On August 5, a United States federal court did something no Australian court has ever done for a medical practitioner: it told the government, in plain terms, that it does not own the speech of doctors.
In Kory v. Bonta, Judge William Shubb enjoined California’s Attorney General and medical boards from investigating or prosecuting physicians for the professional opinions they share with their patients about Covid-19, vaccines, and treatment. The judgment contains a sentence every Australian health bureaucrat should be made to read aloud:
The boards ‘may not dress up a viewpoint prosecution as a “standard of care” or “informed consent” case’.
Dr Pierre Kory and his co-plaintiffs spent years under the shadow of California’s AB 2098, a law that defined departure from the government’s Covid position as professional misconduct. They fought, and they won, because Americans have a First Amendment. Australians have no such shield. All we possess is an implied freedom of political communication, which the High Court has made clear is a restraint on legislative power, not a personal right. Our courts and tribunals have repeatedly declined to extend it to registered health practitioners disciplined for what they say. In Australia, the government really does get to tell doctors what they can say, and it does, systematically, through its health regulators.
The mechanism is a single, elastic word: confidence.
Under the National Law, regulators act to preserve ‘public confidence in the safety of services’. On March 9, 2021, AHPRA and the National Boards issued their infamous position statement warning that any promotion of ‘anti-vaccination statements’ or health advice contradicting ‘the best available scientific evidence’ as determined by the government may trigger regulatory action. Note what this standard is not. It is not a test of whether the practitioner harmed a patient. It is not a test of whether the practitioner’s view was supported by evidence. It is a test of whether the practitioner’s speech undermined confidence in the official position. Practitioners with peer-reviewed evidence behind them were investigated, suspended, and driven from the profession for saying things that were later quietly conceded. Being right was no defence. It still isn’t.
Covid was the proof of concept. What followed was expansion. In the contested field of paediatric gender medicine, AHPRA maintains a formal relationship with ACON, an activist organisation that promotes gender affirmation, while disciplining clinicians who voice the cautious position now embedded in the Cass Review and adopted across Europe. Psychiatrist Dr Andrew Amos was banned from publicly criticising puberty blockers for minors. Queensland child psychiatrist Dr Jillian Spencer was stood down in 2023 for raising clinical concerns; it took more than three years, a Crime and Corruption Commission finding that her suspension may have been unlawful, and an external investigation clearing her of wrongdoing before her name was restored. It is our view that the message to every other clinician was received long before her vindication: dissent from affirmation, however evidence-based, and your career is forfeit.
Now comes antisemitism. In July, AHPRA adopted the contested IHRA definition as a ‘regulatory reference tool’ for assessing complaints, a definition whose own lead drafter warns against its use in disciplinary settings because it captures legitimate political criticism. NPAA and AMPS lodged a formal objection, because the principle is identical: an external, contested, politically loaded standard imported into professional regulation to police what practitioners may say. Add abortion, where state laws already compel the speech of conscientious objectors, and the pattern is undeniable. Whatever the controversy of the day, the regulator’s answer is the same, define the permitted view, and prosecute confidence in anything else.
This is not regulation of medicine. It is regulation of opinion, enforced through the livelihoods of the one profession whose candour patients depend upon most. A doctor who cannot speak freely cannot obtain informed consent, cannot warn, cannot dissent, and cannot correct error, and a medical system in which error cannot be corrected is not safe, whatever the position statements say. Confidence built on enforced silence is not confidence at all. It is compliance, and the public knows the difference, which is why trust in both medicine and government has bled away since 2021. Vaccine uptake is at its lowest in years. Perhaps governments enforcing confidence is the exact reason the public no longer has much confidence in government or medicine at all. Clinicians see it every day. Members tell us that a wry consulting-room question, ‘You haven’t been following government health advice, have you?’ now routinely draws the same reply: ‘No. I don’t trust any of them.’ Patients have learned from their own experience that official advice is no guarantee of health; too often, it was the very thing that made them ill.
Judge Shubb’s injunction did not license quackery, fraud, negligence, and genuine misconduct remain fully punishable. It simply drew the line the American founders drew: the state does not decide which opinions may be spoken. Australian practitioners need that line drawn here, by a court willing to give the implied freedom real content, or by parliaments willing to amend the National Law to protect evidence-based professional speech.
Australia needs its Kory moment: for practitioners, for patients, for the restoration of confidence that only open debate can earn, and for a democracy that cannot survive if the state may silence its most informed critics.
Kara Thomas is the Secretary of the Australian Medical Professionals Society (AMPS).
Dr Andrew McIntyre – Consultant Gastroenterologist on Queensland’s Sunshine Coast.
This article expresses the personal views and opinions of the authors, Kara Thomas and Dr Andrew McIntyre. It is intended as commentary on matters of public interest.
