Why the AVN didn’t win against the HCCC #StopAVN

Previously, on CSI: Bangalow:

My last post covered the reasons for the Australian Vaccination Network’s victory, on the technical question of the jurisdiction of the NSW Healthcare Complaints Commission in investigation two complaints against them. Following these complaints, the HCCC issued a public warning against the AVN:

The Commission’s investigation established that the AVN website:

  • provides information that is solely anti-vaccination
  • contains information that is incorrect and misleading
  • quotes selectively from research to suggest that vaccination may be dangerous.

Now, the judgment in AVN v HCCC seems to revoke that warning, officially at least. The AVN can certainly celebrate a small victory, irrelevant to the truth of its claims or the danger it poses. It’s a disappointment.

However that is not the full story.

The AVN fails to influence OLGR

The AVN had a second (and much more important) goal in AVN v HCCC. The HCCC’s public warning was used as one factor in the decision by the Office of Liquor, Gaming and Racing (don’t ask) to revoke the charitable fundraising authority of the AVN.

The AVN was hoping that this decision could also be overturned by the case. They failed.

As my mate Jason puts it:

AVN argued that the HCCC order and warning brought them into line-of-fire of a new hazard - that of having their charitable status revoked. The judgement explicitly says that this is not the case. So the AVN, while they’ve won on paper, have actually lost the part that the organisation would value the most.

You really should read the rest of Jason’s excellent post.

Why the AVN won against the HCCC #StopAVN

Read the judgment in AVN v HCCC at NSW Caselaw.

This is the first of a couple of posts following up on my posts on the final day of argument in AVN v HCCC and the delivery of the decision. The judgment is very clearly written, and I encourage you to read it in full. However, there are a few very interesting points to be drawn out.

Why the AVN won

As I have discussed before, the matter of the HCCC’s jurisdiction in this case came down to the interpretation of section 7 of the Health Care Complaints Act 1993, and particularly the following excerpt:

(1) A complaint may be made under this Act concerning:


(b) a health service which affects the clinical management or care of an individual client.

(2) A complaint may be made against a health service provider.

At issue was whether it was necessary for the AVN to fall under 7 (1) (b). While everyone agreed the AVN was a health service provider, the judge found that 7 (2) alone was not sufficient to establish that the HCCC had jurisdiction to investigate the two complaints that lead to the public warning.

Justice Adamson decided, based on the act as a whole, that it would be necessary to fulfil the specific wording used in 7 (1) (b).

It followed then, that it needed to be established that the AVN affected the clinical management or care of an individual client. In other words, among the evidence submitted, there would have to be a demonstrable case of a specific person’s healthcare to be affected. The HCCC argued for a broad net to be cast: if it could be reasonably inferred that someone had taken the AVN’s information into account, then the AVN had ‘affected’ their ‘care’. However, based on the evidence submitted, there was little in the way of specifics at hand. Ken McLeod’s allegation of appalling vaccination rates in the Northern Rivers area of NSW was offered, for example.

And this was to prove fatal. As the judge hits home hard in paragraphs 59 and 60:

59. Although I find that both complaints concern the health service that theplaintiff provides, the health service has not beenshown to “affect theclinical management or care of an individual client”. Although it might havethat tendency, andalthough the plaintiff hopes to have that effect, I do notconsider this to be sufficient to establish that it has had that effect.

60. I do not consider the evidence to be relied upon by the HCCC to besufficient that there was such a causal link, or that any link could beestablished in respect of “an individual client”. Had the HCCCapprehended that such would be required to found jurisdiction, itpresumably could have readily obtained such evidence from one of thecomplainants. However, the ease with which it might have done so is notthe test. It did not do so. As I have found, the evidence adduced before meis not sufficient to bring the complaints within s 7(1)(b) of the Act.

Ouch. Sadly, because the HCCC had not anticipated the need to prove that Meryl is not totally unsuccessful in achieving her goals, they could not prove with the evidence at hand that she had affected indviduals’ healthcare, and therefore fell within the HCCC’s decision.

