This week the AVN were in court challenging the order by the Office of Fair Trading to change their name.


Listen to the audio version of this on The Skeptic Zone

The OFT ordered them to do so, following multiple complaints from the public and subsequent changes to the Incorporated Association law earlier in the year enabling an order to be made.

The Minister for Fair Trading Anthony Roberts said; “The AVN’s name does not accurately reflect the organisation’s purpose and what it stands for, which is primarily to discourage the immunisation of children.”

The first step in challenging an order is an internal investigation (page 175 of GIPA here,) by the OFT and this was completed in February 2013.

The Principle Solicitor from the Department of Finance and Services concluded,

“All in all, the available evidence shows in my opinion that the AVN is mostly concerned with opposing vaccination and mandatory immunisation When issues have two sides, it takes just one of them. One would expect that am organisation with the name Australian Vaccination Network would provide comprehensives and credible information on vaccinations in Australia and a balanced view in what is involved in the process…the AVN does not do this”.

This AVN have been good at getting legislation changed recently. So far they’ve been instrumental in getting the HCCC laws changed (and as a result there is a current investigation into them), and the child care centre laws which may change again given they were silly enough to publicly proclaim everyone should join a church to get a religious exemption. As a direct result, pressure is being applied to close that loophole.

They’ve also been under fire from all angles including a continued attack from the Murdoch media who have only just begun to wind back their “No Jab No Play” campaign after more than a month. Even today there was another article about the AVN being investigated for fraud and not revealing their conflicts of interest.

But as you expect, the AVN didn’t agree with the OFT name change order so on Thursday and Friday they took the OFT to court to challenge the claim that their name is misleading.

You might think therefore that they would focus on composing an argument detailing why their name is not misleading in an effort to convince a magistrate, but we’re talking the AVN here so you’d be wrong, obviously. In addition that would be no fun.

Some members of SAVN were in attendance for the 1.5 day hearing and it is from their tweets and notes made by Shelley Stocken that I bring to you,

AVN vs OFT : The Lulzfest

I have Storified all the Tweets here if you want to read them in full.

Beginning at 2pm on Thursday our peeps noted that both Meryl Dorey and Greg Beattie were in attendance and the place was packed. There were also large cardboard laminated graphs, which, although never seen clearly, were thought to be the famous “vaccine preventable diseases declined prior to vaccines”. How these are revelant to a name change hearing is not clear but you’ll see the AVN tried to use them anyway. Her Honour was heard to repeat the word irrelevant many times throughout the course of the hearing.

Much of the first day appears to have been taken up with faffing and obfuscation on the part of the AVN, none of which was relevant to the matter at hand – ie explain to us why you think your name is not misleading. Instead, the AVN barrister argued that SAVN were in cahoots with the government, that SAVN were big meanies, Freedom of speech or something, vaccines are not effective (I guess this explains the large graphs) and tried to admit new evidence including witnesses for the AVN.

 

One of these witnesses was thought to be Prof Brian Martin – supervisor of Judy Wilyman, to which her Honour said “What is he an expert in?”. 

When the AVN tried to introduce Brian Martin’s evidence, the OFT lawyer objected saying his affidavit is totally irrelevant and he has no idea how it found is way into the court. In any case, evidence was to be presented in the form of affidavits not expert witness testimony. I wonder if Prof Martin caught the train up from Wollongong for nothing.

The AVN’s jabbering about people being mean to them on the Internet etc was quickly shut down by the Magistrate who stated says she is not interested in a “he-said-she-said” argument and whether Meryl thinks she is anti vax or not is irrelevant – it’s how she is perceived. After the AVN barrister mumbled something about their Code of Ethics preventing them from being anti-vax and everyone lolled for a bit, proceedings ended and the meanies from SAVN retired to the pub.

Day 2

Day two opened with the revelation that Meryl Dorey had emailed the OFT barrister and the magistrate overnight apparently to complain about people live tweeting the proceedings.

 

Look, IANAL but this seems like an extremely unwise thing to do. We can only hope that Meryl pulled a Freeman on the Land again, as she has done before when she was corresponding with the TGA. In any case the magistrate did not acquiesce to Meryl’s request to stop live tweeting. Yet the irony of Meryl attempting to quash live tweeting whilst constantly yelling FREE SPEECH has not escaped anyone here.

The AVN lawyer took one last punt at arguing about vaccination before being brutally rebuffed by the magistrate. Half a day and several hours later and finally we get to the evidence.

I have borrowed heavily from Shelley’s detailed notes here, thanks for paying attention Shelley. The OFT’s submission was in three Volumes, and Volume I was the size of a phone book. The next stage of proceedings is deciding which evidence can be admitted so hence begins a lengthy period of legalese and crossing out of paragraphs etc.

