reputation.”

It was no different to the letter yours truly received in 2021. I also note that an AHPRA regulatory advisor provided an agenda paper for the pre suspension board meeting which provided a kind of defence for Bay. Curiously, the same regulatory advisor was not present at the meeting itself, otherwise populated by none who would advocate for his “innocence”. Instead, all were of one mind. Bring down Bay.

Once suspended, they were determined to keep him suspended and keep him from independent review. They bent over backward to rush the process towards Bay being cast out, while going glacial to allowing him an opportunity find his way back in.

Fourth point. AHPRA attempted to justify their actions by appealing to the state of emergency during covid. Justice Bradley did not repudiate the basic idea that extraordinary times call for extraordinary measures. What he did say was that the state of emergency did not excuse the Medical Board from timeliness and procedural fairness. This is to imply that Bays case could have been heard and promptly dealt with earlier. After all, we lived in the time of zoom meetings, RAT tests and QR codes. The NSW Medical Board managed to suspend me remotely and swiftly a year before Bay. Curiously, the other chief justice Bradley cites is Kirby, though not in relation to states of emergency. I mention Kirby parenthetically here. For it was the Justice of the High Court Michael Kirby who attended Syracusa in Italy in 1984 to represent Australia as a signatory to the Syracusa principles on the limitations of human rights in states of emergency. A recurrent phrase is used in the Syracusa principles, that being human rights can only be limited if the emergency is literally “a threat to the life of a nation”. However serious covid was (and this is debateable), it was never remotely a threat to the life of this nation or any other nation. It wasn’t even a threat to the life of the most fragile micronation that is the Diamond Princess. Accordingly, there was no justification for any limitations to human rights during the covid era. The Covid response illustrates that the problem is not in the misapplication of states of emergency and authorisation overreach. As I have written elsewhere, the problem is the very construct of a state of emergency. It is by definition and irresistibility a genie which cannot be kept in the bottle. The answer therefore can only be a complete abolition of state of emergency as criminal.

https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf

https://rmachine.substack.com/p/the-once-and-forever-state-of-emergency

Ok. You get the picture from these snippets leading up to the August 2022 suspension.

But, and this is a big “but”, the ruling in no way abrogates the broad scope of the health practitioner regulation national law or AHPRAs ability to discipline practitioners if they are seen as following procedural fairness. It’s a matter of crossing the ‘t’s” and dotting the “i”s. The problem wasn’t’ that Tonkin et al lacked the ability take out William Bays career. The problem was rather that they were too rushed, arrogant and stupid, leaving themselves vulnerable. They were like Smaug the dragon in the Tolkien’s Hobbit. Armoured above by scale and below with encrusted jewels, Smaug did not check his vulnerabilities before launching himself on Lake Town. Had Smaug engaged in a proper self-check, he would have seen the bare area into which the arrow was fired. He would have tacked onto his breast a giant diamond. Lake Town would have been in flames and Bilbo Baggins would have been BBQ.

All this leads us to my next point. Dissident doctors would do best not to read the Bay case through the lens of his win, but rather the lens of what the medical board would need to do next time to secure their own win. Contra the title of this piece, this lesser Smaug survived Bays arrow. It will not make the same mistake next time.

We must also avoid the temptation to believe Bays fate would have been the same everywhere. Bay was fortunate to have been registered as a medical practitioner in Queensland at the time of his complaints and suspension. And he seems to have been blessed with his case being hard by a judge sincerely interested in procedural fairness. As I never tire of reminding our side, the law is neither words on a page nor what you or I consider their proper interpretation. Neither words on a page nor your interpretation of them have any power in the world. Law is a decision made by one in power. Power is he who has the power to decide on the interpretation and exception. And power itself can be biased. I have my doubts Bay would have received a fair hearing in New South Wales, much less the heartland of the Covid Cult in Melbourne. Likewise, I have my doubts his case would have been heard fairly between 2020-2023. The job of the judge is to protect the establishment first and foremost. On this occasion, AHPRA/Medical Board made errors so large that the judge could not avoid them and Dec 13^th 2024 is a time when the heat has gone out of covid hysteria. We already have the receipts from all the cases of the first few covid years. No judge was going to side with antivax conspiracy theorist granny killers. During the dark days, it was the courts which were procedurally unfair.