It’s a tortuous route to get there, but that’s the way it crumbles, cookie-wise. We’re better served by a judiciary that adheres to the letter of the law that one that does not.

As if to rub salt in our wounds, here’s a splendid screenshot demonstrating exactly why the HCCC could have been found to have jurisdiction, in a different set of specific circumstances (this is from 2012 and clearly not relevant to the case itself):

An individual client

An individual client (thanks to Hank)

Oh, well.

I hope the HCCC appeals the decision (the likelihood of this evades me).

And as Jason notes, the AVN should not be celebrating too hard


The Australian Vaccination Network, led by Meryl Dorey, has won the case it brought against the NSW Healthcare Complaints Commission.

UPDATE: Please also see my followup on why the AVN won.

Justice Christine Adamson found that the HCCC did not have jurisdiction to investigate the complaints made about the AVN. The reasoning for the judgement will be published later, but rested on the technical wording of the Health Care Complaints Act. I wrote a summary of the last day’s argument in AVN v HCCC on Thursday.

None of this has anything to do with the truth of Meryl Dorey’s claims, nor the fact that her organisation is solely anti-vaccination. Nor does this necessary resolve any of the other legal issues facing the AVN, though it may affect them.

Meryl will justifiably be delighted at her victory and will no doubt crow that this is a victory on all kinds of fronts. It isn’t. It’s a technical matter of jurisdiction, which unfortunately means the HCCC overstepped it’s bounds in issuing the public warning. This case does not affect the truth of the warning.

I have no legal expertise whatsoever, but I’m concerned that this judgment may well set a precedent that renders the HCCC less able to tackle quacks who operate at the edges of the law’s various definitions around what constitutes ‘health care providers’. Perhaps we’ll need to lobby for better legislation as a result.

One thing’s for sure: none of this changes Stop AVN’s resolve. The AVN is dangerous and should be held firmly to account.

UPDATE: There will be more to say when the judgement is published, hopefully Monday.

AVN v HCCC: It’s the vibe

I am not a lawyer.

In my brown shirt.

In my brown shirt.

A couple of hours ago, I got out of the NSW supreme court, where we heard the final day of argument in AVN v HCCC. The anti-vaccination group took the NSW Healthcare Complaints Commission to court, appealing the HCCC’s jurisdiction to issue its famous public warning against the Australian Vaccination Network.

We had a new judge who was well informed on previous sessions and written submissions to the court. Today, we had her interrogation of the barristers for both sides on specific points of law.

I’m not a lawyer and what follows is based on my impressions, scribbled notes, memory and inexpert interpretations. Don’t rely on it for anything.

The Healthcare Complaints Commission of New South Wales is governed by the Health Care Complaints Act of 1993. Most time today was  spent on on section 7 (1) b) and 7 (2) of the act:

7 What can a complaint be made about?

(1) A complaint may be made under this Act concerning:

(a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 3 of Part 2A of the Public Health Act 1991 or of a code of conduct prescribed under section 10AM of that Act), or

(b) a health service which affects the clinical management or care of an individual client.

(2) A complaint may be made against a health service provider.

(3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.

In particular, the judge wanted to make clear what it would mean for a health service (such as Meryl Dorey’s website) to affect the clinical management or care of an individual client.

The AVN’s case

In particular, the AVN’s barrister wanted Her Honour to hold that evidence was needed of at least one specific individual case of a person whose healthcare was influenced by the AVN’s activities. The HCCC seemed to rely heavily on my friend Ken McLeod’s original complaint to the Commission. This noted the significantly lower rates of vaccination in Northern NSW, Dorey’s stomping ground. A reasonable to-and-fro on the issue of correlation vs. causation ensued, in which the actual effectiveness of the AVN was questioned, a theme to which HCCC’s barrister would later return. The AVN’s barrister rejected the idea that a general statistical correlation in vaccination rates was sufficient to establish that the clinical management or care of an individual client had been affected by the AVN’s activities.

The AVN’s barrister objected to the HCCC’s acting as a general consumer or public-health watchdog and took a strict line on the requirement for specific clinical effects of the AVN on individuals to be demonstrated.

