Yesterday the AVN won their case against the HCCC on a technicality under Section 7 of the Health Care Complaints Act 1993. This is a hollow victory in my opinion. Here’s my (IANAL) summary of what happened.


The AVN were never really bothered by the HCCC public warning issued about them. Meryl refused to post it cause “she didn’t agree with it” and was happy to call the HCCC corrupt and slur their reputation far and wide. What the AVN really wanted from this Supreme Court Case was to be granted certiorari. .

What’s that you say? Put simply, this means the AVN wanted the Supreme Court to declare the actions of the charity watchdog, the Office of Liquor Gaming and Racing (OLGR) in revoking their charity license, illegal.

To assert this, the AVN focused on the OLGR’s reliance on the HCCC public warning arguing that if it was deemed not valid, then it followed that the OLGR actions could be lifted. This indeed was the crux of their case.

Here’s an excerpt from the judgement

- 21 – The plaintiff submitted that its rights were not only directly affected, but also altered, by the HCCC’s decision to issue the Public Warning…It argued that the decision directly exposed it to a new hazard of an adverse exercise of public power (having its fundraising capacity revoked).

But the judge was not convinced

“However, the plaintiff could not point to any provision in the Charitable Fundraising Act 1991 that made the Public Warning a mandatory relevant consideration in the Minister’s decision whether to revoke the authority.”

As a result of this, the judge made the following decision

“Accordingly there is no basis on which I could find that the Minister for Gaming is legally obliged to take into account the Public Warning. For these reasons, certiorari does not lie.”

This is the important bit. Whilst it is true that the OLGR took the HCCC warning into account when making the decision, as the judge pointed out, this was not a legal obligation and the loss of their charity license was for reasons much more serious.

An audit of the AVN by the OLGR found several serious breaches of the Charitable Trusts Act 1993 which have now been referred to the Department of Justice and Attorney General and are awaiting decisions. In revoking the AVN’s charity licence the OLGR cited three reasons; that monies had been raised for specific purposes then spent elsewhere, that monies had not been administered properly, and it was in the public interest as the AVN were dishonest in denying an anti-vaccine agenda. The final point cited the HCCC warning in support, but was concerned with the contents of the AVN website.

Meanwhile in Meryl-land

“…the OLGR had found several errors with the network’s bookkeeping system and some minor problems with the way in which fundraising income was accounted for… errors which any small, volunteer-run organisation can and does make…”

With respect to the AVN website the OLGR said,

“The Organisation’s website is misleading in that it may lead people making donations to believe that they are donating to a cause which promotes vaccination whereas the Organisation adopts an anti-vaccination position.”

(Indeed, the judge even enquired as to why the AVN were so “coy” with respect to their anti-vaccine agenda. Meryl can deny it until she’s blue in the face, but nobody is falling for that one anymore).

Then

“When requested by the HCCC to publish a disclaimer on its website the Organisation failed to do so.”

So as you can see, the OLGR did not rely solely on the HCCC warning when making their decision and as the judge stated, neither did they have any legal obligation to do so.

So as far as I can see, nothing has changed as far as the OLGR issues. The AVN are still in the shit in this regard, and I can’t see any reason why the OLGR would back down now.

The HCCC warning constituted but a small part in support of their actions, indeed as much as being cited as supporting evidence for their website being misleading. But this is by no means the only evidence that the AVN website is full to the brim with anti-vaccine canards. Just ask anyone who knows anything about the anti-vaccine movement (pick me! pick me!).

Now Meryl is not known for her comprehension skills, but even I was a little surprised by her interpretation of what I have just explained to you above. From her victory e-newsletter.

“This (HCCC) warning led to the OLGR revoking our charity authority to fundraise though they were under no legal obligation to do so.

No Meryl. It’s a bit more complicated than that.

Which brings me to another point. Meryl is now claiming that the decision yesterday found the 2 complaints used by the HCCC to investigate the AVN to be invalid. This is absolutely not the case.

The court found that the HCCC investigated the complaints under Section 7 of the Health Care Complaints Act 1993 which allows for an individual to complain about an unregistered health practitioner or service. This was the technicality I was referring to earlier.

The judge asserted that the Ken McLeod complaint needed to provide evidence of a person being directly influenced about their vaccination decision as a direct result of the AVN’s website (the subject of the investigation by the HCCC) in the form of one person who showed they made a decision based on the AVN website. And if not Section 7 did not apply.

From the judgement

“..all I needed to be satisfied of was that at least one person had read the plaintiff’s website and that its contents had affected that person’s decision whether to vaccinate, or have another person  (usually a child) vaccinated. It was not necessary that any particular person be identified. ”

The HCCC lawyers could not provide this evidence, thus the investigation was declared illegal and the public health warning quashed. No judgement was made about the validity of the complaints, nor the information contained within them. The judgement was purely based on the HCCC investigating the complaints under the wrong section of the legislation.