Further, It is noted that Bay’s actions did not involve any clinical encounters with patients. This is a strong feature of Justice Bradleys castigation of the board.

[116] “……..none of them made any allegation or included any evidence that Dr Bay had provided or was providing any clinical services that failed to meet the applicable standards, or that Dr Bay had contravened any legislation or breached any Code of Conduct. It must have been apparent from the outset that all the notifications concerned political conduct by Dr Bay.”

This section is most intriguing as it provokes the question where clinical ends and public begins. Or where medical ends and political begins. If a practitioner speaks ill of a vaccine in his rooms, he uses his influence and holds a position either typical of, or at odds with, his peers. When he speaks at a rally with appeal to his authority as a doctor, he does the same. In the latter scenario the patient is a public health abstraction only to a limited extent. Though it might be challenging to identify a particular person that might have been misled and suffered harm from his advice, the profession can decide if the advice is harmful. And public advice of a medical nature is arguably not political conduct in the sense of which we might speak of health policy or pure political theory. I’d speculate that justice Bradley is aware of nuance and ambiguous boundaries, choosing to mention Bays alleged harms as not involving clinical encounters because he wanted to bolster his own argument. Nonetheless the crux of justice Bradley’s argument lay on the axis of procedural fairness and bias.

So, truth or dare. You choose dare? What if a doctor were to stand up at a rally and publicly encourage an audience to reject all vaccines? I’m not talking about Bay here but instead a hypothetical case. Or what if that same doctor encouraged cancer patients avoid chemotherapy and other standard care towards instead some exotic supplement, even one in which he had no commercial interest? Or what if he said that he believed viruses do not exist and apparent viral illness is a nutritional defect. None of these public statements involve clinical encounters with a patient in rooms. Nonetheless, do we seriously believe the Bay case to give carte blanche free speech to doctors in the public sphere under the guise of “political activity”. After all, this is the political activity of the IMOP party. But the issue is medical. The medical is political.

Similarly, that same doctor might make explicitly political statements. For example, they might say something antisemitic or claim abortion is mass genocide and its providers as murderers. Or they may say that trans men as really women or vice versa. Do we seriously believe that all the procedural fairness in the world will protect the doctor from the political correctness in extremis?

Or imagine a hypothetical doctor reading the Bay case and making any heretical statements and advice within the consult rooms. This most certainly would be a clinical context. Bay vs AHPRA affords these practitioners no protection in the doctors rooms.

To repeat, judicial review is a protection against procedural unfairness. It is blind to the merits of scientific discourse. That does not make it a protective instrument against severe discipline applied within the proper boundaries of application any more than locking up a crooked cop weakens the powers of the police.

Returning to Bay himself, the limitations of victory and disincentives to other dissidents, he is not out of the woods. Bay is a registrar in general practice, what American readers will call a resident in family medicine. Having been out of the profession for well over two years, it remains to be seen if the machine will force him revise junior doctor terms within a hostile hospital system. It remains to be seen how he will continue his general practice training in the community and pass-through exams administered by a professional guild hostile to him and his beliefs. It’s unlikely he will even be able to return to general practice training without another fight. It remains to be seen just how far he will have to compromise himself to pass through all these hoops, without which his freedom to actualise himself as a doctor will be limited. I know what it is like having been suspended earlier in the covid wars re my reaction against lockdown and the covid cult, including the infamous open letter..

https://constitutionwatch.com.au/covid-medical-network-letter-to-doctors-and-health-professionals/

Where once I was employable, now I am a pariah from the mainstream. We all knew it was a suicide mission from the beginning. If Bay manages to practice, he will have to assemble before himself a loyal patient base. Unless he knows who he treats, the next patient might be a confederate friend of AHPRA wanting to trip him up.