One of the most humorous exchanges occurred when the HCCC’s barrister submitted that clinical management or care implied that the healthcare provider have some knowledge of the clinical situation of the client. The judge hypothesised a public lecture by an antivaxxer, based upon which a specifically nominated parent chose not to vaccinate. She asked whether that would constitute an effect, and the AVN barrister conceded that that would indeed trigger jurisdiction for the HCCC. When the judge pointed out that a public speaker could not know the medical history of each audience member, I double-underlined one word on my pad: ‘PWNED’. The barrister ceded the point.

There was the question of whether ‘information’ should be considered equivalent to ‘advice’, whether that mattered, and whether the disclaimer on the AVN’s website could reduce the latter to the former. The sentence ‘Isn’t that just a cop-out?’ was uttered by an incredulously laughing judge. She didn’t seem convinced by the suggestion that the AVN was ‘just putting stuff out there’, seemingly suggesting that it would be absurd to think the AVN did not actually want people to pay attention to them.

One particular passage from the AVN was called out, implying a link between vaccination and autism. The judge noted that while the AVN’s site is extensive, given the prevalence of concern about autism a parent might be expected to latch on to it.

All parties agreed soon enough that while the question of an effect on specific, named individual was unresolved, if an anonymous poll of non-vaccinators showed they had changed their mind on vaccination because of Dorey, then that would satisfy 7 (1) b).

Very amusingly, the AVN’s barrister argued that Meryl Dorey’s evidence should be ruled inadmissible for three reasons: Dorey’s opinion is not necessarily that of the actual plaintiff, the AVN and its committee (yeah, right); Dorey’s statement of her intentions is irrelevant to the facts of the matter; and her description of the AVN’s purpose in 2011 is temporally irrelevant to the AVN’s purpose in 2009. Whether the judge will consider it admissible was not revealed, but as it later transpired it seems Meryl Dorey did more harm than good to the AVN. Nothing new there, then. Cheers Meryl.

In case you missed that, here it is again. The AVN’s barrister requested that Meryl Dorey’s testimony be ruled inadmissible, so helpful was she to the HCCC.

In summary, the AVN’s barrister argued that Parliament drafted 7 (1) b) in a very specific way, incompatible with the interpretation that the HCCC has jurisdiction for broad public-health watchdoggery.

The HCCC’s case

The judge first questioned whether the allegation in My Friend Ken McLeod’s original complaint, that people make decisions based on the AVN’s info, is the same as an established fact. There was some discussion about the fact-checking by the HCCC. This was a reasonable question, rather disappointingly answered, in my opinion.

Even worse was the discussion of the particular statistic mentioned above: that 30-33% of kids are not fully vaccinated in the Northern Rivers, versus some presumably much lower national rate. This was very disappointing, with far too much reliance on Ken’s complaint. Regardless of the accuracy of Ken’s stats (which I do not seriously doubt), the assertion in his complaint was not an appropriate source for Court to rely on. I hope the judge does some background reading on this. Scarily, the HCCC’s barrister even came close to repeating Dorey’s own Pertussis Lie as she scrabbled for statistics.

The HCCC argued that specified ‘individual clients’ need not be identified (anonymously or otherwise). It is sufficient to establish that it’s likely that someone has been affected in a clinical sense by Dorey’s publications. That this was the intent all along was well established by evidence sourced from the AVN. For example, the AVN’s stated aims in its Articles of Association, and the ‘principle activities’ of the AVN stated in its 2008-09 financial reports to the Office of Fair Trading. Namely: the AVN intended to assist parents in making an ‘informed choice’.

Both barristers agreed in their own debates with the judge that other hypotheses could explain local drops in vaccination rates.

The HCCC then moved on to Meryl Dorey’s evidence, and it became apparent why the AVN’s barrister was keen to suppress it (I noted, with an ironic smile to myself, the echoes of Meryl’s own abuse of the DMCA to suppress records of her own idiocy). When asked if, in 2009, the AVN intended to help parents make the decision to vaccinate (or not), Dorey replied ‘yes’. Oops. There goes the temporal irrelevancy.

