The HCCC, the Law and Morality

by Meryl Dorey, AVN Public Officer

As many of you would know, both the AVN and I were under investigation by the Health Care Complaints Commission (HCCC) in 2009/2010. This investigation was brought about due to two complaints. One was filed by Mr Ken McLeod, a founding member of the hate group Stop the AVN (SAVN). The other complaint was filed by Toni and David McCaffery, parents of Dana McCaffery, a baby who tragically died in 2009.

The entire investigation process was most irregular (to say the least - you can read the complaints and the AVN's responses by clicking this link) and it was clear from the start that the HCCC was acting outside of their jurisdiction. This was confirmed when our tiny, unfunded organisation prevailed against this government body with the deepest of deep pockets in the Supreme Court in 2011.

The decision of the court was that the HCCC did not have jurisdiction to either cite or warn against our group - a common-sense outcome which most people in the community who believe in freedom of speech applauded because, no matter what your opinion on the vaccination issue, the majority of thinking Australians would never want to silence debate or discussion on any matter of science.

Does the HCCC have the right to stifle political speech?

Recently, one of our members sent me an article from a scholarly publication called the Journal of Law and Medicine. In 2012, this journal published an article entitled, Civil Liberties and the Critics of Safe Vaccination: Australian Vaccination Network, Inc v Health Care Complaints Commission (2012) NSWSC 110. 

This was an article written by someone who wore his strongly pro-vaccination opinion on his sleeve for all to see. Despite this, his conclusion was very interesting and, in retrospect, ironic. What he advised the government not to do is exactly what they ended up doing. The government of NSW went ahead and introduced changes to legislation which specifically target the AVN and anyone who wishes to freely access or discuss both sides of scientific and medical issues.

Here is a quote from this article which I wanted to share with you. In my opinion, it speaks to the heart of the matter and why the actions of the current NSW government are dangerous and in direct opposition to the welfare and needs of the people of this State.

... Alternatively, Parliament could amend the Act to broaden the definition of "clinical" or "care" or to allow the HCCC to investigate complaints under s 7(1)(b) where there is a mere tendency for the conduct to affect a client. The court even suggested language for such a reform.

However, the current authors do not support legislative reform of the HCCC in the manner proposed above or by the court. In a free society, the views and opinions expressed by Ms Dorey and the AVN should be protected against government interference. Arguments against public immunisation programs are not simply debates over health policy; they are also political discussion. As such, the AVN's website, and Ms Dorey's statements, are to be protected from interference by Parliament or the Executive by the implied constitutional right of political communication.

Moreover, freedom of expression is an essential human right, protected under international and domestic human rights instruments, and should not be abridged except in the most limited of circumstances, such as a major pandemic. It would be inappropriate for a government agency to be given a standing mandate to censor debate or force an individual to include a statement on their website with which they do not agree. If the misleading information of the AVN is to be challenged, then it should be through the better dissemination of accurate information and the proper management of rare adverse events following immunisation."

This is a common sense approach and one that the AVN has been suggesting for years. We have asked for an open and transparent debate in plain view of the public on the relative risks and benefits of vaccination. We have asked the government to remove the hate rhetoric and pressure currently being applied to this issue and bring the conversation back to the realm of scientific evidence and proof. We believe strongly that if the pro-vaccine lobby actually had the evidence on their side, they would be using it to do this. The fact is that both they and the government have permitted and, in some instances, encouraged the same tactics as the hate group, Stop the AVN - of name calling, threats and intimidation. This might indicate that they might be more concerned with suppressing information then they are with enabling the public to examine this issue and make up their own minds - such a basic right in any democratic society!

HCCC power-grab and your obligation to speak out

Not long after the AVN won their case in the highest court in the State, the government did exactly what this paper - written by legal experts who believe strongly in the benefits of vaccination and disagree with the information provided by the AVN - advised against. They passed legislation giving the HCCC an obscene amount of power to investigate and cite nearly anyone they choose. And of course, they chose us.

These powers were not enough for the HCCC however and the Parliamentary Committee for the Health Care Complaints Commission is now considering passing legislation which will make everyone in the community - especially those who practice and use natural therapies, liable to government sanctions for merely DISCUSSING any issues which are not to  mainstream medicine's liking publicly.

The committee are seeking submissions from the public about this. The AVN has made a submission on behalf of our membership, but it would be incredibly helpful if everyone reading this would also write a short (2-3 paragraphs is enough and you can read the terms of reference at the Commission link above) submission of your own. The original closing date for this Inquiry was November 30th, 2013 but that has now been extended until February 7th, 2014. This is a rare opportunity to have your say on this vital issue and whether you live in NSW or elsewhere, your opinion will make a difference.

What's it got to do with you?

Why should you care about this issue? Why should even those who are opposed to the AVN give a damn about laws that are proposed to target our organisation?

Imagine the joy of some politicians or anyone else with an axe to grind who, in passing restrictive or unpopular legislation, can point to this precedent and say - nobody is allowed to criticise X-Y-Z policy because it is against the public interest and therefore, you will be gagged if you speak out against it.

This is the power the government has given to the HCCC. And you should be aware of this. And you should be afraid of allowing it to stand.

It is time for the silent majority - those Australians who support freedom and oppose invasive and oppressive government policies, to speak up by writing a submission - it need only be short - to the HCCC Committee.

Today, vaccination sceptics are the target. Tomorrow it may be the government targeting families that home school; or those who feed their children organic food.

We must all stand together for freedom and for our inalienable human rights. No government should ever be allowed to take them away for us.

Please note: Blog posts are opinion pieces which represent the views of the authors. They do not necessarily represent the viewpoints of the AVN National Committee. The AVN is a forum, support and information organisation and outlet for discussion about the relative benefits and risks of vaccinations in particular - and medical procedures in general. We do not provide medical advice but believe that everyone has the opportunity and the obligation to do their own research before making decisions for their families. The information we provide (including your personal review of the references we cite) should be taken in conjunction with a range of other data, including that obtained from government, your health care provider and/or other medical source material to assist you in developing the knowledge required to make informed health choices.