Then the AVN Barrister steps forward to argue their case. He argues that the AVN can be considered a “vaccine choice lobby” because some of their material says “ask your GP or naturopath” and lots of people who have been initially taken in by the AVN eventually end up vaccinating. Huh? Ok.

He then says that the AVN is not obliged to present the other side just like anti-abortion, anti-euthanasia or anti-logging organisations would not invite users to read opposing view. Right…but doesn’t that make them anti-vax?

He then presents a screen shot from the AVN FB page where some pro-and anti-discussion had occurred and also the Respectful Debate site as evidence that the AVN allows opposing views. I guess he forgot to show the “about” section of the AVN FB page which clearly states that no opposing views are allowed.

A statement from Greg Beattie is then read out describing how the AVN would never tell parents not to vaccinate cause it says so in their Code of Ethics (in response to which the gallery falls about laughing at the use of AVN and Code of Ethics in the same sentence).

 

The AVN Barrister then says there is nothing wrong with the name itself – rather it’s the way it’s used that the complainant objects to (yes) and anyway, they’re only complaining because they want it for themselves (lulz really?). My assessment so far – this is not going so well.

The assertion that the complainant is just trying to steal the name is really quite funny, since no self respecting person would want to be associated with AVN after the last few years.

Indeed even the AVN Barrister can’t seem to get his story straight on this one, as he later states “the name has acquired such notoriety that the AVN should be allowed to keep it as people already know it means a bad thing and “AVN is one of the most divisive and controversial groups in Australian public life.” I’m not sure where he’s going with this, but okay.

The AVN Barrister also argued against the name change since 1) it was fine when they registered it in 1997 and 2) a complaint to OFT in 2002 abut the name being misleading was unsuccessful. But the legislation regulating misleading names was only changed in Feb 2013, so I see this point as moot. He also argued for the magistrate to consider the inconvenience such a change would bring to the AVN, to which the magistrate appears unmoved and unimpressed.

An argument that there are other groups around the world that also have misleading names so na-na-ne-na-nah also seems fairly useless in the context of changes in legislation in NSW and fails to win him any friends. His argument ends with reference to the name having been in use for 16 years (which I suggest is irrelevant given the recent legislation change)

 

The OFT’s evidence consists of statements from people describing the circumstances surrounding them being misled by the AVN. This includes  evidence from the Australian College of Midwives who publicly claimed to have been misled that the AVN was a valid source of information following them sending out invitations to an AVN seminar. They later retracted the invitation and apologised.

Incredibly, the AVN also presented the College of Midwives (COM) story but claimed they were lying when they issued a retraction and apology, rather they only did so because they were embarrassed by the public reaction.

According to a statement tabled by one of the Midwives she has been on the AVN mailing list for years and knew exactly what they were about. I don’t really know what to make of this, but suffice it to say the OFT’s evidence consisted of much more than just the COM so I doubt this would deleteriously impact their case.

The OFT barrister’s evidence continued with a browse of the AVN website looking for “the other side” and of course turned up nothing. Quoting from the website he said, “Because every issue has two sides” – where is the other side?, quotes “healthy unvaccinated” and “vaccine damaged” – where are the “healthy vaccinated?” and  quotes “all matters” and “all of the information” – no healthy vaccinated info.

In response, the AVN barrister argued that the inclusion of “Vaccination” in name doesn’t necessitate the provision of pro-vax info and that information on the website is not required to be 50-50 pro/anti.

He then suggests that the information the AVN provides counterbalances the “prevailing medical orthodoxy” and “may not be available elsewhere”. This is Meryl’s argument too, and if this is so – that they balance the pro-vax information provided by the government – then they should call themselves anti-vaccine.

 

By this time it was 4 pm on Friday and Her Honour retired with “decision reserved” meaning she needs to go away and assess the evidence then make a decision. There was no indication when this might happen, so we just wait.

 

I don’t care to make any predictions because I don’t understand this section of the law, in general the law is an ass and last time I was gobsmacked when the HCCC case was won by the AVN. But I will say this – based on what I saw form peeps who were there, the AVN’s evidence was weak. If I were Her Honour, I would have taken one hundred points from them for wasting all of Thursday and half of Friday with irrelevant information but sadly, I don’t think the law works that way (if only it did). So now we wait.



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  • sue

    If that happens, it might inspire another law change. Just another battle won leading to war lost

  • DrRachie

    Who knows. They beat the HCCC so anything’s possible

  • Andy

    According to my spirit guides: AVN defeats OFT in court case.