The HCCC made clear its belief that the case need not fall over if the judge was unconvinced that specific vaccination decisions were made on the basis of the AVN’s information. If AVN claims were ‘taken into account’ in the decision-making process, then it had affected the healthcare of the ‘client’, or the consumer of the AVN’s information.

The judge enquired as to the AVN’s web traffic, and the HCCC’s barrister was unable to respond. She did point out research that showed that people often turn to the Internet in the first instance for vaccination and other medical information. In my opinion, a better prepared barrister could have made a strong argument that the AVN’s high search-engine rankings for vaccination-related topics in Australia would be evidence of a likely influence on vaccination decisions.

It seemed the judge was thoroughly convinced of the AVN’s explicitly anti-vaccination stance. Mention was made several times of the notorious ‘Love them, Protect them, Never inject them’ t-shirt, which the AVN has sold for many years. The judge also wryly dismissed Dorey’s habitual denial of her anti-vaccination stance, stating:

It’s coy that your client is shy about admitting what it’s on about

There arose many more arcane legal points that I am afraid this blogger lost track of. Pharmacist sex popped up briefly but uninterestingly. Sorry I couldn’t follow everything.

In the end, it seems to me that the strongest argument presented by the AVN was that very specific wording was used by Parliament in 7 (1) b). This wording need not have been so specific, were the HCCC intended to have a broad remit. It is a principle of statutory interpretation that legislators use language advisedly.

However, it would be decisive if the judge were persuaded it is enough for anyone to be influenced in their decision-making by the AVN’s activities. And in that case, to win their case, the AVN and Meryl Dorey would have to be found wholly unsuccessful in their stated aims.

Oh, and did I mention that the AVN’s barrister wanted Meryl’s evidence ruled inadmissible?

I am not a lawyer.

A letter to Mik Wrotniak of Real Life Church, Kingswood

Yes. That does say 'WOGs'

Yes. That does say 'WOGs'.

Dear Mr Wrotniak,

I am writing to ask politely that you respect the very clear ‘No Junk Mail’ sign next to my mail box. The purpose of this sign is to decline unsolicited marketing material. This includes but is not limited to menus for takeaway restaurants, flyers for home-cleaning companies, and invitations to indulge in the consumption of the charred corpses of fellow mammals with members of a death cult which hopes a probably fictional (and if not long dead) Palestinian will return and absolve us of the need to make responsible use of resources such as paper.

I note from this hilarious conversation (should it be genuine) that you are, as am I, opposed to unsolicited communication. I would, however, not be inclined to address you in quite such strong terms. For example, I would not go so far as to say:

You’re probably a faggott too. Your self righteous,aggro, judgemental highhorse attitude is a characteristic of most faggs. Keep your hand off it,looser.

It’s spelled ‘loser’, above all else.

As this is the second time that I have had to contact your church regarding this matter, I am making this an open letter.

Kind regards,
Dave The Happy Singer


Carry *ALL* the News?

Mott The Hoople's All The Young Dudes

Mott The Hoople's All The Young Dudes

(I like Hyperbole and a Half)

Catholic Medical Ethics: Frequently Asked Question

This, I swear, is  the entire contents of the Catholic Medical Association‘s bioethics FAQ page:

Catholic Medical Association Bioethics FAQ

Catholic Medical Association Bioethics FAQ


Bioethics Questions

  • Should a Physician Prescribe Viagra to Unmarried Men?

    Catholic physicians are increasingly encountering requests by patients, including their unmarried male patients, for Viagra and are unsure of how to respond. This FAQ discusses how to approach this issue on sound clinical,  ethical and practical grounds.

As Stephen Fry said, in his unmissable debate alongside Christopher Hitchens:

It’s the strange thing about this church: it is obsessed with sex, absolutely obsessed. Now they will say: “we with our permissive society and our rude jokes are obsessed”. No. We have a healthy attitude, we like it, it’s fun, it’s jolly. Because it’s a primary impulse, it can be dangerous and dark and difficult.