My advice to Bay would be to retrain as a lawyer or go into politics. Though this too will be fraught. He is a little too….hmm….Queenslander to be accepted by reformist faction in the liberal party. They even dumped the dignified Gerard Rennick. Besides, Bay might actually stand for something and decide to sacrifice a vote for a principle, something anathema to the liberals. He can represent a minor or micro party (e.g. Libertarians or One Nation), unlikely to win a seat and unlikely therefore to derive either income or satisfaction for the exercise. These are the bitter fruits of “winning” against the machine.

Finally, the dissident medical community must evaluate the Bay case in light of its strategic value. William Bays victory is important and valuable, for more reasons besides its value as a morale booster. Nonetheless it is one tip of a multi barbed weapon. We should understand it as being thoroughly within the reformist school of political reaction, for it recognises the authority and seeks redress from establishment structures. Other friends in this space such as Kok and Hobart et al continue to fight their way through the establishment legal system. Despite surface differences in approach and deeper differences in political philosophy, we ought to stick together and give credit and encouragement where it is due. During the first 12-18 months of the covid era, it was a lonely and isolated time being the only Queensland doctor speaking out at rallies and dodging lockdowns on the community speaking circuit. Anti lockdown activists such as yours truly were the first generation before the covid jab rollout. We have dark memories of dark times. Midnight zooms discussing exit strategies from the Gulag Archipelago formerly known as Australia. Standing toe to toe with police threatening arrest us if we did not move on or wear the mask or if we were out of the house at all. Being forced to vacate places for refusal to QR code. Knowing that speech would have consequences. The list goes on. It is heartening to pass on the baton to others energized to press on. I’d ask the current generation of activists and dissidents to consider thinking outside the box though. Bay managed to wrestle himself free of AHPRA by way of the court. Yours truly refused engage on any level. As I did not recognise the legitimacy of the medical board, I refused even attend the board interrogation to defend myself. And yet by a grace given both Bay and me and not of our own quality, 9 months later my own suspension was lifted. They never provided a reason, only that the investigations were complete. Back we are to Fettke and the process being the punishment. Some of our friends have taken things a step further, preferring to leave the profession than submit a single dollar to an establishment they take issues with. This is truly revolutionary. So let us not limit ourselves to activism within the machine whilst ignoring those who forge paths outside it. The reformist “Overton window” would say we must seek redress through the court as opposed to non-engagement. Yet both might work as non-engagement did for me, the caveat being that tomorrow the AHPRA dragon might circle around again for any of us. We then best live as if we are dead, so as to avoid the disappointment when death taps us on the shoulder. This is PTSD without the criterion A. In going further down the reformist path onto that of the revolutionary, we might ask other questions and probe incongruences in our movement. Do we speak about how rotten the liberal party is, whilst enlivening it with the fool’s dream that it can be reformed? Do we in one breath say that the establishment media is so hideously biased it is to be rejected, only in the next wetting our pants with joy if we manage to get it write a friendly article? Do we recognise that the world is full of illiberal and scientifically illiterate covid cultists holding professorial chairs and PhD’s, only to seek leadership amongst our ranks from those credentialed by the same flawed establishment, as if to imply that those credentials have retained their value in the marketplace of ideas? Do we have amongst us those who might say “well of course we need some kind of regulator” without having thought twice of where their “of course” assumptions come from? This is a mind captured by the machine. Has there always been an AHPRA? Has there always been college guilds of various medical specialities? Have they improved things, and by which conflicted hand was written that they did? For my own part, I can imagine a future doing away with all of the above. AHPRA could serve a sole function as evaluating the credentials of foreign graduates, with assessment paid for by the user. Beyond this, practitioner’s sins could well be managed in the civil and criminal courts or by peers, if only choose virtue to guide them. But that’s the problem. We are the last generation of medical graduates who passed through whilst standing for something and being able evaluate the superior moral choices upon which we stood. The future is lost? We shall see. Its Christmas soon. We shall celebrate the birth of the Messiah.