Likewise, there was no discussion about the validity of the HCCC’s conclusions that the AVN’s information is misleading and purely antivax. This still stands. The judge’s ruling was purely based on the HCCC using the wrong section of the legislation to investigate the AVN.

But over in Meryl land;

“I am just so pleased that the Supreme Court agreed with our original contention that the HCCC had no jurisdiction to investigate us based on the complaints which were not valid complaints according to the HCC Act (sic).”

Wrong again. And there’s more on the HCCC having jurisdiction over the AVN below.

So the AVN got off on a technicality. Damn nation you might shout, how can this happen? What the hell is wrong with the HCCC?

Well let me tell you some good things that came out of this case.

When the HCCC first received these complaints they were unsure how to deal with them because in the classical sense, the AVN were not a health care provider. They didn’t openly offer medical advice (but they did do it), they didn’t take blood or massage you, so they fell between the gaps of the HCCC legislation.

Indeed, in the early days, Meryl asserted everywhere she went that the HCCC did not have jurisdiction over the AVN because she was not a health care provider. She said it. Everywhere.

But by suing the HCCC, she has performed an epic foot bullet. She gone done and got herself legally classified as a health care service.

Here’s what the judgement says:

“Vaccination is a matter about health. The provision of information about vaccination is a health education service. It is common ground, and I accept, that the plaintiff is a “health service provider” within the meaning of s 4 of the Act since it provides “health education services”.

What does this mean? Well it means we have precedent and she now opens herself up to a whole lot more litigation as she is now officially a health service provider.

Whoops.

So prior this case, when she had been running around saying the HCCC had no jurisdiction over her? Maybe they didn’t but they absolutely and officially and technically do now.

So whilst the AVN are screaming victory from the rooftops, some of us have bothered to read the judgement and what we see is something of a hollow victory for the AVN. I certainly can’t see any evidence for the OLGR loosening their grip on the AVN’s precious charity license and this is ultimately what the AVN want back.

In closing, there are a couple of other interesting things about this case which are worth mentioning. During the lengthy discussions about whether there was any evidence for the AVN directly influencing someone to not vaccinate, the judge made the following statement

“…the health service has not been shown to “affect the clinical management or care of an individual client”. Although it might have that tendency, and although the plaintiff hopes to have that effect, I do not consider this to be sufficient to establish that it has had that effect.”

Note; “..the plaintiff hopes to have that effect..” In other words, there was no evidence that the 20 years of research and constant campaigning and thousands of Facebook posts and tweets are having any effect on peoples’ decisions about vaccinating. Jeez. That’s a kick in the face to the AVN isn’t it?

And finally, all the reports on this story have referred to the AVN as anti-vaccine, despite Meryl continuing to deny her group is. This has made made one of Meryl’s mates pretty annoyed and she wrote about it this morning (h/t Dave the Happy Singer)

From the AVN Y! Group, from Fran Sheffield of Homeopathy Plus!


“I think almost everyone, supporters and non-supporters, believe the AVN is antivaccine in spite of its protests to the contrary.

How can they do otherwise when 99.9% of information about vaccines released by the AVN is anti or reveals their problems? When there is not explanation why this imbalance exists?

It is possible to be BOTH anti-vaccine and pro-choice but when the anti-vaccine label is denied in the face of evidence to the contrary, it makes us look dishonest – something the judge hinted at with her ‘coy’ statement? It also places our pro-choice position in the back seat, out of people’s minds.

As far as public opinion goes, I don’t think the anti-vaccine position is the problem – they can cope with that.

The problem is that most people, even supporters in secret, now believe the AVN is dishonest and this has caused the AVN more harm than anything else. This is what will take a long time to get over, not any perceived anti-vaccine stance which they can respect even it they don’t agree.

Do we have a blind spot?

If the AVN wants to be perceived as being a truthful organisation then it has to proudly accept the anti-vaccine label or do something that explains (repeatedly) why most of the information it provides about vaccines and vaccine promoters is negative.

Watch out Meryl. Even your mates are seeing through you now.

PS If you are a lawyer and spot any obvious errors in my interpretation of the judgement, please leave a comment below

Please see this recent update from Reasonable Hank where Meryl claims the OLGR based their actions entirely on the HCCC warning. I have no words.



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  • davidp

    Thanks Ken

  • Ken McLeod
  • davidp

    Could you please add a link to the judgement itself ?
    I haven’t heard about it anywhere else. Thanks for posting this.

  • http://thinkingisreal.blogspot.com/ AndyD

    I’m not sure the AVN will care about the “having no effect” declaration since it is what brought them this “win”. And we know, and they know, that it’s most likely not true. It just happens that the people who are well paid to show the AVN have made a difference, didn’t do so when it mattered.