It’s a bit like food in that respect, only even more exciting. The only people who are obsessed with food are anorexics and the morbidly obese. And that, in erotic terms, is the Catholic church in a nutshell.

Of all the hard and important bioethical questions that face our troubled species, the question of whether unmarried men are allowed erections is a pretty easy one. The answer is yes. Unless they’re priests.

What does the Catholic Church say about aborted foetuses in vaccines?

Very little, of course, because there are no aborted foetuses in vaccines.

Here’s Meryl Dorey, of the Australian Vaccination Network confirming this fact in her usual way. That is, by asserting the exact opposite:

Vaccines may sometimes contain aborted human foetal tissue – a fact which some people may consider a cause for concern

And here’s the reality:

Two different strains of human diploid cell cultures made from fetuses have been used extensively for vaccine production for decades. One was developed in the United States in 1961 (called WI-38) and the other in the United Kingdom in 1966 (called MRC-5).

WI-38 came from lung cells from a female fetus of 3-months gestation and MRC-5 was developed from lung cells from a 14-week-old male fetus. Both fetuses were intentionally aborted, but neither was aborted for the purpose of obtaining diploid cells.123. The fetal tissues that eventually became WI-38 and the MRC-5 cell cultures were removed from fetuses that were dead. The cellular biologists who made the cell cultures did not induce the abortions.

These two cell strains have been growing under laboratory conditions for more than 35 years. The cells are merely the biological system in which the viruses are grown. These cell strains do not and cannot form a complete organism and do not constitute a potential human being. The cells reproduce themselves, so there is no need to abort additional fetuses to sustain the culture supply. Viruses are collected from the diploid cell cultures and then processed further to produce the vaccine itself.

See the difference? What Meryl Dorey calls ‘aborted human foetal tissue’, are in fact cells grown in a lab, whose distant ancestors were harvested from two foetuses 50 years ago, foetuses which had already died for other reasons. And the cells aren’t even an ingredient of the vaccine, but more akin to part of a biological production line.

Sad Meryl Dorey

Sad Meryl Dorey

The Catholic church is, of course, infamous for its extreme and inhumane view of abortion. But even the Catholic church refuses to ally itself with the hysterical idiocy of anti-vaxxers. In a typically windy digestion of a very easy ethical question, the church is clear. It would understandably prefer to avoid any vaccines historically connected with foetal tissue. However:

Moreover, we find, in such a case, a proportional reason, in order to accept the use of these vaccines in the presence of the danger of favouring the spread of the pathological agent, due to the lack of vaccination of children.


The lawfulness of the use of these vaccines should not be misinterpreted as a declaration of the lawfulness of their production, marketing and use, but is to be understood as being a passive material cooperation and, in its mildest and remotest sense, also active, morally justified as an extrema ratio due to the necessity to provide for the good of one’s children and of the people who come in contact with the children (pregnant women).

Even if there is anyone left on the planet who still thinks the Vatican’s pronouncements overrule child welfare, there is only one clear choice here.


Vaccination Saves Lives: Stop The Australian Vaccination Network

Catholic Online’s Santorum headline

Catholic Online has reached a level of cluelessness about the world that I thought was unachievable:

I don't even

I don't even.

There needs to be a word for that kind of ignorance.

Can I propose ‘Perry’?

Homeopathic First Aid

In case you were in any doubt about the shameful disregard for public health shown by Woodford Folk Festival.

Homeopathic first aid

Homeopathic first aid

Homeopathic first aid: it’s great if you’re suffering from dehydration. Not much good for anything else.

Meanwhile, Stop The AVN’s Vaccination Saves Lives banner went down pretty well. There was an article in Brisbane’s Courier Mail and prominent international blog coverage of our efforts at Woodford Folk Festival.

Well done to all involved. I love you guys.

Vaccination Saves Lives: Stop The Australian Vaccination Network

(Homeopathic First Aid photo by Skeptimite, who has posted lots of other awesome photos from the Woodford Folk Festival)