Why the Australian Court’s judgment in favor of the Australian Vaccination Network doesn’t bother me

The Supreme Court of New South Wales, Australia, the highest court of that state, has issued a judgment (decision) declaring that the state’s Health Care Complaints Commission (HCCC) had no authority to issue its Public Warning about the Australian Vaccination Network’s (AVN) website.   The HCCC found that the 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.

After that, the New South Wales Office of Liquor, Gaming & Racing (OLGR) (perhaps my favorite public agency name ever) revoked the licence (spelled the Australian way) of the AVN to engage in charitable fundraising.

The AVN sued, apparently claiming that the HCCC had no jurisdiction, or power, to investigate the complaints against it that resulted in the warning.

A warning of my own before I go any further: I am a U.S. lawyer.  I don’t know a heck of a lot about Australian law.  But both U.S. and Australian law are based on English law, and the Australian judgment seems to be written in a language approximating the English language with which I am familiar.  Therefore, I am going to take a stab at interpreting it.  But don’t rely on my explanations here in the conduct of any of your personal affairs.

I’ve got four reasons why this decision really doesn’t bother me, as much as I hate people who try to turn parents away from vaccinating their children:

Reason # 1:  The court did not find that the AVN was truthful, correct, or unbiased.

The court concluded that the HCCC didn’t have the legal power to investigate the initial complaints against it (which were made by two or three apparently caring citizens).  It did not, in any way, shape or manner whatsoever, find that (1) the complaints were unjustified, (2) the HCCC’s conclusions were incorrect, or (3) that the AVN was justified in doing what it did.  This was a decision based solely on the failure of the evidence to establish some facts that were necessary for the HCCC to exercise its powers.

The key fact that the court said would be necessary for the HCCC to exercise its powers is that a particular person was affected by the AVN’s statements.  The court said that there would have to be evidence that there was an identifiable person who did not receive vaccinations because of the AVN’s statements or actions before the HCCC could act.  The only evidence presented, however, was general information about vaccination rates.

Reason # 2: The decision doesn’t permanently prevent action by the HCCC

I think, then, that if a complainant could show that there was an identifiable person who was unvaccinated because of the AVN’s website, a new complaint making the same allegations could be investigated.  As far as I can tell from what I have read, the complaint doesn’t have to come from the unvaccinated person.  Any resident of New South Wales who hears about a parent who did not vaccinate a child because of what the AVN says should be able to complain to the HCCC and begin a new investigation that avoids this problem.  Hopefully some accurate publicity in New South Wales will result in a new complaint.

And I have seen reports that the HCCC intends to appeal.  It’s too early to tell, or even to rely on a party’s announcement of an intent to appeal so quickly after a court decision.   Frankly, I’m not sure that it’s worth the while of the HCCC to appeal.  I think their resources would be better spent investigating complaints against health care providers.

Reason # 3: The Streisand Effect might actually result in some public education

An often-unforseen consequence of seeking the assistance of courts is that your dirty laundry can become very public, especially as you get to appeals courts, whose decisions are often published and picked up by the media.  The court’s decision will serve to remind the public about the finding by the HCCC against the AVN.  Remember, the court did not say that what the HCCC said was factually wrong.  It just said that the HCCC didn’t have the authority to say anything about the AVN.

The few examples of media reports that I have found seem to be fairly accurate.  They all repeat the HCCC’s finding that the AVN was misleading, and a couple say that the AVN is a danger to public health.  Most seem to accurately report that the court’s conclusion was only that the HCCC didn’t have the authority to issue the statement, not that the HCCC’s conclusions were inaccurate in any way.  The Sydney Morning Herald article even starts and ends with strong statements about the AVN’s nonsense and the resulting danger to public health.

Overall, I think–or maybe I’m just hoping here–that the court decision will only serve to impress upon the public that the AVN is not to be trusted.

On the other hand, doctors, scientists, skeptics, and public health officials ought to be careful about talking about the AVN too much, lest they inadvertently lead the public to the misleading information.

Reason # 4: AVN still can’t raise funds

Perhaps most importantly, the court declined to enter any order affecting the OLGR’s revocation of AVN’s license to raise funds.  (A personal appeal on a grammatical pet peeve of mine: please avoid using the “word” fundraise.)  The OLGR’s database shows that AVN’s license is still “expired,” so AVN can’t legally raise funds.  And it can’t accept any new members.  That might stop it from doing anything too bad.  It’s website seems to have been updated last in 2010 (except for what appear to be automatic displays of tweets), and the “News” page only has news up to 2008.

Other commentary on the decision

Thanks to The Drunken Madman, Jason Brown (Twitter: @drunkenmadman), for leading me to the decision itself so that I could read it.  The decision itself was posted by Dave the Happy Singer before the court posted it.  Both of their posts are definitely worth reading.

I was happy to see that another post by The Drunken Madman pointed to a portion of the decision that caused me to chuckle.  The decision basically said that there was no evidence that, as hard as the AVN tried, there was no evidence that it was successful in changing anyone’s mind about vaccination.

Lastly, if you want to keep up with this, The Drunken Madman (he really has to cut down on his bad habits) has started a wiki of info relating to the decision.